CATHERINE C. BLAKE, District Judge.
This action arises out of the seizure of twenty-three ancient Cypriot and Chinese coins that the Ancient Coin Collectors Guild ("ACCG") purchased from a coin dealer in London and imported to the United States. Following the seizure, ACCG filed this action "to test the legality" of import restrictions imposed on certain ancient Cypriot and Chinese coins. ACCG sued the U.S. Customs and Border Protection ("Customs"), the Commissioner of Customs and Border Protection ("Commissioner of Customs" or "Commissioner"), the U.S. Department of State ("State"), and the Assistant Secretary of State for Educational and Cultural Affairs ("Assistant Secretary for ECA") (collectively, "the defendants" or "the government"), alleging violations of the Administrative Procedure Act ("APA"), the International Emergency Economic Powers Act ("IEEPA"), the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), and the First and Fifth Amendments to the U.S. Constitution. ACCG also alleges that the defendant acted "ultra vires," and seeks relief in the form of a declaratory judgment, an injunction, and a writ of mandamus. Pending before this court is a motion to dismiss or, in the alternative, for summary judgment, filed by the defendants. For the reasons discussed below, the government's motion will be granted.
Table of Contents
I. Background ................................................................................................. 388
A. The Cultural Property Convention and the CPIA ........................................................... 388
B. The import restrictions on Cypriot coins ................................................................ 392
C. The import restrictions on Chinese coins ................................................................ 393
D. The importation and seizure of ACCG's coins ............................................................. 394
E. ACCG's concurrent FOIA action ........................................................................... 395
F. This lawsuit............................................................................................. 395
II. Subject Matter Jurisdiction ................................................................................ 396
III. Standard of Review ......................................................................................... 399
IV. ACCG's challenge to the import restrictions ................................................................ 399
A. Judicial Review of State Department Actions ............................................................. 401
1. APA Review ........................................................................................... 401
2. Ultra vires review ................................................................................... 405
i. The "first discovered" requirement................................................................. 406
ii. Chinese request for import restrictions ........................................................... 409
iii. ACCG's other ultra vires claims ................................................................... 410
3. Constitutional review ................................................................................ 411
B. Judicial Review of Customs Actions ...................................................................... 413
1. APA Review ........................................................................................... 413
2. Ultra vires review ................................................................................... 414
3. Constitutional review ................................................................................ 414
i. Delay in filing forfeiture action ................................................................ 414
ii. "Watch list" claim................................................................................ 416
4. CAFRA ................................................................................................ 417
5. Mandamus ............................................................................................. 418
V. Conclusion ................................................................................................. 418
In 1970, the United States became a signatory to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (the "Cultural Property Convention" or "Convention"), November 14, 1970, 823 U.N.T.S. 231. Article 9 of the Convention provides:
The Senate gave its unanimous advice and consent to the Convention in 1972, subject to one reservation and six understandings. See 118 Cong. Rec. 27,924-25 (1972) (ratifying the Convention but reserving the right "to determine whether or not to impose export controls over cultural property"). As a non-self-executing treaty, the Convention required implementing legislation before it became enforceable U.S. law. Congress enacted such legislation through the Convention on Cultural Property Implementation Act (CPIA) in 1983. Pub.L. 97-446, Title III 96 Stat. 2350 (1983) (codified at 19 U.S.C. § 2601 et seq.).
The CPIA, among other things, defined the term "archaeological or ethnological materials," which the Convention left undefined, thereby specifying which types of material may be subject to U.S. import restrictions:
The term "archaeological or ethnological material of the State Party" means—,
19 U.S.C. § 2601(2). The regulations at issue here treat ancient coins as objects "of archaeological interest," and ACCG does not dispute this characterization. Accordingly, an ancient coin or category of coins may be subject to an import restriction only if it "(I) is of cultural significance; (II) is at least two hundred and fifty years old; and (III) was normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water." Id. § 2601(2)(i).
The CPIA also established a mechanism through which the U.S. would comply with its obligations under Article 9 of the Convention. That mechanism is triggered when a state party to the Convention requests that the U.S. impose measures under Article 9 to protect the requesting country's "cultural patrimony." 19 U.S.C. § 2602(a)(1). Upon receiving such a request, the President must (1) publish notification of the request in the Federal Register and (2) submit to the Cultural Property Advisory Committee (CPAC) "such information ... as is appropriate to enable the Committee to carry out its duties." Id. § 2602(f)(1)-(2). The CPAC, which was established by the CPIA, is a committee of eleven individuals, including two persons "representing the interests of museums," three "experts in the fields of archaeology, anthropology, ethnology, or
Id. § 2605(f)(1). If the CPAC recommends that the President enter into an agreement to implement Article 9 (an "Article 9 agreement"), its report must also set forth
Id. § 2605(f)(4). The CPAC must then submit its report to the President and to Congress. Id. §§ 2605(f)(6); 2602(f)(3)(B).
Upon receiving the CPAC report, the President "determines" whether the requirements of 19 U.S.C. § 2602(a)(1) have been met. Those requirements are the following:
Id. § 2602(a)(1). In making those determinations, the President must "consider... [the CPAC's] views and recommendations." Id. § 2602(f)(3). The President must then also determine whether other countries with a "significant import trade" in the affected materials would apply import restrictions "in concert" with the United States (or that such restrictions "are not essential to deter a serious situation of pillage"). Id. § 2602(c). If these requirements have been met, then the President may enter into an Article 9 agreement with the requesting state party. Id. § 2602(a)(2). The Article 9 agreement must designate which "archaeological or ethnological material" will be protected by
After the agreement enters into force, the CPIA requires that the Secretary of the Treasury, in consultation with the Director of the United States Information Agency, "promulgate (and when appropriate shall revise) a list of the archaeological or ethnological material of the State Party covered by the agreement." Id. § 2604. Each listing must be "sufficiently specific and precise to insure that (1) the import restrictions under section 307 are applied only to the archaeological and ethnological material covered by the agreement or emergency action; and (2) fair notice is given to importers and other persons as to what material is subject to such restrictions." Id.; see also id. § 2601(7)(B) (providing that materials are not "designated archaeological or ethnological material"—and thus cannot be subject to import restrictions, see id. § 2606(a)—until they are "listed by regulation under [§ 2604]").
Once the Secretary of the Treasury promulgates a list of the designated materials, then the materials may not be imported into the United States unless "the State Party issues a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party," id. § 2606(a), or if the importer provides "satisfactory evidence that such material was exported from the State Party"
Id. § 2606(b). If Customs discovers materials being imported in violation of CPIA import restrictions, it "shall refuse to release the material ... until such documentation or evidence is filed." Id. "If such documentation or evidence is not presented within ninety days after the date on which such material is refused release from customs custody, or such longer period as may be allowed by the Secretary for good cause shown, the material shall be subject to seizure and forfeiture." Id.
