TITLE 28 > PART VI > CHAPTER 151 > § 2201

§ 2201. Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, 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 or decree and shall be reviewable as such.

(b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act.

King v. U.S., 390 F.2d 894 (1968)

Since this is a reworking of old ground, not a first plowing, we start with the embedded authority. There are, of course, a raft of cases which can conceivably be seen as warning that a declaration may not be granted by this court or in suits against the United States.[FN2] The vast majority are quite distinguishable. Among them are decisions in which declaratory relief could not be granted because the suit was ‘with respect to federal taxes', a category expressly exempt from the Declaratory Judgment Act, [FN3] and those in which the prayer for relief, either explicitly or as construed by the court, was for specific relief.[FN4] *898 Nor do we think that any considered implication of the absence of the remedy can be drawn from decisions limiting a money recovery in this court to the amount owing at the date of judgment;[FN5] holding that, for the purposes of the statute of limitations, ‘no cause of action accrues before the claimant can bring a suit for a money judgment’;[FN6] and indicating that the Tucker Act does not supply jurisdiction to grant nominal damages.[FN7]

FN2. We deal only with declaratory relief against the United States eo nomine, not with declarations directed exclusively to specific public officals. ‘There can now be little question that a suit will lie against a * * * (public officer) for acting beyond his statutory authority, even though a subordinate, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628; and the declaratory judgment, together with an enforcing injunction, furnishes a proper device to test the scope of this authority. Joint Anti-Facist Refugee Committee v. McGrath, 341 U.S. 123, 139-140, 71 S.Ct. 624, 95 L.Ed. 817.’ United States Lines Co. v. Shaughnessy, 195 F.2d 385, 386 (C.A.2, 1952).

It is clear that the district courts, under the jurisdictional grants of 28 U.S.C. ss 1331(a), 1361 (1964) (and the pertinent District of Columbia provisions) and within the venue limitations of 28 U.S.C. s 1391(e) (1964), may issue declaratory judgments and relief in the nature of mandamus with respect to corrections in military records when the responsible official has exceeded his statutory or constitutional powers. See, e.g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 388 F.2d 557 (C.A.D.C., Oct. 17, 1967) No. 20,584); Ashe v. McNamara, 355 F.2d 277 (C.A.1, 1965); Ogden v. Zuckert, 111 U.S.App.D.C. 398, 298 F.2d 312 (C.A.D.C., 1961); Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852 (1961).

FN3. See, e.g., Sweeney v. United States, 285 F.2d 444, 447, 152 Ct.Cl. 516, 522 (1961); Wilson v. Wilson, 141 F.2d 599, 600 (C.A.4, 1944); Farmer v. Hooks, 194 F.Supp. 1 (E.D.Ky.1961).

FN4. See Blanc v. United States, 244 F.2d 708 (C.A.2), cert. denied, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957); Kelly v. United States, 138 F.Supp. 244, 133 Ct.Cl. 571 (1956); Gaines v. United States, 131 F.Supp. 925, 132 Ct.Cl. 408 (1955); Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686 (1953), cert. denied, 347 U.S. 927, 74 S.Ct. 530, 98 L.Ed. 1080 (1954); Hart v. United States, 91 Ct.Cl. 308 (1940); Ford Bros. & Co. v. Eddington Distilling Co., 30 F.Supp. 213 (M.D.Pa.1939).

FN5. See, e.g., Shaw v. United States, 357 F.2d 949, 963, 174 Ct.Cl. 899, 920 (1966). This is a routine practice followed for years without inquiry into the possibility of extending recovery beyond the date of judgment.

FN6. Oceanic S.S. Co. v. United States, 165 Ct.Cl. 217, 218 (1964). There the court did not reconsider the possibility of a declaratory remedy. We do not decide whether the availability of declaratory relief would require a reevaluation of the Oceanic holding. Compare Luckenbach S.S. Co. v. United States, 312 F.2d 545 (C.A.2, 1963); American-Foreign S.S. Corp. v. United States, 291 F.2d 598 (C.A.2), cert. denied, 368 U.S. 895, 82 S.Ct. 171, 7 L.Ed.2d 92 (1961).

