Outrage at Obama Siding with the Vatican, continued:

.
The U.S. Government argues in the Supreme Court for The Vatican, ignoring the outcry of adult victims of pedophile priests and their families who are pleading for a federal investigation. Instead the Solicitor General finds a phrase in a decision they can quote in an amicus brief, allowing the Feds to buck pass back to a circuit court and avoid the hard work of prosecuting tens of thousands of sex crimes against children, perpetrated out of the Roman Catholic Church.

The same crimes, same patterns, same MO in one Archdiocese after another, all across the country, indeed all over the world, pedophiles preyed on parishes.

And Pope Evil Eyes is grinning from behind a golden chalice.

"We did it guys, we got away with it."

It was a pedophile network, overseen by the Vatican, left to run out of control in Catholic churches around the world, and now the U.S. Government wants to let them get away with it.

The tens of thousands of survivors of these crimes around the USA are reeling right now, for a whole new reason. We now have post obstructed justice trauma syndrome.

If we can't turn to the President, after state and county governments have one after another dropped investigations, who is going to see we get justice for these crimes here on Earth?

*******************
Please don't tell me the bad guys will burn in hell, as you don't really know that, do you.

The priest sex crimes were networked, overseen, and organized and need to be dealt with here, in this time, on this planet.
*******************

The argument we hear in every state for ignoring the crimes is always the passage of time, the statutes of limitations, too many years since the priests perpetrated the crimes. It's been too many decades, it's against the pedophiles' civil rights to prosecute 40-50 years later, as we quoted a Catholic lobbyist in New York saying yesterday.

Psychologists are publishing breakthrough research today saying:

NOW WE UNDERSTAND CHILD SEX ABUSE-
It takes decades for the victim as an adult to realize they were even assaulted.

Yet in this same decade of breakthrough understanding of dynamics of child abuse and its effects on the adult victim, prosecutors working for the United States, and in most states and counties, still shrug off these serial felonies inside the Catholic Church, even though the crimes brought catastrophe to tens of thousands of American families.

Aiding and abetting of the crimes involved crossing state and national borders.

Where is law enforcement? Where are the prosecutors?

Nothing in this country is working right.
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PS: From AB in Pennsylvania: If this [SOL] is the case then there should be time limits on "HOMICIDE" as witnesses die and people forget, what a bunch of BS...
/
The City of Angels Is Everywhere
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Catholic Lobbyist Downplays Clergy Abuse Crisis as Actions of A Few Individuals 50 Years Ago

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In today's NY Times re state lawmakers rejecting Child Victims Act fifth time:

Dennis Poust, the communications director of the New York State Catholic Conference, said the vote represented an emerging consensus that time limits on legal liability were an important civil rights protection. The conference is the policy arm of the state’s Catholic bishops, the bill’s most formidable opponents.

“You cannot ask institutions to take responsibility for the failures of a few individuals whose actions took place 40 and 50 years ago,” Mr. Poust said. (Continue Reading here )

****
CofA: They keep getting away with this lie. If these crimes only involve a "few individuals," how did they add up to five thousand priests in the USA and perpetrators emerging in other countries?

There was an epidemic of pedophilia among priests and the Catholic Church turned these perverts loose in American communities. Now because people do not want to insult other people's religion, they are getting away with it.

What a great cover for a criminal, wear a priest's robes, you can get away with anything.
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FIASCO: Vatican and Big Oil Both Bewilder Obama

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A better (revised) version of this story is running on AlterNet: FIASCO: Vatican and Big Oil Both Bewilder Obama

This post is the 1st draft:

Obama and his advisors grasp how the Vatican aided and abetted priest sex crimes about as well as they grasp BP Oil criminal acts in the Gulf of Mexico, as the recent amicus brief siding with the Vatican by Solicitor General to the U.S. Supreme Court reveals. Many emails we get at City of Angels compare handling of the BP Disaster by Obama to the Catholic Church handling of the sex abuse crisis.
Obama and his advisors understand The Vatican's aiding and abetting of priest sex crimes about as well as they grasped BP Oil criminal acts in the Gulf of Mexico, as the recent amicus brief siding with the Vatican by Solicitor General to the U.S. Supreme Court reveals. Many emails we get at City of Angels compare handling of the BP Disaster by Obama to the Catholic Church handling of the sex abuse crisis.

Remember this one month ago?


A Japanese astronaut first saw damage expanding in the Gulf of Mexico. "From his perch on the space station, Japan Aerospace Exploration Agency (JAXA) astronaut Soichi Noguchi, Expedition 23 flight engineer, photographed the Mississippi Delta showing the oil slick in the Gulf of Mexico on May 4, 2010." Continue reading Oil Slick Looks Scary from Space here. Photo Credit: NASA

TODAY: Jim Hightower writes on AlterNet: Our government blindly went along with BP's false assertion that only some 5,000 barrels a day were pouring from the well, when independent experts were shouting at the White House that the correct volume was up to 19 times that much.

Finally, almost a month after the blowout, Obama ordered a moratorium on drilling new offshore wells and on granting environmental waivers to the oil giants. Bravo, Mr. President! But his moratorium was simply ignored. Days after his order, oil companies were handed at least seven more drilling permits and five waivers. (Continue reading Who The Hell Is In Charge here )

*****
Nothing in this country is working.
*****
Blogged by Kay Ebeling
*

DOC2: Reply to U.S. Solicitor General, Posted Here, Says Acts of Abuse Inseparable from Perp Priest Role as Employee

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"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. 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."

