In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1079

ELTON GATES and LUSTER NELSON,

individually and on behalf of a class,

Plaintiffs-Appellees,

v.

B. TOWERY, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 C 2155—Ruben Castillo, Judge.

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ARGUED SEPTEMBER 8, 2005—DECIDED NOVEMBER 29, 2005

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge. In this interlocutory appeal

under Fed. R. Civ. P. 23(f), the City of Chicago contends

that the district judge should not have certified a class. (We

refer to all defendants as Chicago; the other defendants are

public employees represented by the City.) Certification is

improper, Chicago maintains, because the case is moot;

according to the City, a tender of full compensation to both

representative plaintiffs before a class had been certified

ended the controversy. Although expiration of a representative’s personal claims after certification does not halt the
2 No. 05-1079

litigation if other class members have live interests, see

Indianapolis School Commissioners v. Jacobs, 420 U.S. 128

(1975), pre-certification mootness leaves at most an opportunity for new parties to intervene and carry on. See United

States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). As

no other champion has appeared, the City contends that the

class certification is improper. The district judge, however,

concluded that the proffered relief was incomplete and that

the original plaintiffs’ claims remain justiciable.

A great deal of ink has been spilled in the appellate briefs

addressing the question whether plaintiffs’ demand for

attorneys’ fees staves off mootness. Chicago argues that it

does not—not only because (in its view) Buckhannon Board

& Care Home, Inc. v. West Virginia Dep’t of Health &

Human Resources, 532 U.S. 598 (2001), forecloses an award,

but also because a quest for fees does not justify a substantive adjudication made unnecessary by the mootness of the

original claim. “The mere fact that continued adjudication

would provide a remedy for an injury [the cost of legal

services] that is only a byproduct of the suit itself does not

mean that the injury is cognizable under Art. III.” Diamond

v. Charles, 476 U.S. 54, 70-71 (1986). See also, e.g., Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83, 107-08

(1998); Lewis v. Continental Bank Corp., 494 U.S. 472, 480

(1990). But see Citizens for a Better Environment v. Steel

Co., 230 F.3d 923 (7th Cir. 2000) (discussing limits on this

principle). How Buckhannon applies to situations of the

kind presented here is a complex question that we need not

address. Nor need we decide whether (and, if so, when)

defendants are entitled to pay off representative plaintiffs and decapitate the class, because the City’s tender was

incomplete and the representatives’ personal claims

survive. Cf. Deposit Guaranty National Bank v. Roper, 445

U.S. 326 (1980); Holstein v. Chicago, 29 F.3d 1145, 1147

(7th Cir. 1994).
No. 05-1079 3

Plaintiffs challenge the procedures that Chicago uses

for dealing with property that the police seize when making

custodial arrests. The police give each person a receipt for

whatever has been taken. This receipt says that the person

will be notified when the property can be retrieved. At the

time Elton Gates and Luster Nelson (the two plaintiffs)

were arrested, however, Chicago systematically failed to

carry through with that promise. Neither Gates nor Nelson

received notice, even though the City does not assert any

entitlement to retain the property ($113 in cash taken from

Gates and $59 from Nelson). Each inquired at the

stationhouse where he had been taken following his arrest;

each received a runaround. Police said that the money

would be returned only after the arresting officer agreed to

do so and signed an appropriate form. This was baloney—but the desk officers’ insistence sent Gates and Nelson

on futile searches for the arresting officers, who never

seemed to be at the stationhouses when they called, and

who never signed any release papers.

After Gates and Nelson filed this suit contending that

Chicago violates the due process clause of the fourteenth

amendment by retaining property to which it has no right,

failing to notify the owners, and making return depend

on the whim of the arresting officer, Chicago responded that

each should have asked the judge in the criminal prosecution to order the money’s return (or perhaps filed an

independent civil suit against the City)—though this is not

what the inventory receipt and its own Police Department

told them to do. Chicago has since changed the language on

the receipts and may have instructed the police to stop

misleading arrestees about how to get their property back.

