Chavez v. Arte Publico Press , 204 F.3d 601 ( 1995 )


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  •                   United States Court of Appeals,
    
                                  Fifth Circuit.
    
                                   No. 93-2881.
    
                     Denise CHAVEZ, Plaintiff-Appellee,
    
                                        v.
    
             ARTE PUBLICO PRESS, et al., Defendants-Appellants.
    
                                  Aug. 1, 1995.
    
    Appeal from the United States District Court for the Southern
    District of Texas.
    
    Before WISDOM, JONES and EMILIO M. GARZA, Circuit Judges.
    
         EDITH H. JONES, Circuit Judge:
    
         The University of Houston and one of its employees appeal the
    
    denial of their motions to dismiss an action brought under the
    
    Copyright and Lanham Acts. Appellants principally contend that the
    
    Acts are unconstitutional under the Eleventh Amendment because they
    
    purport to override state immunity and authorize suits in federal
    
    court against the state for violation of the Acts.            This would
    
    appear to be a compelling defense, were it not for the vicissitudes
    
    of Supreme Court interpretation of the Amendment.         As the Court's
    
    decisions now stand, the University's claim of sovereign immunity
    
    must fail, although its employee Kanellos prevails on qualified
    
    immunity.
    
                                   BACKGROUND1
    
         Denise   Chavez,   the    plaintiff/appellee,   is   a   "nationally
    
         1
          Because this is an appeal from the denial of a motion to
    dismiss under Federal Rule of Civil Procedure 12(b)(6) for
    failure to state claim on which relief may be granted, we take as
    true the facts alleged in the Complaint.
    
                                        1
    renowned playwright and dramatist ... with a unique and valuable
    
    reputation as a commentator on cultural issues regarding women and,
    
    in particular, Hispanic women."           Chavez has resided in New Mexico
    
    at all times relevant to this lawsuit.
    
         Arte Publico Press, the defendant/appellant, is a component
    
    part of the University of Houston and legally indistinguishable
    
    from the University.      The University is owned and operated by the
    
    State of Texas.     Nicolas Kanellos, also a defendant/appellant, is
    
    a University employee who at all times relevant acted on its
    
    behalf.
    
         In    July   1984,   Chavez    and       the   University    entered   into a
    
    contract    for   publication      of    her    books.     A     year   later,   the
    
    University agreed to do a first printing of The Last of the Menu
    
    Girls, a collection of Chavez's short stories.                      The book was
    
    published in 1986, and the copyright was registered in Chavez's
    
    name as author and owner.       Twice in later years, the parties agreed
    
    on additional publishing contracts for The Last of the Menu Girls,
    
    each of which provided for a specified number of copies to be
    
    printed.      Kanellos    signed        the    contracts   on     behalf    of   the
    
    University.
    
         In late 1991 and early 1992, Chavez, dissatisfied that the
    
    University had failed to correct errors in the earlier printings,
    
    refused to permit the University to print any more copies than
    
    agreed to in the 1991 contract.                 On or about October 2, 1992,
    
    however, the University asserted to Chavez that the 1991 contract
    
    did not limit the number of copies it could print and declared its
    
    
                                              2
    intention to print 5,000 more copies of the book.2
    
          During this time period, the University also published an
    
    anthology of plays entitled Shattering the Myth.                      Chavez was
    
    identified in a University catalog as the selector of the plays.
    
    Chavez does not dispute this statement, but she objects that her
    
    identification as selector is a misrepresentation of sponsorship in
    
    violation of her right to publicity.
    
          Chavez filed this action in 1993 in federal court.                     Her
    
    complaint alleges that the University and Kanellos, in both his
    
    official and individual capacities, infringed her copyright in her
    
    book, violated the Lanham Act in naming Chavez as the selector of
    
    the plays without her authority, and violated her state law right
    
    to publicity.      Chavez seeks a declaratory judgment securing her
    
    rights under the contract, as well as damages, attorneys' fees, and
    
    an injunction against the University.                Chavez invokes federal
    
    question     and   supplemental     jurisdiction,       but     not    diversity
    
    jurisdiction.
    
          The University moved to dismiss on behalf of itself and
    
    Kanellos for failure to state a claim, resting inter alia, on
    
    Eleventh Amendment sovereign immunity.          Kanellos also asserted his
    
    qualified    immunity.    The     district    court    denied    the    motions,
    
    allowing the lawsuit to proceed. The University and Kanellos filed
    
    a   timely   interlocutory   appeal   on     these    issues.     Puerto    Rico
    
          2
          The 1991 contract provides that the University shall have
    the exclusive right publish the book for a term of at least five
    years and that only the University may terminate the contract
    during that term. The addendum to the contract specifies that
    the number of copies to be published is 2,000 trade paperbacks.
    
                                          3
    Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., --- U.S. ----, ----
    
    , 
    113 S. Ct. 684
    , 689, 
    121 L. Ed. 2d 605
     (1993).
    
