DOC2: Anderson Response to U.S. Solicitor General

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The federal brief in Holy See vs. John V Doe last month was "A misreading of Oregon law," plaintiffs write, noting the same absurdity CofA noted last night in the Solicitor General's 5.21.10 brief:

(See cleaned up version of this document filed here later in evening: DOC2: Reply to U.S. Solicitor General, Posted Here, Says Acts of Abuse Inseparable from Perp Priest Role as Employee )

Whether sex crimes fall within "the scope of employment" is for a jury to decide, write the plaintiffs, in what to me seems a polite way of pointing out something obvious to the civil service attorneys in the room. Again, I'm at my other job, so below is the plaintiff brief with all the hard returns still in it, will clean it later, but for the record:

SUPPLEMENTAL BRIEF FOR RESPONDENT
Pursuant to Sup. Ct. R. 15.8, Respondent
submits this brief in response to the Solicitor
General’s Brief for the United States as Amicus
Curiae (“Gov’t Br.”). The government’s brief correctly
asserts that this case has none of the elements that
would justify a grant of certiorari in this case, and so
the petition should be denied.
The government’s brief, however, misguidedly
recommends that, in the alternative, this Court
should grant certiorari in order to vacate the decision
of the United States Court of Appeals for the Ninth
Circuit for the purpose of re-visiting state law. The
government’s suggestion rests on a misguided reading
of Oregon state law, and is derived from mere dictum
in an intermediate appellate Oregon court case. The
government’s reasoning would mean that the Oregon
Supreme Court should have reached an opposite
result in its on-point and controlling case, Fearing v.
Bucher, 997 P.2d 1163, 1166 (Or. 1999). The Petition
should be denied.
--------------------------------- ♦---------------------------------
2
ARGUMENT
I. The Definition of “Scope of Employment”
Is Governed by State Law, and, in this
Case, by the Oregon Supreme Court,
Which Has Held It Is a Jury Question, Not
a Question of Law
It is settled precedent in the Ninth Circuit – and
every other circuit to directly address the issue – that
state law governs whether acts are “within the scope
of employment” under the Foreign Sovereign Immunities
Act, 28 U.S.C. § 1605(a)(5). Randolph v. Budget
Rent-a-Car, 97 F.3d 319, 325 (9th Cir. 1996). See also
O’Bryan v. Holy See, 556 F.3d 361, 383 (6th Cir.
2009); Robinson v. Gov’t of Malay., 269 F.3d 133, 142-
145 (2d Cir. 2001); Moran v. Kingdom of Saudi
Arabia, 27 F.3d 169, 173 (5th Cir. 1994). It is difficult
to believe that there is any alternative plausible
interpretation given that “scope of employment” is a
long-established term under state tort law, and tort
law is almost exclusively a matter for the states. Erie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938). If Congress
intended “scope of employment” to be a term of legal
art with a distinctive federal meaning, it would have
been required to provide such a meaning. Neder v.
United States, 527 U.S. 1, 21 (1999). It did not.
Therefore, the only relevant question before this
Court at this time is the most reasonable and
3
plausible interpretation of Oregon state law governing
“scope of employment.”1
A. The Government Has Misread State
Law Governing “Scope of Employment”
The government has twisted Oregon state law
almost to the point of being unrecognizable. First, the
government treats the question whether sexual abuse
can be within the scope of employment for superior
respondeat liability as a matter of law. According to
the government, “the alleged sexual abuse in this
case did not fall within the scope of employment as a
matter of Oregon law.” Gov’t Br. at 13. This is, in fact,
a mischaracterization of the Oregon Supreme Court’s
precedents.
The most plausible and reasonable reading of
Oregon Supreme Court cases is that whether an
employee has acted within the “scope of employment”
in cases involving sex abuse is a question of fact for
the jury – not a question of law. While sexual assault
or abuse by itself may not be within the scope of
employment, sexual assault arising out of and
interrelated with the employee’s duties, actions, and
1 As the government correctly states, there are two
additional reasons that this issue is not debatable: (1) Petitioner
did not challenge this aspect of the decision below, and (2) the
Supreme Court has followed the same interpretation with
respect to the same language in the Federal Tort Claims Act.
Gov’t Br. at 9, n.5 (citing to Williams v. United States, 350 U.S.
857 (1955) (per curiam)).
