Holy See Sued in Priest Sex Abuse Lawsuit

ferent rationale. our case law clearly permits us to do so. foreign sovereigns have first amendment rights under the on air force base about potentially dangerous serviceman for the district of oregon against the holy see, the archdio- plaintiff's cause of action must be "based upon" that activity holy see is therefore affirmed in part, reversed in part, and claims were "based upon" the holy see's employment of parties that may have relied on bancec's separate juridical gone on to opine that all (or virtually all) activities by cial activity carried on in the united states by the and asked whether (1) venezuela and cavn had a principal- acts of the affiliated corporations should also be attributed to � 1607(c). rable. see regina v. ojibway, 8 crim. l.q. 137 (oct. 1965). state means, among other things, an entity "which is neither a citizen of at 1026. extrapolating from ftca case law, the holy see is saudi arabia v. nelson, 507 u.s. 349 (1993), provides the gilson v. republic of ireland, 682 f.2d 1022, 1026 n.16 (d.c. 2570 doe v. holy see same district court order as the collaterally appealable ques- ifornia for the defendant-appellant-cross-appellee. 2563doe v. holy see -- has no weight immunity. the holy see appeals. and the district court has jurisdiction to decide them. by and through its agents and instrumentalities, warn his parishioners because it felt that to do otherwise of oregon law). but then, of course, so do the words "per- 245 f.3d 1102, 1107 (9th cir. 2001); bryant v. tech. research co., 654 state within the meaning of the fsia, because they are all citizens of the frustrate "the efforts of sovereign nations to structure their apply to defeat the holy see's assertion of immunity, the tor- concluded that the lack of an employment relationship meant that the alle- that would permit the exercise of jurisdiction over his fraud are presented with comparatively straightforward questions tionship . . . gained the opportunity to be alone with plaintiff" p.3d 936, 939 (or. 2002) (defining "employee" for purposes complaint, the district court denied immunity. the exercise of provide "religious and pastoral guidance, education and coun- complete control; it may enact laws with domestic effect and invoked jurisdiction by a pleading that facially alleges matters plaintiff's inability to collect from the corporation resulted itself. holy see is a foreign state and the commercial activity tus," for reasons similar to those dispositive in the converse issues is not usually allowed. see swint v. chambers county fsia's exceptions to immunity apply, we must determine the d.c. circuit explained that foreign sovereign nations would entail reviewing a grant of immunity. places including the monastery and surrounding areas in port- sulate in san francisco brought an action alleging that the the collaterally appealable order doctrine does not auto- mercial activity that have a "direct effect" inside the united 629. the court then held the latter standard dispositive of tion that the holy see has appealed to us: whether the district relying on the second, equitable prong of bancec, noting that complaint] as commercial." id. at 947. rather, it explained o'bryan v. holy see, nos. 07-5078, 07-5163, 2009 wl 133, 145-47 (2d cir. 2001); cabiri v. gov't of republic of ghana, 165 tions to foreign states in their capacity as such. accord claim, but it denied the motion as to all of doe's other claims. . . . , the question is not whether the foreign govern- 2602 doe v. holy see volume 2 of 2 ment is acting with a profit motive or instead with "diplomatic, civil service, or military" functions, his employ- being raised has been explicitly rejected by the district court." u.s.c. � 1605(a)(2). doe's negligent retention, supervision, except for the fraud claim to go forward. see doe v. holy see, id. [clause 2], or else "[based] upon" an act performed out- the holy see and the order of the friar servants, of which saudi arabia v. nelson, 507 u.s. 349, 359-60 (1993). the filed march 3, 2009 would have harmed the church's reputation locally, or clearly sounding in tort." id. at 942. on the district court's ington county, 163 or. app. 362 (1999) (holding that same manner and to the same extent as a private individual range of non-sovereign activities in the united states, and the world-wide. defendant holy see is also directly 1143, 1148 (9th cir. 2002) (explaining that refusal to dismiss cross-appeal as to the commercial activity exception at this (d.c. cir. 1997) (holding that "decisions concerning the hir- division or suppression of provinces of religious orders," tious that failure to allege each element of the definition which the district court allowed to go forward, are within the omitted). weltover test. the plaintiff must also show that his cause of the majority concludes otherwise, maintaining that decid- wise appealable question. id. (internal quotation marks omit- and may not construe factual allegations in favor of the plain- in the alternative, because the commercial activity exception the order; (2) for respondeat superior liability based on the of immunity. see maj. op. at 2560-61, 2562 & n.5. but that in ways not affected by constitutional protections." nat'l sovereign activities to its sovereign activities. but it is like that plaintiff's claims of "negligent and reckless employment, republic v. amerada hess shipping corp., 488 u.s. 428, 439-43 (1989); 2559doe v. holy see or employee of that foreign state while acting within the scope from me cannot be either, i am loath to leave her disquisition priest in the archdiocese and a member of the order. doe addressed whether foreign sovereigns enjoy the benefit of any plaintiff. see restatement (second) of torts � 302 cmt. a. nor does the statute or the case law suggest that the holy 1138 (9th cir. 2002). park brought an action against the dep- defendant holy see is the ecclesiastical, govern- v. cv-02-00430- jamahiriya, 294 f.3d 82, 96 (d.c. cir. 2002). activity is commercial. is the mass the marketing of a form an instrumentality of the state," the d.c. circuit held that during the contract negotiations in the united states, that he ronan at st. albert's and came to know ronan "as his priest, special concerns of a sovereign immunity statute. the district activity exception applied because "[t]he act of hiring a suit; it juxtaposes commercial activities not to religious activi- to be "commercial activity," even though the consideration united states, 912 f.2d 352, 356 (9th cir. 1990)).4 tion over any of his causes of action. his intentional tort 615-16. safety while preserving resources and preventing unwarranted a private player.' " holden v. canadian consulate, 92 f.3d is dismissed. each party shall bear their own costs. gations simply had no nexus to any commercial activity of saudia: "[n]ot 1140, 1145 (9th cir. 2006) (clarifying that judgments "of the the issue of sovereign immunity from the impact of "case-by- for publication which the acts are relevant. see will v. hallock, 546 u.s. 345, 353 (2006) (explaining formance or the failure to exercise or perform a discretionary 2569doe v. holy see in short, holy see may not be your typical sovereign, but vicarious liability based on the actions of the holy see's student trainee studying in the united states on a scholarship from saudia police, imprisoned, and tortured. id. at 352-53. he sued in must be "[based] upon" an act performed inside the united tional torts of an employee if committed "within the scope of in 1976, to "clarify the governing standards" and to insulate not be accorded immunity with respect to any counterclaim . . . to the or instrumentality." id. at 620. instead, liability was to be see gupta v. thai airways int'l, ltd., 487 f.3d 759, 763-64 "commercial" activities when it "do[es] not exercise powers function exception in order to survive a motion to dismiss." in foreign trade," and the "government supplied all of [ban- district court seemed to be influenced by the complaint's alle- lamont, 330 f.3d 1249, 1254-55 (9th cir. 2003). sumption of separate juridical status for governmental instru- house ministries, 159 ohio app. 3d 766, 772 (2005) (holding would reach the merits of the commercial activity question applies. a foreign state's decision "need not actually be attributed to the holy see for jurisdictional purposes. doe's the holy see moved to dismiss the complaint in its entirety abusive past and potential future dangerousness. so doe's long as that party seeks to preserve, and not to change, the holy see exception, not from the commercial activity exception. see export group 217 f.3d 785, 797 (9th cir. 2000) (failure to warn individuals cally, encompass the furnishing of the kinds of services that of entities also applies to jurisdictional issues."). the fifth ship between the iranian government and the bank saderat over that cause of action. 1989) (emphasis in original). he does not state the terms of describes as follows father andrew ronan's alleged sexual our inquiry into the arcane question of whether church func- usual notice pleading standard applies to complaints that position of trust and authority, ronan "engaged in harmful doe argues, in response, that we should affirm the district ronan had a history of sexually abusing children. the holy 269 f.3d 133, 137-38, 146 (2d cir. 2001) (relying on testi- united states court of appeals states. id. [clause 3]. thrive in this world. holy see is more focused on the next banks, which reviewed bsi's annual statements and "perfor- for lack of subject-matter jurisdiction, arguing that as a for- the basis of sex and age. id. at 919-20. examining the fsia's state-owned oil company for purposes of determining fsia volume 1 of 2 of first impression in this circuit) (internal quotation marks to the very nature of the religious activity itself. similarly, we a. complaint [the ftca].")). doe has not pled any actions that fall facially basis for the claim, use of the word "employee" falls well able order doctrine). denial of jurisdiction over doe's fraud cause of action will be governmental, administrative, judicial, educational[,] plaintiff-appellant, d.c. no. " `scope of employment' provision of the tortious activity substantive corporate law principles in determining whether barmon, 82 or. app. 1, 4 (1986) (in assessing whether plain- reverse the district court's determination; we would have to states and caused by the tortious act of that foreign appealability of a particular pretrial order must focus upon applicable to intentional torts. minnis v. oregon mut. ins. co., for the parishioners' well-being, or because low ordination market at all. it has simply supplied religious counseling to a a. the definition of "commercial activity" under the reached the same result. see, e.g., robinson v. gov't of malay., 269 f.3d gations, and the existence of disputed material facts will not a mere private actor give priestly counseling or consolation to judgment, choice, or discretion. while the burden of proving when it engages in acts that any private citizen has the power neither we nor the supreme court have previously "foreign states cannot avoid their obligations to third parties see gupta, 487 f.3d at 763-64. 5 states may cloak themselves in the protections of the" consti- immunity. id. -- archdiocese, chicago bishop, and order is based entirely on 305342, at *11-12, 16-17. it therefore held the commercial grounds not purely legal); badea v. cox, 931 f.2d 573, 575 the rule that a foreign sovereign is not liable for the acts of directs, supervises, supports, promotes[,] and tual guide, confessor, and priest to plaintiff and his family to to allow review of that decision at this time, before there has motion to dismiss on the pleadings for lack of jurisdiction, the foreign state elsewhere; or upon an act outside mexicanos, 962 f.2d 528, 533-36 (5th cir. 1992), refusing to been issued in its favor by citibank, the cuban government respondeat superior applies to the tortious acts of individu- tution. price, 294 f.3d at 99. it would be thoroughly anoma- 8 into john randolph's motorcycle." id. at 323. we held that randolph's -- that is, all the causes of action alleged against the holy see [15] doe's allegations meet this standard. doe has asserted commercial character of an act is to be determined defendant-appellant. such religious doctrine as the vow of obedience that members states in connection with a commercial activity of duty to warn doe and the other parishioners about ronan's government entity is correspondingly small, when compared domestic servant is not an inherently public act that only a we do not impose a heightened pleading standard in the ground for affirming the district court's judgment). in other transferred to the ministry of foreign trade" of cuba. id. at see also "failed to provide reasonable supervision of ronan." remove individual clergy. all bishops, clergy, and 1 ronan's acts, we conclude that, because doe has sufficiently training of employees to be discretionary acts. see nurse v. amended complaint: would prevent a defendant from understanding the factual mean that, in interpreting the tortious act exception in (a)(5), we must appellate jurisdiction over an exhaustion issue decided in the "generic allegations" in the complaint were insufficient to 3 district court held that the tortious act exception does apply, juridical status. i agree that we cannot consider the commercial exception the outset of a suit as well as at the merits phase makes good op. at 2559 (quoting will v. hallock, 546 u.s. 345, 353 must advance a claim that is facially outside the discretionary mercial activity exception. id. at 144-45 (internal quotation marks, alterations, and cita- alleged various causes of action against the holy see: (1) for id. this observation, however, must be considered in the context of the bancec, 462 u.s. at 626. applying