Edward R. Jagnandan v. William L. Giles, President, Mississippi State University

RONEY, and GOLDBERG Circuit Judges. RONEY, Judge: Circuit Plaintiff Reverend W. L. Jagnandan, on sons, himself and his brought behalf of two challenge a class action to the constitution- ality Mississippi of a statute which classi- students, all alien even Mississippi fied resi- they Point, and fee for tuition have lived West dents, nonresidents Mississippi, as higher institutions of Jagnandan where Reverend is a purposes minister of court de- three-judge district A Reverend learning. Jagnandan a local church. pays request, declared action income Mississippi the class taxes and nied owns an auto- being in contra- as registered unconstitutional in Mississippi. mobile statute All three and due protection equal Mississippi hold plaintiffs vention driver’s licenses. Fourteenth Amend- clauses process Each testified without reservation quali- injunctive relief. The ment, granted present that he had no fication intention of refused, plaintiffs to award state, leaving purpose his being to re- $3,495.00in tuition for the reimbursement indefinitely Mississippi. side in excess of the they paid had fees sons, Jagnandan The two Edward R. students, resident required of amounts Jagnandan, Leonard Susil enrolled as full by the such relief is barred holding that time students at State Universi- Amendment, interpreted by ty in the fall of 1970. Reverend Jagnandan in Edelman v. Court Supreme enrolled at the University himself in the 39 L.Ed.2d 662 1972as a candidate spring of for a master’s Giles, F.Supp. Jagnandan v. (1974). The three were degree. required pay to (N.D.Miss.1974). appeal Plaintiffs pursuant tuition and fees nonresident to a tui- reimbursement for the excess of denial Mississippi classifying statute all aliens as paid pursuant to and fees the unconsti- tion tuition for and fee purposes nonresidents at appeal Plaintiffs do not statute. tutional higher of institutions learning.2 request, action nor of their class the denial September contemporaneous appeal grant from the of the defendants do matriculations at his sons’ Mississippi with injunctive relief as to declaratory and State, Jagnandan sought Reverend to es- unconstitutionality. statute’s University family’s with officials his tablish presents important questions appeal This state residents eligibility as for tuition and scope jurisdiction of our involving (1) the purposes. Plaintiffs fully fee exhausted three-judge district of review decisions opportunity their for administrative relief scope of the Eleventh courts, (2) the and and, being notified upon they were reim- prohibition Amendment’s rates, ineligible for resident tuition institut- overpayments collected under of bursement federal action. ed this to the first statute. As unconstitutional jur- that we have we conclude do question, JURISDICTION merits, appeal. hear the On the isdiction the Eleventh Amendment bars hold that we Congress provided has that suits excess tui- court to recover in federal suits injunctive relief seeking the en to an unconstitutional pursuant paid tion state statutes forcement of state officers three-judge district statute, and affirm the heard and determined in the must be first court. specifically constituted instance dis judges, of three at Re- trict court least one of were citizens of the Jagnandans judge. must be a circuit (formerly British Guiana whom U.S.C.A. Guyana public Appeals directly lie to the America) lawfully Supreme admitted into § in South three-judge permanent with resi- Court from orders courts country as aliens denying, ... September “granting or an inter- classifications.1 Since dent (1972), formerly argument plaintiffs in- Ann. 37-103-23 § counsel for 2. Miss.Code 1. At oral filing 6800-11(11) subsequent designated to the § as Miss.Code formed the Court times, general Jagnandans pertinent appeal natu- fees have been At all and of this separately charges It is interest- States citizens. tuition established for ralized as United students, guest speaker higher ing at the natu- resident and nonresident to note that the Giles, semester) per being required ceremony ($300 Dr. William L. more was rate ralization University, one nonresidents. President of in this case. of the defendants three-judge order of a . court injunction dismissing a permanent or locutory complaint for have lack of appeals standing vested 1253.3 Courts § U.S.C.A. appeals. Although courts of those in the excepting all appeals over jurisdiction question explored the Court of whether an in the be had review where direct three-judge of a court “denies” an order 1291 and 28 U.S.C.A. Supreme §§ Court. of 28 injunction, purposes U.S.C.A. 1292(a)(1). is no where there adverse resolution § statutory simple Although this scheme is presented, constitutional claims describe, enough proved it has far reserved determination issue and simple “given operation has on a ground. its decision different rested bewildering area of problems rise to in the based, decision was partially, least Moore, J. appellate review.” Federal reasoning three-judge that a court on the (2d 1975). U110.03[3], at 70 Practice ed. required should not be convened Wright observed ap- Professor that the jurisdiction when the district lacked relating to pellate three-judge rules courts complaint when the claim is not complex be virtually beyond “are so as to justifiably in the federal court. U.S. at Wright, C. Handbook belief.” of the Law 100, citing parte 95 S.Ct. 289 Ex Poresky, (2d 1970). Courts at 193 of Federal ed. 30, 31, L.Ed. 152 recognized Court itself has single The Court noted that if a “[tjhese procedural very statutes are had in judge fact issued the order of dis drafted, awkwardly in struggling for lack standing, appeal missal no direct them, make workable sense the Court have been infrequently been has not induced re- Thus, allowed.4 it was “mere convenience steps.” trace its Gonzalez v. Automatic happenstance” or three-judge a court Union, 90, 95, Credit 419 Employees U.S. 95 issue, standing had ruled on the and to 289, 293, (foot- 42 (1974) L.Ed.2d 249 S.Ct. a avoid direct appeal, fortuitous the Court omitted). This Court also com- question raise the of whether proaches paid pursuant tuition and fees past Gonzalez, MTM, or sub- supplements Inc. appealed unconstitutional statute would be it. sumes to this Court. undoubtedly two decisions will These appeal The absence of an from the cases to make more certain serve in most injunctive hypotheti relief eliminates that appeal forum in which an of an proper the surfacing reading cal from here. Our of three-judge court tak- of a should be order MTM, Inc. both Gonzalez leads us to case, however, particular are en. In this we believe that in this case the proper forum jurisdiction of the unsure as to whether Court, is in this appeal regardless or in appeal Supreme lies in this Court jurisdiction appellate where lie in a standard it Under Gonzalez Court. grant or denial injunctive case where the properly juris- we have appear appealed. By also been holding relief has case, the appealed since order diction jurisdiction that we have to hear ap reimbursement does not involve a denying supporting “the peal, we are historic con injunctive relief and thus is not question policy minimizing gressional manda by made a three-judge which had to be one tory Supreme docket [the argued, that the It can be court. judicial the interest of sound ad- in Court] integral- MTM, was so of reimbursement question Baxley, supra, ministration.” Inc. v. question of constitutionali- at 95 at 1281.5 Further- ly related to the 420 U.S. S.Ct. Employees Union, Accord, v. Gonzalez Automatic Credit 42 249 L.Ed.2d 1172 giving

more, hearing appeal this we are by protect cannot be used to Fourteenth opinion prop- our on the violations. Answering Amendment these case, of the merits of the er determination seriatim points negative, we affirm available would not be to views which court’s denial the district of tuition refunds. were available. only appeal a direct Court if During the ratification process of the Cred- Employees v. Automatic See Gonzalez Constitution, subsequent United States Union, supra, 419 U.S. S.Ct. thereto, sovereign states this fledg upon recent short, based In nation ling pros were concerned with the MTM, Inc., in Gonzalez Court decisions pect federal authority constitutional judicial interest of sound admin- and in the might construed allow suits istration, jurisdiction we hold that over this states in federal courts when brought this appeal properly lies in Court.6 by citizen of another or a foreign country.8 These fears were soon realized in ELEVENTH AMENDMENT Georgia, (2 Dall.) 419, Chisholm v. requiring statute resident L.Ed. Chisholm held that under residing Mississippi pay aliens out-of- language of the Constitution and of the was ruled state tuition unconstitutional Judiciary Act of 1789 state could be sued Jagnandan district court. three-judge citizen by a of another state or foreign Giles, F.Supp. (N.D.Miss.1974). country. Reaction swift and immedi holding. was taken from that appeal No years later, ate. Barely five held, however, that the Eleventh The court Amendment Eleventh was ratified by the plaintiffs’ recovery bars of ex- since ratification, states.9 Unaltered payments tuition made under the un- cess provides simply: amendment In statute. reim- denying constitutional judicial power of the United States the court relied on Edelman v. bursement shall not be construed to extend to any supra, equity, suit law or commenced pros- or (1974), and on Edelman’s L.Ed.2d ecuted one of the United States Motor precursor, Department Ford Co. State, Citizens of another or Citi- 459, 65 Treasury, 323 U.S. Subjects of any Foreign zens State. (1945).7 This denial L.Ed. 389 of relief is Amend. XI. U.S.Const. challenged appeal. judicial amendment has been presenting their case for reversal ly jurisdiction to bar construed over plaintiffs arguments: (1) assert five de- brought against suits a state its own personally liable for fendants are the excess citizens, despite the absence language (2) tuition payments; State of Missis- that effect.10 It also has sippi party suit for been construed (3) encompass a purposes; brought suit aby foreign Amendment bar, however, immunity; (4) waived Edelman v. Jor- state.11 This pre does not preclude type dan does of relief a suit against not clude state brought when (5) sought; here and the Eleventh Amend- Thus, the United speak- States.12 when Jacobs, Dexter,- U.S. -, 9. See C. v. The Eleventh Cf. Butler Amendment and 6. 96 S.Ct. Sovereign Immunity, (1972). 1527, (per curiam). (1976) 64-75 47 L.Ed.2d 774 Employees Department v. of Pub. Health & 10. generally Note, : 7. See Edelman v. Jordan The Mo., 279, 280, Welfare 411 U.S. 93 S.Ct. Vanishing Case of and Retroactive Benefit 1614, (1973); Parden v. Termi- 36 L.Ed.2d 251 Reappearing Sovereign Defense of Immuni- Ry„ 184, 186, 1207, nal 377 U.S. 84 S.Ct. 12 ty, (1975). 12 891 Hous.L.Rev. Louisiana, supra, (1964); Hans v. L.Ed.2d 233 14-15, 134 U.S. at 10 S.Ct. 504. Principality Mississippi, 8. See of Monaco v. 292 313, 321-325, 745, U.S. 54 S.Ct. 78 L.Ed. 1282 Principality Mississippi, supra, of Monaco v. 11. Louisiana, 12-15, (1934); 1, v. Hans 330-332, 134 U.S. U.S. at 54 292 S.Ct. 745. 504, (1890). 10 S.Ct. 33 L.Ed. 842 Mississippi, 128, 12. United States v. 380 U.S.

