NASA refused to return bag of lunar material that woman bought at auction
By Scott Lauck
BridgeTower Media Newswires
ST. LOUIS, MO - Christopher McHugh of Seigfreid Bingham in Kansas City has, undoubtedly, the most successful lunar sample bag practice in the country.
It's a practice that consists of just one case - but a case that spanned three federal courts, set new precedent for the government's ability to reclaim property and soon will culminate in an auction potentially worth millions.
"I've never done a space case before," McHugh said. "Too bad there's not much call for it. I could make a career out of it. I don't think this happens too often."
McHugh represented a Chicago-area attorney, Nancy Carlson, whose story has made headlines across the country. In 2015, Carlson purchased a small white zippered bag labeled with the words "lunar sample return" at a government auction for $995. The National Aeronautics and Space Administration soon confirmed that the bag not only contained bits of lunar material but in fact was a long-lost artifact of Apollo 11, the first manned landing on the moon. NASA refused to return the bag.
Carlson initially filed a pro se civil rights case in U.S. District Court in Northern Illinois, but the case was transferred to Kansas, the state where the bag's journey into Carlson's hands began and where McHugh came into the case.
The lunar sample bag had once been part of the personal collection of Max Ary, the former head of the Cosmosphere and Space Center in Hutchinson, Kansas. In 2006, Ary was convicted of having sold museum artifacts, some of which belonged to the United States, and keeping the proceeds for himself. Years later, the government began auctioning off property it had seized from Ary, including the bag.
At the time, no one realized that the bag had any value, historic or otherwise. McHugh said Ary apparently had obtained the bag from a friend at NASA just before the agency threw it away. The Cosmosphere's documentation for the bag listed it as a "Lunar Sample Return Bag (Flown Mission Unknown)," and valued it at $15. Federal agents had found the bag sitting in Ary's garage, and it failed to attract a single bidder when it was first put up for action in 2014.
"Nobody bothered to find out what it was," McHugh said. "Nobody associated any value with it, so it just got stuck in a corner - until Nancy came along and recognized it for what it was."
McHugh came into the case when he got a cold call from Carlson last year. His typical practice includes commercial and business litigation, and while many of his cases involve transportation issues, few if any have featured rockets to the moon.
But before joining Seigfreid Bingham in 2010, McHugh had been with what is now Joseph, Hollander & Craft in Wichita. That firm had represented Ary on appeal, and while McHugh said he was only "tangentially involved" in the case, he was listed among the attorneys of record in the federal court file. McHugh's familiarity with the underlying case might have persuaded Carlson that he would listen to her unusual story. (Carlson didn't respond to a request for comment made through Sotheby's, the company preparing to auction the bag.)
"It was just luck, really, luck at picking up the phone," McHugh said.
Last August, the government filed a motion within Ary's original criminal case seeking to rescind the sale of the bag. It argued that the item belonged to NASA and that the agency had never been notified that such a valuable historical item was going up for auction. McHugh responded with a motion under Rule 41(g) of the Federal Rules of Criminal Procedure - a provision under which people can seek the return of property the government has improperly seized. Carlson's original civil rights suit was dismissed.
"Rule 41 is this nice neat little tool that not a lot of people know about that you can get in really quick and get property back from the government," he said.
The problem in litigating the case was the lack of precedent. There have been plenty of instances where the government has successfully reclaimed property that wasn't supposed to be in private hands, but McHugh said they could find no case where the government had sold something and then wanted it back.
"I just don't think it's ever happened before," he said. "It may never happen again."
Julie Parisi, a Seigfreid Bingham associate who worked with McHugh on the case and handled much of the briefing, said an irony of the case is that the auction at which the bag was sold was intended to generate money for restitution for people who had bought items from Ary and later had to forfeit them to the government.
"They were not bona fide purchasers," she said. "But Nancy was."
In a December 2016 order, U.S. District Judge J. Thomas Marten concluded that NASA - "whose amazing technical achievements, skill and courage in landing astronauts on the moon and returning them safely have not been replicated in the almost half a century since the Apollo 11 landing," he noted - would have a good case to keep the bag, were it not for the "insurmountable" fact that the government itself willingly sold it.
"In sum, the court simply finds no authority for granting the relief sought by the United States," Marten wrote. "The United States obtained title to the bag and sold it to Ms. Carlson, a good faith purchaser, in a sale conducted according to law. She is entitled to possession of the bag."
Nonetheless, Marten said he had no authority to force NASA to return the bag, as it had been seized in Texas. McHugh filed yet another action in the Southern District of Texas. In February, Judge Vanessa Gilmore ordered the bag to be returned to Carlson.
McHugh declined to discuss the fee arrangement for the case, other than to say it was not done pro bono. But, he added, he was thankful Seigfreid Bingham's management allowed him to take the case despite its unusual nature. How many firms have had to do a conflicts check for suits against NASA?
"Looking back, it looks a lot safer," he said. "But at the time it kind of looked like a wild goose chase."
For Parisi, the case may have seemed even stranger - McHugh asked for her help on just her second day at the firm. At first, she thought McHugh was joking.
"I had researched the firm, but I didn't know they were experts in space law," she said.
On July 20, the 48th anniversary of the Apollo 11 moon landing, Sotheby's plans to auction the bag in New York for as much as $4 million. McHugh and Parisi are both planning to attend. McHugh has a countdown to the second to the 2 p.m. Eastern Time sale ticking away on his phone.
"It's a perfect end to a case with a bunch of new experiences," he said.
Published: Mon, Jun 12, 2017
