Doe v. Holy See ( 2009 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN V. DOE,  No. 06-35563
Plaintiff-Appellee, D.C. No.
v.  CV-02-00430-
HOLY SEE, MWM
Defendant-Appellant.

JOHN V. DOE,  No. 06-35587
Plaintiff-Appellant, D.C. No.
v.  CV-02-00430-
HOLY SEE, MWM
Defendant-Appellee.
 OPINION
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
Before: Ferdinand F. Fernandez and Marsha S. Berzon,
Circuit Judges, and Otis D. Wright, II*, District Judge.
*The Honorable Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
2543
2544 DOE v. HOLY SEE
Per Curiam Opinion;
Dissent by Judge Berzon;
Concurrence by Judge Fernandez
2548 DOE v. HOLY SEE
COUNSEL
Jeffrey S. Lena, Law Office of Jeffrey S. Lena, Berkeley, Cal-
ifornia 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 Plain-
tiff’s complaint in this case, the Holy See is entitled to immu-
nity from suit under the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. §§ 1330, 1602-1611.
John V. Doe brought suit in the United States District Court
for the District of Oregon against the Holy See, the Archdio-
cese 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 super-
vision of Ronan and its negligent failure to warn Doe of
DOE v. HOLY SEE 2549
Ronan’s dangerous proclivities. The Holy See contended in
the district court that all of Doe’s causes of action against it
must be dismissed because, as a foreign sovereign, it is
immune from suit in U.S. courts. The district court disagreed,
holding that it has jurisdiction over all but one of Doe’s
claims under the FSIA’s tortious act exception to sovereign
immunity. The Holy See appeals.
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 pre-
sumption of separate juridical status for governmental instru-
mentalities, 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 jurisdic-
tional 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 discretion-
ary 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.
2550 DOE v. HOLY SEE
I. PROCEDURAL BACKGROUND
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. Con-
fronted with allegations of abuse, Ronan admitted to molest-
ing 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 posi-
tion 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:
1
These are, of course, only allegations, but we are required to take them
as true for the purposes of this appeal. See infra, Part III.A.
DOE v. HOLY SEE 2551
Defendant Holy See is the ecclesiastical, govern-
mental, and administrative capital of the Roman
Catholic Church. Defendant Holy See is the compos-
ite 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 guid-
ance, 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 sis-
ters, who engage in pastoral work under the author-
ity 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 ecclesias-
tical provinces. It also gives final approval to the cre-
ation, 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 reli-
gious orders [it] has the power to directly assign and
remove individual clergy. All bishops, clergy, and
priests, including religious order priests, vow to
2552 DOE v. HOLY SEE
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 edu-
cation, training[,] and standards of conduct and dis-
cipline 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 vicar-
iously 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
DOE v. HOLY SEE 2553
itself negligent in its retention and supervision of Ronan and
in failing to warn of his propensities.
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 for-
eign sovereign, it is presumptively immune from suit under
the FSIA, and that neither the “tortious act” exception to sov-
ereign immunity, 28 U.S.C. § 1605(a)(5), nor the “commer-
cial activity” exception to sovereign immunity, 28 U.S.C.
§ 1605(a)(2), applies. The district court held that the commer-
cial activity exception does not apply to permit the exercise
of jurisdiction over Doe’s claims; the court did not view the
Holy See’s activities as commercial because “the true essence
of the complaint . . . clearly sound[s] in tort.” Doe v. Holy
See, 434 F. Supp. 2d 925, 942 (D. Or. 2006). In contrast, the
district court held that the tortious act exception does apply,
permitting it to exercise jurisdiction over all Doe’s claims
except for the fraud claim. Id. at 957. The district court there-
fore granted the Holy See’s motion to dismiss as to the fraud
claim, but it denied the motion as to all of Doe’s other claims.
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 com-
mercial 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
2554 DOE v. HOLY SEE
sovereign immunity, under which sovereign “immunity is
confined to suits involving the foreign sovereign’s public
acts.” Id. at 487. Applying this restrictive approach, questions
of foreign sovereign immunity arising in U.S. courts were
decided on a case-by-case basis, often with the assistance of
letters from the State Department containing “suggestions of
immunity.” Id.
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, 28
U.S.C. §§ 1330, 1602-1611. Verlinden, 461 U.S. at 488. The
FSIA contains “a comprehensive set of legal standards gov-
erning claims of immunity in every civil action against a for-
eign state or its political subdivisions, agencies, or
instrumentalities.” Id. at 488. It is this set of legal standards
with which we deal today.
[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. 28 U.S.C. § 1604. A foreign state “includes a political
subdivision of a foreign state or an agency or instrumentality
of a foreign state.” Id. § 1603(a). An “agency or instrumental-
ity of a foreign state” is defined in turn as any entity:
(1) which is a separate legal person, corporate or oth-
erwise, and
(2) which is an organ of a foreign state or political
subdivision thereof, . . . and
(3) which is neither a citizen of a State of the United
States . . . nor created under the laws of any third
country.
Id. § 1603(b).
 DOE v. HOLY SEE 2555
[2] Section 16052 contains “[g]eneral exceptions to the
jurisdictional immunity of a foreign state,” providing in rele-
vant part that:
(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 commer-
cial 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 dam-
age 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
2
All statutory citations are to Title 28 of the United States Code unless
otherwise indicated.
2556 DOE v. HOLY SEE
perform a discretionary function regardless
of whether the discretion be abused, or
(B) any claim arising out of malicious
prosecution, abuse of process, libel, slan-
der, misrepresentation, deceit, or interfer-
ence 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 commer-
cial transaction or act. The commercial character of an activ-
ity 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.” Id. § 1603(d). A “ ‘commercial
activity carried on in the United States by a foreign state’
means commercial activity carried on by such state and hav-
ing substantial contact with the United States.” Id. § 1603(e).
The statute does not set out any substantive rules of liabil-
ity, 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.” Id. § 1606.
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-
DOE v. HOLY SEE 2557
diction”). We do not, however, accept the “truth of legal con-
clusions merely because they are cast in the form of factual
allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1139 (9th Cir. 2003) (emphasis added; internal quota-
tions omitted) (quoting W. Mining Council v. Watt, 643 F.2d
618, 624 (9th Cir. 1981)).
