*1 HUTTO et FINNEY al. et al. Argued February 21,
No. 76-1660. 23, 1978 1978 Decided June *2 Court, in which BkeNNAN, J., opinion of the delivered SteveNS, I of which joined, in Part JJ., and Blackmun, Marshall, Stewart, J., and Burger, C. joined, I II-A of which J., and in Parts and White, post, p. 700. J., concurring opinion, joined. BreNNAN, filed a J., Powell, dissenting part, part opinion concurring in and J., filed an Powell, dissenting portion of which J., joined, and in the C. White Burger, J., filed a dissent- JJ., post, joined, p. 704. RehNQUist, RehNQUist, post, p. joined, J., II opinion, in Part of which ing White, Taylor, Jr., Ar- L. Attorney General Garner Assistant were On brief petitioners. the cause for argued kansas, Newcomb. Alston Clinton, and Robert Bill Attorney General, Kaplan Philip E. With respondents. the cause for argued Philip McMath, Jack Holt, Jr., E. were Jack the brief him on Ralston, III, Stephen Charles Nabrit Greenberg, James M. * Lynn Walker Bass, Eric Stanley Schnapper, Court.† opinion Mr. Justice delivered Stevens penal system in the Arkansas finding After that conditions Court the District punishment, unusual constituted cruel and On appeal to remedial orders. entered series detailed peti- Eighth Circuit, Appeals United States (1) order relief: aspects challenged tioners1 two puni- days on confinement limit of 30 maximum placing paid fees attorney’s (2) an award isolation; and tive The Court Department of Correction funds. out of Younger, by Evelle J. urging reversal were filed *Briefs of amici curiae *3 General, Attorney Attorney Winkler, General, R. Chief Assistant Jack Attorney F. DeHart O’Brien, General, and Gloria P. Assistant Edward Attorneys General, Cali Golden, Deputy for the State of Patrick G. and Robinson, Attorney Stephen by Turner, General, C. fornia; Richard C. and Attorney R. Boecker Special General, and Theodore Assistant Iowa; Attorneys General, Haskins, M. Assistant for State Frederick Attorney General, R. and by Kane, Robert Melvin Shuster and P. and Attorneys Jr., Deputy General, the Commonwealth Blewitt, J. Justin for Pennsylvania. by General urging Briefs of amici curiae affirmance were filed Solicitor Attorney Days, Barnett, McCree, Walter and Dennis Assistant General W. Neuborne, Dimsey by Ennis, for Bruce States; J. the United J. Burt Emery al.; and Richard Union et and for American Civil Liberties Dimond, by Bane, Barr, Derjner, A. Paul R. Charles Thomas D. Armand Murphy, Chachkin, S. Redlich, Norman Robert A. Norman Richard J. Kohn, Lipman, Lawyers’ David M. and E. for the Com- William Caldwell Rights mittee for Civil Under Law. by Summer, Attorney General,
Briefs of A. F. amici curiae were filed Roger Attorneys Googe, Jr., Stockett, Jr., and P. M. and Peter Assistant Attorney General, Mississippi; Hill, for L. the State of and John General, General, B. Kendall, Attorney David Joe M. First Assistant and Dibrell, Rivers, Nancy Simonson, Attorneys General, Richel Assistant for the State of Texas. joins only opinion. Part I of this
†Mr. Justice White 1 Petitioners are the Commissioner of Correction and members of Arkansas Board Correction.
681
Appeals
attorney’s
affirmed and assessed
additional
fee to
appeal.
granted
services on
This it is a two earlier holding prison system that conditions in the cases Arkansas Only Fourteenth Eighth violated the Amendments.2 summary necessary for explain brief the facts is the basis the remedial orders. ordinary routine convict conditions that Arkansas
had to endure were
as “a
characterized
the District Court
Holt
completely
dark and evil world
alien to the free world.”
Sarver,
1970) (Holt II).
(ED
v.
381
Supp. 362,
F.
Ark.
amply supported by
That characterization was
the evidence.3
(ED
began
Sarver,
1969)
Supp.
This case
as Holt v.
300 F.
Ark.
I).
Talley Stephens,
Supp.
two earlier cases were
F.
[Holt
(ED
1965),
Bishop,
(ED
1967),
Supp.
Ark.
and Jackson v.
268 F.
Ark.
vacated,
1968).
(CA8
Judge Henley
floor, stalking sleeping period, their enemies. one 18-month there were stabbings, occurring I, supra, all but 1 in the barracks. Holt at 830- rape poten- Homosexual was so common and uncontrolled that some tial sleep; they victims dared not instead their and would leave beds punishments for misconduct not enough serious to result isolation punitive cruel,4 unusual,5 unpredictable.6 were and discipline “punitive It is the known as is most isolation” that present purposes. for relevant punitive
Confinement in isolation was an indeterminate An period average of time. of 4, many and sometimes as prisoners were crowded into windowless 8'xlO' containing cells no furniture other than a source of water only and toilet that could flushed from outside the Sarver, cell. v. Supp. (ED Holt 831-832 Ark. F. (Holt I). 1969) night prisoners At given were mattresses spread Although on the floor. prisoners some suffered from hepatitis infectious diseases such as and venereal disease, jumbled mattresses were removed together and each morning, spend night clinging guards’ II, bars nearest the Holt station. supra, at 377. 4Inmates were lashed with a strap wooden-handled leather five feet long Talley and Stephens, supra, four inches v. wide. Although at 687. policy so, it was not oificial to do apparently some inmates whipped were for mmor bloody offenses until their skin was Jackson bruised. Bishop, supra, at 810-811. telephone,” The “Tucker device, a hand-cranked was used to adminis ter electrical parts shocks to various sensitive body. of an inmate’s Bishop, supra, Jackson v. at 812. guards Most of the simply were inmates who had guns. been issued II, supra, Holt Although at 373. 1,000 it had prisoners, Cummins employed only guards eight who were not Only themselves convicts. two guards kept noneonvict 1,000 watch night. over the men at Supp., 309 F. at 373. While the “trusties” maintained appearance they an order, high took a toll from prisoners. the other Inmates could obtain access only medical treatment they if trusty charge bribed the of sick call. As the District Court found, it was power trusty “within the guard of a murder another inmate practical impunity,” with because trusties with weapons deadly were authorized to use against escapees. force Id., at 374. shootings” “Accidental occurred; also trusty shotgun one fired his into a crowded barracks because the inmates would turn off their TV. trusty Ibid. Another beat badly required inmaté so partial the victim Talley dentures. Stephens, supra, at 689. *5 then returned to the Id,, cells at evening. random the 832. Prisoners in isolation 1,000 received fewer than calories a day;7 their meals primarily consisted 4-inch squares “grue,” a substance created mashing meat, potatoes, oleo, syrup, vegetables, eggs, and seasoning paste into baking a and the mixture in pan. a Ibid.
After finding the conditions of confinement unconstitutional, the District Court did not immediately impose a detailed remedy of its own. Instead, it directed the Department of Correction to “make a substantial start” on improving condi- tions and to reports file on progress. I, Holt supra, at 833-834. When Department’s progress proved unsatisfac- tory, second hearing was held. The Court found District some but improvements, prison concluded that conditions re- mained II, unconstitutional. Holt Again F. at 383. Supp., the court prison offered opportunity administrators an to devise plan of their own for remedying the constitutional violations, but this time the court issued identifying four guidelines, of change areas that would cure the improving worst evils: conditions in the isolation cells, increasing inmate safety, eliminating the barracks sleeping arrangements, putting trusty end to the system. Id., Department at 385. The was ordered to rapidly move as as funds became available. Ibid.
