No.

_________
================================================================================================================

In The
Supreme Court of the United States
---------------------------------♦---------------------------------

CANADA HOCKEY, L.L.C., doing business

as EPIC SPORTS; MICHAEL J. BYNUM,

Petitioners,
v.

TEXAS A&M UNIVERSITY

ATHLETIC DEPARTMENT; ALAN CANNON;
LANE STEPHENSON, In His Individual Capacity,

Respondents.

---------------------------------♦---------------------------------

On Petition For Writ Of Certiorari

To The United States Court Of Appeals
For The Fifth Circuit

---------------------------------♦---------------------------------

PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦---------------------------------

RALPH OMAN ERNEST A. YOUNG

2207 Garrity Road Counsel of Record
Saint Leonard, MD 20685 3208 Fox Terrace Dr.
Apex, NC 27502
(919) 360-7718
[email protected]

Counsel for Petitioners

June 15, 2022

================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
 i

QUESTIONS PRESENTED

After this Court’s decision in Allen v. Cooper, 140

S. Ct. 994 (2020), damages remedies for copyright in-
fringements by state governments depend on either
showing an actual constitutional violation (as well as
a statutory one) under United States v. Georgia, 546
U.S. 151 (2006), or—perhaps—asserting a free-stand-
ing takings claim under the Fifth and Fourteenth
Amendments. The Fifth Circuit’s categorical rejection
of both these avenues in this case raises three ques-
tions:
1. Can copyright infringement constitute an actual
constitutional violation on a takings theory or, as
the Fifth Circuit held, is infringement never a tak-
ing?
2. Is a hypothetical state remedy that state courts
have never recognized sufficiently “clear and cer-
tain,” Nat’l Private Truck Council, Inc. v. Okla-
homa Tax Comm’n, 515 U.S. 582, 587 (1995), to
prevent an actual due process violation?
3. Does state sovereign immunity bar takings claims
altogether, notwithstanding this Court’s holding
in Knick v. Township of Scott, 139 S. Ct. 2162
(2019), that the Takings Clause mandates a com-
pensatory remedy in federal court?
 ii

PARTIES TO THE PROCEEDING AND RULE

29.6 CORPORATE DISCLOSURE STATEMENT

Petitioners are Canada Hockey, L.L.C., d/b/a Epic

Sports, and Michael J. Bynum. No parent corporation
or publicly held company owns more than 10% of Can-
ada Hockey, L.L.C.
Respondent is Texas A&M University.

RELATED CASES
• Canada Hockey, L.L.C. d/b/a Epic Sports, et al. v.
Texas A&M University Athletic Dept., et al., Cause
No. 4:17-cv-181, in the United States District
Court for the Southern District of Texas. Order
granting motion to dismiss entered as to all but
Brad Marquardt on Sept. 4, 2020. Dismissed de-
fendants were severed into new docket, Case No.
4:20-CV-3121, and final judgment entered under
Rule 54(b). See App. 59-60.
• Canada Hockey, L.L.C. d/b/a Epic Sports and Mi-
chael J. Bynum v. Texas A&M University Athletic
Dept., No. 20-20503, in the United States Court of
Appeals for the Fifth Circuit. Order denying re-
hearing, Feb. 14, 2022.
• Canada Hockey, L.L.C. d/b/a Epic Sports and Mi-
chael J. Bynum v. Brad Marquardt, No. 20-20530,
in the United States Court of Appeals for the Fifth
Circuit. Dismissed for lack of jurisdiction, Sept. 8,
2021.
 iii

TABLE OF CONTENTS
Page
Questions Presented ............................................ i
Parties to the Proceeding and Rule 29.6 Corpo-
rate Disclosure Statement ............................... ii
Related Cases ...................................................... ii
Table of Authorities ............................................. vi
Opinions Below .................................................... 1
Jurisdiction .......................................................... 1
Pertinent Constitutional and Statutory Provi-
sions .................................................................. 1
Statement of the Case ......................................... 3
A. Legal Framework ...................................... 3
B. Factual Background .................................. 5
C. Proceedings Below...................................... 9
Reasons for Granting the Writ ............................ 12
I. The Fifth Circuit held the CRCA unconsti-
tutional as applied to this case ................. 14
II. The Fifth Circuit contradicted this Court’s
holdings—and created tension with other
circuits—by eliminating Takings Clause
protection for copyrights ........................... 16
A. The Fifth Circuit effectively elimi-
nated Takings Clause protection for
copyrights by holding that copyright
infringement cannot effect a taking ...... 17
 iv

TABLE OF CONTENTS—Continued
Page
B. The Fifth Circuit’s ruling conflicts
with this Court and other circuits that
have recognized that the Takings
Clause protects intellectual property
rights ................................................... 18
III. The Fifth Circuit wrongly held that proce-
dural due process claims can be defeated
by hypothetical post-deprivation remedies
never recognized by the state courts ......... 21
IV. The Fifth Circuit’s holding that state im-
munity bars federal takings claims contra-
dicts this Court’s takings jurisprudence and
worsens confusion among the circuits ....... 26
A. Those circuits imposing state sover-
eign immunity as a flat bar to federal
takings claims violate the Fifth Amend-
ment as interpreted in Knick .............. 29
B. Those circuits allowing state takings
remedies to substitute for a federal
remedy violate Knick’s insistence that
federal takings plaintiffs can proceed
directly to federal court ....................... 30
C. Even if Knick does not control, the
Fifth Circuit’s holding creates confu-
sion as to the certainty of a state-court
remedy necessary for a state to assert
immunity against a federal takings
claim .................................................... 34
 v

TABLE OF CONTENTS—Continued
Page
V. Barring any means to vindicate the CRCA
under Georgia leaves copyright holders at
the mercy of state infringers ..................... 36
Conclusion............................................................ 38

APPENDIX
Court of Appeals Opinion on Rehearing filed
February 14, 2022 ............................................ App. 1
Court of Appeals Judgment on Rehearing filed
February 14, 2022 .......................................... App. 28
Court of Appeals Opinion filed September 8,
2021 ................................................................ App. 30
District Court Order filed September 4, 2020..... App. 57
 vi

TABLE OF AUTHORITIES
Page
CASES
Alden v. Maine, 527 U.S. 706 (1999) ...........................30
Allen v. Cooper, 140 S. Ct. 994 (2020) ................ passim
Bay Point Properties, Inc. v. Mississippi Trans-
portation Comm’n, 937 F.3d 454 (5th Cir.
2019) ............................................................ 27, 28, 34
CCC Info. Servs., Inc. v. Maclean Hunter Market
Reports, Inc., 44 F.3d 61 (2d Cir. 1994) ...................21
Carbice Corp. of America v. American Patents
Dev. Corp., 283 U.S. 27 (1931) .................................19
Citadel Corp. v. P.R. Highway Auth., 695 F.2d 31
(1st Cir. 1982) ..........................................................27
Copeland v. Machulis, 57 F.3d 476 (6th Cir.
1995) ........................................................................25
DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir.
2004) ............................................................ 27, 28, 35
Easter House v. Felder, 910 F.2d 1387 (7th Cir.
1990) ........................................................................25
Elsmere Park Club, L.P. v. Town of Elsmere, 542
F.3d 412 (3d Cir. 2008) ............................................25
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S.
304 (1987) ........................................ 13, 20, 26, 29, 30
Florida Prepaid Postsecondary Educ. Expense
Bd. v. College Savings Bank, 527 U.S. 627
(1999) .........................................................................4
Garrett v. Illinois, 612 F.2d 1038 (7th Cir. 1980) .......27
 vii

TABLE OF AUTHORITIES—Continued
Page
Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50
(Tex. 2006) ...............................................................24
Hearts Bluff Game Ranch, Inc. v. State, 381
S.W.3d 468 (Tex. 2021) ............................................24
Heck v. Humphrey, 512 U.S. 477 (1994) .....................31
Home Telephone & Telegraph Co. v. City of Los
Angeles, 227 U.S. 278 (1913) ...................................33
Horne v. Dept. of Agriculture, 576 U.S. 350
(2015) ................................................................. 18, 19
Hutto v. S.C. Ret. Sys., 773 F.3d 536 (4th Cir.
2014) ............................................................ 27, 31, 32
James v. Campbell, 104 U.S. 356 (1882)............... 19, 20
Jim Olive Photography v. Univ. of Houston, 624
S.W.3d 764 (Tex. 2021) ................................ 23, 24, 34
John G. & Marie Stella Kenedy Mem’l Found. v.
Mauro, 21 F.3d 667 (5th Cir. 1994) .........................27
Knick v. Township of Scott, 139 S. Ct. 2162
(2019) ............................................................... passim
Ladd v. Marchbanks, 971 F.3d 574 (6th Cir.
2020) ........................................................................34
Lane v. First Nat’l Bank of Boston, 871 F.2d 166
(1st Cir. 1989) ..........................................................21
Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992) ......................................................26
McKesson Corp. v. Div. of Alcoholic Beverages &
Tobacco, 496 U.S. 18 (1990) ......................... 22, 34, 35
 viii