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 plain-
tiff. 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 testi-
mony 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 alle-
gations, 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 jurisdic-
tional allegations, then the district court should take the plain-
tiff’s factual allegations as true and determine whether they
2558 DOE v. HOLY SEE
bring the case within any of the exceptions to immunity
invoked by the plaintiff.”
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 state-
ment” of the grounds for jurisdiction and the claim for relief.
Fed. R. Civ. P. 8(a)(1), (2); see also Bell Atlantic Corp. v.
Twombley, ___ U.S. ___, 127 S. Ct. 1955, 1964-65 (2007).
We do not impose a heightened pleading standard in the
absence of “an explicit requirement in a statute or federal
rule,” Skaff v. Meridien North America Beverly Hills, LLC,
506 F.3d 832, 841 (9th Cir. 2007); there is no such explicit
requirement here applicable. In evaluating assertions of
subject-matter jurisdiction based on an exception to foreign
sovereign immunity, then, we apply the same notice pleading
requirements we would apply to any other assertion of
subject-matter jurisdiction and look only for a “short and
plain statement” of the basis for jurisdiction.
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-
DOE v. HOLY SEE 2559
nity, § 1605(a)(2). The Holy See contends that we do not have
jurisdiction over Doe’s cross-appeal because it is not “inextri-
cably intertwined” with the collaterally appealable issue of
whether the Holy See is immune from suit. See Burlington N.
& Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1093-94 (9th
Cir. 2007) (in a case involving a collaterally appealable order,
denying a tribe sovereign immunity, but holding that the court
could not reach other issues raised on appeal because they
were not “inextricably intertwined” with the collaterally
appealable issue). According to the Holy See, we do not have
jurisdiction to consider Doe’s argument that his claims come
within the commercial activity exception. We agree.
[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 mer-
its 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 appeal-
able order doctrine).
The collaterally appealable order doctrine does not auto-
matically permit review of district court rulings contained in
the same district court opinion as the appealable determina-
tion, if they do not themselves meet these requirements. See
Abney v. United States, 431 U.S. 651, 663 (1977) (after con-
cluding that the collateral order doctrine applies to a decision
denying a motion to dismiss on double jeopardy grounds,
2560 DOE v. HOLY SEE
holding that “other claims presented to, and rejected by, the
district court in passing on the . . . motion to dismiss . . . are
appealable if, and only if, they too fall within [the] collateral-
order exception to the final-judgment rule”); Burlington N.,
509 F.3d at 1089, 1093-94 (refusing to exercise pendent
appellate jurisdiction over an exhaustion issue decided in the
same district court order as the collaterally appealable ques-
tion); United States v. Yellow Freight Sys., Inc., 637 F.2d
1248, 1251 (9th Cir. 1980) (“Inquiry into the immediate
appealability of a particular pretrial order must focus upon
each claim asserted.”); but cf. Joseph v. Office of Consulate
Gen. of Nig., 830 F.2d 1018, 1021 (9th Cir. 1987) (assuming
jurisdiction over cross-appeal in FSIA case, without explana-
tion).
Here, the tort causes of action are not inextricably inter-
twined with Doe’s other claims. Thus, that concept is not suf-
ficient 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-
3
We are aware of the fact that § 1605(a)(5), identifying the tortious act
exception, is applicable to cases “not otherwise encompassed in paragraph
(2) [the commercial activity exception] above.” This language does not
mean that, in interpreting the tortious act exception in (a)(5), we must
always first consider whether the commercial activity exception in (a)(2)
applies. Courts have not proceeded in that fashion. See, e.g., Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439-43 (1989);
Blaxland v. Commonwealth Dir. of Public Prosecutions, 323 F.3d 1198,
1203-04 (9th Cir. 2003); Risk v. Halvorsen, 936 F.2d 393, 395-96 (9th Cir.
1991). Indeed, in Joseph, 830 F.2d at 1025, we explicitly stated that
because we could decide the question presented under subsection (a)(5),
there was no need to consider subsection (a)(2) at all. Other courts have
reached the same result. See, e.g., Robinson v. Gov’t of Malay., 269 F.3d
133, 145-47 (2d Cir. 2001); Cabiri v. Gov’t of Republic of Ghana, 165
F.3d 193, 199-201 (2d Cir. 1999); Frolova v. Union of Soviet Socialist
Republics, 761 F.2d 370, 379 (7th Cir. 1985); Asociacion de Reclamantes
v. United Mexican States, 735 F.2d 1517, 1524-25 (D.C. Cir. 1984); Pers-
inger v. Islamic Republic of Iran, 729 F.2d 835, 838-39 (D.C. Cir. 1984).
DOE v. HOLY SEE 2561
mercial activity issue on the basis that it is no more than an
alternate ground to uphold the district court. In fact, the need
for review of immunity denials — avoiding the undermining
of the purpose of the grant of immunity4 — has no weight
where immunity has been granted. Were there any doubt
about that, the sensitive nature of the issues dealing with sov-
ereigns would convince us that it would generally be pruden-
tially unsound to expand review into the area of immunity
grants when an appeal is taken from a denial of immunity.
[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 func-
tions are commercial activity because churches receive finan-
cial support from their parishioners, or otherwise. That is an
issue that actually has nothing to do with the issues on inter-
locutory 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
4
See Gupta, 487 F.3d at 763-64.
2562 DOE v. HOLY SEE
followed even if the district court had expressly ruled to the
contrary on the alternative set of issues.5 In other words, here
we would be asked to take up the appeal from that grant and
reverse the district court’s determination; we would have to
reach out and engage in a lengthy disquisition on the commer-
cial activity exception to FSIA, which we neither must nor
should do.
[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 juris-
diction. Doe’s complaint alleges tortious acts by the Archdio-
cese, 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
5
We are aware of the theory that allows alternate grounds to be used to
support a district court decision, even where no cross-appeal has been
filed. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-80
(1999); Rivero v. City & County of San Francisco, 316 F.3d 857, 861-62
(9th Cir. 2002). We have said that taking jurisdiction in that instance is
prudential and discretionary. See Lee v. Burlington N. Santa Fe Ry. Co.,
245 F.3d 1102, 1107 (9th Cir. 2001); Bryant v. Tech. Research Co., 654
F.2d 1337, 1341-42 (9th Cir. 1981). For reasons explained in the text, we
would decline to exercise that jurisdiction. The theory makes a good deal
of jurisprudential sense when both the grant and the denial of relief were
actually appealable issues; it makes much less sense where, as here, a
grant of immunity is not interlocutorily appealable at all and would
involve, as we have said, a vast expansion of the issues in and complexity
of the appeal.
