Edelman v. Jordan
415 U.S. 651 (1974)

Annotate this Case

U.S. Supreme Court

Edelman v. Jordan, 415 U.S. 651 (1974)

Edelman v. Jordan

No. 72-1410

Argued December 12, 1973

Decided March 25, 1974

415 U.S. 651

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

Respondent brought this class action for injunctive and declaratory relief against the Illinois officials administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AABD), which are funded equally by the State and Federal Governments, contending that they were violating federal law and denying equal protection of the laws by following state regulations that did not comply with the federal time limits within which participating States had to process and make grants with respect to AABD applications. The District Court by a permanent injunction required compliance with the federal time limits and also ordered the state officials to release and remit AABD benefits wrongfully withheld to all persons found eligible who had applied therefor between July 1, 1968, the date of the federal regulations, and April 16, 1971, the date of the court's preliminary injunction. The Court of Appeals affirmed, rejecting the state officials' contentions that the Eleventh Amendment barred the award of the retroactive benefits and that the judgment of inconsistency between federal regulations and state provisions could be given only prospective effect.

Held: The Eleventh Amendment of the Constitution bars that portion of the District Court's decree that ordered retroactive payment of benefits. Pp. 415 U. S. 658-678.

(a) A suit by private parties seeking to impose a liability payable from public funds in the state treasury is foreclosed by the Amendment if the State does not consent to suit. Pp. 415 U. S. 662-663.

(b) The Court of Appeals erred in holding that Ex parte Young,209 U. S. 123, which awarded only prospective relief, did not preclude the retroactive monetary award here on the ground that it was an "equitable restitution," since that award, though on its face directed against the state official individually, as a practical matter, could be satisfied only from the general revenues of the State, and was indistinguishable from an award of damages against the State. Ford Motor Co. v. Department of Treasury,

Page 415 U. S. 652

323 U. S. 459, followed. Shapiro v. Thompson,394 U. S. 618; State Dept. of Health and Rehabilitation Services v. Zarate, 407 U.S. 918; Sterrett v. Mothers' & Children's Rights Organization, 409 U.S. 809; Wyman v. Bowens,397 U. S. 49, disapproved to extent that their holdings do not comport with the holding in the instant case on the Eleventh Amendment issue. Pp. 415 U. S. 663-671.

(c) The State of Illinois did not waive its Eleventh Amendment immunity and consent to the bringing of respondent's suit by participating in the federal AABD program. Parden v. Terminal R. Co.,377 U. S. 184, and Petty v. Tennessee-Missouri Bridge Comm'n,359 U. S. 275, distinguished. Nor does the mere fact that a State participates in a program partially funded by the Federal Government manifest consent by the State to be sued in federal courts. Pp. 415 U. S. 671-674.

(d) The Court of Appeals properly considered the Eleventh Amendment defense, which the state officials did not assert in the District Court, since that defense partakes of the nature of a jurisdictional bar. Ford Motor Co. v. Department of Treasury, supra. Pp. 415 U. S. 677-678.

472 F.2d 985, reversed and remanded.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined. DOUGLAS, .J., post, p. 415 U. S. 678, and BRENNAN, J., post, p. 415 U. S. 687, filed dissenting opinions. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 415 U. S. 688.

Page 415 U. S. 653

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Respondent John Jordan filed a complaint in the United States District Court for the Northern District of Illinois, individually and as a representative of a class, seeking declaratory and injunctive relief against two former directors of the Illinois Department of Public Aid, the director of the Cook County Department of Public Aid, and the comptroller of Cook County. Respondent alleged that these state officials were administering the federal-state programs of Aid to the Aged, Blind, or Disabled (AABD) in a manner inconsistent with various federal regulations and with the Fourteenth Amendment to the Constitution. [Footnote 1]

AABD is one of the categorical aid programs administered by the Illinois Department of Public Aid pursuant to the Illinois Public Aid Code, Ill.Rev.Stat., c. 23, §§ 3-1 through 3-12 (1973). Under the Social Security Act, the program is funded by the State and the Federal Governments. 42 U.S.C. § 1381-1385. [Footnote 2] The Department of Health, Education, and Welfare (HEW),

