Certiorari Granted December 15, 1975. See 96 S.Ct. 561.
MANSFIELD, Circuit Judge:
The principal question on this appeal is whether, in a suit against a state by its employees attacking its retirement plan as discriminating on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Eleventh Amendment bars a federal court from granting, in addition to injunctive relief, monetary damages and attorneys' fees. We hold that the state is shielded by the Eleventh Amendment against an award of damages but not against an award of attorneys' fees that is ancillary to the permissible grant of prospective injunctive relief.
This litigation was brought by the named plaintiffs as a class action on behalf of all present and retired male employees of the State of Connecticut who were members of the State Employees' Retirement System, a retirement benefit plan established by the State Employees Retirement Act, Conn.Gen.Stat. §§ 5-152 to 5-192 ("Retirement Act" herein). Asserting equal protection claims under the Fourteenth Amendment and statutory violations under 42 U.S.C. § 1983, plaintiffs sought declaratory and injunctive relief against the State Treasurer, State Comptroller, and the Chairman of the State Employees' Retirement Commission, to restrain continued enforcement by those officials of sexually discriminatory provisions of the Retirement Act. Plaintiffs objected to §§ 5-162, 5-163 and 5-166, which grant to women employees having 25 or more years of state service the right to retire with pension rights five (5) years earlier than similarly situated men, and further provide rate differentials favoring female over male employees who retire with less than 25 years of state service.
A three-judge court was convened to hear the case, 28 U.S.C. §§ 2281, 2284, but on October 15, 1973, plaintiffs amended their complaint to add a count alleging that the Retirement Act violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. Title VII, which originally did not apply to state governments, had been amended by Public Law No. 92-261, 86 Stat. 103, effective March 24, 1972, to bring the states within its purview.
The section of Title VII prescribing remedies which a court may employ against violation of that title states that, in addition to enjoining an unlawful employment practice, the court may
In addition to injunctive relief, plaintiffs also sought in their complaint an order requiring defendants to recalculate for all living retired male employees the benefits to which similarly situated female employees would have been entitled, and to pay out to the retired male employees the difference between the recalculated benefits and the benefits actually received.
On this appeal plaintiffs argue that there are several critical factors present in this case that did not confront the Edelman court. While we agree that Edelman v. Jordan is not in all respects controlling in this case, we believe Judge Clarie correctly resolved the Eleventh Amendment issue with respect to the back pay claim, and affirm. We reverse his holding, however, insofar as it barred the attorneys' fee claim.
The Eleventh Amendment to the Constitution states:
Adopted in 1798, the Amendment was enacted in direct response to widespread dissatisfaction with the Supreme Court's 1793 decision in Chisholm v. Georgia, 2 Dall. 419, 2 U.S. 419, 1 L.Ed. 440 which held that under Article III, § 2,
Likewise following this principle, the Supreme Court has long held that even though the state is not a named party the shield provided by the Amendment may in an appropriate case be invoked by the defendants, see, e. g., In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Louisiana v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1882). Looking to substance rather than to form, the Court decided that immunity should not depend on "the mere names of the titular parties but . . . the essential nature and effect of the proceeding, as it appears from the entire record." Ex Parte New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921); see Hagood v. Southern, 117 U.S. 52, 67, 6 S.Ct. 608, 29 L.Ed. 805 (1886); Smith v.
On the other side of the coin, the Eleventh Amendment does not bar a suit to enjoin enforcement by a state officer of an unconstitutional state statute. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court, in reaching this result, relied on the common law principle that a state officer acting illegally is deemed to act "without the authority of" the state and therefore outside its shield of sovereign immunity. 209 U.S. at 159-60, 28 S.Ct. 441. Furthermore, although the Eleventh Amendment shields the state against a retroactive award of monetary damages payable out of the state treasury as compensation for its past breach of a legal duty, a judgment requiring a state to expend some public funds in connection with obtaining or implementing injunctive relief against it is permissible, even though the award in such a case has "an ancillary effect on the state treasury," Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358 (1974); Jordan v. Fusari, 496 F.2d 646, 651 (2d Cir. 1974).
Plaintiffs here contend that the "recalculated benefits" sought by them would be paid neither by the defendants personally nor out of "public funds in the state treasury" but from the Retirement Fund
Since all retirement benefit moneys are first paid into this "separate fund," plaintiffs argue that this case does not come within the rule of Ford Motor Co. and Edelman and that the Eleventh Amendment is therefore no bar to the action. Although the defendants did not deem this argument worthy of response in their brief, the substantiality of plaintiffs' assertion has been focused by a recent District of Rhode Island decision holding that Rhode Island's state retirement fund was unprotected by the state's Eleventh Amendment shield. Bowen v. Hackett, 387 F.Supp. 1212 (1975).
