## Facts

- John V. Doe alleged that, in the mid-1960s in Portland, Oregon, he was sexually abused as a minor by Father Andrew Ronan, a member of the Servite Order assigned to the Archdiocese of Portland.
- Doe alleged Ronan had been transferred from prior assignments after earlier admitted abuse and that Catholic entities failed to protect minors from him.
- Doe sued the Holy See and several domestic Catholic entities, asserting:
  - vicarious liability for Ronan’s abuse;
  - vicarious liability for alleged negligence by the Archdiocese of Portland, the Catholic Bishop of Chicago, and the Servite Order; and
  - direct negligence by the Holy See in retention, supervision, and failure to warn about Ronan’s propensities.
- The Holy See asserted immunity as a foreign sovereign under the Foreign Sovereign Immunities Act (FSIA).

## Issues

1. Whether the FSIA tortious act exception, 28 U.S.C. § 1605(a)(5), permitted jurisdiction over claims attributing the conduct of the Archdiocese, the Chicago Bishop, and the Servite Order to the Holy See.
2. Whether the FSIA tortious act exception permitted jurisdiction over a respondeat superior claim based on Ronan’s alleged status as an employee of the Holy See acting within the scope of employment under Oregon law.
3. Whether direct negligence claims against the Holy See for retention, supervision, and failure to warn were barred by the FSIA discretionary function exclusion.

## Decision

- The Ninth Circuit affirmed in part and reversed in part the district court’s denial of the Holy See’s motion to dismiss on FSIA grounds.
- The court held that Doe failed to plead facts sufficient to overcome the presumption that the Archdiocese, the Chicago Bishop, and the Servite Order were separate juridical entities; their alleged torts could not be attributed to the Holy See for FSIA jurisdiction.
- The court held Doe sufficiently alleged, at the pleading stage, that Ronan was an employee of the Holy See and acted within the scope of employment under Oregon law, allowing jurisdiction under the FSIA tortious act exception for a respondeat superior theory.
- The court held that direct negligence claims against the Holy See for retention, supervision, and failure to warn were barred by the FSIA discretionary function exclusion and therefore dismissed for lack of jurisdiction.

## Legal Principles

- A foreign state is presumptively immune from suit in U.S. courts under the FSIA unless a statutory exception applies.
- Under the FSIA tortious act exception, jurisdiction may exist for personal-injury claims caused by the tortious act or omission of the foreign state or its official or employee acting within the scope of employment.
- The FSIA tortious act exception does not apply to claims based on the exercise or failure to exercise a discretionary function.
- For purposes of attributing conduct to a foreign sovereign, domestic entities alleged to be instrumentalities are generally presumed to have separate juridical status; a plaintiff must plead facts sufficient to overcome that presumption.
- Whether a person acted as an “employee” and within the “scope of employment” for the FSIA tort exception is determined by the law of the place of the alleged tort.

## Conclusion

The Ninth Circuit held that the Holy See retained FSIA immunity from claims premised on the conduct of separate domestic Catholic entities and from direct negligence claims treated as discretionary functions, but permitted a limited respondeat superior claim to proceed based on plausible allegations that the abusing priest was the Holy See’s employee acting within the scope of employment under Oregon law.


Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009)