WHO WANTS NOMINAL DAMAGES ANYWAY?
THE IMPACT OF AN AUTOMATIC ENTITLEMENT TO
NOMINAL DAMAGES UNDER § 1983
I. INTRODUCTION

Consider the following hypothetical situation. An individual
becomes the victim of a constitutional violation at the hands of a
government official acting under color of a state statute. The individual
wisely seeks an attorney. The attorney, recognizing a possible
deprivation of the client's constitutional rights, eagerly accepts the case.
As an attorney au courantin federal rights, the attorney determines that
a successful claim under these circumstances is likely under 42 U.S.C.
§ 1983 ("§ 1983").1

The individual and the attorney envision the possibility of
remedying the constitutional violation and securing a substantial
monetary recovery. They immediately file under § 1983 against the
government official' seeking compensatory damages, punitive damages,
and attorney's fees.' Following a lengthy trial, the jury finds that the
1 42 U.S.C. § 1983 (1999). This Act reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
Id. The Supreme Court in Carey v. Piphus,435 U.S. 247 (1978), held that the basic purpose
of a damage award under § 1983 is to compensate persons for injuries caused by the
deprivation of constitutional rights. See id. at 255-56.
2
In Gomez v. Toledo, 446 U.S. 635, 640 (1980), the Supreme Court identified the
rule for suing a public official under § 1983: the plaintiff must allege that 1) some person
has deprived the plaintiff of a federal right, and 2) that person acted under color of state
law.

a Congress authored a companion provision to § 1983 that provides for an award of
attorney's fees to plaintiffs who are "prevailing parties." This companion statute is found in
42 U.S.C. § 1988 (1999) (§ 1988") and reads as follows:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982,
1983, 1985, and 1986 of this title, title IX of Public Law 92-318... [or] title VI
of the Civil Rights Act of 1964.. . , the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee as
part of the costs.

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government official violated the plaintiffs constitutional rights. The jury,
however, renders a verdict for no recovery. The jury refuses to award
compensatory or punitive damages because insufficient proof existed to

justify monetary damages. Because the plaintiff failed to request
nominal damages or include nominal damages in the jury instruction,

the jury did not consider this award. The attorney promptly asserts a
post-trial motion for nominal damages, with the prospect that prevailing

party status' will provide at least the possibility of recovering reasonable
attorney's fees." The attorney also argues that the court must award
nominal damages automatically in this situation because the jury found

that the defendant violated the plaintiffs constitutional

rights.'

However, because the plaintiff in this hypothetical failed to plead for
nominal damages or include nominal damages in the jury instruction,

the judge concurs with the jury's finding and dismisses the case.
Although the jury found that the defendant violated the plaintiffs
constitutional rights, the outcome of this litigation resulted in dismissal.
The plaintiff received no punitive damages, no compensatory damages,
no nominal damages, and no attorney's fees. This scenario reflects
precisely what has occurred in some courts.!
Thus, plaintiffs suing under § 1983 may also request the cost of reasonable attorney's fees
under § 1988, although such an award is discretionary.
4 See 42 U.S.C. § 1988 (a plaintiff attempting to recover attorney's fees under
§ 1988 must be a "prevailing party"); see also, e.g., Farrar v. Hobby, 506 U.S. 103, 112
(1992) (holding that when a plaintiff receives nominal damages, the plaintiff is a
"prevailing party" for purposes of attorney's fees); Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (stating that a plaintiff must cross the "statutory threshold" of attaining prevailing
party status before plaintiff may be considered for attorney's fees).
6 See 42 U.S.C. § 1988 ("[Tihe court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney's fee as part of the costs.").
Although a plaintiff who wins only nominal damages may receive reduced attorney's fees or
no fees at all, the award of nominal damages qualifies the plaintiff for attorney's fees under
§ 1988. See Hobby, 506 U.S. at 112-14. However, the Court in Hobby held that a
"reasonable" award of attorney's fees for a plaintiff who receives only nominal damages is
"usually no fee at all."Id. at 115.
6 See Carey, 435 U.S. at 266 n.24 (noting that several "lower federal courts have
approved the award of nominal damages under § 1983 where deprivations of constitutional
rights are not shown to have caused actual injury").
This scenario demonstrates the approach taken particularly in Eighth Circuit
courts. See, e.g., Westcott v. Crinklaw, 133 F.3d 658 (8th Cir. 1998) (holding that an award
for nominal damages for a constitutional violation is not available unless specifically
requested by the plaintiff); see also Robinson v. City of St. Charles, 972 F.2d 974 (8th Cir.
1992); Warren v. Fanning, 950 F.2d 1370 (8th Cir. 1991); Sims v. Mulcahy, 902 F.2d 524
(7th Cir. 1990). However, many district courts across the nation reach this conclusion, but
the circuit court remands the case for an entry of nominal damages. See, e.g., Robinson v.
Cattaraugus County, 147 F.3d 153, 162-63 (2d Cir. 1998) (remanding for an entry in the
amount of nominal damages for a constitutional violation because if the jury finds a
constitutional violation but no injury, "the plaintiff is entitled to nominal damages as a
matter of law"). Consequently, the cases of many plaintiffs in district court cases will result

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NOMIVAL DAMAGES

Since the Supreme Court's landmark decision in Monroe v. Pape,'
substantial litigation has resulted in the field of § 1983. Indeed, the
annotations for this single section of the United States Code Annotated
°
fill over 1,100 pages and contain more than 5,000 notes." Despite the
substantial litigation, endless annotations, and scores of scholarly
articles examining § 1983, the role of nominal damages in a plaintiff's
cause of action often receives little regard, especially considering the
1
potential of a large monetary recovery available to a plaintiff.
The text of § 1983 provides no guidance on the rules for determining
damages. However, nominal damages function as an overlooked but
important remedy in actions brought under § 1983. While courts
acknowledge the role of nominal damages as vindicating a fundamental
constitutional right," the guarantee of an "automatic"' award of nominal
damages under these circumstances does not necessarily provide

in dismissal unless they either specifically request nominal damages or are in a circuit

where the circuit court remands for an award of nominal damages.

8 365 U.S. 167 (1961). Monroe is significant because, for the first time, the
Supreme Court permitted an action to be brought under § 1983 for unconstitutional
conduct that violated state law. See id.
0 See 42 U.S.C.A. § 1983 (West 1999); see also Crawford-El v. Britton, 523 U.S. 574,
611 (1998) (Scalia, J., dissenting) (noting that litigation for § 1983 "pours into the federal
courts tens of thousands of suits each year").
'0 See 42 U.S.C.A. § 1983. This particular Act, including annotations, comprises one
volume of the U.S.C.A., not including supplements.
" Large recoveries are usually the result of a jury's decision to award punitive
damages. In Smith v. Wade, 461 U.S. 30, 56 (1983), the Supreme Court held that an official
may be liable for punitive damages "under § 1983 when the defendant's conduct is shown
to be motivated by evil motive or intent, or when it involves reckless or callous indifference
to the federally protected rights of others." Some commentators argue that punitive
damage awards are exorbitant. See generally Paul Mogin, Why Judges, Not Juries,Should
Set Punitive Damages, 65 U. Cm. L. REv. 179 (1998) (concluding that trial judges should
determine the level of punitive damages as a method of limiting excessive punitive damage
awards by juries). Other commentators commend the value of large recoveries for victims
of constitutional violations. See Michael Wells, Punitive Damages for Constitutional Torts,
56 LA. L. REV. 841 (1996) (arguing that punitive damage awards are essential for
constitutional torts).
See Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir. 1985) (concluding that an
12
infringement of a "constitutional right[ requires] at a minimum ... nominal damages")
(quoting Webster v. City of Houston, 689 F.2d 1220, 1230 (5th Cir. 1982)).
is The nominal damage award is automatic because it is available without proof of
actual injury as long as the jury finds a constitutional violation. See Carey, 435 U.S. at 266
(holding that a constitutional violation involving denial of procedural due process should be
"actionable for nominal damages without proof of actual injury"); LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 431 (2d Cir. 1995) (holding that a constitutional deprivation under
§ 1983 requires an award of nominal damages when jury finds such a violation, but
plaintiff suffers no actual damages).

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recovery of nominal damages for every plaintiff whose constitutional
rights have been violated.'
This comment examines the interpretations of an "automatic" award
of nominal damages in actions brought pursuant to § 1983 and identifies
the inconsistent results that occur from the various approaches. The
automatic award of nominal damages reveals that "the law recognizes
the importance to organized society that [constitutional] rights be
scrupulously observed,"15 even if insufficient proof exists for
compensatory or punitive damages. Congress intended to provide
vindication for fundamental constitutional rights by enacting § 1983.
Beginning with Carey v. Piphus,6 the Supreme Court held that a
constitutional deprivation of procedural due process entitles a plaintiff to
nominal damages even with insufficient proof as to actual damages. 7
Later courts construed Carey to provide protection for procedural rights
as well as substantive constitutional rights."
This comment first provides a brief historical background of § 1983
and its roots in the civil rights legislation of 1871. It also discusses the
historical context of § 1983 and its expanded role after Monroe as a
vehicle for plaintiffs to vindicate constitutional rights. It then examines
Carey and subsequent cases relying on Carey that diverge on the
interpretation of an automatic nominal damage award in actions
brought pursuant to § 1983. Finally, it identifies the impact and effect of
different courts' approaches to the award of nominal damages.
An award of nominal damages confers prevailing party status upon
the plaintiff, provides the plaintiff an opportunity to recover reasonable
attorney's fees, and may save a case from mootness. A refusal to award
nominal damages automatically often results in a dismissal. While
nominal damages as an automatic award provide vindication, a failure to
make the award automatic in every situation decreases the importance
of that vindication for the plaintiff whose rights are violated.

14

See supra note 7 and accompanying text.

Carey, 435 U.S. at 266.

16 435 U.S. 247 (1978).
17

See id. at 266-67.

'8 See, e.g., Draper v. Coombs, 792 F.2d 915, 921-22 (9th Cir. 1986) (stating "[flor
purposes of [Carey] it does not matter whether the underlying claim involves a deprivation
of a procedural or substantive constitutionally-based right"); see also Smith v. Coughlin,
748 F.2d 783, 789 (2d Cir. 1984) (awarding nominal damages for violation of Sixth
Amendment rights); Kincaid v. Rusk, 670 F.2d 737, 746 (7th Cir. 1982) (awarding nominal
damages for violation of First Amendment rights).

