527 U.S. 666 (1999), 98-149, College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd.

Docket Nº:Case No. 98-149
Citation:527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605, 67 U.S.L.W. 3682, 67 U.S.L.W. 4590
Case Date:June 23, 1999
Court:United States Supreme Court

Page 666

527 U.S. 666 (1999)

119 S.Ct. 2219, 144 L.Ed.2d 605, 67 U.S.L.W. 3682, 67 U.S.L.W. 4590




Case No. 98-149

United States Supreme Court

June 23, 1999

Argued April 20, 1999



An individual may sue a State where Congress has authorized such a suit in the exercise of its power to enforce the Fourteenth Amendment, Fitzpatrick v. Bitzer, 427 U.S. 445, or where a State has waived its sovereign immunity by consenting to suit, Clark v. Barnard, 108 U.S. 436, 447-448. The Trademark Remedy Clarification Act (TRCA) subjects States to suits brought under § 43(a) of the Trademark Act of 1946 (Lanham Act) for false and misleading advertising. Petitioner markets and sells certificates of deposit designed to finance college costs. When respondent Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid), a Florida state entity, began its own tuition prepayment program, petitioner filed suit, alleging that Florida Prepaid violated § 43 by misrepresenting its own program. In granting Florida Prepaid's motion to dismiss on sovereign immunity grounds, the District Court rejected arguments made by petitioner and by the United States, which had intervened, that, under the constructive waiver doctrine of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184, Florida Prepaid waived its immunity by engaging in interstate marketing and administration of its program after the TRCA made clear that such activity would subject it to suit; and that Congress's abrogation of sovereign immunity in the TRCA was effective, since it was enacted to enforce the Fourteenth Amendment's Due Process Clause. The Third Circuit affirmed.


The federal courts have no jurisdiction to entertain this suit because Florida's sovereign immunity was neither validly abrogated by the TRCA nor voluntarily waived. Pp. 672-691.

(a) The TRCA did not abrogate Florida's sovereign immunity. Congress may legislate under § 5 of the Fourteenth Amendment to enforce the Amendment's other provisions, but the object of such legislation must be the remediation or prevention of constitutional violations. Petitioner's argument that Congress enacted the TRCA to remedy and prevent state deprivations of two property interests without due process is rejected, for neither a right to be free from a business competitor's false advertising about its own product nor a right to be secure in one's

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business interests qualifies as a protected property right. As to the first: The hallmark of a constitutionally protected property interest is the right to exclude others. The Lanham Act's false-advertising provisions bear no relationship to any right to exclude; and Florida Prepaid's alleged misrepresentation concerning its own products intruded upon no interest over which petitioner had exclusive dominion. As to the second asserted property interest: While a business's assets are property, and any state taking of those assets is a "deprivation," business in the sense of the activity of doing business or of making a profit is not property at all—and it is only that which is impinged upon by a competitor's false advertising about its own product. Pp. 672-675.

(b) Florida's sovereign immunity was not voluntarily waived by its activities in interstate commerce. Generally, waiver occurs when a State voluntarily invokes, or clearly declares that it intends to submit itself to, the jurisdiction of the federal courts. Petitioner and the United States maintain that an implied or constructive waiver is possible when Congress provides unambiguously that a State will be subject to private suit if it engages in certain federally regulated conduct and the State voluntarily elects to engage in that conduct. They rely on this Court's decision in Parden, supra, which held that the Federal Employers' Liability Act authorized private suit against States operating railroads by virtue of its general provision permitting suit against common carriers engaged in interstate commerce. This Court has never applied Parden 's holding to another statute, and in fact has narrowed the case in every subsequent opinion in which it has been under consideration. Even when supplemented by a requirement of unambiguous statement of congressional intent to subject the States to suit, Parden cannot be squared with this Court's cases requiring that a State's express waiver of sovereign immunity be unequivocal, see, e. g., Great Northern Life Ins. Co. v. Read, 322 U.S. 47, and is also inconsistent with the Court's recent decision in Seminole Tribe of Fla. v. Florida, 517 U.S. 44. Nor is it relevant that the asserted basis for constructive waiver is conduct by the State that is undertaken for profit, that is traditionally performed by private entities, and that otherwise resembles the behavior of market participants. Whatever may remain of this Court's decision in Parden is expressly overruled. Pp. 675-687.

131 F.3d 353, affirmed.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 691. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 693.

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David C. Todd argued the cause for petitioner. With him on the briefs was Deborah M. Lodge.

Solicitor General Waxman argued the cause for the United States, respondent under this Court's Rule 12.6, urging reversal. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, Malcolm L. Stewart, Mark B. Stern, Michael E. Robinson, and H. Thomas Byron III.

William B. Mallin argued the cause for respondent Florida Prepaid Postsecondary Education Expense Board. With him on the brief were Joseph M. Ramirez and Louis F. Hubener. [*]

Justice Scalia delivered the opinion of the Court.

The Trademark Remedy Clarification Act (TRCA), 106 Stat. 3567, subjects the States to suits brought under § 43(a)

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of the Trademark Act of 1946 (Lanham Act) for false and misleading advertising, 60 Stat. 441, 15 U.S.C. § 1125(a). The question presented in this case is whether that provision is effective to permit suit against a State for its alleged misrepresentation of its own product—either because the TRCA effects a constitutionally permissible abrogation of state sovereign immunity, or because the TRCA operates as an invitation to waiver of such immunity which is automatically accepted by a State's engaging in the activities regulated by the Lanham Act.


In Chisholm v. Georgia, 2 Dall. 419 (1793), we asserted jurisdiction over an action in assumpsit brought by a South Carolina citizen against the State of Georgia. In so doing, we reasoned that Georgia's sovereign immunity was qualified by the general jurisdictional provisions of Article III, and, most specifically, by the provision extending the federal judicial power to controversies "between a State and Citizens of another State." U.S. Const., Art. III, § 2, cl. 1. The "shock of surprise" created by this decision, Principality of Monaco v. Mississippi, 292 U.S. 313, 325 (1934), prompted the immediate adoption of the Eleventh Amendment, which 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."

Though its precise terms bar only federal jurisdiction over suits brought against one State by citizens of another State or foreign state, we have long recognized that the Eleventh Amendment accomplished much more: It repudiated the central premise of Chisholm that the jurisdictional heads of Article III superseded the sovereign immunity that the States possessed before entering the Union. This has been our understanding of the Amendment since the landmark

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case of Hans v. Louisiana, 134 U.S. 1 (1890). See also Ex parte New York, 256 U.S. 490, 497-498 (1921); Principality of Monaco, supra, at 320-328, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 97-98 (1984); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 66-68 (1996).

While this immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment—an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U.S. 436, 447-448(1883). This case turns on whether either of these two circumstances is present.


Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), enacted in 1946, created a private right of action against "[a]ny person" who uses false descriptions or makes false representations in commerce. The TRCA amends § 43(a) by defining "any person" to include "any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity." § 3(c), 106 Stat.3568. The TRCA further amends the Lanham Act to provide that such state entities "shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity for any violation under this Act," and that remedies shall be available against such state entities...

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