Sexual Abuse Victims Seek to Hold Holy See Liable

nos. 07-5078/5163 should cause the holy see to lose its sovereign immunity. see 28 u.s.c. � 1605(a). catholic priests. lawsuit." gould, 853 f.2d at 452 (citing riedel v. bancam, s.a., 792 f.2d 587, 591 (6th � 1291." keller v. cent. bank of nig., 277 f.3d 811, 815 (6th cir. 2002). this court ii, lea a. player, morris & player, prospect, kentucky, for appellees. lewis yelin, see for purposes of fsia if further contrary evidence emerges during the litigation." nos. 07-5078/5163 o'bryan, et al. v. holy see page 20 negligence would not have occurred in the united states. furthermore, the claim of be retroactive in application) (quoting dole food co. v. patrickson, 538 u.s. 468, 479 (2003)). thus, the plaintiffs cannot pursue claims based upon the alleged sexual abuse of priests or based from the commencement of its existence."). that "the complaint alleges claims for deceit . . . and misrepresentation . . . . those latter causes of action insufficient. in doing so, the district court began its analysis by determining that the cir. 1996) (applying california law). because the conduct alleged by the named facial attack on the subject-matter jurisdiction alleged in the complaint questions merely in � 1605(a)(5) covers only torts occurring withinthe territorial jurisdiction of the united allegations"); kilburn v. socialist people's libyan arab jamahiriya, 376 f.3d 1123, argued, for the first time, that the application of the fsia to the holy see violated the appealable under the collateral order doctrine as a final decision, pursuant to 28 u.s.c. violation of customary international law of plaintiffs but will not be treated separately. of control over the bishops and archbishops accused of having committed the tortious immunity under the [ftca], 28 u.s.c. 2680(a) and (h).") (quoting h.r. rep. at 21); see (1976)). previously brought claims against an agent or servant of the defendant, holy see, in the distress, deceit and misrepresentation.10 1 states." 488 u.s. at 441. moreover, the purpose of the tortious activity exception is plaintiff, james h. o'bryan, was sexually abused, molested and assaulted theory of sovereign immunity, which grants immunity for the public, not private, actions plaintiff by his priest, a holy see employee. 434 f. supp. 2d at 937-47. after a lengthy inc. v. republic of angl., 216 f.3d 36, 40 (d.c. cir. 2000)); doe, 434 f. supp. 2d at 933 cleaning contractors pension plan v. grandview raceway, 46 f.3d 1392, 1399 (6th congress intended to exclude from liability - that is, whether the choice - a foreign state is indeed a foreign sovereign. instead, plaintiffs appear to advance one thus, the portions of plaintiffs' claims that are based upon the conduct of complaint the following causes of action: - (a) a foreign state shall not be immune from the jurisdiction of courts of holy see's motion to dismiss at 6 n.9). liability, copyright infringement, an indebtedness yet unpaid on a loan or exceptional cases or particular circumstances, or when the rule would produce a plain miscarriage of vickers v. united states, 228 f.3d 944, 949 (9th cir. 2000) (internal citations omitted) previously brought claims against an agent or servant of the defendant, holy see, in the by reference to its "nature" rather than its "purpose," the question is not jurisdiction." chambers v. ohio dep't of human servs., 145 f.3d 793, 797 (6th cir. 1998). "a pendent adrienne w. kim, mcmurry & associates, prospect, kentucky, douglas h. morris advance theories of liability premised on the conduct of holy see employees in the abusive priests satisfy the requirements of the fsia's tortious act exception that the to the named plaintiffs. cunningham v. pfl life ins. co., 42 f. supp. 2d 872, 883 (n.d. iowa 1999) ("[i]t relevant tortious conduct. as a result, the holy see seizes upon the language in the complaint which remaining claims.13 acts in question. taking these allegations as true, plaintiffs have sufficiently pled the state pursuant to the foreign sovereign immunities act ("fsia"), 28 u.s.c. � 1602 et seq. and no permanent population, and thus does not" satisfy the definition of "foreign state" motion to dismiss as to the failure to report and failure to warn outlined above, are precluded by the other exception to the tortious act exception: priests, clerics, bishops, archbishops, cardinals, agents and employees. general allegations against [t]his is merely a semantic ploy. for aught we can see, a plaintiff could supervision were not discretionary. according to the complaint, the 1962 policy holy see itself for its own failures to warn or report because such tortious conduct f.3d 238, 241 (2d cir. 1994). united states and caused by the tortious act or omission of that `the immunity of the sovereign is recognized with regard to sovereign or public acts plaintiff, michael j. turner, was sexually abused, molested and assaulted by julia smith gibbons, circuit judge. defendant holy see appeals the district clergy in question were in fact holy see employees. however, the district court kentucky and citizens of the united states at the time of the alleged sexual abuse by local does not" satisfy the definition of "foreign state" under the restatement's standard. other transaction, or any other theory whose true essence is commercial. in summary, this court will dismiss the plaintiffs' negligence claim that see's first amendmentchallengescannotpreserveplaintiffs' ownestablishment clause recognized by international law and to ensure that this international standard would be head of the roman catholic church, an international religious organization."). that fits within one of the exceptions outlined under fsia. see 28 u.s.c. � 1605(a).4 separate, non-sovereign function as an unincorporated association and as head of an manner of a private player within it, the foreign sovereign's actions are (2007) (quoting alfred dunhill of london, inc. v. republic of cuba, 425 u.s. 682, 711 conclude that, at this stage of the litigation, the plaintiffs' claims of violation of justiciable political question. they rely on the following language: "it has been specifically decided that intentional wrongs of the agent were calculated to advance the cause of the principal or instrumentalities some present `protection from the inconvenience of suit as a gesture of comity.'" of the power of its police by the saudi government, and however the republic of ghana, 165 f.3d 193, 200 n.4 (2d cir. 1999) ("the fsia house report employees who, pursuant to the 1962 policy, violated the terms of the relevant both limiting principles apply to plaintiffs' attempt to invoke the commercial 729 f.2d 641, 646 (9th cir. 1984) (abrogated on other grounds by joseph v. office of "commercial" within the meaning of the fsia. moreover, because the finds support in the supreme court's decision inameradahessshipping: "the exception app. lexis 26266 (9th cir. sept. 19, 1997) (dismissing claims of intentional infliction in conclusion, we also note that we believe the foregoing analysis to be satisfying kentucky's causation requirements. burden of proof of establishing a prima facie case that it satisfies the fsia's definition this claim against the holy see itself, stating that "a special legal relationship existed because the plaintiffs can only bring suit against the holy see in its capacity as the holy see as a foreign sovereign, this court should not apply fsia. this argument also fails. first, as as stated in 28 u.s.c. � 1604, "a foreign state shall be immune from the and may not be raised on appeal." thurman v. yellow freight sys., 90 f.3d 1160, 1172 the relevant foreign sovereign. because the united states currently has diplomatic relations with the holy see 28 u.s.c. � 1330(a). title 28 u.s.c. � 1605(a) provides the following relevant recognized as a sovereign by the united states government." 402 f.3d at 284 n.6. from the purpose of the commercial activity exception � to encapsulate the restrictive plaintiffs advance the following claims: violation of customary international law of on the legislative history of the fsia for such comparison. see, e.g., cabiri v. gov't of 2) negligence(class i claimiii, class ii claimii): plaintiffs present three grounds and other holy see personnel were a substantial factor in causing plaintiffs' damages, sovereign, recognized by the united states government, and second, an unincorporated exceptions to fsia, the burden then shifts to the party asserting immunity to prove that to nationwide class action lawsuits, requiring courts to engage in individualized choice of law analysis for activity, stating that 1127 (d.c. cir. 2004) ("[i]f the defendant challenges only the legal sufficiency of the cases); see also ungar, 402 f.3d at 283 (noting that fsia's legislative history makes it id. at 363. tort. determination of which by the political departments conclusively binds the courts; and that recognition by congressintendedtoadoptthe"restrictivetheory" of sovereign immunity, "under which plaintiffs' argument fails under either construction. with respect to the first the district court determined that the "commercial activity" exception did not apply, of two arguments. the first possible interpretation of plaintiffs' argument is that they committed by the bishops and archbishops occurred entirely within the united states. moreover, by the employer over the individual or individuals in question. in their complaint, customary international law of human rights, negligence, and breach of fiduciary duty 9 consulate gen. of nig., 830 f.2d 1018, 1026 (1987)) ("[i]f plaintiffs allege at least one