Opposition Brief — O'Bryan v. Holy See (No. 08-1384)

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Supreme Court, U.S

FILED

JUL 13 2009 |

No. 8-1384 OFFICE OF THE CLERK |

In the Supreme Court of the Gnited States

JAMES H. O’BRYAN, DONALD E. POPPE,

and MICHAEL J. TURNER,

Petitioners,

HOLY SEE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

BRIEF IN OPPOSITION

LAW OFFICE OF Byron H. DONE LAW OFFICE OF JEFFREY S. LENA

Byron H. Done JEFFREY S. LENA

1990 N. CaLirornia Bivp. Counsel of Record

8TH FLOOR 1152 KerrH AVENUE

WALNUT CREEK, CA 94596 BERKELEY, CA 94708

(925) 932-7009 (510)665-1713

Fu.Ltz Mappox Hovious & SWANSON, McNamara &

DICKENS PLC HALLER LLP

R. Grecc Hovious Mary McNaMARA

JOHN DAVID DycHE ALEXIS HALLER

2700 NATIONAL City TOWER 300 MONTGOMERY STREET

101S. FirrH STREE1 SUITE 1100

LOUISVILLE, KY 40202 SAN FRANCISCO, CA 94104

(502) 588-2000 (415) 477-3800

Counsel for Respondent

QUESTIONS PRESENTED

Whether this Court should grant certiorari to

review the Sixth Circuit’s decision to apply the

Supreme Court’s holdings in Republic of

Argentina v. Weltover, Inc., 504 U.S. 607 (1992)

and Saudi Arabia v. Nelson, 507 U.S. 349 (1993

in determining that the Holy See’s alleged

“official legislative text” was not “commercial

activity” under the FSIA.

Whether this Court should grant certiorari to

review the Sixth Circuit’s decision to follow the

Supreme Court’s holding in Nelson and

precedent from other circuits in relying upon

the essence-of-the-complaint rule to determine

which FSIA exception to applv.

Whether this Court should grant certiorari to

review the Sixth Circuit’s decision to follow

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) and its progeny in

determining that the FSIA’s tort exception

requires the tortious act to occur in the United

States.

Whether this Court should grant certiorari to

review the Sixth Circuit’s holding that

petitioners waived their arguments. that

extending FSIA protections to the Holy See

violates the First Amendment’s Establishment

Clause, the Seventh Amendment’s right to a

jury trial, and the Fifth Amendment’s right to

due srocess by failing to raise them in the

district court

PARTIES TO THE PROCEEDING

The parties to the proceeding are identified in the

caption above

111

CONTENTS

QUESTIONS PRESENTED ., «66 6s4h i.e es ees

PARTIES TO THE PROCEEDING ............ ii

CONTEAINES .. 2+ ios: va, ae Ag ore

TABLE OF AUTHORITIES ow

INTRODUCTION ie eee ee

OPINIONS BELOW oo ee ee

JURISDICTION .... : Ln

STATEMENT OF THE CASE ................ 8

A. Petitioners Comomint .........ssee ea. 3

B. Relevant Proceedings Below ............ 6

1. Motion to Dismiss Litigation ......... 6

2. sastrict Court Gider ... ei i 7

3. Appellate Briefing .................. 8

4. Petitioners’ Motion to Take the

Deposition of Pope Benedict XVI During

the Pendency of the Appeal .......... g

5. The Court of Appeals’ November 24, 2008

Opinion and the Parties’ Petitions for

Rehearing i

whe

6. he Court of Appeals’ February 10, 2009

Amended Opinion .. oe pair ase

REASONS FOR DENYING THE WRIT

I. Certiorari Should Be Denied Because No

Conflict Exists Amongst the Circuit

Courts as to Any of the Issues Raised . 18

A. Petitioners Do Not Claim that a

Conflict Exists Amongst the Circuit

Courts as to Three of the Four Issues

Raised in Their Petition ......... 18

B. Petitioners Erroneously Claim that a

Circuit Conflict Exists Regarding

Whether the Tort Must Occur in the

United States Under the Tort

DE orate eine Se ee ee 20

I]. Certiorari Should be Denied Because

Petitioners Have Failed to Identify Any

Compelling Reason Justifying this

COtart BO VIOW Sw es ce ha eas 24

III. Certiorari Should be Denied Because

There Remain Numerous Unadjudicated

Facial Grounds for Dismissal ........ 25

IV. Certiorari Should Be Denied Because

Petitioners’ Claims Regarding Both the

1962 Document and the Imputation of

Acts of Separate Corporations to the Holy

See are Not Ripe for this Court’s

> i. ¢)

Review .... eee ta 2

VI.

Certiorari Should Be Denied Because

Petitioners Waived Their Arguments that

the First Two Clauses of the FSIA’s

Commercial Activity Exception Apply

and Have Not Provided Any Basis for

Application of the Third Clause ......

Certiorari Should Be Denied With

Respect to the Constitutional Issues

Because Petitioners Have Waived

Them

CONCLUSION

Vv)

TABLE OF AUTHORITIES

Cases

Abrams vu. Societe Nationale des Chemins de Fer

Francais,

175 F. Supp. 2d 423 (E.D.N-Y. 2001), vacated on

other grounds by 332 F.3d 173 (2d Cir. 2003),

cert. granted and vacated, 542 U.S. 901 (2004),

affa 369 F.3d Gi (2a Cir. 2004). ........... 22

Alberti v. Empresa Nicaraguense de la Carne,

705 F.2d 250 (7th Cir. 1983)

Antares Aircraft L.P. v. Fed. Republic of Nigeria,

No. 89 Civ. 6513 (JSM), 1991 WL 29287

See t. sO, 0, EAD 6 ve ce ec eke ees 23

Argentine Republic v. Amerada Hess Shipping

Corp.,

S56 U.S. 425 (19S9) .. «wees 1, 7, 18, 20-23

Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009) .. ween Pe

Asociacton de Reclamantes v. Untted Mexican

States,

735 F.2d 1517 (D.C. Cir. 1984) ei. 23

Baxter v. Palmigiano,

425 U.S. 308 (1976) . a ae ore 24

Bennett v. Stephens,

CIV. A. No. 88-2610 (RCL), 1989 WL 1775!

aD Tee Pee, 2, Se 2 ee cans coe era

Vil

Cabiri v. Gout of Republic of Ghana,

165 F.3d 193 (2d Cir. 1999)

Cabiri v. Gout of Republic of Ghana,

981 F. Supp. 129 (E.D.N.Y. 1997), affd in part

and rev'd on other grounds in 165 F.3d 193 (2d

Cir. 1999)

Chuidian v. Philippine Natit Bank,

912 F.20 1085 (9th Cir. 1980) ... 6 ees

Coleman v. Alcolac, Inc.,

856 F. Supp. 13868 (5.1). Tex. 1995) .........

Cruz v. Farquharson,

252 F.3d 530 (1st Cir. 2001)

Dale v. Colagtovannt,

443 F.3d 425 (5th Cir. 2006) .......

Davis v. United States,

417 U.S. 333 (1974)

De Sanchez v. Banco Central de Nicaragua,

770 F.2d 1385 (5th Cir. 1985) ......

Denegri v. Republic of Chile,

Civ. A. No. 86-3085, 1992 WL 91914 (D.D.C

wee: © Dee ok cs ee ee es

Doe v. Holy See,

434 F. Supp. 2d 925 (D. Or. 2006) . .

Doe U Holy See,

557 F.3d 1066 (9th Cir. 2009) ......

a kL

Vill

Doe v. Roman Catholic Diocese of Gaiveston

Houston,

408 F. Supp. 2d 272 (S.D. Tex. 2005) ........ 3

El-Fadl v. Cent. Bank of Jordan,

No. Civ.A. 93-1895 RMU, 1994 WI 1656111

(D.C. Mow: B, Foe 6 oe eee eee

English v. Thorne,

676 F. Supp. 761 (S.D. Miss. 1987) ... 19, 20, 23

Evans v. Petroleo,

Civil Action No. H-83-91, 1984 WL 1887 (S.D.

