THOMAS, J., dissenting

Finally, it is also clear petitioners did not "discriminate" against respondents "by reason of [their] disabili[ties]," as § 12132 requires. We have previously interpreted the phrase "by reason of" as requiring proximate causation. See, e. g., Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 265-266 (1992); see also id., at 266, n. 11 (citation of cases). Such an interpretation is in keeping with the vernacular understanding of the phrase. See American Heritage Dictionary 1506 (3d ed. 1992) (defining "by reason of" as "because of"). This statute should be read as requiring proximate causation as well. Respondents do not contend that their disabilities constituted the proximate cause for their exclusion. Nor could they-community placement simply is not available to those without disabilities. Continued institutional treatment of persons who, though now deemed treatable in a community placement, must wait their turn for placement does not establish that the denial of community placement occurred "by reason of" their disability. Rather, it establishes no more than the fact that petitioners have limited resources.

*

*

For the foregoing reasons, I respectfully dissent.

Syllabus

FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD v. COLLEGE SAVINGS

BANK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

No. 98-531. Argued April 20, 1999-Decided June 23, 1999

After the Patent and Plant Variety Protection Remedy Clarification Act (Act) amended the patent laws to expressly abrogate the States' sovereign immunity, respondent College Savings Bank filed a patent infringement suit against petitioner Florida Prepaid Postsecondary Education Expenses Board (Florida Prepaid), a Florida state entity. When this Court decided Seminole Tribe of Fla. v. Florida, 517 U. S. 44, Florida Prepaid moved to dismiss the action, claiming that the Act was an unconstitutional attempt by Congress to use its Article I powers to abrogate state sovereign immunity. College Savings countered that Congress had properly exercised its power pursuant to §5 of the Fourteenth Amendment in order to enforce the due process guarantees in §1 of the Amendment. The United States intervened to defend the statute's constitutionality. Agreeing with College Savings, the District Court denied the motion, and the Federal Circuit affirmed.

Held: The Act's abrogation of States' sovereign immunity is invalid because it cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause. Pp. 634-648.

(a) Florida has not expressly consented to suit, or impliedly waived its immunity, see College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., post, p. 666. To determine whether the Act nonetheless validly abrogated that immunity, the Court must ask: first, whether Congress has "unequivocally expresse[d] its intent to abrogate,"" and second, whether Congress acted "pursuant to a valid exercise of power."" Seminole Tribe, supra, at 55. Congress clearly made known its intent to abrogate in the Act. Whether it had the power to do so is another matter. In Seminole Tribe, this Court held that Congress does not have such power under Article I but reaffirmed its holding in Fitzpatrick v. Bitzer, 427 U. S. 445, that Congress has such power under §5 of the Fourteenth Amendment. Thus, legislation that is “appropriate” under § 5, as that term was construed in City of Boerne v. Flores, 521 U. S. 507, could abrogate state sovereignty. Since Congress' enforcement power is remedial, id., at 519, to invoke §5, Congress

BD. v. COLLEGE SAVINGS BANK

Syllabus

must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct. Pp. 634-639.

(b) Here, the underlying conduct is unremedied patent infringement by States. However, in enacting the Act, Congress identified no pattern of such infringement, let alone a pattern of constitutional violations. The House Report provided only two examples of patent infringement suits against States, and the Federal Circuit identified only eight such suits in 110 years. Testimony before the House Subcommittee acknowledged that States are willing and able to respect patent rights, and the Senate Report contains no evidence that unremedied patent infringement by States had become a problem of national import. Pp. 639–641.

