JOHN V. DOE v. HOLY SEE
No. 06-35563, No. 06-35587
United States Court of Appeals, Ninth Circuit
March 3, 2009
557 F.3d 1066
Before: Ferdinand F. Fernandez and Marsha S. Berzon, Circuit Judges, and Otis D. Wright, II, District Judge.
Volume 1 of 2; FOR PUBLICATION; D.C. No. CV-02-00430-MWM; Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding; Argued and Submitted March 5, 2008—Portland, Oregon; Filed March 3, 2009.
Dissent by Judge Berzon;
Concurrence by Judge Fernandez
Jeffrey S. Lena, Law Office of Jeffrey S. Lena, Berkeley, California for the defendant-appellant-cross-appellee.
Marci A. Hamilton, Washington Crossing, Pennsylvania, for the plaintiff-appellee-cross-appellant.
OPINION
PER CURIAM:
We consider whether, on the allegations made in the Plaintiff‘s complaint in this case, the Holy See is entitled to immunity from suit under the Foreign Sovereign Immunities Act (“FSIA“),
John V. Doe brought suit in the United States District Court for the District of Oregon against the Holy See, the Archdiocese of Portland, Oregon (“Archdiocese“), the Catholic Bishop of Chicago (“Chicago Bishop“), and the Order of the Friar Servants (“Order“), alleging that when he was fifteen or sixteen years old he was sexually abused by Father Ronan, a priest in the Archdiocese and a member of the Order. Doe alleged various causes of action against the Holy See: (1) for vicarious liability based on the actions of the Holy See‘s instrumentalities, the Archdiocese, the Chicago Bishop, and the Order; (2) for respondeat superior liability based on the actions of the Holy See‘s employee, Ronan; and (3) for direct liability for the Holy See‘s own negligent retention and supervision of Ronan and its negligent failure to warn Doe of
For the reasons explained below, we affirm the district court in part and reverse in part as to the Holy See‘s appeal. As to the Holy See‘s vicarious liability for the acts of the Archdiocese, the Chicago Bishop, and the Order, we conclude that Doe has not alleged facts sufficient to overcome the presumption of separate juridical status for governmental instrumentalities, so the negligent acts of those entities cannot be attributed to the Holy See for jurisdictional purposes. Doe‘s vicarious liability claims therefore cannot go forward as pleaded. As to the Holy See‘s respondeat superior liability for Ronan‘s acts, we conclude that, because Doe has sufficiently alleged that Ronan was an employee of the Holy See acting within the “scope of his employment” under Oregon law, Ronan‘s acts can be attributed to the Holy See for jurisdictional purposes. Further, we agree with the district court that Ronan‘s acts come within the FSIA‘s tortious act exception, so the Holy See is not immune from suit for the respondeat superior cause of action. Although the district court held that Doe‘s negligence claims against the Holy See could proceed under the FSIA‘s tortious act exception, we conclude that they cannot, because the FSIA preserves immunity for discretionary acts. However, we do not have jurisdiction to consider the cross-appeal as to the commercial activity exception at this time. The decision of the district court on the appeal by the Holy See is therefore affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion. We dismiss the cross-appeal.
A. Complaint
In his amended complaint, filed April 1, 2004, Doe describes as follows Father Andrew Ronan‘s alleged sexual abuse of young boys: In 1955 or 1956, while employed as a parish priest in the Archdiocese of Armagh, Ireland, Father Ronan molested a minor and admitted to doing so. Ronan was later removed from Our Lady of Benburb and placed in the employ of the Chicago Bishop, at St. Philip‘s High School. At St. Philip‘s, Ronan molested at least three male students. Confronted with allegations of abuse, Ronan admitted to molesting the boys. The Chicago Bishop, “acting in accordance with the policies, practices, and procedures” of the Holy See, did not discipline or remove Ronan from his post.1
In approximately 1965, when Doe was 15 or 16 years old, the Holy See and the Order of the Friar Servants, of which Ronan was a member, “placed” Ronan in a parish priest position at St. Albert‘s Church in Portland, Oregon. Doe met Ronan at St. Albert‘s and came to know Ronan “as his priest, counselor and spiritual adviser.” Doe was a devout Roman Catholic, and for him “Ronan was a person of great influence and persuasion as a holy man and authority figure.” Using his position of trust and authority, Ronan “engaged in harmful sexual contact upon” Doe on repeated occasions. The sexual contact occurred “in several places including the monastery and surrounding areas.”
Based on these facts, Doe alleged causes of action against the Holy See, its “instrumentalities or agents” (“Does 1-10“), the Archdiocese, the Chicago Bishop, and the Order, all of whom it alleged were employers of Ronan. According to the amended complaint:
Defendant Holy See is the ecclesiastical, governmental, and administrative capital of the Roman Catholic Church. Defendant Holy See is the composite of the authority, jurisdiction, and sovereignty vested in the Pope and his delegated advisors to direct the world-wide Roman Catholic Church. Defendant Holy See has unqualified power over the Catholic Church including each and every individual and section of the [C]hurch. Defendant Holy See directs, supervises, supports, promotes[,] and engages in providing religious and pastoral guidance, education[,] and counseling services to Roman Catholics world-wide in exchange for all or a portion of the revenues derived from its members for these services. The Holy See engages in these activities through its agents, cardinals, bishops[,] and clergy, including religious order priests, brothers[,] and sisters, who engage in pastoral work under the authority of its bishop[s]. The Holy See is supported through the contributions of the faithful[,] which are received through donations from the dioceses around the world, including those in the United States. Defendant Holy See promotes and safeguards the morals and standards of conduct of the clergy of the [C]atholic [C]hurch. Defendant Holy See does this by and through its agents and instrumentalities, including the Congregation for the Clergy and the Congregation for Religious both delegated by the Pope and acting on his behalf. It creates, divides[,] and re-aligns dioceses, archdioceses[,] and ecclesiastical provinces. It also gives final approval to the creation, division[,] or suppression of provinces of religious orders. . . . It creates, appoints, assigns and re-assigns bishops [and] superiors of religious orders, and through the bishops and superiors of religious orders [it] has the power to directly assign and remove individual clergy. All bishops, clergy, and priests, including religious order priests, vow to
show respect and obedience to the Pope and their bishop. Defendant Holy See also examines and is responsible for the work and discipline and all those things which concern bishops, superiors of religious orders, priests[,] and deacons of the religious clergy. In furtherance of this duty, Defendant Holy See requires bishops to file a report, on a regular basis, outlining the status of, and any problems with, clergy. Defendant Holy See promulgates and enforces the laws and regulations regarding the education, training[,] and standards of conduct and discipline for its members and those who serve in the governmental, administrative, judicial, educational[,] and pastoral workings of the Catholic [C]hurch world-wide. Defendant Holy See is also directly responsible for removing superiors of religious orders, bishops, archbishops[,] and cardinals from service and/or making them ineligible for positions of leadership in the various divisions and offices of the Catholic [C]hurch.
The Archdiocese, according to the amendment complaint, is a corporation incorporated under the laws of the state of Oregon and is therefore a citizen of that state. It “provided pastoral services to [Doe] and his immediate family through its parishes.” The Chicago Bishop is incorporated under the laws of the state of Illinois and is a citizen of that state. Finally, the Order is “a citizen of the state of Illinois,” but it operates worldwide. It is under the “ultimate authority of” the Holy See.