bancec's presumption -- supports affirmance of the district court's order as to doe's situation in flatow v. islamic republic of iran, 308 f.3d 1065 opinion either the tortious act exception or the commercial activity diction to issue the injunction). the denial of the fraud claim b. appellate jurisdiction to reach this conclusion, i do not rely at all on the consid- holden, had ronan been employed to perform any of these immunity applies to that cause of action. we therefore con- f.3d 1198, 1203 (9th cir. 2003) (quoting mt. homes, inc. v. "based on" an employment relationship that, at least in part, cipal and agent is created," or when recognizing the separate this respect does not, however, necessitate deviating from the tions, � 1605(a)(5)(a). reach out and engage in a lengthy disquisition on the commer- of the complaint . . . clearly sound[s] in tort." doe v. holy engages in providing religious and pastoral guid- 2568 doe v. holy see it may be suggested that whether parishioners donate matters not at all. 506 f.3d 832, 841 (9th cir. 2007); there is no such explicit and not warn about his proclivities involved no element of addressed whether a church can be liable under respondeat filed. see el paso natural gas co. v. neztsosie, 526 u.s. 473, 479-80 3 have noted that: "[t]he commercial activity exception applies country. concerns. v. united mexican states, 735 f.2d 1517, 1524-25 (d.c. cir. 1984). but a profit motive or instead with the aim of fulfilling uniquely zirkle fruit co., 301 f.3d 1163, 1168 (9th cir. 2002). case in which an individual who had obtained a judgment against iran the plaintiff alleged that he had been sexually molested by a for review of immunity denials -- avoiding the undermining the tortious act exception is not applicable to doe's negli- only must the activity be commercial in nature, but the commercial activ- the basis for the district court's jurisdiction to reach the other- matically permit review of district court rulings contained in state law." id.; see also randolph, 97 f.3d at 327. plaintiff's mischaracterization of the legal significance of the what it knew about ronan's dangerousness, despite its posi- � 1605(a)(2), the fsia requires that if the foreign state's com- 2549doe v. holy see was within the scope of . . . employment." fearing, 977 p.2d operates worldwide. it is under the "ultimate authority of" the in original) (internal quotation marks omitted). clarifying the ing a setoff for the value of its expropriated cuban branches. fsia's tortious act exception. � 1605(a)(5). the holy see is orders, bishops, archbishops[,] and cardinals from argued here. see mcclure v. life ins. co. of n. am., 84 f.3d by an "employee" of the foreign state while acting "within the much, but it also does not say that every possibly private exception permits it to exercise jurisdiction over doe's non- course of commercial conduct or a particular commercial moreover, i see no prudential reasons whatever for refusing cient facts to show that his claim is based on an injury caused (a) a foreign state shall not be immune from the 202 (d.c. cir. 2001). they also have recourse to international grievances against foreign states are sometimes better contracts). overcome. id. at 632. holding bancec liable for the cuban 94, 107-08 (1982) (holding that to demonstrate alter ego sta- the district court apparently found jurisdiction proper by fully owned by it. id. at 1072-73. its actions were regulated although an interlocutory appeal can be taken whenever nonexistent factual record, even where . . . discovery" might tions omitted). in the case of father ronan's alleged abuse, actually appealable issues; it makes much less sense where, as here, a training[,] and standards of conduct and discipline for its 2007) (the "holy see cannot simultaneously seek the protec- ties it carries out and, in all likelihood, in the ratio of its non- � 1605(a)(2), applies. the district court held that the commer- large' the rights [he] obtained under the district court judg- cial transaction or act. the commercial character of an activ- that "performance of . . . pastoral duties with respect to plain- 1. respondeat superior for father ronan's tortious acts b. applying the bancec standard to doe's complaint within the meaning of" the misrepresentation exclusion). in particular, we between ronan and the holy see, as the fsia requires. 28 under � 1605(a)(2)'s clause 3, regarding acts performed out- 2605doe v. holy see ing, courts have found that non-profit organizations can elsewhere that causes a "direct effect" in the united states. id. appeal of the district court's ruling as to his negligence claims doe cross-appeals and argues that his claims come within identity" would be the real beneficiary if bancec was not held that we may not consider his arguments regarding the fraud [clause 3]. doe asserts that his claims may go forward under 2578 doe v. holy see trative, judicial, educational[,] and pastoral workings of the ficient to allow doe to appeal the district court's grant of der, misrepresentation, deceit, or interfer- function regardless of whether the discretion be abused." (5) not otherwise encompassed in paragraph (2) assessed according to corporate law principles "common to 2566 doe v. holy see (9th cir. 2002). we have said that taking jurisdiction in that instance is and the bishop when determining whether jurisdiction exists the sixth circuit recently came to a similar conclusion in 2596 doe v. holy see assets." id. at 633. instead, cuba had transferred its assets to washington metro. area transit auth., 112 f.3d 1207, 1217 berzon, circuit judge, dissenting in part: the time and space limits authorized by the employ- be broken down into its constituent factual predicates, we cial activity." in this case, in contrast, doe has clearly alleged an employ- in this case, in contrast, was not an essential precursor to the subject-matter jurisdiction and look only for a "short and at 16). based on this legislative history, we held that employ- alternative basis "as a prudential matter," because the issue "within the time and space limits" of the priest's employment. fsia's commercial activity exception lifts the shield of superior cause of action. although the district court held that f.3d 918, 921 (9th cir. 1996). further, doe's negligence employees that only sovereign states can employ. nor is there [16] under oregon law, then, doe has clearly alleged suffi- selves immune from suit under the fsia. an "agency or instrumentality" deed . . . constitutes activity `of the foreign state.' "); see also mcnatt v. apfel, 201 f.3d 1084, 1087 (9th cir. 2000) (holding the fact that both deal with immunity. one would only need cial activity exception to fsia, which we neither must nor clergy. defendant holy see promulgates and the statute further defines the elements of the commercial [10] we join the d.c. circuit and the fifth circuit in relationship") (internal quotation marks and citation omitted). these are, of course, only allegations, but we are required to take them false arrest, but has called his claim one for "false imprisonment," the diction was not at issue, the question for the supreme court vicarious liability claims therefore cannot go forward as 2562 doe v. holy see the majority that the district court's dismissal of doe's fraud (b) any claim arising out of malicious allege an exception to foreign sovereign immunity. under with regard to the fraud cause of action; as to the rest of doe's tion); united states v. yellow freight sys., inc., 637 f.2d kind of impasse? of course not. it leads back to the statute fearing v. bucher, 977 p.2d 1163 (or. 1999)). for the rea- ity for cuba's actions. the fsia "was not intended to affect from a final judgment." see in re copley press, inc., 518 f.3d & n.6 (9th cir. 2007). additionally, permitting a trial to go nity to consider whether the actions of a corporation may be 2595doe v. holy see 2600 doe v. holy see followed even if the district court had expressly ruled to the is "trade and traffic or commerce." id. nor, by the way, can mentioned in the complaint, i take judicial notice of them pursuant to fed. ty," doe's negligence claims without doubt come within the through the contributions of the faithful[,] which are fore hold that the district court has jurisdiction to decide it. activity under the fsia, but in a non-sovereign -- here, reli- which the failure to warn allegedly occurred. "[a] plaintiff exception, is applicable to cases "not otherwise encompassed in paragraph b. the employment relationship between ronan and the 1952, "the united states generally granted foreign sovereigns cal status at the merits phase of fsia litigation. see flatow v. islamic partially, by a purpose to serve the employer; and 2564 doe v. holy see amendment immunity come within the collaterally appeal- by iran's general assembly of banks and high council of cedures" of not firing priests for, and not warning others a foreign state for personal injury or death, or dam- doe alleged that the archdiocese and the order were vicar- after bancec sought to collect on a letter of credit that had john v. doe, no. 06-35587 [14] the oregon supreme court has since clarified that involvement of the holy see in the affairs of the archdiocese, explained, in two instances: when "a corporate entity is so id. (internal quotation marks and citation omitted); accord extending bancec's analysis to the question whether the exclusion for "discretionary functions." the district court thus the aim of fulfilling uniquely sovereign objectives. establish subject matter jurisdiction under the fsia). in such application of the fsia commercial activity exception to and that act causes a direct effect in the united educational, and counseling services is not a peculiarly gov- the complaint contains sufficient allegations of by reference to its "nature" rather than its "purpose" [6] thus, we will not consider issues regarding the district but it is not engaged in the market or in commerce.3 dispute-resolution mechanisms to which private individuals particular, did not involve "day-to-day" control. id. (citing court's judgment, holding that the fsia's commercial activity and archdioceses, "giv[ing] final approval to the creation, the word "employee" is a legal conclusion we are not required activity exception and the tortious act exception are mutually agency relationship between two natural persons "results from deputy consul general's home, the deputy consul general "in any action brought by a foreign state [or its agency or instrumental- a. standard for motions to dismiss based on foreign and retention claims. sion that the commercial activity exception is necessarily all statutory citations are to title 28 of the united states code unless strankman, 392 f.3d 358, 362 (9th cir. 2004); see also under the fsia's tortious act exception, we conclude that they are not entitled to rights under the due process clause of the result, but the law of kentucky, which it was construing, differs from the in analyzing the failure to warn claim, then, nelson simply either by following the district court's reasoning or by a dif- for the foregoing reasons, in appeal no. 06-35563 the deci- we therefore "assume [plaintiff's] [factual] allegations to be over all doe's non-fraud causes of action. doe argues in has a "special relationship" either to the third party or to the later removed from our lady of benburb and placed in the of jurisprudential sense when both the grant and the denial of relief were that sovereign exists. this circuit has not previously ereign immunity, 28 u.s.c. � 1605(a)(5), nor the "commer- tional purposes. further, we agree with the district court that claims under the fsia's tortious act exception to sovereign on the same grounds or reasoning we adopt."); accord cigna order exception to the final-judgment rule"); burlington n., negligent retention and supervision claims. see chesterman v. whether the holy see is immune from suit. see burlington n. verlinden b.v. v. cent. bank of nigeria, 461 u.s. 480, 486 archdiocese, the chicago bishop, and the order, we conclude question. applying bancec's presumption in favor of separate supplies the commercial activity missing in randolph. between the holy see and its domestic corporations here, the tort causes of action are not inextricably inter- as well as the standard for overcoming that presumption -- at cese in portland, oregon. we conclude below that these acts 5 and sexually assault him. id. at 1166. fearing began its analy- rather, the issue is whether the particular actions id. at 1166. fraud negligence claims. its own name in a u.s. court "without waiving its sovereign ing, training, and super[vision]" of employees are discretion- ronan's dangerous proclivities. the holy see contended in buted to the principal for jurisdictional purposes"). therefore, so the holy see is not immune from suit for the respondeat neither is it your typical merchant. does that lead to some grounds that were raised below and supported by the record, not excepted by [the ftca] does the burden fall on the gov- bring the case within any of the exceptions to immunity both international law and federal common law." id. at 623. argentina v. weltover, 504 u.s. 607, 614 (1992) (alteration grant of a preliminary injunction, because in the absence of its reading of nelson, if the "essence" of a plaintiff's complaint 1. jurisdiction over appeal in conclusion, we observe once again that the holy see has for much of our nation's history, from at least 1812 until ronan molested a minor and admitted to doing so. ronan was wrongful acts cannot determine whether the distinct wrongful led to doe's contact with ronan, and thus to the holy see's see o'bryan v. holy see, nos. 07-5078, 07-5163, ___ f.3d ___, ___, 2009 the plaintiff-appellee-cross-appellant. another entity. see, e.g., rough & ready lumber co. v. blue 2561, but a straightforward matter of applying our own bind- sage of mortal laws and the enforcement of those. they, basi- service and/or making them ineligible for positions see's religious activities must be commercial. the fsia tells court's ruling that the fsia does not give the holy see immu- that, holy see's sovereign activities are not simply the pas- before turning to the question of which, if any, of the the hospital. id. at 352. after he reported several safety viola- sexual contact upon" doe on repeated occasions. the sexual d. tortious act exception i agree with the majority that doe's negligence claims if so, the result is even more jarring than doe's proposition. ing that "a negligent failure to inform, without more, is misrepresentation immunity. so the majority is just wrong when it states, repeat- although there is undoubtedly a line beyond which the legal mercial activity exception permits federal court jurisdiction the archdiocese, according to the amendment complaint, and its failure to warn doe of ronan's dangerousness. doe except for the fraud claim. id. at 957. the district court there- tions to his superiors, he was arrested by the saudi national instrumentalities." id. at 488. it is this set of legal standards appropriate to use the bancec standard to determine whether course of conduct or particular transaction or act, rather than cese, the order, and the bishop, all alleged to be corporations the government of saudi arabia. 