outside the territory of the united states in connection with a commercial ca�000489-mr, 2008 ky. app. lexis 177 (ky. ct. app. june 6, 2008). we therefore the sufficiency of the pleading." id. and, "[w]hen reviewing a facial attack, a district alleged sexual abuse of priests and that they failed to act on that knowledge. in doing (b) caused by an act or omission provides that `the exceptions provided in subparagraph[] . . . (b) of section 1605(a)(5) nos. 07-5078/5163 o'bryan, et al. v. holy see page 25 iv. ensuring that essentially private activities would be actionable under the fsia - economicconditions,individualbackgrounds,office diversity, experience and employer employees are sufficient for the purposes of notice pleading: "a complaint that generally alleges an justice," united states v. chesney, 86 f.3d 564, 567-68 (6th cir. 1996) (internal quotation marks and jurisdiction over plaintiffs' claims because the holy see is immune from suit as a foreign respect to the holy see's status as a foreign state and the constitutionality of the fsia. for u.s. 349 (1993). in nelson, the plaintiff, a united states citizen and a former employee 28 u.s.c. � 1603(d). in addition, "the commercial activity relied upon by plaintiff for action suit. under phillips petroleum co. v. shutts, 472 u.s. 797 (1985), due process requirements apply plaintiffs had made good faith attempts to perfect service of process, it would grant them withdraws immunity in cases involving essentially private commercial activities of engages in trade and traffic or commerce. michael j. turner, the supreme court applied theweltover standard in saudi arabia v. nelson, 507 complaint. - that the government was negligent in its failure to warn him of the undisclosed dangers leather co., 246 u.s. 297, 303 (1918). more importantly, "the principal purpose of foreign sovereign conduct or particular transaction or act, rather than by reference to its purpose." state substantive law: "where state law provides a rule of liability governing private actor not been negligent. . . . the negligence must also be a substantial factor in bringing foreign state within the meaning of fsia. (appellee's br. 21 ("the holy see, as state under kentucky law, for alleged conduct to be considered within the scope of under respondeat superior." cornejo-ramirez v. james g. garcia, inc., 2000 u.s. dist. lexis 20064, at 14 douglas n. letter, united states department of justice, washington, d.c., _________________ determination regarding whether the holy see is a foreign sovereign because such an issue is a non- "section 1605(a)(5) is limited by its terms . . . to those cases in which the damage second, the weltover and nelson cases also instruct courts to avoid the artful nos. 07-5078/5163 o'bryan, et al. v. holy see page 17 alternative capacity approach. as the supreme court has explained, by enacting fsia, office of consulate gen. of nig., 830 f.2d at 1026 (9th cir. 1987). a general principle of international law, "recognition is retroactive in effect and validates all the actions complaint is the manner in which plaintiffs have pled their claims. in their complaint, e. poppe serve as the representatives of class i, which "consists of all persons who have not united states. see, e.g., asociacion de reclamantes v. united mexican states, 735 f.2d agency relationship." argued: march 18, 2008 on june 4, 2004, plaintiffs, who claim to have been victims of sexual abuse by factual allegations as true and determine whether they bring the case within any of the also, for the conduct of bishops and archbishops and other holy see personnel and conduct of the government so recognized from the commencement of its existence." oetjen v. cent. court takes the allegations in the complaint as true . . . . if those allegations establish the structure and intent of the fsia also counsel us to reject the plaintiffs' . . . for these reasons, the supreme court has stated "[w]e think that the text and to authorities . . . is conduct which is so outrageous and extreme in that the fsia does not immunize the holy see from suit on the grounds alleged in their secrecy on the handling of clergy sexual abuse matters. . . . this secret their tortious supervisory conduct over the allegedly abusive clergy. cir. 2005). legislative text issued by the congregation of the holy office and in addition, the gravaman of plaintiffs' claims is the tortious conduct of priests the district court also found that it had subject matter jurisdiction over because "the entire tort would not have occurred [in the united states]"); kline v. of the corporation was a foreign state) (abrogated on other grounds by republic of arg. v. weltover, inc., the united states prohibiting the disclosure of the identity and existence test: to 28 u.s.c. � 1605(a)(2); or (3) the money damages that are sought are for personal of the tortious activity exception. id. at 441. courts in both the second and d.c. (a) any claim based upon the exercise or performance or in doing so, the district court concluded that plaintiffs had sufficiently pled that the andheadofaninternationalreligiousorganization only." finally, plaintiffs, on behalf is to apply, the entire tort must be committed in the united states."); see also burnett v. abuse leveled against clergy: 13 the first inquiry is whether the challenged action involved an element of stem from the promulgation of the purported 1962 policy by the holy see. indeed, in consideration of numerous factors, including budgetary constraints, public perception, discretionary function exception, courts typically apply the interpretation of the of the vatican, meets the[] requirements [of the restatement standard]")). see also dale both the holy see and the united states argue that this court should refrain from making a following the 1962 policy cannot, on the pleadings in plaintiffs' complaint, be deemed abusive roman catholic priest, agent, servant or employee was acting within the scope of typically adopt one of two approaches. a number of courts have looked to the criteria the second inquiry is whether that choice or judgment is of the type burden of proving by a preponderance of the evidence that the exception does not a number of courts have applied the berkovitz test to cases of negligent hiring, to prevent judicial `second-guessing' of legislative and administrative we next address the holy see's contention that the district court misapplied the concluding that the selection of employees, officials and officers typically falls within substantial cause of the alleged abuse; the conduct occurred in the united states; the infliction of emotional distress. in addition, plaintiffs advance claims of deceit and cross-appeal.7 8 the united states or of the states in any case � could still retain immunity if it could "prove that the exceptions do not apply." id. at in determining whether the tortious act exception applies, courts, as a rule, apply - serve as reasons to avoid the fsia altogether. the exceptions to fsia capture all see, e.g., ams. united for separation of church & state v. reagan, 786 f.2d 194, 197 (3d cir. evidence, that at least one of the fsia exceptions applies. once the plaintiff offers dismiss for lack of subject matter jurisdiction pursuant to federal rule of civil complaint. compl. � 22 ("at the same time, and wholly distinct and separate from its of a foreign state; once this prima facie case is established, the burden of production exception foreign state or of any official or employee of that foreign state on behalf of class ii, plaintiffs outline in their complaint the following causes priest, which authority was granted to him by the defendant, holy see. supervision on the part of high school faculty which resulted in the death of a student it also appears that the plaintiffs have abandoned this claim by stating in their response to the information regarding the whereabouts of the plaintiffs' relatives. see cabiri, 165 f.3d representatives. accordingly, the court will not make a choice of law determination that will bind the acting in a non-sovereign capacity when it engaged in the conduct alleged in plaintiffs' objectives, and are of the nature and quality that congress intended to shield from tort permanent population, under the control of its own government, and that engages in, or and employer intuition. these multi-factored choicesrequirethebalancingofcompeting agent's performance of work . . . ." papa john's int'l, inc. v. mccoy, 2008 ky. lexis ii, class ii claim i): plaintiffs plead this claim against the holy see itself, stating that claims fell within the exceptions to the immunities granted foreign states under fsia. effect in the united states; her employment." papa john's int'l, 2008 ky. lexis 16, at *28-*29. "in the area of or performance or the failure to exercise or perform a discretionary function" or exceptions, however, permit a foreign sovereign to be sued in a court within the united appellate claim can be regarded as `inextricably intertwined' with a properly reviewable claim only if the regarding its status as a foreign sovereign. the united states took no position on the courts can consider the conduct of the holy see in order to determine whether the type of conduct alleged state; or upon an act performed in the united states in connection with regardless, as the court noted in ungar, when both standards lead to the same apply. moreover, given the relatedness of the two exceptions, judicial economy would counsel hearing nos. 07-5078/5163 o'bryan, et al. v. holy see page 28 of fiduciary duty; and the tort of outrage/intentional infliction of emotional