Amicus Brief — Hutto v. Finney

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aur,

FILED

Jan 17 1978

In THE | — 12. CLERK}

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1660

TERRELL Don HUuTTO, et al.,

* Petitioners,

ROBERT FINNEY, et al.

On Writ of Certiorari to the United States

Court of Appeals for the

Eighth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW AS AMICUS CURIAE

CHARLES A. BANE

Tuomas D. Barr

Co-Chairmen

ARMAND DERFNER

Pau. R. DIMOND

NorRMAN REDLICH

Trustees

Ropert A. MURPHY

NorMAN J. CHACHKIN

RicHARD S. KOHN

Daum M. LipPMAN

Attorneys for Amicus Curiae

Wusou «. Eras Prerrive Co.. ec. - Re 77-6002 - WasnimeTron. 0.C. 20001

CONTENTS

I. IF THE ELEVENTH AMENDMENT IS AP-

II.

PLICABLE, ITS PROTECTIVE SHIELD HAS

BEEN REMOVED BY CONGRESS EXERCIS-

ING, IN THE FEES ACT, THE POWERS

CONFERRED BY § 5 OF THE FOURTEENTH

. —— ——

A. The Fees Act Authorizes Fee Awards to be

Assessed Against Funds Belonging to the

States, Notwithstanding Sovereign-Immunity

TT ˙ ERAS IE. SGT EST OO

B. In Order Validly to Override the Sovereign

Immunity of the States Congress is Not Lim-

ited to Express Statutory Language, So Long

1 — A, K—

C. Congress Was Not Required to Amend § 1983

In Order to Authorize Fee Awards in § 1983

Suits Against State Officials —.....................

D. It Also is Irrelevant that the State is Not a

SECTION 1983 ITSELF PROVIDES FOR

MONETARY AWARDS AGAINST STATES

AND THEIR AGENCIES AND OFFICIALS;

IT IS AN EXERCISE OF CONGRESSIONAL

POWER AUTHORIZED BY THE FOUR-

TEENTH AMENDMENT; THE ELEVENTH

AMENDMENT IS EITHER INAPPLICABLE

TO OR SUPPLANTED BY § 1983/FOUR-

TEENTH AMENDMENT SUITS ................. —

9 2 K —

A. The Eleventh Amendment is Not Applica-

ble to —— Suits i the

States —

B. In ——— Amendment Suits, the

States Are Divested of Sovereign-lmmunity

„

1. The historic significance of § 1983 and

the relevant decisions of this Court

2. The — and 2 — of

§ 1983 .. aun

8. The Fourteenth Amendment-enforcement

function of § 1983 is inconsistent with

sovereign-immunity defenses **

4. The Sherman amendment” debates are

essentially irrelevant

5. The § 1983 status of states and their sub-

ordinate units is, at the very least, an

open question in this Court

6. In any event, state officials are § 1983

“persons” for all purposes

— — . _

2 &

TABLE OF AUTHORITIES

Cases: Page

Adamson v. California, 332 U.S. 46 (1947) 29n

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970). 28n

Adkins v. Duval County School Bd., 511 F.2d 690

11 A 37

Aldinger v. Howard, 427 U.S. 1 (19705 18n

Alicea Rosado v. Garcia Santiago, 562 F.2d 114

1 9n

Allison v. California Adult Auth., 419 F.2d 822

(9th Cir.), cert. denied, 394 U.S. 966 (1969). 37n

Alphin v. Henson, 552 F.2d 1083 (4th Cir.), cert.

denied, ——- U.S. ——, No. 76-1585 (Oct. 3,

a ae ae ae a re 10n

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (19755 — a Zn, 6n, 7, 12n

Amos v. Sims, 409 U.S. 942 (1972), aff'g 340

Deere 7

Arkansas v. Tennessee, 246 U.S. 158 (1918) — 22n

Baker v. Carr, 369 U.S. 186 (1962) 5in

Beazer V. New York City Transit Auth., 558 F.2d

eee, Se ⁊ ee ns 9n

Belknap v. Shild, 161 U.S. 11 (189 22n

Blanton v. State University of N. F., 489 F.2d 377

KK — ae 37n

Blue v. Craig, 505 F.2d 830 (4th Cir. 19744) 27n

Boddie v. Connecticut, 401 U.S. 871 (19717 5in

Bogart v. Unified School Dist. No. 298, 482 F.Supp.

FS eae 9n

Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977) 9n

Bond v. Stanton, 528 F.2d 688 (7th Cir.), vacated,

2h § fj ea X 7n

Boston Chapter NAACP, Inc. v. Beecher, 504 F. 2d

1017 (ist Cir. 1974), cert. denied, 421 U.S. 910

6 — 7n

Bradley v. School Bd. of Richmond, 416 U.S. 696

| Sn, 9n

Brown V. Culpepper, 559 F.2d 274 (5th Cir. 1977) .. 9n

Cheramie v. Tucker, 498 F.2d 586 (5th Cir.), cert.

denied, 419 U.S. 868 (197)r:k:!:! 36n

TABLE OF AUTHORITIES—Continued

Page

Chicago, B. & Q. RR. v. City of Chicago, 166 U.S.

CL EE 23

Chisholm v. Georgia, 2 Dall. 419 (1793 25

Christian v. Atlantic & N.C. R. R., 138 U.S. 233

K» ee 22n

Christiansburg Garment Co. v. EEOC, No. 76-

CQ Zn

City of Kenosha v. Brano, 412 US. 507 (1973) 18n,

52n, 53

Clark v. Washington, 366 F.2d 678 (9th Cir.1966)._ 37n

Class v. Norton, 505 F.2d 123 (2d Cir. 1974) 7

Cohens v. Virginia, 6 Wheat. 264 (182177 25

Collins v. Moore, 441 F.2d 550 (Sch Cir. 19717 36-37 n

Cooper v. Aaron, 358 U.S. 1 (195 5, 24

Coopersmith v. Supreme Court of Colorado, 465

oF FO YL SRE 37n

Cuneo v. Rumsfeld, 553 F.2d 13860 (D.C. Cir.

— W ee ee ee 9n

Curtis v. Everette, 489 F. 2d 516 (3d Cir. 1973),

cert. denied, 416 U.S. 995 (1973 87n

Diamond v. Pitchess, 411 F.2d 656 (9th Cir. 1869) 37

District of Columbia v. Carter, 409 U.S. 418

SS ee 38

Deane Hill Country Club, Inc. v. City of Knoxville,

379 F.2d 321 (6th ——

111— — 37n

Douglas v. City of Jeannette, 319 US 157 (1943) 28n

Downs v. Department of Pub. Welfare, 65 F. R. D.

III T 7n

Durfee v. Duke, 875 U.S. 106 (196688 22n

Edelman v. Jordan, 415 US. 651 (1974) bpassim

Employees of Dept. of Pub. Health & Welfare v.

Department of Pub. Health & Welfare, 411 US.

1 EES 5, 16, 17

Fr parte New York, 256 U.S. 490 (1921) 23n

Ex parte Virginia, 100 US. 339 (1880) 5. 12n, , 28, 26n, 33

Ex parte Young, 209 US. 123 (1908) 6. 7, 10, 11, 19, 20

Fairmont Creamery Co. v. Minnesota, 275 US. 168

(1927) — 6,10

TABLE OF AUTHORITIES—Continued

Page

F. D. Rich Co., Inc. v. Industrial Lumber Co., Inc.,

417 U.S. 116 (1974) 6n

Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977) 3

Fitzpatrick v. Bitzer, 427 U.S. 445 (19765 passim

Ford Moter Co. v. Department of Treasury, 323

. ͤ 23

Forman v. Community Services, dan, 500 F. 2d

1246 (2d Cir. 1974), rev'd, 421 U.S. 837 (1975). 37n

Franklin v. Shields, ——— F.2d ——., No. 75-2056

(4th Cir. Sept. 19, 1977) 9n

Gambino v. Fairfaz County School Dist., 429

F.Supp. 781 (E.D. Va. 19722

Gary W. v. Louisiana, 429 F.Supp. 711 (ED. La.

1977) i 5 &

Gates v. Collier, 559 F.2d 241 (5th Cir. 19777 In, 9n

Gates v. Collier, 70 F.R.D. 341 (N.D. Miss. 1976),

aff d, 559 F.2d 241 (Sch Cir. 197 7n

Gay Lib v. University of Missouri, 558 F.2d 848

(8th Cir. 19777 an 9n

Gay Students Organ. v. Bonner, 509 F.2d 652 (ist

Cir. 1974) 37n

Gore v. Turner, 563 F.2d 159 (5th Cir. 1977) . — 9n

Gras v. Stevens, 415 F.Supp. 1148 (S.D. N.Y.

1976) 371

Guajardo v. Estelle, 482 F.Supp. 18783 (S. D. Tex.

1977) 9n

Hagans v. Lavine, 415 U.S. 528 (1974)... 13, 28n

Hague v. C. I. O., 307 U.S. 496 (1989) 29n

Hans v. Louisiana, 134 U.S. 1 (1890) 10-11, 15

Hodge v. Seiler, 558 F.2d 284 (5th Cir. 1977) 9n

Huntley v. North Carolina State Bd. of Educ., 493

F.2d 1016 (4th Cir. 174 371

Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974),

cert. denied, 421 U.S. 991 (1975) — 7n

Katzen back v. Morgan, 384 U.S. 641 (1966) 12

King v. Greenblatt, 560 F.2d 1024 (Ist Cir. 1977) 9n

Lynch v. Household Finance Corp., 405 U.S. 538

(1972) 28n

ꝛ—ʒ,

TABLE OF AUTHORITIES—Continued

Page

Lytle v. Commissioners of Election, 541 F.2d 421

CN ES Sa eae ee 10n

McLaurin v. Oklahoma State Regents for Higher

Edue., 389 U.S. 687 (1960) ................................. 5in

Marin v. University of Puerto Rico, 377 F.Supp.

