Free Published Opinion/Order - District Court of Federal Claims - federal

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The United States Court of Federal Claims
No: 02-1622 C May 7, 2007

BLUEPORT COMPANY, LLP,
Plaintiff, Copyright Infringement; Waiver of Sovereign Immunity; 28 U.S.C. § 1498(b); Affirmative Defense; Jurisdiction; Work Made for Hire Doctrine.

v.

THE UNITED STATES,
Defendant.

Kurth M. Rylander and Mark E. Beatty, Rylander & Associates, PC, for the plaintiff. Scott D. Bolden, Commercial Litigation Branch, United States Department of Justice, and Chun-I Chiang, Air Force Legal Operations Agency, United States Department of the Air Force, for the defendant.

OPINION AND ORDER Block, Judge.
General Matthew B. Ridgway once observed that, "what throws you in combat is rarely the fact that your tactical scheme was wrong . . . but that you failed to think through the hard cold facts of logistics."1 This is especially true for the United States Air Forces ("USAF"). For example, the few hundred aviators and ground special forces who initially engaged the Taliban and al Qaeda were the "teeth" in the recent Afghanistan campaign. These "teeth," however, would have no bite without a "tail" of thousands of U.S. personnel flying reconnaissance, running ships, transporting supplies, processing intelligence, and moving information. It is this "tail" that allows the USAF to reach halfway around the world, commence almost immediate combat operations in an unexpected, austere

1

Lt. Col, James C. Rainey, USAF Ret., Cindy Young, & Roger D. Golden, The Dimensions of Logistics, Air Force J. of Logistics, Fall 2006, at 84, 84, available at http://www.aflma.hq.af.mil/lgj/10_Dimensions.pdf.

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theater and then succeed on an extremely chaotic battlefield.2 Making sure the USAF has the appropriate "teeth" and "tail" personnel is the responsibility of the Air Force Manpower Agency ("AFMA"). AFMA is a field operating agency3 within the USAF and provides USAF leaders with the tools necessary to identify the essential manpower required for supporting USAF operations. "Manpower" is the term used to specifically refer to personnel assigned to work in AFMA, who have been trained and assigned to deal exclusively with the technical study of how many spaces or positions are needed to perform specific tasks or functions throughout the USAF.4 These "manpower personnel" in AFMA determine personnel requirements, develop programming factors, manage performance management programs, assist with the execution of competitive sourcing initiatives, and conduct special studies.5 All this is done with the final goal of making sure the USAF personnel are efficiently assigned and utilized. Frequently, AFMA relies on computer databases and programs to help conduct its mission. For example, at one point most of the manpower data for the USAF was stored in a database called the Manpower Data System ("MDS"). Like many computer systems, the MDS had certain limitations. A computer program specifically written to increase the functionality of the MDS is the subject of the instant action. Written by a Technical Sergeant Davenport allegedly on his off-duty hours, the AUMD program allowed AFMA personnel to more easily access local databases storing all types of manpower data, such as the number of particular positions at a local bases and the number of personnel authorized to perform a particular task of work. The AUMD program also enabled AFMA personnel to print reports containing needed data quicker and also to create customized reports. The program preformed well and was soon used by AFMA personnel stationed around the world. To be sure, so impressed was the Air Force with the program, Technical Sergeant Davenport was asked to provide training and answer questions about the program at various bases in the United States and throughout the Pacific. Over the next year and a half, Davenport continued to revise and update the AUMD program with improving the program's functionality with the input of AFMA colleagues and other USAF
2

Col. John Jogerst, USAF, What's So Special about Special Operations? Lessons from the War in Afghanistan, Aerospace Power J., Summer 2002, at 98, 101, available at http://www.airpower.maxwell.af.mil/airchronicles/apj/apj02/sum02/sum02.pdf. Field operating agencies are subdivisions of the USAF that report directly to Headquarters, U.S. Air Force ("HQ USAF"). They are assigned a specialized mission that is restricted in scope when compared to the mission of a major command. Field operating agencies carry out activities under the operational control of HQ USAF. United States Air Force, Factsheet: The U.S. Air Force, http://www.af.mil/factsheets/ (follow "The U.S. Air Force" hyperlink) (last visited Feb. 9, 2007).
4 3

As Glendon Hendricks, a man who spent almost his entire military and civilian career in the manpower field, explained at trial, manpower determined the number of spaces necessary to perform work and then personnel would "match up faces [people] with the spaces." Tr. 864.
5

"United States Air Force, Factsheet: Air Force Manpower Agency, http://www.af.mil/factsheets/ (follow "Air Force Manpower Agency" hyperlink) (last visited Feb. 9, 2007). -2-

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personnel. Occasionally, Davenport would release a new version of the AUMD program, which incorporated all the most recent changes. In all, Davenport produced ten versions of the AUMD program from May 1998 to January 2000. Seeing the AUMD's success and wishing to profit from the program, Davenport and his uncle established the Blueport Company, LLP ("Blueport") in February 2000--some twenty months after Davenport had produced the first version of the AUMD. Davenport then registered for a copyright for version 2.1d of the AUMD program in March 2000 and in the same month assigned all rights in the program to Blueport. Blueport, in turn, sought a licensing agreement with the USAF for the continued use of the AUMD program. Desiring to own outright such a program rather than pursuing a licensing agreement, the USAF procured the services of a private contractor to "reverse engineer" the AUMD program, in order to recreate the AUMD's functionality. As part of the process of recreating the computer program's functionality, the USAF instructed the contractor to "hack"6 into the AUMD program and disable the program's automatic expiration date--the date when the program would automatically cease operation. Disabling the automatic expiration date allowed the USAF to continue using the AUMD program, while its contractor sought to write a new program to replace the copyrightprotected AUMD. Jilted by the USAF, Blueport filed a two-count complaint with this Court. The first count is based on the alleged infringement of Blueport's copyright by the United States. 28 U.S.C. § 1498(b). Specifically, Blueport maintains that the use by the USAF of the AUMD program after the expiration date constituted the infringement. Blueport also contends that the new computer program written by the contractor--the so-called MARS program--also constitutes unlawful infringement because this program of the USAF directly copied Blueport's copyrighted AUMD program. Blueport contends in the complaint's second count that the disabling of the AUMD's automatic expiration date violated the Digital Millennium Copyright Act of 1998 ("DMCA"). 17 U.S.C. § 1201 et seq. In an opinion issued on June 29, 2006, the Court granted the government's summary judgment motion on the second count, holding that the United States Court of Federal Claims lacks jurisdiction under the DMCA to hear the claim. See Blueport Company, 71 Fed. Cl. at 768. The Court then conducted a trial in Portland, Oregon, from July 24 to July 28, 2006, regarding issues related to the copyright infringement count of Blueport's complaint. As explained fully below, because Blueport fails to make the requisite jurisdictional showing necessary for a copyright infringement claim against the United States, the Court holds for the defendant. See 28 U.S.C. § 1498(b).