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II. BACKGROUND OF § 1983

Congress enacted § 1983 to provide a civil cause of action for the
deprivation of federal constitutional rights." This Act permits "any
citizen of the United States or other person within the jurisdiction
1
thereof' to bring a claim under the United States Constitution.
Litigants seeking recovery for violations of federal constitutional rights
generally cannot sue under the Constitution but must assert their claims
via § 1983.'
Section 1983 does not provide a source of substantive rights but
provides instead a method of vindicating federal rights granted
elsewhere, such as the "Constitution and laws.' The Supreme Court
explained the assertion of constitutional claims this way: "one cannot go
into court and claim a 'violation of § 1983'-- for § 1983 by itself does not
protect anyone against anything.""
The Court detailed the legislative history of § 1983 in several
cases.' The Court also identified the purposes of § 1983, stating that its
purposes were several-fold- to override certain kinds of state laws, to
provide a remedy where state law was inadequate, "to provide a
federal remedy where the state remedy, though adequate in theory,
was not available in practice," and to provide a remedy20 in federal
courts supplementary to any remedy any State might have.
Section 1983 derived from the Civil Rights Act of 1871.' The
provision originally resulted from fear of violence initiated by members
19

See 42 U.S.C. § 1983 (1999).

20

Id.

By enacting § 1983, "Congress has provided an alternative remedy which it
explicitly declared to be a substitute for recovery directly under the Constitution and
viewed as equally effective." Carlson v. Green, 446 U.S. 14, 18-19 (1980) (citations omitted).
' See id. at 19.
42 U.S.C. § 1983; see also Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (noting
2
that § 1983 "is not itself a source of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes").
Chapman v. Houston Welfare Rights Org., 441 U.S. 600,617 (1979).
24
See, e.g., Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989); Wilson v. Garcia,
25
21

471 U.S. 261 (1985); City of Newport v. Fact Concerts, 453 U.S. 247 (1981); Allen v.
McCurry, 449 U.S. 90 (1980); Chapman v. Houston Welfare Rights Org., 441 U.S. 600
(1979); Moneli v. Department of Soc. Servs., 436 U.S. 658 (1978); Mitchum v. Foster, 407
U.S. 225 (1972); Monroe v. Pape, 365 U.S. 167 (1961).
20 McNeese v. Board of Educ. for Community Unit Sch. Dist. 187, 373 U.S. 668,67172 (1963) (citing Monroe, 363 U.S. at 180-83).
See ch. XXII, 17 Stat. 13 (1871). This Act was known as the Ku Klux Klan Act of
1871. President Grant initiated the legislation by a letter he sent to Congress, reading in
pertinent part:
A condition of affairs now exists in some States of the Union rendering life and
property insecure and the carrying of the mails and the collection of the

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of the Ku Klux Klan.' Congress passed this provision to provide a
federal remedy for deprivations of rights because government officials
were unwilling or unable to enforce state law.' As a means of providing a
civil action for individuals whose rights were violated by government
officials acting under a state law, the Forty-second Congress passed the
Civil Rights Act of 1871, now codified as 42 U.S.C. § 1983.'
Litigation under § 1983 expanded considerably"1 following the
landmark Supreme Court decision in Monroe v. Pape." Before Monroe,
plaintiffs could only bring a cause of action for constitutional violations
committed under color of law. In Monroe, the Court created a broad
remedy for violations of rights by any person acting under pretense of

revenue dangerous. The proof that such a condition of affairs exists in some
localities is now before the Senate. That the power to correct these evils is
beyond the control of State authorities I do not doubt; that the power of the
Executive of the United States, acting within the limits of existing laws, is
sufficient for present emergencies is not clear. Therefore, I urgently recommend
such legislation as in the judgment of Congress shall effectually secure life,
liberty and property, and the enforcement of law in all parts of the United
States.
CONG. GLOBE, 42d Cong., 1st Sess. 244 (1871); see also Monroe, 365 U.S. at 171-90
(discussing the history of the Ku Klux Klan Act of 1871).
See supra note 27 and accompanying text.
See 1A MARTIN A. SCHWARTZ & JOHN E. KiRLiN, SECTION 1983 LITIGATION:
CLAIMS AND DEFENSES §1.3, at 9 (3d ed. 1997); see also Monroe, 365 U.S. at 175-76.
so See Civil Rights Act, ch. XXII, 17 Stat. 13 (1871). The Civil Rights Act of 1871
provided the following:
That any person who, under color of any law, statute, ordinance, regulation,
custom, or usage of any State, shall subject, or cause to be subjected, any
person within the jurisdiction of the United States to the deprivation of any
rights, privileges, or immunities secured by the Constitution of the United
States, shall, any such law, statute, ordinance, regulation, custom, or usage of
the State to the contrary notwithstanding, be liable to the party injured in any
action at law, suit in equity, or other proper proceeding for redress; such
proceeding to be prosecuted in the several district or circuit courts of the
United States, with and subject to the same rights of appeal, review upon error,
and other remedies provided in like cases in such courts, under the provisions
of the act of the ninth of April, eighteen hundred and sixty-six, entitled "An act
to protect all persons in the United States in their civil rights, and to furnish
the means of their vindication"; and the other remedial laws of the United
States which are in their nature applicable in such cases.
Id. Congress enacted the Civil Rights Act of 1871 to enforce the provisions of the
Fourteenth Amendment. See Monroe, 365 U.S. at 171.
"' See RICHARD FALLON ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE

FEDERAL SYSTEM 1121-22 (4th ed. 1996); Daniel J. McDonald, A Primer on 42 U.S.C.
§ 1983, UTAH B.J., May 1999, at 29 ("Since Monroe, there has been a literal explosion of
§ 1983 litigation, ranging from suits brought by prisoners to land use cases brought by
wealthy corporate developers.').
365 U.S. 167 (1961).

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state authority, even "in stark violation of state civil or criminal law.'m
The scope of actions brought under § 1983 expanded again following the
Supreme Court's holding in Monell v. Department of Social Services"
such that local governments could now be liable under § 1983.
To state a cause of action under § 1983, a plaintiff must allege two
elements: 1) the conduct complained of must have been committed by a
person acting under color of law; and 2) the conduct must have deprived
the plaintiff of federal rights.' Further, to establish a violation of
constitutional rights under § 1983, the plaintiff must prove that the
defendant's unconstitutional action was the "cause in fact" of the
plaintiffs injury." Plaintiffs are able to hold certain state actors liable
for violating constitutional rights of a "citizen of the United States or
other person within the jurisdiction thereof.' Courts also hold a
to
municipality liable for damages under § 1983 when "action pursuant
'
official municipal policy of some nature caused a constitutional tort."
While the scope of claims brought under § 1983 expanded to include
deprivations of non-constitutional federal law,' the role of nominal
damages to vindicate constitutional deprivations has not changed.
Nominal damages vindicate constitutional violations when awarded
automatically under § 1983. Further, § 1983 remains a crucial vehicle for
plaintiffs to protect certain fundamental constitutional rights.' Whether
courts adopt the recent expanded approach to § 1983 actions or the"1
limited approach proposed by Justice Scalia in Crawford-El v. Britton,
nominal damages exist as a crucial tool to vindicate constitutional
violations. In addition, under the holding of Carey, nominal damages are

33

Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting).considered
436 U.S. 658 (1978). Before Monell, cities and counties were not

"persons" subject to liability under § 1983. I& MoneU overruled this part of Monroe and
held that cities and counties are considered "persons" under § 1983 subject to compensatory
damages. Id.
See Gomez v. Toledo, 446 U.S. 635,640 (1980); Mitchum v. Foster, 407 U.S. 225,
242 (1972).
' Carey v. Piphus, 435 U.S. 247,263 (1978).
37 42 U.S.C. § 1983 (1999).
" Monell, 436 U.S. at 691 (providing for municipal liability under § 1983 for
injuries caused by the municipality's own unconstitutional or illegal policies).
30 See Maine v. Thiboutot, 448 U.S. 1, 4 (1980). Thiboutot served as another
expansion of § 1983 by the courts. By holding that plaintiffs may sue under § 1983 to
vindicate federal statutory rights, the Court created the potential for a wide array of
remedial theories brought under § 1983. See id. This comment argues that nominal
damages should be automatically available for constitutional violations under § 1983
without considering whether nominal damages should be automatically available for cases
brought under other non-constitutional federal statutes.
See Chapman v. Houston Welfare Rights Org., 441 U.S. 600,616-18 (1979).
40
523 U.S. 574, 611-12 (Scalia, J., dissenting).
41

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available automatically to a plaintiff who suffers from a constitutional
deprivation."
III. NOMINAL DAMAGES IN § 1983 ACTIONS: CAREY AND BEYOND
An award of nominal damages under § 1983 is appropriate when the
plaintiff fails to establish the factual basis for an award of compensatory
damages but successfully establishes a constitutional violation.' An
automatic entitlement to nominal damages for constitutional violations
is important because compensatory damages are not available for the
deprivation of a constitutional right alone." Compensatory damages
under § 1983 serve only to compensate the plaintiff, not to vindicate the
constitutional right. The role of vindicating constitutional violations is
served by an award of nominal damages.
A Carey v. Piphus and the Entitlement to Nominal Damages
for Violations of ProceduralDue Process
While damages traditionally have been available as "the ordinary
remedy for an invasion of personal interests in liberty,"' courts before
Monroe v. Pape' refused to grant damages for § 1983 claims alleging
that a state actor violated the law.' In 1978, the Supreme Court in Carey
v. Piphus" recognized that an automatic entitlement to nominal
damages in a § 1983 action provided vindication for the deprivation of a
constitutional right.'
1. The Circumstances of Carey
The Supreme Court in Carey held that a denial of procedural due
process should be actionable for nominal damages without proof of actual
injury.' Carey resulted from consolidated actions brought by students

See Carey, 435 U.S. at 266.
See id. at 266-67.
See Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986)
("INlominal damages, and not damages based on some undefinable 'value' of infringed
"
4

rights, are the appropriate means of 'vindicating' rights whose deprivation has not caused

actual, provable injury.").
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,

395 (1971).