CS ee 37n

Martinez Rodriguez v. Jimenez, 551 F.2d 877 (Ist

11 ͤ¶Ä—v0ꝗ ee ee 9n

Maynard v. Wooley, —— F.Supp. —, C.A. No.

75-57 (D. N. H. Sept. 26, 197) gn

Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) 9n

Milliken v. Bradley, —— U.S. ——, No. 76-447

1 —ͤ—A — An, 6, 10, 11-12

Mitchum v. Foster, 407 U.S. 225 (1972) 5, 32-33, 34, 35

Moity v. Louisiana State Bar Ass’n, 414 F.Supp.

SE oe ee 37n

Monell v. Department of Social Services of City of

New York, No. 75-1914 (pending 4n, 34n

Monroe v. Pape, 365 U.S. 167 (1961) 5, 28n, 34, 36,

48, 51

Moor v. County of Alameda, 411 U.S. 693 (1973). 5, 21,

Mt. Healthy City School Dist. Bd. of Educ., v.

Doyle, 429 U.S. 274 (1977) ................................. 18n

Oregon v. Mitchell, 400 U.S. 112 (1970) 12n

Pennsylvania v. ONeill, 431 F.Supp. 700 (E.D. Pa.

— a a ae — 9n

Philbrook v. Glodgett, 421 U.S. 707 (19755 13

Planned Parenthood of Minnesota, Inc. v. Citizens

for Community Action, 558 F.2d 861 (8th Cir.

KKK 9n

Prot rollo v. University of South Dakota, 507 F.2d

775 (8th Cir. 1974), cert. denied, 421 U.S. 952

ea a ¶ ¶ ——— 37

Rainey v. Jackson State College, 552 F.2d 672 (5th

11» . 9n

Reynolds v. Abbeville County School Dist., 554

F.2d 638 (4th Cir. 1977) 9n

VII

TABLE OF AUTHORITIES—Continued

Page

Reynolds v. Sims, 377 U.S. 533 (1964))ʒ) 5In

Rochester v. White, 503 F.2d 263 (3d Cir. 1974) — 36n

Romero v. International Terminal Operating Co.,

GS en aera 30n

Runyon v. McCrary, 427 U.S. 160 (1976) 6n, 21n, 29n

Schmidt v. Schubert, 483 F.Supp. 1115 (£.D. Wis.

— A 9n

Seals v. Quarterly County Court, 559 F.2d 1221

(6th Cir. 1977) 9n

Sherman v. Dellums, 417 F.Supp. 7 (C.D. Calif.

Se ee Oe 37

Skehan v. Board of Trustees of Bloomsburg State

College, 538 F.2d 53 (3d Cir. 197050 7n

Skehan V. Board of Trustees, 501 F.2d 31 (3d Cir.

1974), vacated, 421 U.S. 983 (1975)... 7n

Skehan v. Board of Trustees, 436 F.Supp. 657

(M.D. Pa. 1977). Se ae 16n

Sosna v. Iowa, 419 U.S. 393 (19759557 5, 13, 19, 52n

South Carolina v. Katzenbach, 383 U.S. 301

. A See 12n, 19n, 47n

Southeast Legal Defense Group v. Adams, 436

F.Supp. 891 (D. Ore. 1977) ................................... 9n

Souza v. Travisono, 512 F.2d 1187 (Ist Cir.), va-

cated, 428 U.S. 809 (1975) ..............................-....-- 7n

Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir.

1977), cert. granted, -— U.S. ——, Nos. 76-

1484 & 76-1600 (Oct. 3, 1977) 9n

Stanton v. Bond, 429 U.S. 973 (19705 Zn, An, 6

Stebbins v. Weaver, 396 F.Supp. 104 (W. D. Wisc.

88 ͤ——ͤ A apenas 37n

Steffel v. Thompson, 415 U.S. 452 (1974) 32

Sturges v. Crowinshield, 4 Wheat. 122 (1819) — 48n

Sullivan v. Little Hunting Park, 396 U.S. 229

— a —

Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) 7n

United States v. Mississippi, 380 U.S. 128 (1965) 23n

United States v. Reese, 92 U.S. 214 (1876) 23

vill Ix

TABLE OF AUTHORITIES—Continued TABLE OF AUTHORITIES—Continued

Page Page

United States ex rel. Lee v. Illinois, 343 F.2d 120 Force Act of Feb. 28, 1871, 16 Stat. 433 28n

(7th Cir. 1965) 371 Civil Rights Act of April 20, 1871, 17 Stat. 18 26-28

Universal Amusement Co., Inc. v. Vance, 559 F. 2d CNS ⁊ ⁊ ⁊ꝛwä U p [. ͤ— 22

1286 (5th Cir. 1977) 9n

Wade V. Mississippi Cooperative Extension Service, Legislative Materials:

424 F.Supp. 1242 (N.D. Miss. 1976) ................... zn, 9n SUBCOMM. ON CONST. RIGHTS OF SENATE COMM.

Wallace v. House, 588 F.2d 1138 (5th Cir. 1976) 10n ON THE JUDICIARY, 94TH CONG., 2p SEss., CIVIL

Welsch v. Likins, 68 F. R. D. 589 (D. Minn.), aff’d RIGHTS Arroanny’s FEES Awanes Act or

rr = 1976 (PUBLIC Law 94-559, S. 2278)— SouRce

8 Fel. Co. v. Pennsylvania, 368 U.. 2 Book: LEGISLATIVE HisTORY, TEXTS, AND OTHER

Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977) . on DOCUMENTS (Cam. Print. 197) 7 In, =

— eae ee 122 Cona. Rec. (daily ed. 1976) . Bn

Williford v. California, 352 Fd 474 (9th Cir. Coma. ον 484 Cong. let Sess. (187 — I

1965) — — 37 .

C 8. Gros, 39th Cong., Ist Sess. (1866) 29

A Chancellor, 425 F.Supp. 1287 (D. Ore. * 8. Rur. No. 94-1011, 94th Cong., 2d Sess. (June 29,

—ꝛ— Fü— — 1976 ere

“ae. Appellate Div., 421 F.2d 625 (2d * HR. Rur. No. 94-1558, 94th Cong. 2d Sess.

— n ä . ——

Zwickler v. Koota, 389 U.S. 241 (1967) 82, 33 8. 2278, 94th Cong. 2d Sess. (1976) an

Statutes and Rules: H.R. 15460, 94th Cong., 2d Sess. (1970) 8n

jb 4 13, 27n Other Authorities:

42 U.8.—.9v197 1. 23n Tur Feperauist No. 82... 25

@ Vee ED cence * passim 25

42 U.S.C. § 1988 On, 3, 7, 10, 20-21n Tas PERERA HO. 68 ——5ðiQ

ö 999 F. FRANKFuRTER & J. LANDIS, THE BUSINESS OF

REV. STAT. § 563 (12) —— ([ł l᷑ —K([—A[—x (KI A([([ „„ —E[ 27-28. THE SUPREME COURT (1928) 1 82

— — fom (16) ——2—̃—— «t~ 1 B. ScHwartz, STATUTORY HISTORY or THE

— — rag UNITED STATES: CIVIL RIGHTS (1870) 29n

Pub. L. No. 94-559 (Oct. 19, 1976), 90 Stat. 2641,

amending REV. STAT. § 72D: 2n, 10

Judiciary Act of 1789, 1 Stat. 85 . 47

Act of March 2, 1973, 1 Stat. 338 83n

Civil Rights Act of April 9, 1866, 14 Stat. 27. 20n

Enforcement Act of May 31, 1870, 16 Stat. 140. 20n, 28n

In THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1660

TERRELL Don HutrTo, et al.,

Petitioners,

ROBERT FINNEY, et al.

On Writ of Certiorari to the United States

4 Court of Appeals for the

Eighth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE*

| The Lawyers’ Committee for Civil Rights Under Law

was organized in 1963 at the request of the President

of the United States to involve private attorneys through-

out the country in the national effort to assure civil

rights to all Americans. The Committee’s membership

* The parties’ letters of consent to the filing , this brief are being

filed with the Clerk pursuant to Rule 42(2).

today includes two former Attorneys General, ten past

Presidents of the American Bar Association, two former

Solicitors General, a number of law school deans, and

many of the Nation’s leading lawyers. Through its na-

tional office in Washington, D.C., and its offices in Jack-

son, Mississippi, and eight other cities, the Lawyers’ Com-

mittee over the past fourteen years has enlisted the serv-

ices of over a thousand members of the private bar in

addressing the legal problems of minorities and the poor

in voting, education, employment, housing, municipal

services, the administration of justice, and law enforce-

ment.

The primary objective of the Lawyers’ Committee is

to help develop the legal resources necessary to enforce

the civil rights of minorities and poor people. Pursuant

to that objective, we seek to enlist the services of the

private bar in aid of the individual rights secured by the

Constitution and federal civil rights laws. That effort,

in our extensive experience, is heavily dependent upon

the availability of court-awarded attorneys’ fees to piain-

tiffs who successfully carry on litigation to enforce con-

gressional civil rights policies. Statutory authorization

for such awards is a familiar legislative mechanism for

encouraging private enforcement of congressional policies.

The correct interpretation and implementation of such

legislation is critical to a substantial part of the Com-

mittee’s work. Consequently, for several years we have

operated an Attorneys’ Fees Project as an adjunct to

our substantive litigation activities. Through that project

we have provided assistance to Congress in connection

with its consideration and passage of civil rights attor-

neys’ fees legislation,’ and we have participated in litiga-

‘For example, we presented testimony to Congress during its

deliberations on, inter alia, the Civil Rights Attorney's Fees Awards

Act of 1976, Pub. L. No. 94-559 (Oct. 19, 1976), 90 Stat. 2641.

amending 42 U.S.C. § 1988.

tion involving the construction of such legislation.’

