Serra v. US General Services Admin.
| Decision Date | 14 July 1987 |
| Docket Number | No. 86 Civ. 9656 (MP).,86 Civ. 9656 (MP). |
| Citation | 664 F. Supp. 798 |
| Parties | Richard SERRA, Plaintiff, v. UNITED STATES GENERAL SERVICES ADMINISTRATION; Terrence C. Golden, Administrator, General Services Administration; William F. Sullivan, Commissioner, Public Buildings Service, General Services Administration; William J. Diamond, Regional Administrator (Region Two), General Services Administration, Officially and Individually; Dwight Ink, Former Acting Administrator, General Services Administration, Individually, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Gustave Harrow, New York City, for plaintiff.
Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Richard M. Schwartz, New York City, Joel C. Mandelman, Deputy General Counsel, U.S. General Services Admin., Washington, D.C., Barbara G. Gerwin, Regional Counsel, U.S. General Services Admin., Region 2, New York City, for defendants.
Defendants in this case have moved, pursuant to Rules 12(b)(1), 12(b)(6) and 56 of the Federal Rules of Civil Procedure, to dismiss the complaint, or for summary judgment. In this Opinion, the Court will address the issue of whether defendants William Diamond and Dwight Ink, sued in their personal capacities (Diamond is also sued in his official capacity), are immune from personal liability under the doctrines of absolute and qualified immunity.
In August 1979, the General Services Administration ("GSA") commissioned plaintiff Richard Serra to design an outdoor sculpture. The work was to be located on the plaza which is part of the building complex at 26 Federal Plaza in downtown Manhattan ("the Plaza"). Approximately 10,000 federal employees work in the building. In September 1979, the GSA formally entered into a contract with Serra which provided that the Government would pay Serra $175,000 for his sculpture. In early 1980, Serra submitted a design for his sculpture, called "Tilted Arc," to the GSA Design Review Panel. The sculpture, a 120 foot long, twelve foot high curving steel wall, was installed on the Plaza in July 1981. Generally speaking, the sculpture bisects the circular plaza. In December 1981, Serra executed a release in favor of the United States, "from any and all claims arising under or by virtue of the Contract." No claims were expressly reserved by Serra.
The 1979 contract provides, in part:
Plaintiff claims his work is "site-specific;" i.e. that it was intended specifically for the Plaza site. Serra alleges that he was given oral assurances by several GSA officials, before signing the contract, that his work would be permanently installed on the Plaza. Serra also represents that he asked about the meaning of Article 6, quoted above, of the contract. He claims that he was assured, at a meeting with several GSA officials on March 3, 1980, that this Article did not apply to his work. Serra says he was told that this section contained standard language that referred only to movable works, such as marble and bronze statues, providing for their safeguarding in times of national emergency.
Following installation of Tilted Arc on the Plaza, the GSA received complaints, including a September 1981 petition signed by approximately 1300 of the local federal employees, requesting that the work be removed from the Plaza. In late 1984, Acting GSA Administrator Ray Kline told defendant Diamond, administrator of the GSA region including New York, that the GSA had decided to hold an open public hearing on the controversial location and the possible relocation of Tilted Arc.
The complaint asserts that Diamond, during the period preceding the hearings, issued numerous false statements intentionally overstating the complaints against the sculpture, and pre-judging the issue. A December 29, 1984 newspaper article quoted Diamond as saying, "What we're deeply concerned about is the fact this this piece i.e. Tilted Arc, for three and a half years, has made it impossible for the public and Federal community to use the Plaza." Diamond allegedly ordered that circulars be posted in the lobby of 26 Federal Plaza urging public employees to "Speak Out!" and announcing a public hearing on ways to more fully utilize the Plaza, including possible relocation of Tilted Arc. In December of 1984, defendant Diamond is said to have sought offers from various cultural institutions which might be interested in receiving Tilted Arc, should the GSA decide to relocate the sculpture.
