Doe v. See

557 F.3d 1066, 2009 WL 514299

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2009
• Docket: 06-35563, 06-35587
• Status: Published

Opinions

PER CURIAM:

We consider whether, on the allegations made in the Plaintiffs complaint in this case, the Holy See is entitled to immunity from suit under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330,1602-1611.

John V. Doe brought suit in the United States District Court for the District of Oregon against the Holy See, the Archdiocese of Portland, Oregon (“Archdiocese”), the Catholic Bishop of Chicago (“Chicago Bishop”), and the Order of the Friar Servants (“Order”), alleging that when he was fifteen or sixteen years old he was sexually abused by Father Ronan, a priest in the Archdiocese and a member of the Order. Doe alleged various causes of action against the Holy See: (1) for vicarious liability based on the actions of the Holy See’s instrumentalities, the Archdiocese, the Chicago Bishop, and the Order; (2) for respondeat superior liability based on the actions of the Holy See’s employee, Ronan; and (3) for direct liability for the Holy See’s own negligent retention and supervision of Ronan and its negligent failure to warn Doe of Ronan’s dangerous proclivities. The Holy See contended in the district court that all of Doe’s causes of action against it must be dismissed because, as a foreign sovereign, it is immune from suit in U.S. courts. The district court disagreed, holding that it has jurisdiction over all but one of Doe’s claims under the FSIA’s tortious act exception to sovereign immunity. The Holy See appeals.

For the reasons explained below, we affirm the district court in part and reverse in part as to the Holy See’s appeal. As to the Holy See’s vicarious liability for the acts of the Archdiocese, the Chicago Bishop, and the Order, we conclude that Doe has not alleged facts sufficient to overcome the presumption of separate juridical status for governmental instrumen-talities, so the negligent acts of those entities cannot be attributed to the Holy See for jurisdictional purposes. Doe’s vicarious liability claims therefore cannot go forward as pleaded. As to the Holy See’s respondeat superior liability for Ronan’s acts, we conclude that, because Doe has sufficiently alleged that Ronan was an employee of the Holy See acting within the “scope of his employment” under Oregon law, Ronan’s acts can be attributed to the Holy See for jurisdictional purposes. Further, we agree with the district court that Ronan’s acts come within the FSIA’s tor-tious act exception, so the Holy See is not immune from suit for the respondeat superior cause of action. Although the district court held that Doe’s negligence claims against the Holy See could proceed under the FSIA’s tortious act exception, we conclude that they cannot, because the FSIA preserves immunity for discretionary acts. However, we do not have jurisdiction to consider the cross-appeal as to the commercial activity exception at this time. The decision of the district court on the appeal by the Holy See is therefore affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion. We dismiss the cross-appeal.

I. PROCEDURAL BACKGROUND

A. Complaint

In his amended complaint, filed April 1, 2004, Doe describes as follows Father Andrew Ronan’s alleged sexual abuse of young boys: In 1955 or 1956, while employed as a parish priest in the Archdiocese of Armagh, Ireland, Father Ronan molested a minor and admitted to doing so. Ronan was later removed from Our Lady of Benburb and placed in the employ of the Chicago Bishop, at St. Philip’s High School. At St. Philip’s, Ronan molested at least three male students. Confronted with allegations of abuse, Ronan admitted to molesting the boys. The Chicago Bishop, “acting in accordance with the policies, practices, and procedures” of the Holy See, did not discipline or remove Ronan from his post.¹

In approximately 1965, when Doe was 15 or 16 years old, the Holy See and the Order of the Friar Servants, of which Ro-nan was a member, “placed” Ronan in a parish priest position at St. Albert’s Church in Portland, Oregon. Doe met Ronan at St. Albert’s and came to know Ronan “as his priest, counselor and spiritual adviser.” Doe was a devout Roman Catholic, and for him “Ronan was a person of great influence and persuasion as a holy man and authority figure.” Using his position of trust and authority, Ronan “engaged in harmful sexual contact upon” Doe on repeated occasions. The sexual contact occurred “in several places including the monastery and surrounding areas.”

Based on these facts, Doe alleged causes of action against the Holy See, its “instru-mentalities or agents” (“Does 1-10”), the Archdiocese, the Chicago Bishop, and the Order, all of whom it alleged were employers of Ronan. According to the amended complaint:

Defendant Holy See is the ecclesiastical, governmental, and administrative capital of the Roman Catholic Church. Defendant Holy See is the composite of the authority, jurisdiction, and sovereignty vested in the Pope and his delegated advisors to direct the world-wide Roman Catholic Church. Defendant Holy See has unqualified power over the Catholic Church including each and every individual and section of the [CJhurch. Defendant Holy See directs, supervises, supports, promotes[,] and engages in providing religious and pastoral guidance, education[,] and counsel-bishops to file a report, on a regular basis, outlining the status of, and any problems with, clergy. Defendant Holy See promulgates and enforces the laws and regulations regarding the education, trainingt,] and standards of conduct and discipline for its members and those who serve in the governmental, administrative, judicial, educational!,] and pastoral workings of the Catholic [Cjhurch world-wide. Defendant Holy See is also directly responsible for removing superiors of religious orders, bishops, archbishops!,] and cardinals from service and/or making them ineligible for positions of leadership in the various divisions and offices of the Catholic [CJhurch.

