Serra v. US General Services Admin.

Decision Date31 August 1987
Docket NumberNo. 86 Civ. 9656 (MP).,86 Civ. 9656 (MP).
Citation667 F. Supp. 1042
PartiesRichard 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.
CourtU.S. District Court — Southern District of New York


Gustave Harrow, New York City, for plaintiff.

Rudolph W. Giuliani, U.S. Atty. for the 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.

MILTON POLLACK, Senior District Judge.

The defendants have moved to dismiss this suit pursuant to Rules 12(b)(1), 12(b)(6), and Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has countered with a motion pursuant to Rule 56 for partial summary judgment in his favor.

On July 14, 1987, this Court ruled that defendants William Diamond and Dwight Ink, sued in their personal capacities, are immune from personal liability herein under the doctrine of qualified immunity, 664 F.Supp. 798. Familiarity with that opinion is assumed.

The Court now considers the defendants' motion to dismiss the claims for alleged sovereign immunity and lack of subject matter jurisdiction, as well as insufficiency.

The papers hereon are of extraordinary length, and consist of over 1000 pages of materials in the form of affidavits, briefs, and a 655 page transcript of a public hearing. A brief summary of the background of this case will be useful.


A simple purchase was made in 1979 by the United States General Services Administration ("GSA") for the Government of a piece of outdoor sculpture in the form of a 120-foot long piece of steel, 12 feet tall, weighing 73 tons, titled "Tilted Arc". The item cost the Government $175,000 and was to adorn the Federal Plaza, which is a part of, and adjoins the 41 story government building located in lower Manhattan, on the block surrounded by Worth, Lafayette, and Duane Streets and Broadway. The sculpture cuts a swath across the center of Federal Plaza, dividing it in two.

The GSA commissioned Richard Serra, the plaintiff, to design and install the sculpture. The parties entered into a written contract which provides that "All designs, sketches, models, and the work produced under this agreement ... shall be the property of the United States of America." On December 2, 1981, after completion of his assignment, Serra executed a general release in favor of the United States releasing it from any and all claims arising under or by virtue of the Contract or any modification or change thereof.

The written contract also contained a Disputes clause providing, in pertinent part, as follows:

(a) This contract is subject to the CONTRACT DISPUTES ACT of 1978 (41 U.S.C. 601, et seq.). If a Dispute arises relating to the Contract the Artist may submit a claim to the Contracting Officer who shall issue a written decision on the Dispute in the manner specified in DAR 1-314 (FPR 1-1.318).

Serra has never submitted a claim pursuant to the Dispute clause to the Contracting Officer.

Serra contends that in addition to the written contract he made an oral arrangement with GSA providing that the sculpture would be permanently displayed on Federal Plaza and that this commitment must be recognized in this suit.

The Government has decided to relocate Tilted Arc away from Federal Plaza and that decision has sprouted this lawsuit against GSA and those of officialdom connected with the subject matter. Serra seeks a declaratory judgment that he designed the sculpture to be "site specific" to Federal Plaza and made a contract with GSA that it would not be removed from Federal Plaza. Moreover, he says, relocation of the piece to any other site would violate his constitutional rights. Serra seeks a permanent injunction against any relocation. He also demands special damages of $10,000,000; general damages of $10,000,000; further unspecified general damages to be proven at the trial; and punitive damages of $10,000,000 against all defendants, as well as costs, expenses and legal fees.

The sculpture was installed on Federal Plaza in July, 1981. A considerable number of complaints concerning the presence of the work were received almost immediately by GSA. These complaints characterized the location of the sculpture as an obstruction of the Plaza. In November 1984 Chief Judge Re, whose court is located in the building adjacent to the Plaza, sent a letter to the GSA calling for "instant removal" of Tilted Arc. The Judge wrote: "we who work here are left with a once beautiful plaza rendered useless by an ugly rusted steel wall".

By that time the controversy over the location of the sculpture had become full blown among users of the Plaza, federal employees in the building and their agencies, art afficionados, local organizations and Community Boards, political representatives, and others. Heated expressions of opinion, pro and con, proliferated on the location of Tilted Arc. One group claimed that the sculpture had destroyed the previously open plaza by obstructing free passage across the plaza and blocking an open view of the fountain; that it constitutes a scar on the Plaza and creates a fortress-like effect; that it is a target for graffiti; and that it is too large for its present site and violates the very spirit and concept of a plaza.

Others pointed to the sculpture as a message essentially expressing a commitment of our country to artistic expression as a vital element of our culture through the utilization of appropriated funds for this purpose and as a form of freedom for the artist to make his statement about the life and times in which the artist lives and works; and as an expression of the deepest values of our society.

Following a canvass of the contentious situation including a broad scale public hearing gathered after the distribution of 1000 invitations to attend and where the rival viewpoints were prolifically ventilated, GSA determined on the administrative record that Tilted Arc should be relocated in a location more compatible to its surroundings, restoring Federal Plaza to its original open, unobstructed state.

GSA selected the National Endowment for the Arts to search for a suitable location for the sculpture with the aid of the artist and requested that it make a recommendation to the Administrator of GSA. The composition of a panel to review proposed sites was announced on June 24, 1986. This action was instituted on December 17, 1986.

The complaint herein is cast in multiple claims: breach of contract; copyright violation; trademark violation; and violation of state statutory law. The claims further assert violation of Serra's First and Fifth Amendment rights by the planned relocation.

The copyright claim recites that any relocation would constitute a fundamental alteration and distortion of the work and violate Serra's rights as copyright owner and that he has not consented to exhibit the sculpture in a modified form.

The trademark claim recites that relocation would constitute a misrepresentation of Serra's artistic authorship, and misrepresent the source and quality of the work.

Serra has asserted in his papers on these motions that his lawsuit has two objectives:

1. To enjoin the Government from withdrawing from what he claims was an oral understanding to preserve Tilted Arc at its site on Federal Plaza. Since, as he argues, any removal would necessarily have to be predicated on negative judgments of the artistic expression of the work and on its aesthetic, social and political meaning, a removal in violation of the claimed contract would violate the First and, ultimately, the Fifth Amendment to the Constitution.

2. To recover damages for the alleged constitutional torts involved.


This Court lacks jurisdiction to administer the plaintiff's contract, copyright, trademark, and state law claims because the United States has not waived its sovereign immunity.

Under the doctrine of sovereign immunity, "it is axiomatic that the United States may not be sued without its consent and the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983); see Block v. North Dakota, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983); Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir. 1983). Where Congress has not passed a statute allowing a particular type of suit to proceed, the federal courts have no jurisdiction to hear that type of suit. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941) ("the terms of the United States' consent to be sued in any court define the court's jurisdiction to entertain the suit.").

Moreover, "the limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981), quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). See, e.g., Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939) (strict limitations on which courts may hear particular suits); United States v. Bedford Associates, 618 F.2d 904, 917 (2d Cir.1980) ("With regard to suits in the district courts, the government's consent has definite limitations," noting the restrictions of the Tucker Act...

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