Lead Opinion
OPINION
Marie Schaub, her daughter Doe 1, and the Freedom From Religion Foundation (“FFRF”) (collectively, “Appellants”) brought suit under 42 U.S.C. § 1983, alleging that the New Kensington-Arnold School District (“the District”) violates the Establishment Clause by maintaining a monument of the Ten Commandments at its public high school. The District Court granted the District’s summary judgment motion, concluding that the Appellants
I
In 1956, the New Kensington Fraternal Order of the Eagles, a non-profit charitable organization, donated a six-foot granite monument inscribed with the Ten Commandments to be placed on the grounds of Valley High School in New Kensington. The donation was part of a nationwide program spearheaded by the Eagles’ Youth Guidance Committee through which local chapters of the organization donated over 140 such monuments. The Committee believed that troubled young people would benefit from exposure to the Ten Commandments as a code of conduct. In addition to the text of the Ten Commandments, the tablet is adorned with images of an eagle, an American flag, the Star of David, the Chi-Rho symbol, a Masonic eye, and tablets with Hebrew and Phoenician lettering.
The monument is located near the entrance to the high school’s gymnasium, which is accessible from the student parking area via two railed footpaths. Anyone entering the school via these paths passes within 15 feet of the monument. The parties disagree about how closely one must approach the monument in order to read its text.
On March 20, 2012, FFRF, an organization dedicated to promoting separation of church and state, wrote a letter to the Superintendent of the District requesting that the monument be removed. The school board rejected the request. Local media reported on the letter and the school board’s decision. Schaub saw one such story on television, and contacted FFRF through its website. She states that she has “been a member of FFRF since August 2012, when [she] contacted FFRF regarding this lawsuit.” App. 734.
Schaub and Doe 1 live within the New Kensington-Arnold School District. Schaub had visited the high school and come into contact with the monument in the past while taking Doe 1 to a karate event, picking Doe 1 up from a program at the high school swimming pool, and dropping off her sister, whose child attends the high school, to attend events at the school once or twice. In addition, Doe 1 was scheduled to attend the high school beginning in August 2014, and Schaub planned to drive her to school.
Schaub did not testify that she ever read the full text of the monument, but said that she walked by it and views it as “commanding” students and visitors at the high school to worship “thy God,” brands her as “an outsider because [she] do[es] not follow the particular religion or god that the monument endorses,” App. 679, and makes her “stomach turn[ ],” App. 824. She wishes to bring up her daughter without religion and “do[es] not want Doe 1 to be influenced by the Ten Commandments monument in front of Valley High School.” App. 680.
Doe 1, who identifies as non-religious, recalls walking past the monument to attend the karate event when she was six or seven years old, and to use the high school swimming pool between third and fifth grade, but “never read it,” App. 684, “was young so [she] didn’t really know what it meant,” App. ■ 687, and “didn’t really pay attention to it.” App. 684. She subsequently “looked at it because [her] mom was [ ] worried about it” and “wanted to see what it was about.” App. 684. Specifically, Doe 1 testified that she reviewed a picture of the monument, and has seen it from the road while being driven to a friend’s house. When asked at her deposition about her reaction to the monument, Doe 1 testified that she “didn’t really feel anything when [she] was young,” arid right now, does not “feel like [she] ha[s] to believe in god, but ... [that] since it’s there in front of a school that they kind of want you to be that way.”
On September 14, 2012, Appellants filed a complaint in the United States Dis-trict Court for the Western District of Pennsylvania alleging that the presence of the monument on public school property violates the Establishment Clause and seeking declaratory and injunctive relief, nominal damages, and attorneys’ fees.
In August 2014, Schaub sent Doe 1 to a different high school, which required her to leave her middle school classmates and attend a school farther from Schaub’s home. Schaub avows that were the monument removed from Valley High School, she would permit Doe 1 to enroll there.
After discovery, the parties filed cross-motions for summary judgment. The District Court held that Appellants lack standing and, in any event, their claim for injunctive relief was moot. The District
As to FFRF, the District Court noted that its associational standing was contingent on Schaub’s standing and, because she lacked standing, FFRF also lacked standing. As to Doe 1, the District Court found her claim was more “tenuous” than her mother’s because she did not seem to recollect seeing the monument in person or feeling affronted by it. App. 16-17.
The District Court also found that Doe l’s attendance at a different high school was irrelevant to standing because standing must exist at the time a complaint was filed, and her attendance at a different school occurred at a later time. The District Court viewed her enrollment at a different school, however, as .mooting the request for injunctive relief because the decision to enroll Doe 1 at another school removed any threat of future injury from alleged exposure to the monument. Schaub, Doe 1, and FFRF appeal.