DOE v. HOLY SEE 2563
would overcome the presumption of separate juridical status
such that the acts of the latter could be attributed to the former.6
For the reasons explained below, given the allegations that
Doe has pleaded, we agree with the Holy See. In addition,
however, the complaint alleges a number of actions per-
formed by the Holy See itself, such as “creat[ing]” dioceses
and archdioceses, “giv[ing] final approval to the creation,
division or suppression of provinces of religious orders,”
“employ[ing]” Ronan, and “plac[ing]” Ronan in the Archdio-
cese in Portland, Oregon. We conclude below that these acts
do establish jurisdiction over the Holy See for the claims to
which the acts are relevant.
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 attrib-
utable 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 instru-
mentality created by a foreign state could be held liable for
6
We note that the question we address here is distinct from the question
whether the Archdiocese, the Chicago Bishop, and the Order are them-
selves immune from suit under the FSIA. An “agency or instrumentality”
of a foreign state, as defined by the FSIA, is immune from suit because
it is itself a “foreign state” within the meaning of the Act. § 1603(a), (b).
On the allegation of the complaint, however, the Archdiocese, the Chicago
Bishop, and the Order are not “agencies or instrumentalities” of a foreign
state within the meaning of the FSIA, because they are all citizens of the
United States. See § 1603(b) (an agency or instrumentality of a foreign
state means, among other things, an entity “which is neither a citizen of
a State of the United States . . . nor created under the laws of any third
country”). They are therefore not immune from suit.
2564 DOE v. HOLY SEE
the actions of the foreign state itself, a question the reverse of
ours. Bancec was “the Cuban Government’s exclusive agent
in foreign trade,” and the “government supplied all of [Ban-
cec]’s capital and owned all of its stock.” Id. at 614. Soon
after Bancec sought to collect on a letter of credit that had
been issued in its favor by Citibank, the Cuban government
seized and nationalized all of Citibank’s assets in Cuba. Id.
So, when Bancec filed an action in U.S. federal court to
recover on the letter of credit, Citibank counterclaimed, seek-
ing a setoff for the value of its expropriated Cuban branches.
Id. at 614-15. In the meantime, Bancec was dissolved, and
Bancec filed a stipulation “stating that . . . its claim had been
transferred to the Ministry of Foreign Trade” of Cuba. Id. at
615-16.
Jurisdiction in Bancec existed under FSIA’s counterclaim
provision, 28 U.S.C. § 1607(c).7 Id. at 620-21. Because juris-
diction was not at issue, the question for the Supreme Court
was one of liability: whether Bancec could be held liable for
the act of expropriation committed by the Cuban government.
Id. at 617.
[7] The Supreme Court began by noting that, although Ban-
cec was an “agency or instrumentality” of Cuba within the
meaning of FSIA § 1603(b), this status was relevant only to
jurisdiction; it did not control the question of Bancec’s liabil-
ity for Cuba’s actions. The FSIA “was not intended to affect
the substantive law determining the liability of a foreign state
or instrumentality.” Id. at 620. Instead, liability was to be
assessed according to corporate law principles “common to
both international law and federal common law.” Id. at 623.
7
“In any action brought by a foreign state [or its agency or instrumental-
ity] . . . in a court of the United States or of a State, the foreign state shall
not be accorded immunity with respect to any counterclaim . . . to the
extent that the counterclaim does not seek relief exceeding in amount or
differing in kind from that sought by the foreign state.” 28 U.S.C.
§ 1607(c).
DOE v. HOLY SEE 2565
Surveying international and federal law on the status of cor-
porations, the Supreme Court recognized a presumption of
“separate juridical [status]” for the instrumentalities of foreign
states. Id. at 624, 624-28.
[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 prin-
cipal 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 enti-
tled 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 opportu-
nity to consider whether the actions of a corporation may be
attributed to the sovereign — the reverse of the Bancec sce-
nario — 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,
8
We have, however, applied the Bancec presumption of separate juridi-
cal status at the merits phase of FSIA litigation. See Flatow v. Islamic
Republic of Iran, 308 F.3d 1065 (9th Cir. 2002) (applying Bancec in a
case in which an individual who had obtained a judgment against Iran
attempted to enforce it against the Bank Saderat Iran).
2566 DOE v. HOLY SEE
however, faced with such a scenario, have applied Bancec’s
substantive corporate law principles in determining whether
jurisdiction exists under the FSIA.
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 deter-
mine whether Venezuela was amenable to suit under the com-
mercial 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 sover-
eign 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 FSIA
jurisdiction.
[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 ame-
nable 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-
DOE v. HOLY SEE 2567
buted to the principal for jurisdictional purposes”). Therefore,
in applying the jurisdictional provisions of the FSIA, courts
will routinely have to decide whether a particular individual
or corporation is an agent of a foreign state.
[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 juris-
diction phase, not just at the liability phase, is consistent with
the FSIA’s broad policy goals. In Bancec, the Court discussed
at length the comity considerations at play when entertaining
suits against foreign government instrumentalities in U.S.
courts. 462 U.S. at 626; see also Republic of Austria v. Alt-
mann, 541 U.S. 677, 688 (2004). As at the merits phase, fail-
ing to recognize the presumption of separate juridical status
at the jurisdictional phase could “result in substantial uncer-
tainty over whether an instrumentality’s assets would be
diverted to satisfy a claim against the sovereign,” and might
frustrate “the efforts of sovereign nations to structure their
governmental activities in a manner deemed necessary to pro-
mote economic development and efficient administration.”
Bancec, 462 U.S. at 626. Applying Bancec’s presumption —
as well as the standard for overcoming that presumption — at
the outset of a suit as well as at the merits phase makes good
sense.