TABLE OF AUTHORITIES—Continued
Page
McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) .......25
McNeese v. Bd. of Ed. for Community Unit Sch.
Dist. 187, 373 U.S. 668 (1963) .................................33
Nat’l Private Truck Council, Inc. v. Oklahoma
Tax Comm’n, 515 U.S. 582 (1995) ......... 22, 25, 34, 35
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, 24, 25, 32
Patsy v. Bd. of Regents, 457 U.S. 496 (1982)...............33
Porter v. United States, 473 F.2d 1329 (5th Cir.
1973) ............................................................ 16, 17, 18
Practice Mgt. Info. Corp. v. American Medical
Ass’n, 121 F.3d 516 (9th Cir. 1997) .........................21
Reich v. Collins, 513 U.S. 106 (1994) .............. 31, 34, 35
Roth v. Pritikin, 710 F.2d 934 (2d Cir. 1983) ........ 20, 21
Ruckelshaus v. Monsanto Co., 467 U.S. 986
(1984) .......................................................................19
San Geronimo Caribe Project, Inc. v. Acevedo-
Vila, 687 F.3d 465 (1st Cir. 2012) ............................25
San Remo Hotel, L.P. v. City and Cty. of San
Francisco, 545 U.S. 323 (2005) ................................32
United States v. Georgia, 546 U.S. 151 (2006) ... passim
United States v. Smith, 686 F.2d 234 (5th Cir.
1982) ........................................................................18
Williams v. Utah Dep’t of Corr., 928 F.3d 1209
(10th Cir. 2019)...................................... 27, 28, 34, 35
 ix

TABLE OF AUTHORITIES—Continued
Page
Williamson Cty. Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172
(1985) ........................................................... 29, 31, 32
Zito v. North Carolina Coastal Res. Comm’n, 8
F.4th 281 (4th Cir. 2021) ................................... 34, 35

CONSTITUTIONAL PROVISIONS
TEXAS CONST., art. I, § 17 ............................................24
U.S. CONST. amend. V ......................................... passim
U.S. CONST. amend. XI .................................... 1, 2, 3, 27
U.S. CONST. amend. XIV ..................................... passim
U.S. CONST. art. I, § 8 ....................................................1
U.S. CONST. art. I, § 9, cl. 2 ..........................................26

STATUTES
17 U.S.C. § 301 ............................................................37
17 U.S.C. § 501(a) ..........................................................3
17 U.S.C. § 511 ..............................................................2
17 U.S.C. § 511(a) ...................................................... 2, 3
17 U.S.C. § 511(b) .................................................. 2, 3, 4
17 U.S.C. § 1202 et seq. ...............................................10
17 U.S.C. § 1202(c) ........................................................7
28 U.S.C. § 1254(1) ........................................................1
28 U.S.C. § 1338 ..........................................................37
 x

TABLE OF AUTHORITIES—Continued
Page
42 U.S.C. § 1983 ..........................................................31
Copyright Remedy Clarification Act of 1990,
Pub. L. No. 101-553, 104 Stat. 2749 ............... passim
Digital Millennium Copyright Act, 17 U.S.C.
§ 1202 et seq.............................................................10

RULES
Fed. R. Civ. P. 54(b) .....................................................10

OTHER AUTHORITIES
Richard H. Fallon, Jr., & Daniel J. Meltzer, New
Law, Non-Retroactivity, and Constitutional
Remedies, 104 Harv. L. Rev. 1731 (1991) ................26
Vicki C. Jackson, The Supreme Court, the Elev-
enth Amendment, and State Sovereign Im-
munity, 98 Yale L. J. 1 (1988) ..................................26
Thomas W. Merrill, The Landscape of Constitu-
tional Property, 86 Va. L. Rev. 885 (2000)...............26
Leonard Ratner, Congressional Power over the
Appellate Jurisdiction of the Supreme Court,
109 U. Pa. L. Rev. 157 (1960)...................................14
The Sound of Music (Robert Wise, dir. 1965) .............12
U.S. Copyright Office, A Report of the Register of
Copyrights (June 1988), available at http://
files.eric.ed.gov/fulltext/ED306963.pdf ..................37
 xi

TABLE OF AUTHORITIES—Continued
Page
U.S. Copyright Office, Copyright and State Sov-
ereign Immunity—A Report of the Register of
Copyrights (Aug. 2021)............................................36
U.S. Patent & Trademark Office, Intellectual
Property and the U.S. Economy (2019) ...................37
 1

OPINIONS BELOW
The opinion of the U.S. Court of Appeals for the
Fifth Circuit on Petition for Rehearing is reproduced
at App. 1-29. The Fifth Circuit’s original order is repro-
duced at App. 30-56. The district court’s opinion and
order is reported at 484 F.Supp.3d 448 and reproduced
at App. 57-107.
---------------------------------♦---------------------------------

JURISDICTION
The Fifth Circuit denied rehearing on February
14, 2022. On May 4, 2022, Justice Alito extended the
time for filing a petition for a writ of certiorari to and
including June 15, 2022. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------

PERTINENT CONSTITUTIONAL
AND STATUTORY PROVISIONS
U.S. CONST. art. I, § 8: “The Congress shall have
power . . . To promote the progress of science and use-
ful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writ-
ings and discoveries.”
U.S. CONST. amend. V: “nor shall private property
be taken for public use, without just compensation.”
U.S. CONST. amend. XI: “The judicial power of the
United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against
 2

one of the United States by citizens of another state, or

by citizens or subjects of any foreign state.
U.S. CONST. amend. XIV, § 1: “nor shall any state
deprive any person of life, liberty, or property, without
due process of law. . . .”
U.S. CONST. amend. XIV, § 5: “The Congress shall
have power to enforce, by appropriate legislation, the
provisions of this article.”
Copyright Remedy Clarification Act of 1990, Pub.
L. No. 101-553, 104 Stat. 2749, codified at 17 U.S.C.
§ 511:
(a) In General.—
Any State, any instrumentality of a State,
and any officer or employee of a State or in-
strumentality 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 doc-
trine of sovereign immunity, from suit in Fed-
eral 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 122, for importing copies of phono-
records in violation of section 602, or for any
other violation under this title.
(b) Remedies.—
In a suit described in subsection (a) for a vio-
lation described in that subsection, remedies
(including remedies both at law and in equity)
 3

are available for the violation to the same ex-

tent as such remedies are available for such a
violation in a suit against any public or pri-
vate entity other than a State, instrumental-
ity of a State, or officer or employee of a State
acting in his or her official capacity. Such rem-
edies include impounding and disposition of
infringing articles under section 503, actual
damages and profits and statutory damages
under section 504, costs and attorney’s fees
under section 505, and the remedies provided
in section 510.
---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. Legal Framework
Enacted in response to concerns about copyright
infringements by state government entities, the Copy-
right Remedy Clarification Act of 1990 (“CRCA”), Pub.
L. No. 101-553, 104 Stat. 2749, abrogated the States’
sovereign immunity from suit for copyright infringe-
ment. The CRCA provides that “[a]ny State, any in-
strumentality 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 im-
munity, from suit in Federal court by any person . . . for
a violation of any of the exclusive rights of a copyright
owner” or for “any other violation under” federal copy-
right law. 17 U.S.C. § 511(a); see 17 U.S.C. § 501(a). It
also provides that in suits against States “remedies . . .
 4

are available . . . to the same extent as such remedies

are available for such a violation in a suit against any
public or private entity other than a State.” 17 U.S.C.
§ 511(b).
This Court has recognized two distinct ways in
which Congress, acting pursuant to Section 5 of the
Fourteenth Amendment, may abrogate state sovereign
immunity. First, Congress may abrogate sovereign im-
munity prophylactically for any violation of a particu-
lar federal statute, even as to conduct that “is not itself
unconstitutional,” if the abrogation is sufficiently tai-
lored to “remedy or prevent” conduct that infringes
the Fourteenth Amendment’s substantive prohibitions.
Florida Prepaid Postsecondary Educ. Expense Bd. v.
College Savings Bank, 527 U.S. 627, 638-39 (1999).
There must be “a congruence and proportionality be-
tween the injury to be prevented or remedied and the
means adopted to that end.” Id. at 639.
Second, under United States v. Georgia, 546 U.S.
151 (2006), a statutory abrogation of state sovereign
immunity is valid in any case in which the same con-
duct alleged to violate the federal statute is also al-
leged to violate the Fourteenth Amendment itself. See
Georgia, 546 U.S. at 159 (Congress has the undoubted
power to “creat[e] private remedies against the States
for actual violations” of the Fourteenth Amendment).
Critically, a plaintiff invoking “case-by-case” abroga-
tion may sue for actual constitutional violations with-
out regard to whether a statute would pass muster as
a prophylactic abrogation of immunity. Id. at 158-59.
 5

