Brooks. Since the Court finds that there was no meeting of the minds, there was no bailment contract between Ms. Brooks and the Smithsonian. Therefore, the Court shall grant summary judgment in favor of the defendant on Count I of the plaintiff's first amended complaint.
The same analysis applies to the alleged bailment contract between the plaintiff and the Smithsonian alleged in Count II of the plaintiff's first amended complaint. Even if the plaintiff asserts that it was his intent to create a bailment between himself and the Smithsonian, the lack of Smithsonian's accession is sufficient to negate a bailment contract. Further, in the case of Count II, the plaintiff fails to present an even plausible explanation of his 1983 letter demanding the return of the artwork in light of this ingenious bailment theory.
In 1983, the plaintiff notified the Smithsonian that he claimed the artwork as his own and demanded the return of at least eleven of the paintings. The Smithsonian's rejection of his claim to the artwork and its refusal to provide the plaintiff with the paintings evidences that there was no "meeting of the minds" as to the alleged bailment contract. Neither the plaintiff nor the Smithsonian intended there to be a bailment of the artwork.
The plaintiff's self-serving contention that, after his claim to the paintings was rejected by the Smithsonian, he "then consented to the Smithsonian's continued possession" is not only unconvincing; it is preposterous. This contention alone cannot establish evidence sufficient to survive summary judgment when all of the surrounding objective facts compel the conclusion that the plaintiff never agreed to allow the Smithsonian to continue holding the paintings.
The plaintiff argues that the Smithsonian's response to the plaintiff did not "unequivocally repudiate the plaintiff's claim of ownership." The Court cannot imagine the Smithsonian's response being any more unequivocal. The Museum Director wrote, "All of these paintings, except for one, are owned by the National Museum of American Art of the Smithsonian Institution and were given to this museum by Ms. Brooks many years ago." See Defendants' Exhibit 29. The letter from the Smithsonian's Assistant General Counsel was equally unequivocal. The Assistant General Counsel wrote, "It is evident that Ms. Brooks considered these works hers to give in 1968 and 1970, respectively, and that she in fact gave them to our museum. Accordingly, the museum reaffirms its ownership of these ten paintings." See Defendants' Exhibit 30. (emphasis added)
The plaintiff has been unable to point to any evidence suggesting that the Smithsonian assented to the alleged implied-in-fact bailment contract.
Although the Smithsonian frequently corresponded with Ms. Brooks about a planned exhibition of her work, this does not preclude the conclusion that the Smithsonian intended to mount the exhibition with works it considered to be its own. Therefore, the Court shall grant summary judgment in the defendant's favor on Count II of the plaintiff's first amended complaint.
The Replevin Count
The essence underlying all of the plaintiff's claims is that the Smithsonian is in possession of certain paintings and drawings which were taken without authority and that the Smithsonian refused to the alleged true and rightful owner, namely, the plaintiff. Count IV of the plaintiff's first amended complaint alleges that the Smithsonian's actions in continuing to refuse to return the artwork amount to a "wrongful detention" of the plaintiff's personal property which is actionable in replevin.
Replevin has been described as a "remedy to recover possession of property wrongfully taken and detained, together with damages incident merely to the detention." Wardman-Justice Motors, Inc. v. Petrie, 59 App. D.C. 262, 39 F.2d 512, 515 (D.C. App. 1930). The claim asserted in Count IV of the plaintiff's first amended complaint sounds in the tort of replevin or in the tort of conversion.
Conversion has been described as a "wrongful deprivation of property which the plaintiff is entitled to possess." Commercial Credit Corp. v. University National Bank of Fort Collins, 590 F.2d 849, 852 (10th Cir. 1979). In his complaint, the plaintiff alleges that there has been a "wrongful detention" of his property, suggesting a claim in conversion rather than in replevin.
An action in replevin or conversion can be maintained regardless of how the defendant initially acquired the property. The defendant may have acquired the property through either lawful or unlawful means. The acquisition of the property is immaterial to a claim in replevin or conversion. The essence of the actions is the wrongful withholding of the property in question. As this Court has held before, the action for replevin, i.e. one to recover property wrongfully appropriated, sounds in tort. See Saddler v. D'Ambrosio, 759 F. Supp. 4 (D.D.C. 1990), slip op. at 11, n. 7. This is exactly what the plaintiff is seeking. Although the primary objective of the replevin action (i.e. the restoration of possession of property) is different from the traditional tort remedy (i.e. money damages), this does not necessarily preclude the classification of replevin as a tort. "Although [actions in replevin] are restitutionary in character, they are [nonetheless] classified as tort actions." Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181, 190 (1961). Given that the plaintiff's allegations suggest a claim for conversion rather than replevin and the fact that even replevin, as a restitutionary action, can still be considered a tort, the Court holds that the plaintiff's claim for replevin is an action in tort.
Properly characterizing the plaintiff's claim as a tort, it becomes clear that this Court lacks jurisdiction over the plaintiff's claim in Count IV.