ing services to Roman Catholics worldwide in exchange for all or a portion of the revenues derived from its members for these services. The Holy See engages in these activities through its agents, cardinals, bishops[,] and clergy, including religious order priests, brothers!,] and sisters, who engage in pastoral work under the authority of its bishop[s]. The Holy See is supported through the contributions of the faithful!,] which are received through donations from the dioceses around the world, including those in the United States. Defendant Holy See promotes and safeguards the morals and standards of conduct of the clergy of the [C]atholic [C]hurch. Defendant Holy See does this by and through its agents and instrumentalities, including the Congregation for the Clergy and the Congregation for Religious both delegated by the Pope and acting on his behalf. It creates, divides!,] and realigns dioceses, archdioceses!,] and ecclesiastical provinces. It also gives final approval to the creation, division!,] or suppression of provinces of religious orders .... It creates, appoints, assigns and re-assigns bishops [and] superiors of religious orders, and through the bishops and superiors of religious orders [it] has the power to directly assign and remove individual clergy. All bishops, clergy, and priests, including religious order priests, vow to show respect and obedience to the Pope and their bishop. Defendant Holy See also examines and is responsible for the work and discipline and all those things which concern bishops, superiors of religious orders, priests!,] and deacons of the religious clergy. In furtherance of this duty, Defendant Holy See requires

The Archdiocese, according to the amendment complaint, is a corporation incorporated under the laws of the state of Oregon and is therefore a citizen of that state. It “provided pastoral services to !Doe] and his immediate family through its parishes.” The Chicago Bishop is incorporated under the laws of the state of Illinois and is a citizen of that state. Finally, the Order is “a citizen of the state of Illinois,” but it operates worldwide. It is under the “ultimate authority of’ the Holy See.

Doe alleged that the Archdiocese and the Order were vicariously hable for Ro-nan’s abuse of Doe, and that the Chicago Bishop and the Order were negligent in failing to warn the Archdiocese and Doe of Ronan’s propensities. Doe also alleged that the Holy See was vicariously liable for Ronaris abuse of Doe and for the negligent actions of the Archdiocese, the Order, and the Chicago Bishop, and that the Holy See was itself negligent in its retention and supervision of Ronan and in failing to warn of his propensities.

B. District Court Decision

The Holy See moved to dismiss the complaint in its entirety for lack of subject-matter jurisdiction, arguing that as a foreign sovereign, it is presumptively immune from suit under the FSIA, and that neither the “tortious act” exception to sovereign immunity, 28 U.S.C. § 1605(a)(5), nor the “commercial activity” exception to sovereign immunity, 28 U.S.C. § 1605(a)(2), applies. The district court held that the commercial activity exception does not apply to permit the exercise of jurisdiction over Doe’s claims; the court did not view the Holy See’s activities as commercial because “the true essence of the complaint ... clearly sound[s] in tort.” Doe v. Holy See, 434 F.Supp.2d 925, 942 (D.Or.2006). In contrast, the district court held that the tortious act exception does apply, permitting it to exercise jurisdiction over all Doe’s claims except for the fraud claim. Id. at 957. The district court therefore granted the Holy See’s motion to dismiss as to the fraud claim, but it denied the motion as to all of Doe’s other claims.

The Holy See appeals the district court’s decision that the tortious act exception applies. Doe cross-appeals the district court’s dismissal of his fraud claim, contending that the commercial activity exception permits federal court jurisdiction over that cause of action.

II. STATUTORY FRAMEWORK

For much of our nation’s history, from at least 1812 until 1952, “the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country.” Verlinden B.V. v. Cent Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) (citing The Schooner Exchange v. M’Faddon, 7 Cranch 116, 3 L.Ed. 287 (1812)). In 1952, however, the State Department adopted a more “restrictive” theory of foreign sovereign immunity, under which sovereign “immunity is confined to suits involving the foreign sovereign’s public acts.” Id. at 487, 103 S.Ct. 1962. Applying this restrictive approach, questions of foreign sovereign immunity arising in U.S. courts were decided on a case-by-case basis, often with the assistance of letters from the State Department containing “suggestions of immunity.” Id.

In 1976, to “clarify the governing standards” and to insulate the issue of sovereign immunity from the impact of “case-by-case diplomatic pressures,” Congress enacted the FSIA, 28 U.S.C. §§ 1330, 1602-1611. Verlinden, 461 U.S. at 488, 103 S.Ct. 1962. The FSIA contains “a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumental-ities.” Id. at 488, 103 S.Ct. 1962. It is this set of legal standards with which we deal today.

Under the FSIA, a foreign state is “immune from the jurisdiction of the courts of the United States and of the States” unless one of the statute’s enumerated exceptions applies. 28 U.S.C. § 1604. A foreign state “includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” Id. § 1603(a). An “agency or instrumentality of a foreign state” is defined in turn as any entity:

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, ... and

(3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country.

Id. § 1603(b).

Section 1605² contains “[gjeneral exceptions to the jurisdictional immunity of a foreign state,” providing in relevant part that:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—

(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

(5) not otherwise encompassed in paragraph (2) above, 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 of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to—

(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights ...

The statute further defines the elements of the commercial activity exception: A “ ‘commercial activity’ means either a regular course of commercial conduct or a particular’ commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” Id. § 1603(d). A “ ‘commercial activity carried on in the United States by a foreign state’ means commercial activity carried on by such state and having substantial contact with the United States.” Id. § 1603(e).

The statute does not set out any substantive rules of liability, but instead provides that, “[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity under” the statute, “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Id. § 1606.

III. ANALYSIS

A. Standard for Motions to Dismiss Based on Foreign Sovereign Immunity

The Holy See has brought a facial attack on the subject matter jurisdiction of the district court under Rule 12(b)(1). We therefore “assume [plaintiffs] [factual] allegations to be true and draw all reasonable inferences in his favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004); see also McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir.2000) (holding that we “favorably view[ ] the facts alleged to support jurisdiction”). We do not, however, accept the “truth of legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003) (emphasis added; internal quotations omitted) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981)).

