Anatol Zukerman v. USPS ( 2023 )

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
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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.