Anatol Zukerman v. USPS

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2022 Decided April 14, 2023

No. 21-5283

ANATOL ZUKERMAN AND CHARLES KRAUSE REPORTING, LLC,

A D.C. LIMITED LIABILITY COMPANY,

APPELLANTS

v.

UNITED STATES POSTAL SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-02131)

Julius P. Taranto argued the cause for appellants. With

him on the briefs were K. Chris Todd and Eric J. Maier.

Joshua M. Salzman, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Daniel Tenny, Attorney.

Before: SRINIVASAN, Chief Judge, MILLETT, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Beginning in about

2005, the United States Postal Service (“USPS” or “Postal

Service”) offered a customized postage program. Customers

could navigate to a website of an authorized third-party vendor,

upload a custom design including text or images, pay a fee,

print their custom stamps, and then use or hold their stamps as

they saw fit. Anatol Zukerman sought the services of the

customized postage program to print copies of an adaptation of

his drawing of Uncle Sam being strangled by a snake labeled

“Citizens United” and configured as a dollar sign. However,

acting through Zazzle, Inc., a third-party vendor, USPS

rejected Zukerman’s proposed design due to its partisan

message, even as it accepted other customers’ postage designs

with obvious political content. In 2015, Zukerman filed a

complaint in the District Court against the Postal Service

contending that USPS’s customized postage program violated

the prohibition against viewpoint discrimination under the First

Amendment. See Zukerman v. USPS, 961 F.3d 431, 436-41

(D.C. Cir. 2020).

In 2018, while Zukerman’s case was pending in the District

Court, the Postal Service amended the guidelines of its

customized postage program to prohibit, inter alia, all

“political” stamps. Zukerman filed a Supplemental Complaint

incorporating by reference every allegation from his First

Amended Complaint and further alleging that the 2018

Guidelines was unconstitutional on its face. Id. at 435. The

District Court dismissed the case, holding that the new

guidelines were not facially unconstitutional and that

Zukerman’s as-applied challenge to his initial rejection was

mooted by the new guidelines. Zukerman v. USPS, 384 F.

Supp. 3d 44, 53-54, 67 (D.D.C. 2019). Zukerman appealed to

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this court. On appeal, we reversed and remanded, holding that

the new guidelines’ ban on “political” stamps was facially

unconstitutional and that Zukerman’s as-applied challenge was

not moot because the effects of his injury persisted. Zukerman,

961 F.3d at 435-36. The court noted in particular that

“Zukerman still does not have his stamps” and no intervening

events have “invalidated any postage issued under the prior

policy.” Id. at 443.

Shortly after this court reversed the District Court’s first

decision and remanded the case for further proceedings, the

Postal Service shuttered the customized postage program

entirely. Zukerman then asked the District Court to issue “an

order requiring USPS to print valid U.S. postage bearing his

Citizens United drawing or, failing that, to ‘make reasonable

efforts’ to recall from circulation or ‘decertify’ all political

designs that it previously issued under the program.”

Zukerman v. USPS, 567 F. Supp. 3d 161, 164 (D.D.C. 2021).

The District Court rejected these requests for injunctive relief

as infeasible, and Zukerman suggested no viable alternatives.

Because the customized postage program was no longer in

operation, the District Court found the likelihood of any future

violations “sufficiently remote to make” injunctive relief

inappropriate. Id. at 178 (internal quotation marks omitted).

The court therefore granted summary judgment and declaratory

relief to Zukerman but declined to award injunctive relief.

Zukerman v. USPS, No. 15-CV-2131, 2021 WL 5310572, at *3

(D.D.C. Nov. 15, 2021). Zukerman now appeals the District

Court’s denial of injunctive relief. We affirm.

We first note that Zukerman has standing to seek injunctive

and declaratory relief. The Postal Service rejected his

customized stamp design due to its partisan message even as

USPS accepted other customers’ postage designs with obvious

political content. As a result, Zukerman suffered viewpoint

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discrimination and his continuing inability to speak through

custom stamps while others can is sufficient to support

standing. However, as we explain in the opinion below, the fact

that Zukerman has suffered injury sufficient to confer standing

to seek injunctive relief does not necessarily make such relief

appropriate on the merits. The District Court pointed out that

“developments over the last six years have resulted in

Zukerman obtaining nearly everything he originally sought in

this case. . . . [T]he program, its regulations, its vendors, and

any accompanying speech restrictions and viewpoint

discriminatory conduct are no more. All that is left (apart from

attorneys’ fees) is Zukerman’s request for declaratory relief.”

