IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-40634

Summary Calendar

 

ROBERT WARD, Individually, and as next friend

of Marian Ward, a minor; MARJORIE WARD,

Individually, and as next friend of Marian Ward,

a minor,

Plaintiffs-Appellants,

versus

SANTA FE INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

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 THOMAS MORE LAW CENTER,

 Amicus Curiae.

 

Appeal from the United States District Court for

the Southern District of Texas

(USDC No. G-99-CV-556)

_______________________________________________________

April 9, 2002

ON PETITION FOR REHEARING

Before REAVLEY, HIGGINBOTHAM and WIENER, Circuit Judges.
*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

1

 We do not reach the issues of whether the district court properly held that

Marian Ward’s parents, Robert and Marjorie Ward, individually lacked standing as

school district taxpayers and residents to bring this suit, and whether the court should

have made this ruling without notice and an opportunity for discovery.

2

PER CURIAM:*

Appellants have filed a motion for rehearing. Relying on Carey v. Piphus, 435

U.S. 247 (1978), and other authority they argue that we erred in concluding that this suit

was properly dismissed as moot because they sought the recovery of nominal damages. 

We conclude that our prior opinion was in error insofar as we held that Marian Ward’s

claim for nominal damages was moot.1

Appellants’ original complaint plainly sought the recovery of nominal damages. 

Carey held that a plaintiff claiming a constitutional violation, specifically a procedural

due process violation, could seek nominal damages for the violation in the absence of

other damages. Id. at 266-67. While not squarely addressing the issue of mootness,

Carey did state that the recovery of nominal damages was appropriate “because of the

importance to organized society that procedural due process be observed,” id. at 266, and

necessarily implied that a case is not moot so long as the plaintiff seeks to vindicate his

constitutional rights through a claim for nominal damages.

Other authority supports the proposition that, whether or not a plaintiff’s request

for injunctive relief has become moot, a suit should not be dismissed in its entirety so
3

long as the plaintiff has alleged a cognizable claim for nominal damages for the

constitutional violation he suffered. See Arizonans for Official English v. Arizona, 520

U.S. 43, 69 (1997) (holding that claim for nominal damages against a State did not save

case from mootness because a §1983 claim does not lie against a State); Bernhardt v.

County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002) (“A live claim for nominal

damages will prevent dismissal for mootness.”); Fox v. Bd. of Trs. of the State Univ. of

N.Y., 42 F.3d 135, 141 (2d Cir. 1994) (rejecting argument that claim for nominal

damages saved case from mootness because “there is absolutely no specific mention in

[the Complaint] of nominal damages.”) (internal quotations omitted)); Comm. for the

First Amendment v. Campbell, 962 F.2d 1517, 1526-27 (10th Cir. 1992) (holding that

claim for nominal damages was not moot even though claims for injunctive relief were

moot). 

We are persuaded that the case was not entirely moot in light of the claim for

nominal damages. We grant the petition for rehearing and withdraw our prior opinion

insofar as it held otherwise. We adhere to our prior ruling that the district court did not

err in denying leave to amend. We reverse the judgment dismissing the case, and remand

it for further proceedings consistent with this opinion.

REVERSED and REMANDED.