Fee Shifting and Sovereign Immunity After Seminole Tribe

• Publication year: 2021

88 Nebraska L. Rev. 1. Fee Shifting and Sovereign Immunity After Seminole Tribe

Fee Shifting and Sovereign Immunity After Seminole Tribe(fn1)

T. Haller Jackson IV(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 2

II. (Very) Brief Histories................................. 6
A. 42 U.S.C. §1983.................................. 6
B. 42 U.S.C. §1988.................................. 9
C. The States' "Eleventh Amendment" Sovereign Immunity......................................... 11

III. The Full Contours of the Problem..................... 16
A. The Practical Context............................. 16
B. The Doctrinal Background......................... 19
C. The Near Misses in Precedent..................... 23

IV. Easy Answers Dismissed.............................. 26
A. Personal Capacity Suits........................... 26
B. "Ancillary Awards"................................ 27

V. Some Effort at an Answer............................. 30
A. Who Cares?....................................... 30
B. Reexamining "Ancillary Awards"................... 34
C. Is Edelman the Problem?.......................... 38
D. The Hood and Katz Methodological Twists......... 41
E. Summary......................................... 45

VI. Final Thoughts: Strategic, Practical, and Conceptual... 46

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A. Judicial Antipathy Towards §§ 1983 and 1988...... 46
B. The Tenth or the Eleventh Amendment?........... 47
C. The Conceptual Value of the Problem.............. 48

If private citizens are to be able to assert their civil rights [through acts such as § 1983], and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover [from the state treasury] what it costs them to vindicate these rights in court.(fn2)

[A] suit by private parties . . . imposing] a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.(fn3)

I. INTRODUCTION

There is an obvious tension between the two quotes-one from Congress and one from the Court-that begin this Article on fee-shifting statutes. To start fleshing out a synthesis of that tension, I would like to situate the problem in a practical context. Take the law enacted by Oklahoma barring the recognition of out-of-state adoptions by same-sex couples.(fn4) Several affected couples sued in federal court under 42 U.S.C. §1983(fn5) to invalidate the law, claiming that it violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the Full Faith and Credit Clause of Article IV.(fn6) In Finstuen v. Crutcher, the district court enjoined enforcement of the law on all three theories.(fn7) But, the Tenth Circuit affirmed on the full

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faith and credit argument only.(fn8) Wondering how this illustrates the problem that I would like to introduce is forgivable.

The merits of Finstuen are interesting, but this Article focuses on what, at first glance, seems like a tangential question: Could the Finstuen plaintiffs have collected attorneys' fees(fn9) from Oklahoma under 42 U.S.C. §1988 ?(fn10) The importance of that question is developed below. For the moment, take Finstuen as but one practical example of a hidden problem in the Court's sovereign immunity jurisprudence.

After the Finstuen couples prevailed in the district court on their Fourteenth Amendment claims, this Article assumes that an award of attorneys' fees would have been unproblematic-Congress has the power to abrogate a state's sovereign immunity from damages when it acts pursuant to a post-Eleventh Amendment grant of constitutional power, such as the Fourteenth Amendment. That is the upshot of Seminole Tribe v. Florida.(fn11) And, if the district court had the power to award damages as a constitutional matter,(fn12) then there is little question that an award of attorneys' fees should be permissible as well.(fn13) Attorneys' fees are in many ways simply costs incident to the prosecution of any suit, but an action for damages constitutes a specific form of suit in Anglo-American jurisprudence-one that the Constitution

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treats differently from other actions (such as claims for injunctive relief).(fn14) For reasons discussed in section III.B below, I assume for purposes of this Article that if Congress can constitutionally subject a state to liability for damages, then there is no reason why Congress cannot constitutionally provide for attorneys' fees.

With that wind-up, the problem lurking in Finstuen starts to come into focus. The constitutional basis for Congress's power to provide the couples with damages evaporated when the Tenth Circuit affirmed on the full faith and credit argument only. Seminole Tribe precludes an award of damages without a Fourteenth Amendment claimi(fn15)-not simply as a consequence of the textual specificity of § 1988 (or any statute)-but as a constitutional matter. This Article asks whether cases about the constitutional contours of sovereign immunity, like Seminole Tribe and Edelman v. Jordan,(fn16) put the Finstuen plaintiffs out of luck on attorneys' fees as well.

If so, the couples in Finstuen would seem to be-at least at first glance-in a preposterous position. They could have been awarded attorneys' fees by the district court initially, but not on remand. Even though the law that they challenged is, as a practical matter, just as unconstitutional on remand as it was when the district court initially enjoined its enforcement, the couples' incentive (or, depending on the circumstances, even their ability) to bring the suit would depend on which section of the Constitution entitles the couples to relief: the pre- or the post-Eleventh Amendment Constitution. The Eleventh Amendment(fn17) would take on double duty as a dividing line in § 1983

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cases-it already determines whether damages are available. There would be two Constitutions, one that impecunious citizens are incentivized (or, again, depending on circumstances, able) to enforce and one that they are not. As developed in section III.A and Part V, such a line may make sense for damage awards, but Seminole Tribe and Edelman do not compel the creation of a new dividing line for attorneys' fees, and another judicially created partition of the Constitution may not be desirable.

This Article asks two questions: (1) Is the constitutional availability of attorneys' fees from states limited by the constitutional availability of damages, and (2) what would be the effect of saying "yes"? Those simple and straightforward questions defy an easy answer. In Parts IV-VI of this Article, I attempt to work through several ways of thinking about those problems to arrive at an account of what the Court might do, what I believe it should do, and why struggling with this problem is a valuable exercise.

The conceptual question-which is the central focus of this Article-is interesting in its own right, but it is dwarfed in importance by the practical consequences that will flow from the answer that the Court ultimately gives. If the Court's sovereign immunity jurisprudence before and after Seminole Tribe means that attorneys' fees are no longer available to successful § 1983 litigants for claims that do not arise under post-Eleventh Amendment causes of action,(fn18) the impact will be breathtaking. Fee-shifting regimes that have played an important part in private parties' enforcement of the Constitution and federal law will be significantly undermined. Awards of attorneys' fees will be barred as a constitutional matter for actions that seek to enforce compliance with many federal laws,(fn19) such as those that concern employment,(fn20) the environment,(fn21) and commerce(fn22)-as well as for ac-

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tions raising supremacy,(fn23) suspension,(fn24) full faith and credit,(fn25) and dormant commerce(fn26) claims.(fn27) In fact, the reach of the problem identified in this Article extends into some of the most important areas of federal regulation, because Congress has frequently adopted fee-shifting regimes when it saw fit to construct an extensive regulatory apparatuses.(fn28)

Part II begins with a treatment of both the practical concerns and conceptual context of the problem of fee awards against states by providing brief, and no doubt familiar, histories of the statutes and principles at issue.

II. (VERY) BRIEF HISTORIES

A. 42 U.S.C. §1983

Congress enacted 42 U.S.C. §1983 in the Civil Rights Act of 1871, also called the Ku Klux Klan Act of 1871, as part of its "Radical Reconstruction" of the southern states that seceded during the Civil War.(fn29) Section 1983 was designed to provide a federal remedy to citizens of southern states, particularly newly emancipated African Americans and their white supporters, who were frequent targets of organized intimidation by white supremacist groups such as the Ku Klux Klan.(fn30) Federal protection was necessary because white supremacist groups were often in cahoots with the executive, legislative, and judi-

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cial organs of the states.(fn31) The purpose of the Act, in the Supreme Court's now classic formulation "was to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or...