Id. The District Court thus entered an Order granting summary

judgment for Zukerman and declaring that USPS is liable for

viewpoint discrimination in violation of the First Amendment.

We find no error in this judgment.

I. BACKGROUND

A. The Original Litigation Before the District Court

In 2013, Anatol Zukerman sought to promote his artwork

by printing one of his pieces criticizing the Supreme Court’s

decision in Citizens United v. Fed. Election Comm’n, 558 U.S.

310 (2010), on a customized postage stamp. Zukerman

submitted his design to Zazzle, Inc., a private vendor with

delegated authority to print customized postage on behalf of the

Postal Service. However, Zazzle rejected the design for

violating its guidelines prohibiting stamps that are “primarily

partisan or political in nature.” Joint Appendix (“J.A.”) 293.

Zukerman and the operator of his art gallery, Charles Krause

Reporting, LLC, filed suit in the District Court on December 9,

2015, alleging that this denial constituted viewpoint

discrimination in violation of the First and Fifth Amendments.

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Zukerman’s first amended complaint sought six forms of

relief: (1) a declaration that the Postal Service had engaged in

unlawful content and viewpoint discrimination; (2) a

permanent injunction barring the Postal Service from

continuing to engage in the allegedly unlawful conduct; (3) a

permanent injunction barring the Postal Service from

delegating the function of making and selling postage to any

person that engages in content or viewpoint discrimination; (4)

an order directing the Postal Service not to permit Zazzle to

make and sell U.S. custom postage stamps unless and until it

agreed to print the Citizens United stamp; and (5) an order

requiring the Postal Service to refrain from enforcing 39

C.F.R. § 501.7(c), which governs providers of Postal

Evidencing Systems, insofar as it applies to the custom stamp

program; (6) an award of costs and reasonable attorneys’ fees

and expenses; and (7) a general prayer for such other relief as

the court deemed proper. J.A. 176. In 2018, in response to

Zukerman’s suit, the Postal Service and Postal Regulatory

Commission promulgated a new rule that prohibited “[a]ny

depiction of political, religious, violent or sexual content.” 39

C.F.R. § 501.21(b) (2018) (“2018 Guidelines”). Additionally,

the Postal Service terminated Zazzle as a customized postage

provider.

Zukerman amended his first amended complaint with a

supplemental complaint incorporating a First Amendment

challenge to the 2018 Guidelines. However, in April 2019, the

District Court granted the Postal Service’s motion to dismiss

on the grounds that the facial challenge to the 2018 Guidelines

failed as a matter of law, and the challenge to Zazzle’s rejection

of Zukerman’s stamp was moot because the 2018 Guidelines

supplanted the original policy that was used to justify the

rejection of Zukerman’s customized postage design.

Zukerman, 384 F. Supp. 3d at 53-54, 67. Zukerman appealed

to this court.

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B. The First Appeal to This Court

In June 2020, this court reversed the judgment of the

District Court. We held that the 2018 Guidelines were facially

unconstitutional because the ban on all “political” postage

failed to offer objective, workable standards. Zukerman, 961

F.3d at 447.

The court also held that the viewpoint discrimination claim

was not moot because the Postal Service had not “eradicated

the effects of its alleged violations.” Id. at 443. In reaching this

conclusion, we pointed out that the injury persisted because

“Zukerman still does not have his stamps” and no intervening

events have “invalidated any postage issued under the prior

policy.” Id. In other words, Zukerman was clearly injured when

the Postal Service rejected his customized stamp design due to

its partisan message even as USPS accepted other customers’

postage designs with obvious political content and the effects

of the injury persisted. Therefore, because Zukerman’s

viewpoint discrimination claim was not moot, the case was

remanded for further proceedings. Id. at 446.

C. Remand

Shortly after this court’s decision issued, the Postal Service

terminated the customized postage program and ended its

relationships with all vendors of customized postage. See 85

Fed. Reg. 41,394 (July 10, 2020). On remand, the District

Court granted summary judgment in favor of Zukerman on his

viewpoint discrimination claim. Zukerman, 567 F. Supp. 3d at

174-76. However, because the customized postage program no

longer existed, the District Court denied Zukerman’s request

for injunctive relief.

