Amicus Curiae Brief — Kelsey Cascadia Rose Juliana, et al., Petitioners v. United States, et al.

No. 24-645

In The

KELSEY CASCADIA ROSE JULIANA, et al.,

v.

Petitioners,

UNITED STATES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF MEMBERS OF

CONGRESS IN SUPPORT OF PETITIONERS’

PETITION FOR A WRIT OF CERTIORARI

Erwin Chemerinsky

Counsel of Record

225 Bancroft Way

Berkeley, CA 94720

(510) 642-6483

echemerinsky@berkeley.edu

Paul Hoffman

Schonbrun Seplow Harris

Hoffman & Zeldes LLP

200 Pier Ave., Ste. 226

Hermosa Beach, CA 90254

Counsel for Amici Curiae

January 13, 2025

Seth Davis

225 Bancroft Way

Berkeley, CA 94720

TABLE OF CONTENTS

Table of Contents ........................................................... i

Table of Authorities ..................................................... iii

Interest of Amici Curiae ............................................... 1

Introduction and Summary of Argument ................... 2

Argument ....................................................................... 5

I.

CONGRESS ENACTED THE

DECLARATORY JUDGMENT ACT TO

CREATE AN EFFECTIVE SYSTEM FOR

THE ADMINISTRATION OF JUSTICE ........... 5

A. THE DJA WAS THE PRODUCT OF A

HEALTHY

INTERBRANCH

DIALOGUE WITH THIS COURT ............... 6

B. THE DJA IS AMONG THE MOST

CONSEQUENTIAL

REMEDIAL

STATUTES EVER ENACTED BY

CONGRESS ................................................. 13

C. THE DJA PROVIDES A VITAL

REMEDY IN ACTIONS THAT, SUCH

AS

PETITIONERS’,

SEEK

DECLARATORY RELIEF BASED

UPON THE CONSTRUCTION OF A

LEGAL INSTRUMENT .............................. 15

II.

THE NINTH CIRCUIT’S HOLDING

WOULD EVISCERATE THE DJA .................. 16

A. THE NINTH CIRCUIT’S HOLDING

CONFLICTS WITH CONGRESS’S

EXPRESS INTENT TO AUTHORIZE

ii

DECLARATORY RELIEF AS AN

INDEPENDENT REMEDY ....................... 16

B. THE NINTH CIRCUIT’S HOLDING

CONFLICTS WITH THIS COURT’S

PRECEDENT AND CREATES A

CIRCUIT SPLIT .......................................... 18

Conclusion ................................................................... 24

Appendix ...................................................................... 1a

iii

TABLE OF AUTHORITIES

CASES

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ............................................. 14

Aetna Life Insurance Co. v. Haworth,

300 U.S. 227 (1937) .......................................... 3, 12

Anatol Zukerman & Charles Kause Reporting,

LLC v. U.S. Postal Serv.,

64 F.4th 1354 (D.C. Cir. 2023) .…………..……..23

Cheney v. U.S. Dist. Ct.,

542 U.S. 367 (2004) ...……………………………..22

Cohens v. Virginia,

6 U.S. (6 Wheat.) 264 (1821) ...…………………..15

Cross v. De Valle,

68 U.S. (1 Wall.) 5 (1863) ...................................... 6

Duke Power Co. v. Carolina Envt. Study Grp.,

438 U.S. 59 (1978) ……………………..………..…21

Franklin v. Massachusetts,

395 U.S. 486 (1992) .................................... 5, 20, 21

INS v. Pangilinan,

486 U.S. 875 (1988) ..………………………………23

Liberty Warehouse Co. v. Grannis,

273 U.S. 70 (1927) ………………...…………………8

Lord v. Veazie,

49 U.S. (8 How.) 251 (1850) ...…...…………………7

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ...……………………...………..9

iv

Miller v. Christopher,

96 F.3d 1467 (D.C. Cir. 1996) .…...………..…22, 23

Muskrat v. United States,

219 U.S. 346 (1911) ................................................ 8

Nat’l Fed’n of Ind. Bus. v. Sebelius,

567 U.S. 519 (2012) ...……………………….……..14

Nashville, C. & St. L.R. Co. v. Wallace,

288 U.S. 249 (1933) ................................................ 9

Richardson-Merrell, Inc. v. Koller,

472 U.S. 424 (1985) ..………………………………22

Steffel v. Thompson,

415 U.S. 452 (1974) .................................... 4, 12, 19

Ulstein Maritime, Ltd. v. United States,

833 F.2d 1052 (1st Cir. 1987) ...………………….23

Utah v. Evans,

536 U.S. 452 (2002) ..…………………..…..……4, 19

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ..………………………7, 17, 24

Willing v. Chicago Auditorium Ass’n,

277 U.S. 274 (1928) ...……………………………….8

Wilton v. Seven Falls Co.,

515 U.S. 277 (1995) ..……………………………...24

STATUTES AND RULES

28 U.S.C. § 1291…………………………………………22

28 U.S.C. § 2201 ................................................ 4, 12, 17

Fed. R. Civ. P. 57 ……………………………………….18

v

OTHER AUTHORITIES

D. Laycock & R. Hasen, Modern American Remedies

(5th ed. 2019) ...……….…………………………..7

Congress Strengthens the Machinery of Justice,

20 A.B.A. J. 422 (1934) ..………………………….11

Edwin M. Borchard, The Uniform Declaratory

Judgments Act,

18 Minn. L. Rev. 239 (1934) ……………………….7

Edwin M. Borchard, Judicial Relief for Insecurity,

33 Colum. L. Rev. 648 (1933) ……………………...7

Edwin M. Borchard, The Constitutionality of

Declaratory Judgments,

31 Colum. L. Rev. 561 (1931) …………………..….8

Edwin M. Borchard, The Declaratory Judgment in the

United States,

37 W.Va. L. Rev. 127 (1931) ……………………..15

Edwin Borchard, The Federal Declaratory Judgments

Act,

21 Va. L. Rev. 35 (1934) …………………………..17

Samuel L. Bray, The Myth of the Mild Declaratory

Judgment,

63 Duke L.J. 1091 (2014) ..……………………….13

Henry Paul Monaghan, A Cause of Action Anyone?:

Federal Equity and the Preemption of State Law,

91 Notre Dame L. Rev. 1807 (2016) …………….14

James E. Pfander, Standing, Litigable Interests, and

Article III’s Case-or-Controversy Requirement,

65 UCLA L. Rev. 170 (2018) ...………………….…6

vi

James E. Pfander & Daniel D. Birk, Article III and

the Scottish Judiciary,

124 Harv. L. Rev. 1613 (2011) …………………….6

1

INTEREST OF AMICI CURIAE 1

Amici curiae are 43 Members of Congress—7

Senators and 36 Members of the House of

Representatives—and are listed in the Appendix.

Amici have a special interest in preserving the

separation of powers and the integrity of the statutes

that Congress has enacted to vest the Article III courts

with authority to issue declaratory relief in

constitutional cases. They also have a special interest

in ensuring that the federal government fulfills its

obligations to respect fundamental rights of life and

liberty by safeguarding the environment for current

and future generations.

Amici believe that the United States Court of

Appeals for the Ninth Circuit’s dismissal of the

petitioners’ constitutional suit for declaratory relief

has no basis in law and threatens to undermine the

Declaratory Judgment Act, one of the most

consequential remedial statutes that Congress has

ever enacted. The Ninth Circuit’s jurisdictional

holding, if accepted, would eliminate the discretion

that Congress has afforded to the Article III courts to

declare constitutional rights and obligations in

appropriate cases where coercive relief is not sought or

may not be available. Accordingly, Amici respectfully

urge this Court to grant the Petitioners’ petition for a

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amici curiae or their

counsel made a monetary contribution intended to fund the

brief’s preparation or submission. Counsel of record for all parties

received timely notice of amici curiae’s intent to file this brief.

2

writ of certiorari.

INTRODUCTION

AND SUMMARY OF ARGUMENT

Almost a century ago, Congress enacted the

Declaratory Judgment Act (DJA) to ensure that the

Article III courts would be open to plaintiffs seeking

declaratory relief. Petitioners seek a familiar form of

relief under the DJA: a declaration of the petitioners’

constitutional rights and the federal government’s

corresponding constitutional obligations. A litigant

who is suffering an ongoing injury caused by the

government’s continuing violation of constitutional

law does not need to make a particularized factual

showing that a federal official will follow a declaratory

judgment in order to satisfy the redressability

requirement of Article III standing doctrine. In such a

case, the question is whether declaratory relief would

be an appropriate exercise of the district court’s

discretion. But to deny declaratory relief on

jurisdictional grounds is to shirk the judicial

responsibility to decide a case properly before the

federal courts and to undermine the carefully

calibrated remedial scheme that Congress enacted.

The DJA was the product of a healthy

interbranch dialogue. In 1934, when Congress enacted

the DJA, this Court had already held that actions

involving declaratory relief are justiciable so long as

there is a real controversy between the parties.

Following this Court’s lead, Congress specified that

federal courts have authority to adjudicate declaratory

judgment actions that present actual disputes about

the parties’ legal relations. In enacting this law,

Congress built upon 34 states and territories’

3

declaratory judgment statutes as well as longstanding

forms of declaratory relief, such as actions to declare

the obligations of trustees and government officials.

Three years later, in Aetna Life Insurance Co. v.

Haworth, 300 U.S. 227 (1937), this Court in turn

confirmed that Article III courts have jurisdiction to

award declaratory relief even when the plaintiff does

not seek coercive relief.

Experience has proven, as Congress found when

it enacted the DJA, that actions for declaratory relief

are a necessary part of an effective system for the

administration of justice. They resolve cases and

controversies by authoritatively determining the

rights and obligations of the parties. In some cases,

declaratory judgment actions offer the less onerous

option of settling a live dispute without risking an

enforcement action. In other cases, declaratory relief

is appropriate to avoid the inefficiency and needless

harm of an ongoing violation of law. In short, the DJA

has been among the most consequential remedial

statutes ever enacted by Congress.

This Court’s own jurisprudence affirms the

efficacy of the declaratory judgment action.

Declaratory relief has been a necessary remedy in a

wide range of constitutional cases. Petitioners seek a

traditional type of declaratory relief, one that includes

declarations that a trustee either does (or does not)

owe a fiduciary duty and that the federal government,

as a trustee, has violated the petitioners’ fundamental

constitutional rights of life and liberty. Petitioners

argue, and Amici agree, that the federal courts have a

vital role in declaring the scope of the petitioners’ Fifth

Amendment

rights

and

the

government’s

constitutional obligations as a trustee of the climate

4

for America’s youth. With the DJA, Congress

authorized the federal courts to provide this type of

relief.