In addition, the CPIA authorizes the President, without negotiating an Article 9 agreement, to impose temporary import restrictions if the President determines that any of the following "emergency condition[s]" applies:
19 U.S.C. § 2603(a), and if the implementation of import restrictions "on a
Finally, the CPIA imposes an additional reporting requirement on the President. Upon entering an Article 9 agreement or imposing emergency import restrictions, the President must submit a report to Congress with a description of the action, differences (if any) between such action and the recommendations of the CPAC, and the reasons for those differences. Id. § 2602(g).
After Congress enacted the CPIA, President Reagan delegated his responsibilities under the statute to three officials: the Secretary of State, the Secretary of the Treasury, and the Director of the United States Information Agency (USIA). See Exec. Order No. 12,555, 51 Fed.Reg. 8475 (Mar. 10, 1986). The Secretary of State was responsible for negotiating Article 9 agreements and developing reports for Congress; the Secretary of the Treasury was responsible for imposing emergency import restrictions and suspending non-emergency import restrictions; the Director of the USIA was responsible for deciding whether to enter, extend and/or suspend Article 9 agreements or impose emergency import restrictions, as well as making the factual determinations underlying those decisions, publishing notice of Article 9 requests, submitting information to the CPAC and receiving its reports, and deciding whether particular CPAC proceedings should be publicized. Id. The President did not reserve any authority over imposition of import restrictions under the CPIA. See id.; cf. Sisseton-Wahpeton Oyate v. U.S. Dept. of State, 659 F.Supp.2d 1071, 1082 (D.S.D.2009) (describing Executive Order 13337, 69 Fed. Reg. 25,299 (April 30, 2004), which reserved with the President the authority to determine whether to issue a presidential permit for a cross-border oil pipeline in the event any of certain designated officials were to disagree with the initial determination made by the Secretary of State). In 1998, § 1312(a) of the Foreign Affairs Agencies Consolidation Act of 1998 transferred all functions of the Director of the USIA to the Secretary of State. Pub.L. 105-277, Div. G, Subdiv. A (codified at 22 U.S.C. § 6532). In 1999, Secretary of State Albright delegated her authority under Executive Order 12,555 to the Under Secretary of State for Public Diplomacy and Public Affairs. See Department of State Delegation of Authority No. 234, 64 Fed.Reg. 56,014 (Oct. 15, 1999), § 1(a)(6). In 2000, the Under Secretary delegated that authority, including the authority to make the necessary threshold determinations under 19 U.S.C. §§ 2602 and 2603, to the Assistant Secretary for ECA. Department of State Delegation of Authority No. 236-3, 65 Fed.Reg. 53,795 (Aug. 28, 2000). In 2003, the President withdrew the CPIA authority that had been delegated to the Secretary of the Treasury, and transferred that authority to the Secretary of Homeland Security. Exec. Order No. 13,296 § 44, 68 Fed.Reg. 10,618, 10,627 (Mar. 5, 2003). The authority of the Secretary of Homeland Security under the CPIA is delegated to Customs and Border Protection. Thus, as of March 2003, the President's authority under the CPIA was held by the Secretary of Homeland Security and the Assistant Secretary for ECA.
On September 4, 1998, the USIA received a request from Cyprus that the U.S. impose import restrictions on certain Byzantine ethnological material from Cyprus. See Notice of Receipt of Cultural Property Request From the Government of the Republic of Cyprus, 63 Fed.Reg. 49,154 (Sept. 14, 1998). Pursuant to the emergency provisions of the CPIA, the U.S. Customs Service imposed emergency import restrictions on "[e]cclesiastical and ritual ethnological material from Cyprus representing the Byzantine period dating from approximately the 4th century A.D. through the 15th century A.D." Import Restrictions Imposed On Byzantine Ecclesiastical and Ritual Ethnological Material from Cyprus, 64 Fed.Reg. 17,529, 17,530 (April 12, 1999). In 2002, following bilateral negotiations between the United States and Cyprus, the two countries entered into a Memorandum of Understanding pursuant to Article 9 of the Cultural Property Convention ("2002 Cyprus MOU"). See Import Restrictions Imposed On Pre-Classical and Classical Archaeological Material Originating in Cyprus, 67 Fed.Reg. 47,447 (July 19, 2002). In 2003, the President extended the emergency import restrictions that had originally been imposed in 1999. See Extension of Emergency Import Restrictions Imposed on Ethnological Material from Cyprus, 68 Fed.Reg. 51,903 (Aug. 29, 2003). In August 2006, the U.S. and Cyprus amended the 2002 MOU to include the materials protected by the emergency restrictions. See Import Restrictions on Byzantine Ecclesiastical and Ritual Ethnological Material from Cyprus, 71 Fed.Reg. 51,724 (Aug. 31, 2006). None of these Cypriot import restrictions applied to coins.
In December 2006, the State Department announced that Cyprus had requested an extension of the 2002 MOU. See Notice of Proposal, 71 Fed.Reg. 71,015 (Dec. 7, 2006).
Id. at 38,473. The restriction on the importation of designated Cypriot coins went into effect on July 16, 2007. Id. at 38,470.
On May 27, 2004, the State Department received a request from China pursuant to Article 9 of the Convention that the U.S. impose import restrictions on Chinese archaeological material from the Paleolithic period to the Qing Dynasty. See Notice of Receipt of Cultural Property Request from the Government of the People's Republic of China, 69 Fed.Reg. 53,970 (Sept. 3, 2004). In July 2005, according to the government, CPAC issued a report on the request, recommending the imposition of import restrictions. (Defs.' Mem. at 16.). On May 13, 2008, the Assistant Secretary for ECA determined that the requirements of 19 U.S.C. § 2602(a)(1) had been met with respect to the Chinese request. See Import Restrictions Imposed on Certain Archaeological Material from China, 74 Fed.Reg. 2,838, 2,839 (Jan. 16, 2009). On January 14, 2009, the United States and China entered an Article 9 agreement to restrict the importation of certain archaeological materials from the Paleolithic period through the Tang dynasty. Id. On January 16, 2009, DHS and Treasury published a Designated List, which included the following types of bronze coins:
Id. at 2,842. The restriction on the importation of designated Chinese coins went into effect on January 16, 2009. Id. at 2,839.
In April 2009, ACCG purchased twenty-three ancient Chinese and Cypriot coins from Spink, a coin dealer in London. The invoice that accompanied the coins included a "[s]chedule of contents." (Spink Invoice RT00052205, Defs.' Mem., Ex. 1, at 5.)