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Specifically, Zukerman sought an injunction to force the

Postal Service to print or allow Zukerman himself to print valid

stamps bearing Zukerman’s design. Id. at 177-78. The District

Court denied this relief because the termination of the

customized postage program rendered the likelihood of further

violations remote, granting the relief would force the Postal

Service to resurrect the entire program, and it was unclear that

the Postal Service even had the necessary authority to print any

more customized stamps. Id. at 178-79.

Alternatively, Zukerman sought an injunction requiring the

Postal Service to recall, repurchase, or invalidate outstanding

political postage. Id. at 179. The District Court rejected this

suggestion because “[t]hat exercise would require the Postal

Service to engage in the same ‘haphazard interpretation[ ]’ of

the term ‘political’ that led the D.C. Circuit to strike down the

2018 version of USPS’s content guidelines.” Id. at 164.

Additionally, the court found that it would be a “massive drain

on public resources” to require the Postal Service to review

each design to isolate the relatively few potentially “political”

stamps. Id. at 179. Finally, the record indicates that the Postal

Service has no way to sort customized from non-customized

stamps and has neither information on who owns existing

customized postage nor authority to force Zazzle to seek out

this information. Id.; see also J.A. 896-97, 1518.

The District Court requested supplemental briefing on

alternative remedies. Zukerman, 567 F. Supp. 3d at 179.

However, Zukerman chose “to stick to his guns” and demand

that the Postal Service print his design. Zukerman, 2021 WL

5310572, at *2. The District Court again declined,

summarizing its reasoning as follows:

First, USPS had shuttered its customized postage

program and severed contractual ties with the

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program’s vendors, which raised legitimate questions

concerning whether USPS retained the legal authority

to print the design. Second, USPS’s termination of the

program—its closure of the forum, in First

Amendment parlance—virtually eliminated the

likelihood of any future violation. Third, ordering the

stamp to be printed could well open the door to similar

requests for relief by others whose stamp designs were

rejected on political-content grounds, further

entangling USPS in political speech. Fourth, USPS

was less responsible for the First Amendment violation

than its vendor, which had authorized a handful of

politically oriented designs in contravention of USPS

guidelines. And fifth, the number of political designs

that the vendor approved (several of which were

ordered by Mr. Zukerman’s counsel in this litigation)

was infinitesimal relative to the number of design

submissions that the vender reviewed in the course of

USPS’s longstanding customized postage program. All

this counseled in favor of a more modest remedy.

Id. at *1. Accordingly, the District Court granted summary

judgment and declaratory relief only. Id. at *2-*3. Zukerman

now appeals.

II. ANALYSIS

A. Standard of Review

“The decision to grant or deny permanent injunctive relief

is an act of equitable discretion by the district court, reviewable

on appeal for abuse of discretion.” eBay Inc. v. MercExchange,

L.L.C., 547 U.S. 388, 391 (2006). Similarly, “the district

court’s decision whether to grant declaratory judgment is

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reviewed for abuse of discretion.” Jackson v. Culinary Sch. of

Wash., Ltd., 59 F.3d 254, 255 (D.C. Cir. 1995).

B. Standing

As the Supreme Court has explained:

Trained on whether the plaintiff is a proper party to

bring a particular lawsuit, standing is one element of

the Constitution’s case-or-controversy limitation on

federal judicial authority, expressed in Article III of the

Constitution. To qualify as a party with standing to

litigate, [a party] must show, first and foremost, injury

in the form of invasion of a legally protected interest

that is concrete and particularized and actual or

imminent. The [party’s] injury also must be fairly

traceable to the challenged action and redressable by a

favorable ruling.

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

576 U.S. 787, 799-800 (2015) (citations omitted) (cleaned up).

And “a plaintiff must demonstrate standing separately for each

form of relief sought.” Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).

The District Court found that Zukerman had clearly

established standing sufficient to pursue this action:

Zukerman initiated this action in December 2015. In

the months preceding and immediately following that

date, Zazzle fulfilled orders for at least 25 sheets of

postage advocating for political candidates.