Ten. Aue. 2, We) 2 oan a eee 23

F.C.C. v. Fox Television Stations, Inc.,

sae &. UH. BO GO oi eerie eee ee 3]

Fickling v. Commw. of Australia,

775 F. Supp. 66 (B.D.N.Y. 1991) ........... 23

First Nat'l City Bank v. Banco Para el Comercio

Exterior de Cuba,

463 U.S. G1 (ie ks ee ee ee 29

Four Corners Helicopters, Inc. v. Turbomeca S.A.,

677 F. Supp. 1096 (D. Colo. 1988) .......... 23

Frolova v. Union of Soviet Socialist Republics,

761 F.2d 370 (7th Cir. 1985) ........... Si, 22

Garb v. Republic of Poland,

440 F.3d 579 (2d Cir. 2006) “hk .

Goquiolay v. Philippines Nat'l Bank,

No. 90 CIV. 893 (CSH), 1990 WL

(S.D.N.Y. Sept. 28, 1990) .

Gould, Inc. v. Pechiney Ugine Kuhlmann,

853 F.2d 445 (6th Cir. 1988)

Hirsh v. State of Israel,

962 F. Supp. 377 (S.D.N.Y. 1997)

Holy See v. Doe,

No. 09-1 (U.S. filed June 25, 2009)

Hunter v. Hydrick,

144118

129 S. Ct. 2431 (2009), remanding for furthe

consideration tn light of Igbal 500 F.3d 978 (9th

Cir. 2007)

Illinois v. Abbott & Assoc., Inc.,

460 U.S. 557 (1983)

In re Sedco, Inc.,

543 F. Supp. 561 (8.D. ‘Tex. 1982)

Intercont’l Dictionary Series v. De Gruyter,

822 F. Supp. 662 (C.D. Cal. 1993), disapproved

on other grounds in Sun v. Tatwan, 201 F.3d

110 (9th Cir. 2000) ..

Jones v. Petty Ray Geophys al Geosource,

954 F.2d 1061 (5th Cir. 1992)

Kline v. Kaneko,

685 F. Supp. 386 (S.D.N.-Y. 1988)

[nec..

i ae

Kline v. Republic of El Salvador,

603 F. Supp. 1813 (D.D.C. 1985) 23

Ledgerwood v. State of fran,

617 F. Supp. 311 (D.D.C. 1985) 23

Letelter ‘oR Republic of Chile,

488 F. Supp. 665 (D.D.C. 1980) ...... 2]

Leutwyler v. Office of Her Majesty Queen Rania Al

Abdullah,

184 F. Supp. 2d 277 (S.D.N.Y. 2001) Re}

McKenzie v. City of Chicago,

118 F.3d 552 (7th Cir. 1997) 25

Mitchell v. Forsyth,

472 U.S. 511 (1985) . . 8

Moyers v. Roman Catholic Bishop of Louisville,

No. 2004-CA-001886-MR, 2005 WL 3116116

(Ky. App. Nov. 23, 2005) 26

Olsen v. Gov't of Mexico,

729 F.2d 641 (Sth Cir. 1984) 2]

Persinger v. Islamic Republic of lran,

729 F.2d 835 (D.C. Cir. 1984) ...... 21, 23

Phaneuf v. Republic of Indonesia,

106 F.3d 302 (9th Cir. 1997) | 1Y

Polanco v. Dominican Republic,

No. 90 Civ. 7089 (WK), 1991 WH. 146306

(S.D.NLY. July 22, 1991) 23

Rein U. Rein,

No. 95 Civ. 4030 (SHS), 1996 WL 273993

(S.D.N.Y. May 23, 1996)

Republic of Argentina v. Weltover, Ini

504 U.S. 607 (1992) yeu 4 i oe

S. Seafood Co. v. Holt Cargo Sys., Inc.,

No. Civ.A.96-5217, 1997 WL 539763 (E.D. Pa

Aug. 11, 1997)

Sampson v. Fed. Republic of Germany,

975 F. Supp. 1108 (N.D. Il. 1997)

Saudi Arabia v. Nelson,

507 U.S. 349 (19938) 1, 15, 17,

Sec. Pac. Nat’l Bank v. Derderian,

872 F.2d 281 (9th Cir. 1989)

Smith v. Socialist People’s Libyan Arab

Jamahiriya,

886 F. Supp. 306 (E.D.N.Y. 1995)

Ticor Title Ins. Co. v. Brown.

511 U.S. 117 (1994)

United States v. Oakland Cannabis Buyers Co-op.,

532 U.S. 483 (2001)

Velasquez v. Gen. Consulate of Mexico,

No. C-92-3745 CFL, 1993 WL 69493 (N.D. Cal

Mar. 4, 1993)

Von Dardel v. Union of Soviet Socialist Republics

736 F. Supp. 1 (D.D.C. 1990)

X11

Waddle v. Galen of Ky., Inc.,

131 5.W.3d 361 (Ky. App. 2004)

Wolfu. Fed. Republic of Germany

95 F.3d 536 (7th Cir. 1996)

Youakim v. Miller,

425 U.S. 231 (1976)

Statutes

28 US

28 U.S.

28 U.S

28 USS.

». 1204(1)

», 133]

», L332

. 1367 .

28 US.

28 U.S

L603(d)

. 1L605(a\(2)

1605(a (5)

(

28 U.S.C. 1602 et seq

(

Rules

Fed. R. Civ. P. 12(b)(1)

Fed. R. Civ. 12(b)(6)

Fed. R. Civ

Sup. Ct. |

Other Authorities

H.R. REP. No. 1487 (1976

Lauterpacht The Problem of

Immunities of Foreign State

INTL L. 220, 225 (1952)

Jurisdictional

BRIT

INTRODUCTION

Petitioners fail to provide any reason that would

justify a grant of certiorari review. Petitioners

implicitly coucede that three of the four issues they

raise are not the subject of a conflict amongst the

circuit courts, and erroneously claim that a conflict

exists as to the fourth — whether a tort must occur in

the United States under the FSIA’s tort exception. In

addition to failing to identify a circuit conflict,

petitioners fail to provide any compelling reason

justifying this Court’s review of issues that are unique

to petitioners’ allegations.

Review by this Court is also premature. Numerous

unadjudicated facial grounds for dismissal remain for

consideration by the district court, including the

sufficiency of the Complaint under this Court’s recent

decision in Ashcroft v. Iqbal, 129 5S. Ct. 1987 (2009)

and petitioners’ failure to timely file claims under the

applicable Kentucky statute of limitations. Moreover,

during the pendency of the appeal, petitioners moved

in the district court to take the deposition of Pope

Benedict XVI. Litigation over petitioners’ motion

revealed fundamental problems regarding petitioners’

central theory that a 1962 Holy See “policy” mandated

silence of child abuse complaints in the United States.

The Court should not grant review unless and until

the record is developed further regarding allegations

that have already been undermined in the district

court.

Finally, review by the Court is unwarranted

because of petitioners’ waiver of issues’ below.

Petitioners waived their argument that the first two

clauses of the FSIA’s commercial activity exception

apply and have never provided a basis for application

of the third clause. Further, as the Sixth Circuit held,

petitioners waived their constitutional arguments by

failing to raise them in the district. court

The Court should deny the petition for writ of

certiorar}

OPINIONS BELOW

The amended opinion of the court of appeals is

reported at 556 F.3d 361 and reprinted in Petitioners’

Appendix (“Pet. App.”) at la-46a. The opinion of the

district court is reported at 471 F. Supp. 2d 784, Pet.

App. 47a-68a

JURISDICTION

The judgment of the court of appeals was originally

entered on November 24, 2008. Petitioners’ petition for

rehearing was denied on February 6, 2009. The Holy

See’s petition for rehearing was granted on February

10, 2009, and an amended opinion of the court of

appeals was filed on that date. Petitioners’ petition for

writ of certiorari was filed on May 7, 2009.

Petitioners invoked this Court’s jurisdiction

“pursuant to the Foreign Sovereign Immunities Act, 28

U.S.C. § 1602 et seq., 28 U.S.C. §§ 1331 and 1332, and

supplemental jurisdiction pursuant to 28 U.S.C.

§ 1367.” Petition for Writ of Certiorari (“Cert.

Petition’) at 1. It appears, however, that petitioners

should have properly invoked jurisdiction pursuant to

28 U.S.C. 1254(1).

STATEMENT OF THE CASE

A. Petitioners’ Complaint

Petitioners’ Complaint against the Holy See,’ a

foreign sovereign, was filed on June 4, 2004. In their

Complaint, petitioners conclusorily allege that they

were “sexually abused, molested and assaulted by a

Roman Catholic priest” in Kentucky in the “1920s”

(O’Bryan), “early 1960s” (Poppe) and “mid 1970s”

(Turner). Complaint 4§ 16-18, 63-64, 100, Pet. App.

