                                                         November 23, 1979


79-82     MEMORANDUM OPINION FOR THE
          GENERAL COUNSEL, GENERAL SERVICES
          ADMINISTRATION

          (1)   Presidential Protection Assistance Act
                (18 U.S.C. § 3056 note)—Retroactive Effect
          (2)   Federal Improvements to Real Property Owned
                by a Former President—Title Thereto—
                Removal Of


  This responds to your request for the views of the Department of Justice
concerning the disposition o f Government property located at former
President Nixon’s San Clemente residence. For the reasons discussed
below, we conclude that the Presidential Protection Assistance Act of
1976, 18 U.S.C. § 3056 note, does not apply to the termination of Govern­
ment services at the San Clemente estate and that the Government is not
obligated to restore the property to its original state, as the owner re­
quests. We further conclude that if Mr. Nixon sells the estate, the Govern­
ment has an arguable right to the portion o f the sale price attributable to
Government improvements.

                                     I.

   Your first question is whether the Presidential Protection Assistance
Act applies to the termination of Government services at the San Clemente
estate. You tell us that all the Government property and improvements
were placed on the San Clemente estate prior to the passage of the 1976
Act.
  The Act itself does not provide an effective date. The general rule is that
a statute takes effect on the date of its enactment if the time is not other­
wise fixed by law. Union Pac. Ry. v. Laramie Stock Yards C o., 231 U.S.
190, 199 (1913); United States v. Gavrilovic, 551 F. (2d) 1099, 1103

                                    440
(8th Cir. 1977); 2 J. Sutherland, Statutes and Statutory Construction
§ 33.06 (4th ed. 1973). Statutes cannot be applied retroactively unless the
words are so clear and imperative that they can have no other meaning or
unless the legislative intent cannot be otherwise satisfied. D e Madulfa v.
 United States, 461 F. (2d) 1240, 1247 (D.C. Cir. 1972), cert, denied, 409
U.S. 949 (1972). A statute such as this, which may interfere with ante­
cedent rights, will not be applied retroactively unless that is “ ‘the une­
quivocal and inflexible import of the terms, and the manifest intention of
the legislature.’ ” Greene v. United States, 376 U.S. 149, 160 (1964),
quoting Union Pac. Ry. v. Laramie Stock Yards C o., supra. Unless the
clear, unequivocal intent of the Congress was that the Act be effective
retroactively, it cannot be applied to the disposition of the San Clemente
property.
   The measure was introduced as a result of a thorough study o f expendi­
tures of Federal funds in support of Presidential properties by the Govern­
ment Activities Subcommittee of the Committee on Government Opera­
tions in the 93d Congress. 121 C o n g r e s s io n a l R e c o r d 12983-85 (1975).
The findings and conclusions of the subcommittee appear in a Committee
on Government Operations report, “ Expenditures of Federal Funds in
Support of Presidential Properties,” Fifteenth Report by the Committee
on Government Operations, H. Rept. 1052, 93d Cong., 2d sess. (1974).
This study was triggered by certain matters involving the Nixon properties
at Key Biscayne, Florida, and San Clemente, California. H. Rept. 105,
94th Cong., 1st sess. (Pt. 2) 2 (1975). The subcommittee received infor­
mation concerning these two locations in a report from the General Ac­
counting Office. General Accounting Office No. B-155950 (1974).
   A study of the legislative history reveals no clear intent that the bill be
applied retroactively. The House report on the bill states that the bill was
designed to correct certain deficiencies in existing law and to tighten loose
procedures. The list of things the bill was designed to accomplish does not
include rectification of the problems at San Clemente. H. Rept. 105, 94th
Cong., 1st sess. (Pt. 2) 1-2 (1975). The recommendations of the GAO
formed the basis for much of the bill and, according to Part 1 of the
House report, those recommendations were intended to provide for better
future controls over expenditures. H. Rept. 105 , 94th Cong., 1st sess. (Pt.
1) 5-6 (1975). Similarly, the Senate report reveals only an intent to prevent
future irregularities. In its statement on the need for the legislation, ex­
amples of abuses at Key Biscayne and San Clemente are recited, but there
is no statement that this legislation retroactively would correct those par­
ticular abuses. Rather, the report summarizes: “ H.R. 1244, as amended,
is designed to prevent such misuse of the taxpayer’s dollars by placing the
responsibility for all expenditures in one centralized place; that is, the U.S.
Secret Service.” S. Rept. 1325, 94th Cong., 2d sess. 5 (1976).
   Although subsequent expressions of congressional understanding of

