ACCG Files Appellate Brief in Baltimore Coin Case

Ancient Chinese Coins
Author mc559, Creative Commons
The Ancient Coin Collectors Guild (ACCG) today filed an appellate brief in the Fourth Circuit Court of Appeals. After setting up and losing a test case in the Maryland federal district court, the ACCG is now asking the appeals court to reverse that decision. The ACCG’s case began when it imported 23 Chinese and Cypriot ancient coins from a London dealer in 2009. The coins were brought to Baltimore in contravention of import protections enacted pursuant to the Cultural Property Implementation Act (CPIA).

The ACCG argues in its brief that the district court should have reviewed the decisions of the State Department and/or Customs and Border Protection to implement import protections under the Administrative Procedures Act. The APA is a seminal statute that describes how federal agencies shall establish administrative regulations and that outlines the procedures by which administrative decisions are reviewed by the courts. The ACCG argues that the decision of the Assistant Secretary [of State for Educational and Cultural Affairs] and/or US Customs and Border Protection approving import rules may be reviewed by a court under the Administrative Procedures Act. The lower court essentially argued that the President of the United States conducts foreign policy and that “primary responsibility for imposing cultural property import restrictions [rests] with the President, rather than with an agency.” It follows then that the APA cannot therefore be used to review an executive branch decision that is part of the President’s power to negotiate international agreements rather than part of an administrative decision of an agency. The lower court explained in its decision that “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 ACCG further argues that the district court erred when ruling that the government could issue cultural property import protections on coins without China purportedly requesting the import regulations. The appellate brief states that “[t]he District Court’s conclusion that ‘the CPIA does not require that a state party’s initial request include a detailed accounting of each item eventually covered by an [1970 UNESCO Convention] Article 9 agreement’ ignores the requirement that any request ‘must be accompanied by a written statement of the facts known to the State Party that relates to those matters with respect to which determinations must be made. . . .’” The lower court, in contrast, ruled that China’s request complied with the law, observing that “the CPIA [does not] 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 [1970 UNESCO] Convention,’ . . . and ‘publish notification of the request . . . in the Federal Register.’ The notice published in the September 3, 2004, Federal Register demonstrates that such a request was made.”

Finally, the ACCG argues that the import regulations require federal authorities to prove that a particular coin was discovered in the modern nations of China or Cyprus before officials may seize the coins as contraband. The ACCG states in its appellate brief that “the CPIA itself only authorizes seizure and forfeiture of artifacts ‘first discovered within, and . . . subject to export control by’ the State Party seeking restrictions.” The brief adds that “[t]he Guild argued below that the Government could comply with this critical statutory requirement in either one of two ways: (1) establishing by undisputed scholarly evidence that the coins placed on the designated lists could only have been discovered in Cyprus or China and, hence must be subject to their export controls; or (2) demonstrating by documentary evidence that the coins that CBP seized were in fact first discovered in Cyprus or China and are subject to export control by those countries.”

This argument was originally rejected by the federal district court. The lower court opinion remarked that “the dispute is limited to whether the State Department has authority under the CPIA to prohibit the importation of coins with unknown ‘find spots’ . . . .” The district court judge found that “ACCG’s argument misses the mark, for three principal reasons. First, the subsection imposing the “first discovered” requirement . . . 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. . . . 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.’ 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 “type.” . . . 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. . . . 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.” (Citations omitted).

A link to the brief appears courtesy of Peter Tompa, legal counsel for the ACCG: http://www.accg.us/News/Item/ACCG_Appellant_Brief_filed_in_Cyprus_China_coin_seizure.aspx.

[UPDATE 1/18/12:  Federal attorneys have filed their appellate brief.]
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The Law of Unintended Consequences: Immigration and E-Verify

A recent article in Businesweek, A Verification System for New Hires Backfires makes clear just how complex the immigration issue is.

The story of one flower grower's attempt to utilize E-Verify, the national registration system that allows an employer to check on worker's eligibility (after they are hired) has made it very difficult to staff his green houses, particularly during the spring growing season. Even accounting for some hyperbole his quote is fairly chilling: "Those who want to work fail to pass E-Verify, and those that pass fail to work."

The system, now utilized by about 5% of America's employers according to the article, would be mandatory if a bill, H.R. 2885 introduced by Representative Lamar Smith (actually my congressman) were to become law. If you want to check out the E-Verify website for yourself, go here.

The bill has been passed by the House Judiciary Committee, and is still pending in the House Education and the Workforce and Ways and Means. See here for Congressional action.

The stop in Ways and Means is not just an idle one, since according to a 2008 Congressional Budget report, a national mandate would cut federal tax revenue by more than 17 billion dollars (that's billion with a B).

Everyone knows that immigration is a major problem that actually needs a solution. And it seems to me to be area where the law of unintended consequences could be particularly relevant.

A hat tip to Kriss Dunn at [the hr capitalist] for his post, 99 Problems: E-Verify Ain't One ...

VOA Report: Afghan Archeologists Race Against Time to Find Treasures



Voice of America has an interesting report titled "Afghan Archeologists Race Against Time to Find Treasures."  Thanks go to the Archaeology News Network for bringing attention to this video.


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DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Savedoff Pleads Guilty to Stealing Historical Documents from Museums and Archives

Jason Savedoff entered a guilty plea this week to charges of conspiracy to commit theft of major artwork and theft of major artwork for his role in the theft of historical documents from museums and archives along the east coast. Savedoff’s co-defendant, Barry Landau, is scheduled for trial. Landau is expected be sentenced to a prison term of 4-12 years in February 2012.


The Washington Post reports: “The pair compiled lists of historical and famous figures, often noting the market value of documents signed by those figures, and Savedoff identified collections with valuable documents that they could target, according to the plea. They used different routines to distract librarians and would stash documents inside sport jackets and overcoats that had been altered to add large hidden pockets.
Searches of Landau’s apartment in July turned up thousands of documents. According to Savedoff’s plea, these included documents signed by historical figures from both sides of the Atlantic. They range from American presidents such as George Washington, Franklin D. Roosevelt, Abraham Lincoln and John Adams to French leaders such as Marie Antoinette and Napoleon Bonaparte, and German philosopher Karl Marx.”

See the full story at http://www.washingtonpost.com/national/presidential-historians-assistant-pleads-guilty-in-md-document-theft-conspiracy/2011/10/27/gIQApmojMM_story.html.