99a-100a, 113a, 126a. The Complaint provides no

other information regarding petitioners’ individual]

-'sims, other than to allege that petitioner Turner had

previously brought a legal action based upon the same

injuries against a diocese in Kentucky, received

compensation for his injuries, and released the diocese

from further hability. Complaint 7{[ 54, 92, Pet. App.

1i0a, 124a.

Petitioners allege that the basis for their putative

class action lawsuit against the Holy See is a 1962

document “first discovered and made public in July,

2003 by news media in the United States and

throughout the world.” Complaint at 3, Pet. App. 90a.

According to petitioners, the 1962 document’ reveals

' Although the Holy See is known colloquially as the Vatican, Holy

See is the correct appellation. Doe v. Roman Catholic Diocese of

Galveston-Houston, 408 F. Supp. 2d 272, 282 (S.D. Tex. 2005)

Because the Complaint does not. provide the name of the

document, the Holy See will refer to it in this brief as “the 1962

document” for the sake of convenience. It 1s worth noting that

although a purported reproduction of this document has been

included by petitioners as Appendix F in support of their petition.

the document in the appendix had no role in the proceedings

“the cover up of childhood sexual abuse “mandated by

the Holy Seel.J” Complaint at 2-3, Pet. App. S8a-89a.

Although petitioners baldly assert that the 1962

document “plainly required” bishops in the United

States “to violate” child abuse reporting laws, Cert.

Petitien at 8, petitioners allege no fact linking the 1962

document to their individual claims. Indeed, the

Complaint itself never even claims that the 1962

document was received by any diocese in Kentucky,

much less that it was applied with regard to any priest

who abused petitioners. See Complaint 4 45, Pet. App.

107a (stating only that the 1962 document was

“privately circulated” to unidentified persons); 44] 45-

46, Pet. App. 107a-108a (alleging that the 1962

document sets forth “procedural norms” for addressing

clergy sexual abuse of minors, yet alleging that there

had not been a canonical “investigation or prosecution”

of clergy sexual abuse claims in Kentucky for “at least”

60 years). Instead, petitioners’ central causation

allegation consists of a mere formulaic recitation of

Kentucky’s legal causation test. Complaint J 48, Pet

App. 108a (alleging that the Holy See’s “directives to

conceal the sexual abuse of children committed by its

clerics, agents, and employees in order to maximize

revenue by avoiding scandal was a substantial factor

in bringing about cach Class Member’s abuse”); see

also Complaint 47 77, 110, Pet. App. 118a-119a, 13la

below. The document was not attached to the Complaint, was

submitted to the distmct court by petitioners only after the

hearing on the Holy See’s motion to dismiss, was the subject of a

timely objection by the Holy See, and was not relied upon by the

district court or the court of appeals. Moreover, petitioners have

never identified the source of the document; they have, for

example, never claimed that it onginated from Kentucky

Petitioners’ other allegations are similarly general.

Their purported “commercial activity” allegations, for

example, are not linked to petitioners’ individual

claims; rather, they are generalized allegations

characterizing the Holy See’s relationship with

Catholic entities and individuals throughout the world.

See Complaint J 27, Pet. App. 101a-102a (alleging that

the Holy See provides “religious and pastoral guidance,

education and counseling services to Roman Catholics

worldwide in exchange for revenues derived from its

members and other financial contributors”); Complaint

{ 47, Pet. App. 108a (alleging that the Holy See

concealed the sexual abuse of children to “ensure the

continued receipt of funds from its parishioners and

other financial contributors, all in furtherance of [its]

commercial activities”).

Finally, petitioners’ jurisdictional theory depends

upon the imputation to the Holy See of acts of separate

corporations — a fact that petitioners omit from their

petition. For example, petitioners state that the Holy

See “allowed abusive clergy to continue ts perform as

...pmiests...and refused to permit reporting abuse

[sic] to civi! or criminal authorities|,]” provided

“abusive clergy the facilities and opportunity to

continue their abusive conduct|,]” and “held abusive

clergy out to the community as fit and competent{.]”

Cert. Petition at 3-4 (citing Complaint 1] 60-62, Pet.

App. 112a-113a). These statements omit key language

from the Complaint, namely that the above acts

occurred “by and through [the Holy See’s] agents|[.]”

See Complaint 74] 60-62, Pet. App. 112a-113a. The only

purported “agent” in the United States named in the

Complaint — the Roman Catholic Bishop of Louisville,

Inc. (“the Louisville Archdiocese”) — is acknowledged to

be a separate corporation. Complaint J 66, Pet. App.

li4a. Petitioners do not allege that the Holy See

exercised any type of day-to-day control over the

Louisville Archdiocese or that the Holy See

disregarded or abused the corporate form. Petitioners

nowhere explain why it is nevertheless appropriate to

impute the acts of the Louisville Archdiocese to the

Holy See for jurisdictional] purposes.

B. Relevant Proceedings Below

1. Motion to Dismiss Litigation

The Holy See filed a facial motion to dismiss for

lack of subject matter jurisdiction pursuant to Federal

Rule of Civil Procedure 12(b)(1).° In relevant part, the

Holy See’s motion challenged the Complaint’s

assertion of FSIA jurisdiction under the waiver

exception, the tort exception and all three clauses of

the commercial activity exception. Central to the Holy

See’s jurisaictional argument was that the relevant

allegations in petitioners’ Complaint were too

conclusory to confer subject matter jurisdiction.

Petitioners’ response to the Holy See’s motion

addressed only the tort exception and the third clause

of the commercial activity exception. In addition,

petitioners did not argue in the district court that

affording the protections of the FSIA to the Holy See

was unconstitutional. Cf Cert. Petition at 31-35.

’'The district court sequenced defenses to address Rule 12(b)(6)

issues after the Holy See’s facial subject matter jurisdiction

motion had been resolved.

2. District Court Order

The district court’s order granted in part and

denied in part the Holy See’s facial motion to dismiss.

The district court rejected petitioners’ attempt to

confer jurisdiction under the commercial activity

exception, holding that “petitioners’ claims are ‘clearly

sounding in tort’ and [that] their complaint does not.

allege ‘property damage, breach of contract for goods or

services, product liability, copyright infringement, an

indebtedness yet unpaid on a loan or other transaction,

or any other theory whose true essence is commercial.”

Memorandum Opinion, dated Jan. 10, 2007, Pet. App.

53a (quoting Doe v. Holy See, 434 F. Supp. 2d 925, 942

(1). Or. 2006)).

Analyzing petitioners’ claims under the _ tort

exception, the district court followed this Court’s

decision in Amerada Hess “that the exception in

§ 1605(a)(5) covers only torts occurring within the

territorial jurisdiction of the United States.” Pet. App.

56a (quoting Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428, 441 (1989)). Noting that

petitioners “concede that the acts of Defendant itself

were all ‘committed outside the United States|[,]” the

district court held that jurisdiction could not lie under

the tort exception for the Holy See’s own alleged torts.

Id. (quoting Pltfs’ Resp. to Def. Holy See’s Mot. to

Dismiss for Lack of Subject Matter Juris., dated July

18, 2006, at 27). The district court stated that

“thlolding otherwise would constitute a dramatic

expansion of FSIA.” Jd.

With regard to claims based upon the Holy See’s

alleged employees in the United States, the district

court held that petitioners’ allegation that the Holy

See exercised “absolute and unqualified power and

control... over each and every priest, bishops [sic],

brother, sister, parish, diocese, archdiocese, and

instrumentality of the Church” was sufficient to allege

employment status. /d. at 58a (quoting Complaint

4] 20). The district court cautioned, however, that “facts

may emerge during the litigation that allow the Holy

See to meet its burden lof showing non-employment]”

and that the court was “willing to reexamince its ruling

on this issue at an appropriate time.” Jd. at 59a.

The district court also held that the scope of

employment allegations were sufficient for pleading

purposes. The district court determined that if such

individuals “acted pursuant to a Holy See policy, these

persons were acting within the scope of their

employment.” /d. at 6la. However, the district court

noted that “[slubsequent evidence may require the

Court to revisit these conclusions|.]” Jd.

