Hutto v. Finney Brief Amicus Curiae
Public Court Documents
January 1, 1977
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Brief Collection, LDF Court Filings. Hutto v. Finney Brief Amicus Curiae, 1977. 67b2f3a3-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/39ab7a7c-8d4c-4fa1-aaec-f37bfe06e26d/hutto-v-finney-brief-amicus-curiae. Accessed April 28, 2025.
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In The
( ta r t rtf tlrr Imtrft ^tatra
October Term, 1977
No. 76-1660
Terrell Don Hutto, et al.,
Petitioners,v. ’
Robert F inney , 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
Thomas D. Barr
Co-Chairmen
Armand Derfner
Paul R. Dimond
N orman Redlich
Trustees
Robert A. Murphy
N orman J. Chachkin
Richard S. Kohn
David M. Lipman
William E. Caldwell
Staff Attorneys
Lawyers’ Committee for
Civil Rights Under Law
733 - 15th Street, N.W.
Suite 520
Washington, D.C. 20005
(202) 628-6700
Attorneys for Amicus Curiae
W i l s o n - Ep e s P r i n t in g C o . , i n c . - Re 7 - 6 0 0 2 - W a s h i n g t o n . D .C . 2 0 0 0 1
CONTENTS
Page
Interest of Amicus Curiae................................ ............... 1
Summary of Argument.............. ................ ...... ............... 4
Argum ent.... .......... ....................... ................... ................ 6
Introduction .... ......-....................... .....................................- 6
I. IF THE ELEVENTH AMENDMENT IS AP
PLICABLE, ITS PROTECTIVE SHIELD HAS
BEEN REMOVED BY CONGRESS EXERCIS
ING, IN THE FEES ACT, THE POWERS
CONFERRED BY § 5 OF THE FOURTEENTH
AMENDMENT............ ................... ....................... 10
A. The Fees Act Authorizes Fee Awards to be
Assessed Against Funds Belonging to the
States, Notwithstanding Sovereign-Immunity
Defenses.......... ............................................ ..... 13
B. In Order Validly to Override the Sovereign
Immunity of the States Congress is Not Lim
ited to Express Statutory Language, So Long
as the Intent is C lear.... ................... .............. 16
C. Congress Was Not Required to Amend § 1983
In Order to Authorize Fee Awards in § 1983
Suits Against State Officials ............ .. ........— 18
D. It Also is Irrelevant that the State is Not a
Named P arty .............................. ............. ........ 22
II. 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___________ 24
II
A. The Eleventh Amendment is Not Applica
ble to Federal-Question Suits Against the
States ......... 25
B. In § 1983/Fourteenth Amendment Suits, the
States Are Divested of Sovereign-Immunity
Defenses....... ........................... 26
1. The historic significance of § 1983 and
the relevant decisions of this Court____ 26
2. The language and legislative history of
§ 1983 ......... ............ .................... ............ _ 35
3. The Fourteenth Amendment-enforcement
function of § 1983 is inconsistent with
sovereign-immunity defenses______________46
4. The “Sherman amendment” debates are
essentially irrelevant.................... 48
5. The § 1983 status of states and their sub
ordinate units is, at the very least, an
open question in this C ourt__________ 51
6. In any event, state officials are § 1983
“persons” for all purposes___________ 53
Conclusion ............................................... 54
I ll
TABLE OF AUTHORITIES
Cases: Page
Adamson V. California, 332 U.S. 46 (1947) ........... 29n
Adickes V. S. H. Kress & Co., 398 U.S. 144 ( 1 9 7 0 ) 28n
Adkins V. Duval County School Bd., 511 F.2d 690
(5th Cir. 1975) ...... ........ ..................... ......... ..... 37n
Aldinger V. Howard, 427 U.S. 1 (1976)_________ 18n
Alicea Rosado V. Garcia Santiago, 562 F.2d 114
(1st Cir. 1977)_______ 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 1033 (4th Cir.), cert.
denied, ----- U.S. ------, No. 76-1585 (Oct. 3,
1977) ....................... lOn
Alyeska Pipeline Service Co. V. Wilderness Society,
421 U.S. 240 (1975)__________________3n, 6n, 7 ,12n
Amos V. Sims, 409 U.S. 942 (1972), aff’g 340
F.Supp. 691 (M.D. A la .)___________________ 7
Arkansas V. Tennessee, 246 U.S. 158 (1918)_____ 22n
Baker V. Carr, 369 U.S. 186 (1962)....... ......... ........ 51n
Beazer V. New York City Transit Auth., 558 F.2d
97 (2d Cir. 1977)______________ ___________ 9n
Belknap V. Shild, 161 U.S. 11 (1896)__________ 22n
Blanton V. State University of N.Y., 489 F.2d 377
(2d Cir. 1973) _______________ 37n
Blue V. Craig, 505 F.2d 830 (4th Cir. 1974)_____ 27n
Boddie V. Connecticut, 401 U.S. 371 (1971)______ 51n
Bogart V. Unified School Dist. No. 298, 432 F.Supp.
895 (D.Kan. 1977) ............. .................................. . 9n
Bond V. Stanton, 555 F.2d 172 (7th Cir. 1977)...... 9n
BondV. Stanton, 528 F.2d 688 (7th Cir.), vacated,
429 U.S. 973 (1976) ................. .......................... . 7n
Boston Chapter NAACP, Inc. V. Beecher, 504 F.2d
1017 (1st Cir. 1974), cert, denied, 421 U.S. 910
(1975) .............. ................ ......... ......................... . 7n
Bradley v. School Bd. of Richmond, 416 U.S. 696
(1974) ....... .................. ...................... .......... ....... 3n, 9n
Brown V. Culpepper, 559 F.2d 274 (5th Cir. 1977).. 9n
Cheramie V. Tucker, 493 F.2d 586 (5th Cir.), cert,
denied, 419 U.S. 868 (1974)................ ............ . 36n
IV
Chicago, B. & Q. R,R. v. City of Chicago, 166 U.S.
226 (1896) ..................... ........ ........ ............. ...... . 23
Chisholm V. Georgia, 2 Dali. 419 (1793) ........ ....... 25
Christian V. Atlantic & N.C. R.R., 133 U.S. 233
(1890) ................................. 22n
Christiansburg Garment Co. V. EEOC, No. 76-
1383 (pending)___ __ 3n
City of Kenosha V. Bruno, 412 U.S. 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) ....... 7n
Cohens V. Virginia, 6 Wheat. 264 (1821)________ 25
Collins V. Moore, 441 F.2d 550 (5th Cir. 1971)____36-37n
Cooper V. Aaron, 358 U.S. 1 (1958) ................... . 5, 24
Cooversmith v. Supreme Court of Colorado, 465
F.2d 993 (10th Cir. 1972)........... 37n
Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir.
1977) ........ 9n
Curtis V. Everette, 489 F.2d 516 (3d Cir. 1973),
cert, denied, 416 U.S. 995 (1974)....... ................ 37n
Diamond V. Pitchess, 411 F.2d 656 (9th Cir. 1969) _ 37n
District of Columbia V. Carter, 409 U.S. 418
(1973) ....... ............ ........... ....... ..... ...................... 33
Deane Hill Country Club, Inc. v. City of Knoxville,
379 F.2d 321 (6th Cir.), cert, denied, 389 U.S.
975 (1967) ............ .......... .................................... - 37n
Douglas v. City of Jeannette, 319 U.S. 157 (1943).. 28n
Downs v. Department of Pub. Welfare, 65 F.R.D.
557 (E.D. Pa. 1974)..____ _________________ 7n
Durfee V. Duke, 375 U.S. 106 (1963)...................... 22n
Edelman V. Jordan, 415 U.S. 651 (1974)................ passim
Employees of Dept, of Pub. Health & Welfare v.
Department of Pub. Health & Welfare, 411 U.S.
279 (1973) ............... ...... .... - .................... ....... 5,16,17
Ex parte New York, 256 U.S. 490 (1921) ---------- 23n
Ex parte Virginia, 100 U.S. 339 (1880) ..5,12n, 23, 26n, 33
Ex parte Young, 209 U.'S. 123 (1908) ....6, 7,10,11,19, 20
Fairmont Creamery Co. v. Minnesota, 275 U.S. 168
(1927) .................................................................... 6,10
TABLE OF AUTHORITIES—Continued
Page
V
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 (1976).............passim
Ford Motor Co. V. Department of Treasury, 323
U.S. 459 (1945)..... ................................... ....... -.... 23
Forman v.. Community Services, Inc., 500 F.2d
1246 (2d Cir. 1974), rev’d, 421 U.S. 837 (1975).. 37n
Franklin V. Shields, ------ F .2 d ------, No.. 75-2056
(4th Cir. Sept. 19, 1977) ..................................... 9n
Gambino v. Fairfax County School Dist., 429
F.Supp. 731 (E.D. Va. 1977).... ..................... ..... 9n
Gary W. V. Louisiana, 429 F.Supp. 711 (E.D. La.
1977) ..... .............................................................. - 9n
Gates V. Collier, 559 F.2d 241 (5th Cir. 1977)....... 3n, 9n
Gates v. Collier, ID F.R.D. 341 (N.D. Miss. 1976),
aff’d, 559 F.2d 241 (5th Cir. 1977)..................... . 7n
Gay Lib V. University of Missouri, 558 F.2d 848
(8th Cir. 1977)......... .................................. ......... 9n
Gay Students Organ. V. Bonner, 509 F.2d 652 (1st
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) ........... .................... .................................... . 37n
Guajardo V. Estelle, 432 F.Supp. 1373 (S.D. Tex.
