United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2004 Decided January 28, 2005

No. 02-7106

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,

APPELLEE

v.

ANTHONY GITTENS, EXECUTIVE DIRECTOR,

DISTRICT OF COLUMBIA COMMISSION ON THE ARTS AND

HUMANITIES, AND DISTRICT OF COLUMBIA,

APPELLANTS

Consolidated with

Nos. 03-7190, 03-7195

Appeals from the United States District Court

for the District of Columbia

(02-cv00984)

Donna M. Murasky, Senior Litigation Counsel, Office of

the Attorney General for the District of Columbia, argued the

cause for appellants. With her on the briefs were Robert J.

Spagnoletti, Attorney General, and Edward E. Schwab, Deputy

Attorney General.

Arthur B. Spitzer argued the cause for appellee. With him

on the brief was Fritz Mulhauser.
2

Before: GINSBURG, Chief Judge, and RANDOLPH and

ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and dissenting in part filed by

Circuit Judge ROGERS.

RANDOLPH, Circuit Judge: Several years ago, an agency of

the District of Columbia sponsored a city-wide, outdoor exhibit

of polyurethane models of donkeys and elephants, each painted

and decorated by a different artist. The exhibit lasted five

months. The parties to these consolidated appeals argue about

whether, as the district court ruled, the agency violated the First

Amendment to the Constitution when it rejected a design

showing a circus elephant weeping from mistreatment. We do

not reach the constitutional issue because the case may be moot.

To explain why, we need to fill in some details about the exhibit.

In the fall of 2001, the District’s Commission on the Arts

and Humanities issued a “Call to Artists” for “Party Animals,”

a program intended to showcase local artists, attract tourists and

enliven the streets “with creative, humorous art.” “Party

Animals” would be the “largest public art project in the history

of the District of Columbia.” It would consist of pre-formed

sculptures of 100 donkeys and 100 elephants, four and one-half

feet tall and five feet long, installed at prominent city, federal

and private locations. The Commission invited artists to submit

designs for painting and decorating the models. If the

Commission’s selection committee approved a design, the artist

would receive a $1,000 honorarium and $200 for materials and

supplies. The Commission retained ownership of the decorated

donkeys and elephants and planned to sell them at auction after

the exhibit ended.
3

The written announcement stated that “Party Animals”

would showcase the “whimsical and imaginative side of the

Nation’s Capital” and that the Commission was looking “for

artwork that is dynamic and invites discovery,” “original and

creative,” “durable” and “safe.” The Commission would not

“allow direct advertising of any product, service, a company

name, or social disrespect,” and would impose “restrictions

against slogans and inappropriate images.” All designs “were

subject to the Selection Committee’s decision.” More than

1,000 artists entered designs, most of which the Selection

Committee rejected.

The Arts Commission also announced that it would accept

designs outside of the general artistic competition from

individuals or organizations who paid $5,000 or more to be

high-level sponsors of the program. These sponsors could

choose their own artist to decorate a donkey or elephant, which

would be placed in a “prime public location.” The written

announcement stated that the Arts Commission “reserves the

right of design approval” and would own the decorated donkey

or elephant.

On the base of each sculpture was a plaque with the artist’s

name and the following:

DC Commission on the Arts & Humanities

Anthony A. Williams, Mayor

www.partyanimalsdc.org

An organization contributing $2,000 or more was entitled to

have its name on the plaque.

In mid-March 2002, People for the Ethical Treatment of

Animals, Inc. -- PETA -- submitted a sponsorship package, a
4

check for $5,000, and a sketch of its proposed design, drawn by

a cartoonist. PETA describes itself as a nonprofit corporation,

founded in 1980, to support “the principle that animals are not

ours to eat, wear, experiment on, or use for entertainment.”