Doe alleged that the Archdiocese and the Order were vicariously liable for Ronan‘s abuse of Doe, and that the Chicago Bishop and the Order were negligent in failing to warn the Archdiocese and Doe of Ronan‘s propensities. Doe also alleged that the Holy See was vicariously liable for Ronan‘s abuse of Doe and for the negligent actions of the Archdiocese, the Order, and the Chicago Bishop, and that the Holy See was
B. District Court Decision
The Holy See moved to dismiss the complaint in its entirety for lack of subject-matter jurisdiction, arguing that as a foreign sovereign, it is presumptively immune from suit under the FSIA, and that neither the “tortious act” exception to sovereign immunity,
The Holy See appeals the district court‘s decision that the tortious act exception applies. Doe cross-appeals the district court‘s dismissal of his fraud claim, contending that the commercial activity exception permits federal court jurisdiction over that cause of action.
II. STATUTORY FRAMEWORK
For much of our nation‘s history, from at least 1812 until 1952, “the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) (citing The Schooner Exchange v. M‘Faddon, 7 Cranch 116, 3 L. Ed. 287 (1812)). In 1952, however, the State Department adopted a more “restrictive” theory of foreign
In 1976, to “clarify the governing standards” and to insulate the issue of sovereign immunity from the impact of “case-by-case diplomatic pressures,” Congress enacted the FSIA,
[1] Under the FSIA, a foreign state is “immune from the jurisdiction of the courts of the United States and of the States” unless one of the statute‘s enumerated exceptions applies.
- which is a separate legal person, corporate or otherwise, and
- which is an organ of a foreign state or political subdivision thereof, . . . and
- which is neither a citizen of a State of the United States . . . nor created under the laws of any third country.
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case —
. . .
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;
. . .
(5) not otherwise encompassed in paragraph (2) above, 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 of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to —
(A) any claim based upon the exercise or performance or the failure to exercise or
perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights . . .
The statute further defines the elements of the commercial activity exception: A ” ‘commercial activity’ means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.”
The statute does not set out any substantive rules of liability, but instead provides that, “[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity under” the statute, “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.”
III. ANALYSIS
A. Standard for Motions to Dismiss Based on Foreign Sovereign Immunity
The Holy See has brought a facial attack on the subject matter jurisdiction of the district court under Rule 12(b)(1). We therefore “assume [plaintiff‘s] [factual] allegations to be true and draw all reasonable inferences in his favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000) (holding that we “favorably view[ ] the facts alleged to support juris
The Holy See suggests that when evaluating facial motions to dismiss based on foreign sovereign immunity, we must require a greater-than-usual level of detail in the pleadings, and may not construe factual allegations in favor of the plaintiff. Neither contention is correct. The cases on which the Holy See relies involve fact-based challenges to subject-matter jurisdiction. See, e.g., Robinson v. Gov‘t of Malaysia, 269 F.3d 133, 137-38, 146 (2d Cir. 2001) (relying on testimony and affidavits from the parties in concluding that the “generic allegations” in the complaint were insufficient to establish subject matter jurisdiction under the FSIA). In such cases, “no presumptive truthfulness attaches to plaintiff‘s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
Here, in contrast, the Holy See is contending that on the face of the complaint, we lack subject matter jurisdiction; it has introduced no evidence contesting any of the allegations. With regard to such a challenge, a motion to dismiss for lack of jurisdiction under the FSIA is no different from any other motion to dismiss on the pleadings for lack of jurisdiction, and we apply the same standards in evaluating its merit. See, e.g., Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). As the D.C. Circuit explained in Rong v. Liaoning Province Gov‘t, 452 F.3d 883, 888 (D.C. Cir. 2006), in the foreign sovereign immunity context, “[i]f the defendant challenges only the legal sufficiency of the plaintiff‘s jurisdictional allegations, then the district court should take the plaintiff‘s factual allegations as true and determine whether they
Moreover, we have never held that anything other than our usual notice pleading standard applies to complaints that allege an exception to foreign sovereign immunity. Under notice pleading rules, we require only “a short and plain statement” of the grounds for jurisdiction and the claim for relief.
B. Appellate Jurisdiction
1. Jurisdiction Over Appeal
A district court‘s denial of immunity to a foreign sovereign is an appealable order under the collateral order doctrine. See Schoenberg v. Exportadora de Sal, S.A., 930 F.2d 777, 779 (9th Cir. 1991); see also In re Republic of the Phil., 309 F.3d 1143, 1148 (9th Cir. 2002) (explaining that refusal to dismiss on grounds of sovereign immunity is within the collateral order doctrine because it “may result in the parties having to litigate claims over which the court lacks jurisdiction“).
2. Jurisdiction over Cross-Appeal
Doe cross-appeals and argues that his claims come within the FSIA‘s commercial activity exception to sovereign immu-
[3] As a general rule, the collateral order doctrine permits appellate jurisdiction only over those decisions of a district court that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.” See In re Copley Press, Inc., 518 F.3d 1022, 1025 (9th Cir. 2008) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). A decision denying immunity to a foreign sovereign meets those requirements. See Gupta v. Thai Airways Int‘l, Ltd., 487 F.3d 759, 763-64 & n.6 (9th Cir. 2007). Additionally, permitting a trial to go forward against a foreign sovereign when there is a claim of sovereign immunity “imperil[s] a substantial public interest.” See Will v. Hallock, 546 U.S. 345, 353 (2006) (explaining why decisions denying absolute, qualified, and Eleventh Amendment immunity come within the collaterally appealable order doctrine).
The collaterally appealable order doctrine does not automatically permit review of district court rulings contained in the same district court opinion as the appealable determination, if they do not themselves meet these requirements. See Abney v. United States, 431 U.S. 651, 663 (1977) (after concluding that the collateral order doctrine applies to a decision denying a motion to dismiss on double jeopardy grounds,
Here, the tort causes of action are not inextricably intertwined with Doe‘s other claims. Thus, that concept is not sufficient to allow Doe to appeal the district court‘s grant of immunity as far as that exception is concerned.3
Nor do we agree that we ought to simply take up the com-
[4] This case points up one of the perils of undertaking unnecessary review of grants of immunity. On this appeal we are presented with comparatively straightforward questions about the relationship between the Holy See and local priests under the tort exception. But the cross-appeal seeks to expand our inquiry into the arcane question of whether church functions are commercial activity because churches receive financial support from their parishioners, or otherwise. That is an issue that actually has nothing to do with the issues on interlocutory appeal.
[5] To say it another way, it is well established that, although an interlocutory appeal can be taken whenever immunity (absolute or qualified) is denied to a person or entity claiming entitlement thereto, an expansion to other issues is not usually allowed. See Swint v. Chambers County Comm‘n., 514 U.S. 35, 43-51 (1995); Cunningham v. Gates, 229 F.3d 1271, 1284-86 (9th Cir. 2000). We are asked to, in effect, change that rule so that whenever immunity is denied on one set of issues but granted on another set, a cross-appeal can be taken regarding the granted set. Surely that would be the ineluctable effect of Doe‘s request. One would not even need to show, by the way, a true interlocking of issues beyond the fact that both deal with immunity. One would only need to argue that the alternative set will support the denial of immunity on a wholly different basis. That approach would be
[6] Thus, we will not consider issues regarding the district court‘s grant of immunity under the commercial exception to the FSIA.