1977) ..................... - .............. -............................... 9n
Hagans V. Lavine, 415 U.S. 528 (1974)............ ......13, 28n
Hague V. C.I.O., 307 U.S. 496 (1939)_____ _____ 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. 1974)__________________ 37n
Jordan V. Gilligan, 500 F.2d 701 (6th Cir. 1974),
cert, denied, 421 U.S. 991 (1975) ------- ----------- 7n
Katzenbach V. Morgan, 384 U.S. 641 (1966)------- 12n
King V. Greenblatt, 560 F.2d 1024 (1st Cir. 1977).. 9n
Lynch V. Household Finance Corp., 405 U.S. 538
(1972) ................... - .......... ............................... ... 28n
TABLE OF AUTHORITIES—Continued
Page
VI
Lytle V. Commissioners of Election, 541 F.2d 421
(4th Cir. 1976) ............. ........................... ....... ...... 10n
McLaurin V. Oklahoma State Regents for Higher
Educ., 339 U.S. 637 (1950)_______ ___ _____ 51n
Marin V. University of Puerto Rico, 377 F.Supp.
613 (D. P.R. 1974) ................................................ 37n
Martinez Rodriguez V. Jimenez, 551 F.2d 877 (1st
Cir. 1977) ............. ................................... ............. 9n
Maynard V. Wooley, —— F.Supp. —— , C.A. No.
75-57 (D. N.H. Sept. 26, 1977) .... ........ ............. 9n
Miller V. Carson, 563 F.2d 741 (5th Cir. 1977)___ 9n
Milliken V. Bradley, ----- U.S. ------, No. 76-447
(June 27, 1977) ....... ...._____ ______ 4n, 6,10, ll-12n
Mitchum V. Foster, 407 U.S. 225 (1972)__ 5, 32-33, 34, 35
Moity V. Louisiana State Bar Ass’n, 414 F.Supp.
180 (E.D. La. 1976)............ ........... ........ .... ......... 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,
49
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. O’Neill, 431 F.Supp. 700 (E.D. Pa.
1977) _________ _________________________ 9n
Philbrook V. Glodgett, 421 U.S. 707 (1975)______ 13
Planned Parenthood of Minnesota, Inc. V. Citizens
for Community Action, 558 F.2d 861 (8th Cir.
1977) ______ ___ _____ _____________ _____ 9n
Protrollo V. University of South Dakota, 507 F.2d
775 (8th Cir. 1974), cert, denied, 421 U.S. 952
(1975) ____ ____ ____________ ____________ 37n
Rainey V. Jackson State College, 552 F.2d 672 (5th
Cir. 1977) .................. ........ ........................... ....... 9n
Reynolds V. Abbeville County School Dist., 554
F.2d 638 (4th Cir. 1977)
TABLE OF AUTHORITIES—Continued
Page
9n
VII
Reynolds V. Sims, 377 U.S. 533 (1964).................. 51n
Rochester v. White, 503 F.2d 263 (3d Cir. 1974).... 36n
Romero V. International Terminal Operating Co.,
358 U.S. 354 (1959) .............................................. 30n
Runyon V. McCrary, 427 U.S. 160 (1976)......6n, 21n, 29n
Schmidt V. Schubert, 433 F.Supp. 1115 (E.D. Wis.
1977) .................................................................... - 9n
Seals V. Quarterly County Court, 559 F,2d 1221
(6th Cir. 1977)........................................................ 9n
Sherman V. Dellums, 417 F.Supp. 7 (C.D. Calif.
1973) ......... 37n
Skehan v. Board of Trustees of Bloomsburg State
College, 538 F.2d 53 (3d Cir. 1976)...................... 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)..... 16n
Sosna V. Iowa, 419 U.S. 393 (1975)_______5,13,19, 52n
South Carolina V. Katzenbach, 383 U.S. 301
(1966) ............................... ....... ............... ...12n, 19n, 47n
Southeast Legal Defense Group V. Adams, 436
F.Supp. 891 (D. Ore. 1977)..______ ________ 9n
Souza V. Travisono, 512 F.2d 1137 (1st Cir.), va
cated, 423 U.S. 809 (1975)_____ ____________ 7n
Stanford Daily V. Zurcher, 550 F.2d 464 (9th Cir.
1977), cert, g ranted,----- U.S. ------, Nos. 76-
1484 & 76-1600 (Oct. 3, 1977) ............... ............ 9n
Stanton V. Bond, 429 U.S. 973 (1976) ...... .......... 3n, 4n, 6
Stebbins V. Weaver, 396 F.Supp. 104 (W.D. Wise.
1975) _................. - ....... ........ ..................... ........ 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
(1969) ........... .......... -............................................ 21n
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
TABLE OF AUTHORITIES—Continued
Page
VIII
TABLE OF AUTHORITIES—Continued
Page
United States ex rel. Lee v. Illinois, 343 F.2d 120
(7th Cir. 1965).... ... ................................... ........... 37n
Universal Amusement Co., Inc. V. Vance, 559 F.2d
1286 (5th Cir. 1977).............................................. 9n
Wade V. Mississippi Cooperative Extension Service,
424 F.Supp. 1242 (N.D. Miss. 1976)............. ...... 3n, 9n
Wallace V. House, 538 F.2d 1138 (5th Cir. 1976).. lOn
Welsch V. Likins, 68 F.R.D. 589 (D. Minn.), aff’d
& adopted, 525 F.2d 987 (8th Cir. 1975)............ 7n
Western Union Tel. Co. V. Pennsylvania, 368 U.S.
71 (1961) ............. ------- --------- -------------------- 22n
Wharton V. Knefel, 562 F.2d 550 (8th Cir. 1977).. 9n
White V. Crowell, 434 F.Supp. 1119 (W.D. Tenn.
1977) ........ ............. ......................... - --- ---------- 9n
Williford V. California, 352 F.2d 474 (9th Cir.
1965) ........................ - ...... .................................. .. 37n
Wilson V. Chancellor, 425 F.Supp. 1227 (D. Ore.
1977) ........................... -......................................... 9n
Zuckerman V. Appellate Div., 421 F.2d 625 (2d
Cir. 1970) ....... ...............................................- ..... 37n
Zwickler V. Koota, 389 U.S. 241 (1967) .....______ 32, 33
Statutes and Rules :
28 U.S.C. § 1343(3)..................... ........... -................. 13, 27n
42 U.S.C. §. 1971 ...................................................... - 23n
42 U.S.C. § 1983 .......... ............ —.....................- passim
42 U.S.C. § 1988 .... ..... .......... ........ ...... 2n, 3, 7,10, 20-21n
Rev. Stat. §563(12).............. ................ ........ ..... ...27-28n
Rev. Stat. § 629(16)................... -........... ~~........... 27-28n
Rev. Stat. § 72Z.__.......... ........................... .............. 10, 20n
Rev. Stat. § 1979.......... ................................ ...... 27-28n, 35
Pub. L. No. 94-559 (Oct. 19, 1976), 90 Stat. 2641,
amending Rev. Stat. § 722.............. „.................. 2n, 10
Judiciary Act of 1789, 1 Stat. 85 -------- ------ — 47
Act of March 2, 1973,1 Stat. 335........................ 33n
Civil Rights Act of April 9, 1866, 14 Stat. 27........ 20n
Enforcement Act of May 31, 1870, 16 Stat. 140 __20n, 28n
IX
TABLE OF AUTHORITIES—Continued
Page
Force Act of Feb. 28, 1871, 16 Stat. 433.......... ...... 28n
Civil Rights Act of April 20, 1871, 17 Stat. 13------ 26-28
F ed. R. Civ. P. 1 9 ....... .... ........ ................................ 22
Legislative Materials:
Subcomm. on Const. Rights of Senate Comm,
on the J udiciary, 94th Cong., 2d Sess., Civil
Rights Attorney’s F ees Awards Act of
1976 (P ublic Law 94-559, S. 2278)— Source
Book: Legislative History, Texts, and Other
Docum ents (Comm. Print. 1976)........... „.7-8n, 9n, 12n,
13-16
122 CONG. Rec. (daily ed. 1976)............................. 8n
Cong. Globe, 42d Cong., 1st Sess. (1871)-28n, 29-31, 34,
38-46, 47n, 48,50
Cong. Globe, 39th Cong., 1st Sess. (1866).............. 29
S. Rep. No. 94-1011, 94th Cong., 2d Sess. (June 29,
1976) _ ...... ......................... -............. ............... 8n
H.R. R e p . No. 94-1558, 94th Cong., 2d Sess.
(Sept. 15, 1976).... ...... .......................................... 8n
S. 2278, 94th Cong., 2d Sess. (1976)------------- — 8n
H.R. 15460, 94th Cong., 2d Sess. (1970).................- 8n
Other Authorities:
T h e F ederalist No. 3 2 ..... ..................................... .. 25
T he F ederalist No. 81 ...........................................— 25
F . F ra n k fu rter & J. La n dis , T h e B u sin ess of
t h e Su pr em e Court (1928).............. .................... 32
1 B. Schwartz, Statutory History of the
United States: Civil Rights (1970)................. 29n
In The
fhtjmw ( ta r t nf % Staton
October Term, 1977
No. 76-1660
Terrell Don Hutto, et al.,
Petitioners,
v.
Robert F inney , 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
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 of this brief are being
filed with the Clerk pursuant to Rule 42(2).
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 plain
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,1 and we have participated in litiga
1 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.
3
tion involving the construction of such legislation.2
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
prisons to the individual-rights guarantees made appli
cable to the states by the Fourteenth Amendment to the
federal Constitution. Pursuant to the “bad faith” excep
tion to the “American rule” that each litigant must bear
his own lawyers’ fees, the district court awarded modest
attorneys’ fees to plaintiffs’ counsel, with directions that
the award be paid by defendants, officials of the Arkansas
Department of Correction (petitioners here), in their of
ficial capacities, i.e., out of Department of Correction
funds. The Court of Apeals for the Eighth Circuit,
primarily relying upon the Civil Rights Attorney’s Fees
Awards Act of 1976, codified as the last sentence of 42
U. S.C. § 1988, affirmed the district court’s award of fees
over petitioners’ objections that the award is not au
thorized by § 1983 and is prohibited by the Eleventh
Amendment and the principles of state sovereignty em
bodied therein. Finney V. Hutto, 548 F.2d 740 (8th Cir.
1977). Petitioners have brought those issues to this Court.