6

Hack (v): (a) to write computer programs for enjoyment; (b) to gain access to a computer illegally. Merriam-Webster OnLine Dictionary, http://m-w.com/. See also Blueport Co., LLP v. United States, 71 Fed. Cl. 768, 770 n.4 (2006) (noting the definition of "hack" as "To modify a program, often in an unauthorized manner, by changing the code itself."). -3-

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FACTUAL BACKGROUND7
Information on work profiles for each unit in the USAF--how many airmen are required, at what rank and what level of training are necessary--used to be stored in a database known as the MDS, housed at Gunter Air Force Base in Alabama. CSPFF ¶ 10. The MDS database was developed in the 1990s and replaced an antiquated system that had relied on magnetic tapes and punch cards to store information. Tr. 67. The data in the MDS included skill profiles for each position in the USAF, as well as the training, rank and skill levels of all USAF personnel. Id. Manpower personnel constantly accessed the information stored in the MDS to manage the current and future personnel needs of the USAF. Id. Mark Davenport enlisted in the USAF in 1981, and after four years of service, began working in the manpower career field. Id. at 63. Around July of 1991, Davenport was transferred to Gunter, and soon thereafter, in 1992, began working on preparing the transition for manpower personnel to use the MDS system. Id. at 68-69. During the beta testing8 of the MDS, Davenport--then a Technical Sergeant--observed that the system did not allow manpower personnel at local USAF bases throughout the Pacific Air Forces ("PACAF")9 to print reports. Id. at 92. Instead, manpower personnel at local bases had to send their report requests via e-mail to PACAF headquarters at Hickam Air Force base in Hawaii and wait for other manpower technicians there to respond to the message with a copy of the requested report attached--a process that could take several hours. Id. Davenport also noticed that the official

7

Facts from this section are drawn from: Consolidated Statement of Proposed Findings of Fact ("CSPFF"); Trial Transcripts ("Tr."); Plaintiff's Trial Exhibits ("Pl.'s Trail Ex."); and Defendant's Trial Exhibits ("Def.'s Trial Ex.").
8

A beta test is a test of a computer product prior to the program's general or commercial release. Beta testing is the last stage of testing, and normally can involve sending the product to beta test sites outside the program developers for real-world exposure. See Merriam-Webster OnLine Dictionary, http://m-w.com/.
9

The USAF is organized into major commands ("MAJCOM") each representing a major Air Force subdivision and each having a specific portion of the Air Force mission. Each MAJCOM is directly subordinate to HQ USAF. MAJCOMs are interrelated and complementary, providing offensive, defensive, and support elements. In the United States, MAJCOMs are organized on a functional basis, while overseas MAJCOMs are organized on a geographical basis. The USAF is currently organized into nine MAJCOMs (seven functional and two geographical) reporting to HQ USAF. United States Air Force, Factsheet: The U.S. Air Force, http://www.af.mil/factsheets/ (follow "The U.S. Air Force" hyperlink) (last visited Feb. 9, 2007). PACAF is one of two geographical MAJCOMs in the USAF and represents the air component of the U.S. military in the Pacific. PACAF's area of responsibility extends from the west coast of the United States to the east coast of Africa and from the Arctic to the Antarctic, covering more than one hundred million square miles. United States Air Force, Factsheet: Pacific Air Forces, http://www.af.mil/factsheets/ (follow "Pacific Air Forces" hyperlink) (last visited Feb. 9, 2007). -4-

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manpower report was a very cluttered document, containing significant amounts of superfluous information. Id. at 95-96. Seeking to find a way to alleviate these MDS shortcomings, Davenport began experimenting with writing his own computer program that would allow USAF manpower personnel to run and print their own customized reports. Id. at 93. At no time was Davenport ordered by his superiors to write such a program. Id. at 91, 503, 518. Indeed, the USAF never provided Davenport with any formal computer programming training, despite repeated requests for such training. Id. at 69-70, 7273. It appears that Davenport's motivation was the desire to more efficiently access the MDS and to gain experience in writing his own computer program. Id. at 93-94. Technical Sergeant Davenport entitled the program the AUMD program. CSPFF ¶ 6. The AUMD, created in Microsoft Access 97 using the Visual Basic programming language, actually consisted of two separate computer programs tailored for use with the MDS. Id. ¶¶ 11, 13; Tr. 9798. The first program, known as the AUMD Admin, downloaded data stored in the MDS and incorporated that data into a local database. CSPFF ¶ 11; Tr. 97-98. The second program, known as the AUMD Master, allowed users to manipulate the data in the local MDS database into standard reports and user-customized reports. CSPFF ¶ 11; Tr. 97-98. This allowed manpower personnel to use their office computers to access the information they needed and print reports containing that information to their office printer. The AUMD program literally saved manpower personnel hours of time in printing reports, since requests to print reports no longer had to be sent to PACAF headquarters and the result sent back to the user. Tr. 92. The first "beta" version of the AUMD program took Davenport approximately two weeks to write, working in the evenings after returning home from work, and on the weekends. Tr. 92. This beta version was completed on or about May 28, 1998. CSPFF ¶ 15. Davenport then provided a copy of this "beta" program to his friend Master Sergeant William Luckie in June 1998, for review and comment. Id. ¶ 16. Davenport and Master Sergeant Luckie conducted the beta testing of the AUMD at their individual work stations during their working hours. Id.; Tr. 104. This was necessitated by the fact that the MDS was a closed database, only accessible from the USAF computers on USAF bases. Tr. 328-30. Thus, it was only by drawing data directly from the MDS that AUMD could create a local database which individual users could access to run customized reports. Id. at 328. While Master Sergeant Luckie was reviewing the AUMD program at his work station, one of his superiors saw him using it. Tr. 104. Recognizing the AUMD could address the shortfalls in the MDS, Master Sergeant Luckie's superior asked Luckie to provide the other manpower personnel at his base with a copy of the program. Id. Shortly after this, Luckie began preparing an instruction manual on how to use the program. Id. at 315-16. Use of the AUMD quickly spread throughout the manpower personnel in the PACAF and the USAF in general. The rapid dissemination of the AUMD occurred as a result of manpower personnel from local bases coming to PACAF headquarters for conferences or transferring to new assignments. Id. at 336. These personnel would see Davenport or other manpower technicians using the AUMD program. Id. Recognizing the benefits of the program, many of the visiting manpower personnel requested copies of the program to take back to their local bases. Id. -5-