In the case at bar, plaintiffs-respondents, inmates of

the Arkansas prison system, have invoked federal-court

jurisdiction pursuant to 42 U.S.C. § 1983 and, after pro-

tracted litigation, have obtained declaratory and injunc-

tive relief aimed at conforming the operation of the state’s

line Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Bradley

v. School Board of Richmond, 416 U.S. 696 (1974).

* See, e.g., Gates v. Collier, 659 F.2d 241 (Sch Cir. 1977); Wade

v. Mississippi Cooperative Extension Service, 424 F.Supp. 1242

(N. D. Miss. 1976).

— . ̃e—

in this Court.“ We also have provided representation to

litigants in this Court in § 1983 cases concerning the

general reach of the Eleventh Amendment,’ and we have

filed amicus briefs in cases involving the scope of, and the

relief available under, § 1983.“ The Lawyers’ Committee

thus has vital interests at stake in this case.

It is our view that the correct and simple answer to

this case is, as we argued in our amicus brief in Stanton

v. Bond, supra, that the Eleventh Amendment is inap-

plicable to awards of attorneys’ fees. Respondents’ brief

persuasively demonstrates the correctness of that view,

and we do not principally concern ourselves herein with

the arguments supporting that dispositive answer. Out

of an abundance of caution, however, we assume arguendo

that the Eleventh Amendment applies, as petitioners and

their friends argue, and we address the issues raised by

that assumption: whether the 1976 Fees Act or § 1983

itself overrides any sovereign immunity from fee awards

which the states might have.

The Lawyers’ Committee therefore files this brief as

friend of the Court urging affirmance of the judgment

below.“

SUMMARY OF ARGUMENT

I. In the 1976 Fees Act, Congress plainly intended to

authorize awards to be paid out of state treasuries.

Claiming its power from the Enforcement Clauses of

the Thirteenth and Fourteenth Amendments, Congress

expressed its will that fees be awarded despite conflicting

Stanton v. Bond, supre; Fitzpatrick v. Bitzer, supra.

5 See, e.g., Milliken v. Bradley, —-— U.S. —— (1977).

* See, e.g., Monell v. Department of Social Services of the City of

New York, No. 75-1914 (pending).

We do not address the issue on the substantive merits which

petitiowers have also presented for review.

assertions of state sovereignty. The Act is therefore suffi-

cient to override the sovereign immunity of the states

in § 1983/Fourteenth Amendment cases. Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976). There is no requirement that

Congress, in stripping the states of their immunity, must

use express statutory language, so long as the congres-

sional intent is clear. Employees of the Dept. of Pub.

Health & Welfare v. Department of Pub. Health & Wel-

fare, 411 U.S. 279 (1973). In order to accomplish the re-

sult it desired, Congress was not required to amend § 1983

itself; the question here is one of permissible remedy,

Edelman v. Jordan, 415 U.S. 651 (1974), which in this

instance is explicitly governed by the Fees Act in ac-

cordance with the historical function of 42 U.S.C. § 1988.

See, e.g., Moor v. County of Alameda, 411 U.S. 693

(1973). It also is irrelevant that the state is not a

named party; the state officials who are petitioners are

the state for Fourteenth Amendment purposes. See, e. g.,

Cooper v. Aaron, 358 U.S. 1, 15-17 (1968); Ez parte

Virginia, 100 U.S. 339 (1880).

II. Wholly apart from the Fees Act, § 1983 itself

overcomes sovereigi-immunity defenses (and, conse-

quently, fees may be awarded against states under both

the Act and the “bad faith” standard) in suits to en-

force the Fourteenth Amendment. As confirmed by the

relevant decisions of this Court, see, e.g., Mitehum v.

Foster, 407 U.S. 225 (1972), and by the legislative de-

bates surrounding § 1983’s enactment, notions of state sov-

ereignty are completely incompatible with the basic thrust

of § 1983. There is no evidence in the legislative his-

tory, including that pertaining to the “Sherman amend-

ment” as construed in Monroe v. Pape, 365 U.S. 167

(1961), that Congress sought to exempt state treasuries

from § 1983’s reach. The question of the person“ hood

of states and state agencies is, at the least, an open

one in this Court. Compare Fitzpatrick v. Bitzer, supra,

427 U.S. at 452 (dictum), with Soena v. Iowa, 419 US.

TE c —˖«ꝗ m e

ment. A fortiori, attorneys’ fees are allowable.

* Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240,

258-59 (1975), quoting F. D. Rich Co., Inc. v. Industrial Lumber

Co., Inc., 417 U.S. 116, 129 (1974); see also Runyon v. McCrary,

427 U.S. 160, 183-84 (1976).

( ;

ity” (id. at 664); “payment of . money Which . should have

been paid, but was not” G.); payment of state funds to make

— (1977). The argument has equal applicability to

awards under the 1976 Fees Act, which authorizes fees

to be assessed “as part of the costs.” 42 U.S.C. § 1988.

The Court should therefore adhere to its summary dis-

position of this issue in Amos v. Sims, 409 U.S. 942

(1972), affg 340 F.Supp. 691 (M.D. Ala.), as respond-

ents’ brief compellingly demonstrates.

If we and respondents are mistaken in our belief that

Eleventh Amendment, sovereign immunity principles have

no application to fee awards in Ex parte Young suits,

Court’s decision in Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240 (1975)." It has the primary

reparation for the past’” (id. at 665); “retroactive payments” (id.

at 666 n.11); “payment of state funds -

tion” (id. at 668); “in practical effect indistinguishable

respects from an award of damages against the

an award “measured in terms of a monetary loss resulting from a

past breach of a legal duty on the part of the defendant state offi-

cials Id. An award of attorneys’ fees ly is

things. See Bond v. Stanton, 528 F 2d 688 (7th Cir.), vacated, 429

U.S. 978 (1976); Thonen v. Jenkins, 517 F.2d 3, 7-8 (4th Cir. 1975) ;

grounds, 423 U.S. 809 (1975); Class v. Nerton, 505 F.2d 128 (2d

Cir. 1974) ; Boston Chapter NAACP, Inc. v. Beecher, 504

1028 (ist Cir. 1974), cert. denied, 421 U.S. 910 (1975); 1

Collier, 70 F.R.D. 341, 347-59 (N.D. Miss. 1976), aff'd on other

grounds, 559 F.2d 241 (Sch Cir. 1977); Welsch v. Likins, 68 F.R.D.

589 (D. Minn.), aff'd and adopted, 525 F.2d 987 (8th Cir. 1 ;

;

983 (1975) ; Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), cert.

denied, 421 U.S. 991 (1975).

% See, e.g.. SuBCOMm. ON Const. RigeTs oF SENATE COMM. ON

THE JupictaRy, 94TH CONG. 2p Sess., Crva RIGHTS ATTORNEY'S

Fees wos Act or 1976 (Pusuic Law 94-559, S.2278)—Source

purpose of insuring access to the courts“ in, inter alia,

$1983 cases against state agencies and officials. We

note also that Congress intended the Act to apply to

Book: Laster History, TExTs, o OTHER DocuUMENTS 10

(Senate Report), 19-20 (remarks of Sen. Mathias), 21 (Sen.

Kennedy), 75 (Sen. Hathaway), 138 (Sen. Tunney), 202 (Sen.

of Illinois), 245 & 269 (Rep. Seiberling), 247 (Rep. Bolling), 252-53

(Rep. Drinan), 259 (Rep. Railshack), 263 (Rep. Kastenmeier), 264

(Rep. Fish), 267 (Rep. Holtzman) (Comm. Print 1976) [herein-

Lec. Hist. includes all of the relevant legislative history of the

Fees Act, including the floor debates of both the Senate (daily edi-

tions fo 122 Conc. Rc. September 21-24, 27-29 1976) and the House

(daily edition of 122 Conc. Rec., October 1, 1976), and the respec-

tive reports of the Committees on the Judiciary of both the Senate

(S. Rep. No. 94-1011 (June 29, 1976) (“Senate Report”) and the

House (H.R. Rep. No. 94-1558 (Sept. 15, 1976) (“House Report”) ).

of Illinois), 248 (Rep. Bauman), 252 (Rep. Drinan), 260 (Rep.

™ See, e.g., Lec. Hist. 8 4 11 (Senate Report), 19 (remarks of

Sen. Hugh Scott), 19-20 (Sen. Mathias), 23 (Sen. Kennedy), 75

(Sen. Hathaway), 199-200 (Sen. Tunney), 202 (Sen. Abourezk), 209

(House Report), 245 (Rep. Seiberling), 263 & 264 (Rep. Kasten-

meier), 267 (Rep. Holtzman), 268 (Rep. Jordan).

™ See, eg. Lec. Hist. 4 & 5 (Senate Report), 77-79 (remarks of

Sen. Helms), 201 (Sen. Kennedy), 213 & 215 (House Report), 253

for the Eighth Circuit in the judgment below, two other courts of ap-

peals, the First and Fifth Circuits, have held Fees Act applicable

in the specific context of § 1983 litigation against state

tems or penal institutions. Gates v. Collier, 559 F.2d 241 (5th

pending cases, and that the lower courts unanimously

have discerned and followed this legislative intent.“

1977) ; King v. Greenblatt, £60 F.2d 1024 (Ist Cir. 1977); ef. Marti-

nez Rodriguez v. Jimenez, 551 F.2d 877 (ist Cir. 1977) (Common-

wealth of Puerto Rico). Sve also Guajardo v. Estelle, 432 F. Supp.

