We post the D.C. Circuit's opinion in Ivanenko v. Yanykovich, No. 20-7033 (Apr. 23, 2021) more for its interesting fact pattern than the holding (which doesn't tell us a lot about "takings" since is this is a case under the Foreign Sovereign Immunities Act, but hey, it did ping our "eminent domain" radar).
Under FSIA, foreign countries are mostly immune from being haled into an American courtroom. But there is an exception for "expropriation," when property is "taken in violation of international law." As the opinion put it:
Appellants first maintain that the FSIA’s expropriation exception permits their lawsuit against Ukraine. In their view, Ukraine’s “total destruction” of their property was a taking in violation of international law, particularly because Ukraine acted with the “discriminatory intent” to punish the Ivanenkos for promoting Western business interests. Relevant here, the FSIA’s expropriation exception divests a foreign state of its immunity in any action “in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property . . . is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.” “For the exception to apply, therefore, the court must find that: (1) rights in property are at issue; (2) those rights were taken in violation of international law; and (3) a jurisdictional nexus exists between the expropriation and the United States.”
Slip op. at 6 (citations omitted).
The tale told by the complaint is pretty harrowing. Check out pages 2-3 for the details, but the short story is that the plaintiffs allege that after they became very successful in the luxury American car and hospitality industry in Kyiv, the Ukrainian Ministry of Transport decided to take the plaintiffs' property as part of a rail project. But the taking never took place and instead the plaintiffs' property was "totally demolished," the railroad project never was built (instead the property "was actually used to build a sports facility owned by relatives of the Former Director General of the Ukraine South–Western Railway," and the plaintiffs chattel (luxury autos) disappeared.
None of those activities qualified for the expropriation exception. First, it wasn't a problem regarding the Ukraine plaintiff because Ukraine's taking of its own citizens' property isn't in violation of international law. It may be a problem but it is a Ukraine problem. Second, what of the American plaintiff? No deal there either, the court concluded: that plaintiff's property wasn't alleged to have been taken by an "instrumentality" of Ukraine - this was an (allegedly) private taking by the relatives of the railroad official, and the buildings and other property were demolished, not "owned or operated" by the takers.
Ivanenko v. Yanukovich, No. 20-7033 (D.C. Cir. Apr. 23, 2021)
