Tayler Bayer v. Neiman Marcus Group, Inc. , 861 F.3d 853 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAYLER BAYER, No. 15-15287
Plaintiff-Appellant,
D.C. No.
v. 3:13-CV-04487-MEJ
NEIMAN MARCUS GROUP, INC.,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, United States Magistrate Judge,
Presiding
Argued and Submitted February 13, 2017
San Francisco, California
Filed June 26, 2017
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Robert W. Pratt,* District Judge.
Opinion by Judge Pratt
*
The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
2 BAYER V. NEIMAN MARCUS GROUP
SUMMARY**
Labor Law
The panel reversed the district court’s order granting
summary judgment on mootness grounds to the defendant in
a suit alleging interference with the plaintiff’s exercise of his
rights under the Americans with Disabilities Act in violation
of 42 U.S.C. § 12203(b).
The panel concluded that the district court had the power
to award the plaintiff only equitable remedies under
§ 12203(b).
The plaintiff sought an injunction prohibiting the
defendant, his former employer, from attempting to coerce,
intimidate, or threaten employees into waiving their rights
under the Americans with Disabilities Act by consenting to
be bound to an arbitration agreement. In another case, the
court had held that the arbitration agreement was not binding
on the plaintiff. The panel held that the claim for injunctive
relief was moot because the plaintiff had neither shown that
he was reasonably likely to be subjected once again to the
conduct alleged as the basis for his claim nor shown that he
could reasonably be expected to benefit from the injunctive
relief he sought.
The panel held that the plaintiff’s claims for equitable
monetary relief and for a declaration that the arbitration
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BAYER V. NEIMAN MARCUS GROUP 3
agreement was unlawful, invalid, and unenforceable also
were moot.
The panel reversed the district court’s ruling that nominal
damages were not available to the plaintiff because they were
only a legal remedy. The panel held that nominal damages
may be awarded as an equitable remedy under § 12203. The
panel therefore reversed the district court order finding the
case moot and granting summary judgment to the defendant,
and remanded for further proceedings.
COUNSEL
Cliff Palesfsky (argued) and Keith Ehrman, McGuinn
Hillsman & Palefsky, San Francisco, California; Michael
Rubin, Altshuler Berzon LLP, San Francisco, California; for
Plaintiff-Appellant.
Dylan B. Carp (argued), Conor Dale, and Mitchell Boomer,
Jackson Lewis, San Francisco, California; Katrin U. Schatz,
Jackson Lewis, Dallas, Texas; for Defendant-Appellee.
4 BAYER V. NEIMAN MARCUS GROUP
OPINION
PRATT, District Judge:
Plaintiff-Appellant Tayler Bayer appeals from a district
court order granting summary judgment on mootness grounds
to his former employer, Defendant-Appellee Neiman Marcus
Group, Inc. (Neiman Marcus), in a suit alleging interference
with the exercise of his rights under the Americans with
Disabilities Act (ADA) in violation of 42 U.S.C. § 12203(b).
For the reasons that follow, we reverse and remand for further
proceedings.
I. Factual Background
Neiman Marcus owns and operates a chain of retail
department stores that sell luxury goods. From March 2006
to January 2009, Bayer was employed by Neiman Marcus in
the cosmetics department of its store in San Francisco,
California. Bayer filed three charges with the Equal
Employment Opportunity Commission (EEOC) stemming
from events related to his employment with Neiman Marcus,
each alleging a distinct violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. Each of these
charges eventually became the basis for a separate lawsuit.
The present appeal concerns only one of these suits, but
determining whether that action is moot requires an
examination of the relationship among them.
Neiman Marcus hired Bayer in March 2006. At first,
Bayer worked five days per week for six hours per day, and
Neiman Marcus considered him to be a full-time employee
entitled to certain benefits not available to employees
working fewer than thirty hours per week. About one year
BAYER V. NEIMAN MARCUS GROUP 5
after Bayer was hired, however, he took medical leave
because he was suffering from emphysema. Months later,
Bayer’s physician authorized his return to work but restricted
him to working no more than four days per week. Neiman
Marcus provided a scheduling accommodation, but a dispute
arose between the parties concerning its reasonableness, as it
would have caused Bayer to lose his full-time employee
status. In June 2007, Bayer filed a charge of discrimination
with the EEOC alleging Neiman Marcus had failed to
reasonably accommodate his disability in violation of the
ADA.
Events that took place around the time Bayer filed his first
charge with the EEOC formed the basis for his second one.
In June 2007, Neiman Marcus mailed packages to its
employees notifying them that it had adopted an alternative
dispute resolution program. Each package included a
memorandum indicating Neiman Marcus had implemented a
“mandatory conflict resolution program” for all its employees
and a booklet setting forth in detail the terms of its new
“mandatory arbitration agreement.” These documents
expressly stated the new arbitration agreement was not
optional but required as a condition of continued employment
with Neiman Marcus after July 15, 2007. They further stated
that any employee who continued employment with Neiman
Marcus on or after July 15, 2007, would be deemed to have
accepted the arbitration agreement.
Neiman Marcus provided employees with forms by which
they were to acknowledge that the arbitration agreement was
a mandatory condition of their continued employment. Bayer
informed Neiman Marcus that he refused to sign an
acknowledgment form or otherwise agree to be bound by the
arbitration agreement. Bayer believed that being bound by
6 BAYER V. NEIMAN MARCUS GROUP
the agreement would cause him to lose various rights
afforded him under the ADA, including rights related to the
then-pending reasonable-accommodation charge he had filed
with the EEOC. He thus filed a second charge with the
EEOC in July 2007, alleging that Neiman Marcus was
unlawfully interfering with his ADA rights by requiring him
to agree to be bound by the arbitration agreement as a
condition of his continued employment. The date on which
the arbitration agreement was to become a mandatory
condition of employment with Neiman Marcus passed, and
Bayer maintained his refusal to be bound by the arbitration
agreement yet continued to work for Neiman Marcus.
Months later, in October 2007, the EEOC issued Bayer a
right-to-sue letter regarding the discrimination charge
alleging Neiman Marcus had failed to reasonably
accommodate his disability in violation of the ADA.
Thereafter, in January 2008, Bayer filed his first suit against
Neiman Marcus. See Bayer v. Neiman Marcus Holdings,
Inc., No. 4:08-CV-00480-PJH (N.D. Cal. dismissed Apr. 9,
2008). The parties ultimately settled their underlying dispute,
however, and the reasonable-accommodation suit was
dismissed in April 2008.
Throughout the duration of the first suit Bayer filed
against Neiman Marcus, the EEOC investigation into the
second charge Bayer had filed alleging unlawful interference
with his ADA rights continued. In January 2009, while that
investigation was still ongoing, Neiman Marcus terminated
Bayer. Bayer subsequently filed a third charge with the
EEOC in August 2009, alleging Neiman Marcus had
terminated him in retaliation for his opposition to its unlawful
conduct in violation of the ADA. In April 2011, the EEOC
issued Bayer a right-to-sue letter in connection with the
BAYER V. NEIMAN MARCUS GROUP 7
retaliation charge, and Bayer filed his second suit alleging
retaliatory discharge against Neiman Marcus in July 2011.
