Ancient Coin Collectors Guild v. U.S. Customs & Border Prot.

• Decision Date: 08 August 2011
• Docket Number: Civil Action No. CCB–10–322.
• Parties: ANCIENT COIN COLLECTORS GUILD v. U.S. CUSTOMS AND BORDER PROTECTION, Department of Homeland Security, et al.
• Court: U.S. District Court — District of Massachusetts

801 F.Supp.2d 383

ANCIENT COIN COLLECTORS GUILD

v.U.S. CUSTOMS AND BORDER PROTECTION, Department of Homeland Security, et al.

Civil Action No. CCB–10–322.

United States District Court, D. Maryland.

Aug. 8, 2011.

Peter Karl Tompa, Jason Herbert Ehrenberg, Bailey and Ehrenberg PLLC, Washington, DC, for Ancient Coin Collectors Guild.

Larry D. Adams, Office of the United States Attorney, Baltimore, MD, for U.S. Customs and Border Protection, Department of Homeland Security, et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

This action arises out of the seizure of twenty-three ancient Cypriot and Chinese coins that the Ancient Coin Collectors Guild (“ACCG”) purchased from a coin dealer in London and imported to the United States. Following the seizure, ACCG filed this action “to test the legality” of import restrictions imposed on certain ancient Cypriot and Chinese coins. ACCG sued the U.S. Customs and Border Protection (“Customs”), the Commissioner of Customs and Border Protection (“Commissioner of Customs” or “Commissioner”), the U.S. Department of State (“State”), and the Assistant Secretary of State for Educational and Cultural Affairs (“Assistant Secretary for ECA”) (collectively, “the defendants” or “the government”), alleging violations of the Administrative Procedure Act (“APA”), the International Emergency Economic Powers Act (“IEEPA”), the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), and the First and Fifth Amendments to the U.S. Constitution. ACCG also alleges that the defendant acted “ ultra vires,” and seeks relief in the form of a declaratory judgment, an injunction, and a writ of mandamus. Pending before this court is a motion to dismiss or, in the alternative, for summary judgment, filed by the defendants. For the reasons discussed below, the government's motion will be granted.

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                I.  Background                                                          388
                

    A.   The Cultural Property Convention and the CPIA                  388
                    B.   The import restrictions on Cypriot coins                       392
                    C.   The import restrictions on Chinese coins                       393
                    D.   The importation and seizure of ACCG's coins                    394
                    E.   ACCG's concurrent FOIA action                                  395
                    F.   This lawsuit                                                   395
                

                II.  Subject Matter Jurisdiction                                        396
                III. Standard of Review                                                 399
                IV.  ACCG's challenge to the import restrictions                        399
                

    A.   Judicial Review of State Department Actions                    401
                

         1.  APA Review                                                 401
                         2.  Ultra vires review                                         405
                

             i.   The “first discovered” requirement                    406
                             ii.  Chinese request for import restrictions               409
                             iii. ACCG's other ultra vires claims                       410
                

         3.  Constitutional review                                      411
                

    B.   Judicial Review of Customs Actions                             413
                

         1.  APA Review                                                 413
                         2.  Ultra vires review                                         414
                         3.  Constitutional review                                      414
                

             i.  Delay in filing forfeiture action                      414
                             ii. “Watch list” claim                                     416
                

         4.  CAFRA                                                      417
                         5.  Mandamus                                                   418
                

                V.  Conclusion                                                          418
                

I. BACKGROUND

A. The Cultural Property Convention and the CPIA

In 1970, the United States became a signatory to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (the “Cultural Property Convention” or “Convention”), November 14, 1970, 823 U.N.T.S. 231. Article 9 of the Convention provides:

Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned. Pending agreement each State concerned shall take provisional measures to the extent feasible to prevent irremediable injury to the cultural heritage of the requesting State.

The Senate gave its unanimous advice and consent to the Convention in 1972, subject to one reservation and six understandings. See 118 Cong. Rec. 27,924–25 (1972) (ratifying the Convention but reserving the right “to determine whether or not to impose export controls over cultural property”). As a non-self-executing treaty, the Convention required implementing legislation before it became enforceable U.S. law. Congress enacted such legislation through the Convention on Cultural Property Implementation Act (CPIA) in 1983. Pub.L. 97–446, Title III 96 Stat. 2350 (1983) (codified at 19 U.S.C. § 2601 et seq.).

The CPIA, among other things, defined the term “archaeological or ethnological materials,” which the Convention left undefined, thereby specifying which types of material may be subject to U.S. import restrictions:

The term “archaeological or ethnological material of the State Party” means—,

(A) any object of archaeological interest;

(B) any object of ethnological interest; or

(C) any fragment or part of any object referred to in subparagraph (A) or (B); which was first discovered within, and is subject to export control by, the State Party.

19 U.S.C. § 2601(2). The regulations at issue here treat ancient coins as objects “of archaeological interest,” and ACCG does not dispute this characterization. Accordingly, an ancient coin or category of coins may be subject to an import restriction only if it “(I) is of cultural significance; (II) is at least two hundred and fifty years old; and (III) was normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water.” Id. § 2601(2)(i).

The CPIA also established a mechanism through which the U.S. would comply with its obligations under Article 9 of the Convention. That mechanism is triggered when a state party to the Convention requests that the U.S. impose measures under Article 9 to protect the requesting country's “cultural patrimony.” 19 U.S.C. § 2602(a)(1). Upon receiving such a request, the President must (1) publish notification of the request in the Federal Register and (2) submit to the Cultural Property Advisory Committee (CPAC) “such information ... as is appropriate to enable the Committee to carry out its duties.” Id. § 2602(f)(1)-(2). The CPAC, which was established by the CPIA, is a committee of eleven individuals, including two persons “representing the interests of museums,” three “experts in the fields of archaeology, anthropology, ethnology, or related areas,” three “experts in the international sale of archaeological, ethnological, and other cultural property,” and three persons who “represent the interest of the general public.” Id. § 2605(a)-(b). The CPAC must “undertake an investigation” and prepare a report setting forth

(A) the results of such investigation and review;

(B) its findings as to the nations individually having a significant import trade in the relevant material; and

(C) its recommendation, together with the reasons therefor, as to whether an agreement should be entered into under section 303(a) with respect to the State Party.

Id. § 2605(f)(1). If the CPAC recommends that the President enter into an agreement to implement Article 9 (an “Article 9 agreement”), its report must also set forth

(A) such terms and conditions which it considers necessary and appropriate to include within such agreement, or apply with respect to such implementation, for purposes of carrying out the intent of the Convention; and

(B) such archaeological or ethnological material of the State Party, specified by type or such other classification as the Committee deems appropriate, which should be covered by such agreement or action.

Id. § 2605(f)(4). The CPAC must then submit its report to the President and to Congress. Id. §§ 2605(f)(6); 2602(f)(3)(B).

Upon receiving the CPAC report, the President “determines” whether the requirements of 19 U.S.C. § 2602(a)(1) have been met. Those requirements are the following:

(A) that the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;

(B) that the State Party has taken measures consistent with the Convention to protect its cultural patrimony;

(C) that—,

(i) the application of the import restrictions set forth in section 307 [19 U.S.C. § 2606] with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and

(ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and

(D) that the application of the import restrictions ... is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific,...