Alexander Khochinsky v. Republic of Poland

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2020 Decided June 18, 2021

No. 19-7160

ALEXANDER KHOCHINSKY,

APPELLANT

v.

REPUBLIC OF POLAND, A FOREIGN STATE,

APPELLEE

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.

SRINIVASAN, Chief Judge: In 2010, Alexander

Khochinsky, then a Russian foreign national living in the

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United States, contacted the Republic of Poland seeking

restitution for the loss of his family’s land during the Nazi

invasion. In an effort to negotiate with Poland for the payment

of restitution, Khochinsky offered a painting in his possession

that he believed resembled one reported missing by Poland.

Poland did not respond to the offer as Khochinsky anticipated.

Instead, it sought Khochinsky’s extradition from the United

States on the ground that he was knowingly in possession of a

stolen painting. Poland’s extradition attempt ultimately failed.

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 Immunities Act gives

Poland immunity from Khochinsky’s action. We affirm.

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.

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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

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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 to continued

house arrest and electric monitoring.

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

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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.

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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 Federal Rule of Civil Procedure 55(a),

“[w]hen a party against whom a judgment for affirmative relief

is sought has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise, the clerk must enter

the party’s default.” Fed. R. Civ. P. 55(a). Here, Poland

initially failed to respond to Khochinsky’s complaint, and the

Clerk of Court entered default against Poland. A few weeks

later, however, Poland moved to vacate the Clerk’s entry of

default pursuant to Rule 55(c), which permits a court to “set

aside an entry of default for good cause.” Fed. R. Civ. P. 55(c).

In exercising its discretion under Rule 55(c), a “district

court is supposed to consider ‘whether (1) the default was

willful, (2) a set-aside would prejudice plaintiff, and (3) the

alleged defense was meritorious.’” Mohamad v. Rajoub, 634

F.3d 604, 606 (D.C. Cir. 2011), aff’d sub nom. Mohamad v.

Palestinian Auth., 566 U.S. 449 (2012) (quoting Keegel v. Key

West & Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir.

1980). There is an interest favoring “the resolution of genuine

disputes on their merits,” such that “all doubts are resolved in

favor of the party seeking relief.” Jackson v. Beech, 636 F.2d

831, 835–36 (D.C. Cir. 1980). And that interest is pronounced

in the context of a foreign state desiring to assert defenses based

on its sovereign status. See FG Hemisphere Associates, LLC

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v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir.

2006).

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

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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

F2d 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

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sovereign immunity. El Paso Nat. Gas Co. v. United States,

750 F.3d 863, 874 (D.C. Cir. 2014).

The FSIA, 28 U.S.C. §§ 1602 et seq., affords the exclusive

basis for a United States court to obtain jurisdiction over claims

against a foreign state. See Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 443 (1989). The statute

first establishes a baseline grant of immunity, 28 U.S.C.

§ 1604, and then sets out various defined exceptions to that

general grant, id. §§ 1605–07. The result is that courts lack

jurisdiction over a claim against a foreign state unless it “comes

within an express exception.” Price v. Socialist People’s

Libyan Arab Jamahiriya, 389 F.3d 192, 196 (D.C. Cir. 2004).

Khochinsky contends that his claims implicate three FSIA

exceptions: the implied waiver exception, 28 U.S.C.

§ 1605(a)(1); the counterclaim exception, id. § 1607; and the

noncommercial tort exception, id. § 1605(a)(5). We agree with

the district court that none of those exceptions extends to

Khochinsky’s claims.

1.

We first consider the implied waiver exception. Under 28

U.S.C. § 1605(a)(1), a foreign state will not be “immune from

[ ] jurisdiction” in any case “in which the foreign state has

waived its immunity either explicitly or by implication.”

Khochinsky contends that, by requesting his extradition,

Poland implicitly waived its sovereign immunity as to all of his

claims in this case. We disagree.

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

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F.3d 118, 122 (D.C. Cir. 1999) (internal quotation marks and

citation omitted). In particular, we “have held that implicit in

§ 1605(a)(1) is the requirement that the foreign state have

intended to waive its sovereign immunity.” Id. (emphasis

added); see Ivanenko v. Yanukovich, 995 F.3d 232, 239 (D.C.

Cir. 2021). And as we have observed, “courts rarely find that

a nation has waived its sovereign immunity . . . without strong

evidence that this is what the foreign state intended.”

Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d

438, 444 (D.C. Cir. 1990) (quoting Frolova v. Union of Soviet

Socialist Republics, 761 F.2d 370, 377 (7th Cir.1985)).

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 state’s “filing a

responsive pleading without asserting sovereign immunity”; or

(iii) the state’s “agreeing to submit a dispute to arbitration in

the United States.” Ivanenko, 995 F.3d at 239; see World Wide

Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1161

n.11 (D.C. Cir. 2002). And “courts have been reluctant to stray

beyond these examples when considering claims that a nation

has implicitly waived its defense of sovereign immunity.”