The Ninth Circuit’s holding eviscerates the

DJA. Ninety years after Congress enacted this statute,

and eighty-seven years after this Court held that

actions for declaratory relief are justiciable cases or

controversies, the Ninth Circuit held that an action for

declaratory relief is not justiciable because declaratory

relief is not efficacious. Assuming that declaratory

relief “would do nothing ‘absent further court action,’”

the Ninth Circuit concluded that the petitioners could

not satisfy the redressability requirement of Article III

standing doctrine. Pet. App. 3a. This rule would

eliminate the declaratory judgment action as an

independent remedy in the federal courts.

This Court should grant the petition to clarify

that declaratory relief under the DJA satisfies the

Article III redressability requirement. Doing so is

necessary because Congress expressly authorized

declaratory relief “whether or not further relief is or

could be sought.” 28 U.S.C. § 2201(a). The Ninth

Circuit’s jurisdictional holding, which prevented the

district court from even reaching the question whether

declaratory relief would be appropriate, conflicts with

this Court’s holding that the DJA is constitutional. It

also conflicts with this Court’s holding that Article III

courts may not limit DJA relief to cases where an

injunction would be appropriate. Steffel v. Thompson,

415 U.S. 452, 471 (1974). Moreover, it conflicts with

this Court’s holding that suits for declaratory relief

against government officials are justiciable even when

other relief is not available. See Utah v. Evans, 536

U.S. 452, 460-61 (2002) (citing Franklin v.

5

Massachusetts, 395 U.S. 486, 517-18 (1992)). And,

finally, the Ninth Circuit has split with its sister

circuits regarding the justiciability of declaratory

judgment actions, compounding that error by

disregarding the final judgment rule and holding that

mandamus was available at the Rule 15 amendment

stage of the proceedings. Neither holding was correct

and the Ninth Circuit’s unprecedented ruling will

undermine Congress’s intent in enacting the DJA and

have consequences for this and future generations.

ARGUMENT

I.

CONGRESS ENACTED THE

DECLARATORY JUDGMENT ACT TO

CREATE AN EFFECTIVE SYSTEM FOR

THE ADMINISTRATION OF JUSTICE

Congress enacted the DJA to authorize Article

III courts to provide the effective, simple, and speedy

remedy of a declaration of rights and legal relations

that settles an actual controversy between the parties.

Carefully modeled to mirror Article III’s case or

controversy requirement, and directly responsive to

this Court’s jurisprudence of federal jurisdiction, the

DJA was the product of a healthy interbranch dialogue

and has been one of the most consequential remedial

statutes ever enacted by Congress. As Congress

intended, the DJA has provided a means for the

federal courts to resolve cases and controversies,

including constitutional disputes, that involve the

construction of a legal instrument. That is the type of

declaratory relief that petitioners requested in this

case, which the Ninth Circuit erroneously denied

6

based upon a rule that effectively would read the DJA

out of the U.S. Code.

A.

THE DJA WAS THE PRODUCT OF

A HEALTHY INTERBRANCH

DIALOGUE WITH THIS COURT

When Congress enacted the DJA in 1934,

declaratory relief was not a radical innovation.

Specific forms of declaratory relief have long been

available in both common law and civil law courts—a

fact that Congress was well aware of as it considered

the constitutionality of the bill that became the DJA.

The Senate Judiciary Committee Report on the

DJA took note of an ancient example of declaratory

relief that was familiar to the Framers. As the

Judiciary Committee explained, “[t]he declaratory

judgment has existed in Scotland for over 400 years.”

See S. Rep. No. 73-1005, at 4 (1934). The Scottish

Court of Session, the court of last resort with

jurisdiction in both law and equity, was open to

declaratory judgment actions. See James E. Pfander,

Standing, Litigable Interests, and Article III’s Case-orControversy Requirement, 65 UCLA L. Rev. 170, 203

(2018) (citing Cross v. De Valle, 68 U.S. (1 Wall.) 5, 1415 (1863)). This Scottish model was an influence on the

Framers as they crafted Article III and also informed

Congress’s consideration of the bill that was enacted

as the DJA. See generally James E. Pfander & Daniel

D. Birk, Article III and the Scottish Judiciary, 124

Harv. L. Rev. 1613 (2011) (discussing influence of

Scottish model on the drafting of Article III).

Within England and America, quiet title actions

have long provided for a definitive declaration of the

7

ownership of real property. See Edwin M. Borchard,

The Uniform Declaratory Judgments Act, 18 Minn. L.

Rev. 239, 240, 246 (1934). At least since 1852 in

England, declaratory relief was available to determine

the obligations of trustees to their beneficiaries. See S.

Rep. No. 73-1005, at 4; Edwin M. Borchard, Judicial

Relief for Insecurity, 33 Colum. L. Rev. 648, 678 (1933).

While the common law forms of action did not make

declaratory relief generally available, litigants could

use the device of a suit for nominal damages to seek

what amounted to declaratory relief. See Uzuegbunam

v. Preczewski, 592 U.S. 279, 285 (2021) (“The award of

nominal damages was one way for plaintiffs at

common law to ‘obtain a form of declaratory relief in a

legal system with no general declaratory judgment

act.’” (quoting D. Laycock & R. Hasen, Modern

American Remedies 636 (5th ed. 2019)). This Court

also countenanced the use of feigned proceedings to

obtain a declaration of rights and obligations so long

as there was “an actual controversy, and adverse

interests.” Lord v. Veazie, 49 U.S. (8 How.) 251, 255

(1850); Pfander, supra, 178 n. 37 (discussing Veazie).

