The opinion of the court was delivered by: Kennedy, District Judge.
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
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
According to plaintiffs, the U.S. Army in May 1945 seized the
portion of the Hoffmann archives that had been stored in the town
of Winhöring. In late 1945, the U.S. sent part of the archives
seized in Winhöring to Nürnberg for use by the War
Crimes Commission from 1945 to 1949. This "Nürnberg archive" was
subsequently transferred to the Army's Historical Division in
Frankfurt on April 27, 1949, and thereafter shipped to the Army's
German Military Documents Section in Alexandria, Virginia, on
October 26, 1949. On May 31, 1951, the Assistant Attorney General
and Director of the Office of Alien Property executed an order
vesting all rights, title, interest and claim in the Nürnberg
archive in the Attorney General of the United States. Ex. P-133.
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
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.
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
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 ...