4
intent to serve the master may well fall within the
scope of employment. Chesterman v. Barmon, 753
P.2d 404, 406 (Or. 1988). If acts clearly within the
scope of employment are interrelated with and
necessarily cause the abuse, the abuse can be
considered by the jury as occurring within the scope
of employment (along with all the other relevant acts
taken in the scope of employment) for purposes of
determining respondeat superior liability. Fearing,
997 P.2d at 1166.2 The Oregon test does not permit
employer liability simply because the employment
relationship brings the employee and the victim
together. To the contrary, the abuse must necessarily
be linked to the employee’s role, obligations, and
service to the employer in such a way that a jury can
infer that the acts of abuse are inseparable from the
sexual aggressor’s role as an employee. In that
circumstance, the abuse can be one of the facts that
satisfies the core element of proof that the employee
was acting “within the scope of employment” in that
case and, therefore, the employer is liable for those
acts. Minnis v. Oregon Mut. Ins. Co., 986 P.2d 77, 83
2 Oregon is not alone in treating “scope of employment” as a
question of fact for the jury. See Martinelli v. Bridgeport Roman
Catholic Diocesan Corp., 989 F.Supp. 110, 118 (D. Conn. 1997);
Garriepy v. Ballou & Nagle, 157 A. 535, 537 (Conn. 1931); Alma
W. v. Oakland Unified School Dist., 176 Cal. Rptr. 287, 289 (Cal.
Ct. App. 1981); Tall ex rel. Tall v. Board of Sch. Comm’rs, 706
A.2d 659, 668 (Md. Ct. Spec. App. 1998); Fahrendorff ex rel.
Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn.
1999); Doe v. Bruton Parish Church, 42 Va. Cir. 467, 477 (Va.
Cir. Ct. 1997); Gilliam v. DSHS, 950 P.2d 20, 28 (Wash. Ct. App.
1998).
5
(Or. Ct. App. 1999). If the government were correct,
Fearing would have been decided differently.
Second, the government manufactures new
Oregon law by trying to extract “scope of employment”
from a theory of respondeat superior liability.
There is no such thing. “Respondeat superior” means,
literally, “let the superior make answer,” Black’s Law
Dictionary 1313 (7th ed. 1999), or, that the employer
is liable for harm to the victim, because the
employee’s actions occurred under the umbrella of the
employer.
According to the government, Oregon has created
a “new tort” of vicarious liability for which the
triggering acts need not be in the scope of employment.
Gov’t Br. at 15-16. This reading cannot be
supported by the discussion in Fearing or its outcome.
Moreover, under long-settled tort law, it would be
nonsensical to consider respondeat superior liability
without proof of acts within the scope of employment,
so the government’s attempt to sever the two is
absurd.
Even if the government’s reading were correct
that the sex act itself is never within the scope of
employment, the government’s conclusion that the
defendant employer would then be absolved of liability
for sexual abuse because there are no tortious
acts within the scope of employment that can trigger
liability is patently wrong.
The Oregon Supreme Court’s obvious reasoning
is that acts necessarily leading up to the abuse are
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part of the set of facts establishing that the employee
committed a tort within the “scope of employment.”
Therefore, the employer is vicariously liable for the
abuse. See, e.g., Fearing, 997 P.2d at 1168; Minnis,
986 P.2d at 83. In other words, the grooming and
the attempts to gain the trust of the child and
family, using the position created by the employer,
are sufficient tortious acts “within the scope of employment”
to create vicarious liability for sex abuse.3
This means that the plaintiff is permitted to go
forward in a sex abuse case under Oregon law based
on acts other than the sex act within the scope of
employment. There is no question that the Amended
Complaint describes those acts. Am. Compl. ¶¶ 13-14.
Third, the government rests its recommendation
to grant certiorari for the purpose of vacating the
court of appeals’ decision on the slender reed of a
state intermediate appellate decision. According to
the government, this lower court opinion holds that,
as a matter of law, sexual abuse may never be within
the scope of employment. However, this is not what
the Oregon Supreme Court has held, and “the State’s
highest court is the best authority on its own law.”
C.I.R. v. Bosch’s Estate, 387 U.S. 456, 465 (1967).
3 The government apparently believes that the tort of
sexual abuse is a one-event tort. That would be contrary to the
copious studies and the views of the experts on the subject. See,
Kenneth V. Lanning, Former Supervisory Special Agent, FBI,
Child Molesters: A Behavioral Analysis 37 (4th ed. 2001)
available at http://www.cybertipline.com/en_US/publications/
NC70.pdf.
7
As discussed above, the Fearing case treats the
question of whether the acts of abuse are within the
scope of employment as a fact question for the jury,
not a question of law. Fearing, 977 P.2d at 1168. The
governing question under Oregon law is whether the
abuse is directly tied into the employee’s actions and
intent to serve the employer. Fearing, 997 P.2d at
1166. If that question can be answered in the
affirmative, a jury can find that those acts, along with
the employee’s other relevant acts, are within the
scope of employment and, therefore, vicarious
liability attaches for sexual abuse.
