9.3 Declaratory Judgment Act

Updated 2014 by Joel D. Ferber

The Declaratory Judgment Act offers a unique mechanism by which advocates may seek to remedy ongoing violations of statutory or constitutional provisions./1/ The Act may authorize broad-based declaratory and injunctive relief without resort to class action procedures./2/ Distinctive features of the Act:

  • Allow prospective defendants to sue to establish their nonliability/3/ and
  • Afford a party threatened with liability an opportunity for adjudication before its adversary commences litigation./4/

However, the statute makes no express reference to, and creates no special preference for, the resolution of such “anticipatory” disputes. A party need not be a prospective defendant in order to bring an action under the Act./5/ Clearly, however, the unique declaratory form of relief created by the statute was intended to resolve pending or threatened controversies before the need for coercive intervention was required./6/ Section 1 of the Act provides, in relevant part:

In a case of actual controversy within its jurisdiction, … any court of the United States … may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment and shall be reviewable as such./7/

The availability of declaratory relief was intended to offer a milder alternative to the general injunction remedy./8/ Yet, section 2 of the Act specifies that “[f]urther necessary or proper relief based upon a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.”/9/ Such relief may include damages or injunctive remedies, which are considered ancillary to the enforcement of the declaratory judgment./10/

9.3.A. “Case or Controversy” and Jurisdictional Requirements

A party seeking declaratory relief under the statute must present an “actual controversy” in order to satisfy the “case or controversy” requirement of Article III./11/ The Declaratory Judgment Act was not intended as a device for rendering mere advisory opinions. The case must involve a controversy that is substantial and concrete, must touch the legal relations of parties with adverse interests, and must be subject to specific relief through a decree of conclusive character./12/ Like any other federal court plaintiff, a claimant seeking relief under the Act must also satisfy the three requirements for constitutional standing./13/ Yet, even when a request for injunctive relief has become moot, declaratory relief has remained viable when an "immediate and definite" policy continues to affect a "present interest."/14/ 

While the Act enlarges the range of remedies available to federal court litigants, it does not confer an independent basis for federal jurisdiction./15/ The Supreme Court described the Act as “procedural” in its operation and as intended simply to place another remedial arrow in the district court’s quiver./16/ Accordingly, any complaint seeking relief under the Act must invoke an independent basis for federal jurisdiction./17/

9.3.B. Discretionary Nature of the Remedies

The Declaratory Judgment Act confers on the federal courts unusual and substantial discretion in determining whether to “declare” the rights of litigants. The Supreme Court emphasized that the statute permits, but does not require, a federal court to issue a declaratory judgment./18/ Accordingly, “[i]n the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration.”/19/

Not surprisingly, a substantial body of case law has developed in conjunction with disputes over whether the district court properly exercised its discretion in proceeding (or declining to proceed) upon a claim for relief brought under the Act./20/ It is well settled that the district court’s exercise of discretion should be informed by a number of prudential factors, including: (1) considerations of practicality and efficient judicial administration; (2) the functions and limitations of the federal judicial power; (3) traditional principles of equity, comity, and federalism; (4) Eleventh Amendment and other constitutional concerns; and (5) the public interest./21/ Perhaps the most important factors are whether a declaratory judgment will serve a useful purpose and resolve the controversy between the parties./22/

Notwithstanding these general principles, most disputes over the proper exercise of statutory discretion arise in cases where jurisdiction is founded upon diversity of citizenship. This occurs where the claims of the plaintiff (typically an insurance company) arise under state law, and where parallel or related state court proceedings are pending, contemplated, or available./23/ In such circumstances the district court’s discretion is guided by the Supreme Court’s decision in Brillhart v. Excess Insurance Co. of America and its considerable progeny/24/. Brillhart evaluated whether the federal court should refrain from exercising its discretion under the Act in favor of actual or potential state court litigation involving the same parties and issues./25/ In contrast to the situation presented in cases like Brillhart, a district court should not hesitate to entertain a declaratory judgment action brought by legal aid advocates seeking to remedy ongoing violations of federal law./26/