365 U.S. 167 (1961).
" See Zarcone v. Perry, 572 F.2d 52, 54 (2d Cir. 1978) (noting that damages under

§ 1983 are of "relatively recent origin').
4
435 U.S 247 (1978).
"
See id. at 266-67.
0 See id.

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suspended from school. 1 The plaintiffs brought a § 1983 action against
the school claiming a violation of their constitutional right to due
process." The district court held that both students had been suspended
without procedural due process but declined to award damages."
According to the district court, there was "no evidence in the record to
quantify their damages, and the record [was] completely devoid of any
evidence which could even form the basis of a speculative inference
measuring the extent of their injuries.' Although the district court
stated that the students were entitled to have the records deleted from
their files, the court simply dismissed the complaints.'
On appeal, the court of appeals reversed and remanded.' The court
of appeals held that even if the district court found on remand that the
suspensions were justified, the students would be entitled to recover
substantial "non-punitive" damages simply because they had been
denied procedural due process."' The Supreme Court "granted certiorari
to consider whether, in an action under § 1983 for the deprivation of
procedural due process, a plaintiff must prove that he actually was
injured by the deprivation before he may recover substantial
'nonpunitive' damages.'
The Supreme Court in Carey analyzed the purpose and function of
damages, comparing § 1983 damages to common law tort damages."
Holding that damage awards under § 1983 should be governed by the
principle of compensation, the Court concluded that "[tihe purpose of
§ 1983 would be defeated if injuries caused by the deprivation of
constitutional rights went uncompensated simply because the common
law does not recognize an analogous cause of action.' The Court then
discussed the importance of making nominal damages available
6
automatically to individuals whose constitutional rights are violated.
81
"

See id. at 251.
See id. at 248.
See id. at 251.
Id. at 251-52 (quoting Appendix to Petition for Certiorari at A14).
See id. at 252.

87
8,
8

See Piphus v. Carey, 545 F.2d 30 (7th Cir. 1976).
Id. at 31.

Carey, 435 U.S. at 253.

See id.; see also Imbler v. Pachtman, 424 U.S. 409, 417 (1976) (stating that § 1983
intended to create a "species of tort liability" for persons who are deprived of rights,
privileges, or immunities secured to them by the Constitution).
0
Carey, 435 U.S. at 258.
See id. at 266. The Court viewed nominal damages as a crucial function in
81
constitutional protections, yet it limited recovery of compensatory and punitive damages to
those that were specifically proven:
By making the deprivation of such rights actionable for nominal damages
without proof of actual injury, the law recognizes the importance to organized

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2. The Automatic Award of Nominal Damages
The Court in Carey concluded that it would rectify the
constitutional deprivation by making the claim for nominal damages
actionable without proof of actual injury.' The Court premised its
holding in Carey on the importance of procedural due process in an

organized society and on the principle that a right to procedural due
process is "absolute. Because the right to procedural due process is
absolute, the denial of due process should be actionable for nominal
damages without proof of actual injury."
Following Carey, several commentators argued that the Court's
common law model of damages was inappropriate for constitutional

violations.'

One common argument is that the courts should adopt

presumed damages for constitutional violations.' However, the Court
"has resisted the notion that constitutional rights have intrinsic value to
the plaintiff, independent of harms, like emotional distress, wrongful

suspension from school, lost salary or medical expenses, which are all
subject to proof.'

While Carey stood for the premise that a violation of procedural due
process requires an automatic entitlement to nominal damages, most
courts have eliminated the distinction between the deprivation of
procedural rights and substantive constitutionally-based rights." As a
society that those rights be scrupulously observed; but at the same time, it
remains true to the principle that substantial damages should be awarded only
to compensate actual injury or, in the case of exemplary or punitive damages,
to deter or punish malicious deprivations of rights.
Id. As a result, nominal damages serve the purpose of vindicating constitutional
deprivations.
2
See id. at 266-67.
6' Id. at 266.

See id.
65 See generally Michael Wells, Constitutional Remedies, Section 1983 and the
Common Law, 68 MISS. L.J. 157, 159 (1998) (stating that constitutional rights are no less
valuable for being more difficult to calculate and suggesting that courts "should devise
rules that reflect the distinctive features of damage suits aimed at vindicating
constitutional rights"); Theodore Eisenberg & Stewart Schwab, The Reality of
Constitutional Tort Litigation, 72 CORNELL L. REv. 641, 687 (1987) (concluding that the
median constitutional tort recovery was only $11,000).
S6 See Jean C. Love, Presumed General Compensatory Damages in Constitutional
Tort Litigation: A Corrective Justice Perspective, 49 WASH. & LEE L. REv. 67, 80 (1992)
("[1If the plaintiff is allowed to recover presumed general damages, then the plaintiff will
receive compensatory damages in an amount that 'may roughly approximate the harm that
the plaintiff suffered.-).
67 Wells, supra note 65, at 217-18.
" See, e.g., Mount Health City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977) (permitting plaintiff to bring a claim under § 1983 based on the First Amendment);
Draper v. Coombs, 792 F.2d 915 (9th Cir. 1986) (granting nominal damages for extradition

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result, plaintiffs commonly assert § 1983 claims under diverse
constitutional theories.
Several courts following Carey held that nominal damages must be
awarded automatically upon a finding of a constitutional violation
regardless of whether the plaintiff proves actual damages." Some courts
have attempted to expand Carey by holding that nominal damages are
mandatory in causes of action not based on constitutional rights."'
However, the Eleventh Circuit in Walker v. Anderson Electrical
Connectors"' identified the unique and significant nature of
constitutional violations compared with other statutory violations.
Walker involved a Title VII claim in which the plaintiff made a post-trial
motion for nominal damages, relying on Carey.' The court in Walker
concluded that "the reasoning in Carey applies only to violations of
constitutional magnitude." 3 Consequently, the court refused to imply an
automatic entitlement to nominal damages when no constitutional
violation existed.7 '
Nominal damages as an automatic award should be available to
plaintiffs suffering from constitutional violations. A defendant who
violates a plaintiffs constitutional rights should be liable for at least
nominal damages under § 1983. The consideration of an "automatic"
award should only apply to those violations that are fundamental
constitutional rights. While an automatic entitlement to nominal
damages provides vindication, non-constitutional violations do not
require an analogous automatic award provision. Modern courts have
expanded the scope of § 1983 claims to place "federal rights" in the same
category as "constitutional rights."' However, the automatic award in

statute violations); Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir. 1985) (allowing an award

of nominal damages for violation of "civil rights"); Smith v. Coughlin, 748 F.2d 783, 789 (2d
Cir. 1984) (granting nominal damages for violation of Sixth Amendment Rights); Kincaid v.

Rusk, 670 F.2d 737, 746 (7th Cir. 1982) (granting nominal damages for violation of First

Amendment rights); Reyes v. Edmunds, 472 F. Supp. 1218, 1230 (D. Minn. 1979) (stating
that the "general reasoning in Carey applies to most § 1983 cases, including Fourth
Amendment cases").
" See, e.g., Coughlin, 748 F.2d at 789 (remanding a case to the district court so that

it may enter an award for nominal damages because litigant was able to prove a violation

of a substantive constitutional right despite lack of proof of injuries).
7 See Maine v. Thiboutot, 448 U.S. 1, 4 (1980) (expanding § 1983 to remedy
violations under Social Security Act); Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.
1990), vacated, 499 U.S. 914 (1991).
71
944 F.2d 841 (11th Cir. 1991).
72

73
74
7

See id. at 845.

Id.
See id.
Monell v. Department of Social Servs., 436 U.S. 658, 669 (1978).

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Carey applied specifically in the context of a due process violation."
Similarly, the automatic award of nominal damages should be limited to
those situations where the victim is deprived of a constitutional right.
An expansion of this rule fails to meet the policy behind Carey.
3. The Impact of Carey
The Court's declaration in Carey that individuals are "entitled" to
an award of nominal damages presents several important procedural
questions. First, since a nominal damage award is available, must a
plaintiff include a request for nominal damages in the pleading? Second,
if a plaintiff fails to include a request for nominal damages, can the
plaintiff submit a request following the judgment to include nominal
damages? Finally, if nominal damages are available as a matter of law
for constitutional violations, must courts always provide the award
regardless of whether the plaintiff requests them?
When a plaintiff is determining what damages to plead, considering
nominal damages may be the last thing that comes to mind. With the
possibility of a large recovery as the primary motivation of most
plaintiffs, a typical award request includes a prayer for compensatory
damages, punitive damages, and attorney's fees. Plaintiffs often exclude
nominal damages in their pleading, either intentionally or
unintentionally. Consequently, courts must consider the availability of
nominal damages to those plaintiffs failing to plead for nominal
damages.
Carey's common interpretation permits an automatic award of
nominal damages under § 1983 upon a finding of a constitutional
violation. This simply means that if a deprivation of constitutional rights
exists, the plaintiff is entitled to nominal damages, regardless of either
the plaintiffs procedural stance or the specific request for damages.
However, not all courts proceed in this manner, and the different
approaches produce significantly contrasted effects upon the plaintiff.
B. Beyond Carey: InterpretationsofAutomatic Entitlement
There are three common interpretations of Carey. Some courts have
determined that although nominal damages are available absent proof of
actual injury, a plaintiff must first request nominal damages." Other
courts permit the plaintiff to request nominal damages following the jury
verdict even if the jury fails to award nominal damages." Finally, some
courts have intimated that an award of nominal damages may occur
76

See Carey, 435 U.S. at 266-67.
See supra note 7 and accompanying text.
See Campos-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999).