II
A
Standing and mootness are two distinct justiciability doctrines that limit our
To establish constitutional standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The plaintiff has the burden of demonstrating that these requirements are met at the “commencement of the litigation,” and must do so “separately for each form of relief sought.” Id. at 170, 184-85, 120 S.Ct. 693. In assessing standing, our primary project is to separate those with a true stake in the controversy from those asserting “the generalized interest of all citizens in constitutional governance.” Valley Forge Christian Coll. v. Ams. United For Separation of Church & State, Inc., 454 U.S. 464, 483, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)).
Mootness “ensures that the litigant’s interest in the outcome continues to exist throughout the life of the lawsuit.” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). The party asserting that a claim is moot must show that it is “absolutely clear that the allegedly wrongful behavior [is] not reasonably [ ] expected to recur.” Laidlaw, 528 U.S. at 189, 120 S.Ct. 693. “[A] court will not dismiss a case as moot,” even if the nature of the injury changes during the lawsuit, if “secondary or ‘collateral’ injuries survive after resolution of the primary injury.” Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 384 (3d Cir. 2001); Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001) (“[T]he question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.”).
We first address what a plaintiff must show to have standing to challenge a religious display under the Establishment Clause and then examine whether standing exists to pursue the remedies sought and whether the Appellants’ conduct moots the claim for relief.
B
Nearly every court of appeals has held that standing in this context “requires only direct and unwelcome personal contact with the alleged establishment of religion.”
The District Court appeared to read the direct, unwelcome contact standard to include a frequency requirement. This is incorrect. First, the Supreme Court has made clear that “an identifiable trifle is enough for standing to fight out a question of principle.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); see also Saladin, 812 F.2d at 691 (citing SCRAP and concluding that “[t]here is no minimum quantitative limit required to show injury”); Am. Civil Liberties Union of Ga. v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th Cir. 1983) (concluding that “the Supreme Court has made it clear that no minimum quantitative limit is required to establish injury under either a constitutional or prudential analysis”). Requiring frequent contact with the display to obtain standing ig inconsistent with the concept that a single “trifle” is sufficient to establish standing.
Second, while many courts have noted the frequency of a plaintiffs actual or expected contact with a religious display, the same courts do not include frequency as a necessary element when stating the applicable rule. See, e.g., Jewish People for the Betterment of Westhampton Beach v. Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d Cir. 2015) (holding that residents had standing to challenge the erection of a Jewish ritual enclosure of a geographic area which they would “confront[ ] ... on a daily basis,” but stating that standing is found in the religious display context when a plaintiff alleges that he “was made uncomfortable by direct contact with religious displays” (quoting Cooper, 577 F.3d at 491)); Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 429 (6th Cir. 2011) (noting that plaintiff had “frequently and routinely” come into contact with the offensive display, but saying that “ ‘direct and unwelcome’ contact with the contested object demonstrates psychological injury in fact sufficient to confer standing”); Vasquez, 487 F.3d at 1252-53 (noting that plaintiffs contact with display “was frequent and regular, not sporadic and remote,” but describing majority test among the courts of appeals as “unwelcome direct contact with” a religious dis
In other cases, courts do not describe contact with a display as particularly frequent, or omit frequency from the discussion completely. See, e.g., Red River, 679 F.3d at 1023-24 (not discussing frequency •with which plaintiffs came into contact with display); Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1113 (10th Cir.2010) (same); Books v. Elkhart Cty., 401 F.3d 857, 862 (7th Cir.2005) (plaintiff would need to pass display “at least once a year in order to pick up a form” as well as if he visited two County departments); Doe v. Cty. of Montgomery, 41 F.3d 1156, 1158 (7th Cir.1994) (plaintiff came into contact with religious display on a few occasions when registering to vote, obtaining absentee ballots, and performing jury duty). While frequent contact with a religious display may strengthen the case for standing, it is not required to establish standing. But see Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 793 (10th Cir.2009) (reciting test that “[allegations of personal contact with a state-sponsored image suffice to demonstrate ... direct injury” but proceeding to compare the frequency of contact with that in other cases (internal quotation marks omitted)).
While frequent contact with a display is not a requirement for standing, a passerby who is not a member of the community, and who faces no risk of future contact,
Moreover, an individual objecting to a religious display on government property or religious activity that is government-sponsored need not change her behavior to avoid contact with the display to establish standing. Suhre, 131 F.3d at 1088 (“In evaluating standing, the Supreme
We agree with the view that one should not be required to avoid an unwelcome object or activity to have standing to bring an Establishment Clause claim.