UPDATE 11/13/12: The court sentenced Savedoff to one year and one day in prison on November 9, 2012.

CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.

Detectives Working to Save Art and Cultural Heritage

Tricia Bishop of the Baltimore Sun has a worthwhile piece titled Art investigators: Saving the country's cultural heritage, one recovered work at a time. Passion drives the overworked and underappreciated.  You can read it at  http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-history-thieves-20111007,0,443863,full.story.


CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.
DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Public Comments Submitted to the Cultural Property Advisory Committee (CPAC) in Support of US-Bulgaria MoU Protecting Cultural Property

Should the Committee agree that cultural patrimony located within Bulgaria is in jeopardy from pillage and that the CPIA’s other determinations have been meet, the Committee’s support for the MoU with Bulgaria would permit US authorities to more vigorously curb illegal international artifacts trafficking.

Enactment of the MoU would strengthen America's commitment to protect evidence of the past threatened by archaeological site looting and to protect cultural identity undermined by the theft of ethnological materials. The theft of artifacts from the ground permanently erases the archaeological record. Knowledge of history, culture, or identity is often eliminated when on-site scientific study of historical, pre-historical, or ethnographic evidence is marred by looters, smugglers, and unlawful receivers of trafficked antiquities.

Archaeologists, law enforcement officers, and others possessing first-hand experience with cultural objects originating from Bulgaria are in the best position to describe the situation; their observations should be afforded considerable weight. The Committee should be mindful too of the experiences of our international friends. Canada’s recent interdiction of a large volume of smuggled cultural material from Bulgaria is noteworthy.

Americans’ support for the protection of history, heritage, and cultural identity builds on a legacy exemplified by President Reagan’s adoption of the CPIA. More than three in five Americans believe that artifacts should not be removed from another nation without that country's assent. These were the findings of a 2000 Harris Interactive poll, and there is little reason to believe that sentiments have changed.

President Nixon remarked that the 1970 UNESCO Convention “is a significant effort … to help preserve the cultural resources of mankind.” These words resonate today, urging support for the MoU.



CONTACT INFORMATION: http://www.culturalheritagelawyer.com/. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Keeping the Lid on Davy Jones' Locker: The Protection of Underwater Cultural Heritage from Titanic to Today

A conference on the protection of underwater cultural heritage will take place on November 3, 2011 at the National Trust for Historic Preservation in Washington, DC.  It is titled Keeping the Lid on Davy Jones' Locker.  It is sponsored by the Institute of Nautical Archaeology, the Penn Cultural Heritage Center, and the Lawyers' Committee for Cultural Heritage Preservation.  Details and registration information can be found at: http://www.culturalheritagelaw.org/events?eventId=318316&EventViewMode=EventDetails.

[UPDATE Nov. 15, 2011: The conference was very successful.]

CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.

State Department Clarifies US-Egypt MoU

The US State Department released this statement today, quoted in its entirety:

"Potential Memorandum of Understanding between U.S. Immigration and Customs Enforcement and Egypt's Ministry of State for Antiquities

The Department of State's Cultural Heritage Center has become aware that confusion exists concerning a potential MOU between U.S. Immigration and Customs Enforcement and Egypt's Ministry of State for Antiquities. Such an agreement would differ from the type of MOU made under Article 9 of the 1970 UNESCO Convention for import restrictions on certain categories of cultural materials. The Department understands that the MOU presently under discussion by U.S. Immigration and Customs Enforcement concerns information exchange and not import restrictions. If the Government of the Arab Republic of Egypt requests an agreement pursuant to Article 9 of the 1970 UNESCO Convention, the Department of State would announce receipt of such a request in the Federal Register. This procedure is the only means currently available to a country wishing U.S. import restrictions on its cultural property."

Source: http://exchanges.state.gov/heritage/whatsnew.html




CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Cultural Heritage Looting in Bulgaria

The Bulgarian governments’ request to secure cultural heritage import protections under the Cultural Property Implementation Act spotlights the ancient history present in that country as well as modern day artifact looting.

A short 2009 documentary, produced by SBS and distributed by Journeyman Pictures, films antiquities looters in action in Bulgaria, follows archaeologists to ancient sites, and interviews some of those involved in collecting and in prosecuting crimes.  It is worth watching in anticipation of the upcoming meeting of the Cultural Property Adivsory Committee (CPAC) on November 16.  See the documentary in two parts below.





Additional information can be found in Organized Crime in Bulgaria: Markets and Trends (2007) by the Center for the Study of Democracy.  The publication describes some of the challenges to cultural heritage protection in Bulgaria. Pertinent information begins at page 177 and can be found at http://www.csd.bg/artShow.php?id=9120.



CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Winter is the perfect time to focus on professional development! - Cultural Property Law - Rural Cultural Environment

Plymouth State University’s winter term graduate-level courses, which can lead to a Certificate in Historic Preservation, are…

CULTURAL PROPERTY LAW – Compact Schedule
Archaeological site looting, transnational antiquities trafficking and armed conflicts threaten global cultural heritage. This course examines the international, national and state legal frameworks for the protection and movement of cultural property. Topics for discussion include the 1954 Hague Convention, the 1970 UNESCO Convention, the ICOM Code of Ethics, the National Stolen Property Act and the Cultural Property Implementation Act. The course also introduces students to important national heritage laws such as the Archaeological Resources Protection Act and the rules governing shipwrecks. State statutes and the common law regulating cultural property are also reviewed.
Taught in Concord by Ricardo A. St. Hilaire, Esq. 3 credits.
Friday, December 2: 4 – 10 p.m.
Saturday, December 3: 10 a.m. – 4 p.m.
Friday, December 9: 6 – 9 p.m.
Saturday, December 10: 10 a.m. – 4 p.m.
Friday, December 16: 4 – 10 p.m.
Saturday, December 17: all day (field trip to the Museum of Fine Arts, Boston)
Friday, December 23: 6 – 9 p.m.

