United States Court of Appeals,
Fifth Circuit.
No. 93-2564.
Billy F. PRICE, et al., Plaintiffs-Appellees Cross-Appellants,
v.
UNITED STATES of America, Defendant-Appellant Cross-Appellee.
In re the Petition of Billy F. PRICE and Henriette von Schirach,
geb. Hoffman to Perpetuate the Testimony of Henriette von Schirach,
geb. Hoffman, et al.
UNITED STATES of America, Appellant-Cross-Appellee,
v.
Billy F. PRICE, et al., Appellees-Cross-Appellants.
Nov. 20, 1995.
Appeals from the United States District Court for the Southern
District of Texas.
Before WOOD, JR.*, JOLLY and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal requires us to decide whether a federal court can
award damages against the United States in connection with its
refusal to turn over pieces of art and historical photographs that
were removed from Germany during the allied occupation after World
War II. Billy Price, a Texas businessman, obtained a nearly $8
million judgment against the United States after it refused his
demands for four watercolor paintings that were painted by Adolf
Hitler and photographic archives that were compiled by Hitler's
personal photographer, Heinrich Hoffman, and Hoffman's son. In the
*
Circuit Judge of the Seventh Circuit, sitting by
designation.
1
early 1980s—almost four decades after these paintings and archives
were discovered in various locations in Germany and shipped to the
United States—Price, who is described on the jacket of his
self-published book as the "owner of one of the largest collections
of Hitler art and an internationally acknowledged expert on the
subject," purchased the rights in the paintings and archives from
Hoffman's heirs. Price then demanded that the United States
deliver them to him and, after the United States refused, he filed
this suit alleging that the refusal constituted a tortious act of
conversion.
The United States argues broadly on appeal that the judgment
of the district court cannot be sustained. We agree. For the
reasons that follow, we hold that the district court was without
subject matter jurisdiction over the case. Accordingly, we reverse
the judgment of the district court and remand with instructions to
dismiss.
I
Putting to one side the historical, military, and foreign
policy aspects of the case, this lawsuit is simply a claim for
damages resulting from the tortious conversion of chattels. The
claim is made against the United States, however, and the chattels
consist of items taken from Germany during the post-World War II
occupation: specifically, four watercolor paintings by Adolf
Hitler and photographic archives that were compiled by Heinrich
Hoffman and his son, Heinrich Hoffman, Jr.
Hoffman obtained the watercolors by purchase and by gift from
2
Hitler. One pair, titled "Old Vienna Ratzenstadl" and "Munich 1914
Alterhof," depict urban landscapes and were painted when Hitler
lived in those cities before he entered the German army in World
War I. The other pair, titled "On the Railroad Line of Biache" and
"Beclaire 1917," were painted during World War I and depict a
railway embankment and a war-devastated village, respectively.1
The photographic archives that were compiled by the Hoffmans
consist of several hundred thousand prints and glass-plate
negatives that depict images of political, historical, and cultural
significance in Europe from the 1860s through the rise and fall of
Hitler's regime. The archives are in two parts. The larger of the
two parts has been in the possession of the United States since it
was found in Germany by the United States Army. It is stored at
the National Archives in Washington, D.C., and thus will be
referred to as the "Washington archive." The smaller of the two
parts came into the possession of the United States in the early
1980s, when Time-Life Inc. gave it to the U.S. Military History
Institute in Carlisle, Pennsylvania—hence, we will refer to it as
the "Carlisle archive." Employees of Time had removed it from
Germany in the 1940s.
Price's involvement began in the early 1980s when, while
visiting Germany to research a book on Hitler's career as an
artist, he learned that Hoffman had been the owner of the four
1
Copies of the watercolors are attached as exhibits. See
Appendix.
3
watercolors.2 He paid a small sum to the heirs of Hoffman, who are
citizens and residents of Germany, in exchange for their rights in
the watercolors and archives. He also promised to seek their
return and to give Hoffman's heirs a portion of whatever he might
obtain from the United States. He then made demand upon the United
States for the return of the watercolors and archives and filed his
first complaint in this lawsuit on August 9, 1983.
