Vatican appeals John V. Doe vs. Holy See March decision, still Anderson prepares for discovery

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Even though the Catholic Church appealed the Ninth Circuit Court decision from March 2009, which allowed a lawsuit against the Vatican filed by Jeff Anderson, Minnesota attorney, on behalf of a Portland Oregon plaintiff to go forward, Jeff Anderson said recently, "We are now amending the complaint and hope to start discovery soon. They did appeal what happened in the 9th Circuit last March."

As the 90 day deadline for appeal approached, Law Office of Jeffrey S. Lena, filed Defendant Holy See’s opening brief, saying: “Corporations in the United States such as a diocese or religious order are not a 'foreign state' or an 'official or employee' of a foreign state.” The Vatican brief is quoted in depth in this post.

You can easily imagine Vatican attorneys Jeff Lena of Berkeley CA and Thomas Christ (honest) of Portland OR, in litigation. Every few seconds they must hold up their hands and make fake quotation marks with their fingers.

The Vatican brief continues: “The Complaint alleges an 'employment' relationship between the Holy See and (Fr. Andrew) Ronan only through the Corporations.

“The exception requires a tortious act or omission by the 'foreign state' or an 'official or employee' of the foreign state. Corporations in the United States - such as a diocese or religious order - are not a 'foreign state' or an 'official or employee' of a foreign state.

“Accordingly, Plaintiff cannot rely on the acts of the Corporations to confer jurisdiction over the Holy See.”

Accordingly this lawuit is going to go on a lot longer:

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Vatican re Ninth Circuit Decision

Quoted here:
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C. The Holy See is Immune from Suit

Because the Holy See is presumptively immune from suit, 28 U.S.C. § 1604, subject matter jurisdiction only lies if an exception to immunity applies. 28 U.S.C.
§ 1330(a).

Because exceptions to sovereign immunity are in derogation of the common law and sovereignty, they should be strictly construed.

FSIA exceptions must be "narrowly construed" because they are "in derogation of the common law");

The district court held that Plaintiff alleged facts sufficient to confer jurisdiction under the tort exception.

The FSIA's tort exception states:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury . . . occurring in the United States and caused by the tortious act or omission ofthat foreign state or of any official or employee of that foreign state while acting
within the scope of his office or employment-

Except this paragraph shall not apply to (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of. . .misrepresentation [or] deceit.

Because the tort exception was "designed primarily to remove immunity for cases arising from traffic accidents[,]" it "should be narrowly construed so as not to encompass the farthest reaches of common law."

1. The Acts of the Corporations Do Not Support Jurisdiction Over the Holy See Under the Tort Exception

All of Plaintiff's claims against the Holy See rely upon an alleged agency relationship between the Holy See and the Corporations. Plaintiff asserts that the
Holy See is vicariously liable for the conduct of the Corporations.

The Complaint alleges an "employment" relationship between the Holy See and Ronan only through the Corporations.

Ronan was "placed" in Portland through the acts of the Corporations. See supra at 15-16. Finally, the Holy See had "knowledge" of Ronan's "propensities" only "by and through" its agents.

The exception requires a tortious act or omission by the "foreign state" or an "official or employee" of the foreign state.

Corporations in the United States - such as a diocese or religious order - are not a "foreign state" or an "official or employee" of a foreign state.(9th Cir. 2005) (holding that the term "employee" under the Federal Tort Claims Act ("FTCA") did not apply to
corporations).

Accordingly, Plaintiff cannot rely on the acts of the Corporations to confer jurisdiction over the Holy See.9

Accepted principles of statutory construction confirm this result.

First, Congress declined to use the general term "agent" in section 1605(a)(5), opting instead for two specific subcategories within agency law - an "official" and an "employee." The omission of "agent" in the tort exception contrasts with the FSIA's later-adopted terrorism exception, which permits jurisdiction based upon conduct "by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agencylT 28 U.S.C. § 1605(a)(7).

Given that Congress did not use the terms "agent" and "agency" in section 1605(a)(5), but did
so in section 1605(a)(7), the tort exception should be construed to exclude

Read the entire Vatican brief HERE

These are the conclusions:

(b) The District Court's Corporate Law
Analysis was Flawed for Five Separate Reasons
The district court held, incorrectly, that the separate status of the Corporations should be disregarded for five reasons.

(i) The District Court Erred in Concluding that the Presumption of Separateness Did Not Shield the
Holy See.

In the district court's view, the presumption of separate status protects corporations created by a sovereign from being held responsible for sovereign acts, but does not protect sovereigns from liability for the acts of separate corporations.

Viewing the Archdiocese and Order as separate instrumentalities of the Holy See would shield them from the wrongs

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN V. DOE,
Plaintiff-Appellee & Cross-Appellant,
HOLY SEE, et al,

Defendant-Appellant & Cross-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. CV-02-00430-MO

Honorable Michael W. Mosman, United States District Judge

DEFENDANT-APPELLANT HOLY SEE'S OPENING BRIEF
Jeffrey S. Lena, CSBN 189900
Law Office of Jeffrey S. Lena
1152 Keith Avenue
Berkeley, CA 94708-1607
Telephone: (510) 665-1713
Facsimile: (510) 588-5555

Thomas M. Christ, OSBN 83406
Christine Coers-Mitchell, OSBN 92260
Cosgrave Vergeer Kester LLP
805 S.W. Broadway, 8th Floor
Portland, OR 97205
Telephone: (503) 323-9000
Facsimile: (503) 323-9019
Attorneys for Defendant-Appellant and
Cross-Appellee Holy See

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[PDF] Doe v. Holy See (State of the Vatican City), et al. File Format: PDF/Adobe Acrobat - View as HTML

JOHN V. DOE,. ) ) Case No.: Plaintiff,. ) ) COMPLAINT vs. ) ) HOLY SEE, (State of the Vatican City), Its. ) Instrumentalities and/or Agents - Does 1-10; Judicial View >> Court Cases >> Torts >> Holy See Sued in Priest ...

Doe v. Holy See, 557 F.3d 1066 (C.A. 9, Mar. 3, 2009) ... in the U.S. District Court for the District of Oregon, John V. Doe alleged that Father Ronan, [PDF] 1 of 1 DOCUMENT Cited As of: Jan 20, 2007 JOHN V. DOE, Plaintiff ...

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By Kay Ebeling
Hollywood, CA