Thus, a community member like Schaub may establish standing by showing direct, unwelcome contact with the allegedly offending object or event, regardless of whether such contact is infrequent or she does not alter her behavior to avoid it.
A plaintiff seeking relief must show he or she has standing for each remedy sought. Laidlaw, 528 U.S. at 184, 120 S.Ct. 693. Thus, we first examine Schaub and Doe l’s standing to secure nominal damages for injury from past direct, unwelcome contact with the monument. Schaub has cited three specific occasions on which she viewed, and hence had direct contact with, the monument. Whether Schaub read the monument each time she saw it, or ever fully read its text, is immaterial since it is the monument’s overall representation of the Ten Commandments to which Schaub objects, as she sees it as conveying a religious message. See Saladin, 812 F.2d at 691-92 (holding that rendering the term “Christianity” as part of a city seal, to be illegible did not prevent residents who knew what it signified from being reminded of it “every time they [were] confronted with” it). Schaub’s allegations that the monument “signals that [she is] an outsider because [she] do[es] not follow the particular religion or god that the monument endorses,” App. 679, and that her “stomach turned” when she encountered it,
Doe 1, on the other hand, explicitly stated that she did not understand the monument when she encountered it prior to the lawsuit because she was too young, “never read it or paid attention to it,” and never told anyone that it bothered her. App. 684. In fact, it is not clear from the record that Doe 1 read or understood the monument until after the suit was filed. See Wall, 246 F.3d at 266 (concluding that plaintiffs lacked standing because they, failed to describe their reaction to a religious display and because it was “unclear whether” one plaintiff observed it “in order to describe [it] for this litigation” or while going about ordinary business). As to Doe l’s comment that she later viewed the monument as conveying that the school wanted students to subscribe to religious beliefs, the record does not show that she had that view at the time the complaint was filed. Thus, we cannot say the District Court erred in concluding that Doe 1 lacks standing.
D
We next examine whether Schaub and Doe 1 have standing to pursue
Schaub’s decision not to send Doe 1 to the high school does not deprive Schaub of standing to seek injunctive relief. First, injunctive relief still has the capacity to redress her grievances because Doe 1 could return to the high school if the monument were removed.
The decision to remove Doe 1 from the high school does not render Schaub’s claim for injunctive relief moot. As previously stated, Schaub was not required to continue suffering the exact injury described in the complaint to maintain her entitlement to seek relief. See Chong, 264 F.3d at 384; Cantrell, 241 F.3d at 678. “While there may be cases in which an injunction would be ineffective because the injurious conduct has ceased, here Schaub represents that she intends to enroll Doe 1 at the high school if the monument is removed and that Doe 1 wishes to take courses at the adjoining career center, demonstrating that an injunction, if granted, could provide relief. Thus, the request for an injunction is not moot.
E
Finally, we address FFRF’s standing. FFRF’s standing is predicated wholly on the standing of its alleged member, Schaub. Because we conclude Schaub has standing, we will remand to the District Court to determine whether she was a member of FFRF at the time the complaint was filed and if FFRF thereby has organizational standing to pursue either injunctive relief or nominal damages.
Ill
For the foregoing reasons, we will affirm the District Court’s grant of summary
. Schaub was questioned about how she became a member of FFRF during her April 2014 deposition, and was asked "how long are you a member for?” to which she answered, "[t]his year.” App. 834. The questioner then said “[i]s that all?” and Schaub responded "[y]es, I believe my membership expires in 2015.” App. 834. The District used this exchange to conclude that Schaub was not a member at the time the lawsuit was filed in 2012. The only evidence to support the claim that Schaub was a member when the suit was filed is her December 2014 declaration, which stated that she has "been a member of FFRF since August 2012.” App. 734.
. While the complaint alleges Doe 1 has "felt anxiety over the proposition that the religious monument will” remain at the school, Compl. at 6-7, ECF No. 1, the record shows that Doe 1 did not state any negative feelings about the monument.
. Nominal damages are a type of damages awarded for the violation of a right "without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978).
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review over legal conclusions concerning standing and mootness. Perelman v. Perelman, 793 F.3d 368, 373 (3d Cir. 2015) (standing); Ruocchio v. United Transp. Union, Local 60, 181 F.3d 376, 382 (3d Cir. 1999) (mootness).
The District Court, rather than a jury, resolves factual issues relevant to determining whether a party has standing. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (relying on the district court’s factual findings from its evidentiary hearing concerning standing issues); N.J. Coal. of Rooming &
Boarding House Owners v. Mayor & Council of Asbury Park, 152 F.3d 217, 220 (3d Cir. 1998) (remanding to the district court for "further factual development and a new determination by the district court regarding plaintiffs' standing” because of "insufficient factual findings for us to review its standing determination.”). We review those findings for clear error. Perelman, 793 F.3d at 373.
