Rigid emphasis upon such ele- ments of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.551 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,552 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934.553 Quickly tested, the Act was unanimously sustained.554 “The principle involved in this form of procedure,” the House report said, “is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.”555 The Senate report stated: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.”556
The 1934 Act provided that “[i]n cases of actual controversy” federal courts could “declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . .”557 Upholding the Act, the Court wrote: “The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish.”558 Finding that the case presented a definite and concrete controversy, the Court held that a declaration should have been issued.559
The Court has insisted that “the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.”560 As Justice Douglas wrote: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case 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.”561 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction.562 Use of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes,563 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.564 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.565 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions.566
As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater receptivity to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues.567 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota,568 in which the relevance to declaratory judgments of the Dombrowski v. Pfister569 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of “federal question” jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, “imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.”570 Escape from that duty might be found only in “narrow circumstances,” such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially developed doctrine that a litigant must show “special circumstances” to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: “a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.”571 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed572 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,573 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction.574
- Cf. Willing v. Chicago Auditorium Ass’n, 277 U.S. 274 (1928).
- Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed,” id. at 120–21).
- 48 Stat. 955, as amended, 28 U.S.C. §§ 2201–2202.
- Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) (cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007)).
- H. REP. NO. 1264, 73d Congress, 2d Sess. (1934), 2.
- S. REP. NO. 1005, 73d Congress, 2d Sess. (1934), 2.
- 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201.
- Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937).
- 300 U.S. at 242–44.
- Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).
- Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).
- Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962). See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
- An exception “with respect to Federal taxes” was added in 1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal injunctive relief directed at state taxes but said nothing about declaratory relief. It was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981).
- E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond Co. v. SEC, 303 U.S. 419 (1938); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572–573 (1947).
- United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952).
- E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939); Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958).
- E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Turner v. City of Memphis, 369 U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see Golden v. Zwickler, 394 U.S. 103 (1969).
- 389 U.S. 241 (1967).
- 380 U.S. 479 (1965).
- Zwickler v. Koota, 389 U.S. 241, 248 (1967).
- Zwickler v. Koota, 389 U.S. 241, 254 (1967).
- Samuels v. Mackell, 401 U.S. 66 (1971). The case and its companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski language and much of Zwickler was downgraded.
- Hicks v. Miranda, 422 U.S. 332, 349 (1975).
- Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the federal court may issue preliminary or permanent injunctions to protect its judgments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930–931 (1975); Wooley v. Maynard, 430 U.S. 705, 712 (1977).