Respondent is a recipient of benefits under Connecticut's
federally funded Aid to Families with Dependent Children (AFDC)
program. She brought this action in Federal District Court under 42
U.S.C. § 1983, alleging that Connecticut's AFDC regulations denied
her credit for substantial portions of her actual work-related
expenses, thus reducing the level of her benefits, and that such
regulations violated the Social Security Act and the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
Ultimately, the case was settled and the District Court entered a
consent decree that provided for a substantial increase in the
standard allowances for work-related expenses and gave AFDC
recipients the right to prove that their actual work-related
expenses were in excess of the standard. The District Court then
awarded respondent's counsel a fee pursuant to the Civil Rights
Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which
provides that, in any action to enforce 42 U.S.C. § 1983, inter
the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney's fee as
part of the costs. The court held that respondent was entitled to
fees under the Act because, in addition to her statutory claim, she
had alleged constitutional claims that were sufficiently
substantial to support federal jurisdiction. The Court of Appeals
1. Under § 1988, the district courts' authority to award
attorney's fees is not limited to cases in which § 1983 is invoked
as a remedy for a constitutional violation or a violation of a
federal statute providing for the protection of civil or equal
rights. As the Court holds in Maine v. Thiboutot, ante
448 U. S. 1
, § 1988
applies to all types of § 1983 actions, including actions based
solely on Social Security Act violations. Thus, even if
respondent's claim could be characterized as arising solely out of
a Social Security Act violation, this would not preclude the award
of attorney's fees under § 1988. Pp. 448 U. S.
2. The fact that respondent prevailed through a settlement
rather than through litigation does not preclude her from claiming
Page 448 U. S. 123
as the "prevailing party" within the meaning of § 1988. And
petitioner's contention that respondent did not gain sufficient
relief through the consent decree to be considered the prevailing
party is without merit in view of the District Court's contrary
finding, which was upheld by the Court of Appeals. Pp. 448 U. S.
3. The District Court was not barred by the Eleventh Amendment
from awarding attorney's fees against the State. Respondent alleged
constitutional violations which both courts below held to be
sufficiently substantial to support federal jurisdiction, and the
constitutional issues remained in the case until the consent decree
was entered. Under these circumstances, petitioner's Eleventh
Amendment claim is foreclosed by Hutto v. Finney,
437 U. S. 678
the Court rejected the argument that the general
language of the Act was insufficient to remove an Eleventh
Amendment barrier, noting that "this Court has never viewed the
Eleventh Amendment as barring such awards, even in suits between
States and individual litigants." Id.
at 437 U. S. 695
Moreover, even if the Eleventh Amendment would otherwise present a
barrier to an award of attorney's fees against a State, Congress
clearly acted within its power under §§5 of the Fourteenth
Amendment in removing that barrier. Under §§5, Congress may pass
any legislation that is appropriate to enforce the Fourteenth
Amendment's guarantees, and a statute awarding attorney's fees in a
case in which the plaintiff prevails on a wholly statutory,
non-civil-rights claim pendent to a substantial constitutional
claim or in one in which both a statutory and a substantial
constitutional claim are settled favorably to the plaintiff without
adjudication falls within the category of "appropriate"
legislation. Pp. 448 U. S.
594 F.2d 336, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined, and
in Part II of which BURGER, C.J., and POWELL and REHNQUIST, JJ.,
joined. POWELL, J., filed an opinion concurring in part and
concurring in the judgment, in which BURGER, C.J., and REHNQUIST,
J., joined, post,
p. 448 U. S.
Page 448 U. S. 124
MR. JUSTICE STEVENS delivered the opinion of the Court.
In an action brought under 42 U.S.C. § 1983, the court, in its
discretion, may allow the prevailing party to recover a reasonable
attorney's fee as part of the award of costs. [Footnote 1
] The question presented by this
petition is whether fees may be assessed against state officials
after a case has been settled by the entry of a consent decree,
without any determination that the plaintiff's constitutional
rights have been violated.
