By Hubert Walker for CoinWeek ….
Until the early years of the 21st century, it was relatively easy and completely legal for an American collector to import ancient coins from most other countries. But in recent years there has been a definite trend toward ever-increasing restrictions on such activities.
The Ancient Coin Collectors Guild (ACCG) was founded in 2004 in direct response to this trend.
According to the Guild, the organization serves as an advocate for the right of collectors to own numismatic objects “regardless of date or place of origin”. It does this through a three-pronged effort involving educational programs, consumer protection and legal action.
In 2009, the ACCG initiated a test case involving ancient coins that members of the group had imported from Cyprus and China. The hope was to challenge then-recent changes in the U.S. Government’s agreements with the two countries that suddenly made such transactions prohibited by law. Eight years later, aspects of the case continue to slog through the courts, with the latest update coming just weeks ago on September 28.
And whether that’s due to bureaucratic foot-dragging on the part of the federal government or not, the dogged determination of the ACCG to see the case through should be inspiring to other collectors. So to catch everyone up on one of the bleeding edges of coin advocacy, CoinWeek brings you a brief history on the case and provides a little legal background to help you make sense of it all.
The CPIA, CPAC and the UNESCO Convention
It all started 47 years ago.
The United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the “Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” was held in Paris in 1970. And even though it didn’t go into effect until April of 1972, the year 1970 is used as the cut-off point for antiquities “legitimately” taken out of their countries of origin. All objects exported after 1970 are considered suspect, with most museums unwilling to acquire (and leery of displaying) them.
The United States enacted the Cultural Property Implementation Act (CPIA) in 1983. The CPIA essentially ratified the UNESCO Convention, though there were some reservations. Mark Feldman, Deputy Legal Adviser to the U.S. State Department, famously told Congress that the CPIA and and the ratified 1970 UNESCO convention would have “no immediate effect” on coins, and that it was difficult for him to conceive of a specific case where the State Department would have to deal with coins except in “the most unusual circumstances.”
What the Act did was establish a Cultural Property Advisory Committee (CPAC) made up of 11 presidential appointees. Its job is to “advise the president (or his designee) on appropriate U.S. action in response to requests from State Parties for assistance in protecting their cultural heritage.” Based on this advice, the State Department makes policy decisions that are then codified in a series of Memoranda of Understanding (MOUs) between the United States and other countries.
Despite of what has transpired in the decades since, it is clear that the drafters of the CPIA did not intend for or even believe that the importation of coins should be restricted. CoinWeek’s ancient coin expert Mike Markowitz, who happens to be a member of the ACCG’s Board of Governors, commented that the “destructive efforts of the Cultural Property Advisory Committee (CPAC), which has been a tool of the academic archaeology lobby, [have been] consistently hostile to the interests of collectors and dealers, in defiance of the clear intent of Congress, when the relevant legislation was enacted.”
The Test Case
Ancient Coin Collectors Guild v U.S. Customs and Border protection, et al.
In July 2009, a small package of cheap coins from China and Cyprus entered the country. It was seized and detained in Baltimore by U.S. Customs and Border Protection (Customs), one of the largest agencies within the United States Department of Homeland Security.
This was what the Ancient Coin Collectors Guild test case had been meant to trigger. Federal law requires Customs to bring what is known as a “forfeiture action” against any such seized property, and to do so in a prompt and timely manner. Once the forfeiture action had thus been filed, the ACCG could then counter what it considers to be its real objective: the U.S. State Department’s decision-making process behind the MOUs that brought about the restrictions in the first place.
But no forfeiture action was forthcoming. So in February of 2010, the ACCG filed suit in the U.S. District Court in Baltimore to “expedite” the case. It may also be important to note that the case ties into another case revolving around a Freedom of Information Act (FOIA) request from the ACCG regarding documentation outlining the State Department’s MOU deliberations in the matter of the Cypriot and Chinese memoranda. To summarize that equally important legal battle here, the Guild essentially believes that the State Department ignored the advice of its own experts–and the wishes of the People’s Republic of China, at the very least–when the coin import restrictions were written, and the ACCG seeks to discover whether the deliberations deviated from the process as outlined in U.S. law. Specifically, the Guild hopes both cases will make the Bureau of Educational and Cultural Affairs (ECA), the agency in charge of import restrictions on cultural artifacts within the State Department, reform its decision-making process in favor of transparency and better involvement from affected parties.
