`
`No. 21-1603
`In the Supreme Court of the United States
`
`CANADA HOCKEY, L.L.C., DBA EPIC SPORTS, ET AL.,
`PETITIONERS
`v.
`TEXAS A&M UNIVERSITY ATHLETIC DEPARTMENT, ET AL.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`BRIEF IN OPPOSITION
`
`KEN PAXTON
`Attorney General of Texas
`BRENT WEBSTER
`First Assistant Attorney
` General
`
`
`JUDD E. STONE II
`Solicitor General
` Counsel of Record
`RANCE CRAFT
`Assistant Solicitor General
`OFFICE OF THE TEXAS
` ATTORNEY GENERAL
`P.O. Box 12548 (MC 059)
`Austin, Texas 78711-2548
`Judd.Stone@oag.texas.gov
`(512) 936-1700
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`In Allen v. Cooper, 140 S. Ct. 994 (2020), this Court
`
`held that the Copyright Remedy Clarification Act of 1990
`(CRCA) does not validly abrogate state sovereign im-
`munity for copyright infringement claims. Here, peti-
`tioners seek damages for a state university’s alleged in-
`fringement on the theory that, even after Allen, the
`CRCA abrogates immunity for claims based on conduct
`that violates the Fourteenth Amendment under the rea-
`soning of United States v. Georgia, 546 U.S. 151 (2006).
`In the alternative, petitioners seek damages via a federal
`takings claim. In an unpublished, non-precedential deci-
`sion, the court of appeals held that sovereign immunity
`bars petitioners’ claims. The questions presented are:
`
`1. Whether, assuming the CRCA validly abrogates
`state sovereign immunity for a violation of the Tak-
`ings Clause, the court of appeals correctly held that
`petitioners failed to allege such a violation because,
`“in these circumstances,” their copyright infringe-
`ment allegations did not “amount[] to a taking.”
`
`
`2. Whether, assuming the CRCA validly abrogates
`state sovereign immunity for a violation of the Due
`Process Clause, the court of appeals correctly held
`that petitioners failed to allege such a violation be-
`cause Texas law affords them an adequate post-dep-
`rivation remedy for copyright infringement.
`
`
`3. Whether the court of appeals correctly applied uni-
`form circuit precedent in holding that state sovereign
`immunity bars a federal takings claim notwithstand-
`ing Knick v. Township of Scott, 139 S. Ct. 2162 (2019),
`which did not address sovereign immunity.
`
`(I)
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`Questions Presented .......................................................... I
`Table of Contents ............................................................. II
`Table of Authorities ........................................................ III
`Introduction ........................................................................ 1
`Statement ............................................................................ 2
`Reasons for Denying the Petition .................................. 10
`I. Petitioners’ Complaint About the Fact-
`Bound Application of Settled Legal Rules
`Does Not Merit This Court’s Review. ............... 10
`II. To Reach the First Two Questions Presented
`Would Require the Court To Decide a
`Substantial Antecedent Question Not
`Addressed Below. ................................................ 12
`III. None of the Individual Questions Presented
`Is Certworthy. ...................................................... 14
`A. The first question is not squarely
`presented and implicates no conflict with
`decisions from this Court or any federal
`circuit court. .................................................... 14
`B. The second question is not squarely
`presented and implicates no conflict with
`decisions from this Court or any federal
`circuit court. .................................................... 21
`C. Petitioners do not even claim a circuit
`split on the third question—which this
`Court has recently and repeatedly
`declined to review. ......................................... 26
`Conclusion ......................................................................... 31
`
`
`(II)
`
`
`
`III
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases:
`Albright v. Oliver,
`510 U.S. 266 (1994) ........................................................ 24
`Allen v. Cooper,
`140 S. Ct. 994 (2020) .... I, 1, 3, 6, 7, 10, 11, 13, 14, 18, 22
`Allen v. Cooper,
`555 F. Supp. 3d 226 (E.D.N.C. 2021),
`appeal filed, No. 21-2040
`(4th Cir. Sept. 22, 2021) ................................................ 14
`Am. Shooting Ctr., Inc. v. Secfor Int’l,
`No. 13cv1847 BTM (JMA), 2016 WL 3952130
`(S.D. Cal. July 22, 2016) ................................................ 13
`Bay Point Props., Inc. v. Miss. Transp.
