                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-1079
ELTON GATES and LUSTER NELSON,
individually and on behalf of a class,
                                            Plaintiffs-Appellees,
                                v.


B. TOWERY, et al.,
                                     Defendants-Appellants.
                          ____________
        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
             No. 04 C 2155—Ruben Castillo, Judge.
                          ____________
 ARGUED SEPTEMBER 8, 2005—DECIDED NOVEMBER 29, 2005
                    ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
ROVNER, Circuit Judges.
  EASTERBROOK, Circuit Judge. In this interlocutory appeal
under Fed. R. Civ. P. 23(f), the City of Chicago contends
that the district judge should not have certified a class. (We
refer to all defendants as Chicago; the other defendants are
public employees represented by the City.) Certification is
improper, Chicago maintains, because the case is moot;
according to the City, a tender of full compensation to both
representative plaintiffs before a class had been certified
ended the controversy. Although expiration of a representa-
tive’s personal claims after certification does not halt the
2                                                 No. 05-1079

litigation if other class members have live interests, see
Indianapolis School Commissioners v. Jacobs, 420 U.S. 128
(1975), pre-certification mootness leaves at most an oppor-
tunity for new parties to intervene and carry on. See United
States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). As
no other champion has appeared, the City contends that the
class certification is improper. The district judge, however,
concluded that the proffered relief was incomplete and that
the original plaintiffs’ claims remain justiciable.
   A great deal of ink has been spilled in the appellate briefs
addressing the question whether plaintiffs’ demand for
attorneys’ fees staves off mootness. Chicago argues that it
does not—not only because (in its view) Buckhannon Board
& Care Home, Inc. v. West Virginia Dep’t of Health &
Human Resources, 532 U.S. 598 (2001), forecloses an award,
but also because a quest for fees does not justify a substan-
tive adjudication made unnecessary by the mootness of the
original claim. “The mere fact that continued adjudication
would provide a remedy for an injury [the cost of legal
services] that is only a byproduct of the suit itself does not
mean that the injury is cognizable under Art. III.” Diamond
v. Charles, 476 U.S. 54, 70-71 (1986). See also, e.g., Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83, 107-08
(1998); Lewis v. Continental Bank Corp., 494 U.S. 472, 480
(1990). But see Citizens for a Better Environment v. Steel
Co., 230 F.3d 923 (7th Cir. 2000) (discussing limits on this
principle). How Buckhannon applies to situations of the
kind presented here is a complex question that we need not
address. Nor need we decide whether (and, if so, when)
defendants are entitled to pay off representative plain-
tiffs and decapitate the class, because the City’s tender was
incomplete and the representatives’ personal claims
survive. Cf. Deposit Guaranty National Bank v. Roper, 445
U.S. 326 (1980); Holstein v. Chicago, 29 F.3d 1145, 1147
(7th Cir. 1994).
No. 05-1079                                               3

  Plaintiffs challenge the procedures that Chicago uses
for dealing with property that the police seize when making
custodial arrests. The police give each person a receipt for
whatever has been taken. This receipt says that the person
will be notified when the property can be retrieved. At the
time Elton Gates and Luster Nelson (the two plaintiffs)
were arrested, however, Chicago systematically failed to
carry through with that promise. Neither Gates nor Nelson
received notice, even though the City does not assert any
entitlement to retain the property ($113 in cash taken from
Gates and $59 from Nelson). Each inquired at the
stationhouse where he had been taken following his arrest;
each received a runaround. Police said that the money
would be returned only after the arresting officer agreed to
do so and signed an appropriate form. This was balo-
ney—but the desk officers’ insistence sent Gates and Nelson
on futile searches for the arresting officers, who never
seemed to be at the stationhouses when they called, and
who never signed any release papers.
  After Gates and Nelson filed this suit contending that
Chicago violates the due process clause of the fourteenth
amendment by retaining property to which it has no right,
failing to notify the owners, and making return depend
on the whim of the arresting officer, Chicago responded that
each should have asked the judge in the criminal prosecu-
tion to order the money’s return (or perhaps filed an
independent civil suit against the City)—though this is not
what the inventory receipt and its own Police Department
told them to do. Chicago has since changed the language on
the receipts and may have instructed the police to stop
misleading arrestees about how to get their property back.
But the plaintiffs maintain that they and the class of other
persons whose property is still in Chicago’s possession are
entitled not only to damages but also to prospective relief
notwithstanding the City’s new policies.
4                                                No. 05-1079

