FITZPATRICK v. BITZER, 427 U.S. 445 (1976)

Mr. Justice Rehnquist delivered the opinion of the Court.

[1]In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under § 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of a private individual against a state government found to have subjected that person to employment discrimination on the basis of “race, color, religion, sex, or national origin.” The principal question presented by these cases is whether, as against the shield of sovereign immunity afforded the State by the Eleventh Amendment, Edelman v. Jordan, 415 U.S. 651 (1974), Congress has the power to authorize federal courts to enter such an award against the State as a means of enforcing the substantive guarantees of the Fourteenth Amendment. The Court of Appeals for the Second Circuit held that the effect of our decision in Edelman was to foreclose Congress’ power. We granted certiorari to resolve this important constitutional question. 423 U.S. 1031 (1975). We reverse.

I

[2]Petitioners in No. 75-251 sued in the United States District Court for the District of Connecticut on behalf of all present and retired male employees of the State of Connecticut. Their amended complaint asserted, inter alia, that certain provisions in the State’s statutory retirement benefit plan discriminated against them because of their sex, and therefore contravened Title VII of the 1964 Act, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. IV). Title VII, which originally did not include state and local governments, had in the interim been amended to bring the States within its purview.

[3]The District Court held that the Connecticut State Employees Retirement Act violated Title VII’s prohibition against sex-based employment discrimination. 390 F. Supp. 278, 285-288 (1974).^[1] It entered prospective injunctive relief in petitioners’ favor against respondent state officials.^[2] Petitioners also sought an award of retroactive retirement benefits as compensation for losses caused by the State’s discrimination, as well as “a reasonable attorney’s fee as part of the costs.” But the District Court held that both would constitute recovery of money damages from the State’s treasury, and were therefore precluded by the Eleventh Amendment and by this Court’s decision in Edelman v. Jordan, supra.

[4]On petitioners’ appeal, the Court of Appeals affirmed in part and reversed in part. It agreed with the District Court that the action, “insofar as it seeks damages, is in essence against the state and as such is subject to the Eleventh Amendment.” 519 F.2d 559, 565 (1975). The Court of Appeals also found that under the 1972 Amendments to Title VII, “Congress intended to authorize a private suit for backpay by state employees against the state.” Id. at 568. Notwithstanding this statutory authority, the Court of Appeals affirmed the District Court and held that under Edelman a “private federal action for retroactive damages” is not a “constitutionally permissible method of enforcing Fourteenth Amendment rights.” 519 F.2d at 569. It reversed the District Court and remanded as to attorneys’ fees, however, reasoning that such an award would have only an “ancillary effect” on the state treasury of the kind permitted under Edelman, supra, at 667-668. 519 F. 2d at 571. The petition filed here by the state employees in No. 75-251 contends that Congress does possess the constitutional power under § 5 of the Fourteenth Amendment to authorize their Title VII damages action against the State. The state officials’ cross-petition, No. 75-283, argues that under Edelman the Eleventh Amendment bars any award of attorneys’ fees here because it would be paid out of the state treasury.

II

[5]In Edelman this Court held that monetary relief awarded by the District Court to welfare plaintiffs, by reason of wrongful denial of benefits which had occurred previous to the entry of the District Court’s determination of their wrongfulness, violated the Eleventh Amendment. Such an award was found to be indistinguishable from a monetary award against the State itself which had been prohibited in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945). It was therefore controlled by that case rather than by Ex parte Young, 209 U.S. 123 (1908), which permitted suits against state officials to obtain prospective relief against violations of the Fourteenth Amendment.

[6]Edelman went on to hold that the plaintiffs in that case could not avail themselves of the doctrine of waiver expounded in cases such as Parden v. Terminal R. Co., 377 U.S. 184 (1964), and Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), because the necessary predicate for that doctrine was congressional intent to abrogate the immunity conferred by the Eleventh Amendment. We concluded that none of the statutes relied upon by plaintiffs in Edelman contained any authorization by Congress to join a State as defendant. The Civil Rights Act of 1871, 42 U.S.C. § 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187-191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant. The provisions of the Social Security Act relied upon by plaintiffs were held by their terms not to “authorize suit against anyone,” 415 U.S. at 674, and they, too, were incapable of supplying the predicate for a claim of waiver on the part of the State.

