Richard J. Sullivan, Circuit Judge:
Foreign governments and their instrumentalities are ordinarily immune from suit in American courts under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. (the "FSIA"). There are, however, several statutory exceptions to that general rule. One of those exceptions is the "expropriation exception," which may be invoked in certain cases involving property taken by a foreign government or its instrumentality in violation of international law. See id. § 1605(a)(3).
The question before us is whether that exception applies to property that was seized as part of an ongoing law enforcement investigation. We hold that such seizures ordinarily do not constitute a taking at all, much less a taking in violation of international law. And while there are a handful of narrow circumstances in which a seizure can fall within the scope of the expropriation exception, none applies to this case. Accordingly, we AFFIRM the judgment of the district court (Abrams, J.)
Lynda and William Beierwaltes are art collectors who are citizens and residents of Colorado. During the 1990s, the Beierwalteses assembled one of the world's leading private collections of ancient art. By the early-aughts, the couple found themselves in severe financial straits. So, in 2006, they engaged an art gallery based in Geneva, Switzerland — Phoenix Ancient Art S.A. ("Phoenix") — to help them sell their collection.
Phoenix was founded in 1998 by Hicham Aboutaam (together with the Beierwalteses, the "Art Owners") and his brother, Ali Aboutaam. Since then, Ali has overseen Phoenix's day-to-day operations, while Hicham has managed an affiliated gallery based in New York, where he is a citizen and resident. Over time, Hicham himself has acquired a large personal collection of antiquities, many pieces of which are stored with or consigned for sale to Phoenix in Geneva.
In December 2016, a border patrol officer for the Federal Customs Administration of the Swiss Confederation (the "Swiss Customs Administration") stopped a Land Rover registered to Phoenix that was entering the country across the French border.
Based on this information, the Swiss Customs Administration developed a "strong suspicion" that the warehouse was being used to store numerous pieces of illegally imported art and antiquities. Id. Thereafter, on February 10, 2017, the Swiss Customs Administration issued a "denunciation," asserting that Biljana and others were involved in the "sudden and suspicious move[ment] ... of a number of articles of cultural property." Id. at 39. This denunciation was similar to one that had been prepared the prior month by the Swiss Federal Office of Culture (together with the Swiss Customs Administration, the "Swiss Agencies").
On February 24, 2017, based on those two denunciations, the Public Prosecutor's Office of the Republic and Canton of Geneva issued a search and seizure order, naming as defendants Ali, Biljana, Inanna Art Services, and others (though neither the Beierwalteses nor Hicham).
Days later, the Swiss Customs Administration issued a separate search warrant as part of a "criminal customs inquiry" into potential violations of Swiss law, including evasion of Swiss import taxes. Id. at 56. Pursuant to that warrant, 111 additional artifacts were seized from Ali's and Biljana's Geneva home, at least one of which belonged to the Beierwalteses. Similar to the Geneva prosecutor, the Swiss Customs Administration permitted the seized items to remain with Ali and Biljana, and simply "prohibited [the couple] from disposing of them." Id. at 57. And, like the Geneva search warrant, the Swiss Customs Administration's warrant made clear that the seizure
Over a year later, on May 7, 2018, the Art Owners sent letters to the Geneva prosecutor to demand the immediate release of their property. Within days, the prosecutor's office responded with a letter of its own explaining that the seized property was suspected of being related to criminal activity and that expert analysis was underway to determine whether any of the objects had been imported in violation of Swiss law. To help speed up that process, however, the prosecutor offered the Art Owners the chance to submit documents concerning the art's chain of title. Like the warrants, the prosecutor's letter again noted that the Art Owners could appeal to the Geneva criminal court.
Rather than provide the referenced documents or seek relief in Swiss court, the Art Owners reiterated their belief that there was no legal basis for the seizure and that their property should be returned. In each case, the prosecutor's office refused and indicated that the investigation was ongoing. The Beierwalteses sent a similar letter to the Swiss Customs Administration, which, like the Geneva prosecutor, responded that its investigation would proceed but that the Beierwalteses were free to provide documentation to help establish their legal ownership of the seized artifacts.
