United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2578
                        ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                              Mask of Ka-Nefer-Nefer

                     lllllllllllllllllllll Defendant - Appellee

Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District
             of the City of St. Louis and the County of St. Louis

                        lllllllllllllllllllllClaimant - Appellee
                                      ____________

                    Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                            Submitted: January 13, 2014
                               Filed: June 12, 2014
                                 ____________

Before LOKEN, MURPHY, and SMITH, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.
       The issue raised on this appeal is whether the district court1 abused its
discretion in denying the government’s post-dismissal motion for leave to file an
amended civil forfeiture complaint. Underlying that issue is an attempt to expand the
government’s forfeiture powers at the likely expense of museums and other good faith
purchasers in the international marketplace for ancient artifacts. We affirm the
district court’s procedural ruling and therefore leave this important substantive issue
for another day.

                                           I.

       The district court dismissed the government’s forfeiture complaint for failure
to state a claim, so we are limited to the pleaded facts. The government’s notice of
appeal included the district court’s Order of Dismissal, but the Statement of the Issue
section of the government’s brief stated that the only issue on appeal is whether the
court abused its discretion in denying a post-dismissal motion for leave to file an
amended complaint. The Statement in the brief is controlling. See F.R.A.P. 28(a)(5);
Solomon v. Petray, 

, 1037 n.2 (8th Cir. 2012). Therefore, the appeal
of the Order of Dismissal has been waived, and we need not be concerned about the
truth of the pleaded facts.

       The forfeiture complaint alleged that the Mask of Ka-Nefer-Nefer is a 3,200-
year-old Egyptian mummy cartonnage discovered in 1952 by an archeologist working
for the Egyptian government and registered as government property. The Mask was
housed in a storage facility in Saqqara, Egypt, until 1959, when it was sent to the
Egyptian Museum in Cairo for use with an exhibit in Tokyo, Japan. The Mask never
went to Japan, instead returning to Saqqara in 1962. In 1966, a box containing the
Mask and other artifacts was sent to a restoration lab in Cairo to prepare the artifacts


      1
        The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

                                          -2-
for display. When the Egyptian Museum in Cairo inventoried the box’s contents in
1973, the Mask was gone. The Egyptian government’s register of antiquities showed
no transfer to a private party between 1966, when the Mask was last seen, and 1973.
In 2006, the Egyptian government learned that the Art Museum Subdistrict of the
Metropolitan Zoological Park and Museum District of the City and County of St.
Louis (the “Museum”) purchased the Mask in 1998. The Museum refused the
Egyptian government’s repeated requests to return the Mask.

        At a January 2011 meeting with Museum attorneys, representatives of the
United States threatened to bring a forfeiture proceeding against the Mask unless the
Museum voluntarily surrendered it. The Museum responded by filing a declaratory
judgment action in the Eastern District of Missouri. Reciting the Museum’s
conflicting version of the historical facts, and asserting that any forfeiture claim
would be time-barred by the applicable statute of limitations in 19 U.S.C. § 1621, the
Museum sought a declaration that the Mask is not subject to forfeiture. The Art
Museum Subdist. of the Metro. Zoological Park & Museum Dist. of St. Louis v.
United States, No. 4:11-cv-00291 (E.D. Mo. filed Feb. 15, 2011). The United States
rejoined on March 16, filing a motion to stay the Museum’s declaratory action and
a verified civil forfeiture complaint under 19 U.S.C. § 1595a(c). Part of the Tariff
Act of 1930, this statute now provides, in relevant part: “Merchandise which is
introduced or attempted to be introduced into the United States contrary to law shall
be . . . (1) . . . seized and forfeited if it -- (A) is stolen, smuggled, or clandestinely
imported or introduced.” The district court granted the government’s motion to stay
the Museum’s declaratory judgment action pending resolution of the forfeiture case.

