
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1318 <br> <br>                       NORA CAMPOS-ORREGO, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                       ALBA RIVERA, ET AL., <br> <br>                     Defendants, Appellants. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>             Coffin and Cyr, Senior Circuit Judges. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Sylvia Roger Stefani, Assistant Solicitor General, Puerto Rico <br>Dep't of Justice, with whom Carlos Lugo Fiol, Solicitor General, <br>and Edda Serrano Blasini, Deputy Solicitor General, were on brief, <br>for appellants. <br>     Judith Berkan, with whom Mary Jo Mendez-Vilella was on brief, <br>for appellee. <br> <br> <br> <br> <br> <br>May 4, 1999 <br> <br> <br> <br> <br>

  SELYA, Circuit Judge.  This appeal requires us, inter <br>alia, to address an important question as to the circumstances in <br>which an award of punitive damages for a constitutional tort may <br>endure without a corresponding award of compensatory damages. <br>  The underlying litigation had its genesis in the <br>employment of plaintiff-appellee Nora Campos-Orrego (Campos) with <br>the Puerto Rico Comision para los Asuntos de la Mujer (Women's <br>Rights Commission or Commission). Campos claims that defendants- <br>appellants Alba Rivera, Olga Birriel Cardona, and Enid Gavilan <br>Perez, her superiors at the Commission, retaliated against her for <br>attempting to assist a victim of sexual harassment.  A jury <br>determined that Campos's claim had merit and awarded her damages.  <br>The appellants solicit our intervention, but their lackadaisical <br>approach to appellate advocacy proves once again that "courts   <br>like the Deity   are more prone to help those who help themselves."  <br>Williams v. Drake, 146 F.3d 44, 50 (1st Cir. 1998).  The short of <br>it is that the appellants have squandered most of their assigned <br>errors through defaults of various kinds.  Hence, we limit our <br>substantive review to the few remaining grounds (one of which <br>involves the punitive damages issue mentioned above). <br>  In the ordinary case, we would begin by limning the <br>relevant factual background.  Here, however, for reasons that will <br>soon become apparent, we submit only a thumbnail sketch, drawn <br>primarily from Campos's complaint. <br>  Campos worked for the Women's Rights Commission for <br>several years, principally as a staff attorney.  In that capacity, <br>she often counseled victims of gender-based discrimination.  One <br>such individual, whom we shall call Client A, met with Campos in <br>1991 and related a tale of sexual harassment at the hands of the <br>Mayor of Bayamon, a high-level figure in the New Progressive Party <br>(the political party to which the appellants all belong).  Campos <br>counseled Client A and explained her legal options, but Client A <br>chose not to pursue her rights at that time. <br>  In August 1994, after a brief interval during which she <br>worked elsewhere, Campos was rehired by the Women's Rights <br>Commission as a quondam consultant under a one-year contract.  In <br>this post, she not only functioned as a staff attorney, but also <br>analyzed sexual harassment in Puerto Rico's public institutions.  <br>In November of 1994, Client A returned to the Commission's offices <br>and requested a copy of her file.  Campos supplied it.  Client A <br>proceeded to lodge a sexual harassment complaint against the Mayor <br>on or about June 1, 1995. <br>  The media pounced on Client A's story like a pride of <br>hungry lions on a side of beef.  Extensive coverage began as early <br>as June 2.  The three appellants summoned Campos to a meeting that <br>very day and interrogated her as to why she had given Client A a <br>copy of the file.  According to Campos, the appellants intimated <br>that the matter should have been treated with greater discretion <br>because it involved the Mayor.  On June 3, two of the appellants <br>discussed the incident on a popular radio show and implied that an <br>unnamed employee (who could not have been anyone but Campos) was <br>incompetent, or insubordinate, or both.  