Publication Date



The Eleventh Circuit's August 2017 opinion in
Flanigan's Enterprises v. City of Sandy Springs
deepened a circuit split regarding the role of
nominal damages in the justiciabilityanalysis. The
critical question is whether, in cases involving
constitutional violations, a claim for nominal
damages alone suffices to confer standing or to
defeat mootness when other forms of relief are
unavailable or moot. The Second, Fifth, and Ninth
Circuits have all held that nominal damages alone
are enough, but not without contention from
dissenting judges. The First, Third, Fourth,
Seventh, Eighth, and D.C. Circuitshave considered
the question-but have not conclusively decided its
answer. And the Sixth Circuit is unique in holding
that nominal damages may suffice to continue an
otherwise moot case but are not enough on their
own to establish standing. Although advocates
hoped the Supreme Court would use Flanigan's to
resolve the division among the courts of appeals, the
Supreme Court's March 2018 denial of certiorari
left the split among the circuits in place. Thus, the
federal courts' power to adjudicate cases of this
kind will depend on the jurisdiction in which they
sit instead of a uniform rule of justiciability. This
note seeks to explain why, for an alleged violation

of a constitutional right, a proper request for
nominal damages alone can confer standing and
prevent a finding of mootness. Nominal damages
provide the requisite personal interest at the onset
and throughout the course of litigation for three
reasons. First, nominal damages provide a legal
remedy by enabling suit; second, $1 is itself a
personal stake; and third, an award of nominal
damages changes the legal relationshipbetween the