distress. in applied as a matter of discretion; rather, such jurisdiction only may be exercised when the appealable issue because, however, there are exceptions to the tortious act exception, our inquiry the exceptions do not apply." o'bryan v. holy see, 471 f. supp. 2d 784, 791 (w.d. ky. plaintiffs allege facts that demonstrate that the holy see exercised a significant degree however nefarious, to give its citizens in the united states full or truthful information because "sovereign immunity is an immunity from trial, not just a defense to plaintiffs' argument remains somewhat obscure. as noted, plaintiffs admit that lena, berkeley, california, r. gregg hovious, john david dyche, fultz, maddox, circuits have interpreted this requirement to mean that the "entire tort" must occur in the of class i, request injunctive relief. o'bryan ii, 471 f. supp. 2d at 789, a determination that the plaintiffs contest in their of its agents. thus, respondeat superior will factor in to our discussion of the other claims advanced by 5 there must be a connection between that activity and the act complained of in the theories of liability not only on the actions of the holy see itself, but also on the acts of in the proceedings before the district court, the holy see filed a motion to exception is an unsettled matter. courts generally have looked to the definition of catholic priest, cleric, agent or employee . . . ." all three representatives were residents of although this court "may exercise [its] discretion to review an issue not raised below in these conclusions are not wholly dispositive, however, of the claims against the misrepresentation claims. however, the court will deny defendant's reflects current political realities and relationships, and aims to give foreign states and their purposes of the fsia to grant subject matter jurisdiction under the tortious activity so, it would seem that the complaint also pleads that conduct of the archbishops, bishops evidence that an exception to immunity applies, the party claiming immunity bears the role and activities as a sovereign, [the holy see] is an unincorporated association and exception to claims against the holy see stemming from the alleged abuse of the while the class remains a putative class, courts focus on the application of the forum's choice of law rules incidental to the conduct authorized." osborne v. payne, 31 s.w.3d 911, 915 (ky. and plaintiffs subsequently cross-appealed. in their final second brief, the plaintiffs 2001) (internal quotation marks and citation omitted). district courts have applied both to hold the defendant vicariously liable for the acts of its bishops and archbishops who, following the (1) "occurring in the united states"; (2) "caused by [a] tortious act or omission"; or employee of that foreign state"; and (4) those acts or omissions were done within the i. entire tort occurring in the united states, they may claim under section 1605(a)(5)."). (appellee's br. 21 (emphasis added)). despite this strict standard for pendent jurisdiction, we conclude that pendent jurisdiction should on april 4, 2005, the holy see filed a motion to dismiss on the grounds that the human rights; negligence; breach of fiduciary duty; and the tort of outrage/intentional 313 f.3d 70, 85 (2d cir. 2002). according to kentucky's choice of law rules, kentucky law would apply follows: roman catholic clergy, filed a class action suit against the holy see. the holy see is both names the "louisville corporation" as one of the agents of the holy see having engaged in the tortious injury or death, or damage to or loss of property, occurring in the the analysis in weltover and nelson points to two distinct limitations on the andofficersfallssquarelyundertheftca's discretionary functionexception);burkhart cir. 1995). establishment clause. because the plaintiffs' new contentions amounted to a challenge upon release, the plaintiff filed suit against the saudi government, alleging, inter alia, territory of the united states in connection with a commercial ultimate issue: whether the true essence of the complaint is commercial. the holy see contends that this burden-shifting process was misapplied by the in which private individuals engage; if the activities in question are not private, but activity exception in our own case. on one front, all of the claims advanced by plaintiffs 504 u.s. 607 (1992)); gen. elec. capital corp. v. grossman, 991 f.2d 1376 (8th cir. 1993) (same). and they do arise out of misrepresentation or deceit.15 plaintiffs, however, contend that the "holy see . . . . as the head of the roman document was first discovered and made public in july, 2003 by news media but the individualized choice of law analysis is only necessary once the class seeks certification. by the united states government, but a parallel non-sovereign entity conjured up by the [t]heintentionalconductallegedhere(the saudigovernment'swrongful the scope of the ftca's discretionary function exception. see, e.g., united states v. as a claim of failure to warn, simply by charging the defendant with an catholic church, . . . has no defined territory and no permanent population, and thus klieman v. palestinian auth., 424 f. supp. 2d 153, 158-59 (d.d.c. 2006) (collecting nelson, 507 u.s. at 363. here, plaintiff's complaint does not allege not intend to be brought against a foreign sovereign." see leutwyler, 184 f. supp. 2d misconduct was committed with the apparent authority arising from this employment and/or 1996) (stating that "the fsia thereby operates as a `pass-through' to state law united states . . . arising out of sexual abuse he or she suffered at the hands of a roman nos. 07-5078/5163 o'bryan, et al. v. holy see page 13 cannot survive against the holy see for the conduct of its allegedly abusive priests capacity as an unincorporated association and head of an international religious organization only." nature. thus, the southern district of new york has explained that "nelson rest[s] on which liability is imposed under domestic tort law." id. at 439-40 (citing h.r. rep., at to, among other things, refuse to report childhood sexual abuse committed f.3d 492, 496 (8th cir. 1995) ("the post office's choice between several potential id. at 942. in other words, the doe court did not rely on the public-private inquiry, but republic of austria v. altmann, 541 u.s. 677, 696 (2004) (emphasis in original) (holding that fsia can principles"). thus, "[a]s a general rule, state law should provide a cause of action terms of the actions of the louisville corporation. and, the holy see believes that corporate law prevents employeesinvolvestheweighingofindividualbackgrounds,officediversity,experience premised upon the supervision of the allegedly abusive clergy do not implicate the turner serves as the representative of class ii, which "consists of all persons who have recast virtually any claim of intentional tort committed by sovereign act (s.d.n.y. 2005) (collecting second circuit cases). but see olsen v. gov't of mexico, a foreign state and an unincorporated association and the central government of an `who is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political question, the the failure to exercise or perform a discretionary function (b) any claim arising out of malicious prosecution, abuse nos. 07-5078/5163 o'bryan, et al. v. holy see page 29 [t]he supreme court has counseled courts not to lose sight of the argument in their briefs before this court. his employment, as part of an agency relationship with the defendant, holy see, and the commercial activity exception in circumstances similar to our own. in doe v. holy see, instead, at the heart of plaintiff's complaint is the injury inflicted by a the party claiming immunity under fsia retains the burden of persuasion throughout in all cases, plaintiffs allege that the sexual molestation in question "occurred while the 1517, 1524-25 (d.c. cir. 1984) (rejecting application of the tortious activity exception this process. id. first and contrary to the holy see's protestations, plaintiffs have pled both that v. archbishops and other holy see personnel while engaged in the supervision of allegedly the pleadings, holy see employees. james h. o'bryan, donald e. poppe, and intentional torts, the focus is consistently on the purpose or motive of the employee in claims would appear to no longer be relevant. moreover, plaintiffs admit as much in their response to the decisions grounded in social, economic, and political policy through the appeal from the united states district court appeal the district court's partial grant of the holy see's motion to dismiss. plaintiffs claim upon the acts of the holy see that occurred abroad.11 would have occurred abroad. matter jurisdiction. the holy see contends that the district court has no subject matter defendant holy see failed to provide safe care of children entrusted to v. concerning its operations"); kozorowski v. russian fed'n, no. 93-16388, 1997 u.s. 9 (applying the two-part berkovitz test to the fsia's discretionary function exception). however, "[a] principal is not liable under the doctrine of respondeat superior unless the the holy see, a single entity, a foreign sovereign in this case because the holy see was (d) scope of employment nos. 07-5078/5163 o'bryan, et al. v. holy see page 12 defendant's motion to dismiss. by a roman catholic priest in the 1920s, while plaintiff was under the care, children in a position of peril, is a gross violation of well-established, legal cause," which is defined as "a finding of causation in fact, i.e., substantial cause, of the 1962 policy because the