PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 15-3083

______________

FREEDOM FROM RELIGION FOUNDATION INC; 

DOE 1, by Doe 1's next friend and parent, Marie Schaub;

MARIE SCHAUB, who also sues on her own behalf

v.

NEW KENSINGTON ARNOLD SCHOOL DISTRICT

 Freedom From Religion Foundation, Inc.; Marie Schaub,

 Appellants

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:12-cv-01319)

District Judge: Hon. Terrence F. McVerry

______________

Argued: May 19, 2016

______________

 

Before: SMITH, HARDIMAN, and SHWARTZ, Circuit 

Judges
2 

(Opinion Filed: August 9, 2016) 

Patrick C. Elliott 

Freedom from Religion Foundation 

10 North Henry Street 

Madison, WI 53703 

Marcus B. Schneider [ARGUED] 

Steele Schneider 

428 Forbes Avenue, Suite 700 

Pittsburgh, Pennsylvania 15219 

Counsel for Appellants 

Christine Lane 

Anthony G. Sanchez [ARGUED] 

Sanchez Legal Group, LLC 

2403 Sidney Street, Suite 242 

River Park Commons 

Pittsburgh, Pennsylvania 15219 

Counsel for Appellee 

Richard B. Katskee 

Alexander J. Luchenitser 

Americans United for Separation of Church & State 

1901 L Street, N.W. 

Suite 400 

Washington, DC 20005 

Stephen M. Shapiro 

Charles M. Woodworth [ARGUED] 

Mayer Brown LLP 

71 South Wacker Drive 

Chicago, Illinois 60606 
3

Brian D. Netter

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

Steven M. Freeman

David L. Barkey

Anti-Defamation League

605 Third Avenue

New York, NY 10158

Jeffrey I. Pasek

Cozen O’Connor

1650 Market Street

Philadelphia, PA 19103

Harsimran Kaur

Gurjot Kaur

The Sikh Coalition

50 Broad Street, Suite 1537

New York, NY 10004

Counsel for Amicus Curiae

______________

OPINION

______________

SHWARTZ, Circuit Judge.

Marie Schaub, her daughter Doe 1, and the Freedom 

From Religion Foundation (“FFRF”) (collectively, 

“Appellants”) brought suit under 42 U.S.C. § 1983, alleging 
4

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 lack 

standing and their request for injunctive relief is moot. 

Because Schaub has standing to seek both nominal damages 

and injunctive relief, and her request for injunctive relief is 

not moot, we will reverse the District Court’s order 

dismissing her claims. We will vacate the order dismissing 

FFRF’s claims to allow the District Court to consider whether 

Schaub was a member of FFRF at the time the complaint was 

filed. As to Doe 1, we need not address whether she has 

standing to obtain an injunction, but conclude that the District 

Court correctly found that she lacks standing to seek nominal

damages, and we will affirm the order granting the District 

summary judgment with respect to this claim.

I

In 1956, the New Kensington Fraternal Order of the 

Eagles, a non-profit charitable organization, donated a sixfoot 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, 
5

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.

1

Schaub and Doe 1 live within the New KensingtonArnold School District. Schaub had visited the high school 

 

1 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.
6

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 estimates that from the curb, where she would 

pull over to drop someone off at the gym’s entrance, she 

could see the monument and make out the title, “The Ten 

Commandments” as well as the word “Lord,” which are 

printed in a larger font than the remaining text. App. 820-22. 

The monument can also be seen from the road on which 

Schaub and Doe 1 frequently travel.

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. 
7

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,” and 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.”2 App. 864. 

Appellants concede the record is silent as to whether Doe 1 

had this view at the time the complaint was filed.

On September 14, 2012, Appellants filed a complaint 

in the United States District 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.

3

 During the pendency of the lawsuit,

Schaub and Doe 1’s contact and possible contact with the 

monument continued. Doe 1 attended the eighth grade dinner 

dance at the high school in May 2014, and she expressed an 

interest in attending classes at the Northern Westmoreland 

 

2 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.

3 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 (1978).
8

Career & Technology Center, which is located on the high 

school campus.

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 Court observed that appellate 

courts require plaintiffs bringing Establishment Clause claims

to show “direct, unwelcome contact” with the allegedly 

offensive display, but noted that the cases tended to concern 

plaintiffs whose contact with a display was “frequent and 

regular,” and a necessary result of accessing government 

services or fulfilling civic obligations. App. 14 (quoting 

Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1252 (9th Cir. 