507 u.s. at 351-52. he then opinion regarding that exception. foreign sovereigns and are residents of the united states, are, of course, matter jurisdiction. see, e.g., robinson v. gov't of malaysia, under the fsia's commercial activity exception, it is not was acting within the course and scope of employment": in furtherance of this duty, defendant holy see been a final judgment on the case as a whole. see in re copley arguments in favor of upholding the district court's order, ity, but instead provides that, "[a]s to any claim for relief with safety violations. id. at 353-54. he argued that there was we will now examine whether the district court could exer- to undertake, regardless of the state's motive or the possibility we applied the holden standard to the hiring of a domestic exclusion closely parallels the language of a similar exclusion actions with an arguably tortious "essence" cannot proceed claim go forward, the concerns for foreign sovereigns that with these considerations in mind, we conclude that it is and traffic or commerce[.]" that the foreign state performs . . . are the type of see. the holy see was further "responsible for the work and a commercial activity of the foreign state elsewhere engage in commercial activity. see, e.g., malewicz v. city of basis, as it concluded that there was another basis for denying the district court nonetheless expressed discomfort with tiff's factual allegations as true and determine whether they 2558 doe v. holy see received through donations from the dioceses around mony and affidavits from the parties in concluding that the on the allegation of the complaint, however, the archdiocese, the chicago alleging that venezuela was liable for the commercial acts of of edifying entertainment? is hearing confessions and giving the discretionary function exception"); see also burkhart v. three . . . requirements for establishing that employee conduct is a corporation incorporated under the laws of the state of to consider the commercial activity exception, we express no u.s. federal court, alleging several intentional tort causes of kind that the discretionary function exception was designed to court's denial of immunity, because "a grant of immunity is orders." doe also alleges that the holy see "promulgates and ity must cause the harm alleged. . . . the specific acts of which plaintiff tion. in flatow, insufficient to overcome the presumption of sepa- applies. in addition, doe filed a cross-appeal, urging us to in "a hypertechnical reading of the complaint inconsistent twombley, ___ u.s. ___, 127 s.ct. 1955, 1964-65 (2007). tive" theory of sovereign immunity. see, e.g., h.r. rep. no. nable to suit. a foreign state can only "act[ ] through its employment of diplomatic, civil service, or military personnel dangerousness of an inmate within its custody). of a foreign state, as defined by the fsia, is immune from suit because ; accord dipietro v. light- eigns of entitlement to the protections of the first amend- alleged that the holy see was vicariously liable for ronan's exception does not strip its immunity from it. something else peculiarly likely to commit intentional misconduct." restate- 2567doe v. holy see mckesson, inc. v. islamic republic of iran, 905 f.2d 438, 446 rial. in his amended complaint, filed april 1, 2004, doe tions, or orders embodying it. nor does the complaint in any in transamerica leasing v. la republica de venezuela, ronan's acts come within the fsia's tortious act exception, for purposes of establishing jurisdiction over the what is truly significant is the emphasis on the market and on has introduced no evidence contesting any of the allegations. (9th cir. 2002). in flatow, we applied bancec to the relation- doe's complaint is not an "arcane question," see maj. op. at sis of commerciality." doe, 434 f. supp. 2d at 941. commer- the holy see appeals the district court's decision that the blaxland v. commonwealth dir. of pub. prosecutions, 323 would affirm the district court's holding that the fsia does ing to recognize the presumption of separate juridical status 2556 doe v. holy see jurisdiction over doe's actual cross-appeal -- that is, over the decided the question, and the issue has been fully briefed and of fair value, or even compliance with the common-law "the overarching principle in nelson," it concluded that it full, albeit on a ground rejected by the district court. we have nity from suit under the foreign sovereign immunities act wan, 201 f.3d 1105, 1110 (9th cir. 2000)) (internal quota- scope of his . . . employment," as required to come within the 1398 (5th cir. 1985). the misrepresentation exclusion covers both acts of that "[i]n order to prevail on a claim of negligent retention, 2592 doe v. holy see a. the meaning of "employee" appellee need not cross-appeal in order to present arguments over the holy see, because doe has not alleged facts that claim, as opposed to where it has denied immunity and let the as the majority explains, doe's complaint sufficiently appeal from the united states district court the manifestation of consent by one person to another that the tiff's complaint in this case, the holy see is entitled to immu- in the united states with a saudi arabian hospital operated by tion). liability for the holy see's own negligent retention and super- 812 (9th cir. 2003) (quoting swint v. chambers county and were engendered by conduct that was within the scope of ment "of diplomatic, civil service or military personnel is marketing of oil? i think not. normal legal usage and com- the act of expropriation committed by the cuban government. resolve an important issue completely separate from the mer- that had a direct effect in the united states -- ronan's ability cluded that because a jury could infer from the facts alleged only where the sovereign acts `in the market in the manner of that he "came to know ronan as his priest, counselor and spir- other way allege that the holy see's decisions to retain doe the world, including those in the united states. 2561doe v. holy see ment by the vatican would have fallen outside the fsia's bishop of chicago ("chicago bishop"), and the order of the considerations of public policy.") (internal quotation marks b. the meaning of "within the scope of employment" at the jurisdictional phase could "result in substantial uncer- is an appealable order under the collateral order doctrine. see als." 830 f.2d at 1025. "this determination is governed by shield" are "governmental actions and decisions based on 2551doe v. holy see have no access. indeed, the fsia is in part a recognition that what is more, no profit need be made, or need even be pos- 2598 doe v. holy see exception essentially requires a finding that the doctrine of 6 question we do not decide -- these causes of action may not record, whether or not the decision of the district court relied designed to protect. we have held the hiring, supervision, and per curiam: states" unless one of the statute's enumerated exceptions 1992) (citing carlyle v. u.s. dep't of the army, 674 f.2d 554, on. that such social, economic, or political policy consider- doe does directly allege in his complaint that the corpora- because it felt that pastoral stability was sufficiently important eral jurisdiction over doe's claims via the commercial activity mckesson corp v. islamic republic of iran, 52 f.3d 346, tion dist. v. united states, 880 f.2d 1018, 1026 (9th cir. defendant-appellee. opinion the holy see contends that reading the fsia to allow fed- "placed ronan in [the] archdiocese at st. albert's church in fe ry. co. v. vaughn, 509 f.3d 1085, 1093-94 (9th cir. to dismiss based on foreign sovereign immunity, we must to its role in running an extremely large international religious remanded for further proceedings not inconsistent with this sary to ensure meaningful review of' " the other questions that ciality and religiosity are, indeed, often viewed as antithetical 1018, 1023-25 (9th cir. 1987) (analyzing separately whether with [their] value." id. at 616 (alteration in original). that absence of "an explicit requirement in a statute or federal 2587doe v. holy see 1 acts." id. at 487. applying this restrictive approach, questions 2557doe v. holy see eign state or its political subdivisions, agencies, or [7] the supreme court began by noting that, although ban- so, when bancec filed an action in u.s. federal court to cir. 1993) (failure of probation officers to warn a prosecutor fernandez, circuit judge, concurring: continues to promulgate laws and regulations that apply to judgment."). http://www.state.gov/r/pa/ei/bgn/3819.htm. although these facts are not tiff and his family were a necessary precursor to the sexual "are the type of actions by which a private party engages in" nowhere does doe allege the existence of a policy that is immunity as far as that exception is concerned.3 this reasoning, once more, mischaracterizes the state of play. 486 u.s. 531, 539 (1988) (internal quotation marks and cita- governmental activities in a manner deemed necessary to pro- ours. bancec was "the cuban government's exclusive agent ity shall be determined by reference to the nature of the wl 305342, at *9-12 (6th cir. feb. 10, 2009). so, too, did the district and citations omitted). f.2d 638, 643 (9th cir. 1989). applied the general principle that the court does not accept a sounds in tort, id., the plaintiff's claims can proceed only complete immunity from suit in the courts of this country." discipline [of] . . . priests." according to the complaint, the see sigman v. united states, the heart of this sovereign's reason for being. not be exercising jurisdiction over doe's cross-appeal, in or corporation is an agent of a foreign state. enough for the plaintiff to show that the defendant engaged in could a church 1203-04 (9th cir. 2003); risk v. halvorsen, 936 f.2d 393, 395-96 (9th cir. 2583doe v. holy see issue that actually has nothing to do with the issues on inter- extensively controlled by its owner that a relationship of prin- court here correctly noted, "[t]he commercial activity must do exception would violate the first amendment, because adju- activity exception was fully litigated below, the district court through the fsia's tortious act exception. o'bryan, 2009 wl 2554 doe v. holy see i disagree that the arguably tortious "essence" of doe's ernment to prove the applicability of a specific provision of requirements of consideration." id. applying this understand- the policies, practices, and procedures" of the holy see, did with him," even though it knew or should have known that prudential and discretionary. see lee v. burlington n. santa fe ry. co., confined to suits involving the foreign sovereign's public seized and nationalized all of citibank's assets in cuba. id. the actions of a corporation are attributable to its owners. see, here, unlike in nelson, doe's negligent retention, supervi- tives or was an act of the kind the employee was hired to per- his complaint to the holy see's "policies, practices, and pro- 2575doe v. holy see gain their trust and confidence" and "[b]y virtue of that rela- stage in the proceedings. as the majority notes, where a dis- internal quotation marks and citation omitted). the court con- ling where ronan performed his functions: the holy see addressed that question either.8 formed by the holy see itself, such as "creat[ing]" dioceses rate juridical status. contrary to the majority's assertion, by doing so we would degree of physical protection and guidance, so that they may "employ[ing]" ronan, and "plac[ing]" ronan in the archdio- to the foreign sovereign immunities act, 28 usc permitting it to exercise jurisdiction over all doe's claims dissent by judge berzon; lomatic, civil service, or military personnel, the employment the misrepresentation exclusion, id. � 1605(a)(5)(b), only provide foreign terms of the contract negotiations in the united states during the student. in the absence of such a connection, there was only the tort whom it alleged were employers of ronan. according to the 97; see also principality of monaco v. mississippi, 292 u.s. argued and submitted 618, 624 (9th cir. 1981)). was one of liability: whether bancec could be held liable for court's grant of immunity under the commercial exception to was within the scope of employment." id. at 1167. 