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legislation are entitled to very little weight,' we note that recent legislation
indicates a congressional belief that the Presidential Protection Assistance
Act of 1976 is not retroactive. On June 18, 1979, Senator Hart introduced
a resolution stating:
      [I]t is the sense o f the Senate that the Director of the Secret Serv­
      ice and the Administrator of General Services shall take such ac­
      tions as may be necessary to obtain reimbursement in an amount
      by which any construction, renovation, improvements, equip­
      ment or articles paid for by the Federal Government of the
      United States have increased the fair market value of the estate
      known as San Clemente located in the State of California at the
      time of and upon its sale by former President Richard M. Nixon.
      [S. Res. 187, 96th C o n g ., 1st sess., 125 C o n g r e s s io n a l R e c o r d
      S. 7892 (daily e d ., June 18, 1979).]
The resolution was referred to the Committee on Governmental Affairs
but no further action has been taken. The substance of the resolution,
however, has been adopted as an amendment to a 1979 appropriation bill.
Treasury, Postal Service, and General Government Appropriation Act,
1980, Pub. L. No. 96-74, § 616, 93 Stat. 577 (1979). On August 3, 1979,
Senator Pryor submitted the amendment (125 C o n g r e s s io n a l R e c o r d
S. 11725 (daily ed., August 3, 1979)),which was later revised by Senator
Hart to parallel more closely the language of the Presidential Protection
Assistance Act. 125 C o n g r e s s io n a l Re c o r d S. 11814-15 (daily ed.,
Sept. 5, 1979). As enacted, § 616 provides:
      It is the sense of the Congress that, upon the sale of the estate
      known as Casa Pacifica located in San Clemente, California,
      former President Richard M. Nixon should reimburse the United
     States for the original cost of any construction, renovation, im­
      provements, equipment or articles paid for by the Federal
     Government of the United States, or for the amount by which
     they have increased the fair market value of the property, as
     determined by the Comptroller General of the United States, as
     of the date of sale, whichever is less.
   But the statute’s language is permissive, not mandatory. It does not
alter the effective date of the Act, nor expressly mandate that the Act be
applied to the San Clemente property.2 Thus, it does not alter the rights or
obligation of any party involved in the San Clemente transactions.


   'See, Woodwork Manufacturers v. N LRB , 386 U .S. 612, 639 n. 34 (1967); Allyn v. United
States, 461 F.(2d) 810, 811 (Ct. Cl. 1972).
   ’Although some com m ents by Senator Stevens lend support to the argument that the Act
itself should be applied to the Nixon property (see 125 C o n g . R e c . S. 11815 (daily ed., Sept.
5, 1979)), the debate taken as a whole illustrates that the Congress did not believe the Act
could be applied retroactively but w anted formally to declare that the principles o f the Act
should be applied to all similarly situated property.

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                                            II.

   Your next question is whether the Government has a legal obligation to
comply with Mr. Nixon’s request that all Government items be removed
and that his property be restored to its original condition. The Presidential
Protection Assistance Act, § 5(b), provides that if the owner o f the prop­
erty requests the removal of the improvements or other items, such items
shall be removed and the nongovernmental property shall be restored to its
“ original state.” Because this Act is not retroactive, however, it is not
necessary to interpret the language of this provision. The rights and
obligations of both the United States and Mr. Nixon must be determined
without the assistance of that Act.
   The threshold question regards the present title to the property in ques­
tion. The Constitution gives to Congress the power to make all needful
rules and regulations respecting the property of the United States. Con­
stitution of the United States, Article IV, section 3, clause 2. Whether title
to property of the United States has passed is a question of Federal law.
Jourdan v. Barrett, 45 U.S. (4 How.) 169, 184-85 (1846); Wilcox v.
Jackson, 38 U.S. (13 Pet.) 498, 517 (1839). At the time these im­
provements were placed on the property, there was no act of Congress
stating whether title would remain in the United States or pass to the land­
owner.3 Because only Congress can authorize the disposal o f Federal prop­
erty, it must be determined whether congressional authorization to pur­
chase the property and place it on nongovernmental property worked a
transfer of title. Although the specific statutory authority for the expend­
itures is unclear,4 the expenditures apparently were made pursuant to Pub.
L. No. 90-331, § 2, 82 Stat. 170 (1968), repealed by the Presidential Pro­
tection Assistance Act. Section 2 provided:
      Hereafter, when requested by the Director of the United States
     Secret Service, Federal Departments and agencies, unless such
     authority is revoked by the President, shall assist the Secret Serv­
     ice in the performance o f its protective duties under section 3056
     of title 18 of the United States Code and the first section of this
     joint resolution.
   The general common law rule holds that when a person voluntarily and
gratuitously places improvements on property not his own, such im­
provements become the property of the landowner, in the absence of an
agreement to the contrary. See, Chicago Title & Trust Co. v. Fox Theatres
Corp., 164 F. Supp. 665, 671 (D.C. N.Y. 1958). This rule, consistent with
the rules on trespass and conversion, grew out of the notion that a person
who meddles with the property of another assumes the risk of doing so.


