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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10251
Summary Calendar
ABEL RODRIGUEZ,
Plaintiff-Appellant,
Versus
TEXAS COMMISSION ON THE ARTS,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
January 10, 2000
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.
Plaintiff sued the Texas Commission on the Arts in federal
court alleging copyright infringement. Plaintiff appeals
decision of the United States District Court for the Northern
District of Texas dismissing plaintiff's suit for lack of subject
matter jurisdiction. Because we find that the Copyright
Clarification Act, 17 U.S.C. § 511 (1994), does not abrogate a
state's Eleventh Amendment immunity pursuant to a valid exercise
of congressional power, we AFFIRM.
FACTS AND PROCEEDINGS BELOW
Plaintiff claims that the Arts Commission infringed on his

design for Texas license plates, a design which he registered
with the United States Copyright Office, when it started selling
its specialized "State of the Arts" license plates to Texas
residents. In response to plaintiff's complaint, defendant filed
a motion to dismiss for lack of subject matter jurisdiction and
for failure to state a claim upon which relief can be granted.
The district court granted defendant's motion to dismiss and
entered an order dismissing the complaint for lack of subject
matter jurisdiction pursuant to FED R. CIV. P. 12(b)(1).
Plaintiff argues on appeal that the district court's ruling is
erroneous because Congress had the power to pass a law that gave
plaintiff a cause of action for copyright infringement against
the State of Texas.
STANDARD OF REVIEW
We review a district court's grant of a motion to dismiss
for lack of subject matter jurisdiction de novo. See Herbert v.
United States, 53 F.3d 720, 722 (5th Cir. 1995); see also EP
Operating Ltd. Partnership v. Placid Oil Co., 26 F.3d 563, 566
(5th Cir. 1994) ("This Court reviews dismissal under Fed. R. Civ.
P. 12(b)(1) de novo using the same standards employed by the
district court.").
DISCUSSION
Citizens may not bring suit against a state or any
instrumentality thereof without the state's consent. See U.S.
Const. amend. XI.; Hans v. Louisiana, 134 U.S. 1, 15 (1890)
(noting that federal jurisdiction over suits against unconsenting
states "was not contemplated by the Constitution when
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establishing the judicial power of the United States").
Plaintiffs contend that Congress's enactment of the Copyright
Remedy Clarification Action of 1990, 17 U.S.C. § 511(a) (1994),
validly abrogated the States' sovereign immunity from suit in
copyright matters.
To determine whether Congress abrogated a state's sovereign
immunity, we must ask two questions: first, whether Congress
unequivocally expressed its intent to abrogate such immunity, and
second, whether Congress acted pursuant to a valid exercise of
its power. See Seminole Tribe v. Florida, 517 U.S. 44, 55
(1996). That we agree with the district court's finding that the
Copyright Act's plain language1 "makes it indubitable that
Congress intended through this Act to abrogate the States'
sovereign immunity from suit in copyright matters" needs little
explanation. Therefore, we turn to our analysis of whether
Congress acted pursuant to a valid exercise of its power in
enacting the Copyright Act.
Congress may not abrogate sovereign immunity unless its does
1 The abrogation provision of the Copyright Act states:
Any State, any instrumentality of a State, and any
officer or employee of a State or instrumentality of a
State acting in his or her official capacity, 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 a violation of any of the
exclusive rights of a copyright owner provided by
sections 106 through 119, for importing copies of phono
records in violation of section 602, or for any other
violation under this title.
17 U.S.C. § 511(a) (1994).
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so in accordance with a valid exercise of its power. See
Seminole Tribe, 517 U.S. at 55. "Seminole Tribe makes clear that
Congress may not abrogate state sovereign immunity pursuant to
its Article I powers; hence the . . . Act cannot be sustained
under either the Commerce Clause or the Patent Clause." Florida
Prepaid Postsecondary Educ. Exp. Bd. v. College Savings Bank, ---
U.S. ---, ---, 119 S. Ct. 2199, 2204 (1999). Therefore, the
Copyright Act's sovereign immunity abrogation provision may only
be constitutionally justified under the Fourteenth Amendment.
The United States Supreme Court recently addressed this very
question in the context of the Patent and Plant Variety
Protection Remedy Clarification Act, 37 U.S.C. 296(a) (1994 ed.
and Supp. III). In College Savings Bank, the Supreme Court held
that the Patent Remedy Act cannot be sustained as legislation
enacted to enforce the guarantees of the Fourteenth Amendment's
Due Process Clause. See --- U.S. at ---, 119 S. Ct. at 2205-11.
It is appropriate for us to adopt this analysis in the copyright
context. The interests Congress sought to protect in each
statute are substantially the same and the language of the
respective abrogation provisions are virtually identical.
Compare 17 U.S.C. § 511(a) (1994) with 35 U.S.C. § 296(a) (1994
ed. and Supp. III). Therefore, the decision of the district
court is AFFIRMED.
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