QUERN v. JORDAN, 440 U.S. 332 (1979).

Mr. Justice Rehnquist delivered the opinion of the Court.

[1]This case is a sequel to Edelman v. Jordan, 415 U.S. 651 (1974), which we decided five Terms ago. In Edelman we held that retroactive welfare benefits awarded by a Federal District Court to plaintiffs, by reason of wrongful denial of benefits by state officials prior to the entry of the court’s order determining the wrongfulness of their actions, violated the Eleventh Amendment. The issue now before us is whether that same federal court may, consistent with the Eleventh Amendment, order those state officials to send a mere explanatory notice to members of the plaintiff class advising them that there are state administrative procedures available by which they may receive a determination of whether they are entitled to past welfare benefits.

* * * * *

[2]Petitioner state official devotes a significant part of his brief to an attack on the proposed notice which the District Court required the state officials to send. It is, however, the decision of the Court of Appeals, and not that of the District Court, which we review at the behest of petitioner. And just as petitioner insists on tilting at windmills by attacking the District Court’s decision, respondent suggests that our decision in Edelman has been eviscerated by later decisions such as Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Brief for Respondent 55 n.37. See also Aldridge v. Turlington, No. TCA-78-830 (N.D. Fla., Nov. 17, 1978); but see Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (CA3 1978). As we have noted above, we held in Edelman that in “a [42 U.S.C.] § 1983 action … a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra.” 415 U.S. at 677. We disagree with respondent’s suggestion. This Court’s holding in Monell was “limited to local government units which are not considered part of the State for Eleventh Amendment purposes,” 436 U.S. at 690 n.54, and our Eleventh Amendment decisions subsequent to Edelman and to Monell have cast no doubt on our holding in Edelman. See Alabama v. Pugh, 438 U.S. 781 (1978); Hutto v. Finney, 437 U.S. 678 (1978); Milliken v. Bradley, supra; Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Scheuer v. Rhodes, supra.^[1]

[3]While the separate opinions in Hutto v. Finney, supra,^[2] debated the continuing soundness of Edelman after our decision in Monell, any doubt on that score was largely dispelled by Alabama v. Pugh, supra, decided just 10 days after Hutto. In Pugh the Court held, over three dissents, that the State of Alabama could not be joined as a defendant without violating the Eleventh Amendment, even though the complaint was based on 42 U.S.C. § 1983 and the claim was a violation of the Eighth and Fourteenth Amendments similar to that made in Hutto. The Court said:

“There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937).” 438 U.S., at 782.^[3]

The decision in Pugh was consistent both with Monell, which was limited to “local government units,” 436 U.S. at 690 n.54, and with Fitzpatrick v. Bitzer, supra. In the latter case we found that “‘threshold fact of congressional authorization,'” which had been lacking in Edelman, to be present in the express language of the congressional amendment making Title VII of the Civil Rights Act of 1964 applicable to state and local governments. 427 U.S. at 452, quoting Edelman v. Jordan, 415 U.S. at 672.

[4]Mr. Justice Brennan in his opinion concurring in the judgment argues that our holding in Edelman that § 1983 does not abrogate the States’ Eleventh Amendment immunity is “most likely incorrect.” Post, at 354. To reach this conclusion he relies on “[assumptions]” drawn from the Fourteenth Amendment, post, at 355, on “occasional remarks” found in a legislative history that contains little debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, post, at 358 n.15, on the reference to “bodies politic” in the Act of Feb. 25, 1871, 16 Stat. 431, the “Dictionary Act,” post, at 355-357,^[4] and, finally on the general language of § 1983 itself, Post, at 356. But, unlike our Brother Brennan, we simply are unwilling to believe, on the basis of such slender “evidence,” that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in Mr. Justice Brennan’s opinion, justify a conclusion different from that which we reached in Edelman.^[5]

[5]There is no question that both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States. Many of the remarks from the legislative history of the Act quoted in Mr. Justice Brennan’s opinion amply demonstrate this point. Post, at 359-365. See also Monroe v. Pape, 365 U.S. 167, 173-176 (1961). But neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States. In Tenney v. Brandhove, 341 U.S. 367 (1951), the Court rejected a similar attempt to interpret the word “person” in § 1983 as a withdrawal of the historic immunity of state legislators.

* * * * *

Given the importance of the States’ traditional sovereign immunity, if in fact the Members of the 42d Congress believed that § 1 of the 1871 Act overrode that immunity, surely there would have been lengthy debate on this point and it would have been paraded out by the opponents of the Act along with the other evils that they thought would result from the Act. Instead, § 1 passed with only limited debate and not one Member of Congress mentioned the Eleventh Amendment or the direct financial consequences to the States of enacting § 1. We can only conclude that this silence on the matter is itself a significant indication of the legislative intent of § 1.