1373 (S.D. Tex. 1977). In the non-prison context other courts have

held the Act applicable to § 1983 suits against state-level officials.

See, e.g., Universal Amusement Co., Inc. v. Vance, 559 F.2d 1286 (5th

Cir. 1977) ; Brown v. Culpevper, 559 F.2d 274 (Sth Cir. 1977); Gay

Lib v. University of Missouri, 558 F.2d 848 (8th Cir. 1977) ; Bond

v. Stanton, 555 F.2d 172 (7th Cir. 1977); Rainey v. Jackson State

College, 552 F.2d 672 (5th Cir. 1977); Southeast Legal Defense

Group v. Adams, 436 F. Supp. 891 (D. Ore. 1977) ; White v. Crowell,

434 F. Supp. 1119 (W.D. Tenn. 1977) (three-judge court); Schmidt

v. Schubert, 433 F. Supp. 1115 (E.D. Wis. 1977) ; Maynard v. Wooley,

—— F. Supp. ——— (D. N.H. 1977) (three-judge court); Gary N. v.

Louisiana, 429 F. Supp. 711 (E.D. La. 1977); Wade v. Mississippi

Cooperative Extension Service, 424 F. Supp. 1242 (N.D. Miss.

1977); ef. Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (ist

Cir. 1977) (Commonwealth of Puerto Rico). For similar holdings

against local governments and their officials, see, e.g., Miller v. Car-

son, 563 F.2d 741 (5th Cir. 1977) ; Beazer v. New York City Transit

Authority, 558 F.2d 97 (2d Cir. 1977); Franklin v. Shields, ——

F.2d ——— (4th Cir. 1977) ; Seals v. Quarterly County Court of Madi-

son County, 559 F.2d 1221 (6th Cir. 1977); Planned Parenhood of

Minnesota, Inc. v. Citizens fur Community Action, 558 F.2d 861 (8th

Cir. 1977); Reynolds v. Abbeville County School Dist., 554 F.2d 638

(4th Cir. 1977) ; Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir.

1977), cert. granted. U.S. ——— (Oct. 3, 1977) ; Bogart v. Unified

School Dist. No. 298, 432 F. Supp. 895 (D. Kan. 1977); Common-

wealth of Pennsylvania v. O'Neill, 431 F. Supp. 700 (E.D. Pa. 1977) ;

Gambino v. Fairfax County School Dist., 429 F. Supp. 731 (E.D. Va.

1977) ; Wilson v. Chancellor, 425 F. Supp. 1227 (D. Ore. 1977).

v. Turner, 563 F.2d 159 (5th Cir. 1977); Wharton v. Knefel, 562

F.2d 550 (8th Cir. 1977); Hodge v. Seiler, 558 F.2d 284 (5th Cir.

1977). For similar holdings with respect to other recent fee provi-

sions, see, e.g., Cuneo v. Rumsfeld. 553 F.2d 1360 (D.

Alphin v. Henson, 552 F.2d 1033 (4th Cir.), cert. denied, —— U.S.

The Fees Act, Pub. L. No. 94-559 (Oct. 19, 1976),

90 Stat. 2641, amends Rev. Stat. §722 (42 U.S.C.

1988) by adding the following thereto:

In any action or proceeding to enforce a provision

of sections 1977, 1978, 1979, 1980, and 1981 of the

Revised Statutes [42 U.S.C. §§ 1981-1983, 1985-

1986], title IX of Public Law 92-318 [20 U.S. C.

§§ 1681 et seq.], or in any civil action or proceeding,

by or on behalf of the United States of America, to

enforce, or charging a violation of, a provision of the

United States Internal Revenue Code [26 U.S.C.

L IF THE ELEVENTH AMENDMENT IS APPLICA-

BLE, ITS PROTECTIVE SHIELD HAS BEEN RE-

MOVED BY CONGRESS EXERCISING, IN THE

FEES ACT, THE POWERS CONFERRED BY §5

‘OF THE FOURTEENTH AMENDMENT.

Petitioners, and the four states (hereinafter, “amici” )

which have filed amicus briefs supporting petitioners,

argue that this case is not controlled by the “incident of

litigation” holding of Fairmont Creamery Co. v. Minne-

sota, 275 U.S. 70 (1927), nor by the “ancillary effect”

holdings of Edelman v. Jordan, 415 US. 662 (1974), and

Milliken v. Bradley, —— US. —— (1977). Petitioners

and amici do not view attorneys’ fees as a subordinate as-

pect of a suit authorized by Ex parte Young, 290 US.

123 (1908). Instead, they see fees as a severable claim

for monetary relief more akin to Hans v. Louisiana, 134

—— (1977); Lytle v. Commissioners of Election ef Union County,

541 F.2d 421 (4th Cir. 1976); Wallace v. House, 538 F.2d 1138

(5th Cir. 1976).

U.S. 1 (1890), tham to Ex parte Young. According to

the applicability of the Eleventh Amendment and the

theless that in several technical respects Congress has

fallen short of its goal. Their principal arguments

*In relevant part, §§1 and 5 of the Fourteenth Amendment

provide as follows:

Section 1... No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of lif

are these: (1) that any congressional authorization for

monetary relief against the states, to be valid and suf-

ficient as against the state-sovereignty defense, must say

on its face in so many statutory words that such relief

may be awarded against the states (Pet. Br. 8-9; Miss.

Br. 6-9; Calif. Br. 12-13; Iowa Br. 5; Penn. Br. 13-14);

(2) that Congress may not authorize monetary relief

against the states in § 1983 suits in any way other than

by an amendment to § 1983 itself expressly defining

U.S. ——, —— (1977), slip op. 23, a case that imposed on the state

treasury for relief costing almost six million dollars. See id. at ——

(Powell, J., concurring), slip op. 2. We also do not further address

Mississippi's contention (Miss. Br. 13-14) that the Fees Act is in-

valid for want of due process because it create [s] an irrebuttable

presumption that a State is liable for a monetary judgment for at-

torney’s fees whenever one of its officials is the losing party in an

action brought under various Federal civil rights statutes.” Jd. at

13. Even if the states are entitled to due process, but see South

Carolina v. Katzenbach, 383 U.S. 301, 324 (1966), there is no factual

basis for Mississippi's argument.

In addition, California argues (Br. 13-15) that the Fees Act is

not “appropriate legislation” within the con of § 5 of the

Fourteenth Amendment (see note 15, supra). Act was enacted

primarily because of Congress’ judgment, in the words of the House

Report, that “awarding counsel fees to prevailing plaintiffs in such

litigation is particularly important and necessary if Federal civil

and constitutional rights are to be adequately protected.” LEG. Hist.

217. This hardly is an irrational judgment; indeed, the Court recog-

nized its validity in Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240, 264 (1975). Congress held hearings and

engaged in extensive debate; it proceeded firmly yet with care; its

response to Alyeska was one of dissatisfaction, yet it was a measured

response, leaving much of Alyeska still intact (i.e., in the non-civil

rights public-interest field). Congress based its authority so to act

upon, inter alia, §5 of the Fourteenth Amendment. California's

attack on that claim is foreclosed by Oregon v. Mitchell, 400 U.S.

112 (1970); Katzenbach v. Morgan, 384 U.S. 641 (1966); South

Carolina v. Katzenbach, supra; Ex parte Virginia, 100 U.S. 339

(1880). California’s invitation to “reevaluate” Fitzpatrick (Br. 15)

is also groundless. California, and also lowa and Pennsylvania,

would be better advised if they were taking the same position here

that they took in South Carolina v. Katzenbach. See 383 U.S. at

307 n.2.

being among the “persons” suable thereunder

Br. 5; Calif. Br. 10-11; lowa

12, 14); and (3) that monetary

of state funds is impermissible

the lawsuit (Pet.

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would exempt State and local governments.

The Helms amendment (id. at 81) was rejected id. at

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Allen. Id. at 146, 150-51; cf. id. at — 5

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In making its determination in Employees that Con-

gress was silent as to waiver of sovereign immunity of

the States,” 411 U.S. 286, the Court there said (id. at

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lower federal courts revealing a multitude of § 1983 cases

in which relief has been granted against state officials in

their official capacities. In this circumstance, an express

statutory authorization to award attorneys’ fees in such

suits constitutes an explicit refutation of any sovereign-

immunity defense. The Fees Act on its face thus precludes

the assertions of sovereign exemption made in this case.

Congress has done all that reasonably is necessary, and

all that the judicial department reasonably ought to re-

quire, to achieve the end which all agree it strove to

reach.

C. Congress Ws Not Required to Amend § 1983 in

Order to Authorize Fee Awards in § 1983 Suits

Against State Officials.

The next alleged technical flaw discovered by peti-

tioners and amici is the failure of Congress to amend

the “person” definition of § 1983 to give express au-

thorization for § 1983 suits against states as such. The

argument seems to be that although the federal courts,

acting under § 1983 as it now reads, may

officials in their official capacities to de

ing the states millions of dollars, see, ¢.g., Milliken

Bradley (Milliken II), swpra, Congress cannot, by sim

same cou

* Section 1983's “person” limitation is held to be one of subject-

matter jurisdiction. City of Kenorha v. Bruno, 412 US. 507

(1978); see also Aldinger v. Howard, 427 US. 1, 16-17 (1976);

ef. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

278-79 (1977) (dictum).

in Fitzpatrick v. Bitzer, supra, 427 US. at 452. But

cf. Sosna v. lowa, 419 U.S. 393 (1975).

The fundamental error in the states’ argument is its

treatment of the availability af attorneys’ fees under the

Eleventh Amendment as a question of subject-matter ju-

risdiction, or one of authorized cause of action, or both.