THE RURAL CULTURAL ENVIRONMENT: ARCHITECTURE AND LANDSCAPE – Online Course
This course uses the rural countryside as a laboratory to examine the cultural landscape. It will trace the impact of natural, cultural, economic, and technological forces on the “built” environment. The course studies the evolution of buildings and their settings, with emphasis on settlement and rural industrialization. Subjects to be discussed include the evolution of architectural styles and construction techniques, town planning and land division, the evolution of transportation and the harnessing of water power. Although the course will use specific locales as examples, it is intended to instill general principles by which any human landscape can be examined and interpreted in relationship to natural resources and human culture.
Taught entirely online by Benoni Amsden, PhD, Center for Rural Partnerships, PSU. 3 credits.
Sessions being January 6 and end February 16, 2012. Two self-directed field trips are required.

***

To learn more about PSU’s Certificate in Historic Preservation, visit http://www.plymouth.edu/graduate/siteindex/#h and click on “Historic Preservation Certificate”
or contact Dr. Stacey Yap, program coordinator, at staceyy@plymouth.edu, (603) 535-2333.

**Please feel free to forward this information to your networks**




CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Antiquities Trafficking: A US-Egyptian Agreement in the Works?

Egypt is to sign an agreement with the United States to combat antiquities trafficking, according to a report in Ahram Online today. See the story at http://english.ahram.org.eg/NewsContent/9/40/24873/Heritage/Ancient-Egypt/New-strategy-to-prevent-illegal-trade-in-Egyptian-.aspx.

CONTACT INFORMATION: www.culturalheritagelawyer.com.

CPAC Public Comments Start to Pour In on Bulgaria's Request for Cultural Heritage Import Protections under the CPIA

The public comment period has begun regarding the Bulgarian government's request for cultural property protections by the United States. The Cultural Property Advisory Committee (CPAC) meets on November 16, 2011 to consider the matter—as well as a similar request by the government of Belize—for import protections pursuant to the Cultural Property Implementation Act (CPIA).

Ancient coin collectors this week actively have been submitting comments to CPAC, appearing to have responded to listserv calls to contact the committee in opposition to the Bulgarian request. Few electronic comments in support have been filed. Most comments thus far are from individuals as opposed to institutions.

As of this writing, 44 total public submissions have been made (UPDATE: 216 submissions as of October 26, 2011; 421 submissions as of midday November 2, 2011; 504 as of November 3, 2011 after the November 2 deadline), largely voicing opposition to protections covering ancient coins. Three sample comments in opposition and one sample comment in support appear below:

“Although assistance should be given to Bulgaria to restrict the import of specific types of antiquities that can only have originated in that country, coins should not be included. . . . There is no way to tell if a coin was found in Bulgaria or some other Mediterranean country, and the claim that all such coins are property of Bulgaria is not supported by law or common sense. . . . Yours sincerely, Jeffrey Spier Fellow, American Numismatic Society.”

“I am very passionate about: collecting Roman Imperial and Greek coins. I am very troubled by restrictions on collecting that would kill my hobby. This is much more than hobby. Yes I collect coins. I am also preserving history and sharing it with school children during classmate presentations. There are billions of pre - 1600 coins. These are not rare pieces. They are found in lots of 1000 . . . .”-David Hunt

“Bulgaria wants to restrict exporting antiquities (such as the coins?) that are already spread around the world and are not very valuable to begin with? Really?! Come on; don't go there! It's just silly...” –Col Dupont, C L Dupont Ancient Coin Jewelry

“I write in full support of Bulgaria's recent request that the US accepts the petition, to help the country protecting its great heritage. It is a mystery to me how one should officially legitimate cases like the one very recent, were (sic) 21,000 objects have left Bulgaria illegally, were shipped half across the world to end up in North America. Thousands of objects would have ended up on the market, sold by those who make private profit with the heritage of another country while not respecting Bulgarian laws as well as not respecting American laws relating to stolen property. In 1992, some 5,000 icons were disappearing in one single year from Bulgaria. Bulgaria's request should get full support. . . .” –Nagel Alexander, Smithsonian Institution

Mr. Alexander’s comment appears to reference the June 2011 return by Canada of 21,000 illegally imported ancient coins, jewelry, and cultural artifacts and seized by the Royal Canadian Mounted Police in November 2008. The Canadian government observed in a June 10, 2011 press release marking the repatriation of the cultural objects: “These objects, many of which were illegally excavated, cover more than 2600 years of the history of Bulgaria. This collection includes more than 18,000 coins, as well as a number of artifacts including bronze eagles, rings, pendants, belt buckles, arrows and spearheads, and bone sewing needles. They represent a mix of Hellenistic, Roman, Macedonian, Byzantine, Bulgarian, and Ottoman cultural heritage.” Access the full press release at http://www.pch.gc.ca/pc-ch/infoCntr/cdm-mc/index-eng.cfm?action=doc&DocIDCd=CR110217.

Recently, the Archaeological Institute of America issued a call to action on its web site, posting "Support the preservation of Belizean and Bulgarian archaeological heritage by writing a letter to the Cultural Property Advisory Committee urging them to create bilateral agreements with Belize and Bulgaria!" http://archaeological.org/CPAC

Those wishing to submit public comment can go to http://www.regulations.gov/#!submitComment;D=DOS-2011-0115-0001. Comments should address the so-called “four determinations” under the CPIA. Quoting the statute, the four determinations are:

(A) [whether] the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;

(B) [whether] the State Party has taken measures consistent with the Convention to protect its cultural patrimony;

(C) [whether] --
(i) the application of the import restrictions . . . with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties [to the 1970 UNESCO Convention]) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and
(ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and

(D) [whether] the application of the import restrictions . . . in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

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Photo of Thracian rhtyon used pursuant to Creative Commons permission: The Panagyurishte Treasure, October 2009, author http://www.flickr.com/photos/sitomon/.

CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Missed This New Jersey MDV the First Time Around

I was in Lubbock yesterday talking to their SHRM chapter about retaliation and the dangers of those cases, along with its first cousin whistleblowing, and this headline did nothing to change my mind. Former Warren Township prosecutor awarded $1.26M for whistleblower complaint.

A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.

Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.

A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.

Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.

Custer Battlefield Museum Lawsuit Against Federal Agents Dismissed in District Court

While a September 30, 2011 decision by the Ninth Circuit Court of Appeals may have breathed life into Christopher Kortlander’s challenges to the government (see October 19, 2011 blog entry), the US District Court for the District of Montana closed a door on the Custer Battlefield Museum owner and operator by dismissing his lawsuit against multiple federal agents. Kortlander argued that his rights were violated as a result of law enforcement raids that resulted in no criminal charges against him.