In February 1989, the district court denied a motion by the
United States to dismiss pursuant to Rule 12(b)(1) and Rule
12(b)(6) of the Federal Rules of Civil Procedure and entered a
partial summary judgment on the issue of liability in Price's
favor. Price v. U.S., 707 F.Supp. 1465 (S.D.Tex.1989). The
district court appears to have determined that the United States
became a bailee when it took possession of the watercolors and
photographic archives in Germany, and that the bailment continued
until it was breached in the United States in the early 1980s when
the United States refused Price's demands. Observing that "[i]n
the five years that this suit has pended, the government has not
controverted any of the plaintiffs' summary judgment evidence,
except to call it self-serving," id. at 1469, the district court
chastised the United States for its defense strategy. "Instead of
property law arguments, the government relies on political
denigration of the artist and the archivist. Equal justice under
2
In 1983 and 1984, Price published German and English
language editions of a catalog of Hitler's paintings and
sketches. The catalog depicts the paintings that are the subject
of this case. See Billy F. Price, Adolf Hitler: The Unknown
Artist (English ed. 1984).
4
law protects people without exceptions for those people whose
father's politics were wrong." Id. at 1473. "After five years of
litigation," the opinion concluded, "the United States has been
unable to contest factually the title of the Hoffmans or the nature
of the government's acquisition of their property." Id. The
district court found that Price held title to the watercolors and
archives and was entitled to possession.
Although the United States did not introduce any evidence to
create a factual dispute while the case was pending, after the
partial summary judgment was entered, the United States came
forward in short order with additional jurisdictional and other
defenses, as well as evidence to support its arguments, and urged
the district court to reconsider its decision. The district court
refused and instead proceeded to a trial on damages. The court
determined that damages from the United States' conversion of the
watercolors and archives, including the loss of use from 1983, the
time of conversion, amounted to $7,949,907.69, and entered judgment
accordingly. Both sides appeal, the United States contending for
numerous reasons that the judgment cannot stand, and Price3
contending that the judgment awarded is insufficient because he is
entitled to $41 million in damages.
II
At its foundation, this case presents questions that
implicate the sovereign immunity of the United States. We are
3
"Price" refers also to the heirs of Hoffman, who joined the
suit as plaintiffs. The district court dismissed their claims as
moot in the light of its decision.
5
guided by two well-settled principles: one, the United States is
immune from suit unless it has waived its immunity and consented to
suit; and two, such waivers of sovereign immunity are to be
construed narrowly. E.g., Gregory v. Mitchell, 634 F.2d 199, 203
(5th Cir.1981); Loomis v. Priest, 274 F.2d 513, 518 (5th
Cir.1960), cert. denied, 365 U.S. 862, 81 S.Ct. 828, 5 L.Ed.2d 824
(1961).
"Because the question whether the [United States] has waived
its sovereign immunity against suits for damages is, in the first
instance, one of subject matter jurisdiction, every federal
appellate court has a special obligation to satisfy itself not only
of its own jurisdiction, but also that of the lower court in a
cause under review." Mocklin v. Orleans Levee Dist., 877 F.2d 427,
428 n. 3 (5th Cir.1989). The starting point for our inquiry, then,
is whether federal subject matter jurisdiction exists over this
case. This question is, needless to say, subject to de novo
review. We specifically held open the question of subject matter
jurisdiction when this case was before us on an earlier appeal.
See In Re Petition of Price, 723 F.2d 1193, 1195 (5th Cir.1984).
Although Price pressed several theories of recovery in his
original complaint, his position before us is that the United
States converted the watercolors and archives when they refused his
demands for their return in the early 1980s. Price's claims are
tort claims. If the district court's jurisdiction is to be
sustained, therefore, this suit must fall within the waiver of
sovereign immunity contained in the Federal Tort Claims Act.
6
The parties are in agreement that only 28 U.S.C. § 1346(b)
could have provided a basis for subject matter jurisdiction in this
case. It provides:
Subject to the provisions of [28 U.S.C. § 2671-2680], the
district courts ... shall have exclusive jurisdiction of civil
actions on claims against the United States, for money
damages, accruing on and after January 1, 1945, for injury or
loss of property ... caused by the negligent or wrongful act
or omission of any employee of the Government while acting
within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.