After this order was affirmed on Sarver, 442 appeal, Holt v. F. (CA8 2d 304 1971), hearings more were held in 1972 and 1973 to review Department’s progress. Finding substan- tial improvements, District Court concluded that continu- supervision ing longer was no necessary. The held, court daily A 2,700 allowance of calories is average recommended for the male between 23 and Academy 50. National Sciences, Recommended Dietary Allowances, Appendix (8th 1974). rev. punitive ed. Prisoners in isolation are less active than average person; but a mature man who spends day lying hours a day down simply sitting hours standing approximately consumes Id., 2,000 day. calories a at 27. *6 in and remain effect prior decrees would its however, that costs attor- as award of and sanctions, well that as noted Holt v. if occurred. violations ney’s imposed would be fees, HI). (Holt (ED 1973) Ark. Supp. 194, 363 F. Hutto, decision the District Court’s Appeals reversed The Court Finney Arkansas jurisdiction, supervisory to withdraw its District Correction, (CA8 1974), 2d 194 and the F. Board (ED Supp. 251 hearings. 410 F. held a fourth set had in conditions 1976). respects, found some that, Ark. It with- court had when the seriously deteriorated since Farm, Cummins jurisdiction. supervisory drawn overcrowded in because had as court condemned 1,500. of about population now had a 1,000 inmates, housed Id., punitive in isolation cells The situation at 254-255. disturbing. court concluded either particularly was that in in condi- these cells 1973 or misjudged it had conditions Id., much at 275. There worse since then. tions had become many beds in some cells. And prisoners were twice as as violently often punitive isolation are because inmates overcrowding persecution led of the weaker antisocial, “grue” prisoners. use, practically diet was still weight it. been losing on The cells had all inmates were Id., “very Be- extent. vandalized to a substantial” assigned guards to the inadequate numbers, of their cause punitive frequently physical violence, cells resorted to isolation maintain order. nightsticks Mace their efforts to using left in isolation for their months, were sometimes Prisoners by prison depending appraised on “their attitudes as release Id., personnel.” at 275. the constitutional iden-
The court concluded that violations an order had not been cured. It entered tified earlier could confined on the number of men that placed limits required bunk, each have a discontinued cell, one days maximum sen- “grue” set 30 isolation diet, and gave The District Court tence. detailed consideration to the matter of fees and expenses, express made an finding petitioners had acted bad faith, and awarded counsel fee “a $20,000.00 paid to be out of Department of Correction Id,., funds.” at 285. The Appeals Court of affirmed and assessed an $2,500 additional to cover fees and on expenses appeal. 548 F. at 743. 2d,
I *7 The Eighth Amendment’s ban on un inflicting cruel and usual applicable to punishments, made States Fourteenth “proscribe[s] Amendment, more physically than Gamble, barbarous punishments.” Estelle v. 429 97, U. S. prohibits It penalties 102. grossly disproportionate are that States, Weems v. the offense, United 217 as 349, U. S. “ transgress well those today’s that ‘broad and con idealistic ” cepts of dignity, decency.’ civilized and standards, humanity, Estelle Gamble, supra, Bishop, Jackson v. quoting (CA8 2d 1968). prison F. Confinement a punishment an isolation cell subject is a form of scrutiny Eighth under Petitioners Amendment standards. challenge they disagree do not nor do proposition; with the District original Court’s conclusion that conditions Arkansas’ prisons, including punitive isolation con cells, punishment. stituted cruel and unusual Rather, petitioners single out that portion Court’s District most recent Department order that forbids the to more sentence inmates days in punitive than 30 isolation. Petitioners assume Court held that puni the District indeterminate sentences to always isolation punishment. tive constitute cruel unusual assumption This misreads the District holding. Court’s entirety, Read in its opinion Court’s District makes abundantly length clear that of isolation sentences was considered in vacuum. punitive the court’s words, necessarily isolation “is not unconstitutional, be, but it depending on the duration of the confinement and con- perfectly It Supp., thereof.” F. 275.8 ditions inmate particular every decision to remove obvious that indeterminate for an general prison population from the If as cruel and unusual. not be period could characterized materially different are not conditions of confinement new for the dura affecting prisoners, a from those other transfer unobjec might completely prisoner’s sentence be tion authority prison adminis within the tionable and well Fano, equally It Cf. Meachum trator. cannot length confinement plain, however, meets constitu deciding whether the confinement ignored diet A cell and a overcrowded filthy, tional standards. following Court’s Department sentence in District reads the unqualified any opinion holding that indeterminate sentence 76-page as an court solitary is unconstitutional: “The holds that confinement periods of confinement sentencing inmates to indeterminate policy of Supp., punitive unreasonable unconstitutional.” F. isolation is quite opinion, full think it clear But in the context of its we at 278. penal describing the conditions found in specific was Arkansas the court *8 paragraph “segregated confine system. Indeed, in the that same noted thing; security segregated con under conditions one ment maximum quite punitive that been described is under conditions have finement Ibid, thing.” (emphasis original). in another Department suggests that the District Court made rehabilitation The also agreement requirement. did The court note its with a constitutional expert punitive testified “that isolation as it exists at Cummins witness who today purpose, counterproductive.” and it is serves no rehabilitative that say punitive Id., went isolation “makes bad at 277. The court on to Depart- changed.” agree be Ibid. with the men worse. It must We require every ment’s Constitution not contention does Beto, prison discipline purpose. aspect Novak v. serve a rehabilitative (CA5 1971); 661, Helgemoe, 2d 670-671 F. 2d 453 F. Nadeau (CA1 1977). impose the District a new 415-416 But Court did description form the transition legal test. remarks from a detailed Its legal analysis in isolation cells a traditional conditions those condi- quoted passage simply presaged and tions. summarized the facts legal come. conclusion to
“grue” might for days tolerable a few intolerably and cruel for weeks or months. question before the trial court past was whether
constitutional violations had been remedied. The court was entitled to consider the severity of those violations assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates’ the con- diet, tinued overcrowding, rampant violence, vandalized and cells, professionalism the “lack of good judgment and on part of maximum security personnel.” Supp., F. 277 and 278. The length of time spent each inmate in isola- tion was simply one consideration among many. We find no error the court’s conclusion that, taken as a condi- whole, tions in the isolation cells continued to prohibition violate the against cruel and punishment. unusual
In fashioning a remedy, ample District Court had authority go beyond earlier orders and to each address element contributing to the violation. The District given had Department repeated opportunities remedy the cruel and unusual If conditions the isolation cells. petitioners fully had complied with the court’s earlier orders, the present might time limit well unnecessary. have been But taking long unhappy history litigation into account, justified the court was in entering comprehensive order to insure the risk of inadequate compliance.9 explained Bradley, As we' Milliken v. 433 U. S. state primary responsibility curing local authorities have viola constitutional “If, tions. obliga however authorities fad their affirmative ‘[those] judicial authority may tions . . . be invoked.’ Swann Charlotte- [v. Mecklenburg Education, 1,] Board invoked, 402 U. S. 15. Once ‘the scope equitable of a powers remedy district court’s past wrongs *9 ” broad, flexibility breadth equitable for and are in inherent remedies.’ case, remedying Ibid. the District present Court was not past. seeking effects of a in the bring ongoing violation It was to Cooperation part violation to an halt. Department immediate on the of compliance aspects may officialsand with other justify of decree elimi- con- interdependence of the supported by order is cells and producing the vandalized ditions violation. over- part, to atmosphere attributable, of violence were months growing of crowding deep-seated enmities out and to cor- help daily 30-day of will friction.10 The constant limit little presents conditions.11 the limit Moreover, rect these for the danger prison administration, of interference with prisoners himself of Correction stated that Commissioner for ordinarily more punitive not isolation should be held Id., of discretion days. Finally, than the exercise 278. of trial is because special this case entitled deference his and years experience problem with the at hand judge’s authority in a federal court’s recognition limits on a find no we of this kind.12 the Court Appeals, case Like 30-day on sentences error inclusion of a limitation compre- punitive part isolation as of the District Court’s remedy. hensive entirely appropriate safeguard future, added but it
nation of this in the any the De- postpone for Court to such until the District determination partment's progress can be evaluated. punitive The District noted “that as a class the inmates of charge they may them, particular hate those in cells harbor against prison charge employees hatreds have been in same who period Supp., for a substantial 410 F. inmates of time.” early had identified shorter sentences as As District Court possible remedy I, overcrowding Holt the isolation cells. F. Supp., limit there imposed at 834. The in 1976 was mechanical —and easily minimizing overcrowding, fore an with its enforced—method unsanitary attendant vandalism conditions. 12See, II, g., Holt 309 Supp., e. at 369: F. Court, however, inquiry question
“The to the of whether limited in its rights being the constitutional and with not of inmates are invaded Penitentiary The Court is not whether the itself is unconstitutional. questions judicially analysis with in the are addressed concerned last may legislative judgment. practice A be bad and administrative necessarily standpoint penology from the be forbidden Constitution.”
