Law 360 on ACCG Test Case

Law 360 published this story on the ACCG Appeal yesterday:

Law360, New York (February 14, 2012, 8:19 PM ET) -- The Ancient Coin Collectors Guild on Monday urged the Fourth Circuit to revive its lawsuit against U.S. Customs and Border Protection over the seizure of ancient Cypriot and Chinese coins the guild said couldn't be traced to illicit excavations in either Cyprus or China.

ACCG filed a 36-page reply brief arguing for a reversal of a trial court's Aug. 2009 decision to throw out its lawsuit — which targeted defendants including Customs and the U.S. Department of State — and seeking to have the matter remanded for further proceedings.

“Despite the government’s efforts to cast this dispute as one about diplomatic relations, the guild only seeks judicial review of import restrictions on ancient coins,” said the ACCG's brief.

The case, lodged in Maryland federal court in February 2010, was filed following the seizure of more than 20 ancient Cypriot and Chinese coins the ACCG imported from London in 2009. The guild argued that it should not be assumed that a coin was stolen or illegally shipped because the owner was unable to show a chain of custody beyond a receipt from a reputable source.

The government said that no judicial review of the plaintiff's claims was available and that even if it was, the ACCG had not stated a claim for relief.

U.S. District Judge Catherine Blake granted the government's dismissal bid, and said, among other things, that actions taken pursuant to delegated presidential authority under the Convention on Cultural Property Implementation Act weren't subject to review under the Administrative Procedures Act.

Congress enacted the CPIA in 1983, authorizing the president to enter into agreements with other countries to limit the importation of objects of archaeological interest and cultural significance.

The U.S. entered into such deals with Cyprus and China in July 2007 and January 2009, respectively, limiting the importation of ancient coins minted in the countries.

In Monday's brief, the ACCG said that the trial court had a duty to conduct a judicial review of the government's decisions to slap import restrictions on collector's coins. Such import restrictions should only be imposed in line with the substantive and procedural restraints on executive found in the CPIA, the guild added.

The government made missteps like imposing import restrictions on coins without regard to their “find spots” and ignored evidence that Chinese and Cypriot coins circulated widely beyond their place of manufacture, said the ACCG.

“We believe that some sort of judicial review is warranted, whether it be under the ultra vires analysis or the APA,” said Bailey & Ehrenberg PLLC's Peter Tompa, an attorney for the ACCG. He added that whether or not the government had applied the “first discovery” rule properly was a key issue in the case.

One of the CPIA's requirements is that the object has to have been discovered in the country entering into the agreement with the U.S.. The ACCG argued that the government needed to show that the coins it seized were first discovered in Cyprus or China.

Customs spokeswoman Erlinda Byrd declined to comment on the case Tuesday.

The ACCG is represented before the appeals court by Peter Tompa and Jason Ehrenberg of Bailey & Ehrenberg PLLC.The case is Ancient Coin Collectors Guild v. U.S. Customs and Border Protection et al., case 11-2012, in the U.S. Court of Appeals for the First Circuit [sic].