2007)). As a result, it interpreted these factors as imposing 

additional elements to show standing, and held that Doe 1 and 

Schaub “failed to establish that they were forced to come into 

direct, regular, and unwelcome contact with the Ten 

Commandments monument.” App. 15 (internal quotation 

marks omitted). As to Schaub, the District Court found that 

she had come into contact with the monument just a few 

times and such exposure was insufficient to confer standing. 

The District Court also found that she had not shown that her 

contact was “required” for “necessary matters” or as “part of 

her regular routine.” App. 16. Furthermore, the District 

Court read Schaub’s deposition testimony that “it never 

occur[ed] to [her]” that the monument was wrongful and she 
9

“didn’t really think too much about it” when she first saw it to 

mean that her objections to the monument arose only after 

FFRF became involved in the controversy, undermining the 

personal nature of her claims. App. 16. 

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 1’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.

II4

 

4 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). 
10

A

Standing and mootness are two distinct justiciability 

doctrines that limit our jurisdiction to cases and controversies

in which a plaintiff has a concrete stake. Standing ensures 

that each plaintiff has “[t]he requisite personal interest . . . at 

the commencement of the litigation,” while mootness ensures 

that this interest “continue[s] throughout” the duration of the 

case. Arizonans for Official English v. Arizona, 520 U.S. 43, 

68 n.22 (1997) (internal quotation marks omitted). 

To establish constitutional standing, “a plaintiff must 

 

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 (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 (1992). Thus, “[a]t the summary judgment 

stage, the plaintiff must produce evidence [of standing] in the 

form of Fed. R. Civ. P. 56[ ] affidavits or documents . . . .” 

ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 261 (3d Cir. 2001) 

(quotations and citations omitted).
11

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 

(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. 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 (1982) (quoting Schlesinger v. 

Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13 

(1979)).

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. 

“[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 
12

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.”

5

 Red 

River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th 

Cir. 2012); see also Cooper v. U.S. Postal Serv., 577 F.3d 

479, 491 (2d Cir. 2009) (plaintiff who had “direct contact 

with religious displays that were made a part of his 

experience using the postal facility nearest his home” had 

standing); Vasquez, 487 F.3d at 1253 (“[S]piritual harm 

resulting from unwelcome direct contact with an allegedly 

offensive religious . . . symbol . . . suffices to confer Article 

 

5 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 religious plaque at courthouse occasionally while 

conducting official business there lacked standing as “not . . . 

convincing”).
13

III standing.”); Am. Civil Liberties Union of Ohio Found.,

Inc. v. Ashbrook, 375 F.3d 484, 490 (6th Cir. 2004) (plaintiff 

had standing to challenge display in courtroom because he 

had “direct, unwelcome contact with the Ten Commandments 

display”); Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th 

Cir. 1997) (“[D]irect contact with an unwelcome religious 

exercise or display works a personal injury distinct from and 

in addition to each citizen’s general grievance against 

unconstitutional government conduct.”); Foremaster v. City 

of St. George, 882 F.2d 1485, 1490 (10th Cir. 1989) 

(“allegations of direct, personal contact” with religious icon 

in city logo gave rise to standing); Saladin v. City of 

Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (standing in 

Establishment Clause cases is established by “direct contact 

with the offensive conduct”). 

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 (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 is inconsistent with 

the concept that a single “trifle” is sufficient to establish 

standing.
14

Second, while many courts have noted the frequency 

of a plaintiff’s 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 plaintiff’s 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 

display); Suhre, 131 F.3d at 1088, 1090 (holding that plaintiff 

who came into contact with Ten Commandments display in 

courtroom during “numerous suits” he was involved with and 

attended public meetings there had standing, but referring to 

“direct unwelcome contact with a religious display” as the 

required standard). For instance, in Pelphrey v. Cobb County, 

547 F.3d 1263, 1279-80 (11th Cir. 2008), the court noted that 

a plaintiff challenging a religious invocation at planning 

commission meetings had attended three meetings in person 

and viewed many on the internet, but concluded that standing 
15

existed because “the record allow[ed] an inference that [the 

plaintiff] observed a meeting,” not because he did so 

frequently or regularly. Id. at 1280. 

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 “[a]llegations 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)).