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The AUMD program spread so quickly that by July 1998, while traveling to several local bases in the PACAF, as part of his regular duties to provide instruction on the new MDS, Davenport was asked by manpower personnel to provide training on the AUMD program. Id. at 113, 334-36. During this time, Davenport continuously upgraded and refined the AUMD program to improve its functionality and usefulness. Occasionally, Davenport would come across an interesting feature in another program that he would incorporate into the AUMD. Id. at 347. Significantly, Davenport began to receive numerous suggestions from USAF manpower personnel on how the AUMD program could be improved. Id. If Davenport considered a suggestion useful, he would incorporate it into the AUMD. Id. at 415. By September 1998, Davenport had made enough changes to the AUMD program to warrant the issue of a new version of the program, version 1.0 AUMD.10 Id. at 331-32. By this time, most of the USAF bases in PACAF were using the AUMD program. Id. at 109-10. Also, in September 1998, Davenport was asked by his commanding officer to give a presentation on the AUMD program for senior AFMA officers at a manpower conference in San Antonio. Id. at 111-12. This presentation was before the heads of the entire USAF manpower community, and Davenport's talk was extremely well received. Id. After Davenport's September 1998 presentation, use of the AUMD increased significantly. Id. at 350. The earliest versions of the AUMD contained an "about screen" with Davenport's personal e-mail and home telephone number. Id. at 347. However, after Davenport began receiving calls regarding the AUMD program late at night, he changed the information on the "about screen" to list only his work e-mail and telephone number. Id. Davenport was soon overwhelmed with calls seeking support for the AUMD. Id. at 350. The situation became such that he could not both perform his regular duties and provide all the technical support being requested. Id. To alleviate the demands for his support with the program, Davenport began to work more closely with manpower data managers in other USAF commands. Id. While Davenport continued to provide user support for the AUMD program to manpower personnel in PACAF, manpower
10

Ten total versions of the AUMD program would eventually be produced. Tr. 345. These versions and their release dates are as follows: Beta 0.9 May 1998 1.0 September 15, 1998 1.5 February 1, 1999 1.8 April 22, 1999 1.9 August 13, 1999 2.0a September 29, 1999 2.0b October 2, 1999 2.1d November 18, 1999 2.1e January 2, 2000 2.1f January 5, 2000 Def.'s Trial Ex. 3; Tr. 345. -6-

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personnel in other MAJCOMs were instructed to first contact the manpower data manager in their MAJCOM headquarters for support before contacting Davenport. Id. Davenport kept these manpower data managers appraised of changes to the AUMD program and appraised them of when new versions of the program would be issued. Id. Additionally, to cut back on inquires from personnel using outdated versions of the AUMD program, Davenport incorporated an automatic expiration date into the program. Id. at 351-52. Upon expiration, the program ceased to function and a screen appeared instructing the user to contact the manpower data manager at their MAJCOM headquarters for the latest version of the AUMD program. Id. While everyone who worked with MDS agreed that the AUMD program was an extremely useful program, some officials in the USAF felt some unease at its widespread use. Id. at 891-92. This unease allegedly resulted from the USAF's lack of possession of documentation revealing the program's source codes11 or even explaining its workings. Id. at 891. As a result of this unease, concerns were raised that manpower personnel were becoming increasing reliant on performing their daily duties with a program over which the USAF had no control, particularly since it was supported and updated solely by Davenport. Id. at 891-92, 899. Concerns also grew that if anything should happen to Davenport--should he decide to retire, become sick, or be hit by the proverbial "Mack truck"--manpower personnel would be dependent on a computer program that no one was capable of supporting. Id. at 899, 902. As a result of these concerns, shortly after the September 1998 manpower conference in San Antonio, the USAF began requesting that Davenport provide the USAF with the source codes to the
11

Computer software contains two types of code: machine readable object code and human readable source code. Object code uses the two digits 0 and 1 as on (0) and off (1) switches. All instructions and data in the software are reduced to series of these numerals. Since it is impractical for most people to reduce data and instructions to strings of 0's and 1's, computer programming languages have developed. Instead of using only 0's and 1's, these programming languages use numerous symbols and syntax to convey meaning--making them much easier for people to understand. These programming languages effectively enable people to write instructions and data in software. Source code is the text of software written in these programming languages. Software's human readable source code commands are translated into machine readable object code commands which are executable by the computer. See Universal City Studios, Inc., v. Reimerdes, 111 F. Supp. 2d 294, 305-06 (S.D.N.Y. 2000) (giving a detailed description of object and source codes). Users of software cannot readily modify the machine readable object code since strings of 0's and 1's are difficult to comprehend. In contrast, the human readable source code is much easier to modify. For this reason software developers will often only provide the software users with the object code, insuring that the users continue to rely on the software developers for changes in the software. Software developers will also seek to copyright their source codes. And to further protect the software from being copied, software developers will often take technical steps to prevent others from trying to discern the source code from the basic object code. See Theodore C. McCullough, Understanding the Impact of the Digital Millennium Copyright Act on the Open Source Model of Software Development, 6 Marq. Intell. Prop. L. Rev. 91, 94 (2002). -7-