On August 8, 2018 — the same day the Beierwaltes filed their civil complaint in the U.S. District Court for the District of Colorado — the Geneva prosecutor released around 5,000 of the 12,000 objects that it had seized. Then, in April 2019, the Swiss Customs Administration requested additional information from the Art Owners about several items, and later released over one hundred items, six of them Hicham's.
Three sets of Swiss laws are relevant to that investigation. The first are Swiss customs laws. Nearly all articles imported into Switzerland must be declared for assessment of customs duties and value added tax. See Customs Act [CA] Mar. 18, 2005, SR 631.0, art. 25 (Switz.); Federal Act on Value Added Tax [VAT Act] June 12, 2009, SR 641.20 (Switz.). The Swiss Customs Administration is empowered to prosecute individuals suspected of evading those obligations.
The second are Swiss laws governing trade in cultural property. The seeds for those laws were first planted in 1975, when Switzerland ratified the United Nations Educational, Scientific and Cultural Organization ("UNESCO") 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 823 U.N.T.S. 231 (1972), a multi-lateral treaty designed to tackle the growing problem of trafficking in stolen art and antiquities. Among other things, the UNESCO Convention required member nations to "take appropriate steps to recover and return" stolen cultural property "at the request of the [country] of origin." Id. art. 7. But, as the Convention was not self-executing, it had very little immediate effect.
In June 2003, however, Switzerland enacted domestic legislation to implement
The last set of relevant Swiss laws concerns the nation's general prohibition on the knowing possession of stolen goods. Specifically, Article 160 of the Swiss Criminal Code makes it unlawful for any person to "take possession of ... goods which he knows or must assume have been acquired by way of an offence against property." Swiss Criminal Code Dec. 21, 1937, SR 311, art. 160 (Switz.). Naturally, this provision is often implicated in cases involving CPTA violations.
B. Procedural History
In early August 2018, the Beierwalteses sued the Swiss Agencies and Geneva in the District of Colorado, seeking a declaratory judgment as to their title to the seized artifacts, along with common law claims for conversion, unjust enrichment, and civil theft. The following month, Hicham filed a similar complaint in the Southern District of New York. The Beierwalteses' case was thereafter transferred on consent to New York as related to Hicham's.
On September 24, 2019, the district court dismissed both cases in a single decision. See generally Aboutaam v. L'Office Federale de la Culture de la Confederation Suisse, Nos. 18-cv-8248, 18-cv-11167 (RA), 2019 WL 4640083 (S.D.N.Y. Sept. 24, 2019). The district court reasoned that the Swiss Agencies and Geneva were immune from suit under the FSIA. And while the statute includes an exception for cases involving property taken in violation of international law — known as the "expropriation exception" — the district court determined that the Art Owners' property had been legally seized incident to a valid law enforcement investigation. See id. at *2-5. The district court also denied the Art Owners' request for jurisdictional discovery. See id. at *5.
The Art Owners each timely appealed the judgment. Because the facts and issues raised across the appeals are nearly identical, the appeals were argued in tandem, and we now resolve them in a single opinion.
II. Burden of Proof & Standard of Review
A defendant seeking to invoke the FSIA's protections must make a prima facie showing that it is a foreign sovereign. See Rukoro v. Federal Republic of Germany, 976 F.3d 218, 224 (2d Cir. 2020). If the defendant is successful in doing so, the plaintiff bears the burden of demonstrating that an exception to foreign sovereign immunity applies. See id. "Once the plaintiff
Still, a plaintiff seeking to drag a foreign government into court has her work cut out for her. See Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., ___ U.S. ___, 137 S.Ct. 1312, 1316, 197 L.Ed.2d 663 (2017) ("[A] party's nonfrivolous, but ultimately incorrect, argument that property was taken in violation of international law is insufficient to confer jurisdiction. Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed `property taken in violation of international law.'"); Rukoro, 976 F.3d at 224-25. And since the "basic objective" of sovereign immunity is "to free ... foreign sovereign[s] from suit," Helmerich & Payne, 137 S. Ct. at 1317, this gesture of comity aims to shield them from the "expense, intrusiveness, and hassle of litigation" altogether, Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193, 206 (2d Cir. 2016) (internal quotation marks omitted); see also Dole Food Co. v. Patrickson, 538 U.S. 468, 479, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) (recognizing that sovereign immunity is meant "to give foreign states and their instrumentalities some protection from the inconvenience of suit"); Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993). Consequently, courts must endeavor to resolve questions of foreign sovereign immunity "as near to the outset of the case as is reasonably possible," even if that requires deciding disputed factual issues. Helmerich & Payne, 137 S. Ct. at 1317; see also Rukoro, 976 F.3d at 224-25.