By the early twentieth century, states and

territories began to rationalize their systems for

obtaining declaratory relief. In 1922, the Uniform

Declaratory Judgments Act was approved by the

National Conference of Commissioners on Uniform

State Laws. Borchard, supra, 18 Minn. L. Rev. at 240.

Thirty-four states and territories had enacted

declaratory judgment acts before Congress enacted

the federal Act. S. Rep. No. 73-1005, at 4. Like those

legislatures, Congress concluded that declaratory

relief was a necessary part of an effective judicial

system.

8

Before enacting the DJA, Congress considered

multiple bills that would have provided for declaratory

relief in Article III courts. See S. Rep. No. 73-1005, at

5 (noting that bills to create a declaratory judgment

act had passed the House four times). Commentators,

including Professor Borchard, argued that declaratory

relief in a “justiciable controversy” was well within

Congress’s authority to authorize. Edwin M. Borchard,

The Constitutionality of Declaratory Judgments, 31

Colum. L. Rev. 561, 609 (1931). But some early

twentieth century opinions raised doubts about the

constitutionality of a federal declaratory judgment act.

In an opaque opinion about a statute involving title to

Indian lands, this Court seemed to suggest that

requests for declaratory relief were nonjusticiable

requests for advisory opinions. Muskrat v. United

States, 219 U.S. 346 (1911). The statute in that case

was, however, unusual insofar as its “whole purpose

[was] . . . to determine the constitutional validity of [a]

class of legislation.” Id. at 361. In 1928, Justice

Brandeis concluded that declaratory relief was

“beyond the power conferred upon the federal

judiciary” in a case where “[n]o defendant [had]

wronged the plaintiff or [had] threatened to do so.”

Willing v. Chicago Auditorium Ass’n, 277 U.S. 274,

289-90 (1928); see also Liberty Warehouse Co. v.

Grannis, 273 U.S. 70, 76 (1927) (concluding that

Article III court lacked jurisdiction over action that

sought “merely to obtain an abstract judicial

declaration”). During this period, the U.S. Senate

considered several declaratory judgment bills that had

passed the House but did not vote to enact any of them

in light of the apparent uncertainty about their

constitutionality. See S. Rep. No. 73-1005, at 5-6.

9

In 1933, however, this Court “dispelled those

doubts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S.

118, 126 (2007). It held that a state declaratory

judgment was reviewable under Article III. Nashville,

C. & St. L. R. Co. v. Wallace, 288 U.S. 249 (1933). The

action sought “a definitive adjudication of the disputed

constitutional right of the appellant,” not, as in

Muskrat, “an abstract determination by the Court of

the validity of a statute.” Id. at 262. Where a

declaratory action involves a concrete controversy, the

Court held, it is not a prerequisite to federal

jurisdiction that there be a further “award of process

or execution.” Id. at 263.

Following this Court’s lead, Congress enacted a

carefully tailored DJA that expressly reflected Article

III’s case or controversy requirement. The Senate

Committee on the Judiciary’s Report accompanying

the DJA’s enactment made clear that this Court had

resolved the Members’ questions about the Act’s

constitutionality. See S. Rep. No. 73-1005, at 5. As

early as 1928, the Report explained, a subcommittee

of the Judiciary Committee had heard from some of

the nation’s leading judges and lawyers, who

supported the enactment of a declaratory judgment

act.2 Id. at 1-2.

These included Henry Taft of the American Bar

Association, Professor Borchard of the Yale Law School, Professor

Edson Sunderland of the Michigan Law School, all of whom

testified to Congress, as well as Chief Judge Cardozo of the New

York Court of Appeals, Judge Jesse Miller of Minnesota, Judge

Thomas Swan of the Second Circuit, and Chief Justice von

Moschzisker of the Supreme Court of Pennsylvania. S. Rep. No.

73-1005, at 1-2.

2

10

As the Judiciary Committee reported, “[t]he

declaratory judgment differs in no essential respect

from any other judgment” save one: “it is not followed

by a decree for damages, injunction, specific

performance, or other immediately coercive decree.” S.

Rep. No. 73-1005, at 2. But this difference did not

make declaratory relief unconstitutional. On this

point, the Senate Judiciary Committee’s report

grappled with the constitutional question:

For some time doubts prevailed in certain

courts, which assumed that the declaratory

judgment had an analogy to advisory opinions.

This confusion has now been dissipated. The

declaratory judgment is a final, binding judgment

between adversary parties and conclusively

determines their rights. The Federal bill

specifically provides for declaratory adjudication

only “in cases of actual controversy.” That

precludes hypothetical, academic, or moot cases.

The words “in cases of actual controversy” are

designed to make certain what would be obvious

even without them. The court has a discretion, now

hardened into a rule, not to issue the judgment if it

will not finally settle the rights of the parties. The

question of constitutionality has now been

unanimously decided in 20 courts of the United

States, Michigan having reversed its earlier

opinion in which it was assumed that a declaratory

judgment was an advisory opinion.

The United States Supreme Court, after some

hesitation in dicta, finally had squarely to pass

upon the matter and, in an exhaustive opinion,

upheld the declaratory judgment as of the very

11

essence of judicial power. [Citing Nashville, 288

U.S. at 249.] . . .

The bill in its present form is a refinement of

years of consideration. . . .

Finally, it may be said that the declaratoryjudgment procedure has been molded and settled

by thousands of precedents, so that the

administration of the law has been definitely

clarified. The 1,200 American decisions have

established that the proceeding must be adversary,

all interested parties must be cited, the issue must

be real, the question practical and not academic,

and the decision must finally settle and determine

the controversy.

