O'Rourke v. Smithsonian Institution Press

Decision Date16 February 2005
Docket NumberDocket No. 04-0151-CV.
Citation399 F.3d 113
PartiesKevin O'ROURKE, Plaintiff-Appellant, v. SMITHSONIAN INSTITUTION PRESS and The Smithsonian Institution, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Kevin O'Rourke, Rockville Centre, New York, Plaintiff pro se.

Emily S. Reisbaum, Assistant United States Attorney, New York, New York (David N. Kelley, United States Attorney for the Southern District of New York, Meredith E. Kotler, Assistant United States Attorney, New York, New York, on the brief), for Defendants-Appellees.

Before: KEARSE and CALABRESI, Circuit Judges, and RAKOFF, District Judge*.

KEARSE, Circuit Judge.

Plaintiff pro se Kevin O'Rourke appeals from a judgment of the United States District Court for the Southern District of New York, Kimba M. Wood, Judge, dismissing his amended complaint ("Complaint") against defendants Smithsonian Institution and its operating unit the Smithsonian Institution Press (collectively the "Smithsonian") for copyright infringement. The district court granted the Smithsonian's motion to dismiss for lack of subject matter jurisdiction on the ground that 28 U.S.C. § 1498(b) gives the United States Court of Federal Claims exclusive jurisdiction over copyright infringement actions against "the United States," and that that phrase encompasses the Smithsonian. On appeal, O'Rourke contends that the Smithsonian should not be considered "the United States" within the meaning of § 1498(b). For the reasons that follow, we reject his arguments and affirm the judgment of the district court.


The Complaint alleges that, in the mid-1990s, O'Rourke wrote and published an original book entitled Currier and Ives: The Irish and America (the "O'Rourke Book" or the "1995 Book") and that O'Rourke owns the United States copyright on the 1995 Book. (Complaint ¶¶ 7-10.) The Complaint alleges that in or about 2001, the Smithsonian, "a trust instrumentality of the United States" (Complaint ¶ 5), published a book entitled Currier and Ives: America Imagined (the "Smithsonian Book") and that sections of the Smithsonian Book "were largely copied from" the O'Rourke Book (Complaint ¶ 11).

The Smithsonian moved to dismiss the Complaint for lack of subject matter jurisdiction on the ground that the United States Court of Federal Claims ("Court of Claims") has exclusive jurisdiction over this action by reason of 28 U.S.C. § 1498(b). That section provides that

whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims....

28 U.S.C. § 1498(b) (emphases added). The Smithsonian argued that it is within the term "the United States" as used in § 1498(b).

In support of this contention, the Smithsonian submitted the sworn declaration of its general counsel describing its status and operations, along with a memorandum of law describing, inter alia, judicial treatment of the Smithsonian under other federal statutes. The general counsel's declaration stated, in pertinent part, as follows:

2. The Smithsonian Institution is a trust instrumentality of the United States established by Act of Congress in 1846, 20 U.S.C. § 41 et seq.

3. As such, the Smithsonian Institution reports annually to Congress on its budget and receives appropriations from Congress. Approximately two-thirds of the Smithsonian Institution's annual operating budget is derived from federal appropriations, with the balance provided by trust funds.

4. In addition, whenever legal actions are brought against the Smithsonian Institution, we are represented by lawyers from the United States Department of Justice. To the extent that monetary judgments are awarded against the United States for conduct of the Smithsonian Institution, those judgments are paid from the United States Judgment Fund.

5. The workforce of the Smithsonian Institution is largely made up of federal employees. Indeed, as of September 16, 2003, the Smithsonian Institution employed 4293 federal employees, which comprise approximately 68% of the Smithsonian Institution's work force.

6. The Smithsonian Institution Press is an operating unit of the Smithsonian Institution and is fully-funded by the Smithsonian Institution. The Smithsonian Institution Press is not a separate and distinct legal entity independent of the Smithsonian Institution.

(Sworn Declaration of John E. Huerta dated September 16, 2003 ("Huerta Decl."), ¶¶ 2-6.)