Plaintiff claims that Diamond solicited over 1000 witnesses for the public hearing in a letter which stated that the hearing would decide whether the sculpture should be moved "to increase public use of the Plaza." Plaintiff claims that Diamond appeared on television during the hearings, and stated that when Tilted Arc was initially approved, "there was no idea the sculpture was going to bisect the plaza and make it practically impossible for any public function to be held in the plaza." Plaintiff further claims that Diamond induced a local community organization to urge removal of Tilted Arc.
Plaintiff states that Diamond named the members of the five-person Panel which presided over the public hearings, which were held on March 6-8, 1985, at 26 Federal Plaza. Diamond was the chairperson of the Panel. Plaintiff alleges that Diamond manipulated the hearing so as to have as many negative reactions as possible at the outset, thereby allegedly maximizing media coverage of these viewpoints.
More than 160 persons spoke at the hearings, running the gamut of reaction to the Serra sculpture. The three-day hearing was attended by persons of every persuasion, who made their views known. Plaintiff, his counsel, art experts, elected officials, community representatives, federal employees and every category of persons who had anything they wanted to say about the appearance of the Plaza before, during, and since the installation of the sculpture were heard. A verbatim transcript of the hearing was incorporated by reference in defendant's moving papers and gives a picture of the robust character of the debate which occurred there.
Following the hearing, defendant Ink, who had since become Acting Administrator of the GSA in place of Kline, requested that Diamond provide a written recommendation concerning the future of Tilted Arc. In a six page memorandum dated May 1, 1985, Diamond recommended to Ink that Tilted Arc be relocated and that the Plaza be returned to its former openness. He stated in the memorandum that the 1979 contract contained no guarantee of permanency of location and that any such guarantee would be necessarily unworkable in application. Diamond's memorandum disputed that Serra's works were necessarily site-specific.
On May 31, 1985, Ink issued a 17-page decision, accompanied by several lengthy appendices, in which he stated that Tilted Arc should be relocated but not destroyed. Ink's written decision reviewed the testimony at the hearing both favoring and opposing removal of the sculpture. He stated that, while the artist had submitted models of his sculpture before it was accepted by GSA, the local community had not had sufficient opportunity to express its opinions at that time.
Enumerating the issues involved, Ink first concluded that relocation would not constitute a breach of contract because the contract contained no provision granting Serra any permanent property rights in the sculpture or in the area of the Plaza upon which it was affixed. While accepting that the work was specifically intended for the Plaza, Ink rejected the idea that this was a bar to removal. He stated that though Serra had designed the work for this site, that did not mandate that it remain there indefinitely. He also stated that relocation, even for a site-specific sculpture, would not be the equivalent of destruction. Ink concluded that relocation would neither threaten "freedom of art" nor would it threaten the future of the federal program for placing sculpture at federal sites. Ink ordered that a panel of the National Endowment for the Arts ("the NEA") convene to recommend alternative sites and that Tilted Arc should remain at the Plaza during the NEA search. In June 1986, the NEA announced the composition of the search panel. Defendants state that the NEA panel has not yet reported any recommendation to the GSA on alternate sites.
In December 1985, Serra filed a 72-page, five-count complaint, naming as defendants the GSA, its Administrator, its Commissioner of Public Buildings Service, and Diamond and Ink. Diamond is sued both "officially and individually," while Ink, who is no longer Administrator of the GSA, is sued only individually. The Complaint is organized in "groups of claims," which will be discussed as successive Counts.
Briefly, under Count One, Serra seeks a declaratory judgment that he has a contractual right to enforce his claim that Tilted Arc was to be permanently installed on the Plaza. Under Count Two, Serra seeks a declaratory judgment that relocation of Tilted Arc would violate his rights under federal copyright and trademark law. Plaintiff contends that display of Tilted Arc elsewhere would "misrepresent" the work as Serra's creation, when, in fact, Tilted Arc was intended by Serra to be exclusively exhibited at the Plaza.
In Count Three, Serra seeks a declaratory judgment that relocation of Tilted Arc would violate his Fifth Amendment rights by depriving him of his contract rights, damaging his reputation, and impairing his livelihood, without due process of law. Further, Serra states that relocation...
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Serra v. US General Services Admin.
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