Page 415 U. S. 654

which administers these payments for the Federal Government issued regulations prescribing maximum permissible time standards within which States participating in the program had to process AABD applications. Those regulations, originally issued in 1968, required, at the time of the institution of this suit, that eligibility determinations must be made by the States within 30 days of receipt of applications for aid to the aged and blind, and within 45 days of receipt of applications for aid to the disabled. For those persons found eligible, the assistance check was required to be received by them within the applicable time period. 45 CFR § 206.10(a)(3). [Footnote 3]

Page 415 U. S. 655

During the period in which the federal regulations went into effect, Illinois public aid officials were administering the benefits pursuant to their own regulations as provided in the Categorical Assistance Manual of the Illinois Department of Public Aid. [Footnote 4] Respondent's complaint charged that the Illinois defendants, operating under those regulations, were improperly authorizing grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. The complaint also alleged that the Illinois defendants were not processing the applications within the applicable time requirements of the federal regulations; specifically, respondent alleged that his own application

Page 415 U. S. 656

for disability benefits was not acted on by the Illinois Department of Public Aid for almost four months. Such actions of the Illinois officials were alleged to violate federal law and deny the equal protection of the laws. Respondent's prayer requested declaratory and injunctive relief, and specifically requested "a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all AABD benefits wrongfully withheld."

In its judgment of March 15, 1972, the District Court declared § 4004 of the Illinois Manual to be invalid insofar as it was inconsistent with the federal regulations found in 45 CFR § 206.10(a)(3), and granted a permanent injunction requiring compliance with the federal time limits for processing and paying AABD applicants. The District Court, in paragraph 5 of its judgment, also ordered the state officials to

"release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 [the date of the federal regulations] and April 16, 197[1] [the date of the preliminary injunction issued by the District Court] and were determined eligible. . . . [Footnote 5] "

Page 415 U. S. 657

On appeal to the United States Court of Appeals for the Seventh Circuit, the Illinois officials contended, inter alia, that the Eleventh Amendment barred the award of

Page 415 U. S. 658

retroactive benefits, that the judgment of inconsistency between the federal regulations and the provisions of the Illinois Categorical Assistance Manual could be given prospective effect only, and that the federal regulations in question were inconsistent with the Social Security Act itself. The Court of Appeals rejected these contentions and affirmed the judgment of the District Court. Jordan v. Weaver, 472 F.2d 985 (1973). [Footnote 6] Because of an apparent conflict on the Eleventh Amendment issue with the decision of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F.2d 226 (1972), cert. denied, 411 U.S. 921 (1973), we granted the petition for certiorari filed by petitioner Joel Edelman, who is the present Director of the Illinois Department of Public Aid, and successor to the former directors sued below. 412 U.S. 937 (1973). The petition for certiorari raised the same contentions urged by the petitioner in the Court of Appeals. [Footnote 7] Because we believe the Court of Appeals

Page 415 U. S. 659

erred in it disposition of the Eleventh Amendment claim, we reverse that portion of the Court of Appeals decision which affirmed the District Court's order that retroactive benefits be paid by the Illinois state officials. [Footnote 8]

Page 415 U. S. 660

The historical basis of the Eleventh Amendment has been oft stated, and it represents one of the more dramatic examples of this Court's effort to derive meaning from the document given to the Nation by the Framers nearly 200 years ago. A leading historian of the Court tells us:

"The right of the Federal Judiciary to summon a State as defendant and to adjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the time of the adoption of the Constitution; but the existence of any such right had been disclaimed by many of the most eminent advocates of the new Federal Government, and it was largely owing to their successful dissipation of the fear of the existence of such Federal power that the Constitution was finally adopted."

1 C. Warren, The Supreme Court in United States History 91 (rev. ed.1937).

Despite such disclaimers, [Footnote 9] the very first suit entered

Page 415 U. S. 661

in this Court at its February Term in 1791 was brought against the State of Maryland by a firm of Dutch bankers as creditors. Vanstophorst v. Maryland, see 2 Dall.

Page 415 U. S. 662

401 and Warren, supra at 91 n. 1. The subsequent year brought the institution of additional suits against other States, and caused considerable alarm and consternation in the country.

