473 F.2d 1329
473 F.2d 1329
177 U.S.P.Q. 238
Marina N. Oswald PORTER, Individually, etc., et al.,
Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
No. 721426.
United States Court of Appeals,
Fifth Circuit.
Feb. 26, 1973.
Rehearing Denied March 12, 1973.
Erich F. Klein, Jr., Dallas, Tex., for plaintiffs‑appellants.
Eldon B. Mahon, U. S. Atty., Fort Worth, Tex., Kenneth J. Mighell, Asst. U. S. Atty., Dallas,
Tex., Irwin Goldbloom, Gen. Litigation Section, Morton Hollander, Civ. Div., Dept. of
Justice, Washington, D. C., for defendant‑appellee.
Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
TUTTLE, Circuit Judge:
This action was
ought by Marina Oswald Porter, widow of Lee Harvey Oswald, to
ecover just compensation for certain of Oswald's personal effects taken by the United
States pursuant to a special act of Congress. The district court, 335 F.Supp. 498,
concluded that the compensation to which Mrs. Porter was entitled was the sum of
$3000, which amount represents the stipulated market value of property similar in
kind to the items involved in this proceeding. Judgment was entered accordingly and
Mrs. Porter appeals. We reverse.
1
Stated in chronological order, these are the pertinent facts: Following the
assassination of President John F. Kennedy on November 22, 1963, government agents
seized, for investigatory purposes, certain items of personal property belonging to Lee
Harvey Oswald, who was suspected of having shot the president.1 The property thus
seized consisted mainly of Oswald's personal effects such as personal letters, a diary,
family photographs, a ma
iage license, the contents of his wallet, and the like. This
property was apparently in relatively good condition when seized, but during the course
of investigation, some of the items were stained, discolored, or otherwise damaged as a
esult of chemical treatment and analysis by the Federal Bureau of Investigation
(hereinafter FBI).
2
Subsequently, on September 24, 1964, the Wa
en Commission, which had been
appointed for the purpose of conducting a plenary investigation into the assassination,
submitted to President Lyndon Johnson its conclusions and final report, which
thereafter was released to the public. The report concluded that Oswald, who by then
was himself dead from an assassin's bullet, had killed the president. It contained copies
of many of Oswald's writings which had been seized by the FBI immediately after the
assassination.
3
« up
Following submission of the report, Congress determined that it would be advisable
to preserve certain of the items of evidence which the Wa
en Commission had
considered. To that end Public Law XXXXXXXXXXwas enacted on November 2, 1965. It
provides:
4
". . . [I]t is hereby declared that the national interest requires that the United States
acquire all right, title, and interest, in and to, certain items of evidence, to be designated
y the Attorney General pursuant to section 2 of this Act, which were considered by the
President's Commission on the Assassination of President Kennedy (hereinafte
efe
ed to as 'items'), and requires that those items be preserved by the United States.
5
"Sec. 2. (a) The Attorney General is authorized to determine, from time to time,
which items should, in conformity with the declaration contained in the first section of
this Act, be acquired and preserved by the United States. Each such determination shall
e published in the Federal Register.
6
"(b) Whenever the Attorney General determines that an item should be acquired and
preserved by the United States, all right, title, and interest in and to, that item shall be
vested in the United States upon the publication of that determination in the Federal
Register.
7
******8
* * *9
"Sec. 3. The United States Court of Claims or the United States district court for the
judicial district wherein the claimant resides shall have jurisdiction, without regard to
the amount in controversy, to hear, determine, and render judgment upon any claim
for just compensation for any item or interest therein acquired by the United States
pursuant to section 2 of this Act; and where such claim is filed in the district court the
claimant may request a trial by jury: Provided, That the claim is filed within one yea
from the date of publication in the Federal Register of the determination by the
Attorney General with respect to such items."
10
On November 1, 1966, in accordance with the procedures set forth in Section 2 of the
Act, the United States took the steps prescribed to acquire title to the items of Oswald's
personal property which are the subject of this appeal. This action was
ought unde
Section 3 of the Act by Oswald's widow in the District Court for the Northern District of
Texas to recover "just compensation," as provided in the Act, for the items taken.