In Allen v. Cooper, 140 S. Ct. 994 (2020), the Su-

preme Court explained that copyrights “are a form of
property” under the Fourteenth Amendment and that
an “intentional, or at least reckless” copyright violation
may violate due process rights. Id. at 1004-05. But the
Supreme Court ruled that the CRCA failed the “con-
gruence and proportionality” test and therefore could
not be considered valid prophylactic legislation that
stripped the States of sovereign immunity for each and
every copyright violation. See id. Allen did not resolve
any claim of case-by-case abrogation.

B. Factual Background1
Petitioner Michael Bynum has written and edited
over 100 sports-related books, including books on fa-
mous Texas sports teams and players. Complaint
¶¶ 16-17. Based on his research, Bynum became fasci-
nated with the story of the “12th Man” of the Texas
A&M University (“TAMU”) football team. Id. ¶ 21.
According to the story, in 1922 a man named E. King
Gill was a “squad player” for that team—i.e., a player
who helps the members of the team practice but does
not play in games. Id. ¶ 21. During one high-stakes
game in which Gill was in the audience, member after
member of the TAMU team suffered injuries that
forced them to the sidelines. Gill came down from the
bleachers and suited up—ready to step in at a

1
The facts set forth here are alleged in plaintiffs’ First
Amended Complaint (“Complaint”), Dkt 15. “Dkt” refers to the
district court docket in Case 4:17-cv-00181.
 6

moment’s notice. Id. When the TAMU “Aggies” won the

game in an extraordinary upset, Gill was the only man
left on the team’s bench. Complaint Ex. C, at 22. His
willingness to play has served as a symbol of unity and
loyalty for generations of TAMU students. Id. at ¶ 21.
Bynum set out to develop a book that would tell E.
King Gill’s full story. Complaint ¶ 24. After conducting
substantial background research, Bynum commis-
sioned Whit Canning, a well-known sportswriter, to re-
view Bynum’s research and draft a biography of Gill
on a work-for-hire basis. Id. ¶¶ 19, 24, 31. Over the
next decade and a half, Bynum devoted over 1,500
hours to researching, writing, and editing the book, in-
tending the Biography to be its cornerstone. Id. ¶¶ 24,
26. He planned to publish the book in the fall of 2014,
to coincide with the 75th anniversary of TAMU’s 1939
championship season. Id. ¶ 32.2
In 2000 and 2001, Bynum visited the TAMU Ath-
letic Department and met with Brad Marquardt, the As-
sociate Director of Media Relations, and Alan Cannon,
an Assistant Director for Media Relations. Complaint
¶ 25. Bynum informed them of his work developing the
12th Man book and asked them to help confirm some
facts about Gill’s tenure at TAMU. Id. In June 2010,
Bynum emailed Marquardt seeking photographs for

2
By agreement with Bynum, Epic Sports (the publishing im-
print of Petitioner Canada Hockey, L.L.C.) owns the exclusive
rights to publish the book and the Biography. Complaint ¶ 71.
The book containing the Biography is registered with the U.S.
Copyright Office and has been assigned U.S. Copyright Registra-
tion Nos. TXu002020474 and TXu002028522. Id. ¶ 70.
 7

the book. Id. ¶¶ 25, 28. He attached a PDF of the full

book, specifying that it was only for Marquardt’s “re-
view” and “not in final form yet.” Complaint Ex. C. The
cover of the draft indicated that it was “[e]dited by
Mike Bynum,” and page 6 included the label “Copy-
right © 2010 by Epic Sports” and the admonition that
“[n]o part of this work covered by the copyright hereon
may be reproduced or used in any form or by any
means . . . without the permission of the publisher.” Id.;
see 17 U.S.C. § 1202(c). The Biography, titled “An A&M
Legend Comes to Life,” began on page 9 and stated
that it was “by Whit Canning.” Complaint Ex. C.
TAMU has registered “12th Man” as a trademark,
Complaint ¶ 22, and in January 2014, the Athletic De-
partment sought to solidify control over the trademark
in order to raise millions of dollars. The Department
has aggressively policed its intellectual property, in-
cluding by filing trademark lawsuits against profes-
sional sports teams that have attempted to capitalize
on some version of the 12th Man legend. Id. ¶ 22. The
Department’s 2014 effort was spurred by a dispute
with the NFL’s Seattle Seahawks, who have a fan base
that calls itself the “12th Man.” Accordingly, the De-
partment directed its staff, including Marquardt and
Cannon, to locate background information on Gill. Id.
¶ 39.
Marquardt had in his office the PDF that Bynum
had emailed. Marquardt directed his secretary to re-
type the Biography and to remove any reference to
Bynum or to Epic Sports’ copyright information. Com-
plaint ¶¶ 47-48. Marquardt rewrote the PDF’s byline
 8

to read “by Whit Canning, special to Texas A&M Ath-

letics”—a term of art that falsely indicated that Can-
ning was paid to write the Biography exclusively for
the Department and that the Department owned the
resulting work. Complaint ¶ 45; id. Ex. H. To better
support TAMU’s trademark, Marquardt changed the
Biography’s title from “An A&M Legend Comes to Life”
to “The Original 12th Man.” Id. ¶¶ 45-48.
Over the next 72 hours, the Department dissemi-
nated the full Biography to hundreds of thousands of
recipients. It posted the Biography on the Depart-
ment’s website, which received approximately 10,000
unique visitors and 50,000 page views a day. Com-
plaint ¶ 41. The Department’s Twitter account, which
had approximately 145,000 followers, tweeted a link to
the Biography on the website. Id. Shortly thereafter,
the University’s Twitter account, with approximately
160,000 followers, also linked to—and quoted from—
the Biography. Id. ¶ 54. And the manager of the Uni-
versity’s Twitter account, Lane Stephenson, sent a
preview of and a prominent link to the Biography to
77,000 subscribers of the “TAMU Times” e-newsletter.
Id. ¶¶ 56, 77. He also placed the preview and link on
the front page of e-newsletter’s website. Id. As the De-
partment intended, the Biography was then widely for-
warded, copied, shared on fan sites, blogged about, and
reported on and linked to by various news organiza-
tions. Id. ¶¶ 41, 55, 60-61, Ex. I.
Bynum discovered these events two days after
the Department had posted the Biography. Complaint
¶ 40. He emailed Marquardt and Cannon, explaining
 9

that “Whit Canning wrote” the Biography for Bynum

in 1997; it had “never been cleared for publication with
anyone”; and Canning “did not write this story for
TAMU or give them permission to publish” it. Com-
plaint Ex. N.
Marquardt responded that the Biography “was an
important part of our strategic plan to show Texas
A&M is the true owner of ‘the 12th Man.’ ” Id. ¶ 58 &
Ex. N. He acknowledged that he did not have permis-
sion to publish or reproduce the Biography. Id. And,
although he admitted that he had asked his secretary
to retype the Biography, he did not explain why he
changed the byline on the article or why he removed
the copyright management information and any refer-
ence to Bynum. Id.
The Department ultimately removed the Biog-
raphy from its website. But the Biography continued
to be widely available on the internet. Complaint ¶ 61;
Ex. I. Not surprisingly, handing the copyrighted Biog-
raphy to hundreds of thousands of Aggie fans de-
stroyed the possibility of a successful print run of
Bynum’s book, since his potential purchasers already
had free access to a key portion of the book’s contents.
Complaint ¶ 5. The book remains unpublished to this
day. Id.