The Holy See suggests that when evaluating facial motions to dismiss based on foreign sovereign immunity, we must require a greater-than-usual level of detail in the pleadings, and may not construe factual allegations in favor of the plaintiff. Neither contention is correct. The cases on which the Holy See relies involve fact-based challenges to subject-matter jurisdiction. See, e.g., Robinson v. Gov’t of Malaysia, 269 F.3d 133, 137-38, 146 (2d Cir.2001) (relying on testimony and affidavits from the parties in concluding that the “generic allegations” in the complaint were insufficient to establish subject matter jurisdiction under the FSIA). In such cases, “no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987).

Here, in contrast, the Holy See is contending that on the face of the complaint, we lack subject matter jurisdiction; it has introduced no evidence contesting any of the allegations. With regard to such a challenge, a motion to dismiss for lack of jurisdiction under the FSIA is no different from any other motion to dismiss on the pleadings for lack of jurisdiction, and we apply the same standards in evaluating its merit. See, e.g., Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). As the D.C. Circuit explained in Rong v. Liaoning Province Gov’t, 452 F.3d 883, 888 (D.C.Cir.2006), in the foreign sovereign immunity context, “[i]f the defendant challenges only the legal sufficiency of the plaintiffs jurisdictional allegations, then the district court should take the plaintiffs factual allegations as true and determine whether they bring the case within any of the exceptions to immunity invoked by the plaintiff.”

Moreover, we have never held that anything other than our usual notice pleading standard applies to complaints that allege an exception to foreign sovereign immunity. Under notice pleading rules, we require only “a short and plain statement” of the grounds for jurisdiction and the claim for relief. Fed.R.Civ.P. 8(a)(1), (2); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). We do not impose a heightened pleading standard in the absence of “an explicit requirement in a statute or federal rule,” Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832, 841 (9th Cir.2007); there is no such explicit requirement here applicable. In evaluating assertions of subject-matter jurisdiction based on an exception to foreign sovereign immunity, then, we apply the same notice pleading requirements we would apply to any other assertion of subject-matter jurisdiction and look only for a “short and plain statement” of the basis for jurisdiction.

B. Appellate Jurisdiction

1. Jurisdiction Over Appeal

A district court’s denial of immunity to a foreign sovereign is an appealable order under the collateral order doctrine. See Schoenberg v. Exportadora de Sal, S.A, 930 F.2d 777, 779 (9th Cir.1991); see also In re Republic of the Phil., 309 F.3d 1143, 1148 (9th Cir.2002) (explaining that refusal to dismiss on grounds of sovereign immunity is within the collateral order doctrine because it “may result in the parties having to litigate claims over which the court lacks jurisdiction”).

2. Jurisdiction over Cross-Appeal

Doe cross-appeals and argues that his claims come within the FSIA’s commercial activity exception to sovereign immunity, § 1605(a)(2). The Holy See contends that we do not have jurisdiction over Doe’s cross-appeal because it is not “inextricably intertwined” with the collaterally appeal-able issue of whether the Holy See is immune from suit. See Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1093-94 (9th Cir.2007) (in a case involving a collaterally appealable order, denying a tribe sovereign immunity, but holding that the court could not reach other issues raised on appeal because they were not “inextricably intertwined” with the collaterally appealable issue). According to the Holy See, we do not have jurisdiction to consider Doe’s argument that his claims come within the commercial activity exception. We agree.

As a general rule, the collateral order doctrine permits appellate jurisdiction only over those decisions of a district court that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.” See In re Copley Press, Inc., 518 F.3d 1022, 1025 (9th Cir.2008) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). A decision denying immunity to a foreign sovereign meets those requirements. See Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 763-64 & n. 6 (9th Cir.2007). Additionally, permitting a trial to go forward against a foreign sovereign when there is a claim of sovereign immunity “imperil[s] a substantial public interest.” See Will v. Hallock, 546 U.S. 345, 353, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (explaining why decisions denying absolute, qualified, and Eleventh Amendment immunity come within the collaterally appealable order doctrine).

The collaterally appealable order doctrine does not automatically permit review of district court rulings contained in the same district court opinion as the ap-pealable determination, if they do not themselves meet these requirements. See Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (after concluding that the collateral order doctrine applies to a decision denying a motion to dismiss on double jeopardy grounds, holding that “other claims presented to, and rejected by, the district court in passing on the ... motion to dismiss ... are appealable if, and only if, they too fall within[the] collateral-order exception to the final-judgment rule”); Burlington N., 509 F.3d at 1089, 1093-94 (refusing to exercise pendent appellate jurisdiction over an exhaustion issue decided in the same district court order as the collaterally appealable question); United States v. Yellow Freight Sys., Inc., 637 F.2d 1248, 1251 (9th Cir.1980) (“Inquiry into the immediate appealability of a particular pretrial order must focus upon each claim asserted.”); but cf. Joseph v. Office of Consulate Gen. of Nig., 830 F.2d 1018, 1021 (9th Cir.1987) (assuming jurisdiction over cross-appeal in FSIA case, without explanation).

Here, the tort causes of action are not inextricably intertwined with Doe’s other claims. Thus, that concept is not sufficient to allow Doe to appeal the district court’s grant of immunity as far as that exception is concerned.³

Nor do we agree that we ought to simply take up the commercial activity issue on the basis that it is no more than an alternate ground to uphold the district court. In fact, the need for review of immunity denials — avoiding the undermining of the purpose of the grant of immunity⁴ — has no weight where immunity has been granted. Were there any doubt about that, the sensitive nature of the issues dealing with sovereigns would convince us that it would generally be prudentially unsound to expand review into the area of immunity grants when an appeal is taken from a denial of immunity.