Below is the plaintiff brief filed June 1, 2010, for the U.S. Supreme Court, written by Marci Hamilton with Anderson Advocates attorneys.

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 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, 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 Sates, 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). (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 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, 1986 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.

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).

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 .

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 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.

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.bishopaccountability.org/ferns/ Verena Schmitt-Roschmann, Pope’s Former Diocese 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).

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.

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).

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 eludes 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 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.

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.

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.

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
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

WILLIAM A. BARTON, ESQ.
KEVIN K. STREVER, ESQ.
BARTON & STREVER, P.C.
P.O. Box 870
Newport, OR 97365

Attorneys for Respondent
John V. Doe
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Posted by Kay Ebeling, The City of Angels Is Everywhere

IMAGE
To illustrate this post we used

"Angel" by Artist Ami Dunn

Found through Google Images at: Betz Gallery with a post asking: Why is the Justice for Children organization important?
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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
6
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).
10
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.
11
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).
12
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.
14
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

Democrat Running for AG of CA Keeps San Francisco Archdiocese Files Secret

.
From 'A Secrecy Fetish' in SF Weekly Now

SF District Attorney Kamala Harris possesses San Francisco Archdiocese files containing details of how the [Catholic] Church dealt with pedophile priests that go back as far as 80 years.

But Harris, the frontrunner in the June primary elections to become the Democratic candidate for California attorney general, has for five years rebuffed reporters' efforts to view those files, despite statements by former DA Terence Hallinan saying they should be released.

For the past six weeks, SF Weekly has asked Harris' office to comply with the request under the California Public Records Act. It has released nothing.

A prosecutor must be careful not to release records that might undermine an investigation, unfairly malign the innocent, or expose victims to publicity they don't want. But in this case Harris' office seems to be going beyond these important principles to a blanket policy of secrecy. (Continue reading here in June 2, 2010 SF Weekly.)

****

City of Angels: (William Levada was Archbishop of San Francisco until 2005 when he moved to a prominent role in coverup of clergy sex crimes at The Vatican. What is Kamala Harris helping them hide? )
.

DOCUMENT: Obama Brief Arguing that Foreign Sovereigns (Such As The Vatican) Are Immune From Lawsuits

.
This is the brief filed May 21, 2010 by the list of lawyers at bottom of this post. These employees of the U.S. take sides here with The Vatican and its claims to be a sovereign nation. Federal attorneys here work against the crime victims of the Pedophile Epidemic in the Catholic Church in favor of protecting The Vatican, even though sex crimes against parishioners and their children took place in every archdiocese in the United States in the past fifty years.

UPDATE: Plaintiff Response posted at city of Angels Wed AM here: DOC2: Anderson Response to U.S. Solicitor General

The News reports that in this brief the Obama Administration agrees that a 0.17 square mile territory inside Rome, The Vatican, is a sovereign nation, and as such it is protected from lawsuits.

A City of Angels quick read leaves me thinking the logic of the Executive Branch here is: The plaintiff in Oregon cannot file suit against the Vatican because sexual assaults by the perpetrator were "not conducted in the scope of the priest's employment," which makes as much sense as the Federal Government in Louisiana waiting for a permit before building barrier islands in the Gulf of Mexico last month.

The USA has become officious to a point beyond functioning.

Still, City of Angels has not been able to study this Amicus or "friendly" brief yet, as paid jobs take priority to CofA blogging.

Please comment on this US DOJ doc by emailing City of Angels at cityofangelslady@yahoo.com and help us understand this

Here it is, copy and pasted from the original:

DOJ BRIEF No. 09-1
In the Supreme Court of the United States

HOLY SEE, PETITIONER
v.
JOHN V. DOE

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1602 et seq., establishes that foreign sovereigns are presumptively immune from suit in United States courts, 28 U.S.C. 1604, unless a claim falls within one of the exceptions to immunity enumerated in 28 U.S.C. 1605 and 1607. The tort exception to immunity permits claims against a foreign state based on “the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”
28 U.S.C. 1605(a)(5).

The question presented is whether Section 1605(a)(5) authorizes a court to exercise jurisdiction over respondent’s vicarious liability claim against petitioner, the Holy See, for a priest’s sexual abuse committed in Oregon, where sexual abuse is outside the scope of the priest’s employment as a matter of Oregon law.

In the Supreme Court of the United States
No. 09-1

HOLY SEE, PETITIONER
v.
JOHN V. DOE

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

TABLE OF CONTENTS

Interest of the United States
Statement
Discussion
I. The court of appeals erred in holding that respondent’s claim falls within the FSIA’s tort exception
A. The court of appeals erred in holding that sexual abuse came within the priest’s scope of employment under Oregon law
B. The court of appeals appears to have further erred in conflating the FSIA’s jurisdictional scope-of-employment inquiry with the separate question of respondeat superior liability under state substantive law
II. The Court should remand for further consideration of whether the district court has jurisdiction over respondent’s vicarious liability claim under the FSIA’s tort exception
Conclusion

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES

This brief is filed in response to the Court’s order inviting the Solicitor General to express the views of the United States. In the view of the United States, the Court should grant the petition for a writ of certiorari, vacate the judgment of the court of appeals, and remand to the court of appeals for further consideration. In the alternative, the petition for a writ of certiorari should be denied.