C. Proceedings Below
On January 19, 2017, Petitioners Michael Bynum
and Canada Hockey, L.L.C. filed suit against the De-
partment, Marquardt, Cannon, and Stephenson. The
 10

operative complaint (filed April 17, 2017) included

claims for copyright infringement, as well as for vio-
lations of the Digital Millennium Copyright Act
(“DMCA”), 17 U.S.C. § 1202 et seq., the Fifth and Four-
teenth Amendments of the U.S. Constitution, and the
Takings Clause of the Texas Constitution. Complaint
¶¶ 67-120.
Defendants moved to dismiss all Petitioners’
claims. Dkt. No. 34. The district court granted the mo-
tions to dismiss as to all defendants except Marquardt.
See Dkt. No. 96. Plaintiffs moved for reconsideration,
and the court stayed the case pending this Court’s
resolution of Allen v. Cooper. See Dkt. Nos. 102, 111.
After that decision, the parties submitted additional
briefing. The court ultimately denied the motions for
reconsideration, denied plaintiffs’ motion to file a fur-
ther amended complaint, and entered final judgment
under Federal Rule of Civil Procedure 54(b) as to all
defendants but Marquardt. See App. 59-60.3
The district court first concluded that the Depart-
ment lacked jural authority and could not be sued. Al-
though TAMU could normally be substituted as a
defendant under Federal Rule of Civil Procedure 17,
the court concluded that TAMU was entitled to sover-
eign immunity as an arm of the State of Texas. Dkt.
No. 96, at 12-17. The court accepted that plaintiffs
had satisfied all the requirements for case-by-case
3
The court sua sponte severed those defendants from the
original docket, opened a new docket, and immediately entered
the Rule 54(b) judgment in that new docket. See Case No. 4:20-
CV-3121, Dkt. No. 2.
 11

abrogation under Georgia and the CRCA, but it limited

Georgia to its facts. Id.; see App. 66-73. The court also
concluded that TAMU had sovereign immunity in fed-
eral court as to plaintiffs’ takings claim, even though
Texas’s courts are closed to such a claim. Dkt. No. 96,
at 19; App. 74-79.
Petitioners appealed. On September 8, 2021, the
Fifth Circuit affirmed. That court rejected Petitioners’
argument that TAMU is not an arm of the state with
respect to its athletic department, which Texas law
bars from receiving public funds. App. 38-45. And the
court rejected both actual constitutional violations
that Petitioners alleged under Georgia. It held that
copyrights are not protected property for Takings
Clause purposes. App. 51-52. With respect to due pro-
cess, the court held that although the Texas Supreme
Court had rejected takings claims under both state and
federal law based on infringement of a copyright, the
possibility that that court might recognize a different
takings theory in some future case was sufficient to
constitute an adequate state remedy. App. 49-50. Fi-
nally, the court rejected Petitioners’ free-standing tak-
ings claim as well on a similar ground—that is, so long
as the state courts might be open to a hypothetical
state takings claim, sovereign immunity bars any fed-
eral takings claim in federal court. App. 52-53.
Petitioners moved for rehearing, and on February
14, 2022, the Fifth Circuit vacated its original opinion
and substituted a new one. App. 1-2. The only signif-
icant change, however, was to omit the statement that
copyrights are not protected property and instead
 12

assert—based on the same circuit authority as in the

original opinion—that copyright infringements are
trespasses and therefore not takings. App. 23. The
court of appeals then denied Petitioners’ petition for
rehearing and affirmed the district court. App. 28-29.
---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

The great Julie Andrews, playing the young nun
Maria in The Sound of Music, famously said, “When
the Lord closes a door, somewhere He opens a window.”
The Sound of Music (Robert Wise, dir. 1965). In Allen
v. Cooper, 140 S. Ct. 994 (2020), this Court closed the
door of prophylactic abrogation of state immunity for
copyright claims under the CRCA. Yet the Court re-
mained concerned that copyright holders should have
some remedy for egregious state violations. Justices
Breyer and Kavanaugh both questioned counsel for
North Carolina about “rampant . . . states ripping off
copyright holders.” Tr. of Oral Arg., No. 18-877, Allen v.
Cooper, at 36-39 (Nov. 5, 2019). The State’s answer was
to invoke the case-by-case abrogation theory of United
States v. Georgia, 546 U.S. 151 (2006). “[T]he beauty of
this Court’s Georgia decision,” counsel said, is that
“whenever a plaintiff can reasonably allege that there
has been intentional copyright infringement and there
are not adequate remedies, then, under this Court’s
Georgia decision, they can bring a direct constitutional
claim. We don’t dispute that.” Id. at 39-40; see also id.
at 41 (Justice Breyer: “That would cure my problem to
 13

a considerable degree.”). Because the plaintiff had not

preserved the Georgia issue, Allen did not consider it.
In this case, however, the Fifth Circuit slammed
Georgia’s window and nailed it shut. Copyright holders
seeking to establish an actual constitutional violation
to proceed under Georgia and the CRCA have to rely
on either the Due Process or Takings Clauses. Yet no
plaintiff, to Petitioners’ knowledge, has successfully
done so. The Fifth Circuit’s decision provides a
roadmap for ensuring that that never changes, even in
egregious cases.
Three issues are critical—and certworthy. First,
can a copyright plaintiff establish case-by-case abroga-
tion based on an unconstitutional taking? The Fifth
Circuit said no, because copyright infringements can
never be takings. Second, when does an adequate state
remedy prevent a copyright plaintiff from establishing
case-by-case abrogation on a due process theory? The
Fifth Circuit held that the possibility that a state court
might recognize some sort of state takings theory suf-
fices, even though no such remedy currently exists in
Texas. Third, if statutory abrogation fails, can a plain-
tiff proceed directly against a state entity on the
ground that the Takings Clause mandates a compen-
satory remedy? See First English Evangelical Lu-
theran Church of Glendale v. County of Los Angeles,
482 U.S. 304, 316 n.9 (1987). The Fifth Circuit said no,
again based on the hypothetical possibility that a state
takings claim might someday be available in state
court.
 14

The Fifth Circuit’s holdings on each of these ques-

tions are inconsistent with decisions of this Court and
in tension with the positions of other circuits. But the
essential functions of this Court consist in maintaining
not only “the uniformity” but also the “supremacy of
federal law.” Leonard Ratner, Congressional Power
over the Appellate Jurisdiction of the Supreme Court,
109 U. Pa. L. Rev. 157, 201 (1960) (emphasis added).
Each of the Fifth Circuit’s holdings in this case weak-
ened federal intellectual property protection for copy-
rights, and each encouraged states to substitute their
own uncertain and potentially self-serving state law
remedies for the federal CRCA when state govern-
ments infringe.
If Georgia’s window is to be reopened, then this is
the case to do it. TAMU’s copyright violation was fla-
grant, damaging, and largely undisputed. Texas’s legal
position—and the Fifth Circuit’s—is that states simply
can steal copyrighted material with impunity. As state
copyright violations continue to proliferate nation-
wide, that warrants this Court’s intervention.

I. The Fifth Circuit held the CRCA unconsti-

tutional as applied to this case.
This Court granted certiorari in Allen “[b]ecause
the Court of Appeals held a federal statute invalid.”
140 S. Ct. at 1000. The statute in question was the
CRCA, which abrogated state governments’ sovereign
immunity and subjected them to private damages suits
when they infringe federal copyrights. Allen held the
 15

CRCA unconstitutional insofar as it sought to abrogate

state immunity prophylactically—that is, whenever a
state violates the provisions of federal copyright law.
Id. at 1007.
But this Court’s unanimous opinion in Georgia
made clear that federal statutes may also abrogate
sovereign immunity case by case. As Justice Scalia
wrote in Georgia, “no one doubts that § 5 grants Con-
gress the power to ‘enforce . . . the provisions’ of the
[Fourteenth] Amendment by creating private remedies
against the States for actual violations of those provi-
sions.” 546 U.S. at 158. Because a plaintiff invoking
case-by-case abrogation under Georgia must prove un-
constitutional state action in his own case, there is no
need to show general congruence and proportionality
between the abrogating statute and the underlying
constitutional provision it seeks to enforce. A statute
may, in other words, fail to satisfy the standard for
prophylactic abrogation and yet provide a perfectly vi-
able vehicle for case-by-case abrogation for plaintiffs
whose statutory claims involve actual violations of
Fourteenth Amendment rights.
Petitioner has alleged that TAMU’s copyright vio-
lations entail actual constitutional violations of the
Due Process and Takings Clauses. By rejecting Peti-
tioner’s argument for abrogation under Georgia, the
Fifth Circuit held the CRCA unconstitutional as ap-
plied to Petitioner’s case. As in Allen, a court of appeals’
refusal to give effect to a federal statute on constitu-
tional grounds is a well-established and sufficient rea-
son to grant certiorari in this case.
 16

But the problem is not simply what the Fifth Cir-

cuit did in this particular case. No circuit court, to
Petitioners’ knowledge, has recognized a successful in-
stance of case-by-case abrogation of state immunity for
copyright infringement under Georgia and the CRCA.
This case presents an ideal vehicle for establishing
that Georgia’s window must remain open in cases of
egregious infringement.

