Opinion
CIVIL ACTION Case No. 02-3272-CM
January 15, 2004
MEMORANDUM AND ORDER
Plaintiff, a federal prisoner appearing pro se, filed the instant action under the Federal Tort Claims Act (FTCA) alleging that defendants misappropriated plaintiff's intellectual property. This matter is before the court on defendants' Motion to Substitute the United States of America for Defendants Barram, Hawk-Saywer and Flores and Motion to Dismiss Defendants Ashcroft and the United States of America or Alternatively, Motion for Summary Judgment (Doc. 25).
I. Facts
Plaintiff is a federal inmate who is currently in the custody of the Federal Bureau of Prisons at the Federal Medical Center in Fort Worth, Texas. During the times relevant to this complaint, plaintiff was designated to USP Leavenworth and assigned to the UNICOR print factory at USP Leavenworth.
UNICOR is the commercial or "trade" name of the Federal Prison Industries, Inc., which is government corporation of the District of Columbia. See 18 U.S.C. § 4241; 28 C.F.R. § 345.11.
Plaintiff alleges that, during the course of his duties at the print factory, he was directed by UNICOR staff members to design artwork for government issued calendars. Plaintiff's artwork was approved, and, according to plaintiff's complaint, GSA shipped millions of the calendars to GSA warehouses and private vendors. Plaintiff states that, other than his UNICOR pay, he was never offered, nor did he ever receive, any payment, award, or other compensation for his works. Plaintiff claims that defendants' actions constituted a taking of plaintiff's intellectual property.
II. Subject Matter Jurisdiction
The court addresses defendants' argument that the court lacks subject matter jurisdiction over this lawsuit. Defendant directs the court's attention to 28 U.S.C. § 1498, which provides in pertinent part:
[W]henever 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 for the recovery of his reasonable and entire compensation as damages for such infringement. . . .28 U.S.C. § 1498(b).
The Federal Copyright Act (the Act), 17 U.S.C. § 101-1332, protects from unauthorized reproduction any original work of authorship. Under the Act, copyright protection arises from the moment when an author affixes his or her work to "any tangible medium of expression," including "pictorial" and "graphic" works. 17 U.S.C. § 102(a)(5). Plaintiff contends that defendants made use of his calendar artwork and designs without his permission and without compensating him. Accordingly, as alleged, plaintiff's artwork and designs are subject to protection under the copyright laws of the United States.
The court turns to whether plaintiff alleges that his work was infringed by the United States. Here, plaintiff has not named the United States as a defendant. Rather, plaintiff has named, inter alia, three federal agencies, the General Services Administration, the Department of Justice, and Federal Prison Industries. A claim for money damages against a federal agency is considered one against the United States. Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir. 1989). Accordingly, plaintiff's action must proceed, if at all, directly against the United States in conformity with the requirements under the FTCA.
Plaintiff also has named David J. Barram, Kathleen Hawk-Sawyer, and Kenneth M. Flores. Section 6 of the Federal Employees Liability Reform and Tort Compensation Act provides that, upon certification by the Attorney General, or her designee, a federal employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action arising out of the incident shall be deemed an action against the United States, and the United States shall be substituted as sole defendant with respect to those claims. 28 U.S.C. § 2679(d)(1); Aviles, 887 F.2d at 1048-49. Eric F. Melgren, United States Attorney for the District of Kansas, has certified that, at the time of the conduct alleged, these individual defendants were acting within the scope of their employment. As such, plaintiff's claims against these defendants must proceed against the United States.
The court concludes that it lacks subject matter jurisdiction over plaintiff's claims. Federal agencies and its employees are considered, for these purposes, the United States. Section 1498(b) bestows exclusive jurisdiction in the Court of Federal Claims in cases where, as here, plaintiff alleges both a protectable copyright interest and that the United States infringed on that interest. This court must dismiss the present action for lack of subject matter jurisdiction. IT IS THEREFORE ORDERED that defendants' Motion to Substitute the United States of America for Defendants Barram, Hawk-Saywer and Flores and Motion to Dismiss Defendants Ashcroft and the United States of America or Alternatively, Motion for Summary Judgment (Doc. 25) is granted in part. Specifically, the court grants defendants' motion to dismiss this case for lack of subject matter jurisdiction. Accordingly, plaintiff's Motion in Limine (Doc. 28) is denied as moot.