promulgation itself occurred abroad. in addition, it as representatives, the plaintiffs allege the following underlying facts in support of to the inescapable conclusion that the alleged acts of sexual abuse were not done while 1 exception to apply, the tortious acts in question must have occurred in the united states. the holy see contends that plaintiffs failed to identify specifically which clergy engaged in the `inextricably intertwined' with matters over which the appellate court properly and independently has for the western district of kentucky at louisville. correspond to many of the claims with respect to which the u.s. government retains misrepresentation against the holy see "in itscapacityasanunincorporatedassociation [t]he instructions, mandates and dictates of the defendant, holy see in jurisdiction attaches because (1) the holy see has waived its immunity pursuant to the motive behind them) are the type of actions by which a private party emphasize the force of the purported policy and the potential for sanction if holy see determination ofwhich by the legislative and executive departmentsofanygovernmentconclusively binds applies to the allegations."). therefore, any portion of plaintiffs' claims that relies upon acts committed by the holy federal, or international law. in march, 1962, the holy see privately may be argued that a foreign state, for purposes of the fsia, is an entity that has been alternatively, assuming that the holy see is not a "foreign state" within the regarded as utterly atrocious in a civilized society. in determining whether particular conduct falls under the ftca's, and in turn resemble claims brought by the plaintiffs in cabiri and kozorowski. see, e.g., williams argued: jeffrey s. lena, law offices of jeffrey s. lena, berkeley, california, seek redress via one of the fsia's exceptions. the supreme court has further analyzed the statutory definition of commercial state's immunity for traffic accidents and other torts committed in the united states, for jurisdiction of the courts of the united states and of the states except as provided in (applying new york law); randolph v. budget rent-a-car, 97 f.3d 319, 326-27 (9th 200 (6th cir. 2004). allegedly negligent in their supervision of abusive clergy. however, the claims of ("[i]n the case at bar the court has not yet certified plaintiffs as class representatives. therefore, nothing hovious & dickens, louisville, kentucky, for appellant. william f. mcmurry, of the fsia's constitutionality, the united states, pursuant to 28 u.s.c. � 2403(a), justice'"). to serve as a basis for jurisdiction under the tortious act exception, these bishops, even though the underlying conduct was intentional. osborne, 31 s.w.3d at 915. holy see's motion to dismiss "[t]he plaintiffs' complaint also identifies claims for intentional infliction capacity does not apply here, those claims are no longer at issue). the basis for the discretionary function exception was congress' desire response brief includes no such constitutional claims. plaintiffs' response to the holy definition of employee when addressing claims of vicarious liability: "an employee is 10 (1) in which the foreign state has waived its immunity either holy see was in fact a "foreign state" within the meaning of the fsia. in turn, the 1237, 1243 (2d cir. 1991) (relying primarily on the restatement standard for of human rights, and claims under the doctrine of respondeat superior. contrary, courts have generally treated the holy see as a foreign state for purposes of the tortious act exception, the "entire tort" must occur in the united states. this position section 1605(a)(5)(a), directs us to the ftca." olsen, 729 f.2d at 646 (citing h.r. plaintiffs. claim. thus, plaintiffs waived their constitutional challenges to the fsia.5 circumstances." first nat'l city bank v. banco para el comercio exterior de cuba, (2) in which the action is based upon a commercial activity exception, the kentucky supreme court's holding in osborne, 31 s.w.3d at 915, leads "in its capacity as an unincorporated association and head of an international religious fact that work is performed gratuitously does not relieve a principal of liability." id. money damages are sought against a foreign state for personal private parties can engage in commerce. foreign sovereign immunity. united states engaged in the supervision of the allegedly abusive priests. these portions commercial conduct or a particular commercial transaction or act. the commercial 1984,2 - noted above, under kentucky law, this inquiry focuses on the degree of control exercised conclusion, courts need not choose as "all roads lead to rome." id. a foreign state shall not be immune from the jurisdiction of courts of the duty (insofar as that breach involved the failure to report and the failure alleged abuse. "[i]n fsia cases, we use the forum state's choice of law rules to resolve `all issues,' except (c) official or employee of a foreign state respondeat superior is not a cause of action. it is a basis for holding the holy see responsible for the acts holy see itself or the allegedly abusive conduct of priests. all of plaintiffs' claims also on the grounds that there was no subject matter jurisdiction in the instant case. in its tortious act exception to the fsia's grant of immunity cannot apply to permit suit jurisdictional purposes must be also the activity upon which the lawsuit is based; that is, employee element of the tortious activity exception.12 "state law, not federal common law, governs whether an officer's or employee's susceptible to policy judgment. the hiring decisions of a public entity require activity of the foreign state elsewhere; or upon an act outside the 2 vii. allegations regarding the purported policy of the holy see towards accusations of sexual sovereign in nature, then the commercial activity exception will not apply. this flows between the plaintiffs and the defendant holy see, in the nature of a fiduciary regardless of whether the discretion be abused, or about the plaintiff's harm." id. (quoting restatement of torts (second) � 431, cmt. a). "foreign state" within the meaning of 28 u.s.c. � 1603, plaintiffs claim that federal instances where congress has deemed conduct, if pursued by a foreign sovereign, that congress did not intend to be brought against a foreign sovereign." leutwyler v. a broader principle, directing district courts first to ascertain the claim's gravamen to nos. 07-5078/5163 o'bryan, et al. v. holy see page 23 dist. lexis 19577, at *9-*10 (e.d. mich. 1990) (concluding that the commercial because the acts of alleged abuse did not occur within the scope of employment. in were expressly brought against the defendant only in its capacity as an unincorporated association and carried on in the united states by the foreign state; or upon an act against the holy see for sexual abuse by its clergy, even if the other requirements for its v. bank of china, 506 f.3d 980, 983 (10th cir. 2007) ("the fsia's commercial activity pendent claim `is coterminous with, or subsumed in, the claim before the court on interlocutory appeal.'" 2000). thus, "[u]nder the doctrine of respondeat superior, an employer can be held states also intervened as an amicus curiae supporting the position of the holy see thwart the act's manifest purpose to codify the restrictive theory of specifically approved by pope john xxiii � imposes the highest level of in determining whether a particular entity constitutes a "foreign state" courts to contravene the executive branch's recognition of the holy see as a foreign sovereign. instead, they the commercial activity exception "reflects the `restrictive' theory of sovereign subject matter jurisdiction, lack of personal jurisdiction, insufficient process and also goes by the name "holy see" or that the conduct of the holy see rendered it a private actor in this determining whether he or she was acting within the scope of employment." id. at *29. activity of the foreign state elsewhere and that act causes a direct (b) arisingoutofmisrepresentationordeceitexceptions rakes v. life investors ins. co. of am., 2007 u.s. dist. lexis 52719, at *33 (n.d. iowa july 20, 2007) republic of arg., 504 u.s. at 614 (internal quotation marks and citations omitted). by determination that the holy see now appeals. we will consider the application of the in addition, both the second and ninth circuits have dismissed claims against ii. in contrast tocabiri and kozorowski, plaintiffs' claimsare notbest characterized 4 conduct; in turn, the holy see argues that all of the allegations in the complaint can only be analyzed in explicitly or by implication, notwithstanding any withdrawal of plaintiffs-appellees/cross-appellants, of pedophiles and sexual predators under its control, thereby placing 193, 200 (dismissing claim "for emotional injury caused by the refusal of a foreign state, nos. 07-5078/5163 o'bryan, et al. v. holy see page 7 united states court of appeals for the foregoing reasons, we affirm the district court's partial grant of "defendant breached fiduciary duties owed to the plaintiffs," premised upon the "duty the acts and omissions of the defendant, holy see alleged herein, to or loss of property occurs in the united states." amerada hess shipping corp., 488 file name: 09a0044a.06 1291." keller, 277 f.3d at 815. in order to hear plaintiffs' cross-appeal, this court would have to exercise is important to note that at this point in the litigation, the court has not certified the plaintiffs as class relations, and bestiality. this document [the "1962 policy"] � an official "impose[d] the highest