                                   DISCUSSION
    
         A State's immunity from suit in federal court has a turbulent
    
    past,   an    enigmatic   present,   and   an   uncertain   future.   Our
    
    commission is to ascertain the current state of the law, guided by
    
    the historical evolution of sovereign immunity. The future of such
    
    immunity will ultimately be resolved by the Supreme Court, perhaps
    
    in a case pending this term.         See Seminole Tribe of Florida v.
    
    State of Florida, 
    11 F.3d 1016
     (11th Cir.1994), cert. granted, ---
    
    U.S. ----, 
    115 S. Ct. 932
    , 
    130 L. Ed. 2d 878
     (1995).
    
         The highlights of sovereign immunity jurisprudence provide the
    
    necessary context for this discussion.          The Constitution did not
    
    originally confer explicit immunity on the States against suits in
    
    federal court. Article III, section 2 extends the federal judicial
    
    power to controversies "between a State and Citizens of another
    
    State."      In 1793, the Supreme Court exercised this grant of power
    
    and assumed original jurisdiction over a suit brought by a citizen
    
    of South Carolina against the State of Georgia.               Chisholm v.
    
    Georgia, 2 Dall., 419, 
    1 L. Ed. 440
     (1793).        This decision "created
    
    such a shock of surprise that the Eleventh Amendment was at once
    
    proposed and adopted."      Monaco v. Mississippi, 
    292 U.S. 313
    , 325,
    
    
    54 S. Ct. 745
    , 749, 
    78 L. Ed. 1282
     (1934).
    
         The Eleventh Amendment 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
    
                                         4
           State."
    
    That       the   Amendment's     language       overruled   Chisholm     was     never
    
    disputed;         whether the Amendment also affirmed the existence of
    
    immunity beyond the text, as later recognized in Hans v. Louisiana,
    
    
    134 U.S. 1
    , 
    10 S. Ct. 504
    , 
    33 L. Ed. 842
     (1890), has been the subject
    
    of intense debate.
    
           In Hans, the Supreme Court held that the scope of sovereign
    
    immunity was not limited by the text of the Eleventh Amendment.
    
    Rather, the Amendment embodied the broader and more fundamental
    
    constitutional concept of state immunity from suit in federal court
    
    even against suits brought by its own citizens.                  A review of the
    
    constitutional         debates    concerning       the   scope   of    Article    III
    
    persuaded the Court that federal jurisdiction over suits against
    
    unconsenting states "was not contemplated by the Constitution when
    
    establishing the judicial power of the United States."                   Id. at 15,
    
    10 S.Ct. at 507.3       Although repeatedly called into question by some
    
           3
          Thirty years later, the Court succinctly summarized its
    Eleventh Amendment jurisprudence after Hans:
    
                     "That a State may not be sued without its consent is a
                     fundamental rule of jurisprudence having so important a
                     bearing upon the construction of the Constitution of
                     the United States that it has become established by
                     repeated decisions of this court that the entire
                     judicial power granted by the Constitution does not
                     embrace authority to entertain a suit brought by
                     private parties against a State without consent given:
                     not one brought by citizens of another State, or by
                     citizens of a foreign State, because of the Eleventh
                     Amendment; and not even one brought by its own
                     citizens, because of the fundamental rule of which the
                     Amendment is but an exemplification."
    
           Ex Parte State of New York, 
    256 U.S. 490
    , 497, 
    41 S. Ct. 588
    ,
           589, 
    65 L. Ed. 1057
     (1921).
    
                                                5
    of the Justices, Hans and its progeny remain the law.               However, a
    
    State's general immunity from suit in federal court marks only the
    
    beginning of the inquiry.
    
             A State is free to waive its immunity and consent explicitly
    
    to suit in federal court.       See e.g., Pennhurst State School & Hosp.
    
    v. Halderman, 
    465 U.S. 89
    , 99, 
    104 S. Ct. 900
    , 907, 
    79 L. Ed. 2d 67
    
    (1984);    Atascadero State Hosp. v. Scanlon, 
    473 U.S. 234
    , 238, 
    105 S. Ct. 3142
    , 3145, 
    87 L. Ed. 2d 171
     (1985).          Not only may the state
    
    expressly waive its immunity, but according to some opinions from
    
    the Supreme Court, waiver may occur in two other instances relevant
    
    to this case.       The first theory of non-express waiver has been
    
    designated as the "plan of the [constitutional] convention" waiver;
    
    the second may be called "implied" or "Parden " waiver.4
    
         The    "plan   of   the   convention"   theory   of    state   waiver   of
    
    sovereign immunity was first highlighted in Monaco v. Mississippi,
    
    
    292 U.S. 313
    , 
    54 S. Ct. 745
    , 
    78 L. Ed. 1282
     (1934).                   The Court
    
    explained that "States of the Union, still possessing attributes of
    
    sovereignty, shall be immune from suits, without their consent,
    
    save where there has been a "surrender of this immunity in the plan
    
    of the convention.'       The Federalist No. 81."          Id. at 322-23, 54
    
    S.Ct. at 748.5      According to the plan of the convention theory, by
    
         4
          It has been held that in ratifying the Fourteenth
    Amendment, states waived immunity from suits authorized by
    Congress under section five of the Fourteenth Amendment.
    Fitzpatrick v. Bitzer, 
    427 U.S. 445
    , 456, 
    96 S. Ct. 2666
    , 2671, 
    49 L. Ed. 2d 614
     (1976). Our resolution of this case does not warrant
    analysis under the Fourteenth Amendment.
         5
          In Monaco, the Court ultimately held that because there
    existed "no ground upon which it can be said that any waiver or
    