STATEMENT
1. Congress enacted the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1602 et seq.,

To codify the circumstances under which a foreign state may be sued in a civil action in a court in the United States. The FSIA largely codified the so-called estrictive theory of foreign sovereign immunity, under which “the sovereign immunity of foreign states should be ‘restricted’to cases involving acts of a foreign state which are sovereign or governmental in nature, as opposed to acts which are either commercial in nature or those which private persons normally perform.”
H.R. Rep. No. 1487, 94th Cong., 2d Sess. 14 (1976) (1976 House Report); see Verlinden B.V. v. Central Bank of Nig., 461 U.S. 480, 486-488 (1983).

Under the FSIA, the general rule is that “a foreign state shall be immune from the jurisdiction of the courts of the United States.” 28 U.S.C. 1604. The statute, however, enumerates certain exceptions to that immunity.
28 U.S.C. 1605, 1607.

One such exception permits certain tort suits against a foreign state. 28 U.S.C. 1605(a)(5).

In relevant part, the tort exception provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”
1 Ibid.

If a civil suit falls within one of the FSIA’s enumerated exceptions to immunity, a federal court has subject matter jurisdiction over the suit.
28 U.S.C. 1330(a);

If a foreign state is not immune from suit, the FSIA provides 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.

*****
Footnote 1 The FSIA excludes from the tort exception claims arising from discretionary acts, and those based on certain intentional torts (malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights).
28 U.S.C. 1605(a)(5)(A) and (B).

Congress modeled these exclusions on the similar exceptions in the Federal Tort Claims Act (FTCA), see 28 U.S.C. 2680(a) and (h), to the United States’ amenability to suit for tort. 1976 House Report 21.

See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).

******************

2. Respondent brought this action for damages in the United States District Court for the District of Oregon, alleging that he was sexually abused by a Catholic priest in the mid-1960s.
Pet. App. 69a-73a.

Respondent alleged that the priest had abused other children in other parishes before being transferred to the Portland church at which he abused respondent.
Id. at 138a-140a.

The priest had used his position of authority, respondent asserted, in order to gain the trust of respondent and his family, and then, when respondent was a teenager, the priest had molested him.
Id. at 144a-145a.

Respondent named as defendants the Holy See (the petitioner in this case); the Archdiocese of Portland, Oregon; the Catholic Bishop of Chicago; and the Order of the Friar of Servants.
Pet. App. 5a.

As relevant here, respondent alleged that petitioner is vicariously liable, under the doctrine of respondeat superior, for the priest’s sexual abuse, because “the molestation occurred while [the priest] was acting in the scope of his employment.”
Id. at 147a-148a.

Respondent also asserted that petitioner was directly liable for negligence in supervising the priest, id. at 149a-150a; and that petitioner fraudulently concealed the priest’s previous acts of abuse,
id. at 150a-152a.

Petitioner moved to dismiss the complaint for lack of subject-matter jurisdiction, arguing that it is entitled to immunity under the FSIA.
Pet. App. 8a.

Petitioner is recognized as a foreign sovereign by the United States, and the two states have maintained formal diplomatic relations since 1984.
See 1 Office of the Legal Adviser, U.S. Dep’t of State, Pub. No. 10120,
Cumulative Digest of United States Practice in International Law, 1981-1988, at 894 (Marian Nash (Leich) ed., 1993).

Accordingly, petitioner is subject to civil suit in United States courts only if the suit comes within one of the exceptions to immunity specified in the FSIA.
See, e.g., O’Bryan v. Holy See, 556 F.3d 361, 374 (6th Cir.), cert. denied, 130 S. Ct. 361 (2009).

In response to petitioner’s motion to dismiss, respondent argued that the district court had subject-matter jurisdiction under the FSIA’s tort exception.
28 U.S.C. 1605(a)(5). Pet. App. 70a.

The district court concluded that it had jurisdiction over respondent’s vicarious liability claim pursuant to the FSIA’s tort exception.
Pet. App. 106a-113a.

The court began by noting that the Ninth Circuit had construed Section 1605(a)(5)’s requirement that the tortious act be committed by an “employee while acting within the scope of his office or employment” to equate to a finding that the doctrine of respondeat superior applies to the tortfeasor’s act as a matter of state law.
Id. at 111a (discussing Joseph v. Office of the Consulate Gen. of Nig., 830 F.2d 1018, 1025 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988)).

Applying Oregon law, the court explained that in Fearing v. Bucher, 977 P.2d 1163, 1166 (1999), the Oregon Supreme Court had held that an employer may be held liable “not only for the torts of his employee when the employee is acting within the scope of his employment, but also for the intentional criminal acts of employees if the acts that lead to the criminal conduct were within the scope of employment.”
Pet. App. 111a (citations omitted).

Thus, Fearing held that an employer could be held vicariously liable for a priest’s sexual abuse if that abuse was causally related to conduct— such as a priest’s pastoral duties— that was within the priest’s scope of employment.
Id. at 112a.

Because respondent alleged that the sexual abuse arose out of “conduct preceding the sexual abuse [that] fell within the scope of [the priest’s] employment” the district court held that the complaint revealed

“sufficient grounds upon which to hold [the priest’s] employer liable under a theory of respondeat superior.”
Pet. App. 112a-113a.

