Katzenbach v. McClung Supplemental Brief for Appellants

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No. 543

J n  the jSapremt <3jonrt af the M itM  States
October T erm, 1964

N icholas deB. K atzenbach, as Acting Attorney 
G eneral of th e  U nited S tates, et al., appellants

v.
Ollie McCltjng, S r., et al., appellees

APPEAL FROM T E E  UNITED STATES D ISTRICT COURT FOR THE  
NORTHERN D ISTRICT OF ALABAMA

SUPPLEMENTAL BRIEF FOR THE APPELLANTS

ARCHIBALD COX,
Solicitor General, 

D epartm ent of Justice, 
Washington, D.C., 205S0.



J t t  tin jjttp m w  Olourt of th WiviM  j&tate#
October T erm , 1964

No. 543
N icholas deB . K atzenbach, as A cting A ttorney 
General o r  th e  U nited S tates, et al., appellants

v,
Ollie McClhng, Sr., et al., appellees

APPEAL FROM THE UNITED STATES D ISTRICT COURT FOR THE  
NORTHERN D ISTRICT OF ALABAMA

SUPPLEMENTAL BRIEE EOR THE APPELLANTS

On oral argument of this case, it was suggested that 
appellees’ suit in the district court might have been 
appropriate as a declaratory judgment action, even 
if it was erroneous to enjoin the enforcement of the 
Civil Rights Act in the absence of any showing of ir­
reparable injury to the plaintiffs. I t is true that 
declaratory relief, unlike injunctive relief, may be ap­
propriate even though reliance on legal remedies 
would not result in irreparable injury. Nashville, C. 
<& St. L. By. v. Wallace, 288 U.S. 249, 262-263; Rule 
57, Federal Rules of Civil Procedure. But long- 
established policies of avoiding premature and possi­
bly unnecessary decision of constitutional questions

(i)
747- 120— 64



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and unwarranted interference with the enforcement 
of a regulatory statute apply with full force to a suit 
for declaratory relief. These policies have led us to 
assert the impropriety of a district court action such 
as that entertained below. While we recognize that 
the present posture of the case and the circumstance 
that a related issue is sub judice in the companion 
Heart of Atlanta case may justify an adjudication of 
the merits, we believe it highly important that the 
Court make clear that actions for either declaratory 
or injunctive relief against the Civil Rights Act of 
1964 should not be entertained by the district courts.

1. In  our prior brief we showed that appellees are 
in no way harmed by the mere existence of the statute 
authorizing the Attorney General to sue for preven­
tive relief. Allowing an adjudication of the constitu­
tionality of a federal statute in a context where pri­
vate parties incur no “ very real disadvantages” from 
deferring decision, does not comport with this Court’s 
/ ‘policy of strict necessity in disposing of constitu­
tional issues.” Rescue Army v. Municipal Court, 331 
IT.S. 549, 568, 571-572. This policy, supplementing 
the case-and-controversy rule (id. at 570-571), is fully 
applicable to declaratory judgment proceedings. Id. 
at 572-573. Just as the abandonment, in declaratory 
judgment proceedings, of such traditional prerequi­
sites for equitable jurisdiction as inadequacy of legal 
remedies does not “overcome the case and controversy 
requirement, no more was this intended to discard 
the corollary policy effective within the limits of 
conceded jurisdiction” that federal or State statutes



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not be held unconstitutional absent the strictest neces­
sity. Id. at 573, n. 41. See, also, Federation of Labor 
v. McAdory, 325 U.S. 450, 461.

Thus, even when the plaintiff seeks only declara­
tory relief, “ federal judicial power is to be exercised 
to strike down legislation, whether state or federal, 
only at the instance of one who is himself immedi­
ately harmed, or immediately threatened with harm, 
by the challenged action.” Poe v. JJllman, 367 U.S. 
497, 504. And here the plaintiffs are in no way harmed 
or threatened with harm by the possibility of a suit 
against them for preventive relief.