See Bayer v. Neiman Marcus Group, Inc., No. 3:11-CV-
03705-MEJ (N.D. Cal. dismissed June 2, 2015). In
November 2011, the district court denied a motion to compel
arbitration filed in that suit by Neiman Marcus on the ground
that Bayer had never consented to be bound by the arbitration
agreement. Bayer v. Neiman Marcus Holdings, Inc., No.
3:11-CV-03705-MEJ, 2011 WL 5416173, at *7 (N.D. Cal.
Nov. 8, 2011). Neiman Marcus filed an interlocutory appeal
of the district court ruling.
In July 2013, while the interlocutory appeal in the
retaliatory-discharge suit was pending, the EEOC issued
Bayer a right-to-sue letter in connection with his allegation
that Neiman Marcus had unlawfully interfered with his ADA
rights, more than six years after Bayer filed his second charge
of discrimination.1 Bayer then filed this suit alleging Neiman
Marcus unlawfully interfered with his ADA rights by
requiring him to consent to be bound by the arbitration
agreement as a condition of his continued employment.
Bayer v. Neiman Marcus Grp., Inc., No. 3:13-CV-04487-MEJ
(N.D. Cal. filed Sept. 27, 2013). In his complaint, Bayer
sought damages, attorney fees and costs, an injunction
prohibiting Neiman Marcus from attempting to intimidate
employees and potential employees into waiving their ADA
rights, a declaration that the mandatory arbitration agreement
1
Though Bayer did not receive his right-to-sue letter until July 2013,
the EEOC had apparently concluded its investigation years earlier. In
June 2009, the EEOC issued a determination concluding there was
“reasonable cause” to believe Neiman Marcus had discriminated against
Bayer and other former, current, and future employees based on their
protected status by subjecting them to the mandatory arbitration
agreement.
8 BAYER V. NEIMAN MARCUS GROUP
is unenforceable, and such other relief as the district court
deemed proper.
In July 2014, this Court affirmed the district court ruling
in the retaliatory-discharge suit that the arbitration agreement
was not binding as to Bayer. See Bayer v. Neiman Marcus
Holdings, Inc., 582 F. App’x 711, 714 (9th Cir. 2014).
Thereafter, the district court hearing this action granted
summary judgment in favor of Neiman Marcus and dismissed
the action as moot, concluding “there no longer exists a
present controversy between the parties as to which effective
relief can be granted.” Bayer timely appealed the final
judgment of the district court.
II. Standard of Review
We review a district court grant of summary judgment de
novo. Grand Canyon Trust v. U.S. Bureau of Reclamation,
691 F.3d 1008, 1016 (9th Cir. 2012). We likewise review a
district court decision regarding subject matter jurisdiction de
novo. Id. We therefore review de novo the district court
decision granting summary judgment and dismissing this
action for mootness. See Ruiz v. City of Santa Maria,
160 F.3d 543, 548 (9th Cir. 1998).
III. Discussion
Article III of the United States Constitution limits the
jurisdiction of the federal courts to “Cases” and
“Controversies.” See U.S. Const. art. III, § 2, cl. 1.
The case or controversy requirement, which
constitutes “the irreducible constitutional
minimum of standing,” requires that a
BAYER V. NEIMAN MARCUS GROUP 9
plaintiff 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.”
Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir.
2010) (citation omitted) (first quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d
351 (1992); then quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S. Ct.
693, 145 L. Ed. 2d 610 (2000)). “The doctrine of mootness,
which is embedded in Article III’s case or controversy
requirement, requires that an actual, ongoing controversy
exist at all stages of federal court proceedings.” Pitts v.
Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011)
(citing Burke v. Barnes, 479 U.S. 361, 363, 107 S. Ct. 734,
93 L. Ed. 2d 732 (1987)). Because the power of a federal
court to decide the merits of a claim ordinarily evaporates
whenever a prerequisite to standing disappears, the doctrine
of mootness has been described as “the doctrine of standing
set in a time frame.” Native Village of Noatak v. Blatchford,
38 F.3d 1505, 1509 (9th Cir. 1994) (quoting United States
Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S. Ct.
1202, 63 L. Ed. 2d 479 (1980)). “The basic question in
determining mootness is whether there is a present
controversy as to which effective relief can be granted.”
Ruiz, 160 F.3d at 549 (quoting Nw. Envtl. Def. Ctr. v.
Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)).
10 BAYER V. NEIMAN MARCUS GROUP
The party asserting mootness bears the heavy burden of
establishing that there remains no effective relief a court can
provide. Forest Guardians v. Johanns, 450 F.3d 455, 461
(9th Cir. 2006). An action “becomes moot only when it is
impossible for a court to grant any effectual relief whatever
to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, ___,
133 S. Ct. 1017, 1023, 185 L. Ed. 2d 1 (2013) (quoting Knox
v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298,
___, 132 S. Ct. 2277, 2287, 183 L. Ed. 2d 281 (2012)) (citing
Church of Scientology of Cal. v. United States, 506 U.S. 9,
12, 113 S. Ct. 447, 121 L. Ed. 2d 313 (1992)). “The question
is not whether the precise relief sought at the time the case
was filed is still available,” but “whether there can be any
effective relief.” McCormack v. Herzog, 788 F.3d 1017,
1024 (9th Cir. 2015) (alteration omitted) (quoting Siskiyou
Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559
(9th Cir. 2009)).
A. Available Remedies
Because mootness turns on the ability of the district court
to award effective relief, we first consider the question of
what remedies were available to Bayer. In this action, Bayer
alleges Neiman Marcus violated § 12203(b) of the ADA.
Section 12203(b) provides,
It shall be unlawful to coerce, intimidate,
threaten, or interfere with any individual in
the exercise or enjoyment of, or on account of
his or her having exercised or enjoyed, or on
account of his or her having aided or
BAYER V. NEIMAN MARCUS GROUP 11
encouraged any other individual in the
exercise or enjoyment of, any right granted or
protected by this chapter.
42 U.S.C. § 12203(b).
Section 12203(c) provides that the procedures and
remedies available to redress § 12203(b) violations include
those available under 42 U.S.C. §§ 12117, 12133, and 12188,
the enforcement provisions contained within Titles I, II, and
III of the ADA, respectively. See id. § 12203(c). Each of
these sections in turn references the procedures and remedies
set forth in other statutes. See id. §§ 12117, 12133, 12188.
Whereas §§ 12133 and 12188 address ADA enforcement in
the context of public services and public accommodations,
§ 12117 addresses ADA enforcement in the employment
context. Thus, to determine the remedies available to an
individual alleging an employer interfered with his or her
ADA rights in violation of § 12203, we turn to § 12117. See
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264 (9th
Cir. 2009).