       The forfeiture complaint alleged that the Mask was “missing” after 1966
because it had been stolen and smuggled out of Egypt. “Because the Mask was
stolen,” the complaint concluded, “it could not have been lawfully exported from
Egypt or lawfully imported into the United States.” The Museum filed a timely claim
that it owned the Mask and moved to dismiss the complaint for failure to state a

                                           -3-
claim, alleging that the government’s complaint lacked facts supporting the claim
with the detail required by Supplemental Rules E(2)(a) and G(2)(f) to the Federal
Rules of Civil Procedure, which govern civil forfeiture actions.2 Specifically, the
Museum argued, the complaint failed to allege detailed facts showing that “the Mask
was stolen” and that it had been introduced into the United States “contrary to law.”
In a June 2011 Memorandum in Opposition, the government responded that its
complaint need only plead “facts [that] provide probable cause3 to believe that the
Mask was stolen from Cairo, and that therefore its importation into the United States
in 1998 was in violation of 19 U.S.C. § 1595a.”

       More than one year after the forfeiture complaint was filed, the district court
granted the Museum’s motion to dismiss. United States v. Mask of Ka-Nefer-Nefer,
No. 4:11CV504, 

(E.D. Mo. Mar. 31, 2012). The memorandum
opinion explained that the complaint’s “one bold assertion that because something
went missing from one party in 1973 and turned up with another party in 1998, it was
therefore stolen and/or imported or exported illegally” did not plead sufficiently
detailed facts showing (1) that the Mask was “stolen, smuggled, or clandestinely
imported or introduced” into the United States, and (2) “facts related to some
predicate unlawful offense, presumably a law with some ‘nexus’ to international

      2
        Supp. Rule E(2)(a) provides that a civil forfeiture complaint “shall state the
circumstances from which the claim arises with such particularity that the . . .
claimant will be able, without moving for a more definite statement, to commence an
investigation of the facts and to frame a responsive pleading.” Rule G(2)(f) provides
that the complaint must “state sufficiently detailed facts to support a reasonable belief
that the government will be able to meet its burden of proof at trial.”
      3
        In civil forfeiture actions under the customs laws in Title 19, if the government
shows probable cause that the property is subject to forfeiture, the claimant has the
burden to prove it is not. See 19 U.S.C. § 1615; United States v. Davis, 

,
95-96 (2d Cir. 2011). Congress gave claimants a more favorable burden of proof in
the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), but excluded Title 19
forfeiture provisions from that reform. See 18 U.S.C. § 983(i)(2)(A).

                                          -4-
commerce from which the Title 19 customs regulation arises.” The court cited Davis,
a decision in which the Second Circuit discussed “The Meaning of ‘Contrary to
Law’” in 19 U.S.C. § 

.

      On April 6, the government filed a Motion for Enlargement of Time To File
Motion for Reconsideration and/or To Seek Leave To File Amended Complaint Prior
to Entry of Judgment. The government asserted that it would move to reconsider
because the court’s Order dismissed only the complaint and not the underlying action
but would also seek relief under Rules 59(e) and 60(b)(6) if the court “construes its
Order as . . . a dismissal of the ‘action.’” In a docket text order entered April 10, the
court granted the government “until 5-7-12 to file what it suggests is a motion to
reconsider.” The text notice stated: “WARNING: CASE CLOSED on 3/31/2012.”4

        On May 7, the government filed its motion to reconsider, arguing that the court
had misunderstood the pleading standard governing civil forfeiture actions under 19
U.S.C. § 1595a(c)(1)(A). The Memorandum in Support more fully disclosed the
litigation strategy underlying the bare-bones forfeiture complaint. Citing the statute’s
“plain text” but no supporting case law, the government asserted: “Section 1595a
itself prohibits the importation of stolen property into the United States, regardless


      4
        On appeal, the government repeatedly complains that the district court’s
failure to clarify whether its March 31 dismissal was a final order justified the
government’s delay in moving for leave to amend. We disagree. The court’s April
10 docket order expressly stated, “CASE CLOSED on 3/31/2012.” Government
counsel simply was not paying attention. Moreover, we ruled many years ago that,
unless leave to amend is explicitly granted in a dismissal order, “the dismissal is a
final, appealable order.” Quartana v. Utterback, 

, 1299 (8th Cir. 1986).
This rule was reinforced by the 2009 amendment to Rule 15(a)(1)(B), which limited
a party’s time to amend its pleading as of right to “21 days after service of a motion
under rule 12(b).” The Advisory Committee Notes explained, “This provision will
force the pleader to consider carefully and promptly the wisdom of amending to meet
the arguments in the motion.” Again, government counsel was not paying attention.