FN7. ‘(T)he futile exercise of suing merely to win a suit was not consented to by the United States when it gave its consent to be sued for its breaches of contract.’ Severin v. United States, 99 Ct.Cl. 435, 443 (1943) (alternative holding), cert. denied, 322 U.S. 733, 64 S.Ct. 1045, 88 L.Ed. 1567 (1944). In Severin the court relied on one of the ‘Gold Clause’ cases, Nortz v. United States, 294 U.S. 317, 327, 55 S.Ct. 428, 430, 79 L.Ed. 907 (1935), where the Supreme Court stated that ‘the Court of Claims has no authority to entertain the action, if the claim is at best one for nominal damages.’ Accord, Perry v. United States, 294 U.S. 330, 355, 55 S.Ct. 432, 79 L.Ed. 912 (1935); Marion & R.V. Ry. Co. v. United States, 270 U.S. 280, 282, 46 S.Ct. 253, 70 L.Ed. 585 (1926); Grant v. United States, 7 Wall. 331, 338, 19 L.Ed. 194 (1868) (alternative holding).

While a suit for nominal damages, like a declaratory judgment, may be instituted ‘to establish a right’ for the purpose of terminating an ongoing dispute or of avoiding future damages (Restatement of Ttorts s 907, comment b, at 553 (1939)), it is sometimes used for pure vindication without any view to the future or redress for the judicially cognizable effects of the past (see, e.g., ibid.; Wilson v. Eberle, 18 F.R.D. 7, 9, 15 Alaska 651 (D. Alaska 1955)). In the cases cited above, nominal damages were thought to serve, at best, only the latter function; there was deemed to be no real existing injury. The decisions should not, therefore, be read as antagonistic to the use of the declaratory device to adjudicate rights and liabilities without regard to the question of the recovery of damages, but rather as a particularized application of the doctrine that the federal courts cannot act in the absence of an existing ‘case’ or ‘controversy’. (It is hardly likely, moreover, that the Supreme Court had the Declaratory Judgment Act in mind when it decided the ‘Gold Clause’ cases since that innovation had been adopted only a few months before.) That the ‘nominal damages' cases do allow separation of the issues of liability and damages is bolstered by the Court's careful distinction in Perry v. United States, supra, 294 U.S. at 354, 55 S.Ct. at 436, between the questions of ‘the binding quality of the government's obligations' and ‘plaintiff's right to recover damages.’ Our practice under Ct.Cl.R. 47 has long been to first determine liability and then to determine the recovery, if any, to which the plaintiff is entitled. See Part III infra.

In addition, the denial of declaratory relief in this court and in other suits against the United States has often rested squarely on the ground that the court had not right to grant any relief (money award, specific relief, or declaratory judgment) because, in the various phrasings used in the opinions, the Government had not consented to be sued on the particular cause of action, the matter was nonjusticiable, there was no jurisdiction over the subject matter, the issue was legislatively committed to exclusive agency discretion, relief would interfere with the remedial scheme established by the Congress, or the claimant failed to *899 set up any valid cause of action.[FN8] Similarly, in many of the cases saying broadly that a declaration cannot be given in litigation against the Government, the real concern was that granting a declaratory judgment would improperly circumvent the restrictions (judicial or legislative) on other forms of relief.[FN9]