The Lawyers’ Committee represents civil rights plain
tiffs in a number of lower-court § 1983 cases which in
volve the same attorneys’ fees/Eleventh Amendment is
sues,3 and we have appeared as amicus in similar cases
2 In addition to numerous cases in the courts of appeals, we have
filed amicus briefs with this Court in Christiansburg Garment Co.
v. EEOC, No. 76-1383 (pending); Stanton V. Bond, 429 U.S. 973
(1976); Fitzpatrick V. Bitzer, 427 U.S. 445 (1976) ; Alyeska Pipe
line Service Co. v. Wilderness Society, 421 U.S. 240 (1975) ; Bradley
V. School Board of Richmond, 416 U.S. 696 (1974).
3 See, e.g., Gates V. Collier, 559 F.2d 241 (5th Cir. 1977); Wade
V. Mississippi Cooperative Extension Service, 424 F.Supp. 1242
(N.D. Miss. 1976).
4
in this Court.4 We also have provided representation to
litigants in this Court in § 1983 cases concerning the
general reach of the Eleventh Amendment,5 and we have
filed amicus briefs in cases involving the scope of, and the
relief available under, § 1983.6 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.7
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
4 Stanton V. Bond, supra; Fitzpatrick v. Bitzer, supra.
5 See, e.g., Milliken V. Bradley, ----- U .S .------ (1977).
6 See, e.g., Monell v. Department of Social Services of the City of
New York, No. 75-1914 (pending).
7 We do not address the issue on the substantive merits which
petitioners have also presented for review.
5
assertions of state sovereignty. The Act is therefore suffi
cient to override the sovereign immunity of the states
in j§ 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); Ex parte
Virginia, 100 U.S. 339 (1880).
II. Wholly apart from the Fees Act, § 1983 itself
overcomes sovereign-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., Mitchum 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 Sosna V. Iowa, 419 U.S.
6
393 (1975). The correct answer is that they, as well as
state officials sued in their official capaciites, are suable
under, and their sovereign immunity is displaced by,
!§ 1983, at least in suits to enforce the Fourteenth Amend
ment. A fortiori, attorneys’ fees are allowable.
ARGUMENT
Introduction
In our amicus brief in Stanton v. Bond, 429 U.S.
973 (1976), we argued that the Eleventh Amendment
does not apply to attorneys’ fees awarded by the federal
courts pursuant to the “bad faith” exception to the
“American rule”-—i.e., “when the losing party has ‘acted
in bad faith, vexatiously, wantonly, or for oppressive
reasons. . . ” 8 9 Our argument there, which we deem
dispositive, is that lawyers’ fees, like costs, merely are
one of the “incidents” of litigation for which states are
liable “just as any other litigant. . .,” Fairmont Cream
ery Co. v. Minnesota, 275 U.S. 168 (1927) ; that fee
awards are not in the nature of monetary relief, but
have only that “ancillary effect on the state treasury
[which] is a permissible and often an inevitable conse
quence of the principle announced in Ex parte Young,
[209 U.S. 123 (1908), to which the Eleventh Amend
ment does not extend].” Edelman V. Jordan, 415 U.S.
651 (1974).9 See also Milliken v. Bradley, ----- U.S.
8 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).
9 In Edelman the Court provided the following characterizations
of the sort of monetary relief, even if equitable in nature, that
falls without the sanction of Ex parte Young: “award of retroactive
payments of the statutory benefits found to have been wrongfully
withheld” (415 U.S. at 663); “award of an accrued monetary liabil
ity” (id. at 664); “payment of . . . money which . . . should have
been paid, but was not” ( id .); payment of “ ‘state funds to make
7
----- (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), aff’g 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,
we submit nonetheless that such immunity as the states
may have has been displaced by Congress: first, by the
Fees Act, and second, by § 1983 itself. Preliminarily, we
observe that the Fees Act was passed in response to this
Court’s decision in Alyeska Pipeline Service Co. v. Wilder
ness Society, 421 U.S. 240 (1975).110 It has the primary * *
reparation for the past’ ” (id. at 665); “retroactive payments’’ (id.
at 666 n .ll) ; “payment of state funds . . . as a form of compensa
tion” (id. at 668); “in practical effect indistinguishable in many
respects from an award of damages against the State” ( id .); and
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 ordinarily is none of these
things. See Bondv. Stanton, 528 F.2d 688 (7th Cir.), vacated, 429
U.S. 973 (1976); Thonen v. Jenkins, 517 F.2d 3, 7-8 (4th Cir. 1975) ;
Souza V. Travisono, 512 F.2d 1137 (1st Cir.), vacated on other
grounds, 423 U.S. 809 (1975); Class V. Norton, 505 F.2d 123 (2d
Cir. 1974) ; Boston Chapter NAACP, Inc. v. Beecher, 504 F.2d 1017,
1028 (1st Cir. 1974), cert, denied, 421 U.S. 910 (1975); Gates V.
Collier, 70 F.R.D. 341, 347-50 (N.D. Miss. 1976), aff’d on other
grounds, 559 F.2d 241 (5th Cir. 1977); Welsch V. Likins, 68 F.R.D.
589 (D. Minn.), aff’d and adopted, 525 F.2d 987 (8th Cir. 1975);
Downs v. Department of Public Welfare, 65 F.R.D. 557 (E.D. Pa,
1974) ; cf. Skehan V. Board of Trustees of Bloomsburg State Col
lege, 538 F.2d 53, 58 (3d Cir. 1976) (en banc) ; contra, Skehan V.
Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated, 421 U.S.
983 (1975) ; Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), cert,
denied, 421 U.S. 991 (1975).
10 See, e.g., Subcomm. on Const. Rights of Senate Comm, on
the J udiciary, 94th Cong., 2d Sess., Civil Rights Attorney’s
F ees Awards Act of 1976 (P ublic Law 94-559, S.2278)—Source
8
purpose of insuring access to the courts 11 in, inter alia,
§ 1983 cases against state agencies and officials.12 * We
note also that Congress intended the Act to apply to
Book: Legislative History, Texts, and Other Documents 10
(Senate Report), 19-20 (remarks of Sen. Mathias), 21 (Sen.
Kennedy), 75 (Sen. Hathaway), 138 (Sen. Tunney), 202 (Sen.
Abourezk), 210 (House Report), 237 (remarks of Rep. Anderson
of Illinois), 245 & 269 (Rep. Seiberling), 247 (Rep. Bolling), 252-53
(Rep. Drinan), 259 (Rep. Railsbaek), 263 (Rep. Kastenmeier), 264
(Rep. Fish), 267 (Rep. Holtzman) (Comm. Print 1976) [herein
after, “Leg. Hist.”].
Leg. H ist, includes all of the relevant legislative history of the
Fees Act, including the floor debates of both the Senate (daily edi
tions fo 122 Cong. Reg., September 21-24, 27-29 1976) and the House
(daily edition of 122 Cong. 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”)) .
The bill that became law was S.2278, which passed the Senate by a
vote of 57 to 15 on September 29, 1976. Leg. Hist. 204. The Senate
bill was then taken up in the House on October 1, 1976, pursuant to
resolution (id. at 235, 248-52), where it passed on the same day by
a vote of 306 to 68. Id. at 275-78. (President Ford approved the
law on October 19, 1976.) The House Report pertains to H.R. 15460,
a bill virtually identical to S.2278 (see id. at 213); the House Report
on H.R. 15460 forms a significant part of the Fees Act’s legislative
history, and it was referred to throughout the debates in the House.
See id. at 235 (remarks of Rep. Bolling), 236, 237 (Rep. Anderson
of Illinois), 248 (Rep. Bauman), 252 (Rep. Drinan), 260 (Rep.
Kastenmeier), 271 (Rep. Seiberling). The only substantive differ
ence between H.R. 15460 and S.2278 as it passed the Senate was the
omission in the House bill of the provision pertaining to actions
brought by the United States under the Internal Revenue Code.
11 See, e.g., Leg. Hist. 8 & 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).
12 See, e.g., Leg. Hist. 4 & 5 (Senate Report), 77-79 (remarks of
Sen. Helms), 201 (Sen. Kennedy), 213 & 215 (House Report), 253
(Rep. Drinan), 265 (Rep. F ish). In addition to the Court of Appeals
for the Eighth Circuit in the judgment below, two other courts of ap
peals, the F irst and Fifth Circuits, have held the Fees Act applicable
in the specific context of § 1983 litigation against state prison sys
tems or penal institutions. Gates V. Collier, 559 F.2d 241 (5th Cir.
9
pending cases,13 and tha t the lower courts unanimously
have discerned and followed this legislative intent.14
1977); King V. Greenblatt, 560 F.2d 1024 (1st Cir. 1977); cf. Marti
nez Rodriguez V. Jimenez, 551 F.2d 877 (1st Cir. 1977) (Common
wealth of Puerto Rico). See 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. Culpepper, 559 F.2d 274 (5th 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 W. v.
Louisiana, 429 F. Supp. 711 (E.D. La. 1977) ; Wade v. Mississippi
Cooperative Extension Service, 424 F. Supp. 1242 (N.D. Miss.
1977); cf. Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st
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 for 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).
13 See, e.g., Leg. Hist. 202-03 (Sen. Abourezk), 212 n.6 (House
Report), 247 (Rep. Anderson), 255-56 (Rep. Drinan), 272-75 (mo
tion by Rep. Ashbrook, to recommit the bill to add an amendment to
“exempt from the coverage of this act all of those hundreds of cases
which are pending right now,” defeated). See also Bradley V. School
Board of Richmond, 416 U.S. 696 (1974).
14 In addition to the cases cited in note 12, supra, see, e.g., Gore
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.C. Cir. 1977);
Alphin v. Henson, 552 F.2d 1033 (4th Cir.), cert, denied,----- U.S.
10
The Fees Act, Pub. L. No. 94-559 (Oct. 19, 1976),
90 Stat. 2641, amends R ev. Sta t . § 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.
§§ 1 et seq.], or title VI of the Civil Rights Act of
1964 [42 U.S.C. §§ 2000d et seq.], the court, in its
discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee
as part of the costs.