                                          -5-
of whether any other law has been violated in the process of importation.” The
Memorandum explained away Davis and other earlier contrary decisions as reflecting
assumptions made by those courts based on burdens of proof “the government may
have assumed” in those cases. That explanation may fit some of the opinions, but it
does not fit all the § 1595a precedents we have found. See United States v. 57,261
Items of Drug Paraphernalia, 

, 956 (6th Cir.) (Customs agents “made the
seizure under the remedial provisions for civil forfeiture found in . . . 19 U.S.C.
§ 1595a(c) . . . in combination with . . . the 1986 statute making it ‘unlawful for any
person . . . to import or export drug paraphernalia”), cert. denied, 

(1989);5 United States v. One 1970 Ford Pick-Up Truck, 

, 370 (N.D.
Ohio 1981) (“The government . . . had the burden of showing . . . probable cause to
believe the goods were introduced into the United States contrary to law. This the
government did, with evidence . . . the [bonded] containers were broken into.”).

       The significance of this issue seems quite clear. The “stolen merchandise”
subsection, § 1595a(c)(1)(A), was added by a 1993 amendment. In the reported cases
we have found where the government sought forfeiture under this subsection, the
claim has been that importation of the stolen merchandise violated the National
Stolen Property Act (“NSPA”), 18 U.S.C. §§ 2314, 2315, see, e.g., United States v.
A 10th Cent. Cambodian Sandstone Sculpture, No. 12 Civ. 2600, 

at *6 (S.D.N.Y. Mar. 28, 2013), or Customs statutes that criminalize the smuggling
of merchandise into this country, see 18 U.S.C. §§ 542, 545; United States v.
Broadening-Info Ents., 462 F. App’x 93, 96 (2d Cir. 2012). In Davis, the Second
Circuit held that the NSPA had the requisite nexus to international commerce to
suffice “as a basis for [the government’s] invocation of Section 

. A violation of the NSPA requires proof that valuable merchandise was
transported in foreign commerce “knowing the same to have been stolen, converted


      5
      Overruled in part on other grounds, Posters ‘N’ Things, Ltd. v. United States,

, 518-19 (1994).

                                         -6-
or taken by fraud.” § 2314. In United States v. Portrait of Wally, 

, 269 (S.D.N.Y 2009), the government was denied summary judgment on its
§ 1595a claim, despite sufficient evidence that the painting was stolen, because the
court found that whether “the Museum imported Wally into the United States knowing
it was either stolen or converted” was a genuine issue of disputed fact. Although the
government has been granted summary judgment on this issue in other cases,6 the
stand-alone interpretation of the “contrary to law” element urged in this case, if
adopted, would greatly enhance the government’s forfeiture power under § 1595a,
without any clear basis in the statute’s text for this enhancement. The issue may be
unresolved, but precedent and past practice do not favor the government’s position.7

       The government’s motion to reconsider did not cite an applicable Federal Rule
-- a dangerous omission -- and again requested that the Court grant “an opportunity
before entry of judgment to move for leave to file an amended complaint.” On May
23, the government filed a now-frivolous motion to clarify whether the March 31
Order was a final order, requesting an extension of time to appeal if it was. The
district court denied the motion to reconsider on June 1. Reciting the standards
governing Rule 59(e) motions, the court concluded the government offered “nothing
new” and identified no “severe mistake” in the original decision. The court denied
the motion to clarify and granted an extension of time to appeal to July 1, 2012.



      6
       See United States v. An Antique Platter of Gold, 

, 231-32
(S.D.N.Y. 1997), aff’d on other grounds, 

, 134 (2d Cir. 1999), cert.
denied, 

(2000).
      7
       Particularly in light of the congressional attitude reflected in CAFRA, the
Executive Branch should anticipate judicial resistance to expansion of the “punitive
and remedial jurisprudence” that has long permitted forfeiture of property acquired
by non-culpable parties. See Union Pac. R.R. v. U.S. Dep’t of Homeland Sec., 

, 894 (8th Cir. 2013), noting the views on this question expressed in the four
separate opinions in Bennis v. Michigan, 

(1996).