2. We have shown, at pages 18 to 21 of our main 
brief, that permitting suits like that entertained in 
the present case would needlessly interfere, in a most 
substantial way, with the normal processes of admin­
istration and enforcement. This is also true of suits 
for declaratory relief. The Court’s decision in Great 
Lakes Co. v. Huffman, 319 U.S. 293, is directly in 
point. There the Court first noted “ that the federal 
courts, in the exercise of the sound discretion which 
has traditionally guided courts of equity in granting 
or withholding the extraordinary relief which they 
may afford, will not ordinarily restrain state officers 
from collecting state taxes where state law affords 
an adequate remedy to the taxpayer” (id. at 297). 
The same considerations of avoiding “ [interference 
with state internal economy and administration” were 
held to impose on the federal courts a corresponding 
“duty to withhold [declaratory] relief” when the 
State [‘affords an adequate remedy to the taxpayer”



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which “ leaves undisturbed the state’s administration 
of its taxes” (id. at 298, 300-301). Cf., Des Moines 
v. Des Moines City By. Go., 214 U.S. 179; Cincinnati 
v. Cincinnati & Hamilton Traction Co., 245 U.S. 446.

In cases under Title I I  of the Civil Rights Act of 
1964, there is a wholly adequate remedy for private 
parties—-asserting their contentions as defenses in 
proceedings for preventive relief—which leaves un­
disturbed the federal government’s administration 
of the statute. As in the Great Lakes case, this con­
sideration makes inappropriate declaratory relief, as 
well as injunctive relief. “A declaratory judgment, 
like other forms of equitable relief, should be granted 
only as a matter of judicial discretion, exercised in 
the public interest. * * * I t is always the duty of a 
court of equity to strike a proper balance between 
the needs of the plaintiff and the consequences of 
giving the desired relief. Especially where govern­
mental action is involved, courts should not intervene 
unless the need for equitable relief is clear, not re­
mote or speculative.” Eccles v. Peoples Bank, 333 
U.S. 426, 431.

Indeed, as this Court observed in Public Serv. 
Comm’n v. Wycoff Co., 344 U.S. 237, 243, “ In recom­
mending Rule 57 of the Federal Rules of Civil Proce­
dure, in order to provide procedures for the declara­
tory decree, the [Advisory] Committee noted £ A decla­
ration may not be rendered if a special statutory 
proceeding has been provided for the adjudication 
of some special type of case * *. V  ” Sections 204 
and 206 of Title I I  provide such “ special statutory



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proceeding^] ” for the determination of rights and 
duties under Section 201 of the Act.

3. This Court’s decisions in Kennedy v. Mendoza- 
Martinez and Busk v. Cort. 372 U.S. 144, cast no 
doubt on the principles stated above. Mendoza-Mar- 
tinez was threatened with immediate deportation on 
the basis of the statute he attacked (372 U.S. at 147- 
148) ; Cort was denied a passport to return to the 
United States on the same ground (372 U.S. at 151- 
152). Both thus showed the immediate harm and 
necessity of judicial relief which is wholly lacking 
where a party sues to enjoin a possible later suit 
for an injunction under Title XI of the Civil Rights 
Act of 1964.

CONCLUSION

We recognize that the unique posture of the 
present case—where the interference with adminis­
tration of the statute caused by unauthorized district 
court proceedings has already occurred and the con­
stitutionality of the statute is already in issue before 
this Court in a closely related case properly enter­
tained by another district court—may make the dis­
cretionary denial of declaratory relief unnecessary in 
this particular instance. I f  this be so, however, it 
becomes the more important, in our view, that this 
Court make clear, for the guidance of the lower 
courts, that they should not entertain suits of a simi­
lar character.

Respectfully submitted.
Abchibald Cox, 

Solicitor General.
October 1964.

U .S . GOVERNMENT PRINTING O F F IC E : 196 4