Additionally, from the time that Zukerman placed his

order until years after he brought suit, Zazzle displayed

various political postage on its webpage as available

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for sale. All the while, Zazzle barred Zukerman from

printing his proposed Citizens United stamp.

Zukerman has thus established injury-in-fact.

Zukerman, 567 F. Supp. 3d at 170. The District Court’s opinion

details the ample evidence in the record showing that

Zukerman satisfied his burden of proving standing sufficient to

justify summary judgment on the merits. Id. at 169-71.

We will consider the matter, however, because “we have an

obligation to assure ourselves” of a litigant’s standing under

Article III. Friends of the Earth, 528 U.S. at 180. On the

uncontested record before us, we hold that Zukerman has

standing to seek injunctive and declaratory relief.

In order to satisfy the requirements of standing in this case,

Zukerman must demonstrate that he “sustained . . . some direct

injury as the result of the challenged official conduct and the

injury . . . must be both real and immediate, not conjectural or

hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-

02 (1983) (internal quotation marks omitted).

Straightforwardly, Zukerman sustained a real, concrete injury

because he was denied customized postage due to the Postal

Service’s unlawful viewpoint discrimination. See Heckler v.

Mathews, 465 U.S. 728, 735, 737-38 (1984) (plaintiffs denied

certain retirement benefits due to defendant’s unlawful

discrimination had standing). He has standing to seek

injunctive and declaratory relief to remedy the viewpoint

discrimination that he has faced, i.e., his continued inability to

use, hold, or sell the stamp he was denied as a result of that

discrimination.

During oral argument before this court, counsel for the

Postal Service seemed to suggest that the Court’s decision in

Lyons militates against a finding that Zukerman has standing in

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this case. We disagree. Lyons involved a plaintiff who had been

the victim of an illegal chokehold by Los Angeles police

officers. In a suit against the police officers and the city, Lyons

claimed that, because there was a likelihood that he would be

stopped again and subjected to the unlawful use of force by

officers, he had standing to seek injunctive and declaratory

relief against the city’s alleged chokehold policy. Lyons, 461

U.S. at 97-99. The Supreme Court held that Lyons did not have

standing to seek prospective relief because he could not show

he was “likely to suffer future injury from the use of the

chokeholds by police officers” and that it was “speculative”

that “he will again experience injury as the result of that

practice even if continued.” Id. at 105, 109. However, the Court

made it clear that Lyons did have standing to sue for the injuries

that he had suffered in the past when he was a victim of an

unlawful chokehold. Id. at 109, 111. This case is strikingly

different from Lyons.

Here, Zukerman seeks injunctive and declaratory relief for

his past injury. Unlike the plaintiff in Lyons, Zukerman does

not seek to prospectively challenge any policies of the Postal

Service’s now-defunct customized postage program. Rather,

Zukerman seeks relief for viewpoint discrimination that came

as a result of USPS’s rejection of his proposed design due to its

partisan message while accepting other customers’ postage

designs with obvious political content. He also seeks relief for

the continuing effects of that discrimination, which is telling

evidence of the injury he initially suffered in 2015. Zukerman,

961 F.3d at 443 (noting that “the Postal Service still recognizes

other previously-issued political designs as valid postage”). In

sum, the viewpoint discrimination Zukerman first faced in

2015 and the continuing effects of that discrimination are

sufficient to give him standing. See O’Shea v. Littleton, 414

U.S. 488, 495-96 (1974) (“[p]ast exposure to illegal conduct”

“show[s] a present case or controversy” sufficient to support

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standing when accompanied by “continuing, present adverse

effects”); Sullivan v. Benningfield, 920 F.3d 401, 409 (6th Cir.

2019) (past unequal distribution of sentencing credits resulted

in “continuing, adverse effects” that conferred standing on

inmates who challenged the distribution of sentencing credits).

The main point here is that Zukerman does not seek

prospective relief against any alleged future rights violations.

Indeed, Zukerman’s injury does not depend on any future

conduct at all. It does not depend on any future discrimination

by the Postal Service; after all, the customized postage program

has already been shuttered. Nor does it depend on any

individual owners of grandfathered political postage using their

stamps. And it does not matter that some of the other customers

who benefitted from USPS’s viewpoint discrimination may

never use their stamps. What matters is that they were allowed

to secure stamps with political messages, to use, sell, or hold as

they saw fit, while Zukerman was discriminatorily denied this

opportunity.