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 sta-
tus,” for reasons similar to those dispositive in the converse
2568 DOE v. HOLY SEE
situation in Flatow v. Islamic Republic of Iran, 308 F.3d 1065
(9th Cir. 2002). In Flatow, we applied Bancec to the relation-
ship between the Iranian government and the Bank Saderat
Iran (“BSI”). BSI was created by the Iranian government and
fully owned by it. Id. at 1072-73. Its actions were regulated
by Iran’s General Assembly of Banks and High Council of
Banks, which reviewed BSI’s annual statements and “perfor-
m[ed] broad policymaking functions.” Id. at 1073. Flatow
held these facts insufficient to overcome the presumption of
separate juridical status, because the government’s “involve-
ment [did not] rise to a [sufficiently] high[ ] level,” and in
particular, did not involve “day-to-day” control. Id. (citing
McKesson Corp v. Islamic Republic of Iran, 52 F.3d 346,
351-52 (D.C. Cir. 1995) (holding the presumption of separate-
ness overcome where Iran controlled routine business deci-
sions, such as declaring and paying dividends and honoring
contracts).
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 cre-
ation, 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, adminis-
trative, 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 sepa-
rate juridical status.
Doe does directly allege in his complaint that the corpora-
tions are “agents” of the Holy See. In this context, however,
DOE v. HOLY SEE 2569
the term “agent” is not self-explanatory. “Agent” can have
more than one legal meaning: the standard for determining
that a natural person is the agent of another differs from the
standard for attribution of the actions of a corporation to
another entity. See, e.g., Rough & Ready Lumber Co. v. Blue
Sky Forest Products, 105 Or. App. 227, 231 (1991) (an
agency relationship between two natural persons “results from
the manifestation of consent by one person to another that the
other shall act on his behalf and subject to his control, and
consent by the other so to act.”) (quoting Restatement (Sec-
ond) of Agency § 1 (1958)). The Bancec standard is in fact
most similar to the “alter ego” or “piercing the corporate veil”
standards applied in many state courts to determine whether
the actions of a corporation are attributable to its owners. See,
e.g., Amfac Foods, Inc. v. Int’l Sys. & Controls Corp., 294 Or.
94, 107-08 (1982) (holding that to demonstrate alter ego sta-
tus, plaintiff must show control of the subsidiary and that “the
plaintiff’s inability to collect from the corporation resulted
from some form of improper conduct” on part of parent cor-
poration). Even reading the complaint generously to Doe, as
we must, we cannot infer from the use of the word “agent”
that Doe is alleging the type of day-to-day control that Bancec
and Flatow require to overcome the presumption of separate
juridical status.
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 corpora-
tions 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 alle-
gations 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
2570 DOE v. HOLY SEE
acts of the affiliated corporations should also be attributed to
the Holy See.
[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 con-
clude that the district court lacked jurisdiction over the Holy
See for the tortious acts allegedly committed by the Archdio-
cese, 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 sev-
eral 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 exer-
cise jurisdiction over the Holy See for these causes of action
under the FSIA’s tortious act exception.
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 v. HOLY SEE 2571
of his or her employment.” § 1605(a)(2); Doe, 434 F. Supp.
2d at 950. We agree in part.
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 FSIA’s exclusion for discretionary func-
tions, § 1605(a)(5)(A).
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 control-
ling 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 com-
plaint is insufficient to establish an allegation of an employ-
ment 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
2572 DOE v. HOLY SEE
of Oregon law). But then, of course, so do the words “per-
son,” “corporation,” “citizen,” and “molest,” also used in this
complaint — and, undoubtedly, in many other complaints
filed each year in federal courts — without further definition.
Were we to require that every such word used in a complaint
be broken down into its constituent factual predicates, we
would undermine the purpose of notice pleading — that is,
“to focus litigation on the merits of a claim” rather than on
procedural requirements. Galbraith v. County of Santa Clara,
307 F.3d 1119, 1125 (9th Cir. 2002). Thus, while we do not
accept Doe’s legal conclusions as true, we also do not engage
in “a hypertechnical reading of the complaint inconsistent
with the generous notice pleading standard.” Mendoza v.
Zirkle Fruit Co., 301 F.3d 1163, 1168 (9th Cir. 2002).
Although there is undoubtedly a line beyond which the legal
definition of a commonly used term is so complex or conten-
tious that failure to allege each element of the definition
would prevent a defendant from understanding the factual
basis for the claim, use of the word “employee” falls well
short of that line.
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 employ-
ment” as the FSIA requires. In Joseph, we indicated that the
“ ‘scope of employment’ provision of the tortious activity
exception essentially requires a finding that the doctrine of
respondeat superior applies to the tortious acts of individu-
als.” 830 F.2d at 1025. “This determination is governed by
state law.” Id.; see also Randolph, 97 F.3d at 327.
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-
DOE v. HOLY SEE 2573
tual guide, confessor, and priest to plaintiff and his family to
gain their trust and confidence” and “[b]y virtue of that rela-
tionship . . . gained the opportunity to be alone with plaintiff”
and sexually assault him. Id. at 1166. Fearing began its analy-
sis from the proposition that, in a respondeat superior action,
an employer can be liable for intentional as well as uninten-
tional torts of an employee if committed “within the scope of
employment.” Id. Generally, under Oregon law, “three
requirements must be met to demonstrate that an employee
was acting within the course and scope of employment”:
(1) the act must have occurred substantially within
the time and space limits authorized by the employ-
ment;
(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.
Id. at 1166.
Applying these three factors, Fearing stated that the
priest’s “alleged sexual assaults on plaintiff clearly were out-
side 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 con-
cluded that because a jury could infer from the facts alleged
that “performance of . . . pastoral duties with respect to plain-
tiff 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
2574 DOE v. HOLY SEE
three . . . requirements for establishing that employee conduct
was within the scope of employment.” Id. at 1167.
[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 inten-
tional tort, it was inappropriate to focus on whether the tort
itself was committed in furtherance of the employer’s objec-
tives or was an act of the kind the employee was hired to per-
form:
Rather, for the purpose of determining whether a
complaint meets the second and third . . . require-
ments . . . , 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 cita-
tions omitted). Minnis thus makes clear that, rather than hold-
ing 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 inten-
tional tort: An intentional tort is within the scope of employ-
ment, 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.