II Attorney repre- General of has Arkansas, whose office petitioners throughout any litigation, sented contends prohibited by award of fees is the Eleventh He Amendment. argues Appeals incorrectly also that the of Court held that by Rights Attorney’s fees were authorized the Civil Fees of Awards Act 1976. We hold that District Court’s award adequately supported by finding bad faith and that the supports by Appeals. Act the additional award the Court of A. The District Court Award
Although Attorney argues finding General that the bad faith does not overcomethe State’s Amendment Eleventh protection, question accuracy finding he does not by approved by made Appeals.13 the District the Court question losing
Nor he does the settled rule that a litigant’s may justify bad faith fees allowance of to the prevailing party.14 merely argues requir- He order award, In affirming Appeals chiefly the Court of on relied the Civil Rights Attorney’s expressly Fees Awards Act of but it also noted fully supports that “the finding of record that the district court justified conduct of the state officials the award under bad faith exception Alyeska [Pipeline enumerated in v. Service Co. Wilderness So ciety, 421 U. F. 2d 240].” n. equity unquestioned An power attorney’s court has to award fees against party by delaying who shows bad faith disrupting litigation or hampering Alyeska Pipeline enforcement of a court order. Service Co. v. Society, 240, 258-269; Christiansburg Wilderness Garment EEOC, Co. 412; v. Co., 434 U. S. Inc., Straub Vaisman & 540 F. 2d (CA3 1976); 598-600 (attorney’s cf. (g) Fed. Rule Civ. Proc. 56 fees be against party filing summary awarded judgment affidavits faith or “in bad solely for the purpose delay”); (a) (4) (motions Fed. Rule Civ. Proc. 37 compel discovery; prevailing party may attorney’s fees). recover judicial award authority vindicates resort without to the more drastic sanc contempt tions available prevailing party for court and makes the whole expenses opponent’s obstinacy. caused his Cf. First Nat. Bank Dunham, (CA8 471 F. 1973). 2d 712 course, Of fees can be also part awarded as contempt penalty. a civil See, g., e. Toledo Co. Scale public from funds violates paid ing that the fees *11 Eleventh Amendment. Young, 123, 209 U. in Ex S. parte
In the decision landmark from orders giving, although prohibited that, held Court officials enjoin could state directly federal courts State, to a Jordan, 415 in Edelman capacities. And v. their official grants the Amendment when the Court held that monetary relief, immunity from retroactive an States immune officers are not principle that state reaffirmed the difference relief. Aware that prospective injunctive from many “will not in prospective relief between retroactive and id., day night,” at between instances be that did that distinction emphasized Edélman costly fed- obey obligation their to immunize the from States “ancillary” to compliance The cost eral-court orders. Id., 668.15 enforcing federal law. prospective order be relief cannot prospective retroactive and The line between prospec- effective enforcement rigid it defeats the so relief. tive In principle. application of present requires case Young Ex parte under
exercising
prospective powers
their
issuing
to
Jordan,
are not reduced
v.
federal courts
Edelman
compliance.
hoping'for
officers and
injunctions against state
Many of the
may be enforced.
injunction
issued,
Once
an
financial
weapons involve
enforcement
court’s most effective
for
to
contempt prosecution
A
“resistance
criminal
penalties.
or a
jail
result
term
may
lawful
.’ . . order”
court’s]
[the
contempt proceedings
(1976 ed.). Civil
18 U. C.S.
fine.
.401
United States v.
jail term or fine.
yield
conditional
may
Delivery
Signal
Service, Inc. v.
Co.,
399;
Computing
S.
Scale
(ED
1975).
Highway
Drivers,
D. 318
Pa.
Truck
68 F. R.
very
large
example,
“Ancillary”
Term,
be
indeed. Last
costs
approved rejected
Amendment defense and
an Eleventh
this Court
defray
pay
help
$6
million
injunction ordering a State
almost
Bradley,
system. Milliken
desegregating the Detroit school
costs of
J., concurring judgment).
S.,
433 U.
at 293
(Powell,
Workers,
contempt may
Mine
305.
330 U. S.
Civil
compensates
punished by
fine,
also be
remedial
opponent’s
of his
injunction
who
for the effects
party
won the
Range
Id.,
Gompers v. Bucks Stove &
noncompliance.
304;
Co.,
If
agency
refuses to adhere to a
a state
most effective
penalty may
court
a financial
order,
of federalism
insuring compliance.
principles
means of
surely do not re
inform Eleventh Amendment doctrine
only by sending
their
courts to enforce
decrees
quire federal
im
jail.16
power
intrusive
state officials to
The less
high
ancillary
federal court’s
properly
fine
treated
to the
pose a
power
injunctive relief.
impose
faith
attorney’s
fees for bad
case,
the award
imposed for civil
fine
purpose
served
as a remedial
same
*12
authority over a
Court’s
contempt.
vindicated the District
It
motive
litigant. Compensation was not the sole
recalcitrant
court said
fee,
in
the
award;
setting
for
the amount
the
coun-
compensate
no
adequately
“make
effort to
that it would
time that they
or for the
they
for the
that
have done
sel
work
court
Supp.,
410 F.
at 285. The
spent on
case.”
have
the
“the allow-
however, because
“substantial” fee,
did allow a
in
Department
to act
such a
may
thereof
incline the
ance
prisons
about
the
protracted litigation
manner that further
to distin-
Ibid.17
We see no reason
necessary.”
will not
Amendment, 88
L.
Attorneys’
and the
Harv.
Note,
Fees
Eleventh
See
1875,1892 (1975).
Rev.
any
event
compensatory
does not
the
effect
That
award had
pri
compensates a
contempt,
it
a fine for civil
also
distinguish
from
Gompers
consequences of a contemnor’s disobedience.
party for the
vate
Moreover, the Court has
Range Co.,
Instead of award the defendants capacities, their official directed District Court that “to be paid Department fees are out of of Correction funds.” Although Attorney objects Ibid. form General purpose no useful order,19 would be served that requiring it be recast different language. previously ap- We have proved comparable directives that in their impact were actual on the pausing significance State without to attach to the used if language might District Court.20 Even it have footing; federal order stands on the powers, same like other enforcement it integral grant prospective to the court’s relief. Attorney argued large General has this award was so unexpected that budgeting process. so it interfered with the State’s Although prohibit attorney’s the Eleventh Amendment does not fees awards faith, for bad determining counsel moderation in the size of the giving adjust award or in budget paying the State time to before Jordan, full amount of the Cf. Edelman fee. n. case, however, timing put issue; the award been has not necessary nor has the claimed larger State was award than prior enforce the court’s orders. Attorney We do not understand urge General to the fees *13 should personally; have been awarded the officers would be a way remarkable to treat Attorney individuals who have relied on the represent throughout their litigation. General interests 20 Bradley, supra, In Milliken v. requiring we affirmed an order pay state treasurer to substantial sum litigant, though to another even opinion the explicitly District Court’s recognized that “this remedial decree paid by taxpayers City will be for the of Detroit and the State of Cert, Michigan,” App. to in Bradley, 1976, Pet. Milliken v. O. T. No. 76-447, pp. 116a-117a, though and even Appeals, the Court of affirm ing, stated that “the District Court ordered that the State and Detroit pay Board each one-half the Bradley costs” of Milliken, relief. 540 F. (CA6 229, 1976). 2d 245
693 the of Department form to omit the reference to been better not reversible language surely of that Correction, the use error. Award Appeals The Court
B. of Appeals, Court of losing litigants Petitioners, as counsel for $2,500 to pay ordered to an additional were F. appeal.” their on this prevailing parties “for services Depart- expressly direct the does not 2d, at 743. order are petitioners but since pay of the award, ment Correction represented they are and since capacities, their official sued will be the award Attorney is obvious that General, this order is It is also clear that with state funds. paid instead faith. It is founded by any finding of bad supported Attorney’s Awards Pees Rights of provisions on the the Civil 42 U. C. 90 Stat. S. 94-559, of 1976. Pub.. No. L. Act under that, The Act suits ed.). declares (1976 § courts certain other federal statutes, § S. C. attorney’s fees “as parties reasonable may prevailing award of costs.”'21 part Bitzer, 427 U. S. Fitzpatrick clear in this Court made
As immu- the States’ Congress plenary power to set aside has Fourteenth enforce the nity relief in order to from retroactive undoubtedly Congress it passed Act, When Amendment. fee awards authorize power exercise that intended to Act declares: This provision 1978,1979, any proceeding or to enforce “In action §§ 1981-1983, 1985, C. U. S. 1980, and Revised Statutes [42 §§ seq. (1976 1681 et C. 1986], Public Law 92-318 § title IX of [20 or on behalf of proceeding, any action or ed.)], or civil provi- charging of, a enforce, a violation America, United States seq. 1 et C. Code Internal Revenue [26 sion of United States U. S. C. Rights Act ed.)], (1976 [42 or title VI the Civil prevailing discretion, allow court, in its seq.], et §2000d attorney’s part fee as a reasonable States, other than the United party, the costs.” Stat.