II. The Fifth Circuit contradicted this Court’s

holdings—and created tension with other
circuits—by eliminating Takings Clause
protection for copyrights.
The Court of Appeals found that Petitioners had
“failed to plausibly allege a taking,” App. 22, that could
support case-by-case abrogation under Georgia. The
initial opinion straightforwardly held that “copyrights
are not a form of property protected by the Takings
Clause.” App. 52. Nearly six months later, the Court of
Appeals revised its opinion, omitting this assertion but
reaffirming circuit precedent that “infringement of
copyright . . . constitutes a tort,” not a taking. App. 23
(quoting Porter v. United States, 473 F.2d 1329, 1337
(5th Cir. 1973)). This holding relied upon precisely the
same quotation from Porter that supported the earlier
conclusion that copyrights are simply not protected
property, and it amounts to the same thing. Whether
copyrights are unprotected property or infringement is
not a taking, the upshot is that the Court of Appeals
negated Congress’s decision to confer full property-
law protection on copyrights, contravened this Court’s
 17

precedents stating that the Takings Clause protects in-

tellectual property, and created a conflict with at least
three other circuits that have recognized Takings
Clause protection for copyrights.

A. The Fifth Circuit effectively eliminated

Takings Clause protection for copy-
rights by holding that copyright in-
fringement cannot effect a taking.
The Court of Appeals’ decision held categorically
that “infringement is not a ‘taking’ as the term is con-
stitutionally understood. Rather, it has always been
held that infringement of copyright, whether common
law . . . or statutory . . . constitutes a tort.” App. 23
(quoting Porter, 473 F.2d at 1337). Although the court
commented that “the direct infringement was the pub-
lic display of the book for four total days, and the indi-
rect infringement likewise stems from these four
days,” App. 23-24, the court did not explain why this
limited duration would vitiate Petitioner’s claim that
disseminating his work to the entire target audience of
Petitioner’s book vaporized the work’s value. Com-
plaint ¶¶ 5, 41, 54. In any event, the Court of Appeals
did not qualify the language it had just quoted from
Porter that infringement by publication “is not a ‘tak-
ing’ as the term is constitutionally understood” or that
copyright “always” “constitutes a tort” rather than a
taking. App. 23.
One can only wonder what it would take, in the
Fifth Circuit, to constitute a taking of a copyright, if
 18

ordinary infringing behavior—the unauthorized publi-

cation of an unpublished copyrighted work—does not
suffice. Here, Petitioner alleges not only that TAMU
published his work by tweeting or emailing it to nearly
400,000 alumni, but also that TAMU altered the work
by removing any reference to Bynum or his company
and falsely stating that it had been written “special to
Texas A&M Athletics.” App. 4. If it is not a taking to
publicly assert the state’s ownership of a copyrighted
work, then the Fifth Circuit’s rule amounts to a cate-
gorical bar to takings claims based on copyright infringe-
ment. And that is how Porter has been understood in
subsequent decisions. See, e.g., United States v. Smith,
686 F.2d 234, 243 n.17 (5th Cir. 1982) (citing Porter for
the broad proposition that “copyright infringement is
. . . [not] the equivalent of ‘taking’ in the constitutional
sense”).

B. The Fifth Circuit’s ruling conflicts with

this Court and other circuits that have
recognized that the Takings Clause pro-
tects intellectual property rights.
The Fifth Circuit’s exemption of copyrights from
Takings Clause protection is inconsistent with a con-
siderable body of precedent, both new and old. Allen
unanimously held that “[c]opyrights are a form of prop-
erty” protected by the Fourteenth Amendment, and it
treated copyrights as analogous to patents, see id. 140
S. Ct. at 1004, 1005-06, which the Court has found to
be protected in the same manner as real property. See
Horne v. Dept. of Agriculture, 576 U.S. 350, 359-60
 19

(2015).4 Horne relied on the longstanding protection of

patents, “ ‘which cannot be appropriated or used by
the government itself, without just compensation,’ ” as
support for the broader proposition that the Takings
Clause protects personal property. Id. at 359 (quoting
James v. Campbell, 104 U.S. 356, 358 (1882)).5 Most im-
portant, Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1002-04 (1984), held that the Takings Clause protects
intangible property interests in trade secrets notwith-
standing that trade secret misappropriation had long
been viewed as a tort. See id. at 1001-02 (relying on the
Restatement of Torts definition of a trade secret).6
Monsanto makes clear that the mere fact that an
intrusion on property rights would be actionable under
tort law does not mean that that intrusion might not
also be a taking if undertaken by a government actor.
Likewise, this Court held in James that the Takings
Clause’s protection meant that a patent “cannot be ap-
propriated or used by the government itself.” 104 U.S.

4
See also Amicus Curiae Prof. Adam Mossoff ’s Brief sup-
porting Plaintiffs-Appellants in Canada Hockey, L.L.C. v. Texas
A&M University Athletic Dept., No. 20-20503, 5th Circuit (Jan.
27, 2021) (“There is no textual basis in the Due Process or Takings
Clauses to discriminate as a matter of constitutional law between
the “property” secured in a patent or copyright.”).
5
See also Oil States Energy Servs., LLC v. Greene’s Energy
Grp., LLC, 138 S. Ct. 1365, 1379 (2018) (citing cases establishing
that patents are “property for purposes of the Due Process Clause
or the Takings Clause”).
6
Likewise, this Court has said that patent infringement “is
essentially a tort, and implies invasion of some right of the pa-
tentee.” Carbice Corp. of America v. American Patents Dev. Corp.,
283 U.S. 27, 33 (1931).
 20

at 358. It may be that some infringements do not rise

to the level of a taking, just as some infringements are
not unconstitutional deprivations under the Due Pro-
cess Clause. See Allen, 140 S. Ct. at 1005 (defining “the
scope of unconstitutional infringement . . . as inten-
tional conduct for which there is no adequate state
remedy”). But infringement cannot fail to be a taking
simply because it is also a form of trespass,7 or be-
cause—as the Fifth Circuit suggested—it took place
over a limited time. See First English Evangelical Lu-
theran Church of Glendale v. County of Los Angeles,
482 U.S. 304, 318-19 (1987) (recognizing an obligation
to compensate for temporary takings). The Fifth Cir-
cuit’s holding thus allows state governments to nullify
federal statutory protection for an extremely im-
portant class of property, so long as the State expropri-
ates that property for its own use.
As the Fifth Circuit seemed to recognize, App. 22
n.8, its ruling here brought it into tension with several
other circuit courts of appeal that have said that copy-
rights are protected under the Takings Clause. The
Second Circuit held in Roth v. Pritikin, 710 F.2d 934,
939 (2d Cir. 1983), for example, that “[a]n interest in
a copyright is a property right protected by the due
process and just compensation clauses of the Consti-
tution.” That court thus concluded that, if applied
retroactively, an amendment to the Copyright Act’s

7
Neither Respondent nor the Fifth Circuit suggested that a
trespass action in state court was available in this case, nor is a
post-deprivation remedy a defense to a takings claim. See Knick
v. Township of Scott, 139 S. Ct. 2162, 2171 (2019).
 21

work-for-hire provisions “could be viewed as an uncon-

stitutional taking.” Id. Similarly, in CCC Info. Servs.,
Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61,
73-74 (2d Cir. 1994), the Second Circuit held that
copyright protected a data compilation concerning
used vehicles, notwithstanding that the legislature
had adopted it as a valuation standard. “[A] rule that
the adoption of such a reference by a state legislature
or administrative body deprived the copyright owner
of its property,” the court said, “would raise very sub-
stantial problems under the Takings Clause of the
Constitution.” Id. at 74.
The Ninth Circuit adopted the reasoning of CCC
Info. Servs. in Practice Mgt. Info. Corp. v. American
Medical Ass’n, 121 F.3d 516, 520 (9th Cir. 1997). Fi-
nally, the First Circuit has suggested that if state rem-
edies do not afford just compensation for copyright
infringement, “the Takings Clause of the federal Con-
stitution might at that point enable [owners] to pursue
a damage remedy in federal court.” Lane v. First Nat’l
Bank of Boston, 871 F.2d 166, 174 (1st Cir. 1989). All
told, the Fifth Circuit’s ruling creates serious tension
with the views of the First, Second, and Ninth Circuits.