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AUMD program. Id. at 397. Davenport, however, did not wish to turn over the source code to the USAF. Id. Davenport considered the AUMD program his personal program, since he believed he had initially conceived of the idea and created it at his home in his spare time. Id. He was also concerned at what might happen to the program once the USAF took over its operation. Id. Davenport believed that, in the past, when the USAF had taken over other computer programs developed independently by USAF personnel, the result was a loss of functionality due to the changes the USAF insisted on incorporating into the program. Id. He allegedly wanted to avoid repeat performance with the AUMD. Id. Throughout 1999, USAF officers repeatedly asked Davenport to turn over the source codes to the AUMD, to no avail. Id. at 901-02. Unable to obtain the source code from Davenport, the USAF determined its only option was to have a private contractor "reverse engineer" the program. Id. at 902. On January 11, 2000, the USAF issued a solicitation requesting bids from private contractors to recreate the AUMD program. CSPFF ¶19. At the same time, Davenport sought an avenue to financially benefit from the AUMD program. On February 7, 2000, Davenport and his uncle, Mr. Robert Gunter, formed Blueport. CSPFF ¶ 7. The two men hoped this company would provide them with a vehicle to sell a licence to the USAF for use of the AUMD program. This formation occurred almost two years after the Beta version was released and after the program was widely used by Air Force Manpower divisions. Id. As part of his efforts to form Blueport, on March 3, 2000, Davenport submitted an application to the United States Copyright Office to obtain a copyright for the AUMD program. Pl.'s Trial Ex. 90. In exchange for a fifty percent share of Blueport, Davenport assigned all rights to the AUMD program to Blueport on March 6, 2000. CSPFF ¶ 8; Pl.'s Trial Ex. 103; Tr. 47, 61. Blueport's copyright of the AUMD program, titled "UMD Admin Program V.2.0A and Master Program V.2.1D," was registered on March 9, 2000, as Registration No. TX 5-159-682. Id. ¶ 3; Pl.'s Trial Ex. 139; Tr. 47-48. On March 31, 2000, Blueport approached the USAF about acquiring a license to the AUMD program. Tr. 50-51; Pl.'s Trial Ex. 57, 105. Blueport indicated that the USAF's rights to use the program would terminate on May 15, 2000, the expiration date of the latest version of the AUMD program. Tr. 51; Pl.'s Trial Ex. 57. Instead of entering into negotiations with Blueport, the USAF on April 10, 2000, selected Science Applications International Corporation ("SAIC") to recreate the functionality of the AUMD program through reverse engineering. CSPFF ¶ 20; Tr. 206. However, SAIC did not have time to complete its tasks before the latest version of the AUMD would reach its expiration date of May 15, 2000. CSPFF ¶ 21. Mindful of the USAF's intention to have a private contractor reverse engineer the AUMD, Davenport did not prepare any further versions of the AUMD program and was unwilling to assist the USAF in changing the automatic expiration of the version then in use. Id.; Tr. 900. Faced with the situation of being unable to use the computer program the manpower community had come to -8-

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rely upon and not yet having an alternative program to replace it, the USAF instructed SAIC to hack into the AUMD program and change the automatic expiration date from May 15, 2000 to February 15, 2001. CSPFF ¶ 23; Tr. 234. This allowed the USAF to keep the AUMD program operational until SAIC created a replacement program--the MARS program. Tr. 905. On May 23, 2001, Blueport submitted to the Air Force Legal Services Agency an administrative claim for compensation for the USAF's copyright infringement of the AUMD program. Pl.'s Trial Ex. 107; CSPFF ¶ 28. On January 11, 2002, the Air Force Legal Services Agency denied Blueport's administrative claim. Pl.'s Trail Ex. 104; Tr. 52-53. Blueport then filed its complaint with this Court on November 18, 2002. There are primarily four issues raised and responded to by the parties. For instance, the parties dispute whether the protections of the copyrighted AUMD version 2.1d extend also to latter non-copyrighted versions of the AUMD, specifically AUMD version 2.1f. It is further disputed whether the government held an implied license to use the AUMD program and whether any copying and adaptation of the AUMD program by the government was an essential step in utilizing the program, pursuant to 17 U.S.C. § 117. Another issue is whether the MARS program is substantially similar to the AUMD program and if the government's use of the AUMD program constituted "fair use" under 17 U.S.C. § 107. Finally, the issue of the jurisdiction of this court to adjudicate this action has been raised. This is predicated on certain criteria found in 28 U.S.C. § 1498(b), which acts as a waiver of sovereign immunity for copyright infringement actions against the United States. As explained in greater detail below, because the Court finds that these statutory criteria are mandatory jurisdictional requirements not met by plaintiff, it is not necessary to address the numerous other issues and arguments presented by this case.

DISCUSSION
Typically, for copyright infringement, a plaintiff must show ownership of a valid copyright and copying of the protected work. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Under the Copyright Act, copyright ownership initially vests with the person who created the work. 17 U.S.C. § 201(a); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989). Copyrights are presumptively valid and a certificate of copyright registration is considered prima facie evidence of a valid copyright. Herbert v. United States, 36 Fed. Cl. 299, 303 (1996) (citing 17 U.S.C. § 410(c)).12 Here, it is undisputed that Davenport was the creator of the original AUMD program and that he has assigned his rights to plaintiff. CSPFF ¶¶ 6, 8. Plaintiff, by producing the certificate of copyright registration for the AUMD program version 2.1d, asserts it has established ownership of a presumptively valid copyright. Id. Pl.'s Ex. 117, 139. But, we proceed not under the Copyright Act, but under 28 U.S.C. § 1498(b), which acts as a waiver of sovereign immunity and vests this Court with jurisdiction to adjudicate copyright The same court issued two opinions in Herbert. The first decision denied the defendant's motions for summary judgement. Herbert v. United States, 32 Fed. Cl. 293, 296-97 (1992) (hereinafter Herbert I). The second decision, issued two years later after a trial on the merits, dismissed plaintiff's complaint. Herbert, 36 Fed. Cl. at 305-07 (hereinafter Herbert II). -912

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infringement claims against the government. Section §1498(b) contains explicit exceptions (characterized as "provisos" or "conditions" in this opinion) to the waiver--where the government was "induced" by plaintiff into using the copyrighted work or where the ownership of the copyright by plaintiff is placed at issue because it in essence constitutes what is termed "government work" under copyright jurisprudence. See Matthew Bender & Co., v. West Publ'g Co., 158 F.3d 674, 679 (2d Cir. 1998) (holding that the works of the federal government, such as the text of judicial decisions, are not subject to copyright protection and may therefore be copied at will). As to the latter contingency, there can be no "presumption" of ownership for jurisdictional purposes under 28 U.S.C. § 1498(b) because, unlike the Copyright Act, the substantive factual issue of "government work" goes to the initial determination of the jurisdictional waiver of sovereign immunity itself.