I. IF THE ELEVENTH AMENDMENT IS APPLICA
BLE, ITS PROTECTIVE SHIELD HAS BEEN R E
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 U.S. 662 (1974), and
Milliken v. Bradley, ----- U.S. ------ (1977). Petitioners
and amici do not view attorneys’ fees as a subordinate as
pect of a suit authorized by Ex parte Young, 290 U.S.
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 of Union County,
541 F.2d 421 (4th Cir. 1976) ; Wallace V. House, 538 F.2d 1138
(5th Cir. 1976).
11
U.S. 1 (1890), than to Ex parte Young. According to
their argument, an award of attorneys’ fees falls on
the “retroactive monetary relief,” rather than the “pros
pective relief,” side of the line drawn in Edelman v.
Jordan. Respondents’ brief shows that this argument is
not sustainable, and we agree with respondents. For pur
poses of this amicus brief, however, we assume arguendo
the applicability of the Eleventh Amendment and the
principles of sovereignty it expresses. On that assump
tion, the judgment below still must be affirmed, because
the Fees Act is an exercise of plenary congressional
power authorized by § 5 of the Fourteenth Amendment,15
which necessarily limits any protection from federal ju
dicial power that the Eleventh Amendment and sovereign-
immunity principles might otherwise confer upon the
states.
While petitioners and amici seem to agree that Con
gress intended the Fees Act to strip them of any claim
of sovereign exemption, and that such a result, validly
attained, would not be unconstitutional, they urge never
theless that in several technical respects Congress has
fallen short of its goal. Their principal arguments16
15 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 life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection o-f the
laws. * * * * *
Section 5. The Congress shall have power to enforce, by appro
priate legislation, the provisions of this article.
10 Among the lesser arguments are some rather amorphous sug
gestions that fee awards against states run afoul of the Tenth
Amendment and other principles of federalism (Miss. Br. 14-15;
Penn. Br. 22-23; Calif. Br. 13-14), suggestions that are not made
by petitioners. The Chief Justice addressed similar arguments, and
rejected them out of hand, in last Term’s Milliken v. Bradley, ——
12
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. a t -----
(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.” Id. 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 contemplation of § 5 of the
Fourteenth Amendment (see note 15, supra). The 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 Iowa 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.
13
states as being among the “persons” suable thereunder
(Pet. Br. 5, 7-9; Miss. Br. 5; Calif. Br. 10-11; Iowa
Br. 4, 5-6; Penn Br. 5, 12, 14); and (3) that monetary
relief to be satisfied out of state funds is impermissible
unless the state is a named party to the lawsuit (Pet.
Br. 2 (question presented); Miss. Br. 9-12).
A. The Fees Act Authorizes Fee Awards to Be Assessed
Against Funds Belonging to the States, Notwith
standing Sovereign-Immunity Defenses.
It is not disputed that § 1983, along with its jurisdic
tional counterpart, 28 U.S.C. !§ 1343(3) (see note 27
in fra ), obliges the federal courts to entertain actions
against state officials for alleged violations of rights
secured by the Fourteenth Amendment. See, e.g., Sosna
V. Iowa, 419 U.S. 393 (1975); Hagans V. Lavine, 415
U.S. 528 (1974), and cases discussed at pp. 32-35, 51-53,
in fra; cf. Philbrook v. Glodgett, 421 U.S. 707 (1975) (fed
eral statutory claim) ; Edeiman v. Jordan, supra (same).
There also can be no mistake that Congress intended fee
awards in such cases ordinarily to be paid out of state
funds.
On the floor of the Senate, Senator Helms proposed
an amendment to the Act which he described as “afford-
[ing] protection to financially pressed State and local
governments by including them within the bill’s exemp
tion from liability granted to the Government of the
United States.” Leg. H ist. 77. Senator Helms’ remarks
warrant further quotation, because he specifically called
the attention of his colleagues to the fact that the Act
subjected state treasuries to liability for attorneys’ fees
(id. at 78-79) :
This legislation provides that State and local gov
ernments and their officials can be defendants in
cases involving these statutes and that attorneys’ fees
will “be collected either directly from the official in
14
his official capacity, from funds of his agency or under
his control, or from the State or local government.”
Presently this legislation potentially places a tre
mendous burden upon State and local governments.
In other public interest law suits where the legal fees
have been contested they have ranged from $200,000
to $800,000. Certainly, it is unwise to provide that
liability in these amounts be assumed by already
financially hard-pressed State and local governments.
Therefore, the amendment I am about to call up
would exempt State and local governments.
The Helms amendment {id. at 81) was rejected {id. at
83-84), as was a similar amendment proposed by Senator
Allen. Id. at 146, 150-51; cf. id. at 181-82 (defeated
amendment of Sen. William L. Scott). The Senate enter
tained no doubts about its power to reach state and
local government treasuries, obviously sharing Senator
Abourezk’s view, expressed just before passage, that
“ [i]n enacting this legislation we are acting pursuant to
section 2 of the 13th Amendment and section 5 of the
14th amendment.” Id. at 203.
The Senate Report also makes clear Congress’ desire
to override any efforts to defeat fee awards with claims
of state sovereignty. The Report cites Fairmont Cream
ery, L eg. H ist , lln.6, and it contains the following
unequivocal assertion of congressional power over the
states {id. at 11) (footnotes omitted) :17
In several hearings held over a period of years, the
Committee has found that fee awards are essential
if the Federal statutes to which S. 2278 applies are
to be fully enforced. We find that the effects of such
17 The Senate Report is dated June 29, 1976; it was prepared
without the benefit of this Court’s decision of the day before in
Fitzpatrick V. Bitzer, supra. The second sentence in the quotation
in text, as California and Pennsylvania suggest (Calif. Br. 12;
Penn. Br. 8), indicates that the Senate Report “couched its rationale
in terms adopted from Edelman V. Jordan, supra.”
15
fee awards are ancillary and incident to securing
compliance with these laws, and that fee awards are
an integral part of the remedies necessary to obtain
such compliance. Fee awards are therefore provided
in cases covered by S. 2278 in accordance with Con
gress’ powers under, inter alia, the Fourteenth
Amendment, Section 5. As with cases brought under
20 U.S.C. i§ 1617, the Emergency School Aid Act of
1972, defendants in these cases are often State or
local bodies or State or local officials. In such cases
it is intended that the attorneys’ fees, like other items
of costs, will be collected either directly from the offi
cial, in his official capacity, from funds of his agency
or under his control, or from the State or local gov
ernment (whether or not the agency or government
is a named party).
Similarly, the House Report (dated September 15,
1976), in a footnote appended to the statement that
“ [t]he greater resources available to governments provide
an ample base from which fees can be awarded to the
prevailing plaintiff in suits against governmental officials
or entities,” Leg. H ist. 215, cites Fitzpatrick v. Bitzer,
supra, and says: “Of course, the 11th Amendment is not
a bar to the awarding of counsel fees against state gov
ernments.” Id. at 215 n.14.18 Similar views were ex
pressed during debate in the House. Representative
Drinan, a floor manager of the bill, said that “any ques
tion arising under the 11th amendment is resolved in
favor of awarding fees against State defendants.” Leg.
H ist . 255. His relevant remarks in full are (id. ) :
18 Referring to both the Senate Report (see note 17, supra) and
the House Report, California and Pennsylvania make an elaborate
argument to the effect that Congress misconstrued this Court’s deci
sions in Edelman and Fitzpatrick. Calif. Br. 10-13; Penn. Br. 5-9.
Although they are wrong, the point we are making here is not that
Congress was correct in its understanding of Eleventh Amendment
law, but rather that Congress intended to do all that was neces
sary to supersede any sovereign immunity that the states might
otherwise enjoy.
16
The question has been raised whether allowing fees
against State governments in suits properly brought
under the covered statutes would violate the 11th
amendment. That amendment limits the power of
the Federal courts to entertain actions against a
State. This issue is no longer seriously in dispute
after the recent Supreme Court decision in Fitz
patrick against Bitzer. Since this bill is enacted pur
suant to the power of Congress under section 2 of
the 13th amendment and section 5 of the 14th amend
ment, any question arising unde rthe 11th amend
ment is resolved in favor of awarding fees against
State defendants.
Congress plainly intended to overcome any sovereign-
immunity defense that might be deemed applicable to fee
awards.
B. In Order Validly to Override the Sovereign Im
munity of the States Congress Is Not Limited to
Express Statutory Language, So Long as the Intent
Is Clear.
Notwithstanding the clarity of the legislative will, pe
titioners and their supporting amici claim that Congress
committed several critical technical mistakes. One of
these alleged technical flaws is the failure of the Fees
Act to strip the states of their immunity in haec verba.
Their argument, in effect, is that Congress should have
added these or similar words to the language of the Act:
“any claim of state sovereignty or Eleventh Amendment
immunity to the contrary notwithstanding.”
Strange as the argument is the supporting citation to
Employees of the Dept, of Pub. Health & Welfare v.
Department of Pub. Health & Welfare, 411 U.S. 279
(1973). Mississippi’s argument on this point is typical.
Citing Employees,19 the state’s brief says (p. 6) :
19 In addition to Employees, petitioners and amici cite a single
district court opinion in further support of the proposition in ques
tion: Skehan v. Board of Trustees of Bloomsburg State College,
17
This Court has stated with clarity that courts can
look only to the plain, unambiguous and explicit lan
guage embodied in a statute enacted by Congress in
determining whether Congress has authorized a State
to be sued in a particular case.
The holding in Employees simply will not bear this in
terpretation. In fact, Employees demonstrates that the
congressional intent necessary to overcome the sovereign-
immunity defense may be derived from legislative history
and other indicia of intent, as well as from the statutory
language.
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
285) (emphasis added) :
But we have found not a word in the history of
the 1966 amendments to indicate a purpose of Con
gress to make it possible for a citizen of that State
or another State to sue the State in the federal courts.