[6]Our cases consistently have required a clearer showing of congressional purpose to abrogate Eleventh Amendment immunity than our Brother Brennan is able to marshal. In Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), the Court concluded that Congress did not lift the sovereign immunity of the States by enacting the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219, because of the absence of any indication “by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution.” 411 U.S. at 285. In Fitzpatrick v. Bitzer the Court found present in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the “threshold fact of congressional authorization” to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. 427 U.S., at 448 n. 1, 449 n. 2, 452; see Equal Opportunity Employment Act of 1972, 86 Stat. 105, 42 U.S.C. § 2000e-5 (f)(1); H.R. Rep. No. 92-238, pp. 17-19 (1971); S. Rep. No. 92-415, pp. 9-11 (1971); S. Conf. Rep. No. 92-681, pp. 17-18 (1972); H.R. Conf. Rep. No. 92-899, pp. 17-18 (1972). Finally, in Hutto v. Finney, decided just last Term, the Court held that in enacting the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, Congress intended to override the Eleventh Amendment immunity of the States and authorize fee awards payable by the States when their officials are sued in their official capacities. 437 U.S. at 693-694. Although the statutory language in Hutto did not separately impose liability on States in so many words,^[6] statute had “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.” Id. at 698 n.31. Also, the Court noted that the statute would have been rendered meaningless with respect to States if the Act did not impose liability for attorney’s fees on the States. Ibid.; see Employees v. Missouri Public Health Dept., supra, at 285-286. By contrast, § 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Nor does our reaffirmance of Edelman render § 1983 meaningless insofar as States are concerned. See Ex parte Young, 209 U.S. 123 (1908).

[7]We turn, then, to the question which has caused disagreement between the Courts of Appeals: does the modified notice contemplated by the Seventh Circuit constitute permissible prospective relief or a “retroactive award which requires the payment of funds from the state treasury”? We think this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side. Petitioner makes no issue of the incidental administrative expense connected with preparing and mailing the notice. Instead, he argues that giving the proposed notice will lead inexorably to the payment of state funds for retroactive benefits and therefore it, in effect, amounts to a monetary award. But the chain of causation which petitioner seeks to establish is by no means unbroken; it contains numerous missing links, which can be supplied, if at all, only by the State and members of the plaintiff class and not by a federal court. The notice approved by the Court of Appeals simply apprises plaintiff class members of the existence of whatever administrative procedures may already be available under state law by which they may receive a determination of eligibility for past benefits. The notice of appeal, we are told, is virtually identical to the notice sent by the Department of Public Aid in every case of a denial or reduction of benefits. The mere sending of that notice does not trigger the state administrative machinery. Whether a recipient of notice decides to take advantage of those available state procedures is left completely to the discretion of that particular class member; the federal court plays no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and legislature, not with the federal court.

[8]The notice approved by the Court of Appeals, unlike that ordered by the District Court, is more properly viewed as ancillary to the prospective relief already ordered by the court. See Milliken v. Bradley, 433 U.S. at 290. The notice in effect simply informs class members that their federal suit is at an end, that the federal court can provide them with no further relief, and that there are existing state administrative procedures which they may wish to pursue. Petitioner raises no objection to the expense of preparing or sending it. The class members are “given no more … than what they would have gathered by sitting in the courtroom.” Jordan v. Trainor, 563 F.2d at 877-878. The judgment of the Court of Appeals is therefore

Affirmed.

Mr. Justice Brennan, with whom Mr. Justice Marshall joins as to Parts I, II, and III, concurring in the judgment.

[9]For the reasons set forth in my dissent in Edelman v. Jordan, 415 U.S. 651, 687 (1974), I concur in the judgment of the Court.

I

[10]It is deeply disturbing, however, that the Court should engage in today’s gratuitous departure from customary judicial practice and reach out to decide an issue unnecessary to its holding. The Court today correctly rules that the explanatory notice approved by the Court of Appeals below is “properly viewed as ancillary to … prospective relief.” Ante, at 349. This is sufficient to sustain the Court’s holding that such notice is not barred by the Eleventh Amendment. But the Court goes on to conclude, in what is patently dicta, that a State is not a “person” for purposes of 42 U.S.C. § 1983, Rev. Stat. § 1979.

[11]This conclusion is significant because, only three Terms ago, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), held 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.” Id. at 456. If a State were a “person” for purposes of § 1983, therefore, its immunity under the Eleventh Amendment would be abrogated by the statute. Edelman v. Jordan, supra, had held that § 1983 did not override state immunity, for the reason, as the Court later stated in Fitzpatrick, that “[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.” 427 U.S. at 452. The premise of this reasoning was undercut last Term, however, when Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), upon re-examination of the legislative history of § 1983, held that a municipality was indeed a “person” for purposes of that statute. As I stated in my concurrence in Hutto v. Finney, 437 U.S. 678, 703 (1978), Monell made it “surely at least an open question whether § 1983 properly construed does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment.”