On May 15, 2009, Customs amended the Notice of Detention to specifically request that ACCG present "[c]ertification or evidence in accordance with 19 CFR 12.104c." (Notice of Detention Amended, Defs.' Mem., Ex. 1, at 2.) On May 27, 2009, ACCG disclaimed any ability to present such evidence. (Letter from Peter Tompa to Eric Alexander, U.S. Customs and Border Protection (May 27, 2009), Defs.' Mem., Ex. 1, at 10 ("[A]s the coins—like the vast majority in circulation in the collector market—have no known ownership history, ACCG cannot say if they were first found in the ground of either China or Cyprus[.] ... Accordingly, no certification or evidence under 19 CFR 12.104c is possible.").) On July 20, 2009, Customs seized the coins, and informed ACCG of the seizure on August 26, 2009. (Letter from Paula Rigby, Fines, Penalties & Forfeitures Officer, U.S. Customs and Border Protection, to Ancient Coin Collectors Guild (Aug. 26, 2009), Defs.' Mem., Ex. 1, at 29-35.) On September 8, 2009, counsel for ACCG wrote to Customs to formally claim the coins, to assert its intention to contest the forfeiture of the coins in the event Customs sought forfeiture, and to provide evidence of a customs bond to secure a forfeiture action. (Letter from
In addition, ACCG alleges that on March 15, 2010, ACCG's Executive Director was searched by uniformed Customs officers on his return to the United States from England. (Am. Compl. ¶ 102.) According to ACCG, "ACCG's Executive Director reasonably believes he was placed on a `watch list' due to ACCG's decision to import coins of Cypriot and Chinese type for purposes of this test case." (Id.)
Beginning in 2004, ACCG has sought access through FOIA to certain documents related to import restrictions on ancient coins from Cyprus, China and Italy. See Ancient Coin Collectors Guild v. U.S. Dep't of State, 673 F.Supp.2d 1, 2 (D.D.C. 2009). Between July 30, 2004, and October 11, 2007, ACCG made eight FOIA requests. Id. In response to these requests, the government conducted multiple searches, which resulted in 128 responsive documents. Id. Of these documents, the government released 70 documents in full and 39 documents in part, and withheld 19 documents in full. Id. On November 15, 2007, ACCG sued in the U.S. District Court for the District of Columbia to compel the government to produce the withheld documents. On November 20, 2009, the district court granted the government's motion for summary judgment, holding that the documents ACCG sought were protected by one or more FOIA exemptions. Id. at 4-7.
On April 15, 2011, the D.C. Circuit largely upheld the district court's decision. See Ancient Coin Collectors Guild v. U.S. Dept. of State, 641 F.3d 504 (D.C.Cir.2011). The court held that the State Department's withholding of documents under FOIA Exemptions 1 and 5 was proper, as was part of its withholding under Exemption 3. Id. at 509. The court reversed solely with respect to the Department's withholding of one set of documents—a series of emails exchanged between a professor of archaeology and an employee of the Bureau of Education and Cultural Affairs. See 641 F.3d at 511.
The D.C. Circuit also held that § 2605(i)(1) qualifies as an Exemption 3 withholding statute. Id. That section prohibits disclosure of any information "submitted in confidence by the private sector to officers or employees of the United States or to the Committee in connection with the responsibilities of the Committee." 19 U.S.C. § 2605(i)(1). State relied solely on § 2605(i)(1) in withholding only one set of documents—a series of emails exchanged between a professor of archaeology and an employee of the Bureau of Education and Cultural Affairs. See 641 F.3d at 511. The court remanded to permit State to provide "additional reasons for its belief" that the professor's comments were made in confidence. Id.
The proceedings before the district court concerning the withholding of those emails are currently pending.
On February 11, 2010, ACCG brought the instant lawsuit against Customs, the Commissioner of Customs, the State Department, and the Assistant Secretary of State. After the government filed a motion to dismiss or, in the alternative, for summary judgment, ACCG filed an amended complaint on July 15, 2010. In its ten-count amended complaint, ACCG alleges that the actions of both the State Department and Customs in connection with the import of Cypriot and Chinese type coins were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," see 5 U.S.C. § 706(2)(A), violated the CPIA, IEEPA,
In response to the amended complaint, the government filed an "Opposition to Plaintiff's Amended Complaint," which this court recharacterized as a renewed motion to dismiss. ACCG responded, the government replied, and ACCG filed a surreply. By correspondence, the court raised a question of subject matter jurisdiction with counsel, who submitted additional briefs addressing the issue. The court held oral argument on February 14, 2011. The government filed a supplemental brief providing "supplemental post-hearing clarifications." ACCG then moved to strike the government's supplemental brief, and filed its own "provisional response."
Neither party has contested this court's subject matter jurisdiction over this action. Nonetheless, because a defect in subject matter jurisdiction cannot be waived by the parties, the court must satisfy itself that it has jurisdiction. Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 390 (4th Cir.2004).
The question of this court's subject matter jurisdiction concerns the relationship between two jurisdictional statutes: 28 U.S.C. §§ 1356 and 1581(i). 28 U.S.C. § 1356 provides:
(emphasis added). The basis for ACCG's challenge to the import restrictions is the seizure of the coins it sought to import from London.
28 U.S.C. § 1581(i).
Although the language of 28 U.S.C. § 1581(i)(3)-(4) could be read to confer on the CIT exclusive jurisdiction over this action, this court concludes that § 1581(i) does not divest it of jurisdiction in favor of the CIT, for several reasons. First, Congress's decision to limit the carve-out in § 1356 to "matters within the jurisdiction of the Court of International Trade under section 1582," rather than also under §§ 1581, 1583 and 1584, reveals a congressional intent to retain district court jurisdiction in seizure cases that would otherwise fall under CIT jurisdiction under those sections. Congress created the CIT in 1980 and conferred jurisdiction upon it through 28 U.S.C. §§ 1581-84. See Customs Courts Act of 1980, Pub.L. No. 96-417, 94 Stat. 1727 (1980). In the same statute, it amended 28 U.S.C. § 1356 to insert the last phrase of the section, transferring from the district courts to the CIT jurisdiction under § 1582. Id. § 506. The fact that the amendment of § 1356 was contemporaneous with the enactment of § 1581 is evidence that Congress intended for the district courts to retain jurisdiction over cases such as this one.
Second, the CIT has held that its jurisdiction under § 1581(i) is "residual, meaning it `may only be invoked when
The parties have not cited and the court has not found a case addressing whether, if a district court has jurisdiction over a challenge to a government seizure, and because jurisdiction under § 1581(i) is residual, the district court, not the CIT, has jurisdiction over the action. Nonetheless, the "residual" nature of the CIT's jurisdiction under § 1581(i) provides further evidence that this case is properly before this court. The parties have developed a record and fully briefed the issues. The issues of judicial review of agency action are of the type typically considered by the district courts, not the type of specialized trade issues that are peculiarly within the expertise of the CIT. In short, resolution of the case in this court is not "manifestly inadequate" and would not cause "extraordinary and unjustified delays." See CDCOM (U.S.A.) Int'l, 963 F.Supp. at 1218.