DOE v. HOLY SEE 2575
[15] Doe’s allegations meet this standard. Doe has asserted
that he “came to know Ronan as his priest, counselor and spir-
itual adviser,” and that Ronan used his “position of authority”
to “engage in harmful sexual contact upon” Doe in “several
places including the monastery and surrounding areas in Port-
land, Oregon.” His allegations are thus very similar to those
in Fearing. 977 P.2d at 1166.
[16] Under Oregon law, then, Doe has clearly alleged suffi-
cient 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
FSIA’s tortious act exception. § 1605(a)(5). The Holy See is
therefore not immune from Doe’s respondeat superior claim.9
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 FSIA’s tortious act exception — a
question we do not decide — these causes of action may not
go forward under that section because they are barred by the
exclusion for “discretionary functions.” The district court thus
erred in exercising jurisdiction over these claims.
[17] The discretionary function exclusion shields foreign
sovereigns from tort claims “based upon the exercise or per-
formance or the failure to exercise or perform a discretionary
function regardless of whether the discretion be abused.”
9
We are aware of the fact that the Sixth Circuit has reached a different
result, but the law of Kentucky, which it was construing, differs from the
law of Oregon. See O’Bryan v. Holy See, Nos. 07-5078, 07-5163, ___
F.3d ___, ___, 2009 WL 305342, at *14 (6th Cir. Feb. 10, 2009).
2576 DOE v. HOLY SEE
§ 1605(5)(A). The language of the discretionary function
exclusion closely parallels the language of a similar exclusion
in the Federal Tort Claims Act (“FTCA”), so we look to case
law on the FTCA when interpreting the FSIA’s discretionary
function exclusion. See 28 U.S.C. § 2680(a); Joseph, 830 F.2d
at 1026. Extrapolating from FTCA case law, the Holy See is
protected by the discretionary function exclusion if the chal-
lenged action meets two criteria: (1) it is “discretionary in
nature” or “involve[s] an element of judgment or choice” and
(2) “the judgment is of the kind that the discretionary function
exception was designed to shield.” United States v. Gaubert,
499 U.S. 315, 322 (1991) (internal quotation marks and cita-
tion omitted); see also Soldano v. United States, 453 F.3d
1140, 1145 (9th Cir. 2006) (clarifying that judgments “of the
kind that the discretionary function exception was designed to
shield” are “governmental actions and decisions based on
considerations of public policy.”) (internal quotation marks
and citations omitted).
[18] As to the first Gaubert criterion, Doe refers vaguely in
his complaint to the Holy See’s “policies, practices, and pro-
cedures” of not firing priests for, and not warning others
about, their abusive acts. He also refers in his brief to a “pol-
icy 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 Irriga-
tion 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, promulga-
tions, 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
DOE v. HOLY SEE 2577
must advance a claim that is facially outside the discretionary
function exception in order to survive a motion to dismiss.”
Prescott v. United States, 973 F.2d 696, 702 & n.4 (9th Cir.
1992) (citing Carlyle v. U.S. Dep’t of the Army, 674 F.2d 554,
556 (6th Cir. 1982) (“Only after a plaintiff has successfully
invoked jurisdiction by a pleading that facially alleges matters
not excepted by [the FTCA] does the burden fall on the gov-
ernment to prove the applicability of a specific provision of
[the FTCA].”)). Doe has not pled any actions that fall facially
outside the discretionary function exception.
[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 hir-
ing, training, and super[vision]” of employees are discretion-
ary). Moreover, failure to warn about an individual’s
dangerousness is discretionary.10 See Sigman v. United States,
10
Even were it not the case that the “failure to warn” claim is barred by
the discretionary function exclusion, it would be barred by the “misrepre-
sentation” exclusion. Like the discretionary function exclusion, the mis-
representation exclusion in the FSIA, § 1605(a)(5)(B), has been
interpreted in light of the misrepresentation exclusion in the FTCA,
§ 2680(h). See de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385,
1398 (5th Cir. 1985). The misrepresentation exclusion covers both acts of
affirmative misrepresentation and failure to warn. See City and County of
San Francisco v. United States, 615 F.2d 498, 505 (9th Cir. 1980) (hold-
ing that “a negligent failure to inform, without more, is misrepresentation
within the meaning of” the misrepresentation exclusion). In particular, we
have held that government officials’ failure to warn about an individual’s
dangerousness, which ultimately led to sexual abuse of a minor, comes
within the misrepresentation exclusion. See Lawrence v. United States,
340 F.3d 952, 958 (9th Cir. 2003).
2578 DOE v. HOLY SEE
217 F.3d 785, 797 (9th Cir. 2000) (failure to warn individuals
on Air Force Base about potentially dangerous serviceman
was a discretionary function, because it “brought into play
sensitive and competing policy considerations of protecting
safety while preserving resources and preventing unwarranted
alarm”); Weissich v. United States, 4 F.3d 810, 814-15 (9th
Cir. 1993) (failure of probation officers to warn a prosecutor
that probationer was a threat to him was a discretionary deci-
sion).
[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 empha-
sis 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 cita-
tions 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 consider-
ations 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 fail-
ure to warn claims because they are barred by the discretion-
ary function exclusion.11 We therefore cannot affirm the
district court’s judgment on this ground.
11
Because we conclude that the tortious act exception does not apply to
the above claims, we have no occasion to consider whether the entire tort
DOE v. HOLY SEE 2579
IV. CONCLUSION
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 cer-
tainly 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 con-
clusion 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 deci-
sion 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).
DOE v. HOLY SEE 2581
Volume 2 of 2
2582 DOE v. HOLY SEE
BERZON, Circuit Judge, dissenting in part:
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 Foreign Sovereign
Immunities Act (“FSIA”). Unlike the majority, however, I
would affirm the district court’s holding that the FSIA does
not give the Holy See immunity from Doe’s claims of negli-
gent retention, supervision, and failure to warn. As explained
below, we have jurisdiction to affirm the district court on any
grounds that were raised below and supported by the record,
and our case law compels the conclusion that Doe’s negli-
gence claims come within the FSIA’s commercial activity
exception.