9.3.C. Remedies

The unique feature of the Declaratory Judgment Act is its authorization to “declare” the rights and legal relations of the parties to the controversy; such declarations have the force and effect of a final judgment./27/ Congress plainly intended declaratory relief to substitute, in appropriate cases, for the “strong medicine” of an injunction./28/ Since a declaratory judgment does not have the coercive power of an injunction, a lesser showing is required to obtain declaratory relief./29/ The traditional four factors required for injunctive relief, including irreparable injury, are not required for a declaratory judgment./30/

The Supreme Court has repeatedly observed that the issuance of declaratory relief should have a strong deterrent effect rendering more coercive remedies unnecessary./31/ However, if a declaration of rights alone does not deter parties or officials from proceeding (or continuing) to violate federal law, the Act specifically authorizes the party in whose favor the declaration is rendered to seek “further necessary or proper relief” to aid enforcement of the judgment./32/

Generally, the potential reach of an injunctive remedy implicates the jurisdictional power of the court to bind parties and enforce judgments./33/ Arguably, absent a certified class, an injunctive order may not run affirmatively in favor of persons (or class of persons), other than the named plaintiffs./34/ However, a number of courts upheld the issuance, under the Declaratory Judgment Act, of broad injunctive relief directed against a defendant government agency or official to remedy an ongoing violation of federal law even in the absence of a certified class./35/ Under the reasoning of these decisions, an injunction issued to correct a defendant’s unlawful policy or practice that affects not only the named plaintiff but also others is not overbroad, despite the absence of a certified plaintiff class./36/

Over the years, legal aid advocates have successfully obtained broad relief under the Declaratory Judgment Act for their clients in cases involving civil rights, public benefits, social security, health care, housing, and labor issues./37/ The remedies afforded by the Act are particularly suited for attacking and correcting illegal policies, practices, and rules that harm large numbers of persons.

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1. Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

2. See Gary Smith & Nu Usaha, Dusting Off the Declaratory Judgment Act: A Broad Remedy for Classwide Violations of Federal Law, 32 Clearinghouse Review 112 (July-Aug. 1998).

3. Beacon Theatres Inc. v. Westover, 359 U.S. 500, 504 (1959).

4. 10B Charles A. Wright et al., Federal Practice and Procedure § 2751, at 457 (3d ed. 1998).

5. Nevertheless, a major purpose behind the legislation was to help eliminate various uncertainties in legal and business relationships.The Act has been heavily utilized by insurance companies to obtain declarations resolving disputed issues of coverage or liability before being subject to litigation by their insured. See, e.g, Aetna Life Insurance Company v. Haworth, 300 U.S. 227, 239 (1937); Smith & Usaha, supra note 2, at 114. See also Columbian Financial Corporation v. Bancinsure Incorporated, 650 F.3d 1372, 1377, 1383 (10th Cir. 2011) (and cases discussed therein).

6. Wright et al., supra note 4, at 568. See MedImmune v. Genentech, 549 U.S. 118, 129 (2007). See generally United States v. Doherty, 786 F.2d 491, 498-99 (2d Cir. 1986) (collecting cases describing the various purposes behind the statute). For further discussion of the purposes of the statute, see Sierra Equity Group v. White Oak Equity Partners, 650 F. Supp. 2d 1213 (S.D. Fla. 2009) (and cases cited therein).

7. 28 U.S.C. § 2201(a).

8. Steffel v. Thompson, 415 U.S. 452, 466-67 (1974); Pratt v. Wilson, 770 F. Supp. 539, 545 (E.D. Cal. 1991).

9. 28 U.S.C. § 2202. Federal Rule of Civil Procedure 57, adopted pursuant to the Act, provides that (1) a jury trial is authorized if otherwise available for the claims presented and (2) an applicant for a declaratory judgment may seek a speedy hearing on the court’s calendar.

