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678

Opinion of POWELL, J.

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

Notwithstanding the limitations of the Court's first ground of justification, see ante, at 697 n. 27, I am unwilling to ignore otherwise applicable principles simply because the statute in question imposes substantial monetary liability as an element of "costs." Counsel fees traditionally have not been part of the routine litigation expenses assessed against parties in American courts. Cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975); Arcambel v. Wiseman, 3 Dall. 306 (1796). Quite unlike those routine expenses, an award of counsel fees may involve substantial sums and is not a charge intimately related to the mechanics of the litigation. I therefore cannot accept the Court's assumption that counselfee awards are part of "the ordinary discipline of the courtroom." Ante, at 696 n. 24.5

lation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L. Rev. 682, 695 (1976) (emphasis supplied).

"

5 The Court places undue reliance on Fairmont Creamery Co. v. Minnesota, 275 U. S. 70 (1927), in support of its holding. That decision holds that no common-law bar of sovereign immunity prevents the imposition of costs against the State "when [it is] a party to litigation in this Court . . . Id., at 74. In addition to the fact that the State was a party in the litigation, and that there is no discussion of counsel fees, Fairmont Creamery "did not mention the eleventh amendment. Furthermore, the Court had held long before that when an individual appeals a case initiated by a state to the Supreme Court, that appeal does not fall within the eleventh amendment's prohibition of suit 'commenced or prosecuted against' the states." Note, Attorneys' Fees and the Eleventh Amendment, 88 Harv. L. Rev. 1875, 1890 (1975).

Opinion of POWELL, J.

437 U.S.

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

The Court's second ground for application of a diluted "clear statement" rule stems from language in Fitzpatrick recognizing that "[w]hen Congress acts pursuant to § 5" of the Fourteenth Amendment, "it is exercising [legislative] authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority," 427 U. S., at 456. I do not view this language as overruling, by implication, Edelman's holding that no waiver is present in § 1983-the quintessential Fourteenth Amend

MR. JUSTICE BRENNAN's concurring opinion asserts that the Court's holding in Edelman has been undermined, sub silentio, by Fitzpatrick and the re-examination of the legislative history of § 1983 undertaken in Monell. The language in question from Fitzpatrick was not essential to the Court's holding in that case. Moreover, this position ignores the fact that Edelman rests squarely on the Eleventh Amendment immunity, without

678

Opinion of POWELL, J.

ment measure or disturbing the vitality of the "threshold [requirement] of congressional authorization to sue a class of defendants which literally includes States," 415 U. S., at 672."

adverting in terms to the treatment of the legislative history in Monroe v. Pape, 365 U. S. 167 (1961). And there is nothing in Monroe itself that supports the proposition that § 1983 was "thought to include only natural persons among those who could be party defendants. . . ." Ante, at 701. The Monroe Court held that because the 1871 Congress entertained doubts as to its "power. . . to impose civil liability on municipalities," the Court could not "believe that the word 'person' was used in this particular Act to include them." 365 U. S., at 190, 191. As the decision in Monell itself illustrates, see n. 2, supra, the statutory issue of municipal liability is quite independent of the question of the State's constitutional immunity.

MR. JUSTICE BRENNAN's opinion appears to dispense with the "clear statement" requirement altogether, a position that the Court does not embrace today. It relies on the reference to "bodies politic" in the "Dictionary Act," Act of Feb. 25, 1871, 16 Stat. 431, as adequate to override the States' constitutional immunity, even though there is no evidence of a congressional purpose in 1871 to abrogate the protections of the Eleventh Amendment. But the Court's rulings in Edelman and Employees are rendered obsolete if provisions like the "Dictionary Act" are all that is necessary to expose the States to monetary liability. After a century of § 1983 jurisprudence, in which States were not thought to be liable in damages, Edelman made clear that the 1871 measure does not override the Eleventh Amendment. I would give force to our prior Eleventh Amendment decisions by requiring explicit legislation on the point.