28 U.S.C. § 1346(b) (1988). It bears emphasis that § 1346(b)
conditions the existence of subject matter jurisdiction upon other
provisions of the Federal Tort Claims Act. For this reason, we
cannot simply assume that subject matter jurisdiction exists and
treat a jurisdiction-centered challenge as a challenge on the
merits. Compare Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1172
(5th Cir.), cert. denied, 484 U.S. 985, 108 S.Ct. 501, 98 L.Ed.2d
500 (1987). Instead, we must examine the record in the light of
the specific exceptions to, and limitations on, the consent of the
United States to the jurisdiction of the district court and ensure
that the claims in this case do not fall within any of them. We
will consider, in order, the claims concerning (A) the watercolors,
(B) the Washington archive, and (C) the Carlisle archive.
A
We consider first the four watercolors and, specifically, the
question whether the claim for them arose in the United States.
Although the Federal Tort Claims Act vests the district court with
subject matter jurisdiction over a claim against the United States
7
"where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the act
or omission occurred," 28 U.S.C. § 1346(b), the district court does
not have jurisdiction under 28 U.S.C. § 2680(k) if a claim arises
in a foreign country. Eaglin v. U.S., Dept. of Army, 794 F.2d 981,
982 (5th Cir.1986). With respect to the watercolors, the initial
question is where did the tort of conversion occur. If the
conversion occurred in Germany, the district court obviously did
not have jurisdiction to hear this claim.4 The fact that the
United States did not contest the evidence presented by Price in
support of his summary judgment motion simplifies our task, as we
may assume that Price's evidence establishes the facts for this
issue.
For the purpose of our basic jurisdictional inquiry, we find
that the essence of the tort of conversion under both German and
American law is an act by another that is inconsistent with an
owner's interest in his personal property. Compare 3 German Civil
Code §§ 858, 992 (Rothman ed. 1994) with Restatement (2d) of Torts,
§§ 222A, 234. Simply put, our jurisdictional inquiry is: at what
stage of its handling of the watercolors did the United States
commit an act that was inconsistent with Hoffman's interest?
4
The fact that Germany was occupied, or indeed whether the
German law was applicable, has no bearing on the effect of §
2680(k). The Supreme Court has defined the term "country" as "a
region or tract of land." See Smith v. United States, --- U.S. -
---, ----, 113 S.Ct. 1178, 1181-83, 122 L.Ed.2d 585 (1993)
(holding that a claim arising in Antarctica, which has neither an
organized government nor a regime of laws, falls within §
2680(k)).
8
Price's summary judgment evidence establishes that the
watercolors were stored during the war in a castle in Germany, and
that they were found and collected by United States troops. We
will accept Price's summary judgment evidence as showing that the
discovery and first taking by the United States of the watercolors
from the castle to the collecting point was not inconsistent with
Hoffman's interest, and therefore did not constitute an act of
conversion. From there, like all art that was discovered in the
theater of operations, the watercolors were channeled through
collecting points that were established by the United States Army.
At the collecting points, each piece of art was identified,
photographed, cataloged, and stored until the owners could be
identified and reunited with their properties. We will accept
Price's argument that these actions of the United States Army did
not constitute a completed act of conversion.
At this point, however, the facts take an unfavorable turn to
Price's argument. Price submitted a deposition by a German citizen
who processed art at the central collecting point in Munich to
which the watercolors were brought. Based on "property cards"5
shown to her in the course of the deposition, the deponent
testified that the watercolors bore the name "Hoffman," signifying
that Hoffman was the owner, and that despite this fact, the United
5
The central collecting point in Munich maintained a
"Property Card Art" for each piece of art processed there,
containing information on the piece itself and the handling of
the piece through final disposition.
9
States military authorities ordered them "confiscated"6 and had the
watercolors transferred to Wiesbaden, from which they were shipped
to the United States. The deponent further testified that two of
the watercolors were "confiscated" because they were "military
objects."7 The card for one of the watercolors specifically
describes it as a "militaristic Nazi object."8 Crucially, this
deposition testimony reflects that other artwork in Hoffman's
collection—artwork not by Adolf Hitler, but similarly labeled
"Hoffman" and found along with the Hitler watercolors and shipped
to the central collecting point in Munich—was returned to Hoffman's
son at about the same time that the watercolors were confiscated.
6
The deponent used the term "confiscated" or "confiscation"
a number of times in her testimony.
7
For example:
Question 87m: Why was this painting transferred to the
"Wiesbaden Collecting Point" from the Munich "CCP"?
Answer: Because it was identified as a military
object, and it was confiscated.