`Comm’n,
`937 F.3d 454 (5th Cir. 2019), cert. denied,
`140 S. Ct. 2566 (2020) .......................................... 9, 27, 28
`Bowen v. Gilliard,
`483 U.S. 587 (1987) ........................................................ 18
`Cal. Bldg. Indus. Ass’n v. City of San Jose,
`577 U.S. 1179 (2016) ...................................................... 14
`Campinha-Bacote v. Regents of the Univ.
`of Mich.,
`No. 1:15-cv-330, 2016 WL 223408
`(S.D. Ohio Jan. 19, 2016) ............................................... 13
`CCC Info. Servs., Inc. v. Maclean Hunter
`Mkt. Reps., Inc.,
`44 F.3d 61 (2d Cir. 1994) ............................................... 21
`
`
`
`
`
`IV
`
`Cases—Continued:
`
`Page(s)
`
`Cedar Point Nursery v. Hassid,
`141 S. Ct. 2063 (2021) .......................................... 8, 15, 20
`Chi., B. & Q. R. Co. v. City of Chicago,
`166 U.S. 226 (1897) ........................................................ 13
`Christy, Inc. v. United States,
`141 Fed. Cl. 641 (2019), aff’d, 971 F.3d
`1332 (Fed. Cir. 2020), cert. denied,
`141 S. Ct. 1393 (2021) .................................................... 19
`Copeland v. Machulis,
`57 F.3d 476 (6th Cir. 1995) ........................................... 26
`Dowling v. United States,
`473 U.S. 207 (1985) ........................................................ 20
`Easter House v. Felder,
`910 F.2d 1387 (7th Cir. 1990) ....................................... 26
`Elsmere Park Club, L.P. v. Town of
`Elsmere,
`542 F.3d 412 (3d Cir. 2008) ........................................... 26
`First Eng. Evangelical Lutheran Church of
`Glendale v. County of Los Angeles,
`482 U.S. 304 (1987) .................................................. 19, 20
`Fla. Prepaid Postsecondary Educ.
`Expense Bd. v. Coll. Sav. Bank,
`527 U.S. 627 (1999) ........................................................ 12
`Goldberg v. Kelly,
`397 U.S. 254 (1970) ........................................................ 18
`Gomez-Perez v. Potter,
`553 U.S. 474 (2008) ........................................................ 29
`Horne v. Dep’t of Agric.,
`576 U.S. 350 (2015) ................................................... 18-19
`
`
`
`
`
`
`
`V
`
`Cases—Continued:
`
`Page(s)
`
`James v. Campbell,
`104 U.S. 356 (1881) .................................................. 18, 19
`Jim Olive Photography v. Univ. of
`Hous. Sys.,
`624 S.W.3d 764 (Tex. 2021), cert. denied,
`142 S. Ct. 1361 (2022) .......................................... 8, 24, 25
`Knick v. Township of Scott,
`139 S. Ct. 2162 (2019) .................... I, 2, 13, 27, 28, 29, 30
`Ladd v. Marchbanks,
`971 F.3d 574 (6th Cir. 2020), cert denied,
`141 S. Ct. 1390 (2021) .................................................... 28
`Lane v. First Nat’l Bank of Boston,
`871 F.2d 166 (1st Cir. 1989) .......................................... 21
`McKesson Corp. v. Div. of Alcoholic Beverages
`& Tobacco,
`496 U.S. 18 (1990) .......................................................... 22
`McKinney v. Pate,
`20 F.3d 1550 (11th Cir. 1994) ....................................... 26
`Me. Cmty. Health Options v. United States,
`140 S. Ct. 1308 (2020) .................................................... 29
`Nat’l Ass’n of Bds. of Pharmacy v. Bd. of
`Regents of the Univ. Sys. of Ga.,
`633 F.3d 1297 (11th Cir. 2011) ............................... 12, 13
`Nat’l Priv. Truck Council, Inc. v. Okla.