On appeal following a dismissal under the FSIA, "we review the district court's legal conclusions concerning sovereign immunity de novo and its factual findings for clear error." Arch Trading, 839 F.3d at 199 (internal quotation marks and brackets omitted). Our review of a district court's decision to deny jurisdictional discovery is even more deferential. We assess such rulings only for abuse of discretion, "mindful that a district court has wide latitude to determine the scope of discovery." Id. at 206 (internal quotation marks omitted).
A. The Foreign Sovereign Immunities Act
The principles of sovereign immunity, comity, and international reciprocity are "deeply rooted" in our nation's laws and history. Garb v. Republic of Poland, 440 F.3d 579, 585 (2d Cir. 2006); see also Helmerich & Payne, 137 S. Ct. at 1319. Chief Justice Marshall first crystalized those concepts in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812), when he explained that although "foreign sovereigns do not enjoy an inherent right to be held immune from suit in American courts," Opati v. Republic of Sudan, ___ U.S. ___, 140 S.Ct. 1601, 1605, 206 L.Ed.2d 904 (2020), "the United States ha[s] impliedly waived jurisdiction over certain activities of foreign sovereigns... [a]s a matter of grace and comity," Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).
From that case sprang a doctrine of virtually "absolute sovereign immunity" that exempted foreign governments from all manner of suits in our nation's courts for the next century and a half. See Garb, 440 F.3d at 585; see also Permanent Mission of India to the United Nations v. City
In 1952, in what has been dubbed the "Tate Letter," the State Department changed course and enunciated "a new, `restrictive' theory of sovereign immunity."
Unfortunately, application of this approach "proved troublesome." Verlinden, 461 U.S. at 487, 103 S.Ct. 1962. As in the past, foreign nations often exerted diplomatic pressure on the State Department to recognize their immunity even in cases involving commercial acts. See id.; see also Republic of Argentina v. NML Cap., Ltd., 573 U.S. 134, 141, 134 S.Ct. 2250, 189 L.Ed.2d 234 (2014). In other cases, foreign nations failed to seek Executive Branch intervention altogether, thrusting courts into the difficult position of deciding whether immunity was appropriate based largely on analogy to prior State Department decisions. See NML Cap., 573 U.S. at 141, 134 S.Ct. 2250; Mobil Cerro Negro, 863 F.3d at 103-04.
For nearly 150 years, then, the standards governing foreign sovereign immunity "were neither clear nor uniformly applied," and were subject to the ad hoc decisions of Executive Branch officials. NML Cap., 573 U.S. at 141, 134 S.Ct. 2250 (internal quotation marks omitted). But all that changed in 1976, when Congress "abated the bedlam" by passing the FSIA. Id. In the FSIA, Congress set forth "a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies[,] or instrumentalities" Verlinden, 461 U.S. at 488, 103 S.Ct. 1962, and vested sole responsibility for applying those standards in the federal judiciary, see Mobil Cerro Negro, 863 F.3d at 104 (citing 28 U.S.C. § 1602).
The FSIA begins with the baseline presumption that foreign states are "immune from the jurisdiction of United States courts." Chettri v. Nepal Rastra Bank, 834 F.3d 50, 55 (2d Cir. 2016) (quoting Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993));
Because of this statutory structure, courts must be careful when interpreting the scope of the FSIA's exceptions to avoid upending the "careful balance" that Congress intended to strike. See Rubin, 138 S. Ct. at 822. Too restrictive a reading, and foreign sovereigns could avoid accountability even where Congress dictated otherwise. See id. Too expansive, and the exceptions could result in a flood of suits against foreign states, prompting those nations to reciprocate in foreign suits against the United States. See Philipp, 141 S. Ct. at 714 (expecting reciprocal action by foreign nations); Helmerich & Payne, 137 S. Ct. at 1322 (noting the State Department's warning that weak sovereign immunity rules could "produc[e] friction in our relations with [other] nations," which might "lead some to reciprocate by granting their courts permission to embroil the United States in expensive and difficult litigation" (internal quotation marks omitted)).