Archdiocese of Portland, 180 P.3d 160 (Or. Ct.
App. 2008), rev’d on other grounds, Schmidt v. Mt.
Angel Abbey, 223 P.3d 399 (Or. 2009), on which the
government relies, also provides a particularly weak
justification for vacating the Court of Appeals,
because the Oregon Supreme Court reversed Schmidt
on other grounds and did not take up the Schmidt
court’s reasoning with respect to “scope of employment.”
In fact, the Oregon Supreme Court expressly
refused to reach the “scope of employment” issue: “We
limited our review of the Court of Appeals decision to
the statute of limitations issue, ORAP 9.20(2), and
therefore express no opinion as to the respondeat
superior issue.” Schmidt, 223 P.3d 399, 402 n.1 (Or.
2009).
In any event, the meaning of state law is
determined by state supreme court precedent, not by
intermediate courts. C.I.R. v. Bosch’s Estate, 387 U.S.
at 465. And when the state law is fairly disputed by
the parties, the state supreme court is the only
8
appropriate body to clarify the issue. Employment
Div. v. Smith, 485 U.S. 660 (1988) (remanding case to
Oregon Supreme Court for clarification of law, where
interpretation was disputed by the parties). That
means the controlling decision is Fearing, as the
Court of Appeals for the Ninth Circuit correctly held.
II. The Government’s Reasoning Is Inconsistent
with Other Provisions and the Legislative
History of the FSIA
The FSIA was intended to de-politicize these
cases and to take the State Department out of the
calculus. Congress could not have been more explicit
that it is inappropriate for the executive branch to
attempt to alter governing law in order to reach a
particular end in tort or commercial cases.
Accordingly, the exceptions in FSIA were intended to
shield victims from both the vagaries of politics and
pressure from foreign sovereigns. The government’s
far-fetched reading of Oregon law appears to cross
that line.4
4 The executive branch could be more appropriately involved
with these issues if it were to take efforts to protect the
interests of United States children by initiating investigations,
following the lead of Ireland and Germany. See Commission
to Inquire into Child Abuse, Commission Report (2009), http://
www.childabusecommission.com/rpt/; Yvonne Murphy, et al.,
Commission of Investigation: Report into The Catholic Archdiocese
of Dublin (2009), http://www.dacoi.ie/; Francis D. Murphy, et
al., The Ferns Report (2005), http://www.bishop-accountability.
org/ferns/; Verena Schmitt-Roschmann, Pope’s Former Diocese
(Continued on following page)
9
Section 1606 states that “the foreign state shall
be liable in the same manner and to the same extent
as a private individual under like circumstances.” 28
U.S.C. § 1606 (2009). Yet, under the government’s
reasoning, a private organization that creates an
employment environment that induces child sex
abuse in Oregon is liable for the sex abuse of the
child, while a sovereign that engages in identical
behavior and causes the same harm is not. This is
contrary to Congress’s intent.
The legislative history states that the FSIA was
enacted to protect American citizens from harm
generated by the acts of sovereign employees,
officials, and agents in the United States. FSIA also
was supposed to end the practice of having sovereigns
pressure the State Department to avoid accountability
to American citizens for torts and commercial
obligations. It is axiomatic that under the FSIA,
American citizens like John V. Doe, who are harmed
by the employment practices of sovereigns, like the
Holy See, should be permitted to go into United
States courts in order to obtain redress for the harm
done to them.
As the House Report explained, under the law
before FSIA:
Faces ‘Tsunami’ Of Abuse Allegations, HUFF. POST, Mar. 19,
2010, http://www.huffingtonpost.com/2010/03/19/germany-abusemunich-
dioc_n_505601.html (discussing government task force
addressing abuse by Catholic clergy).
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A private party who deals with a foreign
government entity cannot be certain that his
legal dispute with a foreign state will not be
decided on the basis of non-legal considerations
through the foreign government’s
intercession with the Department of State.
(H.R. Rep. No. 94-1487, pt. 9, at 1 (1976)). The FSIA
was intended to change the balance so that American
victims could obtain justice when sovereigns harmed
them:
A principal purpose of this bill is to transfer
the determination of sovereign immunity
from the executive branch to the judicial
branch, thereby reducing the foreign policy
implications of immunity determinations and
assuring litigants that these often crucial
decisions are made on purely legal grounds
and under procedures that insure due
process. The Department of State would be
freed from pressures from foreign governments
to recognize their immunity from suit
and from any adverse consequences resulting
from an unwillingness of the Department to
support that immunity. As was brought out
in the hearings on the bill, U.S. immunity
practice would conform to the practice in
virtually every other country – where
sovereign immunity decisions are made
exclusively by the courts and not by a foreign
affairs agency.
