978 F.2d 1269 (D.C. Cir. 1992), 92-5021, Nixon v. U.S.

Docket Nº:92-5021.
Citation:978 F.2d 1269
Party Name:Richard NIXON, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1269

978 F.2d 1269 (D.C. Cir. 1992)

Richard NIXON, Appellant,

v.

UNITED STATES of America, Appellee.

No. 92-5021.

United States Court of Appeals, District of Columbia Circuit.

November 17, 1992

Argued Sept. 14, 1992.

Page 1270

Appeal from the United States District Court for the District of Columbia (No. 80-3227).

Martin D. Minsker, with whom Herbert J. Miller, Jr., R. Stan Mortenson and Scott L. Nelson, Washington, D.C., were on the brief, for appellant.

Neil H. Koslowe, Sp. Litigation Counsel, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and David J. Anderson, Director, and John L. Jacobus, Washington, D.C., were on the brief, for appellee.

Before: EDWARDS, RUTH BADER GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

HARRY T. EDWARDS, Circuit Judge:

In 1974, Congress passed the Presidential Recordings and Materials Preservation Act ("PRMPA" or "the Act"), which severely restricted former President Nixon's rights to his presidential papers. 1 Alleging that PRMPA constituted a taking, Mr. Nixon sued for just compensation under the Takings Clause of the Fifth Amendment. 2 The District Court held that Mr. Nixon held his presidential papers as "a trustee for the American People" and, therefore, he had no compensable property interest in these materials. In the alternative, the District Court held that, even if the papers belonged to Mr. Nixon personally, PRMPA was a permissible use regulation rather than a "taking." Mr. Nixon appeals from these determinations.

Upon reviewing the long and unbroken history relating to the use, control, and disposition of presidential papers, we are convinced that Mr. Nixon had a well grounded expectation of ownership. In the light of this history, we hold that Mr. Nixon, like every President before him, had a compensable property interest in his presidential papers. Moreover, since PRMPA effectively destroyed the most essential attributes of ownership, it constituted a per se taking of that property requiring the constitutionally mandated remedy of just compensation. We therefore reverse and remand for a determination of the compensation due.

  1. BACKGROUND

    1. Factual Background

      Between January 20, 1969, and August 9, 1974, the White House Office 3 accumulated a mass of documents, tape recordings, and other materials related to the Presidency of Richard M. Nixon. These materials--which we hereinafter refer to in shorthand as "the presidential papers"--contained information and communications covering official, political, and personal matters. The presidential papers that were collected in these files included correspondence of the President and his staff, reports relating to the political activities of the Office, copies

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      of documents pertaining to the executive branch departments, the President's telephone logs, and drafts of speeches prepared by the President or his staff. 4 The tape recordings in the files were the product of an internal voice activated system 5 that recorded conversations made in the White House and Executive Office Building, the Cabinet Room, the Lincoln Sitting Room, and those made on the telephones at Camp David. Thus, the presidential papers contain an exhaustive personal, political, and official record of the presidency of Richard Nixon. 6

      Following his resignation on August 9, 1974, Mr. Nixon arranged to have his presidential papers removed to California. However, before they could be shipped, Philip W. Buchen, Counsel to President Ford, learned that the Watergate Special Prosecutor had a continuing interest in the materials. Thinking that the Ford Administration might have some responsibility with respect to the files, Mr. Buchen delayed their shipment and inquired of Attorney General William Saxbe regarding them. In response, the Attorney General issued a formal opinion in which he concluded that the materials were owned by Mr. Nixon, but that the government, as custodian, was obliged to respond to subpoenas or other court orders covering the files. 43 Op.Att'y Gen. 7, 9 (1974).

      After receiving the Attorney General's opinion, Mr. Buchen sought to reach some compromise arrangement to deal with the competing claims to the presidential papers. Following consultations with Mr. Nixon's counsel and President Ford, an agreement was entered into in which Mr. Nixon agreed to deposit all of his presidential papers with the Administrator of General Services, Arthur F. Sampson, for a temporary period, after which certain of the materials would be donated permanently to the United States. 7 The agreement guaranteed the full integrity and completeness of the materials so that valid legal process might be satisfied. With that exception, Mr. Nixon retained title to his papers and the right to exclude others from viewing or using the materials while they were in government custody pursuant to the agreement.