Brief of Appellee at 5. The sketch PETA submitted depicted an

elephant with a sign tacked to its side. The sign read:

The CIRCUS is Coming

See: Torture

Starvation

Humiliation

All Under the Big Top

A selection committee member informed PETA that its design

was unacceptable. Several days later, PETA submitted two new

designs, one of a happy circus elephant, the other of a sad,

shackled circus elephant with a trainer poking a sharp stick at

him. The committee member called PETA’s representative to

say that the Commission had accepted the happy elephant, but

rejected the sad one. PETA then submitted another design,

depicting a shackled elephant crying. A sign tacked to the

elephant’s side read: “The Circus is coming. See SHACKLES -

BULL HOOKS - LONELINESS. All under the ‘Big Top.’” The

Commission rejected this design. According to an affidavit of

the Commission’s executive director, PETA’s proposal was “a

political billboard, not art, and unlike any other design

submission, it sought merely to promote a single issue and was

not an artistic expression consistent with the goals, spirit and

theme of the art project. The “Party Animals” arts project was

designed to be festive and whimsical, reach a broad based

general audience and foster an atmosphere of enjoyment and

amusement. PETA’s proposed . . . design did not compliment

these goals, and indeed was contrary to the Party Animals’

expressive, economic, aesthetic, and civic purpose.”
5

The “Party Animals” exhibit opened at the end of April

2002. One month later, PETA filed an action under 28 U.S.C.

§ 1983 against the executive director of the Arts Commission

and the District of Columbia, seeking a preliminary and

permanent injunction and damages for violation of its First

Amendment rights. While the case was pending, PETA

submitted still another design to the Commission, slightly

altering its previous submission. Again the Commission

rejected it, for reasons similar to those given for rejecting

PETA’s previous submission. All the while, the Commission

held PETA’s $5,000 check without cashing it.

After proceedings unnecessary to recount, the district court

issued a preliminary injunction, finding that the Commission

had violated PETA’s freedom of speech and requiring the

Commission to display PETA’s final elephant. People for the

Ethical Treatment of Animals v. Gittens, 215 F. Supp. 2d 120

(D.D.C. 2002). The District then cashed PETA’s check and

PETA had its elephant installed at Connecticut Avenue and Q

Street, N.W. It remained there from the end of August until the

end of September 2002, when “Party Animals” closed. In

November 2003, the court issued a memorandum opinion and

order granting PETA’s motion for summary judgment, denying

the District’s cross-motion, and awarding PETA “$4,000 in

damages.” In late December 2003, the court issued the another

order, stating: 

Upon consideration of Plaintiffs’ [sic] Motion for an

Order Directing Entry of Judgment, of defendant’s [sic]

consent thereto, and of the entire record herein, it is hereby

ORDERED, that the motion is GRANTED; and it is

further 

ORDERED, that the Clerk shall enter judgment in
6

1 Although the District noted an appeal from the November

memorandum and order, the order was not “set forth on a separate

document,” FED. R. CIV. P. 58(a), and therefore was not an effective

judgment from which an appeal could be taken. See Kidd v. Dist. of

Columbia, 206 F.3d 35, 37 (D.C. Cir. 2000). Even so, the reasoning

contained in the court’s November memorandum underlies the

December judgment.

favor of plaintiffs [sic] and against the District of Columbia

in the amount of $4,000.

The Clerk of the court entered the judgment on December 23,

2003.

The District noted an appeal from the order granting the

preliminary injunction (No. 02-7106), from the November 2003

memorandum and order granting summary judgment (No. 03-

7190), and from the December 2003 judgment for $4,000 (No.

03-7195). 

The “Party Animals” exhibit is long gone. But the parties

assume the December 2003 judgment awarding PETA $4,000

keeps the First Amendment controversy alive.1 We need to

examine their assumption carefully. There is “a long line of

Supreme Court pronouncements counseling judicial restraint in

constitutional decisionmaking, the most notable of which is

Ashwander v.TennesseeValley Authority, 297 U.S. 288, 346-47

(1936) (Brandeis, J., concurring).” Kalka v. Hawk, 215 F.3d 90,

97 (D.C. Cir. 2000). We therefore must assure ourselves that

the First Amendment controversy between PETA and the

District has not expired.

The operative portion of the district court’s opinion states:

[T]he plaintiff contends that it should be awarded money
7

damages for its loss of First Amendment rights caused by

the defendants’ failure to display its sculpture design. It is

undisputed that the $5,000 sponsorship level entitled the

sponsor to have its sculpture placed in a prominent place in

the city for the five months of the Party Animals display.

