556 F.3d 361 (6th Cir. 2009), 07-5078, O'Bryan v. Holy See

Docket Nº:07-5078, 07-5163.
Citation:556 F.3d 361
Party Name:James H. O'BRYAN, Donald E. Poppe, and Michael J. Turner, Plaintiffs-Appellees/Cross-Appellants, v. HOLY SEE, Defendant-Appellant/Cross-Appellee.
Case Date:February 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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556 F.3d 361 (6th Cir. 2009)

James H. O'BRYAN, Donald E. Poppe, and Michael J. Turner, Plaintiffs-Appellees/Cross-Appellants,

v.

HOLY SEE, Defendant-Appellant/Cross-Appellee.

Nos. 07-5078, 07-5163.

United States Court of Appeals, Sixth Circuit.

February 10, 2009

Argued: March 18, 2008.

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ARGUED:

Jeffrey S. Lena, Law Offices of Jeffrey S. Lena, Berkeley, California, for Appellant.

William F. McMurry, McMurry & Associates, Prospect, Kentucky, for Appellees. Lewis Yelin, United States Department of Justice, Washington, D.C., for Intervenor.

ON BRIEF:

Jeffrey S. Lena, Law Offices of Jeffrey S. Lena, Berkeley, California, R. Gregg Hovious, John David Dyche, Fultz, Maddox, Hovious & Dickens, Louisville, Kentucky, for Appellant.

William F. McMurry, Adrienne W. Kim, McMurry & Associates, Prospect, Kentucky, Douglas H. Morris II, Lea A. Player, Morris & Player, Prospect, Kentucky, for Appellees. Lewis Yelin, Douglas N. Letter, United States Department of Justice, Washington, D.C., for Intervenor.

Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

AMENDED OPINION

Defendant Holy See appeals the district court's denial, in part, of its motion to dismiss all of plaintiffs' claims due to lack of subject matter jurisdiction. The Holy See contends that the district court has no

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subject matter jurisdiction over plaintiffs' claims because the Holy See is immune from suit as a foreign state pursuant to the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § 1602 et seq. Plaintiffs James H. O'Bryan, Donald E. Poppe, and Michael J. Turner (" plaintiffs" ) cross-appeal the district court's partial grant of the Holy See's motion to dismiss. Plaintiffs claim that the FSIA does not immunize the Holy See from suit on the grounds alleged in their complaint and thus the district court does in fact have subject matter jurisdiction in this case. The United States as intervenor and amicus supports the position of the Holy See with respect to the Holy See's status as a foreign state and the constitutionality of the FSIA. For the following reasons, we affirm the decision of the district court.

I.

On June 4, 2004, plaintiffs, who claim to have been victims of sexual abuse by Roman Catholic clergy, filed a class action suit against the Holy See. The Holy See is both a foreign state and an unincorporated association and the central government of an international religious organization, the Roman Catholic Church. The United States has recognized the Holy See as a foreign sovereign since 1984. According to their complaint, plaintiffs consist of representatives for two separate classes. James H. O'Bryan and Donald E. Poppe serve as the representatives of Class I, which " consists of all persons who have not previously brought claims against an agent or servant of the Defendant, Holy See, in the United States ... arising out of sexual abuse he or she suffered at the hands of a Roman Catholic priest, cleric, bishop, archbishop, cardinal, agent or employee...." Michael J. Turner serves as the representative of Class II, which " consists of all persons who have previously brought claims against an agent or servant of the Defendant, Holy See, in the United States ... arising out of sexual abuse he or she suffered at the hands of a Roman Catholic priest, cleric, agent or employee...." All three representatives were residents of Kentucky and citizens of the United States at the time of the alleged sexual abuse by local Catholic priests.

As representatives, the plaintiffs allege the following underlying facts in support of their suit.

Plaintiff, James H. O'Bryan, was sexually abused, molested and assaulted by a Roman Catholic priest in the 1920s, while Plaintiff was under the care, custody, authority, control and influence of an abusive Roman Catholic priest, which authority was granted to him by the Defendant, Holy See.

Plaintiff, Donald E. Poppe, was sexually abused, molested and assaulted by a Roman Catholic priest in the 1960s, while Plaintiff was under the care, custody, authority, control and influence of an abusive Roman Catholic priest, which authority was granted to him by the Defendant, Holy See.