3. Appellate Briefing

To preserve its immunity from suit, the Holy Sce

appealed the district court’s ruling under the collateral

order doctrine.* On appeal, the Holy See again argued

that key allegations in the Complaint were too vague

and conclusory to establish subject matter jurisdiction.

In particular, the Holy See contended that the

Complaint’s bald assertion of “absolute and

unqualified power and control” by the Holy See over

Roman Catholic individuals in the United States was

insufficient to show that such individuals were Holy

See employees. In addition, the Holy See argued that

the mere allegation that the 1962 document was a

“substantial factor” in causing petitioners’ injuries was

insuflicient. Finally, the Holy See contended that the

' See. e £., Mitchell v. Forsyth, 472 U.S. 511, 524-29 (1985)

Complaint’s allegations failed to meet the substantive

junisdictional requirements of the FSIA’s tort and

commercial activity exceptions.

Petitioners responded by basing their theory of

ISIA jurisdiction on the 1962 document. Asserting

that the 1962 document was “central” to their claims,

petitioners argued that the Holy See’s challenge to the

Complainc “virtually ignored . . . allegations

concerning the Holy See’s policy, reduced to writing in

a 1962 document|.]” Plitfs’ Fourth Br. on Cross-Appeal

at 10; Pitfs’ Second Br. on Cross-Appeal (“Pltfs’ 2d

Br.”) at 4. Petitioners cast the 1962 document in

definitive terms as “the ‘Holy See Policy[,]” td. at 7

(emphasis added), and claimed that the 1962

document “requires U.S. bishops to refuse to report

clergy child sexual abuse to authorities, even though

such failure is a criminal offense in most of the states.”

Id. at 11-12.

The 1962 document played a critical role in

petitioners’ substantive jurisdictional arguments as

well. Petitioners repeatedly urged the court of appeals

to use the 1962 document allegations as the basis for

finding FSIA jurisdiction on the face of the Complaint

under both the commercial activity exception and the

tort exception. See, e.g., Pltfs’ 2d Br. at 34-35, 36-37,

42-43, 46.

Petitioners’ Motion to Take the

Deposition of Pope Benedict XVI

During the Pendency of the Appeal

During the pendency of the appeal, petitioners

moved in the district court under Federal Rule of Civil

Procedure 27 to take the deposition of Pope Benedict

XVI — the first deposition from the Holy See that

petitioners requested in this case. Petitioners based

their request for the Pope’s deposition largely on their

stated need to obtain testimony regarding the 1962Z

document. In support of their motion, petitioners

provided a declaration from canon lawyer Thomas P.

Doyle, which attached as an exhibit an unofficial

translation of the 1962 document. In his declaration,

Doyle stated that “Pope Benedict XVI is the only

living person who knows how the 1962 decree,

Crimen Sollicitationis, was decreed,

disseminated and enforced by his predecessor

Popes, and particularly how it was enforced

during his term as head of the CDF (Congregation

for the Doctrine of the Faith].” Decl. of Thomas P.

Doyle, dated Apr. 7, 2008 (“Doyle Decl.”) J 10 (bold in

original). Doyle’s declaration, however, was silent as to

any connection between the 1962 document and

petitioners’ individual claims.

In opposition to petitioners’ motion to take Pope

Benedict XVI's deposition, the Holy See argued that

the request was barred by, inter alia, head of state

immunity, the doctrine of inviolability, territorial

sovereignty and international comity. The Holy See

also opposed the proffered factual basis for petitioners’

motion. The Holy See demonstrated that Doyle —

petitioners’ own canon law expert ~— had in prior

testimony and publications contradicted the 1962

document theories at the heart. of petitioners’

Complaint. For example, whereas petitioners claim

that the i962 document mandated “secrecy” in order to

“ensure the continued receipt of funds from its

parishioners’ (Complaint {| 45, 47, Pet. App. 107a-

108a), Doyle had previously explained that the 1962

document’s confidentiality provisions were “primarily

rooted in the fact that [the document] deals with the

sacrament of penance to which is attached inviclable

secrecy.’ Thomas PP. Doyle, The 1962 Vatican

Document on Solicitation in the Confesstonal (Aug. 10,

2003) at 2, attached as Ex. A to the Decl. of Jeffrey S.

Lena in Supp. of Def. Holy See’s Resp. to Pitfs’ Mot. for

Leave to Take Depo. to Perpetuate Testimony, dated

Aug. 11, 2008 (“Lena Decl.”). Doyle had also stated

that the confidentiality that “was (and still is) imposed

on parties and witnesses in canonical proceedings is

intended to assure witnesses that they can speak

freely. It is also intended to protect the reputations of

the accused and accuser until guilt or innocence is

determined.” /d. These are, of course, some of the goals

of the United States grand jury process,’ a comparison

that Doyle himself has repeatedly made. See, e.g.,

Depo. of Thomas P. Doyle in The Clergy Cases III,

Alameda County Super. Ct. Coord. Proc. No. 4359,

taken on Aug. 26, 2005 (“Doyle Aug. 26, 2005 Depo.”)

at 95, attached as Ex. E to the Lena Decl. (“It’s similar

to a grand jury where there’s — you know, secrecy is

imposed in a grand jury... .”).

Doyle had also previously rejected petitioners’

“cover up’ theory. In fact, he stated that those

espousing a “cover up” theory based upon the 1962

document “don’t know what [they’re] talking about”

and have “misconstrued the document, misunderstood

it.” Depo. of Thomas Doyle in John Doe v. Catholic

Archbishop of Seattle, Spokane County Super. Ct. Case

No. 03-2-06469-1, taken on Sep. 23, 2004, at 113,

attached as Ex. F. to the Lena Decl. As for petitioners’

core claim that the 1962 document mandated non

compliance with state child abuse reporting statutes,

° See, e g.,lllinois v. Abbott & Assoc., Inc., 460 U.S. 557, 567 n.11

(1983) (stating that federal grand jury secrecy encourages

“persons to testify fully and freely” and “protects the reputation:

of the innocent”)

Doyle testified that the 1962 document “doesn’t say

that.” Doyle Aug. 26, 2005 Depo. at 94. In fact, Doyle

has explained that “[t]he Code of Canon Law is not a

substitute for the civil law systems of the various

countries where the Church is established. It does not

‘trump’ civil law.” Decl. of Thomas Doyle in The Clergy

Cases I, L.A. County Super. Ct. Coord. Proc. No. 4286,

dated May 30, 2006, at 6, attached as Ix. G to the

Lena Decl. According to Doyle, “nothing” in the 1962

document could be interpreted to “prohibit(| a bishop

or religious superior from notifying civil authorities of

an allegation prior to the initiation of the canonical)

process.” Thomas Doyle, The 1962 Vatican Instruction

(Nov. 1, 2006) at 9, attached as Ex. I tothe Lena Decl.

Given that petitioners allege that a canonical process

has not occurred in Kentucky in over 60 years

(Complaint § 46, Pet. App. 107a-108a), Doyle's

testimony contradicted petitioners’ theory that the

1962 document’s confidentiality provisions caused non-

reporting of child abuse by the Louisville Archdiocese.

Finally, the Holy See noted that Doyle had

identified no evidence of the 1962 document’s use in

Kentucky. In fact, although Doyle claimed to have

studied documentation from 97% of U.S. dioceses and

reviewed “more than 1,500 priest personnel files,”

Doyle Decl. J 5, Doyle has stated that “no documentary

evidence produced by dioceses in civil cases between

1985 and the present contained any reference to this

document or any indication that the prescribed norms

were ever followed.” Thomas Doyle, et al., Canonical

History of Clerical Sexual Abuse: An Overview 60

(2004), attached as Ex. R to the Lena Decl.: see also

e.g., Decl. of Thomas Doyle in Melanie H. v. Defendant

Doe 1, Case No. 04 CV 1596 WQH (JFS) (S.D. Cal

Aug. 8, 2005) at 16-17, attached as Ex. S to the Lena

Decl. (“there is httleif any evidence that the document

was ever referred to in any of the hundreds of civil

cases wrought against dioceses and_ religious

communities over the past 15 years”).