694
payable by the States when their officials are sued in their offi- capacities. cial The Act itself It could not be broader. applies “any” brought action to enforce rights certain civil laws. It no an exception contains hint of defend- States ing injunction actions; indeed, primarily applies to the Act g., laws passed specifically e. action. 42 See, to restrain state U. S. C. 1983.
The legislative history is is equally plain: intended “[I]t attorneys’ other like items of will fees, costs, collected directly either from the in his official official, from capacity, funds of his or his or agency control, under from the or (whether agency State local government or not or government is Rep. 94^1011, a named No. party).” p. (1976) (footnotes omitted). Report The House accord: greater pro- “The governments resources available to ample vide an base from to the which fees can be awarded plaintiff prevailing in suits against governmental officials entities.” H. Rep. p. Report R. The 94U1558, No. adds in a footnote “Of 11th course, that: Amendment not a bar to the awarding counsel fees state govern- Fitzpatrick Id., v. Bitzer.” ments. Congress’ at n. intent expressed was rejected deeds words.- as well as It attempts least two to amend the Act and immunize state and governments local from awards.22 Attorney
The General quarrel does estab- not with the rule in Fitzpatrick v. Bitzer, supra. lished argues Rather, he plain these legislative indications of enough. intent are view, Congress his statutory must express language enact making the States liable if abrogate it wishes to their immu- nity.23 Attorney points General out that this Court has Cong. (amendment See (1976) Helms); Rec. 31832-31835 of Sen. (amendment id., 32296 and id., Allen). 32396-32397 of Sen. aso See (amendment at 32931 of Sen. Seo-tt). William Attorney General also contends that the fee award should not apply cases, one, such pending passed were when the Act was
695 liability on impose to retroactive the States sometimes refused statutory man extraordinarily explicit absence of an Public & Employees v. Missouri Health date. See Welfare Jordan, Dept., 411 also Edelman v. S. 279; U. S. see liability preliti- for But these eases concern retroactive 651. litigation incurred in gation expenses conduct than rather only seeking prospective relief. attorney’s of the costs.” imposes part
The Act
“as
fees
regard for the
traditionally
without
Costs have
been awarded
immunity.
practice
Amendment
States’ Eleventh
in this
against
goes back to 1849
awarding costs
the States
North Dakota
Iowa,
681;
Just as a federal
litigant
court
treat a State like
other
when it assesses
may Congress
so
costs,
also
amend its defini-
tion
taxable costs and have the
apply
amended class of costs
to the
it
States,
expressly
as
does
all other
without
litigants,
stating
abrogate
that it intends to
the States’ Eleventh Amend-
immunity.
ment
For it would be
require
express
absurd to
an
prospective relief,
State defends a suit for
exempt
it is not
from the
ordinary discipline of the courtroom.
25
specific statutory authority
“If
needed,
an award of
it
is
[for
costs]
is
provides
found in 254 of the Judicial Code
It
....
that there
shall
against
losing party
'taxed
every
in each
pending
and
cause
in the
Supreme
printing
Court’ the
except
cost of
the record,
judgment
when the
is against
exception
the United States. This
of the United States in the
emphatic
every
section with its
inclusion of
litigant
other
shows that a
litigant
state as
pay
printing,
must
loses,
every case,
costs
if
civil
criminal. These
large part
costs constitute a
of all the costs. The
certainly
pro
authority
section
constitutes
statutory
impose
tanto
costs
generally against a state if
S.,
defeated.”
U.
275
at 77.
orderly
Because the
justice
interest
equally
and evenhanded
pressing
courts,
Creamery
in lower
Fairmont
has
widely
been
understood
any
foreclosing
objection
Eleventh Amendment
assessing
against
costs
a State in all
See,
g.,
federal courts.
e.
Trustees,
Skehan v. Board
(CA3 1976)
F. 2d
(en
banc);
States,
Utah v. United
reference state category is added to expert fee, witness’ such as taxable costs.27 to authorize decision ample precedent Congress’
There England, In of costs. attorney’s an item an award fees as Ticonic Nat. Sprague client,” “as between costs solicitor have routinely today, and are taxed Bank, 307 S. Wil Co. Alyeska Pipeline 1278. Service been awarded since although In America, Society, 240, 247 derness n. large number routinely there are a awarded, fees are costs in which allowable statutory and common-law situations statutory defini federal Indeed, counsel fees.28 include Civil before the War costs, enacted tion of which was attorney’s certain fixed includes today, remains in effect Creamery itself, Fairmont fees as recoverable costs.29 attorney’s statutory fees these Court awarded requiring a formal *17 for consistent with the reasons This conclusion is abrogate Amendment Congress’ the States’ Eleventh intent to indication imposed requirement Congress has not immunity. The insures that Employ thought. careful fiscal on the States” without “enormous burdens 279, See Dept., 411 ees Missouri Public Health & U. S. Welfare Regula Litigation, Intergovernmental in Taxation Tribe, Immunities of costs—limited tion, 682, Harv. L. 695 But award 89 Rev. litigant expense of for the partially compensating a successful as is to do any Thus we hardly hardship his for a State. suit —could create such expand analysis Congress if were to1 suggest that be not our would the same litigation expenses. beyond category concept traditional of costs 28 to award attor allowing courts we 29 federal In listed statutes Co. v. ney’s Alyeska Pipeline Service Wilderness in fees certain suits. See define of these statutes Society, S., 260-261, 421 at n. 33. Some U. fees from other costs, separate attorney’s while others fees as an element of C. (b) 29 S. with U. 42 C. 2000a-3 Compare costs. taxable U. § (1970 ed., V). 216(b) Supp. § 29 admiralty appeals ($100 fees for (a) S. C. See U. merely the awards now $5,000). Inflation has made involving more than parties has against all allowing principle such awards nominal, but the force. undiminished along of Minnesota with other costs,30
State
taxable
even
though
governing
nothing
statute said
state lia-
about
attorney’s
much
bility.
single
It
too late to
fees as
out
litigation
the one kind of
cost whose
not be
recovery
Congress
express statutory
authorized
without an
waiver
immunity.31
the States’
Creamery
Minnesota,
File of
of this
the Clerk
Fairmont
Co. v.
O. T.
No. 725.
Attorney
argues
expressly
General
the statute itself must
abrogate
immunity
liability, relying
the States’
from retroactive
on
Employees
supra.
Dept.,
v. Missouri Public Health &
Even
Welfare
dealing
costs,
if we were not
with
such
an item
reliance would
misplaced.
Employees,
permit
the Court refused to
individual
backpay
against
suits
state institutions because
“found
the Court
history
word in the
purpose
Congress
indicate a
[statute]
possible
make it
a citizen
for
of that State or another State to sue the
S.,
State
the federal courts.” 411
285. The Court was careful
add, moreover,
reading
of the law did not make the statute’s
Secretary
inclusion of state
meaningless.
institutions
Because the
of Labor
empowered
bring
against violators,
was
suit
covering
the amendment
state
him
gave
authority
institutions
to enforce the statute
them.