In a September 12, 2011 opinion, Judge Richard Cebull dismissed Kortlander’s claims saying they either violated the statute of limitations, were “implausible,” or “frivolous.” The court entered the dismissal with prejudice, meaning the matter could not be brought forward again. The reason given was “futility alone.”

The federal investigation began into Kortlander and the museum after “the Bureau of Land Management Office of Law Enforcement and Security began receiving complaints that Kortlander was selling artifacts on Ebay that he claimed were recovered from the Little Big Horn battlefield,” according to the district court opinion. The investigation broadened to include potential illegal activity involving eagle parts. Bureau of Land Management and US Fish and Wildlife took the lead in the investigation, and the agencies gathered information that led to the issuance of two court authorized search warrants in 2005 and 2008. The prosecution decided in 2009 not to pursue indictments.

See the district court’s full opinion at http://docs.justia.com/cases/federal/district-courts/montana/mtdce/1:2010cv00155/38767/34/.


CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Ninth Circuit Sends Custer Battlefield Museum Case Back to Lower Court - Lawsuit Seeks Unfettered Public Access to Search Warrant Affidavits


With no charges filed in a case targeting the Custer Battlefield Museum in Montana, the Ninth Circuit Court of Appeals has ruled that sealed search warrants and affidavits may be accessible to the public. Law enforcement officers from the Bureau of Land Management and other agencies searched the museum in 2005 and 2008. Court records reveal that the investigation focused on attempts to sell migratory bird parts as well as misrepresentation of provenance surrounding the sale of cultural artifacts.

Christopher Kortlander, owner and operator of the museum, has complained in lawsuits and public statements that the law enforcement raids were excessive and that he was unfairly targeted. As a result, he made seven Freedom of Information Act requests for investigative information regarding himself, Historical Rarities, Inc., Elizabeth Custer Museum and Library, Inc., Custer Battlefield Museum, and local stores. In 2010, Kortlander requested copies of search warrant affidavits. These affidavits normally contain the details of a police investigation.

The US Attorney’s Office in Montana eventually assented to the release of the material, but prosecutors urged the court, as reported in the Ninth Circuit opinion, to “’limit dissemination of the material to Kortlander’s personal review and/or for inclusion in any future court filings,” citing privacy interests of third parties.’ The government said: [C]oncerns have been raised that information collected by Kortlander may be posted on web sites. The Ninth Circuit has explained that ‘the privacy interests of the individuals identified in the warrants and supporting affidavits’ supports the conclusion that warrant-related material not be made available for public dissemination. Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).’” (quoting the government’s legal brief).

The lower court originally sided with the government. The federal district court authorized the release of the documents to Kortlander in particular, but restricted them from further public view. The court of appeals, however, overruled the district court and sent the case back to the district court, ruling: “We hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. . . . [T]he matter is remanded to the district court to reapply the common law standard to Kortlander’s request. We decline to decide whether the public has a qualified First Amendment right of access to warrant materials after an investigation has been terminated. In the event that the court denies Kortlander unrestricted access to the warrant materials under the common law, the court should decide in the first instance whether the First Amendment right applies to post-investigation warrant materials and, if so, whether Kortlander is entitled to unrestricted access under the First Amendment . . .”

The full opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/30/10-30222.pdf.


CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Congressional Recognition of National Archaeology Day

In anticipation of National Archaeology Day to be held on October 22, 2011, Rep. Michael Capuano entered remarks into the Congressional Record that were received by CEO Peter Herdrich of the Archaeological Institute of America. AIA events celebrating National Archaeology Day can be found at http://www.archaeological.org/NAD/events.







CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Eilidh Cairns - was the inquest into her death adequate?

BBC News has been reporting the Judicial Review proceedings heard today by Mr Justice Silber in the Administrative Court.  The legal action has been taken by the family of Eilidh Cairns against the Deputy Coroner of West London, Dr Shirley Radcliffe.  Dr Radcliffe was responsible for conducting the Inquest into the death of Eilidh who was killed by a lorry whilst she was cycling in Notting Hill in February 2009.
Counsel for the family is quoted as arguing that Dr Radcliffe failed to comply with her duties to "fully, fairly and fearlessly" investigate the facts of the death.  "There was a failure to consider the wider impact of Eilidh's death and the huge problem facing cyclists in London."
Counsel for the Deputy Coroner is quoted as arguing that the type of accident was "tragically common".and that there was no element of the accident which gave the coroner reason to think it "illustrated a systemic problem or that it might call for some specific response".
I confess that I find this response challenging; the fact that this type of accident is 'tragically common' may be thought to suggest that there is a systemic problem to which there could helpfully be 'some specific response'.
The death this month of fashion student Min Joo Lee in the motor-centric area of London around Kings Cross means that another Inquest will shortly be examining another death of a cyclist under a lorry.  Her death is the subject of an interesting article at The Guardian Bike Blog
An active participation in the prevention of future unnecessary deaths might be thought to be one of the strongest justifications there is for the coronial system of investigation that has come down to us from Medieval times.
I, for one, will be awaiting Silber J's Judgment with interest.

Recovery of Looted Egyptian Tomb Reliefs Leaves Unanswered Questions

The ancient Egyptian tomb of Hetepka featured prominently in the widely publicized court cases against Frederick Schultz in the United States and Jonathan Toleley-Parry in Britain as well as in a related criminal case in Egypt. Schultz, Tokeley-Parry, Ali Farag, Toutori Farag, Andrew May, and Mark Parry were all convicted during the late 1990's and early 2000's for their roles in an international antiquities trafficking scheme. That is why Ahram Online’s October 15, 2011 report that two looted limestone reliefs from Hetepka's tomb were “newly recovered” by the Egyptian Tourism and Antiquities Police is noteworthy.

Hetepka served as a royal hairdresser during the pyramid age, and modern-day looters dismembered and destroyed his tomb located at Saqqara. Police eventually found some of the tomb artifacts in Tokeley-Perry’s possession in England, but did not recover all the items that were looted. Ahram Online’s report suggests that the newly recovered reliefs are part of the original cultural objects that went missing from the tomb.

News of the recovery raises many questions:

• On what date and under what circumstances were the reliefs found?

• What information, and from what source(s), led the Egyptian Tourism and Antiquities Police to the reliefs?

• Where exactly were the reliefs found and under what circumstances?

