Full opinion text
MEMORANDUM OPINION GARRETT E. BROWN, Jr., District Judge. This matter comes before the Court on the motions of defendant, Florida Prepaid Postseeondary Education Expense Board, to dismiss plaintiffs Patent Act Claim (Civ. No. 94- 5610) and Lanham Act Claim (Civ. No. 95- 4516) pursuant to Fed.R.Civ.P. 12(h)(3). For the reasons set forth herein, the Court will grant defendant’s motion to dismiss the Lanham Act Claim and deny defendant’s motion to dismiss the Patent Act Claim. 1. BACKGROUND A. The Parties Plaintiff College Savings Bank (“CSB”) is a New Jersey chartered savings bank located in Princeton, New Jersey. CSB alleges that since September, 1987, it has engaged in the business of selling CollegeSure® CD, a deposit contract administered according to a patented method and intended to provide a return adequate to satisfy college education expenses, even though those expenses are presently unknown. See Patent Act Compl. ¶ 3. Defendant Florida Prepaid Postseeondary Expense Board (“Florida Prepaid”) is a body corporate of the State of Florida, created by FlaStat. § 240.551 to manage and operate the Florida Prepaid Postseeondary Education Expense Program (the “Program”). Like CSB, Florida Prepaid agrees to provide a return for the money invested that is guaranteed to be adequate to meet payouts required to fund the uncertain cost of a college education at specified dates in the future. Florida Prepaid has administered a tuition prepayment program since September, 1988. B. The Claims 1. The Patent Act Claim On November 7, 1994, CSB brought an action against Florida Prepaid for allegedly infringing CSB’s ’055 patent. Specifically, CSB avers, in pertinent part, that: 6. Defendant Florida Prepaid has been and still is directly infringing, actively inducing the infringement of, or contributing to the infringement of, the ’055 patent by making, using, or selling in this Judicial District and elsewhere, contracts administered in accordance with a method to provide a return adequate to meet payouts for funding the uncertain cost of a college education at a future date. 7. Defendant Florida Prepaid with actual knowledge of the ’055 patent, with knowledge of its infringement, and without lawful justification, has willfully infringed the ’055 patent. Patent Act Compl. ¶¶ 6-7. Thus, CSB contends that the manner in which Florida Prepaid performs its obligations under its college prepayment contracts — that is, the data processing apparatus and methods that Florida Prepaid uses — directly infringes CSB’s patent under 35 U.S.C. § 271. 2. The Lanham Act Claim On August 25,1995, CSB filed a complaint against Florida Prepaid alleging violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and the common law tort of unfair competition. CSB asserts that its efforts to sell investment contracts have been hurt by “false and misleading claims that Florida Prepaid has made in its promotional materials.” Lanham Act Compl. ¶ 11. Specifically, CSB alleges that defendant falsely represented the Florida Prepaid program in the following respects: (1) that the State of Florida guarantees all contract beneficiaries to have the full amount necessary to fund a college education at a participating college or university, id. ¶ 14; (2) that any tax liability on a Florida Prepaid contract is deferred until the student reaps the benefits of the contract, i.e., is enrolled at college, id. ¶ 22; (3) that Florida Prepaid’s investments are backed by the “full faith and credit” of the United States, id. ¶¶ 30-32; and (4) that defendant faded to disclose, in its 1995 Annual Report, the existence of CSB’s patent infringement action against it. Id. ¶¶ 37-39. 3. The Counterclaims In response to CSB’s Patent Act Claim, Defendant filed a counterclaim seeking a declaration from this Court that CSB’s ’055 patent is invalid, unenforceable and void. Moreover, with respect to plaintiffs Lanham Act Claim, defendant filed counterclaims alleging defamation, product disparagement and trade libel. These counterclaims are centered on a statement made by Peter Roberts, the President and Chief Financial Officer of CSB, as quoted and printed in the September 13,1995 edition of the Miami Daily Business Review, shortly after CSB filed the Lanham Act Claim. Commenting on the representations Florida Prepaid makes in the promotion of its deposit contract program, Mr. Roberts stated: “At best those claims are half-truths, and at worst they’re outright lies.” See Stan Yabaro, Prepaid College Plan Faces New Suit from Rival, Miami Daily Bus. Rev., Sept. 13, 1995, at Al, A7, attached to Florida’s Prepaid’s Lanham Act Answer, Affirmative Defenses and Counterclaims as Exh. C. C. Procedural History On March 23,1995, Florida Prepaid filed a motion to dismiss the Patent Act Claim or, in the alternative, to transfer the action' to the Northern District of Florida. Defendant alleged that CSB’s Patent Act Claim failed to state a claim for patent infringement because there was no allegation that defendant was actually using or selling the method patented by CSB. See Florida Prepaid’s Brief in Support of its Motion to Dismiss or Transfer Venue at 5. Therefore, defendant argued, the Patent Act Claim should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). In the alternative, Florida Prepaid argued that the patent action should be transferred to the Northern District of Florida in view of forum non-conveniens issues. Id. at 7. ■ On May 4, 1995, this Court denied defendant’s motions. Specifically, we found that the complaint, as reasonably read, alleges the defendant has infringed the ’055 patent by using the methods and apparatus patented therein to fulfill its obligation to purchasers of the contract. That easily satisfies the standard articulated in Rule 8(a). Paragraph 6 of the complaint alleges the defendant is infringing the patent by selling contracts performed and effectuated by use of the claims of the ’055 patent. While one could interpret the paragraph as complaining of the sale of contracts, it also clearly alleges that the defendant, to perform its obligations under the contract, utilized the methods covered by the ’055 patent. In this regard, it is useful to remember that a contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law, in some way, recognizes as a duty. The bargained for exchange here is that the defendant’s contracts allegedly memorialize that in return for the purchaser’s investment, Florida Prepaid will somehow provide a return sufficient to satisfy the presently unknown financial liabilities of a college education. Inherent in that allegation, is that the defendant necessarily employs the methods covered by the ’055 patent to fulfill its performance. The complaint recognizes this in paragraph 6, as evidenced by its own terms, and its close tracking of the claims of the ’055 patent. I will deny the motion to dismiss. See May 4, 1995 Transcript of Motion at 8-9, College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., Civ. No. 94-5610 (D.N.J. May 4, 1995) (GEB). Moreover, the Court was unpersuaded by defendant’s forum non conveniens argument because, inter alia: (1) the defendant maintained significant contacts with New Jersey; (2) the median trial time at the time of the motion was significantly longer in the Northern District of Florida than in the District of New Jersey; and (3) most of Florida Prepaid’s third-party agents who sell contracts and conduct other activities reside outside of Florida. Id. at 17-19. An Order denying defendant’s motions was entered on May 5,1995. More than eight months later, on February 9, 1996, CSB filed a motion to dismiss Florida Prepaid’s counterclaims for defamation, product disparagement and trade libel. CSB argued that Florida Prepaid, as a state agency, could not maintain an action for libel or defamation based on statements critical of government operations because such speech is protected by the Free Speech Clause of the First Amendment to the United States Constitution. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 919 F.Supp. 756, 758 (D.N.J.1996) (GEB) (“College Savings I ”). CSB also contended that Roberts’s statement was privileged speech because it commented on a judicial proceeding or a matter that is of public interest. Id. By Memorandum Opinion and Order dated March 22,1996, this Court granted plaintiffs motion to dismiss defendant’s Lanham Act counterclaims after concluding that a government agency, such as Florida Prepaid, could not maintain an action for libel or defamation, regardless of whether that agency is acting in a proprietary capacity. Id. at 760. We also noted that “[a] contrary holding would leave open the possibility that a government agency could file a civil action alleging defamation with malice, and thereby employ its potentially vast resources to chill speech in any number of contexts and regardless of the speaker’s actual intent.” Id. (citing New York Times Co. v. Sullivan, 376 U.S. 254, 297, 84 S.Ct. 710, 735, 11 L.Ed.2d 686 (1964) (Black, J., concurring)). Finally, this Court determined that the common law distinction between product disparagement and trade libel on the one hand, and defamation on the other hand, was irrelevant for purposes of plaintiffs motion because Roberts’s statement addressed a matter of public concern. Id. at 761-63. D. Statutory History Florida Prepaid challenges the constitutionality of certain provisions of the Patent Act and the Lanham Act. The Patent Act, first enacted in 1790, grants and protects an inventor’s right of exclusion for a certain period. See Act of April 10, 1790, ch. VII, 1 Stat. 109; Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480, 94 S.Ct. 1879, 1885-86, 40 L.Ed.2d 315 (1974). The Lanham Act was enacted in 1946. See Act of July 5, 1946, ch. 540, 60 Stat. 427. It is intended, among other things, to protect those engaged in commerce against unfair competition. See 15 U.S.C. § 1127. In 1992, the Congress enacted amendments to the Patent Act and the Lanham Act to make clear that state governmental entities must abide by these statutes. See Patent and Plant Variety Protection Remedy Clarification Act, Pub.L. No. 102-560, 106 Stat. 4230 (1992); Trademark Remedy Clarification Act, Pub.L. No. 102-542, 106 Stat. 3567 (1992). Both enactments provide that no state or state instrumentality is immune from suit under the Eleventh Amendment for violations of these statutes. See Pub.L. No. 102-560, § 2(a)(2), 106 Stat. at 4230 (codified at 35 U.S.C. § 296(a)); Pub.L. No. 102-542, § 3(b), 106 Stat. at 3567 (codified at 15 U.S.C. § 1122(a)). The 1992 amendments were considered necessary because of Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), which held that congressional intent to abrogate state immunity must be explicitly and unambiguously stated in the statute itself, see id. at 246, 105 S.Ct. at 3149 — and because of later decisions that relied on Atascadero. See S.Rep. No. 102-280, 102d Cong., 2d Sess. 4-7 (1992), reprinted in 1992 U.S.C.C.A.N. 3087, 3090-93. The Congress noted that, under those court decisions, the protection afforded by the Patent Act and the Lanham Act “depend[ed] on the status of the infringed party” — that is, whether the party was a state actor. See id. at 9. The amendments were enacted to eliminate this “inherent inequity” and to provide “uniform protection” to patent holders and competitors. See id. at 7,9. E. The Seminole Tribe Decision In 1992, the State of Florida was sued in federal court for violating the Indian Gaming Regulatory Act (“IGRA”), Pub.L. No. 100-497,102 Stat. 2467 (1988). Seminole Tribe of Florida v. Florida, 801 F.Supp. 655, 656 (S.D.Fla.1992), rev’d, 11 F.3d 1016 (11th Cir.1994), aff'd, — U.S. -, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Under IGRA, which was passed pursuant to the Indian Commerce Clause, art. I, § 8, cl. 3 of the Constitution, an Indian tribe may sue the state in federal court if the state refused to negotiate in good faith with the tribe oyer the establishment of a “compact” to permit gaming on the reservation. 25 U.S.C. § 2710(d)(7). Florida and its individually named governor moved to dismiss the action for lack of subject matter jurisdiction, challenging the constitutionality of the Act under the Eleventh Amendment. Following a denial of that motion by the district court, the Eleventh Circuit reversed, holding that the Indian Commerce Clause did not grant Congress the authority to abrogate sovereign immunity. Seminole Tribe of Florida v. Florida, 11 F.3d at 1016, 1025-28 (11th Cir.1994), aff'd, — U.S.-, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). That court further held that the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), did not authorize suit against the governor in his individual capacity. Id. at 1029. The Supreme Court granted certiorari in order to consider: (1) whether the Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause; and (2) whether the doctrine of Ex Parte Young allows suits against the state’s governor for prospective injunctive relief to enforce provisions of the statute. — U.S. at-, 116 S.Ct. at 1122. In a majority decision written by Chief Justice Rehnqüist, and joined by Justices O’Connor, Scalia, Kennedy and Thomas, the Supreme Court affirmed the Eleventh Circuit’s dismissal of the petitioner’s suit, holding that despite Congress’s clear intent to abrogate sovereign immunity as evidenced by the language of the statute itself, the Indian Commerce Clause does not grant Congress the power to abrogate a state’s immunity without its consent. Id. at---, 116 S.Ct. at 1131-32. In reaching this conclusion, the Seminole Tribe majority noted that two questions must be answered to determine if Congress has abrogated the states’ immunity from suit: “first, whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity,’ and second, whether Congress has acted ‘pursuant to a valid exercise of power.’ ” Id. at-, 116 S.Ct. at 1123. The Court indicated that it was “unmistakably clear” that Congress intended to abrogate Eleventh Amendment immunity in enacting IGRA. Id. at-, 116 S.Ct. at 1124. With respect to the second prong of the analysis, however, the Court concluded that Congress had no power to abrogate Eleventh Amendment immunity under the Indian Commerce Clause. Id. at-, 116 S.Ct. at 1130. The Court noted that authority to abrogate had been found under only two constitutional provisions in prior decisions: the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and the Interstate Commerce Clause, see Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). Id. — U.S. at-, 116 S.Ct. at 1124-25. The Seminole Tribe Court determined that the plurality decision in Union Gas should be overruled because it was wrongly decided. Id. at---, 116 S.Ct. at 1128-29. Accordingly, the Court concluded that the Indian Commerce Clause, which is indistinguishable from the Interstate Commerce Clause for purposes of abrogation, did not allow Congress to strip the states of their Eleventh Amendment immunity in the enactment of IGRA. Id. at---, 116 S.Ct. at 1131-32. F. The Present Motions Less than two months after the United States Supreme Court announced its decision in Seminole Tribe, Florida Prepaid filed the instant motions to dismiss CSB’s Patent Act Claim and Lanham Act Claim. Essentially, Florida Prepaid asserts that CSB’s claims must fail because: (1) to the extent that Congress amended the statutes in question pursuant to one or more of its Article I powers, such amendments are unconstitutional in the wake of Seminole Tribe; and (2) to the extent that Congress amended the statutes in question pursuant to Section 5 of the Fourteenth Amendment, these amendments are not “appropriate legislation” because they are not aimed at remedying the types of actions expressly prohibited by the Fourteenth Amendment’s substantive provisions. This Court certified Florida Prepaid’s constitutional challenges to the Attorney General under 28 U.S.C. § 2403(a) and Rule 32A of the General Rules of the District of New Jersey. Upon request of the Department of Justice, the Court filed Orders on July 30 and August 2, 1996, making the United States an Intervenor in these actions. In response to Florida Prepaid’s motions, both CSB and the Intervenor assert that: (1) Florida Prepaid has waived any Eleventh Amendment immunity it may have been entitled to by engaging in the interstate marketing and administration of its investment contracts after Congress indicated that such activity would subject it to suit in federal court (i.e., the doctrine of constructive waiver set forth in Parden v. Terminal Ry. of Ala. State Docks Dep’t, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964)); and (2) the 1992 amendment to the Patent Act is a valid exercise of federal authority under Section 5 of the Fourteenth Amendment, thereby abrogating the states’ Eleventh Amendment immunity from suit under that statute. In addition, CSB has raised — and the Intervenor has expressly declined to take a position with respect to — the following arguments: (1) Florida Prepaid is not an “alter ego” or “arm of the state” of Florida and, therefore, is not entitled to Eleventh Amendment immunity; and (2) even assuming that Florida Prepaid is entitled to sovereign immunity, (a) defendant has waived its immunity through its actions in these lawsuits; and (b) the 1992 amendment to the Lanham Act is a valid exercise of federal authority under Section 5 of the Fourteenth Amendment, thereby abrogating the states’ Eleventh Amendment immunity from suit under that statute. II. DISCUSSION A. Standard for a Motion to Dismiss Rule 12(b)(1) concerns a federal court’s “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). Because “[fjederal courts are courts of limited jurisdiction,” they have power to adjudicate “only those cases within the bounds of Article III and the United States Constitution and Congressional enactments stemming therefrom.” Walsh v. McGee, 899 F.Supp. 1232, 1236 (S.D.N.Y.1995) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803); W.G. v. Senatore, 18 F.3d 60, 64 (2d Cir.1994)). The question of subject matter jurisdiction is so fundamental that it is a “question the court is bound to ask and answer for itself, even when not otherwise suggested____” Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). Thus, there is no restriction on who may make a motion pursuant to Rule 12(b)(1), or when such motion may be made. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 200 (2d ed.1990). In fact, Rule 12(h)(3) specifically provides that “[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” The burden of proving that a federal court has subject matter jurisdiction over a given action rests with the party attempting to invoke the court’s jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942); see generally 13 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3522, at 60-64 (2d ed.1984). If a ease is dismissed for lack of subject matter jurisdiction, all other matters are moot. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). B. Arm op the State Doctrine CSB first contends that the constitutional issues in this case need not be reached because Florida Prepaid is not the “alter ego” or “arm of the state” of Florida and, therefore, is not even entitled to Eleventh Amendment immunity. In response, Florida Prepaid counters that: (1) CSB is judicially estopped from arguing that Florida Prepaid is not an arm of the state for purposes of the pending motions because it previously argued in College Savings I that a state agency, such as Florida Prepaid, is barred as a matter of law from maintaining counterclaims for defamation, product disparagement and trade libel, see Florida Prepaid’s Lanham Act Brief at 10; (2) CSB is barred by the law of the case doctrine from arguing that Florida Prepaid is not an arm of the state because this Court previously dismissed Florida Prepaid’s counterclaims after finding that Florida Prepaid was a state agency, see id.; and (3) Florida Prepaid has satisfied its burden under Christy v. Pennsylvania Turnpike Comm’n, 54 F.3d 1140 (3d Cir.), cert. denied, — U.S. -, 116 S.Ct. 340, 133 L.Ed.2d 238 (1995), of demonstrating that it is an arm of the State of Florida. Id. at 5-10. These claims will be addressed seriatim. 1. Judicial Estoppel The doctrine of judicial estoppel “serves a consistently clear and undisputed jurisprudential purpose: to protect the integrity of the courts.” McNemar v. Disney Store, Inc., 91 F.3d 610, 616 (3d Cir.1996). This doctrine, which “is an equitable doctrine invoked by a court at its discretion,” id. at 617 (quotation omitted), precludes a party from assuming a position in a legal proceeding that contradicts or is inconsistent with a previously asserted position. Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir.1996); Delgrosso v. Spang & Co., 903 F.2d 234, 241 (3d Cir.), cert. denied, 498 U.S. 967, 111 S.Ct. 428, 112 L.Ed.2d 412 (1990); Scarano v. Central R.R. Co. of N.J., 203 F.2d 510, 513 (3d Cir.1953); 18 Charles A Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4477 (1981 & Supp.1996). While judicial estoppel is not intended to eliminate all inconsistencies, regardless of how slight or inadvertent, it is designed to prevent litigants from “playing ‘fast and loose with the courts.’ ” Ryan Operations, 81 F.3d at 358 (quoting Scarano, 203 F.2d at 513). To permit a party to assume a position inconsistent with a position it had successfully relied upon in a past proceeding “would most flagrantly exemplify ... playing ‘fast and loose with the courts’ which has been emphasized as an evil the courts should not tolerate.” Delgrosso, 903 F.2d at 241 (quoting Scarano, 203 F.2d at 513); see id. at 242 (noting that the “application of the doctrine of judicial estoppel is particularly appropriate in situations ... where the party benefitted from its original position.”). To determine whether the doctrine of judicial estoppel applies to the particular facts and circumstances of a position, a court must engage in a two-part threshold inquiry: “(1) Is the party’s present position inconsistent with a position formerly asserted? (2) If so, did the party assert either or both of the inconsistent positions in bad faith — i.e., “with intent to play fact and loose with the court?’ ” McNemar, 91 F.3d at 618 (citing Ryan Operations, 81 F.3d at 361). Only if both prongs are satisfied is judicial estoppel an appropriate remedy. Ryan Operations, 81 F.3d at 361. While at first blush it may appear as though CSB has asserted inconsistent positions regarding Florida Prepaid’s. status as an arm of the state, closer examination reveals that the issue of whether a state agency may bring an action for defamation, product disparagement or trade libel against a private competitor does not resolve whether that same state agency is entitled to Eleventh Amendment immunity. Indeed, the City of Chicago itself, whose suit against the Chicago Tribune occasioned the clear enunciation of the doctrine that no government entity can maintain actions for defamation, see City of Chicago v. Tribune Co., 307 Ill. 595, 139 N.E. 86 (1923), has been found not to be. entitled to immunity under the Eleventh Amendment. N.M. Paterson & Sons, Ltd. v. City of Chicago, 176 F.Supp. 323, 324 (N.D.Ill.1959). Accordingly, the Court finds that judicial estoppel is inappropriate under these circumstances. 2. Law of the Case The law of the case doctrine was developed “to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Casey v. Planned Parenthood of Southeastern Pa., 14 F.3d 848 (3d Cir.1994) (quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Rules and Practice Procedure § 4478 (1981)). The doctrine of the law of the case dictates that “when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the litigation.” Deisler v. McCormack Aggregates Co., 54 F.3d 1074, 1086 (3d Cir.1995); Resyn Corp. v. United States, 945 F.2d 1279, 1281 (3d Cir.1991) (quoting Devex Corp. v. General Motors Corp., 857 F.2d 197, 199 (3d Cir.1988), cert. denied sub nom. Technograph Liquidating Trust v. General Motors Corp., 489 U.S. 1015, 109 S.Ct. 1128, 103 L.Ed.2d 190 (1989)), Law of the case rules apply “both to issues expressly decided by a court in prior rulings and to issues decided by necessary implication.” Bolden v. Southeastern Pa. Transp. Auth., 21 F.3d 29, 31 (3d Cir.1994) (citing Doe v. New York City Dep’t of Social Servs., 709 F.2d 782 (2d Cir.), cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983)). The law of the case doctrine merely “directs a court’s discretion, it does not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983); Bloom v. Consolidated Rail Corp., 812 F.Supp. 553, 556 (E.D.Pa.1993), rev’d on other grounds, 41 F.3d 911 (3d Cir.1994). It is axiomatic that “the doctrine of the law of the case comes into play only with respect to issues previously determined.” Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1149 n. 18, 59 L.Ed.2d 358 (1979). As noted above, this Court’s ruling that Florida Prepaid could not maintain an action for defamation, product disparagement or trade libel against CSB was not dispositive of the issue of whether that same state agency is entitled to Eleventh Amendment immunity. Nor was this issue decided by implication. Therefore, because College Savings I did not reach the issue of whether Florida Prepaid is an alter ego or arm of the State of Florida, we conclude that the doctrine of the law of the case is inapplicable to the ease at bar and does not preclude this Court from considering the merits of CSB’s - argument that Florida Prepaid is not entitled to Eleventh Amendment immunity. 3. Arm of the State Doctrine The Eleventh Amendment to the Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This provision divests the federal courts of the power to entertain a suit brought by a private party against a state unless either the state consents or Congress authorizes the action. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990); Ford Motor Co. v. Dep’t of Treasury of the State of Ind., 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890). The Eleventh Amendment bars suits not only against the state itself, but also against a subdivision of the state if the state remains “the real party in interest.” Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); 13 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3524, at 140-45 (2d ed.1984) (Eleventh Amendment protects subdivisions of states such as penal institutions, highway departments, courts, most universities, and bar associations). The state is the real party in interest whenever ‘“the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ ” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n. 11, 104 S.Ct. 900, 908 n. 11, 79 L.Ed.2d 67 (1984) (quoting Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963)). In an effort to formulate a test to determine whether Eleventh Amendment immunity extends to a particular entity, the Third Circuit has developed the following set of factors (“Urbano factors”) : (1) whether, in the event the plaintiff prevails, the payment of the judgment would come from the state (this includes three considerations: whether the payment will come from the state’s treasury, whether the agency has sufficient funds to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency’s debts); (2) the status of the agency under state law (this includes four considerations: how state law treats the agency generally, whether the agency is separately incorporated, whether the agency can sue and be sued in its own right, and whether it is immune from state taxation); and (3) what degree of autonomy the agency enjoys. Christy, 54 F.3d at 1144-45 (citing Peters v. Del. River Port Auth. of Pa. and N.J., 16 F.3d 1346, 1350 (3d Cir.), cert. denied, — U.S. -, 115 S.Ct. 62, 130 L.Ed.2d 20 (1994)); see also Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 807, 816 (3d Cir.1991) (in banc), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992); Fitchik, 873 F.2d at 659. The party asserting Eleventh Amendment immunity bears the burden of proving entitlement to it. Christy, 54 F.3d at 1144. We turn now to this three-pronged inquiry. a. Funding Although no single Urbano factor is dispositive, the “most important” is whether a judgment against the entity in question would be paid out of the state treasury. Christy, 54 F.3d at 1145 (citing Fitchik, 873 F.2d at 659). This special emphasis is supported by “the Eleventh Amendment’s central goal: the prevention of federal court judgments that must be paid out of the State’s treasury.” Id. (citing Fitchik, 873 F.2d at 659-60). See