Opinion · Court of Appeals for the Fifth Circuit

Edward R. Jagnandan v. William L. Giles, President, Mississippi State University

538 F.2d 1166

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1976-09-20
Topic
general

How later courts describe this case

  • suit seeking tuition refund for out of state resident against Mississippi State University held to be against State itself
  • lack of authority to “exceed” budgeted expenditures, even from nonappro-priated funds, without approval of executive or legislature, indicates dependency
  • lack of authority to "exceed" budgeted expenditures, even from nonappropriated funds, without approval of executive or legislature, indicates dependency
  • officials and members of Board of Trustees of Mississippi State University held immune from suit to recover excess payments of tuition by resident alien students
  • injunctive relief granted in § 1983 suit declaring state statute unconstitutional but damages denied because of immunity
  • "The absence of an appeal from the injunctive relief eliminates that hypothetical [of simultaneous appeals in separate courts] from surfacing here.”
  • a suit against MSU is a suit against the State, as any recovery would come from the State
  • “[T]he defendant University officials are not personally liable for the excess tuition payments tendered by plaintiffs. Thus, if plaintiffs are to recover, payment must come from defendants in their official capacity.”

Citator

Edward R. Jagnandan v. William L. Giles, President, Mississippi State University has been questioned or limited by later authorities: relies on overruled authority: 65 S. Ct. 347 (overruled by Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002)). Read them before relying on it. 125 later decisions cite it.

Authority status
caution
Cited by
125 opinions
JAGNANDAN v. GILES,538 F.2d 1166(5th Cir. 1976)
EDWARD R. JAGNANDAN ET AL., PLAINTIFFS-APPELLANTS, v. WILLIAM L. GILES,
PRESIDENT, MISSISSIPPI STATE UNIVERSITY, ET AL., DEFENDANTS-APPELLEES.
No. 74-3467.
United States Court of Appeals, Fifth Circuit.
September 20, 1976.
Page 1167
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 1168
Mark Shenfield, Jackson, Miss., for plaintiffs-appellants.

Ed Davis Noble, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before BROWN, Chief Judge, and GOLDBERG and RONEY, Circuit Judges.
RONEY, Circuit Judge:
[1] Plaintiff Reverend W.L. Jagnandan, on behalf of himself and his two sons, brought a class action to challenge the constitutionality of a Mississippi statute which classified all alien students, even Mississippi residents,Page 1169as nonresidents for tuition and fee purposes at state institutions of higher learning. A three-judge district court denied the class action request, declared the statute unconstitutional as being in contravention of the equal protection and due process clauses of theFourteenthAmendment, and granted injunctive relief. The court refused, however, to award plaintiffs reimbursement for the $3,495.00 in tuition and fees they had paid in excess of the amounts required of resident students, holding that such relief is barred by theEleventhAmendment, as interpreted by the Supreme Court inEdelman v.Jordan,415 U.S. 651,94 S.Ct. 1347,39 L.Ed.2d 662(1974).Jagnandan v. Giles,379 F. Supp. 1178(N.D.Miss. 1974). Plaintiffs appeal the denial of reimbursement for the excess tuition and fees paid pursuant to the unconstitutional statute. Plaintiffs do not appeal the denial of their class action request, nor do the defendants appeal from the grant of declaratory and injunctive relief as to the statute's unconstitutionality.

[2] This appeal presents important questions involving (1) the scope of our jurisdiction to review decisions of three-judge district courts, and (2) the scope of theEleventhAmendment's prohibition against reimbursement of overpayments collected under an unconstitutional statute. As to the first question, we conclude that we do have jurisdiction to hear the appeal. On the merits, we hold that theEleventhAmendment bars suits in federal court to recover excess tuition paid pursuant to an unconstitutional statute, and affirm the three-judge district court.

[3] The Jagnandans were citizens of the Republic of Guyana (formerly British Guiana in South America) lawfully admitted into this country as aliens with permanent resident classifications.1Since September 1969 they have lived in West Point, Mississippi, where Reverend Jagnandan is a minister of a local church. Reverend Jagnandan pays Mississippi income taxes and owns an automobile registered in Mississippi. All three plaintiffs hold Mississippi driver's licenses. Each testified without reservation or qualification that he had no present intention of leaving the state, his purpose being to reside indefinitely in Mississippi.

[4] The two sons, Edward R. Jagnandan and Leonard Susil Jagnandan, enrolled as full time students at Mississippi State University in the fall of 1970. Reverend Jagnandan himself enrolled at the University in the spring of 1972 as a candidate for a master's degree. The three were required to pay nonresident tuition and fees pursuant to a Mississippi statute classifying all aliens as nonresidents for tuition and fee purposes at state institutions of higher learning.2

[5] In September 1970, contemporaneous with his sons' matriculations at Mississippi State, Reverend Jagnandan sought to establish with University officials his family's eligibility as state residents for tuition and fee purposes. Plaintiffs fully exhausted their opportunity for administrative relief and, upon being notified that they were ineligible for resident tuition rates, instituted this federal action.
[6] JURISDICTION
[7] Congress has provided that suits seeking injunctive relief against the enforcement of state statutes by state officers must be heard and determined in the first instance by a specifically constituted district court of three judges, at least one of whom must be a circuit judge.28 U.S.C.A. § 2281. Appeals lie directly to the Supreme Court from orders of three-judge courts "granting or denying, . . . an interlocutoryPage 1170or permanent injunction . .."28 U.S.C.A. § 1253.3Courts of appeals have jurisdiction over all appeals excepting those where direct review may be had in the Supreme Court.28 U.S.C.A. §§ 1291and1292(a)(1).

[8] Although this statutory scheme is simple enough to describe, it has proved to be far from simple in its operation and has "given rise to bewildering problems in the area of appellate review." 9 J. Moore,Federal Practice¶ 110.03[3], at 70 (2d ed. 1975). Professor Wright has observed that the appellate rules relating to three-judge courts "are so complex as to be virtually beyond belief." C. Wright,Handbook of the Law of Federal Courts§ 50, at 193 (2d ed. 1970). The Supreme Court itself has recognized that "[t]hese procedural statutes are very awkwardly drafted, and in struggling to make workable sense of them, the Court has not infrequently been induced to retrace its steps."Gonzalez v.Automatic Employees Credit Union,419 U.S. 90,95,95 S.Ct. 289,293,42 L.Ed.2d 249(1974) (footnotes omitted). This Court also has commented on the problems which arise when working in this area, noting that "the jurisdiction of three-judge courts and appellate jurisdiction arising from their decisions is a treacherous and fluid area of our jurisprudence."Wernick v.Mathews,524 F.2d 543,545(5th Cir. 1975).

[9] Last term the Supreme Court attempted to clarify the law in this confused area. In two cases,Gonzalez v. AutomaticEmployees Credit Union, supra,419 U.S. 90,95 S.Ct. 289,42 L.Ed.2d 249(1974), andMTM, Inc. v. Baxley,420 U.S. 799,95 S.Ct. 1278,43 L.Ed.2d 636(1975), the Court restricted the scope of Supreme Court appellate jurisdiction under28 U.S.C.A. § 1253to situations involving denial of injunctions.

[10] InGonzalez,the Court unanimously held that jurisdiction over an appeal from an order of a three-judge court dismissing a complaint for lack of standing was vested in the courts of appeals. Although the Court explored the question of whether an order of a three-judge court "denies" an injunction, for purposes of28 U.S.C.A. § 1253, where there is no adverse resolution of the constitutional claims presented, it reserved determination of that issue and rested its decision on a different ground. The decision was based, at least partially, on the reasoning that a three-judge court is not required and should not be convened when the district court lacked jurisdiction of the complaint or when the claim is not justifiably in the federal court.419 U.S. at 100,95 S.Ct. 289citing Ex parte Poresky,290 U.S. 30,31,54 S.Ct. 3,78 L.Ed. 152(1933). The Court noted that if a single judge had in fact issued the order of dismissal for lack of standing, no direct appeal to the Supreme Court would have been allowed.4Thus, it was "mere convenience or happenstance" that a three-judge court had ruled on the standing issue, and to avoid a fortuitous direct appeal, the Court held
that when a three-judge court denies a plaintiff injunctive relief on grounds which, if sound, would have justified dissolution of the court as to that plaintiff, or a refusal to request the convention of a three-judge courtab initio,review of the denial is available only in the court of appeals.


[11]Gonzalez v. Automatic Employees Credit Union, supra,419 U.S. at 101,95 S.Ct. at 296.

[12] Three months later, inMTM, Inc. v. Baxley, supra,420 U.S. 799,95 S.Ct. 1278,43 L.Ed.2d 636(1975), the Court again considered the reach of its jurisdiction under § 1253. Directly addressing the question it reserved inGonzalez,the Court, with Justice White concurring only in the result and Justice Douglas dissenting, held that directPage 1171appeal lies from a three-judge court order denying injunctive relief only when the order is based on the merits of the constitutional attack against the statute. Therefore, since inMTM, Inc.the three-judge court had dismissed the suit under the comity doctrine ofYounger v. Harris,401 U.S. 37,91 S.Ct. 746,27 L.Ed.2d 669(1971), and did not reach the merits of the case, the Court ruled that it lacked jurisdiction over the direct appeal.

[13] Although in each case the Supreme Court's decision was meant to limit its review under § 1253, the practical effect of the two cases may differ in particular situations.
UnderGonzalez,the question of Supreme Court appealability turns on the power possessed by a single district judge. If a three-judge court denies an injunction on a ground within the decisional province of a single judge, review of the three-judge denial must be in the court of appeals. By contrast,MTMfocuses on whether the three-judge court's denial of an injunction was grounded in a decision on the constitutional merits.