6

 

While frequent contact with a display is not a 

requirement for standing, a passerby who is not a member of 

 

6

Imposing a frequency requirement would also be 

tantamount to endorsing the notion that a plaintiff must cause 

himself increased injury to bring a claim.
16

the community, and who faces no risk of future contact,7 may 

not have an injury in fact sufficient to confer standing. This 

is because standing requires that the plaintiff has a concrete 

grievance that is particularized to him and that the plaintiff is 

not one simply expressing generalized disagreement with 

activities in a place in which he has no connection. See

Valley Forge, 454 U.S. at 482-83; see also Moss v. 

Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605 (4th 

Cir. 2012); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 

679, 683 (6th Cir. 1994) (practices in one’s “own community 

may create a larger psychological wound than someplace we 

are just passing through”); Saladin, 812 F.2d at 693 (plaintiffs 

“have more than an abstract interest” where they are “part of 

[the relevant community] and are directly affronted” by a 

religious display). 

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 Court has 

never required that Establishment Clause plaintiffs take 

affirmative steps to avoid contact with challenged displays or 

religious exercises.”). Rather, standing exists either when 

plaintiffs “were subjected to unwelcome religious 

exercises or were forced to assume special burdens to avoid 

them.” Valley Forge, 454 U.S. at 486 n.22. Consistent with 

 

7 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 (1983).
17

this approach, the Supreme Court has decided religious 

display cases in which plaintiffs had come into contact with 

the displays but not altered their conduct, without noting any 

concern about their standing to sue. See Cty. of Allegheny v. 

Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 

U.S. 573 (1989) (challenging a holiday display outside county 

courthouse); Lynch v. Donnelly, 465 U.S. 668 (1984) 

(challenging a holiday display in a city’s shopping district).

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.

8

 See, e.g., 

Red River, 679 F.3d at 1023; Books, 401 F.3d at 857, 861; 

Foremaster, 882 F.2d at 1490; Suhre, 131 F.3d at 1088. In 

the religious display context, the allegedly unwelcome 

activity generally takes place on government property or at a 

government-sponsored event. A community member should 

not be forced to forgo a government service to preserve his or 

her ability to challenge an allegedly unconstitutional religious 

display or activity.

9

 While altering one’s behavior to avoid

 

8 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).

9 Similarly, while many cases involve plaintiffs 

availing themselves of needed government services or 
18

something may demonstrate that the thing avoided is 

unwelcome, altered conduct is not a prerequisite for obtaining 

standing in this context.10 

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.

11

 

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”).

10 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).

11 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. 
19

C

A plaintiff seeking relief must show he or she has 

standing for each remedy sought. Laidlaw, 528 U.S. at 184. 

Thus, we first examine Schaub and Doe 1’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 

 

Lee v. Weisman, 505 U.S. 577, 584 (1992) (the father of a 

high school freshman had Article III standing to challenge the 

inclusion of a prayer during his daughter’s anticipated high 

school graduation ceremony years later); Sch. Dist. of 

Abington Twp. v. Schempp, 374 U.S. 203, 224 n.9 (1963) 

(both children and their parents had standing to challenge 

bible reading in their public school); see also Valley Forge, 

454 U.S. at 486 n.22 (characterizing Schempp as supporting 

standing “because impressionable schoolchildren were 

subjected to unwelcome religious exercises or were forced to 

assume special burdens to avoid them”); Donovan ex rel. 

Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 217 

n.2 (3d Cir. 2003) (“We do note that parents independently 

have standing to bring constitutional challenges to the 

conditions in their children’s schools.”); Brody ex rel. 

Sugzdinis v. Spang, 957 F.2d 1108, 1114 (3d Cir. 1992) 

(“parents independently have standing to bring constitutional 

challenges to the conditions in their children’s schools”); Bell 

v. Little Axe Indep. Sch. Dist. No. 70 of Cleveland Cty., 766 

F.2d 1391, 1398 (10th Cir. 1985) (agreeing with district court 

that parents may “on their own behalf, assert that the state is 

unconstitutionally acting to establish a religious preference 

affecting their children” (internal quotation marks omitted)). 
20

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,12 App. 824, are sufficient to 

demonstrate that her contact with the monument was 

unwelcome. Thus, Schaub has standing to pursue a nominal

damages claim. 