"The Court suggests that the "dissenting Brethren would apparently force [the individual] officers to bear the award alone." Ante, at 699 n. 32. It is not clear to me that this issue, not fairly embraced within the questions presented, is before us. Moreover, there is no suggestion in the opinion below that the Court of Appeals intended that its award of fees for "services on this appeal" would be paid by the individual petitioners, in the event the Eleventh Amendment were found to bar an award against the Department of Correction. See 548 F. 2d 740, 742-743 (1977). But even if the question properly were before this Court, there is nothing in the Act that requires the routine imposition of counsel-fee liability on anyone. As we noted in Monell, the Act "allows prevailing parties (in the discretion of the court) in § 1983 suits to obtain attorney's fees from the losing parties. 436 U. S., at 698-699 (emphasis supplied). Congress deliberately rejected a mandatory statute, in favor of "a more moderate

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REHNQUIST, J., dissenting

437 U.S.

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

MR. JUSTICE REHNQUIST, dissenting.*

The Court's affirmance of a District Court's injunction against a prison practice which has not been shown to violate the Constitution can only be considered an aberration in light of decisions as recently as last Term carefully defining the remedial discretion of the federal courts. Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Milliken v. Bradley, 433 U. S. 267 (1977) (Milliken II). Nor are any of the several theories which the Court advances in support of its affirmance of the assessment of attorney's fees against the taxpayers of Arkansas sufficiently convincing to overcome the prohibition of the Eleventh Amendment. Accordingly, I dissent.

approach [which left] the matter to the discretion of the judge, guided of course by the case law interpreting similar attorney's fee provisions." H. R. Rep. No. 94-1558, p. 8 (1976). Whether or not the standard of cases like Wood v. Strickland, 420 U. S. 308 (1975), was rejected with respect to counsel-fee liability, see H. R. Rep. No. 94-1558, supra, at 9, and n. 17, neither the Act nor its legislative history prevents a court from taking into account the personal culpability of the individual officer where an award against the government entity would be barred by the Eleventh Amendment.

I do not understand the Court's observation that "[i]f the Act does not impose liability for attorney's fees on the States, it has no meaning with respect to them." Ante, at 698 n. 31. Significantly, the Court does not say that any part of the Act would be rendered meaningless without finding an Eleventh Amendment waiver. Cf. Employees, 411 U. S., at 285-286.

*MR. JUSTICE WHITE joins Part II of this opinion.

678

REHNQUIST, J., dissenting

I

No person of ordinary feeling could fail to be moved by the Court's recitation of the conditions formerly prevailing in the Arkansas prison system. Yet I fear that the Court has allowed itself to be moved beyond the well-established bounds limiting the exercise of remedial authority by the federal district courts. The purpose and extent of that discretion in another context were carefully defined by the Court's opinion last Term in Milliken II, supra, at 280-281:

"In the first place, like other equitable remedies, the
nature of the desegregation remedy is to be determined by
the nature and scope of the constitutional violation.
Swann v. Charlotte-Mecklenburg Board of Education, 402
U. S. [1,] 16 [(1971)]. The remedy must therefore be
related to 'the condition alleged to offend the Constitu-
tion .
Milliken [v. Bradley], 418 U. S. [717,] 738
[(1974)]. Second, the decree must indeed be remedial
in nature, that is, it must be designed as nearly as possible
'to restore the victims of discriminatory conduct to the
position they would have occupied in the absence of such
conduct.' Id., at 746. Third, the federal courts in devis-
ing a remedy must take into account the interests of state
and local authorities in managing their own affairs, con-
sistent with the Constitution." (Footnotes omitted.) 1

1 The Court suggests, ante, at 687 n. 9, that its holding is consistent with Milliken II, because it "was not remedying the present effects of a violation in the past. It was seeking to bring an ongoing violation to an immediate halt." This suggestion is wide of the mark. Whether exercising its authority to "remed[y] the present effects of a violation in the past," or "seeking to bring an ongoing violation to an immediate halt," the court's remedial authority remains circumscribed by the language quoted in the text from Milliken II. If anything, less ingenuity and discretion would appear to be required to "bring an ongoing violation to an immediate halt" than in "remedying the present effects of a violation in the past." The difficulty with the Court's position is that it quite properly refrains

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