The issue was squarely presented to the Court in a suit brought at the August, 1792, Term by two citizens of South Carolina, executors of a British creditor, against the State of Georgia. After a year's postponement for preparation on the part of the State of Georgia, the Court, after argument, rendered in February, 1793, its short-lived decision in Chisholm v. Georgia, 2 Dall. 419. The decision in that case, that a State was liable to suit by a citizen of another State or of a foreign country, literally shocked the Nation. Sentiment for passage of a constitutional amendment to override the decision rapidly gained momentum, and five years after Chisholm, the Eleventh Amendment was officially announced by President John Adams. Unchanged since then, the Amendment provides:

"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

While the Amendment, by its terms, does not bar suits against a State by its own citizens, this Court has consistently

Page 415 U. S. 663

held that an unconsenting State is immune from suits brought in federal courts by her own citizens, as well as by citizens of another State. Hans v. Louisiana,134 U. S. 1 (1890); Duhne v. New Jersey,251 U. S. 311 (1920); Great Northern Life Insurance Co. v. Read,322 U. S. 47 (1944); Parden v. Terminal R. Co.,377 U. S. 184 (1964); Employees v. Department of Public Health and Welfare,411 U. S. 279 (1973). It is also well established that, even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury,323 U. S. 459 (1945), the Court said:

"[W]hen the action is, in essence, one for the recovery of money from the state, the state is the real, substantial party in interest, and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."

Id. at 323 U. S. 464. Thus, the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, supra; Kennecott Copper Corp. v. State Tax Comm'n,327 U. S. 573 (1946).

The Court of Appeals in this case, while recognizing that the Hans line of cases permitted the State to raise the Eleventh Amendment as a defense to suit by its own citizens, nevertheless concluded that the Amendment did not bar the award of retroactive payments of the statutory benefits found to have been wrongfully withheld. The Court of Appeals held that the above-cited cases, when read in light of this Court's landmark decision in Ex parte Young,209 U. S. 123 (1908), do not preclude

Page 415 U. S. 664

the grant of such a monetary award in the nature of equitable restitution.

Petitioner concedes that Ex parte Young, supra, is no bar to that part of the District Court's judgment that prospectively enjoined petitioner's predecessors from failing to process applications within the time limits established by the federal regulations. Petitioner argues, however, that Ex parte Young does not extend so far as to permit a suit which seeks the award of an accrued monetary liability which must be met from the general revenues of a State, absent consent or waiver by the State of its Eleventh Amendment immunity, and that, therefore, the award of retroactive benefits by the District Court was improper.

Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; the Attorney General of Minnesota was enjoined to conform his future conduct of that office to the requirement of the Fourteenth Amendment. Such relief is analogous to that awarded by the District Court in the prospective portion of its order under review in this case.

But the retroactive portion of the District Court's order here, which requires the payment of a very substantial amount of money which that court held should have been paid, but was not, stands on quite a different footing. These funds will obviously not be paid out of the pocket of petitioner Edelman. Addressing himself to a similar situation in Rothstein v. Wyman, 467 F.2d 226

Page 415 U. S. 665

(CA2 1972), cert. denied, 411 U.S. 921 (1973), Judge McGowan [Footnote 10] observed for the court:

"It is not pretended that these payments are to come from the personal resources of these appellants. Appellees expressly contemplate that they will, rather, involve substantial expenditures from the public funds of the state. . . ."

"It is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force."

467 F.2d at 236-237 (footnotes omitted).

We agree with Judge McGowan's observations. The funds to satisfy the award in this case must inevitably come from the general revenues of the State of Illinois, and thus the award resembles far more closely the monetary award against the State itself, Ford Motor Co. v. Department of Treasury, supra, than it does the prospective injunctive relief awarded in Ex parte Young.

The Court of Appeals, in upholding the award in this case, held that it was permissible because it was in the form of "equitable restitution" instead of damages, and therefore capable of being tailored in such a way as to minimize disruptions of the state program of categorical assistance. But we must judge the award actually made in this case, and not one which might have been differently tailored in a different case, and we must judge

Page 415 U. S. 666

it in the context of the important constitutional principle embodied in the Eleventh Amendment. [Footnote 11]

We do not read Ex parte Young or subsequent holdings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled "equitable" in nature. The Court's opinion in Ex parte Young hewed to no such line. Its citation of Hagood v. Southern,117 U. S. 52 (1886), and In re Ayers,123 U. S. 443 (1887), which were both actions

Page 415 U. S. 667

against state officers for specific performance of a contract to which the State was a party, demonstrate that equitable relief may be barred by the Eleventh Amendment.