Petitioner is responsible for the administration of
Connecticut's Aid to Families with Dependent Children (AFDC), a
federally funded public assistance program. [Footnote 2
] Respondent is a working recipient of
AFDC benefits. Under state and federal regulations, the amount of
her benefits depends, in part, on her net earnings, which are
defined as her wages minus certain work-related expenses. In 1975,
respondent filed a complaint in the United States District Court
for the District of Connecticut alleging that Connecticut's AFDC
regulations denied her credit for substantial portions of her
actual work-related expenses, [Footnote 3
] thus reducing the level of her benefits.
Page 448 U. S. 125
complaint alleged that these regulations violated §§402(a)(7) of
the Social Security Act, 42 U.S.C. § 602(a)(7), [Footnote 4
] and the Equal Protection and Due
Process Clauses of the Fourteenth Amendment to the United States
Constitution. [Footnote 5
complaint further alleged that relief was authorized by 42 U.S.C. §
1983 [Footnote 6
] and invoked
federal jurisdiction under 28 U.S.C. §§1343. [Footnote 7
Page 448 U. S. 126
A few months after the action was commenced, while discovery was
underway, petitioner amended the AFDC regulations to authorize a
deduction for all reasonable work-related expenses. After an
interval of almost a year and a half, respondent filed an amended
complaint alleging that actual expenses in excess of certain
standard allowances were still being routinely disallowed.
Thereafter, a settlement was negotiated and the District Court
entered a consent decree that, among other things, provided for a
substantial increase in the standard allowances and gave AFDC
recipients the right to prove that their actual work-related
expenses were in excess of the standard. [Footnote 8
] The parties informally agreed that the
question whether respondent was entitled to recover attorney's fees
would be submitted to the District Court after the entry of the
Following an adversary hearing, the District Court awarded
respondent's counsel a fee of $3,012.19. 455
F. Supp. 1344
Page 448 U. S. 127
(1978). The court held that respondent was the "prevailing
party" within the meaning of § 1988 because, while not prevailing
"in every particular," she had won "substantially all of the relief
originally sought in her complaint" in the consent decree.
at 1347. The court also rejected petitioner's argument
that an award of fees against him was barred by the Eleventh
Amendment in the absence of a judicial determination that
respondent's constitutional rights had been violated. Relying on
the basic policy against deciding constitutional claims
unnecessarily, the court held that respondent was entitled to fees
under the Act because, in addition to her statutory claim, she had
alleged constitutional claims that were sufficiently substantial to
support federal jurisdiction under the reasoning of Hagans v.
Lavine, 415 U. S. 528
The Court of Appeals affirmed, 594 F.2d 336 (CA2 1979), holding
that Congress intended to authorize an award of fees in this kind
of situation and that it had the constitutional power to do so.
] We granted
certiorari to consider both the statutory and constitutional
questions. 444 U.S. 824.
Page 448 U. S. 128
Petitioner's first argument is that Congress did not intend to
authorize the award of attorney's fees in every type of § 1983
action, but rather limited the courts' authority to award fees to
cases in which § 1983 is invoked as a remedy for a constitutional
violation or a violation of a federal statute providing for the
protection of civil rights or equal rights. In support of this
contention, petitioner relies on our holding in Chapman v.
Houston Welfare Rights Organization, 441 U.
, that there is no federal jurisdiction under §
1343 over § 1983 claims outside these categories, and that there is
therefore no jurisdiction under § 1343 over a § 1983 claim based
solely on a violation of the Social Security Act. Characterizing
respondent's claim in this case as arising solely out of a Social
Security Act violation, petitioner argues that the District Court
had no authority under § 1988 to award her attorney's fees.
Even if petitioner's characterization of respondent's claim were
correct, [Footnote 10
argument would have to be rejected. In Maine v. Thiboutot,
p. 448 U. S. 1
this day, we hold that § 1988 applies to all types of § 1983
actions, including actions based solely on Social Security Act
violations. As MR. JUSTICE BRENNAN's opinion for the Court in
Page 448 U. S. 129
demonstrates, neither the language of § 1988 nor its legislative
history provides any basis for importing the distinctions
made among § 1983 actions for purposes of federal
jurisdiction into the award of attorney's fees by a court that
possesses jurisdiction over the claim. [Footnote 11
We also find no merit in petitioner's suggestion that respondent
was not the "prevailing party" within the meaning of § 1988. The
fact that respondent prevailed through a settlement, rather than
through litigation, does not weaken her claim to fees. Nothing in
the language of § 1988 conditions the District Court's power to
award fees on full litigation of the issues or on a judicial
determination that the plaintiff's rights have been violated.