                                          6
    ratifying the Constitution, States necessarily surrendered certain
    
    of their powers to the federal government.                 Implicit in this
    
    surrender was a consent to suit in federal court in certain cases.
    
    The Supreme Court has found such a waiver in two contexts:            suits
    
    by Sister States, South Dakota v. North Carolina, 
    192 U.S. 286
    ,
    
    318, 
    24 S. Ct. 269
    , 275, 
    48 L. Ed. 448
     (1904), and suits by the
    
    United States, United States v. Texas, 
    143 U.S. 621
    , 
    12 S. Ct. 488
    ,
    
    
    36 L. Ed. 285
     (1892). Whether the States waived immunity from suits
    
    by private parties by ratifying the Constitution is not so clear.
    
    As will be discussed, the Supreme Court was confronted with this
    
    very question in Pennsylvania v. Union Gas, 
    491 U.S. 1
    , 
    109 S. Ct. 2273
    , 
    105 L. Ed. 2d 1
     (1989).
    
           The second form of non-express waiver has been deemed to occur
    
    when a State participates for profit in a particular market or
    
    industry, and Congress, acting pursuant to the powers conferred
    
    upon    it   in   Article   I   of   the   Constitution,    has   explicitly
    
    conditioned that participation on a State's waiver of immunity from
    
    suit.    Thus, in Parden v. Terminal Ry. of Ala. State Docks Dept.,
    
    
    377 U.S. 184
    , 
    84 S. Ct. 1207
    , 
    12 L. Ed. 2d 233
     (1964), "Congress
    
    conditioned the right to operate a railroad in interstate commerce
    
    upon amenability to suit in federal court as provided by the
    
    [Federal Employers' Liability Act] ..." Id. at 192, 84 S.Ct. at
    
    1213.    See also Employees of Dept. of Public Health & Welf. v.
    
    
    
    consent by a State of the Union has run in favor of a foreign
    State," Mississippi had not waived its immunity from suit by the
    foreign State of Monaco. Monaco, 292 U.S. at 330, 54 S.Ct. at
    751.
    
                                           7
    Missouri, 
    411 U.S. 279
    , 285, 
    93 S. Ct. 1614
    , 1618, 
    36 L. Ed. 2d 251
    
    (1973) (in enacting the Fair Labor Standards Act, Congress did not
    
    condition operation of a not-for-profit State hospital on waiver of
    
    State immunity);        Atascadero State Hosp. v. Scanlon, 
    473 U.S. 234
    ,
    
    247, 
    105 S. Ct. 3142
    , 3149-50, 
    87 L. Ed. 2d 171
     (1985) ("The Act ...
    
    falls    far    short   of   manifesting   a   clear   intent   to   condition
    
    participation in the programs funded under the Act on a State's
    
    consent to waive its constitutional immunity.").
    
         The State of Texas contends that neither theory of non-express
    
    waiver of sovereign immunity is viable against it in this case.
    
    Although Congress amended both the Copyright and Lanham Acts
    
    specifically to abrogate states' immunity from suit in federal
    
    court,6 Texas asserts that these enactments violate recent Supreme
    
         6
            The Copyright Act provides in pertinent part:
    
                   In general, any State, any instrumentality of a State,
                   and any officer or employee of a State or
                   instrumentality of a State acting in his official
                   capacity, shall not be immune, under the Eleventh
                   Amendment of the Constitution or under any doctrine of
                   sovereign immunity, from suit in Federal Court by any
                   person ... for a violation of any of the exclusive
                   rights of the copyright owner provided by ... this
                   Title.
    
         17 U.S.C. § 511(a).
    
         The Lanham Act provides in pertinent part:
    
                   Any State, any instrumentality of a State or any
                   officer or employee of a State or instrumentality of a
                   State acting in his official capacity, shall not be
                   immune, under the Eleventh Amendment of the
                   Constitution or under any doctrine of sovereign
                   immunity, from suit in Federal Court by any person ...
                   for any violation under this chapter."
    
