Hutto v. Finney/Concurrence-dissent Powell

by Lewis Franklin Powell, Jr.

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.

While I join Parts I^[1] and II-A of the Court's opinion, I cannot subscribe to Part II-B's reading of the Eleventh Amendment as permitting counsel-fee awards against the State on the authority of a statute that concededly does not effect "an express statutory waiver of the States' immunity." Ante, at 698.

Edelman v. Jordan, 415 U.S. 651, 676–677 (1974), rejected the argument that 42 U.S.C. § 1983 "was intended to create a waiver of the State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself." In a § 1983 [p705] action "a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, . . . and may not include a retroactive award which requires the payment of funds from the state treasury." 415 U.S., at 677 (citations omitted). There is no indication in the language of the Civil Rights Attorney's Fees Awards Act of 1976 (Act), Pub. L. No. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), that Congress sought to overrule that holding.^[2] In this case, as in Edelman, "the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent." 415 U.S., at 672 (emphasis supplied). Absent such authorization, grounded in statutory language sufficiently clear to alert every voting Member of Congress of the constitutional implications of particular legislation, we undermine the values of federalism served by the Eleventh Amendment by inferring from congressional silence an intent to "place new or even enormous fiscal burdens on the States." Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 284 (1973).

The Court notes that the Committee Reports and the defeat of two proposed amendments indicate a purpose to authorize counsel-fee awards against the States. Ante, at 694. That evidence might provide persuasive support for a finding of "waiver" if this case involved "a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included [p706] States or state instrumentalities." Edelman, supra, at 672. Compare Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976), with Employees, supra, at 283, 284–285.^[3] But in this sensitive area of conflicting interests of constitutional dimension, we should not permit items of legislative history to substitute for explicit statutory language. The Court should be "hesitant to presume general congressional awareness," SEC v. Sloan, 436 U.S. 103, 121 (1978), of Eleventh Amendment consequences of a statute that does not make express provision for monetary recovery against the States.^[4]

[p707] The Court maintains that the Act presents a special case because (i) it imposes attorney's fees as an element of costs that traditionally have been awarded without regard to the States' constitutional immunity from monetary liability, and (ii) Congress acted pursuant to its enforcement power under § 5 of the Fourteenth Amendment, as contrasted with its power under more general grants such as the Commerce Clause. I find neither ground a persuasive justification for dilution of the "clear statement" rule.

Notwithstanding the limitations of the Court's first ground of justification, see ante, at 697 n. 27, I am unwilling to ignore otherwise applicable principles simply because the statute in question imposes substantial monetary liability as an element of "costs." Counsel fees traditionally have not been part of the routine litigation expenses assessed against parties in American courts. Cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Arcambel v. Wiseman, 3 Dall. 306 (1796). Quite unlike those routine expenses, an award of counsel fees may involve substantial sums and is not a charge intimately related to the mechanics of the litigation. I therefore cannot accept the Court's assumption that counsel-fee awards are part of "the ordinary discipline of the courtroom." Ante, at 696 n. 24.^[5]

[p708] Moreover, counsel-fee awards cannot be viewed as having the kind of "ancillary effect on the state treasury," Edelman, 415 U.S., at 668, that avoids the need for an explicit waiver of Eleventh Amendment protections. As with damages and restitutory relief, an award of counsel fees could impose a substantial burden on the State to make unbudgeted disbursements to satisfy an obligation stemming from past (as opposed to post-litigation) activities. It stretches the rationale of Edelman beyond recognition to characterize such awards as "the necessary result of compliance with decrees which by their terms [are] prospective in nature." Ibid. In the case of a purely prospective decree, budgeting can take account of the expenditures entailed in compliance, and the State retains some flexibility in implementing the decree, which may reduce the impact on the state fisc. In some situations fiscal considerations may induce the State to curtail the activity triggering the constitutional obligation. Here, in contrast, the State must satisfy a potentially substantial liability without the measure of flexibility that would be available with respect to prospective relief.

The Court's second ground for application of a diluted "clear statement" rule stems from language in Fitzpatrick recognizing that "[w]hen Congress acts pursuant to 5" of the Fourteenth Amendment, "it is exercising [legislative] authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority," 427 U.S., at 456. I do not view this language as overruling, by implication, Edelman's holding that no waiver is present in § 1983^[6]—the quintessential Fourteenth Amendment [p709] measure—or disturbing the vitality of the "threshold [requirement] of congressional authorization to sue a class of defendants which literally includes States," 415 U.S., at 672.^[7]

[p710] Because explicit authorization "to join a State as defendant," Fitzpatrick, 427 U.S., at 452, is absent here, and because every part of the Act can be given meaning without ascribing to Congress an intention to override the Eleventh Amendment immunity,^[8] I dissent from Part II-B of the Court's opinion.

 

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* ↑  MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST join this opinion to the extent it dissents from the opinion and judgment of the Court.

1. The principles emphasized by MR. JUSTICE REHNQUIST, post, at 711, as to the limitation of equitable remedies are settled. See Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 433 U.S. 267 (1977). On the extraordinary facts of this case, however, I agree with the Court that the 30-day limitation on punitive isolation was within the bounds of the District Court's discretion in fashioning appropriate relief. It also is evident from the Court's opinion, see ante, at 688, that this limitation will have only a minimal effect on prison administration, an area of responsibility primarily reserved to the States.
    
2. In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), the Court held that "the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom 1983 applies." Id., at 690. We noted, however, that there was no "basis for concluding that the Eleventh Amendment is a bar to municipal liability," and that our holding was "limited to local government units which are not considered part of the State for Eleventh Amendment purposes." Id., at 690, and n. 54 (emphasis in original).
    