[14] The Supreme Court: 1974 Term, 89 Harv.L. Rev. 1, 187 (1975). These differing approaches raise the question of whetherMTM,Inc.supplementsGonzalez,or subsumes it.

[15] These two decisions undoubtedly will serve in most cases to make more certain the proper forum in which an appeal of an order of a three-judge court should be taken. In this particular case, however, we are unsure as to whether jurisdiction of the appeal lies in this Court or in the Supreme Court. Under theGonzalezstandard it would appear that we properly have jurisdiction of the case, since the appealed order denying reimbursement does not involve a question of injunctive relief and thus is not one which had to be made by a three-judge court. It can be argued, however, that the question of reimbursement was so integrally related to the question of constitutionality which confronted the three-judge court, that its appealability must be considered as from an issue "within the decisional province" of a three-judge court.

[16] Applying theMTM, Inc.test presents similar difficulties. It is clear that the order denying reimbursement was not based on a resolution of the merits of the constitutional claim for which injunctive relief was sought. Again, however, a plausible argument can be made that in this case the reimbursement issue is so closely related to the question of the constitutionality of the statute that the appeal of the order denying reimbursement should be heard by the same forum that would hear an appeal involving the constitutionality of the statute.

[17] Moreover, had the state officials appealed the three-judge court's grant of injunctive relief, we would confront even greater conceptual problems. Such a situation would present the hypothetical suggested by Justice Douglas in his dissent inMTM,Inc.,whereby under a strict reading of the new standards, a case could be fragmented or split into pieces for purposes of appeal.420 U.S. at 807,95 S.Ct. 1278. The order granting the injunction would be appealed directly to the Supreme Court, while the same order denying reimbursement for excess past tuition and fees paid pursuant to the unconstitutional statute would be appealed to this Court.

[18] The absence of an appeal from the injunctive relief eliminates that hypothetical from surfacing here. Our reading of bothGonzalezandMTM, Inc.leads us to believe that in this case the proper forum for appeal is in this Court, regardless of where appellate jurisdiction may lie in a case where the grant or denial of injunctive relief has also been appealed. By holding that we have jurisdiction to hear the appeal, we are supporting "the historic congressional policy of minimizing the mandatory docket of . . . [the Supreme Court] in the interest of sound judicial administration."MTM, Inc. v. Baxley, supra,420 U.S. at 804,95 S.Ct. at 1281.5Furthermore,Page 1172by hearing this appeal we are giving the Supreme Court our opinion on the proper determination of the merits of the case, views which would not be available to that Court if only a direct appeal were available.See Gonzalez v. Automatic EmployeesCredit Union, supra,419 U.S. at 99,95 S.Ct. 289.

[19] In short, based upon the recent Supreme Court decisions inGonzalezandMTM, Inc.,and in the interest of sound judicial administration, we hold that jurisdiction over this appeal properly lies in this Court.6
[20]ELEVENTHAMENDMENT
[21] The Mississippi statute requiring resident aliens residing in Mississippi to pay out-of-state tuition was ruled unconstitutional by the three-judge district court.Jagnandan v.Giles,379 F. Supp. 1178(N.D.Miss. 1974). No appeal was taken from that holding. The court held, however, that theEleventhAmendment bars plaintiffs' recovery of excess tuition payments made under the unconstitutional statute. In denying reimbursement the court relied onEdelman v. Jordan,supra,415 U.S. 651,94 S.Ct. 1347,39 L.Ed.2d 662(1974), and onEdelman's precursor,Ford Motor Co. v. Department of Treasury,323 U.S. 459,65 S.Ct. 347,89 L.Ed. 389(1945).7This denial of relief is challenged on appeal.

[22] In presenting their case for reversal plaintiffs assert five arguments: (1) defendants are personally liable for the excess tuition payments; (2) the State of Mississippi is not a party to this suit forEleventhAmendment purposes; (3) Mississippi waived its immunity; (4)Edelman v. Jordandoes not preclude the type of relief here sought; and (5) theEleventhAmendment cannot be used to protectFourteenthAmendment violations. Answering these pointsseriatimin the negative, we affirm the district court's denial of tuition refunds.

[23] During the ratification process of the United States Constitution, and subsequent thereto, the sovereign states of this fledgling nation were concerned with the prospect that federal constitutional authority might be construed to allow suits against the states in federal courts when brought by a citizen of another state or foreign country.8These fears were soon realized inChisholm v. Georgia,2 U.S. (2 Dall.) 419,1 L.Ed. 440(1793).Chisholmheld that under the language of the Constitution and of the Judiciary Act of 1789 a state could be sued by a citizen of another state or foreign country. Reaction was swift and immediate. Barely five years later, in 1798, theEleventhAmendment was ratified by the states.9Unaltered since its ratification, the amendment provides simply:
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.


[24] U.S. Const. Amend.XI.

[25] The amendment has been judicially construed to bar federal jurisdiction over suits brought against a state by its own citizens, despite the absence of language to that effect.10It also has been construed to encompass a suit brought by a foreign state.11This bar, however, does not preclude a suit against the state when brought by the United States.12Thus, when speakingPage 1173of theEleventhAmendment, the Court really talks in terms of the jurisdiction of federal courts to entertain suits and to grant relief against a state.13
[26]Personal Liability
[27] At the outset we hold that the defendant University officials are not personally liable for the excess tuition payments tendered by plaintiffs. Thus, if plaintiffs are to recover, payment must come from defendants in their official capacity.

[28] There is nothing in the record to indicate that defendants acted unreasonably or in a manner outside of their official capacity.14Defendants were merely complying with the clear state mandate in collecting out-of-state tuition from these resident aliens. Defendants were not on notice of the statute's unconstitutionality prior to payment and acceptance of the money. They were acting in complete good faith.15
[29]Suit Against the State?
[30] Plaintiffs next urge that forEleventhAmendment purposes the defendants are not state entities and therefore theEleventhAmendment is inapplicable. The initial defendants were the President of Mississippi State University and the Assistant to the Vice President for Business Affairs at the University. The district court, on its own motion, joined the Board of Trustees as a party defendant.379 F. Supp. at 1180.SeeFed.R.Civ.P.19(a). We cannot agree with plaintiffs' contention, because on our reading of the case law we are convinced that, effectively, the state is the true defendant to this suit.

[31] By its own language theEleventhAmendment indicates that a state must be sued before the bar to suit in federal court applies. The state must be a real or, at least, a nominal defendant.16It is not necessary for the state to be actually named in the suit. It is enough that, in effect, the suit is against the state and any recovery will come from the state.17

[32] To make this determination, the Court must decide whether the suit is for all practical purposes against the state.18InHander v. San Jacinto Jr. College,519 F.2d 273(5th Cir.),reh. denied,522 F.2d 204(5th Cir. 1975), this Court affirmed the district court's award of back pay for a wrongfully discharged teacher. The Court recognized that a back pay award was the type of retroactive relief prohibited byEdelman v.Jordan, supra,415 U.S. 651,94 S.Ct. 1347,39 L.Ed.2d 662(1974).19Nonetheless, anEleventhAmendment challenge was by-passed in the suit against the governingPage 1174junior college districts on the ground that under the peculiar Texas statutory and decisional law, the suit was not against the state.20The junior college districts inSan Jacintowere "primarily local institutions, created by local authority and supported largely by local revenues."519 F.2d at 278. Thus, under the established law that local governmental institutions may not stand in the same light as the state forEleventhAmendment purposes, there was no bar to the suit.21What preserved jurisdiction inSan Jacintowill not, however, assist the plaintiffs here. Under the instant facts, it is clear from statutory and decisional law that the State of Mississippi is the real party defendant.22The district court implicitly recognized this when it stated,
Nor is there any question but that the refunds, if ordered, would not be paid by the defendants from personal funds, but would necessarily be a charge upon the state treasury, or at least that portion of the fisc dedicated to higher education.


[33]379 F. Supp. at 1188.

[34] The genesis of Mississippi State University (M.S.U.) is found in Chapter XIX of the Laws of the State of Mississippi, approved February 28, 1878. The school was first known as the Agricultural and Mechanical College of the State of Mississippi. Laws of Mississippi, ch. XIX, § 2.23Overseeing the school was a Board of Trustees appointed by the Governor with the advice and consent of the state senate.Id.§ 3. The Board was declared to be a body politic and corporate, capable of suing and being sued.Id.§ 5. The Governor was theex officiopresident.Id.§ 6. The State Treasurer was theex officiotreasurer, empowered to keep and disburse all moneys of the school according to the orders of the Board.Id.§ 8. Later, Mississippi's universities were placed under the control of the Board of Trustees of state institutions of higher learning.24The Agricultural and Mechanical College of Mississippi logo was changed to Mississippi State University by statute, although the school retained "all its property and the franchises, rights, powers, and privileges heretofore conferred on it by law [1878 Act] . . .." Miss. Code Ann. §37-113-3(1972).

[35] Under state law Mississippi is inextricably involved in all facets of the Board's operation of the University, as well as the operation of other schools comprising the state's higher institutions of education.SeeMiss. Code Ann. §37-101-1(1972). The Board's structure is detailed in the Mississippi Constitution. In part, the provision provides:
Such Board shall have the power and authority to elect the heads of the various institutions of higher learning, and contract with all deans, professors and other members of the teaching staff, and all administrative employees of said institutions for a term not exceeding four years; but said Board shall have the power and authority to terminate any such contract at any time for malfeasance, inefficiency or contumacious conduct, but never for political reasons.
Nothing herein contained shall in any way limit or take away the power of the Legislature had and possessed, if any, at the time of the adoption of this amendment, to consolidate or abolish any of the above named institutions.