1. determining whether an agency relationship exists defend a judgment on any ground properly raised below, so i recognize that the holy see's dual role as not only a sov- our consideration of the fraud claim is also not " `neces- 7 tious act exception to the fsia because the student was not an "employee" was "carried on in the united states," as well as in rome. 28 allegations." warren v. fox family worldwide, inc., 328 f.3d iran ("bsi"). bsi was created by the iranian government and gious orders [it] has the power to directly assign and 1022, 1025 (9th cir. 2008) (quoting coopers & lybrand v. within the language of the fsia's tortious act exception -- a ment [did not] rise to a [sufficiently] high[ ] level," and in the above claims, we have no occasion to consider whether the entire tort under notice pleading, use of the word "employee" in a com- for the reasons explained below, given the allegations that immunity from doe's negligence claims. the district court itself negligent in its retention and supervision of ronan and other foreign states in the nature of the non-sovereign activi- religious advice -- an age-old function of churches -- really jurisdiction exists under the fsia. holy see on at least one occasion was responsible for control- as true for the purposes of this appeal. see infra, part iii.a. would decline to exercise that jurisdiction. the theory makes a good deal states." id. at 324. nature[,] susceptible to a policy analysis." see kelly v. united 4 friar servants ("order"), alleging that when he was fifteen or tiff. neither contention is correct. the cases on which the appeal. to establish jurisdiction over an entity covered by the f.3d 193, 199-201 (2d cir. 1999); frolova v. union of soviet socialist comes within the tortious act exception. doe has clearly ment (second) of torts � 302b cmt. e(d); cf. brown v. wash- involve, as we have said, a vast expansion of the issues in and complexity that caused plaintiff's injury. cial support from their parishioners, or otherwise. that is an of leadership in the various divisions and offices of non-profit museums in the united states constitutes commer- reverse the district court's dismissal of his fraud claim, governmental and the employment of other personnel is com- eration that "churches receive financial support from their m[ed] broad policymaking functions." id. at 1073. flatow jurisdiction over cross-appeal in fsia case, without explana- alleged that ronan was an employee of the holy see, acting peculiar to sovereigns," but rather "exercise[s] only those morals and standards of conduct of the clergy of the appropriate to declare that religious services are commercial in the foreign sovereign immunity context, "[i]f the defendant parishioners." maj. op. at 2561. the fact that ronan's provi- 509 f.3d at 1089, 1093-94 (refusing to exercise pendent fronted with allegations of abuse, ronan admitted to molest- more complicated under oregon law is the question of 1991). indeed, in joseph, 830 f.2d at 1025, we explicitly stated that court's discomfort notwithstanding, under well-established for example, if a plaintiff has alleged conduct that clearly amounts to here, in contrast, the holy see is contending that on the "specific and mandatory" on the holy see. kennewick irriga- fied: arguably, the holy see's alleged negligent acts were tional allegations, then the district court should take the plain- 94-1487, at 7 (1976); verlinden b.v. v. cent. bank of nigeria, sible, for the activity to qualify as "commercial." in weltover, doe's allegations are sufficient to permit jurisdiction over the cese of portland, oregon ("archdiocese"), the catholic tion is a large task, and one of great importance to many peo- ure to warn claims because they are barred by the discretion- the fsia's commercial activity exception to sovereign immu- requirements must be met to demonstrate that an employee tional tort, it was inappropriate to focus on whether the tort insistence that we lack jurisdiction to decide in full the ques- the catholic [c]hurch. mercial activity is carried on inside the united states, the trast, "arguments that support the judgment as entered can be rules we normally follow in construing and applying the ing substantial contact with the united states." id. � 1603(e). are adept at redefining ordinary concepts, but it is no more f.2d 1337, 1341-42 (9th cir. 1981). for reasons explained in the text, we icy deliberations" or that he engaged in "legislative work" on appealable if, and only if, they too fall within [the] collateral- states in any case -- laws of the state of illinois and is a citizen of that state. organization. claims renders the commercial activity exception unavailable ship with ronan. doe's negligence claims are not a the holy see, its "instrumentalities or agents" ("does 1-10"), activity" phrase, as it has been interpreted in the case law, is court in part and reverse in part as to the holy see's appeal. sion, and failure to warn claims are not simply a "feint of lan- activity occurred. 28 u.s.c. � 1605(a)(2). in clause 1 of circuit adopted the same principle in arriba ltd. v. petroleos about an employee's dangerousness -- with a "direct effect" 2007) (citing engleson, and holding that an appellee did not tiff's claims were based on an employment relationship with and we apply the same standards in evaluating its merit. see, "involved in proving" one of the elements of plaintiff's cause nor may we exercise pendent jurisdiction over doe's fraud challenges only the legal sufficiency of the plaintiff's jurisdic- ity of its bishop[s]. the holy see is supported the order, and the chicago bishop, and that the holy see was the case." id. at 357 (internal citations omitted). as the district mwmholy see, require a greater-than-usual level of detail in the pleadings, as whether to warn about his dangerous proclivities, are the of an issue is "necessary to ensure meaningful review of" (3) the act must have been of a kind which the the holy see might have decided to retain him and not to (1999); rivero v. city & county of san francisco, 316 f.3d 857, 861-62 exception. nelson, 507 u.s. at 363. doe has alleged that the ereigns would convince us that it would generally be pruden- of the purpose of the grant of immunity4 ereign government but also the head of a worldwide church further that the holy see did not inform doe or his parents of at length the comity considerations at play when entertaining state or of any official or employee of that foreign come within an exception to foreign sovereign immunity. see and section of the [c]hurch. defendant holy see for the reasons explained below, we affirm the district fore granted the holy see's motion to dismiss as to the fraud ment" of the grounds for jurisdiction and the claim for relief. response that the district court's ruling should stand, because holy see. jurisdiction over doe's claims presents no first amendment 1136, 1139 (9th cir. 2003) (emphasis added; internal quota- decide far-reaching . . . questions" of some importance "on a that her opinion cannot be precedential and that a response sition that church functions are commercial. see u.s. dep't of state, background note: holy see, july 2008, although the district court determined, as i would, that no more than a commercial activity similar to psychological instead, the court went on to ask whether "acts that were and re-aligns dioceses, archdioceses[,] and ecclesias- tion of trust with respect to doe and its employment relation- cial activity exception does not apply to permit the exercise in bancec, the supreme court considered whether an instru- each claim asserted."); but cf. joseph v. office of consulate holy see based on acts committed by its affiliated domestic hired to perform, that arguably resulted in the acts employment, an act that we can infer was taken outside the (1) which is a separate legal person, corporate or oth- complains did not arise out of saudia's commercial activity in the united that the presumption of separate juridical status had been supervision and training of" employees "fall squarely within agent relationship, or (2) recognizing cavn as a separate id. at 614-15. in the meantime, bancec was dissolved, and 2553doe v. holy see ple. but it is not an activity that may be undertaken only by icy promulgated by the holy see to cover up incidents of categories. but, as i have explained, the fsia's "commercial concurrence by judge fernandez foreign state; or upon an act performed in the united mercial" activity for fsia purposes, observing that the holy 2007). contact occurred "in several places including the monastery abuse and that the assaults thus were a direct outgrowth of accept doe's legal conclusions as true, we also do not engage clusion that most of doe's causes of action are not covered by cial activity" exception to sovereign immunity, 28 u.s.c. republic of arg. v. weltover, inc., 504 u.s. 607, 614, 112 is commercial activity. as the supreme court has, somewhat . . . employment," id. at 1168, the complaint satisfied "all activities than it would be to declare that ponies are small birds.5 are being asked only to affirm the district court's judgment in sovereign immunity notice pleading rules, we require only "a short and plain state- mentality created by a foreign state could be held liable for should be affirmed on the alternative rationale that the com- in fearing. 977 p.2d at 1166. see for ronan's actions as an alleged employee of the holy means commercial activity carried on by such state and hav- commerce. 504 u.s. at 614. the reason why the sovereign respect to which a foreign state is not entitled to immunity actions of the holy see's employee, ronan; and (3) for direct relationship occurred inside the united states, it may be that 2 which private individuals can engage, sometimes for profit). was "a necessary precursor to the" intentional tort and the appeal to affirm a summary judgment on grounds not relied requirement here applicable. in evaluating assertions of cial activity, because exchanging artwork is an activity in 2572 doe v. holy see that are private or commercial in character (jure gestionis)." to argue that the alternative set will support the denial of 2548 doe v. holy see ance, education[,] and counseling services to roman sovereign objectives," but whether the government's actions alarm"); weissich v. united states, 4 f.3d 810, 814-15 (9th 2591doe v. holy see causes of action that are the subject of the holy see's appeal requirement that his claim be "based upon the commercial states in connection with the commercial activity elsewhere, filed each year in federal courts -- without further definition. requires bishops to file a report, on a regular basis, 305342 (6th cir. feb. 10, 2009). o'bryan held that, because guage" to obtain jurisdiction through the commercial activity see for the tortious acts allegedly committed by the archdio- sis added). a policy analysis is one that implements "political, time. the decision of the district court on the appeal by the such a requirement into the statute. created by the holy see. the holy see argues that we may nations; and it sends and receives diplomatic representatives including religious order priests, brothers[,] and sis- circuit judges, and otis d. wright, ii*, district judge. st. philip's, ronan molested at least three male students. con- an alternative ground on which to affirm the district court. actions were actually based on policy considerations is not dicating the case will require the judicial interpretation of about the relationship between the holy see and local priests phrase "commercial activity" in the fsia is a term of art. nei- and failure to warn causes of action against the holy see instrumentalities, the archdiocese, the chicago bishop, and of the clergy offer to the pope. this contention cannot get off of the union."). unlike private individuals, "sovereign states the discretionary function exclusion, it would be barred by the "misrepre- appealable issue). according to the holy see, we do not have cause of action cannot be viewed as "inextricably inter- holy see continued to employee ronan, and placed him in under the fsia's tortious act exception. and flatow require to overcome the presumption of separate under the tortious act exception to the foreign sovereign [18] as to the first gaubert criterion, doe refers vaguely in no cross-appeal is required -- or appropriate -- where we 2581doe v. holy see 2574 doe v. holy see defendant could be held liable for failure to warn about the nature" or "involve[s] an element of judgment or choice" and mischaracterization of the factual allegations he has made, but [c]atholic [c]hurch. defendant holy see does this employment relationship is a necessary element of at least the clause 1 of the fsia's commercial activity provision is satis- holy see for jurisdictional purposes court will not simply accept that latter characterization. blaxland, 323 see doe, 434 f. supp. 2d at 937. the existence of such direct commercial activity exception to this case. however, the complaint alleges a number of actions per- tus, plaintiff must show control of the subsidiary and that "the about that, the sensitive nature of the issues dealing with sov- the employee is not a civil service, diplomatic, or military twined with doe's other claims. thus, that concept is not suf- unnecessary review of grants of immunity. on this appeal we type of discretionary judgments that the exclusion was subdivision thereof, . . . and under the tort exception. but the cross-appeal seeks to expand per curiam opinion; 48 p.3d 137 (or. 2002), observed that, in fearing, there was in doe's complaint except for the fraud cause of action. v. burlington n. r.r. co., 972 f.2d 1038, 1041 (9th cir. rights under the constitution of the united states. cf. wel- f.3d at 1204-06. we hierophants of the law as we have stated over and over again, we may affirm the contains "[g]eneral exceptions to the with which we deal today. its parishes." the chicago bishop is incorporated under the rule," skaff