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even without a specific request." The result and impact of the
contrasting views may have significant consequences on the case,

including whether a plaintiff is declared a prevailing party, whether a
plaintiff may receive attorney's fees, and whether a case becomes moot.
While most courts treat nominal damages as an automatic entitlement
regardless of whether the plaintiff requests them, some courts,
particularly in the Eighth Circuit, require plaintiffs to specifically
request nominal damages on risk of losing them."
1. The "Responsible Plaintiff" Approach
and the Requirement of a Proper Jury Instruction
Courts following the most restrictive approach to the award of
nominal damages under § 1983 require plaintiffs to include a request for

nominal damages in the proposed jury instructions. Many of these cases
require plaintiffs to either request nominal damages or risk losing the
opportunity. Under this approach, a court does not provide the remedy of
1
nominal damages when a plaintiff fails to request such an instruction."
Courts require the plaintiff to act responsibly, and courts classify this
responsible plaintiff approach as the "invited error" doctrine.'
This approach is the most restrictive because it withholds an award
of nominal damages from the plaintiff who fails to include such a request
in the jury instruction. While courts differ as to the grant of nominal
damages to an irresponsible plaintiff, the responsible plaintiff approach

may be appropriate under some circumstances."
See, e.g., Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1990) (holding that nominal
damages must be awarded regardless of the jury instruction).
go See infra note 109 and accompanying text.
8' See Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 283 (3rd Cir.
1995) (finding in an action not brought under § 1983, a jury verdict of $3 million was
unwarranted since there were no compensatory damages, and the court refused to imply an
award of nominal damages); see also Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205
(1st Cir. 1995) (noting that nominal damages for 42 U.S.C. § 1981a(aXl) claims are not
recoverable unless specifically requested either as a jury instruction or on additur); Walker
v. Anderson Elec. Connectors, 944 F.2d 841, 844-45 (11th Cir. 1991) (holding that a
plaintiff was not entitled to a presumption of nominal damages when she failed to
specifically request them); Sims v. Mulcahy, 902 F.2d 524, 535 (7th Cir. 1990) (same). But
see infra Part III.B.3. (explaining that the jury's finding of a constitutional violation
requires a mandatory award of nominal damages).
The "responsible plaintiff' approach is a phrase suggested by the author of this
8
comment to describe the "invited error doctrine." See United States v. Benny, 786 F.2d
1410, 1417 (9th Cir. 1986) (where the criminal defendant proposes an erroneous jury
instruction, review of the instruction is barred by doctrine of invited error); DeLand v. Old
Republic Life Ins. Co., 758 F.2d 1331, 1336-37 (9th Cir. 1985) (doctrine of invited error
applicable in context of civil jury trial).
When an irresponsible plaintiff is unable to coherently assert the legal theory on
"
which the claim is brought, a court may properly deny an automatic award of nominal

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A court's refusal to automatically award nominal damages often

results from an incorrect jury instruction offered by the plaintiff. In
Ganey v. Edwards," the Fourth Circuit upheld a jury verdict refusing
nominal damages despite a finding that the defendant violated the
plaintiff's constitutional rights. The court instructed the jury that it
"may" award nominal damages upon a finding that the plaintiff was
deprived of a constitutional right, but the jury was not required to do
so." In refusing to inake an award of nominal damages "automatic," the
court concluded that its decision did not misinterpret Carey:
Our ruling in no way challenges this Carey holding, which enables a
§ 1983 claim to be actionable for nominal damages without any
showing of actual injury. We conclude that once the issue is presented
to the jury, it may decide to award a zero sum or some other small
amount as nominal damages."

In Sims v. Mulcahy, 7 the plaintiff brought an action under § 1983
for violations of the Fourth and Fourteenth Amendments." The plaintiff
neglected to request a jury instruction that required an award of
nominal damages." Although the jury found that the defendant violated
the Fourth Amendment, it returned a verdict awarding zero damages.'
The plaintiff offered the jury instruction regarding damages, but the

damages, unsure as to whether the plaintiff is suing under § 1983. See Kelly v. Municipal
Courts, 97 F.3d 902 (7th Cir. 1996) (refusing to award nominal damages when the plaintiff
failed to mention § 1983 as the cause of action and specifically requested reinstatement as
the only form of relief sought). Since the purpose of an automatic award of nominal
damages is to vindicate constitutional violations, a court should not imply a constitutional
theory when the plaintiff fails to submit one.
759 F.2d 337 (4th Cir. 1985). In Ganey, jail officials refused access to the prison's
law library in violation of the prisoner's right to petition the courts. See id. at 338.
s See id. at 339. The relevant part of the jury instruction reads:
If you find that plaintiff was deprived of his constitutional right of access to the
courts, but do not find that he suffered any actual damages, then you may
award him some sum as damages, such as five cents or $1.00 or some other
insignificant sum. While such an award of nominal damages may not be
significant, it may be greater than $1.00.
Id. at 339 n.2 (emphasis added).
Id. at 339 (emphasis added).
87
902 F.2d 524 (7th Cir. 1990).
88

See id. at 526.

See id. at 534. The relevant part of the jury instruction stated: "[elven if you find
plaintiff is entitled to no compensatory damages, however, you may still award plaintiff
nominal damages of up to $1 for the violation of her constitutional right by any individual
defendant." Id.
90 See id. at 535-36 (refusing an appeal for nominal damages because of the
"necessity for a party to raise any objections it might have to jury instructions prior to the
time the jury begins its deliberations").

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court refused to declare an award of nominal damages mandatory after
1
the plaintiff himself offered the permissive damage award instruction.
Similarly, in Warren v. Fanning," the plaintiff brought an action
under § 1983 alleging an Eighth Amendment violation." In Warren, the
Eighth Circuit refused to award nominal damages because the plaintiff
failed to specifically request them." The court justified its refusal based
on the plaintiffs failure to offer the correct jury instruction:
Although, as explained earlier in this opinion, Warren would have
obtained nominal damages under a proper instruction, the erroneous
instruction given to the jury is the very instruction proffered by
Warren, and when the trial judge read this instruction to the jury, no
objection was voiced. Warren and his counsel thus have no one to
blame but themselves for the jury's decision not to award nominal
damages ....
The Warren court apparently interpreted Carey to stand for the
proposition that plaintiffs are entitled to nominal damages, but only
upon a specific request. While this allows something less than an
"automatic" award of nominal damages, the approach taken in these
cases reflects a "responsible plaintiff" approach to § 1983 litigation.
Judge Heaney concurred in Warren's holding, but he wrote separately to
"underscore the importance of properly instructing the jury on the
necessity of awarding nominal damages to redress violations of
constitutional rights.'
Following Warren, the Southern District Court of Florida held in
Watchtorn v. Town of Davie' that a plaintiff and her attorney "have no
one to blame but themselves" for an improper jury instruction.' The
court in Watchtorn quoted substantial sections from Warren and held
that "the instant case mirrors Warren.' In Watchtorn, the plaintiff did
not receive nominal damages because she proffered a jury instruction
that failed to include nominal damages." The court noted, however, that
the plaintiff may have intentionally left out a nominal damage
91

See id. at 536.

950 F.2d 1370 (8th Cir. 1991).
See id. at 1372 (where plaintiff alleged 'that his constitutional right to be free
"
from cruel and unusual punishment was violated").
"
96

See id. at 1375.

Id.

Id. at 1375-76 (Heaney, J., concurring). Judge Heaney decided to reluctantly

concur" in affirming the district court. Id. at 1376.

795 F. Supp. 1112 (S.D. Fla. 1992). The plaintiff in Watchtorn brought a posttrial motion for nominal damages in order to be considered for attorney's fees. See id. at

1113.

Id. at 1115.
Id.
'00

See id.

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instruction for fear of losing other remedies."1 The court concluded that
although the plaintiffs due process rights were intentionally violated by
the defendant, the lack of a damage award and failure to plead nominal
damages resulted in only a "Phyrric [sic] victory"" and refused attorney's
fees."~

The Eighth Circuit in Robinson v. City of St. Charles'" again refused
to award a request of nominal damages in a § 1983 claim brought for a
Fourth Amendment violation." The jury in Robinson found the officer
liable but awarded zero damages." The Eighth Circuit refused to award

nominal damages since the plaintiff did not specifically request them:
However, [Plaintiff] neither requested an instruction on nominal
damages nor objected to the damage instructions given. The
instructions gave the jury the discretion not to award nominal
damages. The jury did not award [Plaintiffl nominal damages, and he
made no post-verdict motion challenging the failure to award nominal
damages. Therefore, [Plaintiff] was not a prevailing party under
Warren v. Fanning and his motion for an attorney's fee was properly
denied.'°7
The Robinson court's refusal to award automatic nominal damages
resulted in a denial of prevailing party status for the purposes of
attorney's fees. The plaintiff failed to receive nominal damages merely
because the plaintiff failed to assert a proper jury instruction. The result
affected not only the opportunity to win attorney's fees, but the symbolic
vindication of constitutional rights that nominal damages afford."
In 1998, the Eighth Circuit reaffirmed its restrictive approach to
automatic awards of nominal damages in Westcott v. Crinklaw.' While
"' See id. at 1115 n.7. The court implied that the plaintiff intentionally disregarded
a nominal damage instruction in order to increase the chance of a larger recovery from
compensatory and punitive damages: "Query whether Watchtorn intentionally avoided
highlighting the nominal damage alternative for fear of jeopardizing her substantial
compensatory and punitive damage claims by offering the jury a 'Solomonic solution." Id.
Despite this assertion, the court offered no proof that the plaintiff intentionally
disregarded the nominal damage request. See id
102 Id. at 1117. "A pyrrhic victory is a victory that is offset by staggering losses."
Dienbeck v. Hayes, 830 F. Supp. 673, 675 n.1 (N.D.N.Y. 1993).
103 See Watchtorn, 795 F. Supp. at 1117.
104
106
100

972 F.2d 974 (8th Cir. 1992).
See id. at 976.
See id.

'07 See id.
100 See id.

at 977 (Wellford, J., concurring). Judge Wellford's concurring opinion

noted the improper outcome of the situation when a jury finds defendant liable for
violating constitutional rights, but the jury refuses to award nominal damages: "[wihile the
results here seem somewhat unsatisfactory, I concur in the opinion since we must affirm
under the precedent cited, particularly Warren." Id. at 978.
109
133 F.3d 658 (8th Cir. 1998).

