On the heels of the St. Louis Art Museum’s victory against the civil forfeiture action over the Mask of Ka-Nefer-Nefer, the question arises what the museum will do with the lawsuit it filed in 2011 concerning the mask.  That lawsuit, The Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District of the City of Saint Louis and the County of Saint Louis, (the “SLAM Case”) filed before the civil forfeiture action that was the subject of last week’s opinion(United States vs. Mask of Ka-Nefer-Nefer, hereafter the  “Forfeiture Action”), sought a declaratory judgment on several issues.  This tactic is not uncommon when two parties disagree over a claim; essentially the party who would ordinarily be the defendant (here the possessor of the property, the museum), seeks offensively a declaration about the parties’ rights.  Because of its recent victory in the Forfeiture Action, the museum’s best move may be to dismiss the SLAM Case now, rather than litigate ownership questions that it no longer has to answer.

In the SLAM Case, filed after demands from the government and an all-but-certain civil forfeiture action, the museum asked the Court

to declare the respective rights of the parties with regard to the Mask, specifically that (1) the right of the United States to seek seizure and/or forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”) is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. § 1621, and (2) the provisions of Egyptian Law No. 215 do not establish the Mask is Egypt’s property, nor can the Defendants establish reasonable cause to believe the Mask was “stolen, smuggled, or clandestinely imported or introduced” into the United States pursuant to 19 U.S.C. § 1595a.

In simpler terms, the museum asked for a declaration (1) that the mask could not be seized by the government because the claim was too old, and (2) that under Egyptian law, the mask is not the property of Egypt.

This was a shrewd move, because those are the elements of the government’s right to seize the mask.  If the museum could win that judgment first, the government would have been unable to make out its claim in the Forfeiture Action.  But the key point is the burden of proof: the museum would have to establish its claims in the SLAM Case only by a preponderance of the evidence, whereas the government in the Forfeiture Action was required only to show probable cause that the mask had been stolen before being important, and therefore amenable to seizure pursuan to 19 U.S.C. § 1595a.  Basically, the museum sought a proceeding where it had to establish something as more likely than not (anything more than 50%) rather than defend a proceeding where the government always wins.

When the government proceeded to file the Forfeiture Action, , the museum successfully moved to dismiss it.  The SLAM Case was then stayed (held in place) pending the outcome of the motions in the Forfeiture Actions.  As it turned out, the government couldn’t even get the petition passed that stage.

So what becomes now of the first case that the museum filed?  The parties pledged earlier this year to update the District court once the 8th Circuit had ruled as it now has.  The first question that comes to mind is whether this lawsuit serves the museum any further.  Unless the full panel of the 8th Circuit reverses last week’s opinion, or the Supreme Court does, the government’s efforts to seize the mask are over for good.  The museum’s case did not, tellingly, seek a declaration that it does own the museum, it sought a declaration that Egypt does not and that the forfeiture action was time-barred.

There are further complications if the museum presses the case.  Egypt could try to intervene as a defendant and counterclaim against the museum for return of the mask.  Egyptian Minister of Antiquities Mohamed Ibrahim said in response to last week’s ruling that Egypt would not abandon the claim.  That is a fight the museum presumably doesn’t want to have, and doesn’t need to have.  The status quo favors the museum entirely, after all—it has the mask.  Why would it spend further time and resources to prove the history of the mask’s acquisition?

The museum has one important option, however, but it must use it soon if it wants to do so.  Because the U.S. itself moved to dismiss the museum’s case, and the case was stayed, the government never filed what is called an Answer.  That is an important distinction, because a plaintiff may always withdraw its Complaint at any time before an Answer (which motion to dismiss is not).  And it can do so “without prejudice,” meaning it does not waive the right to bring it again, or assert the same claims if Egypt ever does come to the U.S. to file a lawsuit (which it could).

There is no indication when the parties will file their status report.  But time is running short on how long the museum remains master of the case—if the government answers, then the battle may be joined until it is done.