• Whose possession were they in?

• What other items, if any, were also found?

• How are these reliefs related to items that may have been stolen from the tomb recently. Recall that former point-man for Egyptian antiquities, Dr. Zahi Hawass, referenced the Hetepka tomb when discussing his resignation on his blog at http://www.drhawass.com/blog/why-dr-hawass-resigned, saying: “The group now in charge of the protection of these sites is the Tourist Police, but there are no Tourist Police to do this either. Therefore, what happens? Egyptian criminals, thieves (you know, in every revolution bad people always appear…), have begun to destroy tombs. They damaged the tomb of Hetep-ka at Saqqara . . . . They attacked a storage magazine at Saqqara and we do not yet know how many artifacts are missing . . . . People have begun to build houses and to excavate at night, everywhere, putting heritage sites all over the country at risk.”

• Ahram Online reports that the recovered Hetepka reliefs were stolen in 1986. How is this known by the news outlet, especially since prior investigative information revealed that Hetepka’s tomb had been plundered in 1991?

Ahram Online’s report is conspicuously vague. You can read the article at http://english.ahram.org.eg/~/NewsContent/9/40/24162/Heritage/Ancient-Egypt/Two-reliefs-stolen-from-Hetepka-tomb-found.aspx.



Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

CPAC Will Meet to Review Cultural Property Protection Requests by Bulgaria and Belize

The Cultural Property Advisory Committee (CPAC) will next meet in Washintgon, DC at the US Department of State, Annex 5, 2200 C Street, NW on November 16, 2011 from 9:00 a.m. to noon. CPAC will consider requests by Bulgaria and Belize for American import restrictions on cultural objects pursuant to the Cultural Property Implementation Act. The meeting is open to the public, but a reservation must be made. Anyone wishing to provide public comment must submit a request and a written text by November 2. Contact the Cultural Heritage Center of the Department of State at (202) 632-6301.


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Art on Temporary Loan from Foreign Lenders - Immunity from Seizure and the Brogan Museum

According to a story published in The New York Times on October 11, 2011, the US Attorney for the Northern District of Florida requested that the Mary Brogan Museum of Art and Science in Florida retain a painting on loan from Italy while it is determined whether Girolamo Romano’s “Christ Carrying the Cross Dragged by a Rogue” was unlawfully taken from a Jewish family during World War II. The news article suggests that a federal immunity law might have been used by the museum to protect the artwork from any possible seizure.

Because the information presented by newspaper could be misconstrued—as noted by some members of the American Bar Association’s Art and Cultural Heritage Law Committee—it is worth discussing what the federal law is and how it works.

Congress passed a statute in 1965 entitled Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459). Lawmakers wished to promote the importation of fine art for the benefit of Americans by encouraging foreign art lenders to feel confident that their cultural works would not become entangled in litigation once on American soil. The statute protects from judicial seizure imported objects of cultural significance intended for temporary, nonprofit exhibition. The law prevents a civil litigant from seizing temporarily imported fine art to satisfy a judgment in a lawsuit, for example.

The immunity protecting an object of cultural significance is not automatic, which is why museums that accept foreign art on temporary loan should always consider applying for it. Any immunity that is granted is specific to the artwork; the immunity does not apply broadly to the museum as the Times article reports.

In order to acquire this immunity for an artwork, a museum should submit an application to the US Department of State at least six weeks prior to its importation. The application should contain ten pieces of information that include a description of the item covered, its provenance, its exhibition location, a description of the object’s cultural significance, and a description of why the temporary exhibition is in the national interest. By Executive Order 12047, the President of the United States has authorized the Director of the US Information Agency “(1) to determine that any work of art or other object to be imported into the United States within the meaning of the Act is of cultural significance, (2) to determine that the temporary exhibition or display of any such work of art or other object in the United States is in the national interest, and (3) to cause public notices of the determinations referred to above to be published in the Federal Register.” The USIA director must consult with the Secretary of State and may consult with others, including the Secretary of the Smithsonian Institution and the Director of the National Gallery of Art.

For the Brogan Museum to have taken advantage of seizure immunity for the Romano painting, it would have had to apply for it.

Reference: http://www.nytimes.com/2011/10/12/arts/design/for-florida-museum-dispute-over-romano-painting-is-a-boon.html?_r=1&src=recg

Photo of the Brogan Museum permitted to be used under Creative Commons license.
Description: Tallahassee FL Brogan MOAS01.jpg
Tallahassee, Florida: The Mary Brogan Museum of Art and Science
Date: 24 May 2011(2011-05-24), 14:10:25
Source: Own work
Author: Ebyabe


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Ancient Egyptian Relief from Abusir Recovered

A February 1, 2011 post on this blog spoke about the conflicting reports out of Egypt regarding looting at Abusir. The government reported that the area was safe, while other information suggested otherwise. Now there is information from Ahram Online of the following:

"On Tuesday [October 11, 2011], the Egyptian Tourism and Antiquities Police succeeded in recovering an ancient Egyptian limestone relief which had been reported missing during the chaos that followed the January 25 Revolution.

The relief, which was discovered by the Czech archaeological mission in Abusir, was one metre tall and 60 centimetres wide. It depicted four walking geese with a hieroglyphic text.

Atef Abul Dahab, head of the ancient Egyptian department at the Supreme Council of Antiquities (SCA), told Ahram Online that the relief was one amongst those that were looted from the Abusir storage, following the lack of security after the events in January."



Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Third Annual National Cultural Heritage Law Moot Court Competition

The following announcement is passed along. Law students are encouraged to participate in this meaningful and challenging competition:

"The DePaul University Moot Court Team and the Lawyers’ Committee for Cultural Heritage Preservation invite you to participate in the Third Annual National Cultural Heritage Law Moot Court Competition in Chicago, Illinois. This year’s competition will be held 24-25 February 2012 at the Everett McKinley Dirksen Federal Courthouse, home of the Seventh Circuit Court of Appeals.

The Competition has been a great success in the past and judges have included distinguished academics, practitioners, and active judges. This year we are proud to welcome Judge Diane Wood of the Seventh Circuit to our final round judging panel.