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the procedural path in Westcot 10 is much different than the other cases,
the court explicitly affirmed the notion that a jury may find liability but
award zero damages."' Westcott interpreted Carey as permitting the jury
to award nominal damages but not mandating such an award. Referring
to its understanding of Carey, the court in Westcott stated that "we
reasoned that the jury could have awarded nominal damages.""' By
using the word "could," the court upheld a permissive, non-mandatory
approach to nominal damages upon a finding of constitutional violation.
The restrictive approach requires plaintiffs to be responsible both
during and after trial. Courts adopting this method of § 1983 nominal
damage awards require plaintiffs to include such a plea in the jury
instruction. As Judge Heaney's concurring opinion in Warren stated,
juries must be properly instructed regarding nominal damages."' The
consequence of an improper instruction under the restrictive approach is
usually a dismissal or denial of reasonable attorney's fees based on the
doctrine of invited error.
Clearly, the difference between a successful or unsuccessful plaintiff
under this approach is the wording of the jury instruction. Courts under
the responsible plaintiff approach often permit a jury instruction that
states something like, "If you find for the plaintiff, but find that the loss
has no monetary value, you may return a verdict for the plaintiff for
nominal damages in the amount of One Dollar ($1.00)."" In order to
succeed under this approach, a plaintiff must specifically request a jury
instruction that includes nominal damages. Not only must nominal
damages be included, but the plaintiff also must request an instruction
based on Carey that the jury must, as opposed to may, return a verdict
for nominal damages upon a finding of a constitutional violation. Only by
utilizing this specific instruction will a responsible plaintiff receive
nominal damages for constitutional violations under § 1983.
2. The Intermediate Approach
The second approach to awarding nominal damages for
constitutional violations is a less restrictive approach than the
"responsible plaintiff" approach, yet it still requires a plaintiff to include
"o Unlike the cases in which a plaintiff attempts to receive nominal damages at the
last minute as a vindication of constitutional rights, Westcott involved a plaintiff who

complained that the nominal damage instruction was erroneous because proof of actual
injury existed. See id. at 662.

i See id. at 663.

Id. (citing Carey, 435 U.S. at 263).
See supra text accompanying note 95.
14
This instruction is typical of a jury instruction by courts that follow Warren. See
Sims v. Mulcahy, 902 F.2d 524, 534 (7th Cir. 1990).
112
113

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a request for nominal damages sooner or later during the process. Under
this approach, the court permits the plaintiff to make a pre-trial or postverdict request for nominal damages. The court allows nominal damages
as long as the plaintiff requests them, either before or after the jury
verdict.
The First Circuit Court of Appeals recently determined that in light
of Carey, a plaintiff may be entitled to nominal damages but must make
a timely request for nominal damages, either before or after the trial."'
In Campos-Orrego v. Rivera,"' the plaintiff claimed that she was
terminated for attempting to counsel a client regarding a sexual
harassment claim.1 ' The plaintiff alleged that the termination violated
local laws that safeguard individuals against retaliation for affording
assistance to persons who seek to make sexual harassment claims, and
that the firing abridged her right to procedural due process."'
Since the plaintiff brought the complaint pursuant to § 1983, the
district court retained original jurisdiction and supplemental jurisdiction
over the local claims.' 9 At trial, the jury returned a verdict awarding
$80,000 in compensatory damages for the local violation and $10,000 in
punitive damages on the due process claim." The plaintiff then moved
that $1 be deducted from the punitive damage award and reallocated as
nominal damages on the due process claim." The court held that
although the plaintiff did not charge the jury on nominal damages, the
plaintiff made a "sufficiently prompt post-verdict request."' As a result,
the court allowed the award of nominal damages. The court noted the
importance of an award of nominal damages because such an award
"bridges any gap attributable to the absence of a compensatory damage
award" for the federal claim. n
Despite the court's holding in Campos-Orrego, the court made
specific mention that nominal damages may not be automatically
entitled even when there has been a deprivation of constitutional rights:

11

See Campos-Orrego v. Rivera, 175 F.3d 89, 98 (1st Cir. 1999). The plaintiff in

Campos-Orregobrought the § 1983 action based on a deprivation of procedural due process.
See id. at 92.
116 175 F.3d 89 (1st Cir. 1999).

1

See id.
See id. at 92-93.

"'

See id. at 92 n.1.

117

See id. at 93.

'21 See id. The court explained the trial court's actions:

"[in respect to the due

process claim, the court recast the $1 from the punitive damage award as nominal
damages, thus keeping the aggregate amount intact but reducing punitives to $9,999." Id.
Id. at 98.
Id. at 99.

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[W]e hold that when a jury in a case brought pursuant to 42 U.S.C.
§ 1983 finds a violation of the plaintiffs procedural due process rights,
but fails to award compensatory damages, nominal damages are
available to the plaintiff.
Let us be perfectly clear. We do not suggest that this entitlement is
automatic, but, rather, it is incumbent upon the plaintiff to make a
timely request for nominal damages.'
The Campos-Orregoholding is crucial because it prohibits a plaintiff
whose constitutional rights have been violated to receive nominal
damages unless the plaintiff makes a request for nominal damages
either ex post or ex ante.' The Campos-Orregocourt based its reasoning
on its prior holding in Kerr-Selgas v. American Airlines, Inc.' KerrSelgas did not involve a claim brought under § 1983, but a sexual
discrimination claim.' The Kerr-Selgas court refused to grant punitive
damages absent compensatory or nominal damages.' The court also
refused to imply a plea of nominal damages in actions brought under 42
U.S.C. § 1981a(a)(1). As the court stated:
We return briefly to the matter at hand. Although nominal damages
are recoverable in intentional discrimination cases under 42 U.S.C.
§ 1981a(aX1), we do not think that a liability verdict compels such an
award absent a timely request. Kerr neither requested a jury
instruction on nominal damages, nor asked the district court .... We
therefore conclude- given the circumstances of this case-that the
punitive damages award must be vacated absent either a
compensatory damages award, or a timely request for nominal
damages, on the federal claims."
In both Campos-Orrego and Kerr-Selgas, the First Circuit failed to
distinguish between actions brought under § 1983 for constitutional
violations and actions brought under other federal theories. While the
Kerr-Selgas court was correct that nominal damages must be requested
specifically in non-constitutional actions, this rule was applied
Id. at 98.

See id. at 99. The court summarized this intermediate approach:
Accordingly, we hold that a timely request for nominal damages can be made
either ex ante (to the jury) or ex post (to the judge). Thus, a plaintiff may
request the judge to instruct the jury on nominal damages, or in the absence of
such an instruction, may ask the trial court for damages on the occasion of, or
Id.

immediately after, the return of the verdict.

IN 69 F.3d 1205 (1st Cir. 1995). The court in Campos-Orregoexplained its reliance
on Kerr-Selgas: "[i'n dictum, Kerr-Selgas adumbrates a more expansive approach ... and
we think that the interests of justice warrant such expansiveness." Campos-Orrego, 175
F.3d at 99.
See Kerr-Selgas,69 F.3d at 1206-07.
'

See id. at 1214.
Id. at 1215.

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incorrectly to the constitutional issues raised in Campos-Orrego. The
difference involved the nature of the federal action, and consequently,
the automatic entitlement to an award of nominal damages under Carey.
The Supreme Court's language in Arizonans for Official English v.
Arizona" could indicate a rejection of this approach:
It should have been clear to the Court of Appeals that a claim for
nominal damages, extracted late in the day from [Plaintiffs] general
prayer for relief and asserted solely to avoid otherwise certain
mootness, bore close inspection.... On such inspection, the Ninth
Circuit might have perceived that [Plaintiffs] plea for nominal
damages could not genuinely revive the case. 131
However, Arizonans for Official English was a case about immunity
under § 1983, not about whether nominal damages were available after a
jury trial."
The view that a plaintiff must make a request for nominal damages
either in the jury instruction or after the verdict is less stringent than
that followed by the "responsible plaintiff" approach, but the plaintiff
under this approach must still request nominal damages at some time
during the process. Only by requesting nominal damages at some point
during the litigation can a plaintiff under this approach receive a
vindication for constitutional rights violations.
3. The Permissive Approach: Nominal Damages as an
Automatic Award upon Finding of a Constitutional Violation
The most permissive and most common approach to an "automatic"
award of nominal damages occurs when courts permit a plaintiff to
recover nominal damages regardless of whether the plaintiff specifically
pleads for them. While courts following the responsible plaintiff
approach enforce the doctrine of invited error, the permissive approach
relaxes the invited error doctrine in order to grant nominal damages to
plaintiffs automatically.
The Fifth Circuit in Farrarv. Cain'" held that nominal damages
must be awarded when "an infringement of a fundamental right was
520 U.S. 43 (1997).
''
13

Id. at 70.

See id. at 67-68. The Supreme Court refused to award nominal damages because

§ 1983 actions do not lie against a State. See id. at 45 (citing Will v. Michigan Dept. of
State Police, 491 U.S. 55, 71 (1989)). Because of state immunity, no monetary damages

were available to the plaintiff, regardless of when during the suit the plaintiff makes the
request. See id. However, the Court did not criticize the Ninth Circuit's decision to find an
implied fee of nominal damages. See i& The Ninth Circuit held that a plea for nominal

damages may be read into a complaint that includes compensatory damages, punitive

damages, and "all other relief" without specifically requesting nominal damages. See

Yniguez v. State, 975 F.2d 646 (9th Cir. 1992).
133 756 F.2d 1148 (5th Cir. 1985).

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shown.""3 In Cain, the trial court entered judgment for the plaintiffs
based on a jury verdict that found at least one defendant liable but
awarded no damages." s The plaintiffs succeeded only on the grounds that
a nominal damages plea can be inferred for a violation of a fundamental
right despite plaintiffs failure to present a proper jury instruction.'

