United States District Court, District of Columbia
C. Lamberth, United States District Court.
November 22, 1963, in what has become a defining moment of
modern American history, President John F. Kennedy was shot
and killed while riding in a motorcade through Dealey Plaza
in Dallas, Texas, while surrounded by onlookers. In this
crowd stood several citizens filming the presidential
motorcade before, during, and after the assassination. The
films shot by such individuals became significantly important
to both investigators, such as the Warren Commission, and to
the American people for decades to come. Nearly every
American is aware of the most famous of these-the Zapruder
film, which clearly captured the fatal shot-and younger
generations are taught about it in their history classes.
Underscoring its significance, in 1999 the United States
government was ordered to pay the family of Abraham Zapruder
$16 million for the film, which it had retained since 1978,
calling it a “unique historical item of unprecedented
lesser known video of the assassination and the ensuing
aftermath was filmed by Orville Nix (the “Nix
film”). Like the Zapruder film, it eventually made its
way into the possession of the United States government,
which used the film in its investigation of the
assassination. The granddaughter of Mr. Nix, Gayle Nix
Jackson, who now brings this lawsuit to recover the Nix film
from the government or for just compensation in the amount of
$10 million, argues that the Nix film is nearly as important
as the Zapruder film. She brings claims for replevin and for
taking without just compensation.
government has moved to dismiss based on lack of standing,
lack of jurisdiction, and failure to state a claim. The Court
finds that it lacks subject matter jurisdiction over both of
Ms. Jackson's claims and will accordingly dismiss this
film, shot from the corner of Main and Houston Streets in
Dealey Plaza, captured the presidential motorcade entering
Dealey Plaza, the fatal shot to President Kennedy (from
behind and to the left of the President, with the grassy
knoll in the background), and the aftermath of the
assassination. On December 1, 1963, Mr. Nix delivered the
developed film to the office of Gordon Shanklin, head of the
FBI field office in Dallas. Four days later, a copy of the
film made for the FBI was sent to FBI headquarters. During
this time, United Press International (“UPI”),
Time, and other media outlets sought to purchase film of the
assassination. While the Nix film was in the possession of
the FBI in Dallas, Mr. Nix was contacted by Life magazine and
also met with Burt Reinhardt, the general manager of
UPI's newsfilm division. On December 6, 1963, Mr. Nix
sold the original film to UPI for $5, 000, and Mr. Reinhardt
agreed that he would return the film to Mr. Nix's family
in 25 years. The FBI then used a copy of the Nix film to
study the assassination and the Warren Commission used the
film in its investigation. On January 17, 1972, Mr. Nix
1988, 25 years after Mr. Nix sold his original film to UPI,
plaintiff Gayle Nix Jackson made inquiries to UPI in an
effort to have the original Nix film and copyrights returned
to the Nix family per the agreement between Mr. Nix and Mr.
Reinhardt, who confirmed the agreement. In 1991, UPI's
successor returned all material related to the film to the
Nix family except the original Nix film. Since 1988, Ms.
Jackson has been attempting to find the missing original
film. In 2014, Ms. Jackson learned that in 1978 the United
States House Select Committee on Assassinations
(“HSCA”) obtained the original Nix film and used
it in its investigation of the Kennedy assassination. After
the HSCA completed its tenure, the Nix film was to be
accounted for and stored by the National Archives and Records
Administration (“NARA”), including an index of
the chain of custody. In 2015, Ms. Jackson requested the
original film and the chain of custody index from the NARA.
The NARA told Ms. Jackson that it never possessed the
original film and that it had no information about it from
the HSCA. It also stated that the chain of custody index was
missing. The original film and the chain of custody index
remain missing to this day.
1992, President George W. Bush signed into law the John F.
Kennedy Records Collection Act, which sought to preserve all
records related to the assassination of President Kennedy,
and which required the disclosure and transmission of all
assassination records to the National Archives and Records
Administration (“NARA”). As defined by the Act,
“assassination records” included the Nix film.
According to the Act, the NARA is directed to release media
and film related to the assassination in October of 2017. Ms.
Jackson contends that it is at this time that a proper
accounting and inventory of the HSCA and/or NARA records
including the original Nix film will be produced if such
records exist. Otherwise, a permanent taking of the film has
Jackson raises two causes of action in this lawsuit. First,
she raises a claim for replevin, contending that she is the
owner of the Nix film, that the film's value is at least
$10 million, and that the government is the last known
possessor of the film but has failed to produce the film,
acting with ignorance, negligence, omission, or concealment.
She also raises a claim under the Fifth Amendment for taking
of private property for public purpose without just
compensation. She argues that the government possessed the
film and had a duty to protect and preserve it, but lost it
or allowed it to be stolen or destroyed.
government raises several grounds for dismissal, the most
relevant of which are failure to exhaust administrative
remedies for the replevin claim, and lack of jurisdiction
over the takings claim. The Court will address each in turn.
MS. JACKSON HAS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES
WITH RESPECT TO HER REPLEVIN CLAIM
Jackson's replevin claim is brought pursuant to the
Federal Tort Claims Act,  which waives sovereign immunity and
gives district courts jurisdiction to hear tort claims
brought against the government. See 28 U.S.C.
1346(b)(1). The FTCA requires plaintiffs to first exhaust
their administrative remedies before filing suit in court;
the plaintiff must have “first presented the claim to
the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified
or registered mail.” 28 U.S.C. § 2675(a). To meet
the exhaustion requirement, a plaintiff must have filed
“(1) a written statement sufficiently describing the
injury to enable the agency to begin its own investigation,
and (2) a sum-certain damages claim.” GAF Corp. v.
United States, 818 F.2d 901, 919 (D.C. Cir. 1987). This
“enable[s] the agency to investigate and ascertain the
strength of a claim” and “to determine whether
settlement or negotiations to that end are desirable.”
Id. at 920. This is “a burden of notice, not
substantiation, of claims.” Id. at 919.
bringing claims under the FTCA must fully comply with its
provisions; “absent full compliance with the conditions
the Government has placed upon its waiver [of sovereign
immunity], courts lack jurisdiction to entertain tort claims
against it.” Id. at 904, 917-18. The
“administrative exhaustion requirement [of the FTCA] is
a jurisdictional prerequisite; and the Court lacks subject
matter jurisdiction over common law tort claims against the
United States for which a plaintiff has not exhausted his
administrative remedies.” Hayes v. United
States, 539 F.Supp.2d 393, 398-99 (D.D.C. 2008). Thus if
a plaintiff has not exhausted her administrative remedies
before initiating a civil action under the FTCA, the court
must dismiss for lack of subject matter ...