                                         -7-
       On June 8, the government for the first time filed a motion for leave to amend
its complaint and a proposed amended complaint, citing Rules 15(a)(2), 59(e), and
60(b)(1). The amended complaint contained a number of new factual allegations
purporting to cure the defects in its prior complaint relating to the “is stolen” and
“contrary to law” elements of a forfeiture claim under 19 U.S.C. § 1595a. On June
28, the court denied the motion for the reasons stated in its March 31 and June 1
Orders. The government timely filed its notice of appeal on June 29.

                                           II.

       A. The government asserts in the Argument section of its brief that the district
court departed from “typical practice” when it dismissed the complaint without
inviting the government to amend. This is an attack on the March 31 Order of
Dismissal that was not included in the Statement of the Issue on appeal. In any event,
whatever may be “typical” in other jurisdictions, Eighth Circuit law has long been to
the contrary. In Wolgin v. Simon, for example, where plaintiff requested leave to
amend if the court granted defendants’ motion to dismiss, we held “that to preserve
the right to amend a complaint a party must submit a proposed amendment along with
its motion.” 

, 395 (8th Cir. 1983). Later decisions have stated,
logically, that a district court in granting a motion to dismiss is not obliged to invite
a motion for leave to amend if plaintiff did not file one. See Drobnak v. Andersen
Corp., 

, 787 (8th Cir. 2009); Carlson v. Hyundai Motor Co., 

, 1162 (8th Cir. 1999). Here, the government failed to request leave to amend
in the eleven months between the Museum’s motion to dismiss and the court’s Order
of Dismissal, choosing instead to stand on and defend its original complaint. The
district court had no reason to question that litigation strategy.

       B. Turning to the post-judgment motion for leave to file an amended
complaint, it is well-settled that plaintiffs “remain free where dismissal orders do not
grant leave to amend to seek vacation of the judgment under Rules 59 and 60[b] and

                                          -8-
offer an amended complaint in place of the dismissed complaint.” 

. But it is also well-settled that “district courts in this circuit have
considerable discretion to deny a [timely] post-judgment motion for leave to amend
because such motions are disfavored, but may not ignore the Rule 15(a)(2)
considerations that favor affording parties an opportunity to test their claims on the
merits.” United States ex rel. Roop v. Hypoguard USA, Inc., 

, 823-24
(8th Cir. 2009). Leave to amend will be granted if it is consistent with the stringent
standards governing the grant of Rule 59(e) and Rule 60(b) relief . See Dorn v. State
Bank of Stella, 

, 443-44 (8th Cir. 1985); Acevedo-Villalobos v.
Hernandez, 

, 389 (1st Cir.), cert. denied, 

(1994).

       Although the government’s motion for leave to amend cited both Rule 59(e)
and Rule 60(b), the Rule 59(e) motion was untimely. Rule 59(e) provides that the
motion must be filed within twenty-eight days of “the entry of the judgment” it
challenges. Here, the government asserted that its June 8 motion for leave to amend
was timely under Rule 59(e) because its prior Rule 59(e) motion to reconsider
extended the 28-day time period. We need not consider that question of “tolling”
because the government filed its motion to reconsider on May 7, thirty-five days after
entry of the Order of Dismissal. Rule 59(e)’s 28-day time limit may not be extended.
See Rule 6(b)(2). Therefore, the district court’s grant of an extension to May 7 was
a nullity, and no timely Rule 59(e) motion was ever filed. As a district court lacks
jurisdiction over an untimely Rule 59(e) motion, that rule could not support the
government’s motion for leave to amend. See Reyher v. Champion Int’l Corp., 

, 489 (8th Cir. 1992).