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 

 

12 “[W]hile 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 III’s case-orcontroversy requirement for treating intangible emotional 

harms differently from more readily quantifiable harms).
21

Doe 1’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 prospective injunctive relief. At the time 

the complaint was filed, Schaub believed that Doe 1 would

matriculate at the high school and come into daily contact 

with the monument. While the record does not establish that

Doe 1 herself dreaded contact with the monument, she

asserted that her mother, Schaub, planned to drive her to 

school, and thus would have contact with the monument. 

Moreover, as Doe 1’s parent, she has an interest in guiding 

her child’s religious upbringing and has standing to challenge 

actions that seek to “establish a religious preference 

affecting” her child. Bell v. Little Axe Indep. Sch. Dist. No. 

70 of Cleveland Cty., 766 F.2d 1391, 1398 (10th Cir. 1985)

(internal quotation marks and citation omitted). Thus, Schaub 

has standing to seek injunctive relief. 

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.13 Schaub therefore has a 

 

13 Schaub also alleges that Doe 1 has expressed an 

interest in attending classes at the Northern Westmoreland 
22

concrete interest in the resolution of her request for injunctive 

relief. Second, the “principles of standing [do not] require [a] 

plaintiff[ ] to remain in a hostile environment to enforce [her] 

constitutional rights.” Id. at 1399 (no bar to injunctive relief 

where parents who sought to end various religious practices at 

a school chose to move their children to another school 

during the pendency of the lawsuit). For these reasons, 

Schaub has standing to pursue injunctive relief.14

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 

 

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.

14 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 

(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).
23

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.

III

For the foregoing reasons, we will affirm the District 

Court’s grant of summary judgment with respect to Doe 1’s 

claims for nominal damages, reverse and remand for further 

proceedings concerning Schaub’s claims, and vacate and 

remand for consideration of FFRF’s standing and further 

proceedings concerning FFRF’s claims if the District Court 

finds FFRF has standing.15

 

15 The standing inquiry is not an assessment of the 

merits, see ASARCO Inc. v. Kadish, 490 U.S. 605, 624 

(1989), and therefore nothing herein constitutes an opinion on 

the merits.
Freedom From Religion Foundation, Inc. v. New Kensington 

Arnold School District, No. 15-3083

SMITH, Circuit Judge, 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. 
2

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 (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. 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 (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. Selden, 422 U.S. 

490, 508 (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 

negatively impacted – due to the defendant’s failure to file 

timely and required reports pursuant to federal statute. 523 

U.S. at 105. Assuming that this was sufficient for an injury in 
3

fact, the Supreme Court walked through each of the six forms

of relief sought by the plaintiff and determined that the

organization lacked standing because none of these forms of 

relief redressed this injury. Id. at 105-09. 

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.1 Id. at 106. Second, 

the plaintiff stated that civil penalties, payable to the United 

States Treasury, would redress the injury because the 

payment would provide “vindication of the rule of law,” even 

if it would not provide “reimbursement for the costs incurred 

as a result of the late filing.” Id. The Court rejected this 

argument because, “although a suiter may derive great 

comfort and joy from the fact that the United States Treasury 

is not cheated . . . psychic satisfaction is not an acceptable 

Article III remedy because it does not redress a cognizable 

Article III injury.” Id. at 107. Next, the Court concluded that 

“investigation and prosecution costs,” which were authorized 

by statute, could not create standing when it was otherwise 

absent, because “a plaintiff cannot achieve standing to litigate 

a substantive issue by bringing suit for the cost of bringing 

suit.” Id. at 107. Finally, the Court concluded that the 

 

1 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 (2010), that a declaratory 

judgment is a claim for prospective relief, different from a 

claim alleging past harm. 
4

remaining two forms of relief sought2 – giving the plaintiff 

the authority to inspect the defendant’s records and facility 

and requiring defendant to give the plaintiff copies of 

compliance reports – were injunctive in nature. Id. at 108. 

Such injunctive relief “cannot conceivably remedy any past 

wrong but is aimed at deterring petitioner from violating [the 

federal statute] in the future.” Id. Thus, if the complaint “had 

alleged a continuing violation or the imminence of a future 

violation, the injunctive relief requested would remedy that 

alleged harm.” Id. However, such a “generalized interest in 

deterrence” did nothing to remedy the past harm that had 

occurred. Id.

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. 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.

