Quern v. Jordan

440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358, 1979 U.S. LEXIS 67

• Court: Supreme Court of the United States
• Decided: March 5, 1979
• Docket: 77-841
• Status: Published

Opinions

Mr. Justice Rehnquist

delivered the opinion of the Court.

This case is a sequel to Edelman v. Jordan, 415 U. S. 651 (1974), which we decided five Terms ago. In Edelman we held that retroactive welfare benefits awarded by a Federal District Court to plaintiffs, by reason of wrongful denial of benefits by state officials prior to the entry of the court’s order determining the wrongfulness of their actions, violated the Eleventh Amendment.¹ The issue now before us is whether that same federal court may, consistent with the Eleventh Amendment, order those state officials to send a mere explanatory notice to members of the plaintiff class advising them that there are state administrative procedures available by which they may receive a determination of whether they are entitled to past welfare benefits. We granted certiorari to resolve an apparent conflict between the decision of the United States Court of Appeals for the Seventh Circuit in this case and that of the Court of Appeals for the Third Circuit in Fanty v. Commonwealth of Pennsylvania, Dept. of Public Welfare, 551 F. 2d 2 (1977).² 435 U. S. 904 (1978). We believe that the case as it now comes to us involves little, if any, unbroken ground in this area, and affirm the judgment of the Seventh Circuit.

Following our remand in Edelman, the United States District Court for the Northern District of Illinois, upon motion of the plaintiff, ordered the state officials to send to each member of the plaintiff class a notice informing the recipient: “[Y]ou were denied public assistance to which you were entitled in the amount of $-.” Jordan v. Trainor, 405 F. Supp. 802, 809 (1975).³ Enclosed with the required mailing was to be a “Notice of Appeal,” which when signed and returned to the Illinois Department of Public Aid, requested a hearing on the denial of benefits. That notice stated: “The department illegally delayed in the processing of-my AABD application, and, as a consequence, denied me benefits to which I was and am entitled.” Id., at 810.

The Court of Appeals, en banc, found that this proposed form of notice would have been barred by the Eleventh Amendment, since it at least purported to decide that Illinois public funds should be used to satisfy the claims of plaintiff class members without the consent of the State by its appropriate officials. Jordan v. Trainor, 563 F. 2d 873, 875 (1977).⁴ The court reversed the District Court’s order for this reason, but stated that on remand the District Court could order the state officials to send a “mere explanatory notice to applicants advising them that there is a state administrative procedure available if they desire to have the state determine whether or not they may be eligible for past benefits. A simple returnable notice of appeal form could also be provided.” Ibid. In the court’s view, such a notice would not violate the distinction set forth in Edelman between prospective relief, which is permitted by the Eleventh Amendment, and retrospective relief, which is not:

“The form of notice we envisage would not create a ‘liability’ against the state. Whether a liability might result would be a matter for state determination, not the federal court. No federal judgment against the state would be created. Such a notice could not be labeled equitable restitution or be considered an award of damages against the state. The defendant makes no issue out of any incidental administrative expense connected with the preparation or mailing of the notice. It has suggested in the record that the notice could be included in the regular monthly mailing. The necessary information comes from a computer. There is no indication that the administrative expense would be substantial.” 563 F. 2d, at 876.

Under the contemplated modified notice procedure, the court stated, members of the plaintiff class would be given no more than “they would have gathered by sitting in the courtroom or by reading and listening to news accounts had the case attracted any attention.” Id., at 877-878.⁵ Three judges dissented on the ground that the majority’s revised notice form was barred by the Eleventh Amendment.

In Edelman we reaffirmed the rule that had evolved in our earlier cases that a suit in federal court 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. 415 U. S., at 663; see Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573 (1946); Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U. S. 47 (1944). We rejected the notion that simply because the lower court’s grant of retroactive benefits had been styled “equitable restitution” it was permissible under the Eleventh Amendment. But we also pointed out that under the landmark decision in Ex parte Young, 209 U. S. 123 (1908), a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury. 415 U. S., at 667-668; see Milliken v. Bradley, 433 U. S. 267, 289 (1977); Scheuer v. Rhodes, 416 U. S. 232, 237 (1974). The distinction between that relief permissible under the doctrine of Ex parte Young and that found barred in Edelman was the difference between prospective relief on one hand and retrospective relief on the other.⁶