It is undisputed that the defendants in this case — a political subdivision of the Swiss Confederation and two Swiss federal agencies — are all foreign sovereigns under the FSIA. See 28 U.S.C. § 1603(a) (defining "foreign state" to include "a political subdivision of a foreign state or an agency or instrumentality of a foreign state").
As its name suggests, the expropriation exception supplies federal courts with jurisdiction over certain cases concerning property taken by a foreign government:
A plaintiff seeking to invoke this exception must show four things: "(1) [that] rights in property are in issue; (2) that the property was `taken'; (3) that the taking was in violation of international law; and (4) that one of the [provision's] two nexus requirements is satisfied." Rukoro, 976 F.3d at 224 (quoting Zappia, 215 F.3d at 251); see also Restatement (Fourth) of Foreign Rels. L. of U.S. § 455 cmt. a (Am. L. Inst. 2018).
We begin with the word "taken." In this context, a taking is "[c]onduct attributable to a state that is intended to, and does, effectively deprive an alien of substantially all the benefits of his interest in property." Banco Nacional de Cuba v. Chem. Bank N.Y. Tr. Co., 822 F.2d 230, 239 (2d Cir. 1987) (emphasis omitted) (quoting Restatement (Second) § 192 (Am. L. Inst. 1965)); cf. Philipp, 141 S. Ct. at 715 (holding that the exception does not apply to a state's taking of its own citizen's property). This applies equally to deprivations that occur in one fell swoop and to deprivations that occur in stages through the accumulation of small restrictions. See Restatement (Third) § 712 cmt. g, n.7 (Am. L. Inst. 1987).
A significant exception to this general definition concerns a state's exercise of its traditional regulatory or police powers over its internal affairs. See E. N.Y. Sav. Bank v. Hahn, 326 U.S. 230, 232, 66 S.Ct. 69, 90 L.Ed. 34 (1945) (explaining that "the police power is an exercise of the sovereign right of the government to protect the general welfare of the people" (internal quotation marks and alterations omitted)); see also Restatement (Third) § 712 cmt. g (noting that "[a] state is [ordinarily] not responsible for loss of property or for other economic disadvantage resulting from bona fide general taxation, regulation, forfeiture for crime, or other action of the kind that is commonly accepted as within the police power of states"); Restatement (Second) § 197 ("Conduct attributable to a state and causing damage to an alien does not depart from the international standard of justice... if it is reasonably necessary for ... the enforcement of any law of the state... that does not itself depart from the international standard"). Such actions typically do not constitute a taking, even if they result in the loss of property or other economic harm.
The expropriation exception is concerned only with illegal takings. And the legal standards by which takings are judged are not found in the domestic laws of the United States or even the laws of the "expropriating" nation, but rather in customary international law. See Permanent Mission of India, 551 U.S. at 200, 127 S.Ct. 2352; Chettri, 834 F.3d at 58; see also Flores v. S. Peru Copper Corp., 414 F.3d 233, 250-52 (2d Cir. 2003) (discussing various sources that may be used to identify principles of customary international law). Put more colorfully, "United States law governs domestically but does not rule the world." Philipp, 141 S. Ct. at 713 (quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013)).
To determine which takings offend these international standards, we have historically turned, in part, to House Report 94-1487 on the FSIA legislation. See Chettri, 834 F.3d at 58; Zappia, 215 F.3d at 251. The House Report identifies three categories of illegal takings: (i) "nationalization[s] or expropriation[s] of property without payment of ... prompt[,] adequate[,] and effective compensation"; (ii) takings that are "discriminatory"; and (iii) takings that are "arbitrary."
Today, we hold that an "arbitrary taking" is a taking that bears no rational relationship to a public purpose. We settle on this definition for two reasons. First, the lack of a public purpose has been identified by both courts and the Restatement as a paradigmatic example of a taking that violates international law. See, e.g., Comparelli v. República Bolivariana de Venezuela, 891 F.3d 1311, 1326 (11th Cir.