FN8. Rolls-Royce Ltd. v. United States, 364 F.2d 415, 419-420, 176 Ct.Cl. 694, 701 (1966) (intervenor's counterclaim against plaintiff-lack of jurisdiction); Drill v. United States, 157 Ct.Cl. 945 (1962) (order), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963) (plaintiff had no constitutional or statutory right to a federal job); Savorgnan v. United States, 171 F.2d 155, 159 (C.A.7, 1948), aff'd on other grounds, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287 (1950) (United States citizenship-no consent to suit); Love v United States, 108 F.2d 43, 50 (C.A.8, 1939), cert. denied, 309 U.S. 673, 60 S.Ct. 716, 84 L.Ed. 1018 (1940) (denial of federal employment-nonjusticiable because committed to agency discretion); Wohl Shoe Co. v. Wirtz, 246 F.Supp. 821 (E.D.Mo.1965) (liability under Fair Labor Standards Act-nonjusticiable because exclusive remedy lies in defense of Secretary of Labor's enforcement suit); Bell v. United States, 203 F.Supp. 371, 374 (W.D.Wis.1962) (alternative holding) (length of criminal sentence-no consent); Di Battista v. Swing, 135 F.Supp. 938 (D.Md.1955) (suit to have immigration bond declared not breached even though Government had not collected on the bond); Birge v. United States, 111 F.Supp. 685 (W.D.Okl.1953) (refusal to add disability-income clause to National Service Life Insurance Act policy-not subject to judicial review); Schilling v. United States, 101 F.Supp. 525 (E.D.Mich.1951) (refusal to issue National Service Life Insurance Act policy-not subject to judicial review); New York Technical Institute of Md. v. Limburg, 87 F.Supp. 308, 311-313 (D.Md.1949) (alternative holding) (regulation of Trade School tuition under Servicemen's Readjustment Act-nonjusticiable because committed to agency discretion); Commers v. United States, 66 F.Supp. 943, 949-950 (D.Mont.1946) (alternative holding), aff'd per curiam, 159 F.2d 248 (C.A.9), cert. denied, 331 U.S. 807, 67 S.Ct. 1189, 91 L.Ed. 1828 (1947) (induction into Army as a taking-no consent).

Declaratory relief against the United States has also been denied when the subject matter was within the exclusive jurisdiction of the Court of Claims. See Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912 (C.A.2), cert. denied, 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188 (1960) (amount in contract suit exceeded $10,000); Powers v. United States, 218 F.2d 828 (C.A.7, 1954) (retirement benefits); Richfield Oil Corp. v. United States, 207 F.2d 864, 868, 871-872 (C.A.9, 1953) (alternative holding) (Court of Claims remedy for claim in excess of $10,000 precludes jurisdiction based on Administrative Procedure Act); Aktiebolaget Bofors v. United States, 90 U.S.App.D.C. 92, 194 F.2d 145, 150 (1951) (amount in contract suit exceeded $10,000). Even where mandamus or specific relief might properly lie against a Government officer, see note 2 supra, the courts have sometimes declined, most often as a matter of discretion, to issue a declaratory judgment against the official when the plaintiff has a remedy in the Court of Claims. See Almour v. Pace, 90 U.S.App.D.C. 63, 193 F.2d 699 (1951); Di Benedetto v. Morgenthau, 80 U.S.App.D.C. 34, 148 F.2d 223 (C.A.D.C.), petition for cert. dismissed on motion of petitioner, 326 U.S. 686, 66 S.Ct. 25, 90 L.Ed. 402 (1945); Western v. MeGehee, 202 F.Supp. 287, 293-294 (D.Md.1962) (alternative holding); cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 132, 60 S.Ct. 869, 84 L.Ed. 1108 (1940).

FN9. This class is illustrated by a number of examples: (i). The Supreme Court has indicated that the judiciary should keep its hands off executive dealings in publicly-owned real property and that inverse condemnation suits for constitutional takings should be considered the primary avenue of relief. See Malone v. Bowdoin, 369 U.S. 643, 646-648, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 703-705 & n. 27, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). In our view this attitude permeates the denials of declaratory relief in Anderson v. United States, 229 F.2d 675 (C.A.5, 1956) (Veteran's Administration disposal of condemned lands); Lynn v. United States, 110 F.2d 586 (C.A.5, 1940) (declaration of rights under deed of land made to United States); Trueman Fertilizer Co. v. Larson, 196 F.2d 910, 911 (C.A.5, 1952) (dictum) (General Services Administration's disposal of condemned lands).