Faced with Doyle’s prior statements, petitioners

submitted another declaration from Doyle on reply

which notably did not repudiate any of his prior

testimony or publications. In connection with their

reply, petitioners also still provided no evidence that

showed that the 1962 document was ever used in

Kentucky, much less in connection with the priests

alleged to have abused petitioners. Moreover,

petitioners did not explain how the canonical

investigative and prosecutorial provisions set forth in

the 1962 document could have been applied when no

canonical investigation or prosecution ever took place

in Louisville. Complaint § 46, Pet. App. 107a-108a.

The district court denied petitioners’ motion to take

Pope Benedict XVI's deposition on October 21, 2008.

5. The Court of Appeals’ November 24,

2008 Opinion and the Parties’ Petitions

for Rehearing

On November 24, 2008, the court of appeals

affirmed the district court’s order granting in part and

denying in part the Holy See’s facial motion to dismiss

for lack of subject matter jurisdiction.” In light of

petitioners repeated descriptions of the 1962

document as “the Holy See Policy” and the “basis” of

their claims, the Sixth Circuit found that “all of the

”’ This section provides a description of the Sixth Circuit’s opinion

that is limited to petition for rehearing issues. A more complete

discussion of the Sixth Circuit’s relevant holdings is provided

below

claims advanced by plaintiffs stem from the

promulgation of the purported 1962 Policy by the [Loly

See.” Opinion, dated November 24, 2008 (“Nov. 24,

2008 Op.”) at 12. Just like petitioners’ “Statement of

Facts” in their opening brief on appeal, the Sixth

Circuit’s factual discussion quoted the Complaint’s key

language regarding the 1962 document. Compare td. at

2-3 with Plitfs’ 2d Br. at 7-8. Moreover,

had urged, the court of appeals relied on the

Complaint’s 1962 document allegations to resolve

substantive jurisdictional issues. See Nov. 24, 2008 Op.

at 12 (commercial activity exception), 17 (situs), 18-19

(discretionary function exception).

as petitioners

Petitioners filed a petition for panel rehearing.’ On

the heels of the district court. litigation wherein the

Holy See demonstrated that petitioners’ canon law

expert had previously disagreed with petitioners’ 1962

document theories, petitioners now argued that the

courtofappeals’ conclusions regarding the significance

of the 1962 document to petitioners’ case were based

upon a “misperception|.]” Plaintiffs-Appellees, Cross-

Appellants’ Pet. for Panel Reh’g, dated Dec. 22, 2008

(“PlItfs’ Pet. for Reh’g”) at 6. Indeed, petitioners argued

that even “to rmply that all of the claims made by

[petitioners] stem from the 1962 policy would be

inaccurate|.|” Plaintiffs-Appellees, Cross-Appellants’

Response to the Holy See’s Mot. for Leave to Resp. to

Pet. for Panel Reh’g, dated Jan. 6, 2009, at 1 (emphasis

added). Petitioners now claimed that they only

“mentioned” the 1962 document in the Complaint

because it “resulted in the public revelation” of the

Holy See's “direct involvement” in the handling of

In their petition for writ of certiorari, petitioners cmitted any

mention of the petition for reheanng htigation

clergy child sexual abuse. Pltfs’ Pet. for Reh’g at 7. And

In contras. to petitioners’ own appellate briefing —

which relied extensively on the 1962 document for

petitioners’ substantive jurisdictional arguments

petitioners now sought to eliminate’ material

references to the 1962 document from the court of

appeals’ jurisdictional analysis. Jd. at 8-9.

The Holy See also filed a petition for rehearing.

Describing the burden-shifting regimen under the

FSIA, the Sixth Circuit had stated tn its opinion that

a foreign sovereign is required to make a prima facie

showing “that the plaintiffs claim relates to a public

act of the foreign state -. that is, an act not within the

exceptions in sections 1605-1607.” Nov. 24, 2008 Op.

at 8 (quoting Gould, Inc. v. Pechiney Ugine Kuhimann,

853 F.2d 445, 452 n.5 (6th Cir. 1988)). Based upon this

Court’s decision in Nelson and precedent from other

circuits, the Holy See noted that foreign states do not

have a prima facie burden of showing that a plaintiffs

claims arose out of a “public act” or that the FSIA’s

exceptions do not apply. Appellant/Cross-Appellee

Holy See’s Pet. for Reh’g and Reh’g En Banc, dated

Dec. 23, 2008

The court of appeals denied petitioners’ petition for

rehearing’ and granted the Holy See’s petition for

rehearing. The Sixth Circuit filed an amended opinion

that deleted the reference to a foreign state’s prima

facie burden of showing a “public act” or the non

Petitioners at one point state that “[allthough the Sixth Circuit

focused on the 1962 mandate, in fact, the Holy See’s policies and

procedures enforcing silence regarding clergy-child sex abuse

existed long before and were simply reissued in 1962.” Cert

Petition at 15 n.3. That is, of course, what the court of appeals

rejected on rehearing which petitioners neglect to mention in

their petition for certiorar}

applicability of FSIA exceptions. See Amended

Opinion, dated Feb. 10, 2009, Pet. App. 17a-18a.

6. The Court of Appeals’ February 10, 2009

Amended Opinion

Relying upon their reading of the Oregon district

court’s opinion in Doe v. Holy See, 434 F. Supp. 2d 925

(D. Or. 2006), petitioners argue that the Sixth Circuit

erred in holding that religious activity is not

commercial activity. See Cert. Petition at 18 (“[T]he

Sixth Circuit’s conclusion that the Holy See’s conduct

is sovereign is clearly erroneous. Exempting the Holy

See’s conduct from the commercial activity exception

due to its ‘intrinsically religious’ nature is_ not

authorized by the express language or purpose of the

FSIA, this Court's decision in Weltover, and as

discussed below, the United States Constitution.”); id.

at 21 (“Under the Sixth Circuit’s analysis, the

conclusion that the Holy See’s conduct was not subject

to the commercial activity exception ignores the

private, nonsovereign nature of the conduct

Nothing indicates that Congress intended the FSIA to

immunize religious conduct as sovereign.”).

Petitioners argument mischaracterizes the Sixth

Circuit’s opinion. The Sixth Circuit nowhere held that

the Foly See's activities do not meet the requirements

of the commercial activity exception because they are

“intrinsically religious.” Instead, the court of appeals

found that “all of the claims advanced by plaintiffs

stern from the promulgation of the purported 1962

Policy by the Holy See” (Pet. App. 28a) — a “policy” that

Ever the Doe district court itseif did not reat h that conclusi yn

Doe, 434 F. Supp. 2d at 941-42

petitioners themselves allege was “an _ official

legislative text, issued by the Congregation of the Holy

Office and specifically approved by Pope John XXIII.”

Pet. App. 4a (quoting Complaint 7 45). Based upon this

Court’s holdings in Republic of Argentina v. Weltover,

Inc., 504 U.S. 607 (1992) and Saudi Arabia v. Nelson,

507 U.S. 349 (1993), the court of appeals therefore

concluded that petitioners’ claims did not stem from

private, commercial conduct. Pet. App. 27a-28a.""

More significantly, though, the court of appeals

agreed with the district court and the Doe court that

the “essence” of petitioners’ claims was _ not

commercial:

the gravaman of plaintiffs’ claims is the tortious

conduct of priests which was _ allegedly

facilitated by the tortious conduct of Holy See

employees. Thus to allow plaintiffs to obtain

jurisdiction under the commercial activity

exception through a semantic ploy would allow

them to “obtain jurisdiction over a claim that

Congress did not intend to be brought against a

foreign sovereign. We therefore conclude that

the commercial activity exception does not

apply

The court of appeals’ conclusion was well in line with this

Court’s precedent. See, e.g., Nelson, 507 US. at 362 (quoting

Lauterpacht, The Problem of Jurisdictional lmmunittes of Foreign

States, 28 Brit. Y.B. INTL L. 220, 225 (1952)) (“[Sluch acts as

legislation cannot be performed by an individual acting in his

own name. They can be performed only by the state acting as

such.”

Re)

Pet. App. 28a (quoting Leutwyler v. Office of Her

Majesty Queen Rania Al Abdullah, 184 F. Supp. 2d

277, 299 (S.D.N.Y. 2001)). The Sixth Circuit’s holding

that the commercial activity exception did not apply,

in other words, turned on the tortious nature of

petitioners’ claims, not their religious nature.