Id., at 285-286.
present
Act,
contrast,
history
directly
focusing
has a
on the
question
liability;
Congress
firmly
state
rejected
considered and
suggestion that States should be
from
Moreover,
immune
fee awards.
part
Act is not
of an
regulatory
offering
intricate
scheme
alternative
obtaining
methods of
relief.
liability
If the Act
impose
does not
attorney’s
States,
fees on
meaning
respect
it has no
with
to them.
Finally, the
Employees
claims asserted in
Jordan,
and in Edelman v.
Congress’
were based on a
power.'
statute
I
rooted
Art.
See
Employees, supra,
(claim
at 281
based on Fair
Act,
Labor Standards
seq.);
29 U. S. C.
et
v. Jordan, supra,
(under-
Edelman
§201
*18
lying claim
Security
provisions
based on Social
dealing
Act
with aid to
aged, blind,
disabled, 42
1381-1385).
U. S. C.
case,
In this
as in
§§
Fitzpatrick
Bitzer,
the standard in a case to enforce Fourteenth Amendment, enough no doubt that the Act is clear to authorize we have attorney’s payable by award of fees the State. Attorney hardly position argue in a the fee General is State, who awards should be borne not but individual officers throughout litigation. protect have relied his officeto their interests on Nonetheless, dissenting apparently our Brethren would force these officers attorney’s bear the award fee award alone. The Act authorizes though appeal faith; even was not taken bad no one denies that. only Appeals’ proper, question award is thus and the is who pay view, protects will it. In the dissenters’ the Eleventh Amendment liability. immunity the State from But the State’s does not extend to apparently the individual The dissenters would officers. leave the officers pay award; whether the officials would be reimbursed is a decision “may safely . . . left Post, State involved.” at 716 J., dissenting). manifestly This is when, here, unfair (RehNQUISt, personal no interest individual officers have in the conduct of the State’s litigation, and it defies this Court’s insistence in a related context that liability imposing personal in the absence of bad faith cause state timidity.” to “exercise their discretion with officers undue Wood v. Strick land, *19 Attorney recognized that suits Congress
Like the General, relief are brought against injunctive individual officers itself. practical purposes against for all suits the State attorney’s in suits history makes clear such legislative directly from generally obtained “either fee awards should or agency his in his from funds of official, capacity, official government or from the or local control, under his State party) named is a (whether agency government or not the official p. against Awards Rep. 94-1011, No. S. not to be affected contrast, were capacity, his individual continue to be they suits would injunctive by statute; recog- standard traditional bad faith only awarded “under the Id., Alyeska,.” at 5 n. Supreme Court nized defendants indication named There is no case that Appeals. Conse- before the Court litigated in bad faith entity intended of Correction is the quently, Department award. the burden of the counsel-fees by Congress to bear accordingly Appeals judgment of the Court affirmed. ordered.
It is so Brennan, concurring. Mr. Justice opinion separately I in the Court and write join fully Powell. made Mr. Justice only points to answer I there is no reason in this with the Court that case agree (1976 ed.), § decide more than whether C. S. attorney’s against fees States. itself authorizes awards Powell that unless view, however, Mr. Justice takes the damages against C. 1983 also authorizes awards § not of the Eleventh are requirements Amendment States, Jordan, Citing he (1974), met. Edelman v. damages not 1983 does authorize awards § concludes and, accordingly, 1988 does either. the State number of difficulties with this but syllogism, There are a Jordan, striking its reliance on Edelman v. a case most seriously foundations would seem to have been whose under- *20 Bitzer, 427 in v. U. S. by holdings Fitzpatrick mined our later City Dept. Social Monell v. New York (1976), 445 and (1978). 436 Services, U. 658 S. rejected be that in Edelman gainsaid
It cannot this Court create a § 42 U. C. 1983 “was intended to argument S. merely immunity waiver a State’s Eleventh Amendment against could be under that section brought because action S., itself.” 415 U. officers, against state rather than the State decided, Edelman was we had affirmed at 676-677. When con only they when had against awards States monetary Amendment to had waived their Eleventh sented suit or Bridge immunity. g., Petty Tennessee-Missouri e. v. See, Co., Comm’n, Terminal B. 359 275 Parden v. U. S. (1959); Health & Missouri Public Employees 184 v. (1964); 377 U. S. Edelman, we sum Dept., 411 U. S. Welfare “question our cases as follows: The marized the rule of found was Amendment or consent under Eleventh waiver Congress had intended cases on in to turn whether [our] in and whether the State immunity question, abrogate by activity] authorized regulated by participation [a abrogation of consented to the [Eleventh had effect Congress very S., at 672. At immunity.” U. Amendment] unless had Congress not found could be such consent least, literally of defendants which “a class suits authorized from that jump short Ibid. It was a includes States.” was then 1983—which § conclusion that to the proposition, who those only persons among to include natural thought Pape, Monroe S. defendants, see v. party could might of statutes that not in the class (1961) 187-191 —was This is immunity. Amendment Eleventh to a waiver of lead the author by Me. up best summed Rehnquist, Justice Bitzer, Fitzpatrick Edelman, for the Court opinion in his supra: upon statutes none of the relied concluded
“We any contained authorization Edelman plaintiffs Rights The Civil as defendant. join a State Congress Monroe been held 1983, had § 42 U. C. Act of cities to exclude (1961), 187-191 Pape, ambit; from its corporations municipal other include been intended have case, could not being at 452. S.,U. parties defendant.” States decided ago, Two Terms we has stood still. But time recent time in the Bitzer, which for first Fitzpatrick v. question “the asked us to decide history of the Court Amendment relationship between Eleventh Four- under Congress power granted enforcement *21 concluded Id,., There we 456. teenth Amendment.”1 at of state principle Amendment, and that “the Eleventh limited necessarily . embodies, . . are sovereignty which Amend- 5 of the Fourteenth provisions § enforcement hold: And went on to (Citation omitted.) we ment.” Ibid. legis- 'appropriate “Congress may, determining in what provisions purpose enforcing lation’ for the private suits provide for Amendment, Fourteenth imper- constitutionally which are States state officials Ibid. missible in other contexts.” Services, City Dept. Social New York Then, Monell v. Congress we held that supra, only ago, decided weeks statute now 1983—a § Act of passed Rights 1871, Civil see Amendment, Fourteenth pursuant 5 of the § enacted and other municipalities intend 436 IT. 665—“did S., at among persons units to be included those local government holding alone would Id., 690. This applies.” whom 1983 § Fitzpatrick’s vitality of to vitiate the appear enough to be of Edelman.2 explanation
1 parte Ex Fitzpatrick noted, the Court in had been before this issue As Virginia, (1880). 339 100 S.U. 2 exempt Congress questioned whether, had meant It can also necessarily 1983, follow that liability it would municipalities from under §
703 in Monell conclu- Moreover, holding central was the 431, 16 71, 2,§ sion Act of ch. Stat. 25, 1871, Feb. used to describe provided “person” a definition of the word Al- S., § class defendants suits. not in Monell § to consider whether though we did have damages for their properly construed makes States liable inescapable seems violations, constitutional conclusion defend- that, very least, among possible at the 1983 includes Edelman literally ants “a class . . . which includes States.” Jordan, immediately from v. at 672. This follows S.,U. language of the Act of Feb. 1871: 'person’ all word passed acts hereafter . . .