A plaintiff bears the burden of showing standing in the "manner and degree of evidence required at the [particular] stage[] of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, “[a]t the summary judgment stage, the plaintiff must produce evidence [of standing] in the form of Fed. R.
. Our Court has issued rulings in cases concerning religious displays that are consistent with the view that direct, unwelcome contact suffices to confer standing. See Modrovich v. Allegheny Cty., 385 F.3d 397, 399 (3d Cir. 2004) (not mentioning issue of standing, but noting in passing that plaintiffs had alleged ‘‘regular, direct and unwelcome” contact with religious display); Freethought Soc'y of Greater Phila. v. Chester Cty., 334 F.3d 247, 255 n.3 (3d Cir. 2003) (dismissing in a footnote the argument that plaintiffs who viewed reli
. Imposing a frequency requirement would also be tantamount to endorsing the notion that a plaintiff must cause himself increased injury to bring a claim.
. The risk of future contact is only relevant to the question of whether there is standing to seek injunctive and declaratory relief, and it does not factor into our analysis of whether there is standing to pursue nominal damages. See City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
. As the School District points out, the Court of Appeals for the Seventh Circuit suggested in Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463 (7th Cir. 1988) and Am. Civil Liberties Union of Ill. v. City of St. Charles, 794 F.2d 265, 268-69 (7th Cir. 1986) that altered conduct was required to bring an establishment clause claim. More recent Seventh Circuit cases, however, have retreated from this view, see Books, 401 F.3d at 857, 861 (noting that other Seventh Circuit cases have found standing without altered conduct).
. Similarly, while many cases involve plaintiffs availing themselves of needed government services or fulfilling civic obligations, see, e.g., Cooper, 577 F.3d at 490; Books, 401 F.3d at 861; Doe, 41 F.3d at 1161, there is no requirement that a plaintiff do so, or that her contact with the display be unavoidable. Furthermore, attending events at a public school, whether or not one is a student, is plainly an interest that can give rise to the requisite injury for standing purposes. See Washegesic, 33 F.3d at 682 (religious painting hung at a public school did "not affect students only” but rather, "a member of the public would have standing if she attended events in the gymnasium”); Jager v. Douglas Cty. Sch. Dist., 862 F.2d 824, 826 n.1 (11th Cir. 1989) (former student and his father had standing to challenge prayer at football games "as people who attend the football games”).
. See, e.g., Moss, 683 F.3d at 606-07 (discussing plaintiffs’ change of conduct as one of several reasons they demonstrated sufficient injury); Cooper, 577 F.3d at 490 (noting that that "the discomfort [the plaintiff] suffered when he viewed the religious displays ... was so great that he was inclined to drive to another postal unit” as one reason that his injury was of sufficient seriousness).
. A parent sending his or her child to a public school in the community also has standing to complain about present and future religious displays or activities at the child's school. Lee v. Weisman, 505 U.S. 577, 584, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (the father of a high school freshman had Article III standing to challenge the inclusion
. "[WJhile those injuries are largely emotional, we must presume they are sincerely felt.” Red River, 679 F.3d at 1024 (noting that there is no basis under Article Ill’s case-or-controversy requirement for treating intangible emotional harms differently from more readily quantifiable harms).
. Schaub also alleges that Doe 1 has expressed an interest in attending classes at the Northern Westmoreland Career & Technology Center, which is located on the high school campus, but that Schaub is concerned doing so would bring Doe 1 in contact with the monument.
. Since we have concluded Schaub has standing to seek equitable relief, we need not address the standing of the other plaintiffs to pursue injunctive relief. Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 826 n.1, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (explaining that because one party has standing, it is unnecessary to address whether the other party also has standing to challenge the school's suspicionless drug testing policy).
. The standing inquiry is not an assessment of the merits, see ASARCO Inc. v. Kadish, 490 U.S. 605, 624, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989), and therefore nothing herein constitutes an opinion on the merits.
Concurrence Opinion
concurring dubitante.
I join in the excellent opinion authored by Judge Shwartz. I write separately only because I am doubtful that a claim for nominal damages alone suffices to create standing to seek backward-looking relief. While this issue has little practical importance to this case, it does have broad consequences for our standing and mootness inquiries in other scenarios. Furthermore, this appears to be the first time our Court has ruled on this issue.