Third, the Supreme Court has held that the CIT's jurisdiction does not extend to "every suit against the Government challenging customs-related laws and regulations." Kmart Corp. v. Cartier, Inc., 485 U.S. 176, 188, 108 S.Ct. 950, 99 L.Ed.2d 151 (1988) (emphasis in original). Although the specific holding in Kmart does not resolve the tension between 28 U.S.C. §§ 1356 and 1581(i) on the facts of this case, it provides further evidence that Congress did not intend to strip the district courts of jurisdiction over challenges of the type ACCG has brought here.
For these reasons, the court has jurisdiction under 28 U.S.C. § 1356, and § 1581(i) does not divest it of jurisdiction in favor of the CIT.
The government has moved to dismiss or, in the alternative, for summary judgment. "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009).
To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and alterations omitted). Thus, the plaintiff's obligation is to set forth sufficiently the "grounds of his entitlement to relief," offering more than "labels and conclusions." Id. (internal quotation marks and alterations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).
ACCG challenges the actions of two agencies, the State Department and Customs and Border Protection, and two officials, the Assistant Secretary of State for Educational and Cultural Affairs and the Commissioner of Customs. It argues that by imposing import restrictions on Cypriot and Chinese coins, those agencies and officials violated the APA and the Constitution, and exceeded their authority under the CPIA. The court will first consider ACCG's challenge to the actions of the State Department and the Assistant Secretary, and then turn to the challenge to the actions of Customs and the Commissioner. In challenging the actions of the State Department and the Assistant Secretary, ACCG argues that it is entitled to judicial review under the APA, under "nonstatutory review" of ultra vires actions (Am. Compl. ¶¶ 170-77), and under the court's "inherent equitable powers to remedy constitutional violations." (Id. ¶¶ 112, 118.)
The question of the validity of these actions is squarely before this court. As noted above, when the government seeks the forfeiture of cultural property subject to import restrictions under the CPIA, the initial burden is on the government to show that the material "has been listed by the Secretary" of the Treasury (or his delegate) on a designated list. 19 U.S.C. § 2610(1).
Section 706(2) of the APA provides that a reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be
5 U.S.C. § 706(2). ACCG alleges that the actions of the State Department and the Assistant Secretary that culminated in the promulgation of import restrictions on Chinese and Cypriot coins violated one or more subsections of § 706(2) because State "failed to provide a reasoned explanation for its departure from prior agency precedent" (Am. Compl. ¶ 123), failed "to report to Congress about this departure from both prior agency practice and the recommendations of [CPAC]" (id. ¶ 130), was influenced by "bias, and/or prejudgment and/or ex parte contact" (id. ¶ 135), misallocated the burden of proof for seizing imported coins in violation of the CPIA (id. ¶¶ 141-43), violated IEEPA by imposing import restrictions on materials protected by the First Amendment (id. ¶¶ 153-54), and violated the First and Fifth Amendments by imposing import restrictions that are vague and overbroad, are content-based prior restraints on speech, and burden ACCG's "Fifth Amendment liberty collecting and trading in informational materials." (Id. ¶¶ 160-67.)
Under the CPIA, Congress assigned to the President various responsibilities, from publishing notice of a state party request, 19 U.S.C. § 2602(f)(1), to determining whether factual prerequisites for entering an Article 9 agreement have been met, id. § 2602(a)(1); from negotiating and entering into an Article 9 agreement with the requesting state party, id. § 2602(a)(2), to submitting a report to Congress with a description of particular import restrictions. Id. § 2602(g). As detailed above, the President has since delegated the responsibilities relevant here to the Assistant Secretary. ACCG seeks APA review of several of these actions. Judicial review under the APA, however, is only available with respect to "agency" actions. See 5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."). The President is not an "agency" within the meaning of the APA. Franklin, 505 U.S. at 801, 112 S.Ct. 2767. As the Supreme Court explained:
Id. at 800-801, 112 S.Ct. 2767. Thus, presidential actions "are not reviewable for abuse of discretion under the APA." Id. at 801, 112 S.Ct. 2767.
Here, ACCG challenges actions by the State Department and Assistant Secretary, not actions directly undertaken by the President. The State Department and Assistant Secretary's authority to impose import restrictions on Cypriot and Chinese coins, however, derives from the President's authority under the CPIA. This raises the following question: does the bar on APA review of actions by the President extend to the actions of agencies when they act under a delegation of presidential authority? In other words, does an agency cease to be an "agency" for APA purposes when it acts pursuant to delegated presidential authority, rather than pursuant to authority conferred directly to the agency by statute?
Of those four cases, however, three involved delegations of authority the President derived solely, or at least primarily, from his inherent constitutional authority over foreign affairs, rather than authority the President derived from a statute. See Sisseton-Wahpeton Oyate, 659 F.Supp.2d at 1081 ("[T]he President has the sole authority to allow oil pipeline border crossings under his inherent constitutional authority to conduct foreign affairs."); NRDC, 658 F.Supp.2d at 109; Sierra Club, 689 F.Supp.2d at 1163.
Nonetheless, the State Department and Assistant Secretary were acting on behalf of the President, and therefore their actions are not reviewable under the APA. That conclusion is particularly justified here, because the Department and Assistant Secretary were acting in the realm of foreign affairs. The Court's conclusion in Franklin that the President's actions are not reviewable under the APA was premised on "the separation of powers and the unique constitutional position of the President." 505 U.S. 788 at 800, 112 S.Ct. 2767. Although agencies, such as the State Department here, occupy a different "constitutional position" than does the President, when those agencies act on behalf of the President, the separation of powers concerns ordinarily apply with full force—especially in an area as sensitive and complex as foreign affairs. As with respect to almost any international agreement,
ACCG also argues that even if the actions of the State Department and Assistant Secretary were not agency action reviewable under the APA, the promulgation of the designated lists by Customs rendered the State Department actions reviewable. The parties agree that judicial review under the APA requires "final agency action," that Customs is an "agency" for APA purposes, and that its actions were "final." Moreover, so long as there is "final agency action" presented for review, intermediate agency actions that culminated in that final action are also reviewable. 5 U.S.C. § 704 ("A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action."). But § 704 only renders intermediate actions reviewable if those actions, in addition to the final action, were those of an "agency." For the reasons discussed above, the actions of the State Department and the Assistant Secretary were not those of an "agency."
For these reasons, to the extent ACCG challenges the actions of the State Department and the Assistant Secretary, those actions are not reviewable under the APA, and ACCG has failed to state a claim on which relief can be granted.