Rather than explicitly setting forth the precise procedures
and remedies available thereunder, § 12117 references
42 U.S.C. §§ 2000e-4 through 2000e-9, provisions contained
within Title VII of the Civil Rights Act of 1964. Among
those provisions is the primary enforcement provision in Title
VII, 42 U.S.C. § 2000e-5(g), which authorizes any court that
finds a defendant engaged in an unlawful employment
practice to “enjoin the [defendant] from engaging in such
unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but is not
limited to, reinstatement or hiring of employees, with or
12 BAYER V. NEIMAN MARCUS GROUP
without back pay . . . , or any other equitable relief as the
court deems appropriate.”
Prior to the enactment of the Civil Rights Act of 1991,
Title VII of the Civil Rights Act of 1964 authorized courts to
award only equitable remedies. Landgraf v. USI Film Prods.,
511 U.S. 244, 252, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
With the enactment of the Civil Rights Act of 1991, Congress
expanded the remedies available to redress certain Title VII
violations, making available compensatory and punitive
damages in actions brought under § 2000e-5(g). See Lutz v.
Glendale Union High Sch., 403 F.3d 1061, 1068 (9th Cir.
2005); see also 42 U.S.C. § 1981a(a)(1). In the same act,
Congress made available compensatory and punitive damages
in the context of disability claims brought under specified
sections of the ADA. Alvarado, 588 F.3d at 1264; see
42 U.S.C. § 1981a(a)(2). Because Congress did not specify
in the act that such damages were to be available in the
context of ADA claims brought under § 12203, this Court
held that such claims remain “redressable only by equitable
relief” in Alvarado, 588 F.3d at 1264–70.2
2
The Fourth and Seventh Circuits have also concluded that § 12203
claims are redressable only by equitable relief. See Kramer v. Banc of
Am. Securities, LLC, 355 F.3d 961, 965–66 (7th Cir.), cert. denied,
542 U.S. 932, 124 S. Ct. 2876, 159 L. Ed. 2d 798 (2004); Rhoads v. FDIC,
94 Fed. App’x 187, 188 (4th Cir. 2004) (per curiam) (unpublished).
Though no other circuit has expressly held to the contrary, we note the
Eighth Circuit appears to have twice assumed without deciding that
damages constitute an available remedy for claims brought under § 12203.
See Salitros v. Chrysler Corp., 306 F.3d 562, 574–76 (8th Cir. 2002);
Foster v. Time Warner Entm’t Co., L.P., 250 F.3d 1189, 1198 (8th Cir.
2001).
BAYER V. NEIMAN MARCUS GROUP 13
In light of Alvarado, the parties agree that the district
court had the power to award Bayer only equitable remedies.3
Furthermore, because Bayer concedes that Alvarado
constrains the remedies available to him to equitable
remedies, he does not challenge the district court’s conclusion
that his request for compensatory damages is insufficient to
save this action from mootness.
B. Analysis
Bayer argues this action is not moot because the district
court had discretion to award him any one of several forms of
effective equitable relief. In determining whether a requested
remedy constitutes equitable relief, we look to the substance
or character of the remedy sought, not the label placed upon
it. See Reynolds Metals Co. v. Ellis, 202 F.3d 1246, 1248
(9th Cir. 2000) (quoting FMC Med. Plan v. Owens, 122 F.3d
1258, 1261 (9th Cir. 1997) (citing Mertens v. Hewitt Assocs.,
508 U.S. 248, 255, 113 S. Ct. 2063, 124 L. Ed. 2d 161
(1993)).
1. Injunctive Relief
Injunctive relief constitutes a traditional equitable
remedy. Mertens, 508 U.S. at 255. In the complaint, Bayer
sought an injunction prohibiting Neiman Marcus “from
attempting to coerce, intimidate or threaten employees (or
potential employees) into waiving their rights under the
ADA” and such other relief as the district court deemed
appropriate. In opposing summary judgment, however, Bayer
conceded he no longer required an injunction to prevent
3
Bayer concedes the district court was bound by Alvarado’s central
holding and acknowledges that a panel of this court cannot overturn it.
14 BAYER V. NEIMAN MARCUS GROUP
Neiman Marcus from insisting he is bound by the arbitration
but failed to explicitly argue that another form of injunctive
relief would be effective relief. Bayer now contends it was
within the power of the district court to require Neiman
Marcus to place a letter in his personnel file stating that no
attempt to enforce the arbitration agreement should be made
in the event he should seek future employment with Neiman
Marcus or in any future litigation between the parties.
Neiman Marcus claims Bayer effectively waived his claim for
injunctive relief and that such relief would serve no purpose
in any event, given that the company is bound to comply with
the district court ruling that the arbitration agreement does not
bind Bayer.
A plaintiff may waive a claim for injunctive relief by
failing to argue its merits at summary judgment. See Kaiser
Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100,
1103 n.9 (9th Cir. 1986). Nevertheless, we need not
determine whether Bayer effectuated a waiver of his entire
claim for injunctive relief here, as we conclude it cannot
satisfy the case or controversy requirement embedded in
Article III.
“A request for injunctive relief remains live only so long
as there is some present harm left to enjoin.” Taylor v.
Resolution Trust Corp., 56 F.3d 1497, 1502 (D.C. Cir. 1995).
“Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.”
O’Neal v. City of Seattle, 66 F.3d 1064, 1066 (9th Cir. 1995)
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103
S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). Thus, a claim for
injunctive relief becomes moot once subsequent events have
made clear the conduct alleged as the basis for the requested
BAYER V. NEIMAN MARCUS GROUP 15
relief “could not reasonably be expected to recur.” Ruiz,
160 F.3d at 549 (quoting Chinese for Affirmative Action v.
Leguennec, 580 F.2d 1006, 1009 (9th Cir. 1978)). A plaintiff
who cannot reasonably be expected to benefit from
prospective relief ordered against the defendant has no claim
for an injunction. See Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 364–65, 131 S. Ct. 2541, 180 L. Ed. 2d 374
(2011) (concluding plaintiffs whose employment ended after
an action was filed had no claim for injunctive relief against
their former employer concerning its employment practices);
Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033,
1036–37 (9th Cir. 2006) (concluding a plaintiff requesting an
injunction requiring her former employer to adopt and
enforce lawful policies “lacked standing to sue for injunctive
relief from which she would not likely benefit”).
With respect to his request for an injunction directing
Neiman Marcus to place a letter in his personnel file, Bayer
has provided no evidence to indicate Neiman Marcus could
reasonably be expected to attempt to enforce the arbitration
agreement against him or to coerce his acceptance of it in the
future. A plaintiff’s declaration of intent as to his own future
conduct may be sufficient to “establish a reasonable
expectation that he will be subjected to the same action or
injury again.” Wolfson v. Brammer, 616 F.3d 1045, 1054–55
(9th Cir. 2010). But absent any indicia of concreteness, such
a declaration is insufficient to support a finding that an actual
or imminent injury exists. See Lujan, 504 U.S. at 564. While
it is conceivable that Bayer could file a lawsuit against or
seek employment with Neiman Marcus in the future, he has
neither declared his intent to do so nor produced any other
evidence suggesting the conduct alleged as the basis for his
claim can reasonably be expected to recur as to him.