The court therefore concluded that respondent’s vicarious liability claim fell within Section
1605(a)(5)’s tort exception.
2 Ibid.

3. Invoking the collateral order doctrine, see Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1055 (9th Cir. 2009), petitioner appealed the district court’s adverse foreign sovereign immunity rulings.
Pet. App. 8a-9a, 14a-15a.

The court of appeals affirmed the district court’s holding that respondent’s respondeat superior claim could go forward under the tort exception.3 Id. at
29a-35a.

*****
Footnote 2: The district court also made other rulings that are not presently before this Court. It held that it had jurisdiction over respondent’s negligence claims against petitioner under the tort exception, Pet. App.
113a-128a; that there was no jurisdiction over respondent’s fraud claim because such claims are excluded from the tort exception, id. at 107a (citing 28 U.S.C. 1605(a)(5)(B)); and that none of respondent’s claims fell within the FSIA’s commercial activities exception
(28 U.S.C. 1605(a)(2)), Pet. App. 105a-106a.)

Like the district court, the court of appeals began by observing that the “ ‘scope of employment’ provision of the tortious activity exception essentially requires a finding that the doctrine of respondeat superior applies to the tortious acts of individuals” under state law.
Pet. App. 31a-32a (quoting Joseph, 830 F.2d at 1025).

The court explained that the Oregon Supreme Court had held in Fearing that although “the priest’s ‘alleged sexual assaults on plaintiff clearly were outside the scope of his employment’ under the traditional test,” courts could impose vicarious liability if “acts that were within the scope of employment resulted in the acts which led to injury to [the] plaintiff.”
Id. at 33a (brackets in original) (quoting Fearing, 977 P.2d at 1166).

According to the court of appeals, “[t]he Oregon Supreme Court has since clarified that Fearing created a ‘scope of employment’ test specifically applicable to intentional torts.”
Pet. App. 33a.

In Minnis v. Oregon Mutual Insurance Co., 48 P.3d 137 (Or. 2002), the Ninth Circuit stated, the Oregon Supreme Court “ma[de] clear that, rather than holding that sexual abuse is not within the scope of employment, Fearing created an alternative test with respect to the second and third factors of the ‘within the scope of employment’ standard.”
Pet. App. 34a.

*************
Footnote 3: The court of appeals reversed the district court’s holding that respondent’s negligence claim came within the tort exception.
Pet. App. 3a-4a; see note 2, supra.

Respondent cross-appealed the district court’s ruling that the FSIA’s commercial activity exception did not permit his claims, Pet. App. 15a, but the court of appeals held that it lacked appellate jurisdiction over the cross-appeal.
Id. at 15a-19a.

Neither of these issues is before the Court in the present certiorari petition. Judge Berzon dissented in part, explaining that she would have held that respondent’s negligence claims could go forward under the commercial activity exception.
Pet. App. 40a-64a.

Judge Fernandez filed a concurring opinion responding to Judge Berzon’s partial dissent.
Id. at 64a-68a.

*****************

Thus, the Ninth Circuit continued, “[a]n intentional tort is within the scope of employment and can support respondeat superior liability for the employer, if conduct that was within the scope of employment” directly led to the intentional tort.
Ibid.

Because respondent, like the plaintiff in Fearing, alleged that the priest’s pastoral activities led to the priest’s sexual abuse of respondent, the Ninth Circuit concluded that respondent had adequately alleged “an injury caused by an ‘employee’ of the foreign state while acting ‘within the scope of his . . . employment.’”
Pet. App. 34a-35a (quoting 28 U.S.C. 1605(a)(5)).

The court of appeals therefore held that the district court had jurisdiction over respondent’s claim against petitioner under the tort exception, and it remanded for further proceedings.
4 Id. at 35a, 40a.

DISCUSSION

The court of appeals erred in holding that the district court has jurisdiction under the FSIA’s tort exception over respondent’s claim that petitioner is vicariously liable for sexual abuse committed by a priest. That decision does not merit plenary review because it does not conflict with any decision of this Court or another court

****************
Footnote 4: Petitioner also contended that the tort exception did not apply because the priest who committed the acts of sexual abuse was not petitioner’s employee, see 28 U.S.C. 1605(a)(5). Pet. App. 30a.

************8
The court of appeals held that for purposes of petitioner’s motion to dismiss, respondent had sufficiently alleged that the priest was an employee of petitioner.
Id. at 30a-31a.

Petitioner has not challenged that ruling in this Court.
See Pet. i.

Under the court of appeals’ decision, petitioner is free to litigate that issue before the district court on remand of appeals. But because the nature of the Ninth Circuit’s ruling on the interpretation of the FSIA is unclear and the court did not address a decision of the Oregon Court of Appeals that clarifies the Oregon precedents upon which the Ninth Circuit relied, the Court may wish to grant the petition, vacate the judgment of the court of appeals, and remand to that court for further consideration.

I. THE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT’S CLAIM FALLS WITHIN THE FSIA’S TORT EXCEPTION

In the view of the United States, the court of appeals erred in holding that respondent’s vicarious liability claim falls within the FSIA’s tort exception. Oregon law holds that sexual abuse and similar intentional torts generally do not come within an employee’s scope of employment, but that an employer nevertheless may in some circumstances be held vicariously liable for an employee’s intentional tort.

