Ancient Coin Collectors Guild v. U.S. Customs & Border Prot., Dep't of Homeland Sec'y

• Citation: 698 F.3d 171
• Decision Date: 22 October 2012
• Docket Number: No. 11–2012.,11–2012.
• Parties: ANCIENT COIN COLLECTORS GUILD, Plaintiff–Appellant, v. U.S. CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY; Commissioner, U.S. Customs and Border Protection; United States Department of State; Assistant Secretary of State, Education and Cultural Affairs, Defendants–Appellees. American Committee for Cultural Policy; Ancient Coins for Education, Inc.; International Association of Dealers In Ancient Art; International Association of Professional Numismatists; Professional Numismatists Guild, Inc.; The American Numismatic Association, Amici Supporting Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

698 F.3d 171

ANCIENT COIN COLLECTORS GUILD, Plaintiff–Appellant,

v.U.S. CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY; Commissioner, U.S. Customs and Border Protection; United States Department of State; Assistant Secretary of State, Education and Cultural Affairs, Defendants–Appellees.

American Committee for Cultural Policy; Ancient Coins for Education, Inc.; International Association of Dealers In Ancient Art; International Association of Professional Numismatists; Professional Numismatists Guild, Inc.; The American Numismatic Association, Amici Supporting Appellant.

No. 11–2012.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 19, 2012.

Decided: Oct. 22, 2012.

ARGUED:Peter Karl Tompa, Bailey & Ehrenberg, PLLC, Washington, D.C., for Appellant. Samantha Lee Chaifetz, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF:Jason Ehrenberg, Bailey & Ehrenberg, PLLC, Washington, D.C., for Appellant. Tony West, Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellees. Richard B. Rogers, Richard B. Rogers PLC, Alexandria, Virginia, for American Committee for Cultural Policy and International Association of Dealers in Ancient Art, Amici Supporting Appellant. Michael McCullough, Michael McCullough, LLC, Brooklyn, New York, for International Association of Professional Numismatists, The American Numismatic Association, and Ancient Coins for Education, Inc., Amici Supporting Appellant. Armen R. Vartian, Law Offices of Armen R. Vartian, Manhattan Beach, California, for Professional Numismatists Guild, Inc., Amicus Supporting Appellant.

Before WILKINSON and THACKER, Circuit Judges, and MICHAEL F. URBANSKI, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge THACKER and Judge URBANSKI joined.

OPINION

WILKINSON, Circuit Judge:

The Convention on Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601–2613, provides a mechanism by which foreign countries can request that the United States enact import restrictions on certain articles of cultural significance to prevent their looting and illegal sale. In challenging the seizure of coins that it attempted to import, the Ancient Coin Collectors Guild (the “Guild”) asks us to engage in a searching review of the government's implementation of CPIA import restrictions on Chinese and Cypriot cultural property.

Accepting such an invitation, however, would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries, injecting the courts into an area of law covered by statutorily conferred executive discretion and congressional oversight. 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 CPIA restrictions. Here, forfeiture proceedings were placed on hold pending the outcome of this litigation, and the Guild may still pursue various forfeiture defenses to obtain release of the articles it attempted to import. We therefore affirm the judgment of the district court.

I.

A.

In the fall of 1970, the United Nations Educational, Scientific, and Cultural Organization (“UNESCO”) held a conference in Paris where its member states fashioned an international system to protect articles of cultural significance from “the dangers of theft, clandestine excavation, and illicit export.” Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property pmbl., Nov. 14, 1970, 823 U.N.T.S. 231. The product of this conference was the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the “Convention”). Id. Pursuant to Article 9 of the Convention, a “State Party” can request that other signatories take steps to protect the requesting state's cultural property from theft and illicit export, such steps to include import and/or export controls. Id. art. 9. The Convention defines the term “cultural property” to include an array of items “of importance for archaeology, pre-history, history, literature, art or science.” Id. art. 1.