This case points up one of the perils of undertaking unnecessary review of grants of immunity. On this appeal we are presented with comparatively straightforward questions about the relationship between the Holy See and local priests under the tort exception. But the cross-appeal seeks to expand our inquiry into the arcane question of whether church functions are commercial activity because churches receive financial support from their parishioners, or otherwise. That is an issue that actually has nothing to do with the issues on interlocutory appeal.

To say it another way, it is well established that, although an interlocutory appeal can be taken whenever immunity (absolute or qualified) is denied to a person or entity claiming entitlement thereto, an expansion to other issues is not usually allowed. See Swint v. Chambers County Comm’n., 514 U.S. 35, 43-51, 115 S.Ct. , 131 L.Ed.2d 60 (1995); Cunningham v. Gates, 229 F.3d 1271, 1284-86 (9th Cir.2000). We are asked to, in effect, change that rule so that whenever immunity is denied on one set of issues but granted on another set, a cross-appeal can be taken regarding the granted set. Surely that would be the ineluctable effect of Doe’s request. One would not even need to show, by the way, a true interlocking of issues beyond the fact that both deal with immunity. One would only need to argue that the alternative set will support the denial of immunity on a wholly different basis. That approach would be followed even if the district court had expressly ruled to the contrary on the alternative set of issues.⁵ In other words, here we would be asked to take up the appeal from that .grant and reverse the district court’s determination; we would have to reach out and engage in a lengthy disquisition on the commercial activity exception to FSIA, which we neither must nor should do.

Thus, we will not consider issues regarding the district court’s grant of immunity under the commercial exception to the FSIA.

C. Determining Which Acts May Be Attributed to the Holy See for Jurisdictional Purposes

Before turning to the question of which, if any, of the FSIA’s exceptions to immunity apply, we must determine which of the acts alleged in the complaint may legitimately be attributed to the Holy See for purposes of establishing jurisdiction. Doe’s complaint alleges tortious acts by the Archdiocese, the Order, and the Bishop, all alleged to be corporations created by the Holy See. The Holy See argues that we may not consider these alleged acts by the Archdiocese, the Order, and the Bishop when determining whether jurisdiction exists over the Holy See, because Doe has not alleged facts that would overcome the presumption of separate juridical status such that the acts of the latter could be attributed to the former.⁶ For the reasons explained below, given the allegations that Doe has pleaded, we agree with the Holy See. In addition, however, the complaint alleges a number of actions performed by the Holy See itself, such as “creat[ing]” dioceses and archdioceses, “giv[ing] final approval to the creation, division or suppression of provinces of religious orders,” “employ[ing]” Ronan, and “placing]” Ro-nan in the Archdiocese in Portland, Oregon. We conclude below that these acts do establish jurisdiction over the Holy See for the claims to which the acts are relevant.

1. Determining Whether an Agency Relationship Exists Between the Holy See and Its Domestic Corporations for Purposes of Establishing Jurisdiction over the Holy See

a. The Bancec standard

In arguing that the actions of the corporations are not attributable to Holy See for purposes of determining jurisdiction, the Holy See relies on First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba (“Bancec ”), 462 U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983). In Bancec, the Supreme Court considered whether an instrumentality created by a foreign state could be held liable for the actions of the foreign state itself, a question the reverse of ours. Bancec was “the Cuban Government’s exclusive agent in foreign trade,” and the “government supplied all of [Ban-cecj’s capital and owned all of its stock.” Id. at 614, 103 S.Ct. 2591. Soon after Bancec sought to collect on a letter of credit that had been issued in its favor by Citibank, the Cuban government seized and nationalized all of Citibank’s assets in Cuba. Id. So, when Bancec filed an action in U.S. federal court to recover on the letter of credit, Citibank counterclaimed, seeking a setoff for the value of its expropriated Cuban branches. Id. at 614-15, 103 S.Ct. 2591. In the meantime, Bancec was dissolved, and Bancec filed a stipulation “stating that ... its claim had been transferred to the Ministry of Foreign Trade” of Cuba. Id. at 615-16, 103 S.Ct. 2591.

Jurisdiction in Bancec existed under FSIA’s counterclaim provision, 28 U.S.C. § 1607(c).⁷ Id. at 620-21, 103 S.Ct. 2591. Because jurisdiction was not at issue, the question for the Supreme Court was one of liability: whether Bancec could be held liable for the act of expropriation committed by the Cuban government. Id. at 617, 103 S.Ct. 2591.

The Supreme Court began by noting that, although Bancec was an “agency or instrumentality” of Cuba within the meaning of FSIA § 1603(b), this status was relevant only to jurisdiction; it did not control the question of Bancec’s liability for Cuba’s actions. The FSIA “was not intended to affect the substantive law determining the liability of a foreign state or instrumentality.” Id. at 620, 103 S.Ct. 2591. Instead, liability was to be assessed according to corporate law principles “common to both international law and federal common law.” Id. at 623, 103 S.Ct. 2591. Surveying international and federal law on the status of corporations, the Supreme Court recognized a presumption of “separate juridical [status]” for the instru-mentalities of foreign states. Id. at 624, 624-28, 103 S.Ct. 2591.

That presumption can be overcome, the Court explained, in two instances: when “a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created,” or when recognizing the separate status of a corporation “would work fraud or injustice.” Id. at 629, 103 S.Ct. 2591. The Court then held the latter standard dispositive of Ban-cec’s case: The Cuban government could not have sued in its own name in a U.S. court “without waiving its sovereign immunity and answering for [its] seizure of Citibank’s assets.” Id. at 633, 103 S.Ct. 2591. Instead, Cuba had transferred its assets to separate entities, and Bancec then sought to avoid liability for the seizure. “[T]he Cuban government ... [and] not any third parties that may have relied on Bancec’s separate juridical identity” would be the real beneficiary if Bancec was not held liable for the Cuban government’s actions. Id. at 631-32, 103 S.Ct. 2591. Given this circumstance, the Court concluded that to “adhere blindly to the corporate form” would work such an “injustice” that the presumption of separate juridical status had been overcome. Id. at 632, 103 S.Ct. 2591. Holding Bancec liable for the Cuban government’s actions, the Court held that Citibank was entitled to offset the value of its seized assets from the amount it owed to Bancec. Id. at 634, 103 S.Ct. 2591.