But the plaintiffs maintain that they and the class of other

persons whose property is still in Chicago’s possession are

entitled not only to damages but also to prospective relief

notwithstanding the City’s new policies.
4 No. 05-1079

Plaintiffs sought, for themselves and the class: (a) return

of the seized property; (b) prejudgment interest; (c) compensatory damages for any injury attributable to loss of the

property’s use; and (d) compensation for the value of their

time devoted to its retrieval. Counsel for the City sent

Gates a check for $113; the cover letter promised that

interest would follow. A check for $59 to Nelson

(and another promise of interest) came later. Counsel

for plaintiffs returned these checks because the City had

omitted costs and damages (not to mention attorneys’

fees—which we won’t mention again). Plaintiffs paid more

than $172 (the total of the checks) to commence the litigation; the City’s tenders would leave them net losers.

A tender is insufficient unless it makes the plaintiff whole

and thus must include the filing fees and other costs under

28 U.S.C. §1920. Cf. Fed. R. Civ. P. 68. And a promise of

interest tomorrow differs from cash today; Chicago has a

history of delay in payment, see Evans v. Chicago, 10 F.3d

474 (7th Cir. 1993) (en banc), so a prudent litigant may

attach a steep discount to a promise unaccompanied by a

check. Especially because the City denies that interest is

owed but offers it only as a goodwill gesture.

Then there is the matter of damages. Chicago contends that neither the Constitution nor any statute entitles

anyone to damages. That’s not correct: a person whose

rights under the due process clause have been violated

receives nominal damages if he cannot show out-of-pocket

loss or other concrete injury. See Carey v. Piphus, 435 U.S.

247, 266-67 (1978). The City did not tender even $1 for

nominal damages.

Cash on the barrelhead to cover costs, interest, and

nominal damages still would not be enough, because

plaintiffs want compensatory damages (if not punitive

damages). Chicago maintains that they have not established any compensable loss, but this gets the cart before
No. 05-1079 5

the horse. A court may resolve such an issue if and only

if there is a live controversy. A defendant cannot demand and receive an opinion on the merits of some aspect of

plaintiffs’ claims, pay off the rest, and then contend the

whole suit is moot and must be dismissed, consigning the

opinion to advisory status. Cf. Johnson v. Wattenbarger, 361

F.3d 991 (7th Cir. 2004). To eliminate the controversy and

make a suit moot, the defendant must satisfy the plaintiffs’

demands; only then does no dispute remain between the

parties.

Chicago is unwilling to satisfy plaintiffs’ demands. Gates,

Nelson, and others similarly situated are entitled to a

judge’s decision on what if any relief (in addition to return

of the seized funds) is appropriate. Perhaps the City is right

in thinking that prejudgment interest is all the compensation due and makes nominal damages unavailable because

interest represents actual damages from loss of the property’s use. Still, this is a question for the district judge to

resolve on the merits. A defendant cannot simply assume

that its legal position is sound and have the case dismissed

because it has tendered everything it admits is due.

Mootness occurs when no more relief is possible. That point

has not been reached.

To say, as Chicago does, that a class may not be certified

because no more relief is proper is to miss the distinction

between being in the right and the absence of a case or

controversy. By Chicago’s lights, unsuccessful lawsuits

should be dismissed as moot (because the defendant

owes nothing) rather than decided on the merits. That’s not

the way things work: A bad theory (whether of liability or

of damages) does not undermine federal jurisdiction. See

Bell v. Hood, 327 U.S. 678 (1946).

It may be that the changes in Chicago’s operating procedures would make prospective relief inappropriate—indeed,

Gates and Nelson lack standing to seek it, because they do
6 No. 05-1079

not contend that they are likely to be arrested again. See

Los Angeles v. Lyons, 461 U.S. 95 (1983); Campbell v.

Miller, 373 F.3d 834 (7th Cir. 2004). To the extent that they

want an injunction requiring the City to compensate them

for past losses, they are on a snipe hunt. There’s no such

animal, beyond the equitable remedy of restitution—and

the City stands ready to hand over the amounts it seized, in

order to avoid unjust enrichment. If the constitutional

sufficiency of the City’s current policies is in dispute, some

person adversely affected by them (as Gates and Nelson are

not) will have to take up the cause. But Gates and Nelson

are adequate representatives of persons financially injured

by the City’s old policies and practices; there is no good

reason why the suit cannot proceed as a class action.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-29-05