In Beyah v. Coughlin,"7 the plaintiffs did not plead for nominal
damages yet the court held that such an award would be automatic if
defendants violated the plaintiffs' constitutional rights. The Second
Circuit determined that if the plaintiffs could prove a deprivation of a
constitutionally protected right, the plaintiffs would be entitled to

recover at least nominal damages.' The court remanded the case for
examination of whether such an award was appropriate."
Recall that in the "responsible plaintiff' approach," courts will not
grant nominal damages if a plaintiff offers the incorrect jury

instruction."' The Ninth Circuit in Floyd v. Laws"' expressly rejected the
doctrine of invited error regarding nominal damages. In Floyd, the
plaintiff proposed the following jury instruction: "you may return an

award of nominal damages to the plaintiffs."1' The court held that the

'34

Id. at 1152. The court in Cain stated that the jury "should have awarded"

nominal damages since the jury found that the defendant violated the plaintiffs civil
rights, and "it was error for the trial court not to do so when the Farrars so moved in their
motion for a new trial." Id.
136 See id. at 1149.
13 See id. at 1151. As the court stated:
We have awarded nominal damages, not to exceed one dollar, when an
infringement of a fundamental right was shown and we have also held that,
once a jury has found a violation of a plaintiffs civil rights, it "could not ignore
that finding in calculating damages." Because the jury explicitly found that
defendant Hobby had violated Farrar's civil rights, the jury should have
awarded Farrar nominal damages ....
Id.

1

789 F.2d 986 (2d Cir. 1986).

See id. at 989.
'39 See id. at 990.
14o See supra Part III.B.1.
14'

Courts justified this approach based on the doctrine of "invited error." See supra

note 82 and accompanying text.
142 929 F.2d 1390 (9th Cir. 1991) (holding that "the question of invited error is
irrelevant").
'43 Id. at 1401 n.8. The complete jury instruction provided:
If you determine from the evidence that the plaintiffs have established that a
legal right of theirs has been violated by the defendants, but that they have
sustained no actual damage, or that they have not established actual damage,
you may return an award of nominal damages to the plaintiffs.
The award of a nominal sum on account of actual damages would not
preclude your awarding punitive damages in such amount as you deem

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trial court's instruction on nominal damages amounted to "an incorrect
statement of the law and amounted to invited error."1" The court
summarized the correct approach to nominal damages when a
deprivation of constitutional rights exists: "[elven if jury awards zero
actual damages, judgment and $1.00 nominal damage award are
mandatory if plaintiff proves violation of her constitutional right."'
The Floyd court determined that Carey stood for the proposition
that nominal damages are always awarded when the defendant deprives
the plaintiff of a constitutional right:
We hold that neither the judge nor the jury has any discretion in this
matter, assuming that the jury has reasonably rendered its verdict for
the plaintiff. If the jury finds a constitutional violation, an award of
nominal damages is mandatory, not permissive. That a jury might
choose to award zero actual damages is irrelevant to the legal question
of whether, on the basis of the jury's verdict, the plaintiff was entitled
to judgment and nominal damages. Because Floyd secured a favorable
jury verdict on her section 1983 claim against the City of Sherwood,
she was legally entitled to judgment with a mandatory nominal
damages award of $1.00 as a symbolic vindication of her constitutional

right.14

Like the Ninth Circuit, the Second Circuit adopted the permissive
approach to awarding nominal damages regardless of whether the
plaintiff requests them.' 7 In Gibeau v. Nellis,'" the Second Circuit
reversed a district court's refusal to award an automatic entitlement to
nominal damages. The jury in Gibeau found that an officer used

Id.

appropriate, if you find that the award of punitive damages is justified under
these instructions.
I" Id. at 1401. The court, in a footnote, offered the legally correct jury instruction:

"[i]f the jury finds that the defendant violated plaintiff Floyd's constitutional right, it must
at least award the plaintiff $1.00 in nominal damages." Id. at 1401 n.9. The court rejected
the importance of.a jury instruction under these circumstances: "[w]e are concerned not
with the accuracy of the jury instruction on nominal damages, but rather with the trial
court's erroneous decision to enter judgment for both defendants." Id. at 1401.
14I Id.
1I4 Id. at 1402-03 (emphasis added). The Floyd court reversed the lower court's
judgment, entered judgment for the plaintiff for nominal damages and assessed reasonable
attorney's fees. See id. at 1403.
147 See, e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir.
1995) (holding that
a jury instruction that the jury "may" award nominal damages was error because jury
found a violation of plaintiffs Federal Housing Act and First Amendment rights); Cabrera
v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994) (upholding a district court's award of nominal
damages notwithstanding jury's refusal to award nominal damages in a Federal Housing
Act action); see also McKenna v. Peekskill Hous. Auth., 647 F.2d 332, 335-36 (2d Cir. 1981)
(requiring an automatic award of nominal damages for a violation of a First Amendment
claim).
W" 18 F.3d 107 (2d Cir. 1994).

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excessive force in violation of the Eighth Amendment but declined to
award any damages." The verdict instruction did not mention nominal
damages, and the jury never addressed the size of the damage award.'
The plaintiff moved for a judgment notwithstanding the verdict, but the
judge denied the motion."
Although the Second Circuit agreed that no compensatory damages
were available, the court remanded the case for an award of nominal
damages.' The court held that a nominal damage award is mandatory
upon the finding of a constitutional violation.' Further, the court found
irrelevant the plaintiff's failure to mention nominal damages in the
proposed jury instruction.' The court noted that Carey "does not compel
an award of nominal damages where plaintiffs had proved actual injury
and recovered damages," but the award of nominal damages here was
automatic and "compelled by law upon proof of a substantive
constitutional violation, because Gibeau did not prove any actual
injury.""
Similarly, the Second Circuit in Robinson v. Cattaraugus County'
was not faced with the issue of nominal damages, yet it declared the
lower court's instructions regarding nominal damages erroneous.' The
court declared that both the original and supplemental jury instructions
contained error by stating that "an award of nominal damages, even in
149 See id. at 108.
'U See id. at 109.

See id.
'U

See id. at i11.
See id. at 110-11.

"0
See id. The court explained that the plaintiff failed to correctly instruct the jury
but held that the vindication of the constitutional right is mandatory regardless of the
propriety of the jury instruction:
In addition, although the district court instructed the jury that it may award
nominal damages in the event it found a constitutional violation but no injury,
it did not instruct the jury that it was required to do so. Because Gibeau did not
object to either the verdict sheet or the instructions, he may challenge their
propriety only if they were the product of plain error.
Because an award of nominal damages is not discretionary where a
substantive constitutional right has been violated, the district court should
have instructed the jury that it must award nominal damages if it were to find
that Gibeau's Eighth Amendment rights were violated, and it should have
provided a corresponding verdict form.
Id. The approach taken by the court in Gibeau apparently eliminates the "irresponsible
plaintifr approach altogether. As long as the plaintiff can identify a constitutional
violation regardless of injury, the court must award nominal damages.
"
Id. at 111.
147 F.3d 153 (2d Cir. 1998). The plaintiffs in Robinson brought a § 1983 action
under the Fourth Amendment. See id. at 156.

'

See id. at 161.

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1
the amount of one dollar, may be made." The court specifically held
that a jury retains no discretion on whether to award nominal damages
upon a finding of a constitutional violation." The court therefore found it
irrelevant that the plaintiff approved an incorrect jury instruction. This
"
approach is in stark contrast to the "responsible plaintiff" approach.
More recently, the Second Circuit reaffirmed its expansive approach
1
in Amato v. City of Saratoga Springs." In Amato, the district court
found that defendant exerted excessive force during an arrest procedure
but refused to award compensatory damages." The district court then
dismissed from the bench the plaintiffs claims against the city and the
police department because of the "futility of proceeding with only
nominal damages... at stake."' The Second Circuit Court remanded for
consideration of whether the plaintiffs § 1983 claim should proceed for
an award of nominal damages, although no other damages would be
awarded.'"
Under the permissive approach, a court ignores the propriety of the
jury instruction and the requests made by the plaintiff. Instead, a court
following the permissive approach simply inquires as to whether a
constitutional violation occurred. If the defendant violated the plaintiffs
constitutional rights, but the plaintiff is unable to prove actual injury, an
award of nominal damages is automatic. The permissive approach
rejects the invited error doctrine in order to vindicate constitutional
violations.
The three approaches to awarding nominal damages all agree that
nominal damages are available. However, the award of nominal
damages hinges on the propriety of a jury instruction. A jury instruction
for a court under the "responsible plaintiff' approach must include
nominal damages as a mandatory award or risk forfeiting the award. In

Id. at 162. The court found the nominal damage instruction erroneous even
without the plaintiff raising an objection:
There is one part of the supplemental instruction, however, that was erroneous
1'5

though not mentioned in plaintiffs' objection ....

If a jury finds that a

constitutional violation has been proven but that the plaintiff has not shown
injury sufficient to warrant an award of compensatory damages, the plaintiff is

entitled to an award of at least nominal damages as a matter of law .... The
jury should be so instructed, and we have held that it is plain error to instruct
the jury merely that, having found a violation, it "may" award nominal

Id.

damages.

159 See id.
160

See supra Part III.B.1.

162

170 F.3d 311 (2d Cir. 1999).

See id. at 314.
1I Id. at 316-17.
162

"'

See id. at 321.

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the intermediate approach, a jury instruction may fail to request
nominal damages, but as long as the plaintiff makes a request for
nominal damages either before or after trial, the court will award them.
In the permissive approach, a plaintiff may leave out nominal damages
altogether in the jury request, yet the court will imply nominal damages
and require an award of nominal damages upon finding a constitutional
deprivation.
IV. THE IMPACT OF THE DIFFERENT APPROACHES
Once a jury concludes that the defendant violated the plaintiff's
constitutional rights, whether the plaintiff receives nominal damages
depends upon a proper jury instruction and the particular approach
taken by the court, as seen above. A decision by the court to either deny
or require nominal damages may have a significant effect on the outcome
of the plaintiffs claim.
A Nominal DamagesProvidePrevailingParty Status
One of the most important roles of a nominal damage award is that
the court will declare the plaintiff a "prevailing party."
This
consideration is necessary for two reasons. First, as a prevailing party,
the plaintiff receives vindication for a violation of constitutional rights.
Second, prevailing party status allows the plaintiff to cross the
"statutory threshold"" before receiving consideration for attorney's fees.
The Supreme Court recently determined in Farrar v. Hobby" that a
plaintiff who receives only nominal damages is considered a prevailing
party.'"
In Hobby, the Supreme Court granted certiorari on the issue of
whether a plaintiff who receives nominal damages under § 1983 is a
"prevailing party' eligible to receive attorney's fees."'" The plaintiffs
originally brought the case in the Southern District of Texas."' The jury
in the original action found that the defendants violated plaintiffs
constitutional rights but awarded zero damages, and the court dismissed

I

See Farrar v. Hobby, 506 U.S. 103 (1992) (a plaintiff who received only nominal

damages is considered a prevailing party); see also Hewitt v. Helms, 482 U.S. 755 (1987)
(plaintiff is prevailing party when he receives nominal damages).
1N Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
107

506 U.S. 103 (1992).

100

See id. at 112.
Id. at 105.