C. Determining Which Acts May Be Attributed to the Holy See for Jurisdictional Purposes
Before turning to the question of which, if any, of the FSIA‘s exceptions to immunity apply, we must determine which of the acts alleged in the complaint may legitimately be attributed to the Holy See for purposes of establishing jurisdiction. Doe‘s complaint alleges tortious acts by the Archdiocese, the Order, and the Bishop, all alleged to be corporations created by the Holy See. The Holy See argues that we may not consider these alleged acts by the Archdiocese, the Order, and the Bishop when determining whether jurisdiction exists over the Holy See, because Doe has not alleged facts that
1. Determining Whether an Agency Relationship Exists Between the Holy See and Its Domestic Corporations for Purposes of Establishing Jurisdiction over the Holy See
a. The Bancec standard
In arguing that the actions of the corporations are not attributable to Holy See for purposes of determining jurisdiction, the Holy See relies on First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba (”Bancec“), 462 U.S. 611 (1983). In Bancec, the Supreme Court considered whether an instrumentality created by a foreign state could be held liable for
Jurisdiction in Bancec existed under FSIA‘s counterclaim provision,
[7] The Supreme Court began by noting that, although Bancec was an “agency or instrumentality” of Cuba within the meaning of
[8] That presumption can be overcome, the Court explained, in two instances: when “a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created,” or when recognizing the separate status of a corporation “would work fraud or injustice.” Id. at 629. The Court then held the latter standard dispositive of Bancec‘s case: The Cuban government could not have sued in its own name in a U.S. court “without waiving its sovereign immunity and answering for [its] seizure of Citibank‘s assets.” Id. at 633. Instead, Cuba had transferred its assets to separate entities, and Bancec then sought to avoid liability for the seizure. “[T]he Cuban government . . . [and] not any third parties that may have relied on Bancec‘s separate juridical identity” would be the real beneficiary if Bancec was not held liable for the Cuban government‘s actions. Id. at 631-32. Given this circumstance, the Court concluded that to “adhere blindly to the corporate form” would work such an “injustice” that the presumption of separate juridical status had been overcome. Id. at 632. Holding Bancec liable for the Cuban government‘s actions, the Court held that Citibank was entitled to offset the value of its seized assets from the amount it owed to Bancec. Id. at 634.
[9] The Supreme Court in Bancec did not have the opportunity to consider whether the actions of a corporation may be attributed to the sovereign — the reverse of the Bancec scenario — for purposes of determining whether jurisdiction over that sovereign exists. This Circuit has not previously addressed that question either.8 At least two other circuits,
In Transamerica Leasing v. La Republica de Venezuela, 200 F.3d 843 (D.C. Cir. 2000), a plaintiff sued Venezuela, alleging that Venezuela was liable for the commercial acts of a government instrumentality, CAVN. Id. at 846. To determine whether Venezuela was amenable to suit under the commercial activity exception, the court turned to the Bancec test and asked whether (1) Venezuela and CAVN had a principal-agent relationship, or (2) recognizing CAVN as a separate entity would work an injustice. Id. at 848. Although it acknowledged that ”Bancec recognized these as exceptions to the rule that a foreign sovereign is not liable for the acts of an instrumentality of the state,” the D.C. Circuit held that “they serve also as exceptions to the rule that a foreign sovereign is not amenable to suit based on the acts of such an instrumentality.” Id. (emphasis added). See also Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 446 (D.C. Cir. 1990) (“The presumption of juridical separateness of entities also applies to jurisdictional issues.“). The Fifth Circuit adopted the same principle in Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 533-36 (5th Cir. 1992), refusing to attribute the actions of a private labor union to the Mexican state-owned oil company for purposes of determining
[10] We join the D.C. Circuit and the Fifth Circuit in extending Bancec‘s analysis to the question whether the actions of a corporation may render a foreign sovereign amenable to suit. A foreign state can only “act[ ] through its agents,” be they corporations or individual people. Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307-08 (9th Cir. 1997) (“Because a foreign state acts through its agents, an agent‘s deed . . . constitutes activity ‘of the foreign state.’ “); see also Gilson v. Republic of Ireland, 682 F.2d 1022, 1026 n.16 (D.C. Cir. 1982) (noting that “the activities of an agent may be attri
[11] Bancec provides a workable standard for deciding this question. Applying Bancec‘s presumption in favor of separate juridical status for foreign state instrumentalities at the jurisdiction phase, not just at the liability phase, is consistent with the
With these considerations in mind, we conclude that it is appropriate to use the Bancec standard to determine whether Doe‘s allegations are sufficient to permit jurisdiction over the Holy See based on acts committed by its affiliated domestic corporations.
b. Applying the Bancec standard to Doe‘s complaint
[12] Applying the rule of Bancec to the allegations in Doe‘s complaint, we conclude that Doe has not alleged sufficient facts to overcome the “presumption of separate juridical status,” for reasons similar to those dispositive in the converse
Doe‘s complaint does not allege day-to-day, routine involvement of the Holy See in the affairs of the Archdiocese, the Order, and the Bishop. Instead, it alleges that the Holy See “creates, divides[,] and re-aligns dioceses, archdioceses and ecclesiastical provinces” and “gives final approval to the creation, division or suppression of provinces of religious orders.” Doe also alleges that the Holy See “promulgates and enforces the laws and regulations regarding the education, training[,] and standards of conduct and discipline for its members and those who serve in the governmental, administrative, judicial, educational[,] and pastoral workings of the Catholic [C]hurch world-wide.” These factual allegations — that the Holy See participated in creating the corporations and continues to promulgate laws and regulations that apply to them — are quite similar to the facts in Flatow, and are, as in Flatow, insufficient to overcome the presumption of separate juridical status.
Doe does directly allege in his complaint that the corporations are “agents” of the Holy See. In this context, however,
The district court apparently found jurisdiction proper by relying on the second, equitable prong of Bancec, noting that “foreign states cannot avoid their obligations to third parties by engaging in abuses of the corporate form.” Doe, 434 F. Supp. 2d at 936. But Doe has not alleged that the Holy See has inappropriately used the separate status of the corporations to its own benefit, as in Bancec, or that the Holy See created the corporations for the purpose of evading liability for its own wrongs. Rather, in ruling for Doe on this point, the district court seemed to be influenced by the complaint‘s allegations of wrongful acts perpetrated directly by the Holy See. See Doe, 434 F. Supp. 2d at 937. The existence of such direct wrongful acts cannot determine whether the distinct wrongful
[13] Doe‘s vicarious liability claim for the actions of the Archdiocese, Chicago Bishop, and Order is based entirely on an allegation that the actions of the domestic corporations are attributable to the Holy See. Doe has therefore not alleged sufficient facts to demonstrate that any exception to sovereign immunity applies to that cause of action. We therefore conclude that the district court lacked jurisdiction over the Holy See for the tortious acts allegedly committed by the Archdiocese, the Chicago Bishop, and the Order.