16 BAYER V. NEIMAN MARCUS GROUP
With respect to the request for an injunction prohibiting
Neiman Marcus from attempting to intimidate its employees
and potential employees into waiving their ADA rights,
Bayer has produced no evidence to show he can reasonably
be expected to benefit from such relief. A former employee
currently seeking to be reinstated or rehired may have
standing to seek injunctive relief against a former employer.
See Walsh, 471 F.3d at 1036–37. But a former employee has
no claim for injunctive relief addressing the employment
practices of a former employer absent a reasonably certain
basis for concluding he or she has some personal need for
prospective relief. See Dukes, 564 U.S. at 364–65; see also
Walsh, 471 F.3d at 1036–37. Given that Bayer is no longer
employed with Neiman Marcus and has produced no
evidence to suggest he plans to seek employment with
Neiman Marcus again, there is no basis upon which to
conclude he has a reasonably certain need for prospective
relief pertaining to its future employment practices.
Because Bayer has neither shown that he is reasonably
likely to be subjected once again to the conduct alleged as the
basis for his claim nor shown that he can reasonably be
expected to benefit from the injunctive relief he seeks, we
conclude his claim for injunctive relief is moot.
2. Monetary Reimbursement
“A monetary award can be either legal or equitable in
nature.” Dep’t of Treasury-I.R.S. v. Fed. Labor Relations
Auth., 521 F.3d 1148, 1155 n.4 (9th Cir. 2008). Bayer argues
the district court could have awarded him equitable monetary
relief to reimburse medical expenses he incurred seeking
treatment for anxiety and legal costs he incurred attempting
to preserve both his ADA rights and his job. Neiman Marcus
BAYER V. NEIMAN MARCUS GROUP 17
argues the district court properly determined that within the
context of this action, such relief would not constitute
equitable relief.
As a general rule, monetary relief constitutes a legal
remedy. Chauffeurs, Teamsters & Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 570, 110 S. Ct. 1339, 108 L. Ed. 2d 519
(1990); Smith v. Barton, 914 F.2d 1330, 1337 (9th Cir. 1990).
However, monetary relief may be characterized as equitable
when it possesses attributes meriting an exception to the
general rule. See Terry, 494 U.S. at 570–71; Smith, 914 F.2d
at 1337. It is well established that such attributes may be
present in two contexts. See Terry, 494 U.S. at 570–71;
Smith, 914 F.2d at 1337.
First, a monetary award that is restitutionary in nature
may be legal or equitable depending on the circumstances in
which it is awarded. See Terry, 494 U.S. at 570; Smith,
914 F.2d at 1337; see also Honolulu Joint Apprenticeship &
Training Comm. of United Ass’n Local Union No. 675 v.
Foster, 332 F.3d 1234, 1237–38 (9th Cir. 2003)
(distinguishing between legal and equitable restitutionary
awards). Monetary restitution is appropriately characterized
as equitable when it is intended “to restore to the plaintiff
particular funds . . . in the defendant’s possession.” Foster,
332 F.3d at 1237 (quoting Great-West Life & Annuity Ins. Co.
v. Knudson, 534 U.S. 204, 214, 122 S. Ct. 708, 151 L. Ed. 2d
635 (2002)). But monetary restitution is appropriately
characterized as legal in actions that simply seek to impose
general personal liability on a defendant for money allegedly
owed to the plaintiff. Id. at 1238.
Second, a monetary award may be equitable when it is
merely incidental to or intertwined with injunctive relief.
18 BAYER V. NEIMAN MARCUS GROUP
Terry, 494 U.S. at 571; Smith, 914 F.2d at 1337. To
illustrate, money damages in the form of back pay are
equitable when awarded as a complement to, rather than in
addition to and distinct from, injunctive reinstatement. See
Smith, 914 F.2d at 1337; see also Terry, 494 U.S. at 571–73.
Along the same lines, money damages in the form of front
pay are equitable when awarded in lieu of injunctive
reinstatement. Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843, 849–51, 853, 121 S. Ct. 1946, 150 L. Ed. 2d 62
(2001). In contrast, an award of money damages to
compensate for reputational injury, mental anguish,
emotional distress, or loss of job responsibilities constitutes
a legal remedy. See Tamosaitis v. URS Inc., 781 F.3d 468,
487 (9th Cir. 2015); Smith, 914 F.2d at 1337.
The monetary reimbursement Bayer seeks cannot fairly
be characterized as merely incidental to or intertwined with
injunctive relief, as he has no claim for such relief. Nor can
it be said to possess the attributes of equitable restitution, as
Bayer does not argue that Neiman Marcus possesses
particular funds that rightly belong to him. Instead, Bayer
forthrightly seeks reimbursement from Neiman Marcus on the
theory that concrete financial losses he suffered as a
consequence of its allegedly unlawful conduct should rightly
be restored to him. In light of the restorative theory upon
which Bayer seeks reimbursement of his medical expenses
and legal costs, there is no other basis upon which the district
court might have had the power to award him such relief in
equity.
To the extent Bayer suggests the district court could have
exercised its equitable power to make him whole by awarding
him money to reimburse medical expenses and legal costs he
incurred due to unlawful conduct, such monetary relief is
BAYER V. NEIMAN MARCUS GROUP 19
properly characterized as compensatory damages, the classic
form of legal relief. See F.A.A. v. Cooper, 566 U.S. 284, 307,
132 S. Ct. 1441, 182 L. Ed. 2d 497 (2012) (acknowledging
that “compensatory damages . . . compensate the injured party
for the injury sustained . . . such as will . . . replace the loss
caused by the wrong or injury” (quoting Black’s Law
Dictionary (rev. 4th ed. 1968))); State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 416, 123 S. Ct. 1513, 155 L.
Ed. 2d 585 (2003) (describing compensatory damages as
being “intended to redress the concrete loss that the plaintiff
has suffered by reason of the defendant’s wrongful conduct”
(quoting Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424, 432, 121 S. Ct. 1678, 149 L. Ed. 2d 674
(2001))); see also Mertens, 508 U.S. at 250–51, 255.
Consequently, the district court lacked the power to award
such damages in this action brought under § 12203. See
Alvarado, 588 F.3d at 1264–70.
To the extent Bayer suggests his interest in attorney fees
and legal costs associated with this action is sufficient to
avoid mootness, it has long been established that such costs
standing alone are insufficient to confer Article III
jurisdiction “where none exists on the merits of the
underlying claim.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 107, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480, 110
S. Ct. 1249, 108 L. Ed. 2d 400 (1990)). Rather, a case or
controversy sufficient to confer Article III jurisdiction exists
only when succeeding in the litigation will afford “the
plaintiff some other benefit besides reimbursement of costs
that are a byproduct of the litigation itself.” Id.
The monetary award Bayer sought to reimburse his
medical expenses and legal costs constituted legal damages
20 BAYER V. NEIMAN MARCUS GROUP
the district court lacked the power to award in this action.
We therefore conclude his claim for such monetary relief is
moot.
3. Declaratory Judgment
In the complaint, Bayer sought a declaration that the
arbitration agreement is unlawful, invalid, and unenforceable.