As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson,403 U. S. 365 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly,397 U. S. 254 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. [Footnote 12] But the fiscal consequences to state

Page 415 U. S. 668

treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of he Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra.

But that portion of the District Court's decree which petitioner challenges on Eleventh Amendment grounds goes much further than any of the cases cited. It requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of "equitable restitution," it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will, to a virtual certainty, be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.

Were we to uphold this portion of the District Court's decree, we would be obligated to overrule the Court's holding in Ford Motor Co. v. Department of Treasury, supra. There, a taxpayer, who had, under protest, paid taxes to the State of Indiana, sought a refund of those taxes from the Indiana state officials who were charged with their collection. The taxpayer claimed that the tax

Page 415 U. S. 669

had been imposed in violation of the United States Constitution. The term "equitable restitution" would seem even more applicable to the relief sought in that case, since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction. Yet this Court had no hesitation in holding that the taxpayer's action was a suit against the State, and barred by the Eleventh Amendment. We reach a similar conclusion with respect to the retroactive portion of the relief awarded by the District Court in this case.

The Court of Appeals expressed the view that its conclusion on the Eleventh Amendment issue was supported by this Court's holding in Department of Employment v. United States,385 U. S. 355 (1966). There, the United States was held entitled to sue the Colorado Department of Employment in the United States District Court for refund of unemployment compensation taxes paid under protest by the American National Red Cross, an instrumentality of the United States. The discussion of the State's Eleventh Amendment claim is confined to the following sentence in the opinion:

"With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Monaco v. Mississippi,292 U. S. 313 (1934), and Ex parte Young,209 U. S. 123 (1908)."

Id. at 385 U. S. 358.

Monaco v. Mississippi,292 U. S. 313 (1934), reaffirmed the principle that the Eleventh Amendment was no bar to a suit by the United States against a State. Id. at 292 U. S. 329. In view of Mr. Chief Justice Hughes' vigorous reaffirmation in Monaco of the principles of the Eleventh Amendment and sovereign immunity, we think it unlikely that the Court in Department of Employment v. United States, in citing Ex parte Young as well as Monaco,

Page 415 U. S. 670

intended to foreshadow a departure from the rule to which we adhere today.

Three fairly recent District Court judgments requiring state directors of public aid to make the type of retroactive payment involved here have been summarily affirmed by this Court notwithstanding Eleventh Amendment contentions made by state officers who were appealing from the District Court judgment. [Footnote 13] Shapiro v. Thompson,394 U. S. 618 (1969), is the only instance in which the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued. The three-judge District Court in that case had ordered the retroactive payment of welfare benefits found by that court to have been unlawfully withheld because of residence requirements held violative of equal protection. 270 F.Supp. 331, 338 n. 5 (Conn.1967). This Court, while affirming the judgment, did not, in its opinion, refer to or substantively treat the Eleventh Amendment argument. Nor, of course, did the summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties.

This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amendment

Page 415 U. S. 671

aspects of such relief in a written opinion. Shapiro v. Thompson and these three summary affirmances obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the relief awarded by the District Court in this case. Equally obviously, they are not of the same precedential value as would be an opinion of this Court treating the question on the merits. Since we deal with a constitutional question, we are less constrained by the principle of stare decisis than we are in other areas of the law. [Footnote 14] Having now had an opportunity to more fully consider the Eleventh Amendment issue after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today.

The Court of Appeals held, in the alternative, that, even if the Eleventh Amendment be deemed a bar to the retroactive relief awarded respondent in this case, the State of Illinois had waived its Eleventh Amendment immunity and consented to the bringing of such a suit by participating in the federal AABD program. The Court of Appeals relied upon our holdings in Parden v. Terminal R. Co.,377 U. S. 184 (1964), and Petty v. Tennessee-Missouri Bridge Comm'n,359 U. S. 275 (1959),

Page 415 U. S. 672

and on the dissenting opinion of Judge Bright in Employees v. Department of Public Health and Welfare, 452 F.2d 820 827 (CA8 1971). While the holding in the latter case was ultimately affirmed by this Court in 411 U. S. 411 U.S. 279 (1973), we do not think that the answer to the waiver question turns on the distinction between Parden, supra, and Employees, supra. Both Parden and Employees involved a congressional enactment which, by its terms, authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities. Similarly, Petty v. Tennessee-Missouri Bridge Comm'n, supra, involved congressional approval, pursuant to the Compact Clause, of a compact between Tennessee and Missouri, which provided that each compacting State would have the power "to contract, to sue, and be sued in its own name." The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State, by its participation in the program, authorized by Congress had in effect consented to the abrogation of that immunity.