It is neither, as demonstrated by Edelman v. Jordan,

supra, a § 1983 case involving a claim for relief based

Id. at 675. There then follows this critical language (id.

at 675-77) (emphasis added) :

But it has not heretofore been suggested that § 1983

was intended to create a waiver of a State’s Eleventh

Amendment immunity merely because an action could

be brought under that section against state officers,

rather than against the State itself. Though a § 1983

action may be instituted by public aid recipients such

as respondent, a federal court’s remedial power, con-

sistent with the Eleventh Amendment, is necessarily

limited to prospective injunctive relief, Ex parte

Young, supra, and may not include a retroactive

award which requires the payment of funds from the

state treasury, Ford Motor Co. v. Department of

Treasury, supra.

Thus, Edelman held that the Eleven Amendment

bar had not been overcome because there a apecific

congressional remedial authorization for -mef bey ne

that sanctioned by Er parte Young o which e

Eleventh Amendment is not applicable). In the inst

case, a similar analysis leads to a different result with

respect to the question of attorneys’ fees. as in

Edelman, the injunctive relief ordered by ‘he district

court is excluded from the Eleventh Amendment prohibi-

tion by the doctrine of Ex parte Young. But here, in

contrast to Edelman, the Fees Act provides the specific

legislative authority for the monetary award at issue.

And the Act, it will be remembered, amended 42 U.S.C.

§ 1988," whose historical function has been to instruct

2 The relationship between § 1983 and the Fees Act (amending

§ 1988) is not accidental. Section 1988 derives from §3 of the

Civil Rights Act of April 9, 1866, 14 Stat. 27. The entire 1866 Act

was re-enacted, following passage of the Fourteenth Amendment,

by § 18 of the Enforcement Act of May 31, 1870, 16 Stat. 140. When

§ 1983 was passed a year later, it specifically incorporated the

remedial-law provisions of the 1866 Act. See §1 of the 1871 Act,

quoted in note 27, infra. Codification in 1874 resulted in § 1988's

ancestor becoming Rev. Stat. § 722, which was made applicable to

federal courts as to the scope and kinds of remedies to

be afforded in, inter alia, § 1983/Fourteenth Amendment

cases. See, e. g., Moor v. County of Alameda, 411 US.

692 (1973).

In sum, the issue in this case is whether the particular

remedy (attorneys’ fees), manifestly authorized by Con-

gress, is available in light of the Eleventh Amendment.

The answer to this question in no way implicates an ex-

tension of the cause of action or of the district court’s

the civil-rights civil and criminal! provisions of the Revised Statutes,

including the provision now codified as § 1983. See Moor v. County

of Alameda, 411 U.S. 693, 704-06 & nn. 18 4 19 (1973). As now

codified in Title 42 of the United States Code, § 1988 (without the

Fees Act) provides as follows (with only technical differences from

the language of the Revised Statutes, owing to differences in the

organization of the two codes)

the

acts], Sullivan v. Little Hunting Park, 396 U.S. 229,

Prior to the Fees Act, however, it was held that §

absence of one of the historical equitable exceptions to the “Ameri-

attorneys’ fees to prevailing civil-rights litigants. Runyon v. Mc-

Crary, 427 U.S. 160, 184-86 (1976).

subject-matter jurisdiction, the validity of both being

conceded and otherwise not disputable. The fees award is

specifically authorized by the Fees Act, which to that

extent displaces any protection that the Eleventh Amend-

ment would otherwise give the states. Whether a general

damages remedy is available against the states under

§ 1983, and whether the states are suable under § 1983

for such relief, are questions which are not pertinent to

the narrow issue before the Court.

D. It Also Is Irrelevant That the State Is Not a

Named Party.

In the statement of their first question presented, peti-

tioners seem to take issue with the fact that the fee award

assertedly was made against the state, “which was not a

party to the suit.” Pet. Br. at 2. (In the court below

petitioners apparently questioned the absence of the De-

partment of Correction as a named party, see 548 F.2d

at 742 (Pet. App. 5).) Petitioners do not return to this

question, but Mississippi takes it from there and argues

that Afkansas is an “absent indispensable party to this

action.” Miss. Br. 9-12. Mississippi relies upon decisions

of this Court which are not in point,“ and Fep. R. CV. P.

19.

There is no possible merit to this “absent party” argu-

ment, which contradicts the established rule that the

Mississippi cites the following cases: Durfee v. Duke, 375 U.S.

106, 115 (1963); Arkansas v. Tennessee, 246 U.S. 158, 176 (1918) ;

Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 75 (1961);

Christian v. Atlantic & N.C. R. R., 133 U.S. 233 (1890) ; and Belknap

v. Shild, 161 U.S. 11, 18 (1896). The passages in Christian and

Belknap relied upon by Mississippi are no more than statements

that the precise circumstances covered by the Eleventh Amendment

(diversity suits against states) may not be circumvented merely by

suing state officers for the same relief. The language relied upon

from the other cases is also inapposite, because in each instance it

pertains to a situation where a state is not present or represented

in any fashion by a party in a suit affecting the state’s concrete

interests.

Eleventh Amendment may come into play “even though

the State is not named a party to the action.” Edelman,

supra, 415 U.S. at 663; see also, e.g., Ford Motor Co. v.

Department of Treasury, 323 U.S. 459, 464 (1945).*

More fundamentally, the argument misapprehends the na-

ture of states vis-a-vis the Fourteenth Amendment and

the Amendment’s understanding of the manner in which

states act. As the first Mr. Justice Harlan put it in Chi-

cago, B. & C. R. R. v. City of Chicago, 166 U.S. 226, 233-34

(1896), citing, inter alia, Ex parte Virginia, 100 U.S. 339,

346, 347 (1880):

But it must be observed that the prohibitions of

the Amendment refer to all the instrumentalities of

the state, to its legislative, executive, and judicial

authorities and, therefore, whoever by virtue of public

position under a state government deprives another

of any right protected by that Amendment against

deprivation by the state, “violates the constitutional

tens Site Oe See oe SS See See oe

often said, the constitutional prohibition has no mean-

ing, and “the state has clothed one of its agents with

power to annul or evade it.”

See also United States v. Reese, 92 U.S. 214, 249-52

(1876) (Hunt, J., dissenting). This Court specifically

1 Mississippi’s argument, therefore, runs counter to the settled

principle that the Eleventh Amendment's applicability “is to be

determined not by the mere names of the titular parties but by the

essential nature and effect of the proceeding as it appears from the

entire record.” Ez parte New York, 266 U.S. 490, 500 (1921). On

made

a party in a voting-rights case brought by the United States under

42 U.S.C. § 1971, because “the Fifteenth Amendment

persons through whom a state may act and not to

entity of the state itself. United States v. Mississippi, 380 U.S.

128, 138 (1965). The Court was unanimously unimpressed with

pam) ae gy Mississippi's amicus argument in this case merits a

bound the State of Arkansas to that understanding in the

historic nine-Justice opinion in Cooper v. Aaron, 358 U.S.

1, 15-17 (1958), and the question is not open for debate.

In this case Arkansas prison officials, including peti-

tioners here, acting “in the name and for the state,” have

operated a system of prisons in violation of the Four-

teenth Amendment. From that “point of view . . . they

stand in this litigation as the agents of the State.” Id.

at 16. In the Fees Act, by authorizing fees to be paid

out of relevant state or state-agency funds, Congress has

done no more than adhere to the straightforward scheme

of the Fourteenth Amendment. Conceivably, there could

be actions in which relief is sought against a state with-

out its knowledge or participation, and which therefore

should be disallowed (cf. note 24, supra), but this is not

such a case. This is the precise case contemplated by both

Congress and the Fourteenth Amendment.

II. SECTION 1983 ITSELF PROVIDES FOR MONE-

TARY AWARDS AGAINST STATES AND THEIR

. AGENCIES AND OFFICIALS; IT IS AN EXERCISE

OF CONGRESSIONAL POWER AUTHORIZED BY

THE FOURTEENTH AMENDMENT; THE ELEV-

ENTH AMENDMENT IS EITHER INAPPLICABLE

TO OR SUPPLANTED BY § 1983/FOURTEENTH

AMENDMENT SUITS.

Section 1983, like the Fees Act and like the provisions

of Title VII considered in Fitzpatrick v. Bitzer, 427 U.S.

445 (1976), is an exercise by Congress of the plenary

power conferred by §5 of the Fourteenth Amendment

(see note 15, supra) which necessarily limits the sovereign

immunity of the states. Petitioners and amici are wrong

in their view that § 1983 must be amended in order for

it to authorize monetary relief against state-owned funds;

without regard to the Fees Act, the courts below possessed

ample authority under § 1983 to award fees against peti-

tioners under the “bad faith” exception—again, assuming

arguendo the applicability of the Eleventh Amendment to

such awards of attorneys’ fees. Before addressing the

principal § 1983 question, we reiterate, by brief summary,

the broader and more fundamental view of the Eleventh

Amendment’s scope which we advanced as friend of the

Court in Fitzpatrick v. Bitzer, supra.

A. The Eleventh Amendment Is Not Applicable To

Federal-Question Suits Against The States.

In our brief in Fitzpatrick v. Bitzer, supra, we argued

that, as a threshold matter, the reach of the Eleventh

Amendment does not extend to federal-question claims

against the states. See Brief for the Lawyers’ Committee

for Civil Rights Under Law, et al., As Amici Curiae, in

No. 75-251, at pp. 10-28. We adhere to that view and

continue to urge it as a correct interpretation of Eleventh

Amendment/sovereign immunity principles. Briefly sum-

marized, the argument is that the Eleventh Amendment

was designed to restore the Framers’ original understand-

ing of Article III's diversity clause as not conferring

federal judicial power over state-law claims against un-

consenting states—the understanding expressed by Alex-

ander Hamilton in THE FEDERALIST Nos. 32 & 81, and

by Justice Iredell in his dissent in Chisholm v. Georgia, 2

Dall. 419 (1793)—not to withdraw federal judicial power

with respect to federal-question claims against the states.