As an alternative to judicial review under the APA, ACCG seeks judicial review under "nonstatutory" or "ultra vires" review. Under the purview of ultra vires review, it alleges that the State Department and Assistant Secretary acted beyond the scope of their authority under the CPIA for two principal reasons. First, it argues that because the CPIA authorizes restrictions on the importation of items "first discovered within" a requesting state, and because the restrictions here apply to all coins of certain Chinese and Cypriot types without requiring the government to prove that particular coins were "discovered" within the requesting state, the restrictions are not authorized by the CPIA. Second, it argues that the State Department and the Assistant Secretary imposed restrictions on Chinese coins without a request from China to do so, despite the fact that such a request is required under the CPIA. (Id. ¶ 135.)
In Dalton v. Specter, a lawsuit to enjoin the closing of a Naval shipyard, the Supreme Court "assume[d] for the sake of argument" that even if the APA does not establish judicial review of presidential actions, "some claims that the President has violated a statutory mandate are judicially reviewable outside the framework of the APA." 511 U.S. 462, 474, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994). That assumption, however, did not provide the plaintiffs in Dalton the judicial review they sought. The Court held that because the statute in question "[did] not at all limit the President's discretion," id. at 476, 114 S.Ct. 1719, and because "longstanding authority" holds that judicial review to determine whether the President complied with a statutory mandate "is not available when the statute in question commits the decision to the discretion of the President," judicial review was unavailable. Id. at 474-75, 114 S.Ct. 1719.
"A somewhat different case is presented, however, where the authorizing statute or another statute places discernible limits on the President's discretion." Mountain States Legal Found., 306 F.3d at 1136. In other words, "Dalton's holding merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President's exercise of that authority, judicial review of an abuse of discretion claim is not available." Chamber of Commerce v. Reich, 74 F.3d 1322, 1331 (D.C.Cir.1996); see also id. at 1331 n. 5 (explaining why Dalton's limited bar to judicial review of presidential actions does not "repudiate Marbury v. Madison [5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803)]"). Even if a statute does not provide for judicial review, "[w]hen an executive acts ultra vires, courts are normally available to reestablish the limits on his authority." Id. at 1328 (citing Dart v. United States, 848 F.2d 217, 224 (D.C.Cir. 1988)).
Thus, this court will proceed to consider whether the State Department and Assistant Secretary exceeded their authority under the CPIA.
ACCG first alleges that the State Department and the Assistant Secretary's actions were ultra vires because the regulations imposing the import restrictions do not require the government to prove that a particular coin was discovered in the modern countries of China or Cyprus before it may seize the coin. (See Am. Compl. ¶¶ 173-74.) ACCG argues that many ancient coins, including those produced in Cyprus and China, circulated widely in the ancient world. Cypriot coins were used in international trade and thus circulated beyond the island's shores, and empires such as the Persian and Roman empires produced coins on Cyprus that were indistinguishable from coins produced outside of Cyprus. Similarly, coins produced in China circulated widely, and other countries in Asia copied the design of Chinese coins.
The CPIA, as noted above, only authorizes the President to designate archaeological materials as subject to import restrictions if those materials were "first discovered within, and ... subject to export control by" the requesting state party. 19 U.S.C. § 2601(2). Given the wide circulation of ancient Cypriot and Chinese coins, ACCG argues, the President does not have authority under the CPIA to restrict all of certain types of Cypriot and Chinese coins without requiring the government to prove that they were "discovered within" Cyprus or China in modern times. Moreover, according to ACCG, although the statute does not require that the coins be discovered in the requesting country in modern times, the requirement is implied in the use of the term "discovered." "[M]erely identifying coins by country of origin is statutorily insufficient," ACCG argues, "for if this were all that were required, Congress would have emphasized the place of `production' rather than the place of `discovery.'" (Pl.'s Surreply at 6 (quoting Stephen Urice & Andrew Adler, Unveiling the Executive Branch's Extralegal Cultural Policy 34 (Miami Law Research Paper Series August 12, 2010)).)
ACCG's argument misses the mark, for three principal reasons. First, the subsection imposing the "first discovered" requirement, 19 U.S.C. § 2601(2), is silent on how the government must establish, in the absence of a documented find spot, whether a particular object "was first discovered within, and is subject to export control by, the State Party." Moreover, the CPIA anticipates that there may be some archaeological objects without precisely documented provenance and export records and prohibits the importation of those objects. Section 2606(b)-(c) of the CPIA provides that if an importer is "unable to present" a certification from the state party or the "satisfactory evidence" described above for a particular coin, the coin "shall be subject to seizure and forfeiture." 19 U.S.C. § 2606(b)-(c). Thus for objects without documentation of where and when they were discovered, the CPIA expressly places the burden on importers to prove that they are importable, and prohibits the importation of those objects if they cannot meet that burden.
Second, the CPIA anticipates that some categories of materials will be designated "by type or other appropriate classification." Id. § 2604. Congress apparently recognized that sometimes neither the requesting country nor the U.S. government will have enough information to list particular items with greater specificity than its
Third, interpreting the "first discovered in" requirement to preclude the State Department from barring the importation of archaeological objects with unknown find spots would undermine the core purpose of the CPIA, namely to deter looting of cultural property. See 19 U.S.C. § 2602(a)(1)(A) (providing that the first factual prerequisite for import restrictions is that "the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party"); see also Cultural Property Convention art. 9 ("Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected.") Looted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.
For these reasons, the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department's authority under the CPIA.
As its second ultra vires claim, ACCG alleges that the State Department and the Assistant Secretary exceeded their authority under the CPIA because they imposed restrictions on Chinese coins without a request from China to do. As noted above, the CPIA only authorizes the President (and by extension the State Department) to impose import restrictions "after request is made to the United States under article 9 of the Convention by any
Here, the State Department published in the Federal Register a notice that it had received a request on May 27, 2004 from China to impose import restrictions on certain "Chinese archaeological material from the Paleolithic to the Qing Dynasty." 69 Fed.Reg. at 53,970. This request eventually led to the negotiation of a memorandum of understanding and the promulgation of a designated list that included coins. 74 Fed.Reg. at 2,842. Although the September 2004 notice does not specifically state that China's request included coins, the CPIA does not require that a state party's initial request include a detailed accounting of every item eventually covered by an Article 9 agreement. Nor does the CPIA require that the State Department publish verbatim the list of items requested to be restricted. Rather, it simply requires that a State Party make a "request ... to the United States under article 9 of the Convention," 19 U.S.C § 2602(a)(1), and "publish notification of the request ... in the Federal Register." Id. § 2602(f)(1). The notice published in the September 3, 2004, Federal Register demonstrates that such a request was made. Accordingly, the State Department did not initiate the process to impose import restrictions without a request having been made by China. ACCG's claim to the contrary will be dismissed.