  Plaintiffs sought, for themselves and the class: (a) return
of the seized property; (b) prejudgment interest; (c) compen-
satory damages for any injury attributable to loss of the
property’s use; and (d) compensation for the value of their
time devoted to its retrieval. Counsel for the City sent
Gates a check for $113; the cover letter promised that
interest would follow. A check for $59 to Nelson
(and another promise of interest) came later. Counsel
for plaintiffs returned these checks because the City had
omitted costs and damages (not to mention attorneys’
fees—which we won’t mention again). Plaintiffs paid more
than $172 (the total of the checks) to commence the litiga-
tion; the City’s tenders would leave them net losers.
  A tender is insufficient unless it makes the plaintiff whole
and thus must include the filing fees and other costs under
28 U.S.C. §1920. Cf. Fed. R. Civ. P. 68. And a promise of
interest tomorrow differs from cash today; Chicago has a
history of delay in payment, see Evans v. Chicago, 10 F.3d
474 (7th Cir. 1993) (en banc), so a prudent litigant may
attach a steep discount to a promise unaccompanied by a
check. Especially because the City denies that interest is
owed but offers it only as a goodwill gesture.
  Then there is the matter of damages. Chicago con-
tends that neither the Constitution nor any statute entitles
anyone to damages. That’s not correct: a person whose
rights under the due process clause have been violated
receives nominal damages if he cannot show out-of-pocket
loss or other concrete injury. See Carey v. Piphus, 435 U.S.
247, 266-67 (1978). The City did not tender even $1 for
nominal damages.
   Cash on the barrelhead to cover costs, interest, and
nominal damages still would not be enough, because
plaintiffs want compensatory damages (if not punitive
damages). Chicago maintains that they have not estab-
lished any compensable loss, but this gets the cart before
No. 05-1079                                                  5

the horse. A court may resolve such an issue if and only
if there is a live controversy. A defendant cannot de-
mand and receive an opinion on the merits of some aspect of
plaintiffs’ claims, pay off the rest, and then contend the
whole suit is moot and must be dismissed, consigning the
opinion to advisory status. Cf. Johnson v. Wattenbarger, 361
F.3d 991 (7th Cir. 2004). To eliminate the controversy and
make a suit moot, the defendant must satisfy the plaintiffs’
demands; only then does no dispute remain between the
parties.
  Chicago is unwilling to satisfy plaintiffs’ demands. Gates,
Nelson, and others similarly situated are entitled to a
judge’s decision on what if any relief (in addition to return
of the seized funds) is appropriate. Perhaps the City is right
in thinking that prejudgment interest is all the compensa-
tion due and makes nominal damages unavailable because
interest represents actual damages from loss of the prop-
erty’s use. Still, this is a question for the district judge to
resolve on the merits. A defendant cannot simply assume
that its legal position is sound and have the case dismissed
because it has tendered everything it admits is due.
Mootness occurs when no more relief is possible. That point
has not been reached.
  To say, as Chicago does, that a class may not be certified
because no more relief is proper is to miss the distinction
between being in the right and the absence of a case or
controversy. By Chicago’s lights, unsuccessful lawsuits
should be dismissed as moot (because the defendant
owes nothing) rather than decided on the merits. That’s not
the way things work: A bad theory (whether of liability or
of damages) does not undermine federal jurisdiction. See
Bell v. Hood, 327 U.S. 678 (1946).
  It may be that the changes in Chicago’s operating proce-
dures would make prospective relief inappropriate—indeed,
Gates and Nelson lack standing to seek it, because they do
6                                                No. 05-1079

not contend that they are likely to be arrested again. See
Los Angeles v. Lyons, 461 U.S. 95 (1983); Campbell v.
Miller, 373 F.3d 834 (7th Cir. 2004). To the extent that they
want an injunction requiring the City to compensate them
for past losses, they are on a snipe hunt. There’s no such
animal, beyond the equitable remedy of restitution—and
the City stands ready to hand over the amounts it seized, in
order to avoid unjust enrichment. If the constitutional
sufficiency of the City’s current policies is in dispute, some
person adversely affected by them (as Gates and Nelson are
not) will have to take up the cause. But Gates and Nelson
are adequate representatives of persons financially injured
by the City’s old policies and practices; there is no good
reason why the suit cannot proceed as a class action.
                                                   AFFIRMED
A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-29-05