[36] Miss. Const. Art.8, §213-A. The general powers and duties of the Board are prescribed in § 37-101-15 of the Mississippi statutes. The Board exercises control, distribution and disbursement "of all funds,Page 1175appropriations and taxes, . . . levied and collected, received, or appropriated . . .." Miss. Code Ann. §37-101-15(a) (1972). It also has the power to authorize employees to sign vouchers for the disbursement of funds. According to documentations provided in a post argument memorandum submitted by defendants' counsel, M.S.U. is classified as a Group I university. This means that the University is allowed to request up to 72% of its total budget from state appropriations. Requests for such funds are made through the Board as the clearing house for legislative appropriations. The Board disburses the funds to the state university system by an allocation-of-funds formula. Thus, it appears that all appropriations must first be funnelled through the Board. The Board's supervision over the University's budget is complemented by the state's control over the Board's supervision.

[37] Section 37-101-15(d) provides that the Board shall maintain a uniform system of recording and accounting. This system must be approved by the state Department of Audit. It prepares an annual report submitted to the legislature that details "the disbursements of all moneys appropriated to the respective institutions."Id.§ 37-101-15(e). The report must also show a summary of gross receipts and disbursements. This necessarily covers not only the funds appropriated by the legislature, but would also include self-generating funds. These funds include all student fees collected, grants, sponsored research, income from endowment interest that may accrue to an institution, and the like. Important to note is a provision that illustrates both the Board's control over M.S.U.'s fiscal policy and the ultimate supervision of the Board by the state legislature.
The boardshallkeep the annual expenditures of each institution herein mentioned within the income derived from legislative appropriationsand othersources,but in case of emergency arising from acts of providence, epidemics, fire or storm with the written approval of the governor and by written consent of a majority of the senators and of the representatives it may exceed the income.


[38]Id.§ 37-101-15(e) (emphasis added).

[39] Related to this is another statutory provision detailing the procedure by which the Board submits the budget of each institution to the state's Commission of Budget and Accounting. Section 27-103-29(g) directs the Board to submit the annual budget prior to the beginning of each fiscal year. The Commission approves the budget if sufficient funds will be available to meet the requests. If not, requests must be justified to the Commission or some sort of compromise worked out. Only then is the budget approved. "The total amount approved for each institution shall constitute the maximum funds which may be expended during the fiscal year." Miss. Code Ann. § 27-103-29(g).

[40] This statutory scheme clearly demonstrates the State of Mississippi's control over the fiscal policies established by the Board, anda fortioriover the finances of M.S.U. There has not been cited and we have not discovered any state statute providing refund procedures for overpayment of out-of-state tuition fees.Cf.Miss. Code Ann. §27-73-1et seq.(tax refund statutes).

[41] Thus, there are no facts in this case that would allow application of theSan Jacintorationale. Mississippi statutes do provide that counties meeting certain qualifications are authorized to contribute funds toward the construction and equipping of M.S.U. educational facilities within that county. Miss. Code Ann. §37-113-43(1972). These funds, however, do not give the county any rights to the facilities,id.§ 37-113-49, and the funds are deposited into a special fund in the state treasury.Id.§ 37-113-47.

[42] State decisional law confirms that the Board and the University are part and parcel of the state.Coleman v. Whipple,191 Miss. 287,2 So.2d 566(1941), involved a suit to construe a will and cancel certain bequests to three Mississippi universities. In determining whether the state fell within the statute prohibiting charitable bequests, the court had to inquire whether the universitiesPage 1176were one and the same with the state. In discussing the nature of the Board, the court stated:
They were the managing board or head of the university, and then and now constitute the University of Mississippi, created by the State through its legislature which, under its act of creation (Sec. 5) retains the right to repeal the entire act; its property is owned by the State and the university is as an arm of the State, the State itself.


[43] This is also true for M.S.U.
The acts creating the colleges now known as Mississippi State College [renamed Mississippi State University] (February 28, 1878) . . . must be similarly construed, and such construction is not at all affected by Chapter 127 of the Laws of 1932, creating a single board oftrustees for all thestate institutions of higher learning.


[44]2 So.2d at 567(emphasis added).

[45] InSmith v. Doehler Metal Furniture Co.,195 Miss. 538,15 So.2d 421(1943), Mississippi Southern College was joined as a party defendant in a suit to recover a debt. The president of the college and its financial secretary were also defendants, a situation similar to the case at bar. The court seemed to recognize that the Board of Trustees would not have to answer suits absent express waiver of its immunity as a state agency.15 So.2d at 421-422. Plaintiffs sought payment from a separate fund, "Mississippi Southern College Student Fund," which contained student fees paid over the preceding two to three years. Despite this, the court stated that the funds were public, not private. Once collected by the college officers, officials such as defendants in the casesub judice,the moneys became public funds "as to which the officers were responsible solely to the college and to the trustees, and to no private person whomsoever."15 So.2d at 422. Thus, inSmiththe fees were not subject to attachment. The same principle must applya fortioriin the instant case where there was no separate fund for student fees.

[46] TheEleventhAmendment was fashioned to protect against federal judgments requiring payment of money that would interfere with the state's fiscal autonomy and thus its political sovereignty. Retroactive monetary relief for the constitutional violations here would have just that effect.25Mississippi has devised a complex statutory design which governs the state's schools of higher education and their control by the Board of Trustees. The Board is required to submit budgetary proposals for legislative acceptance. To require refund payments from the Board for overpayment of tuition fees would be the kind of tampering theEleventhAmendment sought to avoid.

[47] These fees appear to have been commingled with all moneys held by the University.26Moreover, these types of fees were factored into the preparation of the annual budget for M.S.U. and were relied upon by the state legislature in determining the maximum amount of expenditures allowed. To compel payment would be to add an expenditure not figured in the budget. The fact that the sum is small, $3,495.00, compared to the overall University budget does not affect the determination. TheEleventhAmendment bar is not contingent on the magnitude of the monetary award sought against the state.27
[48]Waiver of Immunity
[49] On oral argument plaintiffs urged that this case is indistinguishable fromSoni v. Board of Trustees of the Univ. ofTenn.,513 F.2d 347(6th Cir. 1975);cert. denied,___ U.S. ___,96 S.Ct. 2623,49 L.Ed.2d 372(1976). InSoni,the Sixth Circuit awardedPage 1177back pay to a university professor in the face ofEleventhAmendment contentions. Although theSonirecord was incomplete on the issue of the University's identity as a state instrumentality, the court assumed without deciding that a suit against the University was a suit against the State of Tennessee. The court went on to hold, however, that there had been a waiver of federal court immunity based upon the University's charter, which read:
The said trustees and their successors by the name aforesaid, may sue and be sued, plead and be impleaded, in any court of law or equityin thisState or elsewhere.(emphasis added).


[50]513 F.2d at 351. TheSonicourt found this to be a clear waiver of Tennessee's right not to be sued in federal court.

[51] The principles guiding our determination on this issue are well settled. Waiver of the state's constitutional immunity must appear clearly and will not be easily implied.28An immunity waived for state suit purposes does not necessarily waive immunity for federal courts.29

[52] There is nothing in the present record to indicate that Mississippi clearly intended to waive itsEleventhAmendment immunity.30The sweeping state statutory language of waiver which controlledSoniis not equalled in this case. Section 5, chapter XIX of the 1878 Act simply provided that the Board could sue and be sued. No reference was made to any specific court. Section 5 provided:
That each of the board of trustees herein provided for, and their successors in office, be and the same are hereby declared to be a body politic and corporate by their respective names and styles, and shall have a common seal, and each in its own name;shall sue and be sued,contract and be contracted with, and may own, purchase, sell and convey property, both real, personal and mixed. (emphasis added).


[53] This "sue and be sued" terminology has not, however, been carried into the present statutes. There is no equivalent of section 5 in the new statutes. No mention is made of the power to sue or to be sued either in the organizational statutes or in the general powers and duties of the Board.31Under specific circumstances the Board is allowed to sue or be sued.32In these instances, however, the waiver is limited to a narrowly defined activity. The consent to be sued is not given with such clarity as to amount to a waiver ofEleventhAmendment protection. As the Supreme Court stated inPetty v.Tennessee-Missouri Bridge Comm'n,359 U.S. 275,79 S.Ct. 785,3 L.Ed.2d 804(1959):
[W]here a public instrumentality is created with the right "to sue and be sued" that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal, courts.


[54]Id.at 277,79 S.Ct. at 787.

[55] In the statutes concerning Mississippi State University, there is no provisionPage 1178comparable to section 5 of the 1878 Act.33Only § 37-113-3 could be construed as referring back to any form of consent that may have been present in prior acts. In referring to the 1878 Act, this section states in part:
[Mississippi State University] shall continue to exist as a body-politic and corporate, . . . with all its property and the franchises, rights, powers, and privileges heretofore conferred on it by law, or properly incident to such a body and necessary to accomplish the purpose of its creation[.]


[56] This provision likewise lacks the clarity needed in order to infer the state's consent to be sued. As the Supreme Court has often stated,
Th[e] cases declare the rule that clear declaration of a State's consent to suit against itself in the federal court on fiscal claims is required.


[57]Kennecott Copper Corp. v. State Tax Comm'n,327 U.S. 573,577,66 S.Ct. 745,747,90 L.Ed. 862(1946). Clear expression is lacking here.