As a result of the time necessary to litigate the courtordered injunction, the plaintiff’s sculpture was only on

display in a prominent location for one month. The plaintiff

believes, and the defendants have not argued otherwise, that

it is entitled to a refund, in essence, for the four months it

was excluded from the public eye. The Court agrees, and

accordingly awards the [plaintiff] $4000 in damages.

People forthe Ethical Treatment of Animals v. Gittens, No. 02-

00984, slip op. at 6 (D.D.C. Nov. 14, 2003). 

If the district court awarded PETA the $4,000 as

compensatory damages for a violation of its First Amendment

rights, the District’s appeal from the grant of summary judgment

is not moot. See, e.g., Powell v. McCormack, 395 U.S. 486,

497-98 (1969). But if PETA’s recovery did not turn on the

validity of its First Amendment claims -- and there are several

indications that it did not -- the $4,000 award could not save the

constitutional issue from mootness. Although the court began

by noting PETA’s contention that it was entitled to $4,000 for

the “loss of First Amendment rights,” the court ended by calling

the $4,000 a “refund, in essence, for the four months it was

excluded from the public eye.” This may suggests that the court

was simply enforcing the terms of the “Party Animals” program

and that PETA would have received the refund even if it had not

prevailed on its constitutional claim. See RESTATEMENT

(SECOND) OF CONTRACTS § 240 cmt. d, illus. 5 (1981). Or the

court could have been ordering relief in the nature of restitution,

relief that does not depend on the defendant’s wrongdoing. See

DAN B. DOBBS, REMEDIES § 4.1, at 224 (1973) (“restitution is
8

generally awarded when the defendant has gained a benefit that

it would be unjust for him to keep, though he gained it

honestly”); Rapaport v. United States Dep’t of the Treasury, 59

F.3d 212, 217 (D.C. Cir. 1995). According to the “Party

Animals” announcement, $5,000 entitled PETA to have an

animal displayed in a prominent place for five months. PETA

wound up getting only one month. The District admitted at oral

argument that if PETA’s animal had never been displayed, the

District would have refunded the entire $5,000. This is

consistent with the fact that during the first four months of the

exhibit, while the District was refusing to accept PETA’s

designs, it did not cash PETA’s check.

It is true that PETA’s complaint did not seek a refund under

the terms of the program. But this is not conclusive. In addition

to the constitutional claim, brought under 42 U.S.C. § 1983, the

complaint requested “such other and further relief as the Court

may deem just and proper.” This language permits a district

court to award damages for breach of contract even when the

plaintiff has not pled a contract claim. See, e.g., U.S. Naval Inst.

v. Charter Communications, Inc., 936 F.2d 692 (2d Cir. 1991).

Federal Rule of Civil Procedure 54(c) also empowers courts to

grant the relief to which the prevailing party is entitled,

regardless whether the party specifically requested the relief in

its complaint.

We recognize the principle that when a court finds a

constitutional violation in an action seeking monetary relief

under 42 U.S.C. § 1983, the court (or jury) must at least award

nominal damages. See Farrar v. Hobby, 506 U.S. 103, 112

(1992); Memphis Community Sch. Dist. v. Stachura, 477 U.S.

299, 308 n.11 (1986); Carey v. Piphus, 435 U.S. 247, 266

(1978); Hobson v. Wilson, 737 F.2d 1, 59-60 (D.C. Cir. 1984);

Kerman v. City of New York, 374 F.3d 93, 131-32 (2d Cir.

2004); Norwood v. Bain, 143 F.3d 843, 856 (4th Cir. 1998),
9

aff’d en banc in relevant part, 166 F.3d 243 (1999); Risdal v.

Halford, 209 F.3d 1071, 1072 (8th Cir. 2000); Schneider v.

County of San Diego, 285 F.3d 784, 794 (9th Cir. 2002); Searles

v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001). We assume,

without deciding, that a district court’s award of nominal

damages -- $1 -- prevents a case from becoming moot on appeal.