10. United Teacher Associates Insurance Company v. Union Labor Life Insurance Company, 414 F.3d 558, 570 (5th Cir. 2005); Ashmus v. Calderon , 123 F.3d 1199, 1206 (9th Cir. 1997), rev’d on other grounds, 523 U.S. 740 (1998). See infra Section 9.3.C.

11. 28 U.S.C. § 2201(a). The Supreme Court addressed this requirement in the context of a declaratory judgment action in MedImmune v. Genentech, 549 U.S. 118 (2007). In that patent case, the Court held that the district court had jurisdiction to hear a declaratory judgment action brought by a party who voluntarily paid patent royalty fees despite its belief that the underlying patent was invalid because the patent holder threatened to enforce the patent. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325 (1936) (upholding constitutionality of the Act under Article III). See also Already LLC v. Nike Incorporated, 133 S. Ct. 721, 726-27 (2013); Columbian Financial Corporation v. BancInsure Incorporated, 650 F.3d 1372 (10th Cir. 2011) (applying MedImmune decision); Prasco LLC v. Medicis Pharmaceutical Corporation, 537 F.3d 1329, 1336 (Fed. Cir. 2008) (applying MedImmune decision).

12. Aetna Life Insurance Company, 300 U.S. at 240-41.

13. Regarding standing, see Chapter 3.1 of this MANUAL.

14. Super Tire Engineering Company v. McCorkle, 416 U.S. 115, 125-26 (1974); Halkin v. Helms, 690 F.2d 977, 1008 (D.C. Cir. 1982). For further discussion of declaratory relief and mootness, see Already, 133 S. Ct. at 726-33; Milwaukee Police Association v. Board of Fire and Police Commissioners, 708 F.3d 921, 930-933 (7th Cir. 2013) (and cases cited therein). Because there must be an actual case or controversy, cases also must be ripe for declaratory relief. See Columbian Financial Corporation, 650 F.3d at 1376-85.

15. Skelly Oil Company v. Phillips Petroleum Company, 339 U.S. 667, 671-72 (1950).

16. Wilton v. Seven Falls Company, 515 U.S. 277, 288 (1995); Aetna Life Insurance Company, 300 U.S. at 240.

17. Skelly Oil, 339 U.S. at 671; Matthews International Corporation v. Biosafe Engineering LLC, 695 F.3d 1322 (Fed. Cir. 2012); Sierra Equity Group, 650 F. Supp. 2d at 1230.

18. Wilton, 515 U.S. at 286-87; Public Affairs Associates, Incorporated v. Rickover, 369 U.S. 111, 112 (1962).

19. Compare Wilton, 515 U.S. at 286, 288, with Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 818-20 (1976) (federal courts generally have “virtually unflagging obligation” to entertain and resolve disputes within their jurisdiction and may abstain from exercising that jurisdiction only under “exceptional circumstances”). See also Great American Insurance Company v. Gross, 468 F.3d 199, 210-12 (4th Cir. 2006) (discussing application of Wilton and Colorado River standards).

20. Smith & Usaha, supra note 2, at 116. See Wilton, 515 U.S. at 289-90 (holding that Act’s discretion is vested in district courts, not courts of appeal, and that district court’s exercise of discretion is itself reviewable under deferential abuse-of-discretion standard); Government Employees Insurance Company v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998); Sherwin-Williams Company v. Holmes County, 343 F.3d 383, 389 (5th Cir. 2003). 

21. Smith & Usaha, supra note 2, at 116, citing Wilton, 515 U.S. at 288; Green v. Mansour, 474 U.S. 64, 72-74 (1985); Rickover, 369 U.S. 111 at 112-13; Public Service Commission of Utah v. Wycoff Company, 344 U.S. 237, 243-47 (1952).