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 

 

2 The sixth form of relief sought was “any such further relief 

as the court deems appropriate.” Id. at 105. 
5

Co.: just as the “psychic satisfaction” from being told that you 

were right or by seeing a wrongdoer pay monies to the 

Treasury does not redress past harm, nominal damages do not 

serve to redress past injury. “Nominal damages are damages 

in name only, trivial sums such as six cents or $1.” Utah 

Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 

1264 (10th Cir. 2004) (McConnell, J., concurring) (quoting 1 

Dan B. Dobbs, Dobbs Law of Remedies, § 3.3(2), at 294 (2d 

ed. 1993)). If a plaintiff were seeking to be compensated for 

past harms, he would seek compensatory damages. 

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, 
6

stated that standing was satisfied because “compensatory or 

nominal damages can redress [the plaintiff’s] 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.3

In the only case where an appellate court has 

thoroughly analyzed the relationship between nominal 

damages and redressability, 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].”4 521 F.3d 602, 610 (6th Cir. 2008). 

Thus, where the plaintiff sought “nominal damages based on 

a regime no longer in existence,” the redressability prong of

standing was not satisfied because “[t]o confer nominal 

 

3 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. 

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. 
7

damages here would have no effect on the parties’ legal 

rights.” Id. at 611. Instead, the entire purpose of the suit, a 

challenge to a school district policy that was no longer in 

effect, id. at 606-07, was to seek prospective relief, a fact that 

the plaintiff’s attorney conceded at oral argument, id. at 610

(noting that counsel acknowledged that “nominal damages are 

a vehicle for a declaratory judgment”). Allowing the suit to 

proceed to determine “the constitutionality of an abandoned 

policy—in the hope of awarding the plaintiff a single dollar—

vindicates no interest and trivializes the important business of 

the federal courts.” Id. at 611;5see also Steel Co., 523 U.S. 

at 107 (noting that “[b]y the mere bringing of his suit, every 

plaintiff demonstrates his belief that a favorable judgment 

will make him happier,” but that this “psychic satisfaction” 

does not redress an Article III injury). 

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 

 

5

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. 
8

Coal., 371 F.3d at 1264 (McConnell, J., concurring).

6

 As

with the request for civil penalties to be paid to the United 

States Treasury in Steel Co., Schaub seems to be seeking a 

remedy that does not provide her with any tangible benefit. 

Instead, she appears to be seeking an “authoritative judicial 

determination of the parties’ legal rights,” Id. That is 

prospective relief, not something that nominal damages can

redress. Morrison, 521 F.3d at 610-11. 

Standing alone, with the claims for injunctive and 

declaratory relief analyzed separately, I am doubtful that this

“psychic satisfaction [can be] an acceptable Article III 

remedy because it does not redress a cognizable Article III 

injury.” Steel Co., 523 U.S. at 107; see also N.J. Peace 

Action v. Bush, 379 F. App’x 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 

 

6

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 (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. 
9

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 cases, hypotheticals of which are discussed in Part 

III of this opinion. 

II. 

Plaintiffs first raised the issue of whether nominal 

damages alone suffice for justiciability 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 1’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 
10

189 (quoting Arizonans for Official English v. Arizona, 520 

U.S. 43, 68 n.22 (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 (describing this phrase as a “not comprehensive” 

description of the relationship between standing and 

mootness). The “[s]tanding 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. 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 (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 (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 redressability, 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 
11

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. In that case, the Court 

stated that the plaintiff’s 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. It said that such 

attempts to save a case from becoming moot by asserting 

what it characterized as the “nominal damages solution to 

mootness” required, at a minimum, close scrutiny. Id. at 69

& n.24; id. at 69 (“It should have been clear to the Court of 

Appeals that a claim for nominal damages, extracted late in 

the day from [the plaintiff’s] general prayer for relief and 

asserted solely to avoid otherwise certain mootness, bore 

close inspection.”). However, the Court had no reason to 

either embrace or repudiate whether a valid claim for nominal 

damages could save a case from mootness, because the party 

against whom nominal damages were sought – the state – was 

not a party to the litigation and was also immune to damages 

claims under 42 U.S.C. § 1983. Id. at 69-70. At the same

time, it did not explicitly hold that there was no “nominal 

damages solution to mootness.” See id. at 69 n.24. 