2. Actions Performed by the Holy See Itself
As to Doe‘s other causes of action, the Holy See contends that Doe has failed to allege any facts in support of his claims based on the actions of the Holy See itself, rather than of its domestic corporations. We do not agree. Doe has made several allegations regarding actions taken by the Holy See itself — namely, its negligent retention and supervision of Ronan and its failure to warn Doe of Ronan‘s dangerousness. Doe has also alleged respondeat superior liability against the Holy See for Ronan‘s actions as an alleged employee of the Holy See. We turn now to those allegations, considering whether they are sufficient to support jurisdiction over the Holy See.
We will now examine whether the district court could exercise jurisdiction over the Holy See for these causes of action under the
D. Tortious Act Exception
The district court held that all of Doe‘s claims, except the one for fraud, come within the exception to immunity for a “tortious act or omission of [a] foreign state or of any official or employee of that foreign state while acting within the scope
Doe‘s respondeat superior claim based on Ronan‘s actions comes within the tortious act exception. Doe has clearly alleged that Ronan was an employee of the Holy See, acting within the scope of his employment, when he molested Doe. We conclude, however, that Doe‘s claims against the Holy See for negligent retention and supervision and failure to warn cannot be brought under the tort exception because they are barred by the
1. Respondeat superior for Father Ronan‘s tortious acts
a. The meaning of “employee”
In his complaint, Doe alleges that the Holy See “employed priests, including one Father Andrew Ronan” and that Ronan was under the “direct supervision and control” of the Holy See. The Holy See was further “responsible for the work and discipline [of] . . . priests.” According to the complaint, the Holy See on at least one occasion was responsible for controlling where Ronan performed his functions: the Holy See “placed Ronan in [the] Archdiocese at St. Albert‘s Church in Portland, Oregon.”
The Holy See maintains that Doe has not alleged sufficient facts to demonstrate that Ronan was an “employee” of the Holy See for purposes of the tortious act exception, because the word “employee” is a legal conclusion we are not required to accept as true. We are highly skeptical of the notion that, under notice pleading, use of the word “employee” in a complaint is insufficient to establish an allegation of an employment relationship. True, in addition to being a word used in everyday speech, “employee” does have a common law legal definition. See, e.g., Schaff v. Ray‘s Land & Sea Food Co., 45 P.3d 936, 939 (Or. 2002) (defining “employee” for purposes
b. The meaning of “within the scope of employment”
More complicated under Oregon law is the question of whether Ronan‘s actions were “within the scope of employment” as the
As it happens, the Oregon Supreme Court has directly addressed whether a church can be liable under respondeat superior for the actions of a priest who sexually assaults a parishioner. In Fearing v. Bucher, 977 P.2d 1163 (Or. 1999), the plaintiff alleged that he had been sexually molested by a Catholic priest who “used his position as youth pastor, spiri
(1) the act must have occurred substantially within the time and space limits authorized by the employment;
(2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and
(3) the act must have been of a kind which the employee was hired to perform.
Applying these three factors, Fearing stated that the priest‘s “alleged sexual assaults on plaintiff clearly were outside the scope of his employment” under the traditional test, but held that the “inquiry does not end there.” Id. at 1166. Instead, the court went on to ask whether “acts that were within [the priest‘s] scope of employment resulted in the acts which led to injury to [the] plaintiff.” Id. (emphasis added; internal quotation marks and citation omitted). The court concluded that because a jury could infer from the facts alleged that “performance of . . . pastoral duties with respect to plaintiff and his family were a necessary precursor to the sexual abuse and that the assaults thus were a direct outgrowth of and were engendered by conduct that was within the scope of . . . employment,” id. at 1168, the complaint satisfied “all
[14] The Oregon Supreme Court has since clarified that Fearing created a “scope of employment” test specifically applicable to intentional torts. Minnis v. Oregon Mut. Ins. Co., 48 P.3d 137 (Or. 2002), observed that, in Fearing, there was no question that the first requirement of “the within the scope of employment” test was met, because the abuse occurred “within the time and space limits” of the priest‘s employment. 48 P.3d at 144-45. But because Fearing involved an intentional tort, it was inappropriate to focus on whether the tort itself was committed in furtherance of the employer‘s objectives or was an act of the kind the employee was hired to perform:
Rather, for the purpose of determining whether a complaint meets the second and third . . . requirements . . . , the focus properly is directed at whether the complaint contains sufficient allegations of employee‘s conduct that was within the scope of his employment, that is, conduct that the employee was hired to perform, that arguably resulted in the acts that caused plaintiff‘s injury.
Id. at 144-45 (internal quotation marks, alterations, and citations omitted). Minnis thus makes clear that, rather than holding that sexual abuse is not within the scope of employment, Fearing created an alternative test with respect to the second and third factors of the “within the scope of employment” standard, applicable when a plaintiff has alleged an intentional tort: An intentional tort is within the scope of employment, and can support respondeat superior liability for the employer, if conduct that was within the scope of employment was “a necessary precursor to the” intentional tort and the intentional tort was “a direct outgrowth of . . . conduct that was within the scope of . . . employment.” Fearing, 977 P.2d at 1163.
[16] Under Oregon law, then, Doe has clearly alleged sufficient facts to show that his claim is based on an injury caused by an “employee” of the foreign state while acting “within the scope of his . . . employment,” as required to come within the
2. Negligent retention, supervision, and failure to warn
According to Doe‘s complaint, the Holy See “negligently retained Ronan and failed to warn those coming into contact with him,” even though it knew or should have known that Ronan had a history of sexually abusing children. The Holy See also “failed to provide reasonable supervision of Ronan.” Whether or not this alleged negligence otherwise comes within the language of the
[17] The discretionary function exclusion shields foreign sovereigns from tort claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.”
[18] As to the first Gaubert criterion, Doe refers vaguely in his complaint to the Holy See‘s “policies, practices, and procedures” of not firing priests for, and not warning others about, their abusive acts. He also refers in his brief to a “policy promulgated by the Holy See to cover up incidents of child abuse,” which he argues removed “an[y] element of judgment or choice” from the Holy See‘s actions “to the extent that Appellants were acting pursuant to” it. Yet nowhere does Doe allege the existence of a policy that is “specific and mandatory” on the Holy See. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989) (emphasis in original). He does not state the terms of this alleged policy, or describe any documents, promulgations, or orders embodying it. Nor does the complaint in any other way allege that the Holy See‘s decisions to retain Doe and not warn about his proclivities involved no element of judgment, choice, or discretion. While the burden of proving the Gaubert factors ultimately falls on the sovereign entity asserting the discretionary function exception, “a plaintiff
[19] As to the second Gaubert criterion, the decision of whether and how to retain and supervise an employee, as well as whether to warn about his dangerous proclivities, are the type of discretionary judgments that the exclusion was designed to protect. We have held the hiring, supervision, and training of employees to be discretionary acts. See Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) (holding that plaintiff‘s claims of “negligent and reckless employment, supervision and training of” employees “fall squarely within the discretionary function exception“); see also Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997) (holding that “decisions concerning the hiring, training, and super[vision]” of employees are discretionary). Moreover, failure to warn about an individual‘s dangerousness is discretionary.10 See Sigman v. United States,
[20] The Holy See‘s failure to present any evidence that its actions were actually based on policy considerations is not relevant to whether the discretionary function exception applies. A foreign state‘s decision “need not actually be grounded in policy considerations so long as it is, by its nature[,] susceptible to a policy analysis.” See Kelly v. United States, 241 F.3d 755, 764 n.5 (9th Cir. 2001) (second emphasis added). A policy analysis is one that implements “political, social, and economic judgments.” Berkovitz v. United States, 486 U.S. 531, 539 (1988) (internal quotation marks and citations omitted). In the case of Father Ronan‘s alleged abuse, the Holy See might have decided to retain him and not to warn his parishioners because it felt that to do otherwise would have harmed the Church‘s reputation locally, or because it felt that pastoral stability was sufficiently important for the parishioners’ well-being, or because low ordination rates or staffing shortages made it necessary to keep Ronan on. That such social, economic, or political policy considerations could have influenced the decision renders it the kind of judgment that the discretionary function exception was designed to shield.
