United States v. Napper , 887 F.2d 1528 ( 1989 )

PER CURIAM:

The Atlanta Journal, The Atlanta Constitution, Georgia Television Co., d/b/a WSB-TV, and two individuals, appeal the denial of their motion to dismiss an action initiated by the United States of America to recover certain Federal Bureau of Investigation documents on loan to the City of Atlanta. We view this as a simple case involving the right of the United States to obtain its own documents loaned to a state agency, and affirm the order of Judge Richard C. Freeman, which adequately rejects each contention made by the appellants. United States v. Napper, 694 F.Supp. 897 (N.D.Ga.1988). The appellants are intervenors in this litigation. Although they try to make it so, this case does not involve the First Amendment, the Freedom of Information Act, or whether the appellants have a right to see the documents or obtain the information in them from the Federal Government.

The material facts, more fully set forth in the district court’s opinion, are undisputed. Between 1979 and 1981, the Federal Bureau of Investigation (FBI) assisted the Atlanta Police Department in its investigation of a spate of murders that came to be known as the “Atlanta Child Murder Cases.” During this time, the FBI provided the city’s police department with documents relating to the investigation. Most of the documents furnished to the city were marked as follows:

This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.

In January 1987, several members of the media, including appellant-intervenors, sued the City under the Georgia Open Records Act, O.C.G.A. § 50-18-70, et seq., seeking access to the police department’s investigative files concerning the Atlanta Child Murders. As a result of this action, the state trial court released a substantial portion of the loaned files to the media plaintiffs. See Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987). The released files were also made available to other members of the public in the City’s public reading room.

As a result of a series of articles in The Atlanta Journal and The Atlanta Constitution based on the documents released in the state court action, the FBI learned that copies of approximately 2,300 of its documents had been released to the media and the public, contrary to the condition upon which they had been loaned to the State. The state trial court was considering further the release of additional documents from the police files, thirty-five pages of which were FBI documents, which had been submitted to it in camera.

In September 1987, the United States moved to intervene in the state action. Its motion was denied. In November 1987, the FBI formally requested in writing that the Atlanta police return the documents which had been lent to the City during the Atlanta Child Murder investigation. After the City refused, the United States initiated this suit to recover the documents, which are presently in the possession of the City of Atlanta. In March 1988, the district court granted the intervenors-appellants’ motion to intervene “for the sole purpose of moving for dismissal of the present action.” The district court also granted the media intervenors-appellants thirty days to respond to the United States’ motion for summary judgment. The court granted the Government’s motion for summary judgment, denied intervenors-appellants’ motion to dismiss and ordered defendants to return the disputed documents to the United States within thirty days of the entry of its order. United States v. Napper, 694 F.Supp. at 902.

Appellants characterize the district court’s decision as an unprecedented grant of authority to the Attorney General to affirmatively deny the public access to federal documents when a state court had ordered the disclosure of such documents pursuant to a state Open Records Act. This position emotionalizes this case, but misses the point of the litigation. This is simply a case in which the Government seeks to retrieve documents which it owns and which the City of Atlanta possesses, has no right to disseminate, and refuses to return to the FBI.

The appellants do not dispute that the documents in question belong to the FBI. The district court was correct in determining that a dispute exists over ownership and possession of the documents because the City refused to return the documents the federal Government claims. See Kentucky v. Indiana, 281 U.S. 163, 50 S.Ct. 275, 74 L.Ed. 784 (1930). Contrary to appellants’ argument, the United States has authority to bring suit to enforce its contractual and property rights in federal court. See United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947); Cotton v. United States, 52 U.S. (11 How.) 229, 231, 13 L.Ed. 675 (1851).

The district court correctly refused to abstain from hearing this case, properly finding that the United States has no other forum in which to claim its interest in the documents, having been denied permission to intervene in the state court action. The United States does not have to rely on the state court defendants to adequately assert its interests.

Curiously, the intervenors argue the United States lacked standing to bring this action to retrieve documents which allegedly belong to it. Although the district court allowed intervention, it is difficult to find a base for the appellants’ standing in the district court or on appeal. The Government has not sought from intervenors copies of the already released documents, nor does it attempt in this litigation to suppress information already made public. The fact that some documents have already been disclosed does not affect the Government’s right to retrieve the documents which are the subject of this litigation.

We understand, of course, as a practical matter, that once the documents are returned to the United States, the appellants may have more difficulty in obtaining them or the information in them. But the appellants and this Court cannot find a legal base upon which to posit that practical interest.

As did the district court, we make no determination at all as to whether these documents could be made available for disclosure to the public in a proceeding under the Freedom of Information Act or any other theory that a plaintiff might assert against the rightful owner of them.

AFFIRMED.