By letter dated June 6, <br>Rivera (the Commission's executive director) terminated Campos's <br>employment effective June 30   and did so notwithstanding that, <br>roughly a week before the story broke, Campos had accepted Rivera's <br>offer to renew her contract for another year, commencing July 1, <br>1995.  The next day, El Da, a major Spanish-language newspaper, <br>published an article in which Rivera attributed the Commission's <br>lack of action on Client A's complaint to Campos.  The newspaper <br>also reported that Campos would be terminated.  Campos claims that <br>the appellants posted the story in public view in the Commission's <br>offices. <br>  Campos brought suit against the three appellants in <br>Puerto Rico's federal district court, claiming that they had <br>cashiered her because she appropriately aided Client A, rather than <br>discouraging or attempting to derail Client A's embryonic sexual <br>harassment complaint against a political heavyweight.  Campos <br>argued that her termination violated P.R. Laws Ann. tit. 29,  155h <br>(1995) (Law 17), which safeguards individuals against retaliation <br>for affording assistance to persons who seek to mount sexual <br>harassment claims.  She likewise argued that the manner in which <br>Rivera fired her abridged her right to procedural due process. <br>  The appellants denied Campos's allegations and the matter <br>was tried to a jury over a period of 12 days.  The docket indicates <br>that, at the close of Campos's case in chief and again at the close <br>of all the evidence, the appellants moved for judgment as a matter <br>of law.  See Fed. R. Civ. P. 50.  In respect to the two causes of <br>action with which we are concerned, they claim to have asserted <br>that Campos lacked standing to charge retaliation under Law 17 and <br>that she had no property interest sufficient to support her <br>procedural due process claim.  In any event, the district court <br>denied the appellants' motions on both occasions.  Insofar as is <br>material here, the jury returned a general verdict in Campos's <br>favor, awarding her $80,000 in compensatory damages against the <br>appellants, jointly and severally, on the Law 17 count and $10,000 <br>in punitive damages against Rivera on the due process count. <br>  Campos promptly moved for the entry of a judgment <br>embodying the jury's award but augmenting it by (1) doubling the <br>compensatory damages on the Law 17 claim, (2) ordering <br>reinstatement, and (3) deducting $1 from the punitive damage award <br>and reallocating it as nominal damages on the due process claim <br>(or, in the alternative, merely reaffirming the punitive damage <br>award).  The appellants opposed this motion.  They contended that <br>Campos was not entitled to statutory doubling because the jury had <br>not been instructed on this potentiality, that reinstatement should <br>be denied (or, at least, not ordered without an evidentiary <br>hearing), and that the punitive damage award should be vacated due <br>to the lack of any supporting compensatory damages.  In respect to <br>the Law 17 claim, the district court doubled the compensatory <br>damages (to $160,000), eschewed an evidentiary hearing, and ordered <br>Campos's reinstatement.  In respect to the due process claim, the <br>court recast $1 from the punitive damage award as nominal damages, <br>thus keeping the aggregate amount intact but reducing punitives to <br>$9,999.  The appellants then renewed their motion for judgment as <br>a matter of law, but to no avail.  This appeal followed. <br>  It is the nature of the adjudicative process that <br>appellate courts apply discerned principles of law to facts <br>established in a trial court or an administrative tribunal.  <br>Parties seeking appellate review must furnish the court with the <br>raw materials necessary to the due performance of the appellate <br>task.  See Moore v. Murphy, 47 F.3d 8, 10 (1st Cir. 1995).  <br>Applicable procedural rules recognize this division of labor and <br>place the burden squarely on the appealing party to supply so much <br>of the record of the proceedings below as is necessary to enable <br>the appellate court to conduct informed review.  See Fed. R. App. <br>P. 10(b); see also Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d <br>1555, 1559 n.5 (1st Cir. 1989); Real v. Hogan, 828 F.2d 58, 60 (1st <br>Cir. 1987).  