v. meridien north america beverly hills, llc, on by the district court if the record is inadequate or the employees as] laborers, clerical staff or public relations or action based on his imprisonment and torture, as well as a the substantive law determining the liability of a foreign state the land it governs is tiny. its role as a traditional, sovereign fearing created an alternative test with respect to the second the same district court opinion as the appealable determina- meaning of fsia � 1603(b), this status was relevant only to unusual kind. both in physical size and number of inhabitants, would be subject to imprisonment and torture if he reported [2] section 16052 commercial activity sovereigns from tort claims "based upon the exercise or per- in approximately 1965, when doe was 15 or 16 years old, within the misrepresentation exclusion. see lawrence v. united states, activity exception inapplicable. see doe, 434 f. supp. 2d at cation, training[,] and standards of conduct and dis- 2 its police" is an act "which is peculiarly sovereign in nature," the holy see maintains that doe has not alleged sufficient catholic church including each and every individual jurisdictional immunity of a foreign state," providing in rele- e.g., amfac foods, inc. v. int'l sys. & controls corp., 294 or. 2571doe v. holy see another question only if the assertedly pendent issue provided religious orders. . . . it creates, appoints, assigns and 2593doe v. holy see catholic priest who "used his position as youth pastor, spiri- letters from the state department containing "suggestions of outlining the status of, and any problems with, ity of a foreign state" is defined in turn as any entity: alleged an employment relationship between ronan and the in sum, a foreign state engages in commercial activity orders, priests[,] and deacons of the religious clergy. finally, the order is "a citizen of the state of illinois," but it march 5, 2008--portland, oregon intentional tort was "a direct outgrowth of . . . conduct that court could exercise jurisdiction over the holy see only with regard to such a challenge, a motion to dismiss for lack airlines, an instrumentality of the saudi government. id. at 327. while liv- 2590 doe v. holy see legislative history, we noted that the house report listed "the to and from other states.2 the "true essence" or "gravamen" of the wrongful activities world, and that makes a universe of difference. because of side the scope of his employment" under the traditional test, see was aware that ronan had molested young boys on at the district court did not grant the holy see immunity except responsible for removing superiors of religious juridical status for foreign state instrumentalities at the juris- claim. but doe needed no cross-appeal to respond to the holy whether and how to retain and supervise an employee, as well state is immune from the jurisdiction of foreign courts as to only holy see can give: its own kind of religious help, guid- actions by which a private party engages in "trade ters, who engage in pastoral work under the author- ing that sexual abuse is not within the scope of employment, owed to bancec. id. at 634. states, 241 f.3d 755, 764 n.5 (9th cir. 2001) (second empha- son," "corporation," "citizen," and "molest," also used in this sufficient facts to demonstrate that any exception to sovereign i. procedural background (1983) (citing the schooner exchange v. m'faddon, 7 ployee" of defendant). see also restatement (second) of appeal. put another way, doe's cross-appeal asks us to " `en- order doctrine because it "may result in the parties having to tainty over whether an instrumentality's assets would be above, in which money damages are sought against b. district court decision archdiocese and doe of ronan's propensities. doe also immunity as to those. however, because it would be improper attempted to enforce it against the bank saderat iran). case diplomatic pressures," congress enacted the fsia, 28 . . . ment. nelson explained that "[i]n denoting conduct that forms applying this standard, i would hold that doe's negligence the archdiocese, the catholic bishop, and the order, which are not denying a tribe sovereign immunity, but holding that the court states . . . nor created under the laws of any third tions omitted). minnis thus makes clear that, rather than hold- ing case law. [5] to say it another way, it is well established that, see, 434 f. supp. 2d 925, 942 (d. or. 2006). in contrast, the cause of action. we do, however, have jurisdiction over doe's doe's complaint does not allege day-to-day, routine states and their instrumentalities a safe harbor from the fsia's tortious act support a district court decision, even where no cross-appeal has been parish priest in the archdiocese of armagh, ireland, father an employer can be liable for intentional as well as uninten- designed to shield. however, faced with such a scenario, have applied bancec's abney v. united states, 431 u.s. 651, 663 (1977) (after con- 2573doe v. holy see cause of action in the course of deciding the holy see's members and those who serve in the governmental, adminis- child abuse," which he argues removed "an[y] element of abuse of doe and for the negligent actions of the archdiocese, see's employment of clergy is "widely viewed as the antithe- fun wong v. united states, 373 f.3d 952, 957 (9th cir. they are entitled have traditionally been governed not by tions to the church bespeaks the veriest cynicism about reli- authorized under the collateral order doctrine, challenges the separate juridical status, because the government's "involve- social, and economic judgments." berkovitz v. united states, country"). they are therefore not immune from suit. ity] . . . in a court of the united states or of a state, the foreign state shall & santa fe ry. co. v. vaughn, 509 f.3d 1085, 1093-94 (9th 3 extent that appellants were acting pursuant to" it. yet holy see for purposes of the tortious act exception, because 2579doe v. holy see ing that the loan of artwork by a dutch non-profit museum to 2d at 950. we agree in part. constitutional system," id., and so the protections to which mercial activity exception, the court turned to the bancec test entity would work an injustice. id. at 848. although it acknowledged that "bancec recognized these as exceptions to employment activities alleged in doe's complaint are not dis- diction. doe's complaint alleges tortious acts by the archdio- contrast, the "employment or engagement of [such other proven, would entitle a plaintiff to relief under his theory of priests, including one father andrew ronan" and that ronan the fsia. against the holy see, as currently pleaded, cannot proceed held these facts insufficient to overcome the presumption of fsia the sixth circuit has reached the same result but for different reasons. iv. conclusion mercial activity, in that it is the result of non-sovereign attributed to the holy see for purposes of establishing juris- defendant is not liable for a negligent omission that leads to sovereign immunity, then, we apply the same notice pleading 2 o'bryan v. holy see, 471 f. supp. 2d 784, 794 (w.d. ky. states; respondeat superior claims against saudia could not come within the tor- will routinely have to decide whether a particular individual we have, however, applied the bancec presumption of separate juridi- had not been briefed by the government, and raised a question attribute the actions of a private labor union to the mexican gillam v. nev. power co., 488 f.3d 1189, 1192 n.3 (9th cir. jurisdiction over his claims under the first clause of the com- eral allegations regarding actions taken by the holy see itself mercial." id. clude that we have jurisdiction to decide the applicability of the order, and the bishop. instead, it alleges that the holy see made without a cross-appeal . . . even where the argument oregon and is therefore a citizen of that state. it "provided otherwise indicated. the holy see. was under the "direct supervision and control" of the holy exercise pendent jurisdiction over it. burlington n. & santa based on these facts, doe alleged causes of action against do establish jurisdiction over the holy see for the claims to both the tortious act and commercial activity exceptions to the immune from suit in u.s. courts. the district court disagreed, sky forest products, 105 or. app. 227, 231 (1991) (an warn cannot be brought under the tort exception because they cise jurisdiction over the holy see for these causes of action court's dismissal of his fraud claim, contending that the com- within the scope of his employment, when he molested doe. short of that line. not discipline or remove ronan from his post.1 counsel r. evid. 201(b). more than one legal meaning: the standard for determining eign is not amenable to suit based on the acts of such an michael w. mosman, district judge, presiding tortious act exception to preserve federal jurisdiction over "[e]ngaging in a commercial act does not require the receipt 499 u.s. 315, 322 (1991) (internal quotation marks and cita- � 1605(5)(a). the language of the discretionary function actions, 28 u.s.c. � 1603(e), weltover explained that "the that "at the heart of plaintiff's complaint is the injury inflicted before: ferdinand f. fernandez and marsha s. berzon, text, there seems no basis for extending constitutional protec- republics, 761 f.2d 370, 379 (7th cir. 1985); asociacion de reclamantes immunity (absolute or qualified) is denied to a person or [4] this case points up one of the perils of undertaking we note that the question we address here is distinct from the question mann, 541 u.s. 677, 688 (2004). as at the merits phase, fail- ence with contract rights . . . pleaded. as to the holy see's respondeat superior liability for must be dismissed because, as a foreign sovereign, it is ments . . . , the focus properly is directed at whether "reveal the plaintiff's claims to be factually baseless." kwai a district court's denial of immunity to a foreign sovereign need to cross-appeal to argue for a different standard of in summary, i see no reason why claims arising from [21] in sum, the tortious act exception does not provide activities. it is only to say that the activities of the type that are involved the district court held that all of doe's claims, except the in the "trade and investment section" of the canadian con- effect, change that rule so that whenever immunity is denied the fsia. a. the bancec standard doe's amended complaint explains that the holy see has similarly, father ronan was not simply supplying commercial advice weltover, 504 u.s. at 614. instead, the critical factor in the 1129, 1133 (9th cir. 1996) (holding that we can decline on appellate jurisdiction only over those decisions of a district ment relationship that existed between ronan and the holy function exclusion. see 28 u.s.c. � 2680(a); joseph, 830 f.2d in the federal tort claims act ("ftca"), so we look to case that doe is alleging the type of day-to-day control that bancec tinued employment of ronan in a position of authority that 200 f.3d 843 (d.c. cir. 2000), a plaintiff sued venezuela, was a discretionary function, because it "brought into play to "engage in harmful sexual contact upon" doe in "several press, inc., 518 f.3d 1022, 1025-26 (9th cir. 2008). we would be asked to take up the appeal from that grant and mine whether venezuela was amenable to suit under the com- 5 and persuasion as a holy man and authority figure." using his ment relationship. true, in addition to being a word used in jurisdiction over doe's cross-appeal because it is not "inextri- i rely on the restatement (second) of torts as evidence of oregon law specifically, i agree that the district court's grant of immu- (2) [the commercial activity exception] above." this language does not liaoning province gov't, 452 f.3d 883, 888 (d.c. cir. 2006), [13] doe's vicarious liability claim for the actions of the -- namely, its negligent retention and supervision of ronan the holy see has brought a facial attack on the subject tinctly sovereign in nature -- that they are the sort of func- requirements we would apply to any other assertion of side the united states in connection with commercial activity its of the action, and [are] effectively unreviewable on appeal 4 opinion. we dismiss the cross-appeal. commercial activity exception. 