3. Although Fitzpatrick states that the "prerequisite" of "congressional authorization . . . to sue the State as employer" was found "wanting in Employees," 427 U.S., at 452, this reference is to the Court's conclusion in Employees that notwithstanding the literal inclusion of the States as statutory employers, in certain contexts, there was "not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U.S., at 285. See Edelman, 415 U.S., at 672.
    
   While it has been suggested that "[t]he legislative changes that made state governments liable under Title VII closely paralleled the changes that made state governments liable under the Fair Labor Standards Act," Baker, Federalism and the Eleventh Amendment, 48 U. Colo. L. Rev. 139, 171 n. 152 (1977), comparing Fitzpatrick, 427 U.S., at 449 n. 2, with Employees, 411 U.S., at 282–283, the statute considered in Fitzpatrick made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. Equal Opportunity Employment Act of 1972, 86 Stat. 104, 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. V); see H. R. Rep. No. 92-238, pp. 17–19 (1971); S. Rep. No. 92-415, pp. 9–11 (1971); S. Conf. Rep. No. 92-681, pp. 17–18 (1972); H. R. Conf. Rep. No. 92-899, pp. 17–18 (1972).
    
4. "By making a law unenforceable against the states unless a contrary intent were apparent in the language of the statute, the clear statement rule . . . ensure[s] that attempts to limit state power [are] unmistakable, thereby structuring the legislative process to allow the centrifugal forces in Congress the greatest opportunity to protect the states' interests." Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: [p707] Separation of Powers Issues in controversies About Federalism, 89 Harv. L. Rev. 682, 695 (1976) (emphasis supplied).
    
5. The Court places undue reliance on Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 (1927), in support of its holding. That decision holds that no common-law bar of sovereign immunity prevents the imposition of costs against the State "when [it is] a party to litigation in this Court . . . ." Id., at 74. In addition to the fact that the State was a party in the litigation, and that there is no discussion of counsel fees, Fairmont Creamery "did not mention the eleventh amendment. Furthermore, the Court had held long before that when an individual appeals a case initiated by a state to the Supreme Court, that appeal does not fall within the eleventh amendment's prohibition of suit 'commenced or prosecuted against' the states." Note, Attorneys' Fees and the Eleventh Amendment, 88 Harv. L. Rev. 1875, 1890 (1975).
    
6. MR. JUSTICE BRENNAN'S concurring opinion asserts that the Court's holding in Edelman has been undermined, sub silentio, by Fitzpatrick and the re-examination of the legislative history of § 1983 undertaken in Monell. The language in question from Fitzpatrick was not essential to the Court's holding in that case. Moreover, this position ignores the fact that Edelman rests squarely on the Eleventh Amendment immunity, without [p709] adverting in terms to the treatment of the legislative history in Monroe v. Pape, 365 U.S. 167 (1961). And there is nothing in Monroe itself that supports the proposition that § 1983 was "thought to include only natural persons among those who could be party defendants . . . ." Ante, at 701. The Monroe Court held that because the 1871 Congress entertained doubts as to its "power . . . to impose civil liability on municipalities," the Court could not "believe that the word 'person' was used in this particular Act to include them." 365 U.S., at 190, 191. As the decision in Monell itself illustrates, see n. 2, supra, the statutory issue of municipal liability is quite independent of the question of the State's constitutional immunity.
    
   MR. JUSTICE BRENNAN'S opinion appears to dispense with the "clear statement" requirement altogether, a position that the Court does not embrace today. It relies on the reference to "bodies politic" in the "Dictionary Act," Act of Feb. 25, 1871, 16 Stat. 431, as adequate to override the States' constitutional immunity, even though there is no evidence of a congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment. But the Court's rulings in Edelman and Employees are rendered obsolete if provisions like the "Dictionary Act" are all that is necessary to expose the States to monetary liability. After a century of § 1983 jurisprudence, in which States were not thought to be liable in damages, Edelman made clear that the 1871 measure does not override the Eleventh Amendment. I would give force to our prior Eleventh Amendment decisions by requiring explicit legislation on the point.
    
7. The Court suggests that the "dissenting Brethren would apparently force [the individual] officers to bear the award alone." Ante, at 699 n. 32. It is not clear to me that this issue, not fairly embraced within the questions presented, is before us. Moreover, there is no suggestion in the opinion below that the Court of Appeals intended that its award of fees for "services on this appeal" would be paid by the individual petitioners, in the event the Eleventh Amendment were found to bar an award against the Department of Correction. See 548 F.2d 740, 742–743 (1977). But even if the question properly were before this Court, there is nothing in the Act that requires the routine imposition of counsel-fee liability on anyone. As we noted in Monell, the Act "allows prevailing parties (in the discretion of the court) in 1983 suits to obtain attorney's fees from the losing parties . . . ." 436 U.S., at 698–699 (emphasis supplied). Congress deliberately rejected a mandatory statute, in favor of "a more moderate [p710] approach [which left] the matter to the discretion of the judge, guided of course by the case law interpreting similar attorney's fee provisions." H. R. Rep. No. 94-1558, p. 8 (1976). Whether or not the standard of cases like Wood v. Strickland, 420 U.S. 308 (1975), was rejected with respect to counsel-fee liability, see H. R. Rep. No. 94-1558, supra, at 9, and n. 17, neither the Act nor its legislative history prevents a court from taking into account the personal culpability of the individual officer where an award against the government entity would be barred by the Eleventh Amendment.
    
8. I do not understand the Court's observation that "[i]f the Act does not impose liability for attorney's fees on the States, it has no meaning with respect to them." Ante, at 698 n. 31. Significantly, the Court does not say that any part of the Act would be rendered meaningless without finding an Eleventh Amendment waiver. Cf. Employees, 411 U.S., at 285–286.