The Supreme Court in Bancec did not have the opportunity to consider whether the actions of a corporation may be attributed to the sovereign — the reverse of the Bancec scenario — for purposes of determining whether jurisdiction over that sovereign exists. This Circuit has not previously addressed that question either.⁸ At least two other circuits, however, faced with such a scenario, have applied Ban-cec’s substantive corporate law principles in determining whether jurisdiction exists under the FSIA.

In Transamerica Leasing v. La Republica de Venezuela, 200 F.3d 843 (D.C.Cir.2000), a plaintiff sued Venezuela, alleging that Venezuela was liable for the commercial acts of a government instrumentality, CAVN. Id. at 846. To determine whether Venezuela was amenable to suit under the commercial activity exception, the court turned to the Bancec test and asked whether (1) Venezuela and CAVN had a principal-agent relationship, or (2) recognizing CAVN as a separate entity would work an injustice. Id. at 848. Although it acknowledged that “Bancec recognized these as exceptions to the rule that a foreign sovereign is not liable for the acts of an instrumentality of the state,” the D.C. Circuit held that “they serve also as exceptions to the rule that a foreign sovereign is not amenable to suit based on the acts of such an instrumentality.” Id. (emphasis added). See also Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 446 (D.C.Cir.1990) (“The presumption of juridical separateness of entities also applies to jurisdictional issues.”). The Fifth Circuit adopted the same principle in Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 533-36 (5th Cir.1992), refusing to attribute the actions of a private labor union to the Mexican state-owned oil company for purposes of determining FSIA jurisdiction.

We join the D.C. Circuit and the Fifth Circuit in extending Bancec’s analysis to the question whether the actions of a corporation may render a foreign sovereign amenable to suit. A foreign state can only “act[ ] through its agents,” be they corporations or individual people. Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307-08 (9th Cir.1997) (“Because a foreign state acts through its agents, an agent’s deed ... constitutes activity ‘of the foreign state.’ ”); see also Gilson v. Republic of Ireland, 682 F.2d 1022, 1026 n. 16 (D.C.Cir.1982) (noting that “the activities of an agent may be attributed to the principal for jurisdictional purposes”). Therefore, in applying the jurisdictional provisions of the FSIA, courts will routinely have to decide whether a particular individual or corporation is an agent of a foreign state.

Bancec provides a workable standard for deciding this question. Applying Bancec’s presumption in favor of separate juridical status for foreign state instrumentalities at the jurisdiction phase, not just at the liability phase, is consistent with the FSIA’s broad policy goals. In Bancec, the Court discussed at length the comity considerations at play when entertaining suits against foreign government instrumentalities in U.S. courts. 462 U.S. at 626, 108 S.Ct. 2591; see also Republic of Austria v. Altmann, 541 U.S. 677, 688, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). As at the merits phase, failing to recognize the presumption of separate juridical status at the jurisdictional phase could “result in substantial uncertainty over whether an instrumentality’s assets would be diverted to satisfy a claim against the sovereign,” and might frustrate “the efforts of sovereign nations to structure their governmental activities in a manner deemed necessary to promote economic development and efficient administration.” Bancec, 462 U.S. at 626, 103 S.Ct. 2591. Applying Bancec’s presumption — as well as the standard for overcoming that presumption — at the outset of a suit as well as at the merits phase makes good sense.

With these considerations in mind, we conclude that it is appropriate to use the Bancec standard to determine whether Doe’s allegations are sufficient to permit jurisdiction over the Holy See based on acts committed by its affiliated domestic corporations.

b. Applying the Bancec standard to Doe’s complaint

Applying the rule of Bancec to the allegations in Doe’s complaint, we conclude that Doe has not alleged sufficient facts to overcome the “presumption of separate juridical status,” for reasons similar to those dispositive in the converse situation in Flatow v. Islamic Republic of Iran, 308 F.3d 1065 (9th Cir.2002). In Flatow, we applied Bancec to the relationship between the Iranian government and the Bank Saderat Iran (“BSI”). BSI was created by the Iranian government and fully owned by it. Id. at 1072-73. Its actions were regulated by Iran’s General Assembly of Banks and High Council of Banks, which reviewed BSI’s annual statements and “perform[edj broad policymaking functions.” Id. at 1073. Flatow held these facts insufficient to overcome the presumption of separate juridical status, because the government’s “involvement [did not] rise to a [sufficiently] high[ ] level,” and in particular, did not involve “day-to-day” control. Id. (citing McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 351-52 (D.C.Cir.1995)) (holding the presumption of separateness overcome where Iran controlled routine business decisions, such as declaring and paying dividends and honoring contracts).

Doe’s complaint does not allege day-today, routine involvement of the Holy See in the affairs of the Archdiocese, the Order, and the Bishop. Instead, it alleges that the Holy See “creates, divides[,] and re-aligns dioceses, archdioceses and ecclesiastical provinces” and “gives final approval to the creation, division or suppression of provinces of religious orders.” Doe also alleges that the Holy See “promulgates and enforces the laws and regulations regarding the education, training!,] and standards of conduct and discipline for its members and those who serve in the governmental, administrative, judicial, edu-eational[,] and pastoral workings of the Catholic [Cjhurch world-wide.” These factual allegations — that the Holy See participated in creating the corporations and continues to promulgate laws and regulations that apply to them-are quite similar to the facts in Flatow, and are, as in Flatow, insufficient to overcome the presumption of separate juridical status.

