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June 28, 1999


The opinion of the court was delivered by: Kennedy, District Judge.


Plaintiffs, German citizens, have brought this action to recover photographic archives and paintings formerly belonging to Heinrich Hoffmann Sr. Their claims are for contract damages and tort damages, and for violations of the Fifth Amendment and the Trading With the Enemy Act.*fn1 Before the court are defendants' motion to dismiss or for summary judgment and plaintiffs' motion for summary judgment. Upon consideration of the motions, the responses thereto, and the entire record of this case, the court concludes that defendants' motion for summary judgment should be granted with respect to all claims except for those with respect to the Time-Life archives, as described below.

I. Factual Background

This lawsuit is "simply a claim for damages resulting from the tortious conversion of chattels" by the United States. Price v. United States, 69 F.3d 46, 48 (5th Cir. 1995); cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). The chattels consist of photographic archives compiled by Heinrich Hoffmann ("Hoffmann Sr.") and his son, Heinrich Hoffmann Jr. ("Hoffmann Jr.") and four watercolor paintings by Adolf Hitler. Plaintiffs are the Estate of Henriette von Schirach, Hoffmann Sr.s daughter, Robert H. Hoffmann, Heidemarie Kruger, and Susanne Hustadt.

According to a biographical record submitted by plaintiffs, during World War I, Hoffmann served as a photographer in the Bavarian army. He first met Adolf Hitler in 1919, "the beginning of an intimate personal relationship":

  Hitler would often visit the Hoffmanns' home in
  Munich for relaxation. It was through the
  photographer that the future leader of the Third
  Reich first met Eva Braun who worked in his shop, and
  Hoffmann also frequently drove him to the Wagner home
  in Bayreuth to see Frau Winifred Wagner. In 1920
  Hoffmann joined the [National Socialist Workers'
  Party] and soon belonged to the inner circle of
  Hitler's intimate companions. The only man allowed to
  photograph the Führer, he accompanied him everywhere
  on his road to power and later, during World War II,
  travelled with him to all the various fronts.
  Hoffmann's two-and-a-half million photographs provide
  a unique record of twenty-five years of German
  history and helped to make him an enormously wealthy
  man, as well as enriching Hitler himself and
  enhancing his popularity. . . . It was Hoffmann's
  idea that Hitler should receive a royalty for every
  photograph of himself which appeared on a postage
  stamp, which led to the accumulation of enormous sums
  of money to the Führer's account. Hoffmann was tried
  as a Nazi profiteer in 1947, sentenced to ten years'
  imprisonment (later reduced to three, then raised to
  five years in 1950) and nearly all of his personal
  fortune was confiscated. He died in Munich on 16
  December 1957.

Robert Wistrich, Who's Who in Nazi Germany 155, Pl.Ex. 405, Attach. 12; see also 1 Christian Zentner & Friedemann Bedürftig, eds., The Encyclopedia of the Third Reich 437 (Amy Hackett trans., 1991). But see Pl.'s Br.Supp.Summ.J. at ¶ 19 (stating that Hoffmann's sentence was for four years).

In addition to his work for Hitler, from 1905 to 1945 Hoffmann Sr. owned and operated his family's photography business in Germany, which included a portrait studio, a fine arts press, and a well-known press photography agency. Beginning with a collection of photographs dating from the 1860s through the early 1900s that he had obtained from his grandfather, father, uncle, Hoffmann Sr. built a vast archive of photographic images.

Hoffmann Jr. joined his father's business in the mid-1930s, and managed the press agency and a fine arts magazine from 1940 to 1945. In 1937 Hoffmann Sr. transferred all of his then-existing photographic archives to Hoffmann Jr. After that date, both father and son continued to accumulate photographs in their respective archives.

In addition to the photographic archive covered by the vesting order, plaintiffs allege that the Army also continues to possess the remainder of the archives that were seized in Winhöring, as well as "missing" portions of the Hoffmann photographic archives that had been seized by the Army in Freising and Bavaria. See Pl.'s Statement of Facts ¶ 39-40.

Plaintiffs also allege that the Army possesses four watercolors painted by Hitler that Hoffmann Sr. acquired during the 1930s and 1940s. After the war, United States troops discovered the watercolors in the village of Dietramszell and transferred them to a central collecting facility in Munich. The military authorities there in 1949 ordered the paintings to be transferred to Wiesbaden, from where they were shipped to the United States. Pl.'s Statement of Facts ¶ 68-71, 73.

Between 1949 and 1951, Hoffmann Jr. wrote various officers of the Historical Division protesting the Army's transfer of his "entire photo archive" to the United States. See Ex. P-85; see also P-93, P-97, P-99, P-105, P-109, P-125. Unbeknownst to Hoffmann Jr., however, a further portion of the Hoffmann photographic archives had been taken from Hoffmann's Berlin studio in May 1945 by a LIFE magazine photographer. See Ex. P-163. These archives (the "Time-Life archives") came into the possession of the United States in the early 1980s, when Time-Life Inc. donated it to the U.S. Military History Institute in Carlisle, Pennsylvania.

Plaintiffs in the present case, together with Texas businessman Billy Price, initially brought suit for the return of the watercolors and photographic archives in the Southern District of Texas in 1983. The district court entered a partial summary judgment on the issue of liability in Price's favor. Price v. United States, 707 F. Supp. 1465 (S.D.Tex. 1989). On appeal, the Fifth Circuit reversed and remanded for entry of judgment of dismissal with prejudice as to the claims for the watercolors and the photographic archives other than the Time-Life archives. 69 F.3d 46, 54 (5th Cir. 1995). Finding that Price had failed to exhaust administrative remedies with respect to the Time-Life archives, the appeals court dismissed the claims for those archives without prejudice. Id. On petition for rehearing, the Fifth Circuit noted that the vesting order did not cover all of the Hoffmanns' photographic archives alleged to have been seized by the Army in Germany. 81 F.3d 521 (5th Cir. 1996). Accordingly, the Fifth Circuit held that with respect to the archives not covered by the vesting order, its dismissal was also without prejudice to the present lawsuit.

The instant case was consolidated in the Southern District of Texas on October 2, 1997, from two actions brought by the same plaintiffs, including Price, in 1989 and 1997. That court held that a conveyance to Price by plaintiffs von Schirach and Hoffmann Jr. of their interests in the photographic archives was an assignment of a claim against the United States in violation of the Anti-Assignment Act. Accordingly, on March 24, 1998, Price was dismissed as a plaintiff, and the case was transferred to this court.

II. Standards of Review

A. Dismissal

A Rule 12(b)(6) motion "tests the legal sufficiency of the complaint." ACLU Foundation of Southern Calif. v. Barr, 952 F.2d 457, 472 (D.C.Cir. 1991). When reviewing such motions, the court must take the allegations in non-movant's pleading as true and must construe them in a light most favorable to the non-moving party. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir. 1983). Reviewed in this light, a motion to dismiss may not be granted "unless it appears that a plaintiff can prove no facts in support of the claim which would entitle the plaintiff to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99.

B. Summary Judgment

A motion for summary judgment should be granted if and only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party's "initial responsibility" consists of "informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322 n. 3., 106 S.Ct. at 2552 n. 3. If the evidence is ...

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