ALEXANDER KHOCHINSKY, APPELLANT v. REPUBLIC OF POLAND, A FOREIGN STATE, APPELLEE
No. 19-7160
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2020 Decided June 18, 2021
SRINIVASAN, Chief Judge
Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-01532)
Nicholas M. O‘Donnell argued the cause and filed the briefs for appellant.
Desiree F. Moore argued the cause for appellee. With her on the brief was George C. Summerfield. Jonathan M. Cohen entered an appearance.
Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge, and GINSBURG, Senior Circuit Judge.
Opinion for the court filed by Chief Judge SRINIVASAN.
Khochinsky then brought an action against Poland, alleging that the effort to extradite him was tortious and infringed his rights. The district court dismissed the suit, holding that the Foreign Sovereign
I.
On appeal from a dismissal in favor of a foreign sovereign on grounds of sovereign immunity, we assume the unchallenged factual allegations in the complaint to be true. Simon v. Republic of Hungary, 812 F.3d 127, 135 (D.C. Cir. 2016).
A.
The story behind Khochinsky‘s suit traces back to a small town in Poland at the outset of World War II. At the time, Khochinsky‘s mother, Maria Khochinskaya, a Polish Jew, lived in the town of Przemysl, Poland, where her family owned property. In 1939, Nazi Germany invaded Poland, prompting the Soviet Union to respond by annexing a portion of Przemysl. The annexation cut the city in half, with Maria‘s residence falling within the annexed portion. A few years later, on June 20, 1941, Maria and her grandmother took a trip that saved their lives. That day, a Friday, they traveled east to Lviv (then part of the Soviet Union) to observe the Sabbath with Maria‘s mother. The next day, Nazi Germany invaded the Soviet half of Przemysl, murdering Maria‘s relatives who had remained behind. Maria became heir to the family property in Przemysl, and that inheritance passed to Khochinsky upon his mother‘s death in 1989.
In the 1990s, Khochinsky returned to Przemysl to find that his mother‘s house had been replaced by a Catholic church. That was a surprise to Khochinsky because his family had never been compensated for the conversion of the property. He initially did not seek restitution from Poland, though, due to his perception that Poland was unreceptive to Holocaust-related restitution claims.
Khochinsky‘s calculus changed in 2010, when he learned that a painting reported missing from Poland resembled one that he had inherited from his father. When Khochinsky‘s father died in 1991, Khochinsky inherited Girl with Dove, a painting by French rococo master Antoine Pesne. According to Khochinsky‘s father, the painting had been in Germany before he acquired it following World War II. As for the painting reported missing by Poland, it had been looted from the Wielkopolskie Museum in Poland by Nazi forces and never recovered.
Khochinsky did not know whether the two paintings were one and the same. Regardless, Khochinsky believed that Girl with Dove might serve as a useful bargaining chip in his efforts to obtain restitution from Poland for his family‘s land. To that end, in 2010, he contacted Poland and offered Girl with Dove. A Polish official, indicating an interest in negotiating with Khochinsky, sent an expert to Khochinsky‘s gallery to examine the painting. The expert determined that Girl with Dove was the missing painting but did not share his conclusion with Khochinsky.
Rather than negotiating with Khochinsky, Poland opted to pursue criminal charges against him. In January 2013, a Polish court accused Khochinsky of knowingly and unlawfully purchasing Girl with Dove, and Poland issued a “Wanted Person Notice” for his arrest. Later that year, Poland submitted a request to the United States for Khochinsky‘s extradition. In early 2015, an Assistant United States Attorney filed a petition for a certificate of extraditability in the United States District Court for the Southern District of New York. The next day, Khochinsky was arrested and imprisoned for more than one week. Upon release, Khochinsky was subject
In August 2015, the district court denied the Government‘s petition for a certificate of extraditability and dismissed the extradition complaint. In re Extradition of Khochinsky, 116 F. Supp. 3d 412, 422 (S.D.N.Y. 2015). The court found that “the Government failed to adduce any evidence” that Khochinsky knew Girl with Dove was “stolen at the time he acquired it.” Id. The court thus held that “the Government ha[d] failed to establish probable cause to believe that Khochinsky committed the crime with which he [was] charged.” Id.
B.
In June 2018, Khochinsky filed suit against Poland in the United States District Court for the District of Columbia. Khochinsky claimed that Poland‘s unsuccessful and, in his view, retaliatory extradition request had caused him “substantial damage.” Compl. ¶ 115, J.A. 17. Khochinsky‘s complaint set out five counts against Poland: (i) a violation of his First Amendment rights by instigating a retaliatory extradition process; (ii) quiet title as to his ownership of Girl with Dove; (iii) tortious interference with his business stemming from his imprisonment and house arrest; (iv) aiding and abetting a trespass of his family land; and (v) abuse of process in connection with Poland‘s conduct in the extradition proceeding.