But in this case, the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent. Thus, respondent is not only precluded from relying on this Court's holding in Employees, but on this Court's holdings in Parden and Petty as well. [Footnote 15]

Page 415 U. S. 673

The Court of Appeals held that, as a matter of federal law, Illinois had "constructively consented" to this suit by participating in the federal AABD program and agreeing to administer federal and state funds in compliance with federal law. Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated

"by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction."

Murray v. Wilson Distilling Co.,213 U. S. 151, 213 U. S. 171 (1909). We see no reason to retreat from the Court's statement in Great Northern Life Insurance Co. v. Read, 322 U.S. at 322 U. S. 54 (footnote omitted):

"[W]hen we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration, a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found."

The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. And while this Court has, in cases such as J. I. Case Co. v. Borak, 377

Page 415 U. S. 674

U.S. 426 (1964), authorized suits by one private party against another in order to effectuate a statutory purpose, it has never done so in the context of the Eleventh Amendment and a state defendant. Since Employees, supra, where Congress had expressly authorized suits against a general class of defendants and the only thing left to implication was whether the described class of defendants included States, was decided adversely to the putative plaintiffs on the waiver question, surely this respondent must also fail on that issue. The only language in the Social Security Act which purported to provide a federal sanction against a State which did not comply with federal requirements for the distribution of federal monies was found in former 42 U.S.C. § 1384 (now replaced by substantially similar provisions in 42 U.S.C. § 804), which provided for termination of future allocations of federal funds when a participating State failed to conform with federal law. [Footnote 16] This provision, by its terms, did not authorize suit against anyone, and standing alone, fell far short of a waiver by a participating State of its Eleventh Amendment immunity.

Our Brother MARSHALL argues in dissent and the Court of Appeals held, that, although the Social Security Act itself does not create a private cause of action, the cause of action created by 42 U.S.C. § 1983, coupled with the enactment of the AABD program, and the issuance by HEW of regulations which require the States to make corrective payments after successful "fair hearings"

Page 415 U. S. 675

and provide for federal matching funds to satisfy federal court orders of retroactive payments, indicate that Congress intended a cause of action for public aid recipients such as respondent. [Footnote 17] It is, of course, true that Rosado v. Wyman,397 U. S. 397 (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States. [Footnote 18] But it has not heretofore

Page 415 U. S. 676

been suggested that § 1983 was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that

Page 415 U. S. 677

section against state officers, rather than against the State itself. Though a § 1983 action may be instituted by public aid recipients such as respondent, 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.

Respondent urges that, since the various Illinois officials sued in the District Court failed to raise the Eleventh Amendment as a defense to the relief sought by respondent, petitioner is therefore barred [Footnote 19] from raising the Eleventh Amendment defense in the Court of Appeals or in this Court. The Court of Appeals apparently felt the defense was properly presented, and dealt with it on the merits. We approve of this resolution, since it has been well settled since the decision

Page 415 U. S. 678

in Ford Motor Co. v. Department of Treasury, supra, that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so hat it need not be raised in the trial court:

"[The Attorney General of Indiana] appeared in the federal District Court and the Circuit Court of Appeals and defended the suit on the merits. The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued by Indiana in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment in this case even though urged for the first time in this Court."

323 U.S. at 323 U. S. 466-467.

For the foregoing reasons, we decide that the Court of Appeals was wrong in holding that the Eleventh Amendment did not constitute a bar to that portion of the District Court decree which ordered retroactive payment of benefits found to have been wrongfully withheld. The judgment of the Court of Appeals is therefore reversed, and the cause remanded for further proceedings consistent with this opinion.

So ordered.

[Footnote 1]

In his complaint in the District Court, respondent claimed that the Illinois Department of Public Aid was not complying with federal regulations in its processing of public aid applications, and also that its refusal to process and allow respondent's claim for a period of four months, while processing and allowing the claims of those similarly situated, violated the Equal Protection Clause of the Fourteenth Amendment. Respondent asserted that the District Court could exercise jurisdiction over the cause by virtue of 28 U.S.C. §§ 1331 and 1343(3) and (4). Though not briefed by the parties before this Court, we think that, under our decision in Hagans v. Lavine, ante, p. 415 U. S. 528, the equal protection claim cannot be said to be "wholly insubstantial," and that, therefore, the District Court was correct in exercising pendent jurisdiction over the statutory claim.

