Friday, February 15, 2013

Small Acorns

From small acorns…. Ancient Coin Collectors on the steps of the Supreme Court
By Wayne G. SaylesAncient Coin Collectors Guild 

Some 50,000 Americans who call themselves Ancient Coin Collectors are hopeful that February 12, 2013 will be remembered by numismatic historians as an auspicious day. Washington bureaucracy broke with law and tradition in 2007 by imposing draconian import restrictions on ordinary coins that are freely and routinely exchanged and collected worldwide, say coin collecting advocates in filed court documents. Under these restrictions, American collectors are now subjected to requirements that they claim are impossible to meet and are extralegal on several counts. “Congress limited restrictions to culturally significant artifacts found in a specific country, but now Americans importing common coins made in a specific country are forced to prove the negative—that their coins have not illegally exited a specified country subsequent to the signing of a bi-lateral agreement between that nation and the United States,” explains Counsel of Record Peter K. Tompa.

Since coins have flowed endlessly across national boundaries, without documentation, for more than two thousand years, collectors argue that it is impossible to say with certainty where any given specimen has been during that time. Literally millions of very common and low value ancient coins lack specific pedigrees of ownership or “provenance” and consequently cannot satisfy the burden of proving a negative. Are these coins all, by default, illicit because it is impossible to say where they were found in modern times? “Not at all,” say collectors who point to a 600-year-old legitimate market that has witnessed a constant and massive flow of ancient coins from every conceivable source country. Many feel that a presumption of guilt has trumped the venerable presumption of innocence that Americans hold dear.

Law enforcement agencies in some third-world countries, and even more prosperous nations, are sometimes unable or unwilling to enforce their own nationalistic cultural property laws. As a result, some objects of ‘national patrimony’ eventually find their way to foreign markets. Under U.S. law, foreign nations may in exceptional cases appeal to the U.S. State Department for emergency assistance through import restrictions. However, a collector group’s lawsuit complains of bureaucratic overkill, where the State Department has reacted capriciously by creating what amounts to broad barriers to trade in all undocumented objects, both licit and illicit, significant and insignificant, that they arbitrarily designate as cultural property at risk. That, collectors feel, is extralegal and ignores the plain language of the law.

By importing a group of unprovenanced Cypriot and Chinese coins from a British dealer in 2009, the non-profit Ancient Coin Collectors Guild (ACCG) set in motion a test case before the U.S. District Court at Baltimore, Maryland to challenge the State Department’s interpretation of law and their actions. After lengthy hearings and deliberation, a trial court dismissed the case claiming that the issue was not one for the courts to decide. Disagreeing with this view, the ACCG appealed that decision to the 4th Circuit Court of Appeals where ultimately the lower court ruling was affirmed. The essence of the ACCG argument is that the governing law does not give unbridled authority and discretion to the President’s representative in the State Department, particularly when another agency, U.S. Customs, is ultimately responsible for the final regulations. They argue that the court should say what the law is and judge whether its provisions were followed in the process of imposing the restrictions being challenged. After almost four years of litigation, no lower court has been willing to take that stand.

Meanwhile, the case has grown from a rather provincial test of bureaucratic agency decision-making to something of far greater consequence. Does the Executive Branch inherit absolute discretion when Congress gives it oversight authority? Even when there are limits and conditions established in the governing legislation? This question has now been posed by Ancient Coin Collectors to the United States Supreme Court in a Petition for a Writ of Certiorari. The potential ramifications are significant and extend well beyond the world of coin collecting. A decision on this question could well set the bar for presidential discretion for years to come. From small acorns do mighty oaks grow.

For additional information contact Wayne G. Sayles, Executive Director, Ancient Coin Collectors Guild at


A person is said to have his day in court when he is given notice to appear and has the opportunity to defend his or her rights, seek relief, or set forth his claims. When someone has had his day in court with reference to a particular matter, that individual will generally be prevented from relitigating the claim in a subsequent action unless grounds exist that warrant an appeal. Legally an organization, such as the ACCG, is treated as a person.