When an appellant shirks this responsibility, the law <br>exacts a condign penalty: <br>    Should an appellant spurn this duty and drape <br>  an incomplete record around the court's neck, <br>  the court in its discretion either may <br>  scrutinize the merits of the case insofar as <br>  the record permits, or may dismiss the appeal <br>  if the absence of a full transcript thwarts <br>  intelligent review. <br> <br>Moore, 47 F.3d at 10. <br>  These principles pertain here.  The appellants, who now <br>strive to advance a myriad of factbound arguments, chose to proceed <br>in this forum armed only with a transcript of the district judge's <br>charge to the jury.  They did not secure a transcript of any other <br>portion(s) of the protracted proceedings below.  This omission <br>disables us from affording reasoned consideration to most of the <br>issues that the appellants seek to raise.  We offer two <br>illustrations of why these arguments are forfeit. <br>  The most obvious example pertains to the appellants' <br>sufficiency-of-the-evidence argument.  They calumnize the district <br>court's denial of their motions for judgment as a matter of law on <br>the basis that "[t]here was absolutely no evidence to support a <br>claim under Law 17 that [their] conduct was gender-based."  <br>Appellants' Brief at 10.  In essence, their argument is that Campos <br>was fired for her lack of loyalty to her superiors, not because of <br>her gender or for facilitating the filing of a sexual harassment <br>claim against a political icon.  Appellate judges are not mind <br>readers, and it is impossible for us to evaluate this contention <br>without recourse to an accurate record of the evidence presented at <br>trial.  By failing to furnish a trial transcript, the appellants <br>defaulted the point. <br>  Another example of how the appellants' failure to furnish <br>a transcript negatively impacts the instant appeal relates to <br>Rivera's challenge to the jury's determination that she was liable <br>for a due process violation.  For Campos's job to be protected by <br>the procedural safeguards of the Due Process Clause, she must have <br>had "a legitimate claim of entitlement to it."  Board of Regents v. <br>Roth, 408 U.S. 564, 577 (1972).  Rivera asserts that Campos was <br>hired for a fixed period; that her contractual term simply was <br>allowed to expire; and that, therefore, she could show no such <br>constitutionally protected property interest.  But this issue, too, <br>is fact-dependent.  Campos retorts that she adduced evidence of a <br>contract extension; and that, in all events, she crossed the <br>constitutional threshold by introducing probative evidence that <br>Rivera violated her constitutionally protected liberty interest by <br>handling her termination in a public (and egregiously stigmatizing) <br>fashion.  See, e.g., Paul v. Davis, 424 U.S. 693, 701 (1976) <br>(explaining that reputational damage incident to discharge under <br>some circumstances may invade a constitutionally protected liberty <br>interest); Roth, 408 U.S. at 573 (noting that a state could refuse <br>reemployment in such a stigmatizing fashion as to implicate an <br>employee's constitutionally protected liberty interest).  Because <br>there is no feasible way for us to gauge these competing versions <br>of events without a trial transcript, Rivera, qua appellant, <br>necessarily loses by default. <br>  We think that these two examples suffice, and that no <br>useful purpose would be served by itemizing the other components of <br>the appellants' asseverational array that have been rendered <br>nugatory by their failure to furnish a suitable record.  Withal, <br>the appellants do assert some claims of error that might be <br>susceptible to consideration without recourse to a transcript, and <br>it is to those claims that we now turn. <br>  The first such claim poses an intriguing question:  <br>Whether Law 17's protection against retaliatory action by an <br>employer due to an employee's participation in the lodging or <br>investigation of a sexual harassment complaint extends to <br>retaliation by an employer other than the harassment victim's <br>employer?  