Id., pt. 7 at 5. Accordingly, John V. Doe asks for
nothing more than the rule of law pursuant to a fair
reading of governing state law.
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III. The Government’s Reasoning Appears to
Suffer from a Deficient Understanding of
the Phenomenon of Child Sex Abuse
within Organizations
Child sex abuse by an employee may be wholly
independent of employment in some, and even most,
circumstances, but there are times when an employer
or organization can operate in a way that makes the
abuse virtually inevitable. The Centers for Disease
Control and Prevention have studied the issue. Janet
Saul, Ph.D. & Natalie Audage, M.P.H., Preventing
Child Sex Abuse within Youth Organizations: Getting
Started on Policies and Procedures, Centers for
Disease Control and Prevention, National Center for
Injury Prevention and Control, U.S. Dep’t of H.H.S.
at 18 (2007), available at http://www.cdc.gov/ncipc/dvp/
preventingchildsexualabuse.pdf. Prosecutors have as
well. Report of the Grand Jury of the Court of
Common Pleas First Judicial District of Pennsylvania,
Criminal Trial Division, Phil. Grand Jury
Rep. Misc. No. 03-00-239, § 1, at 1 (2003), available
at http://www.philadelphiadistrictattorney.com/images/
Grand_Jury_Report.pdf.
Courts in Oregon are intended to provide redress
to children harmed in organizations as a result of
the organization’s policy failures. See, e.g., Special
Verdict, Lewis v. Boy Scouts of America, et al., No.
0710-11294 (Or. 4th Dist. Cir. Ct., Apr. 13, 2010)
(jury awards punitive damages against Boy Scouts
organization for mishandling child sex abuse claims
for decades).
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The Fearing rule speaks to the reality of
organizational mishandling of child safety. Fearing v.
Bucher, 997 P.2d 1163, 1166 (Or. 1999). By failing to
pay adequate attention to the facts of this case, the
government elides this essential element of the case.
Here are the facts, which the government’s brief
glosses over: Father Andrew Ronan used his priestly
position to abuse children in a parish in Benburb,
Ireland (Am. Compl. ¶ 11); he admitted to abusing
the children (Am. Compl. ¶ 11); he was transferred to
Chicago and placed in a school, where he also
admitted to abusing children and wondered aloud
why the Church kept putting him in assignments
with access to children (Am. Compl. ¶ 12); and then
he was transferred to Oregon and placed in a parish
where, once again, dealing with children was integral
to his employment. That is where he abused John V.
Doe (Am. Compl. ¶¶ 13-15). Under Oregon law, there
is no question that a jury should be permitted to hear
this evidence and to decide whether, as a matter of
fact, the abuse was part and parcel of Ronan’s acts
within the “scope of employment” for the Holy See.
The Oregon rule that treats “scope of employment”
in abuse cases as a question of fact for the jury
reflects the compelling interest in protecting children
from child sex abuse. Although, generally, sexual
abuse is not likely to be “within the scope of
employment,” the Oregon Supreme Court recognizes
such a possibility. Like all good tort rules involving
children, it is a deterrent to harm and an incentive to
protect. Without it, organizations can ignore the
13
needs of children and escape accountability when
they do not. There is no legitimate reason to distort
Oregon Supreme Court cases and the FSIA to make
an exception for any sovereign that endangers United
States children.5
--------------------------------- ♦---------------------------------
CONCLUSION
The government is correct that there is no reason
for this Court to take this case on the merits. The
government’s novel and strained interpretation of
Oregon cases is untenable and unreasonable. Therefore,
its suggestion to grant certiorari for the purpose
of vacating the decision below is unsound.
5 As the government notes, the question of jurisdiction
under the commercial activity exception is not before this Court
at this time and remains pending in the courts below. Gov’t Br. 6
n.3.
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For the foregoing reasons, Respondent respectfully
requests this Court DENY the petition for
certiorari.
Respectfully submitted,
MARCI A. HAMILTON, ESQ.
Counsel of Record
36 Timber Knoll Drive
Washington Crossing, PA 18977
(215) 353-8984
hamilton02@aol.com
JEFFREY R. ANDERSON, ESQ.
MICHAEL G. FINNEGAN, ESQ.
JEFF ANDERSON AND
ASSOCIATES, P.A.
366 Jackson Street, Suite 100
St. Paul, MN 55101
(651) 227-9990
WILLIAM A. BARTON, ESQ.
KEVIN K. STREVER, ESQ.
BARTON & STREVER, P.C.
P.O. Box 870
Newport, OR 97365
(541) 265-5377
Attorneys for Respondent
John V. Doe