(ii). Int.Rev.Code of 1954, s 7421(a), states: ‘Except as provided in sections 6212(a) and (c) and 6213(a) (suits in the Tax Court), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.’ Relying on this statement of Congressional policy, rather than the Declaratory Judgment Act's specific exception for suits ‘with respect to federal taxes', some courts have refused to enter a declaratory judgment against the Government where the administration of the tax laws was, directly or indirectly, at issue. See Balistrieri v. United States, 303 F.2d 617 (C.A.7, 1962) (right to inspect books in possession of special revenue agent); Zito v. Tesoriero, 239 F.Supp. 354 (E.D.N.Y.1965) (dispute over property claimed, in part, by United States under revenue laws). But see Pettengill v. United States, 205 F.Supp. 10, 12 (D.Vt.1962) (alternative holding). See also note 14 infra.

(iii). Declaratory judgments have been refused where a writ of habeas corpus (the accepted remedy for prisoners) was unavailable, the courts saying that the petition was premature, the petitioner failed to exhaust his administrative remedies, the writ had been denied in a prior proceeding, or the petition lacked merit. See Gibson v. United States, 161 F.2d 973 (C.A.6, 1947); Innes v. Hiatt, 57 F.Supp. 17 (M.D.Pa.1944); United States v. Rollnick, 33 F.Supp. 863, 866-867 (M.D.Pa.1940).

(iv). Since the Interstate Commerce Act provides for relief from Commission actions, a litigant cannot ‘by-pass the statutory requirements and then rely on his refusal to follow the statutory procedure as creating the ‘actual controversy’ contemplated in the Declaratory Judgment Act.' Isner v. ICC, 90 F.Supp. 361, 366 (E.D.Mich.1950).

(v). Where Congress has made ‘the recommendation of the head of the Agency and the approval of the Civil Service Commission conditions precedent to the granting of these higher (retirement) benefits, (and) has not laid down any rules under which the recommendations of the head of the agency shall be granted’, a judicial probe of the officials' reasoning “would amount to a clear invasion of the legislative and executive domains.” Gibney v. United States, 146 F.Supp. 135, 140 (S.D.Cal.1956), quoting United States v. George S. Bush & Co., 310 U.S. 371, 380, 60 S.Ct. 944, 84 L.Ed. 1259 (1940). A similar rationale appear in Wells v. United States, 280 F.2d 275 (C.A.9, 1960), in which the court was asked to render a declaratory judgment relating to what it considered an unreviewable Atomic Energy Commission determination of the proper sale price for Government lands leased by the AEC to the plaintiff.

Some of the cases in this and the preceding note were brought against a public officer in addition to, or rather than, the United States. Even though the courts tended to treat the suits as ‘in effect’ against the United States or to separate the issues of the suability of the sovereign and that of the officer, the practical unavailability (to courts other than those in the District of Columbia) of general mandamus power in suits against Government officials obviously made the judges less inclined to grant declaratory relief against either the United States or the named officials. Under 28 U.S.C. ss 1331(a), 1361, 1391(e) (1964), the power to issue relief in the nature of mandamus is now available to all district courts. E.g., Ashe v. McNamara, 355 F.2d 277, 279 (C.A.1, 1965). See also note 2 supra.

*900 This survey shows, we think, that we need not be daunted in our reconsideration by the great mass of the repeated observations that the declaratory device is unavailable in actions against the sovereign. We are faced, however, with a small residue of decisions truly in point, mainly those of our own authorship. The leading adverse case, Twin Cities Properties, Inc. v. United States, 81 Ct.Cl. 655 (1935), was decided the year after the Declaratory Judgment Act. Others which followed Twin Cities, explicitly or implicitly, are United States Rubber Co. v. United States, 160 F.Supp. 492, 500, 142 Ct.Cl. 42, 55 (1958); Prentiss v. United States, 115 Ct.Cl. 78, 81 (1949) (‘in effect’ a suit for a declaratory judgment); and Yeskel v. United States, 31 F.Supp. 956, 957-958 (D.N.J.1940). See also Cobb v. United States, 240 F.Supp. 574, 577-579 (W.D.Ark.1965) (construing a prayer for declaratory relief as a prayer for money judgment.)

[. . .]