On one hand, Law 17's reference to an "employer" <br>conceivably could be limited to a common employer of both the <br>victim of the harassment and the victim of the retaliation   in <br>which event Campos (who did not work for the Mayor or for the <br>municipality) would have no cause of action.  On the other hand, <br>the inexplicit statutory language, coupled with the remedial spirit <br>animating Law 17, might well support an interpretation that would <br>allow an action against any employer engaging in such retaliatory <br>acts, whether or not that employer also had employed the harassment <br>victim.  Insofar as we can tell, the Puerto Rico courts have not <br>resolved this conundrum. <br>  Regardless of the interesting nature of the question, we <br>must refrain from answering it.  This issue has been forfeited <br>because the appellants failed to raise it squarely in the trial <br>court.  (At least, this is how it appears from the incomplete <br>record available to us.)  We have reiterated, with a regularity <br>bordering on the echolalic, that a party's failure to advance an <br>issue in the nisi prius court ordinarily bars consideration of that <br>issue on appellate review.  See, e.g, LaChapelle v. Berkshire Life <br>Ins. Co., 142 F.3d 507, 510 (1st Cir. 1998); Teamsters, Chauffeurs, <br>Warehousemen and Helpers Union v. Superline Transp. Co., 953 F.2d <br>17, 21 (1st Cir. 1992); McCoy v. Massachusetts Inst. of Tech., 950 <br>F.2d 13, 22 (1st Cir. 1991).  Although we have permitted an <br>occasional exception to this rule in extraordinary circumstances, <br>see, e.g., National Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, <br>627-29 (1st Cir. 1995), the case at hand fits comfortably within <br>the sweep of the general rule, not within the long-odds exception <br>to it.  Consequently, we treat the statutory construction issue as <br>waived, and take no view of its ultimate resolution. <br>  A second issue falls by the wayside for much the same <br>reason.  The appellants contend on appeal that the only proper <br>defendant in a retaliation case under Law 17 is the plaintiff's <br>actual employer (here, the Commission), not individual managers.  <br>But, no written motion in the record advances this theory of <br>defense, and Campos denies that the appellants argued the point <br>below.  Since the appellants neglected to produce a transcript, we <br>must treat this argument, too, as by the boards.  Hence, we will <br>not address it, except to say that plain-error review is not in <br>order, for the error   if there is one   is not obvious, and no <br>patent injustice appears in holding the appellants to the readily <br>foreseeable consequences of their own trial tactics. <br>  These multiple defaults do not entirely close the door on <br>this appeal, but they narrow the aperture considerably.  In the <br>last analysis, they leave two preserved assignments of error <br>susceptible to meaningful review on the meager record furnished to <br>us. <br>  The first contests the trial judge's authority to double <br>the jury's compensatory damage award without having instructed the <br>jury that such doubling would occur.  In the appellants' view, this <br>course of action usurped the jury's responsibility for determining <br>damages and thereby violated the Seventh Amendment.  This <br>contention presents a pure question of law, and, accordingly, our <br>review is plenary.  See In re Cusumano, 162 F.3d 708, 713 (1st Cir. <br>1998); In re Howard, 996 F.2d 1320, 1327 (1st Cir. 1993). <br>  It is common ground that judges must respect the <br>boundaries of a jury's province, and that judicial trespass may <br>violate a litigant's Seventh Amendment rights.  See Dimick v. <br>Schiedt, 293 U.S. 474, 486-87 (1935).  No such trespass occurred <br>here.  The appellants' argument to the contrary conflates two <br>related, but not congruent, concepts:  damages and judgment.  In a <br>civil jury trial, the jury customarily must determine the damages <br>that the plaintiff has sustained.  See id. at 485-86.  It is the <br>responsibility of the court, however, to enter judgment. <br>  This case aptly illustrates the dichotomy.  Law 17 <br>decrees that violators "incur civil liability . . . for a sum equal <br>to double the amount of the damages that the action has caused the <br>employee or job applicant . . . ."  