22. Smith & Usaha, supra note 2, at 116 (collecting cases); Wilton, 515 U.S. at 288; Green, 474 U.S. at 73; Wycoff, 344 U.S. at 244. See Scottsdale Insurance Company v. Flowers, 513 F.3d 546, 554 (6th Cir. 2008) for a discussion of somewhat different factors. For a detailed discussion of the factors applied by various circuits, see Sherwin-Williams Company, 343 F.3d at 387-92. 

23. Smith & Usaha, supra note 2, at 116-17.

24. Brillhart v. Excess Insurance Company of America, 316 U.S. 491 (1942). See also Gross, 468 F.3d at 210-12; Dizol, 133 F.3d at 1223-26 (applying Brillhart).

25. Smith & Usaha, supra note 2, at 117. For further discussion of this issue, see 12 James Wm. Moore et al., Moore's Federal Practice ¶ 57.42 (3d ed. 2010) and citations in note 24, supra

26. Smith & Usaha, supra note 2, at 117. In such cases, the claims arise under federal law, no parallel state court proceedings typically exist, and the prudential, comity, and efficiency concerns of Brillhart are inapplicable. But see Section 2.8.A.1 of this MANUAL regarding potential abstention issues when state administrative proceedings are pending. See also Hudson v. Campbell, 663 F.3d 985 (8th Cir. 2011); Brown ex rel. Brown v. Day, 555 F.3d 882 (10th Cir. 2009). For a detailed discussion of abstention issues, see Sarah Somers, National Health Law Program, Fact Sheet: Abstention (Dec. 2012).                

27. 28 U.S.C. § 2201(a). Declaratory judgments are accorded res judicata effect. Restatement (Second) of Judgments § 33 (1982).

28. Steffel, 415 U.S. at 466-67.

29. Steffel, 415 U.S. at 466-67, 471-72. See also Ulstein Maritime Limited v. United States, 833 F.2d 1052, 1055 (1st Cir. 1987).

30. Texas Employers' Insurance Association v. Jackson, 820 F.2d 1406, 1420 (5th Cir. 1987), rev’d on other grounds en banc, 862 F.2d 491 (5th Cir 1988); Fantasy Book Shop v. City of Boston, 652 F.2d 1115, 1125-26 (1st Cir. 1981). See also Steffel, 415 U.S. at 471-72; Animal Welfare Institute v. Martin, 623 F.3d 19, 29 (1st Cir. 2010); PGBA, LLC v. United States, 389 F.3d 1219, 1228 n.6 (Fed. Cir. 2004).

31. See, e.g., Wooley v. Maynard, 430 U.S. 705, 710-14 (1977); Doran v. Salem Inn Incorporated, 422 U.S. 922, 931 (1975); Perez v. Ledesma, 401 U.S. 82, 124-26 (1971) (Brennan, J., concurring); Samuels v. Mackell, 401 U.S. 66, 73 (1971).

32. 28 U.S.C. § 2202. See, e.g, Powell v. McCormack, 395 U.S. 486, 499 (1969). Principles of claim preclusion do not apply to Section 2202 actions. A request for a declaratory judgment does not preclude a subsequent action seeking injunctive relief or damages. Id. See also Horn & Hardart Company v. National Rail Passenger Corporation, 843 F.2d 546, 549 (D.C. Cir. 1988), cert. denied, 488 U.S. 849 (1988); Graham v. Gonzales, No. 03-1951 (RWR), 2005 U.S. Dist. LEXIS 36014, at *11 n.4 (D.C. Cir. Sept. 30, 2005); Polymer Industrial Products Company v. Bridgestone/Firestone, Incorporated, 347 F.3d 935, 939 (Fed. Cir. 2003).