`Tax Comm’n,
`515 U.S. 582 (1995) .................................................. 22, 25
`Newsweek, Inc. v. Fla. Dep’t of Revenue,
`522 U.S. 442 (1998) ........................................................ 22
`
`
`
`
`
`
`
`
`VI
`
`Cases—Continued:
`
`Page(s)
`
`Oil States Energy Servs., LLC v. Greene’s
`Energy Grp., LLC,
`138 S. Ct. 1365 (2018) .................................................... 19
`Parratt v. Taylor,
`451 U.S. 527 (1981) .................................................. 22, 25
`Pavlock v. Holcomb,
`35 F.4th 581 (7th Cir. 2022) .......................................... 28
`Pennhurst State Sch. & Hosp. v. Halderman,
`465 U.S. 89 (1984) ............................................................ 9
`Plumley v. Austin,
`574 U.S. 1127 (2015) ...................................................... 11
`Porter v. United States,
`473 F.2d 1329 (5th Cir. 1973) ....................................... 16
`Portsmouth Harbor Land & Hotel Co. v.
`United States,
`260 U.S. 327 (1922) .................................................. 15, 20
`Prac. Mgmt. Info. Corp. v. AMA,
`121 F.3d 516 (9th Cir. 1997) ......................................... 21
`Reich v. Collins,
`513 U.S. 106 (1994) ........................................................ 22
`Roth v. Pritkin,
`710 F.2d 934 (2d Cir. 1983) ........................................... 21
`Ruckelshaus v. Monsanto Co.,
`467 U.S. 986 (1984) ........................................................ 19
`Salazar-Limon v. City of Houston,
`137 S. Ct. 1277 (2017) .................................................... 11
`San Geronimo Caribe Project, Inc. v.
`Acevedo-Vila,
`687 F.3d 465 (1st Cir. 2012) .......................................... 26
`
`
`
`
`
`
`
`VII
`
`Cases—Continued:
`
`Page(s)
`
`Skatemore, Inc. v. Whitmer,
`40 F.4th 727 (6th Cir. 2022) .......................................... 31
`Sony Corp. of Am. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) .................................................. 15, 20
`Texas v. Holland,
`221 S.W.3d 639 (Tex. 2007) ............................................. 8
`United States v. Georgia,
`546 U.S. 151 (2006) .................. I, 1, 3, 6, 7, 10, 11, 12, 13
`Will v. Mich. Dep’t of State Police,
`491 U.S. 58 (1989) .......................................................... 30
`Williams v. Utah Dep’t of Corr.,
`928 F.3d 1209 (10th Cir. 2019) ........................... 9, 28, 31
`Wrotten v. New York,
`560 U.S. 959 (2010) ........................................................ 14
`Zito v. N.C. Coastal Res. Comm’n,
`8 F.4th 281 (4th Cir.), cert denied,
`142 S. Ct. 465 (2021) ................................................ 28, 31
`Constitutional Provisions, Statutes, and Rules:
`
`U.S. Const. amend XIV
`
`§ 1 ................................................................................. 3, 12
`§ 5 ..................................................................................... 30
`Tex. Const. art. I, § 17 ............................................ 7-8, 23, 25
`17 U.S.C.
`§ 106 ................................................................................. 12
`§ 511 ................................................................................. 13
`§ 511(a) .............................................................................. 3
`§ 511(b) .............................................................................. 3
`28 U.S.C. § 1498(b) .............................................................. 13
`Fed. R. Civ. P. 54(b) .............................................................. 6
`5th Cir. R. 47.5 ................................................................. 7, 11
`
`
`
`
`
`VIII
`
`
`Other Authorities:
`Copyright Remedy Clarification Act of 1990,
`Pub. L. No. 101-553, 104 Stat. 2749 .............................. 1
`Thomas F. Cotter, Do Federal Uses of
`Intellectual Property Implicate the Fifth
`Amendment?, 50 Fla. L. Rev. 529 (1998) ................... 18
`Camilla A. Hrdy & Ben Picozzi, The AIA Is Not a
`Taking: A Response to Dolin & Manta,
`72 Wash. & Lee L. Rev. 472 (2016) ............................. 19
`
`
`
`
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`No. 21-1603
` CANADA HOCKEY, L.L.C., DBA EPIC SPORTS, ET AL.,
`PETITIONERS
`v.