170

See id. at 106.

10

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the action.' 1 The Fifth Circuit, implementing the permissive approach
discussed above, remanded the case for an entry of nominal damages.
Once the plaintiffs received nominal damages, they sought
attorney's fees under 42 U.S.C. § 1988 ("§ 1988").'" The district court
entered a judgment awarding $280,000 in fees, $27,932 in expenses, and
1
the fee
$9,730 in prejudgment interest. " The Fifth Circuit reversed
1'
parties.
prevailing
not
were
plaintiffs
the
that
held
and
award
The Supreme Court reversed and held that nominal damages confer
prevailing party status because "[w]hen a court awards nominal
damages, it neither enters judgment for defendant on the merits nor
declares the defendant's legal immunity to suit.""' The Court declared
that nominal damages for a constitutional violation "modifly] the
defendant's behavior for the plaintiffs benefit by forcing the defendant to
pay an amount of money he would otherwise not pay.""
In a Second Circuit decision prior to Hobby, the court in Ruggiero v.
Krzeminski"" identified that the plaintiffs failure to establish actual
injury did not detract from the significance of the constitutional
violation. A constitutional violation must be vindicated by nominal
damages. The Ruggiero court held that the jury's finding of a
constitutional violation and subsequent award of nominal damages
alters the legal relationship between parties so as to confer prevailing
party status."'
171 See id.
Farrar v. Cain, 756 F.2d
172 See id. at 107 (citing to the Court of Appeals decision in
1148 (5th Cir. 1985)); supra note 134 and accompanying text.
173
174

See id. at 107.
See id.

See id. (citing to the Court of Appeals decision in Estate of Farrar v. Cain, 941
Hewitt u.
F.2d 1311 (5th Cir. 1991)). The Court analyzed previous Court decisions in
Helms, 482 U.S. 755 (1987), Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam), and Texas
(1989),
State Teachers Association v. Garland Independent School District, 489 U.S. 782
were
and determined that plaintiffs did not "change the legal relationship" and therefore
not prevailing parties. See Estate of Farrar,941 F.2d at 1315.
175

178

Hobby, 506 U.S. at 112.

Id. at 113. The Court also dismissed the argument that nominal damages are too
turn
trivial to confer prevailing party status, noting that "prevailing party inquiry does not
113-14.
at
Id.
on the magnitude of the relief obtained."
1'7 928 F.2d 558 (2d Cir. 1991).
1" See id. at 564. The court in Ruggiero provided reasoning similar to the Supreme
177

Court's holding in Hobby:
The jury's determination that appellant's fourth and fourteenth amendment
rights were violated by the search conducted by the Officers assuredly is
significant. Simply because the jury found that the Ruggieros did not establish
their claims in all respects does nothing to lessen the significance, or
importance, of the Ruggieros' success. Although no compensatory damages
were awarded, the jury's determination "changes the legal relationship"

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The Court's holding in Hobby created interesting implications.
Based on the approach taken by a particular court, an award of nominal
damages produces a direct effect on whether a plaintiff wins or loses. For
instance, courts under the "responsible plaintiff' approach do not award
nominal damages when a plaintiff fails to request specifically for them.
The absence of nominal damages eliminates prevailing party status for
the plaintiff whose constitutional rights have been violated. On the other
hand, courts that always award nominal damages upon a finding of a
constitutional violation will always confer prevailing party status to the
plaintiff.
B. Nominal Damages May Justify Attorney's Fees
As seen above, once a plaintiff wins nominal damages for a
constitutional deprivation, the plaintiff is considered a prevailing party
under Hobby. One of the significant effects of a successful claim under
§ 1983 is that a prevailing party may recover attorney's fees." However,
the Court in Hensley v. Eckerhart8 ' stated that a finding that a plaintiff
is a "prevailing party" simply brings the plaintiff "across the statutory
threshold."" Once the statutory threshold is crossed, a court must then
consider the reasonableness of a fee award. 1
While the Supreme Court provided an automatic entitlement to
nominal damages in Carey for violations of § 1983, the Supreme Court
has not upheld a corresponding right to an automatic award of attorney's
fees. '" In Hobby, the Court held that "a plaintiff who wins nominal
damages is a prevailing party under § 1988. " " However, the same Court
between the Ruggieros and the Officers in that a violation of rights had been

found.
Id.

The American rule, established in Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306
(1796), held that attorney's fees are not recoverable as an element of damages. The
Supreme Court in Alyeska Pipeline Service Co. v. Wilderness, 421 U.S. 240 (1975), ruled
that fee-shifting must be authorized by Congress. As a result, Congress responded by
passing the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, which became
Title 42 U.S.C. § 1988. See supra note 3 and accompanying text. "The purpose of § 1988 is
to ensure 'effective access to the judicial process' for persons with civil rights grievances."
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
181 461 U.S. 424 (1983).
180

182

Id. at 433.

183

The Court in Hobby held that, in many cases, an award of only nominal damages

justifies a reasonable attorney fee of zero. The Supreme Court held that, since the plaintiff
sought $17 million in compensatory damages and recovered only $1 in nominal damages,
the appropriate fee was no fee at all. See 506 U.S. at 115; see also City of Riverside v.
Rivera, 477 U.S. 561 (1986) (introducing a twelve-factor test to determine the
reasonableness of an attorney's fee award).
184 Hobby, 506 U.S. at 114.
18I

Id.

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does not affect the
also held that while a "nominal damages award.
prevailing party inquiry, it does bear on the propriety of fees awarded
under § 1988.'18 The Supreme Court concluded:
When a plaintiff recovers only nominal damages because of his failure
to prove an essential element of his claim for monetary relief... the
only reasonable fee is usually no fee at all .... [Flee awards under

§ 1988 were never intended to 'produce windfalls to attorneys,'
between
relationship
[because] attorney's fees [should consider] theaward.
187
the extent of success and the amount of the fee
While the Court in Hobby refused to award attorney's fees in that
instance, several courts have expanded Hobby to hold that reasonable
attorney's fees are available upon a finding of nominal damages for
violation of constitutional rights in § 1983 litigation. In granting
attorney's fees, courts often utilize Justice O'Connor's three-part test.'
Justice O'Connor's concurring opinion in Hobby suggested a three-part
test to determine whether the prevailing party "achieved enough success
to be entitled to an award of attorney's fees." The test examines 1) the
difference between the judgment recovered and the judgment sought; 2)
the significance of the legal issue on which the plaintiff prevailed; and 3)
"
the public purpose served by the litigation.
The First Circuit in Schneider v. Colegio de Abogados de Puerto
Rico... recently determined that attorney's fees equaling nearly $250,000
were proper although plaintiffs received only one dollar each in nominal
damages. " This holding is significant because the court allowed a very
permissive approach to an award of attorney's fees. In Schneider, the
court carefully examined whether a prevailing party plaintiff who
receives only nominal damages should receive attorney's fees." Finding
that the award of nominal damages provided a vindication of
constitutional rights, the court held the vindication to be sufficient to
merit an award of attorney's fees of $230,975.92.'"
lea Id. The Court went on to state that "in some circumstances, even a plaintiff who
formally 'prevails' under § 1988 should receive no attorney's fees at all." Id. at 115.
Id. at 115-16 (citations omitted).
'
188

See id. at 116-22 (O'Connor, J., concurring).

Id. at 121-22 (O'Connor, J., concurring). Several courts follow O'Connor's test in
determining attorney's fees. See, e.g., Brandau v. Kansas, 168 F.3d 1179 (10th Cir. 1999)
(applying O'Connor's test in allowing $41,598.13 in attorney's fees); Briggs v. Marshall, 93
F.3d 355, 360-61 (7th Cir. 1996) (applying the three-part test in denying attorney's fees to
prevailing party).
19 See Hobby, 506 U.S. at 122 (O'Connor, J., concurring).
291
187 F.3d 30 (1st Cir. 1999) (per curiam).
1

19
l93

See id. at 32.
See id. at 41-44.

See id. at 42. The court determined that plaintiffs were prevailing parties and
qualified for attorney's fees, although the fees were reduced from $244,848.12 to
19

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In Floyd v. Laws,' the automatic entitlement to nominal damages
transformed a verdict for the defendants to a verdict for the plaintiff in
the amount of nominal damages and reasonable attorney's fees.' Recall
in Floyd, the court held that a nominal damage award is "mandatory"
upon the jury's finding of a constitutional violation.'" This mandatory
award allowed the plaintiff the "calculation of reasonable attorney's fees
in accordance with the procedures set forth in Hensley v. Eckerhart."'
In Brandau v. Kansas,'" the Tenth Circuit limited Hobby to
situations where the plaintiff wins only a technical victory that serves no
important public purpose. Applying Justice O'Connor's three-part test
from Hobby, the court in Brandau allowed attorney's fees.' In Brandau,
the court granted attorney's fees of more than $41,000 to a plaintiff who
recovered only one dollar in nominal damages." The court reasoned that
since the victory put the plaintiff's employer on notice that it should
reform its policies, thereby vindicating the rights of all state employees,
this victory served an important public purpose.'
Following the "responsible plaintiff' approach, in Warren v.
Fanning,' the court refused to grant an award of nominal damages
because the plaintiff failed to specifically request them in the jury
instruction.' The concurring opinion' in Warren identified the impact
on a plaintiff when the court fails to grant an automatic entitlement to
nominal damages:

$230,975.92. Id at 33. In a concurring opinion, Judge Lipez noted that the plaintiffs were
never interested in monetary damages but were interested in injunctive relief. Id. at 42.
This relief, along with the nominal damages, permitted plaintiffs to be considered as
prevailing parties and receive attorney's fees. Id. at 42-43.
195 929 F.2d 1390 (9th Cir. 1991).
'96

See id. at 1400-03; supra note 142 and accompanying text.

"97

Id. at 1401.

