The “Mandatory-Compliance Shield”: Second Circuit Holds that Obedience to a Foreign Sovereign’s Policy Triggers the FSIA Discretionary Function Exclusion

Introduction

In Blecher v. Holy See, the United States Court of Appeals for the Second Circuit confronted a deeply emotive set of facts — decades-old sexual abuse of children by Catholic clergy in New York — and an intricate jurisdictional question: can American federal courts hear negligence claims against the Holy See when the alleged wrongdoing arises from its bishops’ adherence to a Vatican secrecy mandate?

The plaintiffs, thirty survivors of childhood sexual abuse, argued that a Vatican policy demanding strict secrecy “emboldened” abusers and prevented warnings to parents, thus making the Holy See vicariously liable for the bishops’ failures. The Holy See moved to dismiss under the Foreign Sovereign Immunities Act (FSIA), contending that the “discretionary function exclusion” restores its immunity. The district court agreed, and the Second Circuit has now affirmed.

The judgment is momentous because it crystallises a new doctrinal nuance: when a plaintiff’s tort theory is premised on a foreign sovereign’s employees complying with a mandatory policy, the discretionary function exclusion bars suit unless the plaintiff plausibly alleges that the employees violated that policy. This decision aligns FSIA practice with Supreme Court precedent interpreting the Federal Tort Claims Act (FTCA), thereby creating what the commentary below calls the “mandatory-compliance shield.”

Summary of the Judgment

• Issue: Does the FSIA’s discretionary function exclusion deprive U.S. courts of subject-matter jurisdiction over negligence claims against the Holy See arising from bishops’ adherence to a Vatican secrecy policy?
• Holding: Yes. The exclusion applies because (i) the challenged actions (clerical assignments, non-disclosure, non-reporting) required judgment and therefore were discretionary, and (ii) those judgments were “susceptible to policy analysis.” The plaintiffs failed to allege that the bishops acted contrary to any mandatory directive; in fact, their theory was that the bishops strictly followed it. Consequently, the court lacks jurisdiction. Judgment of dismissal affirmed.
• Key Contribution: Establishes that compliance with a foreign sovereign’s mandatory policy “will be deemed in furtherance of the policies which led to the promulgation of the policy,” importing the Gaubert rule into FSIA litigation and creating a significant hurdle for plaintiffs seeking to sue foreign states for torts arising from official obedience.

Detailed Analysis

A. Precedents Cited and Their Influence

1. Berkovitz v. United States, 486 U.S. 531 (1988) & United States v. Gaubert, 499 U.S. 315 (1991)
   Provided the two-pronged test used in both FTCA and now FSIA contexts: (1) Was the act discretionary (element of choice)? (2) Was the choice based on, or susceptible to, policy analysis?
   — Blecher imports the “obedience-is-protected” gloss from Gaubert: where employees follow a mandatory directive, the sovereign is shielded.
2. Varig Airlines, 467 U.S. 797 (1984); Dalehite, 346 U.S. 15 (1953)
   Early Supreme Court cases warning against judicial second-guessing of policy-laden decisions. The Second Circuit cites them to stress comity and resource-allocation rationales.
3. USAA v. Permanent Mission of Namibia, 681 F.3d 103 (2d Cir. 2012)
   Prior Second Circuit application of the Berkovitz/Gaubert test to FSIA claims. Blecher builds on USAA but adds the “mandatory-compliance” dimension.
4. Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009)
   Similar clergy-abuse allegations; recognised that staffing and failure-to-warn decisions are policy-laden. Blecher relies heavily on Doe for its susceptibility-to-policy analysis.
5. First Nat’l City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec), 462 U.S. 611 (1983)
   Governs separate juridical status of foreign instrumentalities. While the plaintiffs did not challenge this on appeal, Bancec framed why the dioceses themselves could not be treated as the Holy See for FSIA purposes.

