Price v. United States

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.

CA(95)5678-1,SIZE-43 PICAS,TYPE-PDI

CA(95)5678-2,SIZE-1 PAGE,TYPE-PI

CA(95)5678-3,SIZE-1 PAGE,TYPE-PI

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CA(95)5678-4,SIZE-42 PICAS,TYPE-PDI

20