III. The Fifth Circuit wrongly held that proce-

dural due process claims can be defeated by
hypothetical post-deprivation remedies
never recognized by the state courts.
Petitioners also alleged a second actual constitu-
tional violation, that TAMU’s copyright infringement
 22

deprived Petitioners of their property without due

process of law. App. 20. Allen obliged Petitioners to
show that (1) the deprivation was intentional and (2)
the state provided no adequate post-deprivation reme-
dies. See 140 S. Ct. at 1004. The Court of Appeals con-
ceded that “Appellants sufficiently allege that the
infringement was intentional—Marquardt directed his
secretary to retype the Gill Biography, remove any
copyright information, and change its title and byline
to indicate that TAMU owned the work, and then
shared it with his colleagues for approval and publica-
tion.” App. 20. But the court concluded that “meaning-
ful post-deprivation state remedies are available to
redress the injury.” Id. “Though no tort remedies are
available under Texas law, Appellants have a viable
takings claim against TAMU for copyright infringe-
ment under the Texas Constitution.” App. 20-21.
Under Parratt v. Taylor, 451 U.S. 527, 538-41
(1981), a procedural due process claim can be defeated
by showing that state law provides an adequate post-
deprivation remedy. To satisfy due process, however, a
post-deprivation remedy must be “clear and certain.”
Nat’l Private Truck Council, Inc. v. Oklahoma Tax
Comm’n, 515 U.S. 582, 587 (1995).8 In Parratt, for ex-
ample, this Court emphasized that Nebraska had a

8
See also McKesson Corp. v. Div. of Alcoholic Beverages &
Tobacco, 496 U.S. 18, 32-33 (1990). National Private Truck and
McKesson were taxation cases, not cases under Parratt. But if
there is any difference, the standard for remedies under Parratt
would surely be higher, because “the States are afforded great
flexibility in satisfying the requirements of due process in the field
of taxation.” Nat’l Private Truck, 515 U.S. at 587.
 23

specific statutory procedure for tort claims by prison-

ers; that procedure, moreover, “was in existence at the
time of the loss here in question but respondent did not
use it.” 451 U.S. at 543. And although that procedure
lacked a jury trial and certain other procedural fea-
tures, it “could have fully compensated the respondent
for the property loss he suffered.” Id. at 544.
In this case, by contrast, the Court of Appeals ig-
nored the position of the state government, which con-
sistently maintained that a takings remedy is not
available under Texas law for copyright infringement.
See, e.g., Brief on the Merits for Respondent, Jim Olive
Photography v. University of Houston System, No. 19-
0605, Supreme Court of Texas (Sept. 25, 2020), at 36-
39. Instead, the Fifth Circuit relied on a recent decision
by the Texas Supreme Court that rejected takings
claims for copyright infringement under both the
United States and Texas constitutions. See Jim Olive
Photography v. Univ. of Houston, 624 S.W.3d 764, 777
(Tex. 2021) (“Olive”). The Fifth Circuit found an ade-
quate post-deprivation remedy because Olive “never-
theless left the door open for a copyright owner to bring
a regulatory takings claim against the State for in-
fringement.” App. 21. But Olive did not say that the
result would have been different if Olive had pled a
regulatory takings claim, and it cited no state authori-
ties supporting such a theory. All the court said was
that “[w]e express no view regarding whether a govern-
ment’s exercise of rights in violation of [the copyright]
 24

statute could rise to the level of a regulatory taking.”

624 S.W.3d at 775 n.10.9
If Olive is taken to authorize a “clear and certain”
remedy, then those words have lost all meaning. Spec-
ulations about what previously unrecognized remedies
might be available under state law cannot satisfy Due
Process. Parratt would become a trap for the unwary,
unsophisticated, or simply unlucky, as litigants must
guess as to which state law remedies might become
available and structure their claims accordingly. It is,
of course, too late for Petitioners to pursue a Takings
remedy under the Texas constitution. A requirement
that federal plaintiffs guess correctly about what rem-
edies a state court might someday recognize—at the
9
Texas law is unlikely to provide a remedy where federal
takings law, as the Fifth Circuit held, does not. Although the Fifth
Circuit asserted that the Texas Takings Clause is “[m]ore expan-
sive than the federal Takings Clause,” App. 21, the Olive majority
emphasized that “[a]lthough our state takings provision is worded
differently, we have described it as ‘comparable’ to the Fifth
Amendment’s Just Compensation Clause” and “Texas ‘case law
on takings under the Texas Constitution is consistent with fed-
eral jurisprudence.’ ” 624 S.W.3d at 771 (quoting Hallco Tex., Inc.
v. McMullen Cty., 221 S.W.3d 50, 56 (Tex. 2006), and Hearts Bluff
Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2021)). Mr.
Olive alleged claims under both the federal and state constitu-
tions, and the Texas Supreme Court majority drew no distinction
between them. See 624 S.W.3d at 771.
The Fifth Circuit also cited Justice Busby’s Olive concur-
rence, which suggested a different theory under the Texas Con-
stitution’s provisions governing property “applied to public use”
or “damaged for public use.” Id. at 780 (Busby, J., concurring) (cit-
ing Texas Const., art. I, § 17). Critically, Justice Busby said only
that “it is possible” that copyright holders might have viable
claims under these provisions “in some circumstances.” Id. at 782.
 25

hazard of losing their federal claims—is the antithesis

of due process of law.
That is why decisions rejecting due process claims
on the basis of state post-deprivation remedies gener-
ally, as in Parratt itself, involve uncontested or well-
established remedies. See, e.g., Elsmere Park Club, L.P.
v. Town of Elsmere, 542 F.3d 412 (3d Cir. 2008) (where
availability of remedy under local law was disputed,
conducting detailed analysis of local ordinances to de-
termine that the relief claimed was actually available
to plaintiffs).10 Petitioners have found no decisions re-
jecting a due process claim on the basis of a state-law
remedy that no court has affirmatively recognized to
be available. The Fifth Circuit’s decision thus contra-
dicts this Court’s precedents in Parratt and National
Private Truck, as well as the great weight of circuit
practice under those opinions. Worse, because one
can always speculate that some state remedy may be

10
See also, e.g., San Geronimo Caribe Project, Inc. v. Acevedo-
Vila, 687 F.3d 465 (1st Cir. 2012) (finding post-deprivation reme-
dies adequate where “[i]n fact, [the plaintiff ] did receive prompt
post-deprivation process” from the Puerto Rico courts “in related
actions”); Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995) (cit-
ing multiple Michigan statutory procedures affording relief for a
prisoner’s grievance against prison officials); McKinney v. Pate,
20 F.3d 1550, 1563-64 (11th Cir. 1994) (en banc) (applying Parratt
to bar due process claim only after determining that “Florida
courts indeed to have the power to review employment termina-
tion cases,” that “the scope of the [their] review encompasses the
claim McKinney brought in federal court,” and that the state rem-
edy could “remedy McKinney’s loss”); Easter House v. Felder, 910
F.2d 1387 (7th Cir. 1990) (en banc) (identifying three Illinois com-
mon law remedies available to plaintiffs and citing state decisions
recognizing those remedies).
 26

available, the Fifth Circuit’s decision effectively nulli-

fies due process protection against state deprivations
of federal intellectual property rights.

IV. The Fifth Circuit’s holding that state im-

munity bars federal takings claims contra-
dicts this Court’s takings jurisprudence
and worsens confusion among the circuits.
Only two provisions in the Constitution specify a
particular remedy when the government violates the
law. The Suspension Clause preserves the ancient writ
of habeas corpus, U.S. CONST. art. I, § 9, cl. 2, and the
Fifth Amendment requires “just compensation” when
private property is “taken for public use.” Id. amend. V.
This Court thus said in First English that the Consti-
tution “of its own force . . . furnish[es] a basis for a
court to award money damages against the govern-
ment,” notwithstanding “principles of sovereign im-
munity.” 482 U.S. at 316 n.9.11 Nonetheless, every
circuit to consider the issue has held that state sov-
ereign immunity bars takings claims against state