   ’The Presidential Protection Assistance Act now provides that all improvem ents and other
items acquired and used for the purpose o f securing any nongovernmental property shall be
the property o f the United States.
   “See H. Rept. 1052, supra.

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Restatement o f Restitutions, § 42(1), and comment a thereto. Here,
however, there was no meddling or mistake as to ownership. All parties
understood that the improvements were being constructed on Mr. Nixon’s
property. If not made at the request of Mr. Nixon, they were made with
his knowledge and approval. The improvements benefited both Mr. Nixon
and the United States, which had a duty to protect him. The improvements
were used by the United States in carrying out Federal functions.5
   The United States and a private party can agree that fixtures placed
by the Government on the land of the private party do not automatically
become the property of the landowner. In United States v. Allegheny Co.,
322 U.S. 174 (1944), a contractor installed Government-owned machinery
in his mill pursuant to a contract with the United States. It was agreed that
the equipment specially required for the work should remain the property
of the United States although it could not be removed without damage
to the contractor’s building. Allegheny County, seeking to tax the
equipment, denied that the Government had valid title to the machinery.
The Court concluded that although the contractor had some legal
and beneficial interest in the property as a bailee for mutual benefit, title
to the property remained in the United States.6 In Crowell Land & Mineral
Corp. v. United States, 114 F. Supp. 31 (W.D. La. 1953), the United
States installed a pipe under lands leased by it from plaintiff, and subse­
quently removed the pipe, allegedly after the time allowed by the lease.
The plaintiff sued to recover the value of the pipe. Noting that forfeitures
are not favored in the law, the court held that the pipe “ undoubtedly was
and remained the property of the United States,” even if the period of
time allowed by the contract had expired. Even in the absence of an
express agreement, public policy may dictate that the party who con­
structed the improvements retain title.7 We believe it was the tacit under­
standing of all parties here that title remained in the United States.8 All
Government-purchased property placed on the private property of prior
“ protectees” has been considered property of the Federal Government until


   ’We assume that all purchases were authorized by the Governm ent. For the purpose of
determining the ownership and disposition, there is no need to distinguish property necessary
to legitimate Federal function and property that may not have been necessary.
   ‘Insofar as Allegheny County held that a tax measure by the value o f Government-owned
property may never be imposed on a private party, it was overruled by United States v. City
o f Detroit, 355 U .S. 466, 495 (1958). See, United States v. County o f Fresno, 429 U .S. 452,
462-63 n. 10 (1977). Those rulings did not affect the holding o f Allegheny County as to title.
   ’In Chicago Title & Trust Co. v. Fox Theatres Corp., 164 F. Supp. 665, 671 (S.D. N.Y.
1958), the court wrote:
      W here, however, the buildings are erected by a lessee for trade purposes they have been
      held to be trade fixtures which, in the absence o f provisions to the contrary in the lease,
      are the lessee’s property and reasonable tim e thereafter. This rule is based upon a public
      policy long ago enunciated to encourage trade and m anufacture.
   ‘Transfer o f title at the time o f the improvem ents may conflict with Article II, section 1,
clause 7 o f the C onstitution, which provides:
     T he President shall, at stated Times, receive for his-Services, a com pensation, which
      shall neither be increased nor diminished during the Period for which he shall have been
     elected, and he shall not receive within th at Period any other Em olum ent from the
      United States, or any o f them.