That original understanding was correctly construed in

Cohens v. Virginia, 6 Wheat. 264 (1821), but it was mis-

apprehended in Hans v. Louisiana, 134 U.S. 1 (1890),

which is the source of all of the modern confusion about

the meaning of the Eleventh Amendment and the principle

of state sovereignty embodied therein.

In Fitzpatrick the Court did not, and did not need to,

reach the above argument. Instead, the Court rested its

decision on the narrower ground that Congress is em-

tive provisions . . . themselves embody significant limita-

tions on state authority” (427 U.S. at 456), to subject

the states (there through Title VII) to the full remedial

powers of the federal courts. A similar Fourteenth

Amendment ground of deeision is available in this case.

B. In § 1983/Fourteenth Amendment Suits, the States

Are Divested of Sovereign-Immunity Defenses.

I. The historic significance of § 1983 and the rele-

vant decisions of this Court.

As the Court reconfirmed in Fitzpatrick v. Bitzer, the

very words of the Fourteenth Amendment preclude a con-

struction of the Amendment’s guarantees which would

subordinate them in any way to pre-Amendment notions

of state sovereignty.” It would be surprising to learn

that § 1983’s ancestor, the Civil Rights Act of 1871—

entitled “An Act to enforce the Provisions of the Four-

teenth Amendment to the Constitution of the United

States, and for other Purposes,” 17 Stat. i3, and passed

but three years after the Amendment’s ratification—did

not manifest similar antipathy toward the claimed sover-

eignty of the states. Section 1 of the Act (from which

§ 1983 specifically derives), conferred federal-court juris-

diction over law and equity actions arising under the

Fourteenth Amendment.” Sections 2 and 6 of the Act

Proof that the Fourteenth Amendment displaced, and was in-

tended to displace, claims of sovereign right on the part of the

states—i.e., that the Amendment “involves a corresponding diminu-

tion of the governmental powers of the States [; i}t is carved out of

them,” Ex parte Virginia, 100 U.S. 339, 346 (1880)—is fully de-

tailed in the Brief for the United States As Amicus Curiae in

Nos. 75-251 & 75-283, Fitzpatrick v. Bitzer, and in the Brief Amicus

Curiae of the NAACP Legal Defense and Educational Fund, Inc., in

No. 72-1410, Edelman v. Jordan.

As passed, § 1 of the Act of April 20, 1871, 17 Stat. 13, read as

follows:

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled, That

any person who, under color of any law, statute, ordinance,

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contained comprehensive civil and criminal prohibitions

against civil rights conspiracies, §§8 and 4 gave the

President ultimate discretion to intervene into state

affairs with armed force and to suspend the writ of

habeas corpus, and §5 prescribed a detailed loyalty

oath for jurors in federal court. All engendered heated

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This Court has recalled that [a] pervasive sense of

nationalism led to enactment of the Civil Rights Act of

1871. . . .” Steffel v. Thompson, 415 U.S. 452, 463

(1974). See also Zwickler v. Koota, 389 U.S. 241, 246-

47 (1967). As described in F. FRANKFURTER & J. LANDIS,

Tue BUSINESS OF THE SUPREME CouRT 64 (1928) :

no longer trusted to the enforcement of state agen-

cies.

Section 1 of the 1871 Act, now § 1983, clearly was one

of these “new exertions of federal power.” This particu-

v. Foster, 407 U.S. 225, 242 (1972), quoting Ez parte

Virginia, supra, 100 U.S. at 346. As the Court

“During most of the Nation’s first century, Congress re-

lied on the state courts to vindicate essential rights aris-

ing under the Constitution and federal laws.” Zwickler

v. Koota, supra, 389 U.S. at 245. But [with the grow-

Monroe v. Pape, 365 U.S. 167, 180 (1961); see also id.

at 193 (Harlan, J., coneurring). As summarized in

Mitchum v. Foster, supra, 407 U.S. at 242:

This legislative history makes evident that Con-

gress clearly conceived that it was altering the re-

lationship between the States and the Nation with

respect to the protection of federally created rights;

it was concerned that state instrumentalities could not

protect those rights; it realized that state officers

might, in fact, be antipathetic to the vindication of

those rights; and it believed that these failings ex-

tended to the state courts.

Elsewhere we have detailed the legislative history show-

ing that Congress’ purpose in § 1983 was to establish a

federal-court action for relief as broad as the Fourteenth

Amendment would allow.” Typical of that history is

Senator Thurman’s unavailing complaint that “there is

no limitation whatsoever upon the terms that are em-

ployed [in § 1983], and they are as comprehensive as can

be used.” GLOBE app. 217. He said (id. at app. 216):

This section relates wholly to civil suits. It cre-

ates no new cause of action. Its whole effect is to

give to the Federal Judiciary that which now does

not belong to it—a jurisdiction that may be consti-

tutionally conferred upon it, I grant, but that has

never yet been conferred upon it. It authorizes any

person who is deprived of any right, privilege, or

immunity secured to him by the Constitution of the

United States, to bring an action against the wrong-

doer in the Federal courts, and that without any

limit whatsoever as to the amount in controversy

.I am certainly not in favor of denying to

any man who is deprived unlawfully of his right, his

% See Brief for National Education Association and Lawyers

Committee for Civil Rights Under Law, as Amici Curiae, in No. 75-

1914, Monell v. Department of Social Services of City of New York

(argued — 2, 1977), at pp. Sa- 13a [hereinafter “Monell

Amici Br.“ ].

privilege, or his immunity, under the Constitution of

the United States, that redress to which every man

is entitled whose rights are violated; but I do think

that it is a most impolitie provision, that in effeet

may transfer the hearing of all such cases into the

Federal courts.

In the light of the foregoing, it is not possible, as

petitioners and amici in the case at bar seem to con-

tend, that this Congress of 1871, acting for the express

purpose of enforcing the Fourteenth Amendment (which

specifically speaks to states) and in the face of opposition

charges that the sovereignty of the states was being

eroded, intended § 1983’s grant of an “action at law [and]

suit in equity” to be circumscribed by the sovereign-

immunity claims of the most likely types of § 1983 de-

fendants, state agencies and officials. Nor is it conceiv-

able that this Congress in this statute—deemed to be

“an important part of the basic alteration in our federal

system wrought in the Reconstruction era through federal

legislation and constitutional amendment,” Mitchum v.

Foster, supra, 407 U.S. at 288—intended a federal court

to stop short of affording complete justice when it en-

countered a defense of state sovereign immunity.

2 The language and legislative history of § 1983.

The position of petitioners and amici warrants repeti-

tion of that part of § 1983’s original language (see note

27, supra) providing that the constitutional wrongdoer,

acting “under color of any law, statute, ordinance, regula-

tion, custom, or usage of any State. . shall, any such

law, statute, ordinance, regulation, custom, or usage of

the State to the contrary notwithstanding, be liable to the

party injured... .” The italicized phrase was not placed

in the 1874 recodification (Rev. Stat. § 1979), probably

because the revisers thought it was surplusage. The

phrase serves to demonstrate, however, that Congress

did not intend unconstitutional state action of any kind

to be beyond the reach of the statute. Consistent with

this plain language, the Court’s decisions quoted above

(and the legislative history there referred to) make it

abundantly clear that “state officials,” “state instru-

mentalities” and “state agencies” were § 1983’s principal

targets.

Petitioners and amici rely, however, on § 1983’s as-

serted “person” limitation with respect to those who are

made suable in federal courts. A state, they say, is not

a “person” subject to § 1983 federal judicial power;

therefore, a § 1983 suit which seeks money (even an

award of attorneys’ fees) payable out of state funds

is to that extent a suit against a non-“person,” even

though the “prospective relief” aspects of the action are

proper. This conclusion is not based on anything in the

legislative history of § 1983 relating to the definition of

“person.” Indeed, it is not even based on legislative his-

tory pertaining to the suability of states. The argument

rests, rather, on an inference drawn from this Court’s

holding in Monroe v. Pape, 365 U.S. 167, 187-92 (1961),

that municipalities are not § 1983 “persons.” That deci-

sion, in turn, was based on an inference drawn from the

fate of the so-called “Sherman amendment” which would

have amended the 1871 Act by making municipalities

absolutely liable, without fault, for riot damages occurring

within their jurisdiction.” Regardless of the correctness

of the Monroe interpretation, the added inference sought

by petitioners and amici simply is not supportable.

If we could ask the Congressmen of 1871 whether they

intended states as such to be made suable under § 1983

as named party defendants—a question which the lower

courts periodically feel constrained to raise and answer“

% See Monell Amici Br. 17a-19a, nn. 47 & 51.