also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, -, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994) (“[Prevention of federal court judgments that must be paid out of a State’s treasury” formed the “impetus” for the Eleventh Amendment); id. (“[T]he vast majority of Circuits have concluded that the state treasury -factor is the most important factor to be considered and, in practice, have generally accorded this factor dispositive weight.”). Under Florida law, Florida Prepaid can “[ijnvest funds not required for immediate disbursement.” FlaStat. § 240.551(5)(c)(5). Florida Prepaid may also “[hjold, buy, and sell any instruments, obligations, securities, and property determined appropriate by the board,” see FlaStat. § 240.551(5)(c)(7), “[sjolicit and accept gifts, grants, loans, and other aids from any source,” see FlaStat. § 240.551(5)(e)(12), and “[rjequire and collect administrative fees and charges in connection with any transaction and impose reasonable penalties, including default, for delinquent payments for entering into an advance payment contract on a fraudulent basis.” Fla Stat. § 240.551(5)(c)(13). Moreover, Florida Prepaid has the authority to increase contract prices as necessary to meet its costs. See 1995 Florida Prepaid College Program Brochure at 8, attached to Declaration of Deborah M. Lodge (“Lodge Decl.”) as Exh. 7. Using these powers, Florida Prepaid has amassed total assets of nearly $1.5 billion and a surplus in excess of $184 million as of June 30, 1995. Moreover, it has done so without much, if any, support from the State of Florida. Indeed, Stanley Tate, Florida Prepaid’s chairman, stated that: “Not one dime of tax money has been spent on this program.” See Testimony of Stanley G. Tate, April 30, 1990, before the Subcommittee on Labor, Health and Human Services, Education and Related Agencies, 101st Cong., 2d Sess. at 2504, attached to Lodge Decl. as Exh. 3. In the same written testimony, Tate also explained that the program was started with a $600,000 loan from the State of Florida Department of Insurance, and that this loan was paid in full in 1989, “two full years ahead of schedule.” Id. Although these factors tend to show that defendant is self-sufficient in many respects, Florida Prepaid is precluded by law from satisfying a judgment against it. Specifically, Florida law provides: Neither the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law. To enforce a judgment for mone- ■ tary damages against the state or a state agency, the sole remedy of the judgment creditor, if there has not otherwise been an appropriation made by law to pay the judgment, is to petition the Legislature in accordance with its rules to seek an appropriation to pay the judgment. FlaStat. § 11.066(3). Thus, the fact that Florida Prepaid may have more than ample funds to satisfy any judgment that may result from this action is completely irrelevant because Florida Prepaid, like all other state agencies in Florida, is barred by law from satisfying any judgment against it, regardless of amount. Accordingly, this factor weighs heavily in favor of finding that Florida Prepaid is an arm of the State of Florida. Another factor that tends to weigh in favor of Florida Prepaid’s claim that it is entitled to Eleventh Amendment immunity is the fact that, if the Trust Fund itself proves unable to meet its obligations, the State of Florida will pay the beneficiaries directly: The state shall agree to meet the obligations of the board to qualified beneficiaries if moneys in the fund fail to offset the obligations of the board. The Legislature shall appropriate to the Prepaid Postsecondary Education Expense Trust Fund the amount necessary to meet the obligations of the board to qualified beneficiaries. FlaStat. § 240.551(9). Thus, any resulting depletion of the Trust Fund through litigation would likely trigger the obligation of the State to make payments to beneficiaries. Moreover, the State of Florida is ultimately responsible for covering certain debts of Florida Prepaid: In the event that the state determines the program to be financially infeasible, the state may discontinue the provision of the program. Any qualified beneficiary who has been accepted by and is enrolled or is within 5 years of enrollment ... shall be entitled to exercise the complete benefits for which he or she has contracted. All other contract holders shall receive a refund ... of the amount paid in and an additional amount in the nature of interest at a rate that corresponds, at a minimum, to the prevailing interest rates for savings accounts provided by banks and savings and loan associations. Id. § 240.551(14). Therefore, while the parties argue over the importance of this obligation, see CSB’s Lanham Act Brief at 15-16; Montjoy Decl. ¶¶ 28-26, it is undisputed that under certain circumstances, the State of Florida will cover Florida Prepaid’s debts. Accordingly, the Court finds that this factor weighs heavily in favor of finding that Florida Prepaid is an arm of the state. The existence of a moderate amount of insurance does not change this analysis. The Florida Casualty Insurance Risk Management Trust Fund is a self-insurance program created by the State of Florida for the purpose of insuring all state agencies and is administered by the Division of Risk Management of the Florida Department of Insurance. See Montjoy Decl. ¶¶ 15-20. Premiums paid into the Fund by state agencies come from a variety of sources, including state-appropriated funds. See id. ¶ 19. Coverage is limited to $100,000 per claimant and $200,000 for all claims arising out of the same transaction ' or occurrence. FlaStat. § 768.28. Thus, only the first $100,000 or $200,000 of any judgment(s) would be paid through insurance; the rest could be obtained only through direct legislative appropriation. Montjoy Decl. ¶ 21. Taken together, these provisions do not establish that the State of Florida has insulated itself from any potential liability that may arise from a claim against Florida Prepaid. Rather, these provisions tend to demonstrate that the State of Florida has found, as a matter of policy, that the legislature should not be burdened with petitions for such claims. Accordingly, the existence of insurance in this matter does not weigh against Florida Prepaid’s claim that it is an arm of the state. In addition, the Court is not persuaded by CSB’s suggestion that the importance of Fla Stat. § 11.066(3), which provides that any judgment against a state agency must be paid pursuant to an appropriation of the state legislature, should somehow be diminished because “[i]t was adopted solely to bolster sovereign immunity.” CSB’s Lanham Act Brief at 17 (citing Arnold v. BLaST Intermediate Unit 17, 843 F.2d 122 (3d Cir.1988); Gary W. v. State of La., 622 F.2d 804 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981)). First, in both Arnold and Gary W., the courts were faced with the issue of whether a state could, in effect, avoid paying a federal judgment by relying on its own law to frustrate execution. The federal courts quite properly refused to countenance such defiance. Moreover, neither case involved an Eleventh Amendment question, and neither case suggests that a court should ignore an applicable state-law payment provision before a judgment is rendered. Second, the Supreme Court has never indicated that a state acts inappropriately by structuring, an agency so that it may enjoy the special constitutional protections of the States themselves. Indeed, in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, the Court found that such structuring was a factor weighing in favor of finding an agency to be an arm of the state. 