By June 23, the ACCG had amended its initial complaint to include a claim that import restrictions impinge on the access of U.S. collectors to the information found on ancient coins – a violation of a collector’s First Amendment rights. The new complaint also addressed the defendants’ objections by saying that both Customs and the State Department acted beyond the scope of their authority by establishing these restrictions. Court rules allow for one amendment to a plaintiff’s complaint before the defendants file their response, and the amended complaint was intended to render moot the defense’s motion to dismiss.
A new motion to dismiss, however, was expected.
By late September of 2010, the parties to the case had completed their briefings on the jurisdictional claims. The defendants motioned that State Department decisions are not subject to judicial review, arguing that, as a part of the Executive Branch of the Federal Government, the State Department’s powers ultimately derive from the president’s, which are Constitutionally mandated. The ACCG countered that the defendants can’t overcome the court’s presumption of reviewability according to the Administrative Procedure Act (APA) (5 USC § 704). They also argued that there are statutory limits on the powers of the Assistant Secretary of State deriving from the president, and that the discretion provided by the CPIA is not absolute. The ACCG also asserted the court’s jurisdiction to hear the plaintiff’s First Amendment claims
The Guild therefore asked the court for leave to file a “surreply brief” (a reply to the defendant’s reply).
The Chief United States District Judge for Maryland, Catherine Blake, then scheduled oral arguments for and against the defendants’ new motion to dismiss the case to take place on February 14, 2011. The Guild’s attorney, Peter K. Tompa of the firm Bailey and Ehrenberg, stated in a blog entry on the ACCG website that it was unusual for the government to schedule oral arguments on preliminary motions.
The arguments took about one-and-a-half hours, with the court focused on what entailed the “final agency action” that must be reviewed under the APA. The State Department argued that the final “action” was the MOUs themselves, while the ACCG countered that the pertinent actions were either the customs regulations that applied the restrictions or the actual, physical seizure of the coins. The Guild also claimed that even if the defendants were right about the nature of the final agency action that the court still had jurisdiction to review.
Judge Blake took both sides’ arguments under advisement, but by early August she ruled that the import restrictions in question are not subject to judicial review under the APA – even though the court stated that it could decide whether the restrictions were contrary to applicable law.
The ACCG’s Board of Directors voted to appeal the decision, filing notice to appeal with the U.S. Court of Appeals Fourth District in Richmond, Virginia on September 20. As is done in such a situation, the court issued a briefing schedule to both parties, with an opening brief due by October 31, and all other briefs due by the end of the year.
The Guild’s opening brief asked the Appellate Court to reverse the District Court’s decision and to remand the matter back to District Court for review.
In November of 2011, the following numismatic organizations moved to file amicus briefs with the court in support of the ACCGH’s case: the American Committee for Cultural Policy (ACCP), the International Association of Dealers in Ancient Art (IADAA), the International Association of Professional Numismatists (IAPN), the American Numismatic Association (ANA), and the Professional Numismatists Guild (PNG). On December 5, the Fourth Circuit Court granted their motions, along with a sixth group, Ancient Coins for Education, Inc. The government was now being represented by attorney Mark B. Stern from the Department of Justice Civil Appellate Division as the counsel of record.
In January of 2012, the government filed its brief in the matter; the ACCG then filed a reply brief in February. In the reply, the Guild argued that the District Court in Baltimore had a duty to conduct judicial review of the defendant’s actions – which it failed to fulfill. And while the State Department continued to frame the issue as having to do with diplomatic relations, the ACCG asserted that it only wanted specific review of the import restrictions on ancient coins, a matter which the organization believes was never solely the discretion of Customs or the State Department.
Besides, if the “civvies” on the CPAC could apply CPIA criteria to their own advice, then the court, the ACCG argues, can too.
The Guild also argued that the plain meaning of “first discovery requirement” means that the government must show that any restricted coins were found in either China or Cyprus after the Memorandum of Understanding was signed.
In June, both parties were informed of the September 19 hearing date, where the Fourth Circuit Court would decide on both whether the ACCG was entitled to judicial review and whether it was proper for the State Department to restrict the importation of the coins in question based on the place of production (as opposed to the archaeological find spot, as mandated by the CPIA).