. . . It would also be surprising in the present case
to infer that Congress deprived Missouri of her con
stitutional immunity without changing the old I 16
(b) under which she could not be sued or indicating
in some way by clear language that the constitutional
immunity was swept away.
The italicized portions of the above-quoted language show
that the Court did not restrict Congress’ legislative
prerogatives in the way that petitioners and amici con
tend.
In any event, the Fees Act contains the express statu
tory override that petitioners and amici argue is needed.
It explicitly authorizes fees in § 1983 litigation against
a background of reported decisions of this Court and the
436 F. Supp. 657 (M.D. Pa. 1977) (alternative holding). This deci
sion relies solely on Employees, and it is not persuasive for reasons
discussed in text.
18
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 order state
officials in their official capacities to provide relief cost
ing the states millions of dollars, see, e.g., Milliken v.
Bradley (Milliken II), supra, Congress cannot, by simple
statutory authorization, empower these same courts to
award attorneys’ fees in such eases. Rather, to accomplish
that result Congress must amend § 1983’s grant of
federal-court jurisdiction20 and explicitly sanction suits
against the states as states. The proposition that states
qua states are not suable under § 1983 relies on dictum
20 Section 1983’s “person” limitation is held to be one of subject-
matter jurisdiction. City of Kenosha V. Bruno, 412 U.S. 507
(1973) ; see also Aldinger v. Howard, 427 U.S. 1, 16-17 (1976);
cf. Mt. Healthy City School Dist. Bd. of Educ. V. Doyle, 429 U.S. 274,
278-79 (1977) (dictum).
19
In Fitzpatrick v. Bitzer, supra, 427 U.S. at 452. But
cf. Sosnav. Iowa, 419 U.S. 393 (1975).21
The fundamental error in the states’ argument is its
treatment of the availability of 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
on the Social Security Act.22 In Edelman the Court held
that the district court properly entertained the suit under
the doctrine of Ex parte Young, but that the Eleventh
Amendment “constitute^] a bar to that portion of the
District Court decree which ordered retroactive payment
of benefits found to have been wrongfully withheld.” 415
U.S. at 678. The evident reason for this conclusion is
that the Court could find no specific congressional au
thorization for the retroactive monetary relief which the
district court had ordered. The Court noted that “the
Social Security Act itself does not create a private cause
of action,” id. at 674, although the Court also acknowl
edged that “suits in federal court under § 1983 are
proper to secure compliance with the provisions of the
Social Security Act on the part of participating States.”
21 In the next Argument we show that there is no basis in § 1983’s
legislative history or in this Court’s decisions for conferring upon
states and state agencies the exclusion from § 1983’s coverage which
the Court has found available to municipalities; nor, in view of
§ 1983’s co-extensive relationship with the Fourteenth Amendment,
is there any valid basis for a “prospective relief” limitation on the
remedy available in § 1983/Fourteenth Amendment suits against
official-capacity state defendants. Here we simply show that there is
no need in this case to reach that broader issue.
22 This case, in contrast, is based on the Fourteenth Amendment.
As we point out in the next Argument (see pp. 51-53, infra), that
distinction is critical, for a result different from Edelman obtains
when the § 1983 case involves a claim under one of the Civil War
Amendments which “supersedes contrary exertions of state power.”
South Carolina v. Katzenbach, 383 U.S. 301, 325 (1966). See also
Fitzpatrick v. Bitzer, supra.
20
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 Eleventh Amendment
bar had not been overcome because there was no specific
congressional remedial authorization for relief beyond
that sanctioned by Ex parte Young (to which the
Eleventh Amendment is not applicable). In the instant
case, a similar analysis leads to a different result with
respect to the question of attorneys’ fees. Here, as in
Edelman, the injunctive relief ordered by the 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.
§ 1988,23 whose historical function has been to instruct
23 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
21
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 U.S.
693 (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, 704-05 & nn. 18 & 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 jurisdiction in civil and criminal matters conferred on
the district courts by the provisions of this chapter and Title 18,
for the protection of all persons in the United States in their
civil rights, and for their vindication, shall be exercised and
enforced in conformity with the laws of the United States, so
far as such laws are suitable to carry the same into effect; but
in all cases where they are not adapted to the object, or are
deficient in the provisions necessary to furnish suitable reme
dies and punish offenses against law, the common law, as modi
fied and changed by the constitution and statutes of the State
wherein the court having jurisdiction of such civil or criminal
cause is held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be extended
to and govern the said courts in the trial and disposition of
the cause, and, if it is of a criminal nature, in the infliction of
punishment on the party found guilty.
Section 1988 has been judicially construed as being “intended to
complement the various [civil rights] acts,” Moor v. County of
Alameda, supra, 411 U.S. at 702, by directing application of the
remedial rule that “better serves the policies expressed in [such
acts].” Sullivan v. Little Hunting Park, 396 U.S. 229, 240 (1969).
Prior to the Fees Act, however, it was held that § 1988, in the
absence of one of the historical equitable exceptions to the “Ameri
can rule” recognized in Alyeska, did not authorize an award of
attorneys’ fees to prevailing civil-rights litigants. Runyon V. Mc
Crary, 427 U.S. 160, 184-86 (1976).
22
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 Arkansas is an “absent indispensable party to this
action.” Miss. Br. 9-12. Mississippi relies upon decisions
of this Court which are not in point,24 and F ed. R. Civ. P.
19.
There is no possible merit to this “absent party” argu
ment, which contradicts the established rule that the
24 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.
23
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);25
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. & Q. 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
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.” This must be so, or, as we have
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
25 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.” Ex parte New York, 256 U.S. 490, 500 (1921). On
another occasion, Mississippi has argued that it could not be made
a party in a voting-rights case brought by the United States under
42 U.S.C. § 1971, because “the Fifteenth Amendment ‘is directed to
persons through whom a state may act and not to the sovereign
entity of the state itself.’ ” United States V. Mississippi, 380 U.S.
128, 138 (1965). The Court was unanimously unimpressed with
that position; Mississippi’s amicus argument in this case merits a
similar fate.
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
24'
25
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 I l l ’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 F ederalist Nos. 32 & 81, and
by Justice Iredell in his dissent in Chisholm v, Georgia, 2
Dali. 419 (1793)—not to withdraw federal judicial power
with respect to federal-question claims against the states.
That original understanding was correctly construed in
Cohem 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
powered by the Fourteenth Amendment, whose “substan-
five 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 decision is available in this case.
B. In § 1983/Fourteenth Amendment Suits, the States
Are Divested of Sovereign-Immunity Defenses.
1. 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.12'6 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. 13, 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.26 27 Sections 2 and 6 of the Act
26 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.
27 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,
26
27
regulation, custom, or usage of any State, shall subject, or
cause to be subjected, any person within the jurisdiction of
the United States to the deprivation of any rights, privileges,
or immunities secured by the Constitution of the United States,
shall, any such law, statute, ordinance, regulation, custom, or
usage of the State to the contrary notwithstanding, be liable to
the party injured in any action at law, suit in equity, or other
proper proceeding for redress; such proceeding to be prosecuted
in the several district or circuit courts of the United States,
with and subject to the same rights of appeal, review upon
error, and other remedies provided in like cases in such courts,
under the provisions of the act of the ninth of April, eighteen
hundred and sixty-six, entitled “An act to protect all persons in
the United States in their civil rights, and to furnish the means
of their vindication” ; and the other remedial laws of the United
States which are in their nature applicable in such cases.
In 1874 Congress separately codified the cause-of-action and juris
dictional parts of § 1, the former becoming Rev. Stat. § 1979 and
the latter being divided into twô sections : Rev. Stat. §563(12)
(district courts) and § 629(16) (circuit courts). The cause-of-
action part now appears as 42 U.S.C. § 1983 (although Title 42 of
the United States Code has not been enacted into positive law, the
language of § 1983 is identical to that appearing in the Revised
Statutes (§ 1979)) :
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, sub
jects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the depriva
tion of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.
The jurisdictional provisions is now 28 U.S.C. § 1343(3) :
The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person:
* * * *
(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the
United States or by any Act of Congress providing for equal
rights of citizens or of all persons within the jurisdiction of
the United States;.
The evolution process is informatively traced in Blue V. Craig, 505
F.2d 830 (4th Cir. 1974) (Russell, J.). The only significant change
in wording from the original 1871 Act appears in connection with
the addition in 1874 of the words “and laws,” so that § 1983 author-
2 8
contained comprehensive civil and criminal prohibitions
against civil rights conspiracies, §§ 3 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
debate.* 28
The 1871 Act was the first extensive legislation enacted
by Congress pursuant to § 5 of the Fourteenth Amend
ment, which had been adopted in 1868.29 Not surprisingly,
izes redress for “the deprivation of rights, privileges, or immunities
secured by the Constitution and laws . . . .” (Emphasis added).
See Hagans V. Lavine, 415 U.S. 528, 533 n.5 (1974) ; Isynch V.
Household Finance Corp., 405 U.S. 538, 543 n.7 (1972). Also, the
phrase “equal rights” as a limitation in § 1343(3) appeared for the
first time in the 1874 grant of circuit-court jurisdiction (Rev. Stat.
§ 629(16)), though not in the cause-of-action (§ 1979) and district-
court jurisdiction (§ 563(12)) authorizations. Of these language
changes, the Court has said: “Despite the different wording of the
substantive and jurisdictional provisions, when the § 1983 claim
alleges constitutional violations, § 1343(3) provides jurisdiction and
both sections are construed identically.” Id. at 544 n.7, citing
Douglas V. City of Jeannette, 319 U.S. 157, 161 (1943).