[7]All parties in the instant litigation agree with the Court of Appeals that the suit for retroactive benefits by the petitioners is in fact indistinguishable from that sought to be maintained in Edelman, since what is sought here is a damages award payable to a private party from the state treasury.^[3]

[8]Our analysis begins where Edelman ended, for in this Title VII case the “threshold fact of congressional authorization,” id. at 672, to sue the State as employer is clearly present. This is, of course, the prerequisite found present in Parden and wanting in Employees. We are aware of the factual differences between the type of state activity involved in Parden and that involved in the present case, but we do not think that difference is material for our purposes. The congressional authorization involved in Parden was based on the power of Congress under the Commerce Clause; here, however, the Eleventh Amendment defense is asserted in the context of legislation passed pursuant to Congress’ authority under § 5 of the Fourteenth Amendment.

[9]As ratified by the States after the Civil War, that Amendment quite clearly contemplates limitations on their authority. In relevant part, it provides:

“Section 1 … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

* * * * *

“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

[10]The substantive provisions are by express terms directed at the States. Impressed upon them by those provisions are duties with respect to their treatment of private individuals. Standing behind the imperatives is Congress’ power to “enforce” them “by appropriate legislation.”

[11]The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under § 5, were examined at length by this Court in Ex parte Virginia, 100 U.S. 339 (1880). A state judge had been arrested and indicted under a federal criminal statute prohibiting the exclusion on the basis of race of any citizen from service as a juror in a state court. The judge claimed that the statute was beyond Congress’ power to enact under either the Thirteenth or the Fourteenth Amendment. The Court first observed that these Amendments “were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress.” Id. at 345. It then addressed the relationship between the language of § 5 and the substantive provisions of the Fourteenth Amendment:

“The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact. It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. This is true in the general. But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States. It is carved out of them.

* * * * *

“The argument in support of the petition for a habeas corpus ignores entirely the power conferred upon Congress by the Fourteenth Amendment. Were it not for the fifth section of that amendment, there might be room for argument that the first section is only declaratory of the moral duty of the State. But the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment. It is but a limited authority, true, extending only to a single class of cases; but within its limits it is complete.” Id. at 346-348.

[12]Ex parte Virginia’s early recognition of this shift in the federal-state balance has been carried forward by more recent decisions of this Court. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966); Mitchum v. Foster, 407 U.S. 225, 238-239 (1972).

[13]There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States. The legislation considered in each case was grounded on the expansion of Congress’ powers—with the corresponding diminution of state sovereignty—found to be intended by the Framers and made part of the Constitution upon the States’ ratification of those Amendments, a phenomenon aptly described as a “carv[ing] out” in Ex parte Virginia, supra, at 346.

[14]It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under § 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1 (1890), are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce “by appropriate legislation” the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to § 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. We think that Congress may, in determining what is “appropriate legislation” for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.^[4] See Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).

III

[15]In No. 75-283, the state officials contest the Court of Appeals’ conclusion that an award of attorneys’ fees in this case would under Edelman have only an “ancillary effect” on the state treasury and could therefore be permitted as falling outside the Eleventh Amendment under the doctrine of Ex parte Young, 209 U.S. 123 (1908). 415 U.S. at 667-668. We need not address this question, since, given the express congressional authority for such an award in a case brought under Title VII, it follows necessarily from our holding in No. 75-251 that Congress’ exercise of power in this respect is also not barred by the Eleventh Amendment. We therefore affirm the Court of Appeals’ judgment in No. 75-283 on this basis.

[16]The judgment in No. 75-251 is

Reversed.

[17]The judgment in No. 75-283 is

Affirmed.

Mr. Justice Brennan, concurring in the judgment.

[18]This suit was brought by present and retired employees of the State of Connecticut against the State Treasurer, the State Comptroller, and the Chairman of the State Employees’ Retirement Commission. In that circumstance, Connecticut may not invoke the Eleventh Amendment, since that Amendment bars only federal-court suits against States by citizens of other States. Rather, the question is whether Connecticut may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to a claim for damages under Title VII. In my view Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279, 298 (1973): The States surrendered that immunity, in Hamilton’s words, “in the plan of the Convention” that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id. at 319 n.7; Edelman v. Jordan, 415 U.S. 651, 687 (1974) (Brennan, J., dissenting); Parden v. Terminal R. Co., 377 U.S. 184 (1964). Congressional authority to enact the provisions of Title VII at issue in this case is found in the Commerce Clause, Art. I, § 8, cl. 3, and in § 5 of the Fourteenth Amendment, two of the enumerated powers granted Congress in the Constitution. Cf. Oregon v. Mitchell, 400 U.S. 112, 131-134 (1970) (Black, J.); id. at 135-150 (Douglas, J.); id. at 216-217 (Harlan, J.); id. at 236-281 (Brennan, White, and Marshall, JJ.); id. at 282-284 (Stewart, J.); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). I remain of the opinion that “because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver.” Employees v. Missouri Public Health Dept., supra, at 300.

