United States Sixth Circuit

In an amended opinion, partial denial of the Catholic Church's motion to dismiss for lack of subject matter jurisdiction on grounds of sovereign immunity is affirmed where: 1) defendant is a foreign state under the Foreign Sovereign Immunities Act; 2) defendant's status as head of an international religious organization cannot be separated from its position as a foreign state; 3) plaintiffs waived their argument that the FSIA violates the Establishment Clause as applied to defendant; 4) the district court correctly applied the FSIA's burden shifting process; 5) the commercial activity exception to the FSIA does not apply; 6) claims based upon the alleged sexual abuse of priests or based upon the acts of the Holy See that occurred abroad did not satisfy the tortious act exception to the FSIA; 7) the conduct of bishops, archbishops and defendant's personnel while supervising allegedly abusive clergy satisfied all four requirements of the tortious act exception; and 8) the plaintiffs' claims of violation of customary international law of human rights, negligence, and breach of fiduciary duty did not fall under the discretionary-function exception or the arising-out-of-misrepresentation-or-deceit exception to the tortious act exception.

Appellate Information

• Decided 02/10/2009
• Published 02/10/2009

Judges

• JULIA SMITH GIBBONS, Circuit Judge., Before:  MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Jeffrey S. Lena, Law Offices of Jeffrey S. Lena, Berkeley, California, for Appellant.  William F. McMurry, McMurry & Associates, Prospect, Kentucky, for Appellees.  Lewis Yelin, United States Department of Justice, Washington, D.C., for Intervenor.   ON BRIEF:  Jeffrey S. Lena, Law Offices of Jeffrey S. Lena, Berkeley, California, R. Gregg Hovious, John David Dyche, Fultz, Maddox, Hovious & Dickens, Louisville, Kentucky, for Appellant.  William F. McMurry, Adrienne W. Kim, McMurry & Associates, Prospect, Kentucky, Douglas H. Morris II, Lea A. Player, Morris & Player, Prospect, Kentucky, for Appellees.  Lewis Yelin, Douglas N. Letter, United States Department of Justice, Washington, D.C., for Intervenor.