expressly asserted the ownership of another person, solely for his own personal benefit. His acts were definite and certain in their terms, and fully constituted an abandonment of the property.
Another way an owner will lose his/her right to assert an interest in property is to become estopped from asserting an interest as a result of antecedent acts. 29A C.J.S. Eminent Domain § 208 (1965); cf. Mills v. City of New York, 269 A.D. 306, 55 N.Y.S.2d 538, 542 (1945), aff'd, 295 N.Y. 879, 67 N.E.2d 518 (1946) (having sold their property plaintiffs were estopped from seeking damages due to a street closing). From this vantage point, plaintiff should be estopped by his denial of ownership -- a statement made to protect his ostensible interests -- to later seek damages for the taking of the property.
As early as October 8, 1975 plaintiff began to seek return of his diary.
An argument could be made that this was a reassertion of ownership and he is, thus entitled to compensation for deprivation of his property thereafter, until November 5, 1980.
From October 5, 1975 through July 28, 1977 the government was enjoined from processing any files in its custody falling within the coverage of §§ 101(a) & (b) of the Act,
except as specifically provided. Nixon v. Administrator of General Services, 408 F. Supp. at 375. In Hurtado v. United States, 410 U.S. 578, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1972), the Court held that there is a public obligation to provide evidence and, therefore, the pretrial incarceration of a material witness is not a taking under the fifth amendment for which compensation is due. The Court's conclusion was predicated on the principle that "the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed." 410 U.S. at 588. This rule is equally applicable to a plaintiff's duty to suffer the inconvenience concomitant with a court's order to maintain the status quo pending final resolution of a case. Plaintiff has no right to compensation during that period.
On August 9, 1977 plaintiff's diary was transferred to the National Archives. It was returned approximately three years later. While Nixon v. Administrator of General Services, supra, upheld the constitutionality of the archival processing procedure, it did not recommend a reasonable time frame for return of "personal and private" materials.
The Court must decide whether plaintiff is entitled to compensation for the deprivation of his property during archival processing. Several doctrines are pertinent to this inquiry. For example, one could ask whether regulatory processing is an exercise of governmental power which does not trigger taking doctrine, whether there would come a time during regulatory processing when, notwithstanding lack of intent to deprive,
the government had delayed returning plaintiff's personal papers for so long that there would be a denial of due process constituting an unlawful taking, or whether plaintiff owed the government the civic duty of subjecting his papers to archival processing for however long it took. See generally, Hurtado v. United States, supra, 410 U.S. at 588 (fifth amendment does not require government to pay for performance of a public duty it is already owed); Nixon v. Sampson, 188 U.S.App.D.C. 251, 254 n.5, 580 F.2d 514, 517 n.5 (1978) (undue delay in its retention of an individual's personal property increases exposure of the United States under § 105(c) of the Act); Sierra Club v. Environmental Protection Agency, 176 U.S.App.D.C. 335, 540 F.2d 1114, 1140 (1976), cert. denied, 430 U.S. 959, 51 L. Ed. 2d 811, 97 S. Ct. 1610 (1977) (regulation of land does not ordinarily constitute a taking under the fifth amendment).
In the context of this case there is no need to vigorously examine these concepts. First, the Court finds that the three year delay between initiation of processing and final return of the diary was eminently reasonable due to the volume of materials involved and the surrounding circumstances of this case. Less than one year after processing began plaintiff initiated litigation for the return of his diary. Upon settlement of that action plaintiff donated his diary to the United States and return of his diary commenced. While three years elapsed, processing continued throughout and plaintiff ultimately received a copy of his diary. Finally, there is no allegation that the government dragged its heels or otherwise abused the process.
Second, the entire dispute herein was engendered by plaintiff's decision not to assert ownership of the diary when he left the White House, and any damages suffered
would have been avoided if plaintiff had made photocopies. The purpose of archival processing was to segregate plaintiff's personal papers from those belonging to the United States, and plaintiff's failure to provide guidance and assistance (by first denying ownership and then asserting it) surely exacerbated the already inherently difficult process. Thus, if archival processing took longer than it should have taken plaintiff only has himself to blame. He could have obviated this entire conflict; he chose another route solely for his own protection, and should not now be given a forum to complain that he did not choose wisely.
Hence, even if the Court found that plaintiff reasserted his property interest on or after October 8, 1975, and that this reassertion had legal significance, plaintiff would not have a claim for damages from that time until November 5, 1980.
An appropriate Order, consistent with this Opinion, was issued on February 28, 1983. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 558 F. Supp.]
In view of the praecipe filed on October 26, 1981, in which plaintiff acquiesced in the motion of the United States of America for judgment on the pleadings as to Counts I, II, and III of the Complaint, in the motion of defendants Warner and Jacobs to dismiss or, in the alternative for summary judgment, and in the motion of defendant Freeman to dismiss, it is hereby
ORDERED that defendants Warner and Jacobs' motion to dismiss is granted, and it is further
ORDERED that defendant Freeman's motion to dismiss is granted, and it is further
ORDERED that defendant United States of America's motion for judgment on the pleadings as to Counts I, II and III of the Complaint is granted.
In view of the Opinion entered in the above-captioned case on February 28, 1983, it is hereby
ORDERED that plaintiff's motion for partial summary judgment is denied, and it is further
ORDERED that defendant United States of America's motion for summary judgment is granted, and it is further
ORDERED that judgment is entered for defendants.