1173 University. at the Amendment, court, the Court district on its Eleventh ing motion, joined own the Board jurisdiction Trustees terms talks in really a defendant. 379 at party F.Supp. 1180. entertain suits and courts 19(a). We agree See Fed.R.Civ.P. cannot state.13 relief grant contention, with plaintiffs’ because on our Liability reading of the case law we Personal are convinced that, effectively, the state is the true de- we that the de outset hold At the fendant to suit. person not University officials are fendant payments excess tuition ally liable for By language its own the Eleventh Thus, plaintiffs if by plaintiffs. tendered Amendment indicates that a state must be recover, must come from payment are the bar to suit in sued before federal court capacity. official their defendants in applies. or, The state must be a real at least, a nominal defendant.16 It is not nec nothing in record indicate There essary the state to be actually named unreasonably in a acted that defendants that, effect, is enough the suit. It capacity.14 of their official outside manner against the and any recovery suit is state merely complying with were Defendants will come from the state.17 collecting out-of- mandate clear state aliens. these resident tuition determination, To make this of the stat- not notice were Defendants Court must decide whether the suit is for payment unconstitutionality prior to ute’s purposes against practical all the state.18 They money. acceptance of v. Jr. College, Hander San Jacinto 519 good faith.15 complete acting Cir.), denied, (5th F.2d reh. 522 273 F.2d 204 (5th 1975), Cir. this Court affirmed the dis Against the State? Suit pay trict award back wrong court’s for a urge fully discharged that for Eleventh teacher. The recog next Plaintiffs the defendants are award purposes pay type nized that back was the Amendment the Elev- prohibited by and therefore of retroactive relief Edelman state entities 651, 1347, ini- inapplicable. supra, v. 415 Amendment U.S. 94 S.Ct. enth (1974).19 Nonetheless, were the President Mis- 662 39 L.Ed.2d defendants tial University the Assistant sissippi challenge by State for Business Affairs in the suit passed governing the Vice President 808, (1965). 140, Treasury, 464, supra, 13 L.Ed.2d 717 ment of 85 S.Ct. 323 U.S. at 65 347; Read, S.Ct. Great Northern Life Ins. Co. v. Department of v. Trea- See Ford Motor Co. 13. 873, 47, 50-51, S.Ct. 88 L.Ed. 322 64 1121 U.S. 459, 467, 347, sury, 89 L.Ed. 65 S.Ct. 323 U.S. County (1944). Trust Co. v. See Worcester Wright, (1945); Coop- E. 13 C. A. Miller & 389 296-298, 185, 292, Riley, 58 302 U.S. S.Ct. 3254, er, Practice Procedure at Federal (1937); parte The Ex State of New L.Ed. (1975). 79-80 500-503, York, 490, 588, U.S. Greenhow, 114 U.S. v. See Poindexter L.Ed. 1057 14. 288-290, (1885) (Vir- L.Ed. 185 Rhodes, Coupon Cases). v. ginia Cf. Scheuer Askew, Corp. Aerojet-General 453 F.2d 40 L.Ed.2d 90 94 S.Ct. (5th 1971), denied, cert. 828-829 Cir. Renfroe, (5th (1974); Sapp 511 F.2d Cir. 34 L.Ed.2d 149 1975). York, parte supra, of New See Ex (“[T]he ques at 590 Strickland, 420 U.S. Cf. Wood v. determined not the mere names tion is to be 992, (1975). 214 L.Ed.2d 43 parties but nature the titular essential 529, County Luning, v. U.S. 10 Lincoln 133 16. proceeding, appears it and as effect of (1890); 766 Osborn v. Bank L.Ed. 33 record.”). the entire States, Wheat.) 738, (9 22 6 U.S. of the United (1824). 204 L.Ed. Bitzer, Fitzpatrick (2d 19. 519 See v. F.2d 559 - -, granted, Cir.), U.S. 96 S.Ct. cert. Copper Corp. v. State Tax Kennecott 17. - (1975). 49 L.Ed.2d 573, 576-577, Comm’n, 327 Depart- (1946); Ford v. Motor Co. L.Ed. 862 90 1174 ground placed college districts on

junior under the control of the Board of peculiar statutory Texas and de- under the Trustees of state of higher institutions law, was not suit cisional learning.24 Agricultural The and Mechani- junior college in districts San state.20 The College cal of Mississippi logo changed institutions, local “primarily Jacinto Mississippi statute, University by State supported and authority local created although the school retained “all its proper- at largely by local revenues.” F.2d 278. ty franchises, rights, and powers, and Thus, law the established local under privileges heretofore conferred it by law institutions governmental stand in . . .” Miss.Code [1878 Ann. Act] light the state for Eleventh the same (1972). 37-113-3 § purposes, there was no bar to law Under state Mississippi is inextrica- preserved jurisdiction What in the suit.21 bly involved in all facets of the Board’s not, however, Jacinto will assist the San operation University, of the as well as the facts, here. Under the instant it plaintiffs operation of other schools comprising the statutory clear from and decisional law higher state’s institutions of education. the State of is the real Miss.Code Ann. (1972). See 37-101-1 § The party defendant.22 district court im- Board’s structure is detailed in the Missis- stated, recognized this when plicitly sippi part, provision Constitution. any question there but Nor is provides: refunds, ordered, paid if would not Board Such shall power have the and funds, personal the defendants from but authority to elect the heads of the various necessarily be charge upon higher institutions learning, and con- treasury, or at least that portion of deans, with all professors tract and other higher the fisc dedicated to education. teaching staff, of the members and all at 1188. F.Supp. employees administrative of said institu- genesis of Mississippi State Universi- tions for a term not exceeding four years; (M.S.U.) Chapter ty found XIX of the but said Board shall power have the and Mississippi, approved Laws the State authority any to terminate such contract February 1878. The school was first any malfeasance, at time for inefficiency Agricultural known as the and Mechanical conduct, or contumacious but never for College Mississippi. Laws political reasons. XIX, Mississippi, ch. 2.23 Overseeing § Nothing herein any contained shall in was a Board of appoint- the school Trustees way away limit or take power with the ed the Governor advice and Legislature’ had possessed, any, if at consent of state senate. Id. 3. The § adoption the time of the of this amend- body politic Board was declared be a ment, to consolidate or abolish corporate, capable of suing being sued. above named institutions. Id. 5. The Governor § was the ex officio Id. 6. The Miss.Const. Art. president. State Treasurer 213-A. general § § treasurer, powers was the empowered ex officio and duties of the Board pre- are all keep moneys and disburse of the school scribed 37-101-15 § the Mississippi according to the orders of Board. Id. statutes. The Board control, exercises dis- Later, Mississippi’s 8. universities were § tribution and funds, disbursement “of all County Educ., Accord, 20. See Adams v. Rankin Bd. of Mfg. 22. Hamilton Co. v. Trustees of filed, (5th 1975), Cir. F.2d cert. Colo., Colleges the State (10th 356 F.2d 599 (U.S. 1976) (No. U.S.L.W. June 75- 1966), Cir. similar result. 1710) (county system Mississippi). school See Miss.Code Ann. § 37-113-3 Jordan, supra, 21. See Edelman v. 1347; County n.12, Lincoln seq. See Miss.Code Ann. et supra, Luning, U.S. at 10 S.Ct. 363 Hutchins, (1890); Young F.Supp. (M.D.Fla.1974). 1179-1180 n.19 representatives senators and of the it taxes, . . levied and appropriations the may exceed income. received, appropriated collected, or and 37-101-15(a) Ann. § Miss.Code . . 15(e) (emphasis added). Id. § 37—101— to authorize power has the (1972). It also is statutory provi- to this another Related the for disburse- sign vouchers employees detailing procedure the the by which sion According to documenta- of funds. budget the Board submits of each institu- argument memo- post provided tions Budget state’s Commission of tion to the counsel, defendants’ by submitted randum 27-103-29(g) di- Accounting. Section and Group university. I as a classified M.S.U. budg- the to submit the annual rects Board University is allowed the that means This year. prior beginning the of each fiscal et budget its total up to 72% of request approves budget if suf- The Commission the Requests for appropriations. from state meet the ficient funds will be available to through the Board as are made such funds not, requests justified requests. If must legislative appropria- for clearing house compro- to the Commission some sort the funds to the Board disburses tions. The Only budget mise out. then is the worked university system by an allocation-of- state approved. approved “The total amount for Thus, appears that all funds formula. shall each institution constitute the maxi- be funnelled must first appropriations may be expended during mum funds which supervi- Board. The Board’s through 27-103- year.” the fiscal Miss.Code Ann. § budget comple- University’s over the 29(g). sion control over the by the state’s