Because this is a case about standing, I begin my discussion with the standing doctrine. Then, because the doctrines of standing and mootness are closely related, and because there are many more cases discussing the interplay between nominal damages and mootness than there are between that of nominal damages and standing, I next discuss the mootness doctrine and the persuasiveness of these cases. After revisiting the facts of our case, I consider a few hypothetical scenarios that will be impacted by our standing decision today. Finally, I conclude by emphasizing that nothing in this opinion casts doubt on the availability of nominal damages at the conclusion of a suit. I only write to express skepticism that a claim for nominal damages alone would suffice to create standing or save a case from mootness.
I.
That “a plaintiff must demonstrate standing separately for each form of relief sought” is an unremarkable proposition. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). My uncertainty stems from the third requirement of standing: redressability. As the panel opinion points out, in order to satisfy Article III standing, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 180-81, 120 S.Ct. 693. Outside of quoting this test, the panel opinion discusses only whether there exists an adequate injury in fact, as that is the only prong of the standing inquiry that the parties themselves discuss. Yet of course, we have an independent obligation to determine whether we have jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
In order for an injury to be redressable, a plaintiff must show that she “personally would benefit in a tangible way from the court’s intervention.” Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Steel Co. is the only Supreme Court decision to focus on the redressability prong of standing. In that case, the plaintiff alleged that it suffered an injury — namely, that its members’ “safety, health, recreational, economic, aesthetic and environmental interests” were nega
First, the plaintiff sought a declaratory judgment that there was a violation of the federal statute, which was “disposed of summarily” as there was no dispute that there was, in fact, a violation of the statute.
In holding that the redressability prong of standing was not satisfied, the Court stated, “[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.” Id. at 107, 118 S.Ct. 1003. Thus, even though the plaintiffs sought' several .forms of relief that might allow a suitor to “derive great comfort and joy” or declare that there was, in fact, a violation of the law, id. because none of the forms of relief sought would serve to compensate plaintiffs for their past losses, Article III standing was lacking. Id. at 109-10, 118 S.Ct. 1003.
The question of whether nominal damages, standing alone, serve to confer standing on a plaintiff has never been addressed by this Court, and, with one exception, it does not appear to have been addressed by our sister circuits. However, the principle appears to be the same as that in Steel Co.: just as the “psychic satisfaction” from be
There have been three appellate courts that have explicitly addressed whether a claim for nominal damages alone would suffice for standing purposes. First, the Second Circuit, in Kerrigan v. Boucher, held that a “claim for nominal damages, which is clearly incidental to the relief sought, cannot properly be the basis upon which a court should find a case or controversy where none in fact exists.” 450 F.2d 487, 489-90 (2d Cir. 1971). This holding was reaffirmed two years later in the two-judge concurrence in Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 387 (2d Cir. 1973) (Timbers, J., concurring) (quoting Kerrigan, 450 F.2d at 489-90). However, both of these cases appear to have been largely overlooked, with neither-having been cited with great frequency.
Next, the Eighth Circuit, in what I consider to be a fairly conclusory manner, held that a claim for nominal damages meant that the redressability requirement was satisfied. Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 802 (8th Cir. 2006). The one case that it relied on for support of this proposition, Tandy v. City of Wichita, stated that standing was satisfied because “compensatory or nominal damages can redress [the plaintiffs] injury in fact.” 380 F.3d 1277, 1290 (10th Cir. 2004) (emphasis added). While Tandy does suggest that nominal damages alone would redress an injury in fact, the Tenth Circuit did not have to address this issue due to the presence of a claim for compensatory damages.
In the only case where an appellate court has thoroughly analyzed the relationship between nominal damages and re-dressability, the Sixth Circuit in Morrison v. Board of Education of Boyd County, stated that “[n]o readily apparent theory emerges as to how nominal damages might redress past [harm].”
Here Schaub does not seek compensatory damages, but instead seeks only nominal damages, where “the dollar is not the real objective of the litigation.” Utah Animal Rights Coal, 371 F.3d at 1264 (McConnell, J., concurring).
Standing alone, with the claims for in-junctive and declaratory relief analyzed separately, I am doubtful that this “psychic satisfaction [can be] an acceptable Ar-tide III remedy because it does not redress a cognizable Article III injury.” Steel Co., 523 U.S. at 107, 118 S.Ct. 1003; see also N.J. Peace Action v. Bush, 379 Fed.Appx. 217, 222 (3d Cir. 2010) (saying that a remedy of declaratory relief “would not take back the allegedly unlawful orders that [plaintiff] has already obeyed, nor would it provide any concrete compensation for the emotional, psychological, and physical injuries that he has allegedly suffered. Indeed, it is ‘merely speculative’ that any psychic benefits of declaratory relief would redress the emotional, physical, and psychological injuries already suffered by the plaintiffs in this case.” (internal quotation marks omitted)). If this nominal damages claim is really one for prospective relief, then this analysis has already been conducted in the panel opinion. See Kerrigan, 450 F.2d at 489-90 (stating that the claim for nominal damages “is clearly incidental to the [declaratory] relief sought - [and] cannot properly be the basis upon which a court should find a case or controversy”). While not problematic in this case, I would be concerned if our retrospective standing analysis were considered binding on future panels of our Court in factually different
II.