        A district court has discretion under Rule 60(b) to grant post-judgment leave
to file an amended complaint if the motion is “made within a reasonable time,” Rule
60(c)(1), and the moving party shows “exceptional circumstances” warranting
“extraordinary relief.” United States v. Young, 

, 806 (8th Cir. 1986),
cert. denied, 

(1987). We review the district court’s denial of leave to

                                         -9-
amend under Rule 60(b) for abuse of discretion. See Horras v. Am. Capital
Strategies, Ltd., 

, 804 (8th Cir. 2013), cert. denied, 

(2014); 

. “Rule 60(b) was not intended as a substitute for a
direct appeal from an erroneous judgment.” Spinar v. S.D. Bd. of Regents, 

, 1062 (8th Cir. 1986) (quotation omitted). Thus, the proper recourse when the
government disagreed with the district court’s interpretation of the “is stolen” and
“contrary to law” terms of the statute was a direct appeal, not a Rule 60(b) motion.8

       We have recognized that the normal standards for granting Rule 60(b)(1) relief
“seem ill-suited” to determining when a plaintiff whose complaint has been dismissed
“should be permitted, post-judgment, to try again.” 

. The
tension is reflected in seemingly inconsistent opinions regarding the relevance of a
plaintiff’s delay in seeking leave to amend. Numerous cases have ruled that
“[u]nexcused delay is sufficient to justify the court’s denial if the party is seeking to
amend the pleadings after the district court has dismissed the claims it seeks to
amend, particularly when the plaintiff was put on notice of the need to change the
pleadings before the complaint was dismissed, but failed to do so.” 

, quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 

, 1065 (8th Cir. 2005); see Hammer v. City of Osage Beach, 

, 844
(8th Cir. 2003); In re NationsMart Corp. Sec. Litig., 

, 322-23 (8th Cir.
1997), cert. denied, 

(1998). That rule applies here. The government
knew many months prior to the Order of Dismissal of the possible need to amend its
pleading and elected to “stand or fall” on its untested legal theory. The government
then spent another three months after the Order of Dismissal was entered urging the
court to reconsider its interpretation of the statute before finally deciding it would
attempt to plead around the interpretive problem, rather than appeal this legal issue.


      8
       Even if the government preserved an appeal of the Order of Dismissal in
arguing that the district court erred in not inviting leave to amend, the government did
not argue these important statutory issues, so they are forfeited in this case.

                                          -10-
In these circumstances, denial of leave to amend was hardly an abuse of the district
court’s substantial post-judgment discretion. See, e.g., 

-
23.

       On the other hand, other cases have stated that a plaintiff’s non-prejudicial
delay in seeking post-dismissal leave to amend is not sufficient reason to deny leave
to add a legal theory or an additional defendant, or to cure a jurisdictional defect. See
Roberson v. Hayti Police Dep’t, 

, 993-94, 995-96 (8th Cir. 2001);
Sanders v. Clemco Indus., 

, 216-17 (8th Cir. 1987); Buder v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 

, 691-92, 694 (8th Cir. 1981).
Although the opinions were broadly worded, these cases all presented situations
where the amendment was needed to afford plaintiff “an opportunity to test his claim
on the merits.” Foman v. Davis, 

, 182 (1962). Here, by contrast, the
Museum’s declaratory judgment action is still pending. While the government’s
procedural intransigence caused the dismissal of the procedure it preferred, the
district court could reasonably assume that the Museum’s claim in that parallel action
will provide an opportunity to “test the merits” of whether the Mask is subject to
forfeiture under 19 U.S.C. § 1595a.

       Finally, the government argues that the district court’s “denial of the motion
for leave to amend without explanation constituted a clear abuse of discretion,” citing

(“outright refusal to grant the leave without any justifying
reason appearing for the denial is not an exercise of discretion”). Here, of course, the
district court did give a reason, denying leave to amend for the reasons stated in its
prior orders. Our review of the proposed amended complaint confirms the basis for
this ruling. Paragraph 99 of that proposed pleading alleged that importation of the
Mask violated eight different federal, state, and foreign laws, including § 1595a and
the NSPA, “[t]o the extent that it is necessary to independently establish the existence
of a predicate offense.” By no stretch of the imagination would some of the cited
laws have the “nexus to international commerce” that the Order of Dismissal required

                                          -11-
as a matter of law. In other words, the government in the proposed amended
complaint continued to plead a claim that did not require proof the Mask was
“introduced into the United States contrary to law,” only proof that, at some time in
the distant past, it was “stolen.” Thus, as in Roop, the district court did not abuse its
discretion in denying leave to amend because the proposed amended complaint “did
not cure the . . . deficiencies in the initial 

.