Poland did not timely answer Khochinsky‘s complaint or enter any appearance. As a result, on March 12, 2019, the Clerk of the Court entered a default against Poland. A few weeks later, however, on April 23, 2019, Poland moved to vacate the Clerk‘s entry of default and to dismiss Khochinsky‘s claims for lack of jurisdiction based on sovereign immunity. Two days after that, on April 25, Khochinsky moved for entry of default judgment.
The district court took up all three motions at once, granting Poland‘s two motions and denying Khochinsky‘s. First, the court found good cause for vacatur of the default, placing particular emphasis on the meritorious nature of Poland‘s jurisdictional defense. Khochinsky v. Republic of Poland, No. 18-cv-1532, 2019 WL 5789740, at *4 (D.D.C. Nov. 6, 2019). Second, and relatedly, the court determined that, under the Foreign Sovereign Immunities Act (FSIA) it lacked jurisdiction over Khochinsky‘s claims. Id. at *4-7. Third, in light of its jurisdictional ruling, the court denied Khochinsky‘s motion for default judgment as moot. Id. at *3 n.1.
II.
On appeal, Khochinsky challenges the district court‘s dismissal under the FSIA as well as the court‘s vacatur of the default. We reject those challenges.
A.
We first consider the district court‘s vacatur of the default, which we review for abuse of discretion. Gilmore v. Palestinian Interim Self-Gov‘t Auth., 843 F.3d 958, 965 (D.C. Cir. 2016). Under
Here, the district court addressed the three primary considerations, finding that Poland‘s default was the result of confusion rather than willfulness, that Poland‘s defense of sovereign immunity was meritorious, and that Khochinsky suffered no prejudice from vacatur of the default. Khochinsky primarily attacks the district court‘s finding as to a lack of willfulness. But “[e]ven when a default is willful, a district court does not necessarily abuse its discretion by vacating a default when the asserted defense is meritorious and the district court took steps to mitigate any prejudice to the non-defaulting party.” Gilmore, 843 F.3d at 966. That is the case here.
Khochinsky has no colorable argument as to meritoriousness or prejudice. “[A]llegations are meritorious if they contain even a hint of a suggestion which, proven at trial, would constitute a complete defense.” Mohamad, 634 F.3d at 606 (quoting Keegel, 627 F.2d at 374). Poland‘s defense readily meets that standard, and in fact is ultimately meritorious, as discussed below. As for prejudice, there is no indication of any cognizable prejudice to Khochinsky from the vacatur of a default that had been entered a few weeks beforehand. When given an opportunity to address the point at oral argument, Khochinsky‘s counsel acknowledged the absence of prejudice. See Oral Argument at 23:30-24:00.
We thus find no basis to set aside the vacatur of the default, especially given that the defaulting party is a foreign nation seeking to assert the defense of sovereign immunity. As we have previously noted, “[i]ntolerant adherence to default judgments against foreign states could adversely affect this nation‘s relations with nations and undermine the State Department‘s continuing efforts to encourage foreign sovereigns to resolve disputes within the United States’ legal framework.” FG Hemisphere Associates, 447 F.3d at 838-39 (quoting Practical Concepts Inc. v. Republic of Bolivia, 811 F.2d 1543, 1551 n.19 (D.C. Cir. 1987)).
In an effort to bolster his argument that the district court erred in vacating the entry of default, Khochinsky seeks to supplement the record on appeal with evidence of a French court‘s October 2019 denial of Poland‘s further efforts to extradite Khochinsky, this time from Paris. That evidence, in Khochinsky‘s view, bears on whether Poland acted willfully in failing to respond to his complaint in this case. As explained, however, we sustain the district court‘s vacatur of default regardless of any willfulness on Poland‘s part. And at any rate, the evidence was not before the district court at the time of its grant of vacatur and thus does not bear on whether the court abused its discretion. See Ctr. for Auto Safety v. EPA, 731 F.2d 16, 24 n.9 (D.C. Cir. 1984).
Khochinsky raises one additional ground for setting aside the district court‘s vacatur of default: the court‘s decision not to enforce (or even acknowledge) Poland‘s failure to comply with local rules pertaining to the process for seeking vacatur of a default and to conferring with an opposing party before filing a nondispositive motion. Noncompliance with those procedural rules, however, did not prejudice Khochinsky in any material way. We thus find no abuse of discretion in the district court‘s vacatur of the default.
B.
We now turn to the core of the case: Poland‘s assertion of sovereign immunity from Khochinsky‘s claims. We review de novo the district court‘s dismissal of the claims on grounds of sovereign immunity. El Paso Nat. Gas Co. v. United States, 750 F.3d 863, 874 (D.C. Cir. 2014).
The FSIA,
Khochinsky contends that his claims implicate three FSIA exceptions: the implied waiver exception,
1.
