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James H. O’Bryan, Donald E. Poppe, and Michael J. Turner v. Holy See

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Court/Judicial body: 6th Circuit Court of Appeals

Citation: O’Bryan v. Holy See, 556 F.3d 361 (2009)
Date: 24 November 2008
Instrument(s) cited: Foreign Sovereign Immunities Act (FSIA): see relevant excerpts in Annex below First Amendment to the US Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The first part of the First Amendment is interpreted as separation of church and state, prohibiting the establishment of a national religion by Congress and the preference by the US government of one religion over another.

Case summary

Background: The plaintiffs alleged they were victims of sexual abuse by Roman Catholic clergy in the US and filed a “class action” against the Holy See (defendant). The plaintiffs alleged that the abuses occurred while the Roman Catholic clergy were acting within the scope of their employment as part of an agency relationship with the Holy See. The plaintiffs’ claims regarding the liability of the Holy See stem, in large part, from their allegations regarding the purported “1962 Policy” of the Holy See, a privately circulated document which required bishops in the US to, among other things, refuse to report childhood sexual abuse committed by priests to criminal or civil authorities, even where such failure to report would itself be a criminal offence. The plaintiffs claims included: violation of customary international law of human rights; negligence; breach of fiduciary duty; and outrage / intentional infliction of emotional distress. The Holy See filed a motion to dismiss all of the plaintiffs’ claims due to lack of subject matter jurisdiction because it is immune from suit as a foreign state under the Foreign Sovereign Immunities Act (FSIA). The US District Court for the Western District of Kentucky granted in part and denied in part the Holy See’s motion to dismiss. The parties appealed. Issues and resolution: 1. Whether applying the FSIA to the Holy See violates the First Amendment of the US Constitution. 2. Whether the Holy See is a foreign state that may invoke sovereign immunity; and 3. Whether acts of sexual abuse fall within any of the exceptions to sovereign immunity for which the Holy See may be liable. The Court said that it would not consider the First Amendment argument because plaintiffs did not raise it in the initial trial phase. The Holy See is a foreign state that may invoke the FSIA, meaning that the Holy See is immune so long as an exception to immunity does not apply. The Holy See is not immune under the FSIA from claims arising from negligent supervision by its employees that took place in the US.  Accordingly, the court allowed the case to proceed.

Court reasoning:Commercial activity exception The commercial activity exception of the FSIA removes immunity in cases involving essentially private commercial activities of foreign sovereigns that have an impact within the US. The plaintiffs’ claims do not satisfy the commercial activity exception because all of the claims advanced by the plaintiffs stem from the 1962 Policy by the Holy See, not a commercial activity. Tortious act exception Under the FSIA, a plaintiff can establish subject matter jurisdiction over a foreign sovereign under the tortious act exception if there has been a tortious act: (1) occurring in the US; (2) caused by a tortious act or omission; (3) where the alleged acts or omissions were those of a foreign state or of any official or employee of that foreign state; and (4) those acts or omissions were done within the scope of the tortfeasor’s employment. Regarding the fourth requirement, an employer can be held vicariously liable for an employee’s tortious acts if committed in the scope of his or her employment. When considering vicarious liability for intentional wrongs, the focus is primarily on the purpose or motive of the employee to determine whether he or she was acting within the scope of employment. An employer is not liable unless the intentional wrongs of the employee were done to advance the cause of the employer or were a normal act in the scope of employment. Regarding the fourth requirement, relying on a previous decision of the Kentucky Supreme Court, the employee’s acts of sexual abuse were not committed within the scope of employment. Moreover, the first requirement is not satisfied as the tortious acts took place outside the US. Therefore, the plaintiffs cannot pursue claims based on the alleged sexual abuse of priests or the acts of the Holy See that occurred outside the US. However, the plaintiffs’ claims that are based upon the conduct of bishops, archbishops and Holy See personnel while supervising allegedly abusive clergy in the US satisfy all four requirements of the tortious act exception: the bishops, archbishops and Holy See personnel had knowledge of the alleged sexual abuse of priests and failed to act on that knowledge – this conduct served as a substantial cause of the alleged abuse; the conduct occurred in the US; the conduct was within the scope of employment; and these individuals were, according to the documents filed in the claim, Holy See employees. Therefore, the Holy See is not immune from a lawsuit for those claims. Violation of customary international law of human rights and tort of outrage / infliction of emotional distress The plaintiffs’ claims that the Holy See, through the promulgation of the 1962 Policy, violated customary international law of human rights and committed the tort of outrage / infliction of emotional distress was dismissed because the actual promulgation of the Policy occurred abroad. However, these claims do survive against the Holy See as they pertain to the conduct of Holy See employees who, pursuant to the 1962 Policy, violated the terms of the relevant international laws through their tortious supervisory conduct over the abusive clergy. Negligence and breach of fiduciary duty Similarly, the plaintiffs’ claims of negligence and breach of fiduciary duty against the Holy See for its own conduct (e.g. failure to warn or report) were dismissed because such conduct would have occurred abroad. However, the plaintiff’s claims survive as against the conduct of the Holy See employees in the US who supervised the abusive clergy. Discretionary function exception to the tortious act exception In deciding if the discretionary function exception is available, the court considers whether the challenged action involved an element of choice or judgment, and if so, whether that choice or judgment involves social, economic or political policy. The conduct in this case does not satisfy these requirements because the acts cannot be deemed discretionary – the 1962 Policy “impose[d] the highest level of secrecy on the handling of clergy sexual abuse matters”, which prohibited Holy See personnel from, among other things, reporting childhood sexual abuse to government authorities. Therefore, the Holy See is not immune from suit under this “exception to the exception”. Misrepresentation or deceit exception to the tortious act exception As these claims are characterised by negligent supervision rather than stem directly from the misinformation disseminated by the Holy See, the plaintiffs’ claims of violation of customary international law of human rights, negligence, and breach of fiduciary duty should not be dismissed for arising out of misrepresentation or deceit. Impact: On 5 October 2009, the petition for writ of certiorari to the US Court of Appeals for the Sixth Circuit was denied. Therefore, victims of child abuse may pursue a lawsuit against the Holy See alleging it covered up sexual abuse by priests, but only if those acts were carried out on US soil.

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Notes: For more information on the issue of child sexual abuse and religious institutions, including a selection of case law, please see CRIN’s campaign ‘End sexual violence in religious institutions’. Link to Full Judgment: Annex: Exceptions to FSIA: Title 28 U.S.C. §1605(a) provides the following relevant exceptions to a foreign state’s immunity under the FSIA: (a) a foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case – (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (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 or omission 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… This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Countries United States CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.