See Utah Animal Rights Coalition v. Salt LakeCity Corp., 371

F.3d 1248, 1262 (10th Cir. 2004) (McConnell, J., concurring);

cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 71

(1997). Even so, in this case if the $4,000 merely represented

restitution or a refund under the terms of the “Party Animals”

program that was not dependent on a constitutional violation,

PETA has forfeited any such claim to nominal damages. See

Oliver v. Falla, 258 F.3d 1277, 1281-82 (11thCir. 2001). PETA

told the district court that if the case went to trial it would seek

damages greater than $4,000 for the District’s alleged First

Amendment violation. But the case did not go to trial; the

district court awarded only the uncontested $4,000; and PETA

did not cross-appeal.

 In short, it is unclear whether the district court’s award of

$4,000 was dependent upon its finding of a constitutional

violation. Ordinarily, we would remand the record for

clarification and end our opinion at this point. But a remand is

unnecessary if, as the District argues, its appeal from the

preliminary injunction continues to present a live controversy

under the First Amendment. See Christian Knights of Ku Klux

Klan Invisible Empire, Inc. v. Dist. of Columbia, 972 F.2d 365,

371 n.2 (D.C. Cir. 1992) (“KKK”).

The preliminary injunction clearly rested on the First

Amendment, but it expired at the close of the “Party Animals”

exhibit more than two years ago. “An appeal from an order

granting a preliminary injunction becomes moot when, because

of the defendant’s compliance or some other change in
10

circumstances, nothing remains to be enjoined through a

permanent injunction.” KKK, 972 F.2d at 369; see Univ. of

Texas v. Camenisch, 451 U.S. 390, 394-95, 398 (1981). The

District seeks to rescue its appeal in No. 03-7195 on the basis of

the doctrine that issues or wrongs “capable of repetition, yet

evading review” are not moot.

We use the words “issues or wrongs” because Supreme

Court opinions are not uniform in their description of exactly

what must be repeatable in order to save a case from mootness.

In the decision giving rise to the doctrine, the Court spoke of

“short term orders [of an agency], capable of repetition, yet

evading review.” S. Pac. Terminal Co. v. ICC, 219 U.S. 498,

515 (1911). Later cases speak not of orders, but of repetition of

the “controversy,” e.g., Olmstead v. L.C. ex rel. Zimring, 527

U.S. 581, 594 n.6 (1999); Norman v. Reed, 502 U.S. 279, 288

(1992); Int’l Org. of Masters, Mates & Pilots v. Brown, 498 U.S.

466, 473 (1991), or “the questions presented,” Sosna v. Iowa,

419 U.S. 393, 399-400 (1975). Other cases put the matter in

terms of the plaintiff suffering the “same wrong again,” Lewis

v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990); Los Angeles v.

Lyons, 461 U.S. 95, 109, 111 (1983), or being subjected to the

“same action again,” Weinstein v. Bradford, 423 U.S. 147, 149

(1975);Spencer v. Kemna, 523 U.S. 1, 17-18 (1998); Lewis, 494

U.S. at 481; Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per

curiam) (quoting Weinstein). One opinion, Honig v. Doe, 484

U.S. 305 (1988), uses several variations, see id. at 318 (same

“deprivation”); id. at 319 n.6 (same controversy); id. at 320

(same injury). For our part, we too have been less than precise,

sometimes requiring the issue, and sometimes the wrong, to be

capable of repetition. E.g., WorldCom, Inc. v. FCC, 308 F.3d 1,

10-11 (D.C. Cir. 2002) (issue); Pharmachemie B.V. v. Barr

Labs., Inc., 276 F.3d 627, 632-33 (D.C. Cir. 2002) (issue); The

Honorable John H. McBryde v. Comm. to Review Circuit

Council Conduct, 264 F.3d 52, 55 (D.C. Cir. 2001) (injury);
11

Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1128 (D.C.

Cir. 2001) (issue); KKK, 972 F.2d at 369, 370 (issue); Clarke v.

United States, 915 F.2d 699, 703-04 (D.C. Cir. 1990) (en banc)

(wrong).