      We affirm the orders of the district court and grant the Museum’s motion to
supplement the record on appeal.

MURPHY, Circuit Judge, concurring.

        I concur in the court's opinion but write separately to express my concern about
what the record in this case reveals about the illicit trade in antiquities. The
government's motion was untimely under Rule 59(e), and I agree that the district
court did not abuse its discretion by denying post judgment relief under Rule 60(b).
The government was dilatory and failed to demonstrate "exceptional circumstances"
at this point of the case, United States v. Young, 

, 806 (8th Cir. 1986),
while the museum's declaratory judgment action is pending.

      The substantive issues underlying this litigation are of great significance, and
not only to museums which responsibly seek to build their collections. The theft of
cultural patrimony and its trade on the black market for stolen antiquities present
concerns of international import. These issues affect governments and the
international art and antiquities markets, as well as those who seek to safeguard
global cultural heritage. Because of such concerns the United States has elsewhere
brought multiple civil forfeiture actions against what have been identified as stolen
antiquities and works of art. See, e.g.,United States v. An Antique Platter of Gold,

, 134 (2d Cir. 1999) (in rem civil forfeiture action brought in 1995).



                                          -12-
       In this matter the United States attempted to bring its claim under 19 U.S.C.
§ 1595a without pleading a violation of any other statute such as the National Stolen
Property Act (NSPA), 18 U.S.C. § 2314, and thus avoiding the NSPA's knowledge
requirement. The government has successfully used civil forfeiture in the past to
recover an object of cultural relevance without pleading a violation of a "predicate"
statute. See United States v. One Lucite Ball Containing Lunar Material, 252 F.
Supp. 2d 1367, 1379 (S.D. Fla. 2003) (government met probable cause burden that
moon rock was "stolen" under § 1595a(c) by demonstrating that Honduras had title
and had not authorized transfer, even though the rock had been brought into the
United States). Here, the government pled in its proposed amended complaint that
the dealers and the Saint Louis Art Museum "knew or were willfully blind" to facts
including the Mask's ownership by Egypt, ineligibility for private ownership, and lack
of a proper license.9

      Even good faith purchasers of art and ancient artifacts are required to be
conscientious regarding provenance. As the Second Circuit noted in United States
v. Davis, the "innocent owner" defense of the Civil Asset Forfeiture Reform Act
(CAFRA) is not available to claimants under § 1595a. 

, 93–95 (2d Cir.
2011). The drafters of CAFRA made the deliberate decision to exclude such
claimants from such a defense. The nature of civil forfeiture under § 1595a is that
even innocent owners may have to forfeit their property. 

CAFRA's drafters
similarly exempted customs actions from that law's more claimant friendly burden of
proof. 

      In Davis, the Second Circuit assumed without deciding that a nexus to
international commerce is required in a civil forfeiture action under § 1595a. Noting


      9
       The mask was sold to the museum in 1998 by Phoenix Ancient Art, S.A. The
proposed amended complaint alleges that the owners, Ali and Hicham Aboutaam,
were each convicted in 2004 of smuggling ancient artifacts.

                                        -13-
the strength of a literal interpretation of the statute, the court also recognized a
"strong argument" that § 1595a(c)'s contrary to law language "means exactly what it
says: the government may seize and forfeit merchandise that is introduced into the
United States illegally, unlawfully, or in a manner conflicting with established law,
regardless of whether the law violated relates to customs enforcement." 

. As the court acknowledges in this case, the NSPA provides a sufficient
nexus to international commerce. See 

. I therefore do not agree
that the government failed to cure its prior complaint's deficiencies by listing other
statutes as well as the NSPA in its amended complaint.

       While this case turns on a procedural issue, courts are bound to recognize that
the illicit sale of antiquities poses a continuing threat to the preservation of the
world's international cultural heritage. Museums and other participants in the
international market for art and antiquities need to exercise caution and care in their
dealings in order to protect this heritage and to understand that the United States
might ultimately be able to recover such purchases.
                         ______________________________




                                         -14-