Doe does directly allege in his complaint that the corporations are “agents” of the Holy See. In this context, however, the term “agent” is not self-explanatory. “Agent” can have more than one legal meaning: the standard for determining that a natural person is the agent of another differs from the standard for attribution of the actions of a corporation to another entity. See, e.g., Rough & Ready Lumber Co. v. Blue Sky Forest Products, 105 Or. App. 227, 231, 804 P.2d 498 (1991) (an agency relationship between two natural persons “results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”) (quoting Restatement (Second) of Agency § 1 (1958)). The Bancec standard is in fact most similar to the “alter ego” or “piercing the corporate veil” standards applied in many state courts to determine whether the actions of a corporation are attributable to its owners. See, e.g., Amfac Foods, Inc. v. Int’l Sys. & Controls Corp., 294 Or. 94, 107-08, 654 P.2d 1092 (1982) (holding that to demonstrate alter ego status, plaintiff must show control of the subsidiary and that “the plaintiffs inability to collect from the corporation resulted from some form of improper conduct” on part of parent corporation). Even reading the complaint generously to Doe, as we must, we cannot infer from the use of the word “agent” that Doe is alleging the type of day-to-day control that Bancec and Flatow require to overcome the presumption of separate juridical status.

The district court apparently found jurisdiction proper by relying on the second, equitable prong of Bancec, noting that “foreign states cannot avoid their obligations to third parties by engaging in abuses of the corporate form.” Doe, 434 F.Supp.2d at 936. But Doe has not alleged that the Holy See has inappropriately used the separate status of the corporations to its own benefit, as in Bancec, or that the Holy See created the corporations for the purpose of evading liability for its own wrongs. Rather, in ruling for Doe on this point, the district court seemed to be influenced by the complaint’s allegations of wrongful acts perpetrated directly by the Holy See. See Doe, 434 F.Supp.2d at 937. The existence of such direct wrongful acts cannot determine whether the distinct wrongful acts of the affiliated corporations should also be attributed to the Holy See.

Doe’s vicarious liability claim for the actions of the Archdiocese, Chicago Bishop, and Order is based entirely on an allegation that the actions of the domestic corporations are attributable to the Holy See. Doe has therefore not alleged sufficient facts to demonstrate that any exception to sovereign immunity applies to that cause of action. We therefore conclude that the district court lacked jurisdiction over the Holy See for the tortious acts allegedly committed by the Archdiocese, the Chicago Bishop, and the Order.

2. Actions Performed by the Holy See Itself

As to Doe’s other causes of action, the Holy See contends that Doe has failed to allege any facts in support of his claims based on the actions of the Holy See itself, rather than of its domestic corporations. We do not agree. Doe has made several allegations regarding actions taken by the Holy See itself — namely, its negligent retention and supervision of Ronan and its failure to warn Doe of Ronan’s dangerousness. Doe has also alleged respondeat superior liability against the Holy See for Ronan’s actions as an alleged employee of the Holy See. We turn now to those allegations, considering whether they are sufficient to support jurisdiction over the Holy See.

We will now examine whether the district court could exercise jurisdiction over the Holy See for these causes of action under the FSIA’s tortious act exception.

D. Tortious Act Exception

The district court held that all of Doe’s claims, except the one for fraud, come within the exception to immunity for a “tortious act or omission of [a] foreign state or of any official or employee of that foreign state while acting within the scope of his or her employment.” § 1605(a)(2); Doe, 434 F.Supp.2d at 950. We agree in part.

Doe’s respondeat superior claim based on Ronan’s actions comes within the tor-tious act exception. Doe has clearly alleged that Ronan was an employee of the Holy See, acting within the scope of his employment, when he molested Doe. We conclude, however, that Doe’s claims against the Holy See for negligent retention and supervision and failure to warn cannot be brought under the tort exception because they are barred by the FSIA’s exclusion for discretionary functions, § 1605(a)(5)(A).

1. Respondeat superior for Father Ronan’s tortious acts

a. The meaning of “employee ”

In his complaint, Doe alleges that the Holy See “employed priests, including one Father Andrew Ronan” and that Ro-nan was under the “direct supervision and control” of the Holy See. The Holy See was further “responsible for the work and discipline [of] ... priests.” According to the complaint, the Holy See on at least one occasion was responsible for controlling where Ronan performed his functions: the Holy See “placed Ronan in [the] Archdiocese at St. Albert’s Church in Portland, Oregon.”

The Holy See maintains that Doe has not alleged sufficient facts to demonstrate that Ronan was an “employee” of the Holy See for purposes of the tortious act exception, because the word “employee” is a legal conclusion we are not required to accept as true. We are highly skeptical of the notion that, under notice pleading, use of the word “employee” in a complaint is insufficient to establish an allegation of an employment relationship. True, in addition to being a word used in everyday speech, “employee” does have a common law legal definition. See, e.g., Schaff v. Ray’s Land & Sea Food Co., 334 Or. 94, 45 P.3d 936, 939 (2002) (defining “employee” for purposes of Oregon law). But then, of course, so do the words “person,” “corporation,” “citizen,” and “molest,” also used in this complaint — and, undoubtedly, in many other complaints filed each year in federal courts — without further definition. Were we to require that every such word used in a complaint be broken down into its constituent factual predicates, we would undermine the purpose of notice pleading — that is, “to focus litigation on the merits of a claim” rather than on procedural requirements. Galbraith v. County of Santa Clam, 307 F.3d 1119, 1125 (9th Cir.2002). Thus, while we do not accept Doe’s legal conclusions as true, we also do not engage in “a hypertechnical reading of the complaint inconsistent with the generous notice pleading standard.” Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 (9th Cir.2002). Although there is undoubtedly a line beyond which the legal definition of a commonly used term is so complex or contentious that failure to allege each element of the definition would prevent a defendant from understanding the factual basis for the claim, use of the word “employee” falls well short of that line.

b. The meaning of “within the scope of employment ”

More complicated under Oregon law is the question of whether Ronan’s actions were “within the scope of employment” as the FSIA requires. In Joseph, we indicated 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.” 830 F.2d at 1025. “This detei’mination is governed by state law.” Id.; see also Randolph, 97 F.3d at 327.