It is well settled that "the United States, as sovereign, is immune from suit save as it consents to be sued, . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981), quoting United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586-87, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). Where the United States waives its immunity from suit, "limitations and conditions upon which the Government consents to be sued must be strictly observed, and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. at 161, quoting Soriano v. United States, 352 U.S. 270, 276, 1 L. Ed. 2d 306, 77 S. Ct. 269 (1957).
Tort claims against the United States, including the claim alleged in Count IV of the plaintiff's first amended complaint, are governed by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289, 296 (D.C. Cir. 1977), cert. denied, 438 U.S. 915, 57 L. Ed. 2d 1160, 98 S. Ct. 3144 (1978). The FTCA constitutes a limited waiver of sovereign immunity and permits the recovery of damages in tort suits brought against the United States within the confines of the terms and conditions imposed by the statute. The plaintiff has failed to satisfy certain prerequisites to suit under the FTCA and, therefore, the Court lacks jurisdiction to entertain the claim alleged in Count IV of the plaintiff's first amended complaint.
The FTCA specifically sets out certain prerequisites to filing a tort claim against the United States. First, the FTCA specifically provides that an action cannot be maintained in district court unless the claimant has filed a timely administrative claim. This prerequisite is jurisdictional and must be strictly construed. See Walters v. Secretary of Defense, 233 U.S. App. D.C. 148, 725 F.2d 107 (D.C. Cir. 1983) (in any suit against United States, statute of limitations is integral part of government's consent to suit and as such is issue of subject matter jurisdiction which cannot be waived). No such claim has been filed in this action.
It is now too late for the plaintiff to file an administrative claim against the Smithsonian since a tort claim against the United States is "forever barred" unless an administrative claim is presented within two years of the date on which the claim accrued. 28 U.S.C. § 2401(b). A claim accrues under the FTCA no later than the time that a claimant discovers, or in the exercise of due diligence should discover, the fact that he has been injured and the cause of the injury. See United States v. Kubrick, 444 U.S. 111, 122, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979).
Defendant's letters to the plaintiff in July and September, 1983, at the very latest, made the plaintiff aware that the Smithsonian claimed ownership of the artwork and refused to return the paintings and/or drawings to the plaintiff. Despite this notice, the plaintiff did not file his cause of action in district court until almost six years later. An almost identical situation arose in Magruder v. Smithsonian, 758 F.2d 591 (11th Cir. 1985). In that case, the Smithsonian received an art object in 1932 from Marshall Magruder as a gift "on behalf of his son," who was a minor. In June 1974, the son wrote to the Smithsonian stating that he had just discovered a letter to his father from the Smithsonian thanking him for the gift of the object and that he understood that the object had only been loaned to the Smithsonian. In response to this letter, the Smithsonian refused his request and asserted that it had acquired the object as a "good faith gift."
The son did not respond to the Smithsonian's 1974 letter until five years later when his attorney wrote the Smithsonian asserting the son's ownership and demanding the return of the object.
In a subsequent action filed in federal court, the court found that the son's cause of action accrued no later than 1974, when he became aware of the Smithsonian's claim of ownership. His claims were, therefore, barred by the two-year statute of limitations.
The same is true of the case before the Court here. The plaintiff was notified by letter both from Smithsonian representatives and counsel for the Smithsonian that the Smithsonian claimed ownership of the artwork. Nothing could be more unequivocal. Yet, still, the plaintiff did not file a claim for the paintings and drawings until July 1989. Although the Court appreciates the fact that the plaintiff resides in a jurisdiction with a much longer statute of limitations, this does not excuse his failure to respond for six years. Litigative timidity is not a sufficient justification for an unreasonable delay in pursuing one's claims. Welcker v. United States, 752 F.2d 1577 (D.C. Cir.), cert. denied, 474 U.S. 826, 88 L. Ed. 2d 68, 106 S. Ct. 83 (1985).
Since the Court holds that the plaintiff's action for replevin contained in Count IV is a tort action and since the plaintiff failed to file an administrative claim within the two-year statute of limitations imposed by the FTCA, the plaintiff's replevin action alleged in Count IV of the plaintiff's first amended complaint must be dismissed for lack of jurisdiction.
The Fifth Amendment Count
In Count II of his first amended complaint, the plaintiff alleges that the defendants engaged in an unconstitutional taking of private property without due process and without just compensation in violation of the Fifth Amendment. Both claims must be dismissed as failing to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
In asserting his due process claims directly under the Fifth Amendment to the United States Constitution, the plaintiff seeks to recover despite the availability of a tort remedy under the FTCA. He relies on Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and its progeny. Bivens, which only allowed for money damages against federal officials in their individual capacities, allows suits to be brought for alleged violations of the United States Constitution. However, the Bivens doctrine does not apply to lawsuits brought against the federal government:
Insofar as [the plaintiff] relies on Section 1331 to establish federal jurisdiction for a suit involving a constitutional tort following the rationale of Bivens. . ., it is mistaken precisely because there is no waiver of sovereign immunity. Bivens authorizes suit against the responsible federal official . . . not against the government itself, . . . and Bivens-type actions against the United States are, as the district court noted, routinely dismissed for lack of subject matter jurisdiction.