Plaintiffs first raised the issue of whether nominal damages alone suffice for justi-ciability purposes in order to save the case from mootness if the District Court determined that the claims for injunctive and declaratory relief were mooted by Doe l’s transfer to a different school district. While we are not faced with the specific question of whether a claim for nominal damages could save a case from mootness, it is closely related to the issue that I raise, as the Supreme Court has said that “the doctrine of mootness can be described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). However, Laidlaw also explained that this phraseology was not entirely accurate, as there is an important distinction between standing and mootness. Id. at 190, 120 S.Ct. 693 (describing this phrase as a “not comprehensive” description of the relationship between standing and mootness). The “[sjtanding doctrine functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake,” while the mootness doctrine involves a “case [that] has been brought and litigated, often ... for years.” Id. at 191-92, 120 S.Ct. 693. While this sunk cost argument “does not license courts to retain jurisdiction over cases in which one or both of the parties plainly lack a^ continuing interest,” this is “surely ... an important difference between the two doctrines.” Id. at 192, 120 S.Ct. 693 (emphasis added); see also Cinicola v. Scharffenberger, 248 F.3d 110, 118 (3d Cir. 2001) (describing the “flexible character of the Article III mootness doctrine” (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980))). Thus, while the cases involving nominal damages and mootness may be instructive, they do not necessarily dictate what our analysis should be regarding the sufficiency of nominal damages alone to create standing.
Unlike cases addressing the interplay between nominal damages and redressa-bility, there are many cases that have addressed whether a claim for nominal damages saves a case from mootness. I concede that my concerns about nominal damages and justiciability do not appear to be shared by the majority of appellate courts to address the mootness subset of justiciability. However, the one case that has thoroughly examined the issue expresses the same concerns that I raise here. As with the standing inquiry discussed in Part I, we do not have a Third Circuit case directly on point, although we have held that a claim for nominal damages in conjunction with one for punitive damages is enough to avoid mootness. Doe v. Delie, 257 F.3d 309, 314 n.3 (3d Cir. 2001).
Nor has the Supreme Court explicitly addressed this issue. Arizonans for Official English is its one decision touching on the relationship between justiciability and nominal damages. 520 U.S. at 68-70, 117 S.Ct. 1055. In that case, the Court stated that the plaintiffs attempt to wrest a claim for nominal damages from a general prayer for relief would not save a case from becoming moot. Id. at 69-72, 117 S.Ct. 1055. It said that such attempts to save a case from becoming moot by asserting what it characterized as the “nominal dam
It may be that a majority of our sister circuits have conflated nominal damages with actual damages in holding that “[a] live claim for nominal damages will prevent dismissal for mootness.” Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002); Van Wie v. Pataki, 267 F.3d 109, 115 n.4 (2d Cir. 2001) (stating in dicta that “plaintiffs in election cases could avoid the potential for mootness by simply expressly pleading that should the election pass before the issuance of injunctive relief, nominal money damages are requested.”);
As the Fifth Circuit acknowledged in Morgan, the first case to challenge the well-accepted view that nominal damages could save a case from mootness was Utah Animal Rights Coalition. In this case, the plaintiffs sought injunctive relief, declaratory relief, and nominal damages in an attempt to force the city to process their applications to protest the Winter Olympics. 371 F.3d at 1254 (majority). However, before the District Court heard argument, the Winter Olympics occurred, rendering the claims for injunctive and declaratory relief moot. Then-Judge McConnell
I consider Judge McConnell’s concurrence persuasive. He argues that “nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment stat-
Instead of allowing such a claim to proceed in federal court, if we agreed with the District Court that the claims for injunc-tive and declaratory relief were moot, a proper result would be to hold that the claim is non-justiciable. Utah Animal Rights Coal., 371 F.3d at 1262 (McConnell, J., concurring) (“Federal Courts ... are not debating societies to determine whether past actions and defunct ordinances were constitutional. Federal courts exist to resolve live controversies, to remedy wrongs, and to provide prospective relief.”). As in our case, plaintiffs in Utah Animal Rights Coalition did not seek compensatory relief. Thus, Judge McConnell would say that there is “no retrospective relief [the court] could grant that might make them whole for the alleged constitutional violation,” and thus there would be “no point in deciding whether the former ordinance was unconstitutional on its face.” Id.; see also id. at 1263 (stating that a case is not justiciable merely because “a plaintiff wishes to have the moral satisfaction of a judicial ruling that he was right and his adversary was wrong”). As Judge McConnell noted, to hold otherwise would allow litigants to avoid mootness of claims for injunctive relief by simply “appending a claim for nominal damages” to the complaint. Id. at 1266; see Van Wie, 267 F.3d at 115 n.4 (“[Plaintiffs in election cases could avoid the potential for mootness by simply expressly pleading that should the election pass before the issuance of injunctive relief, nominal damages are requested.”).