mented This statutory clearly scheme demon- supervision. Board’s of Mississippi’s control strates State 37-101-15(d) that provides policies established over fiscal Section system Board, a uniform fortiori over the finances maintain and a Board shall accounting. system This has not we recording and There been cited and M.S.U. Department pro- statute the state have not discovered state approved must be viding procedures overpayment annual prepares report It refund of Audit. tuition fees. Cf. Miss.Code legislature to the details of out-of-state submitted seq. (tax et refund stat- moneys appropri- Ann. 27-73-1 § of all “the disbursements utes). Id. respective institutions.” ated 37-101-15(e). report must also show § Thus, no there are facts in this case that gross receipts and summary of disburse- application would allow of the San Jacinto necessarily only covers not This ments. Mississippi provide rationale. statutes do legislature, by the but appropriated funds meeting qualifications certain counties self-generating include funds. also to contribute funds are authorized toward student fees collect- include all These funds and equipping the construction M.S.U. research, ed, income from sponsored grants, county. facilities within that educational interest that accrue to an endowment 37-113-43 Miss.Code Ann. § These institution, Important and the like. to note funds, however, give county any do not both the illustrates provision

is a facilities, 37-113-49, id. rights to the and policy fiscal control over M.S.U.’s Board’s deposited special into a fund the funds are of the Board supervision the ultimate treasury. and 37-113-47. in the state Id. § legislature. law decisional confirms keep expendi- shall the annual The board University part par- are Board and herein mentioned each institution tures of Whipple, Coleman v. cel the state. legisla- income derived from within involved a Miss. suit So.2d sources, other but appropriations tive a will and certain be- to construe cancel arising from emergency acts case of quests three universities. fire or epidemics, storm with providence, determining whether state fell within governor approval prohibiting bequests, charitable written the statute majority inquire of a the court had whether the uni- written consent son Thus, and same with the whomsoever.” 15 versities were one So.2d at 422. the nature were discussing subject state. In of the Smith the fees not at- Board, tachment. The principle the court stated: same must a apply fortiori in the instant case where there was managing board

They were the or head separate no fund for student fees. then university, and now con- University Mississippi, stitute the cre- The Eleventh Amendment was through legislature its ated the State protect fashioned to judg which, (Sec. 5) of creation under its act requiring payment ments of money that act; repeal right retains the the entire would interfere with the state’s au fiscal by the property is owned State and tonomy its political and thus sovereignty. university State, an arm of the as monetary Retroactive relief for the consti itself. State tutional here violations just would have This is also true for M.S.U. Mississippi effect.25 a devised complex statutory design colleges creating governs

The acts now which known higher state’s schools of College Mississippi State education and their [renamed control the Board of University] (February State Trustees. The required Board to submit 1878) . must be similarly budgetary pro posals construed, legislative acceptance. for construction re and such is not at To quire refund payments from the by Chapter all affected 127 of the Laws Board overpayment of single tuition fees creating a board of trus- would be the kind of tampering higher tees for all the state institutions of Eleventh Amend ment sought to avoid. learning. (emphasis added). So.2d at 567 appear These fees to have been commingled with all moneys Co.,

In v. Doehler Metal held Smith Furniture Moreover, 538,15 University.26 these types 195 Miss. So.2d of fees Mississip- were the preparation factored into College joined pi Southern as a of the party budget annual for M.S.U. and defendant in a suit recover a were debt. The relied upon legislature by the state college president determining and its financial defendants, expenditures maximum amount of secretary were also a situation al compel lowed. payment To similar to the case bar. The be to add expenditure figured not recognize that the seemed Board of the budget. Trus- small, The fact the sum is $3,495.00, answer tees would not have to suits absent compared to the overall University express immunity budget waiver of its as a does not affect agency. 15 at 421-422. determination. So.2d Plaintiffs Eleventh Amendment bar is sought not payment separate fund, contingent from magnitude of the monetary “Mississippi College award Southern Student sought Fund,” the state.27 which contained student paid fees preceding years. two to three over De- Immunity- Waiver of this, spite the court stated that the funds public, were Once private. not collected argument plaintiffs On oral urged that officers, college officials such as defend- indistinguishable this case is Soni judice, ants in the sub the moneys case Board Trustees of Univ. Tenn., public funds “as to which became the offi- (6th 1975); F.2d 347 Cir. cert. denied, - responsible solely cers to the college -, 49 L.Ed.2d 372 trustees, private and to no per- (1976). Soni, the Sixth Circuit awarded generally Attorneys’ Note, private moneys See Fees and the property Amendment, Florida). Harv.L.Rev. 1877-1882 Note, Attorneys’ 27. Cf. Fees and the Eleventh Williams, Amendment, Cf. Schiff (5th 519 F.2d 88 Harv.L.Rev. 1881-1882 1975) (fees separate Cir. held in fund said to be