We treat these various formulations as equivalent. The

“wrong” that is, or is not, “capable of repetition” must be

defined in terms of the precise controversy it spawns. To

illustrate, in the KKK case, the Klan sought a permit to march

thirteen blocks along Constitution Avenue; the District, fearing

a violent response from onlookers, granted a permit for only half

the distance; the district court issued a preliminary injunction

allowing the Klan to march the thirteen blocks. By the time the

case reached this court on the District’s appeal, the march was

over. If one defined the “wrong” as the District’s refusal to

allow the Klan to march along the entire route it requested, that

would tell us nothing about the constitutional controversy or the

likelihood of its recurrence. There are any number of reasons --

some legitimate and some not -- why the authorities might cut

back on the length of a parade: the time of the march and its

route might interfere with rush hour traffic; there might be

conflicting events; one portion of the street might be undergoing

repairs; the message of the marchers might be disfavored; and

so forth. One function of the “capable of repetition” doctrine is

to satisfy the Constitution’s requirement, set forth in Article III,

that courts resolve only continuing controversies between the

parties. Pharmachemie B.V., 276 F.3d at 633 (quoting Cent.

Soya Co. v. Consol. Rail Corp., 614 F.2d 684, 689 (7th Cir.

1980)). That function cannot be fulfilled unless the alleged

“wrong” is put in terms of the legal questions it presents for

decision. In the KKK case, the “wrong” consisted of the

District’s refusal, in alleged violation of the First Amendment,

to grant a permit because the march would provoke violence.

This is the way we defined the controversy in order to determine

whether it was “capable of repetition, yet evading review.”
12

KKK, 972 F.2d at 369-70.

For a controversy or wrong to be “capable of repetition,”

there must be at least “a reasonable expectation that the same

complaining party would be subjected to the same action again.”

Weinstein v. Bradford, 423 U.S. at 147. To discover the nature

of the alleged wrong to PETA, and the First Amendment issues

presented, we must initially look to its complaint. Clarke, 915

F.2d at 703-04 (plurality opinion). 

One thing to notice about the complaint is what is not

alleged. Donkeys and elephants are the symbols of the two

major political parties. Restricting the exhibit to these symbols

excludes the symbols of all other political parties. But there is

no allegation that for this reason the “Party Animals” program

lacked content neutrality in violation of the First Amendment.

See, e.g.,Cityof Cincinnativ.Discovery Network,Inc., 507 U.S.

410 (1993). Nor is there any charge that the Commission’s

written design criteria -- no advertising, no “social disrespect,”

no “slogans and inappropriate images” -- were unconstitutional

on their face. Rather, the complaint alleged that “[e]ach of

PETA’s proposed designs satisfied the Party Animals ‘design

criteria’ as published and as applied by the Commission.”

PETA thus concedes that the Commission “would have had

a leg to stand on in rejecting PETA’s design” if it had accepted

“only whimsical or lighthearted designs” and had rejected “all

designs with political or social messages.” Brief of Appellee at

31. But, according to PETA, the Commission did not do so.

Instead, it approved “numerous designs that were not

whimsical,” such as tributes to heroes and victims of the

September 11 terrorist attacks, and designs commemorating civil

rights leaders. Id. at 30. The Commission also approved

designs “with political or social messages or slogans,” such as

designs incorporating the “butterfly ballot” used in Palm Beach
13

County, Florida in the 2000 presidential election, and a design

covered with quotations by politicians or about politics. Id. at

11-12. PETA’s argument -- with which the district court agreed

-- is that the Commission modified its design criteria in practice

and that “Party Animals” was a “limited public forum,” at least

for those who donated $5,000 or more. Id. at 34, citing inter

alia Rosenberger v. Rector & Visitors of Univ. of Virginia, 515

U.S. 819 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993). PETA’s conclusion, with

which the district court also agreed, is that the Commission

therefore engaged in viewpoint or content discrimination, in

violation of the First Amendment, when it rejected PETA’s

designs. The District, of course, disagrees. It argues that as a

patron of the arts, the Commission had discretion to select

“those messages it wants to promote without running afoul of

the First Amendment.” Brief for Anthony Gittens, et al. at 23,

citing inter alia Finley v. Nat’l Endowment for the Arts, 524

U.S. 569 (1998); Arkansas Educ. Television Comm’n v. Forbes,

523 U.S. 666 (1998); and Rust v. Sullivan, 500 U.S. 173 (1991);

see also United States v. Am. Library Ass’n, 539 U.S. 194

(2003) (plurality opinion). The District also attempts to

distinguish the non-whimsical designs it approved, some of

which contained slogans and political messages, in order to

show that the Commission reasonably rejected PETA’s

submissions as “political billboards.” Brief for Anthony Gittens,

et al. at 31-32.