level of secrecy on the handling of clergy sexual abuse matters." catholic priest, cleric, bishop, archbishop, cardinal, agent or employee . . . ." michael j. these two issues together. cf. rendall-speranza v. nassim, 107 f.3d 913 (d.c. cir. 1997) (exercising 2352, 2357 (2007) (quoting alfred dunhill of london, inc. v. republic of cuba, 425 u.s. applicability of the statutory exceptions to immunity with respect to plaintiffs' claims. as stemming directly from the misinformation disseminated by the holy see. instead, "review[s] de novo questions of subject matter jurisdiction." bauer v. rbx indus., 368 performed in the united states in connection with a commercial does not end here. if the tortious act in question was either (1) "based upon the exercise on january 10, 2007, the district court determined that plaintiffs had perfected school by a foreign government is by its very nature a sovereign function, incapable of custody, authority, control and influence of an abusive roman catholic nos. 07-5078/5163 o'bryan, et al. v. holy see page 8 decided and filed: february 10, 2009 explained that "once the asserted allegations bring claims within the statutory these departments is retroactive and validates all actions and conduct of the government so recognized the fsia does not define "discretionary functions." to interpret the fsia's (quoting berkovitz v. united states, 486 u.s. 531, 536 (1988)); rodriguez, 297 f.3d at kuwait v. rafidain bank, 15 f.3d 238, 241 (2d cir. 1994); see also orient mineral co. 14). thus, it seems most in keeping with both supreme court precedent and the pursuant to the fsia, a plaintiff can establish subject matter jurisdiction over a nos. 07-5078/5163 o'bryan, et al. v. holy see page 6 prosecution and directives prohibiting the reporting of child sexual abuse before: martin, gibbons, and griffin, circuit judges. determine whether the fsia plaintiff is simply using creative nomenclature as a berkovitz, 486 u.s. at 536-37 (internal quotation marks and citation omitted). the district court summarized its holdings as follows: we next turn to considering whether the surviving theories of liability, as "[p]laintiffs cite no authority for the proposition that the holy see may be sued in a aforeignsovereign,thedistrictcourthassubject matter jurisdiction over the dispute only instead it examined the "gravaman" of the claims advanced by the plaintiff. see vicariously liable for an employee's tortious actions if committed in the scope of his or complaint . . . it would have been incumbent upon [defendant] to respond to those head of an international religious organization. in light of the [district] court's previous ruling that such citation omitted), we see no such exceptional circumstances in this case. nos. 07-5078/5163 o'bryan, et al. v. holy see page 9 11 nos. 07-5078/5163 o'bryan, et al. v. holy see page 22 provide safe care amounts to a claim for negligent hiring. o'bryan ii, 471 f. supp 2d according to the allegations in plaintiffs' complaint, theories of liability the holy see argues that this court has no jurisdiction to hear plaintiffs' cross-appeal. this the supreme court in berkovitz explained the rationale behind the discretionary first circuit noted in ungar, "the restatement standard . . . is not inevitably correct. it immediately appealable under the collateral order doctrine as a final decision, pursuant to 28 u.s.c. � however, although the four requirements are met for these claims, we must still fsia's burden-shifting process. arguing that the discretionary function exception did not apply, plaintiffs themselves claim iv): plaintiffs plead this claim against the holy see itself, stating: thus, if plaintiffs believe that the holy see acted in a private capacity, then the district court found that plaintiffs had not satisfied the service of process requirements vi. individuals, the fsia requires the application of that rule to foreign states in like 28 u.s.c. � 1605(a)(1); (2) the holy see was acting in a commercial capacity pursuant nos. 07-5078/5163 o'bryan, et al. v. holy see page 11 plaintiff's jurisdictional allegations, then the district court should take the plaintiff's pursuant to the 1962 policy, violated the terms of the relevant international laws through (plaintiff's complaint, introduction.) on behalf of class i, plaintiffs outline in their (d. or. 2006) (applying fsia's foreign state status to the holy see). consequently, we the judges, as well as all other officers, citizens and subjects of that government.'" oetjen, 246 u.s. at 302 priest, which authority was granted to him by the defendant, holy see. *13 (d. ariz. 2000) (also noting "[t]he court is required to examine plaintiffs' complaint under the addition, plaintiffs advance claims of deceit and misrepresentation against the holy see nos. 07-5078/5163 o'bryan, et al. v. holy see page 26 nos. 07-5078/5163 o'bryan, et al. v. holy see page 5 under the fsia's, discretionary function exception, courts apply the two part berkovitz liability." (internal quotation marks and citation omitted)); cf. carlyle v. united states, archbishops, and other clergy of the roman catholic church are employees of the holy by priests to criminal or civil authorities, even where such failure to report (a) "occurring in the united states" without becoming entangled in a non-justiciable political question. see,e.g., gould, inc. v. pechiney ugine we must consider the elements of the exception, applying kentucky state law where recommended for full-text publication ii. exceptions to the tortious act exception discretionary function exception to the tortious act exception because the terms of the a. the commercial activity exception the waiver which the foreign state may purport to effect except in for intervenor. to the plaintiff to show, either by the allegations in the complaint or by extrinsic the clergy. the court also will dismiss plaintiffs' deceit and looking first to the fourth requirement for the application of the tortious act > circulated a document containing a set of procedural norms for dealing with or judgment was one involving social, economic or political policy. activity exception did not apply because "[t]he granting of accreditation to a private and there is no dispute between the parties that the state of the vatican is a plaintiffs assert in their complaint that federal subject matter jurisdiction exists while plaintiffs raised the waiver exception in their complaint, they have abandoned this of the 1962 policy because the promulgation itself occurred abroad. however, this claim state of the vatican, meets the[] requirements [of the restatement standard]," but the intervened as a matter of right to defend the constitutionality of the fsia. the united "holy see . . . . as the head of the roman catholic church, . . . has no defined territory to allow plaintiffs to obtain jurisdiction under the commercial activity exception through nos. 07-5078/5163 o'bryan, et al. v. holy see page 31 we join the second and d.c. circuits in concluding that in order to apply the nos. 07-5078/5163 o'bryan, et al. v. holy see page 18 upon a commercial activity carried on in the united states by the foreign we conclude that the district court correctly applied the fsia's burden shifting 12 moran v. kingdom of saudi arabia, 27 f.3d 169, 173 (5th cir. 1994) (applying in the united states . . . . of public policy. priest, which authority was granted to him by the defendant, holy see. employer's negligence need not specifically identify each employee involved to hold the employer liable "even if the [plaintiffs] had presented nothing more than the allegations in their a roman catholic priest in the mid 1970s, while plaintiff was under the care, purposes of the fsia); english, 676 f. supp. at 764 (concluding that the vatican is a see supra n.1. apply." (internal citations and quotation marks omitted; emphasis added)). their suit. application are met. d.c., for intervenor. on brief: jeffrey s. lena, law offices of jeffrey s. at hand cannot be resolved without addressing the nonappealable collateral issue." id. reject plaintiffs' contention that they are not suing the holy see that has been recognized insufficient service of process. in its memorandum and opinion of october 7, 2005, the soldiers and therefore arose out of misrepresentation and deceit). plaintiffs do not seek to hold the defendant vicariously liable for the acts of its priests; rather, they seek 676 f. supp. 761, 764 (s.d. miss. 1987) (same).3 procedure 12(b)(1). this motion presented a facial attack to plaintiffs' complaint. however, the choice of law inquiry is complicated by the fact that the case before is us is a class employment. holy see are alleged to have provided inadequate supervision over those under its care. tortious act occur in the united states and within the scope of employment. failure to report. the failure to warn and failure to report prongs of the negligence claim of process, libel, slander, misrepresentation, deceit, or as a result, because we have determined above that the holy see cannot be sued in such a capacity, these plaintiffs contend that this required secrecy prohibited holy see personnel from, among custody, authority, control and influence of an abusive roman catholic whether they arise out of misrepresentation or deceit. injuries stemming from the holy see's tortious conduct pursuant to 28 u.s.c. plaintiffs james h. o'bryan, donald e. poppe, and michael j. turner ("plaintiffs") cross- action for an employee to follow." if choice or judgment is exercised, 16, at *16 (ky. 2008) (quoting restatement (third) of agency � 707).9 as noted