999 F.3d 808
2d Cir.2021Background
- In February 2017 Swiss authorities executed search-and-seizure orders in Geneva as part of criminal investigations into alleged illegal importation and trafficking of cultural property; authorities "segregated in place" ~12,000 items (≈1,200 items belonging to Hicham Aboutaam; 18 to Lynda and William Beierwaltes).
- Seizures were authorized by a Geneva public prosecutor and by the Swiss Federal Customs Administration; the orders informed those affected of domestic appeals and invited owners to submit chain-of-title documentation.
- Plaintiffs filed suit in U.S. courts (Beierwaltes in Colorado transferred to SDNY; Aboutaam in SDNY) alleging the seizures were arbitrary and lacked probable cause and invoked the FSIA expropriation exception (28 U.S.C. § 1605(a)(3)).
- The district court dismissed for lack of jurisdiction, holding the seizures were routine law-enforcement actions falling within sovereign police powers and not "takings in violation of international law." Plaintiffs appealed.
- Some objects were later released by Swiss authorities; plaintiffs did not pursue Swiss judicial remedies in any sustained way and the U.S. court denied jurisdictional discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FSIA expropriation exception applies to property seized in a foreign law‑enforcement investigation | Seizures here were arbitrary, without probable cause, and thus constitute "property taken in violation of international law" under §1605(a)(3) | Routine law‑enforcement seizures are within a sovereign's police powers and are not "takings" under the FSIA | Law‑enforcement seizures ordinarily are not takings; expropriation exception generally inapplicable to investigatory seizures |
| Whether the Swiss seizure here constituted a "taking" | The seizure effectively deprived plaintiffs of their property rights and benefits | The seizure was temporary, segregated in place, tied to a public‑purpose investigation, and thus not a taking | No taking: seizure was rationally related to a public purpose and thus within police powers |
| Whether any taking violated international law as an "arbitrary" taking | Plaintiffs contended the seizure was arbitrary, pretextual, lacked probable cause, and/or violated the UNESCO Convention | Defendants argued the investigation was bona fide, not a pretext, and seizure procedures complied with Swiss law; UNESCO did not bar domestic seizure of suspected trafficked goods | "Arbitrary taking" means lacking a rational relation to a public purpose; plaintiffs failed to show pretext or arbitrariness; UNESCO did not bar the seizure here |
| Whether jurisdictional discovery should have been allowed | Plaintiffs sought discovery to show facts supporting the expropriation exception (pretext, misconduct, lack of probable cause) | Defendants argued plaintiffs offered no specific factual basis warranting intrusive discovery against a foreign sovereign | Denial affirmed: plaintiffs failed to identify specific facts crucial to immunity determination and court properly protected comity and sovereign immunity interests |
Key Cases Cited
- Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venezuela, 137 S. Ct. 1312 (2017) (limits on invoking FSIA exceptions; nonfrivolous but incorrect claims insufficient)
- Federal Republic of Germany v. Philipp, 141 S. Ct. 703 (2021) (FSIA context and international‑law considerations)
- Rukoro v. Federal Republic of Germany, 976 F.3d 218 (2d Cir. 2020) (plaintiff bears burden to establish FSIA exception; elements of expropriation exception)
- Chettri v. Nepal Rastra Bank, 834 F.3d 50 (2d Cir. 2016) (routine law‑enforcement asset freezes do not constitute takings)
- Banco Nacional de Cuba v. Chemical Bank New York Trust Co., 822 F.2d 230 (2d Cir. 1987) (definition of ‘‘taking’’ under international law)
- Zappia Middle East Construction Co. v. Emirate of Abu Dhabi, 215 F.3d 247 (2d Cir. 2000) (elements and interpretation of §1605(a)(3))
- Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) (pretextual seizures may show expropriation)
- Bennis v. Michigan, 516 U.S. 442 (1996) (forfeiture/forfeiture‑type government seizures may not trigger compensation)
- Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967) (police powers and government regulation context)