Given these claims, the controversy is highly fact-specific.

PETA thinks the decision turns on exactly what design criteria,

written and unwritten, the Commission actually employed,

whether PETA’s payment of $5,000 to be a sponsor put it on a

different track than the competition open to all artists, and

whether, in light of the Commission’s approval of numerous

designs that contained civic commentary or political messages

or non-whimsical statements, the rejection of PETA’s designs
14

constituted content or viewpoint discrimination in violation of

the First Amendment. To conclude that a dispute like this would

arise in the future requires us to imagine a sequence of

coincidences too long to credit. The District would have to

sponsor another such public arts display; it would have to call

upon private parties to participate in the design of the objects,

while it retained ownership of the resulting artwork; in light of

the particular art, PETA would have to believe it could advance

its cause by participating in the program; PETA would have to

submit a proposed design; the Commission would have to reject

it as inconsistent with Commission’s criteria; at the same time,

the Commission would have to approve other designs not

meeting its criteria; and those non-conforming designs would

have to be analogous to the design PETA submitted.

We are told that after “Party Animals,” the District

sponsored “PandaMania” -- an outdoor exhibit of sculptures of

panda bears designed by private artists. We also know that New

York City had an outdoor exhibit of decorated cows, that one of

PETA’s two designs was rejected, that it sued for injunctive

relief (and damages), and lost. People for the Ethical Treatment

of Animals v. Giuliani, 105 F. Supp. 2d 294 (S.D.N.Y. 1993).

We think both of these events tends to demonstrate that the

issues here would not recur.

As to “PandaMania,” it too was an outdoor animal exhibit

run by the District. But for reasons not in the record, PETA did

not participate in it. As to the cow exhibit in New York, the

issues in PETA’s suit were different than those presented here.

There was no credible evidence that the New York authorities

had engaged in viewpoint discrimination by requiring PETA to

adhere strictly to certain design criteria while the authorities

departed from the criteria for other submissions. Yet, as

PETA’s arguments in this court reveal, such evidence is at the

heart of its case against the District. There are other significant
15

differences but we see no need to dwell on them. The essential

point is that the case before us is highly dependent upon a series

of facts unlikely to be duplicated in the future. We have

recognized before that a “legal controversy so sharply focused

on a unique factual context” would rarely “present ‘a reasonable

expectation that the same complaining party would be subjected

to the same actions again.’” Spivey v. Barry, 665 F.2d 1222,

1234-35 (D.C. Cir. 1981) (quoting Weinstein, 423 U.S. at 149).

But if we are wrong about the possibility of repetition, we

would still find the preliminary injunction moot because we are

unconvinced that if a controversy of this sort occurred again it

would evade judicial review. It is fair to assume that in any

future action against the District, PETA would sue for an

injunction and damages under 42 U.S.C. § 1983, which

authorizes equitable relief and compensatory damages against

any “person” who, under color of law, deprives another of a

constitutional right. See Stachura, 477 U.S. at 309-10.

Municipalities may be considered “persons” liable under § 1983

“only if their agents acted pursuant to municipal policy or

custom.” Warren v. Dist. of Columbia, 353 F.3d 36, 38 (D.C.

Cir. 2004). The District of Columbia is a municipality for the

purpose of§ 1983. See Brown v. United States, 742 F.2d 1498,

1500 n.2 (D.C. Cir. 1984) (en banc). The action of an official

with final decision-making authority in a particular area can

amount to a municipal “policy.” See McMillian v. Monroe

County, 520 U.S. 781 (1997); Bd. of Comm’rs v. Brown, 520

U.S. 397 (1997); Pembaur v. Cincinnati, 475 U.S. 469 (1986).