The Art Owners propose a much broader interpretation of the term. Drawing on a definition of "arbitrary" found in the Restatement (Third), they suggest that an "arbitrary taking" refers to any taking that is merely "unfair and unreasonable." Beierwaltes Reply at 4 (internal quotation marks omitted). But that definition is not only unsupported by caselaw, it is also taken out of context. Specifically, "unfair and unreasonable" is how the Restatement describes actions by a foreign sovereign that fall under Subsection (3) of § 712, i.e., those that, although causing economic injury to an alien, "fall short of an act that would constitute an expropriation under Comment g." Restatement (Third) § 712 n.11. Comment g, in turn, describes subsection (1) of § 712, covering "a taking by the state of the property of a national of another state[.]" Id. § 712(1) (emphasis added). And because the FSIA speaks only of "rights in property taken in violation of international law," 28 U.S.C. § 1605(a)(3) (emphasis added), rather than "other arbitrary or discriminatory acts or omissions by the state that impair property or other economic interests," Restatement (Third) § 712 (3), that definition has no place here.
Instead, we conclude that a foreign state's action is an arbitrary "taking in violation of international law" if the foreign state exceeds its traditional police powers to deprive an alien of substantially all the benefit of her property in a way that is not rationally related to a public purpose.
B. The Swiss Investigatory Seizure
At the heart of the parties' dispute is the question of whether a temporary seizure made as part of an ongoing law enforcement investigation can constitute a taking in violation of international law. The answer is "yes," but only in rare circumstances. Such circumstances are not present here.
1. When Does a Temporary Law Enforcement Seizure Constitute a Taking in Violation of International Law?
Temporary law enforcement seizures ordinarily do not constitute a taking at all, much less a taking in violation of international law.
First, a law enforcement seizure may constitute an illegal taking if the seizure is not rationally related to a public purpose. See West, 807 F.2d at 831 (recognizing that "[v]alid expropriations must always serve a public purpose" (emphasis added)); Chettri, 2014 WL 4354668, at *16 (similar); see also Restatement (Third) § 712(1)(a). In other words, if a law enforcement seizure is "arbitrary," as we explained that term above, then it both falls outside the scope of the state's traditional police powers because it serves no valid governmental objective and violates international law.
Determining whether a particular seizure constitutes an arbitrary taking for purposes of the FSIA is not the same as asking whether the seizure is unlawful under the "seizing" nation's applicable criminal laws. See Chettri, 834 F.3d at 58 (holding that "conclusory criticisms of the manner in which [the foreign state] has conducted its investigation are insufficient to prove a violation of international law"). Rather, it requires first asking whether the law enforcement investigation itself is rationally related to a public purpose.
Second, even if a seizure bears some facial connection to a public purpose, it may nonetheless constitute an illegal taking if that public purpose is shown to be a "sham" — that is, if the seizure is merely a ploy by the foreign state either to nationalize the plaintiff's property without compensation or to discriminate against her because she is an alien. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 704 (9th Cir. 1992); see Restatement (Third) § 712 cmt. g. While pretextual seizures will likely be few and far between, such seizures will often be recognizable from an examination of the investigation's course, or because the foreign officials have acted in such a way or made statements that strongly suggest that there is an ulterior motive at work. See, e.g., Comparelli, 891 F.3d at 1317, 1327-28 (remanding for district judge to consider whether expropriation exception was satisfied where government seized plaintiffs' chemical company on grounds it illegally stored three million unreported pounds of hydrochloric acid, but physical audit revealed only excesses "within the normal tolerance margins associated with the
Third, a temporary law enforcement seizure that is not initially a taking can nonetheless ripen into an arbitrary one if it continues for an unreasonably long and indefinite period.