[21] In sum, the tortious act exception does not provide jurisdiction over Doe‘s negligent hiring, supervision, and failure to warn claims because they are barred by the discretionary function exclusion.11 We therefore cannot affirm the district court‘s judgment on this ground.
In conclusion, we observe once again that the Holy See has brought a facial attack on the allegations of subject-matter jurisdiction in the complaint. It remains to be seen whether Doe can prove his allegations. While the Holy See was certainly entitled to bring a facial attack on the complaint, such an approach is not without risk, for it “call[s] upon [us] to decide far-reaching . . . questions” of some importance “on a nonexistent factual record, even where . . . discovery” might “reveal the plaintiff‘s claims to be factually baseless.” Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004). After careful consideration, we have reached the conclusion that most of Doe‘s causes of action are not covered by the tort exception and overturn the district court‘s denial of immunity as to those. However, because it would be improper to consider the commercial activity exception, we express no opinion regarding that exception.
For the foregoing reasons, in appeal No. 06-35563 the decision of the district court is AFFIRMED in part, REVERSED in part, and REMANDED. The cross-appeal (No. 06-35587) is DISMISSED. Each party shall bear their own costs.
must occur in the United States, as the Sixth and D.C. Circuits have held. See O‘Bryan v. Holy See, Nos. 07-5078, 07-5163, ___ F.3d ___, ___, 2009 WL 305342, at *13 (6th Cir. Feb. 10, 2009); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1524-25 (D.C. Cir. 1984). But see Olsen v. Gov‘t of Mexico, 729 F.2d 641, 646 (9th Cir. 1984).
I agree with the majority that Doe‘s negligence claims against the Holy See, as currently pleaded, cannot proceed under the tortious act exception to the
I. Jurisdiction
We have before us an appeal (by the Holy See) and a cross-appeal (by Doe), both seeking reversal of different aspects of the district court‘s decision. The Holy See‘s appeal, which is authorized under the collateral order doctrine, challenges the district court‘s ruling that the
I agree with the majority and the Holy See that we lack jurisdiction over Doe‘s actual cross-appeal — that is, over the question whether the Holy See is immune from Doe‘s fraud cause of action. We do, however, have jurisdiction over Doe‘s arguments in favor of upholding the district court‘s order, including his argument that the non-fraud causes of action, which the district court allowed to go forward, are within the commercial activity exception.
Specifically, I agree that the district court‘s grant of immunity with regard to the fraud cause of action is not independently appealable under the collateral order doctrine at this stage in the proceedings. As the majority notes, where a district court has granted sovereign immunity on a particular claim, as opposed to where it has denied immunity and let the claim go forward, the concerns for foreign sovereigns that animate the collateral order doctrine do not apply. See Maj. Op. at 2559 (quoting Will v. Hallock, 546 U.S. 345, 353 (2006)). Further, the district court‘s grant of immunity and denial of jurisdiction over Doe‘s fraud cause of action will be reviewable at the end of the entire action, so there is no need to allow review of that decision at this time, before there has been a final judgment on the case as a whole. See In re Copley Press, Inc., 518 F.3d 1022, 1025-26 (9th Cir. 2008).
Our consideration of the fraud claim is also not ” ‘necessary to ensure meaningful review of’ ” the other questions that are properly before us. Meredith v. Oregon, 321 F.3d 807, 812 (9th Cir. 2003) (quoting Swint v. Chambers County Comm‘n, 514 U.S. 35, 51 (1995)). We have held that decision of an issue is “necessary to ensure meaningful review of” another question only if the assertedly pendent issue provided the basis for the district court‘s jurisdiction to reach the otherwise appealable question. Id. (internal quotation marks omitted) (holding that review of Younger abstention decision was necessary to ensure meaningful review of the district court‘s grant of a preliminary injunction, because in the absence of its Younger holding, the district court would not have had jurisdiction to issue the injunction). The denial of the fraud claim in this case, in contrast, was not an essential precursor to the district court‘s determination that it had jurisdiction over Doe‘s other causes of action. For these reasons, I agree with the majority that the district court‘s dismissal of Doe‘s fraud claim is not properly before us.
As we have stated over and over again, we may affirm the district court on any ground raised below and supported by the record. See, e.g., Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam) (“We may affirm a district court‘s judgment on any ground supported by the record, whether or not the decision of the district court relied on the same grounds or reasoning we adopt.“); accord Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418-19 (9th Cir. 1998); Jackson v. S. Cal. Gas Co., 881 F.2d 638, 643 (9th Cir. 1989).
No cross-appeal is required — or appropriate — where we are being asked only to affirm the district court‘s judgment in full, albeit on a ground rejected by the district court. We have long held that an appellee is required to file a cross-appeal if he seeks “to support modification of the judgment.” Engles Antitrust Case Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1041 (9th Cir. 1992) (internal quotation marks and citation omitted). In contrast, “arguments that support the judgment as entered can be made without a cross-appeal . . . even where the argument being raised has been explicitly rejected by the district court.” Id. (internal quotation marks and citation omitted); accord Gillam v. Nev. Power Co., 488 F.3d 1189, 1192 n.3 (9th Cir. 2007) (citing Engleson, and holding that an appellee did not need to cross-appeal to argue for a different standard of review than that used by the district court as an alternative ground for affirming the district court‘s judgment). In other words, “[s]o long as the appellee does not seek to ‘enlarge’ the rights it obtained under the district court judgment, or to
So, if we conclude that the tortious act exception is insufficient to support jurisdiction over any of Doe‘s non-fraud claims, we may look to the commercial activity exception as an alternative ground on which to affirm the district court. Contrary to the majority‘s assertion, by doing so we would not be exercising jurisdiction over Doe‘s cross-appeal, in which Doe raises a commercial activity exception argument that would permit the exercise of jurisdiction over his fraud claim. Rather, we would be determining whether the record supports affirmance of the district court‘s order as to Doe‘s non-fraud claims, which is the subject of the Holy See‘s appeal. Put another way, Doe‘s cross-appeal asks us to ” ‘enlarge’ the rights [he] obtained under the district court judgment,” Rivero, 316 F.3d at 862, so the majority is quite right that we may not consider his arguments regarding the fraud claim. But Doe needed no cross-appeal to respond to the Holy See‘s appeal; Doe could — and did — respond by asking us simply to preserve the result that the district court reached, either by following the district court‘s reasoning or by a different rationale. Our case law clearly permits us to do so.