We first consider the implied waiver exception. Under
The FSIA does not specifically define what will constitute a waiver “by implication,” but our circuit has “followed the virtually unanimous precedent construing the implied waiver provision narrowly.” Creighton Ltd. v. Gov‘t of Qatar, 181 F.3d 118, 122 (D.C. Cir. 1999) (internal quotation marks and citation omitted). In particular, we “have held that implicit in
We have found the requisite evidence of a foreign state‘s intent to qualify as an implied waiver of sovereign immunity “in only three circumstances“: (i) the state‘s “executing a contract containing a choice-of-law clause designating the laws of the United States as applicable“; (ii) the
A foreign state‘s extradition request does not fit in that selective company. Extradition operates upon norms of “international comity.” See Casey v. Dep‘t of State, 980 F.2d 1472, 1477 (D.C. Cir. 1992). Extradition treaties implementing those norms have produced “a global network of bilateral executive cooperation that aims to prevent border crossing from becoming a form of criminal absolution.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003). Conditioning a foreign state‘s exercise of treaty rights on submitting to the jurisdiction of United States courts could imperil the spirit of cooperation and comity underpinning that regime. In that context, there is good reason to doubt that a foreign state‘s effort to exercise its agreed-upon treaty rights exhibits an intent to relinquish its immunity from suit. And were we to find that a foreign state‘s extradition request implies a waiver of immunity in United States courts, we might expect that, as a reciprocal matter, the United States would subject itself to suit in foreign proceedings whenever it requests extradition assistance. See id. at 1208 n.6. We know of no sound basis for putting the parties to an extradition treaty to that choice as a matter of course.
That is particularly so in view of extradition‘s fundamentally diplomatic, executive character. “Subject to judicial determination of the applicability of the existing treaty obligation of the United States to the facts of a given case, extradition is ordinarily a matter within the exclusive purview of the Executive.” Shapiro v. Sec‘y of State, 499 F.2d 527, 531 (D.C. Cir. 1974), aff‘d sub nom. Comm‘r v. Shapiro, 424 U.S. 614 (1976). The Executive generally “conducts the procedure on behalf of the foreign sovereign,” such that the foreign state “makes no direct request of our courts” and “its contacts with the Judiciary are mediated by the executive branch.” Blaxland, 323 F.3d at 1207. Because a foreign sovereign operates at a level of remove from United States courts when it seeks our assistance in extradition, there is all the more reason to doubt that an extradition request connotes an intent to waive the requesting sovereign‘s immunity in our courts.
For essentially these reasons, the only other court of appeals to address the issue held that an extradition request does not impliedly waive sovereign immunity. Id. at 1206-09. In reaching that conclusion, the Ninth Circuit in Blaxland distinguished the sole case on which Khochinsky relies here, a previous Ninth Circuit decision, Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992). That earlier decision involved a letter rogatory, which is a “direct court-to-court request,” whereas “extradition is a diplomatic process carried out through the powers of the executive, not the judicial, branch.” Blaxland, 323 F.3d at 1207. While we have no occasion here to decide the status of a letter rogatory for purposes of the FSIA‘s implied waiver exception, we agree with the Ninth Circuit that an extradition request does not effect an implied waiver of sovereign immunity.
2.
Khochinsky next argues that two of his claims—the claim for quiet-title related to Girl with Dove and the claim for aiding-and-abetting-trespass related to his family land in Przemysl—fall within the FSIA‘s counterclaim exception. Under that exception, “[i]n any action brought by a foreign state, or in which a foreign state intervenes,” the “foreign state shall not be accorded immunity with respect to any counterclaim” fitting within three defined categories.
Even assuming that those two claims arise out of the same transaction or occurrence as the original extradition proceeding, Khochinsky‘s claims simply do not constitute “counterclaims” for purposes of the FSIA‘s counterclaim exception. Consistent with the ordinary understanding of a counterclaim, see
Khochinsky‘s claims against Poland satisfy neither requirement. First, as the district court observed, the extradition proceeding was brought by the United States, not Poland, and at no point did Poland “intervene in the extradition proceeding or appear as a party in the proceeding at all.” Khochinsky, 2019 WL 5789740, at *6. Second, Khochinsky brings his current claims in an entirely distinct action, one that he, not the foreign state, initiated. Those claims, then, are not counterclaims, much less counterclaims in an action brought by a foreign state. Khochinsky responds that he was unable to assert his claims in the original “action,” i.e., the extradition proceeding. But that only confirms that an extradition proceeding is not the sort of action as to which the FSIA‘s counterclaim exception generally applies.
3.
Third and finally, Khochinsky argues that two of his claims—the claims for First Amendment retaliation and for tortious interference with business relations—fall within the FSIA‘s noncommercial tort exception. That exception potentially applies in any case:
in which money damages are sought against a foreign state for personal injury
or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.
Poland contends that Khochinsky‘s pertinent claims are ones “arising out of . . . abuse of process,”
Khochinsky submits that the term “abuse of process” for purposes of
For all of those reasons, an alleged abuse of the extradition process counts as an “abuse of process” under
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For the foregoing reasons, we affirm the district court‘s grant of Poland‘s motion to dismiss for lack of jurisdiction.
So ordered.