O'Bryan v. Holy See
| Decision Date | 06 October 2005 |
| Docket Number | No. 3:04CV-338-H.,3:04CV-338-H. |
| Court | U.S. District Court — Western District of Kentucky |
| Parties | James H. O'BRYAN, Donald E. Poppe, and Michael J. Turner, Individually and on Behalf of All Similarly Situated Persons, Plaintiffs, v. HOLY SEE, in its Capacity as a Foreign State (State of the Vatican City), and in its Capacity as an Unincorporated Association and Head of an International Religious Organization, Defendant. |
Marci A. Hamilton, Washington Crossing, PA, Ross Thomas Turner, William Fletcher McMurry, William F. Mcmurray & Associates, Louisville, KY, for Plaintiffs.
Jeffrey S. Lena, Berkeley, CA, John David Dyche, R. Greg Hovious, Tachau, Maddox, Hovious & Dickens PLC, Louisville, KY, for Defendant.
Plaintiffs James O'Bryan, Donald Poppe, and Michael Turner ("Plaintiffs") filed this putative class action against the Holy See ("Defendant") in its Capacity as a foreign state and in its capacity as an unincorporated association and head of an international religious organization, alleging claims for liability under the doctrines of respondeat superior, violation of customary international law of human rights, negligence, breach of fiduciary duty, infliction of emotional distress, deceit, and misrepresentation. Their claims arise from allegations of sexual abuse by local Catholic priests many years ago. Plaintiffs seek monetary and injunctive relief.
Defendant has moved to dismiss on the grounds of insufficient service of process, insufficient process, lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. Pursuant to the Court's order of May 27, 2005, the Court will consider Defendant's motion to dismiss for insufficient service of process before addressing the remainder of Defendant's motions.
Plaintiffs attempted service of process on Defendant in three ways. Plaintiffs first attempted to serve Defendant under 28 U.S.C. § 1608(a)(3). On August 24, 2004, the Clerk of this Court sent a copy of the summons, complaint, and notice of suit, and a Latin translation of each via DHL Worldwide Express with delivery notification, addressed in the following manner:
Company Name: Secretariat of State
Contact Name: Head of the Secretariat of State
Delivery Address: Section for Relations with States
Apostolic Palace
Country: Vatican City State
Post/ZIP Code: 00120
In five attempts, DHL was unable to deliver the documents. Plaintiffs next attempted service under 28 U.S.C. § 1608(a)(4). On November 3, 2004, the Clerk of this Court sent two copies of the summons and complaint and notice of suit, and a Latin translation of each via DHL Worldwide Express with delivery notification, addressed to the Director of Special Consular Services, U.S. Department of State, Washington D.C. The State Department transmitted a letter to the Clerk of this Court that included a certified copy of the diplomatic note it included with Plaintiffs' materials. The note indicated that Plaintiffs' documents were transmitted to Defendant on December 13, 2004. Plaintiffs' third attempt at service was pursuant to the Kentucky long-arm statute, KRS § 454.210, under which the Kentucky Secretary of State sends, via certified mail with return receipt requested and bearing the return address of the Secretary of State, a copy of the summons and complaint to the defendant at the address listed in the complaint. The Secretary of State's return of service indicates that service was effected on June 18, 2004.
The threshold question is whether Defendant is a foreign state within the meaning of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1608 et seq. The United States government has recognized the Holy See as a foreign sovereign since January 10, 1984. See, e.g., Americans United for Separation of Church and State v. Reagan, 786 F.2d 194, 197 (3d Cir.1986), Dale v. Colagiovanni, 337 F.Supp.2d 825 (S.D.Miss.2004) (); English v. Thorne, 676 F.Supp. 761, 764 (S.D.Miss. 1987) (). It is well established that such decisions are nonjusticiable. See Americans United, 786 F.2d at 201-202 (). The Sixth Circuit has also recognized the nonjusticiability of the determination of an entity's status as a foreign sovereign. In United States v. Newman, 889 F.2d 88, 96-97 (6th Cir.1989), it said that the determination of whether an issue presents a nonjusticiable political question is "grounded on a respect for the separation of powers and a corollary concern that courts not engage in the brand of policy evaluation traditionally reserved to other branches of government." Newman, 889 F.2d at 96-97 (citing Baker v. Can, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).
Plaintiffs make two arguments against the application of the FSIA to their claims. First, they argue that an entity's sovereign status must be determined as of the time the conduct in question occurred, and second, that the Court may determine that he Holy See has a separate capacity as a church, and is therefore not a foreign sovereign for purposes of the FSIA in this separate capacity (thereby obviating the need for service in accordance with the provisions of the FSIA). For the following the Court finds neither argument persuasive.
An Executive Branch decision to recognize an entity as a foreign sovereign applies retroactively and "validates all the actions and conduct of the government so recognized from the commencement of its existence." Oetjen v. Cent. Leather Co., 246 U.S. 297, 303, 38, S.Ct. 309, 62 L.Ed. 726 (1918); See also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (); United States v. Pink, 315 U.S. 203, 233, 62 S.Ct. 552, 86 L.Ed. 796 (1942) (); United States v. Belmont, 301 U.S. 324, 328-330, 57 S.Ct. 758, 81 L.Ed. 1134 (1937) (recognition is retroactive). Further, the FSIA itself is retroactive in application and applies to actions of foreign sovereigns prior to the passage of the FSIA. Republic of Austria v. Altmann, U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1, (2004) (). Consequently, the FSIA would apply to all actions of the Holy See from the time of its commencement.
Plaintiffs cite no authority for the proposition that the Holy See may be sued in a separate, non-sovereign function as an unincorporated association and as head of an international religious organization. They can point to no instance in which any sovereign's status has been disregarded on these grounds. Indeed, to do so would entirely defeat the purpose of the FSIA. As Defendant rightly notes, under Plaintiffs' argument, potential claimants would be permitted to skirt the requirements of the FSIA merely by claiming that a sovereign was not acting as a sovereign, in the "context" of a particular case, but rather was acting in some other "capacity." Such a rule would significantly undermine the uniformity that Congress expressly intended. See Davis v. McCourt, 226 F.3d 506, 509 (6th Cir.2000) (); see also H.R. REP. No. 94-1487 (1976) at 32 (). In light of the FSIA's goal of "encouraging foreign states and their instrumentalities to appear before United States courts and allowing the merits of case involving foreign sovereigns to be considered completely and carefully." Amernational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 976 (6th Cir.1991), the Court will consider Plaintiffs' claims against Defendant only under the provisions of the FSIA.1
As a foreign state, service in accordance with the provisions of the FSIA is the sole means of obtaining jurisdiction over the Holy See. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (); Republic of Argentina v. Weltover, 504 U.S. 607, 610, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) () The Sixth Circuit acknowledged the comprehensive nature of the FSIA in Universal Consolidated Cos. v. Bank of China, 35 F.3d 243, 245 (6th Cir.1994), where it held "by making § 1330 [of the FSIA] the sole basis for jurisdiction over a foreign state, regardless of the nature of the action, Congress has provided that it is precisely the sovereign status of the defendant which determines the method in which the defendant may be sued."
Section 1330(b) of the FSIA provides that "[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title." Service of process on a foreign state must be effected in strict...
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O'Bryan v. Holy See
...to perfect service of process, it would grant them an additional 60 days in which to perfect service. O'Bryan v. Holy See, 490 F.Supp 2d 826, 832 (W.D.Ky.2005) ("O'Bryan I"). On January 10, 2007, the district court determined that plaintiffs had perfected service of process and therefore we......
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O'Bryan v. Holy See
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