[19]I therefore concur in the judgment of the Court.

Mr. Justice Stevens, concurring in the judgment.

[20]In my opinion the commerce power is broad enough to support federal legislation regulating the terms and conditions of state employment and, therefore, provides the necessary support for the 1972 Amendments to Title VII, even though Congress expressly relied on § 5 of the Fourteenth Amendment. But I do not believe plaintiffs proved a violation of the Fourteenth Amendment, and because I am not sure that the 1972 Amendments were “needed to secure the guarantees of the Fourteenth Amendment,” see Katzenbach v. Morgan, 384 U.S. 641, 651, I question whether § 5 of that Amendment is an adequate reply to Connecticut’s Eleventh Amendment defense. I believe the defense should be rejected for a different reason.

[21]Even if the Eleventh Amendment does cover a citizen’s suit against his own State, it does not bar an action against state officers enforcing an invalid statute, Ex parte Young, 209 U.S. 123, 159-160. Since the Connecticut pension law has been held to be invalid, at least in part, Ex parte Young makes it clear that the federal court properly acquired jurisdiction of the proceeding.

[22]The Eleventh Amendment issue presented is whether the court has power to enter a judgment payable immediately out of trust assets which subsequently would be reimbursed from the general revenues of the State. Although I have great difficulty with a construction of the Eleventh Amendment which acknowledges the federal court’s jurisdiction of a case and merely restricts the kind of relief the federal court may grant, I must recognize that it has been so construed in Edelman v. Jordan, 415 U.S. 651, and that the language of that opinion would seem to cover this case. However, its actual holding appears to be limited to the situation in which the award is payable directly from state funds and “not as a necessary consequence of compliance in the future” with a substantive determination. Id. at 668.

[23]The holding in Edelman does not necessarily require the same result in this case; this award will not be paid directly from the state treasury, but rather from two separate and independent pension funds. The fact that the State will have to increase its future payments into the funds as a consequence of this award does not, in my opinion, sufficiently distinguish this case from other cases in which a State may be required to conform its practices to the Federal Constitution and thereby to incur additional expense in the future. Since the rationale of Ex parte Young remains applicable to such cases, and since this case is not squarely covered by the holding in Edelman, I am persuaded that it is proper to reject the Eleventh Amendment defense.

[24]With respect to the fee issue, even if the Eleventh Amendment were applicable, I would place fees in the same category as other litigation costs. Cf. Fairmont Co. v. Minnesota, 275 U.S. 70.

Fitzpatrick v. Bitzer – Audio and Transcript of Oral Argument

Footnotes

1. Petitioners had also alleged that the retirement plan was contrary to the Equal Protection Clause of the Fourteenth Amendment, but in view of its ruling under Title VII the District Court found no reason to address the constitutional claim. 390 F. Supp., at 290. ↵

    

2. In No. 75-251, respondent Bitzer is the Chairman of the State Employees’ Retirement Commission, and the other respondents are the Treasurer and the Comptroller of the State of Connecticut. These officials are cross-petitioners in No. 75-283. ↵

    

3. The Court of Appeals rejected petitioners’ arguments that the retroactive benefits would not be paid out of public funds from the state treasury, and that the rule in Edelman and Ford Motor Co. was therefore inapplicable. 519 F.2d at 564-565. Petitioners have not challenged this ruling here. ↵

    

4. Apart from their claim that the Eleventh Amendment bars enforcement of the remedy established by Title VII in this case, respondent state officials do not contend that the substantive provisions of Title VII as applied here are not a proper exercise of congressional authority under § 5 of the Fourteenth Amendment. ↵

Notes on Fitzpatrick v. Bitzer

1. 1. How does the Court resolve the clash between the Eleventh and Fourteenth Amendments? Does the Court find the States’ Eleventh Amendment immunity abrogated by Section 1 of the Fourteenth Amendment? Is this significant?
   2. In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), the Supreme Court held that Congress lacks the power under the Commerce Clause and Indian Commerce Clause to override the States’ Eleventh Amendment immunity. However, the Court in dicta reaffirmed that Congress is empowered to abrogate the Eleventh Amendment immunity when it acts pursuant to Section 5 of the Fourteenth Amendment:
      

      [O]ur inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution…. We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.

