historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers." Appellant's suggestion that the Folsom principle does not go beyond materials concerning national security and current Government business is negated by Mr. Justice Story's emphasis that it also extended to materials "embracing historical . . . information." Ibid. (Emphasis added.) Significantly, no such limitation was suggested in the Attorney General's opinion to President Ford. Although indicating a view that the materials belonged to appellant, the opinion acknowledged that "Presidential materials" without qualification "are peculiarly affected by a public interest" which may justify subjecting "the absolute ownership rights" to certain "limitations directly related to the character of the documents as records of government activity." 43 Op.Atty.Gen. No. 1 (1974), App. 220-230.
On the other hand, even if legal title rests in the Government, appellant is not thereby foreclosed from asserting under § 105(a) a claim for return of private materials retained by the Administrator in contravention of appellant's rights and privileges as specified in § 104(a)(5).
97 S. Ct. at 2791(n.8)., 443 U.S. at 445, n. 8 (emphasis this Court's).
The above decision does not support a claim that the plaintiff has or ever had an absolute right to dispose of the papers. The opinion recognizes the American people do have a right to the papers -- a fact seemingly recognized by every President. Indeed, the record reflects that this plaintiff, after he completed his term as Vice President, turned his Vice Presidential papers over to the Government.
Viewing the materials in the above light, this Court cannot find that the plaintiff has demonstrated that he has absolute title or an absolute property right in the material. As the Government has argued, any right the plaintiff has to the materials is at best limited. This Court agrees. This being the case, the Court must conclude that there has been no "taking" under the constitution or under the Act. Moreover, the Court cannot discern that the Presidential materials are compensable property. Those materials are the property of the American people subject to some control by the plaintiff. Of course, the plaintiff, as the Act recognizes, has absolute control and ownership over the materials which are strictly personal to him, his family or friends. But in the case of the Presidential materials, the plaintiff's title is no greater than as a trustee for the American people.
Assuming for the moment, that the plaintiff does have title or a property interest in the materials, the Court must still conclude that there has not been a "taking". Plaintiff places heavy reliance on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982). In that case the Supreme Court concluded that a cable installation which occupied a very limited portion of appellant's roof was nevertheless a "taking". Plaintiff argues that pursuant to Loretto, the fact that the Government has exclusive legal custody and possession and control of the materials has resulted in a per se taking notwithstanding the plaintiff's "visitation rights". This Court cannot agree. The Presidential papers are unique, and it is difficult to compare those papers with any other property. In any event, it seems clearly recognized that the American people have an interest in those papers no matter the status of legal title. At least this much is recognized by the Supreme Court. See Nixon v. Administrator of General Services, 433 U.S. at 445, n. 8, 97 S. Ct. at 3791, n. 8. This being the case, it is possible for the Government to exercise some control over the maintenance and disposition of those materials. Thus assuming that the plaintiff has legal title to the materials, a conclusion that this Court does not reach, the Act amounts to nothing more than a regulation restricting the use or disposition of the property, rather than a "taking" of the property. See Loretto, 458 U.S. at 430, 102 S. Ct. at 3173.
The Court also finds that any argument that the Nixon - Sampson agreement allowed the plaintiff to establish a right is also without merit. Congress voided the Nixon - Sampson agreement because the plaintiff could have removed those materials from consideration by the Special Prosecutor.
In sum, the Court concludes that the plaintiff does not have legal title to the materials in question, and that the plaintiff only held those materials as a trustee for the American people. There has been no "taking" of his property in the constitutional sense or under the Act. In view of the above, it follows that the plaintiff's motion for summary judgment must be denied and the defendants motion for summary judgment must be granted and that this case must be dismissed with prejudice.
An appropriate Order has been entered.
JOHN GARRETT PENN, United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 782 F. Supp. 634.
ORDER - December 13, 1991, Filed
This comes before the Court on the Plaintiff's Motion for Summary Judgment and the Defendant's Motion for Summary Judgment. After giving careful consideration to the motions, the oppositions thereto, and the record in this case, the Court concludes, for the reasons stated in the accompanying Memorandum, that the plaintiff's motion should be denied, the defendant's motion should be granted and that the case should be dismissed with prejudice.
It is hereby
ORDERED that the plaintiff's motion for summary judgment is denied, and it is further
ORDERED that the defendant's motion for summary judgment is granted, and it is further
ORDERED that this case is dismissed with prejudice.
JOHN GARRETT PENN, United States District Judge