Petitioner state official devotes a significant part of his brief to an attack on the proposed notice which the District Court required the state officials to send. It is, however, the decision of the Court of Appeals, and not that of the District Court, which we review at the behest of petitioner. And just as petitioner insists on tilting at windmills by attacking the District Court’s decision, respondent suggests that our decision in Edelman has been eviscerated by later decisions such as Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). Brief for Respondent 55 n. 37. See also Aldridge v. Turlington, No. TCA-78-830 (ND Fla., Nov. 17, 1978) ; but see Skehan v. Board of Trustees of Bloomsburg State College, 590 F. 2d 470 (CA3 1978). As we have noted above, we held in Edelman that in “a [42 U. S. C.] § 1983 action ... a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, supra, and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of Treasury, supra.” 415 U. S., at 677. We disagree with respondent’s suggestion. This Court’s holding in Monell was “limited to local government units which are not considered part of the State for Eleventh Amendment purposes,” 436 U. S., at 690 n. 54, and our Eleventh Amendment decisions subsequent to Edelman and to Monell have cast no doubt on our holding in Edelman. See Alabama v. Pugh, 438 U. S. 781 (1978); Hutto v. Finney, 437 U. S. 678 (1978); Milliken v. Bradley, supra; Fitzpatrick v. Bitzer, 427 U. S. 445 (1976); Scheuer v. Rhodes, supra.7

While the separate opinions in Hutto v. Finney, supra,8 debated the continuing soundness of Edelman after our decision in Monell, any doubt on that score was largely dispelled by Alabama v. Pugh, supra, decided just 10 days after Hutto. In Pugh the Court held, over three dissents, that the State of Alabama could not be joined as a defendant without violating the Eleventh Amendment, even though the complaint was based on 42 U. S. C. § 1983 and the claim was a violation of the Eighth and Fourteenth Amendments similar to that made in Hutto. The Court said:

“There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U. S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945); Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937).” 438 U. S., at 782.⁹

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

Mr. Justice Brennan in his opinion concurring in the judgment argues that our holding in Edelman that § 1983 does not abrogate the States’ Eleventh Amendment immunity is “most likely incorrect.” Post, at 354. To reach this conclusion he relies on “assumptions]” drawn from the Fourteenth Amendment, post, at 355, on “occasional remarks” found in a legislative history that contains little debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, post, at 358 n. 15,¹⁰ on the reference to “bodies politic” in the Act of Feb. 25, 1871, 16 Stat. 431, the “Dictionary Act,” post, at 355-357,¹¹ and, finally on the general language of § 1983 itself, post, at 356. But, unlike our Brother Brennan, we simply are unwilling to believe, on the basis of such slender “evidence,” that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in Mr. Justice Brennan's opinion, justify a conclusion different from that which we reached in Edelman.12

There is no question that both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States.¹³ Many of the remarks from the legislative history of the Act quoted in Mr. Justice Brennan’s opinion amply demonstrate this point. Post, at 359-365. See also Monroe v. Pape, 365 U. S. 167, 173-176 (1961). But neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States.¹⁴ In Tenney v. Brandhove, 341 U. S. 367 (1951), the Court rejected a similar attempt to interpret the word “person” in § 1983 as a withdrawal of the historic immunity of state legislators. The Court’s words bear repeating here:

“Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? . . . The limits of §§ 1 and 2 of the 1871 statute — now §§ 43 and 47 (3) of Title 8 — were not spelled out in debate. We cannot believe that Congress — itself a staunch advocate of legislative freedom— would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.” 341 U. S., at 376.

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

Our cases consistently have required a clearer showing of congressional purpose to abrogate Eleventh Amendment immunity than our Brother Brennan is able to marshal. In Employees v. Missouri Public Health Dept., 411 U. S. 279 (1973), the Court concluded that Congress did not lift the sovereign immunity of the States by enacting the Fair Labor Standards Act of 1938, 29 U. S. C. §§ 201-219, because of the absence of any indication “by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution.” 411 U. S., at 285.¹⁵ In Fitzpatrick v. Bitzer the Court found present in Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., the “threshold fact of congressional authorization” to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. 427 U. S., at 448 n. 1, 449 n. 2, 452; see Equal Opportunity Employment Act of 1972, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f)(1); H. R. Rep. No. 92-238, pp. 17-19 (1971); S. Rep. No. 92-415, pp. 9-11 (1971); S. Conf. Rep. No. 92-681, pp. 17-18 (1972); H. R. Conf. Rep. No. 92-899, pp. 17-18 (1972). Finally, in Hutto v. Finney, decided just last Term, the Court held that in enacting the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988, Congress intended to override the Eleventh Amendment immunity of the States and authorize fee awards payable by the States when their officials are sued in their official capacities. 437 U. S., at 693-694. Although the statutory language in Hutto did not separately impose liability on States in so many words,¹⁶ the statute had “a history focusing directly on the question of state liability; Congress considered and firmly rejected the suggestion that States should be immune from fee awards.” Id., at 698 n. 31. Also, the Court noted that the statute would have been rendered meaningless with respect to States if the Act did not impose liability for attorney’s fees on the States. Ibid.; see Employees v. Missouri Public Health Dept., supra, at 285-286. By contrast, § 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Nor does our reaffirmance of Edelman render § 1983 meaningless insofar as States are concerned. See Ex parte Young, 209 U. S. 123 (1908).¹⁷

