Appeals Court Sides with State Dept. and CBP in Cultural Property Import Restrictions Case

The U.S. Court of Appeals for the Fourth Circuit unanimously ruled with the Justice Department in a suit filed by the Ancient Coin Collectors Guild (ACCG) over the implementation of import restrictions on cultural property from China and Cyprus. Circuit Judge Harvie Wilkinson declined to take up such a far reaching review 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," he said in his opinion.

The ACCG filed the original suit in the U.S. District Court of Maryland after CBP stopped the 2009 import of coins over violations of the Cultural Property Implementation Act (CPIA). The district court said neither the State Department nor CBP had exceeded their authority. The ACCG appeal asked the court to review the State Department's conclusions that China and Cyprus had requested import restrictions on coins, that the restricted articles were part of each country's cultural patrimony, and that the restrictions were necessary to protect the patrimony.

There's already a procedure in place to deal with import seizures, said Wilkinson. "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," he said. "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."

The ACCG didn't respond to CBP with the requested evidence of the coins' legality when they were stopped in 2009, "perhaps in an effort to establish a test case," said the opinion. Statutorily, the judiciary isn't empowered to "second-guess the Executive Branch in its negotiations with other nations" over cultural heritage, it said. The ACCG argued that import restrictions on Chinese coins is unlawful because China hadn't specifically mentioned coins in a request. That argument lacks standing because there is not statutory requirement that such a request include a detailed list of items to be covered, said Wilkinson.

The ACCG also argued the State Department and CBP violated the Administrative Procedure Act (APA). Wilkinson disagreed, saying the State Department followed the required statutory procedures in carrying out agreements and imposing restrictions on covered articles. CBP also didn't violate the APA because it "merely promulgated regulations at the behest of State," the opinion said. "When CBP received instructions from State to promulgate the regulations, it was entirely reasonable for CBP to follow those instructions, given its statutory obligation to do so."

While it's true that coins are portable objects meant to be circulated and such import restrictions risk a medium of cultural exchange and education, the law seems to be clear, said Wilkinson. "Whether coins (or sculptures or pottery) should be exempted from coverage as cultural property presents a lively policy debate, but the tension is resolved for us through the medium of law," the opinion said. "The definition of covered properties is general in character" and it's not up to the court to come up with exceptions.

The ACCG still has a means toward resolving the seizure, the court emphasized. "We obviously express no view on how the forfeiture process will unfold," it said. "We simply conclude that this suit seeks to have the judiciary assume a role that the statute does not intend for us to assume."

(Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, No. 11-2012, dated 10/22/12, Judges Wilkinson, Thacker and Urbanski)

(Attorneys: Peter Karl Tompa, Bailey & Ehrenberg for plaintiff ACCG; Samantha Lee Chaifetz for defendant U.S. Government)