5. The Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, allows the federal court to issue a declaration of “rights and other legal relations” to an “interested party” in “a case of actual controversy within its jurisdiction.” Can a party wanting to litigate in federal court create federal question jurisdiction by including an anticipated federal defense on the face of a declaratory judgment complaint? See Miller, Artful Pleading: A Doctrine in Search of Definition, 76 Texas L. Rev. 1781, 1783 (1998). In SKELLY OIL CO. v.

PHILLIPS PETROLEUM CO., 339 U.S. 667, 673–74, 70 S.Ct. 876, 880, 94 L.Ed. 1194, 1201

(1950), suit was brought for a declaration that certain contracts had not been terminated.

Had the plaintiff (who also was the party who initiated the declaratory action) simply sued to enforce the contract, the complaint would not have raised a federal question; in defending against the breach of contract complaint, defendant would have argued termination, and the effectiveness of an attempted termination turned on a question arising under federal law.

The Court denied jurisdiction, writing, “[t]o sanction suits for declaratory relief as within the jurisdiction of the District Courts merely because, as in this case, artful pleading anticipates a defense based on federal law would contravene the whole trend of jurisdictional legislation by Congress, disregard the effective functioning of the federal judicial system and distort the limited procedural purposes of the Declaratory Judgment Act.” For a criticism of Skelly Oil, see Doernberg, The Trojan Horse: How the Declaratory Judgment Act Created a Cause of Action and Expanded Federal Jurisdiction While the Supreme Court Wasn’t Looking, 36 UCLA L. Rev. 529 (1989).