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 FSIA does not provide it with
immunity from Doe’s negligence claims. The district court
held that although the commercial activity exception does not
apply to defeat the Holy See’s assertion of immunity, the tor-
tious act exception does apply, permitting all Doe’s claims
except for the fraud claim to go forward. See Doe v. Holy See,
434 F. Supp. 2d 925, 957 (D. Or. 2006). The Holy See asks
us to reverse the district court’s immunity ruling, arguing that
the tortious act exception is not applicable to Doe’s negli-
gence claims.
DOE v. HOLY SEE 2583
Doe argues, in response, that we should affirm the district
court’s ruling that the FSIA does not give the Holy See immu-
nity from his negligence claims — either because the district
court correctly held that the tortious act exception applies, or,
in the alternative, because the commercial activity exception
applies. In addition, Doe filed a cross-appeal, urging us to
reverse the district court’s dismissal of his fraud claim,
because the commercial activity exception preserves federal
subject matter jurisdiction over that claim. His argument con-
cerning his cross-appeal and his response to the Holy See’s
appeal of the district court’s ruling as to his negligence claims
are presented to us in a single brief, but they are clearly sepa-
rable.
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 immu-
nity with regard to the fraud cause of action is not indepen-
dently appealable under the collateral order doctrine at this
stage in the proceedings. As the majority notes, where a dis-
trict 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).
2584 DOE v. HOLY SEE
Nor may we exercise pendent jurisdiction over Doe’s fraud
cause of action in the course of deciding the Holy See’s
appeal. To establish jurisdiction over an entity covered by the
FSIA, each individual claim contained in the complaint must
come within an exception to foreign sovereign immunity. See
Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d
1018, 1023-25 (9th Cir. 1987) (analyzing separately whether
each of plaintiff’s claims came within an exception to foreign
sovereign immunity). Therefore, a holding that Doe’s
respondeat superior or negligence claims come within one of
the FSIA’s exceptions does not necessarily decide the ques-
tion whether the fraud claim does so as well. So the fraud
cause of action cannot be viewed as “inextricably inter-
twined” with Doe’s other claims, which would permit us to
exercise pendent jurisdiction over it. Burlington N. & Santa
Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1093-94 (9th Cir.
2007).
Our consideration of the fraud claim is also not “ ‘neces-
sary 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 other-
wise appealable question. Id. (internal quotation marks omit-
ted) (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 juris-
diction 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.
DOE v. HOLY SEE 2585
At the same time, I entirely disagree with the majority’s
insistence that we lack jurisdiction to decide in full the ques-
tion that the Holy See has appealed to us: whether the district
court erred in denying immunity and exercising jurisdiction
over all Doe’s non-fraud causes of action. Doe argues in
response that the district court’s ruling should stand, because
either the tortious act exception or the commercial activity
exception applies and precludes immunity from suit.
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.” Engleson
v. Burlington N. R.R. Co., 972 F.2d 1038, 1041 (9th Cir.
1992) (internal quotation marks and citation omitted). In con-
trast, “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
2586 DOE v. HOLY SEE
‘lessen’ the rights the appellant obtained under that judgment,
appellee need not cross-appeal in order to present arguments
supporting the judgment.” Rivero v. City & County of San
Francisco, 316 F.3d 857, 862 (9th Cir. 2002); see also Lee v.
Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1107 (9th
Cir. 2001) (“A prevailing party need not cross-petition to
defend a judgment on any ground properly raised below, so
long as that party seeks to preserve, and not to change, the
judgment.”).
So, if we conclude that the tortious act exception is insuffi-
cient 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 “ ‘en-
large’ the rights [he] obtained under the district court judg-
ment,” 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 dif-
ferent rationale. Our case law clearly permits us to do so.
The majority concludes otherwise, maintaining that decid-
ing 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 com-
mercial 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
DOE v. HOLY SEE 2587
immunity. So the majority is just wrong when it states, repeat-
edly, that our reaching the commercial activity exception
would entail reviewing a grant of immunity.
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 con-
clude 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.
2588 DOE v. HOLY SEE
II. The Commercial Activity Exception
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 com-
mercial 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 rea-
sons 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 dip-
lomatic, 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, reli-
gious — 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. 28
U.S.C. § 1605(a)(2). Doe’s negligent retention, supervision,
and failure to warn causes of action against the Holy See
therefore fall within FSIA’s commercial activity exception,
and the district court has jurisdiction to decide them.
1
The discretionary function exclusion, 28 U.S.C. § 1605(a)(5)(A), and
the misrepresentation exclusion, id. § 1605(a)(5)(B), only provide foreign
states and their instrumentalities a safe harbor from the FSIA’s tortious act
exception, not from the commercial activity exception. See Export Group
v. Reef Indus., Inc., 54 F.3d 1466, 1477 (9th Cir. 1995).
DOE v. HOLY SEE 2589
A. The definition of “commercial activity” under the
FSIA
The FSIA is often described as having codified the “restric-
tive” 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, 28 U.S.C. § 1603(e), Weltover explained that “the
question is not whether the foreign government is acting with
a profit motive or instead with the aim of fulfilling uniquely
sovereign objectives,” but whether the government’s actions
“are the type of actions by which a private party engages in”
commerce. 504 U.S. at 614. The reason why the sovereign
engages in that activity — its purpose or motive — is immate-
rial.
What is more, no profit need be made, or need even be pos-
sible, 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-
2590 DOE v. HOLY SEE
ing, courts have found that non-profit organizations can
engage in commercial activity. See, e.g., Malewicz v. City of
Amsterdam, 362 F. Supp. 2d 298, 314 (D. D.C. 2005) (hold-
ing that the loan of artwork by a Dutch non-profit museum to
non-profit museums in the United States constitutes commer-
cial activity, because exchanging artwork is an activity in
which private individuals can engage, sometimes for profit).
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 defini-
tion 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 Con-
sulate 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 employ-
ment “of diplomatic, civil service or military personnel is
governmental and the employment of other personnel is com-
mercial.” 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
DOE v. HOLY SEE 2591
1138 (9th Cir. 2002). Park brought an action against the Dep-
uty 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 plain-
tiff’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 activi-
ty,” 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 mili-
tary 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 employ-
ment by the Vatican would have fallen outside the FSIA’s
commercial activity exception. 92 F.3d at 921.
2
See U.S. Dep’t of State, Background Note: Holy See, July 2008,
http://www.state.gov/r/pa/ei/bgn/3819.htm. Although these facts are not
mentioned in the complaint, I take judicial notice of them pursuant to Fed.