The long history of the procedure in England,

and for some 15 years in the United States,

encourages the committee to believe that the new

section of the Judicial Code will be an important

aid in the administration of justice.

Id. at 5-6. Thus, Congress, having considered multiple

bills, and having explored the constitutional question

with the benefit of thousands of judicial opinions as

well as the testimony and reports of leading jurists

and scholars, enacted the DJA as a necessary part of

an effective judicial system.

The significance of Congress’s act was not lost

at the time. The ABA Journal editorial on the Act put

it plainly: “Congress Strengthens the Machinery of

Justice.” See 20 A.B.A. J. 422 (1934). Together with the

Rules Enabling Act, which was enacted during the

same term of Congress, the DJA improved the

administration of procedure and remedies in the

federal judiciary. Id. at 423. As for the DJA, the

12

“wonder [was] that it ha[d] . . . been so long delayed.”

Id.

This Court did not take long to confirm the

DJA’s constitutionality. In Aetna Life Insurance Co. v.

Haworth, 300 U.S. at 227, it held that Congress had

acted consistently with Article III in authorizing

federal courts to issue declaratory relief in actual cases

and controversies. Congress, this Court stressed, had

obviously tailored the DJA to Article III’s case or

controversy requirement by limiting it to “cases of

actual controversy.” 28 U.S.C. § 2201(a); see Aetna, 300

U.S. at 239-40 (“The Declaratory Judgment Act of

1934 . . . manifestly has regard to the constitutional

provision and is operative only in respect to

controversies which are such in the constitutional

sense.”). By affirming the authority of Article III

courts to issue declaratory relief in a justiciable case,

Congress had acted well “within its sphere of remedial

action.” Aetna, 300 U.S. at 240.

Congress’s power to authorize declaratory relief

was not limited to cases in which litigants also sought

legal or other forms of equitable relief. A case premised

upon the DJA may be justiciable even though damages

are not available. See Aetna, 300 U.S. at 241. “And as

it is not essential to the exercise of the judicial power

that an injunction be sought, allegations that

irreparable injury is threatened are not required.” Id.;

see also Steffel v. Thompson, 415 U.S. 452, 471-72

(1974) (holding that declaratory judgment could issue

even if an injunction were not available).

Thus, the DJA was the product of a healthy

interbranch dialogue. Congress carefully considered

its independent obligation to act consistently with

Article III. The Court recognized Congress’s careful

13

crafting of the DJA and affirmed that a judicial

declaration may “definitive[ly]” resolve a justiciable

dispute without further court action. Aetna, 300 U.S.

at 241.

B.

THE DJA IS AMONG THE MOST

CONSEQUENTIAL REMEDIAL

STATUTES EVER ENACTED BY

CONGRESS

Declaratory judgments may resolve cases and

controversies as definitively as damages or

injunctions. Indeed, “[t]he constitutional status of the

Declaratory Judgment Act was settled precisely

because a prospective declaratory judgment is a real

decision that binds and coerces like other judgments.”

Samuel L. Bray, The Myth of the Mild Declaratory

Judgment, 63 Duke L.J. 1091, 1122 (2014). The ABA’s

1934 prediction proved prescient: Federal declaratory

relief has been an efficacious and necessary remedy for

the enforcement of federal law and administration of

justice.

As the Senate Judiciary Committee explained

when Congress enacted the DJA, declaratory relief is

an indispensable remedy because it allows for a speedy

and timely resolution of legal disputes. S. Rep. No.

1005-73, at 2 (“[A declaratory judgment] 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.”). Then, as now, one of its primary

purposes is “the construction of instruments of all

kinds” and the declaration of rights and obligations

under such instruments. Id.

14

Since the DJA’s enactment, declaratory

judgments construing the Constitution have become a

staple of federal constitutional litigation. See Bray,

supra, 1120 (listing cases); cf. Henry Paul Monaghan,

A Cause of Action Anyone?: Federal Equity and the

Preemption of State Law, 91 Notre Dame L. Rev. 1807,

1821 (2016) (“[W]e have a longstanding tradition of

suits against officers seeking equitable or declaratory

relief for alleged wrongful conduct.”). That is true of

judgments enforcing the constitutional separation of

powers and federalism. See, e.g., Nat’l Fed’n of Ind.

Bus. v. Sebelius, 567 U.S. 519 (2012). And it is true of

judgments enforcing individual constitutional rights.

See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S.

484 (1996).

There are numerous areas of statutory law in

which declaratory relief is equally, if not more,

important. Within the field of patent law, to take one

instance, the availability of declaratory relief

streamlines the resolution of disputes about patent

validity. Declaratory relief is necessary where, for

example, “private and public costs may already be

accruing from . . . legal uncertainty” even before a

request for injunctive relief would be appropriate.

Bray, supra, at 1140-41. Recognizing the importance

of declaratory relief in resolving patent disputes, this

Court rejected a test that would have precluded such

relief before an injunctive remedy became available.

See MedImmune, 549 U.S. at 133 (rejecting a

“reasonable apprehension of imminent suit”

requirement for issuance of declaratory relief).

15

C.