\YH That in the each of the university professor board of pay trustees back for, provided contentions. herein and Eleventh Amendment their successors of face office, in incomplete be and same are Although hereby record Soni body politic a declared to be a and University’s identity corpo- the issue respective rate their by names and instrumentality, styles, the court assumed state seal, and have a common against shall and deciding that a suit each without name; sued, in its own shall sue be of and University was a suit State hold, with, be contract and contracted and may court went on to The Tennessee. own, purchase, sell and convey a property, had been waiver there mixed, real, personal both and immunity upon (emphasis the Uni- based federal added). charter, which read: versity’s This be terminology not, and successors “sue and sued” trustees their The said aforesaid, sued, however, been carried into the may present sue and be stat- name no equivalent is impleaded, any in court of utes. There of section 5 in plead and be the new statutes. No mention is or elsewhere. made of equity in law or State power sue or be sued either added). in the (emphasis organizational general statutes or in the court found this at 351. Soni 513 F.2d powers duties of the and Board.31 Under right of Tennessee’s a clear waiver to be specific circumstances is Board allowed federal court. be sued in not to In instances, to sue or be sued.32 these guiding our determi principles however, the waiver is limited to a narrow- are well settled. Waiv on this issue nation activity. The ly defined consent to be sued immunity state’s constitutional er of the given not with such clarity is as to amount easily not clearly and will be appear must a waiver of Eleventh Amendment pro- waived for state implied.28 immunity An As the tection. in stated not waive necessarily does purposes suit Petty Bridge v. Tennessee-Missouri for courts29 immunity Comm’n, 275, 359 U.S. S.Ct. (1959): L.Ed.2d 804 nothing present in the There is public instrumentality a is creat- [W]here Mississippi clearly to indicate record right “to sue ed with the and be sued” to waive Eleventh Amendment intended immunity particular that waiver of in the sweeping statutory immunity.30 The setting may restricted to suits or pro- which controlled language of waiver Soni ceedings special character in the 5, chapter this case. equalled Section federal, state, not the courts. simply provided Act XIX of the 1878 Id. at 79 S.Ct. at 787. and refer could sue be sued. No Board any specific concerning was made to court. Sec the statutes ence In Missis provided: University, there sippi provision tion 5 State is no supra, 37-101-3, 37-101-7, 28. v. U.S. at Edelman 31. See Ann. Miss.Code §§ 1347; Petty Tennessee-Missouri v. 37-101-15 Comm’n, Bridge S.Ct. 3 L.Ed.2d 804 (1972) §§ 32. See Miss.Code Ann. 37-101-45 corporate (personal leasing and lessees land for Co., Murray Distilling v. Wilson 213 U.S. housing dormitory construction of and facilities 151, 172, (1909); L.Ed. 742 by private financing protect enforce or Dix, 590, 591-592, 24 Chandler equity); rights law or in their suit at 37- (1904); Scott v. Board 48 L.Ed. (1972) corporations (nonprofit pur- 101-63 for L.S.U., (5th Supervisors F.2d pose acquiring constructing facilities 1964). Cir. education, higher as established Board reso- lution, be sued can sue and and defend suits Accord, Mfg. Trustees Hamilton Co. it). Colo., supra, Colleges 356 F.2d the State 601-602, the Tenth Circuit reached wherein equiva- functionally on a similar result based statute. lent Colorado 5 of Act.33 legislature to section the 1878 comparable has evidently considered be construed as re- Only 37-113-3 could such men would be as sensitive to any of consent that ferring back to form obligation every financial of the institu- prior present been acts. may have preserve and as alert tion its financial Act, this states referring to the 1878 section integrity jury, as would court or part: principal that since the field effort University] con- [Mississippi shall agency business, other such than body-politic corpo- to exist as a tinue energies not have its should diverted rate, property . . with all its standing upon attendance litigation. franchises, powers, privi- rights, and the Sanders, 15 at 421-422. So.2d State v. law, heretofore conferred on it leges 475, (1948), 203 Miss. 35 529 the So.2d court body incident such a and properly or seemingly speaking to the instant situ- necessary accomplish purpose the recovery where pay- ation excess tuition ereation[.] necessarily would paid ments be from the lacks provision clarity This likewise treasury. In Sanders the court stat- order needed in to infer state’s consent ed: Supreme to be As the Court has sued. it found, Thus will . be . stated, often cases, nearly all the wherein the rule of cases declare rule that clear Th[e] immunity state, from suit declaration of a consent to suit State’s thereof, a subdivision has applied been against itself in the court fis- upheld, are those which demanded a required. cal claims is money judgment, and wherein the dis- Copper Corp. Kennecott v. Tax charge judgment, of the obtained, if Comm’n, 577, 745, 327 66 require appropriation an or an ex- (1946). 862 expression 90 L.Ed. Clear therefrom, penditure being legisla- which here. lacking in its is a province tive character exclu- holding Mississippi Our there is no sively political departments of the of the consenting to suit is statute buttressed state. law. v. Met- state decisional Smith Doehler So.2d 532-533. Co., supra, al Furniture Miss. result This is identical to post-Soni a deci- So.2d 421 involved South- sion of Sixth Circuit in Long v. Richard- College, a ern sister school of but M.S.U. son, (6th 525 F.2d 74 Cir. 1975). There subject statutory to the same control and sought money former law students judg- supervision. Attorney Board The state against Memphis State University for argued General school was an paid out-of-state tuition fees they while agency state and that there was no plaintiffs school. Long were in statutory consent for the suit. The Missis- after same kind relief Jagnan- as the Supreme agreed. sippi Court The court dans. held that the suit was agency That arm or of the state by the Eleventh barred Amendment since by express except cannot sued statuto- clearly had not Tennessee waived its immu- ry authority or constitutional has been Memphis nity for State University, unlike long too and too well settled to be further Thus, the situation in Soni. in the case sub now, includes, debatable this judice expression where no clear of waiver course, suits under attachment found, has been Soni would not be control- chancery statutes. An institution such as ling. College only this is entrusted to men of character, turn, they, high are Edelman Jordan the supervision under of a state-wide trustees, among board of selected from Plaintiffs contend that the refunding of reputable the most citizens of the state. previous payments excess tuition pro- not seq. See et Miss.Code Ann. § 37-113-1 welfare benefits without mention analysis Court by the scribed in Edelman Eleventh Amendment. The Court in Edel disapproved explicitly Shapiro 415 U.S. man supra, (1974). They argue further extent conflicted with Edelman’s Elev L.Ed.2d in the of refund is more type holding. this enth Amendment there- restitution and equitable nature negates any Edelman sustenance which welfare from the retroactive different fore might get plaintiffs watershed disagree. We in Edelman. denied benefits Ex case of parte Young, 52 L.Ed. States Court The United problem specifically addressed there held that the Eleventh Amendment never vis-a-vis payments tuition not bar a federal from enjoining excess did refunded The pre-Edel- Attorney Amendment. General the Eleventh of Minnesota from Kline, 412 enforcing Vlandis v. a statute found to be in case of violation man (1973), aff’g, 37 L.Ed.2d the Fourteenth Amendment. To reach result, (D.Conn.1972), parte Young does Ex F.Supp. upon rested plaintiffs’ bypass effort the officer was support seeking fiction.36 Since statute, It is true that Vlan- an Amendment. enforce unconstitutional that Eleventh of- refunding of of the excess out-of- lost his cloak dis affirmed ficer state authority. At paid by began students who to point operate fees he state tuition without the residents. The the in Connecticut sanction of state. This logically fact official in Vlandis concerned state proposition issue followed from the primary the state creating presumptions irrebuttable not an could enforce act. unconstitutional statutes to nonresidency. Court found these of use of the name of the State [T]he process. of due violative be enforce an unconstitutional act to the in- jury complainants is a proceeding however, Vlandis, the Eleventh authority without the of and one which nor issue was never briefed Amendment not does affect State in its sovereign Court and was not argued discussed governmental capacity. or It simply is opinion.34 The Court in Edel in the Court’s illegal upon act part of a state prior cases disavowed which had man attempting by official in the use of the monetary against relief the state granted name of the State enforce a legislative of Eleventh Amendment consideration without is enactment which void because uncon- Although Vlandis ifications.35 ram If the which stitutional. act the state not named as specifically Court Attorney General seeks to enforce be being among group, we do not read the Constitution, the Federal violation of indicating approval the Court’s omission proceeding officer in under such enact- refunding tuition fees the face with superi- ment comes into conflict Amendment contentions. Since authority Constitution, and he Edelman, Vlandis, fully explored stripped is in that ease of his official or area, it is Edel the Eleventh representative character and is subjected necessarily our de which must control man person consequences in his of his case before us. The cision status individual conduct. Shapiro similar to that of v. thus Vlandis 618, 1322, 159-160, 22 Thompson, 394 U.S. 209 U.S. at 28 S.Ct. 454. Thus (1969). There the L.Ed.2d 600 it became not a suit the state at all. granting affirmatively enjoined affirmed retroactive Court The officer was Wyman, (U.S. 1972). (S.D.Fla.1971); 34. See 41 U.S.L.W. Gaddis v. 3263 1004 Nov. 304 per F.Supp. (N.D.N.Y.1969), aff’d curiam 717 nom., Bowens, Wyman Rights sub v. Mothers’ & 397 35. See Sterrett Children’s Org., S.Ct. 25 L.Ed.2d 38 409 U.S. S.Ct. L.Ed.2d Dept. of Health & Rehabilitative (1972); Zarate, Wright, Services of Fla. See C. Handbook the Law of (1972), affg, F.Supp. (2d 1970). Federal Courts 32 L.Ed.2d at 186 ed. § conduct to constitutional re- was the presence conform his in Fitzpatrick of federal quirements. legislation authorizing courts, federal under VII, Title money award damages in fa involved a suit for in- Edelman likewise private vor of individuals against state officials for junctive relief to have state found discriminated in em regulations of federal and the violation ployment on the basis of race, religion, col- administering Fourteenth Amendment - or, origin. national sex or U.S. at program of Aid to the the federal-state -, 2666. See 42 S.Ct. merits, U.S.C.A. Disabled. Aged, Blind or On 2000e-2(a). legislation This § had been regula- the district court held passed pursuant to 5 of the violated. The Fourteenth tions to have been court or- Amendment. Similarly in Edelman past defendants to release and remit there dered express was no congressional legislation. wrongfully withheld. The court benefits Fitzpatrick Thus found a situation appeals wholly affirmed. Court af- unpresent in Edelman. illegality firmed as to action of Fitzpatrick indicated that issue, damage par the state officials. As to the without this legislation ticular the case ordering the Court held that gov erned Edelman. retroactive But payments remittance of benefit cf. National League of Cities v. by the federal court was barred by Usery,-U.S. -, L.Ed.2d Eleventh Amendment. 415 at 658- 659, 94 parties Both in the instant case agree with the Appeals Court of that the suit Noting reality that in the benefits award for retroactive benefits by parties these by the district court would be paid from the indistinguishable in fact sought general Illinois, revenues of the State of Edelman, to be maintained in since what Edelman Court held that sought damage here is a payable award by private parties a suit seeking to im- to a private party from the state trea- pose liability paid which must be sury. public treasury funds in the state Fitzpatrick Bitzer, - U.S. v. at-, barred the Eleventh Amendment. (footnote at 2669 omitted). S.Ct. at at U.S. S.Ct. Plaintiffs additionally argue that Thus, although parte Ex Young would really this is a suit for equitable restitution injunctive support the relief ordered in this and is therefore not barred the Eleventh case, clearly Edelman bars financial relief Amendment. that, Plaintiffs reason unlike against public funds. it is Since clear that cases, the welfare benefit repayment of any repayment past tuition costs would these tuition fees is not akin to a damage necessarily funds, come from state we af- merely prevents claim but unjust enrich three-judge firm the district court’s refusal ment of University. The excess fees refund. Our grant conclusion corre- would never have been collected but for the sponds to that of the Sixth Circuit in a unconstitutional statute. Edelman’s re- similar case which involved the refunding liance on Ford Motor Co. Department v. Long Richardson, of tuition fees. See v. Treasury, supra, S.Ct. supra, 525 F.2d at 75-76. 89 L.Ed. 389 forecloses acceptance of In its most recent decision on the Elev plaintiffs’ argument. Amendment, enth the Supreme Court in Ford - Motor Co. was an unsuccessful suit Bitzer, Fitzpatrick -, by plaintiff nonresident for refund of L.Ed.2d -(1976) left un gross paid income taxes the Indiana De- questioned holding its in Edelman v. partment Treasury. Like the excess tui- Although Jordan. Fitzpatrick permitted payments tion judice, involved sub the tax- recovery of retroactive retirement benefits es moneys paid by the taxpayer. wrongfully plaintiffs withheld from on the discrimination, basis of sex that case is not The two issues before the Court in Ford controlling. Different from the case at bar Motor Co. involved whether the suit was state, and whether Indiana con- officials preventing the enforcement The Court ruled the suit to be sued. residency sented of a statewide rule grounds held there had against the state but to be unconstitutionality. rule, That for tui- opinion to suit. did no consent required been purposes, tion that the domicile whether a claim for explicitly discuss the wife is considered that of her husband’s. could withstand an restitution equitable also The court affirmed the district court’s challenge. Edel- holding the universities liable for equitable man, Ford Motor Co. was cited as restitution for difference between the negatively. answering question out-of-state higher paid tuition fees “equitable restitution” would women The term married residents because of the applicable more relief residency seem even unconstitutional rule and the less- sought Co.], in that case Motor charges. er in-state tuition [Ford taxpayer had at one time had since the A review of district court’s decision paid it over to the money, State explains apparent inconsistency be- allegedly unconstitutional pursuant to an tween and the Samuel instant case. Samu- tax exaction. University el v. of Pittsburgh, 375 F.Supp. supra, at Edelman (W.D.Pa.1974). Three universities in- volved in the suit included the University of might very Ford Motor Co. on its own Pittsburgh, Temple University and Penn support equitable a broad denial of well not University. The State district court at Court, however, Edelman restitution. length explored the relationship between preclude that case to such relief construes the three universities and the Common- inequities inherent in such a spite Pennsylvania.37 wealth of argument This denial. rejected. The district court found the universities not be state instrumentali- recently The Third Circuit has decided a ties.38 As was documented in the appears directly con- that on its face Suit. case Against the opinion, State? section of this Amendment result trary to the Eleventh Samuel, unlike the universities involved in v. Univer- appeal. reached on this Samuel is one and the same M.S.U. with the (3rd Pittsburgh, Cir. sity of 538 F.2d Mississippi. 1976). Investigation below the surface of of Therefore the cosmetic simi- these inapposite larity indicates that the case is between two cases does not Samuel judice. analysis. sub The court in In the appeal withstand notation of is- granting injunctive the of appeal affirmed sues involved in the Samuel Samuel the against defendant universities and relief court made no mention of a challenge to the University Pittsburgh, instrumentality 37. Samuel v. tution a state as that term is (W.D.Pa.1974). F.Supp. The court ex- meant in a Section 1983 context. plored pur- F.Supp. at 1127. the nature of these universities for poses determining their relation to the state Only 38. if the defendant universities were All three § under 42 U.S.C.A. 1983. universi- deemed be state instrumentalities could “persons” ties found to be under they enjoy sovereign immunity. be held to scrutiny and conscientious of the Close each of the The status of three defendant [setting figures pic- out above the financial universities has been discussed and described university], and of the other ture of each preceding in the some detail section hereof indicia of state control or lack thereof set out and none of them have been found to be state above, Temple make it clear that Pitt and are Each of the instrumentalities. defendant uni- statutorily actually possessed and of suffi- essentially has been found to be an versities independence institution, from the control of the cient private “pri- insofar as the term persons to constitute within Commonwealth an absence of state vate” connotes control meaning the of Section 1983. operation. the three over its Since universi- autonomously function from the ties persons been found to be have under facts, finds Under this state of sovereign the defense of Section immu- does not exercise that the Commonwealth nity is unavailable to them. potential op- control over the such actual F.Supp. (emphasis supplied). Penn State as to render that insti- erations of at 1128. right findings to the universi- where the effectively court’s statute district waived Circuit Third The any Eleventh status. Amendment bar private provi- ties’ any judgment liable for resti- court be sion that found universities would effect repayment of taxes. Such is tution: not the case here. found that the Uni- The [district court] that unjustly enriched in