11
Cf. Lucas v. South Carolina Coastal Council, 505 U.S.
1003 (1992) (considering takings claim against state regulatory
agency without mentioning sovereign immunity). Leading com-
mentators have likewise interpreted the Fifth Amendment as
overriding state immunity. See, e.g., Thomas W. Merrill, The
Landscape of Constitutional Property, 86 Va. L. Rev. 885, 981
(2000); Richard H. Fallon, Jr., & Daniel J. Meltzer, New Law,
Non-Retroactivity, and Constitutional Remedies, 104 Harv. L.
Rev. 1731, 1779 & n.244 (1991); Vicki C. Jackson, The Supreme
Court, the Eleventh Amendment, and State Sovereign Immunity,
98 Yale L. J. 1, 115 (1988).
 27

governments. In the present case, the Fifth Circuit ad-

hered to its holding in Bay Point Properties, Inc. v. Mis-
sissippi Transportation Comm’n, 937 F.3d 454, 457 (5th
Cir. 2019), concluding that “[a] state is entitled to sov-
ereign immunity from a federal takings claim.” App.
24.
The circuits imposing state sovereign immunity as
a bar to takings claims have split into two groups.
Older decisions in the First, Fifth, and Seventh Cir-
cuits reject takings claims without any inquiry into
whether the state provides a takings remedy in its own
courts.12 More recent decisions in the Fourth, Sixth,
and Tenth Circuits have held that state immunity from
a takings claim in federal court depends on whether
the state courts are open to hear such a claim.13 The
12
See John G. & Marie Stella Kenedy Mem’l Found. v.
Mauro, 21 F.3d 667, 674 (5th Cir. 1994) (concluding that “the
Foundation’s Fifth Amendment inverse condemnation claim
brought directly against the state of Texas is also barred by the
Eleventh Amendment”); Citadel Corp. v. P.R. Highway Auth., 695
F.2d 31, 33 n.4 (1st Cir. 1982) (“Even if the constitution is read to
require compensation in an inverse condemnation case, the Elev-
enth Amendment should prevent a federal court from awarding
it.”); Garrett v. Illinois, 612 F.2d 1038, 1040 (7th Cir. 1980) (“Even
though the Fifth Amendment alone may support a cause of action
for damages against the United States, the Eleventh Amendment
stands as an express bar to federal power when a similar action
is brought against one of the states.”).
13
See Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214
(10th Cir. 2019) (barring the plaintiff ’s claim only after ascertain-
ing that the Utah courts were open to takings claims); Hutto v.
S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014) (“[T]he Eleventh
Amendment bars Fifth Amendment taking claims against States
in federal court where the State’s courts remain open to adjudi-
cate such claims.”); DLX, Inc. v. Kentucky, 381 F.3d 511, 527-28
 28

Fifth Circuit seems to have moved into this camp. Bay

Point noted that Mississippi courts were open to the
plaintiff ’s takings claims and cited the Tenth Circuit’s
decision in Williams. See 937 F.3d at 455, 457. In the
present case, the Fifth Circuit cited Williams again
and said that “[b]ecause we have concluded that Ap-
pellants can pursue a claim under the Texas Takings
Clause, state sovereign immunity bars the federal tak-
ings claim here.” App. 24.
The circuits’ divergent approaches create confu-
sion in their own right, and neither approach is con-
sistent with this Court’s reasoning in Knick v.
Township of Scott, 139 S. Ct. 2162 (2019). In all six of
these circuits, Knick is a dead letter whenever the
State, rather than a local government, takes private
property. This Court should grant certiorari to resolve
the confusion and establish that the Fifth Amendment
requires a compensatory remedy in federal court for
takings by state governments, whether or not a remedy
may be available in state court.14
But even if this Court accepts the proposition that
a state court remedy can substitute for a takings claim

(6th Cir. 2004) (“[H]ad DLX brought a federal [takings] claim with
its state claim in state court, the Kentucky courts would have had
to hear that federal claim . . . but this court is powerless to hear
it.”).
14
Petitioners did not press this argument in the Fifth Circuit
because the question was settled in Bay Point, but they expressly
preserved the right to raise it upon review in this Court. See Ap-
pellants’ Brief, No. 20-20503, 5th Circuit (Jan. 20, 2021), at 37
n.5.
 29

in federal court, the Fifth Circuit broke with the

Fourth, Sixth, and Tenth Circuits in the present case
by abandoning the requirement that such a state rem-
edy must be “clear and certain.” At a minimum, this
Court should grant certiorari to resolve that conflict
and bring the exception for state court remedies in line
with this Court’s due process precedents.

A. Those circuits imposing state sover-

eign immunity as a flat bar to federal
takings claims violate the Fifth Amend-
ment as interpreted in Knick.
This Court’s decision in Knick overruled the doc-
trine of Williamson Cty. Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985),
which held that a federal takings claim is not ripe in
federal court until the plaintiff has first failed to obtain
a remedy in state court. See 139 S. Ct. at 2170. Knick
was not a sovereign immunity case, because it involved
a municipality without sovereign immunity. But
Knick’s reasoning fatally undermines the case for bar-
ring federal takings claims on state sovereign immun-
ity grounds by holding that the Fifth Amendment, of
its own force, mandates a compensatory remedy.
Knick considered not only the timing of a takings
violation but the nature of the just compensation re-
quirement itself. The Chief Justice’s majority opinion
embraced First English, which had “reaffirm[ed] that
‘in the event of a taking, the compensation remedy is
required by the Constitution,’ ” and “reject[ed] the view
 30

that ‘the Constitution does not, of its own force, furnish

a basis for a court to award money damages against
the government.’ ” 139 S. Ct. at 2172 (quoting First
English, 482 U.S. at 316 & n.9). If compensation is re-
quired when a state government takes, then it cannot
be constitutional for a state to interpose its sovereign
immunity.
This Court has stressed that “the States’ immun-
ity from suit is a fundamental aspect of the sovereignty
which the States enjoyed before the ratification of the
Constitution, and which they retain today . . . except
as altered by the plan of the Convention or certain con-
stitutional Amendments.” Alden v. Maine, 527 U.S. 706,
713 (1999). But to the extent that the Fifth Amend-
ment, made applicable to the States by the Fourteenth,
mandates a compensatory remedy for takings, that re-
quirement necessarily qualifies the States’ preexisting
immunity. Knick’s reaffirmation of that mandate
makes the First, Seventh, and early Fifth Circuits’ po-
sition barring takings claims against states untenable.

B. Those circuits allowing state takings

remedies to substitute for a federal
remedy violate Knick’s insistence that
federal takings plaintiffs can proceed
directly to federal court.
The Fourth, Sixth, and Tenth Circuits’ position
(apparently now embraced by the Fifth) is that state
sovereign immunity bars a federal takings plaintiff
from federal court only if the state courts are not open
 31

to hear their takings claim. This position derives from

this Court’s illegal tax cases, which hold that state sov-
ereign immunity may generally bar tax refund claims
in federal court, but in that event “state courts must
hear suits to recover taxes unlawfully exacted, the ‘sov-
ereign immunity [that] States traditionally enjoy in
their own courts notwithstanding.’ ” Hutto, 773 F.3d at
552 (quoting Reich v. Collins, 513 U.S. 106, 110 (1994)).
Functionally speaking, this doctrine operates like Wil-
liamson County: Federal takings plaintiffs must first
go to state court, and only if they find those courts
closed can they (possibly) proceed in federal court.
This Court’s decision in Knick, of course, rejected
the notion that federal takings plaintiffs must go to
state court first. The Knick Court relied on three key
arguments: (1) that “[t]he Fifth Amendment right to
full compensation arises at the time of the taking, re-
gardless of post-taking remedies that may be available
to the property owner,” 139 S. Ct. at 2170; (2) that Wil-
liamson County created a “preclusion trap” in which a
plaintiff “cannot go to federal court without going to
state court first; but if he goes to state court and loses,
his claim will be barred in federal court,” id. at 2167;
and (3) that the Fifth Amendment and the federal civil
rights statutes “guarantee[ ] ‘a federal forum for claims
of unconstitutional treatment at the hands of state of-
ficials, and the settled rule is that exhaustion of state
remedies is not a prerequisite to an action under [42
U.S.C.] § 1983,’ ” id. (quoting Heck v. Humphrey, 512
U.S. 477, 480 (1994)). It is highly unlikely that Knick
would have come out differently if it had involved a
 32

state government defendant rather than a locality, for

three reasons that parallel Knick’s points of emphasis.
First, the constitutional violation here, as in
Knick, occurred without regard to the state’s failure to
provide a remedy. As the Chief Justice explained, “[t]he
fact that the State has provided a property owner
with a procedure that may subsequently result in just
compensation cannot deprive the owner of his Fifth
Amendment right to compensation under the Consti-
tution, leaving only the state law right.” 139 S. Ct. at
2171. Knick makes clear, moreover, that “the analogy
from the due process context to the takings context is
strained.” Id. at 2174. As cases like Parratt make clear,
the state’s failure to provide a remedy is often part and
parcel of the due process violation. But Knick insists
that state remedies are irrelevant to whether a takings
violation has occurred. Id. at 2170. The Takings Clause
thus requires a compensatory remedy without regard
to what remedies state law provides.
Second, to the extent that Hutto and similar cases
envision plaintiffs trying their state takings remedies
then returning to federal court if none prove available,
plaintiffs might encounter the same “preclusion trap”
to which Knick objected. See 139 S. Ct. at 2167. Requir-
ing federal plaintiffs to sue in state court to avoid sov-
ereign immunity, like Williamson County’s ripeness
rule, “hand[s] authority over federal takings claims to
state courts.” Id. at 2170 (quoting San Remo Hotel, L.P.
v. City and Cty. of San Francisco, 545 U.S. 323, 350
(2005) (Rehnquist, C.J., concurring in the judgment)).
 33

