Court/Judicial body: Ninth Circuit Court of Appeals
Citation: 557 F.3d 1066
Date: 3 March 2009
Instrument(s) cited: Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330; 1602–1611
Background: John Doe brought a suit in the United States District Court in Oregon against the Holy See, the Archdiocese of Portland, the Catholic Bishop of Chicago and the Order of Friar Servants. Doe alleged that, when he was 15–16 years old in the 1960s, he was sexually abused by Father Andrew Ronan, a priest in the Archdiocese. Doe argued that the Holy See should be held liable: (1) vicariously, based on the actions of the Archdiocese, the Bishop and the Order regarding Ronan; (2) directly, for negligence in its hiring and supervision of Ronan; and (3) based on the actions of Ronan as an employee of the Holy See. In response, the Holy See argued that all claims against it must be dismissed under the Foreign Sovereign Immunities Act (“FSIA”) because, as a foreign State, the Holy See is immune from lawsuits in U.S. courts.
Issue and resolution: Liability of the Holy See for sexual abuse by a Roman Catholic priest. The Court decided that (1) the Holy See could not be sued for the acts of the Archdiocese, the Bishop or the Order because they are presumed to be separate entities from the Holy See; and that (2) the Holy See could not be sued directly for negligence in hiring and supervising Ronan because these were “discretionary acts” excluded under the Foreign Sovereign Immunities Act; but that (3) the Holy See could be sued over Ronan’s actions on the basis of Doe’s allegations that Ronan was an employee acting within the scope of his employment under Oregon law.
Court reasoning: Under the FSIA, a foreign sovereign is immune from the jurisdiction of U.S. courts unless one of the specific exceptions in the statute applies. One such exception concerns cases seeking damages for injury “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 employment.” However, this “tortious act” exception does not apply to claims based on the performance of a “discretionary function” of the foreign state. First, the Court examined the claim of vicarious liability of the Holy See for the actions taken by the Archdiocese, the Bishop or the Order, finding no jurisdiction on this basis because there was no allegation that the Holy See had routine, day-to-day involvement in the affairs of the other entities. Second, the Court examined the direct claims against the Holy See for its alleged negligent retention and supervision of Ronan despite awareness of his history of child sex abuse. The Court determined that these claims could not proceed because, even if they fell under the “tortious act” exception (an issue the Court did not decide), they would be protected as “discretionary” under the FSIA because the activities “involve an element of judgment or choice”. Finally, the Court examined the claims against the Holy See based on the allegation that Ronan was acting under the scope of his employment with the Holy See. The Court determined that the allegations of sexual abuse constitute “tortious acts”, such that the Holy See could be sued under the FSIA provided that the abuse was found to be under Ronan’s “scope of employment” with the Holy See. Applying Oregon law, the Court determined that, even though the alleged sexual abuse was not itself performed as part of Ronan’s duties, it could still fall within the scope of employment because it allegedly occurred within the time and space of the employment and was “a direct outgrowth” of conduct that formed part of his duties (namely, meeting with Doe as a counselor and advisor and establishing a “position of authority” over him). Therefore, the Court allowed these claims to proceed.
Dissenting opinion: Judge Berzon stated that he would have found that the claims against the Holy See for negligent retention and supervision should be allowed to proceed under a different exception to the FSIA – the exception for “commercial activity”, which the majority declined to consider on appeal. He argued that because the act of hiring an employee is a private, business-focused act, the negligence claims based on the hiring and supervision of Ronan should have been allowed to proceed as well. Impact: The Court’s decision that the case could proceed against the Holy See on “scope of employment” grounds was based on the allegations in Doe’s complaint which stated that the Holy See employed Ronan directly and had the right to exercise control over Ronan. After the case returned to the District Court, Doe was unable to prove that this employment relationship existed. In 2012, the District Court dismissed the case, holding that , the Holy See did not have an employer-employee relationship with Ronan. Rather, the judge compared the relationship between Ronan and the Holy See to that of an attorney and the Oregon State Bar: the Bar may sanction or disbar attorneys but lacks “control” in that, for instance, it cannot fire them. See http://www.news.va/en/news/holy-sees-lawyer-dismissed-lawsuit-in-us-never-s-2.
Link to full judgement: http://cdn.ca9.uscourts.gov/datastore/opinions/2009/03/03/0635563.pdf