`TEXAS A&M UNIVERSITY ATHLETIC DEPARTMENT, ET AL.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`BRIEF IN OPPOSITION
`
`
`
`INTRODUCTION
`Two years ago, this Court held that the Copyright
`Remedy Clarification Act of 1990, Pub. L. No. 101-553,
`104 Stat. 2749 (CRCA), does not validly abrogate States’
`sovereign immunity from suits for copyright infringe-
`ment. Allen v. Cooper, 140 S. Ct. 994 (2020). That fore-
`closed petitioners’ pending CRCA claims against the
`state university in this case, so they proposed a worka-
`round. They urged that, under United States v. Georgia,
`546 U.S. 151 (2006), the CRCA still abrogates immunity
`for their claims because they are based on conduct that
`also violates the Fourteenth Amendment. The lower
`courts rejected those arguments. In an unpublished
`opinion, the Fifth Circuit held that even if Georgia offers
`a path around Allen—an assumption subject to serious
`
`(1)
`
`
`
`2
`
`doubt—petitioners could not use it because they did not
`allege actual Fourteenth Amendment violations.
`In so holding, the court of appeals did not make
`sweeping rulings about constitutional protection for in-
`tellectual property and due-process standards that clash
`with decisions from this Court and other circuits, as pe-
`titioners contend. Rather, the court correctly concluded
`that there was no taking on these facts and no due-pro-
`cess violation under this state law. Those fact-bound de-
`terminations—which are not even precedential in the
`Fifth Circuit—do not merit this Court’s attention. Nor
`does petitioners’ insistence that the Fifth Circuit’s hold-
`ing that state sovereign immunity bars their Takings
`Clause claim is inconsistent with Knick v. Township of
`Scott, 139 S. Ct. 2162 (2019). As petitioners concede—
`and every circuit to consider the question has found—
`Knick did not address sovereign immunity. The petition
`should be denied.
`
`STATEMENT
`1. In the CRCA, Congress attempted to abrogate
`
`States’ sovereign immunity from suits for copyright in-
`fringement:
`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 Amend-
`ment of the Constitution of the United States or
`under any other doctrine of sovereign immunity,
`from suit in Federal court by any person, includ-
`ing any governmental or nongovernmental entity,
`for a violation of any of the exclusive rights of a
`copyright owner . . . or for any other violation un-
`der this title.
`
`
`
`
`
`3
`
`17 U.S.C. § 511(a). The CRCA further subjected States
`to the same remedies that would be available against an-
`yone else, including actual and statutory damages. Id.
`§ 511(b).
`In Allen v. Cooper, the Court held that this attempted
`
`abrogation was invalid. 140 S. Ct. at 1001-07. Among
`other reasons, it could not be justified as an exercise of
`Congress’s power to enforce the protections of the Four-
`teenth Amendment. Id. at 1003-07. That was so because
`the CRCA is not designed “to redress or prevent uncon-
`stitutional conduct”; rather, it simply “provide[s] a uni-
`form remedy for statutory infringement.” Id. at 1007 (ci-
`tation and quotation marks omitted). And that “indis-
`criminate scope” could not be salvaged as a permissible
`approach to deter Fourteenth Amendment violations un-
`der the Court’s “congruence and proportionality” test.
`Id. (citations and quotation marks omitted). The CRCA
`flunked that test because the evidence of copyright in-
`fringement by States that involved constitutional harm
`was “exceedingly slight.” Id.
` At oral argument in Allen, North Carolina’s counsel
`suggested that a State could still be sued under the
`CRCA in some circumstances under the reasoning of
`United States v. Georgia. Transcript of Oral Argument
`at 39-40, Allen, 140 S. Ct. 994 (No. 18-877). In Georgia,
`the Court held that a statutory abrogation of immunity
`is valid as applied to a particular claim insofar as the
`“same conduct” that violated the statute “independently
`violated the provisions of § 1 of the Fourteenth Amend-
`ment.” 546 U.S. at 157. But the petitioner in Allen did not
`preserve a Georgia argument, see Transcript, supra, at
`31-32, and the Court’s opinion did not mention Georgia.