Third, transferring responsibility for federal tak-

ings litigation to the states flies in the face not only of
the federal civil rights statutes but also the underlying
Fourteenth Amendment that they enforce. As Knick
emphasized, the Supreme Court has consistently re-
jected interpretations of federal rights and remedies
that would leave those rights at the mercy of the state
courts. See 139 S. Ct. at 2172. That principle extends
not only to § 1983 cases but to Fourteenth Amendment
rights generally. See, e.g., McNeese v. Bd. of Ed. for
Community Unit Sch. Dist. 187, 373 U.S. 668 (1963)
(where plaintiffs assert the “depriv[ation] of rights pro-
tected by the Fourteenth Amendment . . . [s]uch claims
are entitled to be adjudicated in the federal courts”);
Home Telephone & Telegraph Co. v. City of Los Angeles,
227 U.S. 278 (1913) (rejecting interpretation of the
Fourteenth Amendment’s state action requirement
that would have given state courts the first say as to
federal rights claims).15
The Fourth, Fifth, Sixth, and Tenth Circuit rule
interposing state sovereign immunity to bar federal
takings claims from federal court thus cannot sur-
vive Knick. Even post-Knick, however, those circuits
have rejected requests to reconsider their positions on
the ground that Knick simply did not concern state

15
See also Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982)
(“The Civil Rights Act of 1871, along with the Fourteenth Amend-
ment it was enacted to enforce, were crucial ingredients in the
basic alteration of our federal system accomplished during the
Reconstruction Era.”).
 34

sovereign immunity.16 Those circuits are unlikely to

come into line with this Court’s precedent unless this
Court intervenes.

C. Even if Knick does not control, the

Fifth Circuit’s holding creates confu-
sion as to the certainty of a state-court
remedy necessary for a state to assert
immunity against a federal takings
claim.
As discussed, the Fourth, Fifth, Sixth, and Tenth
Circuits’ approach to state immunities in takings cases
rests on an analogy to this Court’s unlawful tax cases.
Unsurprisingly, courts applying this approach have
adopted the same “ ‘clear and certain remedy’ ” require-
ment of McKesson, National Private Truck, and similar
tax cases discussed earlier. Zito v. North Carolina
Coastal Res. Comm’n, 8 F.4th 281, 285-86 (4th Cir.
2021) (quoting Reich v. Collins, 513 U.S. 106, 108-09
(1994)). For the reasons discussed in Part III, supra, no
such remedy existed in the present case. The Texas Su-
preme Court’s decision in Olive rejected the only intel-
lectual property takings claim that it has considered,
and the Fifth Circuit was able to cite to no state au-
thority other than statements from Olive about the is-
sues that the court was not deciding. That is no “clear
and certain remedy.”

16
See, e.g., Ladd v. Marchbanks, 971 F.3d 574, 579 (6th Cir.
2020); Bay Point, 937 F.3d at 456; Williams, 928 F.3d at 1214.
 35

By holding that no pre-existing or proven state

takings remedy is necessary to exclude a federal tak-
ings plaintiff from federal court, the Fifth Circuit nec-
essarily departed from the course adopted in the
Fourth, Sixth, and Tenth Circuit. In each of those cir-
cuits, federal courts have upheld sovereign immunity
only after ascertaining that a state court remedy actu-
ally exists. In Williams, for instance, the Tenth Circuit
ordered additional briefing to determine whether the
Utah courts were open before holding the state im-
mune in federal court. See 928 F.3d at 1213. In Zito,
the Fourth Circuit engaged in an extensive analysis of
North Carolina statutes and constitutional provisions
to ensure that a compensatory remedy would be
available to the plaintiffs. See 8 F.4th at 288-90. Fi-
nally, the Sixth Circuit took a somewhat different tack
in DLX, holding that the state courts would have been
constitutionally obligated, under Reich, to hear the
plaintiff ’s federal takings claim notwithstanding any
obstacles that state law might ordinarily impose. See
381 F.3d at 527-28. The common thread, however, is
that each circuit determined that a state court remedy
was definitely already in existence; none engaged in
speculation about what state courts might do or what
claims they might recognize in the future. The Fifth
Circuit’s holding that speculation about remedies the
state courts might one day recognize suffices thus not
only contravenes this Court’s “clear and certain” re-
quirement from McKesson and National Private Truck,
but also adds to an already confusing welter of differ-
ing approaches in the circuits.
 36

V. Barring any means to vindicate the CRCA

under Georgia leaves copyright holders at
the mercy of state infringers.
Georgia only works if copyright holders can allege
constitutional violations when someone steals their in-
tellectual property. Their only real options are the Tak-
ings Clause and procedural due process. But the Fifth
Circuit slammed both options shut. Without those
claims, Georgia’s safety valve becomes a dead letter.
And states can infringe copyrights with impunity.
States are already seizing their chance. Texas
has consistently maintained that sovereign immunity
means it could steal Petitioner’s book. After Allen, the
U.S. Copyright Office studied state copyright infringe-
ments and what state and federal remedies really ex-
ist. See U.S. Copyright Office, Copyright and State
Sovereign Immunity—A Report of the Register of Copy-
rights (Aug. 2021).17 It concluded state infringements
have increased “substantially” since Congress enacted
the CRCA and that “sovereign immunity itself ham-
pers the development of a more conclusive evidentiary
record, as it often prevents claims from being brought
or assessed on the merits.” Id. at 2-3. The study cited
outrageous examples of states blatantly infringing
news articles, music, computer programs, photographs
and video, books, and other material—including one

17
That study surveyed 657 copyright owners and analyzed
167 state copyright infringement cases, which the American In-
tellectual Property Law Association and Petitioner here identi-
fied. See id. at 26-37; see also Copyright Alliance & Chamber of
Commerce Amicus Br. 10-18, Allen v. Cooper.
 37

instance of a state retirement system republishing ap-

proximately 53,000 news articles over an eight-year
period. See id. at 37-51.
Without damages claims against state violators,
copyright holders have no adequate remedy. Injunc-
tions are prospective only, may be easily circumvented
by the State, and likely do not justify the cost of a
suit. See U.S. Copyright Office, A Report of the Regis-
ter of Copyrights 6, 15 (June 1988), available at
http://files.eric.ed.gov/fulltext/ED306963.pdf. In this
case, by the time Petitioners discovered what the De-
partment had done, the Internet was irretrievably sat-
urated with free copies of plaintiffs’ work. And state-
law claims seeking copyright protection are no comfort
either; among other issues, federal copyright law usu-
ally preempts them. See 17 U.S.C. § 301, 28 U.S.C.
§ 1338.
Copyright is a $1.29 trillion industry. See U.S. Pa-
tent & Trademark Office, Intellectual Property and the
U.S. Economy 3 (2019). Protecting it matters. That is
why takings claims and case-by-case abrogation under
Georgia and the CRCA are so important: they provide
a meaningful remedy for the most egregious instances
of infringement—including, of course, what the De-
partment did to Petitioners here. The Fifth Circuit’s
approach would allow States to take, use, and profit
from others’ intellectual property with impunity. That,
in turn, would seriously harm the creators of copy-
righted works, discourage the creation of new works,
and generally undermine the copyright system. And it
 38

offends the bedrock principle that, in a democracy, the

state may not steal from its citizens.
---------------------------------♦---------------------------------

CONCLUSION
The petition for a writ of certiorari to the U.S.
Court of Appeals for the Fifth Circuit should be
granted.
Respectfully submitted,
RALPH OMAN ERNEST A. YOUNG
2207 Garrity Road Counsel of Record
Saint Leonard, MD 20685 3208 Fox Terrace Dr.
Apex, NC 27502
(919) 360-7718
[email protected]
Counsel for Petitioners
Filed June 15, 2022