“[I]n . . politic corporate to bodies and . applied extend and be unless the context words were intended shows that such in a more . . .” to be used limited sense . certainly and phrase politic corporate” now, “bodies synonym “State.”
would have been the word Maurice, g., e. United States 26 F. See, Cas. (CC United
(No. 15,747) 1823) (Marshall, J.) (“The Va. C. government body politic is a consequently, States and, India, Inc. Government corporate”). also See Pfizer Monell, our our holding premise Given the essential *22 in Edelman au- Edelman holding no statute involved —that literally thorized class of against suit “a defendants appear to States,” S., clearly includes at 672—would that Fitzpatrick’s holding no longer given true. Moreover, damages Congress plenary power has to make liable States it Amendment, when it acts to 5 of Fourteenth pursuant § properly surely open question § at least an whether 1983 kinds, for relief all construed does not make the States liable Amendment. this notwithstanding the Eleventh Whether City exempt Monell York Congress also meant States. See New Services, 658, 673-674, (1978). Dept. 436 U. S. n. 30 Social appropriate consideration fact must course await so, case.3 Powell, joins, The Chief Justice
Mr. Justice with whom part.* concurring part dissenting and I opinion, I I1 join Parts and II-A of the Cburt’s While II-B’s of the Eleventh reading cannot subscribe Part permitting against counsel-fee awards Amendment as concededly statute does authority State on the that statutory immunity.” express effect “an waiver States’ Ante, at 698. rejected Jordan, (1974),
Edelman v. 415 U. S. 676-677 that 42 1983 “was intended to create argument § U. S. C. immunity merely a waiver of the Eleventh Amendment State’s against under section brought because an action could be In § state rather than itself.” officers, State objection opin As I understand Mr. Justice Powell’s to the Court’s ion, squarely proposition it rests on the that a clear statement to make damages legislative history only States liable for cannot be found in but on post, the face of a statute. See at 705-706. 1983 and Act 25, 1871, applies Feb. we have statute on its face to state defend ants, enough but Mr. Justice Powell now tells us that this is not because “congressional purpose there is still an abrogate absence of in 1871 to protections of the Post, suppose Eleventh Amendment.” at 709 n. 6. I this means either that no statute can meet the Eleventh Amendment or, alternatively, clear-statement test that Mr. Justice Powell has some history may legislative undisclosed rule as to when be taken into account only liability. that works to defeat state RehNquist
*Mr. Justice join opinion Mr. Justice White opinion judgment extent dissents from the of the Court. emphasized principles post, Mr. Justice RehNquist, equitable Dayton as to limitation of remedies are settled. See Board Brinkman, Education v. Bradley, 406 (1977); U. S. Milliken v. Qn extraordinary case, however, facts of this agree 30-day I punitive with Court that the limitation on isolation was within the bounds of the fashioning ap District Court’s discretion in propriate It also is opinion, ante, relief. evident from the Court’s see only that this limitation will have a minimal prison effect on adminis *23 tration, responsibility of primarily an area to reserved the States.
705 consistent with the power, court’s remedial “a federal action prospective necessarily limited to Amendment, is Eleventh retroactive . include a . . and injunctive relief, state funds from the payment of requires which award is no (citations There omitted). treasury.” S., 415 677 at Attorney’s Fees Rights language of the Civil indication 90 Stat. 94-559, of 1976 Pub. L. No. (Act), Awards Act to sought Congress (1976 1988 that ed.), § 42 U. C. Edelman, “the holding.2 In case, that overrule of to sue class congressional of authorization threshold fact wholly literally includes absent.” which States defendants authoriza (emphasis supplied). at 672 Absent such S., to alert sufficiently clear statutory language tion, grounded impli Congress of of the constitutional every voting Member of we undermine values particular legislation, of cations by inferring Amendment served the Eleventh federalism even “place new or an intent congressional from silence Mis Employees fiscal burdens on States.” enormous Dept., & souri Public Health Welfare U. S. Reports that the defeat
706 Edelman, supra, at 672. or state instrumentalities.”
States Bitzer, Compare Fitzpatrick 445, (1976), 427 452 with U. S. supra, sensitive Employees, 284-2S5.3 But 283, at dimension, we interests of constitutional conflicting area history to substitute for legislative items of permit should not be “hesitant to explicit statutory language. The Court should Sloan, 436 awareness,” SEC presume .general congressional consequences of Eleventh Amendment 103, (1978), monetary express provision does make of a statute that recovery against the States.4 “prerequisite” Although Fitzpatrick “congressional the states that employer” “wanting in found to sue the State as was
authorization ... Employees,” S., 452, to conclusion 427 U. at this reference the Court's Employees notwithstanding as inclusion of the States that the literal statutory contexts, the employers, in certain there was a word in “not history Congress purpose possible to indicate make it to [statute] federal for a citizen of that State or another State to sue the State in the S., Edelman, S., courts.” 411 at 285. See U. U. suggested legislative changes has been that made
While it “[t]he closely paralleled changes liable under Title VII the governments state governments Act,” that made state liable under the Fair Labor Standards Baker, Amendment, 139, Federalism and the Eleventh 48 U. Colo. L. Rev. Fitzpatrick, S., comparing at 449 n. (1977), n. 152 with Fitzpatrick Employees, S., 282-283, 411 U. statute considered availability private explicit against made reference to the action Equal Oppor- governments Employment state and local event tunity Attorney bring failed Commission General suit or effect a Equal Opportunity Employment conciliation Act of agreement. (f)(1) (1970 ed., V); Supp. C. see H. R. Stat. S. §2000e-5 Rep. (1971) Rep. 92-238, pp. (1971); 92-415, pp. ; 17-19 9-11 No. S. No. Rep. 92-681, pp. (1972); 92-899, Rep. Conf. No. 17-18 H. R. Conf. No. pp. 17-18 4 “By making contrary a law unenforceable states unless a language apparent statute, intent in the were the clear statement attempts power unmistakable, rule . . limit state . ensure[s] [are] thereby structuring legislative process centrifugal allow forces greatest Congress opportunity protect interests.” states’ Litigation, Tribe, Intergovernmental Taxation, Regu- Immunities in case special Act presents maintains that The Court of costs an element fees as imposes attorney’s (i) because regard to the without traditionally have been awarded monetary liability, immunity from constitutional States’ power under enforcement pursuant to its Congress acted (ii) with Amendment, contrasted 5 of the Fourteenth *25 the Clause. such as Commerce more power general grants under for dilution persuasive justification I a ground find neither rule. the statement” “clear ground first of the Court’s the limitations
Notwithstanding to ante, unwilling ignore am 27,1 at 697 n. justification, see statute simply because the applicable principles otherwise monetary liability as an element imposes substantial question part of not been traditionally have fees of “costs.” Counsel parties against litigation expenses routine assessed the Wilder Co. v. Alyeska Service Pipeline American courts. Cf. Wiseman, 3 Arcambel Society, (1975); ness an expenses, routine (1796). Quite unlike those Dall. 306 not and is sums may involve substantial of counsel fees award litigation. mechanics of the to charge intimately a related the that counsel- assumption accept I Court’s therefore cannot the court ordinary part discipline “the fee awards are Ante, at 696 n. 24.5 room.” Federalism, About Separation of Issues in Controversies Powers
lation: (1976) (emphasis supplied). 89 Harv. L. Rev. Creamery Minne on Fairmont Co. v. places Court undue reliance decision holds (1927), support holding. That sota, S. 70 275 U. immunity prevents imposition sovereign bar of that no common-law litigation a in this party to State “when is] of costs [it Id., In was at 74. addition to the fact State Court . . . fees, no of counsel litigation, and that there is discussion party in the Creamery "did eleventh Further not mention the amendment. Fairmont appeals a long held when an individual more, the had before that Supreme Court, appeal state to the does fall case initiated prose prohibition of ‘commenced amendment’s suit eleventh within Note, Attorneys’ the Eleventh Amend against’ the states.” Fees and cuted ment, 88 Harv. L. Rev. Moreover, counsel-fee awards cannot be viewed having as Edelman, kind of on “ancillary effect treasury,” state at S., that avoids the explicit need an waiver of Eleventh protections. Amendment damages As with relief, restitutory impose an award fees counsel could substantial burden on the unbudgeted State make disburse- satisfy ments obligation stemming past (as opposed from to post-litigation) activities. It stretches the rationale of Edelman beyond recognition characterize such awards “the necessary of compliance result with decrees which their prospective terms Ibid. in nature.” In case of a [are] purely prospective budgeting can decree, take account expenditures entailed in compliance, and the State retains flexibility some in implementing decree, may reduce impact on the fisc. some state situations fiscal consid- erations induce the activity State curtail the triggering obligation. constitutional Here, in contrast, the State *26 satisfy must a potentially liability substantial without the of flexibility measure that would respect be available with to prospective relief.