We turn, then, to the question which has caused disagreement between the Courts of Appeals: does the modified notice contemplated by the Seventh Circuit constitute permissible prospective relief or a “retroactive award which requires the payment of funds from the state treasury” ? We think this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side.¹⁸ Petitioner makes no issue of the incidental administrative expense connected with preparing and mailing the notice.¹⁹ Instead, he argues that giving the proposed notice will lead inexorably to the payment of state funds for retroactive benefits and therefore it, in effect, amounts to a monetary award. But the chain of causation which petitioner seeks to establish is by no means unbroken; it contains numerous missing links, which can be supplied, if at all, only by the State and members of the plaintiff class and not by a federal court. The notice approved by the Court of Appeals simply apprises plaintiff class members of the existence of whatever administrative. procedures may already be available under state law by which they may receive a determination of eligibility for past benefits. The notice of appeal, we are told, is virtually identical to the notice sent by the Department of Public Aid in every case of a denial or reduction of benefits. The mere sending of that notice does not trigger the state administrative machinery. Whether a recipient of notice decides to take advantage of those available state procedures is left completely to the discretion of that particular class member; the federal court plays no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and legislature, not with the federal court.²⁰

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

Affirmed.

1 The history of this ease is set forth in greater detail in Edelman v. Jordan, 415 U. S. 651 (1974).

2 In Fanty, the plaintiff class alleged that the manner in which the defendant state officials had collected class members’ federal benefits in reimbursement of amounts granted under state welfare laws violated this Court’s decision in Philpott v. Essex County Welfare Board, 409 U. S. 413 (1973). The District Court agreed, and while it denied retroactive relief against the State on the basis of Edelman v. Jordan, supra, it did require the defendant state officials to notify plaintiff class members that under Philpott they have no legal obligation to make reimbursement out of their federal disability benefits and that as a matter of state law they may have a cause of action against the Department of Public Welfare for refund of prior payments. The Court of Appeals, in three separate opinions, reversed. Chief Judge Seitz was of the opinion that the notice relief was barred by the Eleventh Amendment. Judge Garth, concurring in the result, believed that the Eleventh Amendment issue was “borderline,” 551 F. 2d, at 6, but voted to reverse on the basis that there was no case or controversy. Judge Hunter dissented on grounds not relevant here. However, he disagreed with Chief Judge Seitz that the Eleventh Amendment prohibited the notice relief.

3 Because this was a class .action qualifying under Fed. Rule Civ. Proc. 23 (b)(2), the class members had never received notice of the complaint, the original lower court judgment, this Court’s decision or its effect on them. See Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 n. 14 (1974); Fed. Rule Civ. Proc. 23 (e). Under Rule 23 (d) (2), however, a court may require appropriate notice “for the protection of the members of the class or otherwise for the fair conduct of the action.”

Prior to ordering notice, the District Court requested the parties to submit information with respect to the number of persons in the plaintiff class, the cost of notifying them, the amounts involved, and other issues affecting the equities of sending notice. Respondent filed his response to the court’s request but the state officials submitted no response. Respondent indicated that there were approximately 20,000 to 33,500 members in the plaintiff class. App. 34a. The cost of identifying class members was stated to be simply the cost of running the department’s computer for a period necessary to cull out the names of the plaintiff class members. Respondent claimed that there would be no additional cost of notifying class members because the notice could be included in one of the regular mailings to the members of the plaintiff class. Petitioner has not disputed respondent’s allegations either below or before this Court.

4 A panel of the Seventh Circuit originally had reversed the District Court’s order requiring notice on the ground that the Eleventh Amendment was a “jurisdictional bar to the exercise of federal judicial power concerning past action or inaction of a state with respect to the Aid to the Aged, Blind, or Disabled Program.” Jordan v. Trainor, 551 F. 2d 152, 155 (1977).

