reference to state litigants whenever a filing fee, or a new item, such as an expert witness' fee, is added to the category of taxable costs.27

There is ample precedent for Congress' decision to authorize an award of attorney's fees as an item of costs. In England, costs "as between solicitor and client," Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 167, are routinely taxed today, and have been awarded since 1278. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 n. 18. In America, although fees are not routinely awarded, there are a large number of statutory and common-law situations in which allowable costs include counsel fees.28 Indeed, the federal statutory definition of costs, which was enacted before the Civil War and which remains in effect today, includes certain fixed attorney's fees as recoverable costs.29 In Fairmont Creamery itself, the Court awarded these statutory attorney's fees against the

27 This conclusion is consistent with the reasons for requiring a formal indication of Congress' intent to abrogate the States' Eleventh Amendment immunity. The requirement insures that Congress has not imposed "enormous fiscal burdens on the States" without careful thought. Employees v. Missouri Public Health & Welfare Dept., 411 U. S. 279, 284. See Tribe, Intergovernmental Immunities in Litigation, Taxation and Regulation, 89 Harv. L. Rev. 682, 695 (1976). But an award of costs-limited as it is to partially compensating a successful litigant for the expense of his suit-could hardly create any such hardship for a State. Thus we do not suggest that our analysis would be the same if Congress were to expand the concept of costs beyond the traditional category of litigation expenses.

28 In 1975, we listed 29 statutes allowing federal courts to award attorney's fees in certain suits. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S., at 260-261, n. 33. Some of these statutes define attorney's fees as an element of costs, while others separate fees from other taxable costs. Compare 42 U. S. C. § 2000a-3 (b) with 29 U. S. C. § 216 (b) (1970 ed., Supp. V).

29 See 28 U. S. C. § 1923 (a) ($100 in fees for admiralty appeals involving more than $5,000). Inflation has now made the awards merely nominal, but the principle of allowing such awards against all parties has undiminished force.

30

State of Minnesota along with other taxable costs, even though the governing statute said nothing about state liability. It is much too late to single out attorney's fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of the States' immunity."1

30 File of the Clerk of this Court in Fairmont Creamery Co. v. Minnesota, O. T. 1926, No. 725.

31 The Attorney General argues that the statute itself must expressly abrogate the States' immunity from retroactive liability, relying on Employees v. Missouri Public Health & Welfare Dept., supra. Even if we were not dealing with an item such as costs, this reliance would be misplaced. In Employees, the Court refused to permit individual backpay suits against state institutions because the Court "found not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." 411 U. S., at 285. The Court was careful to add, moreover, that its reading of the law did not make the statute's inclusion of state institutions meaningless. Because the Secretary of Labor was empowered to bring suit against violators, the amendment covering state institutions gave him authority to enforce the statute against them. Id., at 285-286.

The present Act, in contrast, has a history focusing directly on the question of state liability; Congress considered and firmly rejected the suggestion that States should be immune from fee awards. Moreover, the Act is not part of an intricate regulatory scheme offering alternative methods of obtaining relief. If the Act does not impose liability for attorney's fees on the States, it has no meaning with respect to them. Finally, the claims asserted in Employees and in Edelman v. Jordan, 415 U. S. 651, were based on a statute rooted in Congress' Art. I power. See Employees, supra, at 281 (claim based on Fair Labor Standards Act, 29 U. S. C. § 201 et seq.); Edelman v. Jordan, supra, at 674 (underlying claim based on Social Security Act provisions dealing with aid to aged, blind, and disabled, 42 U. S. C. §§ 1381-1385). In this case, as in Fitzpatrick v. Bitzer, 427 U. S. 445, the claim is based on a statute enacted to enforce the Fourteenth Amendment. As we pointed out in Fitzpatrick: "[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies . . . are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. . . . When Congress acts pursuant to

Finally, the Attorney General argues that, even if attorney's fees may be awarded against a State, they should not be awarded in this case, because neither the State nor the Department is expressly named as a defendant. Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began. See Holt I, 300 F. Supp., at 826. The State apparently paid earlier fee awards; and it was the State's lawyers who decided to bring this appeal, thereby risking another award.32

§ 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Id., at 456.