I. JURISDICTION OF THE COURT OF FEDERAL CLAIMS
It is beyond doubt that the United States Court of Federal Claims "has jurisdiction only where and to the extent that the government has waived its sovereign immunity, and any waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Ledford v. United States, 297 F.3d 1378, 1381 (Fed. Cir. 2002). There exists two categories of jurisdictional cases facing this court. In the majority of cases, the requirement of subject matter is fulfilled simply because the plaintiff has filed a well-pled complaint alleging the appropriate jurisdictional facts. E.g., Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005); Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 686-88 (Fed. Cir. 1992) (noting that well-pleaded allegations in the complaint are sufficient to overcome a challenge to subject matter jurisdiction). Plaintiff has met this "allegation" burden in the present case. If the validity of the jurisdictional facts alleged in the complaint are challenged, however, a second, yet rarer in practice, category of cases emerges whereby the court must consider relevant evidence in order to resolve the factual dispute. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting each jurisdictional "element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation."). See, e.g., Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988) (citing Land v. Dollar, 330 U.S. 731, 735 (1947)). Ultimately, in these cases, the plaintiff must prove jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748; Zunamon v. Brown, 418 F.2d 883, 886 (Ct. Cl. 1969) ("[T]he court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence." (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)); Hansen v. United States, 65 Fed. Cl. 76, 94 (2005). Because the factual predicate for jurisdiction has been challenged, the Court now proceeds to address this matter. A. The "Provisos" of 28 U.S.C. § 1498(b): Jurisdictional or Affirmative Defenses? An issue arose at trial whether the exceptions to a plaintiff's right of action listed in § 1498(b) should be treated as jurisdictional, that is as conditioning the Court of Federal Claims' limited copyright infringement jurisdiction, or merely as affirmative defenses. Tr. 1064-65. The genesis of the problem arises from the language of § 1498(b), for this section not only vests this

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Court with exclusive jurisdiction through a waiver of sovereign immunity,13 but also sets out certain exceptions, provisos, to a copyright owner's right of action: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used . . . . 28 U.S.C. § 1498(b) (emphasis original). Thus, a government employee's right of action is denied in any one of three circumstances: (1) the employee was in a position to order, influence, or induce the use of the copyright work by the government; (2) the copyrighted work was prepared as part of employee's "official function"; or (3) the copyrighted work was prepared using government time, material or facilities. "The use of the word `or' in the statute indicates that satisfaction of any of these conditions is sufficient to deny a right of action." Herbert II, 36 Fed. Cl. at 305 (examining the three exceptions listed in § 1498(b)). It is well understood that copyright jurisdiction differs for the federal district courts and the Court of Federal Claims. While the federal district courts are vested with jurisdiction to hear copyright infringement actions pursuant to 28 U.S.C. § 1338(a) ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks.") the Court of Federal Claims jurisdiction is established by § 1498(b), which codifies a limited waiver of sovereign immunity for copyright infringement claims against the government and establishes this court as the exclusive forum to hear such claims. 28 U.S.C. § 1498(b) ("[T]he 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 . . . ."). See Boyle v. United States, 200 F.3d 1369, 1373 (Fed. Cir. 2000) ("The plain language of [§ 1498(b)] states that the United States has waived sovereign immunity . . . .").

13

The first half of 28 U.S.C. § 1498(b) provides: Hereafter, 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 for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code: . . . . - 11 -

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In federal district court, the private sector's analogue to the second "official function" proviso in § 1498(b) is the Copyright Act's "work made for hire" doctrine. 17 U.S.C. §§ 101, 201(b). 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.13(b)(2) at 5-98 (2006) ("That formulation parallels the definition of `work made for hire' consisting of `a work prepared by an employee within the scope of his or her employment.'").14 This statutory exception to infringement liability has been treated as an affirmative defense by the federal district courts with the burden of persuasion placed on the defendant. See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 105 (2d Cir. 2002) (noting the federal district court dismissed the defendants' affirmative defense that a computer program belonged to the employer under the "work made for hire" doctrine); Dolman v. Agee, 157 F.3d 708, 712 (9th Cir. 1998) (agreeing with the federal district court that the defendant asserting the work made for hire defense failed to present the requisite credible evidence that the author's work was done at the "instance and expense" of the employer). Of course, the issue of the waiver of sovereign immunity is not implicated in the Copyright Act, where infringement actions are between private parties. Consequently, the similarity between that Act's exception and the conditions or provisos contained in § 1498(b) does not by itself negate the jurisdictional problem. That the conditions in § 1498(b) are jurisdictional can readily seen. That same section clearly waives the sovereign immunity of the United States for copyright infringement suits, as was noted above. The provisos in § 1498(b) can viewed as conditions to that waiver. In other words, the argument is that if Congress can open the door fully to lawsuits against the government, it certainly can only partly open that door. The argument favoring treating § 1498(b)'s exceptions as affirmative defenses is more complex. For instance, the Supreme Court, in Franconia Assocs. v. United States, 536 U.S. 129, 145 (2002), noted that while the Tucker Act, 28 U.S.C. § 1491, constitutes a waiver of sovereign immunity, the Tucker Act's six year limitations period, 28 U.S.C. § 2501,15 "should generally apply to the Government `in the same way that' they apply to private parties," citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990). As such, the argument goes, once immunity from suit has been waived, all other "conditions" are merely statutory provisions that do not implicate jurisdiction. To be sure, this distinction between a jurisdictional prerequisite and an affirmative defense is significant. As indicated, affirmative defenses do not generally call into question subject matter jurisdiction, and the burden on persuasion is on the defendant. See United States v. Hitachi America, Ltd., 172 F.3d 1319, 1333-34 (Fed. Cir. 1999) (noting an affirmative defense was non-jurisdictional

The "work made for hire" is an exception to the general rule that ownership vest with the author of the work, and instead vests with the author's employer. See 17 U.S.C. § 201(b) ("In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."); See also 17 U.S.C. § 101 (defining a "work made for hire" as "a work prepared by an employee within the scope of his or her employment . . . .").
15

14

28 U.S.C.A. § 2501 provides in pertinent part that every "claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." - 12 -