The Ninth Circuit misunderstood Oregon law, and held that an intentional tort falls within the scope of employment if non-tortious conduct leading to the tort was itself within the scope of employment.
Pet. App. 34a.

The court also appears to have made a second, interrelated error, for it may have assumed that Section 1605(a)(5)’s scope-of-employment requirement is satisfied any time state law would impose vicarious liability on an employer, whether or not the tort itself was committed by the employee “while acting within the scope of his office or employment.”
28 U.S.C. 1605(a)(5); see Pet. App. 31a-32a.

Contrary to the court of appeals’ apparent assumption, however, the scope-ofemployment analysis for purposes of jurisdiction under the FSIA is distinct from the question whether an employer may be held vicariously liable on the merits. A court may not use a state liability rule to expand the grounds on which the FSIA permits the court to exercise jurisdiction over claims against a foreign sovereign.

A. The Court Of Appeals Erred In Holding That Sexual Abuse Came Within The Priest’s Scope Of Employment Under Oregon Law

Under the FSIA’s tort exception, a foreign state is not immune from suit in a case in which damages are sought for injuries “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”
28 U.S.C. 1605(a)(5).

Following circuit precedent, the court of appeals looked to state law to determine whether the alleged tortious act—the priest’s sexual abuse—satisfied Section 1605(a)(5)’s scope-of-employment requirement, Pet. App. 31a-32a, and interpreted Oregon law to hold that an intentional tort that is outside the scope of employment comes within the scope of employment if it is causally related to precursor acts that are within the scope of employment.

That conclusion is erroneous.

1. Under Oregon law, as in most States, the general rule is that an employer may be held liable for the tortious acts of an employee “[u]nder the doctrine of respondeat superior” when “the employee acts within the scope of employment.”
Chesterman v. Barmon, 753 P.2d 404, 406 (Or. 1988); see generally 1 Restatement (Third) of Agency § 2.04, at 139-142 (2006).

In Chesterman, the Oregon Supreme Court identified three requirements for finding that an employee was acting within the scope of employment:

(1) whether the act occurred substantially within the time and space limits authorized by the employment;

(2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and

(3) whether the act is of a kind which the employee was hired to perform.
753 P.2d at 406.

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Footnote 5: This Court has not addressed whether state or federal law controls the tort exception’s scope-of-employment determination.
Cf. Williams v. United States, 350 U.S. 857 (1955) (per curiam) (remanding in a Federal Tort Claims Act case to permit the court of appeals to apply state law in determining whether a government employee was acting within the scope of his employment).
That issue is not presented in the petition.

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Subsequently, in Fearing v. Bucher, 977 P.2d 1163, 1166 (1999), the Oregon Supreme Court provided an additional basis for respondeat superior liability, and departed from the general rule that an employer’s respondeat superior liability is co-extensive with an employee’s scope of employment. The court thus effectively uncoupled the question whether the tort itself was committed within the scope of employment from the ultimate question whether an employer may be held vicariously liable for that tort, by holding that an employer may be vicariously liable for certain torts committed outside the employee’s scope of employment.

In Fearing, the court applied the Chesterman scope-of-employment inquiry to a plaintiff ’s claim that an archdiocese should be held vicariously liable for a priest’s sexual assault on the plaintiff.6 The Oregon Supreme Court began by observing that the priest’s “alleged sexual assaults on plaintiff clearly were outside the scope of his employment.”
Fearing, 977 P.2d at 1166.

The court explained that “in the intentional tort context,” however, a court need not determine whether “the intentional tort itself was committed in furtherance of any interest of the employer or was the same kind of activities that the employee was hired to perform”— in other words, whether the tortious act itself satisfies the second and third factors in the Chesterman scope-of-employment analysis— because such a finding is not “necessary to vicarious liability.”
Id. at 1167.

Rather, the court held, the plaintiff could assert a claim of respondeat superior liability if “conduct that was within the scope of [the priest’s] employment arguably resulted in the acts that caused plaintiff’s injury.”
Ibid.; see id. at 1166; Lourim v. Swensen, 977 P.2d 1157, 1160 (Or. 1999) (same).

Applying that standard, the Oregon Supreme Court held that the complaint adequately alleged that the priest’s pastoral relationship with the plaintiff— the priest’s actions as “youth pastor, spiritual guide, confessor,” Fearing, 977 P.2d at 1166— satisfied the three Chesterman requirements, and was therefore within the scope of the priest’s employment.
Id. at 1166-1167.

Because the complaint alleged that the sexual abuse was a “direct outgrowth” of the pastoral relationship, the court held that the “allegations are sufficient to state a claim of vicarious liability.”
Id. at 1168.

More recently, the Oregon Supreme Court explained in Minnis v. Oregon Mutual Insurance Co., 48 P.3d 137 (2002), that the Fearing analysis applies only when the first Chesterman requirement is met: that is, when an employee commits an intentional tort within the time and space limits of employment.
Id. at 145.

In that context, the court may proceed to the second and third Chesterman requirements; but, the court moted, given that “[e]mployers do not ordinarily hire others for the specific purpose of committing intentional torts, vicarious liability would be defeated in almost every instance under a standard” that focuses on whether the intentional tort itself satisfies those requirements.
Id. at 144.