[12]The Court’s dicta today would close that open question on the basis of Alabama v. Pugh, 438 U.S. 781 (1978). In that case the State of Alabama had been named as a party defendant in a suit alleging unconstitutional conditions of confinement. The question presented was “[whether] the mandatory injunction issued against the State of Alabama and the Alabama Board of Corrections violates the State’s Eleventh Amendment immunity or exceeds the jurisdiction granted federal courts by 42 U.S.C. § 1983.” Id. at 782-783, n.2. The Court held that the State should not have been named as a party defendant.

[13]Pugh, however, does not stand for the proposition that a State is not a “person” for purposes of § 1983. Not only does the Court’s opinion in that case fail even to mention § 1983, it frames the issue addressed as whether Alabama had “consented to the filing of such a suit.” 438 U.S. at 782. Since Alabama’s consent would have been irrelevant if Congress had intended States to be encompassed within the reach of § 1983, the Court apparently decided the first half of the question presented—”[whether] the mandatory injunction issued against the State of Alabama … violates the State’s Eleventh Amendment immunity”—without considering or deciding the second half—whether the mandatory injunction “exceeds the jurisdiction granted federal courts by 42 U.S.C. § 1983.”^[7]

[14]This parsing of Pugh is strengthened by a consideration of the circumstances surrounding that decision. Pugh, a short per curiam, was issued on the last day of the Term without the assistance of briefs on the merits or argument. Alabama’s petition for certiorari and respondents’ brief in opposition were filed on February 6, 1978, and April 6, 1978, respectively, months before Monell was announced. They were thus necessarily without the benefit of Monell’s major re-evaluation of the legislative history of § 1983.^[8] Respondents did not even raise the possibility that Alabama might be a “person” for purposes of § 1983.^[9] Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware of Monell, ante, at 340 n.9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a “person” for purposes of § 1983, it is not anomalous that the Court’s opinion in Pugh failed to address or consider this issue.

[15]The Court’s reliance on Pugh is particularly significant because the question whether a State is a “person” for purposes of § 1983 is neither briefed nor argued by the parties in the instant case. Indeed, petitioner states flatly that “the en banc decision of the Seventh Circuit does not rest upon a conclusion that the term ‘person’ for purposes of § 1983 includes sovereign states, as opposed to state officials, within its ambit. That issue is not the issue before this Court on Petitioner’s Writ for Certiorari.” Reply Brief for Petitioner 14. Respondent concurs, stating that “it is unnecessary in this case to confront directly the far-reaching question of whether Congress intended in § 1983 to provide for relief directly against States, as it did against municipalities.” Brief for Respondent 55 n.37.

[16]Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat.

II

[17]This fiat is particularly disturbing because it is most likely incorrect. Section 1983 was originally enacted as § 1 of the Civil Rights Act of 1871. The Act was enacted for the purpose of enforcing the provisions of the Fourteenth Amendment. That Amendment exemplifies the “vast transformation” worked on the structure of federalism in this Nation by the Civil War.

* * * * *

[18]The prohibitions of the Fourteenth Amendment and Congress’ power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that § 1983, in effectuating the provisions of the Amendment by “[interposing] the federal courts between the States and the people, as guardians of the people’s federal rights,” Mitchum v. Foster, supra, at 242, is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute.

[19]Section 1 of the Civil Rights Act of 1871 created a federal cause of action against “any person” who, “under color of any law, statute, ordinance, regulation, custom, or usage of any State,” deprived another of “any rights, privileges, or immunities secured by the Constitution of the United States.” On February 25, 1871, less than two months before the enactment of the Civil Rights Act, Congress provided that “in all acts hereafter passed … the word ‘person’ may extend and be applied to bodies politic and corporate … unless the context shows that such words were intended to be used in a more limited sense.”^[10] § 2, 16 Stat. 431. Monell, held that “[since] there is nothing in the ‘context’ of the Civil Rights Act calling for a restricted interpretation of the word ‘person,’ the language of that section should prima facie be construed to include ‘bodies politic’ among the entities that could be sued.” 436 U.S. at 689-690, n.53. Even the Court’s opinion today does not dispute the fact that in 1871 the phrase “bodies politic and corporate” would certainly have referred to the States.

* * * * *

[20]Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) (“What is a State? Is it not a body politic and corporate?”); cf. id. at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term “person” in § 1 of that Act.