ACCG also alleges that the defendants acted ultra vires because they violated the First and Fifth Amendments to the Constitution, as well as IEEPA, and because the decisions to impose import restrictions were "based on bias and/or prejudgment and/or ex parte contact." The constitutional claims are considered separately below. The IEEPA claim is easily rejected. IEEPA authorizes the President to impose sanctions in response to "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." 50 U.S.C. § 1701(a). The Berman Amendment and the Free Trade in Ideas Amendment exempt informational materials from import restrictions imposed under IEEPA. See § 1702(b) ("The authority granted to the President by this section does not include the authority to regulate ... the importation ... of any information or informational materials.") (emphasis added). The government does not assert that its authority to seize the ACCG's coins in any way derived from IEEPA. Rather, the authority of State and Customs to impose import restrictions and then seize the coins derived from the CPIA. The informational materials exemption under IEEPA, therefore, is irrelevant to the scope of their authority under the CPIA.
Moreover, ACCG's claim that the import restrictions were "based on bias and/or prejudgment and/or ex parte contact" is beyond the scope of ultra vires review. As stated above, ultra vires review is limited to claims that the President has exceeded his authority under a particular
For these reasons, ACCG is not entitled to a declaration that the State Department and the Assistant Secretary's actions were ultra vires. The plaintiff's Ninth Cause of Action, insofar as it is brought against the State Department and the Assistant Secretary, will be dismissed.
In addition to arguing that the State Department's actions violated the APA and were ultra vires, ACCG argues that the Department violated the First Amendment. ACCG argues that irrespective of the availability of judicial review under the APA or for ultra vires actions, the State Department and the Assistant Secretary's actions are reviewable under this court's "inherent equitable powers to remedy constitutional violations." (Am. Compl. ¶¶ 112, 118.) Indeed, while judicial review is unavailable under the APA, and the State Department and Assistant Secretary did not act ultra vires, that does not dispose of ACCG's constitutional claims, because "the President's actions may still be reviewed for constitutionality." Franklin, 505 U.S. at 801, 112 S.Ct. 2767 (citing Webster v. Doe, 486 U.S. 592, 603-605, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935)).
ACCG argues that the import restrictions on Cypriot and Chinese coins violate the First Amendment because they are "a content-based restriction on protected speech that is not narrowly tailored to serve a compelling government interest." (Pl.'s Opp'n at 25; see also Am. Compl. ¶ 160.) ACCG argues that "inscription and motif" on an ancient coin constitute "information or speech" because they communicate "the ethos of a people, the means by which the ancient society expressed that ethos, and the individual expression of the coin maker." (Pl.'s Opp'n at 26.) Accordingly, ACCG argues, the import restrictions are content-based restrictions on speech that receive strict scrutiny. (Id. at 27.)
This claim fails because, even assuming without deciding that the inscriptions on ancient coins constitute expression, the import restrictions satisfy the requirements of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Under O'Brien,
Id. at 377, 88 S.Ct. 1673. The CPIA and the import restrictions at issue here satisfy this test.
First, it is undisputed that the imposition of import restrictions is "within the
Third, the government's interest in combating the pillage of archaeological materials is "unrelated to the suppression of free expression." Even if ancient coins convey information about ancient societies, the government's interest in combating the pillage of archaeological materials is unrelated to the suppression of the flow of that information.
Fourth, even if the import restrictions incidentally restrict the ability of coin collectors in the United States to access the information conveyed by ancient coins, that restriction is "no greater than is essential" to combat the pillage of those coins. ACCG seems to argue that the restriction is "greater than is essential" because it allows the government to prohibit the importation of coins without a known find spot, rather than limiting restrictions to coins that are proven to have been pillaged. The Convention and CPIA, however, illustrate that countries are in agreement that restricting the importation of particular types of coins, and thereby decreasing demand for those coins, is necessary to combat the trade in looted coins. Thus, even if the restrictions are in some sense over-inclusive because they prohibit the importation of coins that entered the market permissibly, the restrictions are not greater than is essential to deter pillage.
In fact, the CPIA, in anticipation of some First Amendment concerns, requires that import restrictions be "consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes." 19 U.S.C. § 2602(a)(1)(D). To that end, it exempts certain material and articles that would otherwise be subject to import restrictions, such as certain items that have been held by museums in the United States for at least three years, id. § 2611(2), as well as certain items for "temporary exhibition or display." Id. § 2611(1). Moreover, while the import restrictions prohibit the importation and possession of protected coins, they do not prohibit coin collectors from learning the information contained in the inscriptions and motifs on those coins. Although there may be some information that collectors can acquire only by inspecting original coins, much of the information that ACCG argues is communicated through coins is available from descriptions, photographs or other reproductions of those coins. Therefore, "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of" the government's interest in combating the pillage of protected materials.
For these reasons, 19 C.F.R. § 12.104a and the designated lists are not impermissible content-based restrictions on speech.
In addition to challenging the actions of the State Department and the Assistant Secretary of State for ECA, ACCG challenges the actions of Customs and Border Protection and the Commissioner of Customs. ACCG alleges that the agency and the Commissioner violated the APA and the Constitution, and exceeded their statutory authority, based on three alleged actions: (1) the promulgation of designated lists that included Cypriot and Chinese coins, (2) the seizure of ACCG's coins based on those import restrictions, and (3) the placement of ACCG's Executive Director on a "`watch list' due to ACCG's decision to import coins of Cypriot and Chinese type for purposes of this test case." (Am. Compl. ¶ 102, 117; see also Pl.'s Opp'n at 21-22.) ACCG argues that the promulgation of the designated lists and the seizure of the coins based on those regulations violated the APA, IEEPA and the First and Fifth Amendments to the U.S. Constitution, and were ultra vires. ACCG alleges that the alleged placement of the executive director on a watch list violates the First Amendment.
ACCG seeks judicial review under the APA of two actions by Customs: the promulgation of designated lists that included Chinese and Cypriot coins, and the seizure of ACCG's coins based on those regulations.
ACCG alleges that the promulgation of the designated lists by Customs was "arbitrary, capricious, an abuse of discretion, or
Nonetheless, ACCG does not allege any actions arguably attributable to Customs that would violate the APA and therefore does not state a claim under the APA on which relief can be granted. The categories of materials subject to CPIA import restrictions are set by the State Department and the requesting state party in the applicable Article 9 agreements. Once the State Department decides to include particular materials in an Article 9 agreement, Customs' authority is limited to promulgating the "list of the archaeological or ethnological material of the State Party covered by the agreement." 19 U.S.C. § 2604. Of the governmental actions challenged by ACCG, all of those preceding and including the negotiation of Article 9 agreements are the responsibility of the State Department, and thus are unreviewable under the APA. ACCG does not allege that Customs unilaterally added coins to the designated lists. Indeed, it acknowledges that the decisions to include coins in the Cypriot and Chinese designated lists were made by the State Department, not by Customs. Moreover, any allegation that Customs unilaterally imposed restrictions on coins would contradict ACCG's entire challenge to the State Department's actions. Thus ACCG's claims that Customs violated the APA by including coins on the designated lists will be dismissed.