(c) Although patents may be considered property within the meaning of the Due Process Clause, the legislative record still provides little support for the proposition that Congress sought to remedy a Fourteenth Amendment violation in enacting the Act. Under the plain terms of the Due Process Clause and the clear import of this Court's precedent, a State's infringement of a patent violates the Constitution only where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent. Congress, however, barely considered the availability of state remedies for patent infringement. The primary point made by the limited testimony on state remedies was not whether the remedies were constitutionally inadequate, but rather that they were less convenient than federal remedies and might undermine the uniformity of patent law. Congress itself said nothing about the existence or adequacy of state remedies in the statute or the Senate Report. The need for uniformity in patent law construction, though undoubtedly important, is a factor belonging to the Article I patent-power calculus. Moreover, a state actor's negligent act causing unintended injury to a person's property does not "deprive" that person of property within the meaning of the Due Process Clause, and the record suggests that state infringement of patents was at worst innocent. The legislative record thus suggests that the Act does not respond to a history of widespread and persisting deprivation of constitutional rights of the sort Congress has faced in enacting proper prophylactic § 5 legislation. Because of the lack of legislative support for Congress' conclusion, the Act's provisions are so out of proportion to the supposed remedy or preventive object that they cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. Congress did not limit the Act's coverage to cases involving arguable constitutional violations or confine its reach by limiting the remedy to certain types of infringement. Instead Congress made all States immediately amenable to federal-court suits for all kinds of possible patent

Syllabus

infringement and for an indefinite duration. The statute's appearance and more basic aims-to present a uniform remedy for patent infringement and place States on the same footing as private parties under that regime-are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe. Pp. 641-648.

148 F.3d 1343, reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 648.

Jonathan A. Glogau, Assistant Attorney General of Florida, argued the cause for petitioner. With him on the briefs were Louis F. Hubener, Assistant Attorney General, Anne S. Mason, Joseph C. Mason, Jr., William B. Mallin, Lewis F. Gould, Jr., and Joseph M. Ramirez.

Kevin J. Culligan argued the cause for respondent College Savings Bank. With him on the brief were Steven C. Cherny and Robert W. Morris.

Solicitor General Waxman argued the cause for the United States, respondent under this Court's Rule 12.6, urging affirmance. With him on the brief were Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, Paul R. Q. Wolfson, and Mark B. Stern.*

*Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, and Elise W. Porter, Assistant Solicitor, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Jan Graham of Utah, Mark L. Earley of Virginia, and Gay Woodhouse of Wyoming; for the National Con

BD. v. COLLEGE SAVINGS BANK

Opinion of the Court

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

In 1992, Congress amended the patent laws and expressly abrogated the States' sovereign immunity from claims of patent infringement. Respondent College Savings then sued the State of Florida for patent infringement, and the Court of Appeals held that Congress had validly abrogated the State's sovereign immunity from infringement suits pursuant to its authority under §5 of the Fourteenth Amendment. We hold that, under City of Boerne v. Flores, 521 U. S. 507 (1997), the statute cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause, and accordingly reverse the decision of the Court of Appeals.

I

Since 1987, respondent College Savings Bank, a New Jersey chartered savings bank located in Princeton, New Jersey, has marketed and sold certificates of deposit known as the CollegeSure CD, which are essentially annuity contracts for financing future college expenses. College Savings obtained

ference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for the Regents of the University of California by Charles A. Miller, Caroline M. Brown, Jason A. Levine, Gerald P. Dodson, James E. Holst, P. Martin Simpson, Jr., and Richard L. Stanley.

Briefs of amici curiae urging affirmance were filed for the American Society of Composers, Authors, and Publishers et al. by Michael R. Klipper; for the Association of American Publishers, Inc., et al. by Charles S. Sims; for the Association of American Railroads by Betty Jo Christian and Shannen W. Coffin; for the Federal Circuit Bar Association by George E. Hutchinson and William M. Atkinson; for the New York Intellectual Property Law Association by Charles P. Baker, Bruce M. Wexler, and Howard B. Barnaby; and for the Pacific Legal Foundation by Eric Grant and James S. Burling.

Briefs of amici curiae were filed for the American Intellectual Property Law Association by Joseph R. Re, Michael K. Friedland, and Don W. Martens; and for the Association of the Bar of the City of New York by Leon Friedman, Louis A. Craco, Jr., and James F. Parver.