In opposing summary judgment before the district court,
however, Bayer sought only a declaration that Neiman
Marcus violated § 12203(b) by insisting that he choose
between his job and the exercise of his ADA rights. Bayer
now contends the district court erred in concluding it lacked
the power to issue such relief. Neiman Marcus counters that
the district court was powerless to issue a declaration that it
violated § 12203(b), as under the circumstances of this case
a declaration to that effect could in no way affect the
relationship between the parties and would have been merely
advisory.
“A particular declaratory judgment draws its equitable or
legal substance from the nature of the underlying
controversy.” Transamerica Occidental Life Ins. Co. v.
DiGregorio, 811 F.2d 1249, 1251 (9th Cir. 1987) (citing
Wallace v. Norman Indus., 467 F.2d 824, 827 (5th Cir. 1972);
Pacific Indem. Co. v. McDonald, 107 F.2d 446, 448 (9th Cir.
1939)). Assuming without deciding that the declaratory relief
Bayer sought was truly equitable in nature, we conclude his
claim for declaratory relief is nonetheless moot.
Some claims seeking a declaratory judgment satisfy
Article III’s case or controversy requirement, and others do
not. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127,
127 S. Ct. 764, 166 L. Ed. 2d 604 (2007). “A case or
BAYER V. NEIMAN MARCUS GROUP 21
controversy exists justifying declaratory relief only when ‘the
challenged . . . activity . . . is not contingent, has not
evaporated or disappeared, and, by its continuing and
brooding presence, casts what may well be a substantial
adverse effect on the interests of the . . . parties.’” Seven
Words LLC v. Network Sols., 260 F.3d 1089, 1098–99 (9th
Cir. 2001) (quoting Headwaters, Inc. v. Bureau of Land
Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1989). Thus, the test
for mootness applied to a claim for declaratory relief “is
whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”
MedImmune, Inc., 549 U.S. at 127 (quoting Maryland
Casualty Co. v. Pacific Co., 312 U.S. 270, 273, 61 S. Ct. 510,
85 L. Ed. 826 (1941)); S. California Painters & Allied
Trades, Dist. Council No. 36 v. Rodin & Co., 558 F.3d 1028,
1035 (9th Cir. 2009) (quoting Ctr. for Biological Diversity v.
Lohn, 511 F.3d 960, 963 (9th Cir. 2007)). “Stated another
way, the central question . . . is whether changes in the
circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.” S.
California Painters, 558 F.3d at 1035 (quoting Gator.com
Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005)
(en banc)).
Bayer argues a declaratory judgment would be
meaningful under the circumstances of this case because it
would vindicate his rights and make him the prevailing party
in this action. However, a declaratory judgment merely
adjudicating past violations of federal law¯as opposed to
continuing or future violations of federal law¯is not an
appropriate exercise of federal jurisdiction. See, e.g., Green
v. Mansour, 474 U.S. 64, 74, 106 S. Ct. 423, 88 L. Ed. 2d 371
22 BAYER V. NEIMAN MARCUS GROUP
(1985). The “value of the judicial pronouncement¯what
makes it a proper judicial resolution of a ‘case or
controversy’ rather than an advisory opinion¯is in the
settling of some dispute which affects the behavior of the
defendant towards the plaintiff.” Hewitt v. Helms, 482 U.S.
755, 761, 107 S. Ct. 2672, 96 L. Ed. 2d 654 (1987) (emphasis
in original). Bayer has provided no basis upon which to
conclude declaratory relief might affect Neiman Marcus’s
behavior towards him. At present, the arbitration agreement
does not bind Bayer, the parties have no relationship beyond
this litigation, and there is no evidence to suggest Bayer can
reasonably be expected to work for or bring suit against
Neiman Marcus in the future. The mere fact that securing a
declaratory judgment would permit Bayer to recoup costs
associated therewith is insufficient, standing alone, to create
an Article III case or controversy where none otherwise
exists. See Steel Co., 523 U.S. at 107.
Bayer argues that even if he is no longer subjected to
Neiman Marcus’s alleged unlawful conduct, his claim for
declaratory relief is not moot because the relief sought
pertains to an ongoing policy. But to avoid mootness with
respect to a claim for declaratory relief on the ground that the
relief sought will address an ongoing policy, the plaintiff
must show that the policy “has adversely affected and
continues to affect a present interest.” Super Tire Eng’g Co.
v. McCorkle, 416 U.S. 115, 125–26, 94 S. Ct. 1694, 40 L. Ed.
2d 1 (1974); accord Carver Middle Sch. Gay-Straight All. v.
Sch. Bd., 842 F.3d 1324, 1330 (11th Cir. 2016); Milwaukee
Police Ass’n v. Bd. of Fire & Police Comm’rs, 708 F.3d 921,
930–33 (7th Cir. 2013); Sapp v. Renfroe, 511 F.2d 172,
175–76 (5th Cir. 1975); Nieves v. Oswald, 498 F.2d 802, 814
(2d Cir. 1974). The mere existence of an ongoing policy is
insufficient to establish that a plaintiff challenging that policy
BAYER V. NEIMAN MARCUS GROUP 23
has standing to attack all its future applications. See City of
Houston, Tex. v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421,
1429–30 (D.C. Cir. 1994); see also Dukes, 564 U.S. at 365.
Because Bayer has produced no evidence to show the
conduct complained of in this action presently affects him or
can reasonably be expected to affect him in the future, see
Helms, 482 U.S. at 761, we conclude the circumstances
prevailing since he filed this action have forestalled any
occasion to award him meaningful declaratory relief, see S.
California Painters, 558 F.3d at 1035. We therefore
conclude his claim for declaratory relief is moot.
4. Nominal Damages
“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).4 In light of our holding in Alvarado
that § 12203 claims are redressable only by equitable relief,
the district court ruled that nominal damages are unavailable
to Bayer in this action. Bayer contends the district court
erroneously assumed that the nominal damages he seeks
necessarily constitute legal, not equitable, relief. In response,
Neiman Marcus argues that nominal damages are, like other
money damages, quintessentially legal, yet concedes that
4
A majority of the circuits acknowledge that a live claim for nominal
damages ordinarily saves a case from dismissal on mootness grounds. See
Ermold v. Davis, 855 F.3d 715, 719 (6th Cir. 2017); Morgan v. Plano
Indep. Sch. Dist., 589 F.3d 740, 748 & n.32 (5th Cir. 2009); Rendelman
v. Rouse, 569 F.3d 182, 187 (4th Cir. 2009); Adv. Media, L.L.C. v. City of
Eden Prairie, 456 F.3d 793, 803 (8th Cir. 2006); Utah Animal Rights
Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257–58 (10th Cir. 2004);
Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986). But see DA Mortg.,
Inc. v. City of Miami Beach, 486 F.3d 1254, 1259 (11th Cir. 2007).
24 BAYER V. NEIMAN MARCUS GROUP
such damages may constitute equitable relief under limited
circumstances.
When invoked to avoid mootness, a claim for nominal
damages not explicitly stated in the complaint bears close
inspection to ensure it does not fail as a matter of law. See
Arizonans for Official English v. Arizona, 520 U.S. 43,71,
117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997); McKinley v.
