Boggs v. Bowron

Decision Date09 December 1993
Docket NumberCiv. A. No. 93-1845 (RCL).
PartiesJ.S.G. BOGGS, Plaintiff, v. Eljay BOWRON, Director, United States Secret Service, Lloyd M. Bentsen, Secretary of the Treasury, Janet Reno, Attorney General, Defendants.
CourtU.S. District Court — District of Columbia

Kent A. Yalowitz, Arnold & Porter, New York City, for plaintiff.

Susan A. Nellor, Asst. U.S. Atty., Civil Div., Washington, DC, Maravin Speed, Office of the General Counsel, U.S. Secret Service, Washington, DC, for defendants.


LAMBERTH, District Judge.

Plaintiff, a visual and performance artist, challenges the constitutionality of provisions of the federal anti-counterfeiting statutes, requesting declaratory and injunctive relief.2 Defendants3 have filed a motion to dismiss, and the parties have filed cross-motions for summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted.4

I. Introduction

J.S.G. Boggs is an artist and academic.5 His work has been exhibited throughout America and Europe and is currently on exhibit under the auspices of the Smithsonian Institution. Mr. Boggs' work has been the subject of wide-spread media attention.6 This notoriety is due, in part, to the fact that much of Mr. Boggs' work is in the "image of money." See Complaint for T.R.O., Prelim. & Perm.Inj., & Other Relief ("Complaint") ¶ 4; Aff. Boggs ¶ 6. Many are actual-sized, trompe l'oeil pieces.7 Id. ¶ 6; Boggs Aff. ¶ 3. After explaining to merchants that he is an artist, Mr. Boggs then barters these pieces, offering to exchange his art for the face value of the reproduction in goods and services.8 Boggs has "spent" thousands of pictures of currency ("Boggs Bills") around the world over the last eight years. Id.9

The purpose behind Boggs' approach to art does not appear to be to defraud those with whom he barters.10 As he states:

I have brought art out of the museum and into the street. I explore issues of trust, value, aesthetic beauty and questions about the usefulness and value of art — all in a dialogue with the viewer, rather than in a monologue directed at the viewer. In proposing a transaction, I generally ask a series of questions designed to prompt the viewer into thinking about the meaning and uses of art and money in everyday life. My art allows me to ask the viewer, directly, what art should look like, what should be done with it, and what it represents. In part, my work is designed to elucidate the idea that the value of money ... should be consciously accepted on the basis of our trust in each other and in our social and political institutions. My work allows art ... to reach people who cannot be coaxed into galleries and museums.

Boggs' Aff. ¶ 7-8.

An unlikely collector, the Secret Service has taken a keen interest in the work of Mr. Boggs. In September 1990, Secret Service agents effectively stopped the publication of a catalog featuring Mr. Boggs' work. When Secret Service agents seized the color proofs for the catalog, they informed the printing company that the publication of Boggs' work, in their actual dimensions and in full color, would be in violation of the counterfeiting statutes. Compl. ¶ 9. The United States Attorney in Florida did not bring charges. Id. ¶ 10.

In March 1991, reports of Mr. Boggs' attempting to obtain merchandise from a local store using a reproduction of United States currency prompted a visit from the Secret Service in Cheyenne, Wyoming. Id. ¶ 11. A Secret Service special Agent and the United States Attorney for the District of Wyoming visited Boggs in his hotel room. At their request, Boggs provided a general sample of 15 Boggs Bills.11 Boggs was advised that his reproductions appeared to be in violation of the counterfeiting statutes and were subject to seizure. This sample is being retained by the Secret Service as contraband. Defs.' Mot. Dismiss at 4. On October 4, 1991, the Office of the United States Attorney for the District of Wyoming declined prosecution of Boggs. Compl. ¶ 12.