`
`
`
`
`
`4
`
`2. For the jurisdictional challenges at issue here, the
`
`courts below accepted as true the following factual alle-
`gations from petitioners’ pleadings. Pet. App. 2.
` Petitioner Michael J. Bynum is a writer and owner of
`a publishing company, petitioner Canada Hockey L.L.C.
`d/b/a Epic Sports. Id. While working on a book about
`Texas A&M University’s football program, he learned of
`the University’s “12th Man” tradition. Id. That tradition
`arose from a 1922 football game in which squad player E.
`King Gill changed into uniform and stood on the sideline,
`ready to enter the game in case his injured team ran out
`of players. Id. at 2-3. Bynum hired another writer, Whit
`Canning, to draft a short biography of Gill, which Bynum
`planned to use as his book’s first chapter. Id. at 4.
` While researching the book, Bynum consulted per-
`sonnel in the University’s Athletic Department, includ-
`ing Brad Marquardt and his supervisor, Alan Cannon.
`Id. at 3. In 2010, Bynum asked Marquardt for help find-
`ing photographs for the book and sent him a draft of the
`book for that purpose. Id. at 4. The draft contained
`Bynum’s name and copyright information. Id. The Gill
`biography was the opening chapter of the draft book. Id.
`
`In 2014, the Department asked its staff to find infor-
`mation on Gill to promote the 12th Man story and sup-
`port fundraising. Id. Marquardt allegedly directed his
`secretary to retype the Gill biography that Bynum sent
`in 2010, remove references to Bynum or Epic Sports, re-
`vise the byline to read “by Whit Canning, special to
`Texas A&M Athletics,” and change the title. Id. at 4. He
`then allegedly gave the retyped biography to Cannon
`and Lane Stephenson, the University’s media director.
`Id. at 4-5. The Department published the biography’s
`contents as an article on its website. Id. at 5. The Depart-
`ment and the University tweeted links to the article on
`
`
`
`
`
`5
`
`Twitter. Id. The article was also featured in the Univer-
`sity’s e-newsletter. Id.
` Three days later, Bynum emailed Marquardt and
`Cannon requesting removal of the article from the web-
`site. Id. Later that day, Marquardt responded that the
`article had been removed and apologized for the “mix-
`up.” Id. He explained that he had found a paper copy of
`the biography in his office but “had no recollection of its
`origin,” so he asked his secretary to “key it in for [him].”
`Dkt 15, Ex. N at 2.1 He added that he later provided the
`retyped version to a colleague who was looking for infor-
`mation on the 12th Man. Id. Marquardt asked Bynum if
`the Department could repost the biography as an ex-
`cerpt to his forthcoming book. Id. Bynum said he was
`willing to work with Marquardt on that idea, but he ulti-
`mately decided against it. Id. ¶ 59, Ex. N at 1.
` Petitioners allege that the brief posting and promo-
`tion of the article led to fans forwarding e-mail versions
`of the article and reposting it in online forums. Dkt 15
`¶ 60. That allegedly “destroyed” the market for the en-
`tire book, which remains unpublished. Id. ¶¶ 5, 60.
`
`3. In 2017, petitioners sued the Department, Mar-
`quardt, Cannon, and Stephenson. Pet. App. 57. They as-
`serted several claims, including direct copyright in-
`fringement under the CRCA and takings claims under
`the United States and Texas constitutions. Id. at 115.
` The defendants moved to dismiss all claims based on
`sovereign and qualified immunity or for failure to state a
`claim. Id. The district court granted the motions as to all
`defendants except Marquardt. Id. at 150. Petitioners
`moved for reconsideration. Id. at 58. The court stayed
`
`1 Respondents adopt petitioners’ convention of referring to their
`First Amended Complaint as “Dkt 15” from the district court’s
`docket. Pet. 5 n.1.
