Ivanenko v. Yanukovich, No. 20-7033 (D.C. Cir. 2021)Annotate this Case
Appellants challenge the district court's dismissal of their claims against Ukraine for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act (FSIA). Appellants' claims stemmed from Ukraine's "total destruction" of their property for the construction of a road and railway bridge project.
The DC Circuit affirmed the district court's dismissal of Ukraine based on lack of subject matter jurisdiction, concluding that the district court correctly determined that appellants' lawsuit does not fall within the FSIA's expropriation exception. With respect to Appellants Luxexpress–II and the Ivanenkos, their claims are barred by the domestic takings rule. The court explained that, although the domestic takings rule does not apply to Alamo Group, it failed to show that its property is "owned or operated" by an instrumentality of Ukraine. In this case, even assuming arguendo, that the Ukraine South–Western Railway occupies the land that Luxexpress–II had leased, there are no allegations that it "owned or operated" Alamo Group's property. The court also concluded that appellants cannot satisfy the FSIA's commercial activity exception where the allegations describe conduct that is quintessentially sovereign and which could not have been carried out by a private participant in the marketplace. Therefore, Ukraine's alleged conduct was not in connection with commercial activity. Finally, the court concluded that Ukraine did not waive its sovereign immunity and rejected appellants' claims to the contrary.