The Art Owners identify a fourth circumstance in which they argue a law enforcement seizure would come within the boundaries of the expropriation exception: if the seizure is made without probable cause in contravention of either the "seizing" nation's law (here, Switzerland) or the Fourth Amendment. But, in making this argument, the Art Owners identify no precedent suggesting that international law has adopted those probable cause standards, let alone that an investigatory seizure in violation of those standards would automatically constitute an illegal taking. And while that alone is fatal to the Art Owners' position, it is also noteworthy that the Fourth Amendment itself has only limited extraterritorial application. See United States v. Getto, 729 F.3d 221, 227-28 (2d Cir. 2013) (holding that the Fourth Amendment generally does not require "suppressing evidence collected by foreign law enforcement authorities abroad"); see also United States v. Hasbajrami, 945 F.3d 641, 662-63 (2d Cir. 2019); United States v. Odeh (In re Terrorist Bombings of U.S. Embassies in E. Africa), 552 F.3d 157, 167-71 (2d Cir. 2008). We therefore reject the Art Owners' invitation to conclude that a foreign law enforcement seizure that fails to meet the probable cause
Before applying these principles to the law enforcement seizure at issue here, we pause for a note of caution. Specifically, courts must be deferential when assessing a foreign sovereign's police activities. One of the FSIA's purposes is to avoid stoking international tensions, see Philipp, 141 S. Ct. at 714; Zappia, 215 F.3d at 251, and meddling in a foreign nation's ongoing criminal investigations will often be invasive of its sovereignty. As a result, we expect that law enforcement seizures will be declared to be illegal in only rare and egregious circumstances. See Chettri, 834 F.3d at 58; Restatement (Second) § 185 cmt. b (noting that "[t]here appear to be few, if any, cases in which a taking has been held unlawful under international law on the sole and specific ground that it was not for a public purpose").
2. The Swiss Law Enforcement Seizure Is Not a Taking in Violation of International Law
The investigation in this case bears a rational relationship to a public purpose. Swiss law enforcement officers observed Phoenix employees and Hicham's sister-in-law engaging in what appeared to be criminal violations of customs laws and the unlawful importation of art. Curtailing criminal activity is in the public interest, and stopping the illegal importation of cultural property is important to Switzerland's efforts to comply with its obligations under the UNESCO Convention.
The Art Owners' property also has a rational connection to this investigation, as it was stored in warehouses owned and operated by individuals whom Swiss authorities suspected of illegally importing and possessing cultural property. This remains true regardless of whether the seized art was actually owned by one of the named defendants in the Swiss investigation or was owned by a third party (like the Art Owners). See Off. Stanford Invs. Comm., 2018 WL 3956470, at *1, *4 (finding that a seizure of assets involved in a Ponzi scheme was not a taking even though those assets were scheduled to be distributed to the fraud's victims); cf. Bennis, 516 U.S. at 453, 116 S.Ct. 994 (explaining that, in the context of domestic law, the inquiry focuses on the character of the government action, not the culpability or innocence of the property owner). In either case, the property bore some rational connection to the investigation. Accordingly, the seizure of the Art Owners' property was rationally connected to a public purpose and, as a result, was not arbitrary.
While that conclusion could have been overcome had the Art Owners identified facts strongly suggesting that the investigation and seizure were merely a pretext to allow Switzerland to nationalize their property without compensation or to discriminate against them because of their foreign citizenship, the district court did not clearly err in finding that they had not done so. To start, the investigation's course does not indicate pretext. The Art Owners' property was seized pursuant to two warrants, which were obtained only after a routine customs search and follow-on surveillance operations revealed possible criminal activity. And rather than comingle the Art Owners' artifacts with state property, the investigators were careful to "segregate [the art] in place" and have merely restricted the Art Owners' ability to "exercis[e] [their] ownership rights." Aboutaam Br. at 10 n.9; Beierwaltes Br. at 11 n.9 (same). Thus, there is no suggestion that the Swiss Agencies or Geneva are claiming a legal interest in the seized property
Moreover, in the years since the property was seized, the investigators have continued to collect and review evidence. The investigators have also repeatedly attempted to work cooperatively with the Art Owners. Those facts are consistent with a bone fide law enforcement investigation. See Greenpeace, 946 F. Supp. at 783. Thus, the district court's finding that "neither the timing of the items' release nor the level of specificity of the warrants furnishes an appropriate basis to scrutinize ... [the] ongoing criminal investigation" was not clearly erroneous. Aboutaam, 2019 WL 4640083, at *4.
Likewise, the Art Owners have identified no other facts that would seriously call into question the purpose of the investigation — at least, not in any way relevant to the expropriation exception. The Art Owners make various threadbare assertions about the lead Geneva prosecutor, Claudio Mascotto, and his team, suggesting that the investigation is merely a publicity stunt and a vindictive attempt to harm Ali and Phoenix.