The Oregon Supreme Court in Minnis explained that Fearing therefore analyzes whether “the complaint contains sufficient allegations of [employee] conduct that was within the scope of his employment” because it was undertaken to serve the employer’s purposes and was of the type for which the employee was hired.
Id. at 145 (brackets in original).

If that conduct in turn led to the tortious act, then the employee’s “tortious conduct was sufficiently connected to the employer’s purpose to support the employer’s vicarious liability.”
Ibid.

2. The court of appeals erred in interpreting Minnis to hold that “Fearing created an alternative test” under which “[a]n intentional tort is within the scope of employment if conduct that was within the scope of employment” was causally related to the intentional tort.
Pet. App. 34a (emphasis added).

That characterization of Oregon law conflates the scope-of-employment inquiry with the ultimate question whether the employer may be held vicariously liable for the employee’s tort.

The Oregon Supreme Court in Fearing stated unequivocally that the priest’s “alleged sexual assaults on plaintiff clearly were outside the scope of employment.”
977 P.2d at 1166.

Starting from that proposition, Fearing altered the liability inquiry for cases involving intentional torts: rather than focusing on “the intentional tort itself,” a court should instead consider whether the employee engaged in other, non-tortious conduct within the scope of employment “that arguably resulted in the acts that caused plaintiff ’s injury.”
Id. at 1167.

Thus, for purposes of determining an employer’s vicarious liability for an intentional tort, Fearing shifts the focus of the second and third Chesterman factors from the tort itself to causally related, non-tortious precursor conduct. But Fearing did not thereby redefine what acts are within the scope of employment, nor did it recharacterize the sexual assault in that case as itself coming within the scope of employment, as the Ninth Circuit held. And nothing in Minnis supports the Ninth Circuit’s interpretation.
See 48 P.3d at 144-145 (discussing Fearing).

Indeed, after oral argument in this case but before the Ninth Circuit issued its decision, the Oregon intermediate appellate court, after reviewing the Oregon Supreme Court’s decisions in Fearing and Minnis, reaffirmed that “sexual assault was not within the scope of [the priest’s] employment.”
Schmidt v. Archdiocese of Portland, 180 P.3d 160, 177 (Or. Ct. App.2008), rev’d on other grounds sub nom. Schmidt v. Mt. Angel Abbey, 223 P.3d 399 (Or. 2009).

Because the alleged sexual abuse in this case did not fall within the scope of the priest’s employment as a matter of Oregon law, respondent’s suit does not involve a “tortious act or omissio of any official or employee of [a] foreign state while acting within the scope of his office or employment.”
28 U.S.C. 1605(a)(5).

Accordingly, the FSIA’s tort exception did not abrogate petitioner’s immunity and provide subject-matter jurisdiction over respondent’s claim against petitioner for the priest’s sexual abuse.

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Footnote 7: Had Oregon redefined the scope of employment, as the court of appeals believed, to include intentional torts not intended by the employee to serve the employer’s purpose, that rule would be a departure from the traditional understanding of acts within the scope of employment.
Cf., e.g., 1 Restatement (Second) of Agency § 228(2), at 504 (1958); id . § 229, at 506; id . § 229 cmt. b, a 508; id . § 229 cmt. f, at 511; cf. also 2 Restatement (Third) of Agency § 7.07 cmt. b, at 201 (2006).

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Such a departure might raise the question whether Cngress intended to permit the application of such an atypical understanding of scope of employment under Section 1605(a)(5). That question is not, however, presented here.

B. The Court Of Appeals Appears To Have Further Erred In Conflating The FSIA’s Jurisdictional Scope-Of-
Employment Inquiry With The Separate Question Of Respondeat Superior Liability Under State Substantive Law

A second misconception also appears to have contributed to the Ninth Circuit’s conflation of the scope-of-employment inquiry for FSIA jurisdictional purposes and the distinct question whether vicarious liability could be imposed under Oregon law. The Ninth Circuit characterized the “‘scope of employment’ provision of the tortious activity exception” as “essentially requiring a finding that the doctrine of respondeat superior applies to the tortious acts of individuals.”
Pet. App. 31a-32a (quoting Joseph v. Office of the Consulate Gen. of Nig., 830 F.2d 1018, 1025 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988)).

That statement suggests that the court of appeals assumed that Section 1605(a)(5) does not require that the employee’s tort itself have been committed while the employee was acting within the scope of employment, but rather requires only that the employer may be held vicariously liable for the tort of its employee as a matter of state substantive tort law.

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Footnote 8: Thus, the court of appeals apparently believed that it could look to state-law liability rules to determine whether the tort exception should apply, without regard to whether the tort was within the scope of the priest’s employment.

Footnote 9: As petitioner argues (Pet. 22-24), that view is mistaken. The FSIA establishes a rule of liability under which a foreign state will be liable “in the same manner and to the same extent as a private individual under like circumstances.”
28 U.S.C. 1606.

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But that rule of liability applies only “[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607” of the FSIA. Ibid .; see Pet. 22.

Oregon has chosen as a matter of its substantive law to impose vicarious liability in certain circumstances on an employer for its employee’s intentional tort even if the tort itself was committed outside the scope of employment.