If PETA brought such a suit in the future, the controversy

would not evade review in this court, or in the Supreme Court.

See KKK, 972 F.2d at 369-70. The grant or denial of

compensatory damages for a constitutional violation would

prevent the case from becoming moot after the exhibit ended.

Arkansas Educational Television Commission v. Forbes, 523
16

U.S. 666 (1998), illustrates the point. A state-owned public

broadcaster sponsored a debate between the Republican and

Democratic candidates in an upcoming congressional election.

Forbes, an independent candidate, brought an action against the

broadcaster, claiming that it had violated the First Amendment

by excluding him. The district court denied a preliminary

injunction and the debate went forward without him. But the

case remained alive, in the court of appeals and in the Supreme

Court, because Forbes coupled his injunction action with a claim

for damages under § 1983. See, e.g., Powell v. McCormack, 395

U.S. 486, 497-98 (1969).

In short, the First Amendment controversy in this case

cannot be treated as capable of repetition but evading review.

Mootness may be avoided only if the district court, on remand

of the record, determines that the $4,000 award to PETA was

contingent on the District’s alleged violation of the First

Amendment.

The appeal in No. 03-7190 is therefore dismissed, see FED.

R. CIV. P. 58(a). The appeal in No. 02-7106 is dismissed as

moot. In No. 03-7195, the record is remanded to the district

court to clarify whether its $4,000 award rested on its finding of

a First Amendment violation. See D.C. CIR. R. 41(b); United

States v. Williams, 754 F.2d 1001, 1002-03 (D.C. Cir. 1985).

So ordered.
ROGERS, Circuit Judge, concurring in part and dissenting in

part: While the court must take care to ensure that a

constitutional issue is properly before it, Op. at 6, the court

strains, in my view, to remand the record premised on a

contorted reading of the district court’s opinion. Id. at 7-8. In

addition, the court reaches the unfounded conclusion that PETA

has forfeited any claim to nominal damages for the violation of

its First Amendment rights, and ignores PETA’s claim for

compensatory damages. Id. at 9. Because there is no occasion

for a remand, I respectfully dissent to the remand in No. 03-

7195.

The district court’s Memorandum Opinion and Order

granting summary judgment to PETA found that the District of

Columbia had violated PETA’s First Amendment rights; the

district court found no other violation as a basis for granting

judgment to PETA. In what this court styles as “[t]he operative

portion of the district court’s opinion,” the district court in

awarding PETA judgment refers to PETA’s claim that “it should

be awarded money damages for its loss of First Amendment

rights,” and refers to its own monetary award as “$4,000 in

damages.” Id. at 6-7 (quoting the district court). The district

court’s language is precise - it awarded “damages,” and in an

amount that is not nominal. While the district court also refers

to “a refund” in recounting PETA’s argument, the district

court’s reference is to “a refund, in essence,” suggesting an

effort to quantify the amount of damages, and not, as the court

speculates, to award a refund on a separate and non-existent

contract claim. See id. at 7. The qualified reference in

recounting a party’s argument presents no basis to go behind the

district court’s plain words. 

In holding that the district court was empowered to grant a

refund even though PETA did not specifically request a contract

remedy, the court relies on Federal Rule of Civil Procedure
2

54(c), Op. at 8, which provides that “every final judgment shall

grant the relief to which the party in whose favor it is rendered

is entitled, even if the party has not demanded such relief in the

party’s pleadings.” However, Rule 54(c) does not provide that

the court may award relief for a new, unstated claim. To the

contrary, Federal Rule of Civil Procedure 8(a)(2) requires a

complaint to state “the claim showing that the pleader is entitled

to relief,”Fed. R. Civ. P. 8(a)(2), see Conley v. Gibson, 355 U.S.

41, 47 (1957), and after judgment on the merits it is too late to

inject a new contractual claim into the litigation. The court’s

reliance on United States Naval Institute v. Charter

Communications, Inc., 936 F.2d 692 (2d Cir. 1991), Op. at 8, is

misplaced, for the Second Circuit was determining the relief to

which a party already had been deemed “entitled” to recover for

a breach of contract, and mentioned Rule 54(c) only in that lawof-the-case context. U.S. Naval Inst., 936 F.2d at 696.