The majority concludes otherwise, maintaining that deciding the commercial activity issues involves review of a grant of immunity. See Maj. Op. at 2560-61, 2562 & n.5. But that is simply not so. The district court did decide that the commercial activity exception does not apply, but — except for the fraud cause of action — it did not grant immunity on that basis, as it concluded that there was another basis for denying
Moreover, I see no prudential reasons whatever for refusing to exercise our jurisdiction. The application of the commercial activity exception was fully litigated below, the district court decided the question, and the issue has been fully briefed and argued here. See McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1133 (9th Cir. 1996) (holding that we can decline on appeal to affirm a summary judgment on grounds not relied on by the district court if the record is inadequate or the grounds not purely legal); Badea v. Cox, 931 F.2d 573, 575 n.2 (9th Cir. 1991) (declining to affirm the district court on an alternative basis “as a prudential matter,” because the issue had not been briefed by the government, and raised a question of first impression in this Circuit) (internal quotation marks omitted).
The majority disagrees, maintaining that we should not exercise our prudential jurisdiction to support the district court‘s denial of immunity, because “a grant of immunity is not interlocutorily appealable at all.” Maj. Op. at 2562 n.5. This reasoning, once more, mischaracterizes the state of play. The district court did not grant the Holy See immunity except with regard to the fraud cause of action; as to the rest of Doe‘s complaint, the district court denied immunity. The exercise of available jurisdiction is thus necessary to decide whether the district court‘s denial of immunity should stand. I would conclude that we have jurisdiction to decide the applicability of both the tortious act and commercial activity exceptions to the causes of action that are the subject of the Holy See‘s appeal — that is, all the causes of action alleged against the Holy See in Doe‘s complaint except for the fraud cause of action.
Given my view of the jurisdictional posture of the case, I would reach the merits of the commercial activity question and hold that, although the district court erred in applying the tortious act exception to preserve federal jurisdiction over Doe‘s non-fraud negligence claims, the district court‘s result should be affirmed on the alternative rationale that the commercial activity exception applies.1
As the majority explains, Doe‘s complaint sufficiently alleged an employment relationship between Ronan and the Holy See under Oregon law. Maj. Op. at 2572-75 (citing Fearing v. Bucher, 977 P.2d 1163 (Or. 1999)). For the reasons explained in greater detail below, I would hold that that relationship constitutes “commercial activity” for purposes of the FSIA.
Ronan was employed not as a member of the Vatican‘s diplomatic, civil service, or military personnel, the employment of whom we have held to be a quintessentially sovereign activity under the FSIA, but in a non-sovereign — here, religious — capacity. See Holden v. Canadian Consulate, 92 F.3d 918, 921 (9th Cir. 1996). Further, Doe‘s negligence claims are “based upon” the employment relationship between Ronan and the Holy See, as the FSIA requires.
The FSIA is often described as having codified the “restrictive” theory of sovereign immunity. See, e.g., H.R. Rep. No. 94-1487, at 7 (1976); Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 487 (1983). Under the restrictive theory, “a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts (jure imperii), but not as to those that are private or commercial in character (jure gestionis).” Saudi Arabia v. Nelson, 507 U.S. 349, 359-60 (1993). The Supreme Court has explained that a foreign state engages in “commercial” activities when it “do[es] not exercise powers peculiar to sovereigns,” but rather “exercise[s] only those powers that can be exercised by private citizens.” Republic of Argentina v. Weltover, 504 U.S. 607, 614 (1992) (alteration in original) (internal quotation marks omitted). Clarifying the statute‘s requirement that courts look not at the “purpose” of a foreign state‘s actions but rather at the “nature” of its actions,
What is more, no profit need be made, or need even be possible, for the activity to qualify as “commercial.” In Weltover, Argentina‘s issuance of bonds to refinance its debt was held to be “commercial activity,” even though the consideration Argentina received for them was “in no way commensurate with [their] value.” Id. at 616 (alteration in original). That fact, the Court held, “ma[de] no difference,” because “[e]ngaging in a commercial act does not require the receipt of fair value, or even compliance with the common-law requirements of consideration.” Id. Applying this understand-
In sum, a foreign state engages in commercial activity when it engages in acts that any private citizen has the power to undertake, regardless of the state‘s motive or the possibility of making a profit therefrom. Applying the Weltover definition of “commercial activity,” this Circuit has repeatedly held that an employment relationship between a foreign sovereign and its employee constitutes commercial activity, so long as the employee is not a civil service, diplomatic, or military employee. In Holden v. Canadian Consulate, 92 F.3d 918 (9th Cir. 1996), for example, a former “Commercial Officer” in the “Trade and Investment Section” of the Canadian Consulate in San Francisco brought an action alleging that the Canadian government illegally discriminated against her on the basis of sex and age. Id. at 919-20. Examining the FSIA‘s legislative history, we noted that the House Report listed “the employment of diplomatic, civil service, or military personnel . . . by the Foreign state in the United States” as examples of acts that are “public or governmental and not commercial in nature.” Id. at 921 (quoting H.R. Rep. No. 94-1487, at 16). In contrast, the “employment or engagement of [such other employees as] laborers, clerical staff or public relations or marketing agents would be . . . included within the definition of commercial activity.” Id. (quoting H.R. Rep. No. 94-1487, at 16). Based on this legislative history, we held that employment “of diplomatic, civil service or military personnel is governmental and the employment of other personnel is commercial.” Id.
We applied the Holden standard to the hiring of a domestic servant for a diplomat‘s residence in Park v. Shin, 313 F.3d 1138 (9th Cir. 2002). Park brought an action against the Deputy Consul General of the Korean Consulate in San Francisco, alleging that during her tenure as a domestic servant in the Deputy Consul General‘s home, the Deputy Consul General withheld her pay, denied her medical care, and confiscated her passport. Id. at 1140-41. We held that the commercial activity exception applied because “[t]he act of hiring a domestic servant is not an inherently public act that only a government could perform.” Id. at 1145. Because the plaintiff‘s claims were based on an employment relationship with the defendant, the defendant was not entitled to sovereign immunity. Id.
B. The employment relationship between Ronan and the Holy See
Under this understanding of the phrase “commercial activity,” Doe‘s negligence claims without doubt come within the commercial activity exception.
Doe‘s amended complaint explains that the Holy See has both “ecclesiastical” and “governmental” functions. In its governmental role, the Holy See undertakes certain functions that are undoubtedly sovereign. It maintains a volunteer military to defend the territory of Vatican City, over which it has complete control; it may enact laws with domestic effect and enter into international treaties and compacts with other nations; and it sends and receives diplomatic representatives to and from other states.2 Under the analysis we set forth in Holden, had Ronan been employed to perform any of these “diplomatic, civil service, or military” functions, his employment by the Vatican would have fallen outside the FSIA‘s commercial activity exception. 92 F.3d at 921.
