Blecher v. Holy See
Split Score
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This score (0-100) indicates how likely this case is to be reviewed by the Supreme Court based on:
Case Summary
Disposition
Affirmed
Thirty survivors of childhood sexual abuse sued the Holy See, alleging that a Vatican-mandated secrecy policy caused U.S. bishops to conceal abuse and thereby enabled their injuries. The district court dismissed for lack of jurisdiction under the Foreign Sovereign Immunities Act, holding that the discretionary-function exclusion bars the claims. On de novo review, the Second Circuit agreed and affirmed, finding the bishops’ actions discretionary and susceptible to policy analysis, and therefore shielded by the FSIA.
Circuit Split Identified
Legal Issue
What source of law governs the first prong of the Berkovitz/Gaubert discretionary-function inquiry under the FSIA—U.S. domestic law or the foreign sovereign’s own law/international law?
Circuit Positions
Use U.S. domestic law (federal or state/local) to decide if the challenged conduct was discretionary under FSIA.
Use the foreign sovereign’s own law, or a combination of foreign and international law, to decide if the conduct was discretionary.
Conflict Summary
Some circuits analyze whether a foreign sovereign’s employee had meaningful discretion by looking to U.S. domestic law and regulations, while others look to the foreign state’s own law (sometimes supplemented by international law).