Question 87n: On the reverse side of this Card, there
is an [sic] notation "29.6.50 to Washington, D.C."
What was the occasion for this entry to be made on this
"Property Card Art" and what does it mean?
Answer: This means that the American authorities gave
orders to the Wiesbaden Collecting Point. Yes, to
transfer this painting as confiscated "military object"
to Washington, D.C.
8
The district court appears to have ignored this evidence
when it found that the watercolors were "never removed from
Germany for the purpose of deNazification." 707 F.Supp. at 1471.
It dismissed the possibility that the watercolors "could be
"rallying points for a possible revival or Nazism.' " Id. at
1470-71. The propriety of their characterization, however, is
not at issue.
10
The divergent treatment afforded various pieces of art in the
Hoffman collection convincingly establishes that the conversion of
the watercolors, i.e., an act inconsistent with the Hoffman
family's interest in them, occurred when the United States military
authorities ordered their transfer to Wiesbaden and their shipment
to the United States.
Price asserts that the United States Army's own rules of
warfare, contained in the Laws of Land Warfare and International
Law, as well as the Hague Convention Respecting the Laws and
Customs of War on Land, did not authorize the United States to keep
the watercolors once it had taken them; therefore, it must have
held them, unaware of the true owner, in some sort of bailment, or
other relationship. As a consequence, Price contends that the
United States could not have converted the watercolors until it
refused his demands in the 1980s. It follows, he argues, that the
conversion occurred in the United States where his requests for
their return were rejected.
We must disagree with the conclusion Price draws from the
Army's rules of war and the Hague Convention. Although we do not
reach the issue whether these or other rules apply to the conduct
of the United States Army in Germany during the war and occupation,
our determination that the seizure and shipment of the watercolors
from Germany was an act of conversion is buttressed to the extent
that such rules may have applied so as not to permit the lawful
taking of these watercolors. In other words, an unlawful
confiscation of the watercolors only lends additional support to
11
our conclusion that an act plainly inconsistent with Hoffman's
interest occurred in Germany. In sum, even if we agree with Price
that the initial recovery of the watercolors may have created some
sort of a bailment—or at least may not have amounted to a
conversion—it does not follow that the United States continued to
hold them in some bailment relationship until the 1980s, when Price
demanded their return. The evidence before the district court
points only to the conclusion that the United States Army converted
the watercolors when it "confiscated" them in Germany and shipped
them to the United States.
Before we leave the watercolors, we should address the error
of the district court's ruling in this respect. The district court
concluded that some sort of bailment relationship existed vis-á-vis
the watercolors and that Price's claim did not arise until the duty
to redeliver arising from the bailment was breached by the United
States. See 707 F.Supp. at 1469-70. The district court's legal
conclusion appears to stem in part from its treatment of the three
groups of property at issue in this case en masse. Id. Although
we do not reach the issue whether a bailment existed as to the
Washington archive, the record appears to contain some evidence
that could be so construed. That evidence, however, will not
support a conclusion that the watercolors were held in bailment.
The evidence concerning the watercolors to which the district court
specifically points is simply insufficient to conclude that a
bailment existed. Id. at 1476. The district court appears to
focus almost exclusively on the actions taken in 1945. Id.
12
Significantly, the district court neither mentions nor disposes of
the crucial fact that non-Hitler artwork owned by the Hoffmans was
treated differently in the years after 1945.
The fact that the Hoffmans did not know the fate or
whereabouts of the watercolors until the early 1980s does not
change the nature of the acts of the United States committed in
Germany after the war. Instead, their lack of knowledge goes to
the issue whether the claim accrued for the purposes of the statute
of limitations contained in 28 U.S.C. § 2401(b). Because we
dismiss the claim for the watercolors on the basis of the "foreign
country" exception, however, we need not reach that issue.
Having thoroughly reviewed the summary judgment record before
the district court, we find that it simply will not support a
conclusion that the tort of conversion did not arise in Germany.
As a consequence, Price's conversion claim falls within § 2680(k)'s
exception of "claim[s] arising in a foreign country." The claim,
therefore, is not within the waiver of sovereign immunity, and,
consequently, the district court was without subject matter
jurisdiction over the conversion claim relating to the watercolors.