      Concerned that, despite the Nixon-Sampson agreement, Mr. Nixon might destroy documents necessary to the Watergate investigation, Congress passed the Presidential Records and Materials Preservation Act of 1974, note following 44 U.S.C. § 2111 (1988). The Act effectively abrogated the Nixon-Sampson Agreement and authorized the Administrator of General Services 8 to retain "complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials that constitute the presidential historical materials of Richard M. Nixon." PRMPA § 101(b)(1). 9 The Act also provided for the Administrator to receive and retain possession of the White House tapes. PRMPA § 101(a). The Act further provided that none of the presidential papers could be destroyed, that access to the

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      materials was to be regulated by the Administrator, that federal agencies and departments (along with Mr. Nixon) were to have regulated access to the materials at all times, and that the Administrator was to promulgate regulations 10 providing for public access to the materials. PRMPA §§ 102-04. Finally, the Act mandated that just compensation was to be paid to any person held to have been deprived by its provisions of private property. PRMPA § 105(c).

      Regulations issued pursuant to the Act restrict access to the presidential papers that would disclose trade secrets, constitute a clearly unwarranted invasion of privacy or libel of a living person, or interfere with the administration of justice. 36 C.F.R. § 1275.52(b) (1992). In addition, the regulations provide that materials not of general historical significance 11 are to be returned to Mr. Nixon. 36 C.F.R. § 1275.48 (1992). If the Archivist intends to make any portion of the materials public, the regulations provide that any interested party (including Mr. Nixon) may object on a claim of legal right or privilege. 36 C.F.R. § 1275.44 (1992). Resolution of such claims by the Archivist is subject to judicial review for abuse of discretion. See Public Citizen v. Burke, 843 F.2d 1473 (D.C.Cir.1988).

    2. Litigation Background

      This regulatory and statutory scheme has resulted in a series of cases in which Mr. Nixon has challenged the government's control and disposition of his presidential papers. In October, 1974, Mr. Nixon brought suit in which he sought to enforce the terms of the Nixon-Sampson agreement. See Nixon v. Sampson, 389 F.Supp. 107 (D.D.C.1975). 12 While Sampson was pending, PRMPA was passed by Congress and signed by President Ford. Section 105(a) of the Act bestows exclusive jurisdiction on the United States District Court for the District of Columbia over any challenge "to the legal or constitutional validity of this title or of any regulations issued under the authority granted by this title, and any action or proceeding involving the question of title, ownership, custody, possession, or control" of the materials. The day after

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      the Act became law, Mr. Nixon filed a second suit in the District Court challenging the facial constitutionality of the Act. Nixon v. Administrator of General Services, No. 74-1852 (D.D.C. filed Dec. 20, 1974). In his prayer for relief, Mr. Nixon sought, inter alia, an injunction against enforcement of the Act and just compensation in the event the court found that PRMPA deprived him of private property. Id. Complaint at 34, reprinted in Appellee's Supp. Appendix at 12. Based on his claim for injunctive relief, Mr. Nixon moved for the convention of a three-judge district court under former 28 U.S.C. § 2282 (repealed).

      This second law suit was initially assigned to the District Judge already presiding in Sampson, which was then nearing its conclusion. The District Judge, already burdened with Mr. Nixon's suit to enforce the Nixon-Sampson agreement, delayed ruling on Mr. Nixon's motions in the new proceeding until the earlier case could be concluded. Having failed to get the District Judge to initiate the statutory procedure leading to the formation of a district court of three judges, Mr. Nixon applied to this court for a writ of mandamus compelling the District Judge to act immediately on the pending motions. See Nixon v. Richey, 513 F.2d 427 (D.C.Cir.1975) ("Richey I "). Although this court did not issue a formal writ, we concluded that the Act mandated immediate consideration of any facial challenge to its validity and that, therefore, the District Court should rule on Mr. Nixon's application for a three-judge court before ruling on the merits in Sampson. Id. at 429-30. Our opinion and order were issued at approximately 9:45 a.m. on January 31, 1975 and, in accordance with standard expedited procedure, the District Judge was immediately notified of the opinion by telephone. Copies of the opinion were hand...

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