92 f.3d at 921. activity exception. indeed, in most cases it is non- cec was an "agency or instrumentality" of cuba within the claim is not properly before us. 461 u.s. 480, 487 (1983). under the restrictive theory, "a tions of the fsia and the united states constitution."). (1) the act must have occurred substantially within exercise our prudential jurisdiction to support the district locutory appeal. to exercise our jurisdiction. the application of the commercial by sovereign act as a claim of failure to warn. . . . to give s. ct. 2160, 2166, 119 l. ed. 2d 394 (1992) (citations omit- tover, 504 u.s. at 619 (leaving open the question whether for- by a sexually abusive priest at plaintiff's church, a claim of the revenues derived from its members for these orders, and through the bishops and superiors of reli- forward against a foreign sovereign when there is a claim of held that although the commercial activity exception does not domestic corporations. we do not agree. doe has made sev- would undermine the purpose of notice pleading -- that is, to accept as true. we are highly skeptical of the notion that, ("fsia"), 28 u.s.c. �� 1330, 1602-1611. seling services" to the church's faithful. providing religious, nor do we agree that we ought to simply take up the com- regular course of commercial conduct or a particular commer- whether the archdiocese, the chicago bishop, and the order are them- commercial activity under weltover's nature-not-purpose test. under this understanding of the phrase "commercial activi- claim. rather, we would be determining whether the record sense. mote economic development and efficient administration." see o'bryan v. holy see, ___ f.3d ___, ___, nos. 07-5078, 07-5163, 2009 2604 doe v. holy see that an employment relationship between a foreign sovereign need to show, by the way, a true interlocking of issues beyond jurisdiction in bancec existed under fsia's counterclaim rates or staffing shortages made it necessary to keep ronan practical problems might arise were we to hold that foreign (2008); bailey v. lewis farm, inc., 343 or. 276, 285 (2007). everyday speech, "employee" does have a common law legal which doe raises a commercial activity exception argument not consider these alleged acts by the archdiocese, the order, ecclesiastical provinces" and "gives final approval to the cre- (3) which is neither a citizen of a state of the united "separate juridical [status]" for the instrumentalities of foreign in failing to warn of his propensities. the actions of the foreign state itself, a question the reverse of has inappropriately used the separate status of the corpora- � 1605(a)(2). but, judge berzon does not and has, therefore, holy see under oregon law. maj. op. at 2572-75 (citing ary). moreover, failure to warn about an individual's sovereign immunity "imperil[s] a substantial public interest." erred in exercising jurisdiction over these claims. claim regarding the hospital's negligent failure to warn him, sion of pastoral services coincides with and depends upon his a believer. this does not require a focus on purpose; it goes 2597doe v. holy see ways, depending upon the geographical location where the actions are "commercial" within the meaning of the have held that government officials' failure to warn about an individual's prop. & cas. ins. co. v. polaris pictures corp., 159 f.3d inger v. islamic republic of iran, 729 f.2d 835, 838-39 (d.c. cir. 1984). land, oregon." his allegations are thus very similar to those defendant holy see has unqualified power over the were not "inextricably intertwined" with the collaterally cipline for its members and those who serve in the edly, that our reaching the commercial activity exception of a foreign state." id. � 1603(a). an "agency or instrumental- congregation for religious both delegated by the 2550 doe v. holy see ment relationship between the holy see and ronan and a nexus between animate the collateral order doctrine do not apply. see maj. spread the word of god without some funds? would that it activity" of saudi arabia merely by phrasing his claim in i think that the problem this case seems to present lies in least two prior occasions while in its employ. he has alleged exception. sentation" exclusion. like the discretionary function exclusion, the mis- exception was designed to shield." united states v. gaubert, gious -- capacity. see holden v. canadian consulate, 92 actions undertaken elsewhere -- the decision not to warn 6 district court's judgment on this ground. immunity and answering for [its] seizure of citibank's necessary to ensure meaningful review of the district court's a foreign state's actions but rather at the "nature" of its nity with regard to the fraud cause of action is not indepen- standard for attribution of the actions of a corporation to immunity to a foreign sovereign meets those requirements. for the ninth circuit counselor and spiritual adviser." doe was a devout roman i. jurisdiction that doe has not alleged facts sufficient to overcome the pre- has also alleged respondeat superior liability against the holy pastoral services to [doe] and his immediate family through ation, division[,] or suppression of provinces of *the honorable otis d. wright, ii, united states district judge for the tainly entitled to bring a facial attack on the complaint, such 2588 doe v. holy see department adopted a more "restrictive" theory of foreign ii. statutory framework portland, oregon." id. � 1603(b). doe's negligence claims against the holy see could proceed the fsia's broad policy goals. in bancec, the court discussed including his argument that the non-fraud causes of action, private player within it, the foreign sovereign's activities. domestic constitutional law, but by international law. id. at available jurisdiction is thus necessary to decide whether the greek orthodox church being two prominent examples. the from offering my own view on the rather oxymoronic propo- the seizure. "[t]he cuban government . . . [and] not any third form: 351-52 (d.c. cir. 1995) (holding the presumption of separate- tions are commercial activity because churches receive finan- grounded in policy considerations so long as it is, by its comes about because the holy see is a sovereign of a very instrumentality." id. (emphasis added). see also foremost- doe alleges that the holy see participated in the decision a district court's judgment on any ground supported by the id. at 617. may do so, but not that exception.4 ted) (holding that review of younger abstention decision was that doe has failed to allege any facts in support of his claims fed. r. civ. p. 8(a)(1), (2); see also bell atlantic corp. v. for the district of oregon brought a facial attack on the allegations of subject-matter which led to injury to [the] plaintiff." id. (emphasis added; jurisdiction; it did not control the question of bancec's liabil- non-fraud claims, which is the subject of the holy see's defendant holy see promotes and safeguards the re-assigns bishops [and] superiors of religious (9th cir. 1991); see also in re republic of the phil., 309 f.3d the fraud cause of action -- it did not grant immunity on that ness overcome where iran controlled routine business deci- younger holding, the district court would not have had juris- 2. negligent retention, supervision, and failure to warn 2599doe v. holy see in his complaint, doe alleges that the holy see "employed district court's ruling that the fsia does not provide it with applies. courts have not proceeded in that fashion. see, e.g., argentine affirmative misrepresentation and failure to warn. see city and county of 918, 920 (9th cir. 1996). again, holy see has not acted in the 2594 doe v. holy see of whom we have held to be a quintessentially sovereign itself. alternatively, if the commercial activity is not carried under the commercial activity exception. as noted above, the mercial activity exception does not apply, but -- except for ronan's acts can be attributed to the holy see for jurisdic- ment; 2543 must occur in the united states, as the sixth and d.c. circuits have held. 2601doe v. holy see at the same time, i entirely disagree with the majority's outside the discretionary function exception. gations of wrongful acts perpetrated directly by the holy see. immunity from such non-sovereign activities. court correctly held that the tortious act exception applies, or, commercial activity exception. blaxland v. commonwealth dir. of public prosecutions, 323 f.3d 1198, no question that the first requirement of "the within the scope enforces the laws and regulations regarding the edu- other shall act on his behalf and subject to his control, and does nelson, or any other controlling case, authorize reading standing alone. thus, i cannot (or at least will not) refrain plaint is insufficient to establish an allegation of an employ- within the commercial activity exception. we agree. nor does our decision in randolph v. budget rent-a-car, 97 f.3d 319 attributable to the holy see. doe has therefore not alleged eign states enjoy rights under the due process clause). the ther the statute, nor any controlling case, requires the conclu- porations, the supreme court recognized a presumption of tortious act exception applies. doe cross-appeals the district face of the complaint, we lack subject matter jurisdiction; it "they serve also as exceptions to the rule that a foreign sover- employee was hired to perform. of judgment that the discretionary function exception was defendant "has brought into contact or association with the and therefore not "commercial" within the meaning of the prosecution, abuse of process, libel, slan- in the united states. � 1605(a)(2) [clause 3]. i would there- services. the holy see engages in these activities employ of the chicago bishop, at st. philip's high school. at comm'n, 514 u.s. 35, 51 (1995)). we have held that decision the ineluctable effect of doe's request. one would not even district court on any ground raised below and supported by john v. doe, no. 06-35563 the statute does not set out any substantive rules of liabil- government could perform." id. at 1145. because the plain- such a special relationship may exist if, for example, the dangerousness, which ultimately led to sexual abuse of a minor, comes we are aware of the fact that � 1605(a)(5), identifying the tortious act concluded that the plaintiff could not meet the statute's entitled to first amendment protections. claims could not proceed under the commercial activity would overcome the presumption of separate juridical status the district court that all of doe's causes of action against it at least two other circuits, tical provinces. it also gives final approval to the cre- mon sense recoil from those possibilities. see united states v. rather, for the purpose of determining whether a suits against foreign government instrumentalities in u.s. given my view of the jurisdictional posture of the case, i [11] bancec provides a workable standard for deciding this d. the "essence" of doe's claims alleging that during her tenure as a domestic servant in the f.3d ___, ___, 2009 wl 305342, at *14 (6th cir. feb. 10, 2009). one for fraud, come within the exception to immunity for a the fact that holy see is an unusual type of foreign sovereign. no rights under the first amendment.6 the fsia, and that neither the "tortious act" exception to sov- 1248, 1251 (9th cir. 1980) ("inquiry into the immediate [19] as to the second gaubert criterion, the decision of 941-42. it did so because, following what it considered to be exception applies and precludes immunity from suit. bishop and the order were negligent in failing to warn the this alleged policy, or describe any documents, promulga- standards applied in many state courts to determine whether tled to offset the value of its seized assets from the amount it fsia, each individual claim contained in the complaint must doe's respondeat superior claim based on ronan's actions i agree with the majority and the holy see that we lack moreover, we have never held that anything other than our ("because a foreign state acts through its agents, an agent's review than that used by the district court as an alternative definition. see, e.g., schaff v. ray's land & sea food co., 45 cir. 2007) (in a case involving a collaterally appealable order, so, if we conclude that the tortious act exception is insuffi- the employment relationship and the harm he suffered. that relationship procedural requirements. galbraith v. county of santa clara, jurisdiction of the courts of the united states and of the here cannot be so dubbed. mentalities, so the negligent acts of those entities cannot be servant for a diplomat's residence in park v. shin, 313 f.3d 2004). after careful consideration, we have reached the con- doe's other causes of action. for these reasons, i agree with clusions merely because they are cast in the form of factual are properly before us. meredith v. oregon, 321 f.3d 807, blindly to the corporate form" would work such an "injustice" of bread and wine or is the sacrament of extreme unction the responsible for the work and discipline and all those doe's allegations satisfied the requirements of the commer- tions omitted). sovereign states, which is the focus of the fsia's commercial moved to saudi arabia, where he worked as an engineer for entity claiming entitlement thereto, an expansion to other [17] the discretionary function exclusion shields foreign 412, 418-19 (9th cir. 1998); jackson v. s. cal. gas co., 881 its sovereign or public acts (jure imperii), but not as to those the `basis,' or `foundation,' for a claim, the phrase is read were we to require that every such word used in a complaint including the congregation for the clergy and the gion and a church's position within religion.1 employment, that is, conduct that the employee was 2555doe v. holy see cial activity exception, it ultimately held the commercial are presented to us in a single brief, but they are clearly sepa- therefore not immune from doe's respondeat superior claim.9 representation exclusion in the fsia, � 1605(a)(5)(b), has been exception because "a foreign state's exercise of the power of see. we turn now to those allegations, considering whether fact, the court held, "ma[de] no difference," because bishop, and the order are not "agencies or instrumentalities" of a foreign 313, 330 (1934) (foreign sovereigns are "outside the structure fsia. id. at 361. as to the "failure to warn" claim, the court ronan was employed not as a member of the vatican's dip- states. id. at 624, 624-28. v. cv-02-00430- sion). jurisdiction. tious act exception does apply, permitting all doe's claims enforces the laws and regulations regarding the education, for its own wrongs. rather, in ruling for doe on this point, the catholic church. defendant holy see is the compos- doe's non-fraud negligence claims, the district court's result entity is designed for.2 in arguing that the actions of the corporations are not attrib- ing the boys. the chicago bishop, "acting in accordance with jurisdiction to consider doe's argument that his claims come long held that an appellee is required to file a cross-appeal if something that qualifies as a commercial activity under the statute's requirement that courts look not at the "purpose" of the majority disagrees, maintaining that we should not question is not whether the foreign government is acting with are not members of the political community for whose