The Court’s second ground application for of a diluted “clear statement” rule from Fitzpatrick stems language in recogniz ing that Congress pursuant acts to 5” of “[w]hen § the Amendment, Fourteenth “it is exercising [legislative] authority one under section a constitutional Amendment whose other by sections their own embody terms limitations on state authority,” 427 I S.,U. at 456. do not view this language as overruling, by implication, Edelmaris holding no waiver that present is quintessential 6—the § Amend Fourteenth 6 Mr. concurring opinion asserts that the Court’s Justice BreNNAN’s holding in Edelman undermined, by Fitzpatrick has been silentio, sub legislative history the re-examination of 1983 undertaken Monett. § language question Fitzpatrick from was not essential to the Court’s holding in Moreover, position ignores that case. this the fact that squarely Edelman rests on the Eleventh immunity, Amendment without of the “threshold vitality disturbing ment measure —or to sue a class congressional authorization [requirement] 672.7 S., at literally States,” includes defendants history Monroe legislative adverting to the treatment in terms that nothing itself in Monroe Pape, there is And 365 U. S. only natural "thought include supports proposition to 1983 was that § Ante, . . . party defendants persons those who could be among Congress doubts entertained because The Monroe Court held that liability Court municipalities,” the impose on “power to civil as to ... particular Act 'person’ in this was used could “believe that the word not S., in Monell itself 190, 191. As the decision to them.” include quite statutory liability municipal is illustrates, 2, supra, issue of n. see immunity. question independent of the State’s constitutional of the dispense “clear opinion appears with the to BreNNAN’s Mr. Justice not position the Court does requirement altogether, statement” politic” “Dic- today. in the It relies on the reference to “bodies embrace adequate tionary over- Act,” of Feb. Stat. Act immunity, though evidence there is no ride the States’ constitutional even congressional abrogate protections purpose in 1871 Edelman, rulings Employees But the Eleventh Amendment. Court’s “Dictionary provisions like the Act” are all are rendered if obsolete century monetary liability. necessary expose After a the States thought liable in jurisprudence, in which States were not to be of 1983 not damages, clear that the 1871 measure does override Edelman made prior Amend- give I force to our Eleventh Amendment. would Eleventh explicit legislation point. on the requiring ment decisions apparently suggests “dissenting Brethren would Ante, alone.” at 699 n. 32. officersto bear the award force [the individual] fairly questions issue, embraced within the to me that this It is not clear suggestion opinion Moreover, in the us. there no presented, is before intended that its award of fees Appeals Court of below that paid petitioners, in the appeal” would be individual “services on *27 against bar an award the the Amendment were found to event Eleventh 740, (1977). 742-743 But even 548 F. 2d Department Correction. See of nothing Court, in the Act question properly there is the were before if anyone. requires imposition liability on As of counsel-fee routine (in Monell, parties prevailing the discretion noted the Act “allows we of attorney’s losing court) fees from 1983 suits to obtain Congress supplied). S., (emphasis parties at 698-699 ...” statute, deliberately rejected mandatory favor of “a more moderate explicit join Because authorization “to a State as defend Fitzpatrick, S., U. at here, is absent ant/’ because of Act every part given can meaning be without ascribing to Congress an intention to override the Eleventh I Amendment immunity,8 dissent from II-B of the Part opinion. Court’s
Mr. Justice Rbhnquist,
dissenting.*
The Court’s affirmance of
District Court’s injunction
prison practice
against a
which has not been shown to violate
only
the Constitution can
in light
considered an aberration
of decisions as recently
carefully
as last Term
defining
remedial
Dayton
discretion
the federal courts.
Board of
Brinkman,
Education v.
Milliken
(1977);
433 U. S.
Bradley, 433
(1977) (Milliken
any
U.
II).
Nor are
of the several theories which the Court
in support
advances
its
attorney’s
affirmance
the assessment of
against
fees
taxpayers of
sufficiently convincing
Arkansas
overcome the
prohibition of the
I
Eleventh Amendment. Accordingly,
dissent.
approach
the matter
judge, guided
[which
to the discretion of
left]
course
interpreting
attorney’s
provisions.”
case law
similar
fee
Rep.
p.
H. R.
No. 94-1558,
Whether
not the
standard
Strickland,
cases like
rejected
Wood
(1975),
and n. legislative neither the Act history prevents nor a court from taking personal culpability into account the of the individual officer where government award entity would be barred the Eleventh Amendment. 8 1 do not understand the Court’s observation that the Act does “[i]f attorney’s impose liability not States, on fees meaning it has no respect
with Ante, them.” at 698 31. Significantly, n. the Court does say any part Act would be rendered meaningless without finding an Eleventh Amendment Employees, waiver. Cf. S., 285-286. joins
*Mk. Justice opinion. Part II of this White
711 I by could to be moved the feeling fail person ordinary No formerly prevailing in the the conditions Court’s recitation of I has allowed system. Yet fear that the Court prison Arkansas limiting bounds well-established beyond to be the itself moved district courts. authority federal by of remedial the exercise context in another that discretion purpose The and extent opinion last Term by the Court’s carefully defined were II, Milliken at 280-281: swpra, equitable remedies, other place,
“In the first like be determined is to remedy of the desegregation nature violation. scope of constitutional nature and Education, 402 Charlotte-Mecklenburg Board Swann v. remedy must therefore [(1971)]. The [1,] the Constitu alleged offend to condition to related The Bradley], [717,] . . . .’ Milliken tion [v. be remedial indeed the decree must [(1974)]. Second, possible nearly as designed as nature, is, must be it discriminatory conduct to victims To restore the of such in the absence they occupied have position would in devis federal courts Id., Third, conduct.’ of state the interests into account remedy take ing must con affairs, their own managing and local authorities omitted.) (Footnotes the Constitution.” sistent with holding with ante, is consistent n. that its suggests, of a remedying present effects II, because it “was Milliken to ongoing violation an seeking bring to an past. in the It was violation exercis mark. Whether suggestion is wide of the immediate halt.” This past,” in the authority “remed[y] present effects a violation ing its halt,” court’s “seeking bring ongoing to an immediate an violation language quoted in the authority remedial remains circumscribed ingenuity would and discretion anything, less from Milliken II. If text immediate required "bring ongoing an violation appear to be past.” in the “remedying a violation present effects of than in halt” quite properly refrains difficulty position Court’s is that with the *29 The District limiting Court’s order period the maximum of punitive isolation days way to 30 in no any relates to condition found offensive to the Constitution. is, stripped It when descriptive of prophylactic verbiage, doubtless rule, well designed to system assure more humane prison Arkansas, but not complying with the limitations forth in Milliken set II, supra. do dispute Petitioners the District Court’s conclusion that the inadequate overcrowded conditions diet provided for prisoners in punitive those isolation offended the Constitution, but the District Court has ordered a cessation practices. of those Court found District that the confine- ment of prisoners two single in a cell on a restricted diet days for 30 did not violate the Eighth Amendment. 410 F. Supp. 251, (ED 1976). Ark. today While the Court remarks that “the of length confinement cannot ignored,” ante, at 686, it does not find that confinement under the conditions described the District Court becomes unconsti- tutional on day. justifications 31st It must seek other its affirmance of portion of the District Court’s order.