Judge McConnell’s separate opinion on mootness in Utah Animal Rights Coalition served as the analytical underpinning behind the Sixth Circuit’s standing analysis in Morrison. I also find this persuasive, while at the same time acknowledging the weight of precedent from other circuits that support the prevailing view.
III.
None of the cases cited in our opinion addresses a claim for nominal damages, so none had a need to engage in the inquiry into past harm that the panel does. In fact, in this case, Plaintiffs on appeal originally based their claim for nominal damages on “the altered conduct they undertook to avoid the Monument,” not on their unwelcome contact with the monument in the past. Appellant Br. at 41. There is a simple explanation for that: the real remedy sought at the time the complaint was filed
Imagine a scenario in which the school district immediately took down the monument after Schaub complained of it. Nonetheless, she still sued for nominal damages. Would we say that she has standing to sue to remove this monument? Following the analysis conducted in the panel opinion, it seems that we would have to conclude that, due to Schaub’s past interactions with the monument, she would have standing because nominal damages serve to remedy a past harm. Thus, the federal courts would need to adjudicate the merits of this alleged Establishment Clause violation. I am doubtful that this is the case because I do not see how nominal damages redress any past harm outside of the psychic satisfaction of the plaintiff being told that she was right. Steel Co., 523 U.S. at 107, 118 S.Ct. 1003 (holding that a remedy does not redress an injury merely because it allows the suitor to “derive great comfort and joy”); Morrison, 521 F.3d at 611 (“To confer nominal damages here would have no effect on the parties legal rights.”); Utah Animal Rights Coal., 371 F.3d at 1263 (McConnell, J., concurring) (“It is not enough that a plaintiff wishes to have the moral satisfaction of a judicial ruling that he was right and his adversary was wrong.”).
Similarly, and more comparable to Utah Animal Rights Coalition, what if we agreed with the District Court that Plaintiffs’ claim for injunctive relief was moot? This appears to be the only reason why Plaintiffs raise the argument that nominal damages would nonetheless preserve their claim, as they never argued that they had standing separate from their claim for in-junctive relief in the District Court. Would we instruct the District Court to rule on the Establishment Clause claim because of the presence of nominal damages? I seriously question whether a “case or controversy” would remain. Id. at 1270 (“If a claim for nominal damages cannot become moot, and is eligible for fees under § 1988 ... plaintiffs may be induced to waste legal and judicial resources by continuing litigation when there is no longer any point to it.”). While neither scenario is before us, they are not outside the realm of possibility.
IV.
My doubts about the panel opinion’s separate standing analysis of nominal damages does not question the uncontroversial
Thus, if Schaub had sought compensatory damages here for any past harm, then we would have to conduct a backwards-looking standing inquiry. She ultimately may not have been entitled to compensatory damages, and only recovered an award of nominal damages — like the plaintiff in Farrar — but that would not be a bar to finding standing.
Plaintiffs obviously did not seek such compensatory damages at the time their suit was filed because they had not yet made the decision to move Doe 1 to another school district. However, we must address standing at the time the suit was filed, when only the claim for nominal damages was sought. Laidlaw, 528 U.S. at 190, 120 S.Ct. 693 (“[I]f a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.”). Plaintiffs have provided no explanation for how nominal damages would redress any past injury present at the time of the filing of the lawsuit.
V.
For the reasons stated herein, I concur dubitante. On the one hand, most courts to address the impact of nominal damages on a court’s justiciability analysis have held that a claim for nominal damages preserves a live case or controversy and saves a case from mootness. However, nominal damages do not appear to redress any past injury. I wonder if our decision will create binding precedent in our Court for an issue that' I do not think we need to reach. Schaub clearly has standing to seek injunc-tive and declaratory relief. I question the need to conduct a separate standing analysis for nominal damages. Perhaps when this issue is squarely presented and more
. While the Supreme Court had no need to delve further into the declaratory relief sought, it stated in Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 31, 131 S.Ct. 447, 178 L.Ed.2d 460 (2010), that a declaratory judgment is a claim for prospective relief, different from a claim alleging past harm.