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actual abandonment by the United States under the authority of 40 U.S.C.
§ 483(h). The Government remained in control of improvements in per­
forming its obligations to the former President. Congressional authoriza­
tion to expend the funds did not transfer title to Mr. Nixon. Thus, we
believe that title remained in the United States.
   The question also arises as to the disposition of such property upon Mr.
Nixon’s sale of the estate. There apparently is no issue as to the disposition
of property not affixed to the estate. These items, according to the study
you have provided to us, are easily removable and Mr. Nixon asks that
they be removed. They should be removed when they are no longer needed
at that location. The more difficult question involves removal of the im­
provements that are affixed to the land and buildings. Examples of these
improvements are a blockwail and fence, a bullet-resistant glass screen,
window alterations, a sewer line, a gatehouse, and guardhouses.
   The Government is generally under a duty to return the premises to the
owner in as good a condition as when the improvements were made. This
conclusion is based on an implied covenant against waste. United States v.
Bostwick, 94 U.S. 53, 66-68 (1876); United States v. Jordan, 186 F.(2d)
803, 806 (6th Cir. 1951), a ff’d, 342 U.S. 911 (1952). “ As good a
condition” does not, however, require removal of all the improvements. It
would benefit neither the Federal Government nor Mr. Nixon to engage in
the costly removal of these items which have minimal salvage value. Hav­
ing consented to this installation when it was apparent that subsequent
removal would not be economically or structurally feasible, Mr. Nixon
cannot, we believe, successfully enforce his demand that they be removed.
If the property is placed in as good a condition as existed prior to the im­
provements, Mr. Nixon is not damaged by the failure of the United States
to comply with his request for removal of the items. Although they remain
Government property until abandoned, the Government is not obligated
to remove them.

                                     m.

   Your final question is whether the Government can require Mr. Nixon
to reimburse the Government for the portion of the sale price attributable
to the Government improvements. There is no clear answer to this ques­
tion. Certainly Mr. Nixon cannot be required to reimburse the United
States for these improvements so long as they are used to further a public
purpose, that is, the protection of the former President. If the former
President decides to sell the property and thus terminates the need for the
protection at that site, however, it can be argued that he is obligated to
remit to the United States the portion of the total proceeds attributable to
the sale of the Government’s property. This conclusion follows from the
fact that title to the property remains in the Government and that reten­
tion of the proceeds by Mr. Nixon would result in his unjust enrichment.

                                    445
    The general rule is that persons who cause improvements to be made on
the land of another are not entitled to restitution. Restatement o f Restitu­
 tions § 42(1) (1937). Where the improvements are made with the
 knowledge and approval of the landowner and are necessary for his pro­
tection, however, the person who pays for the improvements is entitled to
restitution. Cf. Restatement o f Restitutions , § 112 (1937). A person who in
good faith improves the property or another may require payment for the
improvements placed upon the property or for the increased value of the
land. See, Crowell Land & Mineral Corp. v. United States, 114 F. Supp.
31, 36 (W.D. La. 1953). If Mr. Nixon refuses to transfer the funds from
the sale of Government property, the Government may have a cause of ac­
tion in quasi-contract, seeking restitution for the sale of its property.
Another basis of recovery would be an action for money had and received,
which is predicated on the theory that the defendant has received money
which in fact belongs to plaintiff, and in which the defendant never at any
time had an ownership interest. United States v. Elliot, 205 F. Supp. 581,
585 (N.D. Cal. 1962). This action is equitable in nature, premised on the
assertion that money is held by the defendant which in equity and good
conscience should be delivered to plaintiff.9 A government has the same
rights to restitution as do private individuals or corporations, and the
same procedural rules apply.10 A government can seek restitution of public
assistance payments fraudulently obtained,11 money paid by mistake,12
and kickbacks illegally paid to Government employees.13 It also has been
held that moneys collected under color of office without any legal author­
ity are to be paid to the public authority on whose behalf they were ille­
gally collected.14