28 The Court has noted that § 1 of the Act was not the most hotly
contested feature of the bill. See Adickes V. S. H. Kress & Co., 398
U.S. 144, 164-65 (1970) ; Monroe V. Pape, 365 U.S. 167, 181
(1961). Section 1 hardly went unnoticed, however. While some of
the opponents of other sections of the bill did not oppose § 1 (see,
e.g., Globe 419 (Rep. Bright)), others did express strenuous opposi
tion to § l ’s transfer of jurisdiction over constitutional causes of
action from the state courts to the federal courts, as will be dis
cussed at greater length in text. See id. at app. 50 (Rep. Kerr), 337
(Rep. Whitthorne), 352, 353 (Rep. Beck), 361 (Rep. Swann), app.
86 (Rep, Storm), 395 (Rep. Rice), 416 (Rep. Biggs), app. 91-92
(Rep. Duke), app. 258 (Rep. Holman), app. 179-80 (Rep. Yoorhees),
app. 215 (Sen. Johnston), app. 241, 243 (Sen. Bayard), app. 216-17
(Sen. Thurman), 645 (Sen. Davis). [“Globe” refers to Cong.
Globe, 42d Cong., 1st Sess. (1871). The presence of “app.” indicates
that the page reference is to the “Appendix” to the Congressional
Globe for that session of Congress, rather than to the main part.]
29 Two civil rights acts—the Enforcement Act of May 31, 1870,
16 Stat. 140, and the Force Act of February 28, 1871, 16 Stat. 433—
29
much of the 1871 congressional debate echoed that of 1868,
when the Amendment itself had been debated by the First
Session of the Thirty-Ninth Congress prior to its submis
sion to the people. In support of the 1871 Act, Representa
tive Bingham (whom Justice Black has called “the Madi
son of the first section of the Fourteenth Amendment” 8,0)
reiterated the views he had expressed in 1866 (<?/. Cong .
Globe , 39th Cong., 1st Sess. 1088-90, 2542-43 (1866))
as he stated the convictions of the Republican majority
of the Reconstruction Congress ( Globe app. 85) : 30 31
intervened between adoption of the Fourteenth Amendment and
enactment of § 1983. Both of these intervening acts primarily were
to enforce the voting guarantees of the Fifteenth Amendment, al
though § 18 of the 1870 Act re-enacted (pursuant to the Fourteenth
Amendment) the 1866 Civil Rights Act, see Runyon V. McCrary,
427 XJ.S. 160, 168 n.8 (1976), in order to resolve all doubts about
the earlier Act’s validity under the Thirteenth Amendment. See
Hague v. C.I.O., 307 U.S. 496, 509-10 (1939).
30 Adamson V. California, 332 U.S. 46, 74 (1947) (dissenting
opinion). Bingham was a member of the Joint Committee on Re
construction which drafted the Fourteenth Amendment. Bingham
had drafted an earlier version, introduced in each House of Con
gress on February 13, 1866, which merely empowered Congress to
enact laws protecting civil rights (including “equal protection”).
This proposal contained no substantive guarantees. See CONG.
Globe, 39th Cong., 1st Sess. 1034 (1866). This initial proposal ran
into trouble, and the Joint Committee was forced to reconvene. At
this time Bingham drafted the language which ultimately became
the second sentence of § 1 of the Fourteenth Amendment. Approved
by the Joint Committee on April 28, this revised draft “marked a
real advance upon earlier proposals. This was no longer a mere
grant of power to Congress, but a self-executing positive provision
barring the states from restricting civil rights.” 1 B. Schwartz,
Statutory H istory of the United States; Civil Rights 215
(1970). “It converted the Fourteenth Amendment from a grant
authorizing Congress to protect civil rights to a self-operating pro
hibition which could be enforced by the courts though there had
been no congressional action in the matter.” Id. at 293.
31 See also, e.g., Globe 339 (Rep. Kelley), 428-29 (Rep. Beatty),
448 (Rep. Butler), 459 (Rep. Coburn), 487-88 (Rep. Lansing),
app. 202 (Rep. Snyder), app. 187 (Rep. Willard), 651 (Senator
Sumner).
30
The States never had the right, though they had
the power, to inflict wrongs upon free citizens by a
denial of the full protection of the laws; because all
State officials are by the Constitution required to be
bound by oath or affirmation to support the Constitu
tion. As I have already said, the States did deny to
citizens the equal protection of the laws, they did
deny the rights of citizens under the Constitution,
and except to the extent of the express limitations
upon the States, as I have shown, the citizens had
no remedy. They took property without compensa
tion, and he had no remedy. They restricted the free
dom of the press, and he had no remedy. They re
stricted the freedom of speech, and he had no rem
edy. They restricted the rights of conscience, and
he had no remedy. They bought and sold men who
had no remedy. Who dare say, now that the Consti
tution has been amended, that the nation cannot by
law provide against all such abuses and denials of
right as these in States and by States, or combina
tions of persons?
In opposition, Representative Arthur, with specific ref
erence to § 1 of the Act, decried on behalf of the Demo
crat minority that Congress was running roughshod over
the states (Globe 365) :32
32 See also, e.g., Globe 366 (Eep. A rth u r); 338 (Rep. W hitthome),
373 (Rep. Archer), app. 87 (Rep. Storm), 378 (Rep. Shober), app.
206-09 (Rep. Blair), 416 (Rep. Bigga), app. 89-90 (Rep. Duke),
454 (Rep. Cox), app. 260 (Rep. Holman), app. 148 (Rep. Lanison),
599-600 (Rep. Saulsbury), app. 241 (Rep. Bayard). The remarks
just referred to and others like them reveal that the Democrats,
although they were in a minority, were well-schooled in the art of
advocating the sovereignty of the states. As Justice Frankfurter
has noted, many of the men who comprised the Congress during
these days were notably competent lawyers. Romero v. International
Terminal Operating Co., 358 U.S. 354, 366-67 & n.22 (1959). It
therefore is of particular interest that the Democrats in 1871, de
spite their capable advocacy of the “rights” of the states, did not
place any reliance on the Eleventh Amendment. They researched
the decisions of this Court, they traced the sovereignty of the states
back to the Articles of Confederation, they quoted the Constitution’s
31
It overrides the reserved powers of the States. It
reaches out and draws within the despotic circle of
central power all the domestic, internal, and local
institutions and offices of the States, and then as
serts over them an arbitrary and paramount control
as of the rights, privileges, and immunities secured
and protected, in a peculiar sense, by the United
States in the citizens thereof. Having done this, hav
ing swallowed up the States and their institutions,
tribunals, and functions, it leaves them the shadow of
what they once were. They are nominally what they
should be as of sovereign right. And so long as they
remain servile, appliant, and subservient, the mailed
hand of central power is stayed. But if the Legisla
ture enacts a law, if the Governor enforces it, if the
judge upon the bench renders a judgment, if the
sheriff levy an execution, execute a writ, serve a sum
mons, or make an arrest, all acting under a solemn,
official oath, though as pure in duty as a saint and as
immaculate as a seraph, for a mere error of judg
ment, they are liable, and most certain, at the suit
of any knave, plain or colored, under the pretext of
the deprivation of his rights, privileges and immuni
ties as acitizen, par excellence, of the United States,
to be summarily stripped of official authority, drag
ged to the bar of a distant and unfriendly court,
and there placed in the pilory of vexatious, expensive,
and protracted litigation, and heavy damages and
amercements, destructive of health and exhaustive of
means, for the benefit of unscrupulous adventurers
or venal minions of power.
guarantee (Art. IV, § 4) to the states of a republican form of gov
ernment, they examined The F ederalist and the debates of the
Constitutional Convention, they repeatedly relied upon the Tenth
Amendment—yet we have found only one oblique reference (Globe
app. 160 (Rep. Galloday)) in the entire 1871 debates to the Eleventh
Amendment. This significant omission reinforces our view (subsec
tion IIA, supra) that the Eleventh Amendment was never intended
to apply to federal-question disputes.
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. F rankfurter & J . Landis,
T h e Business of t h e Suprem e Court 64 (1928):
Sensitiveness to “states’ rights”, fear of rivalry
with state courts and respect for state sentiment,
were swept aside by the great impulse of national
feeling born of the Civil War. Nationalism was tri
umphant; in national administration was sought its
vindication. The new exertions of federal power were
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
lar exercise took the form of a jurisdictional grant to
the federal courts, giving them authority to entertain
Fourteenth Amendment causes of action.33 “The very
purpose of § 1983 was to interpose the federal courts be
tween the States and the people, as guardian of the
people’s federal rights—to protect the people from un
constitutional action under color of state law, ‘whether
that action be executive, legislative, or judicial’ ” Mitchum
33 As mentioned previously (see note 28, supra., and pp. 34-35,
infra), the opponents of § 1 of the 1871 Act focused their complaints
on the jurisdictional transfer to the federal courts. For the same
reason, the Act received the support of other members of Congress
(see also pp. 46-48, infra) : “Hence this bill throws open the doors
of the United States courts to those whose rights under the Constitu
tion are denied or impaired.” Globe 376 (Rep. Lowe). “We believe
that we can trust our United States courts, and we propose to do so.”
Id. at 460 (Rep. Coburn). See also id. at 476 (Rep. Dawes). And
Senator Pool said (id. at 609) :
I yet hope it is possible to escape more violent means by a
prompt resort to the ordinary Federal tribunals of justice. Un
less that resort be promptly and efficiently taken there is no
hope of escaping for another year the application of the most
stringent and ruinous military measures.
33
v. Foster, 407 U.S. 225, 242 (1972), quoting Ex parte
Virginia, supra, 100 U.S. at 346. As the Court explained
in District of Columbia v. Carter, 409 U.S. 418, 427
(1973) :
To the Reconstruction Congress, the need for some
form of federal intervention was clear. It was
equally clear, however, that Congress had neither the
means nor the authority to exert any direct control,
on a day-to-day basis, over the actions of state of
ficials. The solution chosen was to involve the fed
eral judiciary.
“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 “ [wjith the grow
ing awareness that this reliance had been misplaced, 1341
. . . Congress recognized the need for original federal
court jurisdiction as a means to provide at least indirect
federal control over the unconstitutional actions of state
officials.” District of Columbia v. Carter, supra, 409 U.S.
at 428.