The U.S. Senate “unanimously gave its advice and consent to ratification in 1972,” subject to several reservations, one of which indicated that the Convention was not self-executing. S. Rep. 97–564, at 21 (1982), 1982 U.S.C.C.A.N. 4078, 4098. To implement the Convention domestically, Congress passed the CPIA ten years later in 1982, and President Reagan signed it into law in 1983. Convention on Cultural Property Implementation Act, Pub. L. 97–446, tit. III, 96 Stat. 2350 (1983) (codified at 19 U.S.C. §§ 2601–2613).

B.

The CPIA allows the U.S. government to place import restrictions on designated articles of cultural property at the request of another Convention party. The process commences when a Convention party submits a written request to the United States seeking assistance in protecting its cultural property. 19 U.S.C. § 2602(a)(1), (a)(3). Upon receipt of the request, the President must “publish notification of the request ... in the Federal Register” and submit the request and supporting statements to the Cultural Property Advisory Committee (“CPAC”). Id. § 2602(f).

CPAC is an eleven-member committee appointed by the President that includes representatives of museums; “experts in the fields of archaeology, anthropology, ethnology, or related areas”; “experts in the international sale of archaeological, ethnological, and other cultural property”; and representatives “of the general public.” Id. § 2605(b)(1). CPAC reviews a request for import restrictions and issues a report to the President indicating whether such restrictions are advisable. Id. § 2605(f). As part of its report, CPAC must state whether: (1) “the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials”; (2) “the State Party has taken measures consistent with the Convention to protect its cultural patrimony”; (3) import restrictions “would be of substantial benefit in deterring a serious situation of pillage”; (4) “remedies less drastic than” import restrictions are available; and (5) import restrictions are “consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.” Id. § 2602(a)(1).

If, after receipt of the report, the President agrees with CPAC that import restrictions are advisable and formally determines that the aforementioned circumstances exist, he may enter into an agreement, referred to as an “Article 9 agreement” or a “memorandum of understanding,” with the requesting state to apply such restrictions. Id. § 2602(a), (f). The President must then provide to Congress the text of the agreement and a description of the import restrictions imposed. Id. § 2602(g). If the President disagrees with the CPAC recommendation and takes a different action or takes no action at all, he must submit a report to Congress indicating the reasons for his deviation from the CPAC recommendation. Id.

The scope of import restrictions enacted pursuant to the CPIA is limited by § 2601. Most relevant here, the statute limits import restrictions to “archaeological or ethnological material of the State Party” and defines that term to mean any object of archaeological or ethnological interest that “was first discovered within, and is subject to export control by, the State Party” requesting import restrictions. Id. § 2601(2). The Secretary of the Treasury—who was responsible for U.S. Customs at the time the CPIA was enacted—can promulgate regulations that list restricted articles “by type or other appropriate classification,” so long as “each listing made ... shall be sufficiently specific and precise to insure that (1) the import restrictions ... are applied only to the archaeological and ethnological material covered by the agreement” and “(2) fair notice is given to importers and other persons as to what material is subject to such restrictions.” Id. § 2604. Any article that meets the aforementioned definition of “archaeological or ethnological material of the State Party” may be restricted.

Although the statute confers CPIA functions upon the President and the Secretary of the Treasury, government reorganizations and various delegations of authority now leave CPIA authority in the hands of the Assistant Secretary of State for Educational and Cultural Affairs (the “Assistant Secretary”) and U.S. Customs and Border Protection (“CBP”). E.g.,Exec. Order 12,555; 68 Fed. Reg. 10,627; 65 Fed. Reg. 53,795. The Assistant Secretary, an officer of the U.S. Department of State (“State”), is responsible for communicating with other parties to the Convention and for filing the necessary determinations and reports, 65 Fed. Reg. 53,795, and CBP, a unit of the U.S. Department of Homeland Security, is responsible for promulgating regulations that enact appropriate import restrictions, Exec. Order 12,555; 68 Fed. Reg. 10,627. CBP also enforces the restrictions at ports of entry. 19 C.F.R. § 12.104i.

If an article is covered by CPIA import restrictions, it may not be brought into the United States unless (1) it is accompanied by formal documentation certifying that it was lawfully exported from the country that has requested the import restrictions, 19 U.S.C. § 2606(a); (2) there is “satisfactory evidence” that the article was exported from the State Party at least ten years before it arrived in the United States and the importer owned it for...