Last week, on behalf of our client Alexander Khochinsky, an art dealer, we filed a petition to rehear en banc the June 18, 2021 decision by a three-judge panel affirming the dismissal of the lawsuit against Poland for lack of subject matter jurisdiction (i.e., sovereign immunity). The case invokes three provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 (the FSIA): the implicit waiver exception, the counterclaim exception, and the non-commercial tort exception. The basis on which we seek rehearing is simple: if the holding of the District Court and panel of the DC Circuit is the law, then no one is safe in the United States from any number of rogue regimes that abuse the extradition system for discriminatory and persecutory reasons.
The lawsuit concerns Khochinsky’s claims arising out of Poland’s failed attempts in 2015 to extradite him for supposedly purchasing a painting knowing that it was stolen. In fact, the painting Girl with Dove was bequeathed to him by his father. Thus, at its core, the entire extradition effort was a title dispute in everything but name. The real reasons for the proceeding are more sinister.
Khochinsky is the son of a Holocaust survivor whose entire family and village was murdered during the Nazi occupation of what is now south-eastern Poland. His mother, who happened to be further east visiting her own mother when Operation Barbarossa began, was one of the barely 10% of Jews in that city who survived the war and the Holocaust. Her property was never returned to the family.
In 2010, Khochinsky approached the Polish government to discuss restitution of that property. He hoped that if he offered to transfer Girl with Dove—which appeared similar to a painting that Poland was seeking as taken from a museum during the war—Poland might be more willing than usual to discuss restitution.
Regrettably, he was wrong. As the Law and Justice Party in Poland has seized control in the last decade over all aspects of the Polish government and judiciary, a fixation on denying any restitution to Jews of the property taken from them has been one of the party’s bizarre priorities. Anti-Semitism has become, in effect, state policy.
The criminal accusations against Khochinsky never really made sense; after all, he approached the Polish government. Judge Rakoff of the U.S. District Court for the Southern District of New York saw through this; sadly, the Department of Justice and SDNY U.S. Attorney’s office went along with the charade and Khochinsky suffered arrest and imprisonment before Judge Rakoff threw the extradition request out in 2015. Poland has continued to harass Khochinsky around the world, having him arrested in Paris in 2019 again before a French court likewise dismissed that attempt, citing the increasing European consensus that Poland’s judiciary has been corrupted and lacks due process or the rule of law.
What does all this have to do with the FSIA? That statute sets out the exclusive instances in which a foreign sovereign can be sued in the United States. The implicit waiver exception is what it sounds like, that is, when a foreign state takes an act that it knows steps outside the sort of thing for which a sovereign expects to be immune it is no longer immune. The counterclaim exception means that if a sovereign initiates a legal process in the United States, it cannot assert sovereign immunity to a claim brought in response. And the non-commercial tort exception provides jurisdiction over certain property and personal injury claims.
Both the District Court last year, and the panel last month, held that none of these exceptions apply. As noted in our petition, the panel applied a version of a heads-Poland-wins-tails-Khochinsky-loses analysis. The logic of the panel decision is effectively this: extradition is “fundamentally diplomatic” and therefore ineligible for the implicit waiver exception of the FSIA (28 U.S.C. § 1605(a)(1)), yet at the same time extradition is “process” that is excluded from the FSIA’s noncommercial tort exception (28 U.S.C. § 1605(a)(5)) because extradition is not “exclusively diplomatic.” (Decision at 15, emphasis added). In other words, the panel concluded that extradition is too diplomatic, and yet somehow not diplomatic enough. We have requested that the full DC Circuit rehear this matter en banc to articulate an internally consistent standard of law.
Petitions for rehearing are rarely granted, but we are hopeful that the court will ask Poland for a responsive brief and consider the important policy—and threat to American citizens—involved.