[Footnote 2]

Effective January 1, 1974, this AABD program was replaced by a similar program. See 42 U.S.C. §§ 801-805 (1970 ed., Supp. II).

[Footnote 3]

Title 45 CFR § 206.10(a)(3) (1973) provides in pertinent part:

"(a) State plan requirements. A State plan . . . shall provide that:"

"* * * *"

"(3) A decision shall be made promptly on applications, pursuant to reasonable State-established time standards not in excess of:"

"(i) 45 days [for aid to aged and blind] . . . ; and"

"(ii) 60 days . . . [for aid to disabled]. Under this requirement, the applicant is informed of the agency's time standard in acting on applications, which covers the time from date of application under the State plan to the date that the assistance check, or notification of denial of assistance or change of award, or the eligibility decision with respect to medical assistance, is mailed to the applicant or recipient. . . ."

When originally issued in 1968 the regulations provided that the applications for aid to the aged and blind be processed within 30 days and that aid to the disabled be processed within 45 days of receipt. They also provided that the person determined to be eligible must receive his assistance check within the applicable time period. The amendment to 60 days for aid to the disabled occurred in 1971, as did the change to require mailing instead of receipt of the assistance check within the applicable time period; effective Oct. 15, 1973, the time for processing aged and blind applications became 45 days.

In addition, at the time of institution of the suit, 45 CFR § 206.10(a)(6) (1972) provided in pertinent part:

"(6) Entitlement will begin as specified in the State plan, which (i) for financial assistance must be no later than the date of authorization of payment. . . ."

[Footnote 4]

The Illinois regulations, found in the Illinois Categorical Assistance Manual of the Illinois Department of Public Aid, provide in pertinent part:

"4004.1"

"Except for [disability] cases which have a time standard of 45 days, the time standard for disposition of applications is 30 days from the date of application to the date the applicants are determined eligible and the effective date of their first assistance or are determined ineligible and receive a notice of denial of assistance. . . ."

"* * * *"

"8255. Initial Awards"

"Initial awards may be new grants, reinstatements or certain types of resumptions. They can be effective for the month in which Form FO-550 is signed but for no prior period except [under conditions not relevant to this case]."

"8255.1 New Grants"

"A new grant is the first grant authorized after an application has been accepted in a case which has not previously received assistance under the same assistance program. It may be authorized for the month in which Form FO-550 is signed but not for any prior period unless it meets [exceptions not relevant to this case]."

[Footnote 5]

Paragraph 5 of the District Court's judgment provided:

"That the defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, his agents, including all of the County Departments of Public Aid in the State of Illinois, and employees, and all persons in active concert and participation with them, are hereby enjoined to release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 and April 16, 1972 [sic] [should read '1971'], and were determined eligible, as follows:"

"(a) For those aged and blind applicants whose first full AABD check was not mailed within thirty days from the date of application, AABD assistance for the period beginning with the thirtieth day from the date of application to the date the applicant's entitlement to AABD became effective;"

"(b)(i) For those disabled applicants who applied between July 1, 1968 and December 31, 1970, whose first full AABD check was not mailed within forty-five days from the date of application, AABD assistance for the period beginning with the forty-fifth day from the date of application to the date the applicant's entitlement became effective;"

"(ii) For those disabled applicants who applied between January 1, 1971, and April 16, 1971, whose first full AABD check was not mailed within sixty days from the date of application, AABD assistance for the period beginning with the sixtieth day from the date of application to the date the applicant's entitlement became effective."

"These AABD benefits shall be mailed to those persons currently receiving AABD within eight months with an explanatory letter, said letter having been first approved by plaintiffs' attorney. Any AABD benefits received pursuant to this paragraph shall not be deemed income or resources under Article III of the Illinois Public Aid Code."

"For those persons not presently receiving AABD:"

"(a) A certified letter (return receipt requested), said letter having been first approved by plaintiffs' attorney, shall be sent to the last known address of the person, informing him in concise and easily understandable terms that he is entitled to a specified amount of AABD benefits wrongfully withheld, and that he may claim such amount by contacting the County Department of Public Aid at a specified address, within 45 days from the receipt of said letter."