[58] Our holding that there is no Mississippi statute consenting to suit is buttressed by state decisional law.Smith v. DoehlerMetal Furniture Co., supra,195 Miss. 538,15 So.2d 421(1943), involved Mississippi Southern College, a sister school of M.S.U. but subject to the same statutory control and Board supervision. The state Attorney General argued that the school was an agency of the state and that there was no statutory consent for the suit. The Mississippi Supreme Court agreed.
That an arm or agency of the state cannot be sued except by express statutory or constitutional authority has been too long and too well settled to be further debatable now, and this includes, of course, suits under the attachment in chancery statutes. An institution such as this College is entrusted only to men of high character, and they, in turn, are under the supervision of a state-wide board of trustees, selected from among the most reputable citizens of the state. The legislature has evidently considered that such men would be as sensitive to every financial obligation of the institution and as alert to preserve its financial integrity as would any court or jury, and that since the principal field of effort of such an agency is other than business, it should not have its energies diverted by standing attendance upon litigation.


[59]15 So.2d at 421-422. InState v. Sanders,203 Miss. 475,35 So.2d 529(1948), the court was seemingly speaking to the instant situation where recovery of excess tuition payments would necessarily be paid from the state treasury. InSandersthe court stated:
Thus it will be found, . . . that nearly all the cases, wherein the rule of immunity from suit against the state, or a subdivision thereof, has been applied and upheld, are those which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require an appropriation or an expenditure therefrom, which being legislative in its character is a province exclusively of the political departments of the state.


[60]35 So.2d at 532-533.

[61] This result is identical to a post-Sonidecision of the Sixth Circuit inLong v. Richardson,525 F.2d 74(6th Cir. 1975). There former law students sought a money judgment against Memphis State University for out-of-state tuition fees paid while they were in school. The plaintiffs inLongwere after the same kind of relief as the Jagnandans. The court held that the suit was barred by theEleventhAmendment since Tennessee had not clearly waived its immunity for Memphis State University, unlike the situation inSoni.Thus, in the casesub judicewhere no clear expression of waiver has been found,Soniwould not be controlling.
[62]Edelman v. Jordan
[63] Plaintiffs contend that the refunding of previous excess tuition payments is not proscribedPage 1179by the Supreme Court analysis of theEleventhAmendment inEdelman v. Jordan, supra,415 U.S. 651,94 S.Ct. 1347,39 L.Ed.2d 662(1974). They further argue that this type of refund is more in the nature of equitable restitution and therefore different from the retroactive welfare benefits denied inEdelman.We disagree.

[64] The United States Supreme Court has never specifically addressed the problem of refunded excess tuition paymentsvis-a-vistheEleventhAmendment. The pre-Edelmancase ofVlandis v. Kline,412 U.S. 441,93 S.Ct. 2230,37 L.Ed.2d 63(1973),aff'g,346 F. Supp. 526(D.Conn. 1972), does not support plaintiffs' effort to bypass theEleventhAmendment. It is true thatVlandisaffirmed the refunding of excess out-of-state tuition fees paid by students who were in fact Connecticut residents. The primary issue inVlandisconcerned state statutes creating irrebuttable presumptions of nonresidency. The Court found these to be violative of due process.

[65] InVlandis,however, theEleventhAmendment issue was never briefed nor argued to the Court and was not discussed in the Court's opinion.34The Court inEdelmandisavowed prior cases which had granted monetary relief against the state without consideration ofEleventhAmendment ramifications.35AlthoughVlandiswas not specifically named by the Court as being among this group, we do not read the omission as indicating the Court's approval of refunding tuition fees in the face ofEleventhAmendment contentions. SinceEdelman,and notVlandis,fully explored theEleventhAmendment area, it isEdelmanwhich must necessarily control our decision in the case before us. The status ofVlandisis thus similar to that ofShapiro v.Thompson,394 U.S. 618,89 S.Ct. 1322,22 L.Ed.2d 600(1969). There the Supreme Court affirmed the granting of retroactive welfare benefits without mention of theEleventhAmendment. The Court inEdelmanexplicitly disapprovedShapiroto the extent it conflicted withEdelman'sEleventhAmendment holding.

[66]Edelmannegates any sustenance which plaintiffs might get from the watershed case ofEx parte Young,209 U.S. 123,28 S.Ct. 441,52 L.Ed. 714(1908). The Court there held that theEleventhAmendment did not bar a federal court from enjoining the Attorney General of Minnesota from enforcing a statute found to be in violation of theFourteenthAmendment. To reach this result,Ex parte Youngrested upon a fiction.36Since the officer was seeking to enforce an unconstitutional statute, that officer lost his cloak of state authority. At that point he began to operate without the official sanction of the state. This logically followed from the proposition that the state could not enforce an unconstitutional act.
[T]he use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.


[67]209 U.S. at 159-160,28 S.Ct. at 454. Thus it became not a suit against the state at all. The officer was affirmatively enjoined toPage 1180conform his conduct to constitutional requirements.

[68]Edelmanlikewise involved a suit for injunctive relief against state officials for violation of federal regulations and theFourteenthAmendment in administering the federal-state program of Aid to the Aged, Blind or Disabled. On the merits, the district court held the federal regulations to have been violated. The court ordered defendants to release and remit past benefits wrongfully withheld. The court of appeals affirmed. The Supreme Court affirmed as to the illegality of the action of the state officials. As to the damage issue, however, the Court held that ordering the remittance of retroactive benefit payments by the federal court was barred by theEleventhAmendment.415 U.S. at 658-659,94 S.Ct. 1347.

[69] Noting that in reality the benefits award by the district court would be paid from the general revenues of the State of Illinois, theEdelmanCourt held 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 theEleventhAmendment.


[70]415 U.S. at 663,94 S.Ct. at 1356.

[71] Thus, althoughEx parte Youngwould support the injunctive relief ordered in this case,Edelmanclearly bars financial relief against public funds. Since it is clear that any repayment of past tuition costs would necessarily come from state funds, we affirm the three-judge district court's refusal to grant the refund. Our conclusion corresponds to that of the Sixth Circuit in a similar case which involved the refunding of tuition fees.See Long v. Richardson, supra,525 F.2d at 75-76.

[72] In its most recent decision on theEleventhAmendment, the Supreme Court inFitzpatrick v. Bitzer,___ U.S. ___,96 S.Ct. 2666, 49 L.Ed.2d ___ (1976) left unquestioned its holding inEdelman v. Jordan.AlthoughFitzpatrickpermitted recovery of retroactive retirement benefits wrongfully withheld from plaintiffs on the basis of sex discrimination, that case is not controlling. Different from the case at bar was the presence inFitzpatrickof federal legislation authorizing federal courts, under Title VII, to award money damages in favor of private individuals and against a state found to have discriminated in employment on the basis of race, religion, color, sex or national origin. ___ U.S. at ___,96 S.Ct. 2666.See42 U.S.C.A. § 2000e-2(a). This legislation had been passed pursuant to § 5 of theFourteenthAmendment. Similarly inEdelmanthere was no express congressional legislation. ThusFitzpatrickfound a situation wholly unpresent inEdelman.The Court inFitzpatrickindicated that without this particular legislation the case would be governed byEdelman. But cf. National Leagueof Cities v. Usery,___ U.S. ___,96 S.Ct. 2465,49 L.Ed.2d 245(1976).
Both parties in the instant case agree with the Court of Appeals that the suit for retroactive benefits by these parties is in fact indistinguishable from that sought to be maintained inEdelman,since what is sought here is a damage award payable to a private party from the state treasury.


[73]Fitzpatrick v. Bitzer,___ U.S. at ___,96 S.Ct. at 2669(footnote omitted).

[74] Plaintiffs additionally argue that this is really a suit for equitable restitution and is therefore not barred by theEleventhAmendment. Plaintiffs reason that, unlike the welfare benefit cases, repayment of these tuition fees is not akin to a damage claim but merely prevents unjust enrichment of the University. The excess fees would never have been collected but for the unconstitutional statute.Edelman'sreliance onFord Motor Co.v. Department of Treasury, supra,323 U.S. 459,65 S.Ct. 347,89 L.Ed. 389(1945), forecloses acceptance of plaintiffs' argument.

[75]Ford Motor Co.was an unsuccessful suit by a nonresident plaintiff for refund of gross income taxes paid the Indiana Department of Treasury. Like the excess tuition payments involvedsub judice,the taxes were moneys paid by the taxpayer.

[76] The two issues before the Court inFord Motor Co.involved whether the suit wasPage 1181against the state, and whether Indiana consented to be sued. The Court ruled the suit to be against the state but held there had been no consent to suit. The opinion did not explicitly discuss whether a claim for equitable restitution could withstand anEleventhAmendment challenge. InEdelman,however,Ford MotorCo.was cited as answering that question negatively.
The term "equitable restitution" would seem even more applicable to the relief sought in that case [FordMotor Co.], since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction.


[77]Edelman v. Jordan, supra,415 U.S. at 669,94 S.Ct. at 1358.

[78]Ford Motor Co.on its own might very well not support a broad denial of equitable restitution. TheEdelmanCourt, however, construes that case to preclude such relief in spite of the inequities inherent in such a denial.

[79] The Third Circuit has recently decided a case that on its face appears directly contrary to theEleventhAmendment result reached on this appeal.Samuel v. University of Pittsburgh,538 F.2d 991(3rd Cir. 1976). Investigation below the surface ofSamuelindicates that the case is inapposite to the appealsubjudice.The court inSamuelaffirmed the granting of injunctive relief against defendant universities and state officials preventing the enforcement of a statewide residency rule on grounds of its unconstitutionality. That rule, for tuition purposes, required that the domicile of the wife is considered that of her husband's. The court also affirmed the district court's holding the universities liable for equitable restitution for the difference between the higher out-of-state tuition fees paid by married women residents because of the unconstitutional residency rule and the lesser in-state tuition charges.