Moreover, the Senate Report expressly stated that,
"for purposes of the award of counsel fees, parties may be
considered to have prevailed when they vindicate rights through a
consent judgment or without formally obtaining relief."
S.Rep. No. 91011, p. 5 (1976).
Nor can we accept petitioner's contention that respondent
Page 448 U. S. 130
did not gain sufficient relief through the consent decree to be
considered the prevailing party. The District Court's contrary
finding was based on its familiarity with the progress of the
litigation through the pleading, discovery, and settlement
negotiation stages. That finding was upheld by the Court of
Appeals, and we see no reason to question its validity. See
Graver Mfg. Co. v. Linde Co., 336 U.
, 336 U. S.
Petitioner's second argument is that, regardless of Congress'
intent, a federal court is barred by the Eleventh Amendment from
awarding fees against a State in a case involving a purely
statutory, non-civil-rights claim. [Footnote 12
] Petitioner argues that Congress may empower
federal courts to award fees against the States only insofar as it
is exercising its power under § 5 of the Fourteenth Amendment to
enforce substantive rights conferred by that Amendment. Thus,
petitioner contends that fees can only be assessed in § 1983
actions brought to vindicate Fourteenth Amendment rights or to
enforce civil rights statutes that were themselves enacted pursuant
to §§5 of the Fourteenth Amendment. [Footnote 13
In this case, there is no need to reach the question whether a
federal court could award attorney's fees against a State based on
a statutory, non-civil-rights claim. For, contrary to petitioner's
characterization, respondent did allege violations of her
Fourteenth Amendment due process and equal protection
Page 448 U. S. 131
rights, which the District Court and the Court of Appeals both
held to be sufficiently substantial to support federal jurisdiction
under Hagans v. Lavine, 415 U. S. 528
Although petitioner is correct that the trial judge did not find
any constitutional violation, the constitutional issues remained in
the case until the entire dispute was settled by the entry of a
consent decree. Under these circumstances, petitioner's Eleventh
Amendment claim is foreclosed by our decision in Hutto v.
Finney, 437 U. S. 678
we rejected the argument of the Attorney
General of Arkansas that the general language of § 1988 was
insufficient to overcome a State's claim of immunity under the
Eleventh Amendment, noting that "[t]he Court has never viewed the
Eleventh Amendment as barring such award, even in suits between
States and individual litigants." [Footnote 14
Page 448 U. S. 132
437 U. S. 695
Moreover, even if the Eleventh Amendment would otherwise present a
barrier to an award of fees against a State, Congress was clearly
acting within its power under § 5 of the Fourteenth Amendment in
removing that barrier. Under § 5, Congress may pass any legislation
that is appropriate to enforce the guarantees of the Fourteenth
Amendment. A statute awarding attorney's fees to a person who
prevails on a Fourteenth Amendment claim falls within the category
of "appropriate" legislation. And clearly Congress was not limited
to awarding fees only when a constitutional or civil rights claim
is actually decided. We agree with the courts below that Congress
was acting within its enforcement power in allowing the award of
fees in a case in which the plaintiff prevails on a wholly
statutory, non-civil-rights claim pendent to a substantial
constitutional claim or in one in which both a statutory and a
substantial constitutional claim are settled favorably to the
plaintiff without adjudication. [Footnote 15
Page 448 U. S. 133
the Court of Appals pointed out, such fee award
"furthers the Congressional goal of encouraging suits to
vindicate constitutional rights without undermining the
longstanding judicial policy of avoiding unnecessary decision of
important constitutional issues."
594 F.2d at 342. It is thus an appropriate means of enforcing
substantive rights under the Fourteenth Amendment. [Footnote 16
The judgment is affirmed.
The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat.