Kaplan, 177 F.3d 1253, 1255–56 (11th Cir. 1999) (discussing
Arizonans and Fox v. Board of Trustees of SUNY, 42 F.3d
135 (2d Cir. 1994), cert. denied, 515 U.S. 1169, 115 S. Ct.
2634, 132 L. Ed. 2d 873 (1995)). Though Bayer did not state
a separate claim for nominal damages in his complaint, he
asserted a claim for damages and a general prayer for such
other relief as the district court deemed proper. But Bayer
explicitly argued he was entitled to nominal damages in
opposing summary judgment before the district court.
This is not a case in which the defendant lacked notice
that damages were sought until the plaintiff attempted to
wrest a claim for nominal damages from a general prayer for
relief for the first time on appeal. See Seven Words, 260 F.3d
at 1098–99. Moreover, assuming nominal damages may be
awarded as equitable relief in the context of a § 12203 action,
there is no other basis upon which to conclude the nominal
damages claim Bayer now asserts is not viable as a matter of
law. See McKinley, 177 F.3d at 1255–56; see also Fisher v.
Univ. of Texas at Austin, 758 F.3d 633, 640 (5th Cir. 2014),
aff’d, 136 S. Ct. 2198 (2016) (concluding the United States
Supreme Court necessarily determined the plaintiff had
standing to pursue nominal damages when it remanded the
case with instructions because the Court had an “independent
obligation to confirm jurisdiction” and the issue had been
“squarely presented” on appeal); id. at 663 n.3 (Garza, J.,
BAYER V. NEIMAN MARCUS GROUP 25
dissenting) (acknowledging that the basis for standing
presented to the Court was the plaintiff’s claim for nominal
damages and that the complaint included a prayer for
damages and a general prayer for relief but lacked a specific
prayer for nominal relief); cf. Ditullio v. Boehm, 662 F.3d
1091, 1096 (9th Cir. 2011) (recognizing that the term
“damages” is ambiguous such that “it could refer to
compensatory damages, punitive damages, nominal damages,
or some combination of the three”). We therefore conclude
our determination as to whether Bayer had a viable claim for
nominal damages sufficient to avoid mootness turns on the
question of whether nominal damages may be awarded under
§ 12203.
Only one court of appeals has squarely addressed this
question. In Shaver v. Independent Stave Co., 350 F.3d 716
(8th Cir. 2003), the Eighth Circuit held that a plaintiff who
baited his employer into violating § 12203(a) but could prove
no consequential damages had an actionable claim for
nominal damages. Id. at 723–25. In reaching this conclusion,
the court relied upon the purposes Congress intended the
ADA to serve¯namely, protecting the dignitary interests of
individuals with disabilities and enlisting the aid of private
citizens in the enforcement of public policy. See id. at
724–25.
Shaver’s persuasive power in the context of this appeal is
significantly undermined by the context in which it was
decided, however. By the time Shaver was decided, the
Eighth Circuit had twice assumed that the damages remedies
set forth in § 1981a are available to remedy § 12203
violations. See Salitros v. Chrysler Corp., 306 F.3d 562, 575
(8th Cir. 2002); Foster v. Time Warner Entm’t Co., L.P.,
250 F.3d 1189, 1198 (8th Cir. 2001). It is therefore unclear
26 BAYER V. NEIMAN MARCUS GROUP
whether the decision rests on an unspoken premise that
conflicts with our holding in Alvarado. Namely, if the Shaver
court assumed that legal remedies are available to redress
§ 12203 violations, it had no occasion to address whether or
not it considered the nominal damages at issue to be
equitable¯the fundamental prerequisite to awarding such
damages in a § 12203 action in this circuit under Alvarado.
Though it appears no other court of appeals has explicitly
addressed whether nominal damages may be awarded to
redress § 12203 violations, numerous decisions of our sister
circuits offer guidance on the broader question of whether
nominal damages may be awarded in equity under § 2000e-
5(g) to remedy violations of statutory rights. Prior to the
enactment of both the ADA and the Civil Rights Act of 1991,
the First, Fourth, Eighth, Tenth, and Eleventh Circuits
acknowledged that nominal damages may be awarded under
§ 2000e-5. See Huddleston v. Roger Dean Chevrolet, Inc.,
845 F.2d 900, 905 (11th Cir. 1988); Maney v. Brinkley Mun.
Waterworks & Sewer Dep’t, 802 F.2d 1073, 1076 (8th Cir.
1986); Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.
1986); Katz v. Dole, 709 F.2d 251, 253 n.1 (4th Cir. 1983);
Dean v. Civiletti, 670 F.2d 99, 101 (8th Cir. 1982) (per
curiam); T & S Serv. Assocs., Inc. v. Crenson, 666 F.2d 722,
728 & n.8 (1st Cir. 1981); see also Joshi v. Florida State
Univ., 646 F.2d 981, 991 n.33 (5th Cir. Unit B June 1981).5
At that time, Title VII authorized courts to award only
equitable remedies. Landgraf, 511 U.S. at 252; Lutz,
403 F.3d at 1068.
5
As Unit B of the Fifth Circuit later became the Eleventh Circuit, the
list of circuits that concluded nominal damages may be awarded under
§ 2000e-5 prior to the passage of the ADA and the Civil Rights Act of
1991 excludes the Fifth Circuit.
BAYER V. NEIMAN MARCUS GROUP 27
In 1986, the Seventh Circuit became the first to conclude
that nominal damages cannot be awarded under § 2000e-5,
reasoning simply that “as currently written Title VII does not
contemplate damages.” Bohen v. City of E. Chicago, Ind.,
799 F.2d 1180, 1184 (7th Cir. 1986). In subsequent decisions
following its lead, the Fifth and Tenth Circuits reached the
same conclusion, though well after Congress enacted the
ADA. Griffith v. State of Colo., Div. of Youth Servs., 17 F.3d
1323, 1327 (10th Cir. 1994); Landgraf v. USI Film Prod.,
968 F.2d 427, 431 (5th Cir. 1992), aff’d on other grounds,
511 U.S. 244 (1994).
Presently, then, the First, Fourth, Eighth, and Eleventh
Circuits recognize § 2000e-5 as authorizing nominal damages
awards, whereas the Seventh, Fifth, and Tenth Circuits do
not.6 Decisions issued in the latter circuits subsequent to
Bohen reflect a shared underlying premise¯that nominal
damages necessarily constitute legal, and not equitable, relief.
See Griffith, 17 F.3d at 1327; Landgraf, 968 F.2d at 431;
Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235,
1240 (7th Cir. 1989), overruled on other grounds in Saxton
v. Am. Tel. & Tel., Co., 10 F.3d 526, 533 n.12 (7th Cir. 1993).
However, we have identified no case in this line of authority
that has examined this premise thoroughly.