[80] A review of the district court's decision explains the apparent inconsistency betweenSamueland the instant case.Samuel v.University of Pittsburgh,375 F. Supp. 1119(W.D.Pa. 1974). Three universities involved in the suit included the University of Pittsburgh, Temple University and Penn State University. The district court at length explored the relationship between the three universities and the Commonwealth of Pennsylvania.37This argument was rejected. The district court found the universities not to be state instrumentalities.38As was documented in theSuit Against the State?section of this opinion, unlike the universities involved inSamuel,M.S.U. is one and the same with the State of Mississippi. Therefore the cosmetic similarity between these two cases does not withstand analysis. In the notation of issues involved in theSamuelappeal the court made no mention of a challenge to thePage 1182district court's findings as to the universities' private status. The Third Circuit found the universities to be liable for restitution:
The [district court] found that the Universities were unjustly enriched in that they wrongfully secured a benefit which it would be unconscionable for them to retain. We agree with this conclusion.39


[81]538 F.2d at 994. In light of the district court's extensive discussion of the essentially private nature of the universities, and the Third Circuit allowing restitution from those universities, it cannot be said thatSamuelcontravenes those principles relied on in the instant case.

[82] Finally, the case ofAtchison T. S.F. Ry. v. O'Connor,223 U.S. 280,32 S.Ct. 216,56 L.Ed. 436(1912), is of no help to plaintiffs.Atchisonsimply was not an equitable restitution case because, as the Court noted, state law provided that
"if it shall be determined inany actionat law or in equity that any corporation has erroneously paid said tax to the Secretary of State," upon the filing of a certified copy of the judgment the auditor may draw a warrant for the refunding of the tax and the state treasurer may pay it. We must presume that a judgment in the present action would satisfy the law. (emphasis added).


[83]Id.at 287,32 S.Ct. at 218. Thus inAtchisonrecovery was based on a state statutory right where the statute effectively waived anyEleventhAmendment bar by the provision thatanycourt judgment would effect repayment of taxes. Such is not the case here.
[84]Effect ofFourteenthAmendment Violation on EleventhAmendment Immunity
[85] In their final argument plaintiffs contend that theEleventhAmendment does not bar recovery for thisFourteenthAmendment violation. Plaintiffs argue that the earlier enactedEleventhAmendment (adopted 1798)40must give way to theFourteenthAmendment (adopted 1868)41which protects individuals against state encroachment upon their rights to due process and equal protection of the laws. The major portion of plaintiffs' brief deals with this argument.

[86] The three-judge court rejected this argument and held that theEleventhAmendment barred recovery of excess tuition payments. In reaching this conclusion the court relied uponEdelman v.Jordan,415 U.S. 651,94 S.Ct. 1347,39 L.Ed.2d 662(1974). It recognized that althoughEdelmandid not rest uponFourteenthAmendment grounds,
the sweep of the majority opinion [inEdelman] apparently leaves no room for distinguishing money demands made against a state because ofPage 1183FourteenthAmendment transgressions, at least in such areas, as here, where Congress had not passed enforcement legislation specifically directed against a state or states pursuant to Section 5 of the Amendment.


[87]379 F. Supp. at 1189. Accordingly, the court held that
[w]ithout specific guidance from the Supreme Court, we hold that the issue of ordering refunds to plaintiffs is foreclosed and no longer an open question, despite the footnote observation in Justice Marshall's dissent.


[88]Id.at 1189.42

[89] Of course,Edelmandoes not hold that theEleventhAmendment absolutely proscribes all monetary relief against a state in a federal court, even inFourteenthAmendment cases. Insofar as one Amendment may override the other, the question was left open inEdelman,as Justice Marshall recognized in his dissent.43Edelmanis not, however, eliminated as an instructional device in attempting to come to grips with the sensitive constitutional issue raised by plaintiffs' arguments. TheEdelmanCourt expressly overruled, as being inconsistent with theEleventhAmendment, a series ofFourteenthAmendment cases allowing assessment of damages against the state.44

[90] InProut v. Starr,188 U.S. 537,23 S.Ct. 398,47 L.Ed. 584(1903), the plaintiffs obtained an injunction against the state attorney general's enforcement of an allegedly unconstitutional statute, arguing that they would otherwise suffer loss of property without due process of law. The court affirmed the injunction. TheEleventhAmendment was asserted as a defense. In an approach similar to that taken later inEx parte Young,209 U.S. 123,28 S.Ct. 441,52 L.Ed. 714(1908), theProutCourt stated that when a state officer attempts to enforce an unconstitutional statute, a suit against him "is not a suit against the State within the meaning of that amendment."188 U.S. at 543,23 S.Ct. at 400.See Smyth v. Ames,169 U.S. 466,18 S.Ct. 418,42 L.Ed. 819(1898). In discussing the relationship of theEleventhAmendment with other constitutional amendments, the Court worked from the basic premise that
[t]he Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity.


[91]Id.188 U.S. at 543,23 S.Ct. at 400. Consequently, the Court recognized that one of its important functions is to interpret the various provisions and limitations of the Constitution so "that each and all of them [should] be respected and observed."Id.at 544,23 S.Ct. at 401.

[92] InEx parte Young, supra,the Court again recognized this constitutional tension but did not have to resolve the issue in deciding that case. The Court, however, did state that
[w]e may assume that each [theEleventhandFourteenthAmendments] exists in full force, and that we must give to theEleventhAmendment all the effect it naturally would have, without cutting it down or rendering its meaning any more narrow than the language, fairly interpreted, would warrant.


[93]Id.209 U.S. at 150,28 S.Ct. at 450.SeeC. Wright,Handbook of the Law of Federal Courts,§ 48, at 185 (2d ed. 1970).

[94] The exact parameters of theEleventhAmendment, when juxtaposed withPage 1184theFourteenthAmendment, do not appear to have been considered before by this Court.See Mobil Oil Corp. v. Kelley,493 F.2d 784,786-787n. 1 (5th Cir.),cert. denied,419 U.S. 1022,95 S.Ct. 498,42 L.Ed.2d 296(1974),Louisiana State Bd. of Educ. v. Baker,339 F.2d 911,914(5th Cir. 1964). We conclude, however, that in the casesubjudice,theFourteenthAmendment, though ratified last, does not preempt the operation of theEleventhAmendment's bar against recovery of the excess tuition payments from the state in a federal court. Recognizing the need for a balance of the conflicting Amendments, we find that such a resolution satisfies the interests of both Amendments. The state officials have been enjoined from enforcing an unconstitutional act to the deprivation of the plaintiffs'FourteenthAmendment rights, and the state's fiscal interest has been preserved under theEleventhAmendment.

[95] The Supreme Court's recent decision inFitzpatrick v. Bitzer,___ U.S. ___,96 S.Ct. 2666, 49 L.Ed.2d ___ (1976), does not alter the result reached in this case. Fitzpatrick brought a class action on behalf of all present and retired male employees working for the State of Connecticut. The complaint charged that certain statutory provisions of Connecticut's retirement benefit plan discriminated against the plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. An injunction issued, but the district court held the recovery of retroactive benefit payments prohibited by theEleventhAmendment since they would be paid from the state treasury. On this point the Second Circuit affirmed.Fitzpatrick v. Bitzer,519 F.2d 559(2d Cir. 1975). The Supreme Court reversed.

[96] The Court held that theEleventhAmendment may be effectively preempted by congressional legislation enacted pursuant to the enforcement provision of section 5 of theFourteenthAmendment, which provides:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.


[97] The Court said,
we think that theEleventhAmendment, and the principle of state sovereignty which it embodies, seeHans v. Louisiana,134 U.S. 1[10 S.Ct. 504,33 L.Ed. 842] (1890), are necessarily limited by the enforcement provisions of § 5 of theFourteenthAmendment. * * * When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority.


[98] ___ U.S. at ___,96 S.Ct. at 2671.45Fitzpatrickholds that the balance betweenPage 1185theEleventhandFourteenthAmendments must be struck in favor of the Fourteenth, when Congress has passed specific legislation pursuant to section 5 to enforce the rights guaranteed by theFourteenthAmendment. In such cases monetary relief recoverable directly from the state treasury will be allowed.

[99] No enforcing legislation is involved in the instant case. The very fact that theFitzpatrickCourt relied on legislation, authorized by the enabling section of theFourteenthAmendment, supports the necessity of such legislation for recovery of money from the state by a person whoseFourteenthAmendment rights have been violated. Authority cited by the Court inFitzpatrickmandates this requirement.See Ex parte Virginia,100 U.S. (10 Otto.) 339, 347,25 L.Ed. 676(1880). Language inFitzpatrickfurther supports this position.
We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of theFourteenthAmendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. SeeEdelman v. Jordan, supra; FordMotor Co. v. Department of Treasury, supra.


[100] ___ U.S. at ___,96 S.Ct. at 2671(footnote omitted). Absent further direction from the Supreme Court, and where no section 5 legislation has been passed, our holding here is in keeping with the historical balance placed upon a coterminous recognition of theEleventhandFourteenthAmendments. Whether the Supreme Court would hold that the Fourteenth overrides theEleventhAmendment, distinguishingEdelmanandFord Motor Co.on the ground that those cases never reached the merits of anyFourteenthAmendment violation, is a determination that must rest with that Court.Fitzpatrickconcerned only the situation in which section 5 legislation was present. The case of the Jagnandans is therefore dissimilar. Accordingly, we must reject plaintiffs' argument.