"In any action or proceeding to enforce a provision of sections
1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX
of Public Law 92-318, or in any civil action or proceeding, by or
on behalf of the United States of America, to enforce, or charging
a violation of, a provision of the United States Internal Revenue
Code, or title VI of the Civil Rights Act of 1964, the court, in
its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the
This statute is codified in 42 U.S.C. § 1988; in the
codification § 1979 of the Revised Statutes has been renumbered to
refer to § 1983 of Title 42 of the United States Code.
The action was filed against petitioner's predecessor in office,
Nicholas Norton, Commissioner of Welfare of the State of
Connecticut. The title of the position has since been changed to
"Commissioner of Income Maintenance." We shall simply refer to the
Commissioner as "petitioner."
Connecticut's Department of Social Services Manual provided that
only certain enumerated expenses could be deducted; the amounts
allowed for lunches and automobile transportation were limited to
50 cents per working day and 6 cents per mile, respectively. App.
66. The complaint alleged that respondent's actual transportation
expenses were 13.9 cents per mile, and that her meal expenses
amounted to $ 1.65 per day. Id.
The statute requires States to take into consideration "any
expenses reasonably attributable to the earning of . . . income."
In Shea v. Vialpando, 416 U. S. 251
this Court held that participating States could not place arbitrary
limits on the amount of work-related expenses that could be claimed
by recipients. Although States may use standardized allowances for
the sake of administrative convenience, they must give recipients
the opportunity to demonstrate that their actual expenses exceed
In her complaint, respondent alleged:
"28. Defendants' practice and policy constitute an invidious
discrimination against persons whose work-related expenses exceed
the allowances set forth in Index 332.31, and violate the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution by forbidding plaintiff and the class she represents
ever from controverting the presumption that their work-related
expenses exceeding the transportation and food allowances of Index
332.31 are reasonable."
* * * *
"32. Defendants' practice and policy violate the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution in that:"
"a) Defendants' practice and policy establish an irrebutable
] presumption that the plaintiff's work-related
transportation and lunch allowances are unreasonable, and operate
to deny plaintiff and the class she represents a fair opportunity
to rebut it."
"b) The standard lunch and transportation allowances contained
in Index 332.31 are arbitrary in that they were not developed by a
statistically fair averaging, nor do they reflect current
"Every person, who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
Title 28 U.S.C. §§ 1343(3) and(4) provide as follows:
"The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person:"
"* * * *"
"(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage of any right,
privilege or immunity secured by the Constitution of the United
States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United
"(4) To recover damages or to secure equitable or other relief
under any Act of Congress providing for the protection of civil
rights, including the right to vote."
As is customary, the consent decree did not purport to
adjudicate respondent's statutory or constitutional claims. Rather,
it explicitly stated that "[n]othing in this Consent Decree is
intended to constitute an admission of fault by either party to
this action." App. 76.
The court rejected petitioner's constitutional claim on two
grounds. First, it held that the Eleventh Amendment does not apply
to an award of attorney's fees because such fees are ancillary to
the imposition of prospective relief within the reasoning of
Edelman v. Jordan, 415 U. S. 651
Second, the court held that, even if the Eleventh Amendment did
apply, Congress had the power to authorize the assessment of fees
in a case such as this under the Fourteenth Amendment:
"The State contends, however, that Congress' power under the
Fourteenth Amendment to override state sovereign immunity extends
only to suits in which a party prevails on a
claim. On this view, Congress cannot
validly authorize a fee award against a state in the absence of a
judicial determination that plaintiff had a meritorious
constitutional claim. We disagree. We think it is within Congress'
Fourteenth Amendment power to authorize a fee award when a party
prevails on a statutory claim as long as the pendent constitutional
claim is a substantial one and arises out of the same operative
facts. Such a fee award furthers the Congressional goal of
encouraging suits to vindicate constitutional rights without
undermining the longstanding judicial policy of avoiding
unnecessary decision of important constitutional issues. As we
understand the Supreme Court decisions, any appropriate means of
implementing the Fourteenth Amendment overrides the State's
Eleventh Amendment rights, see, e.g., Fitzpatrick v. Bitzer,
427 U.S. at 427 U. S. 453
, 427 U. S.
; Katzenbach v. Morgan, 384 U. S.