THE DJA PROVIDES A VITAL

REMEDY IN ACTIONS THAT, SUCH

AS PETITIONERS’, SEEK

DECLARATORY RELIEF BASED

UPON THE CONSTRUCTION OF A

LEGAL INSTRUMENT

When Congress enacted the DJA, it expected

that Article III courts would be open to suits seeking a

declaration of rights and obligations under legal

instruments. The declaratory judgment action had

proven its efficacy where the interpretation of legal

instruments was in dispute. See S. Rep. No. 73-1005,

at 3-5. Prior to the DJA’s enactment, English courts,

as well as state courts, had adjudicated numerous

actions seeking a declaration that a trustee either did

(or did not) owe a fiduciary duty. Edwin M. Borchard,

The Declaratory Judgment in the United States, 37 W.

Va. L. Rev. 127, 134 (1931). Declaratory relief has also

long been available to enforce the constitutional duties

of government officials. Supra pp. 13-14.

Against this backdrop, petitioners seek a

familiar form of declaratory relief. According to the

petitioners’ complaint, the Due Process Clause of the

Fifth Amendment imposes upon the federal

government a duty to act as a trustee of the climate for

America’s youth and future generations. They also

seek a declaration that their Fifth Amendment rights

depend upon a viable climate and that the federal

government’s ongoing conduct violates their

fundamental rights to life and personal security. This

question of constitutional construction is one that the

federal courts have the competence and the

responsibility to answer. See generally Cohens v.

16

Virginia, 6 U.S. (6 Wheat.) 264, 404 (1821) (Article III

courts have “no more right to decline the exercise of

jurisdiction which is given, than to usurp that which

is not given.”).

II.

THE NINTH CIRCUIT’S HOLDING

WOULD EVISCERATE THE DJA

The Ninth Circuit ducked its constitutional

responsibility by holding that actions for declaratory

relief are not justiciable “absent further court action.”

Pet. App. 3a (internal quotation marks omitted).

According to the Ninth Circuit’s unprecedented rule,

declaratory relief does not on its own satisfy the

redressability requirement of Article III standing

doctrine. This holding conflicts with the express text

of the DJA and would, if accepted, render the statute

a dead letter.

A.

THE NINTH CIRCUIT’S HOLDING

CONFLICTS WITH CONGRESS’S

EXPRESS INTENT TO AUTHORIZE

DECLARATORY RELIEF AS AN

INDEPENDENT REMEDY

The DJA expressly authorizes declaratory relief

without regard to the availability of coercive relief:

In 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

17

effect of a final judgment or decree and shall be

reviewable as such.

28 U.S.C. § 2201(a) (emphasis added). Congress’s

intent could not be plainer: under the DJA,

declaratory relief is independently available and

declaratory judgments stand on the same footing as

other final and reviewable judgments. 3

Congress’s purpose was to remove formalistic

barriers to declaratory relief. No longer would it be

necessary for a litigant to seek nominal damages as a

way of pursuing their real aim of declaratory relief. Cf.

Uzuegbunam, 592 U.S. at 285-92. (explaining that suit

for nominal damages permitted litigants to seek

declaratory relief at common law). No longer would it

be necessary to satisfy the requirements for a coercive

injunction to settle a dispute that could be settled

through a declaratory judgment. See Aetna, 300 U.S.

at 242. Declaratory relief would be an available and

efficacious remedy in its own right.

The Ninth Circuit’s holding conflicts with

Congress’s express direction to federal courts to treat

declaratory relief as just another available remedy

alongside other forms of equitable relief or legal relief.

In the Ninth Circuit’s rendering, there can be no

justiciable controversy unless “further court action” is

sought or at least could be sought. Pet. App. 3a

3 Professor Borchard, one of the DJA’s

principal scholarly

proponents and a witness at congressional hearings on the

proposed bill, argued that declaratory relief is available and

appropriate when an injunction is not available. Edwin Borchard,

The Federal Declaratory Judgments Act, 21 Va. L. Rev. 35, 40

(1934).

18

(internal quotation marks omitted). That is not the

DJA’s rule.4

B.

THE NINTH CIRCUIT’S HOLDING

CONFLICTS WITH THIS COURT’S

PRECEDENT AND CREATES A

CIRCUIT SPLIT

Perhaps because it flouts the DJA’s plain text,

the Ninth Circuit purported to find its new rule

elsewhere. According to the Ninth Circuit, this Court’s

precedent holds that a plaintiff seeking only

declaratory relief cannot satisfy the redressability

requirement of Article III without a particularized

factual showing that a federal agency or official will

follow the declaratory judgment. In particular, the

Ninth Circuit concluded that petitioners could not

meet this requirement because they could not

demonstrate that additional coercive relief would be

available. But this Court’s precedent, like the DJA

itself, rules out the Ninth Circuit’s novel rule, as other

circuits have recognized.

Consider first the direct conflict between the

Ninth Circuit’s holding and this Court’s holding that

the DJA is constitutional. See Aetna, 300 U.S. at 227.

4 The

Ninth Circuit, moreover, plainly erred in ignoring

Federal Rule of Civil Procedure 57. As the Advisory Committee

Note to Rule 57 makes clear, “[t]he fact that a declaratory

judgment may be granted ‘whether or not further relief is or could

be prayed’ indicates that declaratory relief is alternative or

cumulative and not exclusive or extraordinary.” Fed. R. Civ. P.

57, notes of advisory committee-1937. That is why Rule 57

provides that “[t]he existence of another adequate remedy does

not preclude a declaratory judgment that is otherwise

appropriate.” Id.