Disagreeing profoundly with the State Department's Cultural Heritage Center's maladministration of US response to the 1970 UNESCO Convention, the Ancient Coin Collectors Guild (ACCG) imported a group of unprovenanced ancient coins in 2009, in order to bring a test case before the U.S. District Court at Baltimore, Maryland challenging the State Department’s interpretation of law and their actions.

The trial court dismissed the case, on grounds that the issue was not one for the courts to decide. The ACCG appealed that decision to the 4th Circuit Court of Appeals, where ultimately the lower court ruling was affirmed. These two decisions had the effect of preventing the ACCG from having its day in court.

In its petition to the Supreme Court, the ACCG made the following pertinent observations:

13. For some twenty-five (25) years, historical coins were exempted from import restrictions imposed under the CPIA. In 2007 and 2009, however, State and CBP changed course and first imposed import restrictions on “coins of Cypriot type and “coins” “from China.” As a result, undocumented ancient Cypriot or Chinese coins became subject to detention, seizure and repatriation as “potentially looted” state property, despite the fact that such coins were, and still are, widely sold worldwide and avidly collected in both Cyprus and China.

14. Subsequent analysis of Freedom of Information Act (“FOIA”) and open source documents raised serious questions whether State and CBP complied with the CPIA in changing existing precedent against import restrictions on coins.  Moreover, CPAC’s former Chairman, Jay Kislak, stated under oath that the State Department authorized import restrictions on Cypriot coins against CPAC’s recommendations, and then misled the Congress and the public about it in a press release and § 2202 (g) (2) report.

15. As a result, the Guild decided to import twenty-three (23) ancient Cypriot and Chinese coins worth $275.00 to test the regulations in court. The commercial invoice that accompanied the coins reflected the seller’s lack of knowledge about the coins’ provenance. While the invoice identified the coins as being minted in either Cyprus or China, it also indicated that each had “No recorded provenance. Find spot unknown.”  Although CBP then seized the coins, the government never instituted a forfeiture action. Accordingly, after waiting some ten (10) months, the Guild followed the direction of this Court in United States v. $8,850, 461 U.S. 555, 569 (1983), and instituted its own action to compel the filing of a forfeiture action or the return of its property.

18. After briefing and oral argument, the district court dismissed this action without allowing any discovery, prompting an appeal. On appeal, the Guild requested that the circuit court uphold three basic principles: (1) that the district court had the authority to review the actions of the Assistant Secretary, ECA under the doctrine of “non-statutory” or ultra vires review; (2) that the district court had the authority under the Administrative Procedure Act (“APA”) to review the “final agency action” of CBP imposing import restrictions on particular types of coins; and (3) that any import restrictions on coins must be written to comply with the plain meaning of the CPIA, so that they are based on the coin’s find spot rather than its place of production. The court of appeals declined to do so, instead holding that anything but the most cursory review of the Federal Register and the district court opinion for procedural compliance “would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries.”

 The Petition for Writ of Certiorari submitted to the Supreme Court is the ACCG's last resort in seeking its "day in court" to defend the vital interests of the Guild and the collectors it represents. The right of a person or organization to have such a day in court is a very fundamental principle of law which, in this observer's opinion, clearly ought to trump all legal technicalities.

 If the Supreme Court does not act to force judicial review of the State Department's maladministration of the 1983 CPIA implementing the 1970 UNESCO Convention, that will leave US citizens interested in collecting ancient and historical coins without any legal recourse to contest bureaucratic oppression.

Such a decision would set a very dangerous precedent: that bureaucrats are effectively "above the law" and that in similar circumstances, they can misuse their authority to issue regulations unfairly and unreasonably depriving citizens of their Constitutional rights, without allowing them any opportunity to have their "day in court."



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