It may be that a majority of our sister circuits have 

conflated nominal damages with actual damages in holding
12

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.”);

7 Advantage Media, 456 

F.3d at 803 (holding that a claim was not moot because the 

plaintiff “might be entitled to nominal damages if it could 

show that it was subjected to unconstitutional procedures”). 

For example, in Bernhardt, the court examined caselaw 

making clear that nominal damages could be awarded in the 

event that compensatory or punitive damages were 

unavailable. 279 F.3d at 872. As discussed further below, 

this is a different question from whether nominal damages 

standing alone suffice for standing purposes. Despite 

acknowledging that “this rule [that standing can save a claim 

from mootness] has been challenged as ‘inconsistent with 

fundamental principles of justiciability,’” Morgan v. Plano 

 

7 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; cf., supra note 5.
13

Indep. Sch. Dist., 589 F.3d 740, 748 n.32 (5th Cir. 2009) 

(quoting Utah Animal Rights Coal., 371 F.3d at 1263 

(McConnell, J., concurring)), some courts nonetheless are

bound by their prior precedent. Id. at 748 (“This court and 

others have consistently held that a claim for nominal 

damages avoids mootness.”); Utah Animal Rights Coal., 371 

F.3d at 1262 (McConnell, J., concurring (“The panel was 

constrained to take jurisdiction in this case because of Tenth 

Circuit precedent holding that a claim for nominal damages 

precludes dismissal of the case on mootness grounds.”). Most 

circuits that have held that nominal damages can prevent 

mootness reach the result with what I consider to be little 

analysis of how a claim for nominal damages would redress a 

cognizable injury in fact. It is just possible that “the nominal 

damages solution to mootness” is nothing more than a selfperpetuating myth.

8

 

The Eleventh Circuit draws a distinction between 

claims for procedural due process, where a claim for nominal 

 

8 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 moot because if [the plaintiff was] correct on the 

merits, it is entitled to at least nominal damages,” because the suit 

sought compensatory and nominal damages (emphasis added)); 

Kelly v. Mun. Courts of Marion Cty., Ind., 97 F.3d 902, 910 (7th 

Cir. 1996) (holding a claim moot because the plaintiff “failed to 

mention damages, not even nominal damages”). The First, 

Federal, and D.C. Circuits do not seem to have indicated their 

inclination on the subject one way or another. 
14

damages will save a claim from mootness, and other cases, 

where the case will be moot despite the presence of nominal 

damages. In DA Mortgage, Inc. v. City of Miami Beach, the 

court held that “[d]amages claims can save a § 1983 claim 

from mootness, but only where such claims allege 

compensatory damages or nominal damages for violations of 

procedural due process.” 486 F.3d 1254, 1259 (11th Cir. 

2007). It draws this distinction based on the Supreme Court’s 

decisions in Memphis Community School District v. Stachura, 

477 U.S. 299, 310 (1986) (noting that the basic purpose of 

damages under § 1983 is compensatory and that “the abstract 

value of a constitutional right may not form the basis for 

§ 1983 damages”), and Carey v. Piphus, 435 U.S. 247, 266-

67 (1978) (approving the award of nominal damages for a 

violation of procedural due process when actual damages 

could not be proved). In an unpublished opinion, the 

Eleventh Circuit reaffirmed its holding that a claim for 

nominal damages saved a case from mootness only when 

there was a violation of procedural due process. Freedom

from Religion Found., Inc. v. Orange Cty. Sch. Bd., 610 F. 

App’x 844, 846 n.3 (11th Cir. 2015). While this distinction is 

one that we could adopt, I am not convinced that the 

distinction between procedural due process and other 

violations is an appropriate one for justiciability purposes. 

Moreover, as discussed further in Part IV, Carey was not a 

case about justiciability and was more about the availability 

of nominal damages where other damages claims were 

ultimately not susceptible to proof. 

As the Fifth Circuit acknowledged in Morgan, the first 

case to challenge the well-accepted view that nominal 
15

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 McConnell9 wrote both 

a majority opinion and a concurrence because he felt 

“constrained” by Tenth Circuit precedent, which bound the 

court to hold “that a claim for nominal damages precludes 

dismissal of the case on mootness grounds.” 371 F.3d at 

1262 (McConnell, J., concurring). Judge McConnell 

concurred so that he could explain why he felt that Tenth 

Circuit precedent was incorrect, and to urge “either an en 

banc court or the Supreme Court [to] hold that a case that is 

otherwise nonjusticiable on account of mootness is not saved 

by the mere presence of a prayer for nominal damages.” Id.

at 1263. 