above, the class representatives all resided in the state of kentucky at the time of the alternative-capacity argument can only succeed to the extent that it identifies conduct misrepresentation in the ftca as a guide for defining the term under the fsia, relying of immunity would not include any theory of liability premised on the holy see's own conduct was within the scope of employment; and these individuals were, according to dep't of army, 674 f.2d 554, 557 (6th cir. 1982) ("any decision to supervise [army federal courts have consistently applied the fsia's burden-shifting process to determining whether the appellee was a "foreign state" under fsia). however, as the u.s. at 439 (emphasis omitted). thus, in contrast to the commercial activity exception, is whether the particular actions that the foreign state performs (whatever international religious organization." o'bryan i, 490 f. supp. 2d at 830. to the accordance with the terms of the waiver;6 352-54. in finding that the saudis' conduct was not commercial in nature, the supreme be exercised in this case. plaintiffs seek to challenge the district court's ruling on the applicability of the exception only to torts which were entirely committed within the united states. including the concealment of its policy of harboring and protecting its the holy see appealed the district court's order denying, in part, its motion to dismiss whether the foreign government is acting with a profit motive or instead nos. 07-5078/5163 o'bryan, et al. v. holy see page 16 we next consider the plaintiffs contention that the fsia, as applied to the holy fsia's burden-shifting process. "the party claiming fsia immunity bears the initial the difficulty in applying the elements of the tortious act exception to plaintiffs' 12(b)(1). cf. gentek bldg. prods., 491 f.3d at 330 ("where . . . there is a factual attack thus, they do not dispute that the entity recognized by the united states government as see abroad cannot survive. for example, the tortious act exception to the fsia's grant _________________ humanrights,negligence,breachoffiduciary duty,tort ofoutrage/inflictionofemotional for negligence in their complaint: failure to provide "safe care"; failure to "warn"; and complaint and thus the district court does in fact have subject matter jurisdiction in this case. standard set forth in fed r. civ. p. 8(f) that `all pleading shall be so construed as to do substantial would itself be a criminal offense. (6th cir. 1996). similarly, "vague references fail to clearly present the objection in the of action: violation of customary international law of human rights; negligence; breach immunity has never been to permit foreign states and their instrumentalities to shape their conduct in obligation to announce its own tortious propensity before indulging it. to against a foreign nation in a section 1605(a)(7) claim [under the tortious act this claim does not survive against the holy see as it pertains to the actual promulgation monstrous such abuse undoubtedly may be, a foreign state's exercise of mississippi law) (citing first nat'l city bank v. banco para el comercio exterior de al baraka inv. & dev. corp. (in re terrorist attacks), 349 f. supp. 2d 765, 795 action is within the scope of employment in determining the applicability of the fsia." degree, as to go beyond all possible bounds of decency, so as to be (citing ohio nat'l life ins. co. v. united states, 922 f.2d 320, 325 (6th cir. 1990)). "a as this court has previously noted, "rule 12(b)(1) motions to dismiss for lack of 324, 328 (1937) ("[t]hat who is the sovereign of a territory is not a judicial question, but one the applied in federal litigation"); morgan guar. trust co. v. republic of palau, 924 f.2d kuhlmann, 853 f.2d 445 (6th cir. 1988) (agreeing with the district court's determination that the (a) discretionary function exception to the tortious act misrepresentation-or-deceit exception. survive because they are premised on the conduct of holy see employees who were employees chose not to comply. organization only." finally, plaintiffs, on behalf of class ii, request injunctive relief. evaluating motions to dismiss pursuant to rule 12(b)(1) and take the factual allegations ("if the foreign state makes [the "foreignstate"] showing, the burden of production shifts the holy see, as state of the vatican, is a foreign state within the meaning of fsia. protectsonlygovernmentalactionsanddecisionsbasedonconsiderations applicable.8 interference with contract rights . . . . in addition, and as already noted, tortious acts committed by bishops, attack." gentek bldg. prods. v. sherwin-williams co., 491 f.3d 320, 330 (6th cir. 2007) a roman catholic priest in the 1960s, while plaintiff was under the care, of a sovereign. permanent mission of india to the un v. city of new york, 127 s. ct. as noted above, the district court also correctly employed the fsia burden-shifting analysis meaning of 28 u.s.c. � 1603, plaintiffs assert that this court has subject matter kaneko, 685 f. supp. 386, 391 (s.d.n.y. 1988) ("if the non-commercial tort exception x universally recognized norms of international law of human rights. 1 employing this principle, the district of oregon has recently considered the an additional 60 days in which to perfect service. o'bryan v. holy see, 490 f. supp 2d commercial under the restrictive theory.theconductboilsdowntoabuse foreign sovereigns that have an impact within the united states." commercial bank of had declined to provide evidence to the contrary, the district would presume that the jurisdiction did not exist for a number of plaintiffs' claims, a number of the plaintiffs' appellees. lewis yelin, united states department of justice, washington, were appropriate to the normal scope of the operator's employment." osborne, 31 plaintiff, donald e. poppe, was sexually abused, molested and assaulted by priest's adulterous conduct could not be considered within the scope of his employment, leutwyler, 184 f. supp. 2d at 299. regardless of how the plaintiff phrased his international laws through their tortious supervisory conduct over the allegedly abusive rep. at 21); see also rodriguez v. republic of costa rica, 297 f.3d 1, 8 (1st cir. 2002); iii. limiting principles in instructive contexts. international religious organization, the roman catholic church. the united states has this paragraph shall not apply to � holy see is immune from suit pursuant to the fsia � also hinges on a finding that this exception does not (jure imperii) of a state, but not with respect to private acts (jure gestionis).'" nos. 07-5078/5163 o'bryan, et al. v. holy see page 10 considered the allegations in plaintiffs' complaint that a number of exceptions to fsia reviewed only for abuse of discretion." harper v. autoalliance int'l, inc., 392 f.3d 195, nos. 07-5078/5163 o'bryan, et al. v. holy see page 19 (d.d.c. 2005). therefore, to determine the applicability of the tortious act exception, which was allegedly facilitated by the tortious conduct of holy see employees. thus a commercial activity of the foreign state elsewhere; or upon an act be kept under a cloak of complete secrecy, even if that secrecy violated state, exception]." damarrell v. islamic republic of iran, 2005 u.s. dist. lexis 5343, at *55 in this case on a number of grounds. first, plaintiffs advance claims of federal at 299. we therefore conclude that the commercial activity exception does not apply. "foreign state." see, e.g., ungar v. palestinian liberation org., 402 f.3d 274, 283 (1st see 28 u.s.c. 1605(a). for example, "[t]he `commercial activity' exception of the fsia in addition, "the 707-08 (9th cir. 1992)) (emphasis in original). the holy see, however, argues that the alternative � the two-entity alternative � the district court correctly noted that conclusions masquerading as factual conclusions will not suffice to prevent a motion to custody, authority, control and influence of an abusive roman catholic holding it liable for the actions of another corporate entity. however, this analysis begins with a faulty each plaintiff's claims and not just named plaintiffs. id. at 822-23. united states . . . arising out of sexual abuse he or she suffered at the hands of a roman liability on the merits, the denial of a claim of sovereign immunity is immediately [fsia] exceptions to immunity invoked by the plaintiff.") (quoting phoenix consulting, district court addressed the holy see's claim that the service of process had been powers of police and penal officers is not the sort of action by which pendent appellate jurisdiction pursuant to an interlocutory appeal of the denial of sovereign immunity expressed in this and other documents require bishops in the united states character of an activity shall be determined by reference to the nature of the course of clergy in the united states were holy see's employees; in turn, because the holy see 15 plaintiffs' claims regarding the liability of the holy see stem, in large part, fromtheir exceptions to a foreign state's immunity under the fsia: activity of the foreign state elsewhere and that act causes a direct effect iii. application of the tortious act exception to the instant case in connection with this inquiry. the district court of oregon considered the applicability of the commercial activity premise. plaintiffs pled repeatedly that the tortious acts of which they complain were also committed by plaintiffs' claims are more akin to claims of negligent supervision as employees of the clear that the "objective of the bill was to codify sovereign immunity doctrine as of emotional distress, fraud and deceit, conspiracy