Sixth Circuit Holds That The Holy See Is Not Wholly Immune from Mass Tort Class Action
One of the most fascinating things about practicing mass tort litigation is when these cases intersect with international law and policy, as they did recently in O'Bryan v. See, 2009 WL 305342 (6th Cir. Feb. 10, 2009). There, the Sixth Circuit -- in a precedent-setting opinion -- allowed some mass tort causes of action to be pursued against the highest authority in the Roman Catholic Church.
In O'Bryan, three Kentucky residents brought a class action suit against the Holy See for injuries suffered by all of those who were allegedly "sexually abused, molested and assaulted by a Roman Catholic priest . . . while they were 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." Id. at *1. This lawsuit differed from many previous sexual abuse lawsuits in that it did not bother naming individual dioceses or priests. Rather, following the advice once given to Bob Woodward, plaintiffs sought to "follow the money" to thereby reach the Big Kahuna.
There was only one problem: the Holy See is a State that the United States has recognized as a foreign sovereign since 1984. Id. As such, the defendant argued that it was immune from suit (and the court lacked subject matter jurisdiction) under the Foreign Sovereign Immunities Act, 28 U.S.C. sec. 1602. Even the US government appeared in this lawsuit arguing on the Holy See's behalf.
But, of course, the Holy See is not just a foreign principality. In a passage that brings to mind the migraine-inducing lessons on the nature of the Holy Trinity that I endured in Sunday School, the Sixth Circuit explained: "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." Id.
And that was basically plaintiffs' point: they were injured not by the way the foreign state ran its consulate, but rather by how an international religious organization ran its churches in the United States. For purposes of plaintiffs' lawsuit, the Holy See's contemporaries were not Monaco and Liechtenstein, but rather the Episcopalians and the Lutherans -- neither of which are entitled to sovereign immunity for torts they might commit.
Plaintiffs pled their lawsuit carefully. First, they alleged that each abusive priest was an agent, servant or employee of the Holy See acting with apparent authority arising from his agency or employment relationship. Second, they premised their causes of action on the so-called "1962 Policy" -- a privately-circulated document allegedly issued by the Congregation of the Holy Office in Rome and specifically approved by Pope John XXIII that expressly required 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." Id. at *2. Third, they pled 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 response to defendant's FSIA jurisdictional argument, plaintiffs pressed their point that their dispute was with the Holy See as the governing body of a religious organization, not a State. But the Sixth Circuit wasn't buying it. There can be no dispute that the United States recognizes the Vatican as a foreign state, and thus the FSIA applies. Period.
But the FSIA has exceptions that might allow for suit: (1) waiver of immunity, (2) actions conducted in a commercial capacity, and (3) money damages sought for personal injuries stemming from the State's (or its agent's) tortious conduct within the United States. The Sixth Circuit proceeded to analyze each of the exceptions in turn.
The first exception was a non-starter, as there was no evidence that The Holy See had voluntarily waived immunity. As for the commercial activity exception, the Sixth Circuit was also unpersuaded. The court applied two "limitations" on this exception to conclude that it was not relevant here. First, the activities plaintiffs alleged were not -- according to the court -- "of the type in which private individuals engage" during commercial activity. Rather, governance of the church was more akin to the actions of a sovereign. Second, the court looked to the gravamen of the plaintiff's claims. Because they were not of a type one would expect from commercial activity -- property damage, breach of contract, copyright infringement, etc. -- this also counseled against finding in favor of a commercial activity exception.
But then the court analyzed the elements of the "tortious act" exception, concluding that some -- but not all -- of plaintiffs' claims had correctly survived the motion to dismiss and were properly the subject of federal jurisdiction. The alleged acts of sexual abuse were not performed while the tortfeasors were acting within the scope of their employment, so the Sixth Circuit concluded that the Holy See could not be sued for sexual abuse conducted in the United States by its clergy. Similarly, "any portion of plaintiffs' claims that relies upon acts committed by the Holy See abroad cannot survive." Id. at *16. Thus, the Holy See could not be sued simply for promulgating the 1962 policy in Rome.
However, the court held that the Holy See could be properly sued under the "tortious act" exception for the supervisory acts or omissions its agents committed in the United States:
All of plaintiffs' claims also advance theories of liability premised on the conduct of Holy See employees in the United States engaged in the supervision of the allegedly abusive priests. These portions of plaintiffs' claims meet the four requirements for application of the tortious act exception.
First, . . . plaintiffs have pled both that the relevant archbishops, bishops and other Holy See personnel had knowledge of the alleged sexual abuse of priests and that they failed to act on that knowledge. In doing so, it would seem that the complaint also pleads that conduct of [these people was] a substantial factor in causing plaintiff's damages, satisfying Kentucky's causation requirements.
In addition, . . . tortious acts committed by [these people] while engaged in the supervision of allegedly abusive priests satisfy the requirements of the FSIA's tortious act exception that the tortious act occur in the United States and within the scope of employment.
* * *
Thus, the portions of plaintiffs' claims that are based upon the conduct of bishops, archbishops, and Holy See personnel while supervising allegedly abusive clergy satisfy all four requirements of the tortious act exception: this conduct served as a substantial cause of the alleged abuse; the conduct occurred in the United States; the conduct was within the scope of employment; and these individuals were, according to the pleadings, Holy See employees.
Id. at *17.
The court then went count-by-count, delineating what claims were cognizable under the FSIA.
1. International Law of Human Rights -- The claim failed as to the actual promulgation of the 1962 Policy because it occurred abroad, but survived "as it pertains to the conduct of [the Holy See's] employees who, pursuant to the 1962 Policy, violated the terms of the relevant international laws through their tortious supervisory conduct over the allegedly abusive clergy." Id. at *18.
2. Negligence -- Claims of negligence against the Holy See for its own conduct (including negligent hiring) did not survive, but claims of "failure to warn" and "failure to report" premised on the conduct of Holy See employees in the United States did survive.
3. Breach of Fiduciary Duty -- This claim only survived for the actions of supervisory employees occurring in the United States.
4. Tort of Outrage/Intentional Infliction of Emotional Distress -- The claim failed as it pertained to the promulgation of the 1962 Policy and as to the priests' abusive conduct, which did not occur within the scope of their employment. The claim survived, however, as to the conduct of supervisory employees in the United States who abided by the 1962 Policy.
It is difficult to predict O'Bryan's ultimate impact on mass tort litigation against the Catholic Church in the United States. The defendant can be expected to seek rehearing en banc and/or a writ of certiorari from the US Supreme Court. This case also has serious statute of limitations problems, and it seems unlikely that a court considering class certification really could conclude that the predominance and superiority requirements of Rule 23(b)(3) could be satisfied in a case where the sexual abuse at issue for just the named plaintiffs spans from the 1920s to the 1970s. Individual issues clearly would predominate. And yet, O'Bryan stands as a roadmap for how to plead a claim against the Vatican itself, even if only in an individual action.
