Alexander Khochinsky v. Republic of Poland ( 2021 )


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  •  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
    2
    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.
    3
    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
    4
    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
    5
    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.
    6
    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
    7
    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
    8
    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
    9
    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
    
    10 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
    
    11 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
    12
    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
    13
    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
    14
    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.
    16
    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.