         15 U.S.C. § 1122.
    
                                          8
    Court Eleventh Amendment jurisprudence and are ineffective. First,
    
    in Blatchford v. Native Village of Noatak, 
    501 U.S. 775
    , 
    111 S. Ct. 2578
    ,   
    115 L. Ed. 2d 686
        (1991),      and     earlier   cases,   the    Court
    
    allegedly closed the door on the "plan of the convention" theory of
    
    non-express waiver.      Second, the State relies upon Welch v. Texas
    
    Dept. of Highways & Public Transportations, 
    483 U.S. 468
    , 
    107 S. Ct. 2941
    , 
    97 L. Ed. 2d 389
     (1987), which, it contends, overruled Parden
    
    v. Terminal Ry. of Alabama Docks Dept., 
    377 U.S. 184
    , 
    84 S. Ct. 1207
    , 
    12 L. Ed. 2d 233
     (1964).             In overruling Parden, the Court
    
    rejected the theory that Congress may overcome a state's immunity
    
    from suit in federal court by legislating pursuant to Article I.
    
         While it appears that the state's first argument is correct,
    
    and the plan of the convention theory has never been accepted by
    
    more than four justices in any case, we nevertheless conclude that
    
    Texas's interpretation of Parden is in error under current caselaw.
    
         To explain these conclusions it is necessary to return to
    
    Pennsylvania v. Union Gas, supra, where the issue presented was
    
    whether Congress    had    the   intent       and    power    to   abrogate   state
    
    immunity from private suit in federal court for violation of a
    
    federal environmental statute. A five-member majority of the Court
    
    held that the Comprehensive Environmental Response, Compensation,
    
    and Liability Act of 1980 (CERCLA), as amended by the Superfund and
    
    Reauthorization    Act    of     1986       (SARA),     unmistakably     conveyed
    
    Congress's intent to render States liable in federal court for
    
    
    
    
                                            9
    cleanup costs recoverable under CERCLA.7        Union Gas, 491 U.S. at 8,
    
    109 S.Ct. at 2278.          On the issue of congressional authority to
    
    compel a waiver, however, Justice Brennan mustered only a plurality
    
    for his oft-stated view8 that the states waived their immunity in
    
    the   "plan   of     the   convention."    Applying   their    plan   of   the
    
    convention theory, Brennan's plurality held that Congress, acting
    
    pursuant to the Commerce Clause contained in Article I, section 8,
    
    was empowered to abrogate9 Pennsylvania's sovereign immunity and
    
    authorize a private suit against the State in federal court.               Four
    
    other     justices    vehemently   dissented   against   the   plan   of   the
    
    convention theory of waiver.        Id. at 30-45, 109 S.Ct. at 2297-2304
    
    (Scalia, J., concurring in part and dissenting in part).
    
          Justice White cast the tie-breaking vote favoring abrogation
    
    of state sovereign immunity, although he also wrote on behalf of
    
          7
          Justices Marshall, Blackmun, Stevens, and Scalia joined
    this portion of Justice Brennan's opinion.
          8
          See Employees of Dept. of Public Health & Welf. v.
    Missouri, 
    411 U.S. 279
    , 317-18, 
    93 S. Ct. 1614
    , 1634, 
    36 L. Ed. 2d 251
     (1973) (Brennan, J., dissenting); Edelman v. Jordan, 
    415 U.S. 651
    , 687, 
    94 S. Ct. 1347
    , 1368, 
    39 L. Ed. 2d 662
     (1974)
    (Brennan, J., dissenting); Atascadero State Hosp. v. Scanlon,
    
    473 U.S. 234
    , 279-80, 
    105 S. Ct. 3142
    , 3166, 
    87 L. Ed. 2d 171
     (1985)
    (Brennan, J., dissenting); Welch v. Texas Dept. of Highways and
    Public Trans., 
    483 U.S. 468
    , 504-09, 
    107 S. Ct. 2941
    , 2962-65, 
    97 L. Ed. 2d 389
     (1987) (Brennan, J., dissenting).
          9
          The plurality's term "abrogate" appears to be a misnomer.
    If the States waived their immunity in the plan of the
    convention, there would be no immunity to abrogate. See,
    Employees of Dept. of Public Health & Welf. v. Missouri, 
    411 U.S. 279
    , 282 n. 1, 
    93 S. Ct. 1614
    , 1616 n. 1, 
    36 L. Ed. 2d 251
     (1973).
    If, on the other hand, the States did not waive their immunity,
    Congress would have no power to abrogate it. See Puerto Rico, --
    - U.S. ----, ---- - ----, 
    113 S. Ct. 684
    , 687-88. But to be
    consistent with the Justices' terminology, this opinion will also
    use "abrogate."
    