" Id. at 1403. Floyd was decided before Hobby and did not have the benefit of
Justice O'Connor's three-part test.
1" 168 F.3d 1179 (10th Cir. 1999).
"0
201

See id. at 1181-83.

See id. at 1183.
See id.

950 F.2d 1370 (8th Cir. 1991).
See supra note 94 and accompanying text.
2W See Warren, 950 F.2d at 1375-76 (Heaney, J., concurring). Judge
Heaney noted
that the jury should have been instructed to award Warren nominal damages if it was
unable to place a monetary value on the harm Warren suffered. See id. at 1376. However,
Judge Heaney refused to disagree with the result and found that Warren's inability to
properly instruct the jury caused an ineligibility for nominal damages and, therefore,
possible attorney's fees. See id. While noting the importance of nominal damages, Judge
Heaney failed to award them: "I reluctantly concur in affirming the district court's refusal
to amend the judgment and to award attorney's fees." Id.

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Had a properly instructed jury awarded nominal damages against Dr.
Taca, Warren certainly would have crossed the statutory threshold of
eligibility for attorney's fees and costs under 42 U.S.C. § 1988 ....
Prevailing party status for purposes of section 1988 requires only that
the plaintiff succeed on any significant issue in litigation which
action.2
achieves some of the benefit sought in bringing the
The Eighth Circuit's refusal to grant an automatic award of nominal
damages upon a finding of constitutional deprivation is especially
curious in light of its holding in Butler v. Dowd.' The court in Butler
upheld a jury's award of nominal damages and found this award
sufficient to justify attorney's fees of $94,680. However, precedent in
that circuit indicates that if the jury would have refused nominal
damages, the court would not imply nominal damages, and the plaintiff
in Butler would not have recovered anything.'
The Supreme Court in Hobby probably envisioned only certain rare
circumstances when attorney's fees are appropriate upon a nominal
damage award.21° The Court expressed concern that allowing nominal
damages to constitute prevailing party status provides unreasonable
"windfalls to attorneys. " ' Such a windfall of nearly a quarter of a million
dollars occurred in Campos-Orrego v. Rivera." While nominal damages
serve to vindicate constitutional rights, attorney's fees do not. The
benefit of an award of attorney's fees is the message to a plaintiff that
constitutional rights should be protected and plaintiffs should be
21
encouraged to redress constitutional wrongs. However, attorney's fees
do not serve as the means to vindicate fundamental rights; they only
serve as an incentive to bring constitutional actions.
As a vehicle that vindicates constitutional violations, nominal
damages provide the vindication automatically when a court adopts the
permissive approach. Once nominal damages are awarded, reasonable
attorney's fees are available but should not be correspondingly
2W

d.

979 F.2d 661 (8th Cir. 1992).
2o8 See id. at 676.
See supra Part III.B.1.
210 See supra note 186 and accompanying text. The Court held that when a plaintiff
"recovers only nominal damages... the only reasonable fee is usually no fee at all." Hobby,
506 U.S. at 115.
211 See
id.
2 175 F.3d 89 (1st Cir. 1999); see Schneider v. Colegio de Abogados de Puerto Rico,
187 F.3d 30, 42 (1st Cir. 1990) (per curiam); supra text accompanying note 191.
213 See 42 U.S.C. § 1988; see also S. REP. No. 94-1011, at 2 (1976). Congress enacted
2M

§ 1988 to encourage plaintiffs who suffer civil rights violations to seek relief. See id.
Congress noted that "fee awards have proved an essential remedy if private citizens are to
have a meaningful opportunity to vindicate the important congressional policies which
these laws contain.* Id.

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20001

automatic. The varied results regarding attorney's fees again illustrate
the importance of a one dollar nominal damage award. For one court, the
nominal damage award made the difference between zero recovery and a
quarter of a million dollars.21'

C. Nominal Damages May Rescue a Case from Dismissaland Mootness
As one commentator stated, "Although the issue is not free from

doubt, the better view appears to be that a properly pleaded claim for
nominal damages will defeat a claim of mootness.' " As demonstrated, if
a court follows the approach that nominal damages must be awarded to
a plaintiff who suffers a constitutional violation, the case will usually
defeat a claim of mootness, regardless of whether the claim was properly
pleaded.
In Yniguez v. Arizona, " a predecessor of Arizonans for Official
English v. Arizona, " the Ninth Circuit held that when a jury finds that a

plaintiffs constitutional rights were violated and awards nominal
damages, the claim does not become moot. The court held that a
plaintiffs "pursuit of nominal damages provides a sufficiently concrete
interest in the outcome of the litigation to confer standing to pursue

declaratory relief and thereby prevents mootness."'
A mandatory nominal damage award provided the difference
between a dismissal and a remand in Amato v. City of Saratoga
Springs. " The defendants in Amato argued that a suit against the city
and Police Department should not go forward where the plaintiff stood to
obtain only nominal damages.' However, the court held that this is
"contrary to the rationale behind permitting suits based on the
deprivation of constitutional rights to proceed despite a lack of proof as
to actual injury." The city and police department argued that the
22,

See Schneider, 187 F.3d at 42; supra text accompanying note 191.

21

IC SCHWARTZ & KIRucuN, supranote 29, § 15.3, at 185.

975 F.2d 646 (9th Cir 1992), overruled on other grounds by Arizonans for Official
English v. Arizona, 520 U.S. 43 (1997); see supra text accompanying note 130.
217 520 U.S. 43 (1997). Recall that in Arizonans for Official English, the Supreme
Court dismissed the case against the plaintiff because a § 1983 action does not lie against a
state, not because the existence of only nominal damages deems the case moot. See id.;
supra text accompanying note 130. In fact, the Court did not overrule this holding at all,
although a few subsequent courts have interpreted Arizonans for Official English to stand
for the proposition that nominal damages do not save a case from mootness. See Thomas v.
Massachusetts Dept. of Educ., 130 F.3d 477, 480 (1st Cir. 1997) (declaring that plaintiffs
claim was "too little, too late").
218 Yniguez, 975 F.2d at 647.
2W 170 F.3d 311 (2d Cir. 1999).
216

22

See id. at 316-17.

22

Id. at 317. The Court further went on to describe the significance of a nominal

damage award:

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plaintiff may be improperly motivated by a desire for an attorney's fee

award.'

The court found this argument unavailing and noted that a

nominal damage award can be grounds for a reduced or zero attorney's
fee award, but "the impact of an award of nominal damages on Amato's

right to legal fees is a matter for the district court in the first instance.=
By holding that a plaintiff should not lose his right to proceed
against a defendant because only nominal damages are at stake, the
court in Amato expressly rejected' the Ninth Circuit's approach in
George v. City of Long Beach.' The court in Amato clearly points out
that a trial may continue even if only nominal damages are available to
a plaintiff.'
In Committee for the First Amendment v. Campbell," the Tenth
Circuit did not dismiss the claim for nominal damages as moot even
when the claim for injunctive relief was dismissed.' The court adopted
the permissive approach to nominal damages and held that this sole
basis of relief conferred standing:
[We must reverse the summary judgment insofar as the Plaintiffs
complaint for nominal damages. We reverse due to legal error....
Therefore, the district court erred in dismissing the nominal damages
claim .... If proven, a violation of First Amendment rights concerning
freedom of expression entitles a plaintiff to at least nominal
damages.22
As the Supreme Court has stated, "by making the deprivation of such
['absolute'] rights actionable for nominal damages without proof of actual
injury, the law recognizes the importance to organized society that those rights
be scrupulously observed." Thus, while the monetary value of a nominal
damage must, by definition, be negligible, its value can be of great significance
to the litigant and to society.
Id. (citations omitted) (alterations in original).
2
See id. at 317 n.5.
= Id.
See id. at 319-20. The court stated:
[W]e agree in part and disagree in part with the decision of the Ninth Circuit in
George v. City of Long Beach .... Precisely because nominal damages afford a
litigant vindication of the deprivation of his constitutional rights, the decision
to dismiss a plaintiffs claim against a municipality because only nominal
damages are at stake is error.
Id.
2
973 F.2d 706 (9th Cir. 1992) (finding that the district
courts dismissal of a § 1983
Monell claim was harmless error). The court in George seems to endorse an automatic
entitlement approach to nominal damages by vacating the district courtes judgment
regarding nominal damages and entering a judgment of $1 for the plaintiff. However, the
court then dismissed the Monell claim since only nominal damages were at stake.
M 170 F.3d 311, 319-20 (2d Cir. 1999).
962 F.2d 1517 (10th Cir. 1992).
M7
2n See id.
225 Id. at 1526-27.
22

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2000]

The court remanded the case for further consideration based on the
claim for nominal damages.'
Nominal damages serve a valuable role by keeping a case from
being declared moot. Courts recognize that the existence of only nominal
damages for constitutional deprivations represents something greater
than just monetary relief. As we have seen, the award of nominal
damages serves to vindicate fundamental constitutional rights. This
vindication in the form of nominal damages should not create mootness
solely because the award was not sought in the jury instruction. As the
court in Amato stated, the value of a nominal damage award is not
negligible, though the amount may be. 1
V. CONCLUSION

Litigation under § 1983 allows a plaintiff to bring a cause of action
to vindicate fundamental constitutional rights. Damages for § 1983
violations include nominal, compensatory, and punitive damages;
damages awards for § 1983 are governed by the common-law model of
compensation. Nominal damages are often regarded as a trivial award,
yet they serve a vital function in § 1983 litigation by vindicating
constitutional violations. While courts disagree as to the manner and
effect of nominal damages, the holding of Carey v. Piphus allows an
award of nominal damages automatically upon finding of a
constitutional violation. Nominal damages should not be awarded
automatically for violations of federal rights but only for violations of
fundamental constitutional rights. In order to preserve fundamental
constitutional rights, this award should be provided to each plaintiff who
suffers from constitutional violations, regardless of whether the plaintiff
specifically requests such an award. By providing nominal damages
automatically upon finding of a constitutional violation, a plaintiff
receives prevailing party status and becomes eligible for attorney's fees.
This opportunity is lost when a court refuses to imply a nominal damage
award for constitutional violations.
Mark T. Morrell

no See id.
'

See Amato, 170 F.3d at 319-20.

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