The petition of the day is Khochinsky v. Poland, which seeks review of the DC Circuit’s decision vacating a default judgment against Poland for lack of jurisdiction, Khochinsky v. Poland, 1 F.4th 1 (D.C. Cir. 2021). Khochinsky’s mother was a Polish Holocaust survivor whose land had been stolen and used to build a church. Khochinsky had inherited a painting from his father titled Girl with Dove, which he learned might be a painting that the Polish government claimed had been looted by the Nazis. He offered to exchange the painting for the stolen land. Poland responded by asking the United States to extradite Khochinsky to face charges that he had knowingly acquired a stolen painting. Khochinsky prevailed in the extradition case, though at significant personal cost. The judge held there was no evidence to support the charge.

Khochinsky then sued Poland, asserting the following claims: (1) that Poland had retaliated against him for his advocacy on Holocaust issues, in violation of the First Amendment; (2) to quiet title in the painting; (3) for tortious interference with business relations (due to the loss of business while he was held in jail or on house arrest during the extradition case); (4) aiding and abetting the church’s trespass to his mother’s land; and (5) abuse of process in the extradition case.

Although Poland ignored and ultimately defaulted on the US lawsuit, it continued to pursue Khochinsky, seeking his extradition from France, which he was visiting on business. Poland then successfully sought to vacate the default and obtained dismissal of the US case on grounds of foreign sovereign immunity. The French courts, too, rejected the extradition request; later, a German court also rejected a request.

I want to refer back to what I wrote in my post on the Scanlin case: I hate Holocaust FSIA cases, because the plaintiffs generally are victims of historic wrongs for which US law gives no remedy, and in Khochinsky’s case, the historic wrong was compounded by Poland’s bad behavior in the present. With that said, at first glance, the case for immunity seems strong. Seeking extradition seems quintessentially governmental. The historical wrongs of the Holocaust, including, in this case, theft of land, typically lack the connection with the United States necessary to give rise to an exception to foreign sovereign immunity.

Khochinsky makes an interesting argument for implied waiver. By invoking the US courts’ jurisdiction when it sought extradition (or rather, when it asked the US to extradite and the US brought proceedings), Poland has implicitly waived immunity from suit with respect to the entire controversy. Khochinsky pointed to an interesting Ninth Circuit case in which transmittal of letters rogatory was held to implicitly waive immunity. The DC court disagreed, holding that an extradition request, which is not a request from one court to another but an executive function, cannot support an implied waiver. I frankly do not understand the rationale for distinguishing letters rogatory from extrajudicial requests on this point, but unfortunately for Khochinsky, the Ninth Circuit itself made the same distinction, which undercuts an argument for a circuit split.

Khochinsky made a similar argument under the counterclaim exception, suggesting that some of his claims (the quiet title claim and the claim for aiding and abetting trespass) should be treated as counterclaims with respect to the claim for extradition that Poland brought. The DC Circuit rejected this argument on essentially procedural grounds, holding the the exception only applies when the counterclaims are brought in the same action as the claims; it also noted that the extradition case was brought by the United States, not by Poland.

The noncommercial tort exception expressly excludes claims for abuse of process, but Khochinsky had an interesting argument: on the one hand, the DC Circuit said there was no implied waiver because extradition did not involve a judicial request but an executive, diplomatic request, noting that Poland was not even a party to the US extradition case. How, therefore, could the claims of retaliation and intentional interference be likened to abuse of process so as to be barred undertake plain language of the statute? The DC Circuit, though, cited cases holding that a claim of an abuse of the extradition process was barred by the FSIA.

Why should we be okay with the law in the state that it’s in? Is there a good reason we should hold our noses? I think so. In the world of comity, we always need to think about what happens when the shoe is on the other foot. You might say that the United States would not misuse the extradition process in the way Poland has. But the immunity is not just an immunity from liability, but an immunity from suit–an immunity against having to defend against such claims on the merits.