World Wide Minerals, 296 F.3d at 1161 n.11 (internal

quotation marks omitted).

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

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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

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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.

The terms of the specific extradition treaty at issue—

between the United States and Poland—suggests no ground for

drawing any different conclusion in the specific circumstances.

The U.S.-Poland Treaty does not directly address the subject of

sovereign immunity against actions in either party’s courts.

Rather, the Treaty generally provides for the signatory

countries to “request extradition . . . through the diplomatic

channel.” Extradition Treaty Between the United States of

America and the Republic of Poland, U.S.-Pol., art. 9, July 10,

1996, T.I.A.S. No. 99-917. And by making use of the Treaty’s

“diplomatic channel” through a request for assistance from the

United States’s Executive Branch, Poland did not subject itself

to the jurisdiction of United States courts.

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

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within three defined categories. 28 U.S.C. § 1607. Those three

categories include, as relevant here, a counterclaim “arising out

of the transaction or occurrence that is the subject matter of the

claim of the foreign state.” Id. § 1607(b). According to

Khochinsky, the extradition proceeding amounts to an “action

brought by a foreign state” within the meaning of that

provision, and his quiet-title and aiding-and-abetting-trespass

claims arise out of the same “transaction or occurrence” as the

extradition proceeding.

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 Fed. R. Civ. P. 13, the counterclaim

exception applies only when there is an “action brought by a

foreign state, or in which a foreign state intervenes,” and when

the ostensible “counterclaim” is brought “in” that same action.

See 28 U.S.C. § 1607 (“In any action brought by a foreign state

. . .”) (emphasis added).

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

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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.

28 U.S.C. § 1605(a)(5). But even if Khochinsky’s relevant

claims fit within that description, the exception excludes from

its coverage “any claim arising out of malicious prosecution,

abuse of process, libel, slander, misrepresentation, deceit, or

interference with contract rights.” Id. § 1605(a)(5)(B).

Poland contends that Khochinsky’s pertinent claims are

ones “arising out of . . . abuse of process,” id., and we agree.

Khochinsky’s First Amendment retaliation claim asserts that

Poland undertook the extradition process to retaliate against his

speech. Compl. ¶¶ 120, 122, J.A. 18. And his tortious

interference claim contends that Poland’s actions caused him

to be imprisoned and subjected to house arrest. Compl. ¶ 133,

J.A. 19. Both of those claims “arise out of” an alleged “abuse

of process”—i.e., an alleged abuse of the extradition process.

While Khochinsky observes that the two claims are not

15

themselves actions for abuse of process, the statutory language

covers not just claims of abuse of process, but any claims

“arising out of” an alleged “abuse of process.” 28 U.S.C.

§ 1605(a)(5)(B) (emphasis added). That is true of

Khochinsky’s two relevant claims here, both of which “derive

from the same corpus of allegations concerning his

extradition.” Blaxland, 323 F.3d at 1203; see Cabiri v. Gov’t

of the Republic of Ghana, 165 F.3d 193, 200 (2d Cir. 1999).

Khochinsky submits that the term “abuse of process” for

purposes of § 1605(a)(5)(B) refers solely to abuse of judicial

process, whereas extradition is a diplomatic process. But as the

Ninth Circuit observed in Blaxland, a claim against a foreign

state for wrongfully “invoking the extradition procedures”

involves an “abuse of process” within the meaning of

§ 1605(a)(5)(B). Blaxland, 323 F.3d at 1204. Whether the

term “abuse of process” is “defined according to a uniform

federal standard or according to applicable state law”—here,

District of Columbia or New York law—the term “concern[s]

the wrongful use of legal process,” including an alleged effort

to “misuse[] legal procedures to detain” or “extradite”

someone. Id. at 1204, 1206; see Restatement (Second) of Torts

§ 682 (1977) (defining tort of abuse of process); Doe v. District

of Columbia, 796 F.3d 96, 108 (D.C. Cir. 2015) (same under

D.C. law); Curiano v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y.

1984) (same under N.Y. law). And Khochinsky is wrong,

moreover, insofar as he assumes that extradition is an

exclusively diplomatic process, to the complete exclusion of

any judicial role: while extradition, as we have explained, is

fundamentally diplomatic in character, it ultimately involves

the courts in some measure in its execution—as evidenced by

the termination of the extradition proceedings in this case upon

a judicial determination that probable cause was lacking.

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For all of those reasons, an alleged abuse of the extradition

process counts as an “abuse of process” under § 1605(a)(5)(B).

It follows that Khochinsky’s claims of First Amendment

retaliation and tortious interference fall outside the scope of the

FSIA’s noncommercial torts exception.

* * * * *

For the foregoing reasons, we affirm the district court’s

grant of Poland’s motion to dismiss for lack of jurisdiction.

So ordered.