[21]The legislative history of the Civil Rights Act of 1871 reinforces this conclusion. The Act was originally reported to the House as H.R. 320 by Representative Shellabarger. At that time Representative Shellabarger stated that the bill was meant to be remedial “in aid of the preservation of human liberty and human rights,” and thus to be “liberally and beneficently construed.”^[11] Globe App. 68. The bill was meant to give “[full] force and effect … to section five” of the Fourteenth Amendment, Globe 322 (Rep. Stoughton),^[12] see id., at 800 (Rep. Perry); Monell, 436 U.S., at 685 n.45, and therefore, like the prohibitions of that Amendment, to be addressed against the States themselves. See, e.g., Globe 481-482 (Rep. Wilson); 696 (Sen. Edmunds). It was, as Representative Kerr who opposed the bill instantly recognized, “against the rights of the States of this Union.” Globe App. 46. Representative Shellabarger, in introducing the bill, made this explicit, stressing the need for “necessary affirmative legislation to enforce the personal rights which the Constitution guaranties, as between persons in the State and the State itself.” Id., at 70. See, e.g., id. at 80 (Rep. Perry); Globe 375 (Rep. Lowe); 481-482 (Rep. Wilson); 568 (Sen. Edmunds). Representative Bingham elaborated the point:

“The powers of the States have been limited and the powers of Congress extended by the last three amendments of the Constitution. These last amendments—thirteen, fourteen, and fifteen—do, in my judgment, vest in Congress a power to protect the rights of citizens against States, and individuals in States, never before granted.

* * * * *

“Why not in advance provide against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people?

“The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws; because all State officials are by the Constitution required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in States and by States, or combination of persons?” Globe App. 83, 85 (emphasis added).^[13]

[22]H.R. 320 was necessary, as Senator Edmunds stated, to protect citizens “in the rights that the Constitution gave them … against any assault by any State or under any State or through the neglect of any State,” Globe 697, and by a “State,” Edmunds meant “a corporation … an organized thing manifested, represented entirely, and fully in respect to every one of its functions, by that department of its government on which the execution of those functions is respectively devolved.” Id. at 696. See id. at 607-608 (Sen. Pool).

[23]It was common ground, therefore, that, as Representative Wilson argued, the prohibitions of the Fourteenth Amendment were directed against the State, meaning “the government of the State … the legislative, the judicial, and the executive”; that the fifth section of the Amendment had given Congress the power to enforce it by “appropriate legislation,” meaning “legislation adequate to meet the difficulties to be encountered, to suppress the wrongs existing, to furnish remedies and inflict penalties adequate to the suppression of all infractions of the rights of the citizens”; and that H.R. 320 was such legislation. Globe 481-483. Those who opposed the bill were fully aware of the major implications of such a statute. Representative Blair, for example, rested his opposition on the fact that the bill, including § 1, was aimed at the States in their “corporate and legislative capacity”:

“The inhibitions in the [Thirteenth, Fourteenth, and Fifteenth] amendments against the United States and the States are against them in their corporate and legislative capacities, for the thing or acts prohibited can alone be performed by them in their corporate or legislative capacities.

* * * * *

“As the States have the power to violate them and not individuals, we must presume that the legislation provided for is against the States in their corporate and legislative capacity or character and those acting under their laws, and not against the individuals, as such, of the States. I am sustained in this view of the case by the tenth section of the first article of the Constitution of the United States. In it are a number of inhibitions against the States, which it is evident are against them in their corporate and legislative capacity; and to which I respectfully call the attention of the gentlemen who favor this bill.” Globe App. 208.^[14]

See id. at 209. This conclusion produced an anguished outcry from those committed to unrevised notions of state sovereignty. Representative Arthur, for example, complained that § 1 “reaches out and draws within the despotic circle of central power all the domestic, internal, and local institutions and offices of the States, and then asserts over them an arbitrary and paramount control as of the rights, privileges, and immunities secured and protected, in a peculiar sense, by the United States in the citizens thereof. Having done this, having swallowed up the States and their institutions, tribunals, and functions, it leaves them the shadow of what they once were.” Globe 365.

[24]The answer to such arguments was, of course, that the Civil War had irrevocably and profoundly altered the balance of power between Federal and State Governments:

“If any one thinks it is going too far to give the United States this national supervisory power to protect the fundamental rights of citizens of the United States, I do not agree with him. It is not wise to permit our devotion to the reserved rights of the States to be carried so far as to deprive the citizen of his privileges and immunities.

“We must remember that it was State rights, perverted I admit from their true significance, that arrayed themselves against the nation and threatened its existence. We must remember that it was for the very purpose of placing in the General Government a check upon this arrogance of some of the States that the fourteenth amendment was adopted by the people. We must remember that, if the legislation we propose does trench upon what have been, before the fourteenth amendment, considered the rights of the States, it is in behalf and for the protection of immunities and privileges clearly given by the Constitution; and that Federal laws and Federal rights must be protected whether domestic laws or their administration are interfered with or not, because the Constitution and the laws made in pursuance thereof are the supreme law of the land. We are not making a constitution, we are enacting a law, and its virtue can be tested without peril by the experiment.” Id. at 502 (Sen. Frelinghuysen).