                                          10
    three other justices to dissent from the majority holding that
    
    CERCLA, as amended by SARA, was unmistakably clear in its intent to
    
    abrogate State immunity from suit in federal court.                   In a single
    
    terse     paragraph,        Justice    White    concurred   individually     in   the
    
    Brennan plurality's conclusion that Congress has the power to
    
    abrogate sovereign immunity under its Article I powers, but he
    
    repudiated10 the plurality's reasoning and reaffirmed his allegiance
    
    to Hans.    Id. at 56-57, 109 S.Ct. at 2295-96 (White, J., concurring
    
    in part and dissenting in part).11
    
         Justice White's concurrence must be taken on its face to
    
    disavow    the       plan   of   the   convention    theory   of   waiver.        This
    
         10
          Earlier in his concurring opinion, Justice White also
    voiced his disagreement with the reasoning of the plurality.                      Id.
    at 45, 109 S.Ct. at 2289 (White, J., concurring in part and
    dissenting in part).
         11
          Justice White's conclusion on this issue in Union Gas,
    stated in full, is as follows:
    
                 My view on the statutory issue has not prevailed,
                 however, a majority of the Court has ruled that the
                 statute, as amended, plainly intended to abrogate the
                 immunity of the States from suit in the federal courts.
                 I accept that judgment. This brings me to the question
                 whether Congress has the constitutional power to
                 abrogate the States' immunity.[FN8] In that respect, I
                 agree with the conclusion reached by Justice Brennan in
                 Part III of his opinion, that Congress has the
                 authority Under Article I to abrogate the Eleventh
                 Amendment immunity of the States, although I do not
                 agree with much of his reasoning.
                 [FN8]
                     As a preliminary matter, I reiterate my view that
                 for the reasons stated by the plurality in Welch v.
                 Texas Dept. of Highways, supra, at 478-88, 107 S.Ct.,
                 at 2944-54, Hans v. Louisiana, 
    134 U.S. 1
    , 
    10 S. Ct. 504
    , 
    33 L. Ed. 842
     (1890), should not be overruled.
    
         Union Gas, 491 U.S. at 57, 109 S.Ct. at 2296 & n. 8 (White,
         J., concurring in part and dissenting in part).
    
                                               11
    interpretation         is        consistent      with    his   position        in   Eleventh
    
    Amendment cases decided before and after Union Gas, as Justice
    
    White has repeatedly parted company from Justice Brennan's attempts
    
    to engraft a plan of the convention theory of waiver into the
    
    Constitution.        See, e.g., Parden, 377 U.S. at 198-99, 84 S.Ct. at
    
    1216 (White, J., dissenting from Justice Brennan's theory that the
    
    states surrendered a portion of their sovereignty when they granted
    
    Congress the power to regulate commerce);                       Employees of Dept. of
    
    Public Health & Welfare v. Missouri, 
    411 U.S. 279
    , 
    93 S. Ct. 1614
    ,
    
    
    36 L. Ed. 2d 251
     (1973);               Edelman v. Jordan, 
    415 U.S. 651
    , 
    94 S. Ct. 1347
    , 
    39 L. Ed. 2d 662
     (1974);               Port Authority Trans-Hudson Corp. v.
    
    Feeney, 
    495 U.S. 299
    , 
    110 S. Ct. 1868
    , 
    109 L. Ed. 2d 264
     (1990).
    
           The plan of the convention theory thus received only four
    
    votes   of    approbation           in   Union    Gas    and   failed     to    become     the
    
    constitutional law of the land.                     Despite his repeated efforts to
    
    secure a fifth vote in other cases, Justice Brennan, concurring in
    
    Feeney, supra, essentially conceded that the plan of the convention
    
    theory of waiver had never succeeded in capturing the Court's
    
    majority.      Feeney, 495 U.S. at 310-11, 110 S.Ct. at 1875-76.                           And
    
    if further proof be needed, the Court's opinion in Blatchford,
    
    decided      after   Union         Gas   and     concurred     in   by    Justice    White,
    
    pointedly observed that in only two classes of cases had the Court
    
    recognized that states waived immunity from suit in the plan of the
    
    convention—suits by sister states and suits by the United States.
    
    Blatchford, 501 U.S. at 780, 111 S.Ct. at 2582.                           No mention was
    
    made    of    waiver        or     abrogation       of   immunity    in    the      face    of
    
    
                                                   12
    congressional action pursuant to Article I.
    
            On this basis, we therefore agree with the state of Texas
    
    that    Chavez    may     not   defend    the     express    abrogation        of   state
    
    sovereign immunity in the Copyright and Lanham Acts by reference to
    
    a plan of the convention theory of waiver.12
    
           In uneasy juxtaposition, however, with his (and the Court's)
    
    disavowal of the plan of the convention theory of waiver stands
    
    Justice     White's       conviction       that     Congress         may    under     some
    
    circumstances require state waiver of immunity in federal court as
    
    the price for conducting business regulated by Congress.                        He first
    
    articulated       this    position,      which    includes       a    requirement     that
    
    Congress must expressly abrogate state sovereign immunity, in
    
    Parden, supra:
    
           Only when Congress has clearly considered the problem and
           expressly declared that any State which undertakes given
           regulable conduct will be deemed thereby to have waived its
           immunity should courts disallow the invocation of this
           defense.
    
    Parden,     377    U.S.    at   198-99,     84    S.Ct.     at       1216   (White,    J.,
    
    dissenting).
    