Cultural heritage law deals with our most prized possessions and spans beyond national borders; it has become the subject of contentious legal debates and policies. This dynamic and growing legal field deals with the issues that arise as our society comes to appreciate the important symbolic, historical and emotional role that cultural heritage plays in our lives. It encompasses several areas of law: protection of archaeological sites; preservation of historic structures and the built environment; preservation of and respect for both the tangible and intangible indigenous cultural heritage; the international market in art works and antiquities; and recovery of stolen art works.

The 2012 problem will address two issues concerning the Theft of Major Artwork Act (18 U.S.C. § 668). The first focuses on Congress’ Article I, Section 8 authority to regulate interstate commerce and the second on statutory interpretation of the Act.

We would love to see your school participate in the competition this Spring. Registration is now open and applications will be accepted until November 11th.

Additional information about the registration process is available on our website at law.depaul.edu/chmoot, and if you have any questions, please do not hesitate to contact the Competition committee anytime at chmoot@gmail.com."

Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

A Timely Follow Up -- The Importance of Action Not Words

Given the topic of my previous post  --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.

The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.

Giving Aid to the Enemy: The Healthy Workplace Act Explained

David Yamada who posts at Minding the Workplace is also the author of a model bill, The Healthy Workplace Act (HWB), designed to address bullying in the workplace. A recent post, The Healthy Workplace Bill: What’s it all about?, gives a bit of the procedural history but also links to what he calls an "excellent slideshow that explains the need for, and basic provisions of the HWB," that was prepared by Deb Falzoi, a professional web designer and computer graphics expert who doubles as communications director for Massachusetts Healthy Workplace Advocate.

I concur -- it is an excellent slideshow. And if you have any interest in the issue (or just want to see a very impressive presentation) I encourage you to check it out.

Recommending that you check it out, could seem strange given my repeated opposition to the passage of the HWB. And to be clear, the "enemy" referred to in my headline is not really accurate. Bullying behavior is wrong and should be addressed and with that I am in common cause with David and the other supporters of the HWB.

Our difference, and it is a substantial one, is how best to get there. I do not believe the legal system, the HWB's preferred method, is capable of making the types of nuanced distinctions required to enforce the HWB.

As Exhibit A, I offer the presentation. When you check it out, pay careful attention to the types of behavior that can be called "bullying":
  • false accusations
  • yelling, shouting, screaming
  • exclusion and "the silent treatment"
  • withholding resources necessary to do their jobs
  • behind-the-back sabotage and defamation
  • put-downs, insults, and excessively harsh criticism
  • unreasonably heavy work demands
and please explain how a legal system that is stressed deciding whether an employment decision was based on race or gender, is going to distinguish between what is a reasonable and and unreasonable work demand, or appropriate, constructive criticism versus excessively harsh criticism, just to cite two of the categories.

I know that the HWB attempts to put in procedural protections to ensure that a suit can't be based on "just a bad day at the office," but as someone who is in the trenches where those battles are fought, I know it will not work. (Let me rephrase that, it could work, but at a tremendously prohibitive cost in both judicial and employer resouces. Lawyers, however, would benefit tremendously.)

Relying on trial courts to be effective gatekeepers on this issue is simply a flawed strategy. First, it ignores the basic principle that when an employer is sued they have lost.  See my earlier post, Bullying As a Cause of Action: One Large Step Closer.  Given the HWB to work with, any lawyer who could not craft a viable complaint on what he or she is told by any employee who is unhappy with their workplace, should turn in their bar card. Remember the standard for chucking it out at that stage, which would still cost the employer the cost of retaining counsel and making an initial pleading, generally requires the court to accept as true anything that is alleged in the complaint.

Secondly, it has not worked even when there was a much higher bar. In Texas, the Supreme Court has repeatedly lamented the failure of lower courts to serve in the gatekeeper function in cases of intentional infliction of emotional distress, where the standard is:
only where the conduct has been so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts, Section 46 cmt. d (1965).
If the trial courts can't screen out cases where the test is "outrageous conduct" we can't possibly expect them to do so where they are being asked to make subtle distinctions involving the kinds of conduct listed above. In fact, it would require  what courts from the Supreme Court on down have frequently insisted they are not interested (or capable) of being,  "super personnel departments" as the 1st Circuit described it.

The key to regulating inappropriate conduct lies in employer action. And in the presentation, there is a section on how such conduct is harmful to business. That is the case that needs to be made.

Let's just make it in the C-Suite, not the courthouse.

Historical Documents Returned to UVM - Documents Linked to Indicted Pair - Library Loss Prevention Recommended

The University of Vermont (UVM) has recovered historical documents that disappeared from its library. The Burlington Free Press reports on October 4, 2011 that 67 documents were returned to UVM after officials at the National Archives in Washington, DC reported that they had the papers in their possession. “The papers were found after investigators recovered hundreds of items from Barry Landau, 63, who with Jason Savedoff, 24, is accused of conspiring to steal rare documents to sell at a profit, according to government allegations,” the Burlingotn Free Press writes. Source: http://www.blogger.com/www.burlingtonfreepress.com/article/20111004/NEWS0213/111004005/-1/NEWS/Federal-probe-finds-missing-UVM-documents

A federal grand jury in Maryland handed up a two count indictment on July 28, 2011 against the pair, charging them with Conspiracy to Commit Theft of Major Artwork and Theft of Major Artwork. The indictment alleges that the co-defendants stole from the H. Furlong Baldwin Library at the Maryland Historical Society, the New York Historical Society, and the Franklin D. Roosevelt Presidential Library and Museum in Hyde Park, New York. The indictment also asserts that they took dozens of items in order to sell, including historical documents of FDR, a letter from Benjamin Franklin to John Paul Jones, and a land grant signed by Abraham Lincoln. An indictment is not a finding of guilt.

In order to secure a conviction of Theft of Major Artwork under 18 USC 668, the prosecution must prove beyond a reasonable doubt that the defendants “did steal and obtain by fraud from the care, custody, and control of a museum objects of cultural heritage.” An object of “cultural heritage” is defined by law as one that is under 100 years old and valued at $100,000 or more or an object that is over 100 years old and valued at $5000 or more.

The latest development in the case is a petition filed by Landau to sell assets. The motion, filed on September 23, 2011, asks the court for permission to sell antiques, letters, jewelry, art (including two Andy Warhol prints) so that Landau can raise money to pay for day-to-day expenses. Landau is under court order to not to sell assets without judicial authorization. See a further update on this recent filing at http://articles.baltimoresun.com/2011-10-07/news/bs-md-landau-asset-sale-20111007_1_barry-h-landau-warhol-print-andy-warhol.