In the reconstructed union, national rights would be guaranteed federal protection even from the States themselves.

III

[24]The plain words of § 1983, its legislative history and historical context, all evidence that Congress intended States to be embraced within its remedial cause of action. The Court today pronounces its conclusion in dicta by avoiding such evidence. It chooses to hear, in the eloquent and pointed legislative history of § 1983, only “silence.” Such silence is in fact deafening to those who have ears to listen. But without reason to reach the question, without briefs, without argument, relying on a precedent that was equally ill-informed and in any event not controlling, the Court resolutely opines that a State is not a “person” for purposes of § 1983. The 42d Congress, of course, can no longer pronounce its meaning with unavoidable clarity. Fitzpatrick, however, cedes to the present Congress the power to rectify this erroneous misinterpretation. It need only make its intention plain.

Mr. Justice Marshall, concurring in the judgment.

[25]I concur in the judgment of the Court, for the reasons expressed in my dissenting opinion in Edelman v. Jordan, 415 U.S. 651, 688 (1974), and my concurring opinion in Employees v. Missouri Public Health Dept., 411 U.S. 279, 287 (1973). Moreover, I agree that an affirmance here follows logically from the Court’s decision in Edelman, because the explanatory notice approved by the Court of Appeals clearly is ancillary to prospective relief. But given that basis for deciding the present case, it is entirely unnecessary for the Court to address the question whether a State is a “person” within the meaning of § 1983. Accordingly, I join Parts I, II, and III of my Brother Brennan’s opinion.

Quern v. Jordan – Audio and Transcript of Oral Argument

Footnotes

1. Mr. Justice Brennan’s opinion concurring in the judgment states that “Edelman v. Jordan, supra, had held that § 1983 did not override state immunity, for the reason, as the Court later stated in Fitzpatrick, that ‘[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.'” Post, at 351. Since Monell overruled Monroe‘s holding that cities and other municipal corporations are not “persons” within the meaning of § 1983, Mr. Justice Brennan’s opinion argues that the “premise” of Edelman has been “undercut.” Post, at 351. The fallacy of this line of reasoning was aptly demonstrated last Term by Mr. Justice Powell in his concurring opinion in Hutto, where he stated: “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 adverting in terms to the treatment of the legislative history in Monroe v. Pape” 437 U.S., at 708-709, n.6. In fact, Monroe v. Pape is not even cited in Edelman. ↵

    

2. In Hutto v. Finney there were three separate opinions in addition to that of the Court. Two opinions expressed the view that the Court had misapplied the rule laid down in Edelman. 437 U.S. at 704 (Powell, J., concurring and dissenting); id. at 710 (Rehnquist, J., dissenting). Mr. Justice Brennan, though joining the opinion of the Court, wrote separately to suggest that the Court’s opinions in Monell and Fitzpatrick v. Bitzer had rendered “the essential premise of our Edelman holding … no longer true.” 437 U.S. at 703. The Court itself in Hutto, however, recognized and applied Edelman‘s distinction between retrospective and prospective relief. ↵

    

3. Our Brother Brennan in his opinion concurring in the judgment curiously suggests that the language quoted from Pugh in the text could not mean what it, on its face, says, because the briefs in the case were filed before our decision in Monell was announced. Post, at 352-354. But while the parties in Pugh were “without the benefit of Monell‘s major re-evaluation of the legislative history of § 1983,” Post, at 352-353, the Members of this Court labored under no similar disability. The decision in Pugh was handed down nearly one month after Monell and 10 days after Hutto, where separate opinions debated this precise point. If, after Monell and Hutto, this Court harbored any doubts about the continued validity of Edelman‘s conclusion that § 1983 does not constitute a waiver of the Eleventh Amendment immunity of the States, it is inconceivable that the Court would have taken the extraordinary action of summarily reversing a lower court on the basis of Edelman. ↵

    

4. The Dictionary Act was intended to provide a “few general rules for the construction of statutes.” Cong. Globe, 41st Cong., 3d Sess., 1474 (1871) (remarks of Rep. Poland). While it was enacted two months before the enactment of the 1871 Civil Rights Act, it came more than five years after passage of § 2 of the Civil Rights Act of 1866, 14 Stat. 27, which served as the model for the language of § 1 of the 1871 Act. Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (remarks of Rep. Shellabarger); see Monroe v. Pape, 365 U.S. 167, 183-185 (1961); post, at 362 n.17. ↵

    

5. Mr. Justice Brennan’s opinion characterizes this conclusion as “gratuitous” and “[patent] dicta.” Post, at 350. But we cannot think of a more “gratuitous” or useless exercise of this Court’s discretionary jurisdiction than to decide which of two conflicting interpretations of Edelman v. Jordan is correct, if in truth we believed that Edelman itself no longer were valid. The question does not arise out of the blue; it was extensively discussed in our Brother Brennan’s concurrence in Hutto v. Finney last Term. We therefore fail to see how our reaffirmance of Edelman can be characterized as “dicta.” ↵