The Smithsonian's memorandum of law noted that the Smithsonian had been created by Congress in order to comply with the terms of a bequest to the United States (see Smithsonian Memorandum of Law in Support of the Defendant's Motion To Dismiss ("Smithsonian Memorandum") at 2-3, citing 20 U.S.C. § 41 note), and stated that

all three branches of the federal government have a significant role in the operations of the Smithsonian Institution. Eight of the seventeen Regents of the Smithsonian Institution acquire their positions by virtue of holding high federal government office, and the remaining Regents are appointed by joint resolution of Congress. 20 U.S.C. § 42.

(Smithsonian Memorandum at 3-4). Although noting that no circuit court had considered whether the Smithsonian was within the term "United States" as used in 1498(b), the Smithsonian Memorandum cited one district court decision that had summarily answered that question in the affirmative, see Brundin v. United States, 1996 WL 22370, at *7-*8 (S.D.N.Y. Jan.19, 1996), and a number of circuit court opinions that had found the Smithsonian to be the "United States" or a federal agency for purposes of other federal statutes, see Part II.C. below. Pointing out that "[t]he United States, as sovereign, is immune from suit except to the extent that it has consented to be sued" (Smithsonian Memorandum at 8, citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)), the Smithsonian noted that the United States has, in § 1498(b), expressly waived its sovereign immunity from suit for copyright infringement only to the extent that such a suit may be brought in the Court of Claims. The Smithsonian argued that the district court thus lacked subject matter jurisdiction of the present action (id. at 8-9).

In opposition to the motion, O'Rourke did not dispute any of the factual assertions in the Huerta Declaration. Rather, he argued that § 1498(b) is inapplicable because the Smithsonian is not a corporation owned or controlled by the United States, or a contractor, subcontractor, person, firm, or corporation acting for the government, terms that are used in § 1498(b); and he cited Dong v. Smithsonian Institution, 125 F.3d 877, 883 (D.C.Cir.1997), cert. denied, 524 U.S. 922, 118 S.Ct. 2311, 141 L.Ed.2d 169 (1998), and Cotton v. Heyman, 63 F.3d 1115 (D.C.Cir.1995), for the proposition that the Smithsonian is not a federal agency. (See O'Rourke Memorandum of Law in Opposition to the Defendant[s'] Motion To Dismiss the Complaint ("O'Rourke Memorandum"), at unnumbered pages 2-6.) O'Rourke pointed out that the Smithsonian was created as an independent establishment of the United States, citing 20 U.S.C § 41, and that § 1498(b) does not mention establishments, or trust instrumentalities, of the United States. (See O'Rourke Memorandum at unnumbered page 3.)

In an opinion reported at 296 F.Supp.2d 434 (2003), the district court granted the Smithsonian's motion to dismiss. The court found O'Rourke's interpretation of § 1498(b) untenable because it "would effectively read out of the statute the phrase `the United States.'" 296 F.Supp.2d at 435. Noting that the only question before the court was whether the Smithsonian was within § 1498(b)'s term "the United States" because "[d]efendants do not contend that they fall within any [other] category" mentioned in that section, 296 F.Supp.2d at 435 n. 1, the district court answered that question in the affirmative. It reasoned that

the phrase "the United States" should be interpreted broadly for purposes of Section 1498(b). The language of the statute suggests Congress's intent to grant the Court of Federal Claims exclusive jurisdiction over all copyright claims in which the United States has a sufficiently strong interest, or in which the United States was involved in the alleged infringement.

296 F.Supp.2d at 435-36. The court noted that most of the Smithsonian's workforce is made up of federal employees, that in litigation the Smithsonian is represented by attorneys from the United States Department of Justice, and that money judgments against the Smithsonian are paid out of the federal fisc. See id. at 437. The court also noted that other courts had recognized the close relationship between the United States and the Smithsonian, including "substantial federal funding and the important supervisory role played by government officials," id. at 436-37 (internal quotation marks omitted), and had concluded that the Smithsonian was a federal agency within the meaning of such statutes as the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"). See 296 F.Supp.2d at 436-37. The district court concluded that the Smithsonian should be considered to be within the phrase "the United States" in § 1498(b) and that the Court of Claims thus had exclusive jurisdiction over O'Rourke's claim.

Accordingly, judgment was entered dismissing the action for lack of subject matter jurisdiction, and this appeal followed.


On appeal, O'Rourke, who did not dispute the...

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