versities were Effect Fourteenth Amendment wrongfully a benefit which they secured on Violation Eleventh Amendment for them to it would be unconscionable Immunity agree with this retain. We conclusion.39 district light 538 F.2d at 994. In In their final argument plaintiffs contend of the essential- extensive discussion court’s that Eleventh Amendment does not bar universities, ly private nature of and recovery for this Fourteenth Amendment allowing restitution from the Third Circuit argue violation. Plaintiffs that the earlier universities, it cannot be said that those enacted Eleventh (adopted Amendment principles those relied contravenes Samuel 1798)40 give way must to the Fourteenth on in the instant case. 1868)41 (adopted Amendment which pro tects individuals state encroach Finally, case of Atchison T. & F. S. upon rights ment their process to due O’Connor, Ry. v. equal protection of laws. major help plain is of no 56 L.Ed. 436 plaintiffs’ portion brief deals with this equitable not an simply tiffs. Atchison argument. because, noted, ease as the Court restitution provided state law three-judge rejected this argu- “if it shall determined action ment and held that Eleventh Amend- equity any corporation law or in recovery of ment barred excess pay- tuition paid Secretary tax to erroneously said reaching ments. this conclusion the State,” filing upon of a certified upon court relied Edelman v. copy judgment auditor 1347, 39 L.Ed.2d 662 refunding draw warrant for the recognized although It Edel- may pay tax and the state treasurer it. upon not man did rest Fourteenth Amend- presume judgment that a We must grounds, present satisfy action would the law. sweep majority opinion [in added). (emphasis apparently leaves no room for Edelman] Id. at 32 S.Ct. at 218. Thus in Atchison distinguishing money demands made recovery statutory was based a state against a state because Fourteenth 39. Defendants in Samuel also included state instrumentalities. The court also noted that university personally officials and officials. The state offi- these individuals “are liable argued cials the Eleventh im- Amendment restitution . .” themselves munity prevented suit in- F.Supp. them for at 1135 n.18. declaratory junctive argument relief. This provides: rejected parte Young, was basis Ex the of power The Judicial of the United States shall 123, 441, 714 209 U.S. 28 S.Ct. 52 L.Ed. any not be construed to extend to in suit law or F.Supp. 375 at 1129. The de- court held that equity, prosecuted against commenced or one fendant state officials were not liable for resti- of the United States Citizens of another court, tutionary payments. Id. The at 1135. State, Subjects any Foreign or or Citizens moreover, rejected notion once the that state State. enjoined despite officials were in federal may the Eleventh Amendment also be provides: liable 41. The Fourteenth Amendment restitution. The court cited Edelman v. State shall Section 1. .No or make 1347, 662 415 U.S. 39 L.Ed.2d any abridge privi- enforce law which shall the (1974) F.Supp. as the to same effect. 375 at leges immunities of or citizens of the United 1135 n.17. States; any deprive any person nor shall university life, liberty, property, process As defendant officials the court or without due they agents law; deny any person that not stated state since nor its within employed jurisdiction protection equal not schools that them were state of the laws.

1183 (1908), 52 714 at L.Ed. transgressions, least Prout Court Amendment here, Congress had stated that when state officer areas, attempts where as such legislation specif- statute, enforce an unconstitutional a suit passed enforcement not “is not a against a state states him suit the State ically directed meaning 5 of the Amendment. within the of that amendment.” pursuant Section 543, 23 400. at S.Ct. at See Smyth U.S. Accordingly, the court at 1189. F.Supp. 466,18 Ames, 169 U.S. S.Ct. 42 L.Ed. that held discussing In the relationship guidance from the Su- specific [without the Eleventh Amendment with other consti- Court, the issue of we hold preme amendments, tutional the Court worked plaintiffs is foreclos- refunds ordering premise that from the basic question, an de- longer open ed and no States, of the United Constitution [t]he in Justice observation spite the footnote thereof, several with the amendments dissent. Marshall’s regarded instrument, as one must be all at 1189.42 Id. provisions of whose are to be deemed of not hold that course, Edelman does Of equal validity. absolutely pro- Amendment the Eleventh Id. at 188 U.S. at 400. S.Ct. Conse- against a monetary relief state all scribes recognized Court quently, that one of court, Amend- even Fourteenth its functions is to important interpret as one Amendment Insofar ment cases. provisions various and limitations of the other, question may override Constitution so “that each and all of them Edelman, as Justice Marshall open in left respected and observed.” Id. at [should] not, dissent.43 Edelman is recognized in his at 401. S.Ct. however, as an instructional de- eliminated parte Young, supra-, Ex the Court grips to come to with attempting vice in again recognized this constitutional tension issue raised constitutional sensitive have but did not to resolve the issue in Edelman arguments. plaintiffs’ Court, that case. The deciding overruled, being inconsistent expressly did state Amendment, a series of with Eleventh assume each may Eleventh [w]e [the as- allowing cases Amendment Fourteenth and Fourteenth exists in Amendments] damages against state.44 sessment force, give must full that we Starr, S.Ct. In Prout v. Amendment all the it effect plaintiffs 398, 47 L.Ed. have, without naturally cutting injunction against obtained an rendering meaning any more down or attorney enforcement an al- general’s language, fairly than inter- narrow statute, legedly arguing unconstitutional preted, would warrant. they would otherwise suffer loss Id. at at 450. 209 U.S. See C. process of law. property without due Wright, Handbook of the Law Federal injunction. The Elev- court affirmed Courts, (2d 1970). at 185 ed. enth was asserted as a defense. approach parameters In an similar to that taken later exact of the Elev parte Young, Amendment, in Ex juxtaposed enth when with Amendment, argument in his Justice Marshall stated dissent advanced an ami- Edelman, my cus in this case. In view of conclusion that immunity sovereign which exist has be noted that there has been no should [i]t waived, determination in this case that state action is been I also need not reach this issue. n.2, under the Fourteenth Amend- unconstitutional at 694 Thus, necessarily ment. the Court does supra. 42 43. See note Eleventh decide whether the States’ Amend- immunity may sovereign have been limit- Jordan, supra, v. 44. See Edelman 415 U.S. at by enactment of the Fourteenth ed the later n.13, 94 S.Ct. 1347. See note also 670-671 the extent that such a limitation Amendment supra. 35 necessary purposes is effectuate the of that 1184 Amendment, do not appear recovery