It is abundantly clear that one reason the legis
lation was passed was to afford a federal right in
federal courts because, by reason of prejudice, pas
sion, neglect, intolerance or otherwise, state laws
might not be enforced and the claims of citizens
to the enjoyment of rights, privileges, and immuni
ties guaranteed by the Fourteenth Amendment might
be denied by the state agencies.
34 As the Court documented in Mitchum V. Foster, 407 U.S. at
240-42, the state courts were deemed by the Congress of 1871 to have
defaulted in their obligations to enforce the Fourteenth Amend
ment. “Section 1983 was thus a product of a vast transformation
from the concepts of federalism that had prevailed in the late 18th
century when the anti-injunction statute [Act of March 2, 1973,
1 Stat. 335] was enacted.” Id, at 242.
3 4
Monroe v. Pape, 365 U.S. 167, 180 (1961); see also id.
at 193 (Harlan, J., concurring). 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.35 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
85 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 November 2, 1977), at pp. 5a-13a [hereinafter “Monell
Amici Br.”].
35
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 impolitic provision, that in effect
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 238—intended a federal court
to stop short of affording complete justice when it en
countered a defense of state sovereign immunity.
2. T h e la n g u a g e a n d l e g is la t iv e h is to r y 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
3 6
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.36 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 37
36 See Monell Amici Br. 17a-19a, rm. 47 & 51.
37 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
37
—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
Knoxville, 379 F.2d 321 (6th Cir.), cert, denied, 389 U.S. 975
(1967) ; Williford V. California, 352 F.2d 474 (9th Cir. 1965);
United States ex 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
highway department); Zuckerman V. Appellate Division, 421 F.2d
625 (2d Cir. 1970) (state courts) ; Coopersmith V. Supreme Court
of Colorado, 465 F.2d 993 (10th Cir. 1972) (same) ; Moity V.
Louisiana State Bar Ass’n, 414 F. Supp. 180 (E.D. La. 1976)
(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 (1st 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) (sam e); cf. Moity v. Louisiana 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-“person”
decisions were based on analysis of the legislative history of § 1983.
Rather, their uniform rationale is the superficial one that if the
“political subdivisions of a state, i.e., municipalities and counties . . .
were not ‘persons’ under § 1983, the state itself was obviously not
such a ‘person’ and therefore, the entities through which the state
functions should be excluded.” Adkins V. Duval County School
Board, 511 F.2d 690, 693 (5th Cir. 1975). Aside from the fact that
the logic of this analysis ultimately reduces § 1983 to a virtually
meaningless statute, we show below (pp. 48-53, infra) that, despite
their superficial appeal, these decisions are completely mistaken.
S8
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.” Ex 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.” Globe 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.
McHenry), 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):
39
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 equal protec
tion of the laws.” The language of the Constitution
is that the State shall not do it; and what is the
State? The State is a word used with several sig
nifications. It may sometimes be used, and fre
quently is used, in a geographical sense, to mean the
territory. At other times it is used to describe the
whole collective body of the people; but in its politi
cal significance it is used in the sense in which it is
here used, to signify the government of the State.
It is not simply some judge sitting in Alamance
county; he is not the State of North Carolina; much
less some constable or sheriff in Caswell county. The
State of North Carolina, in this sense, is that po
litical autonomy which makes the government, and
it is the denial by that government, and not by some
individual, although he is clothed with a commission,
that constitutes a denial by the State.
Would it be said to be a denial by the United
States of any right if some district judge in Kansas
or Florida should make a decision that really in
fringed the rights of an individual? Would it be
said that the Government was guilty of a denial of
right in that case, when that very man would, if
his motive was corrupt, be impeached before this
Senate and convicted and turned out of office by this
very Government?
When, therefore, it is said that no State shall
deny the equal protection of the laws, the natural
meaning of it is that no State shall make laws
which deny equal protection to all the people who are
residing in it, and that is the only safe meaning to
give it; because otherwise you would blot the States
out of existence by the broad construction that has
been contended for.
The proponents of the legislation flatly rejected this
view of the Fourteenth Amendment. Throughout the de
40
bates they focused on the conduct of state officials and
state institutions and other instrumentalities of state
government. “The laws must not only be equal on their
face,” said Representative (later President) Garfield,
“but they must be so administered that equal protection
under them shall not be denied to any class of citizens,
either by the courts or the executive officers of the State.”
Globe app. 153. Clearly it was with the administration
of state laws that they were most concerned. See also,
e.g., Globe 321 (Rep. Stoughton), 334-35 (Rep. Hoar),
375 (Rep. Lowe), 394 (Rep. Rainey), 426 (Rep. McKee),
429 (Rep. Beatty), 444-45 (Rep. Butler), 459 (Rep. Co
burn), 482 (Rep. Wilson of Indiana), 607-08 (Sen. Pool),
696-97 (Sen. Edmunds), app. 72 (Rep. Blair of Michi
gan), app. 80 (Rep. Perry), app. 147 (Rep. Shanks),
app. 152-53 (Rep. Garfield), app. 182 (Rep. Mercur),
app. 185-86 (Rep. Platt), app. 300 (Rep. Stevenson),
app. 309-10 (Rep. Maynard), app. 314-15 (Rep. Bur-
chard). Speaking specifically to the argument that the
Fourteenth Amendment is addressed only to state legis
lation, Representative Lowe said (Globe 375) :
I understand the argument to be that inasmuch as
the alleged lawless acts sought to be corrected by
the bill are not done in pursuance of any law or act
of the States, that as there is no State authority or
laws impeding the citizens in the enjoyment of their
rights, the section [§ 1 of the Fourteenth Amend
ment] quoted does not apply. It is said that the States
are not doing the objectionable acts. This argument
is more specious than real. Constitutions and laws
are made for practical operation and effect. They
have certain ends to accomplish, and must be under
stood as tending to accomplish the objects sought.
What practical security would this provision give if it
could do no more than to abrogate and nullify the
overt acts and legislation of a State? If a State has
no law upon its statute book obnoxious to objection
under the article referred to, but nevertheless permits
41
the rights of citizens to be systematically trampled
upon without color of law, of what avail is the Con
stitution to the citizen?
The argument leads to the deduction that while
the first section of the amendment prohibits all dep
rivation of rights by means of State laws, yet all
rights may be subverted and denied, without color of
law, and the Federal Government have no power to
interfere. All you have to do, therefore, under this
view, to drive every obnoxious man from a State, or
slay him with impunity, is to have the law all right
on the statute-book, but quietly permit rapine and
violence to take their way, without the hinderance of
local authorities. Such a position, Mr. Speaker, de
feats itself by its own absurdities. The rights and
privileges of citizens are not only not to be denied by
a State but they are not to be deprived of them.
And Representative Wilson of Indiana made similar com
ments {id. at 482) :
But it must be observed, and I think it is con
clusive against any such construction, that this lan
guage cannot fairly or reasonably be construed to
refer exclusively to denial by statutory enactment.
If such had been the meaning the language would
have been “no law shall be enacted,” or “no Legis
lature shall enact,” &e., indicating in explicit terms
that it was a statutory denial that was meant.
But the language is “no State shall deny.” What
is meant by the word “State?” Obviously the word
is used in its largest and most comprehensive sense.
It means the government of the State. What is a
State in its true sense? It is a government, not a
mere legislative body empowered to enact laws; it
is a trinity: the legislative, the judicial, and the
executive: these three are one, the State. It requires
the combination and cooperation of these three co
ordinate branches to make the State Government;
and when the word “State” is used in this article it
is in this triune sense, and its constitutional provi
4 2
sion means that this trinity shall not deny, &c. Now,
if the legislative branch enacts and the judicial and
executive fail or refuse to perform their respective
parts, does not the State “deny?” If the Legisla
ture provides penalties, and the judiciary refuses to
adjudge them or is unable to do so, has not the
State denied to the citizen who is the victim of the
violation of the legislative act the equal protection
of the laws?
In his speech closing debate in the Senate, Senator
Edmunds, manager of the bill, spoke at length on the
point in question (id. at 696) :
There is a direct prohibition to the State; it is a
direct prohibition against the making of a law; it
is a direct prohibition against the enforcing of a
law; and that perhaps brings me to the question
here as well as anywhere else, what is a State?
My honorable friend from Ohio [Mr. Thurman]
said yesterday, my friend from New Jersey [Mr.
Stockton] said the other day, and everybody says on
that side, that a State is the legislative department,
and that all the prohibitions and commonds of this
section [§ 1 of the Fourteenth Amendment] are ad
dressed to the law-making power of a State, and that
any omission of the Governor to give rights under his
department, any omission of the judiciary to grant
rights under their department, any violation by either
of these departments of a State government of any
right secured by this section, is not a violation by the
State, for that must be by the law-making power.
Now, apply it to this:
“No State shall make or enforce any law which
shall abridge the privileges or immunities of citi
zens of the United States.”
Not “abridge the privileges and immunities of
citizens of one State going to another,” as the old
language was, but “which shall abridge the privileges
43
and immunities of citizens of the United States,”
whether they are citizens of one State or another—
absolute and complete. But what is the State? Is it
the Legislature? It is as to making law, with the
aid of a Governor. As to enforcing a law, is the Leg
islature the State? How do Legislatures enforce
laws? I had been taught in my little reading and
experience in the profession of the law that the en
forcement of the law belonged to the judiciary and
the executive combined. I had never heard before
that it was a part of the legislative functions of a
government to enforce laws; and yet, if my friend
is right, although the very word “enforce” is used
in this prohibition, it is after all only a command
to the members of the Legislature that they shall not
enforce any such law; and therefore the executive
and the judicial departments of the State are not
prohibited from enforcing any law they please which
violates the privileges and immunities of citizens
of the United States.
Why, Mr. President, this is absurd; it flies in the
face of the very language, it flies in the face of every
thing we know of the nature and constitution of a
government, be it State or national.
A few minutes later, Senator Edmunds returned to the
question and made these additional comments {id. at
697) :
“No State is to deny,” say the gentlemen. That
means, they say, the State in its collective capacity.