19

The Ninth Circuit held that the availability of coercive

relief was essential to any exercise of the Article III

power to grant declaratory relief. To the contrary, this

Court held in Aetna that “it is not essential to the

exercise of the judicial power that an injunction be

sought.” 300 U.S. at 241. Where the Ninth Circuit

assumed that declaratory relief would “do nothing

‘absent further court action,’” Pet. App. 3a, this Court

has assumed, time and again, that declaratory relief is

efficacious and issued judgments for only declaratory

relief. If the Ninth Circuit is right, then this Court has

been wrong every time it has issued declaratory relief

when further court action in the form of coercive relief

was not available.

In Steffel v. Thompson, 415 U.S. 452, this Court

held that declaratory relief may be available to enforce

constitutional rights even when the plaintiff cannot

demonstrate irreparable injury as required for

injunctive relief. To hold otherwise, this Court

explained would be to “engraft[] upon the Declaratory

Judgment Act” a requirement that Congress did not

create and thus “would defy Congress’s intent to make

declaratory relief available in cases where an

injunction would be inappropriate.” Id. at 471. The

“only” exception was for cases in which “principles of

federalism militated altogether against federal

intervention in a class of adjudications,” id. at 472—

an exception that, needless to say, does not extend to

this case of national concern.

This Court, moreover, has held that declaratory

relief against government officials suffices for the

Article III redressability requirement. In Utah v.

Evans, 536 U.S. 452 (2002), this Court held that a

constitutional suit against the Secretary of Commerce

20

challenging the method for calculating the 2000

census was justiciable. The State of Utah sought a

declaration that the Secretary’s report erred in how it

calculated the populations of North Carolina and

Utah. It also requested an injunction. Either way, this

Court held, a judicial remedy would redress Utah’s

injury: “Victory would mean a declaration leading, or

an injunction requiring, the Secretary to substitute a

new ‘report’ for the old one.” Id. at 463.

In so holding, this Court adopted the controlling

plurality opinion in Franklin v. Massachusetts, 505

U.S. 788 (1992), which concluded that an injury may

be “redressed by declaratory relief . . . alone.” See

Evans, 563 U.S. at 460-61, 463-64 (quoting Franklin,

505 U.S. at 803 (plurality op.)). The Commonwealth of

Massachusetts and two individuals sued to challenge

the methodology for the 1990 census. This Court

concluded that an Article III court could not order

injunctive relief against the President or members of

Congress

to

alter

the

apportionment

of

representatives. But a federal court could declare that

the Secretary of Commerce used an unlawful method

of calculation. And this declaratory relief would by

itself suffice for Article III’s redressability

requirement. Franklin, 505 U.S. at 803 (plurality op.).

Redressability was satisfied in both Evans and

Franklin because it was “‘substantially likely that the

President and other executive and congressional

officials

would

abide

by

an

authoritative

interpretation of the census statute and constitutional

provision.’” Evans, 536 U.S. at 464 (quoting Franklin,

505 U.S. at 803 (plurality op.)).

Evans and Franklin foreclose the Ninth

Circuit’s conclusion that declaratory relief may not by

21

itself satisfy the redressability requirement of Article

III standing doctrine. The Ninth Circuit apparently

assumed, without explanation, that federal officials

would not abide by an authoritative declaration that

their continuing conduct violates the Constitution. In

Evans and Franklin, this Court adopted the contrary

assumption that declaratory relief against federal

government officials is “‘substantially likely’” to lead

to government compliance with law. Evans, 536 U.S.

at 464 (quoting Franklin, 505 U.S. at 803 (plurality

op.)). Declaratory relief against the federal

government therefore results “in a significant increase

in the likelihood that the plaintiff would obtain

relief”—which is the showing that this Court’s

precedent requires.5 Evans, 536 U.S. at 464.

Indeed, the Ninth Circuit’s implicit assumption

that federal officials cannot be expected to follow

authoritative legal declarations by federal officials

cannot be squared with Congress’s enactment of the

DJA or this Court’s DJA jurisprudence. Congress

found that declaratory relief is an effective remedy

even when coercive relief is not sought or available.

This Court has similarly recognized that declaratory

relief, especially against federal officials who take an

oath to observe the Constitution, is likely to be

effective. Of course, government officials sometimes

try to evade their constitutional obligations. But the

proper response is not to conclusively presume, as the

Ninth Circuit did, that declaratory relief against the

5 See also Duke Power Co. v. Carolina Envt. Study Grp., 438

U.S. 59, 78 (1978) (“Nothing in our prior cases requires a party

seeking to invoke federal jurisdiction to negate the kind of

speculative and hypothetical possibilities suggested in order to

demonstrate the likely effectiveness of judicial relief.”).

22

government is inefficacious and therefore that

declaratory judgment actions by themselves are

nonjusticiable.

The Ninth Circuit’s holding also conflicts with

the approach of other circuits. The Ninth Circuit

denied the jurisdiction of the federal courts in cases

where there is an ongoing injury traceable to the

government’s unconstitutional conduct by holding

that declaratory relief does not satisfy the

redressability requirement for Article III standing. Its

sister circuits, by contrast, have recognized that

whether an Article III court has jurisdiction to award

declaratory relief is a different question from whether

declaratory relief is within the discretion of the district

court.6

For example, in Miller v. Christopher, 96 F.3d

1467 (D.C. Cir. 1996), the D.C. Circuit held that a

plaintiff who had suffered an ongoing injury from the

government’s

application

of

an

allegedly

unconstitutional statute had standing to seek a

declaration that the statute was unconstitutional. The

6 As the petitioners have argued, the Ninth Circuit also erred

by disregarding the statutory final judgment rule in its rush to

dismiss this case on erroneous jurisdictional grounds. See Pet. for

Cert. 25-36; see also 28 U.S.C. § 1291 (court of appeals jurisdiction

over appeals from “final decisions of the district courts”);

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 429-30 (1985)

(“The statutory requirement of a ‘final decision’ means that ‘a

party must ordinarily raise all claims of error in a single appeal

following final judgment on the merits.’”). As this Court has held,

mandamus is not a substitute for the appeals process that

Congress has crafted. See Cheney v. U.S. Dist. Ct., 542 U.S. 367,

380 (2004). That is why a mandamus petitioner must show that

it has no other adequate means, including a direct appeal, for

obtaining relief. See id. at 380-81.