    

6. While Hutto, unlike Fitzpatrick and Employees, did not require an express statutory waiver of the State’s immunity, 437 U.S. at 695, 698 n. 31, the Court was careful to emphasize that it was concerned only with expenses incurred in litigation seeking prospective relief while the other cases involved retroactive liability for prelitigation conduct. Id. at 695. The Court also noted that it was not concerned with a statute that imposed “‘enormous fiscal burdens on the States'” and that if it were, it might require a formal indication of Congress’ intent to abrogate the States’ Eleventh Amendment immunity, as did Employees and Fitzpatrick. 437 U.S. at 697 n.27. Extending § 1983 liability to States obviously would place “enormous fiscal burdens on the States.” But we need not reach the question whether an express waiver is required because neither the language of the statute nor the legislative history discloses an intent to overturn the States’ Eleventh Amendment immunity by imposing liability directly upon them. ↵

    

7. This is what I take to be the significance of the observation of my Brother Stevens in Pugh: “Surely the Court does not intend to resolve summarily the issue debated by my Brothers in their separate opinions in Hutto v. Finney, 437 U.S. 678, 700 (Brennan, J., concurring), and 708-709, n.6 (Powell, J., concurring in part and dissenting in part).” 438 U.S. at 783 n.* (1978) (Stevens, J., dissenting). Cf. The Supreme Court, 1977 Term, 92 HARV. L. REV. 57, 325-326 (1978). ↵

    

8. Indeed, the entire discussion of the issue in the petition for certiorari is as follows: “The grant of an injunction against the State and the Board of Corrections in an action based upon 42 U.S.C. § 1983 is in direct conflict with decisions of other courts of appeal which hold that neither a State nor a State agency is a ‘person’ within the meaning of the statute and amenable to suit under it. Meredith v. Arizona, 523 F.2d 481 (9th Cir. 1975); Curtis v. Everette, 489 F.2d 516 (3rd Cir. 1973). The decisions below conflict, at least in principle, with this Court’s holding in City of Kenosha v. Bruno, 412 U.S. 507 (1973), that municipalities are not ‘persons’ under 42 U.S.C. § 1983.” Pet. for Cert. in Alabama v. Pugh, O.T. 1977, No. 77-1107, pp. 11-12. ↵

    

9. The discussion of the issue by the respondents in Pugh was unilluminating:

   “Supreme Court Rule 19(1) states that certiorari will only be ‘granted where there are special and important reasons therefor.’ The second issue raised by the Petitioners challenges the injunction against the State of Alabama and the Alabama Board of Corrections alleging: (1) each is immune from suit under the Eleventh Amendment; (2) neither is a ‘person’ subject to 42 U.S.C. 1983 jurisdiction; and (3) Edelman v. Jordan, 415 U.S. 651 (1974) and Ex Parte Young, 209 U.S. 123 (1908) bar judgments against the State for prospective costs of compliance with an order. Under the facts of these cases, the questions presented are not only unimportant but are essentially irrelevant.

   “First, additional defendants enjoined include all members of the Alabama Board of Corrections and numerous other prison officials who would clearly remain bound by the injunction issued, Scheuer v. Rhodes, 416 U.S. 232 (1974); Edelman v. Jordan, 415 U.S. 651 (1974) and have the authority in their official capacity to carry out the court’s orders. Second, the State of Alabama and the Board of Corrections were only named defendants in the Pugh case and not the James case. Therefore, any action taken on this issue in Pugh would not affect the same relief granted in James. Third, this issue was never thought important enough by counsel for the petitioners to raise, brief or argue in the trial court. Fourth, the Court of Appeals did not see fit to speak to this issue at all. Fifth, whether the State of Alabama and/or the Board of Corrections are enjoined in addition to the members of the Board of Corrections has absolutely no practical effect on what has happened or will happen under the court’s order.” Brief in Opposition in Alabama v. Pugh, O.T. 1977, No. 77-1107, pp. 9-10. ↵

    

10. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), held that the word “may” in the Act was to be interpreted as the equivalent of “shall”: “Such a mandatory use of the extended meanings of the words defined by the Act is … required for it to perform its intended function—to be a guide to ‘rules of construction’ of Acts of Congress. See [Cong. Globe, 41st Cong. 3d Sess., 775 (1871)] (remarks of Sen. Trumbull).” Id. at 689 n. 53. ↵

     