B
We turn next to the Washington archive. The record reflects
that the archive was used at the Nuremberg war trials with the
assistance of Hoffman and his son, and that the United States
engaged Heinrich Hoffman, Jr. thereafter to complete a pictorial
history of Germany. The project was cut short, however, and the
archives were shipped to the United States about the time of the
13
Berlin airlift. On June 25, 1951, the Attorney General, acting
pursuant to the Trading with the Enemy Act, 50 U.S.C.App. § 1-33,
vested in himself all rights in the photographs and photographic
images "to be held, used, administered, liquidated, sold, or
otherwise dealt with in the interest of and for the benefit of the
United States." See Vesting Order 17952, 16 Fed.Reg. 6162.
This vesting order, we are convinced, places Price's claim in
respect of the Washington archive outside of the subject matter
jurisdiction of the district court. Pursuant to § 2680(e), claims
"arising out of an act or omission of any employee of the
Government in administering the provisions of [The Trading with the
Enemy Act]" are excepted from the waiver of sovereign immunity. 28
U.S.C. § 2680(e) (1988). In a brief and well-reasoned opinion, the
D.C. Circuit has read this exception to prevent efforts by
plaintiffs to use the Federal Tort Claims Act to circumvent the
provisions of the Trading with the Enemy Act. Gubbins v. United
States, 192 F.2d 411 (D.C.Cir.1951) (rejecting a defamation claim
based on the plaintiff being placed on a list of persons pursuant
to the Trading with the Enemy Act that blocked them from engaging
in certain transactions); see also Schilling v. Rogers, 363 U.S.
666, 674-76, 80 S.Ct. 1288, 1294-95, 4 L.Ed.2d 1478 (1960) (holding
that the Trading with the Enemy Act's provisions for judicial
review are exclusive of any other remedy, and rejecting arguments
that judicial review of actions taken under the Trading with the
Enemy Act is available via the Administrative Procedure Act). The
reasoning of Gubbins is applicable here and we similarly hold that
14
Price's claim with respect to the Washington archive is not within
the Federal Tort Claims Act and is cognizable, if at all, under the
Trading with the Enemy Act.
Price attempts to avoid the application of this exception by
challenging the validity of the vesting order itself. We find it
unnecessary, however, to consider the merits of his challenge: it
is clear to us that, to the extent that he may have presented the
merits of such a challenge, he is required to have done so pursuant
to § 9 of the Trading with the Enemy Act. Furthermore, by the
terms of § 33 of the Act, the time to bring such a suit has long
since passed. "No suit pursuant to § 9 ... may be instituted ...
after the expiration of two years from the date of the seizure by
or vesting in the Alien Property Custodian, as the case may be, of
the property or interest in respect of which relief is sought." 50
U.S.C.App. § 33 (1988). By these terms, Price must have filed his
suit not later than June 25, 1953. His suit was not filed,
however, until more than thirty years past that date.
Price argues that, because the United States did not raise §
33 as an affirmative defense before partial summary judgment was
granted, it cannot be raised now to bar this claim. Price is
mistaken. The Trading with the Enemy Act, like the Federal Tort
Claims Act, constitutes a waiver of the sovereign immunity of the
United States. By its terms, § 33 declares that "no suit ... may
be instituted" unless certain conditions have been met. We have
held that § 33 is a limitation on the waiver of sovereign immunity,
and that the right to bring an action to challenge is extinguished
15
unless the action is instituted within the time prescribed by the
statute. Loomis, 274 F.2d at 518; see also Pass v. McGrath, 192
F.2d 415, 416 (D.C.Cir.1951), cert. denied, 342 U.S. 910, 72 S.Ct.
302, 96 L.Ed. 681 (1952). To the extent that anyone might have
challenged the vesting order in this case, such a challenge was no
longer available after June 25, 1953, a full three decades before
this suit was brought.