, 384 U. S. 648
-650 (1966). We
hold that the authorization of attorneys' fees to be awarded under
the standards set forth above is an appropriate way to achieve the
competing goals described above."
(Emphasis in original.) 594 F.2d at 342-343.
Petitioner ignores the fact that respondent did allege
constitutional claims which the District Court and the Court of
Appeals both found to be sufficiently substantial to support
federal jurisdiction under Hagans v. Lavine, 415 U.
. Under these circumstances, petitioner could not
have prevailed on his statutory argument even if the Court had
reached the opposite result in Thiboutot. See
The jurisdictional statute at issue in Chapman,
U.S.C. § 1343, specifically limits district court jurisdiction to
cases in which the plaintiff alleges a violation of a right secured
by the Constitution or by a federal statute "providing for equal
rights" or "civil rights." Inasmuch as it does not create
substantive rights at all, but merely provides a remedy for the
violation of rights conferred by the Constitution or other
statutes, § 1983 does not fall within the category of statutes
providing for equal rights or civil rights. Therefore, there is not
automatically federal jurisdiction under § 1343 whenever a
plaintiff files a § 1983 claim; rather, the court must look to the
underlying substantive right that was allegedly violated to
determine whether that right was conferred by the Constitution or
by a civil rights statute.
Section 1988 does not contain language like that in § 1343.
Rather, § 1988 provides that attorney's fees may be awarded to the
prevailing party "[i]n any action or proceeding to enforce [§
1983]." Although the reference to actions "to enforce" § 1983 is
somewhat imprecise in light of the fact that § 1983 does not itself
create substantive rights, the legislative history makes it
perfectly clear that the Act was intended to apply in any action
for which § 1983 provides a remedy. See Maine v. Thiboutot,
at 448 U. S.
The Eleventh 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."
The Eleventh Amendment issue was not before the Court in
because that case involved an award of fees by a
state court pursuant to §§1988. Ante
at 448 U. S. 9
"The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."
Referring to the argument of the Attorney General, we said:
"[H]e argues that these plain indications of legislative intent
are not enough. In his view, Congress must enact express statutory
language making the States liable if it wishes to abrogate their
immunity. The Attorney General points out that this Court has
sometimes refused to impose retroactive liability on the States in
the absence of an extraordinarily explicit statutory mandate.
See Employees v. Missouri Public Health & Welfare
Dept., 411 U. S. 279
; see also
Edelman v. Jordan, 415 U. S. 651
. But these cases
concern retroactive liability for prelitigation conduct, rather
than expenses incurred in litigation seeking only prospective
"The Act imposes attorney's fees 'as part of the costs.' Costs
have traditionally been awarded without regard for the States'
Eleventh Amendment immunity. The practice of awarding costs against
the States goes back to 1849 in this Court. See Missouri v.
7 How. 660, 48 U. S.
; North Dakota v. Minnesota, 263 U. S.
(collecting cases). The Court has never viewed the
Eleventh Amendment as barring such awards, even in suits between
States and individual litigants."
"In Fairmont Creamery Co. v. Minnesota, 275 U. S.
, the State challenged this Court's award of costs,
but we squarely rejected the State's claim of immunity. Far from
requiring an explicit abrogation of state immunity, we relied on a
statutory mandate that was entirely silent on the question of state
liability. The power to make the award was supported by 'the
inherent authority of the Court in the orderly administration of
justice as between all parties litigant.' Id.
275 U. S. 74
. A federal
court's interest in orderly, expeditious proceedings 'justifies
[it] in treating the state just as any other litigant and in
imposing costs upon it' when an award is called for. Id.
at 275 U. S. 77
"Just as a federal court may treat a State like any other
litigant when it assesses costs, so also may Congress amend its
definition of taxable costs and have the amended class of costs
apply to the States, as it does to all other litigants, without
expressly stating that it intends to abrogate the States' Eleventh
Amendment immunity. For it would be absurd to require an express
reference to state litigants whenever a filing fee, or a new item,
such as an expert witness' fees, is added to the category of
437 U.S. at 437 U. S.
-697 (footnotes omitted).
The legislative history makes it clear that Congress intended
fees to be awarded where a pendent constitutional claim is
involved, even if the statutory claim on which the plaintiff
prevailed is one for which fees cannot be awarded under the Act.