33. Smith & Usaha, supra note 2, at 119. See Fed. R. Civ. P. 65(d).

34. Smith & Usaha, supra note 2, at 119-21.

35. See, e.g., Garrido v. Dudek, 731 F.3d 1152, 1159-60 (11th Cir. 2013); Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996); Bresgal v. Brock, 843 F.2d 1163, 1770 (9th Cir. 1987); Soto-Lopez v. New York City Civil Service Commission, 840 F.2d 162, 168 (2d Cir. 1988); Professional Association of College Educators v. El Paso County Community College District, 730 F.2d 258, 273-74 (5th Cir. 1984), cert. denied, 469 U.S. 881 (1984); Doe v. Gallinot, 657 F.2d 1017, 1025 (9th Cir. 1981); Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973), cert. denied, 417 U.S. 936 (1974). See also Just Film Incorporated v. Merchant Services Incorporated, No. 11-16677, 2012 U.S. App. LEXIS 6004, at *495 (9th Cir. Mar. 14, 2012) (granting classwide preliminary injunction where class certification still pending); Hernandez v. Reno, 91 F.3d 776, 781 (5th Cir. 1996) (“Class-wide relief may be appropriate in an individual action if such is necessary to give the prevailing party the relief to which he or she is entitled”); Sanjour v. U.S. Environmental Protection Agency, 7 F. Supp. 2d 14 (D.D.C. 1998) (and citations therein); Janis v. Nelson, CR 09-5019-KES, 2009 LEXIS 109593 (D.S.D. 2009).    

36. Smith & Usaha, supra note 2, at 120-23 & n.106 (collecting cases).

37. Id. at 125 & n.118 (citing numerous examples). For additional examples of cases in which legal services and other nonprofit legal organizations have obtained such broad-based declaratory or injunctive relief or both, see Garrido v. Dudek, 731 F.3d at 1159-60 (upholding injunction requiring state to cover applied behavioral analysis therapy under Medicaid); Price, 390 F.3d at 1117 (upholding injunction requiring city to provide relocation assistance to all individuals displaced from residential hotels); Alvarez v. Betlach, CV-09-558 (D. Ariz. May 21, 2012) (obtaining declaratory and injunctive relief prohibiting state Medicaid agency from excluding medically necessary incontinence briefs from coverage), appeal docketed, No. 12-16425 (9th Cir. June 20, 2012); Washington Autism Alliance and Advocacy v. Porter, No. 2:12-cv-00742 (W.D. Wash. Sept. 14, 2012) (lawsuit on behalf of autism advocacy organization and three individual children resulted in broad settlement agreement creating system for state to identify children needing applied behavior analysis therapy, establish eligibility criteria and documentation of need, identify and contract with providers, and offer therapy as medically needed); Hiltibran v. Levy, 793 F. Supp. 2d 1108, 1116-17 (W.D. Mo. 2011) (enjoining state from failing to cover medically necessary incontinence briefs for all adults); Eneliko v. Dreyfus, No. C11-312 (W.D. Wash. Feb. 28, 2011) (granting temporary restraining order preventing state from implementing emergency administrative rule that would have terminated Temporary Assistance for Needy Families and State Family Assistance benefits to families with children receiving Supplemental Security Income); De Leon v. Hialeah Housing Authority, No. 09-22087 (S.D. Fla. Dec. 16, 2010) (consent decree requiring local housing authority to institute new policies regarding processing of applications for subsidized housing); Smith v. Benson, 703 F. Supp. 2d 1262 (S.D. Fla. 2010) (requiring Medicaid coverage of adult diapers for children under federal Early Periodic Screening, Diagnosis, and Treatment program); Lankford v. Sherman, No. 05-4285, 2007 U.S. Dist. LEXIS 14950 (W.D. Mo. 2007) (enjoining implementation of state regulation that restricted Medicaid coverage of durable medical equipment); Santamaria v. Dallas Independent School District, No. 3:06-CV-692, 2006 U.S. Dist. LEXIS 83417 (N.D. Tex. Nov. 16, 2006) (enjoining school district from segregating students on basis of race or national origin); Health Care for All Incorporated v. Romney, 2005 U.S. Dist. LEXIS 14187 (D. Mass. July 14, 2005) (broad remedies for violations of Medicaid children’s health requirements without class action).  

Updated 2014 by Joel D. Ferber