[101] We point out, however, that our reading of the current status of Supreme Court determinations on theEleventhandFourteenthAmendments might well be affected by the treatment on appeal of a recent three-judge court case.Mauclet v. Nyquist,406 F. Supp. 1233(W.D.N.Y.),appeal sub. nom., Rabinovitch v. Nyquist,45 U.S.L.W. 3007 (U.S. July 13, 1976) (No. 75-1809).Maucletinvolved a suit by resident aliens of New York State challenging an education law which required applicants for state financial aid to be a United States citizen, or to have expressed the intent to become such a citizen. The court held the law to be unconstitutional and mandatorily enjoined defendant state officials from enforcing its provisions. On the basis ofEdelman,the court denied plaintiff Rabinovitch money damages for past assistance moneys withheld by defendants.406 F. Supp. at 1236. One issue being raised byRabinovitchon appeal is whether theFourteenthAmendment, of its own force and absent enforcement legislation, constitutes a limitation to theEleventhAmendment's bar to awarding money judgments against the state in a federal court.46With this issue before the Supreme Court, the question is whether we should postpone consideration untilRabinovitch,has been decided.Page 1186

[102]Rabinovitch,however, will not be decided until the next Supreme Court term, so that delay would be significant. In addition, despite the direct issue concerning theEleventhandFourteenthAmendments inRabinovitch,the Court may not fully discuss that issue, for the Court in past three-judge court appeals has sometimes found it unnecessary to discuss all issues raised.See Edelman v. Jordan, supra,415 U.S. at 670,94 S.Ct. 1347. Moreover, the contentions of the Jagnandans haveEleventhAmendment considerations apart from and beyond those being raised inRabinovitch.These other issues, along with interpretation of the Eleventhvis-a-visFourteenthAmendment, might themselves be reviewed by the Supreme Court in this case in light of the similar issue raised inRabinovitch.Accordingly, we determine it to be more beneficial for all parties concerned to release this decision now.

[103] AFFIRMED.
[104] JOHN R. BROWN, Chief Judge (concurring):
[105] I concur fully in Judge Roney's opinion for the Court and all of the views so ably expressed by Judge Goldberg.

[106] I would add only two things.

[107] First, the term "pro tantorepeal" of the Eleventh by the Fourteenth seems unduly harsh. One constitutional provision can in its application be modified without imputing to the great electorate an undisclosed purpose to "repeal" an earlier provision. Responding to our earnest supplication does not present to the High Court the awesome prospect of repeal.

[108] Second, this is in no sense merely an intriguing question to constitutionalists. It is presented in raw form. On today's holding appellants lose all monetary recovery for money which Mississippi now wrongfully retains. Except by the luck of unpredictable timingRabinovitch(or others) may or not afford any realistic relief. Nor will the issue down, as witness our own experience these past two years as we struggle with the Eleventh's restriction on meaningful recompense for often flagrant violations of the Fourteenth.Gates v. Collier,5 Cir., 1973,489 F.2d 298(panel), 1975,522 F.2d 81(en banc);Newman v. Alabama,5 Cir., 1974,503 F.2d 1320(panel), 1975,522 F.2d 71(en banc).
[109] GOLDBERG, Circuit Judge, with whom BROWN, Chief Judge joins (concurring).
[110] I concur fully in the excellent opinion authored by my brother Roney. I write separately to voice concerns which render concurrence uneasy, and to emphasize considerations which render concurrence necessary.

[111] Thefourteenthamendment exercises a benign and ubiquitous influence on our jurisprudence, and occupies a central position in our society's notions about basic justice. The first section of thefourteenthamendment provides that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


[112] That language affords clear and unequivocal protection of individual rights against actions of a state. It seems fair to assume that the supporters and ratifiers of the amendment intended that an individual have remedies against a state's abrogation offourteenthamendment rights sufficient to give those rights meaning as more than a declaration "of the moral duty of the State."Cf. Ex parte Virginia,100 U.S. (10 Otto) 339, 347,25 L.Ed. 676,679(1880). That the Civil War amendments were meant "to serve as a sword, rather than merely as a shield, for those whom they were designed to protect" was confirmed inEx parte Young,209 U.S. 123,28 S.Ct. 441,52 L.Ed. 714(1908).Edelman v. Jordan,415 U.S. 651,664,94 S.Ct. 1347,1356,39 L.Ed.2d 662,673(1974).

[113] In this case theeleventhamendment is presented as a limit on the full panoply of individual remedies against a state that thePage 1187fourteenthamendment might otherwise provide. Theeleventhamendment reads:
The judicial power of the United States shall not be construed to extend to any suit at 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.1


[114] This amendment was adopted to reverse the Supreme Court's 1793 holding inChisolm v. Georgia,2 U.S. (2 Dal.) 419,1 L.Ed. 440, that a state was liable to suit in federal court by a citizen of another state. Principal concerns in the ratification of theeleventhamendment included the desire to permit states to retire outstanding Revolutionary War debt without the intervention of federal courts, and the wish to avoid litigation seeking restitution of confiscated Loyalist property or restoration of lands that arguably had been improperly condemned by the states.2

[115] That there might be conflict between the vindication of rights protected against the states by thefourteenthamendment and the immunity from suit established for the states by theeleventhamendment is apparent. Situations are easily imaginable (the case at bar is a good illustration) in which the policies embodied in thefourteenthamendment's protection of individual rights against the states must be substantially frustrated if theeleventhamendment is read to provide immunity for the states in regard to any recovery of wrongfully taken money. Appellants in this case have presented arguments based largely on legislative history that the later enactedfourteenthamendment must be seen as apro tantorepeal of theeleventhamendment's strictures on suits against the state. I find these arguments persuasive.

[116] The Supreme Court has clearly recognized that thefourteenthamendment acts as a limit on the eleventh in some contexts.Exparte Young, supra,relying on the fiction discussed by Judge Roney, found that thefourteenthamendment authorized prospective injunctive relief in a suit effectively against the state.Fitzpatrick v. Bitzer,___ U.S. ___,96 S.Ct. 2666, 49 L.Ed.2d ___ (1976) demonstrates that thefourteenthamendment has in at least one other significant way carved an exception into the protection that theeleventhamendment would otherwise provide for state fiscs.Fitzpatrickholds that proper congressional exercise of its legislative powers under section 5 of thefourteenthamendment can serve to abrogate the states'eleventhamendment immunity.3Section 5, then, represents a license for the Congress, in the context of enforcingfourteenthamendment rights of individuals against the states, effectively to repeal theeleventhamendmentpro tanto.

[117] As Judge Roney indicated, no congressional legislation under section 5 is a factor in this case. The district court nevertheless found that thefourteenthamendment rights of these plaintiffs had been violated by the state. That finding is unchallenged on appeal. The question thus arises whether thefourteenthamendment of its own force acts to modify theeleventhamendment in the context of an individual's suit against a state for money taken from him by the state in violation of thefourteenthamendment.4If no self-executingpro tantoPage 1188repeal can be found, then the full vindication offourteenthamendment rights must be contingent upon affirmative congressional legislation under section 5.

[118] Were I writing on a clean slate, I would hold that section 5 of thefourteenthamendment is insufficient to insure the full potency of the rights sought to be protected by section 1 of thefourteenthamendment. I have no doubt that the framers and ratifiers of thefourteenthamendment had great faith in the inclination and ability of the federal Congress to enforce the rights guaranteed against the states by thefourteenthamendment. In view of the subsequent interpretations of thefourteenthamendment, however, it would be ironic indeed were the full vindication of the rights guaranteed against the states to be seen as contingent upon affirmative legislative action of "The State."

[119] Thefourteenthamendment, through the constitutional history of our country, has demonstrated great absorptive powers. That amendment is properly read today as having incorporated, for the protection of the individual against the state, the fundamental rights enumerated in the Bill of Rights. Thus, thefourteenthamendment protects individuals against,inter alia,the same types of arbitrary and unfair acts on the part of state government that originally prompted the Bill of Rights' protection for individuals against the federal government. The Congress cannot realistically be expected to provide fully adequate remedies for everyfourteenthamendment violation, because such violations often reflect the type of overreaching that tempts all governments. Accordingly, thefourteenthamendment's promise of full protection of individual rights might remain unfulfilled in many cases were section 5 the only path around the limitations of the eleventh.

[120] The conflict between the fourteenth and theeleventhamendments should not be understood only as a question of allocation of powers between the state and federal sovereigns. Although it is clearly appropriate for the federal sovereign to muscularize the potency of thefourteenthamendment through selective repeal of theeleventhamendment,see Fitzpatrick v. Bitzer, supra,primacy of individual rights requires more than section 5 for full and lasting effectuation. Absent strong countervailing indications from Supreme Court cases, I would hold that in situations like the one before us, thefourteenthamendment of its own force has acted to repeal theeleventhamendmentprotanto.

[121] As Judge Roney has demonstrated, however, such countervailing indications are not absent. The emanations fromEldemanandFitzpatrickmake it seem very unlikely that a majority of the present Supreme Court would sustain a holding that thefourteenthamendment, of its own force, represents apro tantorepeal of theeleventhamendment.Edelman's discussion ofShapiro v.Thompson5and prior summary affirmances must be seen as weighing heavily against the likelihood of such a holding.6Further,Page 1189the concern inFitzpatrickwith the "threshold fact of congressional authorization," ___ U.S. at ___,96 S.Ct. at 2670, 49 L.Ed.2d at ___,quoting Edelman v. Jordan, supra,lends strong implicit support to the view that without that threshold fact, the strictures of theeleventhamendment are likely to be interpreted as absolute, underEdelman.7

[122] When the Supreme Court's recent opinions have so firmly, if implicitly, indicated how a majority of the Justices would answer this important constitutional question, a court at this level is not free simply to note that the question is formally open and then to decide it contrary to those indications on the grounds of policy and the legislative history of thefourteenthamendment. Obeisant and submissive, then, as I must be to these emanations from the Supreme Court, I must join with Judge Roney in holding that, absent Congressional authorization, the current state of the jurisprudence precludes retroactive recovery of damages from the state treasury by an individual, even when that individual has proven that the state, to his damage, has violated hisfourteenthamendment rights.