In its Ninth Cause of Action, for judicial review of ultra vires actions, ACCG does not distinguish between its claims against the State Department and Assistant Secretary and those against Customs and the Commissioner. (See Am. Compl. ¶¶ 170-77.) To the extent its claim pertains to the process culminating in the decision to include Cypriot and Chinese coins in the Article 9 agreements, it is discussed above in the context of the actions of the State Department and Assistant Secretary. To the extent ACCG aims its ultra vires claim against actions taken by Customs and the Commissioner, the claim parallels ACCG's APA claim and will be dismissed for the reasons stated above.
In addition to arguing that Customs violated the APA and acted ultra vires, ACCG argues that Customs violated the First and Fifth Amendments to the U.S. Constitution. ACCG's claim that restricting the importation of coins violates the First Amendment is discussed above. In addition, ACCG has raised two constitutional claims concerning the actions of Customs and the Commissioner: that they violated its Fifth Amendment rights by taking its coins without promptly initiating forfeiture proceedings, and that they violated its First Amendment rights by allegedly placing ACCG's Executive Director on a "watch list."
ACCG imported the coins on April 15, 2009. Customs detained the coins and, in its May 15, 2009 amended Notice of Detention, requested that ACCG present
The test for determining whether a delay in initiating forfeiture proceedings violates the Fifth Amendment is the same as the speedy trial analysis under the Sixth Amendment. United States v. Eight Thousand Eight Hundred And Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 564, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). That test requires the court to balance four factors: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. "[N]one of these factors is a necessary or sufficient condition for finding unreasonable delay." Id. at 565, 103 S.Ct. 2005. "Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case." Id. ACCG's due process claim thus raises two issues: First, does the delay thus far violate ACCG's due process rights; in other words, if the government were to file its forfeiture action now, would the action be dismissed based on the Fifth Amendment? Second, if the delay thus far does not violate the Fifth Amendment, would further delay render forfeiture unconstitutional?
With respect to the first issue, in balancing the factors listed above, the court concludes that the delay does not violate ACCG's due process rights. The length of the delay since ACCG's coins were seized has been substantial, and ACCG promptly asserted a claim to the coins. The length of delay and ACCG's assertion of its right thus cut towards a finding that the delay is unconstitutional. The other two factors, however—the reason for the delay and prejudice to ACCG—outweigh the length of delay and the claimant's assertion of its right. For all but five months of the time since the coins were seized, this case has been pending, involving extensive briefing and an oral argument on the government's motion to dismiss. The government has not filed a separate forfeiture action during that time because ACCG already had the federal forum it sought for review of the validity of the import restrictions. If the government were to file a separate action, the parties would have to litigate, and the court would have to adjudicate, the same issues in two cases at once. Accordingly, the reason for most of the delay cuts against a finding that the delay is unconstitutional.
For these reasons, the court will dismiss without prejudice the First and Second Causes of Action in ACCG's Amended Complaint.
ACCG claims that Customs violated the First Amendment when it placed ACCG's Executive Director on a "`watch list' due to ACCG's decision to import coins of Cypriot and Chinese type for purposes of this test case." (Am. Compl. ¶ 102, 117; see also Pl.'s Opp'n at 21-22.) The director's belief that he was placed on a watch list is "[b]ased on his interactions with Customs at the time as well as Customs' detention of Spink's property." (Am. Compl. ¶ 117.) By placing the director on a watch list, ACCG argues, Customs was retaliating against ACCG for filing this lawsuit, and "retaliation for filing a lawsuit is prohibited by the First Amendment protections of free speech and access to the courts." (Pl.'s Opp'n at 22.)
Customs argues that this claim should be dismissed for failure to exhaust administrative remedies. Congress required that the Department of Homeland Security "establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by [TSA], [CBP], or any other office or component of [DHS]." 49 U.S.C. § 44926(a). DHS has established such a program, which is called the Traveler Redress Inquiry Program (TRIP). See Scherfen v. U.S. Dep't of Homeland Sec., No. 3:CV-08-1554, 2010 WL 456784, *6 (M.D.Pa. Feb. 2, 2010) (describing the program). Customs argues that ACCG and/or its executive director must exhaust the remedies available through TRIP before seeking relief in this court, and therefore ACCG's claim should be dismissed.
When a party seeks judicial review of an agency decision, the party is generally required to "exhaust prescribed administrative remedies before seeking relief from the federal courts." Volvo GM Heavy Truck Corp. v. U.S. Dept. of Labor, 118 F.3d 205, 209 (4th Cir.1997). Non-jurisdictional exhaustion, the type of exhaustion at issue here, see Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C.Cir.2004), "serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency."
A plaintiff challenging an agency's actions is excused from exhausting such remedies only if "the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." McCarthy, 503 U.S. at 146, 112 S.Ct. 1081; see also Volvo GM Heavy Truck Corp., 118 F.3d at 209 ("In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion.") Courts have excused plaintiffs from exhausting administrative remedies where, for example, (1) there are "no facts in dispute," Avocados Plus, 370 F.3d at 1247 (citing McKart v. United States, 395 U.S. 185, 198 n. 15, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)); (2) "the disputed issue [is] outside the agency's expertise," id. (citing McKart, 395 U.S. at 197-98, 89 S.Ct. 1657); (3) "the agency may not have the authority to change its decision in a way that would satisfy the challenger's objections," id. (citing McCarthy, 503 U.S. at 147-48, 112 S.Ct. 1081); (4) "requiring resort to the administrative process may prejudice the litigants' court action," id. (citing McCarthy, 503 U.S. at 146-47, 112 S.Ct. 1081); or (5) the administrative process "may be inadequate because of agency bias." Id. (citing McCarthy, 503 U.S. at 148-49, 112 S.Ct. 1081).
ACCG does not argue that any of these exceptions to the exhaustion requirement apply. Rather, it argues that because its allegations concern its own "First Amendment protections of free speech and access to the courts," it should not be required to exhaust the TRIP mechanism. (Pl.'s Opp'n at 22.) This theory does not fall within one of the previously recognized exceptions to the exhaustion requirement. Moreover, ACCG does not provide any reason why its interests in "immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." McCarthy, 503 U.S. at 146, 112 S.Ct. 1081.
For these reasons, the constitutional claims against Customs and the Commissioner will be dismissed.