and other claims because they were hiring, training, and supervision choices that [the defendant] faces are choices putative members of the class."). we, in the instant case, need not engage in such an individualized in each of their claims, plaintiffs base their does survive against the holy see as it pertains to the conduct of its employees who, see, violates the establishment clause. hess shipping corp., 488 u.s. 428, 434 (1989); accord am. telecom co., l.l.c. v. states, to the same extent as any private individual . . . ."). in this way, congress as noted above, the commercial activity exception reads as follows: - the holy see's agents and employees. as a result, we must analyze each claim to see reliance on the promise of future immunity from suit in united states courts. rather, such immunity v. washington metro. area transit auth., 112 f.3d 1207, 1217 (d.c. cir. 1997) ("the of the plaintiff as true. see, e.g., siderman de blake, 965 f.2d at 708 n.9 (noting that cause of another's harm, it is not enough that the harm would not have occurred had the ________________________ foreign sovereigns where the foreign sovereign allegedly provided false or misleading plaintiffs are limited to arguing that an exception to the fsia applies; such claims cannot yanero v. davis, 65 s.w.3d 510, 528-31 (ky. 2001); nelson v. turner, no. 2007- on the subject-matter jurisdiction alleged in the complaint, no presumptive truthfulness various exceptions to sovereign immunity under the fsia in turn. exceptions. court analyzed nelson's claims as follows: corporation in question could qualify for foreign sovereign immunity status because the majority owner and the absence of a public policy rule of law which prohibits the imposition of shifts to the non-movant to show that an exception applies." keller, 277 f.3d at 815. not only which claims survive, but which parts of each claim survive. discretionary function and outside federal jurisdiction."). see, foreign sovereign immunity applies even to prior conduct. citizenry is . . . an area where sovereign activity is typically asserted"). at 793. and, as outlined above, claims of negligent hiring fall within the discretionary limited: "congress' primary purpose in enacting � 1605(a)(5) was to eliminate a foreign analysis of the term "commercial activity" under the fsia, the district court stated as (quoting jones v. united states, 137 u.s. 202, 212 (1890)); see also united states v. belmont, 301 u.s. (treating the vatican as a foreign state for the purposes of the fsia); english v. thorne, under the fsia). v. ky. dep't of educ., 113 s.w.3d 145, 148 (ky. 2003) (addressing claims of negligent 1) violation of customary international law of human rights (class i claim pleading of plaintiffs and look to the core of the activities alleged to be commercial in head of an international religious organization (appellee's br. 21 ("the holy see, as the alleged tortfeasors were acting within the scope of their employment. thus, the jurisdiction under the fsia, 28 u.s.c. � 1602 et seq. assuming that the holy see is a republic of leb., 501 f.3d 534, 538 (6th cir. 2007). this conclusion stems from the a tortious act having "direct effects" in the united states will not satisfy the requirements subject-matter jurisdiction generally come in two varieties: a facial attack or a factual complying with the alleged 1962 policy would fall within the scope of the bishops' and archbishops' recruits] only by means of letters and not to place personnel in the hotel was a facial motions to dismiss; in doing so, courts simply look to the general standards for states, 1997 u.s. app. lexis 35795, at *9 n.2 (6th cir. dec. 16, 1997) (applying kentucky law in a case act provides that the commercial character of an act is to be determined in kentucky, "[l]iability for a negligent act follows a finding of proximate or 826, 832 (w.d. ky. 2005) ("o'bryan i"). o'bryan ii, 471 f. supp. at 792. as the district court correctly noted, the holy see 4) tort of outrage/infliction of emotional distress (class i claim v, class ii in this order may be construed as a non-individualized choice-of-law determination that binds all 150,000 acting in its capacity as a sovereign, but instead in its private capacity, then the party can jurisdiction pursuant to 28 u.s.c. �� 1331 and 1332 and supplemental jurisdiction employment "the conduct must be of the same general nature as that authorized or nos. 07-5078/5163 o'bryan, et al. v. holy see page 2 plaintiffs contend that they preserved their constitutional claims by articulating to the tortious act exception forappellant.williamf.mcmurry,mcmurry&associates,prospect,kentucky,for (5) not otherwise encompassed in paragraph (2) above, in which and noting that "[i]t is well established in this jurisdiction that a school teacher can be discretion, to exercise jurisdiction over issues that are not independently appealable when those issues are s.w.3d at 915. applying these principles, the kentucky supreme court ruled that a cuba, 462 u.s. 611, 622 n.11 (1983)); see also, e.g., doe, 434 f. supp. 2d at 944 prevents its application: the discretionary-function exception and the arising-out-of- 3) breach of fiduciary duty (class i claimiv, class ii claimiii): plaintiffs plead while acting within the scope of his office or employment; except nos. 07-5078/5163 o'bryan, et al. v. holy see page 24 3 semantic ploy to shroud the true essence of its theory and obtain jurisdiction over a claim misconduct,nottoactuallyhire individuals who had engaged in prior sexual misconduct. liability." deutsch v. shein, 597 s.w.2d 141, 143-44 (ky. 1980). "in order to be a legal archbishops and holy see personnel must have been employees of the holy see. as 682, 711 (1976)); see also city school of detroit v. government of france, 1990 u.s. satisfy all four requirements of the tortious act exception: this conduct served as a of the saudi government, had allegedly been imprisoned and tortured by saudi officials united states or of the states in any case . . . in which the action is based the solicitation of sex in confession, clergy sex with minors, homosexual givejurisdictionalsignificancetothisfeint of language would effectively fsia's rule-plus-exceptions structure; if a party believes that the foreign state was not [t]he holy see has mandated that all allegations of childhood sexual abuse - "[n]ot only does the language of the fsia discretionary function exception replicate that in order to implement the "restrictive theory" of sovereign immunity and limit b. the tortious act exception other things, reporting childhood sexual abuse to government authorities. id. thus, holy see, discretionary function exception of the federal tort claims act (the "ftca"), because kentucky law appears to have adopted the restatement (third) of agency � 7.07 burden-shifting analysis, because of its reliance on evidence from the parties, cannot be the power of its police has long been understood for purposes of the sections 1605-1607 of this chapter." however, the fsia does not itself define the term holy see. as noted before, plaintiffs' claims are not based solely on the conduct of the immunity that underlies the fsia." commercial bank of kuwait v. rafidain bank, 15 only required holy see employees not to disclose information regarding sexual commercial activity exception of the fsia. the ultimate issue of this interlocutory appeal � whether the pursuant to sixth circuit rule 206 (applying oregon law); robinson v. gov't of malay., 269 f.3d 133, 145 (2d cir. 2001) clergy.14 consider whether either of the two exceptions to the tortious act exception applies and of emotional distress . . . . plaintiffs are no longer pursuing those claims." (plaintiffs' response to the � 201: "under international law, a state is an entity that has a defined territory and a process. it accurately described the process. o'bryan ii, 471 f. supp. 2d at 790-91. it fsia. see dale, 337 f. supp. 2d at 832 (treating the vatican as a foreign state for the relationship, which was carried out by and through priests, clerics, and administrators f.3d 569, 578 (6th cir. 2004) (citing caudill v. n. am. media corp., 200 f.3d 914, 916 furthermore, as per the fsia's explicit terms, in order for the tortious act negligence claims and as to all other claims asserted against the holy see for the sixth circuit application of the commercial activity exception. first, the activity must be of the type 6 i. elements of the tortious act exception purpose of fsia is to grant immunity based upon the current relationship between the united states and within the tortious act exception because it too presumably occurred abroad. in turn, immunity to sovereign acts but not private acts, congress crafted exceptions to fsia. function exception. indeed, the 1962 policy, even according to plaintiffs' allegations, plaintiffs consist of representatives for two separate classes. james h. o'bryan and donald "[t]he `inextricably intertwined' requirement of pendent appellate jurisdiction is not meant to be loosely has the capacity to engage in, formal relations with other such entities." see estate of "withdraw[ing] immunity in cases involving essentially private commercial activities," sufficiently private so as to eliminate foreign sovereign immunity. in turn, the , the scope of the misrepresentation or deceit exception to the tortious act nos. 07-5078/5163 o'bryan, et al. v. holy see page 15 restrictive theory as peculiarly sovereign in nature . . . . exercise of the immunity applied and concluded that the tortious act exception did in fact apply. 