11. Monell, supra, stated that “there can be no doubt that § 1 of the Civil Rights Act was intended … to be broadly construed.” 436 U.S. at 700. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, post, at 399-400, and n.17. Senator Thurman of Ohio, who opposed the Act, stated with respect to § 1 that “there is no limitation whatsoever upon the terms that are employed, and they are as comprehensive as can be used.” Cong. Globe, 42d Cong., 1st Sess., App. 217 (1871) (hereinafter Globe App.) (emphasis added). ↵

     

12. One of the reasons given by the Court in Hutto v. Finney, 437 U.S. 678 (1978), for not requiring an “express statutory waiver of the State’s immunity,” ante, at 344 n.16, before applying to the States the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988, was that the Act had been “enacted to enforce the Fourteenth Amendment.” 437 U.S. at 698 n.31. ↵

     

13. Section 1 of H.R. 320 was modeled after § 2 of the Civil Rights Act of 1866, 14 Stat. 27, which imposed criminal penalties on “any person” who, “under color of any law, statute, ordinance, regulation, or custom,” deprived “any inhabitant of any State or Territory” of “any right secured … by this act.” As Representative Shellabarger stated: “That section [§ 2] provides a criminal proceeding in identically the same case as this one [§ 1] provides a civil remedy….” Globe App. 68. Representative Bingham noted the limited application of the remedy provided by § 2: “It is clear that if Congress do so provide by penal laws for the protection of these rights [guaranteed by the Fourteenth Amendment], those violating them must answer for the crime, and not the States. The United States punishes men, not States, for a violation of its law.” Globe App. 85-86. Representative Bingham was thus able to distinguish, as apparently the Court is not, ante, at 341 n.11, between the reach of the word “person” in § 2 of the Civil Rights Act of 1866, and its reach in § 1 of the Civil Rights Act of 1871. ↵

     

14. Representative Blair reached this conclusion after reasoning that if the bill were interpreted as applicable only to individuals, it would not be able to fulfill the purposes of the Reconstruction Amendments. ↵

Notes on Quern v. Jordan

1. 1. Was it necessary for the Court to reach the issue of whether Section 1983 affords an action against States? Where does the Court find the issue raised by the parties? What in fact was the position of the parties as expressed in the Brief for Respondent and the Reply Brief for Petitioner?
   2. Did the Court in Quern apply the same standards in construing the legislative history of Section 1983 to determine the liability of States as it had employed nine months earlier in Monell to ascertain whether municipalities are suable under Section 1983? Should the governing standards differ?
   3. Could the 1871 Congress have been aware of the test which the Quern Court utilized to determine whether the legislature intended to impose liability upon the States? Would the enacting Congress have necessarily addressed the Eleventh Amendment implications of Section 1983? See Hans v. Louisiana, 134 U.S. 1, 14-45 (1890), where the Court for the first time held the Eleventh Amendment to bar a suit against a State by its own citizen.

      In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Court held that Congress did not have the power under the Commerce Clause to annul the States’ immunity under the Eleventh Amendment. Repudiating the dissenting justices’ argument that the framers of the Constitution never contended that sovereign immunity would affect the new federal question jurisdiction created by Article III of the Constitution, the majority offered that “the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later [1875] makes the dissent’s demand for greater specificity about then-dormant jurisdiction overly exacting.” Id. at 70.

   4. In Hutto v. Finney, 437 U.S. 678, 698 n.31 (1978), the Court rejected the Attorney General’s argument that the Attorneys Fees Award Act of 1976 did not abrogate the Eleventh Amendment immunity because the language of the statute did not expressly extend to States
      

      The present Act … has a history focusing directly upon 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 Edelman v. Jordan, 415 U.S. 651, were based on a statute rooted in Congress’ Article I power. . . . 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: “[The] 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 § 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…. 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.

      1. Under the Hutto analysis, should the Eleventh Amendment bar Section 1983 actions against a State for retroactive relief?
      2. What meaning does the Quern Court find attaches to Section 1983 insofar as States are concerned?
      3. After Quern, what remedy is afforded for past invasions of constitutional rights by the State?
         

         [T]he Eleventh Amendment certainly does not bar constitutional tort actions against states, save in a purely formal sense. In the main, it functions to force civil rights plaintiffs to sue state officers rather than the states themselves, thus triggering qualified immunity. The alternative of suing state officers under Section 1983 is anything but irrelevant to the law of the Eleventh Amendment. The Eleventh Amendment has survived not because it means so much but precisely because if means so little. If it were not possible to circumvent the Eleventh Amendment through Section 1983, the Supreme Court would long ago have confined the Eleventh Amendment to diversity cases or adopted some other debilitating construction. Put another way, Monroe v. Pape is the Ex Parte Young of retrospective relief. Just as the fiction of Ex Parte Young routinely allows civil rights plaintiffs to evade the Eleventh Amendment when they seek injunctive relief, Monroe v. Pape (almost as) routinely allows civil rights plaintiffs to evade the Eleventh Amendment when they seek money damages.

