Tuesday, December 18, 2018

ACCG Petitions to the Supreme Court

ACCG Requests Supreme Court to Hear Forfeiture Case

On December 12, 2018, the ACCG asked the U.S. Supreme Court to hear its forfeiture case.  Specifically, the Guild has requested the Supreme Court to consider the following questions for review:


            This case arises from the civil forfeiture of ancient Cypriot and Chinese coins under the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601 et seq. The coins are of types that appear on “designated lists” subject to import restrictions.  Congress limited the reach of such import restrictions to archaeological objects “first discovered within” and “subject to export control by” a specific State Party to the 1970 UNESCO Convention, and further placed the burden of proof on the Government to establish that such designated material was listed in accordance with these criteria.  19 U.S.C. §§ 2601, 2604, 2610. Congress also ensured such import restrictions are entirely prospective.  They only apply to designated archaeological material illicitly exported from the State Party after the effective date of the implementing regulations.  Id. § 2606.  The questions presented are:

1.         Did the courts below violate the Guild’s 5th Amendment Due Process Rights when they authorized the forfeiture of the Guild’s private property without any showing that the Guild’s coins were illicitly exported from Cyprus or China after the effective date of import restrictions?

2.         In a civil forfeiture action implicating the Guild’s 5th Amendment Due Process Rights, did a prior decision upholding import restrictions under a highly deferential ultra vires standard of review “foreclose” consideration of legislative history, judicial admissions, and other  information relevant to the Government’s burden of proof?

The Guild's Petition for Certiorari in its entirety can be found here


The ACCG's long and arduous legal effort to protect the rights of US antiquities collectors against the overreaching bureaucratic machinations of the State Department's Cultural Heritage Center has now reached what may prove to be its final step.

Actually, the ACCG has what in this observer's opinion (since I helped to frame it) is a very good case that would be difficult for the State Department to defend against in court - if the ACCG can ever get its "day in court."

I described the history of the ACCG's challenge in this post to my blog:

Peter Tompa summarized the State Department's thus far successful effort to prevent the ACCG from getting its "day in court" as follows:

"The result, after nine years of litigation, is that the U.S. Court of Appeals for the Fourth Circuit affirmed the original seizure of the coins, and also re-interpreted the plain language of the CPIA, by emphasizing ease of enforcement over due process and the clearly defined legal requirements in the original legislation."

Will the Supreme Court hear this case? The odds are starkly against that. 

Each Term, approximately 7,000-8,000 new cases are filed in the Supreme Court. Plenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each Term, and the Court typically disposes of about 100 or more cases without plenary review.

Approximately 200 cases out of more than 7,000 filed will be acted upon - roughly three per cent of those filed. The Court is primarily interested in the importance of each case, both to legal precedent and to the public interest.

The importance of this case is vastly greater than the small value of the coins that were confiscated, and the relatively small numbers of antiquities collectors whose interests are at stake. There are major issues regarding the principle of the "rule of law" vs. the arbitrary exercise of bureaucratic authority.

The case is still alive - and where there is life there is hope. For the Supreme Court to hear it would definitely be "doing the right thing." But the statistics make it clear that many such "right things" must be left undone for every one that the Court can act upon.


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