the Fourteenth of retroactive payments benefit before to have been considered prohibited by the Eleventh Amendment Corp. v. Kelley, 493 Court. See Mobil Oil they paid since would be from the state (5th Cir.), 784, denied, cert. F.2d 786-787 n.l treasury. point On this the Second Circuit 498, 1022, 42 95 L.Ed.2d 296 419 U.S. S.Ct. Fitzpatrick Bitzer, affirmed. v. 519 F.2d Bd. of Educ. v. (1974); Louisiana State (2d 1975). Supreme Cir. The 559 Court 911, (5th Baker, 1964). 914 339 F.2d Cir. reversed. however, conclude, in the case sub We Court held that Eleventh Amend- Amendment, though judice, the Fourteenth effectively ment may preempted by con- last, preempt operation not ratified does gressional legislation pursuant enacted against Amendment’s bar of the Eleventh provision the enforcement of section 5 of payments tuition recovery of the excess Amendment, the Fourteenth pro- which federal court. Recog from the state in a vides: a balance nizing the need for of the con The Congress power shall have to en- Amendments, we find that such flicting force, by appropriate legislation, the pro- resolution satisfies interests of both visions of this article. officials Amendments. The state have been said, The Court enjoined enforcing an unconstitutional we think that the Eleventh Amendment, of the deprivation plaintiffs’ act and the of state principle rights, sovereignty Fourteenth Amendment and the embodies, which it see Hans v. Louisiana, has been preserved state’s fiscal interest 504, 134 1 under the Amendment. U.S. S.Ct. 33 L.Ed. Eleventh [10 842] (1890), necessarily are limited the en- recent Court’s decision in provisions forcement 5 of § the Four- - Bitzer, Fitzpatrick -, v. U.S. * * * teenth Amendment. When 2666, L.Ed.2d-(1976), S.Ct. does not 5, Congress pursuant only acts not alter result reached this case. it exercising legislative authority that Fitzpatrick brought a class action on behalf plenary within the terms of the constitu- present of all employees and retired male grant, exercising tional it is that authori- working for the State Connecticut. The ty under one section of a constitutional complaint charged that certain statutory Amendment other whose sections their provisions of Connecticut’s retirement bene- embody own terms limitations on state plan fit discriminated the plaintiffs authority. on the basis of sex in violation of Title VII - of the Rights injunc- Civil Act of 1964. An -, at 96 S.Ct. at 2671.45 issued, tion but the district court held the Fitzpatrick holds that balance between arising prior Fitzpatrick, upon In cases Amendment, based least the Fourteenth which addressed, purposes two other not directly, Circuits for upon binds the states section 5 of holding, Fourteenth, of a court gives Fourteenth Congress vis-a-vis pow which argument. In Amendment Skehan v. er to create Part of remedies. the remand in of Bloomsburg College, Board of Trustees State that case was for a determination of the Col (3d 1974), lege’s Skehan, 501 F.2d 31 the court Cir. confront status to the state. ed, alia, attorney’s problem inter fees in was vacated and remanded discharge case. teacher Within the case light further consideration problems Alyeska of both First Pipeline and Fourteenth Service Co. v. Wilderness So ciety, Amendment dimensions. footnote 421 U.S. S.Ct. 44 L.Ed.2d recognized (1975), Strickland, Marshall’s Justice statement Wood 420 U.S. deciding of Edelman Fourteenth L.Ed.2d 214 Ske question leaving open Amendment thus the ef Bloomsburg han v. Board of Trustees College, fect had on the Eleventh. 44 L.Ed.2d court, however, thought disposed Gilligan, Edelman Jordon 500 F.2d 701 (6th denied, 1974), Edelman issue. “We think must be read Cir. cert. any money closing the door on award from a L.Ed.2d concerned a treasury any category.” reapportionment challenge 501 F.2d at on both Fourteenth category to grounds. 42-43 n.7. One which the court and Fifteenth Amendment The court money quoted referred was a claim opinion the state in Jordon text in the Amendments man and ground and Fourteenth Ford Motor Co.on the the Eleventh Fourteenth, in favor those cases never reached the be struck merits of must passed specific legisla- violation, Congress has Amendment when Fourteenth is a de- section 5 to enforce pursuant to that must tion termination rest with that Court. the Fourteenth by rights guaranteed Fitzpatrick only concerned the situation in monetary cases relief In such Amendment. legislation which section 5 present. was treasury directly from the state recoverable Jagnandans The case of the is therefore be allowed. will Accordingly, reject dissimilar. we must plaintiffs’ argument. legislation is involved enforcing

No very fact that the instant case. out, in the point We that our reading legislation, au relied on Fitzpatrick Court Supreme of the current status of Court enabling section of the by thorized on the determinations Eleventh and Four- Amendment, supports the ne Fourteenth might teenth Amendments well be affected legislation recovery for cessity of such by appeal the treatment on of a recent by person whose money from the state three-judge court case. Mauclet v. Nyquist, rights have been Fourteenth F.Supp. (W.D.N.Y.), appeal sub. Authority cited Court violated. nom., Nyquist, Rabinovitch v. 45 U.S.L.W. requirement. this Fitzpatrick mandates 13, 1976) (No. (U.S. July 75-1809). (10 Otto.) Virginia, 100 parte Ex See involved a suit Mauclet resident aliens of Language 25 L.Ed. 676 challenging New York State an education supports position. Fitzpatrick further applicants required law which for fi- state Congress may, in deter We think that citizen, nancial aid to be United States mining “appropriate legislation” what is expressed to have the intent to become such purpose enforcing provi for a citizen. The court held the law to be Amendment, pro the Fourteenth sions of and mandatorily enjoined unconstitutional against private for suits States or vide enforcing defendant state officials from its which are constitutionally state officials Edelman, provisions. On the basis of impermissible in other contexts. See plaintiff money court denied Rabinovitch Jordan, supra; Edelman v. Ford Motor damages past moneys assistance with- Treasury, Department supra. Co. v. F.Supp. held defendants. 406 at 1236. being raised Rabinovitch on at-, One issue (footnote at 2671 -U.S. appeal is whether the Fourteenth omitted). Amend- further Absent direction from ment, Court, of its own force and absent enforce- and where Supreme no section 5 legislation, constitutes a limitation to passed, holding our ment legislation has been awarding the Eleventh Amendment’s bar to keeping is in with the historical bal- here money judgments against the state in a placed upon recognition ance a coterminous With the Eleventh and Fourteenth Amend- court.46 this issue before the federal Court, question Whether the is whether we ments. Fourteenth consideration until postpone hold that overrides should Rabino- Amendment, vitch, distinguishing Edel- been decided. Amendment, full, Does Fourteenth of its own and concluded that Skehan footnote force, sovereign constitute attorney’s limitation im- precluded an award of fees Edelman that, munity bar of Eleventh Amendment so By F.2d at 709. the fact the state. 500 statutory specific even absent declaration au- involved Fourteenth Amendment that Jordon money thorizing judgment state in claims, potential recognition of the and its con- brought to enforce Fourteenth suit Amend- Eleventh and Fourteenth flict between the rights, judg- ment enter Amendments, apparent it is also Edelman awarding money damages against state any money barring read as award from the discretion, where, such relief is neces- treasury. sary fully appropriate vindicate con- rights and to deter future stitutional viola- raised, specific being reported, issue proscriptions? tions of constitutional is as follows: (U.S. July 1976). 45 U.S.L.W. 3007 1186