Zukerman’s injury stems from the difference in

government treatment of his stamp vis-à-vis stamps with

political messages from other customers. See Heckler, 465 U.S.

at 737-38 (standing did not depend on substantive right to any

particular benefit, but rather discriminatory treatment in right

to receive benefits writ large). So understood, Zukerman was

injured the moment the Postal Service refused to print and

recognize his stamp. The effects of that past injury remain

unremedied because the Postal Service continues to officially

recognize some outstanding political postage while Zukerman

wants for his stamp. Thus, Zukerman plainly has standing to

seek injunctive and declaratory relief.

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C. Injunctive Relief

Although Zukerman has suffered an injury sufficient to

confer standing to seek injunctive relief, that does not

necessarily make injunctive relief appropriate on the merits.

See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,

289 n.10 (1982). As the Supreme Court explained in United

States v. W. T. Grant Co., 345 U.S. 629 (1953):

The purpose of an injunction is to prevent future

violations, and, of course, it can be utilized even

without a showing of past wrongs. But the moving

party must satisfy the court that relief is needed. The

necessary determination is that there exists some

cognizable danger of recurrent violation, something

more than the mere possibility which serves to keep the

case alive. The [District Court’s] decision is based on

all the circumstances; [the District Court’s] discretion

is necessarily broad and a strong showing of abuse

must be made to reverse it.

Id. at 633 (citations omitted). We find no abuse of discretion in

this case.

A plaintiff seeking a permanent injunction “must satisfy a

four-factor test before a court may grant such relief.” eBay, 547

U.S. at 391. The plaintiff must demonstrate “(1) that it has

suffered an irreparable injury; (2) that remedies available at

law, such as monetary damages, are inadequate to compensate

for that injury; (3) that, considering the balance of hardships

between the plaintiff and defendant, a remedy in equity is

warranted; and (4) that the public interest would not be

disserved by a permanent injunction.” Id. When the defendant

is the government, factors (3) and (4) merge. Nken v. Holder,

556 U.S. 418, 435 (2009).

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The parties do not dispute that Zukerman (1) suffered an

irreparable injury and (2) lacks an adequate remedy at law. But

the District Court was within its discretion to conclude that the

combined (3) balance of equities and (4) public interest factors

weighed against issuing injunctive relief. We find persuasive

the District Court’s November 15, 2021 memorandum. See

Zukerman, 2021 WL 5310572, at *1.

Regarding Zukerman’s demand to have the Citizens United

stamp printed, the District Court found that granting such

injunctive relief would require the Postal Service to leap over

legal and logistical hurdles to resurrect the now-terminated

program just to provide Zukerman his preferred relief. See

Zukerman, 567 F. Supp. 3d at 178. And doing so would risk

opening the door to future demands by similarly situated

plaintiffs to have their political stamps printed as well. Not only

would this force the Postal Service to revive a program it has

terminated, but it would also risk entangling the Postal Service

with the political messaging of the customized stamps. The

District Court was within its discretion to credit the Postal

Service’s interest in avoiding these entanglements. See Del

Gallo v. Parent, 557 F.3d 58, 73 (1st Cir. 2009) (“It is well-

established that a politically neutral government entity’s

interest in avoiding the appearance of political entanglement is

a valid justification for limiting speech in a non-public

forum. . . . This justification is particularly weighty given the

history of the Postal Service and its problematic historical

associations with partisan politics.”).

Regarding Zukerman’s alternative demand for the Postal

Service to recall, repurchase, or invalidate outstanding political

postage, the District Court found that granting injunctive relief

of this sort is simply infeasible. The record indicates that the

Postal Service does not currently have any way to identify who

holds outstanding customized postage, J.A. 896-97, nor does it

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have a way to automatically filter customized from non-

customized postage, J.A. 1518-19. Nor would it serve the

public interest to require the Postal Service to manually sift

through every existing stamp design to isolate the relatively

few “political” ones that may be extant. More significantly, we

have already held that determining which postage would count

as “political” under the 2018 Guidelines would have been so

unworkable that the ban on “political” content was facially

unconstitutional. Zukerman, 961 F.3d at 447-52.

It bears emphasizing that there are only an “infinitesimal”

number of outstanding stamps that are plainly “political” in

nature. Zukerman, 2021 WL 5310572, at *1; Zukerman, 567 F.