* See, e.g., Rochester v. White, 503 F.2d 263 (3d Cir. 1974), and

Third Circuit cases cited id. at 266 n.6; Cheramie v. Tucker, 493

F.2d 586 (5th Cir.), cert. denied, 419 U.S. 868 (1974); Collins

—the answer probably would be that the question misses

the point, because it was assumed by all that the Four-

v. Moore, 441 F.2d 550 (5th Cir. 1971); Zuckerman v. Appellate

Division, 421 F.2d 625 (2d Cir. 1970); Diamond v. Pitchess, 411

F.2d 565 (9th Cir. 1969); Deane Hill Country Club, Inc. v. City of

Knorville, 379 F.2d 321 (6th Cir.), cert. denied, 389 U.S. 975

(1967); Williford v. California, 3562 F.2d 474 (9th Cir. 1965);

United States ez rel. Lee v. Illinois, 343 F.2d 120 (7th Cir. 1965) ;

Gras v. Stevens, 415 F. Supp. 1148 (S.D. N.Y. 1976) (three-judge

court). This reasoning has been extended also to state agencies

and other state-level instrumentalities. See, e.g., Huntley v. North

Carolina State Bd. of Educ., 493 F.2d 1016, 1017 n.2 (4th Cir. 1974)

(state board of education); Curtis v. Everette, 489 F.2d 516 (3d

Cir. 1973), cert. denied, 416 U.S. 995 (1974) (state bureau of cor-

rections) ; Allison v. California Adult Authority, 419 F.2d 822 (9th

Cir.), cert. denied, 394 U.S. 966 (1969) (state adult authority and

state department of corrections) ; Cheramie v. Tucker, supra (state

— department); Zuckerman v. Appellate Division, 421 F.2d

625 (2d Cir. 1970) (state courts) ; Coopersmitk v. Supreme Court

of Colorado, 4€5 F.2d 993 (10th Cir. 1972) (same); Moity v.

Louisiana State Bar Ass'n, 414 F. Supp. 180 (E.D. La. x!

(same) ; Protrollo v. University of South Dakota, 507 F.2d 775, 777

n.l (8th Cir. 1974), cert. denied, 421 U.S. 952 (1975) (state uni-

versity and its board of regents); Blanton v. State University of

New York, 489 F.2d 377 (2d Cir. 1973) (same); cf. Gay Students

Organization v. Bonner, 509 F.2d 652 (ist Cir. 1974); Cooper-

smith v. Supreme Court of Colorado, 465 F.2d 993 (10th Cir. 1972)

(state bar association); Clark v. Washington, 366 F.2d 678 (9th

Cir. 1966) (same); ef. Moity v. Lowisiana State Bar Ass'n, supra;

Sherman v. Dellums, 417 F. Supp. 7 (C.D. Calif. 1973) (state fair

employment practices commission ). Contra, Forman v. Community

Services, Inc., 500 F.2d 1246 (2d Cir. 1974), rev'd on other grounds

sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837

(1975) (state housing finance agency); Stebbins v. Weaver, 396

F. Supp. 104 (W.D. Wis. 1975) ; Marin v. University of Puerto Rico,

377 F. Supp. 613 (D. P.R. 1974). None of the above non-

decisions were based on analysis of the legislative history of § 1983.

— 2 44 — 4 — 2

“political subdivisions of a state, i. e., municipalities and counties

teenth Amendment empowered Congress to bring the

states, as states and in their legislative capacities, to heel.

The issue mooted in the debates, rather, was: how much

farther than that may Congress go? How far down into

the states and their functions may Congress reach? We of

course know the answer to be that whoever acts for the

state, even the lowliest of the state’s local functionaries,

is subject to the Fourteenth Amendment and to congres-

sional action thereunder: “Whoever, by virtue of public

position under a state government, deprives another of

property, life or liberty without due process of law, or

denies or takes away the equal protection of the laws,

violates the constitutional inhibition; and as he acts in

the name and for the State, and is clothed with the

State’s power, his act is that of the State.“ Er parte

Virginia, supra, 100 U.S. at 347. That is the answer

given in 1880 to the question Congress debated in 1871.

Examination of that debate is informative with respect

to the controversy at hand.

One of the recurring objections to the 1871 Act was

the contention that the Fourteenth Amendment operated

against the states only with respect to discriminatory

legislation; that the Amendment, in the words of one

opponent, is “prohibitory only on the legislation of the

States.” Giospe 455 (Rep. Cox). This position accord-

ingly held that Congress’ authority to enforce the Four-

teenth Amendment did not extend to forms of state

action other than to discriminatory or otherwise unlawful

legislation. See, e. g., id. at 420 (Rep. Bright), 429 (Rep.

McHe.iry), 600 (Sen. Saulsbury), 661 (Sen. Vickers),

app. 160 (Rep. Golladay), app. 208-09 (Rep. Blair of

Missouri), app. 231 (Sen. Blair), app. 259 (Rep. Hol-

man). Representative of this point of view are the re-

marks of Senator Thurman, leader of the opposition in

the Senate (app. 221):

And so, too, in regard to the limitation upon the

power of the States that no State shall “deny to

any person within its jurisdiction the protec-

and

it is the denial by that government, and not by some

individual, although he is clothed with f

that constitutes a denial by the State.

Would it be said to be a denial the United

suntan of cer alt 0 nites KN

or Florida should make a decision that really

cag

;

deny the equal protection of the laws, the nat

meaning of it is that no State shall make

nan

which deny equal to all the people who are

residing in it, that is the only safe meaning to

give it; because otherwise would blot the States

you

out of existence by the broad construction that

been contended for.

The proponents of the legislation flatly rejected

view of the Fourteenth Amendment. Throughout the

ee F

40 41

bates they focused on the conduct of state officials and the rights of citizens to be systematically trampled

state institutions and other instrumentalities of state upon without color of law, of what avail is the Con-

government. “The laws must not only be equal on their stitution to the citizen?

face,” said Representative (later President) Garfield, The argument leads to the deduction that while

“but they must be so administered that equal protection the first section of the amendment prohibits all dep-

under them shall not be denied to any class of citizens, rivation of rights by means of State laws, yet all

either by the courts or the executive officers of the State.” rights may be subverted and denied, without color of

law, and the Federal Government have no power to

GLOBE app. 153. Clearly it was with the administration interfere. All you have to do, this

of state laws that they were most concerned. See also, — therefore, under

, to drive every obnoxious man from a State, or

e.g., GLOBE 321 (Rep. Stoughton), 334-35 (Rep. Hoar), slay him with impunity, is to have the law all right

375 (Rep. Lowe), 394 (Rep. Rainey), 426 (Rep. McKee), on the statute-book, but quietly permit rapine and

429 (Rep. Beatty), 444-45 (Rep. Butler), 459 (Rep. Co- violence to take their way, without the hinderance of

burn), 482 (Rep. Wilson of Indiana), 607-08 (Sen. Pool), local authorities. Such a position, Mr. Speaker, de-

696-97 (Sen. Edmunds), app. 72 (Rep. Blair of Michi- feats itself by its own absurdities. The rights and

gan), app. 80 (Rep. Perry), app. 147 (Rep. Shanks), privileges of citizens are not only not to be denied by

app. 152-53 (Rep. Garfield), app. 182 (Rep. Mercur), a State but they are not to be deprived of them.

app. 185-86 (Rep. Platt), app. 300 (Rep. Stevenson), And Representative Wilson of Indiana made similar com-

app. 309-10 (Rep. Maynard), app. 314-15 (Rep. Bur- ments (id. at 482) :

chard). Speaking specifically to the argument that the But it must be observed thin}

Fourteenth Amendment is addressed only to state legis- clusive against any such BAS, thet this lan.

lation, Representative Lowe said (GLOBE 375) : guage cannot fairly or reasonably be construed to

refer exclusively to denial by statutory enactment.

I understand the argument to be that inasmuch as

the alleged lawless acts sought to be corrected by dey DL BY DB ne

the bill are not done in pursuance of any law or act shall yA enacted,” or “no

of the States, that as there is no State authority or r

laws impeding the eitizens in the enjoyment of their was a statutory denial that was meant.

rights, the section [$1 of the Fourteenth Amend Lr What

ment] quoted does not apply. It is said that the Sto is meant 17 word “State?” Obviously the word

are not doing the objectionable acts. This argus is used in its largest and most comprehensive sense.

is more specious than real. Constitutions and lew It means the government of the State. What is a

are made for practical operation and effect. They State in its true sense? It is a government, not a

have certain ends to accomplish, and must be under- yt ae yA me fem laws; it

stood as tending to accomplish the objects sought. is a ty: the me, So Stel, end ts

What practical security would this provision give if it executive: these three are one, the State. It requires

could do no more than to abrogate and nullify the the combination and cooperation of these three co-

overt acts and legislation of a State? If a State has ordinate branches to make the State Government ;

no law upon its statute book obnoxious to objection and when the word “State” is used in this article it

under the article referred to, but nevertheless permits is in this triune sense, and its constitutional provi-

11 35 91 ies

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titled—now for the first time it is attempted to be

frittered away by the statement that it is a mere

tates and the liberties of the people when,

rights being denied, when criminals go 4 —

ished by the score, by the hundred, and by the -

sand, when justice sits silent in her temple in the

States, or is driven from it altogether, it interposes

their behalf; when the Government of the whole

people, through their laws and tribunals, takes in its

hand this ancient monument and guarantee of jus-

tice now found in its Constitution and applies it as

it always has been lied. Why, sir, if I were in

any other place I should say—

3. The Fourteenth Amendment-enforcement func-

tion of $1983 is inconsistent with sovereign-

immunity defenses.

Thus, while no one disputed that the Fourteenth

Amendment placed restrictions on states qua states, or

states in their legislative capacities, the controversy was

over the Amendment’s coverage of other forms of state

action, particularly the administration and implementa-

tion of state laws. Congress’ power to subject the states

as such to suits in federal court was never put in doubt.

It is this fact that makes it inconceivable that the same

Congress, without saying so, meant to exempt the states

in any of their manifestations from § 1983's coverage.

Adding to this unlikelihood is the clear evidence that

§ 1983's primary function was to transfer jurisdiction

* The remarks of Representative Storm, specifically objecting to

EEE

1 0

11!

1111 f

Hite

judgment or decree of said court may be reexamined, reversed,

or affirmed in the Supreme Court of the United States on a

of error. But first section of this bill does not allow

—

- of

as far as it went (see, e.g., GLOBE 577-79 (dialogue

Senators Carpenter, Trumbull, Thurman and Ed-

munds) ), they were of the firm view, as we have seen

(pp. 32-34, supra), that the lower levels of the federal

judiciary needed to be brought into the service of the

Fourteenth Amendment. That was § 1983’s purpose. It

is a purpose irreconcilable with the position of petitioners

and amici that less than a full measure of relief is avail-

able when money belonging to the state is implicated in

a § 1983 suit.