    He later joined in an opinion that limited the reach of Parden as
    
    follows:
    
           12
          Chavez urges this court to mechanically apply the holding
    of Peel v. Florida, 
    600 F.2d 1070
     (5th Cir.1979), in which we
    found a waiver in the plan of the convention for legislation
    passed pursuant to Congress' Article I war powers. Id. at 1080.
    However, since Peel was decided, the intervening Supreme Court
    decisions cited herein have rejected this theory of waiver.
    Accord Seminole Tribe of Florida v. Florida, 
    11 F.3d 1016
     (11th
    Cir.1994), cert. granted, --- U.S. ----, 
    115 S. Ct. 932
    , 
    130 L. Ed. 2d 878
     (1995) (Judge Tjoflat, the author of both Peel and
    Seminole Tribe, does not follow Peel presumably because of the
    intervening Supreme Court decisions).
    
                                               13
         The Parden case in final analysis turned on the question of
         waiver, a majority of the Court holding that it was a federal
         question since any consent of the State to suit did not arise
         from an act "wholly within its own sphere of authority" but in
         the area of commerce, which is subject to pervasive federal
         regulation.
    
    Employees of Dept. of Public Health and Welfare v. Missouri, 
    411 U.S. 279
    , 284, 
    93 S. Ct. 1614
    , 1617, 
    36 L. Ed. 2d 251
     (1973).             The
    
    Court there also noted that Parden involved a railroad business run
    
    by the State of Alabama for profit "in the area where private
    
    persons and corporations normally ran the enterprise."         
    411 U.S. 284
    , 93 S.Ct. at 1617.
    
         Finally,    Justice   White   concurred   in   an   opinion    for   a
    
    five-member majority that overruled Parden "to the extent that [it]
    
    is inconsistent with the requirement that an abrogation of Eleventh
    
    Amendment immunity by Congress must be expressed in unmistakably
    
    clear language."      Welch v. Texas Dept. of Highways & Public
    
    Transp., 
    483 U.S. 468
    , 477, 
    107 S. Ct. 2941
    , 2948, 
    97 L. Ed. 2d 389
    
    (1987). But Welch significantly declined "to consider the validity
    
    of the additional holding in Parden, that Congress has the power to
    
    abrogate the State's Eleventh Amendment immunity under the Commerce
    
    Clause to the extent that the States are engaged in interstate
    
    commerce."    Id. at 477 n. 8, 107 S.Ct. at 2948 n. 8.
    
         From Justice White's writing and concurrences in these earlier
    
    cases, we infer the meaning of his vote in Union Gas in favor of
    
    congressional abrogation of state immunity. The underlying suit in
    
    Union Gas alleged that Pennsylvania caused or contributed to the
    
    toxic release when it was excavating a creek for purposes of flood
    
    control.     Union Gas, 491 U.S. at 5, 109 S.Ct. at 2277.          Justice
    
                                       14
    White evidently decided that if the majority's interpretation of
    
    the    environmental      statutes    prevailed,        that   is,    if   Congress
    
    expressly determined to render states suable in federal court for
    
    cleanup costs, Congress had the power to do so under the Commerce
    
    Clause because, as in Parden, the states had voluntarily engaged in
    
    such regulated activities.
    
           In   the   first   section    of    his      concurrence,     Justice   White
    
    highlights the portion of CERCLA, as amended by SARA, that exempts
    
    from    liability    costs    incident         to   involuntary    and     emergency
    
    ownership by the State, except when the State has "caused or
    
    contributed" to the toxic release.              Id. at 49-51 & n. 3, 109 S.Ct.
    
    at 2292-93 & n. 3 (White, J., concurring in part and dissenting in
    
    part). That Justice White determined that this affirmative conduct
    
    operated as an implied waiver of State immunity is suggested in a
    
    footnote.     White posits:
    
           But under § 9601(20)(D), state and local governments are
           liable only if they have "caused or contributed " to a release
           of toxic materials. If § 9601(20)(D) is the source of the
           Eleventh Amendment waiver, and if, as the Court contends, its
           provisions are meant to address all state and local
           governments that own or operate toxic sites, then perhaps
           Congress abrogated the Eleventh Amendment only far enough to
           make States liable under this less stringent rule—whether they
           are voluntary or involuntary owners of a site.
    
    Id. at 53 n. 5, 
    109 S. Ct. 2292
     n. 5.                (emphasis added).
    
           Justice White later adds, "Congress may have reasoned that
    
    while state and local governments that are involuntary owners
    
    should be exempted from liability under CERCLA, those that actually
    
    cause subsequent discharges should be liable under the statute ..."
    
    Id. at 54 n. 6, 109 S.Ct. at 2294 n. 6 (White, J., concurring in
    
    
                                              15
    part and dissenting in part) (emphasis added).              Therefore, Justice
    
    White, believing that for every Congressional abrogation under the
    
    Commerce     Clause   there   must   be    an   accompanying    State   waiver,
    
    apparently found an implicit waiver, similar to that in Parden,
    
    inherent     in   Pennsylvania's     alleged      conduct   which   caused   or
    
    contributed to the toxic release.13             Justice White's view, as the
    
    fifth vote for abrogation of sovereign immunity in Union Gas, must
    
    be taken as that of the Court.       See, e.g., Schlup v. Delo, --- U.S.
    