10/25/11 UPDATE: The court granted Landau's motion .

One inexpensive way to help prevent the loss of irreplaceable documents is to maintain historic documents in closed stacks. When a patron requests particular information, a librarian or staff member can obtain the materials in limited quantities (such as three items at a time) and place them at the patron’s table. Some institutions may feel comfortable asking for the patron’s ID, some may not. Regardless, a librarian or staff member should always be visible to the patron and should retrieve the items when the patron is finished, making an inventory of the items. A process like this one can be part of an effective loss-prevention program because it compels a patron to interact with a librarian or staff member directly so that the patron knows he or she has been identified, allows for the librarian or staff member to observe the patron for any signs of suspicion, permits the institution to control the quantity of materials provided to a patron at any one time, and allows for a librarian or staff member to ensure that the materials retrieved are the same ones returned. There are other methods that a certified insitutional risk management consultant can suggest.


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Disparate Impact and the Non-Traditional Plaintiff

At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?

Throughout the year I have noted other cases. And now Molly DiBianca who is always on top of things at the Delaware Employment Law Blog has picked up yet another case recently decided by the 3rd Circuit, Disparate Impact of Newark, NJ’s Residency Requirement .

In Meditz v. City of Newark, (9.28.11) [pdf] a white male analyst job applicant was rejected by the City of Newark because he did not live within the city limits. The Court summarized the case in perfect disparate impact terms:
Meditz alleges that the residency requirement adopted by Newark for its non-uniformed work force has a disparate impact on white, non-Hispanics because Newark‟s population does not reflect the racial make-up of the relevant labor market in the surrounding area. As a result, white, non-Hispanics are under-represented in Newark‟s non-uniformed work force.
Although there were a number of statistical comparisons, one was between the City of Newark and Essex County, the county had 42.96 % white, non-Hispanic employees in the non-uniformed ranks compared to Newark's 9.24%.

The decision has a good discussion not only about the statistical basis for finding disparate impact, but how to determine the relevant job market and the correct standard for the business necessity defense.

About the only thing that this case does not stand for is that lawyers are being more receptive to bringing claims on behalf of non-minority plaintiffs. Mr. Meditz represented himself, including at oral argument.

Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes

In addition to denying cert on the USERRA hostile environment case (see yesterday's post), the Supreme Court yesterday also reversed an FLSA case from the 9th Circuit:
10-1202  CHINESE DAILY NEWS, INC. V. WANG, LYNN, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition.
The use of Wal-Mart Stores, Inc. v. Dukes in an FLSA case is a key link for those who are advocating for greater control by the courts of FLSA collective actions.  Unfortunately, as the 9th Circuit opinion shows, while the case is an FLSA case it is also a Rule 23 case on the state law claims.  So, the linkage is not as definitive as one would like.

And according to the Employment Law 360 story ($) Citing Dukes, Supreme Court Vacates $7.7M FLSA Award, which tipped me off to the case, the argument that got the Supreme Court's attention was in fact the 9-0 portion of Wal-Mart v. Dukes:
In its petition, the Chinese Daily News leaned heavily on the decision, in which the Supreme Court unanimously ruled that claims for injunctions or declaratory rulings in class actions typically don’t allow for monetary payments.
For a more aggressive attempt to use the Dukes decision in a pure FLSA context check out the mandamus action recently filed in the 6th Circuit, In Re HCR ManorCare ($). The employer which had been ordered to send notice under the two-step Lusardi standard had challenged the court's continued use of such standard in light of Dukes. Unfortunately, last week, the Court denied the petition.

However, if (like me) you are looking for glimmers of hope, the Court did note  "Moreover, “because mandamus is a discretionary remedy, a Court may decline to issue the writ if it finds that it would not be ‘appropriate under the circumstances’ even if the petitioner has shown he is ‘clear[ly ] and indisputabl[y]’ entitled to it.”

To be fair, the Court did not find that the employer was entitled to the writ. However, with these cases and others, it does appear that small chinks in what heretofore has been a fairly impermeable wall protecting easy passage to conditional certification for FLSA collective actions are beginning to occur.

Although it would be disruptive to the financial income of  lawyers who practice on both sides of the FLSA docket, I can't think of a single trend in employment law that could be more important.

Stolen Art Repatriated to Poland Following Default Judgment in U.S. v. One Julian Falat Painting Entitled “Off to the Hunt” and One Julian Falat Painting Entitled “The Hunt”

U.S. Immigration Customs and Enforcement’s (ICE) Homeland Security Investigations (HSI) and the U.S. Attorney’s Office for the Southern District of New York repatriated two Julian Falat paintings on September 22, transferring them to President BronisÅ‚aw Komorowski of Poland in a ceremony held at the Polish Consulate in New York. American and Polish officials said that the Nazis stole “The Hunt” and “Off to the Hunt” from Warsaw’s Polish National Museum during the era of World War II.

In 2006, the Polish government found the paintings at two auction houses in New York, which removed them from sale when notified. Authorities acquired the paintings this past August after a federal district court in Manhattan entered a default judgment in the U.S. government’s favor. Federal officials then turned the paintings over to Poles.

"No one can ever provide just compensation to the victims of the Nazis' atrocities, but it is very gratifying for our office to play a role in returning the art that they looted during World War II to its rightful owners," said U.S. Attorney Preet Bharara in a statement. "After 60 years, these national treasures will finally be returned to the Polish Government—a repatriation that would not have been possible without their help."

The U.S. Attorney’s Office filed an in rem forfeiture action against the paintings on December 13, 2010 in order to acquire the artworks. (In a court proceeding for civil forfeiture, the defendant is the property, not a person.) In its complaint, the prosecution alleged that there was probable cause for forfeiture. Assistant US Attorney Kan Nawaday specifically described how “Off to the Hunt” was removed from the National Museum without its frame during World War II. A frame for the artwork originally contained an inked inventory mark, the number 345, when the Society for the Encouragement of Fine Arts in Warsaw placed it there in 1904. The frame survives. “The Hunt,” meanwhile, was also transferred to the National Museum when the German SS confiscated the painting. A catalog record and photograph of the artwork still exists.