28 u.s.c. � 1605(a)(2). "a `commercial activity' means either a regular course of some of the plaintiffs' claims under the "tortious act" exception, id. at 792, a u.s.c. � 1605(a)(5)(b). we do however dismiss the last two claims advanced by choice of law analysis because plaintiffs have not yet sought certification. claim leveled against the holy see for promulgating the 1962 policy would not fall district court so as to preserve the issue for appellate review." bldg. serv. local 47 plaintiffs' complaint failed to state a claim upon which relief can be granted, lack of in this case, there is no dispute that the united states recognized the vatican in this argument misapprehends the nature of the court's inquiry. plaintiffs do not ask this court gaubert, 499 u.s. 315, 332-34 (1991) (finding that the negligent selection of directors jurisdiction over state law claims that are related to the federal question claim is permanent mission of india to the u.n. v. city of new york, 127 s. ct. 2352, 2357 where kentucky is the state where the relevant acts or omissions occurred. see, e.g., vaughn v. united enumerated in restatement (third) of the foreign relations law of the united states structure of the fsia demonstrate congress' intention that the fsia be the sole basis for court has jurisdiction to hear the holy see's appeal because the "denial of sovereign immunity is federal claims, jurisdiction exists." id. however, "conclusory allegations or legal failure to provide safe care does not survive. as the district court noted, the failure to also de sanchez v. banco central de nicar., 770 f.2d 1385, 1398 (5th cir. 1985). an agent whose principal controls or has the right to control the manner and means of the for reporting defects regarding hospital equipment to a saudi government commission. nos. 07-5078/5163 o'bryan, et al. v. holy see page 14 pursuant to 28 u.s.c. � 1367. 1986) (noting that diplomatic relations between the united states and the vatican began in 1984). scope of tortfeasor's employment. see 28 u.s.c. � 1605(a)(5). mediumof an action in tort. the exception, properly construed, therefore them in their response to the holy see's motion to dismiss. however, plaintiffs' 2007) ("o'bryan ii") (citing siderman de blake v. republic of arg., 965 f.2d 699, exception. the following reasons, we affirm the decision of the district court. obtaining jurisdiction over a foreign state in our courts." argentine republic v. amerada choice or judgment, for it is clear that the exception "will not apply when id. at 361-62. indeed, directly addressing nelson's attempt to advance a failure-to-warn 462 u.s. 611, 622 n.11 (1983); see also pescatore v. pan am, 97 f.3d 1, 12 (2d cir. with the aim of fulfilling uniquely sovereign objectives. rather, the issue arising under the federal tort claims act). the united states. as has already been emphasized, the claim cannot survive against the ask this court to conceive of the holy see as two separate entities � first, a foreign counsel n under the fsia, 28 u.s.c. � 1608(a). however, the district court found that because the discretionary. we now apply these general conclusions to each of the plaintiffs' bishops, archbishops and holy see personnel while supervising allegedly abusive clergy at this time. therefore, the following claims remain against the holy see: of the [ftca], 28 u.s.c. � 2680(a), but the legislative history of the fsia, in explaining plaintiffs appear to have agreed with these applications of the tortious act exception: "the in this way, these claims resemble other negligent supervision claims more than they office of her majesty queen rania al abdullah, 184 f. supp. 2d 277, 299 (s.d.n.y. intuition." (internal quotation marks and citation omitted)); tonelli v. united states, 60 applied to a facial motion to dismiss, which simply attacks the legal sufficiency of the property damage, breach of contract for goods or services, product case. courts routinely determine whether incorporated entities satisfy the criteria necessary to be should not be dismissed for "arising out of . . . misrepresentation [or] deceit." see 28 foreign state for the purposes of the fsia); doe v. holy see, 434 f. supp. 2d 925, 933 function exception: in addition, plaintiffs' complaint states that it pursues these claims against the holy see "in its nos. 07-5078/5163 o'bryan, et al. v. holy see page 27 plaintiffs in their complaint (class i claims vi and vii, class ii claims v and vi) as nos. 07-5078/5163 o'bryan, et al. v. holy see page 3 in the united states and throughout the world. the policies of the holy see if the holy see is "not entitled to immunity [under any of the the fsia exceptions]." complaint, none of the allegations truly sounded in commercial activity, and thus the v. colagiovanni, 337 f. supp. 2d 825, 832 (s.d. miss. 2004) (vacated on other grounds) directives of the defendant, permitted childhood sexual abuse to occur." indeed, the alleged torts retains its immunity. 28 u.s.c. � 1605(a)(5)(a), (b). under the restatement's standard")). alternatively, they ask this court not to consider (2)"ar[o]s[e] out of . . . misrepresentation [or] deceit . . . " then the foreign sovereign no. 04-00338--john g. heyburn ii, chief district judge. plaintiffs also plead a separate cause of action titled "respondeat superior liability." however, court's denial, in part, of its motion to dismiss all of plaintiffs' claims due to lack of subject the united states as intervenor and amicus supports the position of the holy see with held liable for injuries caused by negligent supervision of his/her students"); see also service of process and therefore went on to consider the holy see's motion to dismiss amended opinion theory of the case, the supreme court responded: to warn), outrage and emotional distress, violations of the customary law recognized the holy see as a foreign sovereign since 1984. according to their complaint, negligent failure to report, negligent failure to warn, breach of fiduciary to warn parents" and the "duty to report known or suspected perpetrators. this claim pendent jurisdiction: "the doctrine of pendent appellate jurisdiction allows an appellate court, in its foreign sovereign under the tortious act exception if there has been a tortious act constructed the fsia to immunize foreign sovereigns acting in a public capacity, while [w]hen a foreign government acts, not as regulator of a market, but in the cir. 1986)). applying the standards under 12(b)(1) to the fsia context is complicated by id. (quoting law v. nat'l collegiate athletic ass'n, 134 f.3d 1025, 1028 (10th cir. 1998)). to be sure, remained "open to reconsidering its decision that the united states-based bishops, a federal statute, regulation, or policy specifically prescribes a course of negligent supervision because such acts presumably occurred abroad; moreover, a direct 791. such proof would presumably amount to a "factual attack" pursuant to rule see supra, n.1. arrest, imprisonment, and torture of nelson) could not qualify as holy see's motion to dismiss. plaintiffs' response to the holy see's motion to dismiss at 6 n.9 (stating abusive priests, agents and employees from public disclosure and plaintiffs argue that because the conduct in question preceded the united states' recognition of (3) where the alleged acts or omissions were those of a "foreign state or of any official memorandum and opinion, the district court determined that while subject matter sexually abusive priest at plaintiff's church, a claim clearly sounding in survives against the holy see for the actions of its supervising employees occurring in � 1605(a)(5). of plaintiffs' claims meet the four requirements for application of the tortious act defendant-appellant/cross-appellee. district court. in addressing the holy see's motion to dismiss, the district court this claim cannot survive against the holy see as it pertains to the actual promulgation contrast, this claim does survive against the holy see as it pertains to the conduct of its dismiss." mezibov v. allen, 411 f.3d 712, 716 (6th cir. 2005). (6th cir. 2000)). however, "[a] district court's decision to exercise supplemental being performed by a private individual [and] . . . the welfare and education of its of his employment position (i.e. the likelihood of being imprisoned and tortured). id. at putative class in this order. this order only contemplates the claims of the named plaintiffs . . . ."); cf. nos. 07-5078/5163 o'bryan, et al. v. holy see page 30 nos. 07-5078/5163 o'bryan, et al. v. holy see page 4 negligence against the holy see for its own conduct cannot survive because such ________________________ "issues that are not squarely presented to the trial court are considered waived commercial activity exception did not apply. doe, 434 f. supp. 2d at 947. a semantic ploy would allow them to "obtain jurisdiction over a claim that congress did plaintiffs occurred in kentucky, kentucky law applies to the instant case. under the absolute control of the defendant . . . ." in turn, plaintiffs contend that the consistent with the analysis of the district court in o'bryan ii. 7 the relevant archbishops, bishops and other holy see personnel had knowledge of the either ask this court to determine that they can rightfully bring suit against a parallel religious entity that considered an agency or instrumentality of a recognized foreign state pursuant to 28 u.s.c. � 1603(b) premised on the soviet union's failure to disclose its role in the 1940 massacre of polish jurisdictional ones." karaha bodas co. v. perusahaan pertambangan minyak dan gas bumi negara, nos. 07-5078/5163 o'bryan, et al. v. holy see page 21