Keene Corporation v. United States, 700 F.2d 836, 845 n. 13 (2d Cir.), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983). Since the plaintiff has not sued the two individual defendants in their individual capacities and Bivens does not allow damage actions based on constitutional claims against the federal government, the plaintiff's damages actions under Bivens must be dismissed.
Remaining, then, is the plaintiff's claim for injunctive relief which is not specifically precluded by Bivens. See Spagnola v. Mathis, 859 F.2d 223, 230 (D.C. Cir. 1988). However, in making this claim for injunctive relief, the plaintiff must still prove that he was deprived of his property without due process of law. In proving his procedural due process claim, the plaintiff must prove that the procedures available were not merely insufficient or even inadequate. They must be constitutionally inadequate. The procedures available must "contain a defect so serious that we can characterize the procedures as fundamentally unfair, a defect so basic that we are forced to conclude that the deprivation occurred without due process." Daniels v. Williams, 474 U.S. 327, 341, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) (Stevens, J., concurring).
The availability of a tort remedy such as that offered under the FTCA is generally sufficient to satisfy due process. See Hudson v. Palmer, 468 U.S. 517, 536, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). Although an FTCA claim would only allow the plaintiff to recover money damages and not the paintings themselves, this does not make the process fatally deficient. An alternative remedy is not constitutionally deficient even if it provides less relief than that available under the Constitution. See Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 2417, 76 L. Ed. 2d 648 (1983). In Schweiker v. Chilicky, 487 U.S. 412, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988), the Supreme Court ruled, in the Bivens context, that it would not create a Bivens remedy despite the fact that the alternative remedy did not provide complete relief for the plaintiffs. Id. at 2467. See also Bush v. Lucas, 103 S. Ct. at 2417; Spagnola v. Mathis, 859 F.2d at 229. The Court made clear that it was the comprehensiveness of the statutory scheme at issue and not the completeness of specific remedies thereunder that is determinative of whether a separate remedy, such as Bivens, should be created by the courts. Schweiker v. Chilicky, 108 S. Ct. at 2467. All of these decisions rested on the concept that there are special factors counseling hesitation in the absence of affirmative action by Congress. Here, Congress has created the FTCA, a comprehensive scheme for recovering tort damages against the United States. Congress specifically did not authorize the courts to grant injunctive relief under the FTCA. The plaintiff here has chosen not to take advantage of the remedy offered by the FTCA. This is certainly the plaintiff's prerogative. However, this failure to take advantage of an available statutory remedy offering recovery cannot stand as a basis for bringing a constitutional claim under the Fifth Amendment. A process was, indeed, afforded the plaintiff. The Court appreciates the plaintiff's concern that the process available under the FTCA will not allow the recovery of the paintings themselves. However, the mere fact that the plaintiff is unable to recover exactly what he wants is an insufficient basis for finding a denial of constitutional due process. Congress has addressed the type of recovery allowed for such actions alleged by the plaintiff. Whether or not the Court believes that Congress' response is the best response, Congress is the body charged with waiving sovereign immunity and providing for remedies for torts allegedly committed by the government through its officials. The statutory scheme is complete and the remedy provided, albeit somewhat insufficient in the unique case before the Court, is not so deficient to constitute a denial of due process under the Fifth Amendment to the United States Constitution. Therefore, the Court must dismiss the plaintiff's due process claim for failing to state a claim upon which relief can be granted.
As for the plaintiff's claim under the Takings Clause under the Fifth Amendment, the Court must dismiss this claim as well. A prerequisite to a claim under the Takings Clause is proof of the government's lawful authority to take the property. Here, the plaintiff repeatedly asserts that the Smithsonian took the property unlawfully and without lawful authority. The plaintiff's claims, sounding in tort, do not fall within the scope of the Fifth Amendment's Takings Clause.
In other words, the Government must have lawfully used its power in converting private property to public use. . . . Consequently, the Government official or agency that appropriated private property must have acted within its authority. . . . An unauthorized or unlawful taking is not compensable under the fifth amendment, but is a claim sounding in tort.
Adams v. United States, 20 Cl. Ct. 132, 137 (Cl. Ct. 1990).
Further, the plaintiff has failed to prove that the Smithsonian intended to take the plaintiff's paintings. He has failed to demonstrate that the invasion of his property rights was the natural and probable result of the defendant's actions. See Baird v. United States, 5 Cl. Ct. 324, 330 (Cl. Ct. 1984). Again, this prerequisite for a Takings Clause claim aims to distinguish Takings Clause claims from ordinary torts. Under this standard:
It is the likelihood of the outcome of the government's action that distinguishes its takings from its torts. . . . Essentially, therefore, the probability and foreseeability of the damage is a primary determinative element in whether a taking or tort occurred.