Friday, January 24, 2014

Context Matters

Or, so CPO thought.  Yet, archaeo-blogger Rick St. Hilaire offers no context with his selective quotations from the Fourth Circuit's opinion in the ACCG test case to support his views on whether State and Customs must make a principled determination of whether coin types are "first discovered" in a specific county before restricting them.  Nor does he link to the opinion itself; only his own "archaeology over all spin" on it.

Specifically, St. Hilaire fails to acknowledge that the Court's statements related to the "first discovery" provision were made in the context of a decision that affirmed dismissal of the ACCG's test case on so-called "foreign policy grounds."  For that reason, the ACCG was never allowed to take discovery that would go to how the "first discovery" requirement was meant to work in practice.

 One can question whether the Fourth Circuit's opinion has any real vitality at all after a recent  Supreme Court decision that addressed this "foreign policy" issue.  See Zifotofsky v. Clinton, 132 S.Ct. 1421 (2012).  However, it cannot be debated that the Fourth Circuit also stated that ACCG should be given the opportunity to contest that its coins are covered by import restrictions in the context of a forfeiture action.   It's ACCG's view that by necessity this requires discovery into whether State and Customs made a principled determination of whether the coins subject to forfeiture were of the sort that can only be "first discovered" in Cyprus or China, something that was not allowed in in the context of the test case that sought to modify or throw out the applicable regulations.


Paul Barford said...

First of all in accusing somebody else of not providing a link, you omit yourself to provide one for the Zifotofsky v. Clinton case which you cite.

Secondly, you write in self-justification:
"the context of a decision that dismissed the ACCG's test case on so-called "foreign policy grounds."

But that is not in fact what is then set out in section 1B on pp 4-7 of the text to which you refer, is it? There is nothing there about "negotiations between the Department of State and foreign countries", it is a factual statement about how the Designated list and the "... property of the state party" interact, is it not? And there, surely, in black and white, is a clear refutation of your interpretation of the First Found principle.

Cultural Property Observer said...

Zitofsky is not readily available as a link (like the ACCG case), but here is something about it:

See p.3 and 11 for discussion of foreign policy grounds.

I'd also note that somehow the Court of Appeals thought CPAC agreed with the restrictions. I'm not sure how it came to that conclusion-- it was not in the record, and in fact the record (Kislak declaration) and allegations in the complaint stated otherwise.

Cultural Property Observer said...
This comment has been removed by the author.
Cultural Property Observer said...

I did further digging. The Supreme Court decision in Zitofsky is available on the Court's website. A link has now been added to the body of this blog.