In determining whether a separate state agency or institution shares the Eleventh Amendment shield as an "alter ego" of the state, a court must look to numerous factors, no one of which is conclusive, see Krisel v. Duran, 258 F.Supp. 845, 848-49 (S.D.N.Y.1966) (Weinfeld, J.), affd. per curiam, 386 F.2d 179 (2d Cir. 1967), cert. denied, 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1968); Zeidner v. Wulforst, 197 F.Supp. 23 (E.D.N.Y.1961); cf. State Highway Comm'n v. Utah Const. Co., 278 U.S. 194, 199, 49 S.Ct. 104, 73 L.Ed. 262 (1929). The most important, of course, is whether, in the event plaintiff prevails, judgment will have to be paid out of the state treasury. Whitten v. State University Const. Fund, 493 F.2d 177, 180 (1st Cir. 1974) (Moore, J.); Gordenstein v. University of Delaware, 381 F.Supp. 718, 721 (D.Del.1974); Bowen v. Hackett, supra;
In concluding in Bowen v. Hackett that the Rhode Island retirement fund was not an "alter ego" of the state, the court found that the fund was created solely from the contributions of employees and that the state had no legal duty to replenish the fund if it should become depleted or pay a judgment against the fund. Here the situation is vastly different. Regardless of whether Connecticut would be liable for a judgment against the Retirement Fund, the state is required to appropriate funds on an actuarial basis, the amount being determined each year, and to pay at least 75% of the total retirement income payments for each year. Conn.Gen.Stat. § 5-156a. A judgment against the fund would thus automatically increase the obligations of the general state treasury
Plaintiffs' argument thus boils down to an assertion that the effect on the general public treasury is permissibly indirect because the state treasury will not feel the pinch until the time comes for the next annual appropriation to the fund. However, this view would distort the meaning of the term "ancillary" as used by the Court in Edelman and would have the effect of sharply curtailing, if not emasculating, the concept of a "suit against the state." Accordingly, we hold that the action here, insofar as it seeks damages, is in essence against the state and as such is subject to the Eleventh Amendment.
Plaintiffs' major contention is that, even assuming that the action is properly characterized as one against the state which would normally entitle the state to invoke its Eleventh Amendment immunity, the state here has waived that immunity and in effect consented to suit. Although barriers to federal court jurisdiction normally may not be "waived" by the parties, Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379, 384, 4 S.Ct. 510, 28 L.Ed. 462 (1884), it has been long held that a state may consent to a suit that would otherwise be barred by the Eleventh Amendment, see, e. g., Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883),
Plaintiffs do not suggest that consent to their suit was expressly or directly given by the State of Connecticut. Rather they argue that waiver or consent may be inferred from certain action taken by the state itself, and that in any event Congress was vested by the Fourteenth Amendment to modify Connecticut's immunity in civil rights suits.
First it is argued that Connecticut waived its immunity by its own enactment of certain laws. Plaintiffs rely on Article XI, § 4 of the state Constitution which provides, "Claims against the state shall be resolved in such manner as may be provided by law." It is sufficient that the Connecticut state courts, albeit in the context of a different type of claim, have determined that this section does not waive sovereign immunity, Fidelity Bank v. State of Connecticut, 348 A.2d 633 (1974). But even if Connecticut allowed suit against it in the context of a claim for damages due to discrimination, it is settled that a state may "give its consent to be sued in its own courts by private persons or by corporations, in respect of any cause of action against it and at the same time exclude the jurisdiction of the Federal courts . . .," Smith v. Reeves, 178 U.S. 436, 445, 20 S.Ct. 919, 922, 44 L.Ed. 1140 (1900).
For the same reasons plaintiffs' citation of various provisions of the Connecticut Constitution and statutes prohibiting discrimination in that state is of no avail. See, e. g., Conn.Const. Art. I, § 20, Conn.Gen.Stat. §§ 4-61c to 4-61j. Even if these sections authorized a damage action for discrimination against the state, no possible inference could be drawn that the state had also consented to a similar action in federal court. Great Northern Life, supra; Knight v. State of New York, supra.
