Money as a "Specific" Remedy

A fundamental distinction in the law of remedies is the difference between specific and substitutionary relief. Specific relief gives the plaintiff the original thing to which the plaintiff is or was entitled; substitutionary relief gives the plaintiff something other than its original entitlement. The most common form of substitutionary relief is money. The typical scenario is that the defendant has violated a legal entitlement belonging to the plaintiff - such as a personal, proprietary, dignitary, or economic entitlement - and the court awards money for the resulting harm. The money is substitutionary in the sense that the defendant cannot or does not restore the plaintiff's original entitlement. Sometimes, however, a monetary remedy is specific relief. For example, if the plaintiff has not been paid for goods sold to the defendant, a court award for the amount owed gives the very thing - money - to which the plaintiff was originally entitled. The concept that monetary remedies can afford either specific or substitutionary relief often is misunderstood or misapplied. One aspect of the problem is that the general dichotomy between specific and substitutionary relief is not fully appreciated or is confused with other concepts such as the differences between equitable and legal remedies or between prospective and retrospective remedies. Another source of confusion is use of the term damages, a word often applied to monetary remedies but one that is laden with a variety of meanings. "Damages" sometimes is used in such a broad sense that it encompasses specific monetary relief, while at other times it is used in the narrow sense of substitutionary monetary relief only. Discerning the meaning of damages that applies in a given context often is the key to proper categorization of the monetary remedy. The distinction between specific and substitutionary monetary relief has significant practical consequences when the government is a litigant. In suits challenging action by federal agencies, the Administrative Procedure Act permits jurisdiction in federal district courts if the plaintiff seeks relief other than money damages. The Supreme Court has interpreted money damages under the statute as covering only substitutionary relief; the term does not encompass specific monetary remedies. Under Federal Rule of Criminal Procedure 41(g), a plaintiff whose property has been seized by the government may, in appropriate circumstances, obtain return of the property. Most courts have determined that a person under the rule may not seek damages but may obtain return of specific money seized, even if the government no longer has the plaintiff's particular bills or coins. Yet another illustration involves a federal statute of limitations that applies to the government's filing of contract claims for money damages. The courts have divided as to whether this language includes claims for specific monetary relief. Additional practical consequences result if a court confuses specific relief with equitable or prospective relief, or confuses substitutionary relief with legal or retrospective relief. If a court mistakenly assumes that a retrospective monetary remedy is necessarily money damages rather than specific relief, the plaintiff will be unable under the APA to pursue the claim in federal district court. If a court erroneously characterizes a monetary remedy as equitable simply because it affords specific relief, a litigant may be denied the constitutional right to jury trial. If a court deems a monetary remedy to be legal simply because it can be considered damages, a plaintiff may be barred from relief under a statute that authorizes only equitable remedies. This article attempts to clarify the distinctions between specific and substitutionary monetary remedies and the relationship between specific monetary relief and the various meanings of damages.