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Guild loses challenge to import restrictions

The 4th U.S. Circuit Court of Appeals declined last week to engage in a “searching review” of the way the United States government restricts the importation of cultural items.

“Accepting such an invitation … would [interject] the courts into an area of law covered by statutorily conferred executive discretion and congressional oversight,” Judge J. Harvie Wilkinson III wrote for the three-judge panel.

The Ancient Coin Collectors Guild, a nonprofit organization, filed a lawsuit after it was prevented from importing 23 ancient coins from China and Cyprus into the United States. The U.S. Customs and Border Protection, a division of the Department of Homeland Security, seized the coins, which it said were listed in accordance with the Convention on Cultural Property Implementation Act as restricted cultural items.

The Act allows the government to restrict the importation of “archeological or ethnological material” into the United States at the request of another country.

According to the act, a restricted item can only be brought into the United States if “(1) it is accompanied by formal documentation certifying that it was lawfully exported from the country that has requested the import restrictions; (2) there is ‘satisfactory evidence’ that the article was exported from [the country] at least ten years before it arrived in the United States and the importer owned it for less than one year before it arrived in the United States; or (3) there is ‘satisfactory evidence’ that the article was exported from the [country] before the import restrictions took effect.”

The United States entered into agreements with Cyprus in 2007 and China in January 2009 not to import a variety of items, including coins from both countries.

The Collectors Guild attempted to import the coins on April 15, 2009, not long after import restrictions had taken effect, and refused to provide the U.S. Customs and Border Protection with the necessary documentation to show that the coins met one of the three exceptions.

The court said that this was “perhaps an effort to establish a test case.”

According to last week’s opinion, the Collectors Guild waited several months for the government to bring forfeiture proceedings, then sued the U.S. Customs and Border Protection and the U.S. Department of State in U.S. District Court in Baltimore.

There, Judge Catherine C. Blake dismissed the suit. She ruled that neither governmental agency exceeded its authority and that the government’s delay in bringing forfeiture proceedings did not result in a violation of due process.

The Collectors Guild appealed to the 4th Circuit, which affirmed Blake’s ruling on Oct. 22.

The court said there was no question that the State Department complied with the necessary procedures under the Act, and said that accepting a review of the act would “draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries.”

The court said that such judicial “interference” would be “especially problematic because Congress has already prescribed civil forfeiture as a vehicle through which importers can challenge the seizure and detention of articles allegedly covered by [act] restrictions.”

It noted that in this case forfeiture proceedings were placed on hold pending the outcome of this litigation, and said the Guild could still “pursue various forfeiture defenses” to get the coins released.

The Collectors Guild had argued that the government acted beyond its scope of powers by placing limits on the importation of certain Cypriot and Chinese coins. The court, however, said its review of whether the government acted beyond the scope of its powers was “necessarily narrow.”

“We may not dictate how government goes about its business but only whether a public entity ‘has acted within the bounds of its authority of overstepped them,’” the court said.

Judge Stephanie D. Thacker and U.S. District Judge Michael Urbanski, sitting by designation, joined Judge Wilkinson in the opinion.

Samantha Lee Chaifetz, an attorney with the U.S. Department of Justice, represented the government. A call to the DOJ’s Department of Public Affairs was not immediately returned Tuesday.

Peter Karl Tompa, an attorney at Bailey & Ehrenberg, PLLC in Washington, D.C., represented the Collectors Guild. Tompa said on Tuesday that he was disappointed that the decision avoided judicial review “supposedly” based on foreign policy concerns.

“We are talking about import restrictions on common artifacts, widely collected worldwide,” Tompa said in an email. “These are not issues of statecraft or military affairs.”

Tompa said the court has “ignored the plain meaning of the requirement limiting restrictions to artifacts first discovered in and subject to the export control of a given country.”

He said the Collectors Guild would seek en banc review of the case.

WHAT THE COURT HELD
Case: Ancient Coin Collection Guild v. U.S. Customs and Border Protection et al., Sept. Term 2012. Reported. Opinion by Wilkinson, J. Joined by Thacker, J. and Urbanksi, J. Argued Sept. 19, 2012. Decided Oct. 22, 2012.
Issue: Did the lower court properly interpret the Convention on Cultural Property Implementation Act (CPIA) and dismiss claims that the government were acting beyond the scope of their powers?
Holding: Yes; the lower court properly interpreted the CPIA. The 4th Circuit declined to engage in a “searching review” of the Act.
Counsel: Peter Karl Tompa for appellant; Samantha Lee Chaifetz for appellees.
RecordFax # 12-1022-60 (22 pages).