Second, with regard to the situs of the tort, the

court of appeals followed this Court’s decision in

Amerada Hess, as well as decisions of the Second

Circuit and the D.C. Circuit, to hold that the FSIA’s

tort exception Only permits jurisdiction over torts

occurring in the United States. Pet. App. 31a.

Third, the Sixth Circuit held that petitioners had

waived their argument that the FSIA could not be

constitutionally applied to the Holy See by failing to

raise it in the district court. Pet. App. 16a. The court of

appeals found no “exceptional circumstances” excusing

petitioners’ waiver. Pet. App. 16a n.5.

REASONS FOR DENYING THE WRIT

I. Certiorari Should Be Denied Because No

Conflict Exists Amongst the Circuit Courts as

to Any of the Issues Raised

The petition for writ of certiorari raises four issues.

Because there is no conflict amongst the circuit courts

as to any of the issues, the petition should be denied

A. Petitioners Do Not Claim that a Conflict

Kxists Amongst the Circuit Courts as to

Three of the Four Issues Raised in

Their Petition

Petitioners do not claim a conflict amongst the

circuit courts as to three of the four issues they raise

First, petitioners do not claim that there is a conflict

regarding the Sixth Circuit’s holding that the Holy

See’s alleged policy regarding sexual abuse is not

“commercial activity.”’’ Second, petitioners do not

argue that there exists a conflict with regard to

whether applying the FSIA to the Holy See violates

the Constitution.”

Third, with regard to their “gravamen” argument,

petitioners correctly acknowledge that a “growing

number of courts” apply the essence-of-the-complaint

rule adopted by the Sixth Circuit. Cert. Petition at 22.

The gravamen approach was applied by this Court in

Nelson and has been used by the Second, Fifth,

Seventh and Ninth Circuits. Nelson, 507 U.S. at 363;

see alsa, e.g.,Garb v. Republic of Poland, 440 F.3d 579,

588 (2d Cir. 2006); Chuidian v. Philippine Nat'l Bank,

912 F.2d 1095, 1106 (9th Cir. 1990); De Sanchez v.

‘Throughout their petition, petitioners repeatedly state that part

of the inquiry under the commercial activity exception is whether

the activity is “public” or “private.” See, e.g., Cert. Petition at 12

That is incorrect. Under the plain language of the statute, the

inquiry is whether the activity is “commercial.” 28 U.S.C.

1605(a\X2); 28 U.S.C. 1603(d); see also Weltover, 504 U.S. at 615

“the issue is whether the particular actions that the foreign state

performs (whatever the motive behind chem) are the type of

actions by which a private party engages in ‘trade and traffic or

commerce|.|”)(emphasis added) (citations omitted); cf Phaneuf v

Republic of Indonesia, 106 F.3d 302, 306 (9th Cir. 1997)

(“Requiring a foreign state to prove a public act conflicts with the

plain language of the statute: a foreign state 1s immune from suit

unless one of the enumerated exceptions applies. There is no

exception for non-pubhe acts ”)

Courts have, in fact, long applied the FSIA to the Holy See. See,

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

Colagtovanni, 443 F.3d 425 (Sth Cir. 2006); English v. Thorne, 676

F.Supp. 761 (S.D. Miss. 1987)

Banco Central de Nicaragua, 770 F.2d 1385, 1398-99

(Sth Cir. 1985); Alberti vu. Empresa Nicaraguense de la

Carne, 705 F.2d 250, 254 (7th Cir. 1983). Moreover, all

three federal courts to reach the issue have concluded

that the gravamen rule precludes application of the

commercial activity exception in cases against the

Holy See involving sexual abuse claims. See Pet. App.

28a (panel decision); Pet. App. 53a (district court

opinion); Doe, 434 F. Supp. 2d at 942.'° Petitioners

provide no reason why this Court should grant

certiorar1 to review an issuc that has been the subject

of consensus in FSIA jurisprudence.

B. Petitioners Erroneously Claim that a

Circuit Conflict Exists Regarding

Whether the Tort Must Occur in the

United States Under the Tort Exception

Petitioners claim that a “conflict exists” with regard

to whether a tort must occur in the United States in

order to fall within the FSIA’s tort exception. Cert.

Petition at 27. The claim is incorrect: no circuit conflict

exists.

First, the rule applied by the Sixth Circuit 1s

compelled by this Court’s decision in Amerada Hess,

which held that the tort exception “covers only torts

occurring within the territorial jurisdiction of the

United States.” Amerada Hess, 488 U.S. at 441.

Petitioners’ characterization of the language in

Amerada Hess as dictum is erroneous. In the relevant

See also English, 676 F. Supp. at 763 (in case against Holy See

alleging clerical sexual abuse, listing FSIA exceptions and holding

that “the immunity exception upon which plaintiffs must rely is

(the tort exception]”) (emphasis added)

part of the opinion, the Amerada Hess Court rejected

an argument that mere injury in the United States —

the claimed loss of property resulting from disrupted

contractual payments due in New York — could confer

jurisdiction under the tort exception. Jd. The Court did

not reject the argument on the basis that the alleged

injury was insufficient under the tort exception;

instead, the Court rejected the argument because the

tort exception required the tort to occur within the

United States. Jd. Since the conclusion regarding the

locus of the tort was essential to the decision, the

language states a holding, not dictum. See, e.g., Cabiri

v. Gov’t of Republic of Ghana, 165 F.3d 193, 200 n.3

(2d Cir. 1999) (stating that the Amerada Hess Court

“held that this exception ‘covers only torts occurring

within the territorial jurisdiction of the United

States”) (emphasis added); Wolf v. Fed. Republic of

Germany, 95 F.3d 536, 542 (7th Cir. 1996) (same).

The two cases cited by petitioners for the

proposition that a conflict exists — Letelier v. Republic

of Chile, 488 F. Supp. 665 (D.D.C. 1980) and Olsen v.

Gou't of Mexico, 729 F.2d 641 (9th Cir. 1984) — are both

pre-Amerada Hess decisions. Moreover, Letelter was

subsequently rejected by the D.C. Circuit. See

Persinger v. Islamic Republic of Iran, 729 F.2d 835,

842-43 (D.C. Cir. 1984); Asociacion de Reclamantes v.

United Mexican States, 735 F.2d 1517, 1524-25 (D.C.

Cir. 1984); see also Frolova v. Union of Soviet Socialist

Republics, 761 F.2d 370, 379-80 (7th Cir. 1985)

(stating that the Letelier court’s interpretation was

“rejected by the Court of Appeals for that circuit”). In

addition, after Amerada Hess, the Ninth Circuit has

made statements that call into question whether Olsen

remains good law. See, e.g., Sec. Pac. Natl Bank v

Derderian, 872 F.2d 281, 285 n.8 (9th Cir. 1989) (citing

Amerada Hess, 109 S. Ct. at 688-91) (stating that the

tort exception “requires not only that personal injury

or property damages occur in the United States, but

that the tortious act or omission occur here”); see also

Doe v. Holy See, 557 F.3d 1066, 1085 n.11 (9th Cir.

2009) (“we have no occasion to consider whether the

entire tort must occur in the United States, as the

Sixth and D.C. Circuits have held”).

In any event, the weight of authority after Amerada

Hess is overwhelming: courts agree that the tortious

act or omission must occur in the United States to fall

within the tort exception, just as the court of appeals

held below. See Cabiri, 165 F.3d at 200 n.3; Wolf, 95

F.3d at 542; Jones v. Petty-Ray Geophysical Geosource,

Inc., 954 F.2d 1061, 1065 (Sth Cir. 1992); AGrams v.

Societe Nationale des Chemins de Fer Francais, 175 F.

Supp. 2d 423, 431 (E.D.N.Y. 2001), vacated on other

grounds by 332 F.3d 173 (2d Cir. 2003), cert. granted

and vacated, 542 U.S. 901 (2004), affd 389 F.3d 61 (2d

Cir. 2004); Sampson v. Fed. Republic of Germany, 975

F. Supp. 1108, 1118 (N.D. Ill. 1997); S. Seafood Co. v.

Holt Cargo Sys., Inc., No. Civ.A.96-5217, 1997 WL

539763, at *7 (E.D. Pa. Aug. 11, 1997); Cabiri v. Gov't

of Republic of Ghana, 981 F. Supp. 129, 1382 (&.D.N-Y.

1997), affd in part and revd on other grounds tn 165

F.3d 193 (2d Cir. 1999); Hirsh v. State of Israel, 962 F.