         John C. Jeffries, In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 59 (1998). Will suits against individual state officials under Section 1983 ensure redress to citizens who have suffered deprivations of federal constitutional rights. In what circumstances is recovery least likely?

   5. Because it determined that Congress did not intend to hold States liable under Section 1983, the Quern Court did not decide whether an express waiver in the language of an act is necessary to validly negate the Eleventh Amendment. In Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), the Court held that Congress had not rescinded the States’ Eleventh Amendment immunity when it enacted the Rehabilitation Act. Rejecting plaintiff’s invitation to find the abrogation in the legislative history of the Act, the Court mandated that “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” Atascadero, 473 U.S. at 242.
   6. How did the Court respond to the argument that the Dictionary Act, passed two months before Section 1983, indicates that States are “persons” and thus amenable to suit under Section 1983? Could a holding that States are not “persons” be reconciled with Monell v. New York Dept. of Social Services, 436 U.S. 658 (1978)? Does the Court in fact hold that States are not “persons” within the meaning of the statute?
   7. In Marrapese v. State of Rhode Island, 500 F. Supp. 1207 (D.R.I. 1980), plaintiff brought an action for damages against the State under Section 1983. Plaintiff successfully argued that Rhode Island had waived its immunity from suit in federal court by enacting a state law that rendered the State liable “in all actions of tort in the same manner as a private individual or corporation.” The district court rejected the State’s contention that Quern prohibited all Section 1983 actions against States:
      

      Justice Rehnquist’s opinion, while emphatic in reasserting the Court’s belief that Congress had not intended to abrogate the states’ immunity through § 1983, see 440 U.S. at 345, conspicuously avoided any statement that the term “person” did not include “state.”^[1] Stated precisely, Quern concluded only that the Congress which enacted § 1983 did not intend to force the states to answer in federal court for their constitutional violations. Of itself, this holding does not mandate the further conclusion that the 42d Congress did not intend to allow the states to answer in federal court for their constitutional violations if they consented to do so. The alternate interpretation of Quern, then, would recognize that the word “person,” when considered in light of the Dictionary Act and the legislative history of § 1983, is broad enough to encompass the state as a “body politic and corporate.”^[2] Limiting the practical effect of this construction would be the caveat that the statute leaves untouched Eleventh Amendment immunity, so that a state is not compellable to respond to § 1983 claims in federal court.

      Suggesting that Congress included the states within the scope of § 1983 only to leave them free to decline to answer for any constitutional wrongdoing appears strained, if not actually illogical. However, it seems to this Court that the consequences of adopting Justice Brennan’s interpretation of Quern are equally unreasonable. The legislative history reveals that proponents of § 1983 had the highest ambitions for the scope and effectiveness of its remedial powers. Representative Bingham, author of § 1 of the Fourteenth Amendment, argued in favor of the passage of § 1983:

      The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws…. (And) the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen has no remedy. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy…. Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in the States and by States, or combinations of persons?

      Cong. Globe, 42d Cong., 1st Sess. App. 85 (1871), quoted in Monell v. New York Dept. of Social Services, 436 U.S. at 685 n.45.

      Senator Edmunds, manager of the bill in the Senate, characterized § 1983 as “really reenact(ing) the Constitution.” Cong. Globe, 42d Cong., 1st Sess. 569 (1871), quoted in Monell v. New York Dept. of Social Services, 436 U.S. at 685. In interpreting a statute which “was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights,” Monell v. New York Dept. of Social Services, 436 U.S. at 700-01, would seem strained, if not actually illogical, to conclude that Congress meant to exclude the governmental entities which, being most powerful, could pose the greatest threat to the constitutional rights of citizens, even when those entities consented to suit.

      Faced, then, with two possible interpretations-neither of which is particularly satisfactory-this Court accepts the one that gives greatest latitude to § 1983’s broad remedial purpose. It concludes that the states are “persons” potentially liable for constitutional deprivations inflicted through official custom and policy, but that, because Congress has not exercised its § 5 powers to abrogate Eleventh Amendment immunity, each state must consent to the imposition of such liability. This interpretation allows victims of unconstitutional activity the largest possibility for redress, while exacting little cost in terms of federalism. Because there is no forced waiver, each state maintains ultimate control over its own potential liability.^[3] Moreover, this interpretation is consistent with earlier cases in which the Supreme Court seems to have assumed that a state could consent to § 1983 liability. See, e.g., Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Edelman v. Jordan, 415 U.S. at 671-74, 94 S. Ct. at 1358-1359.^[4]  Therefore, this Court holds that Rhode Island is a “person” within the meaning of § 1983.

   8. Under the interpretation of Quern adopted in Marrapese, is there a way in which plaintiffs could sue States for damages under Section 1983 even where the State has not waived its Eleventh Amendment immunity?