23

question before the court of appeals was whether

declaratory relief may by itself satisfy the

redressability requirement of Article III standing

doctrine when controlling Supreme Court precedent

precluded injunctive relief. The plaintiff’s application

for U.S. citizenship was denied under a federal statute

that the plaintiff argued was unconstitutional. In INS

v. Pangilinan, 486 U.S. 875 (1988), this Court

concluded that federal courts do not have equitable

authority to confer citizenship. The D.C. Circuit held,

however, that the plaintiff’s suit was justiciable

because an Article III court could issue a declaration

that the challenged statute was unconstitutional and

a finding that the plaintiff would be entitled to

citizenship under the generally applicable rules

concerning U.S. citizenship. See Miller, 96 F.3d at

1470. It then proceeded to consider the merits and

ultimately to rule against the claimant, as the DJA

and this Court’s precedents direct. As the D.C. Circuit

held, declaratory relief was sufficient for Article III

standing because it would make it “likely” that the

plaintiff’s ongoing injury would be redressed. Id.

(internal quotation marks omitted).

More generally, circuit courts have repeatedly

held that declaratory relief is available even when

other forms of relief are not. See, e.g., Anatol

Zukerman & Charles Kause Reporting, LLC v. U.S.

Postal Serv., 64 F.4th 1354, 1366 (D.C. Cir. 2023) (“a

request for declaratory relief may be considered

independently of whether other forms of relief are

appropriate”); Ulstein Maritime, Ltd. v. United States,

833 F.2d 1052, 1055 (1st Cir. 1987) (“a declaratory

judgment is a milder remedy which is frequently

24

available in situations where an injunction is

unavailable or inappropriate”).

This Court should grant certiorari to make clear

that declaratory relief satisfies the redressability

requirement of Article III standing doctrine. This

jurisdictional question is distinct from the question

whether an Article III court should exercise its

discretion under the DJA to award declaratory relief.

See generally Wilton v. Seven Falls Co., 515 U.S. 277,

287 (1995) (“[T]he 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.” (internal quotation marks omitted)). Just as

this Court recently clarified that “a request for

nominal damages satisfies the redressability element

of standing,” Uzuegbunam, 592 U.S. at 802, it should

grant certiorari in this case to clarify that a request for

declaratory relief satisfies the redressability

requirement without a particularized factual showing

that a federal agency or official will follow a

declaratory judgment. Doing so is necessary to

vindicate Congress’s intent in enacting the DJA as

well as this Court’s declaratory judgment

jurisprudence.

CONCLUSION

For the foregoing reasons, Amici Members of

Congress respectfully request that this Court grant

the petitioners’ petition for a writ of certiorari.

25

Respectfully submitted,

Erwin Chemerinsky

Counsel of Record

225 Bancroft Way

Berkeley, CA 94720

(510) 642-6483

echemerinsky@berkeley.edu

Paul Hoffman

Schonbrun Seplow Harris

Hoffman & Zeldes LLP

200 Pier Ave., Ste. 226

Hermosa Beach, CA 90254

January 13, 2025

Seth Davis

225 Bancroft Way

Berkeley, CA 94720

APPENDIX

APPENDIX TABLE OF CONTENTS

LIST OF AMICI CURIAE.……………………………. 1a

1a

LIST OF AMICI CURIAE

U.S. Senate

Jeff Merkley of Oregon

Cory Booker of New Jersey

Edward Markey of Massachusetts

Bernard Sanders of Vermont

Chris Van Hollen of Maryland

Sheldon Whitehouse of Rhode Island

Ron Wyden of Oregon

U.S. House of Representatives

Jan Schakowsky of Illinois

Alma Adams of North Carolina

Nanette Barragaìn of California

Julia Brownley of California

Andre Carson of Indiana

Yvette Clarke of New York

Danny Davis of Illinois

2a

Mark DeSaulnier of California

Veronica Escobar of Texas

Adriano Espaillat of New York

Maxwell Frost of Florida

Jesús García of Illinois

Raúl Grijalva of Arizona

Jared Huffman of California

Jonathan Jackson of Illinois

Pramila Jayapal of Washington

Hank Johnson of Georgia

Ro Khanna of California

Summer Lee of Pennsylvania

Betty McCollum of Minnesota

Jim McGovern of Massachusetts

Eleanor Holmes Norton of the District of Columbia

Alexandria Ocasio-Cortez of New York

Ilhan Omar of Minnesota

3a

Chellie Pingree of Maine

Mark Pocan of Wisconsin

Delia Ramirez of Illinois

Jamie Raskin of Maryland

Deborah Ross of North Carolina

Mary Gay Scanlon of Pennsylvania

Melanie Stansbury of New Mexico

Rashida Tlaib of Michigan

Jill Tokuda of Hawaii

Nydia Velázquez of New York

Bonnie Watson Coleman of New Jersey

Frederica Wilson of Florida