To reach this conclusion, I do not rely at all on the consideration that “churches receive financial support from their parishioners.” Maj. Op. at 2561. The fact that Ronan‘s provision of pastoral services coincides with and depends upon his parishioners giving donations is neither necessary nor sufficient to show that the Holy See‘s employment of Ronan is a commercial activity under Weltover‘s nature-not-purpose test. Weltover, 504 U.S. at 614. Instead, the critical factor in the commercial activity analysis in this case is that the Holy See‘s employment activities alleged in Doe‘s complaint are not distinctly sovereign in nature — that they are the sort of functions that private parties, not just sovereign governments, can perform. See Holden, 92 F.3d at 921. So approached, the application of the FSIA commercial activity exception to Doe‘s complaint is not an “arcane question,” see Maj. Op. at 2561, but a straightforward matter of applying our own binding case law.
I recognize that the Holy See‘s dual role as not only a sovereign government but also the head of a worldwide church gives this case a peculiar complexion. But that sense of oddity comes about because the Holy See is a sovereign of a very unusual kind. Both in physical size and number of inhabitants, the land it governs is tiny. Its role as a traditional, sovereign government entity is correspondingly small, when compared
The fact that the Holy See is unique among sovereigns in this respect does not, however, necessitate deviating from the rules we normally follow in construing and applying the FSIA. The operation of a huge international religious institution is a large task, and one of great importance to many people. But it is not an activity that may be undertaken only by sovereign states, which is the focus of the FSIA‘s commercial activity exception. Indeed, in most cases it is non-governmental entities, not governments, that operate international religious institutions, the Mormon Church and the Greek Orthodox Church being two prominent examples. The FSIA‘s purpose is not to insulate religious institutions from suit; it juxtaposes commercial activities not to religious activities, but to governmental activities. The Holy See differs from other foreign states in the nature of the non-sovereign activities it carries out and, in all likelihood, in the ratio of its non-sovereign activities to its sovereign activities. But it is like other sovereigns in the respect essential here: It engages in a range of non-sovereign activities in the United States, and the FSIA‘s commercial activity exception lifts the shield of immunity from such non-sovereign activities.
The district court nonetheless expressed discomfort with characterizing the Holy See‘s employment of Ronan as “commercial” activity for FSIA purposes, observing that the Holy See‘s employment of clergy is “widely viewed as the antithesis of commerciality.” Doe, 434 F. Supp. 2d at 941. Commerciality and religiosity are, indeed, often viewed as antithetical categories. But, as I have explained, the FSIA‘s “commercial activity” phrase, as it has been interpreted in the case law, is a term of art, not reliant on common usage, which reflects the special concerns of a sovereign immunity statute. The district court‘s discomfort notwithstanding, under well-established FSIA principles and our own binding case law the employ-
C. Doe‘s negligence claims are “based upon” commercial activity
Under the FSIA‘s commercial activity exception, it is not enough for the plaintiff to show that the defendant engaged in something that qualifies as a commercial activity under the Weltover test. The plaintiff must also show that his cause of action is related to that commercial activity in one of three ways, depending upon the geographical location where the activity occurred.
Saudi Arabia v. Nelson, 507 U.S. 349 (1993), provides the leading interpretation of the FSIA‘s “based upon” requirement. Nelson explained that “[i]n denoting conduct that forms the ‘basis,’ or ‘foundation,’ for a claim, the phrase is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.” Id. at 357 (internal citations omitted). As the district court here correctly noted, “[t]he commercial activity must do more than lead to the injuries plaintiff suffered“; it must be “involved in proving” one of the elements of plaintiff‘s cause of action. Doe, 434 F. Supp. 2d at 943 (quoting Sun v. Tai-wan, 201 F.3d 1105, 1110 (9th Cir. 2000)) (internal quotations omitted).
Applying this standard, I would hold that Doe‘s negligence claims were “based upon” the Holy See‘s employment of Ronan within the meaning of the statute. The existence of that employment relationship is a necessary element of at least the negligent retention and supervision claims. See Chesterman v. Barmon, 82 Or. App. 1, 4 (1986) (in assessing whether plaintiff had sufficiently alleged a negligent retention claim, requiring that the individual who caused the harm be an “employee” of defendant). See also Restatement (Second) of Torts § 317 (“A master is under a duty to exercise reasonable care so to control his servant.“)3; accord DiPietro v. Lighthouse Ministries, 159 Ohio App. 3d 766, 772 (2005) (holding that “[i]n order to prevail on a claim of negligent retention, plaintiff must establish . . . the existence of an employment relationship“) (internal quotation marks and citation omitted).
Because Ronan‘s activities pursuant to the employment relationship occurred inside the United States, it may be that Clause 1 of the FSIA‘s commercial activity provision is satisfied: Arguably, the Holy See‘s alleged negligent acts were “based on” an employment relationship that, at least in part, was “carried on in the United States,” as well as in Rome.
Doe alleges that the Holy See participated in the decision
Determining whether Doe‘s “failure to warn” claim is based upon the alleged employment relationship requires looking to Oregon‘s “failure to warn” case law, of which there is relatively little. In general, under Oregon law, a defendant is not liable for a negligent omission that leads to a plaintiff being harmed by a third party unless the defendant has a “special relationship” either to the third party or to the plaintiff. See Restatement (Second) of Torts § 302 cmt. a. Such a special relationship may exist if, for example, the defendant “has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct.” Restatement (Second) of Torts § 302B cmt. e(D); cf. Brown v. Washington County, 163 Or. App. 362 (1999) (holding that defendant could be held liable for failure to warn about the dangerousness of an inmate within its custody).
According to Doe‘s complaint, it was the Holy See‘s continued employment of Ronan in a position of authority that led to Doe‘s contact with Ronan, and thus to the Holy See‘s duty to warn Doe and the other parishioners about Ronan‘s abusive past and potential future dangerousness. So Doe‘s negligent failure to warn claim is also “based upon” a commercial activity, in that it is the result of non-sovereign actions undertaken elsewhere — the decision not to warn about an employee‘s dangerousness — with a “direct effect” in the United States.
Although the district court determined, as I would, that Doe‘s allegations satisfied the requirements of the commercial activity exception, it ultimately held the commercial activity exception inapplicable. See Doe, 434 F. Supp. 2d at 941-42. It did so because, following what it considered to be “the overarching principle in Nelson,” it concluded that it could not “fairly characterize[ ] [the activities described in the complaint] as commercial.” Id. at 947. Rather, it explained that “at the heart of plaintiff‘s complaint is the injury inflicted by a sexually abusive priest at plaintiff‘s church, a claim clearly sounding in tort.” Id. at 942. On the district court‘s reading of Nelson, if the “essence” of a plaintiff‘s complaint sounds in tort, id., the plaintiff‘s claims can proceed only under the FSIA‘s tortious act exception, or not at all.
The Sixth Circuit recently came to a similar conclusion in O‘Bryan v. Holy See, Nos. 07-5078, 07-5163, 2009 WL 305342 (6th Cir. Feb. 10, 2009). O‘Bryan held that, because the “true essence” or “gravamen” of the wrongful activities alleged in the plaintiff‘s complaint sounded like torts, the court could exercise jurisdiction over the Holy See only through the FSIA‘s tortious act exception. O‘Bryan, 2009 WL 305342, at *11-12, 16-17. It therefore held the commercial activity exception inapplicable to the Holy See‘s employment activities.