6
District court decisions concluding that nominal damages may not
be awarded under § 2000e-5 have also been affirmed by the First and
Third Circuits, but only in non-precedential summary dispositions issued
after the enactment of the Civil Rights Act of 1991. See Jackson & Coker,
Inc. v. Lynam, 840 F. Supp. 1040, 1053 (E.D. Pa. 1993), aff’d mem.,
31 F.3d 1172 (3d Cir. 1994); Afanador v. U.S. Postal Serv., 787 F. Supp.
261, 269–74 (D.P.R. 1991), aff’d per curiam, 976 F.2d 724 (1st Cir.
1992).
28 BAYER V. NEIMAN MARCUS GROUP
This court has yet to decide whether nominal damages
ever constitute an equitable remedy in the context of a
statutory claim to vindicate civil rights. See United States v.
Marolf, 173 F.3d 1213, 1219 n.5 (9th Cir. 1999) (concluding
that deciding this question was unnecessary).7 Because this
question now arises in the context of determining whether a
case or controversy sufficient to confer Article III standing
exists, we approach it “mindful that the ‘Supreme Court has
instructed us to take a broad view of constitutional standing
in civil rights cases, especially where, as under the ADA,
private enforcement suits are the primary method of obtaining
compliance with the Act.’” Chapman v. Pier 1 Imports (U.S.)
Inc., 631 F.3d 939, 946 (9th Cir. 2011) (quoting Doran v. 7-
Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008)).
“Damages are commonly understood to compensate a
party for loss or harm sustained.” Cummings v. Connell,
402 F.3d 936, 942 (9th Cir. 2005), amended by 2005 WL
1154321. But different categories of damages in fact serve
distinct purposes. See Campbell, 538 U.S. at 416; Cooper
Indus, 532 U.S. at 432; 1 Dan B. Dobbs, Law of Remedies
§ 1.1, 3–4 (2d ed. 1993). Compare Philip Morris USA v.
Williams, 549 U.S. 346, 358–59, 127 S. Ct. 1057, 166 L. Ed.
2d 940 (2007) (Stevens, J., dissenting) (punitive and
compensatory damages), with Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 310, 106 S. Ct. 2537, 91 L. Ed. 2d
249 (1986) (presumed damages), and Carey v. Piphus,
435 U.S. 247, 266, 98 S. Ct. 1042, 55 L Ed. 2d 252 (1978)
(nominal damages). In determining whether nominal
7
A claim for nominal damages that seeks to vindicate a constitutional
right is not moot. See Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419,
425–26 (9th Cir. 2008) (discussing Carey v. Piphus, 435 U.S. 247, 98 S.
Ct. 1042, 55 L. Ed. 2d 252 (1978)); Marolf, 173 F.3d at 1219 (same).
BAYER V. NEIMAN MARCUS GROUP 29
damages may ever be awarded in equity to vindicate statutory
rights, we find it instructive to compare the purposes such
damages serve with those served by the classic form of legal
relief, compensatory damages. See Hurley v. Atchison, T. &
S.F. Ry. Co., 213 U.S. 126, 134, 29 S. Ct. 466, 53 L. Ed. 729
(1909) (“Equity looks at the substance, and not at the form.”);
see also Mertens, 508 U.S. at 255.
“Compensatory damages and nominal damages serve
distinct purposes.” Schneider v. Cty. of San Diego, 285 F.3d
784, 795 (9th Cir. 2002). The distinguishing feature of
compensatory or actual damages is that they serve “to
compensate for a proven injury or loss.” See Damages,
Black’s Law Dictionary (10th ed. 2014). “Compensatory
damages ‘are intended to redress the concrete loss that the
plaintiff has suffered by reason of the defendant’s wrongful
conduct.’” Campbell, 538 U.S. at 416 (quoting Cooper
Indus., 532 U.S. at 432). “To that end, compensatory
damages may include not only out-of-pocket loss and other
monetary harms, but also such injuries as ‘impairment of
reputation . . . , personal humiliation, and mental anguish and
suffering.’” Stachura, 477 U.S. at 307 (quoting Gertz v.
Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 3012,
41 L. Ed. 2d 789 (1974)). In light of their compensatory
purpose, “compensatory damages are measured by the harm
the defendant has caused the plaintiff.” Williams, 549 U.S. at
358. As such, their proper measure is that which will “make
good or replace the loss caused by the injury.” Berg v. First
State Ins. Co., 915 F.2d 460, 465 (9th Cir. 1990). This is
consistent with their purpose: “to return the plaintiff to the
position he or she would have occupied had the harm not
occurred.” Schneider, 285 F.3d at 795 (citing 1 Dobbs, Law
of Remedies § 1.1, at 3–5).
30 BAYER V. NEIMAN MARCUS GROUP
In contrast, nominal damages are divorced from any
compensatory purpose. See Carey, 435 U.S. at 266;
Cummings, 402 F.3d at 942–43. Instead, nominal damages,
which are damages “in name only” and by nature minimal in
amount, serve two distinct purposes. Cummings, 402 F.3d at
943. First, “[a]s distinguished from punitive and
compensatory damages, nominal damages are awarded to
vindicate rights, the infringement of which has not caused
actual, provable injury.” Id. at 942. Thus, “a plaintiff might
seek vindication of a right which is not economic in character
and for which no substantial non-pecuniary award is
available.” 1 Dobbs, Law of Remedies § 3.3(2), at 295–96.
Second, “[n]ominal damages serve one other function, to
clarify the identity of the prevailing party for the purposes of
awarding attorney’s fees and costs in appropriate cases.”
Cummings, 402 F.3d at 943. Particularly when a statute
provides for the award of court costs to the prevailing party,
a court may award nominal damages to avoid ordering the
plaintiff to pay court costs and ensure the cost burden is on
the defendant. 1 Dobbs, Law of Remedies § 3.3(2), at 296.
In light of their symbolic nature, nominal damages are
appropriately awarded even when an injury has been “fully
compensated through a different cause of action.” Schneider,
285 F.3d at 795 (citing Larez v. City of Los Angeles, 946 F.2d
630, 640 (9th Cir. 1991); Ruvalcaba v. City of Los Angeles,
167 F.3d 514, 524 (9th Cir. 1999)).
The Supreme Court has never addressed whether the
trifling and purely symbolic nature of nominal damages
might constitute an attribute meriting an exception to the
general rule that monetary awards are ordinarily awarded in
law rather than equity, if only in the context of actions that
seek to vindicate civil rights. Nor has this court. But this
court previously recognized that in determining whether a
BAYER V. NEIMAN MARCUS GROUP 31
statute authorizes nominal damages awards, it is necessary to
consider whether Congress intended to provide a statutory
nominal damages remedy when it enacted the law. See C.O.
v. Portland Pub. Sch., 679 F.3d 1162, 1166–67 (9th Cir.
2012).
When Congress enacted § 12203, it incorporated by
reference the preexisting Title VII enforcement provision
codified in § 2000e-5(g)(1). Because Congress chose to
legislate by incorporating this preexisting provision rather
than writing on a blank slate, it is appropriate in this case to
presume “that when Congress legislates, it is aware of past
judicial interpretations.” Egebjerg v. Anderson (In re
Egebjerg), 574 F.3d 1045, 1050 (9th Cir. 2009).