`
`
`
`
`
`6
`
`proceedings on the motion pending this Court’s decision
`in Allen v. Cooper. Id. After that decision, the court de-
`clined to reconsider the dismissal of the copyright claims
`but ordered additional briefing on the takings claims. Id.
`at 58-59. Petitioners then filed a second motion for recon-
`sideration, which was denied. Id. at 59.
`
`In denying the second motion, the district court reaf-
`firmed its earlier rulings. It held that the Department is
`not a distinct legal entity with the capacity to be sued, id.
`at 62, 123-25, but that substituting the University as a
`defendant would be pointless because sovereign immun-
`ity bars the claims against it, id. at 62-63, 125-26. Specif-
`ically, the court rejected petitioners’ argument that, af-
`ter Allen, the CRCA still abrogates immunity for their
`claims under the reasoning of United States v. Georgia
`because they alleged infringing conduct that also violates
`the Fourteenth Amendment (an uncompensated taking
`and deprivation of property without due process). Id. at
`65-74. And the court held that, under controlling prece-
`dent, immunity bars claims under the federal and Texas
`Takings Clauses against a state entity in federal court.
`Id. at 74-82. Finally, the court reiterated that Cannon
`and Stephenson were entitled to qualified immunity and,
`regardless, petitioners failed to state plausible claims
`against them. Id. at 96-99, 144-50.
` The court severed the Department, Cannon, and Ste-
`phenson from the case and entered a final judgment in
`their favor under Federal Rule of Civil Procedure 54(b).
`Id. at 59-60. The copyright claims against Marquardt re-
`main pending for trial. Id. at 107.
`4. Petitioners appealed. Id. at 7. In its initial opinion,
`
`the Fifth Circuit affirmed. Id. at 31. Petitioners filed a
`petition for rehearing en banc, which was denied with no
`reported poll or dissent. Id. at 2. At the same time, the
`
`
`
`
`
`7
`
`court withdrew its initial opinion and issued a substitute
`opinion, again affirming the district court’s judgment. Id.
`Like the withdrawn initial opinion, the substitute opinion
`is unpublished and therefore not Fifth Circuit precedent.
`Id. at 1 n.* (citing 5th Cir. R. 47.5).
`
`a. In the substitute opinion, the court first examined
`the Department’s capacity to be sued. Id. at 9. Applying
`the Fifth Circuit’s “arm of the state” test, the court con-
`cluded that the Department is part of Texas A&M Uni-
`versity, a state entity, and as such enjoys state sovereign
`immunity. Id. at 9-16.
`
`b. The court then addressed petitioners’ argument
`that, under Georgia, the CRCA validly abrogates sover-
`eign immunity for their claims because the alleged in-
`fringement
`independently violated the Fourteenth
`Amendment. Id. at 16-19. The court held that it “need not
`decide” whether a CRCA claim fits within Georgia’s as-
`applied abrogation framework because, “even assuming
`it does,” petitioners failed to allege conduct by the Uni-
`versity that violates the Fourteenth Amendment. Id. at
`20.
` First, the court explained that to state a due-process
`violation there must be an “intentional” deprivation of
`property for which there are no “adequate post-depriva-
`tion state remedies.” Id. (citing Allen, 140 S. Ct. at 1004).
`Here, the court found petitioners had sufficiently alleged
`intentional conduct. Id. But the claim failed because pe-
`titioners had a meaningful state remedy via a takings
`claim under the Texas Constitution. Id. at 20-21. The
`court noted that Texas’s Takings Clause is textually
`“[m]ore expansive” than its federal analogue, providing
`that “‘[n]o person’s property shall be taken, damaged, or
`destroyed for or applied to public use without adequate
`compensation being made.’” Id. at 21 (quoting Tex.
`
`
`
`
`
`8
`
`Const. art. I, § 17) (emphases added). Moreover, the
`court noted, “[t]he Clause itself waives sovereign immun-
`ity for a valid takings claim brought in state court.” Id.
`(citing Texas v. Holland, 221 S.W.3d 639, 643 (Tex.