    ----, ----, 
    115 S. Ct. 851
    , 877, 
    130 L. Ed. 2d 808
     (1995).
    
              In summary, applying the Supreme Court's current Eleventh
    
    
         13
          Additional circumstantial supporting evidence that this
    was Justice White's theory of the case is found in Justice
    Scalia's dissent.
    
              After discussing why he and three of his colleagues
         rejected the plurality's application of the plan of the
         convention waiver to the Article I, section 8 context,
         Justice Scalia moves to the other potentially applicable
         type of waiver recognized by the Court, that of implicit
         waiver under Parden. As framed by Justice Scalia, the issue
         was whether, by its actions, "Pennsylvania voluntarily
         assumed the state liability for private suit" contained in
         CERCLA. Id. at 42, 109 S.Ct. at 2303 (Scalia, J.,
         concurring in part and dissenting in part). Recognizing
         that the implicit waiver theory in Parden had not yet been
         overruled, Justice Scalia declared that the time to do so
         had arrived. Id. at 43, 109 S.Ct. at 2303 (Scalia, J.,
         concurring in part and dissenting in part). He implicitly
         criticized Justice White's position: "[T]o acknowledge that
         the Federal Government can make the waiver of state
         sovereign immunity a condition to the State's action in a
         field that Congress has authority to regulate is
         substantially the same as acknowledging that the Federal
         Government can eliminate state sovereign immunity in the
         exercise of its Article I powers—that is, to adopt the very
         principle I have just rejected." Id. at 44, 109 S.Ct. at
         2304 (Scalia, J., concurring in part and dissenting in
         part). Justice Scalia would have had little reason to
         address Parden waiver had he not thought it relevant to
         Justice White's position.
    
                                          16
    Amendment jurisprudence, we must conclude that although the implied
    
    waiver found in Parden has been narrowed considerably and called
    
    into question, it has never been overruled and, indeed, seems to
    
    have motivated Justice White's crucial fifth vote for concurrence
    
    in Union Gas.   Blatchford did not touch on the Parden theory of
    
    waiver or implied consent.         Until the Supreme Court determines
    
    otherwise, we must conclude that Congress is authorized expressly
    
    to compel states to waive sovereign immunity from private suits in
    
    federal court under the narrow circumstances found in Parden, i.e.,
    
    when the states opt to conduct business for profit in areas where
    
    Congress conditions participation upon waiver of immunity.
    
         Applying the foregoing discussion of states' immunity to this
    
    case is not difficult.      Both the Copyright Act and the Lanham Act
    
    represent   valid    exercises    of    Congressional          power    under      the
    
    Copyright   Clause,    Article    I,    section       8,   clause       8    of    the
    
    Constitution.       Further, both of these statutes were recently
    
    amended to express in clear and unmistakable language Congress's
    
    intent to   abrogate    State    immunity      from    suit,    as     required     by
    
    Atascadero State Hosp. v. Scanlon, 
    473 U.S. 234
    , 238, 
    105 S. Ct. 3142
    , 3145, 
    87 L. Ed. 2d 171
     (1985).             Although we are aware of no
    
    case that specifically holds that laws passed pursuant to the
    
    Copyright   Clause    can   abrogate        State    immunity,       there    is    no
    
    principled reason to distinguish between this and other Article I,
    
    section 8 powers entrusted to Congress.             Accord Union Gas, 491 U.S.
    
    at 42, 109 S.Ct. at 2303 (Scalia, J., concurring in part and
    
    dissenting in part).        Since Texas has not expressly waived its
    
    
                                           17
    immunity by statute or otherwise, the remaining question is whether
    
    Texas impliedly consented to suit by knowingly participating in the
    
    publishing business, in which Congress has expressly conditioned
    
    states' activity on a waiver of sovereign immunity.
    
            Language intended to abrogate State immunity was added to the
    
    Copyright Act effective November 15, 1990, see note 6, supra, the
    
    amendment responded to court decisions holding that the absence of
    
    clear and unmistakable language precluded waiver of state immunity
    
    under the previously-discussed Supreme Court cases.       See, e.g., BV
    
    Engineering v. Univ. of Cal., Los Angeles, 
    858 F.2d 1394
    , 1396 (9th
    
    Cir.1988).     Chavez and the University entered into a contract
    
    authorizing publication of The Last of the Menu Girls in early
    
    1991.    According to the Complaint, the University notified Chavez
    
    in October, 1992 of its intent to publish more copies of the book
    
    than    authorized   in   the   contract.   Chavez   alleges   that   the
    
    University has published and distributed the additional copies and
    
    in so doing has infringed upon her copyright.         The University's
    
    conduct in alleged violation of the agreement occurred after the
    
    1990 amendment of the Copyright Act. Therefore, the University had
    
    notice that its continued participation in the publishing business
    
    for profit was conditioned by Congress upon a waiver of its
    
    immunity from suit in federal court for violations of the Copyright
    
    Act.    What is left of Parden governs this suit.         Accordingly,
    
    Chavez may proceed with her lawsuit against the University and
    
    Kanellos in his official capacity for alleged violations of the
    
    Copyright Act.
    