As it happens, the 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. In Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), the plaintiff alleged that he had been sexually molested by a Catholic priest who “used his position as youth pastor, spiritual guide, confessor, and priest to plaintiff and his family to gain their trust and confidence” and “[b]y virtue of that relationship ... gained the opportunity to be alone with plaintiff’ and sexually assault him. Id. at 1166. Fearing began its analysis from the proposition that, in a respondeat superior action, an employer can be liable for intentional as well as unintentional torts of an employee if committed “within the scope of employment.” Id. Generally, under Oregon law, “three requirements must be met to demonstrate that an employee was acting within the course and scope of employment”:

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

(2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and

(3) the act must have been of a kind which the employee was hired to perform.

Id. at 1166.

Applying these three factors, Fearing stated that the priest’s “alleged sexual assaults on plaintiff clearly were outside the scope of his employment” under the traditional test, but held that the “inquiry does not end there.” Id. at 1166. Instead, the court went on to ask whether “acts that were within [the priest’s] scope of employment resulted in the acts which led to injury to [the] plaintiff.” Id. (emphasis added; internal quotation marks and citation omitted). The court concluded that because a jury could infer from the facts alleged that “performance of ... pastoral duties with respect to plaintiff and his family were a necessary precursor to the sexual abuse and that the assaults thus were a direct outgrowth of and were engendered by conduct that was within the scope of ... employment,” id. at 1168, the complaint satisfied “all three ... requirements for establishing that employee conduct was within the scope of employment.” Id. at 1167.

The Oregon Supreme Court has since clarified that Fearing created a “scope of employment” test specifically applicable to intentional torts. Minnis v. Oregon Mut. Ins. Co., 334 Or. 191, 48 P.3d 137 (Or.2002), observed that, in Fearing, there was no question that the first requirement of “the within the scope of employment” test was met, because the abuse occurred “within the time and space limits” of the priest’s employment. 48 P.3d at 144-45. But because Fearing involved an intentional tort, it was inappropriate to focus on whether the tort itself was committed in furtherance of the employer’s objectives or was an act of the kind the employee was hired to perform:

Rather, for the purpose of determining whether a complaint meets the second and third ... requirements ..., the focus properly is directed at whether the complaint contains sufficient allegations of employee’s conduct that was within the scope of his employment, that is, conduct that the employee was hired to perform, that arguably resulted in the acts that caused plaintiffs injury.

Id at 144-45 (internal quotation marks, alterations, and citations omitted). Min-nis thus makes 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, applicable when a plaintiff has alleged an intentional tort: An 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 was “a necessary precursor to the” intentional tort and the intentional tort was “a direct outgrowth of ... conduct that was within the scope of ... employment.” Fearing, 977 P.2d at 1163.

Doe’s allegations meet this standard. Doe has asserted that he “came to know Ronan as his priest, counselor and spiritual adviser,” and that Ronan used his “position of authority” to “engage in harmful sexual contact upon” Doe in “several places including the monastery and surrounding areas in Portland, Oregon.” His allegations are thus very similar to those in Fearing, 977 P.2d at 1166.

Under Oregon law, then, Doe has clearly alleged sufficient facts to show that his claim is based on an injury caused by an “employee” of the foreign state while acting “within the scope of his ... employment,” as required to come within the FSIA’s tortious act exception. § 1605(a)(5). The Holy See is therefore not immune from Doe’s respondeat superior claim.⁹

2. Negligent retention, supervision, and failure to warn

According to Doe’s complaint, the Holy See “negligently retained Ronan and failed to warn those coming into contact with him,” even though it knew or should have known that Ronan had a history of sexually abusing children. The Holy See also “failed to provide reasonable supervision of Ronan.” Whether or not this alleged negligence otherwise comes within the language of the FSIA’s tortious act exception — a question we do not decide— these causes of action may not go forward under that section because they are barred by the exclusion for “discretionary functions.” The district court thus erred in exercising jurisdiction over these claims.

The discretionary function exclusion shields foreign sovereigns from tort claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” § 1605(5)(A). The language of the discretionary function exclusion closely parallels the language of a similar exclusion in the Federal Tort Claims Act (“FTCA”), so we look to case law on the FTCA when interpreting the FSIA’s discretionary function exclusion. See 28 U.S.C. § 2680(a); Joseph, 830 F.2d at 1026. Extrapolating from FTCA case law, the Holy See is protected by the discretionary function exclusion if the challenged action meets two criteria: (1) it is “discretionary in nature” or “involve[s] an element of judgment or choice” and (2) “the judgment is of the kind that the discretionary function exception was designed to shield.” United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (internal quotation marks and citation omitted); see also Soldano v. United States, 453 F.3d 1140, 1145 (9th Cir.2006) (clarifying that judgments “of the kind that the discretionary function exception was designed to shield” are “governmental actions and decisions based on considerations of public policy.”) (internal quotation marks and citations omitted).

