1 F.4th 1
D.C. Cir.2021Background
- In 2010 Alexander Khochinsky (a Russian national, heir to Polish property) offered a painting he inherited ("Girl with Dove") to Polish officials, believing it matched a painting reported stolen from a Polish museum during WWII.
- Poland sent an expert who allegedly identified the painting but then pursued criminal charges alleging Khochinsky knowingly possessed stolen property and sought his extradition from the U.S.
- Khochinsky was arrested in 2015; U.S. extradition proceedings resulted in denial of a certificate of extraditability for lack of probable cause (In re Extradition of Khochinsky).
- In 2018 Khochinsky sued the Republic of Poland in D.C. federal court asserting: First Amendment retaliation, quiet title to the painting, tortious interference with business, aiding-and-abetting trespass to family land in Poland, and abuse of process.
- Poland initially defaulted, then moved to vacate the default and to dismiss under the Foreign Sovereign Immunities Act (FSIA). The district court vacated the default and dismissed for lack of jurisdiction; the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vacatur of default | Default was willful; default judgment should stand. | Default resulted from confusion; set-aside appropriate; sovereign immunity defense meritorious; no prejudice. | Affirmed vacatur: court did not abuse discretion; meritorious defense and no prejudice. |
| FSIA implied-waiver (§1605(a)(1)) | Poland’s extradition request implicitly waived sovereign immunity for related U.S. claims. | Extradition is diplomatic/executive; does not show intent to waive immunity; implied waiver should be narrowly construed. | Rejected plaintiff: extradition request does not imply waiver of sovereign immunity. |
| FSIA counterclaim exception (§1607) | Quiet-title and trespass claims arise from same transaction as extradition proceeding and thus fall under counterclaim exception. | Extradition proceeding was an action by the United States (not Poland); plaintiff’s suit is a separate action, not a counterclaim in the original proceeding. | Rejected plaintiff: claims are not counterclaims "in" an action brought by a foreign state. |
| FSIA noncommercial-tort exception (§1605(a)(5)) | First Amendment retaliation and tortious-interference claims are noncommercial torts occurring in U.S.; exception applies. | Claims "arise out of" alleged abuse of the extradition process, which §1605(a)(5)(B) excludes (abuse of process, malicious prosecution, etc.). | Rejected plaintiff: claims arise out of alleged abuse of the extradition process and are excluded from the noncommercial-tort exception. |
Key Cases Cited
- Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) (treat unchallenged complaint allegations as true on appeal from sovereign-immunity dismissal)
- Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198 (9th Cir. 2003) (extradition request does not impliedly waive sovereign immunity; extradition is diplomatic)
- Creighton Ltd. v. Gov’t of Qatar, 181 F.3d 118 (D.C. Cir. 1999) (narrow construction of FSIA implied-waiver; requires intent to waive)
- World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154 (D.C. Cir. 2002) (courts reluctant to expand implied-waiver examples)
- FG Hemisphere Associates, LLC v. Democratic Republic of Congo, 447 F.3d 835 (D.C. Cir. 2006) (foreign-sovereign default context and international comity concerns)
- Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990) (strong evidence required to find implied waiver)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (FSIA provides exclusive basis for jurisdiction over foreign states)
- In re Extradition of Khochinsky, 116 F. Supp. 3d 412 (S.D.N.Y. 2015) (district court denied extradition for lack of probable cause)
- Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) (distinguishing letter rogatory from extradition in implied-waiver analysis)
- Ivanenko v. Yanukovich, 995 F.3d 232 (D.C. Cir. 2021) (discussing limited circumstances where implied waiver has been found)