Supp. 377, 383-84 (S.D.N.Y. 1997); Rein v. Rein, No. 95

Civ. 4030 (SHS), 1996 WL 273993, at *3(S.D.N.Y. May

23, 1996); Coleman v. Alcolac, Inc., 888 F. Supp. 1388,

1403 (S.D. Tex. 1995); Smith v. Socialist People’s

Libyan Arab Jamahiriya, 886 F. Supp. 306, 313

(E.D.N.Y. 1995); El-Fadl v. Cent. Bank of Jordan, No.

Civ.A. 93-1895 RMU, 1994 WL 1656111, at *4(D.D.C.

Nov. 9, 1994); Velasquez v. Gen. Consulate of Mexico,

No. C-92-3745 CFL, 1993 WL 69493, at *3 (N.D. Cal.

Mar. 4, 1998), Intercontl Dictionary Series v. De

Gruyter, 822 F. Supp. 662, 677 (C.D. Cal. 1993),

disapproved on other grounds in Sun v. Taiwan, 201

KF 3d 110 (9th Cir. 2000); Denegri v. Republic of Chile,

Civ. A. No. 86-3085, 1992 WL 91914, at *2 (D.D.C.

Apr. 6, 1992); Antares Aircraft L.P. v. Fed. Republic of

Nigeria, No. 89 Civ. 6513 (JSM), 1991 WL 29287, at *4

(S.D.N.Y. Mar. 1, 1991); Polanco v. Dominican

Republic, No. 90 Civ. 7089 (WK), 1991 WL 146306, at

#2 (S.D.N.Y. July 22, 1991); Pickling v. Commw. of

Australia, 775 F. Supp. 66, 72 (E.D.N.Y. 1991); Von

Dardel v. Union of Soviet Socialist Republics, 736 F.

Supp. 1, 7-8 (D.D.C. 1990); Goquiolay v. Philippines

Nat'l Bank, No. 90 CIV. 893 (CSH), 1990 WL 144118,

at *3 (S.D.N.Y. Sept. 28, 1990); Bennett v. Stephens,

CIV. A. No. 88-2610 (RCL), 1989 WL 17751, at *4

(D.D.C. Feb. 23, 1989)."

There is, in short, no circuit conflict with regard to

whether the tort must occur in the United States to

satisfy the tort exception’s requirements. Because the

only conflict identified by petitioners does not. exist,

the petition should be denied.

'* Even before Amerada Hess, the consensus was that the tortious

act or omission had to occur within the United States. Frolova

761 F.2d at 379-80; Asociacion de Reclamantes, 735 F.2d at 1524;

Persinger, 729 F.2d at 842; Kline v. Kuneko, 685 F. Supp. 386, 391

(S.D.N.Y. 1988); Four Corners Helicopters, Inc. v. Turbomeca S.A.,

677 F. Supp. 1096, 1102 (D. Colo. 1988); Ledgerwood v. State of

Tran, 617 F. Supp. 311, 314 (D.D.C. 1985); Kline v. Republic of Fl

Salvador, 603 F. Supp. 1313, 1315-16 (D.D.C. 1985); Evans v

Petroleo, Civil Action No. H-83-91, 1984 WL 1887, at *1(S.D. Tex

Aug. 2, 1984); In re Sedco, Inc., 543 F. Supp. 561, 567 (S_D. Tex

1982); see also H.R. REP. No. 1487, at 21 (1976) (“the tortious act

or Omission must occur within the jurisdiction of the United

States”); English, 676 F. Supp. at 764 (applying tort exception’s

situs rule in case against Holy See arising out of sexual abuse

claim)

II. Certiorari Should be Denied Because

Petitioners Have Failed to Identify Any

Compelling Reason Justifying this Court’s

Review

In addition to not identifying a circuit conflict,

petitioners provide no compelling reason justifying this

Court’s grant of certiorari. Supreme Court Rule 10.

The issues raised by petitioners turn on the

Complaint’s allegations regarding the 1962 document

and on the imputation of acts of the Louisville

Archdiocese to the Holy See. The issues are unique to

petitioners’ Complaint; they are not matters of

national importance. *”

Petitioners urge consideration of the effect that the

Sixth Circuit’s decision may have on “class members”

who have already settled lawsuits and released

bishops in the United States, Cert. Petition at 28, but

petitioners have not yet moved for, much less obtained,

class certification. This is currently an action brought

by three individual plaintiffs, not a class, and only the

interests of those three individuals are properly before

the Court. See, e.g., Baxter v. Palmigiano, 425 US.

308, 312 n.1 (1976) (“Without such certification [under

Rule 23] and identification of the class, the action is

The Holy See recently filed a petition for a writ of certiorari in

the only other pending case against the Holy See involving claims

of child sexual abuse. See Holy See v. Doe, No. 09-1 (U.S. filed

June 25, 2009). There is one plaintiffin Doe, and the case does not

involve any allegations regarding the 1962 document. Moreover,

the issue of national] importance raised by the Holy See’s petition

for a writ of certiorari — whether a foreign sovereign can be

stripped of immunity based upon a vicarious liability rule that is

contrary tothe FSIA’s jurisdictional requirements —- is not at issue

in the instant case

‘2)

not properly aclass action.”); Cruz v. Farquharson, 252

F.3d 530, 534 (1st Cir. 2001) (“Only when a class is

certified does the class acquire a legal status

independent of the interest asserted by the named

plaintiffs ....”); McKenzie v. City of Chicago, 118 F.3d

552, 555 (7th Cir. 1997) (“Because a class has not been

certified, the only interests at stake are those of the

named plaintiffs.”).

Given that the issues raised by petitioners are not

of general significance, certiorari should be denied.

Il. Certiorari Should be Denied Because

There Remain Numerous Unadjudicated

Facial Grounds for Dismissal

Certiorari is not appropriate given that petitioners’

Complaint is subject to numerous unadjudicated facial

grounds for dismissal.

The district court and the court of appeals held that

petitioners’ jurisdictional allegations were sufficient

under the FSIA’s tort exception to withstand a facial

Rule 12(b)(1) challenge. However, in light of this

Court’s intervening decision in Ashcroft v. Iqbal, 1298.

Ct. 1937 (2009), the sufficiency of petitioners’

Complaint for purposes of subject matter jurisdiction

is once again an open question. For example, the

district court and the appellate court accepted as true

petitioners’ allegation that the Holy See exerts

“absolute and unqualified power and control . . . over

each and every priest, bishop, brother, sister, parish,

diocese, archdiocese, and instrumentality of the

Church” in the United States to find that petitioners

had sufficiently alleged employment under the FSIA’s

tort exception. Complaint 4 20, Pet. App. 100a. The

lower courts also deemed sufficient petitioners’ bare

assertion that the 1962 document was a “substantial

factor” in causing petitioners’ injuries. Complaint J 48,

Pet. App. 108a. Given this Court’s recent holding in

Iqbal that conclusory allegations should not be taken

as true, 129 S. Ct. at 1950, the law of the case

regarding the sufficiency of petitioners’ pleading is

now unsettled. See, e.g., Davis v. United States, 417

U.S. 333, 342 (1974) (holding that court of appeals

erred in adhering to law of the case doctrine despite

intervening Supreme Court precedent). The issue will

need to be resolved by the lower court in the first

instance. See, e.g., Hunter v. Hydrick, 129 8. Ct. 2431

(2009), remanding for further consideration in light of

Iqbal 500 F.3d 978 (9th Cir. 2007)

Second, the Holy See intends to challenge the

sufficiency of petitioners’ Complaint under Rule

12(b)(6)."° As with a renewed facial 12(b)(1) challenge,

a challenge under Rule 12(b)(6) will address the

sufficiency of petitioners’ Complaint in light of Jqgbal -

including whether petitioners’ bare assertions of injury

by the Holy See’s “policy,” and that diocesan bishops in

the United States are Holy See “employees,” are

sufficient. The Holy See also intends to raise, inter

alia, statute of limitations and release defenses in a

Rule 12(b)(6) motion. All three petitioners waited

decades after their injuries before filing suit against

the Holy See, and Kentucky appellate courts have

barred child abuse suits under statute of limitations

provisions in similar circumstances. See, e.g., Moyers

i Roman Catholic Bishop of Louisville, No

2004-CA-J001886-MR, 2005 WL 3116116, at *5 (Ky

App. Nov. 23, 2005). In addition, petitioner Turne:

noted above. Rule

facial ubiec

released the Holy See’s putative “employee” — the

Louisville Archbishop — in 2004; under Kentucky law,

that release should operate in favor of the Holy See.