Cf. National League of Cities v. Usery, 426 U. S. 833, 852 n. 17. Applying the standard appropriate in a case brought to enforce the Fourteenth Amendment, we have no doubt that the Act is clear enough to authorize the award of attorney's fees payable by the State.

32 The Attorney General is hardly in a position to argue that the fee awards should be borne not by the State, but by individual officers who have relied on his office to protect their interests throughout the litigation. Nonetheless, our dissenting Brethren would apparently force these officers to bear the award alone. The Act authorizes an attorney's fee award even though the appeal was not taken in bad faith; no one denies that. The Court of Appeals' award is thus proper, and the only question is who will pay it. In the dissenters' view, the Eleventh Amendment protects the State from liability. But the State's immunity does not extend to the individual officers. The dissenters would apparently leave the officers to pay the award; whether the officials would be reimbursed is a decision that "may safely be left to the State involved." Post, at 716 (REHNQUIST, J., dissenting). This is manifestly unfair when, as here, the individual officers have no personal interest in the conduct of the State's litigation, and it defies this Court's insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to "exercise their discretion with undue timidity." Wood v. Strickland, 420 U. S. 308, 321.

BRENNAN, J., concurring

437 U.S.

Like the Attorney General, Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself. The legislative history makes it clear that in such suits attorney's fee awards should generally be obtained "either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S. Rep. No. 94-1011, p. 5 (1976). Awards against the official in his individual capacity, in contrast, were not to be affected by the statute; in injunctive suits they would continue to be awarded only "under the traditional bad faith standard recognized by the Supreme Court in Alyeska." Id., at 5 n. 7. There is no indication in this case that the named defendants litigated in bad faith before the Court of Appeals. Consequently, the Department of Correction is the entity intended by Congress to bear the burden of the counsel-fees award. The judgment of the Court of Appeals is accordingly affirmed.

MR. JUSTICE BRENNAN, concurring.

It is so ordered.

I join fully in the opinion of the Court and write separately only to answer points made by MR. JUSTICE POWELL.

I agree with the Court that there is no reason in this case to decide more than whether 42 U. S. C. § 1988 (1976 ed.), itself authorizes awards of attorney's fees against the States. MR. JUSTICE POWELL takes the view, however, that unless 42 U. S. C. § 1983 also authorizes damages awards against the States, the requirements of the Eleventh Amendment are not met. Citing Edelman v. Jordan, 415 U. S. 651 (1974), he concludes that § 1983 does not authorize damages awards against the State and, accordingly, that § 1988 does not either. There are a number of difficulties with this syllogism, but the most striking is its reliance on Edelman v. Jordan, a case whose foundations would seem to have been seriously under

678

BRENNAN, J., concurring

mined by our later holdings in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978).

It cannot be gainsaid that this Court in Edelman rejected the argument that 42 U. S. C. § 1983 "was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself." 415 U. S., at 676-677. When Edelman was decided, we had affirmed monetary awards against the States only when they had consented to suit or had waived their Eleventh Amendment immunity. See, e. g., Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275 (1959); Parden v. Terminal R. Co., 377 U. S. 184 (1964); Employees v. Missouri Public Health & Welfare Dept., 411 U. S. 279 (1973). In Edelman, we summarized the rule of our cases as follows: The "question of waiver or consent under the Eleventh Amendment was found in [our] cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in [a regulated activity] authorized by Congress had in effect consented to the abrogation of [Eleventh Amendment] immunity." 415 U. S., at 672. At the very least, such consent could not be found unless Congress had authorized suits against "a class of defendants which literally includes States." Ibid. It was a short jump from that proposition, to the conclusion that § 1983-which was then thought to include only natural persons among those who could be party defendants, see Monroe v. Pape, 365 U. S. 167, 187-191 (1961)-was not in the class of statutes that might lead to a waiver of Eleventh Amendment immunity. This is best summed up by MR. JUSTICE REHNQUIST, the author of Edelman, in his opinion for the Court in Fitzpatrick v. Bitzer, supra:

"We concluded that none of the statutes relied upon by plaintiffs in Edelman contained any authorization by