5 In reaching its decision, the Seventh Circuit relied in part on our summary affirmance of Grubb v. Sterrett, 315 F. Supp. 990 (ND Ind.), aff’d, 400 U. S. 922 (1970), in which the District Court had ordered Indiana public assistance officials to send to plaintiff class members a notice similar to the one at issue here. As the Court of Appeals recognized, the list of summary affirmances overruled in Edelman was not necessarily intended to be exhaustive. See Jordan v. Trainor, 563 F. 2d, at 876. However, we prefer to rest our affirmance of the judgment of the Court of Appeals in this case on our conclusion that it is consistent with Edelman.

6 As we stated in Edelman:

“[T]hat portion of the District Court’s decree which petitioner challenges on Eleventh Amendment grounds goes much further than [Ex parte Young and the cases that had followed it]. 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. ... 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.” 415 U. S., at 668.

7 Mr. Justice Brennan’s opinion concurring in the judgment states that “Edelman v. Jordan, supra, had held that § 1983 did not override state immunity, for the reason, as the Court later stated in Fitzpatrick, that '[t]he Civil Rights Act of 1871, 42 U. S. C. § 1983, had been held in Monroe v. Pape, 365 U. S. 167, 187-191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant.’ ” Post, at 351. Since Monell overruled Monroe’s holding that cities and other municipal corporations are not “persons” within the meaning of § 1983, Mft. Justice Brennan’s opinion argues that the “premise” of Edelman has been “undercut.” Post, at 351. The fallacy of this line of reasoning was aptly demonstrated last Term by Mr. Justice Powell in his concurring opinion in Hutto, where he stated: “The language in question from Fitzpatrick was not essential to the Court’s holding in that case. Moreover, this position ignores the fact that Edelman rests squarely on the Eleventh Amendment immunity, without adverting in terms to the treatment of the legislative history in Monroe v. Pape ...." 437 U. S., at 708-709, n. 6. In fact, Monroe v. Pape is not even cited in Edelman.

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

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

10 There was only limited debate on § 1 of the Civil Rights Act of 1871, and it passed without amendment. Monell v. New York City Dept. of Social Services, 436 U. S., at 665. The sections that drew most of the debate were those that created certain federal crimes, permitted the President to send the militia to any State with widespread Ku Klux Klan violence, and authorized suspension of the writ of habeas corpus in certain circumstances. Id., at 665 n. 11.

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

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

13 For example, the Act was attacked as an attempt to strip States of the power to punish and proscribe offenses within their borders, e. g., Cong. Globe, 42d Cong., 1st Sess., 396 (1871) (remarks of Rep. Rice); id., at App. 112 (remarks of Rep. Moore); id., at App. 117 (remarks of Sen. Blair), and of their authority to decide when the militia of the United States should be called into their territory to quell domestic disturbances, e. g., id., at 647 (remarks of Sen. Davis); id., at App. 139 (remarks of Rep. McCormick).

14 Indeed the Prigg-Dennison-Day line of cases, relied on so heavily in Monell, would surely militate against such a conclusion. 436 U. S., at 672-683; see Prigg v. Pennsylvania, 16 Pet. 539 (1842); Kentucky v. Dennison, 24 How. 66 (1861); Collector v. Day, 11 Wall. 113 (1871). Our Brother Brennan’s concurrence in the judgment today relies on Ex parte Virginia, 100 U. S. 339 (1880), and on Virginia v. Rives, 100 U. S. 313 (1880). But these cases were decided nearly a decade after the enactment of the Civil Rights Act of 1871, and as noted in Monell, substantially'undercut the Prigg-Dennison-Day line of cases for purposes of enforcement of the Fourteenth Amendment. 436 U. S., at 676. But (as was noted in Monell) it was the Prigg-Dennison-Day line of cases that was “the reigning constitutional theory of [the] day” when the Civil Rights Act of 1871 was debated and enacted. 436 U. S., at 676.

15 The Court in Employees “found not a word in the history of the [statute] to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts.” 411 U. S., at 285. The Court also added that its interpretation of the law did not render the statute’s inclusion of state institutions meaningless. Id., at 285-286.