But a foreign sovereign may be found liable under that substantive rule only if the court first determines that it has jurisdiction over the foreign state because the plaintiff ’s claim comes within the tort exception to sovereign immunity. That exception authorizes suit against a foreign state for a tort by the state’s employee only if the employee committed the tort “while acting within the scope of his office or employment.”
28 U.S.C. 1605(a)(5); cf. Primeaux v. United States, 181 F. 3d 876, 878 (8th Cir. 1999) (en banc) (“[E]ven if State law extends a private employer’s vicarious liability to employee conduct not within the scope of employment, the government’s [Federal Tort Claims Act] liability remains limited to employee conduct within the scope of employment, as defined by state law.”), cert. denied,
528 U.S. 1154 (2000).

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Footnote 8: That reading of the court of appeals’ opinion is reinforced by the next sentence in the opinion, which states: “[T]he Oregon Supreme Court has directly addressed whether a church can be liable under respondeat superior for the actions of a priest who sexually assaults a parishioner.”
Pet. App. 32a (discussing Fearing).

Footnote 9 The court of appeals elsewhere stated that it believed that, under Oregon law, sexual abuse was within the scope of employment if the tort resulted from precursor conduct that was within the scope of employment.
Pet. App. 34a; see also id. at 4a (observing that respondent had “sufficiently alleged” that the priest was an employee of petitioner “acting within the ‘scope of his employment’ under Oregon law”). Those statements might suggest that the court correctly believed that the FSIA’s tort exception requires the alleged tortious acts to have been within the scope of employment, see 28 U.S.C. 1605(a)(5).
*******************

But the court’s error as to state law— its conflation of the scope-of-employment determination and the ultimate question of respondeat superior liability— may also have been the result of the court’s making a similar error with respect to the FSIA: construing the FSIA’s scope-ofemployment jurisdictional prerequisite as interchangeable with “a finding that the doctrine of respondeat superior applies to the tortious acts,”
Pet. App. 31a-32a (quoting Joseph, 830 F.2d at 1025).

To the extent that the Ninth Circuit equated the FSIA tort exception’s scope-of-employment jurisdictional requirement with broader state-law respondeat superior liability, it erred.10 Because the priest’s alleged sexual abuse of respondent was not within the scope of the priest’s employment, respondent’s vicarious liability claim does not come within the FSIA’s tort exception to foreign sovereign immunity, and petitioner may not be subject to suit for that claim under Oregon’s respondeat superior liability rule.

II. THE COURT SHOULD REMAND FOR FURTHER CONSIDERATION OF WHETHER THE DISTRICT COURT HAS JURISDICTION OVER RESPONDENT’S VICARIOUS LIABILITY CLAIM UNDER THE FSIA’S TORT EXCEPTION

The court of appeals erred in holding that respondent’s claim fell within the FSIA’s tort exception to foreign sovereign immunity. Although the decision does not merit plenary review, the Court may wish to grant
the petition, vacate the judgment of the court of appeals, and remand to that court for further consideration.

A. Plenary review is not warranted at this time. The court of appeals’ decision does not conflict with any decision of another court of appeals. Petitioner asserts that O’Bryan v. Holy See, 556 F.3d 361, 385 (6th Cir.), cert. denied, 130 S. Ct. 361 (2009), is “inconsistent” with the decision below, in that it found the tort exception inapplicable because Kentucky law held that the sexual abuse in that case was outside the scope of a priest’s employment.
Reply Br. 3-4.

But that decision does not create a circuit conflict.

The Sixth Circuit was interpreting Kentucky, not Oregon, law. And unlike Oregon, Kentucky does not consider precursor conduct in determining whether tortious conduct not within the scope of employment may subject an employer to respondeat superior liability.
See O’Bryan, 556 F.3d at 383.

To the extent that the Ninth Circuit’s decision rested primarily on its misinterpretation of Oregon state law, then, the decision does not conflict with O’Bryan, and in any event, a court of appeals’ construction of state law does not ordinarily merit plenary review.
See generally Eugene Gressman et al., Supreme Court Practice 260-262 (9th ed. 2007) (Gressman).

The Ninth Circuit’s decision in this case also appears to have rested on a misunderstanding of the scope of the FSIA’s tort exception to foreign sovereign immunity, but that misapprehension likewise does not create a conflict with O’Bryan. Because the Sixth Circuit concluded that the sexual assault was not within the scope of employment under Kentucky law, that court had no occasion to consider whether the tort exception permits jurisdiction based on torts that are not within the scope of employment but nonetheless may be the basis for respondeat superior liability under state tort law. Nor does petitioner contend that Oregon’s expansive rule permitting respondeat superior liability for torts that are not themselves within the scope of employment has been widely adopted by other States, such that the question of the interaction of such rules with Section 1605(a)(5) is likely to recur with frequency.
11 Reply Br. 2-4, 7.

The court of appeals’ decision also does not directly conflict with this Court’s precedent.
See Pet. 18-21, 24-28.

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Footnote: 10 In equating the two concepts, the court of appeals relied on Joseph’s statement that the tort exception “essentially requires a finding that the doctrine of respondeat superior applies to the tortious acts of individuals.” 830 F.2d at 1025. But Joseph’s actual holding was that the plaintiff ’s claims fell within the tort exception because the conduct at issue was within the employee’s scope of employment under state law.
Id. at 1025-1026

Footnote 11; Petitioner observes that the FSIA’s tort exception is modeled on the FTCA, which provides jurisdiction over claims against the United States based on the negligent or wrongful acts of a federal employee “while acting within the scope of his office or employment” under circumstances in which a private person would be liable.
28 U.S.C. 1346(b)(1); Pet. 24-25; Reply Br. 4-5; see note 1, supra; Primeaux, 181 F.3d at 878 (FTCA liability is limited to “employee conduct within the scope of employment,” even if state-law vicarious liability rule is more expansive.)
Because the decision below concerns only the FSIA, however, it does not squarely conflict with any decision on the FTCA, and does not provide a vehicle to review the scope of the FTCA’s scope-ofemployment requirement.