In September 1992, the Pittsburgh area Secret Service was alerted to Boggs' attempts to use his reproductions in the Pittsburgh area. Id., Abraham Aff. ¶ 2. Boggs contacted the Pittsburgh Field Office by telephone and voluntarily appeared for an interview on October 1, 1992. During the interview, Boggs would not produce any other samples. The Secret Service provided Mr. Boggs with a pamphlet explaining the guidelines for reproducing currency; however, Mr. Boggs stated that he was familiar with the guidelines, but did not believe they applied to his work. Id. ¶ 5.

In November 1992, a press clipping alerted the Secret Service to the fact that Boggs had printed one million dollars in Boggs Bills and was planning to use the notes in the Pittsburgh area during the next year. Id. ¶ 7-8. On December 1, 1992, after consultation with the United States Attorney's Office for the Western District of Pennsylvania, the Secret Service obtained federal search warrants for the residence, studio, and office of Boggs. The Service seized several items, characterized by Boggs as the bulk of his life's work, pursuant to the properly executed warrants. Plf.'s Mem.Mot.T.R.O. & Prelim.Inj. at 2, 11. In a December 8, 1992, meeting with agents of the Secret Service, Boggs was advised that his reproductions were in violation of the statute and that he could be prosecuted for his actions if he continued. Compl., Abraham Aff. ¶ 10.

On February 8, 1993, the United States Attorney for the Western District of Pennsylvania sent a cease and desist letter to Boggs, stating that continued reproducing and passing of Boggs Bills could subject him to prosecution. The letter expressed that the Service viewed his "continued manufacture, possession and distribution of `Boggs bills' as a violation of the law." The United States Attorney's Office is currently considering whether it will prosecute Mr. Boggs in Pennsylvania.12

On May 25, 1993, Boggs attempted to resolve the matter through administrative means. He petitioned the Secretary of the Treasury pursuant to 18 U.S.C. § 504 for permission to continue his reproduction and distribution of Boggs Bills. Compl., Ex. A.13 Prosecutors agreed to refrain from taking steps to indict Boggs pending the decision by the Secretary. Plf.'s Mem.Mot.T.R.O. & Prelim.Inj. at 3. On September 2, 1993, Boggs' petition was denied by the Secret Service. Id., Ex. B. On September 3, 1993, Boggs initiated the current proceeding.14

II. Motion to Dismiss for Failure to State a Claim
A. Standard of Review

Before reaching the merits of plaintiff's claims, however, the court must address its jurisdiction over this matter. Defendants suggest that the complaint should be dismissed for failure to state a claim for equitable relief. When reviewing the adequacy of a complaint for purposes of a Rule 12(b)(6) motion, plaintiff's factual allegations must be presumed true and liberally construed in favor of the plaintiff. Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979) (citing Miree v. DeKalb County, Georgia, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977)). In addition, the plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987) (citing Pauling v. McElroy, 278 F.2d 252, 254 (D.C.Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960)).

Dismissal is only appropriate if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth, 820 F.2d at 1254 (citations omitted); Phillips, 591 F.2d at 968.

B. Reaching the Merits of this Case

Plaintiff asks this court to enjoin the ongoing criminal investigation and possible future criminal prosecution in the Western District of Pennsylvania on constitutional grounds. Compl. at 10. The question is whether this court should reach the merits of this case. Defendants suggest not. After considering the extraordinarily well-written pleadings and memoranda of all parties, this court believes that it may hear the merits of this request for injunctive relief under the Declaratory Judgment Act, the equities of the situation at hand requiring this court to provide a forum for plaintiff's complaint.15

The Declaratory Judgment Act states:

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C.A. § 2201 (West Supp.1993) (emphasis added).

Under the Declaratory Judgment Act, the court must have before it "a case of actual controversy within its jurisdiction." This phrase has often been interpreted as synonymous with the "case or controversy" requirement of Article III of the Constitution. "Concrete legal issues, presented in actual cases, not abstractions" are required for adjudication of legal disputes. United States v. Appalachian Elec. Power Co., 311 U.S. 377,...

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