11
In pre-trial proceedings the parties stipulated that the market value of items of
personal property similar in kind to the items involved here would have a value of
$3000. The court, however, denied the government's motion to limit the claimant's
ecovery to that amount, and appointed a Special Master, pursuant to Rule 53
F.R.Civ.P., for the purpose of hearing evidence and making findings as to the value of
the property. Upon hearing, each party offered the testimony of an expert witness
concerning such value. Although their valuations differed to a considerable extent, both
agreed that there existed what might be called a "collector's" market for the property
created by the public's belief that Oswald had assassinated President Kennedy.3
Thereafter, the Special Master adjourned the hearing and requested instructions from
the court with regard to the date at which the property should be valued.
12
The court, in turn, ordered 1) that the subject property be valued in its condition as of
November 1, 1966 (the date upon which the list of items to be acquired by the United
States was published in the Federal Register); 2) that the date of "taking" was
November 1, 1966; 3) that any change in the property's condition between the time of
its seizure in November, 1963 and November, 1, 1966 did not constitute a compensable
"taking"; and 4) that the items were, therefore, to be valued in their damaged and
published condition. Following a further hearing and in accordance with these
13
instructions the Special Master concluded that the property, as of November 1, 1966,
was worth $17,729.37.
Thereupon the government renewed its motion to limit plaintiff's recovery to $3000,
and the court this time granted the motion and entered judgment accordingly. Mrs.
Porter appeals from that determination.
14
She contends that it was e
or for the court to award compensation without regard to
the souvenir or collector's value of the items taken and, further, that in order properly
to compensate her for her loss, the property should have been valued in its undamaged
and unpublished condition as of the time of its seizure by agents of the FBI in 1963.
15
We consider first whether, under the peculiar circumstances of this case, the
collector's value of what can only be considered as entirely commonplace items of
personal property ought to be the measure of compensation to which the claimant is
entitled. In this respect the evidence is clear that but for the enhancement in value
attributable solely to public demand created by virtue of association in the public mind
with the assassination of President Kennedy, the items in question would be practically
worthless.4 We are nonetheless of the view that, under established concepts of "just
compensation," Oswald's widow should be compensated for precisely that which was
taken, in this instance, items of personal property having an historical significance and,
therefore, a realizable value quite apart from intrinsic value.
16
Though the measure of just compensation has never, and rightfully so, been reduced
to a formula, United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed XXXXXXXXXX), it
is fair to say that the most frequently-applied standard is that of "fair market value,"
assuming, of course, that a viable market exists. See, e. g., United States v. Miller, 317
U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed XXXXXXXXXXOtherwise put, just compensation
means the full monetary equivalent of the property taken, United States v. Reynolds,
397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d XXXXXXXXXX), or indemnity, measured in money, fo
the owner's loss. United States v. Certain Property in Borough of Manhattan, etc. . . .,
403 F.2d 800 (CA 2, XXXXXXXXXXSignificantly, the test is invariably applied with specific
egard to the value of what the owner has lost, rather than the value of what the take
has gained. Thus, it is said that the owner is entitled to be put in as good a position
pecuniarily as if his property had not been taken. E. g., United States v. Virginia Electric
Co., 365 U.S. 624, 633, 81 S.Ct. 784, 5 L.Ed.2d XXXXXXXXXX).
17
Applying these general rules to the facts of the case before us, United States v. Lee,
360 F.2d 499 (CA 5, 1966), we note that were it not for the government's exercise of its
powers of eminent domain here, Oswald's widow would have been able to realize,
through sales to the public, the collector's value of the items in question. It is
particularly significant, we think that both expert witnesses at the proceedings in the
district court testified that there was a viable market, albeit a collector's market, for the
items for which Mrs. Porter here seeks compensation. This market, an unfortunate
yproduct of the assassination of President Kennedy, existed independently of the
government's need of the property for investigatory purposes, and thus it is apparent
that, even absent governmental intervention, Oswald's personal effects would have had
a very real value, in excess of their intrinsic value, which might have been realized by
his widow, the owner thereof. Therefore, in order to put her in the same position
monetarily as she would have been in had the property not been taken, it is necessary,
in fixing the measure of compensation, to include the incremental element of value
attributable to collector's demand.5
18
The government, to the contrary, contends that the enhanced value of the property
was directly related to the