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). In sum, the Court finds that the first fab-tor, whether the source of payment for any judgment would come from the state, weighs heavily in favor of finding that Florida Prepaid is an alter ego of the State of Florida. Florida is obligated, under certain circumstances, to cover the obligations of Florida Prepaid. Moreover, while it is true that the legislature is not compelled to satisfy a judgment against Florida Prepaid, Florida Prepaid, like all other state agencies in the State of Florida, cannot satisfy this judgment itself. Clearly, the State of Florida should not be penalized with the loss of sovereign immunity for the way it had chosen to organize its government. Florida Prepaid operates in the same manner and is subject to the. same restrictions as other Florida State agencies. b. Status at State Law The second general factor we must consider in determining whether Florida Prepaid is an arm or alter ego of the State of Florida is the status of Florida Prepaid under Florida law. Our purpose here is to determine whether Florida law treats Florida Prepaid as an independent entity, or as a surrogate for the State. See Fitchik, 873 F.2d at 662. Under Florida law, those entities entitled to sovereign immunity include “state agencies,” which are defined as, inter alia, “ ‘corporations primarily acting as instrumentalities or agencies of the state.’” Skoblow v. Ameri-Manage, Inc., 483 So.2d 809, 812 (Fla.App. 3d Dist.1986) (quoting FlaStat. § 768.28(2)), aff'd sub nom. Spooner v. Dep’t of Corrections, 514 So.2d 1077 (Fla.1987), cert. denied, 491 U.S. 904, 109 S.Ct. 3184, 105 L.Ed.2d 693 (1989). In Skoblow, the court held that a private hospital management company was entitled to sovereign immunity as a “state agency” because it had contracted with the government to manage a state hospital. Id. at 811-12. It follows, therefore, that a full-time state agency such as Florida Prepaid can receive no less protection. Several other factors also weigh in favor- of finding Florida Prepaid an arm of the state. For example, monies in the Florida Prepaid Trust Fund are protected by law from the creditors of the owners or beneficiaries of advance tuition payment contracts. See Fla Stat. § 222.22. Florida Prepaid also enjoys certain tort immunity under state law. See FlaStat. § 768.28. Further, all of Florida Prepaid’s powers are derived from specific legislative grants. Indeed, state agencies in Florida have no inherent or common law powers. Kizar v. Wittenberg, 398 So.2d 1002, 1003 (Fla.App. 5th Dist.1981); Florida ex rel. Greenberg v. Florida State Bd. of Dentistry, 297 So.2d 628, 636 (Fla.App. 1st Dist.), cert. dismissed, 300 So.2d 900 (Fla.1974). All Florida agencies, including Florida Prepaid, have only those powers specifically 'granted to them by the legislature. On the other hand, there are certain factors which tend to weigh against a finding of immunity. Specifically, Florida Prepaid: (1) has the ability to sue and be sued in its own name; (2) controls its own funds and the investment and income therefrom; (3) may enter into contracts in its own name; and (4) may invest funds. See CSB’s Lanham Act Brief at 22 & n. 20. However, the Supreme Court has found that at least two of these factors — the fact that an agency is a “body corporate” and that it could “sue or be sued” — have limited relevance in Eleventh Amendment cases. Florida Dep’t of Health & Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam). Moreover, this Court has already determined that Florida Prepaid’s ability to control funds, enter into contracts, and invest funds was relatively unimportant for the present analysis when compared with other statutory provisions under federal law. Accordingly, the Court finds that the second general factor also weighs in favor of a finding of immunity, c. Autonomy The Prepaid Postsecondary Education Expense Board, which administers Florida Prepaid, is composed of four officers of the State of Florida: the Insurance Commissioner and Treasurer, the Comptroller, the Chancellor of the Board of Regents, and the Executive Director of the State Board of Community Colleges. Fla.Stat. § 240.551(5). Three additional members are appointed by the Governor of Florida and confirmed by the State Senate. Id. The Governor also appoints the initial chairman of the board. Id. § 240.551(5)(a). State authority over the appointment of Board members “lends obvious support to a finding of sovereignty.” Christy, 54 F.3d at 1149 (citing Peters, 16 F.3d at 1351-52). Moreover, in another plain limitation on autonomy, Florida Prepaid’s aecounts are “subject to annual audits by the Auditor General or his designee.” FlaStat. § 240.551(5)(g). On the other hand, weighing in favor of a finding of autonomy are the facts that the Board itself “appoint[s] an executive director to serve as the chief administrative and operational officer of the board and to perform other duties assigned to him or her by the board,” FlaStat. § 240.551(5)(b) and is authorized to “[cjontract for necessary goods and services, employ necessary personnel, and engage the services of private consultants, actuaries, managers, legal counsel, and auditors for administrative or technical assistance.” Id. § 240.551(5)(e)(ll). Florida Prepaid also has the ability to “[establish agreements or other transactions with federal, state, and local agencies, including state universities and community colleges,” id. § 240.551(5)(c)(4), “[i]nvest funds not required for immediate disbursements,” id. § 240.551(5)(e)(5), “[ajppear on its own behalf before boards, commissions, or other governmental agencies,” id. § 240.551(5)(e)(6), “[h]old, buy, and sell any instruments, obligations, securities, and property determined appropriate by the board,” id. § 240.551(5)(c)(7), “[rjestrict the numbers of participants in the ... plants],” id. § 240.551(5)(c)(9), “[d]elineate the terms and conditions under which payments may be withdrawn from the fund and impose reasonable fees and charges for such withdrawal,” id. § 240.551(5)(c)(16), and “[e]stablish other policies, procedures, and criteria to implément and administer the provisions of this section.” Id. § 240.551(5)(c)(18). On balance, this factor weighs slightly in favor of immunity irom suit in this case. Cf. Peters, 16 F.3d at 1351-52 (where separately incorporated agency was found to have power to enter contracts, hold property, and set and collect tolls, court held that the autonomy factor weighed “slightly” in favor of affording immunity in light of the states’ power to appoint the members of the board of the agency