      * * * * *

      Fitzpatrick was based on a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment…. Fitzpatrick cannot be read to justify “limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.”

      Seminole Tribe, 517 U.S. at 59, 65-66.

   3. Although the Court has reaffirmed Congress’ power to abrogate the States’ Eleventh Amendment immunity under the Fourteenth Amendment, it has been exacting in scrutinizing legislative efforts to impose liability upon States to determine whether the acts are proper exercises of Congress’ Section 5 power to enforce the Fourteenth Amendment by “appropriate” legislation.
      1. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), the Court in a 5-4 decision held that Congress acted beyond its power under Section 5 of the Fourteenth Amendment when it passed the Patent and Plant Variety Protection Remedy Clarification Act, 35 U.S.C. § 271(h) (“Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his official capacity, shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person … for infringement of a patent under section 271, or for any other violation of this title. which extended the reach of federal patent laws to the states.”).In order to act within its enforcement powers under Section 5, the Court reasoned, Congress “must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” Id. at 639; City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997). The Court found that the evil that Congress sought to remedy was the infringement of patents by the States coupled with the assertion of sovereign immunity to deny compensation in state court to patent holders. However, the legislative record was bereft of evidence of any pattern of patent infringement by the States. Furthermore, under Parratt v. Taylor and its progeny, state deprivation of a patent would not constitute a violation of the Constitution if the state provided an adequate post-deprivation remedy. Just as the legislative record did not sustain widespread infringement of patents by states, Congress did not find that state remedies for infringement were inadequate. Finally, to transgress constitutional bounds, a state must act recklessly or with the intent to deprive the patent holder of property. See Daniels v. Williams, 474 U.S. 327 (1986). The evidence before Congress, however, suggested that the few instances of state infringement of patents were innocent or at worst negligent and hence not violative of the Fourteenth Amendment. Therefore, the Court concluded, Congress acted beyond its power to enforce the constraints of Section 1 of the Fourteenth Amendment.
         

         The legislative record thus suggests that the Patent Remedy Act does not respond to a history of “widespread and persistent deprivation of constitutional rights” of the sort Congress has faced in enacting proper prophylactic § 5 legislation…. Though the lack of support in the legislative record is not determinative … identifying the targeted constitutional wrong or evil is still a critical part of our § 5 calculus because “[s]trong measures appropriate to address one harm may be an unwarranted response to another lesser one.” … Here the record at best offers scant support for Congress’ conclusion that States were depriving patent owners of property without due process of law by pleading sovereign immunity in federal-court patent actions. Because of this lack, the provisions of the Patent Remedy Act are “so out of proportion to a supposed remedial or preventive object that [they] cannot be understood as responsive to, or designed to prevent, unconstitutional behavior…. Congress did nothing to limit the coverage of the Act to cases involving arguable constitutional violations, such as where a State refuses to offer any state-court remedy for patent owners whose patents it had infringed. Nor did it make any attempt to confine the reach of the Act by limiting the remedy to certain types of infringement, such as nonnegligent infringement or infringement authorized pursuant to state policy; or providing for suits only against States with questionable remedies or a high incidence of infringement.

         * * * * *

         The statute’s apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime. These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe.

         Florida Prepaid Postsecondary Education Expense Board, 527 U.S. at 645-48.

         In a companion case, the Court likewise held that Congress exceeded its Section 5 power when it enacted the Trademark Remedy Clarification Act, 15 U.S.C. § 1122, which subjected the States to suits under the Lanham Act for false and misleading advertising. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999). The Court determined that the wrongs remedied by the Act—incursions of the right to be free from a business competitor’s false advertising and the right to be secure in one’s business interests—were not property rights protected by the Due Process Clause of the Fourteenth Amendment. Accordingly, the Trademark Remedy Clarification Act fell outside Congress’ “power to enforce, by appropriate legislation, the provisions of [Section 1 of the fourteenth amendment].” U.S. Const. amend. XIV, § 5.

