Victory for Clergy Sexual Abuse Victims: The Ninth Circuit Strips the Holy See of Foreign Sovereign Victory for Clergy Sexual Abuse Victims: The Ninth Circuit Strips the Holy See of Foreign Sovereign Immunity in Doe v. Holy See

I. INTRODUCTION In Doe v. Holy See1 the Ninth Circuit narrowly upheld the district court's refusal to grant a motion to dismiss by the Holy See, which claimed sovereign immunity under the Foreign Sovereign Immunities Act ("FSIA").2 At issue was whether an exception to sovereign immunity permitted an alleged victim of sexual abuse by a Roman Catholic priest to bring suit against the Holy See, otherwise known as the Vatican.3 As part of its inquiry, the Ninth Circuit examined the pleadings to determine whether the alleged activities of the Holy See fit one of the statutory exceptions to sovereign immunity - in this case, either the commercial activity exception or the tortious exception.4 Additionally, the court examined the basis for holding the Holy See vicariously liable for the actions of its affiliated U.S. corporations. The court ultimately refused to address the commercial activity exception on jurisdictional grounds, but it addressed the remaining issues of the tortious exception and vicarious liability.6 The court held that the tortious exception applied, but only for a single respondeat superior claim against the Holy See.7 The court also held that the Holy See could not be held vicariously liable for the behavior of its affiliated U.S. corporations because the plaintiff had not sufficiently alleged "day-to-day control" over these corporations or an abuse of the corporate form.8 This Note argues that, although the Ninth Circuit's decision in Doe v. Holy See was correct, the court's rationale for denying a review of the commercial activity exception is suspect because the majority demonstrated an apparently willful misunderstanding of the applicable legal standards. Additionally, this Note argues that the Ninth Circuit's decision will have a lasting impact on future clergy sexual abuse litigation because (1) plaintiffs throughout the country will have a drafting guide to more carefully plead their claims; and (2) many more states may consider adopting Oregon's expansive view of respondeat superior liability as a civil means of vindicating victims of clergy sexual abuse. II. FACTS AND PROCEDURAL HISTORY John V. Doe alleged that in approximately 1965, when he was fifteen or sixteen years old, he was sexually abused multiple times by Father Andrew Ronan, a parish priest at St. Albert's Church in Portland, Oregon.9 For these injuries, Doe not only brought claims against the Archdiocese of Portland and other affiliated organizations10 in the United States, but also against the Holy See,11 which is the head of the worldwide Roman Catholic Church.12 The claims against the Holy See included (1) vicarious liability for the acts of its instrumentalities and domestic corporations, (2) respondeat superior for the actions of Ronan as an alleged employee of the Holy See, and (3) direct liability based on the Holy See's own negligence in retention and supervision of Ronan, and its failure to warn of his harmful propensities.13 In response, the Holy See claimed sovereign immunity from suit under the FSIA and moved the court to dismiss the case.14 The district court denied the motion to dismiss in part, and held that nearly all of Doe's tort claims (even the vicarious liability claims) could proceed against the Holy See by way of the tortious exception in the FSIA.15 The court determined that the Holy See could not take advantage of an exception to the tortious exception (the discretionary function exclusion) because the Holy See's behavior was not a "policy-based" decision susceptible to the "balancing of competing interests."16 The court also found that even though the acts of the Holy See could be otherwise considered "commercial activity,"17 the commercial activity exception could not apply because Doe's claims "sound[ed] in tort."18 III. SIGNIFICANT LEGAL BACKGROUND To better understand why the district court and the Ninth Circuit struggled with the application of the FSIA in this case, it is helpful to trace the relevant legal history. …