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The decision below, at some level of generality, might be regarded as in tension with this Court’s decisions instructing that courts should not expand the FSIA’s exceptions to foreign sovereign immunity beyond the boundaries set by Congress.
See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 (1989)

(Because Section 1605(a)(5) requires that the injury have occurred in the United States, the tort exception is not satisfied by a non-domestic tort with domestic effects.);
Saudi Arabia v. Nelson, 507 U.S. 349, 362-363 (1993) (refusing to extend the commercial activity exception to cover tortious acts that were preceded by commercial acts); Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992) (strictly construing commercial
activity exception’s “direct effect” prong); see also Pet. 18-20. But that type of tension is not the sort
of direct conflict that typically warrants the Court’s plenary review. See generally Gressman 250-251.

B. Nevertheless, in the view of the United States, it may be appropriate for this Court to grant the certiorari petition, vacate the court of appeals’ judgment, and remand for further consideration.

The court of appeals held that the FSIA’s tort exception permits jurisdiction over a claim that falls outside the bounds established by the exception’s plain text: a claim based on tortious conduct that was not committed within the scope of employment. A central purpose of foreign sovereign immunity is to afford foreign states “some present ‘protection from the inconvenience of suit,’” unless the case comes within a statutory exception to immunity.
Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004) (emphasis omitted) (quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)).

That purpose is defeated if a foreign sovereign is forced to litigate on the merits a case in which no applicable exception to immunity applies.
12 See, e.g., Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 442-443 (D.C. Cir. 1990).

Because improperly subjecting a foreign state to suit can in some circumstances raise foreign-relations and reciprocity concerns, the United States has an interest in ensuring that courts in the United States carefully apply the FSIA, and that they do not expand the exceptions to foreign sovereign immunity set forth in Section 1605 beyond the scope that Congress intended.

In a similar situation—where the court of appeals had plainly “committed error that was essential to its judgment” denying immunity under the FSIA—this Court has granted certiorari, vacated the judgment below, and remanded for further consideration.
Ministry of Def. & Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U.S. 450, 453 (2006) (per curiam) (granting, vacating, and remanding for reconsideration because “the Ninth Circuit either mistakenly relied on a concession by respondent that could not possibly bind petitioner, or else erroneously presumed that there was no relevant distinction between a foreign state and its agencies or instrumentalities for purposes of” the immunity from attachment of foreign sovereign property).

The Court may wish to make a similar disposition here.

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Footnote 12: To be sure, if petitioner ultimately prevails on remand in its argument that the priest who allegedly committed the acts of abuse was not petitioner’s employee, the tort exception will not apply and petitioner will be entitled to immunity.
See note 4, supra; Pet. App. 30a-31a.
*****************

Thus, if petitioner chooses to litigate the employee issue on remand, the parties may have to engage in discovery on the issue, even though the court should have concluded that the tort exception does not apply regardless of the priest’s employment status.

The court of appeals, in addition to premising its finding of jurisdiction on conduct that is outside the scope of employment as a matter of state law, appears to have also misapprehended the scope of the FSIA’s tort exception to foreign sovereign immunity as a matter of federal law.
See pp. 14-17, supra.

It therefore would be appropriate for this Court to correct any such error by making clear that Section 1605 (a)(5) authorizes suit against a foreign state for a tort by the state’s employee only if the tort itself was committed by the employee while acting within the scope of his office or employment.

The Court could then remand to the court of appeals for further consideration in light of that ruling on the interpretation of the FSIA and also in light of the decision of the Oregon Court of Appeals in Schmidt concluding (based on Fearing) that sexual abuse is not within the scope of a priest’s employment.

Or the Court could simply vacate the judgment of the court of appeals and remand to afford that court an opportunity to clarify its interpretation of the FSIA’s tort exception in the first instance and to permit further consideration in light of Schmidt. If the Court does not choose to vacate and remand, however, it should deny certiorari, because this case does not warrant plenary review.

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Footnote 13: Schmidt was decided after the Ninth Circuit heard oral argument in this case and was not addressed in the Ninth Circuit’s decision.

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CONCLUSION

The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded to the court of appeals for further consideration as set forth in this brief. In the alternative, the petition for a writ of certiorari should be denied.

Respectfully submitted.

HAROLD HONGJU KOH
Legal Adviser
Department of State
Washington, D.C. 20520

NEAL KUMAR KATYAL
Acting Solicitor General
Counsel of Record

TONY WEST
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

GINGER D. ANDERS
Assistant to the Solicitor
General

DOUGLAS N. LETTER
LEWIS S. YELIN
Attorneys

Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

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Posted at City of Angels Blog(s) by Kay Ebeling, Hollywood, Califoria, Survivor, along with sister Patricia Ebeling-Vestey, of Fr. Thomas Barry Horne, Chicago Archdiocese, 1949-53.
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