a are those ideas of grace and respect this case presents to the court a question of st impression of this target namely what happens when the foreign sovereign floats that idea of respect because make no mistake respectively disrespect among nations that issue in this case is poland's bad faith persecution of alexander kaczynski in the united states what then do we make of the st two exceptions that we didn't vote in this case the implied waiver and the counterclaim exception first as the just record noted we're dealing with facts that are not in dispute the moving to dismiss colin did not c lost or looted property and in poland that's not allowed in poland asking about jewish property restitution is instead a call to the policy of the government right now and so what happens to without evidence so that puts to the court the question of what to make of this and i think it's important to look right at lackland the case from the th circuit on which poland but what do we do when a sovereign directs a purely pretextual and discriminatory prosecution against a person whom they seek to deport from the united states is an extradition an executive process a diplomatic process right it involves the department of state the department of justice it doesn't involve the republic of poland going to court itself right that's how it begins that's hope against i think it's a critical point because even in blaxland less than suggested that and what should happen and what should happen here is some of the state department says this is absurd of course not but that didn't happen here and unless the state department and the justice department go to court nothing happens because the state department you know doesn't pick up people off the streets they have to go through the judicial process and he'd only ends with the extradition of a person perspective of the republic of poland that process is a is a process that's internal to the united states right to satisfy due process requirements and other requirements right our state department department of justice seek a certificate of extraditable at that's a process that's internal to the united states right it's not something that the republic of poland  district court took the perspective that blaxland takes loses the forest for the trees and in this case not coincidentally there is some back and forth just read off poses some questions to the justice department the justice row and gets the answers as a pure pass through the pure pastored it that the justice department doesn't mediate anything the way blaxland suggests they passed the question of poland poland provides the answer that's participating and again i can't do this you know a foreign corporation then there there can be consequences and it was i thought about this this argument i thought of course i this treatment mr kaczynski profoundly unfair but take an even more extreme example right imagine united extradition treaties with almost every country in the world except iran syria north korea i think right imagine the taliban resume control of afghanistan and the taliban institute prosecutions purely of facially recognizable crimes but purely for religious discrimination against jews against christians who never ok and as here nobody the state department stops this before it gets to co nearly every extradition request it's important member will result in extradition resit that to the conclusion here the district court is extraordinary in the in the usual sense of the word just a court just look at this and said no this doesn't add up even then even if the same standard were applied the united states even then if united states were faced with a claim like ours or as poland was here they can contest my allegation that there's nothing to this my allegation that this was a pure invention and at that point then i have to prove what i'm saying at the threshold stage right so this is an enormous guardrail against against that concern  and then even then of course like i said there has to be some discriminatory arbitrary nature of it has to be has to be plain on its face rep and you would have waves but there would have been a waiver a sovereign immunity it's true discriminatory reasons so yes what i'm saying is once poland set into motion that prosecution requesting the extradition ways and serve an immunity yes but that's what happened in cinnamon and i think it's important to look at superman and it's done so and that's what the implied wavers about that's what the consequence exceptions kind of claims about the phrases brings or intervenes in an action and as the as the lord a case held  even that language that plain language would just look at the statue not the legislative history that apply to interpret her actions that she doesn't say interplay or anything you could take a stream in their view and say well if it doesn't is an intervention rule nineteen or finally of a complaint initially it doesn't count as brother intervenes but lord expanded that perspective and we think appropriately so with that i'll reserve the balance my time was there any other questions that you will hear from  poland is presumptively immune and isn't fast immune from the gers diction of this court and no exception applies in the present matter that would withdraw this immunity more specifically the entirety of mr questions these claims center on an extradition proceeding that occurred o'donnell mentioned today i'd like to pick up where i'm mr o'donnell left off if i could momentarily mr o'donnell encourages a dangerous precedent and she's just ringing a bell to pick up  on your question the answer is yes and mr o'donnell concedes that the united states would be subject to lawsuits around the world anytime it initiated extradition pursuant to a treaty among nation that is counter to the concepts of comedy and respect among nations that mr o'donnell started off with and in fact would create chaos and would discourage what the extradition treaties are intended to allow  which is this respect and what about what about the argument that by seeking extradition the republic of poland knew that there would be a judicial process in order to complete its ex tradition right although of course it went through diplomatic channels in order to actually extradite mr kaczynski there would have to be some judicial process what about that are sure sure is a judicial component and poland in accordance with the extradition process provided evidence absent that evidence he would never successfully yesterday anyone so it's not improper on its face to adhere to what the statute contemplates and there is a