See, e.g., Waddle v. Galen of Ky., Inc., 1381 S.W.3d 361,

366 (Ky. App. 2004); see also Cert. Petition at 28.

Given the upcoming potentially-dispositive

litigation, there is no reason for this Court to review

the court of appeals’ decision now. The Holy See

brought an immediate appeal of the district court’s

decision in order to preserve its immunity from suit; as

this Court has recognized in the immunity context,

such appeals are appropriate under the collateral

order doctrine. /qbal, 129 S. Ct. at 1945-46

Petitioners, on the other hand, can appeal any adverse

rulings once final judgment is entered. At that stage,

petitioners can argue that review by this Court is

appropriate; for now, however, any such argument is

premature

IV. Certiorari Should Be Denied Because

Petitioners’ Claims Regarding Both the

1962 Document and the Imputation of Acts

of Separate Corporations to the Holy See

are Not Ripe for this Court’s Review

Kven assuming that the Complaint can survive a

subsequent purely legal challenge, recent

developments have revealed that petitioners’ case has

other significant jurisdictional problems.

The litigation during the pendency of the appeal

which was initiated when petitioners moved to take

Pope Benedict XVI’s_ deposition demonstrated

fundamental problems in petitioners’ 1962 document

theories. Notwithstanding the extraordinary nature of

petitioners request, petitioners were unable to produce

evidence linking their injuries to any Holy See action,

including the 1962 document. In fact, petitioners’ own

expert had previously rejected all of petitioners’

central contentions regarding the 1962 document,

including (a) that the 1962 document’s confidentiality

provisions were intended to “ensure the continued

receipt of funds” from parishioners, (b) that the

document is evidence of a worldwide “cover up” by the

Holy See and (c) that the 1962 document “mandated”

non-compliance with state child abuse reporting

statutes. See supra pp. 10-12.

This Court should not grant certiorari under these

circumstances. Before reaching the issue of whether

the 1962 document could constitute “commercial

conduct” for purposes of FSIA jurisdiction, the Court

should afford the court below the opportunity to

determine whether petitioners can even meet their

burden of producing evidence of a link between the

1962 document and their claims. See Pet. App. 17a-18a

(panel decision) (stating that petitioners have the

burden of producing evidence showing that an FSIA

exception applies). After all, if petitioners cannot

sustain their claims regarding the 1962 document, the

first three questions petitioners raise in their petition

would be hypothetical. See, e.g., Ticor Title Ins. Co. v

Brown, 511 U.S. 117, 118 (1994) (certiorari

Improvidently granted where constitutional question

“may be entirely hypothetical”)

ven if petitioners were able to surmount all of the

problems identified above, this case would still require

further development with regard to whether the acts

alleged by petitioners are even attributable to the Holy

See. For purposes of pleading, the district court and

the Sixth Circuit accepted petitioners’ bare allegation

that bishops and other clerics in the United States

were Hloly See employees. Ilowever, the district court

noted that “facts may emerge during the litigation that

allow the Holy See to meet its burden [of showing non-

employment]” and that the court was “willing to

reexamine its ruling on this issue at an appropriate

time.” Pet. App. 59a."’ As the Ninth Circuit recently

held, acts by dioceses in the United States are not

attributable to the Holy See absent day-to-day control

or an alter ego reiationship. See Doe, 557 F.3d at 1080

(rejecting FSIA jurisdictional theory based on

allegations that “the actions of the domestic

corporations are attributable to the Holy See”); see

also, e.g., First Natl City Bank v. Banco Para el

Comercio Exterior de Cuba, 462 U.S. 611, 626-27

(1983). This Court should not resolve whether the

activities alleged by petitioners — such as providing

educational or counseling “services” — satisfy the

commercial activity exception until petitioners meet

their burden of producing evidence that there is an

agency or alter ego relationship upon which to

attribute the alleged acts.

In short, this case is not ripe for the Court’s review.

V. Certiorari Should Be Denied Because

Petitioners Waived Their Arguments that

the First Two Clauses of the FSIA’s

Commercial Activity Exception Apply and

Have Not Provided Any Basis for

Application of the Third Clause

Petitioners waived their argument that jurisdiction

les under the first two clauses of the commercial

’ Of course, under the Sixth Circuit’s amended opinion and the

iSIA’s burden-shifting regimen, petitioners are the ones who will

have the burden of production as to the employment issue. Pet

App. 17a-18a

activity exception. While petitioners’ Complaint alleges

jurisdiction under all three clauses (Complaint {| 2,

Pet. App. 92a; Pet. App. 53a (district court opinion)),

petitioners did not contest the Holy See’s arguments in

the district court that neither of the first two clauses

applied. Further, petitioners nowhere asserted in their

district court briefing that jurisdiction could lie under

the first two clauses. Petitioners’ failure to raise these

arguments in the lower court resulted in waiver. See,

e.g., Youakim v. Miller, 425 U.S. 231, 234 (1976)

(“Ordinarily, this Court does not decide questions not

raised .. . in the lower court.”).

Petitioners have also never provided any basis for

application of the commercial activity exception’s third

clause. Given that the alleged educational and

counseling “programs” — the supposed “commercial

activity” — occurred in the United States, it is unclear

whatcommercial activity “elsewhere” petitioners claim

satisfies the third clause. See 28 U.S.C. 1605(a)(2) (“in

connection with a commercial activity of the foreign

state elsewhere”) (emphasis added); see also, e.g., H.R.

REP. No. 94-1487, at 19 (stating that third clause

embraces “commercial conduct abroad having a direct

effect in the United States”). Moreover, petitioners

cannot satisfy the third clause’s requirement that an

act of the Holy See “causeld] a direct effect in the

United States|.]” 28 U.S.C. 1605(a)(2). An effect is

direct “only if it follows as an immediate consequence

of the defendant's .. . activity.” Weltover, 504 U.S. 607,

618 (1992). Petitioners have provided no basis to find

that their alleged injuries — resulting from intervening

decisions by unidentified actors over a broad span of

time — were “immediate consequencel|s]” of any Holy

See “policy.”

Because petitioners’ commercial activity arguments

either have been waived or iack merit, certioran

should be denied.

VI. Certiorari Should Be Denied With Respect

to the Constitutional Issues Because

Petitioners Have Waived Them

Petitioners’ cursory briefing of constitutional issues

omits that the court of appeals held that petitioners’

constitutional arguments had been waived for failure

to raise them in the district court. See Pet. App. 16a

(holding that “plaintiffs waived their constitutional

challenges to the FSIA”); cf. Cert. Petition at 31-35.°

“This Court ... is one of final review, not of first

view.” F.C.C. v. Fox Television Stations, Inc., 1295S. Ct.

1800, 1819 (2009) (quotations and citations omitted);

see also, e.g., United States v. Oakland Cannabis

Buyers Co op., 532 U.S. 483, 494 (2001) (“Because the

Court of Appeals did not address these claims, we

decline to do so in the first instance.”). Because

petitioners’ constitutional arguments were waived and

not reached by the court of appeals, the Court should

decline to grant certiorari.

CONCLUSION

The petition for writ of certioram should be denied.

'Itis worth noting that the United States government intervened

in the court of appeals and took the position that the FSIA was

not unconstitutional as apphed to the Holy See

Respectfully submitted,

Jeffrey S. Lena

Counsel of Record

LAW OFFICE OF JEFFREY S. LENA

1152 Keith Avenue

Berkeley, CA 94708

(510) 665-1713

Mary McNamara

Alexis Haller

SWANSON, MCNAMARA & HALLER LLP

300 Montgomery Street, Suite 1100

San Francisco, CA 94104

(415) 477-3800

Byron H. Done

LAW OFFICE OF BYRON H. DONE

1990 N. California Blvd., 8th Floor

Walnut Creek, CA 94596

(925) 932-7009

R. Gregg Hovious

John David Dyche

FULTZ MADDOX HOVIOUS & DICKENS PLC

2700 National City Tower

101 S. Fifth Street

Louisville, KY 40202

(502) 588-2000

July 2009

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.