United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
Alexander Khochinsky brought this suit in 2018 against the
Republic of Poland. Compl. ¶ 1, Dkt. 1. According to
Khochinsky, Poland has retaliated against him by seeking his
extradition in response to his attempt to procure restitution
for the seizure of his mother's land during World War II.
Id. ¶ 4-18. Khochinsky's complaint alleges
claims against Poland for: (1) First Amendment retaliation,
id. ¶ 117-25, (2) quiet title over the painting
Girl with Dove, id. ¶ 126-30, (3)
tortious interference with advantageous relations,
id. ¶ 131-35, (4) aiding and abetting trespass,
id. ¶ 136-43, and (5) abuse of process,
id. ¶ 144-52. On April 23, 2019, Poland moved
to dismiss the complaint for lack of subject matter
jurisdiction. Poland's Mot. to Dismiss, Dkt. 21. Because
the Foreign Sovereign Immunities Act (“FSIA”)
precludes this Court from exercising jurisdiction over any of
Khochinsky's claims, the Court will grant Poland's
motion and dismiss the case. See Fed. R. Civ. P.
considering Poland's motion to dismiss for lack of
subject matter jurisdiction, the Court accepts as true all of
the material allegations in Khochinsky's complaint.
See, e.g., Muir v. Navy Fed. Credit Union,
529 F.3d 1100, 1105 (D.C. Cir. 2008). The relevant facts are
Khochinsky recently acquired his American citizenship after
living in New York City as a foreign national for many years.
See Compl. ¶ 118. Khochinsky's mother,
Maria Khochinskaya, was a Polish Jew born in the town of
Przemysl, where her family owned land and a house.
Id. ¶ 5. In 1939, Germany invaded Poland, and
Maria became a Soviet citizen after the Soviet Union annexed
a portion of Przemysl containing her family's land.
Id. ¶ 30-33. On June 20, 1941, Maria and her
grandmother traveled east to Lviv to visit her mother for the
Sabbath observance. Id. ¶ 34. The very next
day, Germany invaded the Soviet Union. Id. ¶
35. All of Maria's family members who remained in
Przemysl were murdered by the Nazis, and so Maria became the
heir to her family's property there. Id. ¶
67. Maria ultimately died in 1989, when her rights in the
property passed to Khochinsky. Id. ¶ 68.
returned to Przemysl in the 1990s with his wife and his own
son. Id. ¶ 69. Yet upon his return, he
discovered that his mother's home had been destroyed, and
a Catholic church stood on the land instead. Id.
Neither Maria nor her family were ever compensated for the
seized property. Id. ¶ 70.
that Poland would exercise a hostile attitude towards a
Jewish restitution claim, Khochinsky initially decided not to
seek compensation for the seized land. Id. ¶
71. But this attitude changed around 2010, when Khochinsky
learned that a painting similar to one he had previously
inherited had been reported missing from Poland. Id.
¶ 74. The missing painting had belonged to Poland's
Wielkopolskie Museum, which had acquired the painting in
1931. Id. ¶ 75. The painting was allegedly
removed from the museum for protection and looted by the
Nazis sometime during World War II. Id. ¶ 75.
The missing painting was similar to Khochinsky's Girl
with Dove, which he had inherited pursuant to his
father's will in 1991. Id. ¶ 73.
Khochinsky's father told him that he had acquired
Girl with Dove after World War II, and that the
painting had previously been in Germany. Id. ¶
76. Khochinsky claims not to know whether Girl with
Dove is in fact the missing painting and believes that
it is not the missing work. Id. ¶ 78-79.
Khochinsky believed that he could offer the painting to
Poland as a “worthy substitute.” Id.
¶ 79. By doing so, he hoped that his discussions with
Poland for Maria's land could be more fruitful.
Id. ¶ 80. And so he offered Girl with
Dove to Poland in exchange for restitution. Id.
¶ 81. In 2010, a Polish representative indicated a
willingness to negotiate, but sent an expert to
Khochinsky's gallery to evaluate the painting first.
Id. ¶ 82-83. The expert concluded that Girl
with Dove was indeed the missing artwork, but he did not
inform Khochinsky of his conclusion at that time.
Id. ¶ 84.
The Extradition Proceeding
alleges that Poland has pursued a retaliatory extradition
proceeding against him because of his ownership of the
painting and his attempts to negotiate for restitution.
See Id. ¶ 85-116. A Polish Court initially
accused Khochinsky of knowingly and unlawfully purchasing the
painting in January 2013. Id. ¶ 86. A
“Wanted Person Notice” went out for
Khochinsky's arrest, id. ¶ 93, and then
Poland submitted a request to the United States for
Khochinsky's extradition in July 2013, id.
¶ 94-96. Poland informed the U.S. Department of State
that Khochinsky had acquired Girl with Dove
“despite being aware of the fact that the painting
originated from a prohibited act-looting of property in 1943
by the then authorities of the German Third Reich.”
Id. ¶ 96. Khochinsky claims that this
“accusation was baseless and purely in bad
faith.” Id. ¶ 97.
2015, an Assistant United States Attorney filed a petition
for a certificate of extraditability on behalf of Poland in
the United States District Court for the Southern District of
New York. Id. ¶ 98. Khochinsky was taken from
his New York City home in handcuffs and was imprisoned from
February 26 to March 9, 2015; he was then subject to house
arrest and electronic monitoring for several months
thereafter. Id. ¶ 100-04. In April 2015, Poland
sent a document to the Department of Justice stating that it
could not “clearly rule out or confirm”
Khochinsky's version of the events related to his
acquisition of Girl with Dove. Id. ¶
107. Thus, during a June 17, 2015 hearing in the extradition
proceeding, “the Assistant United States Attorney
representing Poland's interests acknowledged: ‘I do
not believe there is evidence in the record that goes
directly to Khochinsky's knowledge prior to his sending
an email to the Polish embassy in Moscow in 2010.'”
Id. ¶ 110.
District Court ultimately concluded that the United States
lacked probable cause to extradite Khochinsky. Id.
¶ 112. See generally In re Extradition of
Khochinsky, 116 F.Supp.3d 412 (S.D.N.Y. 2015).