judicial component and colons knowledge of the judicial component does not bear on whether the extradition process is proper or whether more importantly the republic of poland has acquiesced and the jurisdiction of the united states work there i think there is implied waiver by invoking this process two courts have universally found that the implied waiver exception is narrow it is narrowly construed and absent strong evidence that the foreign sovereign intended to waive the munity courts will generally not find that there is a waiver the legislative history talks about an agreement to arbitrate a potential indication of  waiver where the foreign sovereign has agreed to a particular choice of law or where the foreign solver has entered the response of pleading without raising jurisdiction and while the legislative history indicates that that might not be the entire universe  there's a commonality there the foreign sovereign has to demonstrate an intention to waive in order for that implied waiver exception to come into play and here there was no such action taken by on the part of the republic of pol expedition just i just have a background question about how it actually works in practice if a foreign country asks for extradition and then the executive that goes to the executive here and then the executive makes an assessment of what to do that the executive typically exercise discretion in determining whether to pass on the extradition request in other words it's engaging in its own inquiry and then it makes a determination of whether to magistrate or a united states district court judge for essentially an evidentiary and alice's of that and that was put forward so in terms of the nexus between the foreign countries request and the judicial proceeding that ultimately ensues it's not that the foreign government is necessarily saying i'm i'm subjecting myself to a judicial proceeding what it's saying is i'd like your help you suggest you put yourself in a judicial proceeding at my request definitely i'm triggering it but at my request i'm asking you to subject yourself to a judicial proceeding that then will pass on the request that i that i've made to you that's correct your honor and on the face of the captain in this particular extradition hearing the tw that have to be have to be examined by the by the executive such as whether the jewel criminality standard has been met and risen have a good foundation the evidence instances in which the executive has to what we're requesting what the united states is requesting extradition sometimes a foreign state will depending on their laws condition ext radition on an assurance that there be no capital punishment or charge to negotiation right here in that respect it's negotiation between nations that's correct your honor willfulness with respect to the default here i mean some of the claims of mr kaczynski really are about what the government of poland is doing here right and so i guess i'm wondering if you can maybe share with us you know why the republic of poland is in ski for a painting of relatively limited value and whether that pursuit does suggest bad faith or willful mass with est otherwise here there was confusion as it concerns service and i struggle to understand how the extradition or any of the kind of events that occurred in the aftermath bear on this  he failed to effect service mr kaczynski emailed the portuguese central authority and that of the polish central authority at the outset there were a number of the confusing events that occurred and once  fact proceed according to the correct process certificate of service was was or service rather was accomplished thereafter relatively quickly so there is no willfulness that mr kitchen's key points to and certainly the court did not district court and in the briefing here has been on one thousand six hundred and five a five b and whether the claim involves abuse of process i'm just wondering whether there was any any consideration given in the district court before the district court about the applicability of the discretionary function prong which is sixteen of five a five a as opposed to six you know five a five b did that ever come up and if not why not maybe there's an obvious answer exception particularly where mr kaczynski has pointed to abuse of process as count five of his complaints and the additional causes of action he suggests are covered by the noncommercial tort exception st and then retaliation and tortious interference a rise out of abuse of process and are also barred but here is it that may well be right i'm not suggesting that it's not right not just in one way or the other but is there an obvious reason that it's the initiation of the initiation of the extradition request was not a discretionary function pertinent exception apologies on this understanding the question no no i was just wondering if there's it's that either of them would work for your purposes a five a or a five b and i was just wondering whether there was an obvious reason why a five a was not a home is judicial process a lot of their argument rests on the idea that there were none and that's really all we're talking about and on the threshold matter certainly of the kind of claim exception with regard to pull one's response to the complaints service in october of tw eighteen was proper polling considered as the sole email by my service provider as a follow up to a portuguese diplomat delete the matter by two weeks before he corrected the address and followed up as to the willfulness there can really be no doubt and again on the allegations of the complaint what they then did was arrest my client in france and that leads to my final point which is just the relevance of the european judicial decisions is pullman has been cast out of he repeats immunity as it is a country that respects the rule the default judgment what good does that tell you the difference the default your honor we would there are two questions of course the question is should default judgment has entered we've moved for if the court turned us down so the court could untrue is not a bootlace matter if you don't have a claim of prejudice if we don't have a claim of prejudice your honor that is a component of the yes and i didn't part of the prejudices we were entitled to the judgment and in a collateral action is what happened in france and rather than focus on this case by the way but what's the climate we ordinarily claim a prejudice a context like this means that something changed  right thank you thank you thank you counsel thinking about counsel will take the case under submission