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and can be waived by the parties). If, however, the § 1498(b) exceptions are considered jurisdictional conditions or limitations on the waiver of sovereign immunity, they place the burden of persuasion on the plaintiff to disprove the § 1498(b) provisos. See Barrett v. Nicholson, 466 F.3d 1038, 1041 (Fed. Cir. 2006) (noting the plaintiff bears the ultimate burden of establishing jurisdiction by a preponderance of the evidence). Because jurisdiction is a matter that a court is duty bound to address first, see, e.g., Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir 1999), (indeed, a court, sua sponte, may raise the jurisdiction issue, Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004)), this issue must be addressed before the merits of the copyright infringement claim. The Court will first look to how past cases of the Court of Federal Claims have dealt with this issue. It will then examine how patent cases have considered this question. And, finally, the Court will probe more deeply into how the Supreme Court and the Federal Circuit have resolved the general issue of whether conditions to waivers of sovereign immunity should always be considered as jurisdictional. B. Previous Treatment of § 1498(b) in the Court of Federal Claims No Federal Circuit case seems to have directly examined whether the provisos in § 1498(b) are affirmative defenses or conditions on the court's jurisdiction. The only Court of Federal Claims cases to review the exceptions under § 1498(b) are two related actions in the same case, entitled Herbert v. United States. ( Herbert I, 32 Fed. Cl. at 296-97; Herbert II, 36 Fed. Cl. at 305-07.) While not concretely deciding the issue, the court in Herbert I seems to have considered the exceptions jurisdictional, Herbert I, 32 Fed. Cl. at 296, while latter in Herbert II, the same court appears to have implicitly treated the § 1498(b) exceptions as mere affirmative defenses. Herbert II, 36 Fed. Cl. at 299. In Herbert I, the government-defendant moved for summary judgment on the plaintiff's copyright infringement claim, arguing that the § 1498(b) exceptions denied the court jurisdiction. Herbert I, 32 Fed. Cl. at 296. The court explained that "[d]efendant's first argument was based on the jurisdictional limitations contained in 28 U.S.C. § 1498(b), which waives sovereign immunity for copyright infringement actions filed against the United States." Id. (emphasis added). The court also noted that "[a]n affirmative finding might bar plaintiff from suing the government for copyright violation . . . ." Id. The court denied the defendant's motion, concluding that defendant's arguments were either based on facts in dispute or were not sufficiently developed for the court to reach a firm conclusion. Id. Two years later, after a trial, the same court once again examined the § 1498(b) exceptions in Herbert II. 36 Fed. Cl. at 305-07. In Herbert II, the court stated that § 1498(b) was a "jurisdictional statute which considers a right of action . . . ." Id. at 304. The court then stated that it had "jurisdiction under 28 U.S.C. § 1498(b) to hear the claim to determine whether plaintiff has a right of action for a copyright infringement against the government." Id. While that statement could possible be interpreted to mean only that the Herbert II court had jurisdiction to determine whether it had jurisdiction over the matter, see Moyer, 190 F.3d at 1318, the court went on to label entire discussion of the provisos in § 1498(b) as "the government's defense." Id. To demonstrate that the court perhaps changed its mind and no longer viewed the § 1498(b) provisos as jurisdictional, the court concluded in Herbert II that the plaintiff failed to overcome what it characterized as the "government's defenses" [in § 1498(b)], and not as the failure to meet the jurisdictional requirement in § 1498(b). Id. at 313. Indeed, the court in a footnote stated that it possessed jurisdiction over the case. Id. at 313 n.8. - 13 -

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The only conclusion one can cogently draw is that Herbert I and II collectively are ambiguous at best regarding the jurisdictional versus affirmative defense issue. C. Jurisdictional Treatment of Patents Claims under 28 U.S.C. § 1498(a) Patents cases represent the closest legal analogy to copyright matters. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 439 (1984) (noting when there is no precedent in the law of copyright, "the closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law."); Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 841 n.4 (Fed. Cir. 1992) (noting that patent law is analogous to copyright law). Both are species of intellectual property, and Congress' grant of authority to legislate for both emanate from the Constitution. See U.S. Const., art. I, sec. 8 ("The Congress shall have Power . . . to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."). That patent cases may be cited as persuasive authority for copyright actions, has been recognized by the Federal Circuit. See Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1275 (Fed. Cir. 2004) (citing Sony Corp. of Am., 464 U.S. at 439). One reason that this is true is that the provision allowing for suits against the United States for patent infringement, 28 U.S.C. § 1498(a), is worded very similarly to the copyright provision, 28 U.S.C. § 1498(b).16 Indeed, with the addition of a subsection covering copyright infringement in 1960, 28 U.S.C. § 1498 was split into two subsections: (a) for suits against the United States patent infringement, and (b) for suits against the United States for copyright infringement. See Boyle v. United States, 44 Fed. Cl. 60, 63 n.3 (1999) (observing that section 1498(b) was created when Congress "extended" the provisions of section 1498(a) concerning patent infringement to permit an action in the Court of Federal Claims for copyright infringements). See also Auerbach v. Sverdrup Corp., 829 F.2d 175, 179-80 (D.C. Cir. 1987) (construing § 1498(b) by analyzing "case law interpreting the sister provision, section 1498(a),

16

Compare 28 U.S.C. § 1498(a) ("A Government employee shall have the right to bring suit against the Government under this section except where he was in a position to order, influence, or induce use of the invention by the Government. This section shall not confer a right of action on any patentee or any assignee of such patentee with respect to any invention discovered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials or facilities were used."(emphasis added) with §1498(b) ("Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States . . . 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 . . . : Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used . . . .") (emphasis added). - 14 -

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waiving immunity for patent infringements by the government"). Nevertheless, as with § 1498(b), no case considering the three provisos of § 1498(a) has determined whether they were affirmative defenses or jurisdictional limitations. See Myers v. United States, 147 Ct. Cl. 485, 489-90 (1959) (holding that plaintiff had no right of action under the provisos of § 1498, but without considering whether the provisos were affirmative defenses or jurisdictional). With that said, there is scant authority interpreting § 1498(a) that address a similar jurisdictional question that is presently before this Court. That the Federal Circuit does draw a distinction between statutory affirmative defenses and jurisdiction in § 1498(a), however, may be shown by an analysis of the first paragraph of § 1498(a), which provides that if a private company makes an infringing use of a patented invention "for the United States . . . the owner's remedy shall be by action against the United States . . . ." 28. U.S.C. § 1498(a) (emphasis added). See Crater Corp. v. Lucent Tech., Inc., 255 F.3d 1361, 1364 (Fed. Cir. 2001) ("If a patented invention is used or manufactured for the government by a private party, that private party cannot be held liable for patent infringement."). Not surprisingly, when suits that implicate this provision are between private parties, the Federal Circuit has allowed the private party-defendant to assert an affirmative defense that it had acted on the orders of the government. See Madey v. Duke Univ., 307 F.3d 1351 (Fed. Cir. 2002) (noting against private parties § 1498(a) relieves third parties of patent infringement liability and in application acts as an affirmative defense); Crater Corp., 255 F.3d at 1364 ("[D]ismissal of a lawsuit against a private party pursuant to § 1498(a) is a dismissal because of the successful assertion of an affirmative defense rather than a dismissal because of the district court's lack of subject matter jurisdiction over the patent infringement claims."); Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 554 (Fed. Cir. 1990) ("The Supreme Court has established that section 1498(a) is to be applied, at least with respect to suits to which the United States is not a party, as a codification of a defense and not as a jurisdictional statute." (citing Sperry Gyroscope Co. v. Arma Eng'g Co., 271 U.S. 232, 235-36 (1926))). But where the United States is the defendant, its sovereign immunity is implicated and the Federal Circuit views the same section of § 1498(a) as jurisdictional. See Hughes Aircraft Co. v. United States, 534 F.2d 889, 897-98 (Ct. Cl. 1976) (explaining that in suits pursuant to § 1498(a) against the government, the conditions are jurisdictional in nature). These cases do then lend at least some support that conditions to waivers of sovereign immunity are jurisdictional in nature. D. Supreme Court and Federal Circuit Treatment of Conditions to Waivers of Sovereign Immunity The examination of relevant U.S. Supreme Court and Federal Circuit precedent reveals two paradigms that harken back to the discussion above that framed the jurisdictional versus affirmative defense argument. The first, the traditional view, is represented by the opening and partial opening of the sovereign immunity waiver door. This model views any conditions to the waiver of sovereign immunity as limitations on jurisdiction. A more modern view is that once a statute contains the waiver, all further statutory limitations or conditions,17 even if not met, do not divest the court of