Rabinovitch, Collier, will not be Fourteenth. Cir., Gates 5 term, next until the 489 (panel), decided F.2d 298 522 F.2d 81 significant. In addi delay would be (en banc); Alabama, Cir., so Newman v. concerning the tion, direct issue despite the (panel), F.2d 1320 522 F.2d Amendments in Fourteenth Eleventh and (en banc). Rabinovitch, may fully not dis the Court issue, past the Court in three- for cuss that GOLDBERG, Judge, Circuit with whom has sometimes found appeals judge BROWN, joins Chief Judge (concurring). all issues raised. See unnecessary to discuss fully I concur in the excellent opinion Jordan, supra, 415 U.S. Edelman by my brother Roney. authored I write Moreover, the contentions of to voice concerns separately which render Eleventh Amendment Jagnandans have uneasy, concurrence emphasize and to con- beyond from and those apart considerations which siderations render concurrence neces- in Rabinovitch. These other being raised sary. interpretation issues, with of the along Amendment, Fourteenth vis-a-vis Eleventh The fourteenth amendment exercises a by the be reviewed Su might themselves benign ubiquitous ju- influence on our light case in of the in this preme Court risprudence, occupies position central in Rabinovitch. Accord issue raised similar society’s justice. in our notions about basic it to be more beneficial ingly, we determine of the The first section fourteenth amend- concerned to release this deci parties for all provides that: sion now. No shall make or any State enforce law AFFIRMED. abridge privileges which shall or im- States; of the munities of citizens United BROWN, Judge (concur- R. Chief JOHN any deprive any person nor shall ring): life, liberty, property, without due or. Judge Roney’s opinion fully I concur law; nor process deny any person ably the views so and all of for the Court jurisdiction the equal protec- within its Judge Goldberg. expressed tion of the laws. only things. two I would add language unequivo- That affords clear and protection rights cal of individual against First, “pro tanto of the repeal” the term It seems fair actions of a state. to assume unduly by the Fourteenth seems supporters and ratifiers provision can harsh. One constitutional amendment intended that an individual imput- without application be modified against a abrogation have remedies state’s electorate an ing great to the undisclosed rights fourteenth amendment sufficient- an purpose “repeal” provision. earlier give rights meaning those as more than a Responding supplication to our earnest does moral duty declaration “of High present Court the awesome parte Virginia, (10 Cf. Ex State.” U.S. prospect repeal. 339, 347, Otto) (1880). 25 L.Ed. Second, merely this is in no sense War amendments That the Civil were intriguing question to It constitutionalists. sword, “to serve as a rather than meant presented today’s in raw form. On hold- shield, they for those whom merely as a ing appellants monetary recovery lose all designed protect” confirmed in money wrongful- which now Young, parte Ex by the ly Except unpredict- retains. luck of L.Ed. 714 Edelman v. (or others) timing Rabinovitch able 651, 664, 1347, 1356, any realistic relief. Nor will the not afford L.Ed.2d down, experience as witness our own issue the eleventh as we In this case amendment past years struggle two with these meaningful panoply as a limit on the full presented the Eleventh’s restriction flagrant recompense for often violations remedies a state that the individual

H87 might otherwise strictures on suits amendment the state. I find fourteenth amendment reads: persuasive. eleventh arguments these provide. power of United States judicial clearly Court has recog- to extend to construed not be shall nized that the fourteenth amendment acts pros- or equity, commenced at law or suit a limit on the eleventh in some contexts. the one of United States against ecuted Young, supra, parte relying Ex on the fic- State, by Citi- of another by Citizens by Judge Roney, tion discussed found that any Foreign Subjects of State.1 zens or amendment pro- the fourteenth authorized the adopted to reverse amendment

This injunctive relief in a suit spective effective- holding in Chisolm Supreme Court’s against Fitzpatrick Bitzer, the state. ly (2 Dal.) 1 L.Ed. Georgia, - -, 49 L.Ed.2d federal was liable to suit in that a state - (1976) demonstrates the four- state. Princi- citizen of another by a has in at teenth amendment least one other ratification of the elev- in the pal concerns way carved an significant exception into per- included the desire to amendment enth protection the the eleventh amend- outstanding retire Revolution- states to mit provide would otherwise for state without the intervention of ary War debt Fitzpatrick holds that proper fiscs. con- courts, litiga- the wish to avoid of its gressional legislative exercise powers Loy- restitution of confiscated seeking tion section 5 of the under fourteenth amend- or restoration of lands that property alist abrogate ment can serve to the states’ elev- improperly had been condemned arguably immunity.3 enth amendment Section the states.2 then, a represents license for the Congress, the might there be conflict between That of enforcing in the context fourteenth rights protected against the vindication rights of against amendment individuals by the fourteenth amendment states states, effectively repeal to the eleventh for the immunity from suit established pro tanto. amendment appar- the eleventh amendment is states indicated, Judge Roney As no congres- (the easily imaginable are ent. Situations legislation under section 5 is a sional factor illustration) good in which at bar is case The district court in this case. nevertheless embodied in the fourteenth policies found that the fourteenth amendment rights protection of individual amendment’s rights plaintiffs of these had been violated substantially states must be finding That unchallenged the state. if the eleventh amendment is frustrated appeal. question on thus arises wheth- immunity provide for states read to er the amendment of fourteenth its own recovery wrongfully taken regard any modify the eleventh force acts amend- Appellants in this case have money. context of an legis- ment in the individual’s suit arguments largely based on presented money history the later enacted four- a state taken from him lative pro by must be seen as a in violation of the amendment fourteenth teenth eleventh amendment’s repeal self-executing pro of the If no tanto amendment.4 tan- provides: Congress filed, Section 5 “The Jagnan- shall have time this suit was 1. At the enforce, power by appropriate legislation, Guyana, and thus the were citizens dans provisions this article.” applicable this suit amendment was eleventh Bitzer, Fitzpatrick v. its literal terms. Cf. in - demonstrated, Roney ably Judge 4. As once -, 2666, 2672, -, monetary sought that the relief it is determined J., L.Ed.2d-,-(Brennan, concurring sought to be here is in effect recovered from judgment). state, Gay cf. Alliance v. Goude- lock, (1976) (Goldberg, 1084-85 536 F.2d Jacobs, The Eleventh Amendment and 2. See C. J., dissenting), the eleventh amendment stric- Note, Immunity (1972); Sovereign 64-67 “The in Edelman are not tures reaffirmed avoidable Court, Term,” 88 Harv.L.Rev. pro repeal ground tanto short of the 43, 243, 246-47 eleventh amendment the fourteenth amend- waiver, ment. As to there has been no “clear found, every repeal violation, can be then the full vindi- fourteenth amendment be- rights of fourteenth amendment cause cation such type violations often reflect overreaching tempts all upon govern- contingent affirmative con- must Accordingly, ments. the fourteenth amend- legislation under section 5. gressional promise protection of full ment’s of individ- slate, writing Were I on clean I would rights might ual remain unfulfilled in many of the hold that section 5 fourteenth only path cases were section 5 the around insufficient to insure the full amendment is of the eleventh. the limitations sought potency rights protected to be conflict between fourteenth and by section 1 of the fourteenth amendment. eleventh amendments should not be the framers I have no doubt that and ratifi- only question as a understood allocation great ers of the fourteenth amendment had powers between the state and federal faith in inclination and ability sovereigns. Although clearly it is appropri- to enforce Congress rights guar- federal the sovereign ate for the federal to muscularize against by the states the anteed fourteenth potency the of the fourteenth amendment subsequent In view of the amendment. through repeal selective of the eleventh interpretations of the fourteenth amend- amendment, Fitzpatrick Bitzer, see v. su- ment, however, it would be ironic indeed pra, requires primacy rights of individual rights guar- were the full vindication of the than, section 5 more for full and lasting against anteed the states to be seen as strong effectuation. Absent countervailing contingent upon legislative affirmative ac- cases, indications from I tion of “The State.” hold that in situations like the one amendment, through The fourteenth the us, the fourteenth before amendment of its history of our country, constitutional has own force has repeal acted to the eleventh great absorptive powers. demonstrated pro amendment tanto. properly That amendment is read today as Judge Roney As demonstrated, how- having incorporated, protection for the ever, such countervailing indications are not state, the individual the the funda- absent. The emanations from Eldeman and rights mental enumerated in the Bill of Fitzpatrick make it seem very unlikely that Thus, Rights. the fourteenth amendment a majority present Supreme Court protects against, individuals alia, inter the would sustain a holding that the fourteenth same types arbitrary and unfair acts on amendment, force, of its own represents a part the government of state that originally pro repeal tanto of the eleventh amend- prompted Rights’ the Bill of protection for ment. Edelman's Shapiro discussion of individuals the government. Thompson prior summary affirmances Congress cannot realistically be expect- weighing must be seen as heavily against provide ed to fully' adequate remedies for Further, the likelihood of such a holding.6 declaration of the state’s intention to submit its Although great difficulty I have with a con- problems fiscal to other courts than those of its struction of the Eleventh Amendment which creation,” own Great Northern Insurance Co. v. acknowledges jurisdiction the federal court’s Read, supra, 54, 877, 322 U.S. at 64 S.Ct. at merely of a case and restricts the kind of quoted approval Jordan, with in Edelman v. may grant, relief the federal court I must supra, 415 U.S. at 94 S.Ct. 1347. The recognize that it has been so construed in “equitable argument restitution” is foreclosed Edelman v. . . and that Company Department Ford Motor language opinion of that would seem to cover Treasury, 65 S.Ct. 89 L.Ed. this case. interpreted in as Edelman and cited at-, -U.S. 96 S.Ct. at 49 L.Ed.2d at Fitzpatrick. in - (footnote omitted). and citations Once I 5. 394 U.S. 22 L.Ed.2d 600 acknowledged, Judge Roney, have with that the language of Edelman “would seem to cover this case,” Stevens, I am not so free as Justice expressed by 6. The concerns Edelman about argue language that Edelman should be Stevens, concurring judg- in Mr. Justice only light holding. read of its narrow Fitzpatrick, apposite my seem di- lemma here: have been limited with the “thresh later enact- Fitzpatrick concern authorization,” Fourteenth ment of the Amendment congressional fact of old —_ at that such a -, the extent limitation is neces- at v. Jor at -, sary purposes Edelman to effectuate of that quoting L.Ed.2d implicit support to strong dan, supra, lends fact, threshold without view that at 694 n. 1371 n. amendment of the eleventh strictures Indeed, at 690 n. 2. L.Ed.2d the Court absolute, interpreted to be likely are case, conceivably could find in the instant Edelman.7 under “equitable argument which the restitution” strong, a narrow compel- seems and most opin- recent Supreme Court’s When in which ling situation the accommodation implicitly, if indicated firmly, so have