The Report of the Committee on the Judiciary of the House of
Representatives accompanying H.R. 15460, a bill substantially
identical to the Senate bill that was finally enacted, stated:
"To the extent a plaintiff joins a claim under one of the
statutes enumerated in H.R. 15460 with a claim that does not allow
attorney fees, that plaintiff, if it prevails on the non-fee claim,
is entitled to a determination on the other claim for the purpose
of awarding counsel fees. Morales v. Haines,
486 F.2d 880
(7th Cir.1973). In some instances, however, the claim with fees may
involve a constitutional question which the courts are reluctant to
resolve if the nonconstitutional claim is dispositive. Hagans
v. Lavine, 415 U. S. 528
(1974). In such
cases, if the claim for which fees may be awarded meets the
'substantiality' test, see Hagans v. Lavine, supra; United Mine
Workers v. Gibbs, 383 U. S. 715
fees may be allowed even though the court declines to enter
judgment for the plaintiff on that claim, so long as the plaintiff
prevails on the non-fee claim arising out of a 'common nucleus of
operative fact.' United Mine Workers v. Gibbs, supra
383 U. S. 725
H.R.Rep. No. 94-1558, p. 4, n. 7 (1976).
Petitioner seeks to distinguish this case from Hutto v.
on the ground that Hutto
adjudication of a constitutional violation, rather than a statutory
violation. However, as MR. JUSTICE REHNQUIST noted in his dissent,
437 U.S. at 437 U. S.
-718, the underlying claim in Hutto
predicated on the Eighth Amendment as made applicable to the States
by the Fourteenth Amendment, rather than on any substantive
provision of the Fourteenth Amendment itself. The prisoners' claim
was therefore arguably more analogous to the
statutory claim involved in this case than to the constitutional
claims asserted here or to the equal protection claim asserted in
Fitzpatrick v. Bitzer, 427 U. S. 445
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in the judgment, and in Part II of the
Respondent's complaint presented claims under both the Social
Security Act and the Fourteenth Amendment. Follow
Page 448 U. S. 134
ing a settlement between the parties, the District Court ruled
that respondent is a "prevailing party" under 42 U.S.C. § 1988, and
that she alleged "substantial" constitutional claims as defined in
Hagans v. Lavine, 415 U. S. 528
In this situation, the District Court and the Court of Appeals
for the Second Circuit both found, the award of attorney's fees
under § 1988 does not require an adjudication on the merits of the
constitutional claims. I agree with this conclusion. Consequently,
I see no reason to reach out, as the Court does in 448 U.
to apply today's ruling in Maine v. Thiboutot,
ante 448 U. S.
at 448 U. S.
-129. That decision holds that plaintiffs may win
attorney's fees under § 1988 when they bring an action under 42
U.S.C. § 1983 without any constitutional claim whatever. For the
reasons given in my dissenting opinion in Thiboutot,
believe that decision seriously misconceives the congressional
purpose behind § 1983. In this case, however, the complaint
included a substantial constitutional claim which "remained in the
case until the entire dispute was settled by the entry of a consent
at 448 U. S. 131
Since Congress has made plain its intent that fees be awarded to
"prevailing" parties in these circumstances, see ante
448 U. S.
-133, n. 15, we have no occasion to look behind the
settlement agreement to evaluate further the constitutional cause
In contrast, 448 U. S.
at 448 U. S. 131
Hutto v. Finney, 437 U. S. 678
(1978), held that, since Congress may qualify the States' Eleventh
Amendment immunity under the Enforcement Clause of the Fourteenth
Amendment, § 1988 authorizes fee awards against States in these
circumstances. I believe that Congress should not be deemed to have
qualified the Eleventh Amendment in the absence of explicit
evidence of that intent. See Hutto, supra
at 437 U. S. 704
(POWELL, J., concurring in part and dissenting
Page 448 U. S. 135
in part). Nevertheless, I accept Hutto
precedent for this case, and note only that the Court has reserved
the question "whether a federal court could award attorney's fees
against a State based on a statutory, non-civil-rights claim."
at 448 U. S.