17

Of course, one can take the concept of "conditions" to jurisdiction as jurisdictional too far. As a matter of semantics, any substantive statutory provision could be considered a condition or limitation on jurisdiction. But more than semantics is at stake. An absolute view would in essence negate the distinction between a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and a - 15 -

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jurisdiction. To be sure, the waiver itself becomes a rebuttable presumption of jurisdiction. This presumption may be overcome if the meaning and the structure of the statute so reflect congressional intent that the conditions or limitations are jurisdictional in nature. As will be made clear, under either model, the § 1498(b) provisos should be treated as jurisdictional requirements that place the burden of proof on plaintiffs. 1. Two Models on Conditions on Waivers of Sovereign Immunity The treatment of the Tucker Act's six-year limitations period, § 2501 (as well as whether the limitations period is subject to equitable tolling), provides an excellent example of the two models. The traditional view that conditions to sovereign immunity waiver are themselves jurisdictional limitations is exemplified by several Supreme Court cases in the Nineteenth Century. In Kendall v. United States, 107 U.S. 123 (1883), the Court held that the appellant's claim against the United States was time-barred pursuant to § 2501's predecessor statute.18 The appellant, a veteran soldier of the Confederacy, contended that he was unable by law to file his claim until his civil disabilities were removed by the general amnesty provided by the Proclamation of December 25, 1868. 107 U.S. at 125. His argument was that his claim did not accrue until the Proclamation granted amnesty to those who supported the "insurgent government" and restored their "rights, privileges and immunities" under the Constitution. Justice Harlan, writing for the Court, rejected this argument, recognizing that "the government could not be sued except with its consent" and may "restrict the jurisdiction of the court of claims to certain classes of demands." Id. The six-year limitations period constituted such a restriction and barred the ex-soldier's claim: "To that class may be referred claims which are declared barred if not asserted within the time limited by the statute." Id. This strict rule that conditions (or as the Kendall Court termed it, "restrictions") to waivers of sovereign immunity are limitations on jurisdiction was the law for the remainder of the Nineteenth Century, and indeed for almost all of the Twentieth. See United States v. Wardwell, 172 U.S. 48 (1898) ("[statutory limitations period] is not merely a statute of limitations but also jurisdictional in its nature, and limiting the cases of which the Court of Claims can take cognizance."); Finn v. United States, 123 U. S. 227, 232-33 (1887) (holding that the general rule that limitations period is an affirmative defense "has no application to suits [in the Court of Claims] against the United States."); see also De Arnaud v. United States, 151 U.S. 483, 495-96 (1894) (denying a claim for compensation by a former Russian Imperial Army officer, and alleged special agent of General Fremont during American Civil War, as time-barred (citing Finn, 123 U.S. at 232-33, despite a saving clause suspending the limitations period in favor of "idiots, lunatics, and insane persons . . . .")); see generally 36A C.J.S. Rule 12(b)(6) motion to dismiss for failure to state a claim. See generally Fischer v. United States, 402 F.3d 1167, 1171-72, 1175-76 (Fed. Cir. 2005).
18

The Court characterized the pertinent part of the statute as follows: "It is provided by the act of March 3, 1863, amending that of February 24, 1855, establishing the court of claims, `that every claim against the United States, cognizable by the court of claims,'-that is, such as the government permits to be asserted against it by suit in that tribunal,-`shall be forever barred, unless the petition, setting forth a statement of the claim, be filed in the court or transmitted to it under the provisions of this [that] act within six years after the claim first accrues.'" 107 U.S. at 124. - 16 -

