This action was originally brought pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, seeking declaratory relief holding certain Connecticut statutes unconstitutional and ordering moneys taken from the plaintiff-appellee, Robert McAuliffe, to be returned to him. McAuliffe was hospitalized in Connecticut mental health facilities after having been convicted of the crime of breaking and entering. Pursuant to two Connecticut statutes, the defendant-appellant, Connecticut's Commissioner of Finance and Control, obtained two sets of funds belonging to McAuliffe and applied the money toward the costs of McAuliffe's treatment. The first set of these funds consisted of Social Security benefits due McAuliffe, which defendant obtained directly from HEW after having been duly named McAuliffe's "representative payee" under 42 U.S.C. § 405(j). The Commissioner's authority to appropriate such payments for appellee's hospital expenses was derived from Conn.Gen.Stat. § 17-318, quoted in the margin.1 The second sum was deposited by McAuliffe in a patient's account at one of the hospitals at which he was treated; this defendant obtained in his statutory role as McAuliffe's conservator.2

In an earlier opinion reported at 377 F. Supp. 896 (D.Conn.1974) Judge Newman had rendered a declaratory judgment that the Connecticut statutes which authorized defendant's actions were unconstitutional. The District Court in that opinion expressly reserved the question whether the Eleventh Amendment barred a claim for restitution as an incident to the present federal action if Connecticut should refuse to return plaintiff's property. 377 F. Supp. at 906 n.13. A supplementary decision ordering the Commissioner to return the money was rendered in response to Connecticut's continued refusal to do so in spite of the declaratory judgment of unconstitutionality. Judge Newman held that the Commissioner's acts violated fiduciary obligations imposed on him as a matter of Connecticut law.3 386 F. Supp. 1245 (D.Conn.1975). On this appeal, the issue is whether there is federal jurisdiction for the order in light of the Eleventh Amendment.4

The Eleventh Amendment applies even when a state official is the only formal defendant and the state itself is not a named defendant. See Fitzpatrick v. Bitzer, 519 F.2d 559, 554-565 (2 Cir. 1975). The state in such cases can, nevertheless, be the real party in interest because at issue is a "liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1356, 39 L. Ed. 2d 662 (1974) (funds wrongfully withheld). "These funds will obviously not be paid out of the pocket of petitioner (Carlson)". Id. at 664, 94 S.Ct. at 1356.

We reject McAuliffe's contention that this case is not within the Eleventh Amendment because the money was taken from him involuntarily. Equitable restitution is, in practical effect, indistinguishable from an award of damages against the state. Edelman, supra,415 U.S. at 668-69, 94 S. Ct. at 1358, 39 L.Ed.2d at 676. Even in those cases where the claim is that a state has illegally taken or used plaintiff's property, not merely wrongfully withheld it, the Eleventh Amendment applies with full force; and neither the means of obtaining such funds nor the formalities of the manner in which they are held limits the scope of the Eleventh Amendment rejection of federal judicial power. Ford Motor Company v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945) (taxes unconstitutionally collected); Knight v. State of New York, 443 F.2d 415 (2 Cir. 1971) (real property unconstitutionally taken); Fitzpatrick v. Bitzer, supra (money held in separate fund).

The only exception in this area allows federal courts to require expenditure of state funds in implementing prospective relief, since such relief is said to have only an "ancillary" impact on the state treasury. See Edelman, supra, 415 U.S. at 668, 94 S. Ct. at 1358, 39 L.Ed.2d at 675; Jordan v. Fusari, 496 F.2d 646, 651 (2 Cir. 1974). In this case no injunctive relief was sought or granted, and the payment ordered is not ancillary to prospective relief. The order requires the state to make a payment in restitution of a past wrong from the state treasury. Whether the payment is called damages, retroactive payment, or restitution, the effect upon the fisc is the same. We believe that Ford Motor, as reaffirmed in Edelman, 415 U.S. at 668-69, 94 S. Ct. at 1358, 39 L.Ed.2d at 676, makes this clear, and the District Court so held.

Appellant's essential ground of appeal is that the District Court erred, however, in its holding that Connecticut has waived its Eleventh Amendment immunity from federal suit. We agree. The District Court held that both Connecticut statutes at issue contained implied waivers of immunity concerning disputes arising out of the Commissioner's fiduciary activities toward prisoner-patients. That may well be true, but it does not determine the question of federal jurisdiction. A state may waive Eleventh Amendment immunity, but "a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found." Great Northern Ins. Co. v. Read, 322 U.S. 47, 54, 64 S. Ct. 873, 877, 88 L. Ed. 1121 (1945). See Rothstein v. Wyman, 467 F.2d 226, 238-39 (2 Cir. 1972), cert. denied, 411 U.S. 921, 93 S. Ct. 1552, 36 L. Ed. 2d 315 (1973). No such intention can be found here.

The fact that the funds taken from the appellee were funds to be paid to him by the Social Security Administration does not affect the Eleventh Amendment issue. Participation in the Social Security Act falls short of a "constructive" waiver of a participating state's Eleventh Amendment immunity. Edelman, supra, 415 U.S. at 673, 94 S. Ct. at 1361, 39 L.Ed.2d at 679. In any event, the assumption by the Commissioner of fiduciary duties with attendant consequences was based upon Connecticut's own statutes. McAuliffe did not allege that federal statutes required these functions to be performed. Compare Johnson v. Harder, 383 F. Supp. 174 (D.Conn.1974), aff'd per curiam, 512 F.2d 1188 (2 Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3007 (U.S.June 2, 1975) (No. 74-1552). The extent of the fiduciary obligations at issue is thus a matter of state law.

In these circumstances, applying the test of the Supreme Court that such waiver may be found "only where stated 'by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction'," Edelman, supra, 415 U.S. at 673, 94 S. Ct. at 1361 (citation omitted), we hold that Connecticut has not waived its immunity to federal suit.

We do not necessarily disagree with the District Court that the assumption of fiduciary obligations under the Connecticut statutes suggests the availability of judicial review. That would ordinarily mean state court review.5 We think the District Court erred, however, when it went further. We have said recently (after the decision below) that "(u)nless a 'clear indication' to submit to suit in federal as well as state court can be found, a federal court cannot read the state's consent to be sued in its own courts as embracing federal jurisdiction." Fitzpatrick v. Bitzer, supra, at 566. Considerations of comity underlying the Eleventh Amendment support the conclusion, moreover, that the state court is the more appropriate forum for judicial review of the Commissioner's actions.

If federal rights should become involved in a state court action for restitution, the state courts will give them full effect. Employees v. Missouri Public Health Dept., 411 U.S. 279, 298, 93 S. Ct. 1614, 36 L. Ed. 2d 251 (1973) (concurring opinion of Marshall, J.). We express no opinion, however, on Judge Newman's treatment of the substantive issues involved.

The supplemental order is reversed without prejudice to further proceedings in the state court.