Certainly provision is not remedial in it the sense that the victims of discriminatory posi- “restore[s] conduct to the they tion occupied would have of the absence such conduct.” Milliken Bradley, (.Milliken S. 746 (1974) I). provision sole effect of the grant is to future offenders against prison discipline greater benefits than the Constitu- requires; tion it does nothing remedy plight past may victims conditions which well have been unconstitu- A prison tional. is unlike a school in which system, students grades may the later special receive instruction compen- sate for they discrimination were subjected in the characterizing solitary from confinement period for a days excess of as a cruel and punishment; given unusual position, but a “remedial” solitary order that no such may confinement place necessarily take of a nature, prophylactic “bring and not ongoing essential to violation to an immediate halt.” has II, 281-283. Nor supra, Milliken grades.
earlier any effect had collateral petitioners’ shown that conduct been seek District Court for which the upon private actions past continuing effect so as to eliminate compensate v. Charlotte-Mecklen unconstitutional Swann conduct. See where Education, Even burg Board S.U. no may go district court relief is justified, such remedial necessary consequences than is to eliminate the further 419-420; supra, at Dayton, official unconstitutional conduct. 435- Education Spangler, Pasadena Board *30 Swann, supra, 31-32. (1976) ; justification for its affirmance only The asserted Court’s dissimilarity to remedial decrees despite the decree, an therefore is that it is “a mechanical —and contexts, other Ante, easily minimizing overcrowding.” enforced —method into n. 11. to take adequately This conclusion fails at 688 Milliken II: “the the third consideration cited account their own and local managing interests of state authorities 433 U. at 281. S., with the Constitution.” affairs, consistent practice a prohibition punitive isolation, The extended with the Consti- which has been shown to be inconsistent difficulty of the because of only can be defended tution, explicit injunction against policing the District Court’s been found inadequate diet have overcrowding expan- such But if even be violative of Constitution. where authority in a case justified could be remedial sion this is not contumacious, repeatedly been the defendants had peti- with dissatisfaction The District Court’s such a case. “make a earlier direction performance under its tioners’ Sarver, Supp. (ED 300 F. Holt v. start,” substantial conditions cannot alleviating unconstitutional on 1969), Ark. defy prepared are petitioners inference that support an District Court and not by down now laid specific orders for “the proper respect A petitioners. challenged in managing own their and local authorities of state interests II, S., Milliken affairs,” 281, requires opposite conclusion.2 enjoins practice
The District Court's order which has not been found inconsistent with only the Constitution. The ground for the injunction, therefore, is prophylactic one of assuring no unconstitutional conduct occur in the will system prison future. a unitary there management much would be to be said for such rule, but neither this any Court nor other federal court is entrusted with such a management role under Constitution.
II separate advances support sep- theories to of attorney’s arate awards First, fees this case. the Court holds taxpayers that the responsible Arkansas be held for the bad faith of their litigation officials in the before the District Court. Second, it concludes award fees in the Court of Appeals, where no bad faith, there was authorized Rights Attorney’s Civil Act Fees Awards of 1976. Pub. L. 94-559, No. 90 Stat. C. (1976 ed.). holding totally first results unnecessary *31 upon intrusion the State’s conduct its own affairs, and is the second not supportable under this Court’s earlier outlining congressional decisions authority abrogate to protections of the Eleventh Amendment.
A Petitioners do not contest the District Court’s finding that they acted in bad faith. For this reason, Court has no 2 1 judgment precautionary reserve on whether such a order would be justified where state officials have been previous shown to have violated similarity remedial orders. I also note the between this decree majority any minority” requirement “no impermissible was found Spangler, Pasadena Board Education v. (1976), U. S. 424 even though might it too been theory have defended on the it anwas easily enforceable mechanism for preventing future acts of official discrimination. to necessary showing of the nature to address
occasion under faith attorney’s fees for bad an award support Society, 421 U. S. Co. Wilderness Service Alyeska Pipeline a us whether only The issue before (1975). 258-259 officials will part faith on the of state of bad finding proper attorney’s directly against the state an award of fees support Edelman v. ancillary-effect doctrine of treasury under Jordan, 415 U. S. in Edelman a ancillary-effect recognized doctrine re- authority court’s to concomitant of a federal
necessary to the dictates to conform their quire state officials conduct shape their in order to officials, of the Constitution. “State decrees, would official conduct to the mandate Court’s treasury than spend money to from the state likely more have course of previous their they pursue if been left free to had today that a suggests Id., conduct.” 668. The penalty upon financial may impose court a retroactive federal relief prospective with comply it to when fails State “If refuses validly agency ordered. a state previously the most order, penalty court a financial be adhere to a Ante, This insuring compliance.” at 691. effective means ancillary-effect has never before oí the doctrine application is no to do so by and there need recognized Court, been petitioners has not shown that these case, in this since been jealous A to court order.” State’s have adhere “refuse[d] system authority operate its its own correctional defense of of court.3 casually equated contempt with cannot any event, Court did not consider apparent it is District previous discipline supporting its orders. order a of retroactive form “may Department the fee incline the court concluded that the allowance of protracted litigation prisons about in such manner further act *32 1976). necessary.” (ED It does Supp. Ark. not F. will be petitioners’ to future to that court's desire weaken appear not me Alyeska permitting award doctrine legitimate use of the resistance is attorney’s past fees for acts of bad faith. I petitioners Even were with that agree the Court had I defied willfully decrees, federal could not conclude that taxpayers against award fees of Arkansas would be is a less justified, since intrusive means of insuring there respondents’ right to relief. It is to order an sufficient award fees against capac- those their defendants, acting in official responsible ity, personally who are for the recalcitrance which penalize. District Court wishes to There is no reason for engage speculation the federal courts to as to whether the imposition of a fine is “less intrusive” State than “sending high jail.” state officials long Ibid. So as the authority rights plaintiffs and the of the District are amply vindicated an award by fees, it should be matter of no concern to the court whether those fees are by paid personally state by officials the State itself. The already Arkansas has Legislature statutory provision made for deciding when its officials shall be reimbursed the State for judgments ordered the federal courts. Act Ark. Gen. No. 543. presents persuasive
The Court no reason its conclusion pay may that decision of who must such safely fees ante, be left to the State involved. insists, It at 699 n. 32, it “manifestly that unfair” to leave the individual state pay officers to the award counsel permitting fees rather than directly their collection from treasury. peti- state But do finding tioners not contest the District they Court’s acted bad and thus the faith, Court’s insistence impose attorney’s “unfair” to individually fees on them rings Even in somewhat hollow.4 a case the equities where were strongly more favor the individual state (as officials opposed entity) they State as than are in this case, may It is true that be (1976 fees awarded under 42 U. S. C. ed.) even in of bad the absence faith. But statute leaves the court, award to the discretion decision fees of the district expected any possible to alleviate unfairness. *33 damages of a state liability in of individual possibility is as old held liable itself not be could
official where State re been has Young, (1908), S. Ex U. parte Northern Great of Court. by decisions this reaffirmed peatedly Ford Motor (1944); Read, 322 U. Insurance S. Lije Co. (1945); Edel Treasury, 323 Department Co. v. of disagree no Jordan, the Court evidences supra. man v. Since not of “unfairness” its assertion cases, this line ment with of law. as a matter in fact also irrelevant doubtful but only would liability imposition Court’s fear that Likewise, duties of their the fearless exercise officials in inhibit state in each by legislation desirable, if deemed remedied, Arkansas has which similar to that of the various States already enacted.
B my dissenting Brother portion in the For reasons stated agree that the Civil do not opinion, join, I I Powell’s be considered Attorney’s Act of can Fees Awards Rights Amend- Eleventh abrogation of the State’s valid congressional serious about immunity. I have reservations addition ment accompanying transposition Court’s any analysis the lack of Bitzer, Fitzpatrick (1976), S. 445 holding 5 of the under Fitzpatrick, we held that case. Congress explicitly could allow Amendment Fourteenth violating the Eleventh without recovery against agencies state supra, there was conceded Fitzpatrick, But in Amendment. Clause which Equal Protection violation be a Fourteenth language in haec verba contained claimed constitutional In this case the Amendment itself. punishment, of cruel and unusual is the infliction violation by the Eighth but not prohibited by the expressly which is Court has held While the Fourteenth Amendment. prohibition against “incorporates” the Amendment Fourteenth to me it is at all clear punishment, unusual cruel and power has the same enforcement Congress it follows that under 5§ with respect provision constitutional which has merely been judicially “incorporated” into the Fourteenth Amendment that it respect has with provision which was *34 placed that Amendment the drafters.
I would therefore reverse judgment of the Court of Appeals in its entirety. notes the Committee The Court purpose indicate a authorize proposed of two amendments Ante, 694. That against counsel-fee awards States. finding persuasive support for a might provide evidence enactment congressional involved “a if this case “waiver” plaintiffs by designated its terms authorized suit which literally included class defendants which general Services, City Dept. York Monell New Social legislative history Rights Civil Act held that “the the Court (1978), municipalities Congress did intend compels the conclusion among persons to whom units be included those government other local noted, however, was no applies.” Id., there at 690. We municipal Eleventh Amendment a bar concluding “basis holding government units liability,” was “limited to local and that our pur Amendment part are State for Eleventh not considered poses.” (emphasis original). Id., 690, and n. 54