As an alternative, Price urges us to recognize an equitable
exception to the sovereign immunity of the United States and permit
a collateral attack on the vesting order. Price analogizes this
case to Enochs v. Williams Packing and Navigation Co., 370 U.S. 1,
82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). In Enochs, the Supreme Court
held that an injunction may issue against the assessment or
collection of federal income taxes, notwithstanding a specific
statutory prohibition against such injunctions, if the assessment
or collection could not be valid under any theory. Price argues
that the vesting order similarly cannot be valid and, as a
consequence, notwithstanding the fact that § 33 withdraws the sole
basis for jurisdiction over a challenge to the vesting order, and
thus revokes the limited waiver by the United States of its
sovereign immunity, we should permit a challenge. Price reads
Enochs, in short, to permit us to fashion an equitable waiver of
sovereign immunity. We cannot agree. First, our precedent
forecloses any possibility that the Enochs rule can be used to
manufacture subject matter jurisdiction. We have recognized that
application of Enochs requires two conditions: "(1) it is clear
16
that under no circumstances could the government ultimately prevail
on the merits of its claim, and (2) equity jurisdiction otherwise
exists." Lange v. Phinney, 507 F.2d 1000, 1003 (5th Cir.1975)
(emphasis added). It is clear that the Enochs rule can apply only
when there is some independent basis of jurisdiction: Enochs
cannot supply a basis for jurisdiction where none exists. More
fundamentally, however, the sovereign immunity of the United States
is defined by "the language the sovereign used in giving up a
portion of its immunity, and no conflicting considerations of
equity may be entertained in judging the claim asserted." Loomis,
274 F.2d at 518 (emphasis added). It is plain to us, in sum, that
the district court was without subject matter jurisdiction over
Price's claim with respect to the Washington archives.
C
Finally, we turn to the claim with respect to the Carlisle
archive. This archive is much less substantial than the Washington
archive—the district court determined that its fair market value in
1983 was $9,000, a small fraction of a percent of the Washington
archive's 1983 fair market value of $2.625 million. The record is
considerably less developed on this archive. It appears, for
instance, that the United States was given these photographs in
separate lots in 1981 and 1983, but the record does not indicate
which photographs were given and when. Regardless of these
uncertainties, however, we harbor no doubts that the claim with
respect to the Carlisle archive must be dismissed. The subject
matter jurisdiction of the court is conditioned on compliance with
17
28 U.S.C. § 2675(a), which declares that "an action shall not be
instituted" unless the plaintiff has filed an administrative claim
and either obtained a written denial or waited six months. 28
U.S.C. § 2675(a) (1988). An action that is filed before the
expiration of the six-month waiting period, and is thus untimely,
cannot become timely by the passage of time after the complaint is
filed. See McNeil v. United States, --- U.S. ----, ----, 113 S.Ct.
1980, 1983, 124 L.Ed.2d 21 (1993). This requirement is
jurisdictional, and may not be waived. Gregory, 634 F.2d at 203-
204.
Price admits that he has not complied with this requirement.
He raises two arguments, however, in support of excusing the strict
requirement of § 2675(a). First, he argues, the oral denial by the
United States Attorney of his claim with respect to this archive
satisfies § 2675(a). Second, he argues, the government should be
estopped from raising his noncompliance with this requirement
because he was following their advice. Neither of these arguments
is persuasive because the words of the statute are directly to the
contrary: § 2675(a) requires, unequivocally, that "his claim shall
have been finally denied by the agency in writing and sent by
certified mail." This is a "clear statutory command," McNeil, ---
U.S. at ----, 113 S.Ct. at 1984, and we cannot find a waiver of
sovereign immunity where, as here, the plaintiff has filed a suit
against the United States without complying with its terms.
III
In the end, for the reasons we have set out above, the
18
district court was without subject matter jurisdiction over this
case. The United States may dispose of items that were seized
during the allied occupation of Germany as it sees fit; indeed, it
has done so. See Act of March 17, 1982, Pub.L. No. 97-155, 96
Stat. 14 (authorizing the Secretary of the Army to transfer title
and custody of certain works of art seized from the German
government during World War II). Without subject matter
jurisdiction the federal courts are powerless, however, to order it
to pay damages in connection with its decision with respect to
these watercolors and photographic archives. We therefore REVERSE
the judgment of the district court, and REMAND for entry of an
order of dismissal. The dismissal of Price's claims with respect
to the watercolors and the Washington Archive must be with
prejudice. The claims with respect to the Carlisle archive,
however, will be dismissed without prejudice to a separate lawsuit
pending in the district court. We express no opinion on any aspect
of that suit, including any arguments raised on appeal but not
addressed by this court. Finally, in the light of our
determination that the district court lacked subject matter
jurisdiction, we DISMISS Price's cross-appeal on the measure of
damages awarded by the district court.
REVERSED and REMANDED for entry of judgment of dismissal;
Cross-appeal DISMISSED.
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