The Art Law Report Providing timely updates and commentary on legal issues in the museum and visual arts communities

Appeals Court Rules Mask of Ka-Nefer-Nefer Will Stay at St. Louis Art Museum Because Government Missed Deadlines

Posted in Antiquities, Customs, Restitution

 The Court of Appeals for the 8th Circuit has affirmed the dismissal of the U.S. government’s attempt to seize the Mask of Ka-Nefer-Nefer from the St. Louis Art Museum.  Despite the government’s persistent characterization the mask as stolen before it entered the country, the civil forfeiture case has been rebuffed.  The narrow issue was whether the trial court had properly denied the government’s request to amend its complaint after an initial challenge, but as the 8th Circuit put it, “Underlying that issue is an attempt to expand the government’s forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts.”  That latter question will have to wait another day, because the case was resolved on the government’s missed deadlines and nothing more.

 The Mask of Ka-Nefer-Nefer is a funerary mask of an ancient Egyptian noblewoman.  After the museum purchased it from a dealer in 1998, the United States later began to seek its seizure, arguing that it was stolen property.  The United States brought a civil forfeiture action under U.S. customs laws.  The government argued that because the Mask had gone missing in Egypt by 1973 and then surfaced in a sale in the United States decades later, it could not have been imported legally pursuant to 19 U.S.C. § 1595a.  In such cases, the government need only establish probable cause, whereas the claimant assumes a burden to prove the object was not stolen.  They are typically, in procedural terms, almost a foregone conclusion.

 

The District Court, however, came to a scathing conclusion of the government’s allegations.  The court stated “the claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged ‘stealing,’ nor can the Museum ascertain if the Government is pursuing of the Mask based on alleged theft or a unlawful import/export, or both.”  Harsher still, the court held that “the Government has been completely remiss in addressing the law under which the Mask would be considered stolen.”

 

The government’s efforts to seek reconsideration or to amend the claim fared no better.  The District Court had noted that the government had previously requested more time to move for permission to amend the complaint (in various filings the government had essentially asked for leniency to plead more specific facts to support the allegations of customs violations).

 

At that point the case went up on appeal and was argued in January before today’s opinion.  First, it dismissed the government’s claim that it should have been allowed to amend without even asking, citing a long string of 8th Circuit precedent.  Then, as we predicted here at the time that the District Court would, the 8th Circuit focused on the lateness of the request to amend, noting that the 28 day deadline in Rule 59(e) of the Federal Rules of Civil Procedure cannot be extended.  Similarly, the more permissive standards to amend or alter a final judgment are entrusted to the discretion of the trial judge, and the appeals court saw no abuse of that discretion.

 

This is an extremely dry procedural opinion, so its effect on similar claims should be limited.  Its effect on training at the Department of Justice to ensure that deadlines are not missed will likely be more pronounced.  The case is, to put it bluntly, a huge embarrassment for the government.  The seizure petition had serious issues of logic and proof, as the District Court pointed out.  But now that question will never be litigated on the merits; to lose the right to appeal for a missed deadline by the DOJ would almost be malpractice per se by a private lawyer.

 

And, there are good reasons for strict deadlines.  Forfeiture actions give the government great power to take private property on a very minimal burden of proof.  It is only fair that it be held to the rules when it tries.

 

There was one concurring opinion, which was essentially to make the point for anyone reading it that notwithstanding this result, purchasers of antiquities best be on their guard, because even good faith is no defense to the customs allegations that were raised (citing the U.S. v. Davis case over a painting stolen in France).

 

In any event, the mask will stay where she is, no doubt to the delight of the museum.