P.R. Laws Ann. tit. 29,  155j.  <br>When a jury trial has been demanded and the case is tried in a <br>federal court, such a scheme charges the jury with calculating the <br>amount of damages sustained by the victim as a matter of fact.  See <br>Pollock & Riley, Inc. v. Pearl Brewing Co., 498 F.2d 1240, 1243 <br>(5th Cir. 1974) (considering a parallel issue under federal <br>antitrust statutes).  Once the jury has completed its task, the <br>court then must follow the statutory edict and ensure that the <br>judgment awards the prevailing party twice the sum calculated by <br>the jury.  See id.  Viewed in this light, the court below followed <br>the requirements of the law precisely and flouted no constitutional <br>commands. <br>  The appellants further assert that, at the very least, <br>the judge should have told the jury that Law 17 provided for the <br>subsequent doubling of any compensatory damage award.  This <br>assertion is fatally flawed.  For one thing, the scant record that <br>the appellants have supplied does not indicate that they either <br>requested such an instruction or objected in a timeous fashion to <br>its omission.  They have, therefore, forfeited the right to <br>complain.  See Elliot v. S.D. Warren Co., 134 F.3d 1, 5-6 (1st Cir. <br>1998); see also Fed. R. Civ. P. 51. <br>  For another thing, in situations in which multiple damage <br>awards are statutorily provided, "it is generally not advisable to <br>inform a jury of the [multiple damage] provisions . . . because of <br>the danger that a jury may reduce a plaintiff's award to account <br>for [the multiplication]."  CVD, Inc. v. Raytheon Co., 769 F.2d <br>842, 860 (1st Cir. 1985).  Indeed, some courts take the position <br>that it constitutes reversible error to give an instruction that <br>informs a jury of the potential for multiplication of damages.  <br>See, e.g., HBE Leasing Corp. v. Frank, 22 F.3d 41, 45-46 (2d Cir. <br>1994); Arnott v. American Oil Co., 609 F.2d 873, 889 n.15 (8th Cir. <br>1979); Pollock & Riley, 498 F.2d at 1242-43.  We need not decide <br>that question today.  Suffice to say that, at the very least, it is <br>within a trial judge's discretion not to inform a civil jury that <br>the judge ultimately will apply a multiplier to any compensatory <br>award.  Cf. Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir. 1996) <br>(explaining that district courts enjoy "wide discretion . . . to <br>fashion jury instructions as they see fit," and confirming that a <br>trial court has discretion either to inform the jury of a statutory <br>cap on damages or to withhold such information). <br>  The appellants' second preserved point concerns the <br>district court's modification of the damage award on the due <br>process claim.  The affected appellant, Rivera, argues that a <br>verdict for compensatory damages is a sine qua non to a verdict for <br>punitive damages; that the lower court therefore should have <br>vacated the punitive damage award on the due process count; and <br>that, by shifting $1 from punitive damages to nominal damages and <br>leaving the remainder of the punitive award in place, the court <br>exceeded its authority.  Rivera's challenge implicates both the <br>sufficiency vel non of stand-alone punitive damage awards and the <br>power of the district court to award nominal damages for a <br>constitutional violation.  Thus, her challenge presents questions <br>of law, subject to plenary review. <br>  Rivera's argument proceeds from two propositions with <br>which we are in general agreement.  First, the Seventh Amendment <br>flatly prohibits federal courts from augmenting jury verdicts by <br>additur.  See Dimick, 293 U.S. at 486-87.  Second, most punitive <br>damage awards are insupportable if not undergirded by a predicate <br>award of either compensatory or nominal damages.  See Kerr-Selgas <br>v. American Airlines, Inc., 69 F.3d 1205, 1214 (1st Cir. 1995).  <br>The question reduces to whether these propositions apply to, and <br>require reversal or vacatur in, this case. <br>  Though couched in terms of familiar principles, Rivera's <br>objection actually rests on a fundamental misapprehension.  