Unfortunately, the Appeals Court delivered an affirmation of Judge Blake’s initial decision – though not without acknowledging that the Guild did make some points, and that the organization could still pursue forfeiture defenses concerning the actual coins it imported. Nevertheless, the Fourth Circuit stated that any changes to how Customs or the State Department administered the Cultural Property Act must come from Congress or the president.
Click here to listen to the oral arguments presented at the September hearing.
In December, the Guild petitioned for the entire Fourth Circuit to rehear the appeal en banc, a type of hearing where all of the judges within a district or circuit hear and rule on the case together. The ACCG argued that the Appeals Court decision ignored Supreme Court precedent regarding a court’s duty to “say what the law is” as opposed to deferring to foreign policy concerns, further precedent regarding judicial review as determined by case law in “sister” courts, and the “plain meaning” rule.
Additionally, the Guild assumed that the Cultural Property Advisory Committee approved of the government decision to restrict based on the coins’ production place rather than the find spot, despite the sworn statement of Jay Kislak, former chair of the CPAC.
The Fourth Circuit Court of Appeals denied the ACCG’s petition. The Guild petitioned the Supreme Court for a writ of certiorari (a request for a higher court to review the decision of a lower court) in February of 2013. On March 25, the Supreme Court denied the group’s writ, which means the court will not hear the case and the Fourth Circuit’s decision in favor of the government stands.
The Forfeiture Action
Then, in May 2013, the Federal Government filed a forfeiture action against the ACCG’s test coins – the very act that the Guild had anticipated happening at the beginning of the case in 2009. By the end of the month the group filed a claim of interest on the coins to contest the forfeiture, and by the end of June, the ACCG had filed its answer to the forfeiture complaint. In it, the Guild disputes that the coins were subject to forfeiture at all, not being archaeological objects under applicable law and the government lacking probable cause to believe that the coins were first discovered in Cyprus and China and therefore subject to those countries’ export controls.
In early August of 2013, the District Court set a deadline of September 27 for the government to file a motion seeking to ascertain the factual and legal basis of the ACCG’s answer to the forfeiture complaint. The Guild then had a month to respond, but on September 29 it filed an amended answer to the forfeiture action addressing some of the government’s concerns.
It took until June 4, 2014 for the court to strike the organization’s answer, and filed a motion almost two weeks later for reconsideration.
On February 3, 2015, Judge Blake denied the motion. It is important to note that the ACCG sees the Customs forfeiture action as a violation of the club’s due process rights under the Fifth Amendment to the Constitution of the United States.
On July 14, 2016, the Guild filed a motion for summary judgment, asking the court to take into consideration expert testimony under European Union law and to once again reconsider the court’s prior rulings regarding the burden of proof based on the ACCG’s due process rights. The government filed its own motion for summary judgment around this same time.
Briefings on the matter were finished by the end of 2016.
A Partial Victory?
In April of this year, Judge Blake made what by this point might be considered a surprise move and ordered the government to return seven Chinese cash coins to the ACCG because the government, in her opinion, could not establish that the 2009 restrictions applied to those specific coins. The remaining 15 Chinese and Cypriot coins were remanded to government custody. These coins appeared on a list of types designated for restriction.
The District Court refused to reconsider its previous rulings and regarded the expert testimony on foreign law as irrelevant.
Oddly, the defendants in the original case, the State Department and U.S. Customs, voluntarily handed the seven Chinese coins back to the Guild on the same day but independently of the judge’s ruling – perhaps rendering the court order legally moot.
But regardless, the ACCG has asked the Fourth Circuit Court of Appeals to overturn the order forfeiting the other 15 coins. The ANA, the IAPN, the PNG, the Committee for Cultural policy, the Association of Dealers and Collectors of Ancient and Ethnographic Art, and the Global Heritage Alliance have all filed amici briefs.
And on September 28, 2017, the organization filed yet another brief arguing due process violations and asking for oral arguments before the court.
So with this primer behind us, CoinWeek will keep you posted on the Ancient Coin Collectors Guild’s progress in the legal system defending your rights to own the coins that you want to own.
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Sources & Notes
 19 U.S.C. § 2601