"(b) If the County Department of Public Aid does not receive a claim for the AABD benefits within 45 days from the date of actual notice to the person, the right to said AABD benefits shall be forfeited and the file shall be closed. Persons who do not receive actual notice do not forfeit their rights to AABD benefits wrongfully withheld under this provision."

Paragraph 6 of the District Court's judgment provided:

"Within 15 days from the date of this decree, defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, shall submit to the court and the plaintiffs' attorney a detailed statement as to the method for effectuating the relief required by paragraph 5, supra, of this Decree. Any disputes between the parties as to whether the procedures and steps outlined by the defendant WEAVER will fulfill the requirements of this Decree will be resolved by the Court."

On July 19, 1973, the author of this opinion stayed until further order of this Court these two paragraphs of the District Court's judgment. 414 U. S. 1301.

[Footnote 6]

Respondent appealed from the District Court's judgment insofar as it held him not entitled to receive benefits from the date of his applications (as opposed to the date of authorization of benefits as provided by the federal regulations) and insofar as it failed to award punitive damages. The Court of Appeals upheld the District Court's decision against respondent on those points, and they are not at issue here. 472 F.2d 985, 997-999.

[Footnote 7]

Citing Chevron Oil Co. v. Huson,404 U. S. 97 (1971), petitioner also contends in this Court that the Court of Appeals erred in refusing to give the District Court's judgment prospective effect only. Brief for Petitioner 37, incorporating arguments made in Pet. for Cert. 18-22. The Court of Appeals concluded that this ground was "not presented to the district judge before the entry of judgment, so that it comes too late." 472 F.2d at 995. The Court of Appeals went on, however, to conclude that, "[e]ven if the ground had been timely presented, defendants' contention would be meritless." Ibid. Noting that one of three tests established by our decision in Huson for determining the retroactivity of court decisions was that

"the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or [have decided] an issue of first impression whose resolution was not clearly foreshadowed . . . ,"

Chevron Oil Co. v. Huson, supra, at 404 U. S. 106, the Court of Appeals found that the petitioner had not satisfied this test, since the

"federal time requirements for processing applications and paying eligible AABD applicants were made effective July 1, 1968, and defendants were well aware of these mandatory maximum permissible time standards."

472 F.2d at 996.

In light of our disposition of this case on the Eleventh Amendment issue, we see no reason to address this contention.

[Footnote 8]

Former Title 42 U.S.C. § 1382(a)(8) provided in pertinent part:

"(a) Contents."

"A State plan for aid to the aged, blind, or disabled, or for aid to the aged, blind, or disabled and medical assistance for the aged, must --"

"* * * *"

"(8) provide that all individuals wishing to make application for aid or assistance under the plan shall have opportunity to do so, and that such aid or assistance shall be furnished with reasonable promptness to all eligible individuals."

HEW, pursuant to authority granted to it by 42 U.S.C. § 1302, has promulgated regulations, seen 3, supra, which require that decisions be made promptly on applications within 45 days for the aged and blind and within 60 days for the disabled, and that initiation of payments to the eligible be made within the same periods. Petitioner renews in this Court the contention made in the Court of Appeals that these time limitations in the regulations are inconsistent with the statute, and therefore an unlawful abuse of the rulemaking authority. Brief for Petitioner 37, incorporating arguments made in Pet. for Cert. 22-28. Specifically, petitioner argues that the

"establishment of arbitrary [forty-five-] and sixty-day maximums in the HEW regulations for determination of eligibility and initiation of payments without taking into consideration the efficient administration of the Act by the State agencies is inconsistent with the 'reasonable promptness' requirement, and must therefore be declared unlawful. . . ."

Pet. for Cert. 23. The Court of Appeals rejected this contention, holding that "these time requirements, binding on state welfare officials, are an appropriate interpretation of the Congressional mandate of reasonable promptness.'" 472 F.2d at 996. We agree with the Court of Appeals.

