MDB Communications, Inc. v. United States

53 Fed. Cl. 245, 2002 U.S. Claims LEXIS 198, 2002 WL 1876956
CourtUnited States Court of Federal Claims
DecidedAugust 14, 2002
DocketNo. 99-984C
StatusPublished
Cited by5 cases

This text of 53 Fed. Cl. 245 (MDB Communications, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MDB Communications, Inc. v. United States, 53 Fed. Cl. 245, 2002 U.S. Claims LEXIS 198, 2002 WL 1876956 (uscfc 2002).

Opinion

OPINION

WIESE, Judge.

I.

In the spring of 1998, plaintiff, MDB Communications, Inc., responded to a solicitation issued by the United States Mint inviting the submission of proposals for an integrated advertising/marketing/public relations program to be undertaken in support of the Mint’s Fifty States Commemorative Coin Program (“the Quarters Program”). Although plaintiffs proposal was among the four submissions chosen for final evaluation, the Mint ultimately awarded the contract to Grey Advertising.

Some months after the award to Grey Advertising, the Mint entered into a licensing arrangement with Jim Henson Productions, Inc. that contemplated, inter alia, using Kermit the Frog, the Henson Company’s widely recognized artistic creation, to serve as the principal “spokesperson” for the Quarters Program. It is this use of Kermit the Frog that makes up the substance of plaintiffs complaint.

Specifically, plaintiff contends that the Mint’s adoption of Kermit the Frog for the Quarters Program represents the unauthorized use of the marketing concepts presented in plaintiffs solicitation proposal: namely, reliance on a widely recognized fictional character possessing cross-generational appeal to serve as the spokesperson for the Quarters Program. Plaintiff contends that this appropriation of its marketing idea is a violation of the restrictions against unlicensed disclosure and use that were included as part of plaintiffs solicitation, and hence, constitutes the breach of an implied-in-fact contract by the Mint.

Shortly before the commencement of trial, defendant filed a motion to dismiss the complaint for lack of jurisdiction. The basis for defendant’s motion is the contention that the Mint is a non-appropriated fund instrumentality, i.e., an activity that operates without the use of congressionally appropriated funds. Because judgments of this court are payable only from appropriated funds, any demand for monetary relief against a non-appropriated fund instrumentality has traditionally been recognized to fall outside this court’s jurisdiction.

The court heard oral argument on defendant’s motion to dismiss on June 10, 2002. At the conclusion of the argument, the court entered a bench ruling denying the motion. The case then proceeded to trial. Following the trial, the court again entered a bench ruling, this time in defendant’s favor. In this opinion, we more fully explain the bases for the two bench rulings.

II.

The jurisdiction of the United States Court of Federal Claims is founded on the Tucker Act, 28 U.S.C. § 1491 (2000), which waives sovereign immunity for claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). This jurisdictional grant is limited, however, by 28 U.S.C. § 2517 (2000), which requires that “judgments awarded by the Court of Federal Claims ... be paid out of appropriated funds.” Furash & Co. v. United States, 252 F.3d 1336, 1339 (Fed.Cir.2001). Because of this limitation, the court cannot exercise jurisdiction over claims that [247]*247do not arise out of activities supported (or supportable) by appropriated funds. L'Enfant Plaza Props., Inc. v. United States, 229 Ct.Cl. 278, 668 F.2d 1211 (1982).

Defendant bases its assertion that the Mint is non-appropriated fund instrumentality on the text of 31 U.S.C. § 5136 (2000). In this statute, enacted in 1995, Congress endeavored to simplify the financial and accounting operations of the Mint, as well as to ease the burdens of its own legislative oversight responsibilities, by consolidating the Mint’s various currency- and coin-related activities 1 within the framework of a single administrative unit: the United States Mint Public Enterprise Fund (“the Public Enterprise Fund” or “the Fund”). The operations of the Public Enterprise Fund were in turn to be funded through the transfer of seigniorage, i.e., the difference between the cost of producing a coin and its face value.

The relevant portions of 31 U.S.C. § 5136 read, as follows:

There shall be established in the Treasury of the United States, a United States Mint Public Enterpiise Fund (the “Fund”) for fiscal year 1996 and hereafter: Provided, That all receipts from Mint operations and programs, including the production and sale of numismatic items, the production and sale of circulating coinage, the protection of Government assets, and gifts and bequests of property, real or personal shall be deposited into the Fund and shall be available without fiscal year limitations: Provided further, That all expenses incurred by the Secretary of the Treasury for operations and programs of the United States Mint that the Secretary of the Treasury determines, in the Secretary’s sole discretion, to be ordinary and reasonable incidents of Mint operations and programs, and any expense incurred pursuant to any obligation or other commitment of Mint operations and programs that was entered into before the establishment of the Fund, shall be paid out of the Fund: Provided further, ... That the Fund may retain receipts from the Federal Reserve System from the sale of circulating coins at face value for deposit into the Fund (retention of receipts is for circulating operations and programs); ... Provided further, That at such times as the Secretary of the Treasury determines appropriate, but not less than annually, any amount in the Fund that is determined to be in excess of the amount required by the Fund shall be transferred to the Treasury for deposit as miscellaneous receipts____

31 U.S.C. § 5136. Of chief importance to defendant’s argument are the following excerpts from the above-quoted text:

“all receipts from Mint operations and programs, including ... the production and sale of circulating coinage, ... shall be deposited into the Fund and shall be available without fiscal year limitations”;
“all expenses incurred ... for operations and programs of the ... Mint that the Seeretaiy of the Treasury determines, in the Secretary’s sole discretion, to be ordinary and reasonable incidents of Mint operations and programs, ... shall be paid out of the Fund”;
“the Fund may retain receipts from the Federal Reserve System from the sale of circulating coins at face value for deposit into the Fund”; and
“any amount in the Fund that is determined to be in excess of the amount required by the Fund shall be transferred to the Treasury for deposit as miscellaneous receipts.”

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Cite This Page — Counsel Stack

Bluebook (online)
53 Fed. Cl. 245, 2002 U.S. Claims LEXIS 198, 2002 WL 1876956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mdb-communications-inc-v-united-states-uscfc-2002.