Decided: October 22, 2012
The Fourth Circuit Court of Appeals affirmed the district court’s ruling that the U.S. Customs and Border Protection (“CBP”) did not act outside its authority under the Convention on Cultural Property Implementation Act (“CPIA”) by seizing various Chinese and Cypriot coins that were under import restrictions. Furthermore, the government action under the CPIA did not violate the Administrative Procedures Act (“APA”), First, or Fifth Amendments.
The CPIA gives the government a scheme to enforce the U.N. Convention on Cultural Property. The Convention and the CPIA seek to protect cultural property of member States, defined as articles of importance to archaeology, history, art and literature. If a member State makes a request, the State Department and Customs and Border Protection refer the request to a panel of experts to determine what import restrictions are available and what items should have the restrictions. From there, if the panel decides import restrictions are necessary, the United States Information Agency (“USIA”) can take action by putting in place regulations that will restrict the import of cultural property. The CPIA requires notice in the Federal Register that informs importers of the restrictions and a detailed list of the articles restricted. The CPIA also gives the right to a forfeiture proceeding and sets out narrow exceptions around import restrictions. In this case, both China and Cyprus requested import restrictions on various cultural articles. The USIA enforced import restrictions on numerous articles, including coins. The government followed all notice provisions in the CPIA. The Ancient Coin Collector’s Guild attempted to import certain Cypriot and Chinese coins, which were seized by Customs and Border Protection. Before the government started forfeiture proceedings, the Guild brought an action challenging the seizure on the grounds the government acted ultra vires, violated the APA, and violated the First and Fifth Amendments. The district court found that the government acted within its power under the CPIA, that the State department, USIA, and CBP were exempt from the APA as an extension of the State department and not an “agency” under the APA, that the First Amendment was not violated because the action fell under the United States v. O’ Brien exception, and the Fifth Amendment was not violated by a delay in bringing forfeiture proceedings.
The Fourth Circuit agreed, stating that the government’s import restrictions conformed to the procedural requirements of the CPIA. Furthermore, the Court felt that it could not read any more additional requirements into the Act because it would involve the judiciary into a sensitive area of international relations best left to the Executive Branch and Congressional oversight. The Court wanted to preserve the balance that Congress sought to maintain between the need for notice and transparency and for confidentiality in diplomacy by not requiring more stringent restrictions on the notice requirements in the act. In turning to the APA claim, the Court stated that CBP was just enacting restrictions under the procedure in the CPIA and if Congress wanted to it could reject the restrictions or amend the law to provide a more detailed procedure. Finally, the Fifth Amendment claim was without merit due to the availability of a forfeiture procedure, which puts the burden on the government to prove the coins were restricted under the CPIA and has available exceptions to an import restriction.
-Jonathan M. Riddle