While <br>it is true that in a typical state-law tort case punitive damages <br>unaccompanied by either compensatory or nominal damages cannot <br>stand, see, e.g., Cooper Distrib. Co. v. Amana Refrig'n, Inc., 63 <br>F.3d 262, 281-83 (3d Cir. 1995) (applying New Jersey law); <br>Restatement (Second) of Torts  908 cmts. b, c (1979), a section <br>1983 case premised on a constitutional violation evokes a different <br>set of considerations.  Several respected courts have ruled <br>persuasively that, as a matter of federal law, a punitive damage <br>award which responds to a finding of a constitutional breach may <br>endure even though unaccompanied by an award of compensatory <br>damages.  See, e.g., King v. Macri, 993 F.2d 294, 297-98 (2d Cir. <br>1993); Erwin v. County of Manitowoc, 872 F.2d 1292, 1299 (7th Cir. <br>1988).  The Third Circuit explained the rationale for such a rule <br>over forty years ago: <br>    [I]f it be once conceded that [punitive] <br>  damages may be assessed against the wrongdoer, <br>  and, when assessed, may be taken by the <br>  plaintiff,   and such is the settled law of <br>  the federal courts,   there is neither sense <br>  nor reason in the proposition that such <br>  additional damages may be recovered by a <br>  plaintiff who is able to show that he has lost <br>  $10, and may not be recovered by some other <br>  plaintiff who has sustained, it may be, far <br>  greater injury, but is unable to prove that he <br>  is poorer in the pocket by the wrongdoing of <br>  defendant. <br> <br>Basista v. Weir, 340 F.2d 74, 87-88 (3d Cir. 1965) (citations and <br>internal quotation marks omitted).  Should this circuit follow this <br>line of authority   a matter on which we need not opine today, <br>given the peculiar procedural posture in which the issue arises, <br>see infra   it would override contentions like Rivera's. <br>  Here, however, there is a rub.  The district court <br>specifically instructed the jury that punitive damages "may be <br>allowed only if you should first award the plaintiff Campos a <br>verdict for actual or compensatory damages on the [procedural due <br>process] cause of action."  Neither party objected to this <br>instruction, and, thus, it became the law of the case.  See Milone <br>v. Moceri Family, Inc., 847 F.2d 35, 38-39 (1st Cir. 1988).  <br>Although the law of the case doctrine is not totally rigid, see <br>United States v. Rivera-Martinez, 931 F.2d 148, 150-51 (1st Cir. <br>1991) (explaining that the doctrine encompasses a "modicum of <br>residual flexibility"), we nonetheless are reluctant to depart <br>cavalierly from it. <br>  In this instance, we need not decide whether Campos has <br>lost the benefit of favorable legal authority by failing to object <br>to the judge's charge.  This is so because, even if the law of the <br>case took hold, the jury's verdict on the due process count would <br>not have been void, but only internally inconsistent   and, thus, <br>repairable.  Parties confronted by an internally inconsistent jury <br>verdict have an obligation to call the inconsistency to the trial <br>judge's attention.  See, e.g., Toucet v. Maritime Overseas Corp., <br>991 F.2d 5, 8 (1st Cir. 1993); Austin v. Lincoln Equip. Assocs., <br>Inc., 888 F.2d 934, 939 (1st Cir. 1989).  The appellants concede <br>that they neither pointed out the inconsistency nor asked that the <br>jury be reinstructed.  For her part, Campos says that "[p]rior to <br>the close of the session [at which the jury returned its verdict]," <br>she signaled the inconsistency by announcing that she would ask the <br>court for nominal damages (to be deducted from the punitive damage <br>award).  Appellee's Brief at 7.  Rivera neither challenges this <br>assertion nor claims that she requested that the jury retire to <br>deliberate on the nominal damage request.  We think that Rivera's <br>silence at this critical juncture amounted to a waiver of any right <br>to trial by jury on the issue of nominal damages (which had not <br>been covered in the original jury instructions), and she cannot now <br>be heard to complain that this issue was left to the judge.  