[Footnote 9]

While the debates of the Constitutional Convention themselves do not disclose a discussion of the question, the prevailing view at the time of the ratification of the Constitution was stated by various of the Framers in the writings and debates of the period. Examples of these views have been assembled by Mr. Chief Justice Hughes:

". . . Madison, in the Virginia Convention, answering objections to the ratification of the Constitution, clearly stated his view as to the purpose and effect of the provision conferring jurisdiction over controversies between States of the Union and foreign States. That purpose was suitably to provide for adjudication in such cases if consent should be given, but not otherwise. Madison said:"

"The next case provides for disputes between a foreign state and one of our states, should such a case ever arise, and between a citizen and a foreign citizen or subject. I do not conceive that any controversy can ever be decided, in these courts, between an American state and a foreign state without the consent of the parties. If they consent, provision is here made."

"3 Elliot's Debates, 533."

"Marshall, in the same Convention, expressed a similar view. Replying to an objection as to the admissibility of a suit by a foreign state, Marshall said:"

"He objects, in the next place, to its jurisdiction in controversies between a state and a foreign state. Suppose, says he, in such a suit, a foreign state is cast; will she be bound by the decision? If a foreign state brought a suit against the commonwealth of Virginia, would she not be barred from the claim if the federal judiciary thought it unjust? The previous consent of the parties is necessary, and, as the federal judiciary will decide, each party will acquiesce."

"3 Elliot's Debates, 557. Hamilton, in The Federalist, No. 81, made the following emphatic statement of the general principle of immunity:"

"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind, and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the State governments would by the adoption of that plan be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident it could not be done without waging war against the contracting State; and to ascribe to the federal courts by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence would be altogether forced and unwarrantable."

Monaco v. Mississippi,292 U. S. 313, 292 U. S. 323-325 (1934) (footnotes omitted).

[Footnote 10]

Of the Court of Appeals for the District of Columbia Circuit, sitting by designation on the Court of Appeals for the Second Circuit.

[Footnote 11]

It may be true, as stated by our Brother DOUGLAS in dissent, that "[m]ost welfare decisions by federal courts have a financial impact on the States." Post at 415 U. S. 680-681. But we cannot agree that such a financial impact is the same where a federal court applies Ex parte Young to grant prospective declaratory and injunctive relief, as opposed to an order of retroactive payments as was made in the instant case. It is not necessarily true that

"[w]hether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same."

Post at 415 U. S. 682. This argument neglects the fact that, where the State has a definable allocation to be used in the payment of public aid benefits, and pursues a certain course of action such as the processing of applications within certain time periods as did Illinois here, the subsequent ordering by a federal court of retroactive payments to correct delays in such processing will invariably mean there is less money available for payments for the continuing obligations of the public aid system.

As stated by Judge McGowan in Rothstein v. Wyman, 467 F.2d 226, 235 (CA2 1972):

"The second federal policy which might arguably be furthered by retroactive payments is the fundamental goal of congressional welfare legislation -- the satisfaction of the ascertained needs of impoverished persons. Federal standards are designed to ensure that those needs are equitably met; and there may perhaps be cases in which the prompt payment of funds wrongfully withheld will serve that end. As time goes by, however, retroactive payments become compensatory, rather than remedial; the coincidence between previously ascertained and existing needs becomes less clear."

[Footnote 12]

The Court of Appeals considered the Court's decision in Griffin v. School Board,377 U. S. 218 (1964), to be of like import. But as may be seen from Griffin's citation of Lincoln County v. Luning,133 U. S. 529 (1890), a county does not occupy the same position as a State for purposes of the Eleventh Amendment. See also Moor v. County of Alameda,411 U. S. 693 (1973). The fact that the county policies executed by the county officials in Griffin were subject to the commands of the Fourteenth Amendment, but the county was not able to invoke the protection of the Eleventh Amendment, is no more than a recognition of the long-established rule that, while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.

[Footnote 13]

Brief for Respondent 15-18. Decisions of this Court in which we summarily affirmed a decision of a lower federal court which ordered the payment of retroactive awards and in which the jurisdictional statement filed in this Court raised the Eleventh Amendment defense include: State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918 (1972), aff'g 347 F.Supp. 1004 (SD Fla.1971); Sterrett v. Mothers' and Children's Rights Organization, 409 U.S. 809 (1972), aff'g unreported order and judgment of District Court (ND Ind.1972) on remand from Carpenter v. Sterrett, 405 U.S. 971 (1972); Gaddis v. Wyman, 304 F.Supp. 717 (SDNY 1969) (order at CCH Poverty Law Rep.

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