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Declaratory Judgment as a Quasi-Injunction

Traditionally, in order to obtain an injunction, a plaintiff must prove four elements: “A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and that an (4) injunction is in the public interest. If an injunction is issued, a defendant is ordered to do, or not to do something. Failure to comply with the order can result in contempt of court.

Often injunctive relief is sought alongside a declaratory judgment. Under the Declaratory Judgment Act, in “a case of actual controversy” (it does not say “case or controversy”), courts have jurisdiction to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” In other words, courts can declare the validity of some law or practice, even if injunctive relief is not sought. Often, it may be the case where a plaintiff seeks both injunctive and declaratory relief. In some cases, Injunctive relief may be denied (for example, there is no showing of irreparable harm), but a declaratory judgment issues, finding that the action or law at issue is illegal.

What is the effect of a declaratory judgment? The DJA says “Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.” But merely obtaining a declaratory judgment is not self-executing in controlling the conduct of a defendant. Ignoring a declaratory judgment would not place a defendant in contempt. Rather, if the defendant does what the declaratory judgment expressly frowns upon, the plaintiff would have to seek an injunction. And, more likely than not, the plaintiff would cite the declaratory judgment as evidence for likelihood of success on the merits.

What is the preclusive effect of a declaratory judgment? The Supreme Court has not weighed in on this issue directly, though a dispute between separate opinions from Justice White and Justice Rehnquist in Steffel v. Thompson (1974) illuminates two opposite positions.

Justice Rehnquist doubts that the issuance of a declaratory judgment in the context of the validity of a state prosecution should have res judicata effect:

The Court quite properly leaves for another day whether the granting of a declaratory judgment by a federal court will have any subsequent res judicata effect or will perhaps support the issuance of a later federal injunction. But since possible resolutions of those issues would substantially undercut the principles of federalism reaffirmed inYounger v. Harris, 401 U. S. 37 (1971), and preserved by the decision today, I feel it appropriate to add a few remarks.

Though the opinion is couched in terms of the federalism concerns of Younger v. Harris, and federal courts interfering with state prosecutions, the jurisdictional implications of the Declaratory Judgment Act seem to be applicable in the civil context as well.

If the rationale of cases such as Younger and Samuels turned in any way upon the relative case with which a federal district court could reach a conclusion about the constitutionality of a challenged state statute, a pre-existing judgment declaring the statute unconstitutional as applied to a particular plaintiff would, of course, be a factor favoring the issuance of an injunction as “further relief” under the Declaratory Judgment Act. But, except for statutes that are ” `flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph . . . ,’ “Younger v. Harris, supra, at 53, the rationale of those cases has no such basis.

And in a proceeding seeking injunctive relief, the equities would have to be balanced under the traditional concerns:

A declaratory judgment is simply a statement of rights, not a binding order supplemented by continuing sanctions. State authorities may choose to be guided by the judgment of a lower federal court, but they are not compelled to follow the decision by threat of contempt or other penalties. If the federal plaintiff pursues the conduct for which he was previously threatened with arrest and is in fact arrested, he may not return the controversy to federal court, although he may, of course, raise the federal declaratory judgment in the state court for whatever value it may prove to have.[3] In any event, the defendant at that point is able to present his case 483*483 for full consideration by a state court charged, as are the federal courts, to preserve the defendant’s constitutional rights. Federal interference with this process would involve precisely the same concerns discussed in Younger and recited in the Court’s opinion in this case.

Justice White countered, and said a declaratory judgment would be per se dispositive to decide a subsequent injunctive proceeding.

At this writing at least, I would anticipate that a final declaratory judgment entered by a federal court holding particular conduct of the federal plaintiff to be immune on federal constitutional grounds from prosecution under state law should be accorded res judicata effect in any later prosecution of that very conduct. There would also, I think, be additional circumstances in which the federal judgment should be considered as more than a mere precedent bearing on the issue before the state court.

Neither can I at this stage agree that the federal court, having rendered a declaratory judgment in favor of the plaintiff, could not enjoin a later state prosecution for conduct that the federal court has declared immune. The Declaratory Judgment Act itself provides that a “declaration shall have the force and effect of a final judgment or decree,” 28 U. S. C. § 2201; eminent authority anticipated that declaratory judgments would be res judicata, E. Borchard, Declaratory Judgments 10-11 (2d ed. 1941); and there is every reason for not reducing declaratory judgments to mere advisory opinions

In other words, if a declaratory judgment is issued finding that a defendant can’t do X, and the defendant does X, then an injunction shall issue, without question. This is in contrast to Rehnquist, who said that it is merely persuasive.

If Justice White is correct, and obtaining a declaratory judgment has automatic res judicata effect for any future injunctive relief, then the declaratory judgment seems to serve as a quasi-injunction, which can be obtained in the absence of satisfying the four traditional elements. Granted, procedurally, it would require two separate proceedings: first, obtaining a declaratory judgment, and second, seeking injunctive relief based on the declaratory judgment. But in this context, the declaratory judgment serves as a quasi-injunction, which a plaintiff can hold over a defendant’s head to strongly dissuade him from acting in conflict with the declaration.

As a practical matter, and probably for this reason, I doubt defendants would flagrantly ignore a declaratory judgment. I can’t imagine the government willfully disregarding a declaratory judgment from a court. If this is the case, then indeed the declaratory judgment serves as a backdoor, quasi-injunction, where the four factors need not be met. At some point I’ll write something more about this. If anyone is familiar with any articles on point (I’m sure there are many) please drop me a line.

A brief aside on the Declaratory Judgment Act and advisory opinions). White’s opinion  is premised on the fact that because the declaratory judgment can’t be an advisory opinion, it must have the force of law. If the declaratory judgment wasn’t preclusive, then it would be very close to an advisory opinion. Note how the introductory text of the declaratory judgment act speaks in terms of “a case of actual controversy” (it does not say “case or controversy”). It was always dubious in my mind if a declaratory judgment could be issued where there was not a live case or controversy under Article III. In the absence of a live case, it would be an advisory opinion. Courts have dismissed DJA suits because the issue was not yet ripe, but I don’t think all of the rules for Article III “Case or controversy” have been imported to a DJA.

For example, Justice Rehnquist notes in his Steffen opinion, “my reading of the legislative history of the Declaratory Judgment Act of 1934 suggests that its primary purpose was to enable persons to obtain a definition of their rights before an actual injury had occurred.” In other words, there is often no injury-in-fact, a key element necessary under Lujan, present in Declaratory Judgment Actions).

Also relevant is Justice Frankfurter’s opinion in Skelly Oil (1950), noting that the DJA did not expand Article III jurisdiction:

Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff’s right even though no immediate enforcement of it was asked. But the requirements of jurisdiction—the limited subject matters which alone Congress had authorized the District Courts to adjudicate—were not impliedly repealed or modified.

The DJA is still subject to the requirements of Article III, and the jurisdictional limits imposed by statute. This confirms my belief that the DJA, more often than not, results in the issuance of advisory opinions. To use Frankfurter’s example, a court under the DJA could interpret a contract even if the parties seek no damages or injunction. There would not be a live case or controversy, and it seems to me to be an advisory opinion.

H/T Paul Salamanca for helping me think this through. 

Cross-Posted at JoshBlackman.com

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