R. Evid. 201(b).
2592 DOE v. HOLY SEE
But, on the allegations in the complaint, Ronan was not a
civil service, diplomatic, or military employee — the types of
employees that only sovereign states can employ. Nor is there
any evidence that Ronan was “privy to any governmental pol-
icy deliberations” or that he engaged in “legislative work” on
behalf of the Holy See. Id. at 922. Rather, the Holy See hired
Ronan to perform ecclesiastical and parochial services — to
provide “religious and pastoral guidance, education and coun-
seling services” to the Church’s faithful. Providing religious,
educational, and counseling services is not a peculiarly gov-
ernmental function; it is something that non-governmental
employers can do.
To reach this conclusion, I do not rely at all on the consid-
eration that “churches receive financial support from their
parishioners.” Maj. Op. at 2561. The fact that Ronan’s provi-
sion of pastoral services coincides with and depends upon his
parishioners giving donations is neither necessary nor suffi-
cient 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 dis-
tinctly sovereign in nature — that they are the sort of func-
tions 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 bind-
ing case law.
I recognize that the Holy See’s dual role as not only a sov-
ereign 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
DOE v. HOLY SEE 2593
to its role in running an extremely large international religious
organization.
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 institu-
tion is a large task, and one of great importance to many peo-
ple. 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 interna-
tional 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 activi-
ties, but to governmental activities. The Holy See differs from
other foreign states in the nature of the non-sovereign activi-
ties 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 “com-
mercial” activity for FSIA purposes, observing that the Holy
See’s employment of clergy is “widely viewed as the antithe-
sis of commerciality.” Doe, 434 F. Supp. 2d at 941. Commer-
ciality 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-
2594 DOE v. HOLY SEE
ment relationship that existed between Ronan and the Holy
See does constitute “commercial activity of a foreign state.”
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. 28 U.S.C. § 1605(a)(2). In Clause 1 of
§ 1605(a)(2), the FSIA requires that if the foreign state’s com-
mercial activity is carried on inside the United States, the
plaintiff’s cause of action must be “based upon” that activity
itself. Alternatively, if the commercial activity is not carried
on inside the United States, the plaintiff’s cause of action
must be “[based] upon” an act performed inside the United
States in connection with the commercial activity elsewhere,
id. [Clause 2], or else “[based] upon” an act performed out-
side the United States in connection with commercial activity
elsewhere that causes a “direct effect” in the United States. Id.
[Clause 3]. Doe asserts that his claims may go forward under
either Clause 1 or Clause 3 of the commercial activity excep-
tion.
Saudi Arabia v. Nelson, 507 U.S. 349 (1993), provides the
leading interpretation of the FSIA’s “based upon” require-
ment. 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-
DOE v. HOLY SEE 2595
wan, 201 F.3d 1105, 1110 (9th Cir. 2000)) (internal quota-
tions 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 plain-
tiff had sufficiently alleged a negligent retention claim,
requiring that the individual who caused the harm be an “em-
ployee” 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. Light-
house 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 satis-
fied: 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. 28
U.S.C. § 1605(a)(2) [Clause 1]. Whether or not Clause 1
applies, however, I think it quite clear that jurisdiction arises
under § 1605(a)(2)’s Clause 3, regarding acts performed out-
side U.S. territory in connection with a foreign state’s com-
mercial activity that have a “direct effect” inside the United
States. Id. [Clause 3].
Doe alleges that the Holy See participated in the decision
3
I rely on the Restatement (Second) of Torts as evidence of Oregon law
because it is frequently relied on by the Oregon Supreme Court in negli-
gence cases. See, e.g., Wallach v. Allstate Ins. Co., 344 Or. 314, 320
(2008); Bailey v. Lewis Farm, Inc., 343 Or. 276, 285 (2007).
2596 DOE v. HOLY SEE
to retain and reassign Ronan rather than terminating his
employment, an act that we can infer was taken outside the
United States in connection with Ronan’s employment, and
that had a direct effect in the United States — Ronan’s ability
to carry out his molestation of Doe. Taking his allegations as
true, Doe has satisfied Clause 3 as to his negligent supervision
and retention claims.
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.” Restate-
ment (Second) of Torts § 302B cmt. e(D); cf. Brown v. Wash-
ington 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 con-
tinued 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 com-
mercial 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. § 1605(a)(2) [Clause 3]. I would there-
fore hold that the district court has jurisdiction to decide it.
DOE v. HOLY SEE 2597
D. The “essence” of Doe’s claims
Although the district court determined, as I would, that
Doe’s allegations satisfied the requirements of the commer-
cial 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
2598 DOE v. HOLY SEE
the government of Saudi Arabia. 507 U.S. at 351-52. He then
moved to Saudi Arabia, where he worked as an engineer for
the hospital. Id. at 352. After he reported several safety viola-
tions to his superiors, he was arrested by the Saudi national
police, imprisoned, and tortured. Id. at 352-53. He sued in
U.S. federal court, alleging several intentional tort causes of
action based on his imprisonment and torture, as well as a
claim regarding the hospital’s negligent failure to warn him,
during the contract negotiations in the United States, that he
would be subject to imprisonment and torture if he reported
safety violations. Id. at 353-54. He argued that there was
jurisdiction over his claims under the first clause of the com-
mercial activity exception.
The Supreme Court concluded that there was no jurisdic-
tion 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
DOE v. HOLY SEE 2599
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, supervi-
sion, and failure to warn claims are not simply a “feint of lan-
guage” 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 posi-
tion of trust with respect to Doe and its employment relation-
ship 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
4
For example, if a plaintiff has alleged conduct that clearly amounts to
false arrest, but has called his claim one for “false imprisonment,” the
court will not simply accept that latter characterization. Blaxland, 323
F.3d at 1204-06.