The Tenth Cause of Action in ACCG's amended complaint alleges that by failing to initiate forfeiture proceedings within ninety days of ACCG's submission of a claim for the seized coins, Customs violated CAFRA, 18 U.S.C. § 983(a)(3)(A). That subsection requires that for certain types of forfeiture cases, the government must file a complaint for forfeiture within ninety days of the filing of a claim for the seized property. Id. If it does not file a complaint for forfeiture within ninety days, and cannot show "good cause" or "agreement of the parties," it must return the property to the claimant pending the filing of a complaint. Id. As a remedy, ACCG seeks an order to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). CAFRA, however, does not apply to seizures pursuant to "the Tariff Act of 1930 or any other provision of law codified in title 19." 18 U.S.C. § 983(i)(2)(A). The CPIA is codified in title 19, and thus forfeiture actions
Nonetheless, ACCG argues that its CAFRA claim remains viable because the government "darkly hint[s] that the coins in question may in fact be `stolen' cultural patrimony of another country subject to the National Stolen Property Act" ("NSPA"), 18 U.S.C. §§ 2314-15. (Pl.'s Opp'n at 20.) It argues that because a claim under the NSPA could trigger forfeiture under 18 U.S.C. § 545, which is subject to CAFRA, its CAFRA claim remains viable. The claim should only be dismissed, ACCG argues, if the government will "unequivocally disavow any claim that ACCG's coins were `stolen.'" (Pl.'s Opp'n at 20.) The government has not, however, sought forfeiture under the NSPA. If it were to do so, then CAFRA would apply, and the government would have to show "good cause" for why the ninety-day deadline should not apply. But the court need not decide whether there is "good cause" for the delay, because the government's authority to seek forfeiture under the CPIA exists irrespective of whether the government would have authority to seek forfeiture under the NSPA. Therefore, the Tenth Cause of Action will be dismissed.
In addition to seeking a declaratory judgment and an injunction based on the alleged violations of the Constitution, the CPIA, and other statutes, ACCG seeks a writ of mandamus ordering Customs to return the coins and to remove ACCG or Spinks from a watch list. Mandamus is an extraordinary remedy, and is available only if a plaintiff has "exhausted all other avenues of relief," and if the defendant owes the plaintiff "a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). With respect to the watch list allegation, ACCG has not exhausted all avenues for relief, and with respect to neither allegation has it shown that Customs owes ACCG a "clear nondiscretionary duty." To demonstrate a clear, nondiscretionary duty, a plaintiff must show that "(1) the plaintiff's claim is clear and certain; (2) the defendant official's duty to act is ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir.1994) (internal quotation marks omitted); see also Asare v. Ferro, 999 F.Supp. 657, 659 (D.Md.1998). A government official's duty is "ministerial" if "the law prescribes and defines a duty to be performed with such precision as to leave nothing to the exercise of discretion or judgment." Asare, 999 F.Supp. at 659 n. 6. ACCG has not shown that Customs has a clear, nondiscretionary duty to return the coins. Therefore, its claim seeking a writ of mandamus will be dismissed.
For the foregoing reasons, the defendants' motion to dismiss will be granted. The plaintiff's motion to strike the government's supplemental brief will be denied. A separate Order follows.
For the reasons stated in the accompanying Memorandum, it is hereby
This action was not commenced by the United States, and therefore does not arise under § 1582.
14. Western coinage originated in Asia Minor sometime around the 7th c. B.C. This innovation soon spread to the Greek mainland and islands like Cyprus. The first true Cypriot coins date from the late 6th c. B.C., when various Cypriot kingdoms began to issue coin types derived from designs on coins from the East that had arrived on Cyprus in trade. Subsequently, the Persian Empire, Alexander the Great, the Ptolemaic Kingdom and the Romans struck coins on the Island, which were often indistinguishable from coins struck at their other imperial mints. Because Cyprus is located on an important trade route, coins minted in Cyprus circulated widely around the Mediterranean region and even as far away as Afghanistan. Accordingly, it is impossible to determine a Cypriot coin's find spot merely from identifying it as being made at a Cypriot mint.
15. Coinage began in China in the late 7th or early 6th c. B.C. The earliest money was cast into the form of spades, knives or cowry shells. Ultimately, by around 221 B.C., a round bronze coin marked with Chinese characters referencing values and issuing authorities and featuring a square center hole became standardized. These "cash" coins were produced in immense numbers from roughly 221 B.C. to 1912 A.D. This type was widely emulated from Central Asia to Japan, with similar types being cast in Vietnam as late as 1933.
16. The circulation patterns of Chinese cash coins were equally wide, with such coins being exported in quantity from the Fifth to Tenth Centuries to East Africa, the Persian Gulf, India, Ceylon, Burma, Thailand, Vietnam, Malaya, the Philippines, Sumatra, Java and Borneo. Later on, Chinese immigrants even took such coins with them to the United States. Accordingly, it also is impossible to determine a Chinese coin's find spot merely from identifying it as being made at a Chinese mint.
(Am. Compl. ¶¶ 14-16.)
(A) any object of archaeological interest;
(B) any object of ethnological interest; or
(C) any fragment or part of any object referred to in subparagraph (A) or (B); which was first discovered within, and is subject to export control by, the State Party.
19 U.S.C. § 2601(2). The last phrase modifies all three preceding subsections. That is, irrespective of whether an object is "of archaeological interest," "of ethnological interest," or a fragment of such an object, the object must have been "first discovered within" and "subject to export control by" the country requesting import restrictions. As indicated above, § 2601(2) then continues with more detailed definitions of "archaeological interest" and "ethnological interest." The C.F.R. section defines "archaeological or ethnological material of the State Party" as:
(1) Any object of archaeological interest....
(2) Any object of ethnological interest ...
(3) Any fragment or part of any object referred to in paragraph (a)(1) or (2) of this section which was first discovered within, and is subject to export control by the State Party.
19 C.F.R. § 12.104(a). In the regulation, the phrase "which was first discovered within, and is subject to export control by, the State Party" modifies only the third type of object subject to the definition, namely "fragment[s] or part[s]" of objects. Therein lies the conflict with the CPIA.
Congress only authorized the imposition of import restrictions on objects that were "first discovered within, and [are] subject to export control by the State Party." Under the regulations, that requirement seems to apply only to the importation of a "fragment or part" of an object of archaeological or ethnological interest. This appears to have been an oversight in the drafting, or codification, of the original regulations in 1985, and has persisted in the C.F.R. ever since. See Interim Customs Regulations Amendments Concerning Convention on Cultural Property Implementation Act, 50 Fed.Reg. 26,193 (June 25, 1985).
Nonetheless, the court need not decide whether the conflict between 19 U.S.C. § 2601(2) and 19 C.F.R. § 12.104(a) requires that the regulation be set aside, because the government concedes that the "first discovered within" requirement applies to all CPIA import restrictions. Therefore, for the purposes of this case, it is unnecessary for this court to decide whether 19 C.F.R. § 12.104(a) violates the APA or exceeds the statutory authority of Customs, the Department of Homeland Security, or the Treasury Department.