    
                                         18
            Unmistakably    clear    language    intended    to   abrogate   State
    
    immunity was also added to the Lanham Act effective October 27,
    
    1992.     See   note   6,    supra.    The   Complaint   alleges   that    the
    
    University violated the Lanham Act when it published, without
    
    Chavez's consent, a catalog advertisement of a book entitled
    
    Shattering the Myth, which the catalog described as a collection of
    
    plays selected by Chavez. According to the Complaint, this catalog
    
    was published in or about September 1992—one month before the
    
    abrogation language was added to the Act.          To the extent that the
    
    Complaint seeks redress for violations that allegedly occurred
    
    before the amendment was enacted, the State is immune.             The State
    
    is not immune, however, from any action or relief sought by Chavez
    
    concerning conduct that occurred after the effective date of the
    
    amendment, when the University is deemed to have had notice of its
    
    contents.
    
            Chavez conceded in oral argument that the abrogation of
    
    immunity in the Copyright Act and Lanham Act does not extend to
    
    state law causes of action.           Her state law "right to publicity"
    
    cause of action is thus barred against the University and Kanellos
    
    in his official capacity.
    
            We now turn to Kanellos's contention that he is qualifiedly
    
    immune from suit.           Qualified immunity shields from liability
    
    government officials performing discretionary functions "as long as
    
    their actions could reasonably have been thought consistent with
    
    the rights they are alleged to have violated."                   Anderson v.
    
    Creighton, 
    483 U.S. 635
    , 638, 
    107 S. Ct. 3034
    , 3038, 
    97 L. Ed. 2d 523
    
    
                                           19
    (1987);     see also Malley v. Briggs, 
    475 U.S. 335
    , 341, 
    106 S. Ct. 1092
    , 1096, 
    89 L. Ed. 2d 271
     (1986) (qualified immunity protects "all
    
    but the plainly incompetent or those who knowingly violate the
    
    law"). This immunity is not merely immunity from liability, but is
    
    also immunity from suit, Siegert v. Gilley, 
    500 U.S. 226
    , 231, 
    111 S. Ct. 1789
    , 1793, 
    114 L. Ed. 2d 277
     (1991), and it is effectively
    
    lost if a case is erroneously permitted to go to trial.                  Sorey v.
    
    Kellett, 
    849 F.2d 960
    , 961 (5th Cir.1988).
    
         The dispositive question is "whether an objectively reasonable
    
    official would understand that the alleged improper actions were
    
    unlawful."    Del A. v. Edwards, 
    855 F.2d 1148
    , 1151 (5th Cir.1988).
    
          The unlawful act Kanellos is alleged to have committed was
    
    authorizing the printing of copies of Chavez's book in violation of
    
    the Copyright Act.      However, paragraph 14 of plaintiff's Complaint
    
    concedes that the contractual provision relating to the duration of
    
    the publishing license is ambiguous. The contract itself, appended
    
    to the plaintiff's Complaint, confirms this ambiguity. Because the
    
    licensing     contract          was   reasonably       susceptible       to   two
    
    interpretations,      one    of   which    renders    Kanellos's    alleged   act
    
    perfectly    legal,   he    is    entitled     to   qualified    immunity.    See
    
    Anderson, 483 U.S. at 641, 107 S.Ct. at 3040 (officer entitled to
    
    qualified    immunity      if    reasonable    officer   could    have   believed
    
    actions were lawful in light of information possessed).
    
         Neither the Complaint nor plaintiff's appellate brief clearly
    
    states that Chavez is asserting causes of action against Kanellos
    
    in his individual capacity under the Lanham Act and for violating
    
    
                                              20
    state law privacy rights.    Therefore, because plaintiff has failed
    
    to allege facts which would enable her to recover against Kanellos
    
    in his individual capacity, he is entitled to qualified immunity.
    
    See Elliott v. Perez, 
    751 F.2d 1472
    , 1473 (5th Cir.1985).
    
                                  CONCLUSION
    
         For the foregoing reasons, we AFFIRM the district court's
    
    denial   of   sovereign   immunity   for   actions   of   the   University
    
    undertaken after the amendments to the Copyright and Lanham Acts.
    
    We REVERSE the finding that the University may be sued for invasion
    
    of state law privacy rights and REMAND with instructions to dismiss
    
    this cause of action.      We also REVERSE the denial of qualified
    
    immunity for Kanellos and REMAND with instructions to dismiss all
    
    causes of action against him in his individual capacity.
    
         AFFIRMED in part, REVERSED and REMANDED in part.
    
    
    
    
                                         21