The Polish government published a catalog of looted art in 1951 following the Second World War. It described both paintings. Since 1989, the Polish government continued to post the loss of “Off to the Hunt” and “The Hunt” on the internet. The paintings surfaced when Christie’s and Doyle New York, respectively, offered them for auction.

The federal complaint explained that an HSI agent spoke with the consignor of “Off to the Hunt,” whose name was supplied to the Polish government by Christie’s. The consignor had no purchase records and no import paperwork, according to the complaint. Additionally, HSI’s own search of customs records could not find any information related to the import.
HSI was also in contact with the attorney for the consignor of “The Hunt.” The federal complaint described how HSI “spoke with employees of Doyle . . . who informed them that the consignor . . . had brought the painting in for appraisal unframed and wrapped in an old sheet. Additionally . . . employees advised that [the consignor] had provided conflicting stories about how she came in possession of the painting.” HSI itself could find no importation records relating to the painting, according to court papers.

The federal forfeiture complaint stated that each Falat painting was valued at $50,000.

The U.S. Attorney’s Office argued that the paintings could be lawfully forfeited under four alternative legal theories. First, the works of art could be forfeited under 18 USC 981(a)(1)(C) because they were proceeds arising from a violation(s) of the National Stolen Property Act. Second, they could be forfeited under 19 USC 1497(a)(1) because there was no declaration of entry made on any customs form when imported into the United States. Third, they could be forfeited pursuant to 19 USC 1595a(C)(1)(a) because there was probable cause to believe that they were imported in violation of the federal smuggling law or the National Stolen Property Act. Fourth, the paintings could be forfeited because there was “probable cause to believe that they were brought to the United States contrary to law, the possessors of the Defendant Paintings [were] aware that they were stolen and are attempting to offer the Defendant Paintings for sale . . . .”

The government won its case by default after the paintings’ possessors failed to contest the forfeiture complaint. The court granted judgment on August 3, 2011.

"Those paintings are two magnificent and very important pieces of art," said Bogdan Zdrojewski, minister of culture and national heritage of Poland. "If you think about all the Falat paintings, these two are definitely the most interesting and most valuable ones," the minister was quoted as saying in a September 22, 2011 ICE press release.

But at least one of the paintings is not one that the Nazis looted, according to assertions made in a July 1, 2011 letter and attachments sent to the federal court by the possessor of “Off to the Hunt.” She wrote that “a technical analysis of my painting put[s] into severe doubt that my painting and [the Polish government’s] lost painting were one and the same.” She objected to the “far-from-thorough ICE investigation and . . . U.S. Civil laws designed to trap criminals and not good-faith possessors of disputed objects . . .” She also wrote of her inability to enlist her insurer or an affordable attorney to help defend the court action.

In letters addressed to NY Senator Charles Schumer dated June 23 and Secretary of State Hillary Clinton dated June 27 (both contained in the public court file) the possessor made a variety of statements, including the following:
• she was the daughter of a Holocaust survivor,
• she inherited “Off to the Hunt” from her father who bought it in Paris before transporting it to the USA in 1948,
• the “lost painting and mine are two originals by the same painter,” and
• it was improper for the government to imply that she and/or her father may have been “bad faith” possessors of the work.

HSI Executive Associate Director James Dinkins, meanwhile, said in a September 2011 press statement that his agency was “deeply gratified to be able to return these cherished paintings that were taken from the people of Poland so long ago.”

Photo courtesy of ICE.

First Monday in October - Ho Hum for L&E Types

Tomorrow marks the start of the Supreme Court's new term, and at least for private sector Labor and Employment types, there's not a lot to get excited about. (From the employer side of the docket at least the Court has not taken a retaliation case!)

In fact, at least according to one of the Justices the Court does not have many exciting civil cases in general for a somewhat surprising reason, Justice Kennedy says fewer “big civil cases” on Supreme Court’s docket due to arbitration.

It's not as if there are none and as always, the SCOTUS Blog is great source of information. The current cases with a labor and employment flavor include:
  • 10-553 Hosanna-Tabor Church v. EEOC.  Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. 

    This is actually set for argument in the first week of the Court's term and is a private sector case. As a general rule the lower courts have interpreted the ministerial exception to Title VII broadly, and I would anticipate the same by the Supreme Court.

    Update: Although I doubt that it has little relevance to the decision, I was struck by this article, Red Mass Marks Start of Supreme Court Session  from today's New York Times discussing The Red Mass, at least the Supreme Court style which is held on the 1st Sunday in October at St. Matthews Cathedral in D.C.  This Court now consists of six Catholics, three Jewish members and no Protestants.
  • 10-1016  Daniel v. Maryland Court of Appeals.  Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.
  • 10-1121 Knox v. SEIU.  (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction? (2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures. 
If you were looking for a case that might have some indirect impact, you might look at a case involving EPA procedures

10-1062  Sackett v. EPA.  (1) Whether petitioners may seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 §704; and (2) whether, if not, petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

Although I have not compared the statutes I can see some parallels to whistle blower statutes, e.g. Sarbanes Oxley, which allow for pre-hearing reinstatement during the pendency of the case.

Probably more important are potential cases where cert is pending that could be accepted.
  • 10-1546  Carder v. Continental Airlines. Whether the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provide service members a cause of action when their civilian workplace is sufficiently poisoned with harassment based upon military status so as to alter conditions of their employment.

    The  5th Circuit decision held as a case of first impression that there was no cause of action. (The matter was handled by Jeff Londa and Flynn Flesher of the Houston office of Ogletree Deakins.)

    Update 10.3.11:  The Court has denied cert in today's Order List.
  • 10-1163  Opp v. Office of the State's Attorney of Cooke County.  For purposes of the Age Discrimination in Employment Act, who is a worker “at the policy making level”?

    Update 10.3.11: The Court has denied cert in today's Order List.
  • 11-204 Christoper v. SmithKline Beacham Corp. (1) Whether deference is owed to the Secretary of Labor's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.
After last year's blockbuster session on labor and employment issues, it wouldn't be the end of the world for a year without anything of great significance.

On a personal note, I can never note the opening of the Court's new term without remembering fondly one of my former partners, Bob Mebus, who always used the occasion to change to his fall wardrobe. (In Texas a somewhat arbitrary line I can assure you.) Although Bob, who was one of the great traditional labor lawyers in Texas is now retired, I would be surprised if he does not still mark the occasion.

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