in question). Further, we note that like all Florida state agencies, Florida Prepaid has only the powers and degree of independence necessary for it to carry out the tasks assigned to it by the State of Florida, d. Totality of the Factors Having considered each of the three factors above, we now must consider the three factors in their totality. See Bolden, 953 F.2d at 821. Since the most important factor, funding, weighs heavily in favor of Florida Prepaid, and the other two factors also weigh at least slightly in favor of Florida Prepaid, the balance is clearly struck in favor of a finding that Florida Prepaid enjoys sovereign immunity as an arm of the State of Florida. C. Waiver By Conduct in Litigation CSB argues that, even if the Eleventh Amendment would otherwise apply and would undercut the jurisdiction of this Court, Florida Prepaid has waived this defense and has effectively consented to being sued here by “participating in this federal action and by filing counterclaims in both the Lanham Act and patent actions.” CSB’s Lanham Act Brief at 9. According to CSB, Florida Prepaid has made more than a “general appearance” in this Court. Florida Prepaid has filed three counterclaims and has availed itself of the Court’s jurisdiction in those matters. By virtue of its participation in this suit, Florida Prepaid thus has waived any Eleventh Amendment immunity it might have enjoyed. Id. at 10 (citation omitted). Moreover, CSB seems to suggest that Florida Prepaid’s failure to raise the Eleventh Amendment defense in its pleadings somehow precludes defendant from raising this defense at this time. Plaintiffs arguments merit little discussion. To begin with, Florida Prepaid did not voluntarily enter into this litigation; instead, it was sued in this district despite conducting less than one percent of its business here. Thus, its motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, to transfer the Patent Act Complaint to the Northern District of Florida pursuant to 28 U.S.C. § 1404, must be viewed as the response of a “beleaguered defendant,” rather than an active participant. See Unix Sys. Labs., Inc. v. Berkeley Software Design, Inc., 882 F.Supp. 790, 801 (D.N.J.1993); see also Pennhurst State Sch. & Hosp., 465 U.S. at 99, 104 S.Ct. at 907 (stating that the waiver of a state’s sovereign immunity, like the waiver of any constitutional right, must be construed in favor of the holder of the right). It is also clear that Florida Prepaid’s counterclaims all involved matters that arose from, or were concerned with, matters in the underlying complaints. See Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1512 (3d Cir.) (noting that it is well established that “filing a counterclaim does not waive an objection to jurisdiction.”), cert. granted in part, — U.S. -, 115 S.Ct. 634, 130 L.Ed.2d 539 (1994), aff'd, — U.S. -, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); see also Bayou Steel Corp. v. M/V Amstelvoorn, 809 F.2d 1147, 1148 (5th Cir.1987); In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 398, 413 (E.D.Pa.1981); cf. Neifeld v. Steinberg, 438 F.2d 423, 431 n. 17 (3d Cir.1971) (dicta). Finally, we note that this analysis is not changed by the fact that Florida Prepaid did not raise the Eleventh Amendment immunity defense in its answer. The Eleventh Amendment defense sufficiently “partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n. 18, 102 S.Ct. 3304, 3314 n. 18, 73 L.Ed.2d 1057 (1982); Edelman, 415 U.S. at 678, 94 S.Ct. at 1363. Therefore, Florida Prepaid’s failure to raise this defense at the outset does not preclude its application at this juncture. D. The Parden Doctrine Where a state consents to being sued, neither the Eleventh Amendment nor the doctrine of sovereign immunity is a bar. See Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959); Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883). In the absence of an express consent by a state to be sued, federal courts have still attempted to find some type of implied or constructive consent by the state to avoid the limitations of the Eleventh Amendment. Thus, in Parden v. Terminal Ry. of Ala. State Docks Dep’t, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), the Court found that the State of Alabama, by its conduct in operating a railroad, had consented to suit in federal court under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60. In Parden, employees brought a FELA personal injury suit for damages against an Alabama-owned interstate railroad. The Court first examined whether Congress had intended to include state-owned as well as privately-owned rail carriers under the coverage of FELA Although there was no language in FELA specifically authorizing suits against a state, Congress had made FELA applicable to “every” interstate rail carrier, thus including the Alabama-owned railroad within its coverage. After finding that the state-owned railroad was within the coverage of FELA, the Court next examined whether Congress had the power to subject Alabama to suit in light of the State’s sovereign immunity. Justice Brennan, writing for a five-member majority, found that by empowering Congress to regulate commerce, “the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation.” 377 U.S. at 192, 84 S.Ct. at 1212. However, the majority opinion went on to explain that the Eleventh Amendment was not being overridden, since a state still could not be sued by an individual without its consent. The Court concluded that Alabama had consented to a suit under FELA by its continued operation of an interstate railroad for approximately twenty years after Congress had made such railroads subject to suit under FELA. Four Justices disagreed as to the type of statutory notice that was necessary before Congress could make the states subject to suit through their implied consent. It should not be easily inferred that Congress, in legislating pursuant to one article of the Constitution, intended to effect an automatic and compulsory waiver of rights arising out of another. Only when Congress has clearly considered the problem and expressly declared that any state which undertakes given regulable conduct will be deemed thereby to have waived its immunity should courts disallow the invocation of this defense. ... If the automatic consequence of state operation of a railroad in interstate commerce is to be waiver of sovereign immunity, Congress’ failure to bring home to the State the precise nature of its option makes impossible the “intentional relinquishment or abandonment of a known right or privilege” which must be shown before constitutional rights may be taken to have been waived. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Id. 377 U.S. at 198-200, 84 S.Ct. at 1216-1217 (White, J., dissenting). Despite the difference between the majority and dissenters regarding the need for express congressional authorization for suits against the state, the Parden Court recognized that where Congress under its commerce power had authorized private suits against a state engaging in certain conduct and the state continued that conduct, the state necessarily had consented to be sued. Subsequently, in Employees of the Dep’t of Pub. Health & Welfare v. Dep’t of Pub. Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), the dissenting position in Parden was adopted by a majority of the Court. The Employees case involved a suit against the State of Missouri to enforce the State’s compliance with the Fair Labor Standards Act, which had been amended to apply to state and local governments. The majority distinguished Parden on the grounds that whereas states have a choice whether or not to operate railroads, they have little discretion in deciding whether to provide basic public services like public hospitals and police protection. In the absence of a clear declaration from Congress that it intended to make states liable for violations of the Act, the Court concluded, there is no basis for finding a constructive waiver. Id. at 285, 93 S.Ct. at 1618. The Court’s refusal to find constructive waivers became even clearer a year after the Employees decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In addition to trying to avoid the Eleventh Amendment by suing the state officers, the plaintiffs also claimed that Illinois had waived its immunity to suits over its welfare program by voluntarily choosing to receive federal funds. Under the Social Security Act, states are not obligated to participate in the program of Aid to the Aged, Blind and Disabled. If, however, a state decides to participate, it receives federal funds but must comply with federal standards. The Court said that there was not a sufficient declaration of Congress’s desire to permit suits against states in federal courts when states choose to receive federal welfare monies. The Court concluded that the “mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts.” Id. at 673, 94 S.Ct. at 1360. In 1987, the Supreme Court explicitly overruled its earlier decision in Parden. In Welch v. Texas Dep’t of Highways and Pub. Transp., the Court considered whether the Jones Act can be the basis for state liability in federal court. 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). The Jones Act is a federal statute creating remedies for injured seamen like those for injured railroad employees involved in the Parden case. Welch was injured while working for the State of Texas on the docks and sued to recover for his injuries. The Supreme Court held that the Eleventh Amendment barred Welch’s suit against Texas. The Court stated that “Congress has not expressed in unmistakable statutory language its intention to allow States to be sued in federal court under the Jones Act.” Id. at 475, 107 S.Ct. at 2947. The Court emphasized that waiver will be found only if Congress clearly and unequivocally expresses its intent to make state liable. Moreover, the Court declared that Parden was overruled to the extent that it was inconsistent with its holding in Welch. Id. at 476, 107 S.Ct. at 2947. In sum, the rarity of a state’s constructive waiver of its Eleventh Amendment immunity cannot be overstated. Edelman, 415 U.S. at 653, 94 S.Ct. at 1351 (“Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights____”). Indeed, no Supreme Court decision except Parden itself, which was a five-four decision, has found that consent under the Parden theory. With the foregoing as a backdrop, we conclude that the Parden doctrine cannot apply to eliminate Florida Prepaid’s immunity under the Eleventh Amendment immunity because: (1) Florida Prepaid is essentially performing a role traditionally undertaken by state governments — making available affordable educational opportunities; and (2) in the wake of Seminole Tribe, Congress may no longer utilize its Article I powers to elicit a waiver of sovereign immunity as a condition for participating in a field subject to congressional regulation. 1. Florida Prepaid’s Important Governmental Function The Supreme Court has recognized that “education is perhaps the most important function of state government.” Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). More recently, the Court reaffirmed that education is an area “where States historically have been sovereign.” United States v. Lopez, — U.S. -,-, 115 S.Ct. 1624, 1632, 131 L.Ed.2d 626 (1995). In Lopez, a case not involving the Eleventh Amendment, the Supreme Court struck down legislation founded on a sweeping interpretation of congressional power under the Interstate Commerce Clause. Clearly, education is uniquely important to the role of the states. The Third Circuit also has acknowledged that providing education-related services is a core function of state government. In Skehan v. State Sys. of Higher Educ., 815 F.2d 244 (3d Cir.1987), the court held that the Pennsylvania State System of Higher Education, “a body corporate and politic” created by state law to administer educational institutions, id. at 247, was a state agency entitled to claim immunity under the Eleventh Amendment. See id. at 249. In so doing, the court observed: “Providing education has long been recognized as a function of state government.” Id. at 248. Of course, in. this case, Florida- Prepaid’s supporting (and necessary) role in this activity is not within the exclusive province of the states. Indeed, there can be no doubt that Florida Prepaid and CSB, among others, are competing against one another for college-earmarked dollars. However, the mere fact that Florida Prepaid and private businesses offering prepaid tuition plans are similar in certain respects is not dispositive here. Cf. Close v. State of N.Y., 1996 WL 481550, at *4 (N.D.N.Y. Aug. 19, 1996) (rejecting the notion that a state constructively consents to be sued by engaging in any area of activity that it does not exercise absolute1 control). Florida Prepaid was created by statute to perform a task found to be vital, to the State of Florida: The Legislature recognizes that educational opportunity at the postsecondary level is a critical state interest. It further recognizes that educational opportunity is best ensured through the provision of post-secondary institutions that are geographically and financially accessible. Accordingly, it is the intent of the Legislature that a program be established through which many of the costs associated with postseeondary attendance may be paid in advance and fixed at a guaranteed level for the duration of undergraduate enrollment. It is similarly the intent of the Legislature to provide a program that fosters timely financial planning for postsecondary attendance and to encourage employer participation in such planning through program contributions on behalf of employees and the dependents of employees. Fla.Stat.Ann. § 240.551(1). Certainly, providing a system to help people pay for the education of Florida citizens at Florida state universities and colleges is vital to Florida’s attainment of its educational objectives in operating these institutions. Florida Prepaid provides a substantial benefit that directly and significantly promotes the educational objectives of the State of Florida. See College Savings I, 919 F.Supp. at 761 (“[W]hile Florida Prepaid purports to function in a proprietary capacity in administering the program, it nonetheless perf