Cf. <br>Anderson v. Cryovac, Inc., 862 F.2d 910, 917-18 (1st Cir. 1988) <br>(holding that when a party acquiesces in the omission of a factual <br>issue from special interrogatories to the jury, the trial judge's <br>post-verdict resolution of the omitted issue does not transgress <br>the Seventh Amendment). <br>  From that point forward, the pieces fall easily into <br>place.  The district court gave Campos $1 in nominal damages at a <br>later date, subtracting that sum from the $10,000 punitive damage <br>award.  One can hardly quarrel with this improvisation.  Over two <br>decades ago, the Supreme Court held that nominal damages are <br>recoverable on a finding of a procedural due process violation, <br>even without a corollary finding of injury or an award of <br>compensatory damages.  See Carey v. Piphus, 435 U.S. 247, 266-67 <br>(1978).  The Carey Court reasoned that <br>    [b]ecause the right to procedural due process <br>  is 'absolute' in the sense that it does not <br>  depend upon the merits of a claimant's <br>  substantive assertions, and because of the <br>  importance to organized society that <br>  procedural due process be observed, we believe <br>  that the denial of procedural due process <br>  should be actionable for nominal damages <br>  without proof of actual injury. <br> <br>Id. at 266 (citations omitted). <br> <br>  Extrapolating from Carey, other courts of appeals have <br>held that when a jury finds a violation of an "absolute" <br>constitutional right yet declines to award compensatory damages, <br>the district court ordinarily should award nominal damages.  See, <br>e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 391 (2d Cir. 1994); <br>Ruggiero v. Krzeminski, 928 F.2d 558, 563-64 (2d Cir. 1991); Farrar <br>v. Cain, 756 F.2d 1148, 1152 (5th Cir. 1985).  We agree with these <br>courts and deem Carey controlling here.  Accordingly, we hold that <br>when a jury in a case brought pursuant to 42 U.S.C.  1983 finds a <br>violation of the plaintiff's procedural due process rights, but <br>fails to award compensatory damages, nominal damages are available <br>to the plaintiff. <br>  Let us be perfectly clear.  We do not suggest that this <br>entitlement is automatic, but, rather, it is incumbent upon the <br>plaintiff to make a timely request for nominal damages.  Cf. Kerr- <br>Selgas, 69 F.3d at 1214-15 (emphasizing, in regard to a claim under <br>42 U.S.C.  1981a, that a plaintiff is not "automatically entitled" <br>to nominal damages, and suggesting the need for "a timely <br>request"); Cooper, 63 F.3d at 281-83 (holding to like effect in a <br>tort case). <br>  In some circuits, a plaintiff must request nominal <br>damages ex ante, that is, by seeking a jury instruction to that <br>effect, on penalty of waiver.  See, e.g., Cooper, 63 F.3d at 281- <br>84; Sims v. Mulcahy, 902 F.2d 524, 533-36 (7th Cir. 1990).  In <br>dictum, Kerr-Selgas adumbrates a more expansive approach.  See <br>Kerr-Selgas, 69 F.3d at 1215 (denying relief because "Kerr neither <br>requested a jury instruction on nominal damages, nor asked the <br>district court for [nominal damages]" after the verdict had been <br>returned), and we think that the interests of justice warrant such <br>expansiveness.  Accordingly, we hold that a timely request for <br>nominal damages can be made either ex ante (to the jury) or ex post <br>(to the judge).  Thus, a plaintiff may request the judge to <br>instruct the jury on nominal damages, or in the absence of such an <br>instruction, may ask the trial court for nominal damages on the <br>occasion of, or immediately after, the return of the verdict.  In <br>this instance, the jury was not charged on nominal damages, but <br>Campos made a sufficiently prompt post-verdict request.  We <br>therefore affirm the award of nominal damages. <br>  That ends the matter.  The award of nominal damages <br>bridges any gap attributable to the absence of a compensatory <br>damage award.  See id. at 1214.  Rivera's objection to the judgment <br>is, therefore, bootless. <br>IV.  CONCLUSION <br>  We need go no further.  On this exiguous, waiver-riddled <br>record, only a smattering of issues are amenable to review.  <br>Limiting our substantive consideration to those few issues, we <br>discern no reversible error.  Accordingly, the judgment below will <br>be <br> <br>Affirmed.  Costs to appellee.</pre>

</body>

</html>

