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February 28, 1983

ROWLAND G. FREEMAN, III, et al., Defendants

The opinion of the court was delivered by: PENN

Harry R. Haldeman, former White House Chief of Staff, filed this action against Rowland G. Freeman, III, Administrator of the General Services Administration, Robert Warner, Archivist of the United States, Richard A. Jacobs, Assistant Archivist, and the United States of America, pursuant to section 105(a) of the Presidential Recordings and Materials Preservation Act ("the Act"), 44 U.S.C. § 2107 note (1974). He seeks damages for the seizure and retention of his personal property by defendants since April 30, 1973.


 Plaintiff was White House Chief of Staff from January 20, 1969 until April 30, 1973, when his resignation was accepted by President Richard M. Nixon. Complaint paras. 7, 8. The next day, May 1, 1973, plaintiff's office at the White House was sealed pursuant to the direction of President Nixon and then Attorney General, Elliot Richardson. Complaint para. 9; Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment at 1.

 Among the materials included in the sealing were journals and audio tapes comprising plaintiff's personal diary. Complaint paras. 9, 13, 14; Plaintiff's Statement of Material Facts para. 2. The parties agree that the diary was "personal and private" as the term is defined by the Act. See Defendants' Response to Plaintiff's Statement of Material Facts para. 4.

 On May 25, 1973 plaintiff's files became the subject of a Grand Jury subpoena. Five days later Watergate Special Prosecutor, Archibald Cox, directed White House officials to secure the files and prohibit the removal of any papers. *fn1" Exhibits 4, 5, Defendant United States' Motion for Summary Judgment; Complaint para. 11.

 President Gerald R. Ford signed the Act into law on December 19, 1974, four months after the resignation of Richard M. Nixon as President of the United States. The next day, Nixon instituted an action challenging the constitutionality of the Act. Nixon v. Administrator of General Services, 408 F. Supp. 321 (D.D.C. 1976), aff'd, 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977). During the pendency of that action plaintiff's materials were retained by White House Counsel. Affidavit of Richard A. Jacobs paras. 4, 5. *fn2" Moreover, this Court enjoined the Administrator of General Services from processing files under the Act, pending a final disposition of Nixon's action. See Nixon v. Administrator of General Services, 408 F. Supp. at 374-375.

 On July 28, 1977 the Supreme Court upheld the constitutionality of the Act. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977). Shortly thereafter, on August 9, 1977, plaintiff's papers were removed to the vault area in the National Archives. Complaint para. 12; Defendant United States' Statement of Material Facts para. 8.

 Congress approved the regulations promulgated to implement the Act -- 41 C.F.R. Part 105-63 -- on December 12, 1977, and archival processing began one month later on January 16, 1978. Jacobs Affidavit para. 7.

 On January 5, 1979 plaintiff commenced litigation in this Court *fn3" for the return of his journals and tapes. That action was settled in the following manner:


(1) [The National Archives and Record Service, General Services Administration (NARS)], in the course of normal processing, examined the Haldeman files and determined which materials were personal and returnable to Mr. Haldeman; (2) NARS reviewed the subject journal and audio cassettes to locate, identify and reproduce all possible security classified portions; (3) NARS transmitted these portions to the National Security Council for classification review; (4) copies of all journals and tapes were provided to Mr. Haldeman except for security classified material; and (5) Mr. Haldeman donated the original materials to NARS.

 Jacobs Affidavit para. 13. Plaintiff then executed a deed of gift, entitled Gift of Papers and Other Historical Materials of H. R. Haldeman to Richard M. Nixon Presidential Library, on March 27, 1980, in which he donated the materials to the United States. Id. On November 5, 1980 plaintiff received the last installment of a copy of his diary with national security information removed. Id.; Memorandum in Opposition to Defendants' Motion for Summary Judgment at 5.

 The instant action, in its present posture, *fn4" seeks compensation from the United States, pursuant to Sections 105(a) & (c) of the Act, for the deprivation of plaintiff's personal and private property from May 1, 1973 until November 5, 1980. Complaint Count IV; Memorandum in Opposition to Defendants' Motion for Summary Judgment at 7.

 The case is presently before the Court on plaintiff's motion for partial summary judgment (on the issue of liability), and the cross-motion of the United States for summary judgment.


 The United States contends that no taking has occurred because there was no intent to convert plaintiff's property for a public use and because the public interest in governmental regulation outweighs any harm to plaintiff caused by archival processing.

 Plaintiff points out that the argument of the United States derives from precedent developed under the taking clause of the Fifth Amendment to the United States Constitution, *fn5" whereas § 105(c) of the Act *fn6" merely requires that a person be deprived of his/her property without just compensation. Intent and a balancing of the public interest against harm to the plaintiff are not, therefore, prerequisites to compensation of an owner under the Act. As a contingent argument, plaintiff asserts that a fifth amendment taking has occurred.



 While this case arises under statute, not the Constitution, this Court may nevertheless look to constitutional precepts for instructive parallels as long as there is no conflict with the plain language of the relevant statute. *fn7" Moreover, it will not be necessary for this Court to become entrenched in the niceties of fifth amendment doctrine, in this case, as much of the dispute will be resolved by the answer to the following question: Why did plaintiff leave his diary in his office at the White House when he vacated it on April 30, 1977?

 Exhibits 1, 2 and 3 of Defendant United States' Cross-Motion for Summary Judgment are transcripts of conversations between plaintiff and President Nixon in the Oval Office on May 2, May 9, and April 9, 1973, respectively. After reading the transcripts, one ineluctable conclusion must be reached: Plaintiff left his files, including his diary, in the White House so President Nixon could assert ownership of them, claim the executive privilege, and refuse to release them. *fn8" Plaintiff was attempting to immunize his papers from subpoena, and he believed, albeit incorrectly, that the only way to accomplish this result was to establish that his papers belonged to the President.

 Many times during the conversations between plaintiff and the President, plaintiff unequivocally stated that his files belonged to the President. In this action, however, plaintiff alleges he was unlawfully deprived of his personal papers. *fn9" These assertions are, of course, inconsistent.

 It is axiomatic that plaintiff must show an interest in the property taken to be entitled to compensation for any loss. Only the owner at the time of taking may seek compensation. 29A C.J.S. Eminent Domain § 196 (1965); cf. United States v. 677.50 Acres of Land in Marion County, Kansas, 420 F.2d 1136, 1140 (10th Cir. 1970), cert. denied, 398 U.S. 928, 26 L. Ed. 2d 90, 90 S. Ct. 1817 (1970) (must be a nexus between the alleged interest and the property taken). This is equally true in situations arising under the Act as it only intends for compensation to be paid to owners of property. *fn10"

 An owner of personal property *fn11" loses his/her right to compensation by abandoning the property. Lemmons v. United States, 204 Ct. Cl. 404, 496 F.2d 864, 872-873 (Ct. Cl. 1974); Acme Ribbon Mills v. City of New York, 30 N.Y.S.2d 369, 371 (N.Y. Sup. Ct. 1941), aff'd, 266 A.D. 656, 41 N.Y.S.2d 201 (1943); 29A C.J.S. Eminent Domain § 108 (1965). Intent to abandon may be inferred from the facts. Lemmons, 496 F.2d at 873. In this case plaintiff voluntarily disassociated himself from his personal property, and 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. *fn12" 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, *fn13" 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, *fn14" 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 *fn15" 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. *fn16"

 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.

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