I disagree that the arguably tortious “essence” of Doe‘s claims renders the commercial activity exception unavailable to him. Nothing in the FSIA suggests that the commercial activity exception and the tortious act exception are mutually exclusive and cannot possibly apply to the same conduct. Nor does Nelson, or any other controlling case, authorize reading such a requirement into the statute.
In Nelson, the plaintiff entered into an employment contract in the United States with a Saudi Arabian hospital operated by
The Supreme Court concluded that there was no jurisdiction over any of his causes of action. His intentional tort claims could not proceed under the commercial activity exception because “a foreign state‘s exercise of the power of its police” is an act “which is peculiarly sovereign in nature,” and therefore not “commercial” within the meaning of the FSIA. Id. at 361. As to the “failure to warn” claim, the Court concluded that the plaintiff could not meet the statute‘s requirement that his claim be “based upon the commercial activity” of Saudi Arabia merely by phrasing his claim in terms of the contract negotiations in the United States during which the failure to warn allegedly occurred. “[A] plaintiff could recast virtually any claim of intentional tort committed by sovereign act as a claim of failure to warn. . . . To give jurisdictional significance to this feint of language would effectively thwart the Act‘s manifest purpose.” Id. at 363.
In analyzing the failure to warn claim, then, Nelson simply applied the general principle that the court does not accept a plaintiff‘s mischaracterization of the legal significance of the facts he has alleged, but will look “beyond the complaint‘s characterization to the conduct on which the claim is based.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1203 (9th Cir. 2003) (quoting Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th Cir. 1990)).4
Here, unlike in Nelson, Doe‘s negligent retention, supervision, and failure to warn claims are not simply a “feint of language” to obtain jurisdiction through the commercial activity exception. Nelson, 507 U.S. at 363. Doe has alleged that the Holy See continued to employee Ronan, and placed him in the Archdiocese where he molested Doe, even after the Holy See was aware that Ronan had molested young boys on at least two prior occasions while in its employ. He has alleged further that the Holy See did not inform Doe or his parents of what it knew about Ronan‘s dangerousness, despite its position of trust with respect to Doe and its employment relationship with Ronan. Doe‘s negligence claims are not a mischaracterization of the factual allegations he has made, but are in fact among the central wrongs he alleges.5
E. The Holy See‘s First Amendment argument
The Holy See contends that reading the FSIA to allow federal jurisdiction over Doe‘s claims via the commercial activity exception would violate the First Amendment, because adjudicating the case will require the judicial interpretation of such religious doctrine as the vow of obedience that members of the clergy offer to the Pope. This contention cannot get off the ground because, as a foreign sovereign, the Holy See has no rights under the First Amendment.6
Neither we nor the Supreme Court have previously addressed whether foreign sovereigns enjoy the benefit of any rights under the Constitution of the United States. Cf. Weltover, 504 U.S. at 619 (leaving open the question whether foreign states enjoy rights under the due process clause). The D.C. Circuit, however, has concluded that foreign sovereigns are not entitled to rights under the due process clause of the
The D.C. Circuit explained that foreign sovereign nations are not members of the political community for whose benefit the Bill of Rights was adopted. They “are entirely alien to our constitutional system,” id., and so the protections to which they are entitled have traditionally been governed not by domestic constitutional law, but by international law. Id. at 97; see also Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934) (foreign sovereigns are “outside the structure of the Union.“). Unlike private individuals, “sovereign states interact with each other through diplomacy and even coercion in ways not affected by constitutional protections.” Nat‘l Council of Resistance of Iran v. Dep‘t of State, 251 F.3d 192, 202 (D.C. Cir. 2001). They also have recourse to international dispute-resolution mechanisms to which private individuals have no access. Indeed, the FSIA is in part a recognition that grievances against foreign states are sometimes better resolved in these other arenas, not in U.S. courts. In this context, there seems no basis for extending constitutional protections to foreign states in their capacity as such. Accord O‘Bryan v. Holy See, 471 F. Supp. 2d 784, 794 (W.D. Ky. 2007) (the “Holy See cannot simultaneously seek the protections of the FSIA and the United States Constitution.“).
In addition, as the D.C. Circuit observed in Price, “serious practical problems might arise were we to hold that foreign states may cloak themselves in the protections of the” Constitution. Price, 294 F.3d at 99. It would be thoroughly anomalous to permit the executive branch to be constrained in its conduct of foreign relations by assertions by foreign sovereigns of entitlement to the protections of the First Amendment. I would therefore reject the Holy See‘s contention that foreign sovereigns have First Amendment rights under the U.S. Constitution, holding that the district court‘s exercise of
III. CONCLUSION
For the foregoing reasons, I would affirm the district court‘s judgment, holding that the FSIA‘s commercial activity exception permits it to exercise jurisdiction over Doe‘s non-fraud negligence claims.
FERNANDEZ, Circuit Judge, concurring:
I agree that we cannot consider the commercial exception to the Foreign Sovereign Immunities Act,
As I see it, Doe‘s claim that church functions are simply commercial transactions because parishioners do give donations to the church bespeaks the veriest cynicism about religion and a church‘s position within religion.1 Could a church spread the word of God without some funds? Would that it could, but the need for support does not mean that the holy activity is commercial. Is the Mass the marketing of a form of edifying entertainment? Is hearing confessions and giving religious advice — an age-old function of churches — really no more than a commercial activity similar to psychological
Nor does the statute or the case law suggest that the Holy See‘s religious activities must be commercial. The FSIA tells us that “[a] ‘commercial activity’ means either a regular course of commercial conduct or a particular commercial transaction or act.”
[W]e conclude that when a foreign government acts, not as a regulator of a market, but in the manner of private player within it, the foreign sovereign‘s actions are “commercial” within the meaning of the FSIA. Moreover, because the Act provides that the commercial character of an act is to be determined by reference to its “nature” rather than its “purpose” . . . , the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs . . . are the type of actions by which a private party engages in “trade and traffic or commerce[.]”
Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 614, 112 S. Ct. 2160, 2166, 119 L. Ed. 2d 394 (1992) (citations omitted). Some have focused on the “private player” language, but what is truly significant is the emphasis on the market and on “trade and traffic or commerce.” Id.
I think that the problem this case seems to present lies in the fact that Holy See is an unusual type of foreign sovereign. Most governments do, indeed, exist to afford their citizens a degree of physical protection and guidance, so that they may thrive in this world. Holy See is more focused on the next world, and that makes a universe of difference. Because of that, Holy See‘s sovereign activities are not simply the passage of mortal laws and the enforcement of those. They, basically, encompass the furnishing of the kinds of services that only Holy See can give: its own kind of religious help, guidance and counseling. It may do more than most sovereigns do, but it is not engaged in the market or in commerce.3
In short, Holy See may not be your typical sovereign, but neither is it your typical merchant. Does that lead to some kind of impasse? Of course not. It leads back to the statute
Therefore, if we had jurisdiction I would not apply the commercial activity exception to this case.