  ’See, Bloomfield Steamship Co. v. United States, 258 F. Supp. 891, 910 (S.D. Tex. 1964),
rev'd, 359 F.(2d) 506 (5th Cir. 1966) cert, denied, 385 U .S. 1004 (1966). An analogy here can
be drawn to the law of partition in which a cotenant who has made perm anent and valuable
improvem ents on the property is entitled to recover the am ount by which the improvements
enhanced the sale value o f the property. See, Hunter v. Schultz, 240 C.A . 2d 24, 31, 49 Cal.
R ptr. 315 (1966); Buttram v. Finley, 73 Cal. A pp. 2d 536, 166 P.2d 654, 658 (1946); Carson
v. Broody, 56 Neb. 648, 77 N .W . 80 (1898).
   '°See, United States v. Carter, 217 U .S. 286 (1910-; Sanborn v. United States, 135 U.S. 271,
281 (1890)). In United States v. R.J. Reynolds Tobacco Co., 416 F. Supp. 316, 325 n. 3
(D .N .J. 1976), the United States sought a declaratory judgm ent as to the legal relations o f
parties to a merger. The court emphasized that the U nited States stands before a court on an
equal basis with private parties and is bound by the same general rules.
   "See, People v. Flores, 17 Cal. Rptr. 382 (1961); County o f Champaign v. Hanks, 41 111.
A pp. 3d 679, 353 N .E . 2d 405 (1976).
   '2Sanbom v. United States, 135 U .S. 271, 281 (1890); In re Griven’s Estate, 166 Kan. 630,
203 P .2d 207, 209-10 (1949).
   '*41 U .S.C . §§ 51-54. United States v. Drumm, 329 F. (2d) 109, 113 (1st Cir. 1964); Con­
tinental Management, Inc. v. United States, 527 F.(2d) 613, 620-21 (Ct. Cl. 1975).
   "W ebster Co. v. R. T. Nance, 362 S.W . 2d 723 (Ky. A pp. 1962). In Webster Co., the court
required a justice o f the peace to pay to the county all traffic fees the justice illegally col­
lected. T he court reasoned that no officer is entitled to receive for the perform ance o f his
duties m ore than is authorized by the law. Id. at 724.

                                              446
   This is a unique situation, and it is difficult to predict whether a court
would adopt the equitable arguments set forth above. To determine the
rights of a former President in this situation, a court undoubtedly would
give great weight to past practices.15 In your letter you state:
     In past instances where Government services to a former presi­
     dent or vice president were being terminated at a privately owned
     location (including Mr. Nixon’s Key Biscayne estate), all
     Government property that could be reasonably and economically
     removed was removed and only these items or improvements
     having a salvage value of far less than the cost of their removal
     were left on the property. In these instances it has been the prac­
     tice of the General Services Administration to enter into a written
     agreement with the property owner wherein the owner agrees to
     allow the Government to abandon those items and/or im­
     provements which could not be removed economically in ex­
     change for whatever enhancement his property has gained by the
     addition of these Government items or improvements.
A court reasonably might examine these prior agreements and conclude
that they define the rights of the parties here. In that case, the United
States would not be entitled to reimbursement.16

                                               L a r r y L . S im m s
                                   D eputy Assistant A ttorney General
                                                         Office o f Legal Counsel




    "See generally, United States v. Midwest Oil Co., 236 U.S. 459, 474 (1918). In 1974, the
Attorney General relied on historical practice to conclude that a President retains ownership
o f Presidential docum ents. 43 O p. A tt’y. Gen. 1 (Sept. 6, 1974). In Nixon v. Administrator,
433 U.S. 425, 445 n. 8 (1977), the C ourt refused to reach this question. As with G overnm ent
improvements to private property, Congress recently has enacted legislation specifying that
the United States shall retain ownership. See Presidential Records Act o f 1978, P ub. L. No.
95-591, § 2(a), 92 Stat. 2523 (codified in 44 U .S.C . § 2202).
   “ Past practice appears to reflect the proposition that refusal to remove property in such
circumstances should be regarded as a constructive abandonm ent notwithstanding the sub­
jective intent o f the party refusing to remove. Such an argum ent is not without force. Acts in­
dicating a desire neither to use nor to retake possession o f property are inconsistent with an
intent to retain ownership. See, e.g., Ellis v. Brown, 177 F. (2d) 677, 679 (6th Cir. 1949);
Gilberion Contracting Co. v. H ook, 255 F. Supp. 687, 693-94 (E .D . Pa. 1966).

                                              447