Before reaching the more troublesome question of whether Connecticut has waived its immunity by engaging in activity subject to Congressional regulation under the Fourteenth Amendment, we must first determine whether Title VII as amended has authorized a private action for damages against the state. If it has not, that would be the end of the matter, since in the absence of Congressional authorization plaintiffs would be out of court. Serious doubts are raised as to existence of such authority by the Supreme Court's recent decision in Employees v. Department of Public Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), where it faced a similar problem under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 200 et seq. In 1966 the FLSA, which regulates the working conditions of those producing goods for commerce, was amended to bring within its scope state-operated hospitals and the employees thereof, see Pub.L. 89-601, 80 Stat. 830-32, 837 (Sept. 23, 1966). Prior thereto states had been excluded from the Act. Section 16(b) of FLSA, 29 U.S.C. § 216(b), which authorized a private action
The amendments to Title VII, like those to the FLSA, merely changed the definition of "employer" to include the states,
Although we must conclude that Congress authorized private damage suits against the states for violation of Title VII, we reject any suggestion that an inference of voluntary waiver or consent may be drawn from the state's mere continuance of its governmental function of hiring employees to perform state duties and of providing for their working conditions, including retirements. It is obvious that Connecticut, which had engaged in these activities as an essential part of its functions long before Title VII was amended to include the states, would, regardless of the amendment, have no choice but to continue doing so thereafter or cease functioning as a state. Thus no basis exists for finding voluntary waiver. Cf. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See Note, Private Suits Against States in Federal Courts, 33 U.Chi.L.Rev. 331, 336 (1966). Although its continued engagement in these activities might conceivably be labelled a "constructive" consent, the Supreme Court in Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360 (1974), stated that "[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here."
Parden v. Terminal Ry. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), relied upon by plaintiffs, is clearly inapposite. There the State of Alabama, in face of the fact that interstate railroads were subject to the Federal Employees Liability Act, 45 U.S.C. § 51 et seq., and had been subjected to extensive regulation by Congress, see California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957) (state-owned railroad subject to Railway Labor Act); United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936) (same subject to Federal Safety Appliance Act), undertook the operation of such a railroad, which was essentially a proprietary business. In these circumstances a finding of voluntary waiver of constitutional
Plaintiffs next contend that, even assuming that Connecticut has not by its own conduct waived its Eleventh Amendment immunity or consented to suit, Congress nevertheless had the power to subject it to a private action for damages for denial of civil rights. While conceding that Congress cannot expand the scope of federal jurisdiction beyond the limits of the Constitution, Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803), plaintiffs assert that Congress' power may be found in the Fourteenth Amendment, which must be deemed to have modified the Eleventh in the area of civil rights. Plaintiffs point to the history of the Fourteenth Amendment, which evolved from a dissatisfaction with the states' failure to protect the civil rights of their citizens, and to the statements of various Congressmen who objected to the post-Civil War legislation on the ground that it would impair the "sovereignty" of the States.
The question is not as broad as applicants would have it. Essentially it is a narrow one, which deals more with procedure than substance, i. e., whether the particular remedy sought here, a private federal action for retroactive damages, is a constitutionally permissible method of enforcing Fourteenth Amendment rights, notwithstanding the immunity granted to the states by the Eleventh Amendment. Accepting the fact that legislation enforcing individual rights under the Fourteenth Amendment must to some extent subject states to private suits, it does not follow that Congress necessarily has power to provide the particular remedy sought here.
To the extent that a tension exists between enforcement of rights under the Fourteenth and the state's immunity under the Eleventh, our duty is to reconcile and give effect to both amendments insofar as possible. See Prout v. Starr, 188 U.S. 537, 543-44, 23 S.Ct. 398, 47 L.Ed. 584 (1903). Observing that "particularly after the Civil War, Congress undertook to make federal courts the primary guardians of constitutional rights," Justice Brennan in his separate opinion in Perez v. Ledesma, 401 U.S. 82,
This desirable balance should not be upset in the context of suits to enforce Fourteenth Amendment rights unless other means that might be made available for enforcement of rights under that Amendment are so ineffective that Congress, in promulgating the Fourteenth Amendment after its adoption by more than three-quarters of the Union, necessarily implied that the Eleventh Amendment's remedial bar to a damage action against a state must yield. There is no reason to find such a necessary implication, however, since Congress, under the balance as reaffirmed in Edelman, has at its disposal various methods other than private federal damage suits for enforcing Fourteenth Amendment rights.
The prospective injunctive relief available under Ex Parte Young, if it stood alone, should offer adequate relief as a remedy for enforcement of Fourteenth Amendment rights against the states. However, other remedies either are or may be made available. The Eleventh Amendment presents no bar to a suit by the United States against a state, United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). Congress can authorize a suit by the federal government on a private plaintiff's behalf and it has done so in Title VII. See 42 U.S.C. § 2000e-5(f)(1). A suit by the United States against a state to recover back benefits on behalf of persons protected by a federal statute is permissible. Brennan v. State of Iowa, 494 F.2d 100, 104 (8th Cir. 1974); see Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966).