4. The “Sherman amendment” debates are essen-

tially irrelevant.

To the extent that the lower courts have relied on the

“person” holding of Monroe v. Pape to eireumseribe the

scope of relief available under § 1983 against states and

state agencies (see note 37, supra), the courts are in

error. The Monroe “person” holding—that municipalities,

counties and parishes are not subject to suit pursuant to

§ 1983—is based exclusively on the defeat of the pro-

posed Sherman amendment (and a revised version), which

would have added a section to the 1871 Act making

cities and the like absolutely liable (even if they were

not at fault) for personal injuries and property damages

resulting from riots within their borders. Whether the

fate of the Sherman amendment is viewed as a product

of “serious legislative concern as to Congress’ constitu-

tional power to impose liability on political subdivisions

f their rightful constitutional role.” Jd. The Court re-

pokey the . holding that. in addition to the courts. Con-

gress has full remedial powers to effectuate the constitutional pro-

hibition against racial discrimination in voting. Id. at 326; see also

id. at 327.

„The proponents agreed, for example, that the Contract Clause

could be enforced against the States by the federa! courts without

any legislation from Congress other than a grant of jurisdiction—

a point that had been settled since Chief Justice Marshall's opinion

in Sturges v. Crowninshield, 4 122 (1819).

of the States” which also applies to § 1983, Moor v.

County of Alameda, 411 U.S. 698, 708 (1973), or whether

that fate is seen (as we view it) as a result of other

concerns, the Sherman amendment debates lend no sup-

port to the argument that state treasuries are protected

from § 1983’s reach. If the debates surrounding the

Sherman proposal’s defeat (coming after the Act, in-

cluding § 1983, already had safely passed both the House

and the Senate), are relevant in any way, it is because

they demonstrate a contrary proposition.

The House Republicans responsible for the defeat of

the Sherman amendment (see note 40, supra) uniformly

expressed their opposition in terms peculiar to munici-

palities, but not to states. That is, their objections all

were directed to the fact that municipalities have only

such law-enforcement duties as the states chouse to

impose upon them. Nothing in the Fourteenth Amend-

there was no power to impose the policing duty, these Con-

gressmen concluded that Congress necessarily lacked the

power to subject municipalities to liability for the wrongs

“In our view, the defeat of the Sherman amendment is not

relevant to the scope of § 1983, which had already passed both

Houses of Congress. But even assuming the relevance of the

Sherman-amendment debates, we have pointed out (see Monell

Amici Br. 17a-3la) that the defeat of that amendment i« due

entirely to the views of a handful of House Republicans who sup-

ported all of the provisions of the bill as it initially passed the

House, but who “defected” with respect to the amendment added

in the Senate at the behest of Senator Sherman. It is therefore the

views of these defecting Republicans, rather than those of the

House Democrats who opposed the bill in its entirety, which pro-

vide the correct understanding of the reasons for the defeat of the

Sherman proposal. The Monell amici brief also shows that the fail-

ure of the Sherman proposal was not based on any doubts about

Congress’ power under the Fourteenth Amendment to subject munici-

of private citizens as proposed by the Sherman amend-

ment. In other words, Congress could not impose a liability

where it lacked the authority to impose a duty the breach

of which was prerequisite to liability.“

This rationale is wholly incompatible with the notion

that these same Congressmen doubted their authority to

subject states to similar liability. It is problematic how

they would have voted if someone had proposed to sub-

ject the states to liability without fault for riot damages.

But surely they would not have questioned their power

under the Fourteenth Amendment to impose both the duty

and the liability upon the states as such. Representative

Willard, one of the “defecting” Republicans (see note 40,

supra), said as much (GLOBE 791):

I hold that this duty of protection, if it rests any-

where, rests on the State, and that if there is to be

any liability visited upon anybody for a failure to

perform that duty, such liability should be brought

home to the State. Hence, in my judgment, this sec-

tion would be liable to very much less objection, both

in regard to its justice and its constitutionality, if

it provided that if in any State the offenses named

in this section were committed, suit might be brought

against the State, judgment obtained, and payment

of the judgment might be enforced upon the treasury

of the State.

There is no basis in the Sherman amendment debates

or any other part of the 1871 Act’s legislative history

for imputing to Congress a desire to protect state treas-

uries from the consequences of federal § 1983/Four-

teenth Amendment suits against state agencies and of-

ficials—suits which Congress manifestly intended to au-

thorize.

„See Gon 791 (Rep. Willard), 794 (Rep. Poland), 795 (Rep.

Blair of Michigan 796 (Rep. Burchard), 798 (Rep. Bingham), 796-

99 (Rep. Farnsworth). See generally Monell Amici Br. 17a-31a.

5. The § 1983 status of states and their subordinate

y= = eee os

ourt.

Petitioners and amici urge that the following dictum

in Fitzpatrick v. Bitzer decides the issue in their favor

(427 U.S. at 452) :

We concluded that none of the statutes relied upon

by plaintiffs in Edelman contained any authorization

by Congress to join a State as defendant. The Civil

Rights Act of 1871, 42 U.S.C. § 1983, had been held

in Monroe v. Pape, 365 U.S. 167, 187-191 (1961. to

exclude cities and other municipal corporations from

its ambit; that being the case, it could not have been

Because of the Fitzpatrick dictum quoted above, the

appropriate starting point is the 1974 decision in Edel-

man v. Jordan. (We have found no decision of this Court

prior to that time which questions the § 1983 “person”-

hood of states and state agencies.“ Despite the sugges-

tion in Fitzpatrick that Edelman’s § 1983 holding relied

upon Monroe v. Pape, we are unable to understand Edel-

Section 1983 has formed the jurisdictional for many

339 U.S. 637 (1950); Baker v. Carr, 369 US. 186 (1962): Reynolds

a os

; Boddie v. Connecticut, 401 U.S. 371

man (which does not even cite Monroe) in Monroe “per-

son” terms. In Argument I, pp. 19-20, supra, we have

quoted in full the Edelman § 1983 holding, which we

interpret as being based on the fact that the Social Se-

curity Act—the source of the substantive rights involved

there—did not authorize retroactive monetary relief

against the states and, moreover, did not otherwise pur-

port to override the sovereign immunity of the states.“

A different result necessarily obtains when the § 1983

suit is one to enforce the Fourteenth Amendment, whose

“substantive provisions . . . themselves embody significant

limitations on state authority.” Fitzpatrick v. Bitzer,

supra, 427 U.S. at 456.

We are further fortified in our interpretation of Edel-

man by the fact that the very next Term the Court

decided the merits of a § 1983/Fourteenth Amendment

case in which a state was a named party defendant,

without questioning § 1983 subject-matter jurisdiction

over the state. Sosna v. Iowa, 419 U.S. 393 (1975).

Sosna cannot be viewed as a case in which jurisdiction

was assumed without consideration. First, the Court

specifically addressed the applicability of the Eleventh

Amendment, cited Edelman, and concluded that the State

of Iowa had validly waived the sovereign-immunity de-

fense. Id. at 396 n.2. Second, the Court specifically ex-

amined the district court’s subject-matter jurisdiction,

concluding that “[slince jurisdiction was predicated on

28 U.S.C. 8 1343 (3), this case presents no problem of

The Fitepatrick explanation for Edelman’s handling of § 1983 is

made more difficult to comprehend by reason of the Court’s own

treatment of the § 1983 “person” problem as a mandatory jurisdic-

tional inquiry. City of Kenosha v. Bruno, 412 U.S. 507 (1973). If

aggregation of claims in an attempt to satisfy the

requisite amount in controversy of 28 U.S.C. § 1331 (a).“

Id. at 397 n.4. At the very least, Sosna must mean that

the question of the suability of states under § 1983 is an

open one.

6. In any event, state officials are § 1983 “persons”

for all purposes.

In all events, the suability of state officials under

§ 1983 is firmly established. The status of such officials

as § 1983 “persons” does not change when they are sued

in their official capacities for monetary relief to be paid

out of state funds: “the generic word ‘person’ in § 1983

was [not] intended to have a bifurcated application

depending on the nature of the relief sought... .” City

of Kenosha v. Bruno, 412 U.S. 507, 513 (1973). There

may be a basis for holding, as Edelman v. Jordan did,

that suits against state officials to enforce federal statu-

tory rights through § 1983 (see note 27, supra) do not

overcome the Eleventh Amendment hurdle, unless the

relevant federal suvstantive statute (in Edelman, the

Social Security Act) portends that result. But there is

no basis for allowing the Eleventh Amendment to be

interposed as a barrier to complete relief in a § 1983

suit to enforce the Fourteenth Amendment, which of its

own force limits the authority of the states. Fitzpatrick

v. Bitzer, supra, 427 U.S. at 453-56.

Accordingly, there is no sovereign exemption from

monetary relief in a § 1983/Fourteenth Amendment suit

against states, state agencies or state officials. Subsumed

within that conclusion is the a fortiori proposition that

awards of attorneys’ fees in such suits are not barred.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

ARMAND DERFNER

Pau. R. Dimond

NoRMAN REDLICH

Trustees

Rosert A. MuRPHY

Norman J. CHACHKIN

Ricwarp S. KoHN

Davw M. LirpMAN

Wu E. CaLDwELL

Staff Attorneys

LAWYERS’ COMMITTEE FOR

Crvi. Ricnts UND Law

733 - 15th Street, N.W.

Suite 520

Washington, D.C. 20005

(202) 628-6700

Attorneys for Amicus Curiae

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