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 statutes.” Id. at 1265. He cites to 

extensive scholarship in support of this view. Id. (citing 

Douglas Laycock, Modern American Remedies: Cases and 

Materials 561 (3d ed. 2002) (“The most obvious purpose [of 

nominal damages] was to obtain a form of declaratory relief 

 

9 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. 
16

in a legal system with no general declaratory judgment act.”),

1 Dobbs, supra, at 295 (“Lawyers might have asserted a 

claim for nominal damages to get the issue before the court in 

the days before declaratory judgments were recognized.”), 

and 13A Wright, Miller & Cooper, Federal Practice and 

Procedure, § 3533.3, at 266 (2d ed. 1984)). In fact, that is the 

only reason that nominal damages were asserted in our case: 

even if the claims for injunctive and declaratory relief were 

technically moot, a holding that there had been a past 

Establishment Clause violation – and that Schaub would be 

entitled to nominal damages – would have the practical effect 

of requiring the school district to take down the Ten 

Commandments monument. Schaub is not seeking to be 

compensated for a past constitutional violation; her sole 

objective is to prevent the alleged constitutional violation 

from continuing. See Morrison, 521 F.3d at 610 (“No readily 

apparent theory emerges as to how nominal damages might 

redress past [harm].”). 

Instead of allowing such a claim to proceed in federal 

court, if we agreed with the District Court that the claims for 

injunctive 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 
17

[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 (“[P]laintiffs 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 
18

simple explanation for that: the real remedy sought at the time 

the complaint was filed was the removal of the Establishment 

Clause violation and a declaration of its unconstitutionality, 

not the $1 in nominal damages. The difficulty in concluding 

that a request for nominal damages suffices to confer standing 

for past harm is apparent when we consider this case with 

different facts.

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 (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 
19

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 injunctive 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.

10

 Indeed, they are similar to the 

 

10 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 III’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 FFRF to proceed to determine the 
20

facts of Morrison and Utah Animal Rights Coalition. I am 

concerned that the panel opinion’s analysis will control in 

similar cases. 

IV. 

My doubts about the panel opinion’s separate standing 

analysis of nominal damages does not question the 

uncontroversial point that a plaintiff may receive only an 

award of nominal damages for past harm. That is a common 

occurrence when the finder of fact agrees with a plaintiff that 

her right was violated but the plaintiff has failed to show 

actual damage. See, e.g., Carey, 435 U.S. at 266 (holding that 

nominal damages would be an appropriate remedy for a 

procedural due process violation even if the district court 

ultimately concluded that compensatory damages were 

inappropriate due to the lack of actual harm); Utah Animal 

Rights Coal., 371 F.3d at 1264 n.2 (“In some cases, the 

plaintiff may seek compensatory damages at the outset of 

trial, but the court may award nominal damages based on the 

conclusion that the defendant violated the plaintiff’s right but 

the plaintiff could not prove actual damage.”). In fact, the 

Supreme Court has held that a plaintiff who wins only an 

award of nominal damages may be entitled to “prevailing 

party status” for the purposes of seeking attorneys’ fees under 

42 U.S.C. § 1988. Farrar v. Hobby, 506 U.S. 103, 116 

(1992) (O’Connor, J., providing the fifth vote concurring in 

judgment). At the same time, Justice O’Connor said that

 

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.”). 
21

where “the plaintiff’s success is purely technical or de 

minimis, no fees can be awarded. Such a plaintiff either has 

failed to achieve victory at all, or has obtained only a Pyrrhic 

victory for which the reasonable fee is zero.” Id. at 117. She 

acknowledged that sometimes nominal damages can represent 

a victory when they vindicate certain rights; but in Farrar, 

where the plaintiff won an award of $1 out of $17 million 

sought, and only from the least culpable of six defendants, 

this was not such a victory even though he had prevailed in 

showing a constitutional violation. Id. at 120-21. Neither 

Farrar nor Carey addressed a claim for nominal damages 

alone, without accompanying claims for compensatory relief. 

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 (“[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. 
22

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 injunctive 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 fully litigated – such as when a 

plaintiff brings a claim solely for nominal damages or if we 

are asked to determine whether a claim for nominal damages 

saves a case from mootness – this issue will be worthy of en 

banc consideration by our full Court.