      2. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Court struck down the 1974 amendments to the Age Discrimination in Employment Act of 1967 (ADEA) that extended the Act’s substantive requirements to the States. (“The term [employer] also means … a State or political subdivision of a State and any agency or instrumentality of a State or political subdivision of a State….” 29 U.S.C. § 630(b)). While accepting that Congress intended to abrogate the States’ Eleventh Amendment immunity, the Court held that Congress exceeded its Section 5 power by imposing substantive proscriptions against age discrimination that surpassed the prohibitions of the Equal Protection Clause of Section 1 of the Fourteenth Amendment. Because age is not a suspect classification under the Constitution, States are permitted to discriminate on the basis of age so long as the classification is rationally related to a legitimate state interest. The ADEA, however, demands that the state justify any discrimination on the basis of age by what is tantamount to heightened scrutiny under the Equal Protection Clause. Because there was little evidence in the legislative record that state governments were engaged in widespread unconstitutional discrimination, the Court concluded that the ADEA was not an effort to design an appropriate remedy for violations of the Equal Protection Clause but instead was “[m]erely an attempt to substantively redefine the States’ legal obligations with respect to age discrimination.” Kimel, 528 U.S. at 648.Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, filed a vigorous dissent to the Court’s rigorous scrutiny of the exercise of Congress’ Section 5 power:
         

         In my opinion, Congress’ power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the State in the first place…. The application of the ancient judge-made doctrine of sovereign immunity in cases like these is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect the States’ “dignity and respect” from impairment by the National Government. The Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests. Rather, the Framers designed important structural safeguards to ensure that when the National Government enacted substantive law (and provided for its enforcement), the normal operation of the legislative process itself would adequately defend state interests from undue infringement….

         It is the Framers’ compromise giving each State equal representation in the Senate that provides the principal structural protection for the sovereignty of the several States. [W]e can safely assume that the burdens the statute imposes on the sovereignty of the several States were taken into account during the deliberative process leading to the enactment of the measure. Those burdens necessarily include the cost of defending against enforcement proceedings and paying whatever penalties might be incurred for violating the statute. The importance of respecting the Framers’ decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority’s repeated substitution of its own views of federalism for those expressed in statutes enacted by Congress and signed by the President.

         Kimel, 528 U.S. at 651 (Stevens, J. dissenting).

         The dissenters further disagreed with the majority’s construction of the Eleventh Amendment:

         [T]he Amendment only places a textual limitation on the diversity jurisdiction of the federal courts. Here, however, private petitioners did not invoke the federal court’s diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, today’s decision rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity, which the Court treats as if it were a constitutional precept.

         Kimel, 528 U.S. at 652-53 (Stevens, J. dissenting).

   4. What does the Fitzpatrick Court offer as the rationale for its earlier holding in Edelman that Congress did not intend to abrogate the States’ Eleventh Amendment immunity when it enacted Section 1983? What new argument arises from the Court’s elaboration of its construction of Congress’ intent under Section 1983?

      In Hutto v. Finney, 437 U.S. 678 (1978), the Court considered whether Congress intended to exert its Fourteenth Amendment power and abrogate the States’ Eleventh Amendment immunity when it enacted the Attorneys’ Fees Award Act of 1976. (“In any action or proceeding to enforce a provision of [42 U.S.C. § 1983] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S. C. § 1988.) Despite the fact that the language of the statute makes no express reference to States, the Court held that Congress intended to authorize attorney fee awards to be paid by the States when state officers are sued in their official capacities for prospective relief.

      Justice Brennan authored a concurring opinion solely to respond to points made by Justice Powell’s dissent as to the Eleventh Amendment issue:

      Mr. Justice Powell takes the view, however, that unless 42 U.S.C. §1983 also authorizes damage 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 damage 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 undermined by our later holdings in Fitzpatrick v. Bitzer . . . and Monell v. New York City Dept. of Social Services.

      * * * * *

      Given our holding in Monell, the essential premise of our Edelman holding–that no statute involved in Edelman authorized suit against a “class of defendants which literally included states”–would clearly appear to be no longer true. Moreover, given Fitzpatrick’s holding that Congress has plenary power to make States liable in damages when it acts pursuant to § 5 of the Fourteenth Amendment, it is surely at least an open question whether §1983 properly construed does not make States liable for relief of all kinds, notwithstanding the Eleventh Amendment.

       

      Hutto, 437 U.S. at 700-703 (Brennan, J. concurring).