Furthermore, although Congress did not suggest that jurisdiction over private actions under Title VII extends to state courts,
Thus there is no reason in this case to depart from the balance between the Eleventh Amendment and other constitutional interests which was most recently reaffirmed in Edelman. In any event it may not still be open to this court to accept plaintiffs' invitation to disregard the Eleventh Amendment in Fourteenth Amendment cases. While Justice Marshall's dissent in Edelman suggested that the Supreme Court had not decided whether the Eleventh Amendment is limited by the later enactment of the Fourteenth, 415 U.S. at 694 n.2, the majority in that case expressly overruled Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), State Department of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972) (per curiam), and Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970) (per curiam), all cases involving Fourteenth Amendment causes of action, insofar as those cases allowed assessment of retroactive damages against the state. 415 U.S. at 670-71, 94 S.Ct. 1347. See also Wilkerson v. Meskill, 501 F.2d 297 (2d Cir. 1974), in which this court affirmed per curiam on the basis of Edelman a dismissal of plaintiff's claims to back wages from the state based on equal protection and due process, although without considering the arguments presented here. Further see Skehan v. Board of Trustees, 501 F.2d 31, 42 n.7 (3d Cir. 1974); Burton v. Waller, 502 F.2d 1261, 1273 (5th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975).
Plaintiffs' request for costs and attorneys' fees stands on a different footing. While the district court was without jurisdiction to entertain the plaintiffs' claims for retroactive damages against the state, the court did have jurisdiction to entertain the claim for prospective injunctive relief against state officers, Ex Parte Young, supra, based on the state's failure in its duty to conform its conduct to federal law and its threatened continuation on the same illegal course in the future. In order to invoke the court's power to enjoin such future illegal conduct, it was necessary to incur costs and attorneys' fees which, as we recently held in Class v. Norton, 505 F.2d 123, 126-27 (2d Cir. 1974), may be assessed as having a permissible "ancillary effect" on the state treasury, see Edelman v. Jordan, 415 U.S. at 667-68, 94 S.Ct. 1347, of a prospective order. See Sims v. Amos, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1973), aff'g, 340 F.Supp. 693 (M.D.Ala.1972) (three-judge court); Souza v. Travisono, 512 F.2d 1137, 1139 (1st Cir. 1975). We adhere to Class and accordingly decline to join those circuits which have denied attorneys' fees, see Skehan v. Board of Trustees, 501 F.2d 31, 42 (3d Cir. 1974); Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974); Taylor v. Perini, 503 F.2d 899, 901 (6th Cir. 1974); Named Indiv. Members
For the foregoing reasons we remand the case to the district court for the purpose of determining in its sound discretion whether an award of attorneys' fees is appropriate and, if so, the amount that may reasonably be awarded.
The Rosado Court suggested that in that case "the most appropriate course may well have been to remand to the single district judge for findings and determination of the statutory claim," 397 U.S. at 403, 90 S.Ct. at 1213, and this suggestion seems to have been firmly adopted by the Court in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). In Hagans the district court, sitting alone, had determined the substantiality of the constitutional claims but then proceeded to consider on the merits the statutory claim without first convening a three-judge court. The Supreme Court approved this procedure, observing that if a three-judge court had been convened, "in view of what we have said in Rosado . . . [the three-judge panel] could then merely pass the statutory claim back to the single judge." 415 U.S. at 544, 94 S.Ct. at 1383. See also Doe v. Lavine, 347 F.Supp. 357, 359-60 (S.D.N.Y.1972) (Gurfein, J.). The single district judge thus had power to hear the statutory claim. Since Judge Clarie granted the injunction, we do not face the problem in Murrow v. Clifford, 502 F.2d 1066 (3d Cir. 1974), criticized in 88 Harv.L.Rev. 1028 (1975), holding that the power of the single district judge in these circumstances does not extend to the denial of an injunction.
For the same reasons this court has jurisdiction of the present appeal, even though the statutory claim decided below might have been properly decided by the three-judge panel, see King v. Smith, supra, in which event the appeal would lie only to the Supreme Court, 28 U.S.C. § 1253. See Hagans v. Lavine, supra, 415 U.S. at 543, 94 S.Ct. 1372.
Similarly, the Senate Report stated:
This argument suggests that Congress has unlimited power to provide remedies to enforce the Fourteenth Amendment. But the mere fact that Congress may constitutionally apply the substantive provisions of certain legislation against the states is not inconsistent with the fact that certain remedies may not be available against the states. Maryland v. Wirtz, 392 U.S. 183, 200, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). See also California v. Taylor, 353 U.S. 553, 568 n. 16, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957).