ions policies of the fourteenth between the Justices would an- majority how and the eleventh amendment amendment question, constitutional important swer potency lie on the side of full must simply free this level is not court at fourteenth amendment. formally open question note those indica- contrary to decide then agree I must Again, Judge with legis- and the grounds policy on the tions strongest far the Roney indications amendment. history of the fourteenth lative ultimate are accommodation then, submissive, as I must be Obeisant present Supreme reached Court will these emanations any exceptions not include for in situations Judge Roney in Court, join with I must which the fourteenth amendment acts as a that, Congressional autho- holding absent self-executing pro repeal tanto of the elev- rization, jurispru- the current state proscription enth amendment’s on retroac- recovery retroactive precludes dence recoveries from the money tive states. Un- treasury by an the state damages from otherwise, Supreme til the Court advises us individual, individual has even when that the full we must hold remedies which state, damage, to his has proven might implied under the fourteenth rights. amendment his fourteenth violated require activation by Congress amendment through legislation, section 5 aby this, empha- I also wish to Having said all through express waiver. herself open Supreme for the Court to it is size that holding today without overrul- our reverse important This most issue be fron- cases. As Mr. Justice prior of its ing tally authoritatively addressed and resolved dissent, noted, in Edelman: Marshall or in some in Rabinovitch other ease in the question certainly merits [Tjhere has been no determi- future. . near action is definitive atten- that state direct and Court nation in this case Through concurring opinion, the Fourteenth I under tion. unconstitutional Thus, necessarily supplication a note of that the Court sound Amendment. wisdom might rejecting the States’ Elev- consider the not decide whether does sovereign immunity implications of Edelman that we have enth at-, following language Fitzpatrick, -U.S. also 96 S.Ct. at 49 L.Ed.2d at Roney, suggests quoted by Judge that the case assumption that without on the was decided A Court decision that the four- legislation a state’s eleventh amend- self-executing section acted as a teenth amendment impenetrable: immunity Edelman is pro repeal under eleventh would not tanto Fitzpatrick necessarily render section 5 Congress may, in . . We think superfluous, certainly holding but would dimin- “appropriate legislation” determining what is holding. Fitzpatrick importance of that enforcing provisions ish the purpose for the significant Amendment, provide pri- situations when the would remain the Fourteenth Congressional legislation Section 5 violation States or state officials suits vate necessarily constitutionally impermissible constitute a did not violation of the which are itself. fourteenth amendment Cf. Katzenbach Edelman v. su- See other contexts. Department Morgan, pra; of Trea- Co. v. Ford Motor sury, supra. L.Ed.2d 828 controlling, and holding found

eleventh amendment been modified to necessary fully

the extent to effectuate the

sweeping fourteenth mandate

amendment. A. Smyth, Donald Staff Counsel for In- Brazoria, Tex.,

mates, for petitioner-appel- lant. Idar, Jr., Gavia,

Ed Paul R. Asst. Attys. Gen., Austin, Tex., for respondent-appellee. Bobby GRAY, Petitioner-Appellant, Dean Before AINSWORTH,. CLARK and RO- NEY, Judges. Circuit ESTELLE, Jr., Director,

W. Texas J. PER CURIAM: Corrections, Department of Bobby Dean Gray appeals from a denial Respondent-Appellee. corpus Gray habeas relief. was convict- No. 74-3977 in Harris County, Texas, ed in 1963 after a Summary Calendar.* the jury trial before for the offense of assault; robbery his sentence was 45 Court of Appeals, United States years. corpus his habeas application Fifth Circuit. Gray contends that he was denied proc- due Sept. by being ess required of law to wear prison

garb during his trial. The federal district relief, holding court denied that the decision jail to be tried clothes was a conscious appellant’s one reached attorney as part trial tactics. We affirm. recent United States - Williams, decision Estelle v. -, 48 L.Ed.2d disposition There, controls of this case. plurality opinion of the Court held: the failure to make objection being court as to tried in such clothes, for reasons, is whatever sufficient negate presence compulsion necessary to establish constitutional violation. at-, (footnote Id. 96 S.Ct. at 1697 omit- ted). concurring justices Two emphasized attorney the defendant’s in the case legal realized factual and basis for an objection to an jail clothes, accused’s trial in objection but chose to raise that as a result conscious trial tactics. As the stated, plurality had Cir.; Enterprises, Casualty Isbell see al., Inc. v. Citizens Co. of New * Rule York et Cir., 431 F.2d Part I. notes held on the which problems arise when mented that when a three-judge court denies a area, noting working juris- in this that “the plaintiff injunctive relief grounds on three-judge courts and appellate of diction which, sound, if justified have dis- arising their jurisdiction from decisions is a solution of the court as to plaintiff, area jurispru- and fluid of our treacherous request or a refusal to the convention of Mathews, 543, Wernick dence.” 524 F.2d three-judge a initio, court ab review of (5th 1975). Cir. 545 the denial available only in the court of Supreme attempted the Court Last term appeals. the law in confused In clarify area. Gonzalez Automatic Employees Credit cases, Employ- Gonzalez v. Automatic two Union, supra, 101, 419 U.S. at 95 S.Ct. at 90, Union, supra, 419 95 ees Credit U.S. 296. 289, (1974), MTM, 42 249 L.Ed.2d S.Ct. later, Three months MTM, in Inc. v. Bax- 799, Baxley, 420 95 Inc. v. U.S. ley, supra, 43 (1975), the 636 Court restricted 43 L.Ed.2d L.Ed.2d the again Court con- juris- Court scope Supreme appellate the jurisdiction sidered the reach of its under 1253 to situa- § diction under U.S.C.A. Directly addressing question § injunctions. involving denial tions Gonzalez, in Court, reserved with Jus- Gonzalez, unanimously the Court held concurring White only tice in the result and appeal an an jurisdiction Douglas over from dissenting, Justice held that direct provides: ing any required by Congress § 3. 28 U.S.C.A. Act of to be law, heard and determined a provided by any district court of Except as otherwise judges. may Supreme three party appeal to the Court granting denying, or after notice and an order parte Metropolitan Co., Ex See Water interlocutory hearing, permanent in- an or L.Ed. action, junction proceed- in civil suit or ty which court, confronted the three-judge three-judge court order lies from a appeal appealability must be only when the or- considered as injunctive relief denying from an issue “within the prov- decisional the merits of the constitu- is based on der of a three-judge ince” court. attack statute. There- tional MTM, three-judge Inc. fore, since MTM, Applying presents Inc. test the suit under the comi- had dismissed similar difficulties. It is clear that the or- Harris, Younger v. ty doctrine denying der reimbursement was not based (1971), and 27 L.Ed.2d 669 on a resolution the merits of the consti- case, the the merits of the injunctive not reach claim for which did tutional relief over jurisdiction sought. Again, it lacked a plausible ruled that Court argument can be made that in this case the appeal. the direct closely issue is so reimbursement related to Supreme each case the Although in constitutionality question was meant to limit its re- decision Court’s appeal statute that the of the order denying practical effect of under view reimbursement should be heard the same particular situa- two cases differ appeal forum that would hear an involving tions. constitutionality of the statute. Gonzalez, question Supreme Under Moreover, had the appealed state officials appealability power turns on the three-judge grant injunctive court’s single judge. district If a possessed by a relief, greater we would confront even con- injunction three-judge court denies ceptual problems. Such a situation would province the decisional ground within hypothetical present suggested by Jus- three-judge single judge, review the Douglas MTM, Inc., his dissent tice appeals. in the court of denial must be a strict whereby reading under of the new contrast, MTM focuses on whether the By standards, fragmented a case could be three-judge injunc- court’s denial of an split pieces purposes into of appeal. 420 in a grounded tion was decision on 807, 95 grant- U.S. at S.Ct. 1278. The order merits. constitutional injunction ing appealed would be direct- Term, 89 Harv.L. Court: Court, ly while the same differing ap- These Rev. denying order reimbursement for excess

Case Details

Case Name: Edward R. Jagnandan v. William L. Giles, President, Mississippi State University

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 20, 1976

Citation: 538 F.2d 1166

Docket Number: 74-3467

Court Abbreviation: 5th Cir.