`2007)). That remedy, the court added, was not rendered
`inadequate by the Texas Supreme Court’s recent deci-
`sion in Jim Olive Photography v. University of Houston
`System, 624 S.W.3d 764 (Tex. 2021), cert. denied, 142 S.
`Ct. 1361 (2022), where the court held that a state univer-
`sity’s single act of copyright infringement did not consti-
`tute a “per se taking”—i.e., a physical appropriation of
`property that categorically requires compensation—but
`never addressed whether that act was any other form of
`taking. Pet. App. 21.
`Second, the court rejected petitioners’ federal taking
`
`theory around Allen. Id. at 22. At the outset, the court
`observed that, unlike with the Due Process Clause, this
`Court has not addressed whether copyrights are a prop-
`erty interest protected by the Takings Clause. Id. But
`again, the court determined that it “need not decide this
`issue” because petitioners had not plausibly alleged a
`taking in any event. Id.
` To reach that conclusion, the court relied on this
`Court’s recent reaffirmation of the “‘basic distinction’
`[that] exists between ‘individual torts’ and ‘appropria-
`tions of a property right.’” Id. (quoting Cedar Point
`Nursery v. Hassid, 141 S. Ct. 2063, 2078 (2021)). That
`distinction, the court explained, does not describe two
`mutually exclusive categories; rather, it reflects “the
`principle that not all torts (i.e., infringements) rise to the
`level of a taking.” Id. at 23. Here, the court found that
`petitioners “have failed to meet their burden that the
`purported infringement amounts to a constitutional tak-
`ing.” Id. It reasoned that the alleged infringement did
`
`
`
`
`
`9
`
`not “rise to th[at] level” because the University publicly
`displayed the Gill biography for only four days and did
`not continue or repeat that act. Id. at 23-24. So, the court
`concluded that “in these circumstances” the CRCA claim
`based on a federal taking fails. Id. at 24.
`
`c. Finally, the court rejected petitioners’ alternative
`argument that state sovereign immunity is abrogated for
`their takings claims brought directly under the United
`States and Texas constitutions. Id. at 24-25.
` On the federal takings claim, the court adhered to re-
`cent Fifth Circuit precedent confirming that state sover-
`eign immunity bars such claims. Id. at 24 (citing Bay
`Point Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d
`454, 457 (5th Cir. 2019), cert. denied, 140 S. Ct. 2566
`(2020)). The court acknowledged the Tenth Circuit’s pro-
`viso that this bar exists only “‘as long as a remedy is
`available in state court.’” Id. (quoting Williams v. Utah
`Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019)). But
`that qualifier did not help petitioners because—as the
`court had just concluded—they could pursue a state tak-
`ings claim in state court. Id.
` On the state takings claim, the court cited the settled
`rule that sovereign immunity bars state-law claims
`against a State in federal court. Id. at 24-25 (citing
`Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
`89, 119-21 (1984)). And the immunity waiver in Texas’s
`Takings Clause did not overcome that bar, the court
`added, because it applies only in state court. Id. at 25.2
`
`
`2 The court also affirmed the dismissal of the claims against
`Cannon and Stephenson. Pet. App. 25-27. Petitioners do not seek
`review of those rulings.
`
`
`
`
`
`10
`
`REASONS FOR DENYING THE PETITION
`I. Petitioners’ Complaint About the Fact-Bound
`Application of Settled Legal Rules Does Not
`Merit This Court’s Review.
`Petitioners’ primary argument (e.g., at 15) for certio-
`rari review is that the court of appeals “held the CRCA
`unconstitutional as applied to [their] case.” But by the
`time the court ruled, this Court had already set the
`boundaries of the constitutional and unconstitutional ap-
`plications of the CRCA. All the court of appeals did was
`apply this Court’s rule to the particular factual allega-
`tions in petitioners’ pleadings. Its resulting unpublished
`decision is unworthy of review.
`When the court of appeals decided this case, the
`Court’s decisions in Allen and Georgia already covered
`the waterfront on the constitutionality of the CRCA’s po-
`tential applications. Again, in Allen the Court held that
`the CRCA generally does not constitutionally abrogate
`state sovereign immunity for claims under that statute.