benefit supp. 2d at 936. but doe has not alleged that the holy see on grounds of sovereign immunity is within the collateral activity exception: a " `commercial activity' means either a show respect and obedience to the pope and their civil service, diplomatic, or military employee -- the types of diction"). we do not, however, accept the "truth of legal con- comercio exterior de cuba ("bancec"), 462 u.s. 611 (1983). enter into international treaties and compacts with other us that "[a] `commercial activity' means either a regular sion of the district court is affirmed in part, reversed of commercial activity." id. (quoting h.r. rep. no. 94-1487, state while acting within the scope of his office or (9th cir. 1996), for example, a former "commercial officer" the ground because, as a foreign sovereign, the holy see has lous to permit the executive branch to be constrained in its the fsia is often described as having codified the "restric- court in this case. see doe v. holy see, 434 f. supp. 2d 925, 946-47 (d. requiring that the individual who caused the harm be an "em- withheld her pay, denied her medical care, and confiscated dangerousness is discretionary.10 and centers on the non-commercial negligence of a purported employee." gen. of nig., 830 f.2d 1018, 1021 (9th cir. 1987) (assuming by engaging in abuses of the corporate form." doe, 434 f. recover on the letter of credit, citibank counterclaimed, seek- on one set of issues but granted on another set, a cross-appeal . . . by the foreign state in the united states" as examples of ations could have influenced the decision renders it the kind priests, including religious order priests, vow to holy see there is relatively little. in general, under oregon law, a at 1163. government's actions, the court held that citibank was enti- fifth amendment, and much of its reasoning on that question but, on the allegations in the complaint, ronan was not a jurisdiction over doe's negligent hiring, supervision, and fail- conduct of foreign relations by assertions by foreign sover- below, we have jurisdiction to affirm the district court on any 48 p.3d at 144-45. but because fearing involved an inten- marci a. hamilton, washington crossing, pennsylvania, for court that "conclusively determine the disputed question, the fsia's exceptions does not necessarily decide the ques- not give the holy see immunity from doe's claims of negli- the defendant, the defendant was not entitled to sovereign vision of ronan and its negligent failure to warn doe of consent by the other so to act.") (quoting restatement (sec- of giving the very kind of ecclesiastical services to the faithful that lie at uty consul general of the korean consulate in san francisco, plaintiff-appellee, d.c. no. gence cases. see, e.g., wallach v. allstate ins. co., 344 or. 314, 320 prescott v. united states, 973 f.2d 696, 702 & n.4 (9th cir. . . . diverted to satisfy a claim against the sovereign," and might under the analysis we set forth in 307 f.3d 1119, 1125 (9th cir. 2002). thus, while we do not tion omitted); see also soldano v. united states, 453 f.3d cases, "no presumptive truthfulness attaches to plaintiff's alle- sis from the proposition that, in a respondeat superior action, alleged that ronan was an employee of the holy see acting facts to overcome the "presumption of separate juridical sta- her passport. id. at 1140-41. we held that the commercial employment; except this paragraph shall not apply to (2) "the judgment is of the kind that the discretionary function � 2680(h). see de sanchez v. banco central de nicaragua, 770 f.2d 1385, an approach is not without risk, for it "call[s] upon [us] to 1177 (9th cir. 1987). and pastoral workings of the catholic [c]hurch c. doe's negligence claims are "based upon" tions are "agents" of the holy see. in this context, however, at 919 (commercial officer). rather, he held his position for the purpose livesay, 437 u.s. 463, 468 (1978)). a decision denying grants when an appeal is taken from a denial of immunity. either clause 1 or clause 3 of the commercial activity excep- activity is commercial. it says only that commercial behavior can be taken regarding the granted set. surely that would be vested in the pope and his delegated advisors to from some form of improper conduct" on part of parent cor- engages in that activity -- its purpose or motive -- is immate- denying a motion to dismiss on double jeopardy grounds, action is related to that commercial activity in one of three district court in passing on the . . . motion to dismiss . . . are 11 employer, if conduct that was within the scope of employment f.3d 924, 926 (9th cir. 2003) (per curiam) ("we may affirm the district court's decision. the holy see's appeal, which is governmental entities, not governments, that operate interna- standard, applicable when a plaintiff has alleged an inten- resolved in these other arenas, not in u.s. courts. in this con- law on the ftca when interpreting the fsia's discretionary and hold that, although the district court erred in applying the more helpfully, stated: could not reach other issues raised on appeal because they i fail to see how engaging in providing religious counseling (d.c. cir. 1990) ("the presumption of juridical separateness negligent failure to warn claim is also "based upon" a com- fsia's purpose is not to insulate religious institutions from gence claims come within the fsia's commercial activity v. united mexican states, 735 f.2d 1517, 1524-25 (d.c. cir. 1984); pers- that a natural person is the agent of another differs from the interact with each other through diplomacy and even coercion cannot, because the fsia preserves immunity for discretion- central district of california, sitting by designation. ment. i would therefore reject the holy see's contention that sensitive and competing policy considerations of protecting not as a regulator of a market, but in the manner of a government instrumentality, cavn. id. at 846. to deter- for the foregoing reasons, i would affirm the district 2577doe v. holy see 9 superior for the actions of a priest who sexually assaults a tions omitted) (quoting w. mining council v. watt, 643 f.2d torts � 317 ("a master is under a duty to exercise reasonable other sovereigns in the respect essential here: it engages in a lenged action meets two criteria: (1) it is "discretionary in activity carried on in the united states by a foreign state' on inside the united states, the plaintiff's cause of action doe has pleaded, we agree with the holy see. in addition, dently appealable under the collateral order doctrine at this ronan to perform ecclesiastical and parochial services -- to ing in this country, the student "negligently crashed his rented automobile nario -- for purposes of determining whether jurisdiction over [8] that presumption can be overcome, the court that probationer was a threat to him was a discretionary deci- ond) of agency � 1 (1958)). the bancec standard is in fact because we conclude that the tortious act exception does not apply to u.s.c. � 1605(a)(2) [clause 1]. whether or not clause 1 created the corporations for the purpose of evading liability ment" as the fsia requires. in joseph, we indicated that the 2. jurisdiction over cross-appeal d.c. circuit, however, has concluded that foreign sovereigns under" the statute, "the foreign state shall be liable in the provision, 28 u.s.c. � 1607(c).7 of negligent driving by a student unconnected to saudia, and no "commer- within [the priest's] scope of employment resulted in the acts argentina received for them was "in no way commensurate and surrounding areas." words, "[s]o long as the appellee does not seek to `enlarge' cably intertwined" with the collaterally appealable issue of the term "agent" is not self-explanatory. "agent" can have [1] under the fsia, a foreign state is "immune from the tional tort: an intentional tort is within the scope of employ- fearing created a "scope of employment" test specifically always first consider whether the commercial activity exception in (a)(2) more than lead to the injuries plaintiff suffered"; it must be alternate ground to uphold the district court. in fact, the need [12] applying the rule of bancec to the allegations in doe's usage, a better description of the harms a plaintiff alleges. fsia principles and our own binding case law the employ- the holy see relies on first nat. city bank v. banco para el parishioner. in fearing v. bucher, 977 p.2d 1163 (or. 1999), immunities act ("fsia"). unlike the majority, however, i employers can do. the tort exception and overturn the district court's denial of 1138, 1140-41 (9th cir. 2002) (domestic servant service); holden, 92 f.3d plaintiff must establish . . . the existence of an employment decided on a case-by-case basis, often with the assistance of as to the holy see's vicarious liability for the acts of the john v. doe brought suit in the united states district court cec]'s capital and owned all of its stock." id. at 614. soon and its employee constitutes commercial activity, so long as the holy see suggests that when evaluating facial motions judgment or choice" from the holy see's actions "to the 2. actions performed by the holy see itself matter jurisdiction of the district court under rule 12(b)(1). the rights it obtained under the district court judgment, or to 2576 doe v. holy see go forward under that section because they are barred by the united states, 226 f.3d 996, 1001 (9th cir. 2000) (holding 340 f.3d 952, 958 (9th cir. 2003). that are undoubtedly sovereign. it maintains a volunteer mili- canadian government illegally discriminated against her on protected by the discretionary function exclusion if the chal- where immunity has been granted. were there any doubt exclusive and cannot possibly apply to the same conduct. nor tional religious institutions, the mormon church and the such that the acts of the latter could be attributed to the former.6 bishop. defendant holy see also examines and is of his or her employment." � 1605(a)(2); doe, 434 f. supp. why decisions denying absolute, qualified, and eleventh in nelson, the plaintiff entered into an employment contract amsterdam, 362 f. supp. 2d 298, 314 (d. d.c. 2005) (hold- c. determining which acts may be attributed to the characterizing the holy see's employment of ronan as "com- (2) the employee must have been motivated, at least bancec filed a stipulation "stating that . . . its claim had been ronan within the meaning of the statute. the existence of that ing the commercial activity issues involves review of a grant the territory of the united states in connection with claims are "based upon" the employment relationship tion whether the fraud claim does so as well. so the fraud could, but the need for support does not mean that the holy mwmholy see, argentina's issuance of bonds to refinance its debt was held nature." id. at 921 (quoting h.r. rep. no. 94-1487, at 16). in we are aware of the fact that the sixth circuit has reached a different of foreign sovereign immunity arising in u.s. courts were in addition, as the d.c. circuit observed in price, "serious because the commercial activity exception preserves federal burlington n. santa fe ry. co., 245 f.3d 1102, 1107 (9th within the "scope of his employment" under oregon law, about, their abusive acts. he also refers in his brief to a "pol- holding that it has jurisdiction over all but one of doe's wl 305342, at *13 (6th cir. feb. 10, 2009); asociacion de reclamantes care so to control his servant.")3 district court's determination that it had jurisdiction over complaint, we conclude that doe has not alleged sufficient ite of the authority, jurisdiction, and sovereignty in part, and remanded. the cross-appeal (no. 06-35587) church communicant, a service that this unique sovereign most naturally to mean those elements of a claim that, if "tortious act or omission of [a] foreign state or of any official which of the acts alleged in the complaint may legitimately be because ronan's activities pursuant to the employment based upon the alleged employment relationship requires cir. 2001) ("a prevailing party need not cross-petition to therefore, if we had jurisdiction i would not apply the immunity." id. abuse of young boys: in 1955 or 1956, while employed as a n.2 (9th cir. 1991) (declining to affirm the district court on an v. reef indus., inc., 54 f.3d 1466, 1477 (9th cir. 1995). parishioners giving donations is neither necessary nor suffi- definition of a commonly used term is so complex or conten- courts. 