What part of the State? My friend from Ohio says
the Legislature. Then the Legislature, reading it in
that way, shall not deny to any person within its
jurisdiction the equal protection of the laws. It had
said that before. The very second provision in this
section declares that no State shall make or enforce
any law which shall interfere with the privilege and
immunity of a citizen of the United States; and every
body agrees that that privilege and that immunity is
the very same thing that is mentioned in other lan
4 4
guage in the next clause—the privilege of life, the
privilege of liberty, the privilege of the acquirement
of property. So that, on the theory of my friend from
Ohio, a great constitutional amendment, carefully
prepared, discussed in both branches of Congress,
passed by two thirds of each House, ratified by three
fourths of the States, committed the awkward blun
der of stating over again, in obscure language, what
it had stated in its second provision only four lines
above in clear language: that it had said that no
State (which can only act through its Legislature)
shall make any law which shall do this thing, and
when it had, then, coming to the last clause, had
restated the same thing in vaguer language, that
they should not deny to any person the equal protec
tion of the law. That cannot be maintained. A Leg
islature acting directly does not afford to any person
the protection of the law; it makes the law under
which and through which, being executed by the func
tionaries appointed by the State for that purpose,
citizens receive the protection of the law.
But they say this is merely a prohibitory section,
a mere denial of the right of a State to interfere
with life, liberty, and property, and to prevent due
redress. What is a denial, Mr. President? Is it
merely a refusal in the sense of a man’s appealing to
the Legislature for a law and being told that he can
not have it; or what is it? It is a security to the
citizen that he shall have the protection of law. Al
though the word is negative in form, it is affirmative
in its nature and character. It grants an absolute
right, and let me tell my honorable friends who deny
it that it is not a chance word; it has been heard of
in the law before; it has a history connected with
human liberty ever since in Anglo-Saxon races human
liberty and human rights have existed. The very
word has come down from the earliest constitutions,
from the very earliest written constitution of civilized
liberty, to us as a word of art which carries in it an
45
obligation of a supreme and universal affirmation—a
character which makes it the duty of every court and
every government over every people which are en
titled to its protection to see that they have it.
Now let us see. Here is the ancient charter of
liberty which the bold barons, as you know, our Eng
lish ancestors, wrested from King John; the rich and
perpetual product, like our own amendments, of a
great struggle for liberty; and in it are contained,
in order to grant to the citizen this very protection,
and in order to secure to him the duty of all the
courts of all England to give it, as they have done,
these very words: “Nulli vendemus, nulli negabimus,
aut differemus rectum vel justitiam.”
“We will sell to no man, we will not deny or defer
to any man either right or justice.”
Under that, not by force of parliamentary legisla
tion, but as giving ever-affirmative rights, performing
an affirmative duty, the first slave that set his foot
on English soil was set free, because the courts could
not deny to him that justice which that charter said
should not be denied. And under it, as I have said,
in every civilized State, comprising all the States of
our nation, and comprising that great commonwealth,
or kingdom as I ought strictly to say, from which
we derived our law and our history for eight hundred
years, until now it is questioned for the first time,
it has been the recognized and bounden duty of all
courts, and of all executive officers intrusted with the
administration of justice and the law, to give that
which the citizen was entitled to, to execute justice
and afford protection against all forms of wrong and
oppression. Why, sir, it has blazed on the forehead
of constitutional liberty from that day to this. And
yet, now being adopted as the greatest security set
tled through the course of centuries as a protecting,
as an affirmative right in the citizen—those interests
of liberty and property and life to which he is en-
4 6
titled—now for the first time it is attempted to be
frittered away by the statement that it is a mere
negative declaration, a kind of admonitory prohibition
to a State, and that Congress is to invade the rights
of the States and the liberties of the people when,
these rights being denied, when criminals go unpun
ished by the score, by the hundred, and by thê thou
sand, when justice sits silent in her temple in the
States, or is driven from it altogether, it interposes
in 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 applied. Why, sir, if I were in
any other place I should say—
“0 Shame, where is thy blush?”
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
over Fourteenth Amendment cases into the federal courts.
The opponents of § 1983 argued that there was neither
need nor propriety for additional legislation, because the
Fourteenth Amendment could be enforced in the state
courts, as could the Contract Clause of the original Con
stitution, for example, with the federal remedy being al
47
ready provided in the form of § 25 of the Judiciary Act
of 1789, 1 Stat. 85, authorizing review by this Court of
state-court dispositions of federal constitutional ques
tions.38 While § 1983’s sponsors did not deny this point,
38 The remarks of Representative Storm, specifically objecting to
§ 1 of the Act (§ 1983), are exemplary (Globe app. 86) :
But I object to this clause because it subjects suitors to delay.
It does not even give the State courts a chance to try questions,
or to show whether they will try the questions that might come
before them under the first section of the fourteenth amend
ment, fairly or not. I t takes the whole question away from them
in the beginning.
Now these questions could all be tried, I take it, in the State
courts, and by a writ of error, as provided by the twenty-fifth
section of the act of 1789, could be brought before the Supreme
Court for review. That act, in its twenty-fifth section, provides
that whenever the State courts draw in question any statute or
authority of the United States, and the decision is against their
validity, or where is drawn in question the validity of a statute
or authority exercised under any State, on the ground of their
being repugnant to the Constitution or laws of the United
States, and the decision is in favor of their validity, the final
judgment or decree of said court may be reexamined, reversed,
or affirmed in the Supreme Court of the United States on a
writ of error. But the first section of this bill does not allow
that right. It takes the whole question away at once and for
ever; and I say that on the ground of delay it is objectionable.
It subjects suitors who are seeking the enforcement of their
rights to great additional expense. For, in many of these cases,
the places of the sitting of the circuit courts and of the district
courts are hundreds of miles from places where these cases
might arise.
Almost 100 years later, in South Carolina V. Katzenbach, 383 U.S.
301 (1966), involving the validity, under §2 (the Enforcement
Clause) of the Fifteenth Amendment, of the Voting Rights Act of
1965, South Carolina argued to this Court a point similar to that
pressed by Representative Storm in the quotation above. Relying
on the fact that § 1 of the Fifteenth Amendment “has always been
treated as self-executing and has repeatedly been construed, with
out further legislative specification, to invalidate state voting quali
fications or procedures which are discriminatory on their face or in
practice” (id. at 325), South Carolina argued that only “the judiciary
[is authorized] to strike down state statutes and procedures—that
to allow an exercise of this authority by Congress would be to rob
4 8
as far as it went (see, e.g., Globe 577-79 (dialogue of
Senators Carpenter, Trumbull, Thurman and Ed
munds) ) , 39 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 “Sherm an am endm ent” debates are essen
tia lly irrelevant.
To the extent that the lower courts have relied on the
“person” holding of Monroe v. Pape to circumscribe 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
§ 1 9 8 3—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
the courts of their rightful constitutional role.” Id. The Court re
jected the argument, 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.
39 The proponents agreed, for example, that the Contract Clause
could be enforced against the States by the federal 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 Wheat. 122 (1819).
49
of the States” which also applies to § 1983, Moor v.
County of Alameda, 411 U.S. 693, 708 (1973), or whether
that fate is seen (as we view it) as a result of other
concerns,40 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 choose to
impose upon them. Nothing in the Fourteenth Amend
ment, in their view, authorized Congress to impose polic
ing obligations upon cities, that being an exclusive prero
gative of the States unaffected by the Amendment. Since
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
40 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-31a) that the defeat of that amendment is 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
palities to liability for their own constitutional misconduct.
50
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.41
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 (G lobe 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.
" S e e Globe 791 (Rep. Willard),. 794 (Rep. Poland), 795 (Rep.
Blair of Michigan), 795 (Rep. Burehard), 798 (Rep. Bingham), 798-
99 (Rep. Farnsworth). See generally Monell Amici Br, 17a-31a.
51
5. The § 1983 status of states and their subordinate
units is, at the very least, an open question in this
Court.
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
intended to include States as parties defendant.
We submit that this language is not dispositive of the
question, first, because it is obiter dictum, and second,
because, to the extent that it relies on the “person” in
terpretation of Monroe v. Pape, it is erroneous, as we
have shown above. We seek here only to demonstrate
that the question is an open one in this Court. If it is,
then it should be answered in accordance with the analysis
set forth in the preceding part of this Argument.
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.42) Despite the sugges
tion in Fitzpatrick that Edelman’s § 1983 holding relied
upon Monroe v. Pape, we are unable to understand Edel-
42 Section 1983 has formed the jurisdictional predicate for many
of this Court’s landmark Fourteenth Amendment rulings in federal-
court suits against states, state instrumentalities, and state officials.
See, e.g., McLaurin v. Oklahoma State Regents for Higher Educ.,
339 U.S. 637 (1950); Baker v. Carr, 369 U.S. 186 (1962); Reynolds
V. Sims, 377 U.S. 533 (1964) ; Boddie V. Connecticut, 401 U.S. 371
(1971).
52
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.43
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 “ [s]ince jurisdiction was predicated on
28 U.S.C. § 1343(3), this case presents no problem of
43 The Fitzpatrick 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
the basis of the decision in Edelman truly was a determination that
the suit against the official-capacity state official was in fact a suit
against the state which “could not have been intended” by § 1983
to be a suable party, then the Court was without jurisdiction to
render its decision on the Eleventh Amendment issue and should
have vacated and remanded as in City of Kenosha v. Bruno, supra.
53
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 substantive 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.
54
CONCLUSION
The judgment below should be affirmed.
Respectfully submitted,
Charles A. Bane
Thomas D. Barr
Co-Chairmen
Armand Derfner
P aul R. Dimond
Norman Redlich
Trustees
Robert A. Murphy
Norman J. Chachkin
Richard S. Kohn
David M. Lipman
William E. Caldwell
Staff Attorneys
Lawyers’ Committee for
Civil Rights Under Law
733 - 15th Street, N.W.
Suite 520
Washington, D.C. 20005
(202) 628-6700
Attorneys for Amicus Curiae