Defendant pays nominal damages and walks away from the case

There are ways for defendants in Section 1983 cases to make the lawsuit go away by simply consenting to judgment for the plaintiff. They can even do it without any concession of liability on their part. This is an obscure procedure, but it surfaced recently in a First Amendment case against the President of the College of Staten Island.

The case is Husain v. Springer, 2009 WL 3422927, decided by the Eastern District of New York on October 26. If you're a First Amendment junkie, Husain is a hell of a case. It started in 1997 when the college president nullified the student elections because the college newspaper had allegedly broken the rules in endorsing student candidates. In 2007, the Court of Appeals held that the newspaper editors had a case under the First Amendment because the college's act of nullifying the student elections had a chilling effect on the newspaper's First Amendment activity. That decision is reported at 494 F.3d 108 (2d Cir. 1997). The Second Circuit ruling was notable not only for its innovative First Amendment reasoning but because Chief Judge Jacobs dissented despite admitting that he did not want to waste his time by reading the majority opinion.

Interesting case, but the newspaper editors are only entitled to nominal damages. These damages are separate from pain and suffering and punitive damages. Nominal damages are available when the defendant has broken the law but no other damages are available. The case can proceed on a nominal damages theory, and in constitutional cases it may be the only way that courts can decide important precedents where the plaintiffs have not suffered tangible damages.

What happened here is that after the Court of Appeals reinstated the case, the defendant college president decided to end the case by paying out the damages to which plaintiffs are entitled: one dollar for each of the eight plaintiffs. Despite paying out the damages, the defendant does not have to concede liability. Is this legal? Yes, says the court. Defendants can consent to judgment and pay any appropriate damages without conceding liability. As the Court of Appeals has held, "There is no justification for taking the time of the court and the defendant in the pursuit of minuscule individual claims which defendant has more than satisfied." Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir. 1983). Judge Gershon applies that logic in this case, and the case is over after 12 years of litigation.

Plaintiffs vigorously objected to this tactic, but Judge Gershon cites from a Fifth Circuit case holding that "A winning party cannot appeal merely because the court that gave him his victory did not say things that he would have liked to hear, such as that his opponent is a lawbreaker." Judge Gershon also emphasizes that the Second Circuit's ruling in this case is still good law and a viable precedent. So, the decision in this case ends with language you don't normally see in civil rights cases: "Defendant's motion for entry of judgment against herself is granted."