Check out the opinion of the Court of Federal Claims in Nix v. United States, No. 23-704C (Dec. 11, 2024). Fascinating stuff.
We post it here not because it breaks new ground, but due to the subject matter of the lawsuit: the alleged taking of a film that captures (in part) the assassination of President Kennedy in 1963.
No, this isn't the famous Zapruder film, which was also the subject of a well-known takings claim. This case involved the "Nix film," taken that fateful day "from an angle opposite the more famous Zapruder film. The Nix film thus captures Abraham Zapruder and the area around him, where some claim a gunman other than Lee Harvey Oswald was hiding." Slip op. at 2.
Nix licensed the film to UPI, which "unbeknownst to him ... transferred the Nix film to the United States House of Representatives Select Committee on Assassinations [HSCA]." Id. In the 1970s, the Committee sent it off to a private outfit for "enhancement," after which the original film seems to have disappeared with no one admitting to possessing it.
In 1992, Congress adopted the JFK Records Act, which requires that all "assassination records" held by the Feds be transferred to the National Archives to create a publicly-accessible collection. After confirming via a FOIA request with the National Archives that the original film was lost while in the custody of UPI, Nix's heirs sued the United States for a taking.
Later, the outfit that was asked to do the enhancement back in the 1970s said that it sent the original to the National Archives in 1978. Eventually the Archives "produced documents including the HSCA photo control log, which appeared to show that the Nix film had been sent by HSCA to Aerospace, but which did not show that it had been returned." Slip op. at 4.
The takings claim alleged that by adopting the JFK Records Act, the United Stated effected a physical taking of the Nix film by permanently transferring possession of the film to the public (shades of rails-to-trails cases). The feds responded with two main arguments: (1) this is an old, stale claim and the six-year Tucker Act statute of limitations ran a long time ago; and (2) the complaint failed to allege a physical takings claim. The CFC rejected both arguments.
We won't get into the details of the court's SOL analysis, but will note that even though the SOL cannot be tolled, the court held that Nix's claim did not accrue until 2021. Yes, generally speaking, a claim that a statute works a physical takings claim accrues when the statute is adopted, unless the claim was "inherently unknowable" at the time of adoption, or if the defendant concealed the taking. The court concluded that the Nix plaintiffs didn't know of the taking until 2021, when they realized the Archives received the Nix film. Slip op. at 6 ("Plaintiff alleges that he was unaware that the government still had possession of the Nix film until he was informed that Aerospace had sent the film to NARA."). Moreover, "[t]he pleadings support an inference not only that Plaintiff was diligent in his efforts to find the Nix film, but that the government concealed its possession." Slip op. at 7.
The CFC also denied the government's 12(b)(6) motion, concluding that the complaint adequately pleaded a physical takings claim. The court first noted that "[a] physical taking occurs when 'the government physically takes possession of an interest in property for some public purpose[.]'" Slip op. at 10. Even where government does not take title or all the sticks, if it acquires "one of the rights that makes up a property owner's metaphorical bundle of sticks," it must pay compensation. Id.
Here, the complaint alleges that the JFK Records Act, "directs [the Archives] to create a 'collection of records' relating to the assassination of President Kennedy. That direction includes all assassination records that were in [the Archive]'s possession when the law went into effect[.]" Id. The complaint alleged that the Nix film has been in the Archives' possession since 1978. Thus, if proven, these allegations would support a claim for compensation:
Once collected by NARA, assassination records generally must be disclosed to the public. JFK Records Act § 5. But the law makes no provision for return of any privately created records to their creators. The government in fact conceded at argument that if the Nix film is part of the NARA collection created under the JFK Records Act, it will never be handed back. Tr. at 10–11, 13.11 If the Nix film was in fact in NARA’s possession when the JFK Records Act went into effect, possession was permanently transferred to the government by operation of law — a classic example of a taking. See Horne, 576 U.S. at 361–62 (“The Government’s actual taking of possession and control of [property] gives rise to a taking as clearly as if the Government held full title and ownership.”) (quotes omitted).
Slip op. at 11.
The feds responded by arguing that if it took the property, then compensation could only be determined in an alternative dispute resolution process, like when the government took the Zapruder film: "[t]he government argues that the absence of such a process for the Nix film indicates that no taking occurred." Slip op. at 11. If you are scratching your head at this argument, you are not alone -- the CFC was similarly not impressed: "[t]hat is a non sequitur, of course: Courts often recognize that the government has taken property without any formal process at all." Id. We wouldn't put this as gently as the court did, and we'd characterize this as a pretty stupid argument.
So the Nix complaint lives to fight on. Worth reading.
Nix v. United States, No. 23-704C (Fed. Cl. Dec. 11, 2024)