Significantly, when Congress enacted the ADA, the vast
majority of the courts of appeals to address the issue had
concluded that § 2000e-5(g) authorizes nominal damages
awards. See Huddleston, 845 F.2d at 905 (Eleventh Circuit);
Maney, 802 F.2d at 1076 (Eighth Circuit); Derr, 796 F.2d at
344 (Tenth Circuit); Katz, 709 F.2d at 253 n.1 (Fourth
Circuit); Crenson, 666 F.2d at 728 & n.8 (First Circuit); see
also Joshi, 646 F.2d at 991 n.33 (Fifth Circuit Unit B). By
that time, only the Seventh Circuit had held to the contrary,
arriving at its conclusion by means of somewhat cursory
analysis. See Swanson, 882 F.2d at 1240; Bohen, 799 F.2d at
1184.
More fundamentally, the language Congress employed in
§ 2000e-5(g)(1) is far more specific than the language of a
mere grant of jurisdiction. See C.O., 679 F.3d at 1167. On
the contrary, § 2000e-5(g)(1) expressly grants courts
discretion to award whatever equitable relief they deem
appropriate. See § 2000e-5(g)(1) (authorizing a court who
finds an employer engaged in an unlawful employment
32 BAYER V. NEIMAN MARCUS GROUP
practice to “enjoin the [employer] from engaging in such
unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but is not
limited to, reinstatement or hiring of employees, with or
without back pay . . . , or any other equitable relief as the
court deems appropriate”). Plainly, to the extent nominal
damages may constitute equitable relief, a court is authorized
to award them under § 2000e-5(g)(1).
This court has previously indicated in dicta that nominal
damages may be legal or equitable. See Marolf, 173 F.3d at
1219 n.5 (“Normally, nominal damages are a legal, not an
equitable, remedy.”). In doing so, we considered and rejected
the position that nominal damages necessarily constitute a
legal remedy rather than an equitable one, emphasizing our
prior holding “that where a court of equity assumes
jurisdiction over a matter because the parties request
equitable relief, an award of damages is permissible if
necessary to secure complete justice.” Id. (quoting United
States v. Martinson, 809 F.2d 1364, 1367–68 (9th Cir. 1987))
(citing Griffith, 17 F.3d at 1327; Landgraf, 968 F.2d at 431;
Swanson, 882 F.2d at 1240).
“It is the historic purpose of equity to secure complete
justice.” EEOC v. Gen. Tel. Co., 599 F.2d 322, 334 (9th Cir.
1979); see also Albemarle Paper Co. v. Moody, 422 U.S. 405,
418, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). In the context
of a claim brought under a federal statute intended to combat
discrimination,8 the phrase “complete justice” has a clear
8
“When it enacted the ADA, Congress made specific factual findings
of arbitrary and invidious discrimination against the disabled. On the
basis of these findings, Congress concluded that the ADA was a necessary
legislative response to a long history of arbitrary and irrational
BAYER V. NEIMAN MARCUS GROUP 33
meaning: “the [district] court has not merely the power but
the duty to render a decree which will so far as possible
eliminate the discriminatory effects of the past as well as bar
like discrimination in the future.” Moody, 422 U.S. at 418
(quoting Louisiana v. United States, 380 U.S. 145, 154,
85 S. Ct. 817, 13 L. Ed. 2d 709 (1965)). To adopt a per se
limitation on the equitable powers of district courts that
would require them to deny a plaintiff relief from the
invidious effects of discrimination based on the defendant’s
own unlawful conduct would be “manifestly inconsistent with
the ‘historic purpose of equity to secur[e] complete justice’
and with the duty of courts . . . ‘to render a decree which will
so far as possible eliminate the discriminatory effects of the
past.’” See Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 367, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977) (quoting
Moody, 422 U.S. at 418).
As this court has previously recognized,
“Unlike most private tort litigants, a civil
rights plaintiff seeks to vindicate important
civil and constitutional rights that cannot be
valued solely in monetary terms.” “By
making the deprivation of such rights
actionable for nominal damages without proof
of actual injury, the law recognizes the
importance to organized society that those
rights be scrupulously observed; but at the
same time, it remains true to the principle that
discrimination against people with disabilities.” Dare v. California,
191 F.3d 1167, 1174 (9th Cir. 1999) (citation omitted) (first citing
42 U.S.C. § 12101(a)(7); then citing id. § 12101(b)).
34 BAYER V. NEIMAN MARCUS GROUP
substantial damages should be awarded only
to compensate actual injury . . . .”
Bernhardt, 279 F.3d at 872–73 (first quoting City of Riverside
v. Rivera, 477 U.S. 561, 574, 106 S. Ct. 2686, 91 L. Ed. 2d
466 (1986); then quoting Carey, 435 U.S. at 266). Given the
dignitary interest at stake when an action alleges a violation
of a statute intended to safeguard civil rights, nominal
damages seem particularly well suited to securing “complete
justice” in this context. In contrast, nominal damages fail in
any meaningful way to serve the functions customarily served
by legal relief, as the award of a trifling sum furthers neither
the restorative function served by compensatory damages, nor
the punitive functions served by civil penalties, punitive
damages, and treble damages. See Stachura, 477 U.S. at
306–07; Tull v. United States, 481 U.S. 412, 422, 107 S. Ct.
1831, 95 L. Ed. 2d 365 (1987).
The unique circumstances of this case illustrate that
complete justice may require a district court to award nominal
damages as equitable relief. Bayer waited more than six
years after he filed the charge alleging Neiman Marcus
interfered with his ADA rights to receive the right-to-sue
letter he needed to initiate this suit from the EEOC, including
four years after the EEOC determined there was reasonable
cause to believe Neiman Marcus had discriminated against
him in violation of the ADA. Meanwhile, Neiman Marcus
attempted to enforce against him the very arbitration
agreement that was the subject of the reasonable cause
determination in a separate suit concerning subsequent
events. In that suit, the district court ruled that the agreement
did not bind Bayer, and we affirmed that ruling in his favor
more than two years later based on the course of events that
is indisputably at the heart of this suit. See generally Bayer,
BAYER V. NEIMAN MARCUS GROUP 35
582 F. App’x 711. Thereafter, the district court ruled that this
action was moot and ordered Bayer to pay Neiman Marcus’s
costs. There can be no question that complete justice
required a different result, as dismissing an action in which an
employee alleges an employer violated the ADA by imposing
a mandatory arbitration agreement merely because he or she
successfully resisted the employer’s attempt to enforce that
agreement could only compound whatever dignitary harm the
employee suffered due to the employer’s alleged unlawful
conduct. For this court to adopt a per se limitation on the
equitable powers granted to district courts by the ADA under
these circumstances would be manifestly inconsistent with
the historic purpose of equity to secure complete justice. See
Teamsters, 431 U.S. at 367. We therefore conclude § 12203
authorizes courts to award nominal damages as equitable
relief when complete justice requires.
Conclusion
For the foregoing reasons, we conclude § 12203
authorized the district court to award nominal damages as
equitable relief to Bayer. We therefore reverse the district
court order finding this action moot and granting summary
judgment to Neiman Marcus and remand for further
proceedings.
REVERSED AND REMANDED.