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Federal Courts § 823 (2007) (terming the limitation period in § 2501 as " jurisdictional" and "as such must be strictly construed," (citing, inter alia, Soriano v. United States, 352 U.S. 270 (1957), Goldstein v. United States, 131 Ct. Cl. 228 (1955), judgment aff'd, 350 U.S. 888 (1955), and Frazer v. United States, 288 F.3d 1347 (Fed. Cir. 2002))). The earth shifted in 1990, when in Irwin, the Court adopted a more flexible test. In Irwin, the Court upheld a dismissal of the case for lack of jurisdiction because the complaint was not filed within the time specified by Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16(c), which provides that a complaint against the Federal Government must be filed within 30 days "of receipt of notice of final action taken" by the EEOC. Irwin contended that inaction on the part of his attorney justified lifting of the limitations period under the doctrine of equitable tolling. In upholding the dismissal, the Court observed that the limitations period § 2000e-16(c) is a "condition to the waiver of sovereign immunity and thus must be strictly construed." 498 U.S. at 94. But, the Court also noted that "our previous cases dealing with the effect of time limits in suits against the Government have not been entirely consistent, even though the cases may be distinguished on their facts." Id. (internal citations omitted). Viewing the case as affording "an opportunity to adopt a more general rule to govern the applicability of equitable tolling in suits against the Government," Id. at 95, the Court noted that lawsuits between private litigants are customarily subject to equitable tolling, and that it had extended the doctrine to cases under Title VII. Id. The Court announced a test to determine whether conditions to waivers of sovereign immunity are jurisdictional: "Once Congress has made . . . a waiver . . . [the] condition . . . [ought to be] applicable to suits against the Government, in the same way that it is applicable to private suits . . . ." Id. at 95-96. A rebuttable presumption exists, therefore, that such doctrines, such as equitable tolling, that are "applicable to suits against private defendants should also apply to suits against the United States." To be sure, the Court recognized that Congress "may provide otherwise if it wishes to do so." Irwin's tolling argument was, however, rejected because the facts, to the Court, did not justify applying the doctrine. Id. Exactly by what means Congress was to "provide otherwise," i.e., a showing that the presumption was not intended, was what was at issue in a duo of cases: United States v. Brockamp, 519 U.S. 347 (1997), and United States v. Beggerly, 524 U.S. 38 (1998). Both involved a waiver of sovereign immunity. Beggerly, 524 U.S. 38 (suit under the Quite Title Act, 28 U.S.C. § 2409(a)); Brockamp, 519 U.S. 347 (tax refund). Both involved the propriety of applying equitable tolling to a limitations period. See Beggerly, 524 U.S. at 48; Brockamp, 519 U.S. at 348. In both cases, the private parties cited Irwin as a justification. See Beggerly, 524 U.S. at 48; Brockamp, 519 U.S. at 349-50. In both, the Supreme Court held against the private parties. See Beggerly, 524 U.S. at 48-49; Brockamp, 519 U.S. at 354. And in both cases, the Court applied a textual analysis and determined that the structure and wording of the statutory provision evinced a congressional intent that the waiver of sovereign immunity precluded application of equitable tolling (or, and this is pure semantics, the presumption is rebutted). See Beggerly, 524 U.S. at 48-49; Brockamp, 519 U.S. at 354. Brockamp is illustrative of whether the statutory limitations period for a tax refund in the Internal Revenue Code, 26 U.S.C. § 6511, is subject to the "implied" doctrine of equitable tolling. In holding that it is not, the Court opined that the very nature of a tax statute--that an individual's particular numbers are at play and that there is an administrative need for the general applicability of rules--worked against any presumption that Congress intended equitable tolling to apply. Brockamp, - 17 -

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519 U.S. at 352.19 Although this is a tax case, what was crucial to the Court was the textual analysis that demonstrated the requisite intent to overcome the presumption: To read an "equitable tolling" provision into these provisions, one would have to assume an implied exception for tolling virtually every time a number appears. To do so would work a kind of linguistic havoc. Moreover, such an interpretation would require tolling, not only procedural limitations, but also substantive limitations on the amount of recovery-a kind of tolling for which we have found no direct precedent. Section 6511's detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, "equitable" exceptions into the statute that it wrote. There are no counterindications. Tax law, after all, is not normally characterized by case-specific exceptions reflecting individualized equities. Id. (internal citations omitted). 2. The Federal Circuit and the Two Models Of course, this Court is bound by the precedent of the Federal Circuit unless such precedent "is expressly overruled by statute or by a subsequent Supreme Court decision," Strickland v. United States, 423 F.3d 1335, 1338 n.3 (2005), which is not the case here. Our Circuit seems to be of two minds as to the issue of whether conditions to waivers of sovereign immunity are themselves jurisdictional. Take the example of the Tucker Act's six-year jurisdictional statute, § 2501. One set of cases treats the failure to meet the limitations period as not jurisdictional, but instead an element of a failure to state a claim under RCFC 12(b)(6). See Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1105 n. 2 (Fed. Cir. 2004) (affirming dismissal of the case as time-barred under 28 U.S.C. § 2501, but opining that the proper ground for dismissal is failure to state a claim, not lack of subject matter jurisdiction); Ariadne Fin. Servs. Pty. Ltd. v. United States 133 F.3d 874, 878 (Fed. Cir. 1998) (affirming dismissal of the case on statute of limitations grounds under 28 U.S.C. § 2501, observing "that the question of a time bar on [plaintiff's] claim does not affect the subject matter jurisdiction of the Court of Federal Claims"). The other set of Federal Circuit precedent takes the more traveled road and views conditions to the waiver of sovereign immunity, such as under the Tucker Act's six-year limitations period under 28 U.S.C. § 2501, as strictly jurisdictional. See, e.g., MacLean v. United States, 454 F.3d 1334, 1336

19

As the Court observed: The IRS processes more than 200 million tax returns each year. It issues more than 90 million refunds. To read an "equitable tolling" exception into § 6511 could create serious administrative problems by forcing the IRS to respond to, and perhaps litigate, large numbers of late claims, accompanied by requests for "equitable tolling" which, upon close inspection, might turn out to lack sufficient equitable justification. Id. (internal citations omitted). - 18 -

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(Fed. Cir. 2006) ("In the Court of Federal Claims, the statute of limitations `is a jurisdictional requirement attached by Congress as a condition of the government's waiver of sovereign immunity and, as such, must be strictly construed.'" (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir. 1988)); Hopland Band of Pomo Indians, 855 F.2d at 1577 (holding that limitations period "serves as a jurisdictional limitation rather than simply as an affirmative defense, such a statute of limitations have been held as not capable of waiver or subject to an estoppel, whether pled or not"). The majority of the judges of the Federal Circuit, however, appear to subscribe to a variant of the Supreme Court's Irwin analysis. In Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003), the court, sitting en banc, even though characterizing § 2501's limitations period as a "condition on the waiver of sovereign immunity" and, therefore, "jurisdictional in nature," would nonetheless apply (paradoxically20) Irwin's presumption favoring equitable tolling. Id. at 1316.21 Yet, this analysis was dicta for the court declined to decide the issue because "Mr. Martinez has not made a sufficient factual showing to invoke equitable tolling in this case . . . ." Id at 1319. See also Frazer v. United States, 288 F.3d 1347, 1353 (Fed. Cir. 2002) (declining to decide whether § 2501's limitations period was subject to equitable tolling because of a lack of a factual predicate). A different tack was more recently followed in John R. Sand & Gravel Co. v. United States, 457 F.3d 1345 (Fed. Cir. 2006). In that case, the court held that the lessee's Fifth Amendment takings claim was time-barred. Recognizing that the limitations period in § 2501 "is a jurisdictional requirement for a suit in the Court of Federal Claims," 457 F.3d at 1354 (citing (ironically), Martinez, 333 F.3d at 1316), the court opined that because of the "jurisdictional nature of section 2501 it ma