5
Nor does our decision in Randolph v. Budget Rent-A-Car, 97 F.3d 319
(9th Cir. 1996), require any different result. Randolph concerned a Saudi
student trainee studying in the United States on a scholarship from Saudia
airlines, an instrumentality of the Saudi government. Id. at 327. While liv-
ing in this country, the student “negligently crashed his rented automobile
into John Randolph’s motorcycle.” Id. at 323. We held that Randolph’s
respondeat superior claims against Saudia could not come within the tor-
tious act exception to the FSIA because the student was not an “employee”
of Saudia. Id. at 325-29. Addressing the commercial activity exception, we
concluded that the lack of an employment relationship meant that the alle-
gations simply had no nexus to any commercial activity of Saudia: “[N]ot
only must the activity be commercial in nature, but the commercial activ-
ity must cause the harm alleged. . . . The specific acts of which plaintiff
complains did not arise out of Saudia’s commercial activity in the United
States.” Id. at 324.
We also observed that “plaintiffs’ personal injury lawsuit sounds in tort
and centers on the non-commercial negligence of a purported employee.”
Id. This observation, however, must be considered in the context of the
2600 DOE v. HOLY SEE
In summary, I see no reason why claims arising from
actions with an arguably tortious “essence” cannot proceed
under the commercial activity exception. As noted above, the
phrase “commercial activity” in the FSIA is a term of art. Nei-
ther the statute, nor any controlling case, requires the conclu-
sion that the commercial activity exception is necessarily
inapplicable whenever the label “tort” would be, in common
usage, a better description of the harms a plaintiff alleges.
E. The Holy See’s First Amendment argument
The Holy See contends that reading the FSIA to allow fed-
eral jurisdiction over Doe’s claims via the commercial activity
exception would violate the First Amendment, because adju-
dicating 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. Wel-
tover, 504 U.S. at 619 (leaving open the question whether for-
eign 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
conclusion that there was no employment relationship between Saudia and
the student. In the absence of such a connection, there was only the tort
of negligent driving by a student unconnected to Saudia, and no “commer-
cial activity.” In this case, in contrast, Doe has clearly alleged an employ-
ment relationship between the Holy See and Ronan and a nexus between
the employment relationship and the harm he suffered. That relationship
supplies the commercial activity missing in Randolph.
6
The Archdiocese, the Catholic Bishop, and the Order, which are not
foreign sovereigns and are residents of the United States, are, of course,
entitled to First Amendment protections.
DOE v. HOLY SEE 2601
Fifth Amendment, and much of its reasoning on that question
is relevant here. See Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 96 (D.C. Cir. 2002).
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 con-
text, there seems no basis for extending constitutional protec-
tions 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 protec-
tions 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” Consti-
tution. Price, 294 F.3d at 99. It would be thoroughly anoma-
lous to permit the executive branch to be constrained in its
conduct of foreign relations by assertions by foreign sover-
eigns of entitlement to the protections of the First Amend-
ment. 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
2602 DOE v. HOLY SEE
jurisdiction over Doe’s claims presents no First Amendment
concerns.
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, 28 USC
§ 1605(a)(2). But, Judge Berzon does not and has, therefore,
gone on to opine that all (or virtually all) activities by
churches are actually commercial activity. While I recognize
that her opinion cannot be precedential and that a response
from me cannot be either, I am loath to leave her disquisition
standing alone. Thus, I cannot (or at least will not) refrain
from offering my own view on the rather oxymoronic propo-
sition that church functions are commercial.
As I see it, Doe’s claim that church functions are simply
commercial transactions because parishioners do give dona-
tions to the church bespeaks the veriest cynicism about reli-
gion 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
1
It may be suggested that whether parishioners donate matters not at all.
If so, the result is even more jarring than Doe’s proposition.
DOE v. HOLY SEE 2603
counseling? Is the sacrament of Holy Eucharist the marketing
of bread and wine or is the sacrament of Extreme Unction the
marketing of oil? I think not. Normal legal usage and com-
mon sense recoil from those possibilities. See United States v.
Lamont, 330 F.3d 1249, 1254-55 (9th Cir. 2003).
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.” 28 U.S.C. § 1603(d). That does not help
much, but it also does not say that every possibly private
activity is commercial. It says only that commercial behavior
is commercial activity. As the Supreme Court has, somewhat
more helpfully, stated:
[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 govern-
ment 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 omit-
ted). 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.
2604 DOE v. HOLY SEE
I fail to see how engaging in providing religious counseling
is “trade and traffic or commerce.” Id. Nor, by the way, can
a mere private actor give priestly counseling or consolation to
a believer. This does not require a focus on purpose; it goes
to the very nature of the religious activity itself. Similarly, we
have noted that: “[t]he commercial activity exception applies
only where the sovereign acts ‘in the market in the manner of
a private player.’ ” Holden v. Canadian Consulate, 92 F.3d
918, 920 (9th Cir. 1996). Again, Holy See has not acted in the
market at all. It has simply supplied religious counseling to a
church communicant, a service that this unique sovereign
entity is designed for.2
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 pas-
sage of mortal laws and the enforcement of those. They, basi-
cally, encompass the furnishing of the kinds of services that
only Holy See can give: its own kind of religious help, guid-
ance 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
2
Similarly, Father Ronan was not simply supplying commercial advice
and services, nor was he a domestic servant. Cf. Park v. Shin, 313 F.3d
1138, 1140-41 (9th Cir. 2002) (domestic servant service); Holden, 92 F.3d
at 919 (commercial officer). Rather, he held his position for the purpose
of giving the very kind of ecclesiastical services to the faithful that lie at
the heart of this sovereign’s reason for being.
3
That is not to say that Holy See could not participate in commercial
activities. It is only to say that the activities of the type that are involved
here cannot be so dubbed.
DOE v. HOLY SEE 2605
itself. Holy See is a foreign state and the commercial activity
exception does not strip its immunity from it. Something else
may do so, but not that exception.4 We hierophants of the law
are adept at redefining ordinary concepts, but it is no more
appropriate to declare that religious services are commercial
activities than it would be to declare that ponies are small birds.5
Therefore, if we had jurisdiction I would not apply the
commercial activity exception to this case.
4
The Sixth Circuit has reached the same result but for different reasons.
See O’Bryan v. Holy See, ___ F.3d ___, ___, Nos. 07-5078, 07-5163, 2009
WL 305342, at *9-12 (6th Cir. Feb. 10, 2009). So, too, did the district
court in this case. See Doe v. Holy See, 434 F. Supp. 2d 925, 946-47 (D.
Or. 2006).
5
See Regina v. Ojibway, 8 Crim. L.Q. 137 (Oct. 1965).