Again, money judgments and declaratory judgments are both res judicata in later suits between the parties. Declarations have, by statute, ‘the force and effect of a final judgment or decree’ and, therefore, collaterally estop the litigants from retrying issues. See, e.g., Green v. United States, 172 F.Supp. 679, 145 Ct.Cl. 628 (1959). The doctrine of collateral estoppel also applies to a money judgment, even though the recovery is usually limited to the amount accrued by the judgment date. See *907 Moser v. United States, 42 Ct.Cl. 86 (1907); 49 Ct.Cl. 285 (1914), appeal dismissed on motion of appellant, 239 U.S. 658, 36 S.Ct. 445, 60 L.Ed. 489 (1915); 53 Ct.Cl. 639 (1918); 58 Ct.Cl. 164 (1923), aff'd, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262 (1924).[FN24]

FN24. This is a famous series of cases in which the claimant sued, successively and successfully, for his pay when the military refused for a great number of years to acquiesce in this court's original ruling. The Comptroller General has adhered to the Moser principle, thus making it unnecessary for litigants to continually prosecute claims already adjudicated by the court. See 44 Comp.Gen. 821, 822-23 (1965) (No. B-141326); 36 Comp.Gen. 501 (1957) (No. B-6882); 36 Comp.Gen. 489, 491-92 (1957) (No. B-114422).

The sum of it is that this manifold kinship between our money awards and declaratory judgments presses us to disagree strongly with the conclusion in Twin Cities that the Declaratory Judgment Act ‘concerns a proceeding * * * foreign to any jurisdiction this court has heretofore exercised.’ On the contrary, the ‘foreign’ proceeding is a very close and domestic relative indeed.

3. Furthermore, to countenance declaratory proceedings in this court would not subject the Government to strange and alien practices. The United States has instituted many declaratory actions. See, e.g., Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); State of Wyoming v. United States, 310 F.2d 566 (C.A.10, 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 977 (1963); Mashunkashey v. United States, 131 F.2d 288, 290-291 (C.A.10, 1942), cert. denied, 318 U.S. 764, 63 S.Ct. 665, 87 L.Ed. 1136 (1943). More important, actions for declaratory relief against Government officers are often brought in the district courts (see note 2 supra), and the issues in may of those cases clearly could and do form the basis for Tucker Act suits against the United States in this court. Examples are suits relating to removal of an employee, discharge or separation of a soldier, retirement pay of officers, or court-martial orders dismissing a serviceman.

For the past decade we have consistently held that district court declaratory judgments against public officers will usually collaterally estop both the plaintiff and the United States from relitigating the issues here. See Technograph Printed Circuits, Ltd. v. United States, 372 F.2d 969, 974-975, 178 Ct.Cl. 543, 550-551 (1967); Green v. United States, 172 F.Supp. 679, 145 Ct.Cl. 628 (1959); Edgar v. United States, 171 F.Supp. 243, 145 Ct.Cl. 9 (1959); Larsen v. United States, 170 F.Supp. 806, 145 Ct.Cl. 178 (1959); Williams v. United States, 139 F.Supp. 951, 134 Ct.Cl. 763 (1956).[FN25] But see Marshall v. Crotty, 185 F.2d 622, 628 (C.A.1, 1950). Compare O'Brien v. United States, 148 Ct.Cl. 1 (1960) (laches). Thus, in actual practice, the Government has long been subject to binding declaratory judgments involving certain Tucker Act causes of action.

FN25. Two earlier cases to the contrary (O'Brien v. United States, 124 Ct.Cl. 655 (1953), and Levy v. United States, 118 Ct.Cl. 106 (1950), overruled in subsequent order, 169 Ct.Cl. 1020, 1023, cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed.2d 100 (1965)) were disapproved in Edgar v. United States, supra, 171 F.Supp. at 248, 145 Ct.Cl. at 16.

[ King v. U.S., 390 F.2d 894 (1968)]

Kegley v. Kegley, 16 Cal.App.2d 216, 60 P.2d 482, Cal.App. 3 Dist. 1936.

Copyright Family Guardian Fellowship