Finally, the Art Owners argue that the seizure violated international law because it was prohibited by the UNESCO Convention. In short, the Art Owners suggest that, under Article 7(b)(ii) of the Convention, illegally imported cultural property cannot be seized absent a request by the property's nation of origin.
Because the seizure was not a taking in violation of international law when it occurred, the only way it might come within the expropriation exception is if it had become a taking over time. We conclude that it has not.
Also relevant here is the fact that the Art Owners have thus far refused to cooperate with the investigation and have not otherwise taken advantage of domestic Swiss remedies that could potentially speed things along. Having chosen not to avail themselves of those opportunities, the Art Owners should reasonably have expected that the investigation would take longer. To be sure, the Art Owners did send a handful of letters to Swiss officials identifying which pieces of art they claim legally belong to them. The record, however, contains no evidence that the Art Owners provided documentation that could corroborate their claims. Accordingly, those officials were under no obligation to "take [the Art Owners] at their word[.]" Geneva Br. at 34.
At bottom, nothing about this investigation indicates that it is an arbitrary act or a pretextual attempt to nationalize the Art Owners' property. Nor do the facts compel the conclusion that the seizure has extended for an unreasonable amount of time. All the Art Owners offer are "conclusory criticisms of the manner in which [Geneva and the Swiss Agencies] ha[ve] conducted [their] investigation." Chettri, 834 F.3d at 58. But, as our precedent makes clear, such criticisms "are insufficient to prove" that a law enforcement seizure qualifies as a taking in "violation of international law." Id.
* * *
Before moving on, we offer a few additional words about the Art Owners' decision to sue in the United States before seeking recourse in Swiss court. See Aboutaam, 2019 WL 4640083, at *5. Whether the expropriation exception incorporates an exhaustion requirement is the source of some dispute among our sister circuits. Compare Philipp v. Federal Republic of Germany, 894 F.3d 406, 414-16 (D.C. Cir. 2018) (rejecting an exhaustion requirement), vacated on other grounds, ___ U.S. ___, 141 S.Ct. 703, ___ L.Ed.2d ___ (2021), with Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847, 854, 856-59 (7th Cir. 2015) (declaring exhaustion to be required under international law), and Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 678-85 (7th Cir. 2012) (same); see also Republic of Austria v. Altmann, 541 U.S. 677, 714, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (Breyer, J., concurring) (explaining that "a plaintiff who chooses to litigate in this country in disregard of the postdeprivation remedies [available] in the `expropriating' state may have trouble showing a `taking in violation of international law'" (brackets omitted)); Cassirer, 616 F.3d at 1034-37 (concluding that the FSIA does not mandate exhaustion, but leaving open whether courts may consider exhaustion as a prudential factor before accepting jurisdiction over a case against a foreign sovereign). Because we can resolve this case on other grounds, we do not analyze this issue. That said, the Art Owners' suggestion that exhaustion would have been futile
C. Jurisdictional Discovery
Because the purpose of sovereign immunity is to protect foreign nations not only from liability but also from "the expense, intrusiveness, and hassle of litigation, a court must be circumspect in allowing discovery before the plaintiff has established that the court has jurisdiction over a foreign sovereign defendant under the FSIA." Arch Trading, 839 F.3d at 206 (internal quotation marks omitted). In practice, this means that a plaintiff should be granted jurisdictional discovery "only to verify allegations of specific facts crucial to an immunity determination." Id. at 207 (internal quotation marks omitted). A court therefore does not abuse its discretion in denying jurisdictional discovery "if the party seeking discovery cannot articulate a reasonable basis for the court first to assume jurisdiction." Id. at 206-07 (internal quotation marks omitted).
Here, the Art Owners have identified no specific discovery that could credibly support their claim that this law enforcement seizure constitutes a taking in violation of international law. In light of that fact, and given the significant comity concerns at stake, the district court plainly did not abuse its discretion by denying the Art Owners the opportunity to conduct jurisdictional discovery. See NML Cap., 573 U.S. at 146 n.6, 134 S.Ct. 2250 (acknowledging that district courts may "appropriately consider comity interests and the burden that the discovery might cause to the foreign state" (internal quotation marks omitted)).
For the foregoing reasons, we