                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                                  )
GAIL NIX JACKSON,                                 )
                                                  )
                                                  )
               Plaintiff,                         )
                                                  )
       v.                                         )   Case No: 15-cv-2035-RCL
                                                  )
UNITED STATES OF AMERICA, et al.,                 )
                                                  )
                                                  )
              Defendants.                         )
                                                  )

                                  MEMORANDUM OPINION

I.     INTRODUCTION

       On 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 worth.”

        A much 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

                                                 1
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.

        The 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 case.

II.     BACKGROUND

        The Nix 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.1 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 passed away.




1
 The facts described in this section are taken from the plaintiff’s complaint and, for the purposes of this motion to
dismiss, are to be considered true.

                                                         2
       In 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.

       In 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

taken place.




                                                 3
        Ms. 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.

        The 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.

III.    MS. JACKSON HAS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES
        WITH RESPECT TO HER REPLEVIN CLAIM

        Ms. Jackson’s replevin claim is brought pursuant to the Federal Tort Claims Act,2 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




2
  Replevin is a common law action for “the repossession of personal property wrongfully taken or detained by the
defendant.” Black’s Law Dictionary (10th ed. 2014). Replevin actions are classified as torts and are governed by the
FTCA. See Mac’Avoy v. The Smithsonian Inst., 757 F. Supp. 60, 67 (D.D.C. 1991). Ms. Jackson concedes that her
replevin claim is brought under the FTCA. See Pl.’s Opp’n at 6, 8, ECF No. 21.

                                                         4
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.

       Plaintiffs 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 jurisdiction. See Johnson v. Allen, No. CIV.A. 04-0316(GK), 2005 WL 607911, at *2

(D.D.C. Mar. 14, 2005). Plaintiffs bear the burden of establishing jurisdiction. See Lujan v. Defs.

of Wildlife, 504 U.S. 555, 561 (1992).

       Ms. Jackson’s complaint does specifically allege that she exhausted her administrative

remedies. It states that her “request and inquiry to the NARA for the index of the chain of custody

of the original Nix film confirmed it was non-existent.” Pl.’s Compl. at n.8, ECF No. 1. Her

opposition brief states that she sent a letter (to an unidentified agency, but presumably the NARA)

“requesting the original film and the index that would uncover who had it last and have it returned.

Unfortunately the index is missing according to the NARA.” Pl.’s Opp’n at 2. Her opposition

brief does specifically not discuss exhaustion.

       Ms. Jackson has failed to sustain her burden of showing that she exhausted her

administrative remedies, and therefore that this Court has jurisdiction over her replevin claim.



                                                  5
Although she appears to allege that she at least had some contact with the NARA about the Nix

film and chain of custody index, requesting that they be returned to her, she does not allege that

she filed—with the NARA or any other agency—“(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., 818 F.2d at 919. She does not allege submitting anything that would have

allowed the agency to investigate her claim and determine whether to engage in settlement

negotiations. See id. at 920. She does not allege that any such claim was “denied by the agency

in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). Therefore, the Court

finds that it lacks subject matter jurisdiction over Ms. Jackson’s replevin claim due to failure to

exhaust administrative remedies.3

IV.      THIS COURT LACKS JURISDICTION OVER PLAINTIFF’S TAKINGS CLAIM

         The Tucker Act waives sovereign immunity for claims founded upon the Constitution, i.e.,

takings claims under the Fifth Amendment. See 28 U.S.C. § 1491(a)(1); 28 U.S.C. § 1346 (a)(2);

Clark v. Library of Cong., 750 F.2d 89, 104 n.31 (D.C. Cir. 1984). Under the Tucker Act, the

United States Court of Federal Claims has exclusive jurisdiction over suits seeking more than

$10,000 in damages. See Havens v. Mabus, 759 F.3d 91, 96 n.10 (D.C. Cir. 2014). Ms. Jackson’s

takings claim seeks more than $10,000; she seeks at least $10 million. This claim thus falls within

the exclusive jurisdiction of the Court of Federal Claims and this Court has no jurisdiction to

adjudicate this issue.4


3
  Ms. Jackson’s arguments regarding equitable tolling are inapplicable. Tort claims, such as replevin, must be
presented to the appropriate federal agency within two years after the claim accrues, and must be filed in court within
six months of the agency’s denial of the claim. See 28 U.S.C. § 2401. Any arguments regarding tolling are premature
until it is shown that the plaintiff presented her claim to the agency, and then that claim was denied. At that point, if
the plaintiff failed to present her claim within two years of accrual or within six months of denial, equitable tolling
arguments may be considered.
4
  Ms. Jackson herself appears to acknowledge that that claims exceeding $10,000 fall within the exclusive jurisdiction
of the Court of Federal Claims. See Pl.’s Opp’n at 3.

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