Additionally, the court’s conclusion that PETA forfeited its

claim for nominal damages is unfounded. While the court

purports to recognize the principle that PETA would be entitled

to at least an award of nominal damages for the violation of its

First Amendment rights, Op. at 8, the court avoids deciding

whether this entitlement would prevent mootness, if the district

court advises on remand that the $4,000 constitutes only a

refund, by holding that PETA has forfeited such claim. Id. at 9.

The court unreasonably concludes that PETA should have

recognized the contorted reading the court gives the district

court’s award of “$4,000 in damages” and filed a cross-appeal

for nominal damages. See id. The court points to PETA’s

statement that if the case went to trial it would seek “damages

greater than $4,000.” Id. But this statement evinces PETA’s

view that the amount it would be awarded upon the grant of

summary judgment would be damages, not a refund on a

contract claim. PETA’s statement clearly is not an intentional

and knowing waiver of a right, see, e.g., Johnson v. Zerbst, 304
3

U.S. 458, 464 (1938), but it also is not a forfeiture, which can

arise only upon the “failure to make the timely assertion of a

right.” United States v. Olano, 507 U.S. 725, 733 (1993). 

PETA timely sought compensatory or, alternatively,

nominal damages in the district court. PETA’s amended

complaint, filed pursuant to 42 U.S.C. § 1983 and the

Declaratory Judgment Act, 28 U.S.C. § 2201-2002, requested

“actual damages for the loss of its First Amendment rights as it

may prove at trial, or at a minimum nominal damages;” its

motion for summary judgment sought “damages in the amount

of $4,000 as compensation for [the First Amendment]

violation.” Without notice that the award of “$4,000 in

damages” might only be a refund, PETA cannot have forfeited

its claim for compensatory or nominal damages when it did not

cross-appeal. See Banks v. Horn, 271 F.3d 527, 534 (3d Cir.

2001), rev’d on other grounds, Horn v. Banks, 536 U.S. 266

(2002). No Federal Rule put PETA on notice that a cross-appeal

for compensatory or nominal damages was necessary. Cf. Fed.

R. Civ. P. 51(a) & (c); Penn. v. Harris, 296 F.3d 573, 577 (7th

Cir. 2002); Oliver v. Falla, 258 F.3d 1277, 1281-82 (11th Cir.

2001); Alexander v. Riga, 208 F.3d 419, 429 (3d Cir. 2000),

cert. denied, 531 U.S. 1069 (2001). Rule 54(c), relied on by the

court, Op. at 8, does not suggest that PETA’s requested relief for

“damages in the amount of $4,000 as compensation” for

violation of its First Amendment rights -- to which the district

court found PETA was “entitled” -- can be ignored because

PETA’s complaint also includes boilerplate language requesting

such other relief as may be appropriate. See Op. at 8. 

Under the circumstances, there was no reason for PETA to

suppose that it had not been awarded compensatory damages,

much less any damages, for the violation of its First Amendment

rights, particularly as such supposition would impute legal error

to the district court, and to cross-appeal for an award of
4

compensatory or nominal damages. But even assuming a

forfeiture of a claim for nominal damages, were the district court

on remand to advise that its award to PETA of “$4,000 in

damages” was, in fact, only a refund on a contractual claim,

PETA’s claim for compensatory damages would remain.

PETA’s constitutional claim, then, could not be dismissed on

mootness grounds. Op. at 7 (citing Powell v. McCormack, 395

U.S. 486, 497-98 (1969)). The reason for a remand thus

evaporates. 

I concur in the dismissal of the District of Columbia’s

appeal in No. 03-7190 from the November 2003 memorandum

opinion and order granting summary judgment. Id. at 16. While

I concur in dismissing the appeal in No. 02-7106 from the order

granting the preliminary injunction as moot, id. at 10, 16, I do so

only to the extent that the court concludes PETA’s First

Amendment claim is not an issue evading judicial review. Id. at

15.