`140 S. Ct. at 1001-07. Petitioners proposed that, under
`Georgia, the CRCA may still constitutionally abrogate
`immunity for a subset of claims: those based on conduct
`that violates both the statute and the Fourteenth
`Amendment. Pet. App. 17-19. The court of appeals as-
`sumed without deciding that petitioners were right, id.
`at 20, and it correctly recited Georgia’s holding, id. at 17-
`18. But petitioners’ claims failed under Georgia, the
`court concluded, because they did not allege actual viola-
`tions of the Fourteenth Amendment. Id. at 20-24. That
`left petitioners’ claims in the class already covered by Al-
`len—i.e., claims against a State to which the CRCA does
`not constitutionally apply.
`At bottom, then, petitioners are not complaining that
`the court of appeals “held the CRCA unconstitutional . . .
`
`
`
`
`
`11
`
`[a]s in Allen.” Pet. 15. Instead, they are complaining that
`the court misapplied takings and due-process precedent
`to these facts in rejecting their Georgia argument, leav-
`ing them subject to Allen’s pre-existing holding on the
`CRCA’s constitutionality. That sort of complaint does
`not merit review. Sup. Ct. R. 10; see also Salazar-Limon
`v. City of Houston, 137 S. Ct. 1277, 1278 (2017) (Alito, J.,
`concurring in the denial of certiorari) (“[W]e rarely grant
`review where the thrust of the claim is that a lower court
`simply erred in applying a settled rule of law to the facts
`of a particular case.”).
` Moreover, this case is a poor vehicle to address a pur-
`ported misapplication of settled law because the decision
`below is unpublished and, therefore, not precedent in the
`Fifth Circuit. Pet. App. 1 n.*. The Court typically does
`not review unpublished, non-precedential decisions be-
`cause they do not reflect a circuit’s definitive position on
`an issue. See Plumley v. Austin, 574 U.S. 1127, 1131-32
`(2015) (Thomas, J., dissenting from the denial of certio-
`rari) (noting that an unpublished opinion “lacks prece-
`dential force,” which “preserves [a circuit’s] ability to
`change course in the future”). That is the case here. By
`rule, the panel’s decision cannot preclude a party from
`prevailing on a CRCA claim under Georgia in the future.
`5th Cir. R. 47.5. Nor is the decision grounded in any Fifth
`Circuit precedent that would have the same effect: the
`panel rejected petitioners’ as-applied abrogation argu-
`ments because it found no takings violation “in these cir-
`cumstances” and no due-process violation based on its
`review of Texas law. Pet. App. 21, 24. Because another
`Fifth Circuit panel may yet decide these issues differ-
`ently, the Court should deny review.
`
`
`
`
`
`12
`II. To Reach the First Two Questions Presented
`Would Require the Court To Decide a Substantial
`Antecedent Question Not Addressed Below.
`This case is a poor vehicle to decide the CRCA-re-
`lated questions for a second reason. To reach those ques-
`tions, the Court would first have to resolve an antecedent
`question not addressed below: whether a CRCA claim
`fits within Georgia’s as-applied abrogation framework in
`the first place.
` As-applied abrogation under Georgia requires that
`the “same conduct” that violated the abrogating statute
`also “independently violated the provisions of § 1 of the
`Fourteenth Amendment.” 546 U.S. at 157. The court of
`appeals “assum[ed]” that a CRCA violation could meet
`that requirement, proceeded to analyze whether peti-
`tioners had alleged actual takings and procedural-due-
`process violations, and concluded that they had not. Pet.
`App. 20. The first and second questions presented chal-
`lenge those conclusions. Pet. i. So those questions, too,
`rest on the assumption that the “same conduct” that vio-
`lates the CRCA may also “independently violate” the
`Fourteenth Amendment. See id. at 15 (asserting that the
`alleged “copyright violations entail actual constitutional
`violations of the Due Process and Takings Clauses”).
` That assumption is suspect. As the Eleventh Circuit
`has explained, a CRCA violation arguably does not align
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