[123] Having said all this, I also wish to emphasize that it is open for the Supreme Court to reverse our holding today without overruling any of its prior cases. As Mr. Justice Marshall noted, in dissent, inEdelman:
. . . [T]here has been no determination in this case that state action is unconstitutional under theFourteenthAmendment. Thus, the Court necessarily does not decide whether the States'EleventhAmendment sovereign immunity may have been limited by the later enactment of theFourteenthAmendment to the extent that such a limitation is necessary to effectuate the purposes of that Amendment . . .


[124]415 U.S. at 694n. 2,94 S.Ct. at 1371n. 2,39 L.Ed.2d at 690n. 2. Indeed, the Court conceivably could find in the instant case, in which the "equitable restitution" argument seems strong, a narrow and most compelling situation in which the accommodation between the policies of thefourteenthamendment and theeleventhamendment must lie on the side of full potency of thefourteenthamendment.

[125] Again, however, I must agree with Judge Roney that by far the strongest indications are that the ultimate accommodation reached by the present Supreme Court will not include any exceptions for situations in which thefourteenthamendment acts as a self-executingpro tantorepeal of theeleventhamendment's proscription on retroactive money recoveries from the states. Until the Supreme Court advises us otherwise, we must hold that the full remedies which might be implied under thefourteenthamendment require activation by Congress through section 5 legislation, or by a state herself through express waiver.

[126] This most important issue may be frontally addressed and authoritatively resolved inRabinovitchor in some other case in the near future. The question certainly merits direct and definitive Supreme Court attention. Through this concurring opinion, I sound a note of supplication that the Court might consider the wisdom of rejecting the implications ofEdelmanthat we havePage 1190found controlling, and of holding that theeleventhamendment has been modified to the extent necessary fully to effectuate the sweeping mandate of thefourteenthamendment.
  1. At oral argument counsel for plaintiffs informed the Court that subsequent to the filing of this appeal the Jagnandans have been naturalized as United States citizens. It is interesting to note that the guest speaker at the naturalization ceremony was Dr. William L. Giles, President of Mississippi State University, one of the defendants in this case. ↩
  2. Miss. Code Ann. §37-103-23(1972), formerly designated as Miss. Code § 6800-11(11) (1942). At all pertinent times, the general fees and tuition charges were separately established for resident and nonresident students, a higher rate ($300 more per semester) being required of nonresidents. ↩
  3. 28 U.S.C.A. § 1253provides:
    Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.
    ↩
  4. See Ex parte Metropolitan Water Co.,220 U.S. 539,31 S.Ct. 600,55 L.Ed. 575(1911). ↩
  5. Accord, Gonzalez v. Automatic Employees Credit Union,419 U.S. 90,98,95 S.Ct. 289,42 L.Ed.2d 249(1974). ↩
  6. Cf. Butler v. Dexter,___ U.S. ___,96 S.Ct. 1527,47 L.Ed.2d 774(1976) (per curiam). ↩
  7. See generally Note, Edelman v. Jordan: The Case of the Vanishing Retroactive Benefit and the Reappearing Defense of Sovereign Immunity, 12 Hous.L.Rev. 891 (1975). ↩
  8. See Principality of Monaco v. Mississippi,292 U.S. 313,321-325,54 S.Ct. 745,78 L.Ed. 1282(1934);Hans v. Louisiana,134 U.S. 1,12-15,10 S.Ct. 504,33 L.Ed. 842(1890). ↩
  9. SeeC. Jacobs,TheEleventhAmendment and SovereignImmunity,64-75 (1972). ↩
  10. Employees v. Department of Pub. Health Welfare of Mo.,411 U.S. 279,280,93 S.Ct. 1614,36 L.Ed.2d 251(1973);Pardenv. Terminal Ry.,377 U.S. 184,186,84 S.Ct. 1207,12 L.Ed.2d 233(1964);Hans v. Louisiana, supra,134 U.S. at 14-15,10 S.Ct. 504. ↩
  11. Principality of Monaco v. Mississippi, supra,292 U.S. at 330-332,54 S.Ct. 745. ↩
  12. United States v. Mississippi,380 U.S. 128,140,85 S.Ct. 808,13 L.Ed.2d 717(1965). ↩
  13. See Ford Motor Co. v. Department of Treasury,323 U.S. 459,467,65 S.Ct. 347,89 L.Ed. 389(1945); 13 C. Wright, A. Miller E. Cooper,Federal Practice and Procedure§ 3254, at 79-80 (1975). ↩
  14. See Poindexter v. Greenhow,114 U.S. 270,288-290,5 S.Ct. 903,29 L.Ed. 185(1885) (Virginia Coupon Cases).Cf.Scheuer v. Rhodes,416 U.S. 232,94 S.Ct. 1683,40 L.Ed.2d 90(1974);Sapp v. Renfroe,511 F.2d 172(5th Cir. 1975). ↩
  15. Cf. Wood v. Strickland,420 U.S. 308,95 S.Ct. 992,43 L.Ed.2d 214(1975). ↩
  16. Lincoln County v. Luning,133 U.S. 529,10 S.Ct. 363,33 L.Ed. 766(1890);Osborn v. Bank of the United States,22 U.S. (9 Wheat.) 738,6 L.Ed. 204(1824). ↩
  17. Kennecott Copper Corp. v. State Tax Comm'n,327 U.S. 573,576-577,66 S.Ct. 745,90 L.Ed. 862(1946);Ford Motor Co.v. Department of Treasury, supra,323 U.S. at 464,65 S.Ct. 347;Great Northern Life Ins. Co. v. Read,322 U.S. 47,50-51,64 S.Ct. 873,88 L.Ed. 1121(1944).See Worcester County Trust Co.v. Riley,302 U.S. 292,296-298,58 S.Ct. 185,82 L.Ed. 268(1937);Ex parte The State of New York,256 U.S. 490,500-503,41 S.Ct. 588,65 L.Ed. 1057(1921). ↩
  18. Aerojet-General Corp. v. Askew,453 F.2d 819,828-829(5th Cir. 1971),cert. denied,409 U.S. 892,93 S.Ct. 110,34 L.Ed.2d 149(1972).See Ex parte The State of New York, supra,256 U.S. at 500,41 S.Ct. at 590("[T]he question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record."). ↩
  19. See Fitzpatrick v. Bitzer,519 F.2d 559(2d Cir.),cert. granted,___ U.S. ___,96 S.Ct. 2666, 49 L.Ed.2d ___ (1975). ↩
  20. See Adams v. Rankin County Bd. of Educ.,524 F.2d 928,929(5th Cir. 1975),cert. filed,44 U.S.L.W. 3686 (U.S. June 1, 1976) (No. 75-1710) (county school system in Mississippi). ↩
  21. See Edelman v. Jordan, supra,415 U.S. at 667n. 12,94 S.Ct. 1347;Lincoln County v. Luning, supra,133 U.S. at 529,10 S.Ct. 363(1890);Young v. Hutchins,383 F. Supp. 1167,1179-1180n. 19 (M.D.Fla. 1974). ↩
  22. Accord, Hamilton Mfg. Co. v. Trustees of the StateColleges in Colo.,356 F.2d 599(10th Cir. 1966), for a similar result. ↩
  23. SeeMiss. Code Ann. §37-113-3(1972). ↩
  24. SeeMiss. Code Ann. § 6718et seq.(1942). ↩
  25. See generallyNote,Attorneys' Fees and theEleventhAmendment,88 Harv.L.Rev. 1875, 1877-1882 (1975). ↩
  26. Cf. Schiff v. Williams,519 F.2d 257,262(5th Cir. 1975) (fees held in separate fund said to be private moneys and not property of the State of Florida). ↩
  27. Cf.Note,Attorneys' Fees and theEleventhAmendment,88 Harv.L.Rev. 1875, 1881-1882 (1975). ↩
  28. Edelman v. Jordan, supra,415 U.S. at 673,94 S.Ct. 1347;Petty v. Tennessee-Missouri Bridge Comm'n,359 U.S. 275,276,79 S.Ct. 785,3 L.Ed.2d 804(1959). ↩
  29. Murray v. Wilson Distilling Co.,213 U.S. 151,172,29 S.Ct. 458,53 L.Ed. 742(1909);Chandler v. Dix,194 U.S. 590,591-592,24 S.Ct. 766,48 L.Ed. 1129(1904);Scott v. Board ofSupervisors of L.S.U.,336 F.2d 557,558(5th Cir. 1964). ↩
  30. Accord, Hamilton Mfg. Co. v. Trustees of the StateColleges in Colo., supra,356 F.2d at 601-602, wherein the Tenth Circuit reached a similar result based on a functionally equivalent Colorado statute. ↩
  31. SeeMiss. Code Ann. §§37-101-3,37-101-7,37-101-15(1972). ↩
  32. SeeMiss. Code Ann. §§37-101-45(1972) (personal and corporate lessees leasing land for construction of housing and dormitory facilities by private financing may enforce or protect their rights by suit at law or in equity); 37-101-63 (1972) (nonprofit corporations for purpose of acquiring or constructing facilities for higher education, as established by Board resolution, can sue and be sued and defend suits against it). ↩
  33. SeeMiss. Code Ann. §37-113-1et seq.(1972). ↩
  34. See41 U.S.L.W. 3263 (U.S. Nov. 7, 1972). ↩
  35. See Sterrett v. Mothers' Children's Rights Org.,409 U.S. 809,93 S.Ct. 68,34 L.Ed.2d 70(1972);State Dept. ofHealth Rehabilitative Services of Fla. v. Zarate,407 U.S. 918,92 S.Ct. 2462,32 L.Ed.2d 803(1972), aff'g,347 F. Supp. 1004(S.D.Fla. 1971);Gaddis v. Wyman,304 F. Supp. 717(N.D.N.Y. 1969),aff'd per curiam sub nom., Wyman v. Bowens,397 U.S. 49,90 S.Ct. 813,25 L.Ed.2d 38(1970). ↩
  36. SeeC. Wright,Handbook of the Law of Federal Courts§ 48, at 186 (2d ed. 1970). ↩
  37. Samuel v. University of Pittsburgh,375 F. Supp. 1119(W.D.Pa. 1974). The court explored the nature of these universities for purposes of determining their relation to the state under42 U.S.C.A. § 1983. All three universities were found to be "persons" under § 1983.
    Close and conscientious scrutiny of the above figures [setting out the financial picture of each university], and of the other indicia of state control or lack thereof set out above, make it clear that Pitt and Temple are actually and statutorily possessed of sufficient independence from the control of the Commonwealth to constitute persons within the meaning of Section 1983.
    * * * * * *
    Under this state of facts, this Court finds that the Commonwealth does not exercise such actual or potential control over the operations of Penn State as to render that institution a state instrumentality as that term is meant in a Section 1983 context.
    375 F. Supp. at 1127. ↩
  38. Only if the defendant universities were deemed to be state instrumentalities could they be held to enjoy sovereign immunity. The status of each of the three defendant universities has been discussed and described in some detail in the preceding section hereofand none of them have been found to be stateinstrumentalities. Each of the defendant universitieshas been found to be an essentially privateinstitution, insofar as the term "private" connotesan absence of state control over its operation.Since the three universities function autonomously from the state and have been found to be persons under Section 1983, the defense of sovereign immunity is unavailable to them.
    375 F. Supp. at 1128. (emphasis supplied). ↩
  39. Defendants inSamuelalso included state officials and university officials. The state officials argued that theEleventhAmendment immunity prevented a suit against them for injunctive and declaratory relief. This argument was rejected on the basis ofEx parte Young,209 U.S. 123,28 S.Ct. 441,52 L.Ed. 714(1908).375 F. Supp. at 1129. The court held that defendant state officials were not liable for restitutionary payments.Id.at 1135. The court, moreover, rejected the notion that once state officials were enjoined in federal court despite theEleventhAmendment may also be liable for restitution. The court citedEdelman v. Jordan,415 U.S. 651,94 S.Ct. 1347,39 L.Ed.2d 662(1974) as to the same effect.375 F. Supp. at 1135n. 17.