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

17 The arguments in MR. Justice Brennan’s opinion regarding Osborn v. Bank of the United States, 9 Wheat. 738 (1824), are similarly unpersuasive. Post, at 359-361, n. 16. Mr. Chief Justice Marshall’s opinion in Osborn makes it clear that in determining whether a court can grant relief the key inquiry is whether the state officer was in fact the real party in interest or whether he was only a nominal party. 9 Wheat., at 858. See also Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824). Mr. Chief Justice Marshall emphasized this precise point just four years later in his opinion for the Court in Governor of Georgia v. Madrazo, 1 Pet. 110 (1828). In Madrazo, a vessel carrying slaves was seized and the slaves were delivered into the possession of the Governor of Georgia. The slaves were sold and the proceeds were placed in the state treasury. Madrazo filed a libel in the Federal District Court, naming the Governor of Georgia, among others, as a defendant. Restitution was ordered by the lower courts, but this Court reversed because although the demand for relief nominally was against the Governor of the State, it was clear that the action in fact sought relief directly from the state treasury, relief that was forbidden by the Eleventh Amendment.

“The claim upon the governor, is as a governor; he is sued, not by his name, but by his title. The demand made upon him, is not made personally, but officially.

“The decree is pronounced not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant; as the appeal bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a state is sued, not by Ms name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before the Court as defendant. This not being a proceeding against the thing, but against the person, a person capable of appearing as a defendant, against whom a decree can be pronounced, must be a party to the causé before a decree can be regularly pronounced.” Id., at 123-124 (emphasis added).

To similar effect see Kentucky v. Dennison, 24 How., at 97-98, which reaffirmed these principles of Madrazo and which, as the Court in Monell emphasized, was “well known to Members of Congress” at the time of the passage of the 1871 Act. 436 U. S., at 679. To the extent that Davis v. Gray, 16 Wall. 203 (1873), which did no more than affirm an injunctive decree against a state official, is inconsistent with the rule applied in Edel-man, it suffices to say that it was repudiated long before the latter decision. In Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945), the Court stated:

“[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 464.

18 In addition to petitioner’s Eleventh Amendment arguments, he contends that the Court of Appeals’ notice violates the law of the case as established in Edelman v. Jordan, 415 U. S. 651 (1974). We disagree. The doctrine of law of the case comes into play only with respect to issues previously determined. In re Sanford Fork & Tool Co., 160 U. S. 247 (1895). On remand, the “Circuit Court may consider and decide any matters left open by the mandate of this court.” Id., at 256. Accord, Wells Fargo & Co. v. Taylor, 254 U. S. 175 (1920). The Court in Edelman considered the constitutionality only of the relief before it. 415 U. S., at 665. It was not presented with the question of the propriety of notice relief. Petitioner also claims that the District Court lacked power to order notice under the terms of this Court’s remand. The simple answer to this contention is that we remanded the matter in Edelman “for further proceedings consistent with this opinion,” and we hold today that the award of notice relief, as fashioned by the Court of Appeals, is not inconsistent with either the spirit or express terms of our decision in Edelman. “While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.” Sprague v. Ticonic National Bank, 307 U. S. 161, 168 (1939), citing In re Sanford Fork & Tool Co., supra.

19 It appears from respondent’s answers to a District Court request that any expense associated with the preparation and mailing of the notice would be de minimis. See n. 3, supra.

20 As of January 1, 1974, the Aid to the Aged, Blind, and Disabled program was replaced by a completely federal-funded Supplemental Security Income program. Pub. L. 92-603, Title III, § 301, 86 Stat. 1465. Petitioner argues that the notice relief is impermissible because if retroactive benefits ultimately are awarded to the plaintiff class members, there is little likelihood that the Federal Government will reimburse the State for assistance payments made relating to a now defunct program. Thus, Illinois would have to bear the total cost of such retroactive payments. This fact may well be relevant to the state agency's or court's determination of whether to award retroactive benefits. But since the notice relief does not constitute a money judgment, it is not at all relevant to the question of the propriety of the notice fashioned by the Court of Appeals.

Petitioner also states that even if the Department of Public Aid determines to grant retroactive relief, it may not request the Comptroller to draw, or the Treasurer to make payments from, funds appropriated for a current fiscal year for an outstanding obligation incurred during a prior fiscal year without the express authorization from the legislature. See Reply Brief for Petitioner 5. Thus, as a result of the lapse of Public Aid appropriations for fiscal years 1968, 1969, 1970, and 1971, petitioner claims that members of the plaintiff class would be required to resort to filing claims against the State in the Illinois Court of Claims. These facts may influence a plaintiff class member in deciding whether to pursue existing state remedies or the legislature in determining whether to give its approval to a payment of retroactive benefits, but they do not affect our conclusion that the notice relief awarded here is permissible under the Eleventh Amendment.