No. 95-851 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 UNIVERSITY OF HOUSTON, ET AL., PETITIONERS v. DENISE CHAVEZ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General LEONARD SCHAITMAN MICHAEL E. ROBINSON Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether Congress has authority under the Consti- tution to authorize a suit against a State for viola- tions of the Copyright and Lanham Acts. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . Conclusion . . . . 6 TABLE OF AUTHORITIES Cases: Page Fitzpatrick v. Blitzer, 427 U.S. 445(1976) . . . . 5 Parden v. Temninal Ry. of Alabama State Docks Dep't, 377 U.S. 184 (1964 ) . . . . 3, 5 Pennsylvania v. Union Gas Co., 491 U.S. 1(1989) . . . . 3, 4 Seminole Tribe of Florida v. Florida, No. 94-12 (Mar. 27, 1996) . . . . 4, 5 Constitution and statutes: U.S. Const.: Art. I . . . . 3 8, Cl. 3 (Indian Commerce Clause) . . . . 4 8, Cl. 8 (Copyright Clause) . . . . 3 Amend. XI . . . . 3 Amend. XIV, 5 . . . . 4, 5 Copyright Act, 17 U.S.C. 101 et seq . . . . 2 17 U.S. C. 501 . . . . 3 17 U.S. C. 511 . . . . 3 Lanham Act, 15 U.S.C. 1051 et seq . . . . 2 15 U.S.C. 1122 . . . . 3 (III) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-851 UNIVERSITY OF HOUSTON, ET AL., PETITIONERS v. DENISE CHAVEZ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT . BRIEF FOR THE UNITED STATES OPINIONS BELOW The opinion of the court of appeals (Pet. App. Al- A20) is reported at 59 F.3d 539. The opinion of the district court (Pet. App. A22) is unreported. JURISDICTION The judgment of the court of appeals was entered on August 1, 1995. A petition for rehearing was denied on August 30, 1995. Pet. App. A23-A24. The petition for a writ of certiorari was filed on November 27, 1995. The jurisdiction of this Court is invoked under 28_ U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Respondent Denise Chavez, a nationally known author, entered into an agreement for the publication of her work with the University of Houston, which is funded and operated by the State of Texas. The University agreed to do a first printing of a collection of short stories. written by respondent entitled The Last of the Menu Girls. A copyright of Menu Girls was registered. in respondent's name as author and owner, and the University published the book. The parties twice agreed on contracts for additional print- ings of Menu Girls. Each contract specified a par- ticular number of copies to be printed. Respondent then refused to permit petitioner to print any more copies of Menu Girls. The University, however, asserted that it had a contractual right to print addi- tional copies and that it intended to do so. Pet. App. A2-A3. The University also published a collection of plays called Shattering the Myth. The University's catalog stated that respondent had chosen the plays to be included in the collection. Although the statement in the catalog was accurate, the University had not received respondent's permission to identify her as the selector of the plays. Pet. App. A3. 2. In 1993, respondent filed suit in federal district court against the University alleging that its pub- lication of Menu Girls without her permission violated the Copyright Act, 17 U.S.C. 101 et seq., and that its identification of her as the selector of the plays in Shattering the Myth without her permission violated the Lanham Act, 15 U.S.G. 1051 et seq. Pet. App. A3. Respondent also sued Nicholas Kanellos, who had acted on behalf of the University at all ---------------------------------------- Page Break ---------------------------------------- 3 relevant times. Id. at A2-A3. Kanellos was sued in both his individual and official capacities. Id. at A3. The University and Kanellos moved to dismiss. The University claimed immunity under the Elev- enth Amendment for both itself and Kanellos in his official capacity, Kanellos asserted qualified immu- nity. The district court denied both motions, and the University and Kanellos appealed. Pet. App. A4. 3. On appeal, the University argued that Congress lacked power to abrogate the State's immunity from suit and that the Copyright and Lanham Acts were therefore unconstitutional to the extent they author- ized suit against the State. See 17 U.S.C. 501, 511 (authorizing suit against a State for violations of the Copyright Act); 15 U.S.C. 1122 (authorizing suit against a State for violations of the Lanham Act). The United States intervened to defend those Acts. The court of appeals affirmed in part and reversed in part. Pet. App. Al-MO. The court held that Con- gress had acted constitutionally in subjecting the States to suit under the Copyright and Lanham Acts. The court concluded that, under Parden v. Terminal Ry. of Alabama State Docks Dep't, 377 U.S. 184 (1964), and Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), Congress may use its Article I powers "to compel states to waive sovereign immunity from private suits * * * when the states opt to conduct business for profit in areas where Congress conditions participation upon waiver of immunity." Pet. App. A16. Applying that analysis, the court concluded that Congress had validly exercised its power under the Copyright Clause of the Con- stitution, Article I, 8, Cl. 8, to subject States to suit under the Copyright and Lanham Acts. Pet, App. A16-A18. The court of appeals did not address the ---------------------------------------- Page Break ---------------------------------------- 4 contention that subjecting the States to suit under the Copyright and Lanham Acts also reflected valid exercises of Congress's power under Section 5 Of the Fourteenth Amendment. Id. at A6 n.4. The court held that Kanellos was entitled to qual- ified immunity from respondent's claim under the Copyright Act because he reasonably could have be- lieved that the University's contract with respondent authorized the printing of additional copies of respon- dent's book. Pet. App. A19. It held that Kanellos was entitled to qualified immunity from respondent's claim under the Lanham Act because respondent had failed to allege-facts that would enable her to recover under that Act. Ibid. ARGUMENT Since the court of appeals issued its decision in this case, this Court issued its decision in Seminole Tribe of Florida v. Florida, No. 94-12 (Mar. 27, 1996). In Seminole, the Court held that Congress lacks auth- ority under the Indian Commerce Clause to abrogate a State's immunity from suit. Slip op. 1. The Court concluded that, "[e]ven when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private par- ties against unconsenting States." Id. at 27. The Court acknowledged that Union Gas had held that Congress has power to abrogate a State's immunity from suit. Id. at 14. The Court concluded, however, that "the result in Union Gas and the plurality's rationale depart from [the] established understanding of the Eleventh Amendment and undermine the ac- cepted function of Article HI." Id. at 21. The Court therefore overruled Union Gas. Ibid. ---------------------------------------- Page Break ---------------------------------------- 5 The Court in Seminole did not disturb the decision in Parden, which it characterized as standing for "the unremarkable, and completely unrelated, propo- sition that the States may waive their sovereign immunity." Slip op. 20. The Court also did not call into question the holding in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that Congress has power under Sec- tion 5 of the Fourteenth Amendment to subject States to suit. Slip op. 20. In a footnote, the Court briefly discussed the present case and the implications of its decision on suits to enforce the copyright laws. Id. at 27 n.16. Seminole alters the constitutional analysis applic- able in determining whether Congress has authority to subject States to suit. The court of appeals' de- cision in this case should therefore be vacated and the case remanded for further consideration by the court of appeals in light of Seminole.1 ___________________(footnotes) 1 Respondent has filed a conditional cross-petition, No. 95- 1075, challenging the court of appeals' holding that Kanellos is entitled to qualified immunity from suit under the Copyright and Lanham Acts. The United States did not address that contention below. We therefore take no position on that issue here. ---------------------------------------- Page Break ---------------------------------------- 6 CONCLUSION The University's petition for a writ of certiorari should be granted, the judgment below should be va- cated, and the case should be remanded for further consideration in light of Seminole. Respectfully submitted. DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General LEONARD SCHAITMAN MICHAEL E. ROBINSON Attorneys APRIL 1996