. The sixth form of relief sought was "any such further relief as the court deems appropriate." Id. at 105, 118 S.Ct. 1003.
. The Fourth Circuit, in Covenant Media of SC, LLC v. City of North Charleston, similarly suggested that a claim for nominal damages would suffice for standing purposes. 493 F.3d 421, 428 (4th Cir. 2007) (noting that the claim is "redressable at least by nominal damages”). However, like many of the cases that seem to say that a case is saved from mootness at least by nominal damages, the plaintiffs sought both compensatory and nominal damages. See id. at 429 n.4.
. As discussed further below, the Morrison court relied heavily upon then-Judge McConnell's views in Utah Animal Rights Coalition, which addressed the related question of whether a claim for nominal damages prevents a case from becoming moot.
. In ruling that nominal damages alone did not suffice for standing purposes, Morrison did not find itself constrained by the Sixth Circuit’s prior precedent “allow[ing] a nominal-damages claim to go forward in an otherwise-moot case.” Morrison, 521 F.3d at 611 (citing Lynch v. Leis, 382 F.3d 642, 646 n.2 (6th Cir. 2004), and Murray v. Bd. of Trs., Univ. of Louisville, 659 F.2d 77, 79 (6th Cir. 1981)). However, as discussed at the beginning of Part II, while these doctrines are closely related, the mootness doctrine is more flexible due in part to the "sunk costs” of litigation already conducted. See Laidlaw, 528 U.S. at 190-92, 120 S.Ct. 693.
. In their opening brief, Plaintiffs claim that they are entitled to nominal damages to compensate them for "the altered conduct they undertook to avoid the Monument,” not for their unwelcome contact with the monument in the past. Appellant Br. at 41. This injury which they seek to be redressed by nominal damages was not present at the time the suit was filed, as Doe 1 was transferred to a different school district after the commencement of the suit, and thus would not suffice to create standing. Laidlaw, 528 U.S. at 191, 120 S.Ct. 693 (stating that a plaintiff must have standing "at the time the action commences”). Moreover, it is compensatory in nature. However, in their reply brief, Plaintiffs change their argument to one based on their past interaction with the monument. This is the standing analysis that the panel opinion correctly focuses upon.
. However, this dicta is at odds with the Second Circuit's case law on nominal damages and standing. See Hernandez, 487 F.2d at 387 ("Not having found a justiciable controversy permitting a declaration, the claim for nominal damages, which is clearly incidental to the relief sought, cannot properly be the basis upon which a court should find a case or controversy where none in fact exists." (quoting Kerrigan, 450 F.2d at 489-90)). As mentioned earlier, the standing requirement is slightly more rigorous than the mootness doctrine’s greater flexibility, which may explain the difference. See Laidlaw, 528 U.S. at 190-92, 120 S.Ct. 693; cf., supra.
. While the Fourth and Seventh Circuit have not explicitly addressed the issue, they have hinted that a claim for nominal damages alone would prevent a case from becoming moot. See Covenant Media, 493 F.3d at 429 n.4 (noting that the plaintiff's "suit [was] not
. On May 5, 2009, Judge McConnell resigned his seat on the Court of Appeals for the Tenth Circuit in order to serve as the faculty director of the Stanford Law School’s Constitutional Law Center.
. In fact, in another case in the Western District of Pennsylvania, the court recognized that this was an issue of first impression for our circuit. It held that a “valid claim for nominal damages” was enough to avoid mootness even though it "seems ‘odd that a complaint for nominal damages could satisfy Article Ill’s case or controversy requirements.' ” Freedom from Religion Found., Inc. v. Connellsville Area Sch. Dist., 127 F.Supp.3d 283, 300 (W.D. Pa. 2015) (quoting Utah Animal Rights Coal., 371 F.3d at 1257 (majority opinion)). On the other hand, a court in the Southern District of Indiana recently held that “a claim for nominal damages alone is not sufficient enough to maintain federal court jurisdiction in a case that is otherwise moot.” Freedom from Religion Found., Inc. v. Franklin Cty., Ind., 133 F.Supp.3d 1154, 1160 (S.D. Ind. 2015); see also id. ("By allowing FFR.F to proceed to determine the constitutionality of a policy that has been voluntarily amended to cease illegal conduct, in hope of receiving $1.00, vindicates no rights and is not a task of the federal courts.”).