462 u.s. at 626; see also republic of austria v. alt- trict court has granted sovereign immunity on a particular commercial activity analysis in this case is that the holy see's 4 liable for the cuban government's actions. id. at 631-32. leading interpretation of the fsia's "based upon" require- things which concern bishops, superiors of religious fsia. moreover, because the act provides that the status of a corporation "would work fraud or injustice." id. at we therefore cannot affirm the in other words, here tion, if they do not themselves meet these requirements. see cient to show that the holy see's employment of ronan is a catholic, and for him "ronan was a person of great influence district court's denial of immunity should stand. i would con- cranch 116, 3 l. ed. 287 (1812)). in 1952, however, the state iii. analysis a state of the united states . . . nor created under the laws of any third to him. nothing in the fsia suggests that the commercial inapplicable whenever the label "tort" would be, in common are in fact among the central wrongs he alleges.5 2586 doe v. holy see tion of "commercial activity," this circuit has repeatedly held joseph v. office of the consulate gen. of nigeria, 830 f.2d diction phase, not just at the liability phase, is consistent with u.s. constitution, holding that the district court's exercise of or performance or the failure to exercise or there was no need to consider subsection (a)(2) at all. other courts have in applying the jurisdictional provisions of the fsia, courts under like circumstances." id. � 1606. [20] the holy see's failure to present any evidence that its employment." id. generally, under oregon law, "three united states. see � 1603(b) (an agency or instrumentality of a foreign according to doe's complaint, it was the holy see's con- therefore fall within fsia's commercial activity exception, ary function exclusion.11 retained ronan and failed to warn those coming into contact most similar to the "alter ego" or "piercing the corporate veil" ance and counseling. it may do more than most sovereigns do, eign sovereign, it is presumptively immune from suit under not interlocutorily appealable at all." maj. op. at 2562 n.5. [3] as a general rule, the collateral order doctrine permits cese, the chicago bishop, and the order. ment," rivero, 316 f.3d at 862, so the majority is quite right fsia. the operation of a huge international religious institu- poration). even reading the complaint generously to doe, as (2) which is an organ of a foreign state or political appeal (by doe), both seeking reversal of different aspects of the discretionary function exclusion, 28 u.s.c. � 1605(a)(5)(a), and counseling? is the sacrament of holy eucharist the marketing (2006)). further, the district court's grant of immunity and both "ecclesiastical" and "governmental" functions. in its separate entities, and bancec then sought to avoid liability for whether ronan's actions were "within the scope of employ- itself was committed in furtherance of the employer's objec- erning claims of immunity in every civil action against a for- applies, however, i think it quite clear that jurisdiction arises effectively thwart the act's manifest purpose." id. at 363. doe can prove his allegations. while the holy see was cer- ties, but to governmental activities. the holy see differs from any evidence that ronan was "privy to any governmental pol- cerning his cross-appeal and his response to the holy see's supporting the judgment." rivero v. city & county of san sovereign immunity). therefore, a holding that doe's cir. 1982) (noting that "the activities of an agent may be attri- extent that the counterclaim does not seek relief exceeding in amount or invoked by the plaintiff." tions to its own benefit, as in bancec, or that the holy see "trade and traffic or commerce." id. e.g., safe air for everyone v. meyer, 373 f.3d 1035, 1039 gent retention, supervision, and failure to warn. as explained we consider whether, on the allegations made in the plain- bancec's case: the cuban government could not have sued in 2544 doe v. holy see interpreted in light of the misrepresentation exclusion in the ftca, plain statement" of the basis for jurisdiction. 434 f. supp. 2d 925, 957 (d. or. 2006). the holy see asks looking to oregon's "failure to warn" case law, of which characterization to the conduct on which the claim is based." under the fsia's tortious act exception, or not at all. the fact that the holy see is unique among sovereigns in that we "favorably view[ ] the facts alleged to support juris- of the appeal. nity, � 1605(a)(2). the holy see contends that we do not have asserting the discretionary function exception, "a plaintiff whether or not this alleged negligence otherwise comes as it happens, the oregon supreme court has directly ary acts. however, we do not have jurisdiction to consider the u.s.c. �� 1330, 1602-1611. verlinden, 461 u.s. at 488. the could recast virtually any claim of intentional tort committed vant part that: age to or loss of property, occurring in the united immunity on a wholly different basis. that approach would be actions of a corporation may render a foreign sovereign ame- "to focus litigation on the merits of a claim" rather than on activity exception inapplicable to the holy see's employment reviewable at the end of the entire action, so there is no need of making a profit therefrom. applying the weltover defini- nity from his negligence claims -- either because the district gives this case a peculiar complexion. but that sense of oddity see olsen v. gov't of mexico, 729 f.2d 641, 646 (9th cir. 1984). catholic [c]hurch world-wide." these factual allegations -- subdivision of a foreign state or an agency or instrumentality attributed to the sovereign -- the reverse of the bancec sce- respondeat superior or negligence claims come within one of cluding that the collateral order doctrine applies to a decision francisco, 316 f.3d 857, 862 (9th cir. 2002); see also lee v. the archdiocese, the chicago bishop, and the order, all of employee. in holden v. canadian consulate, 92 f.3d 918 we have before us an appeal (by the holy see) and a cross- and our case law compels the conclusion that doe's negli- relevant to whether the discretionary function exception and services, nor was he a domestic servant. cf. park v. shin, 313 f.3d see's appeal; doe could -- and did -- respond by asking us is relevant here. see price v. socialist people's libyan arab them -- are quite similar to the facts in flatow, and are, as itual adviser," and that ronan used his "position of authority" because it is frequently relied on by the oregon supreme court in negli- we also observed that "plaintiffs' personal injury lawsuit sounds in tort 2584 doe v. holy see supreme court has explained that a foreign state engages in twined" with doe's other claims, which would permit us to differing in kind from that sought by the foreign state." 28 u.s.c. cient to support jurisdiction over any of doe's non-fraud with the generous notice pleading standard." mendoza v. jurisdiction of courts of the united states or of the jeffrey s. lena, law office of jeffrey s. lena, berkeley, cal- (a) any claim based upon the exercise perform a discretionary function regardless 2603doe v. holy see claims, we may look to the commercial activity exception as contrary on the alternative set of issues.5 mercial activity exception applies.1 other a person whom the actor knows or should know to be subject matter jurisdiction over that claim. his argument con- jurisdiction in the complaint. it remains to be seen whether based on the actions of the holy see itself, rather than of its direct the world-wide roman catholic church. we must, we cannot infer from the use of the word "agent" iii. conclusion to retain and reassign ronan rather than terminating his alleged in the plaintiff's complaint sounded like torts, the mental, and administrative capital of the roman surveying international and federal law on the status of cor- preclude the trial court from evaluating for itself the merits of gence claims. as to doe's other causes of action, the holy see contends see does constitute "commercial activity of a foreign state." churches are actually commercial activity. while i recognize utable to holy see for purposes of determining jurisdiction, [9] the supreme court in bancec did not have the opportu- transaction or act." 28 u.s.c. � 1603(d). that does not help (9th cir. 2004). as the d.c. circuit explained in rong v. of jurisdiction under the fsia is no different from any other 2585doe v. holy see id. at 620-21. because juris- council of resistance of iran v. dep't of state, 251 f.3d 192, marketing agents would be . . . included within the definition we conclude, however, that doe's claims against the holy determining whether doe's "failure to warn" claim is priest's "alleged sexual assaults on plaintiff clearly were out- behalf of the holy see. id. at 922. rather, the holy see hired 2582 doe v. holy see [w]e conclude that when a foreign government acts, facts to demonstrate that ronan was an "employee" of the san francisco v. united states, 615 f.2d 498, 505 (9th cir. 1980) (hold- jurisdictional claims." roberts v. corrothers, 812 f.2d 1173, mercial activity issue on the basis that it is no more than an holy see relies involve fact-based challenges to subject- employee's conduct that was within the scope of his sovereign immunity, under which sovereign "immunity is the gaubert factors ultimately falls on the sovereign entity relationship constitutes "commercial activity" for purposes of clude that the district court lacked jurisdiction over the holy could not "fairly characterize[ ] [the activities described in the given this circumstance, the court concluded that to "adhere complaint meets the second and third . . . require- erwise, and of employment" test was met, because the abuse occurred through its agents, cardinals, bishops[,] and clergy, holy see's activities as commercial because "the true essence that is not to say that holy see could not participate in commercial agents," be they corporations or individual people. phaneuf v. united states in connection with ronan's employment, and schoenberg v. exportadora de sal, s.a., 930 f.2d 777, 779 the supreme court concluded that there was no jurisdic- true, doe has satisfied clause 3 as to his negligent supervision iously liable for ronan's abuse of doe, and that the chicago grant of immunity is not interlocutorily appealable at all and would each of plaintiff's claims came within an exception to foreign tially unsound to expand review into the area of immunity republic of indonesia, 106 f.3d 302, 307-08 (9th cir. 1997) 2565doe v. holy see ronan was a member, "placed" ronan in a parish priest posi- e. the holy see's first amendment argument litigate claims over which the court lacks jurisdiction"). "creates, divides[,] and re-aligns dioceses, archdioceses and `lessen' the rights the appellant obtained under that judgment, fsia contains "a comprehensive set of legal standards gov- question whether the holy see is immune from doe's fraud most governments do, indeed, exist to afford their citizens a is simply not so. the district court did decide that the com- court erred in denying immunity and exercising jurisdiction sions, such as declaring and paying dividends and honoring (9th cir. 1996), require any different result. randolph concerned a saudi acts that are "public or governmental and not commercial in of action. doe, 434 f. supp. 2d at 943 (quoting sun v. tai- they are sufficient to support jurisdiction over the holy see. sixteen years old he was sexually abused by father ronan, a republic of iran, 308 f.3d 1065 (9th cir. 2002) (applying bancec in a ii. the commercial activity exception because we could decide the question presented under subsection (a)(5), the bill of rights was adopted. they "are entirely alien to our complaint -- and, undoubtedly, in many other complaints ted). some have focused on the "private player" language, but 2552 doe v. holy see commercial activity exception. holding that "other claims presented to, and rejected by, the side u.s. territory in connection with a foreign state's com- of saudia. id. at 325-29. addressing the commercial activity exception, we it is itself a "foreign state" within the meaning of the act. � 1603(a), (b). subject-matter jurisdiction based on an exception to foreign an allegation that the actions of the domestic corporations are (2) in which the action is based upon a commer- 1992) (internal quotation marks and citation omitted). in con- should do. pope and acting on his behalf. it creates, divides[,] governmental role, the holy see undertakes certain functions jurisdictional significance to this feint of language would see for negligent retention and supervision and failure to as i see it, doe's claim that church functions are simply ation, division or suppression of provinces of religious tary to defend the territory of vatican city, over which it has facts he has alleged, but will look "beyond the complaint's or. 2006). and third factors of the "within the scope of employment" 2589doe v. holy see ment, and can support respondeat superior liability for the powers that can be exercised by private citizens." republic of tions that private parties, not just sovereign governments, can that the holy see participated in creating the corporations and 229 f.3d 1271, 1284-86 (9th cir. 2000). we are asked to, in 2560 doe v. holy see a plaintiff being harmed by a third party unless the defendant tiff had sufficiently alleged a negligent retention claim, ernmental function; it is something that non-governmental comm'n., 514 u.s. 35, 43-51 (1995); cunningham v. gates, sons explained in greater detail below, i would hold that that conclusion that there was no employment relationship between saudia and he seeks "to support modification of the judgment." engleson according to doe's complaint, the holy see "negligently by reference to its purpose." id. � 1603(d). a " `commercial 556 (6th cir. 1982) ("only after a plaintiff has successfully of whether the discretion be abused, or 1 the archdiocese where he molested doe, even after the holy corporations. the record. see, e.g., atel fin. corp. v. quaker coal co., 321 a term of art, not reliant on common usage, which reflects the law of oregon. see o'bryan v. holy see, nos. 07-5078, 07-5163, ___ simply to preserve the result that the district court reached, catholics world-wide in exchange for all or a portion to carry out his molestation of doe. taking his allegations as we are aware of the theory that allows alternate grounds to be used to true and draw all reasonable inferences in his favor." wolfe v. tion at st. albert's church in portland, oregon. doe met perform. see holden, 92 f.3d at 921. so approached, the commercial transactions because parishioners do give dona- of jurisdiction over doe's claims; the court did not view the applying these three factors, fearing stated that the even were it not the case that the "failure to warn" claim is barred by 10 are barred by the fsia's exclusion for discretionary func- but held that the "inquiry does not end there." id. at 1166. us to reverse the district court's immunity ruling, arguing that applies. 28 u.s.c. � 1604. a foreign state "includes a political