Supp. 3d at 169-70 (estimating there are only 25 sheets of such

stamps). Zukerman’s proposed injunctive relief – which would

require either resurrecting a now-defunct program or draining

public resources to sift through all outstanding postage – are

broad remedies incommensurate with the injury sought to be

remedied. The District Court invited supplemental briefing on

narrower remedies, but Zukerman declined to offer any

alternative solutions. See Zukerman, 2021 WL 5310572, at *2.

The District Court did not abuse its discretion in concluding

that the burden on the Postal Service and the public did not

support Zukerman’s proposed injunctive relief.

Zukerman relies heavily on the so-called “complete relief”

principle to suggest that equity imposes on the court a duty to

cure his injury to the fullest extent conceivable. See Appellant’s

Br. 23-31. This is a bit of an overstatement. The “complete

relief” principle holds only that a court should not supply more

than complete relief in forming an injunction. See Madsen v.

Women’s Health Center, Inc., 512 U.S. 753, 765 (1994);

United States v. Alaw, 327 F.3d 1217, 1220 (D.C. Cir. 2003).

Moreover, the principle embraces notions of flexibility and

discretion in the courts to tailor equitable remedies; the

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principle is not meant to endorse a simplistic, unnuanced

command to judges to eradicate all vestiges of an injury in

awarding equitable relief. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1970) (“[T]he scope

of a district court’s equitable powers to remedy past wrongs is

broad, for breadth and flexibility are inherent in equitable

remedies.”).

Here, any ongoing constitutional violation – the Postal

Service’s viewpoint discrimination – ended with the shuttering

of the customized postage program. The Postal Service now

applies only a viewpoint neutral policy of honoring existing

customized postage, regardless of its content, while issuing no

new customized postage at all. As the District Court stressed,

Zukerman’s “complaint targeted viewpoint discriminatory

conduct occurring within the customized stamp program, and

he sought to enjoin regulations and speech restrictions as

applied to or with respect to that program. . . . That goal has

been largely achieved.” Zukerman, 2021 WL 5310572, at *2

(cleaned up).

“In all civil litigation, the judicial decree is not the end but

the means. At the end of the rainbow lies not a judgment, but

some action (or cessation of action) by the defendant . . . . [I]f

the defendant, under pressure of the lawsuit, alters his conduct

(or threatened conduct) towards the plaintiff that was the basis

for the suit, the plaintiff will have prevailed.” Hewitt v. Helms,

482 U.S. 755, 761 (1987). Thus, given the particular

circumstances of this case – including Zukerman prevailing on

most points and the problems that would be encountered if

Zukerman’s demands for injunctive relief were adopted – we

have no trouble in concluding that the District Court did not

abuse its discretion in denying injunctive relief.

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D. Declaratory Relief

In addition to appealing the denial of injunctive relief,

Zukerman also complains about the grant of declaratory relief

in his favor. He argues as follows:

The complete relief principle here required the

district court to eradicate Plaintiffs’ ongoing

injury. . . . Even if something short of complete relief

could suffice, the district court’s declaratory judgment

was not even partial relief; it was no remedy at all. The

order did nothing to alleviate Plaintiffs’ injury and

changed nothing between the parties: USPS does not

have to do anything and never will. Meanwhile

Plaintiffs still cannot speak in the forum and never will

be able to, even as others already in possession of

political customized postage can continue to use it in

perpetuity. Granting only such illusory relief was an

abuse of discretion.

Appellant’s Br. 22-23. Zukerman’s arguments are misguided.

First, we have already explained that Zukerman is

mistaken in assuming that he is entitled to injunctive relief

merely because he has standing to claim it. He is also wrong in

assuming that a party’s claim for relief necessarily means that

the party is entitled to all that he has requested. As noted above,

a claim for equitable relief necessarily involves a weighing of

the equities by the court. eBay, 547 U.S. at 391. And the

District Court’s discretion in weighing a request for injunctive

relief “is necessarily broad and a strong showing of abuse must

be made to reverse it.” W. T. Grant Co., 345 U.S. at 633. The

District Court did not abuse its discretion in denying injunctive

relief and granting declaratory relief.