B. The Court’s Legal Reasoning — Step by Step

1. Correct Defendant?
   Dioceses are New York corporations; plaintiffs could not pierce the Bancec presumption. The Holy See could only be liable vicariously for employees (the bishops), not for those separate entities.
2. Tortious Activity Exception Initially Appears to Apply
   The abuse occurred in the United States (“entire tort” rule), and the bishops were within the scope of employment — so §1605(a)(5) would ordinarily remove immunity.
3. Introducing the “Exception to the Exception” — Discretionary Function Exclusion (§1605(a)(5)(A))
4. Prong One — Was the conduct discretionary?
   • Bishops exercised judgment in assigning priests and deciding what to communicate.
   • Plaintiffs’ injuries hinged on those assignments, inherently discretionary staffing decisions.
   • No allegation that bishops violated the Vatican policy; the theory is that they faithfully obeyed it.
   • Rule announced: Where obedience to a mandatory foreign directive is alleged, plaintiffs must plead a violation of that directive to escape the exclusion.
5. Prong Two — Susceptibility to Policy Analysis
   • Staffing, parish stability, reputation, confidentiality — all policy factors the bishops could balance.
   • The court analogises to Croyle (8th Cir.) and Doe (9th Cir.): failure-to-warn choices can involve weighing safety against institutional concerns.
6. Comity & Parity with FTCA
   Allowing suit when U.S. government would be immune under similar circumstances would undermine sovereign equality. Thus, extending Gaubert’s “obedience rule” to FSIA is both doctrinally sound and diplomatically prudent.

C. Impact of the Decision

• Litigation Strategy: Plaintiffs suing a foreign state for torts must now show the foreign officials disobeyed a clearly prescribed directive. Allegations that officials followed an immoral or harmful policy will not suffice.
• Sexual-Abuse Litigation: Survivors’ claims against foreign religious entities will face a higher bar whenever the alleged wrongdoing springs from adherence to hierarchical directives.
• Comity & Reciprocity: Reinforces parity between U.S. and foreign sovereign immunity doctrines, likely encouraging other nations to afford similar respect to U.S. policy choices.
• Separation of Powers: Signals continued judicial reluctance to intrude on policy spaces — especially where the Executive’s foreign-relations prerogative might be implicated.
• Future Circuit Splits? The Ninth Circuit’s existing dicta in Doe aligns with Blecher, but other circuits (e.g., D.C. Circuit in Ethiopia) use different reference points (U.S. law) for prong-one analysis. A Supreme Court clarification of the FSIA exclusion now appears more likely.

Complex Concepts Simplified

Foreign Sovereign Immunities Act (FSIA)

The federal statute that makes foreign states presumptively immune from U.S. lawsuits, subject to specific statutory exceptions.

Tortious Activity Exception (§1605(a)(5))

Allows personal-injury suits against a foreign state for torts occurring entirely in the United States, committed by employees acting within the scope of employment.

Discretionary Function Exclusion (§1605(a)(5)(A))

Reinstates immunity if the claim is “based upon” an employee’s discretionary act or omission, even when discretion is abused.

Berkovitz/Gaubert Test

A two-step inquiry: (1) Was there room for judgment? (2) Is that judgment grounded in, or susceptible to, policy considerations?

Mandatory-Compliance Shield (new term)

Articulated in Blecher: when employees merely comply with a sovereign’s mandatory policy, the discretionary function exclusion applies unless plaintiffs show non-compliance.

Conclusion

Blecher v. Holy See does not close the courthouse doors to all claims of clergy sexual abuse, but it reshapes the jurisdictional landscape. By holding that a foreign sovereign regains immunity when its officials follow — rather than flout — a mandatory directive, the Second Circuit:

• Brings FSIA doctrine into full harmony with FTCA precedent.
• Elevates the plaintiff’s burden in foreign-sovereign tort suits: violation, not just existence, of a directive must be alleged.
• Reinforces comity by ensuring foreign states are not held to a stricter standard than the United States itself.

For international-tort litigators, the message is clear: to penetrate the discretionary function exclusion, one must plead more than damaging obedience — one must plausibly plead disobedience.