Plaintiff, Michael J. Turner, was sexually abused, molested and assaulted by a Roman Catholic priest in the mid 1970s, while Plaintiff was under the care, custody, authority, control and influence of an abusive Roman Catholic priest, which authority was granted to him by the Defendant, Holy See.

In all cases, plaintiffs allege that the sexual molestation in question " occurred while the abusive Roman Catholic priest, agent, servant or employee was acting within the scope of his employment, as part of an agency relationship with the Defendant, Holy See, and the misconduct was committed with the apparent authority arising from this employment and/or agency relationship."

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Plaintiffs' claims regarding the liability of the Holy See stem, in large part, from their allegations regarding the purported policy of the Holy See towards accusations of sexual abuse leveled against clergy:

[T]he Holy See has mandated that all allegations of childhood sexual abuse be kept under a cloak of complete secrecy, even if that secrecy violated state, federal, or international law. In March, 1962, the Holy See privately circulated a document containing a set of procedural norms for dealing with the solicitation of sex in confession, clergy sex with minors, homosexual relations, and bestiality. This document [the " 1962 Policy" ]-an official legislative text issued by the Congregation of the Holy Office and specifically approved by Pope John XXIII-imposes the highest level of secrecy on the handling of clergy sexual abuse matters.... This secret document was first discovered and made public in July, 2003 by news media in the United States and throughout the world. The policies of the Holy See expressed in this and other documents require bishops in the United States to, among other things, refuse to report childhood sexual abuse committed by priests to criminal or civil authorities, even where such failure to report would itself be a criminal offense.

(Plaintiff's Complaint, Introduction.) On behalf of Class I, plaintiffs outline in their complaint the following causes of action: 1 violation of customary international law of human rights; negligence; breach of fiduciary duty; and the tort of outrage/intentional infliction of emotional distress. In addition, plaintiffs advance claims of deceit and misrepresentation against the Holy See " in its capacity as an Unincorporated Association and Head of an International Religious Organization Only." Finally, plaintiffs, on behalf of Class I, request injunctive relief.

On behalf of Class II, plaintiffs outline in their complaint the following causes of action: violation of customary international law of human rights; negligence; breach of fiduciary duty; and the tort of outrage/intentional infliction of emotional distress. In addition, plaintiffs advance claims of deceit and misrepresentation against the Holy See " in its capacity as an Unincorporated Association and Head of an International Religious Organization Only." Finally, plaintiffs, on behalf of Class II, request injunctive relief.

Plaintiffs assert in their complaint that federal subject matter jurisdiction exists in this case on a number of grounds. First, plaintiffs advance claims of federal jurisdiction under the FSIA, 28 U.S.C. § 1602 et seq. Assuming that the Holy See is a " foreign state" within the meaning of 28 U.S.C. § 1603, plaintiffs claim that federal jurisdiction attaches because (1) the Holy See has waived its immunity pursuant to 28 U.S.C. § 1605(a)(1); (2) the Holy See was acting in a commercial capacity pursuant to 28 U.S.C. § 1605(a)(2); or (3) the money damages that are sought are for personal injuries stemming from the Holy See's tortious conduct pursuant to 28 U.S.C. § 1605(a)(5).

Alternatively, assuming that the Holy See is not a " foreign state" within the meaning of 28 U.S.C. § 1603, plaintiffs assert that this court has subject matter jurisdiction pursuant to 28 U.S.C. § § 1331 and 1332 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

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On April 4, 2005, the Holy See filed a motion to dismiss on the grounds that the plaintiffs' complaint failed to state a claim upon which relief can be granted, lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient process and insufficient service of process. In its memorandum and opinion of October 7, 2005, the district court addressed the Holy See's claim that the service of process had been insufficient. In doing so, the district court began its analysis by determining that the Holy See was in fact a " foreign state" within the meaning of the FSIA. In turn, the district court found that plaintiffs had not satisfied the service of process requirements under the FSIA, 28 U.S.C. § 1608(a). However, the district court found that because the plaintiffs had made good faith attempts 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 went on to consider the Holy See's motion to dismiss on the grounds that there was no subject matter jurisdiction in the instant...

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