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Second, Zukerman seems to assume that declaratory relief

“is outside the Court’s jurisdiction in the absence of other

remedies.” Zukerman, 2021 WL 5310572, at *2. This is not the

law. The Declaratory Judgment Act provides, in relevant part,

that “[i]n a case of actual controversy within its

jurisdiction, . . . 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.” 28 U.S.C. § 2201.

Zukerman specifically requested declaratory relief in his

complaint, along with injunctive relief. There is nothing in

section 2201 that says that a court is foreclosed from granting

declaratory relief if it is the only relief awarded. In fact, section

2201 clearly says that declaratory relief may be granted

“whether or not further relief is or could be sought.” Id. Thus,

the District Court correctly explained that “a request for

declaratory relief may be considered independently of whether

other forms of relief are appropriate.” Zukerman, 2021 WL

5310572, at *3 (citing Powell v. McCormack, 395 U.S. 486,

517-18 (1969)); see also Steffel v. Thompson, 415 U.S. 452,

475 (1974) (stating in a different context that, “regardless of

whether injunctive relief may be appropriate, federal

declaratory relief is not precluded”).

Third, Zukerman is also off the mark in suggesting that

declaratory relief is illusory. A declaratory judgment may serve

as the basis for issuance of a later injunction to give effect to

the declaratory judgment and it may have res judicata effect in

later actions. See Samuels v. Mackell, 401 U.S. 66, 72 (1971);

see also Horn & Hardart Co. v. Nat’l Rail Passenger Corp.,

843 F.2d 546, 547 & n.1 (D.C. Cir. 1988) (giving effect to 28

U.S.C. § 2202, which states: “Further necessary or proper relief

based on a declaratory judgment or decree may be granted,

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after reasonable notice and hearing, against any adverse party

whose rights have been determined by such judgment.”). In this

case, the declaratory judgment serves important functions in

confirming the end of this protracted litigation, clarifying the

legal relations between Zukerman and the Postal Service, and

establishing that the Postal Service’s conduct on this record

constituted viewpoint discrimination. This ensures that the

Postal Service cannot engage in similar discriminatory conduct

towards Zukerman or anyone else in the future.

In assessing the propriety of granting declaratory relief, we

review the District Court’s action for abuse of discretion.

Wilton v. Seven Falls Co., 515 U.S. 277, 289 (1995). In Wilton,

the Supreme Court affirmed the uniquely discretionary nature

of the Declaratory Judgment Act, saying that it is “‘an enabling

Act, which confers a discretion on the courts rather than an

absolute right upon the litigant.’ . . . When all is said and

done . . . ‘the propriety of declaratory relief in a particular case

will depend upon a circumspect sense of its fitness informed by

the teachings and experience concerning the functions and

extent of federal judicial power.’” Id. at 287 (quoting Pub.

Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 241, 243 (1952)).

On the record before us, we have little trouble in

concluding that the District Court did not abuse its discretion

in awarding Zukerman declaratory relief. The court

thoughtfully considered the evidence, weighed the equities,

and entered an eminently reasonable judgment.

_______

There is one additional point that warrants mention. Even

though Zukerman may have preferred injunctive relief over (or

in addition to) declaratory relief, he is the prevailing party with

respect to the District Court’s declaratory judgment. Therefore,

he has no right to seek review on this matter. A prevailing party

20

may sometimes appeal a favorable judgment to, for instance,

seek a greater damages award, see, e.g., United States v.

McAndrews, 12 F.3d 273, 278 (1st Cir. 1993), or challenge an

adverse collateral ruling that may affect or limit the future

conduct of the party, see Camreta v. Greene, 563 U.S. 692,

704-05 (2011) (permitting officers to challenge holding that

their conduct violated the Constitution even though they

received qualified immunity). Zukerman, however, does not fit

any exception that would allow this court to entertain his

challenge to the declaratory judgment issued in his favor. We

have affirmed above the District Court’s decision to grant

declaratory relief because Zukerman attempts erroneously to

tie the grant of declaratory relief to the denial of injunctive

relief, the latter of which is appealable. But, because

declaratory relief may be granted independently of injunctive

relief, we may also dispose of Zukerman’s objection to

declaratory relief under the default rule that “[a] party may not

appeal from a judgment or decree in his favor.” Elec. Fittings

Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939).

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of

the District Court granting summary judgment, awarding

declaratory relief, and denying injunctive relief.

So ordered.