    As to defendant university officials the court stated that they were not state agents since the schools that employed them were not state instrumentalities. The court also noted that these individuals "are not personally liable themselves for restitution . . .."375 F. Supp. at 1135n. 18. ↩
  40. TheEleventhAmendment 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. ↩
  41. TheFourteenthAmendment provides:

    Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ↩
  42. Justice Marshall stated in his dissent inEdelman,

    [i]t should be noted that there has been no determination in this case that state action is unconstitutional under theFourteenthAmendment. Thus, the Court necessarily does not decide whether the States'EleventhAmendment sovereign immunity may have been limited by the later enactment of theFourteenthAmendment to the extent that such a limitation is necessary to effectuate the purposes of that Amendment, an argument advanced by anamicusin this case. In view of my conclusion that any sovereign immunity which may exist has been waived, I also need not reach this issue.415 U.S. at 694n. 2,94 S.Ct. at 1371. ↩
  43. Seenote 42supra. ↩
  44. See Edelman v. Jordan, supra,415 U.S. at 670-671and n. 13,94 S.Ct. 1347.See alsonote 35supra. ↩
  45. In cases arising prior toFitzpatrick,at least two other Circuits addressed, not for purposes of a court holding, the Fourteenthvis-a-visEleventhAmendment argument. InSkehan v. Board of Trustees of Bloomsburg State College,501 F.2d 31(3d Cir. 1974), the court confronted,inter alia,the problem of attorney's fees in a teacher discharge case. Within the case were problems of bothFirstandFourteenthAmendment dimensions. In footnote 7, the court recognized Justice Marshall's statement ofEdelmannot deciding theFourteenthAmendment question thus leaving open the effect that Amendment had on the Eleventh. The court, however, thoughtEdelmandisposed of the issue. "We thinkEdelmanmust be read as closing the door on any money award from a state treasury in any category."501 F.2d at 42-43n. 7. One category to which the court referred was a money claim against the state based upon theFourteenthAmendment, which binds the states directly, and upon section 5 of the Fourteenth, which gives Congress the power to create remedies. Part of the remand in that case was for a determination of the College's status to the state.Skehan,however, was vacated and remanded by the Supreme Court for further consideration in light ofAlyeska Pipeline Service Co.v. Wilderness Society,421 U.S. 240,95 S.Ct. 1612,44 L.Ed.2d 141(1975), andWood v. Strickland,420 U.S. 308,95 S.Ct. 992,43 L.Ed.2d 214(1975).Skehan v. Board of Trustees of BloomsburgState College,421 U.S. 983,95 S.Ct. 1986,44 L.Ed.2d 474(1975).Jordon v. Gilligan,500 F.2d 701(6th Cir. 1974),cert. denied,421 U.S. 991,95 S.Ct. 1996,44 L.Ed.2d 481(1975), concerned a reapportionment challenge on bothFourteenthandFifteenthAmendment grounds. The court inJordonquoted in the text of the opinion theSkehanfootnote 7, in full, and concluded thatEdelmanprecluded an award of attorney's fees against the state.500 F.2d at 709. By the fact thatJordoninvolvedFourteenthAmendment claims, and its recognition of the potential conflict between theEleventhandFourteenthAmendments, it is also apparent thatEdelmanwas read as barring any money award from the state treasury. ↩
  46. The specific issue being raised, as reported, is as follows:
    DoesFourteenthAmendment, of its own force, constitute limitation on sovereign immunity bar ofEleventhAmendment so that, even absent specific statutory declaration authorizing money judgment against state in suit brought to enforceFourteenthAmendment rights, federal court may enter judgment awarding money damages against state where, in its discretion, such relief is necessary and appropriate to fully vindicate constitutional rights and to deter future violations of constitutional proscriptions?


    45 U.S.L.W. 3007 (U.S. July 13, 1976). ↩
  47. At the time this suit was filed, the Jagnandans were citizens of Guyana, and thus theeleventhamendment was applicable to this suit in its literal terms.Cf. Fitzpatrick v.Bitzer,___ U.S. ___, ___,96 S.Ct. 2666,2672, 49 L.Ed.2d ___, ___ (Brennan, J., concurring in the judgment). ↩
  48. SeeC. Jacobs, TheEleventhAmendment and Sovereign Immunity 64-67 (1972); Note, "The Supreme Court, 1973 Term," 88 Harv.L.Rev. 43, 243, 246-47 (1974). ↩
  49. Section 5 provides: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." ↩
  50. As Judge Roney has ably demonstrated, once it is determined that the monetary relief sought here is in effect sought to be recovered from the state,cf. Mississippi Gay Alliance v.Goudelock,536 F.2d 1073,1084-85(1976) (Goldberg, J., dissenting), theeleventhamendment strictures reaffirmed inEdelmanare not avoidable on any ground short ofpro tantorepeal of theeleventhamendment by thefourteenthamendment. As to waiver, there has been no "clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation,"Great Northern Insurance Co. v.Read, supra,322 U.S. at 54,64 S.Ct. at 877,quoted withapproval in Edelman v. Jordan, supra,415 U.S. at 673,94 S.Ct. 1347. The "equitable restitution" argument is foreclosed byFordMotor Company v. Department of Treasury,323 U.S. 459,65 S.Ct. 347,89 L.Ed. 389(1945), as interpreted inEdelmanand cited inFitzpatrick. ↩
  51. 394 U.S. 618,89 S.Ct. 1322,22 L.Ed.2d 600(1969). ↩
  52. The concerns aboutEdelmanexpressed by Mr. Justice Stevens, concurring in the judgment inFitzpatrick,seem apposite to my dilemma here:
    Although I have great difficulty with a construction of theEleventhAmendment which acknowledges the federal court's jurisdiction of a case and merely restricts the kind of relief the federal court may grant, I must recognize that it has been so construed inEdelman v. Jordan,. . . and that the language of that opinion would seem to cover this case.


    ___ U.S. at ___,96 S.Ct. at 2673, 49 L.Ed.2d at ___ (footnote and citations omitted). Once I have acknowledged, with Judge Roney, that the language ofEdelman"would seem to cover this case," I am not so free as Justice Stevens, to argue that the language ofEdelmanshould be read only in light of its narrow holding. ↩
  53. The following language fromFitzpatrick,also quoted by Judge Roney, suggests that the case was decided on the assumption that without section 5 legislation a state'seleventhamendment immunity underEdelmanis impenetrable:
    . . . We think that Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of theFourteenthAmendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.See Edelman v. Jordan, supra; FordMotor Co. v. Department of Treasury, supra.


    ___ U.S. at ___,96 S.Ct. at 2671, 49 L.Ed.2d at ___.

    A Supreme Court decision that thefourteenthamendment acted as a self-executingpro tantorepeal of the eleventh would not necessarily render theFitzpatricksection 5 holding superfluous, but would certainly diminish the importance of that holding.Fitzpatrickwould remain significant in situations when the violation of Congressional Section 5 legislation did not necessarily constitute a violation of thefourteenthamendment itself.Cf. Katzenbach v. Morgan,384 U.S. 641,86 S.Ct. 1717,16 L.Ed.2d 828(1966). ↩