Most of Claimant's responses to the Verified Complaint raise issues that were resolved by the Fourth Circuit in its 2012 decision. In particular, in its responses to the allegations in the Complaint, and in most of its affirmative defenses, Claimant seeks to challenge the underlying basis for, and the procedures used to draft and promulgate, the regulations and procedures implementing the Convention on Cultural Property Implementation Act (CPIA). Those issues have been resolved, and the Fourth Circuit's decision now represents the law of this case. Accordingly, the court is no longer concerned with, and Claimants may not re-litigate, why or how the applicable statutes and regulations were enacted. Nor are the parties or the court concerned with whether the defendant property should have been designated as archaeological material covered by those statutes and regulations. The only issue is whether these particular coins are so designated, such that they are subject to forfeiture in this proceeding.Accordingly, the Government is moving to strike from the Answer any response or affirmative defense that challenges the forfeiture action on the ground that the statute and applicable regulations were not properly implemented. In addition, the Government moves to strike Claimant's attempt to re-litigate, by way of an affirmative defense, whether the Government is required to prove that the defendant property was first discovered in Cyprus and China, and to strike Claimant's attempt to assert an innocent owner defense on the ground that such a defense is not available in this case as a matter of forfeiture law.
In prior litigation between the parties, the Government represented to this Court that the Guild would be entitled to litigate the issue of whether the defendant property was "first discovered within" and "subject to the export control" of either Cyprus or China in the context of a forfeiture action. Moreover, in this litigation, the Government itself has put its own actions at issue by asserting that it complied with the CPIA's procedures in promulgating import restrictions.
Plaintiff s claims are barred in whole or in part because, on information and belief, mid and/or low level employees of the U.S. Department of State, working in concert with members of the archaeological community ideologically opposed to private collecting, engineered the imposition of import restrictions on coins of "Cypriot type" in potential violation of Government standards of conduct, particularly those relating to impartiality.Plaintiff's claims are barred in whole or in part because, on information and belief, then Undersecretary of State Nicholas Bums ordered import restrictions on coins without regard to the procedures found in the CPIA as a "thank you" for receiving an award from Greek and Greek Cypriot lobbying groups that were working in concert with mid and/or low level State Department employees and/or members of the archaeological community ideologically opposed to private collecting.