As to the first Gaubert criterion, Doe refers vaguely in his complaint to the Holy See’s “policies, practices, and procedures” of not firing priests for, and not warning others about, their abusive acts. He also refers in his brief to a “policy promulgated by the Holy See to cover up incidents of child abuse,” which he argues removed “an[y] element of judgment or choice” from the Holy See’s actions “to the extent that Appellants were acting pursuant to” it. Yet nowhere does Doe allege the existence of a policy that is “specific and mandatory ” on the Holy See. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir.1989) (emphasis in original). He does not state the terms of this alleged policy, or describe any documents, promulgations, or orders embodying it. Nor does the complaint in any other way allege that the Holy See’s decisions to retain Doe and not warn about his proclivities involved no element of judgment, choice, or discretion. While the burden of proving the Gaubert factors ultimately falls on the sovereign entity asserting the discretionary function exception, “a plaintiff must advance a claim that is facially outside the discretionary function exception in order to survive a motion to dismiss.” Prescott v. United States, 973 F.2d 696, 702 & n. 4 (9th Cir.1992) (citing Carlyle v. U.S. Dep’t of the Army, 674 F.2d 554, 556 (6th Cir.1982) (“Only after a plaintiff has successfully invoked jurisdiction by a pleading that facially alleges matters not excepted by [the FTCA] does the burden fall on the government to prove the applicability of a specific provision of [the FTCA].”)). Doe has not pled any actions that fall facially outside the discretionary function exception.

As to the second Gaubert criterion, the decision of whether and how to retain and supervise an employee, as well as whether to warn about his dangerous proclivities, are the type of discretionary judgments that the exclusion was designed to protect. We have held the hiring, supervision, and training of employees to be discretionary acts. See Nurse v. United States, 226 F.3d 996, 1001 (9th Cir.2000) (holding that plaintiffs claims of “negligent and reckless employment, supervision and training of’ employees “fall squarely within the discretionary function exception”); see also Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C.Cir.1997) (holding that “decisions concerning the hiring, training, and supervision]” of employees are discretionary). Moreover, failure to warn about an individual’s dangerousness is discretionary.¹⁰ See Sigman v. United States, 217 F.3d 785, 797 (9th Cir.2000) (failure to warn individuals on Ah' Force Base about potentially dangerous serviceman was a discretionary function, because it “brought into play sensitive and competing policy considerations of protecting safety while preserving resources and preventing unwarranted alarm”); Weissich v. United States, 4 F.3d 810, 814-15 (9th Cir.1993) (failure of probation officers to warn a prosecutor that probationer was a threat to him was a discretionary decision).

The Holy See’s failure to present any evidence that its actions were actually based on policy considerations is not relevant to whether the discretionary function exception applies. A foreign state’s decision “need not acüially be grounded in policy considerations so long as it is, by its nature[,] susceptible to a policy analysis.” See Kelly v. United States, 241 F.3d 755, 764 n. 5 (9th Cir.2001) (second emphasis added). A policy analysis is one that implements “political, social, and economic judgments.” Berkovitz v. United States, 486 U.S. 531, 539, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (internal quotation marks and citations omitted). In the case of Father Ronan’s alleged abuse, the Holy See might have decided to retain him and not to warn his parishioners because it felt that to do otherwise would have harmed the Church’s reputation locally, or because it felt that pastoral stability was sufficiently important for the parishioners’ well-being, or because low ordination rates or staffing shortages made it necessary to keep Ronan on. That such social, economic, or political policy considerations could have influenced the decision renders it the kind of judgment that the discretionary function exception was designed to shield.

In sum, the tortious act exception does not provide jurisdiction over Doe’s negligent hiring, supervision, and failure to warn claims because they are barred by the discretionary function exclusion.¹¹ We therefore cannot affirm the district court’s judgment on this ground.

IV. CONCLUSION

In conclusion, we observe once again that the Holy See has brought a facial attack on the allegations of subject-matter jurisdiction in the complaint. It remains to be seen whether Doe can prove his allegations. While the Holy See was certainly entitled to bring a facial attack on the complaint, such an approach is not without risk, for it “call[s] upon [us] to decide far-reaching ... questions” of some importance “on a nonexistent factual record, even where ... discovery” might “reveal the plaintiffs claims to be factually baseless.” Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir.2004). After careful consideration, we have reached the conclusion that most of Doe’s causes of action are not covered by the tort exception and overturn the district court’s denial of immunity as to those. However, because it would be improper to consider the commercial activity exception, we express no opinion regarding that exception.

For the foregoing reasons, in appeal No. 06-35563 the decision of the district court is AFFIRMED in part, REVERSED in part, and REMANDED. The cross-appeal (No. 06-35587) is DISMISSED. Each party shall bear their own costs.

1 . These are, of course, only allegations, but we are required to take them as true for the purposes of this appeal. See infra, Part III.A.

2 . All statutory citations are to Title 28 of the United States Code unless otherwise indicated.

3 . We are aware of the fact that § 1605(a)(5), identifying the tortious act exception, is applicable to cases "not otherwise encompassed in paragraph (2) [the commercial activity exception] above.” This language does not mean that, in interpreting the tortious act exception in (a)(5), we must always first consider whether the commercial activity exception in (a)(2) applies. Courts have not proceeded in that fashion. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439-43, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989); Blaxland v. Commonwealth Dir. of Public Prosecutions, 323 F.3d 1198, 1203-04 (9th Cir.2003); Risk v. Halvorsen, 936 F.2d 393, 395-96 (9th Cir.1991). Indeed, in Joseph, 830 F.2d at 1025, we explicitly stated that because we could decide the question presented under subsection (a)(5), there was no need to consider subsection (a)(2) at all. Other courts have reached the same result. See, e.g., Robinson v. Gov’t, of Malay., 269 F.3d 133, 145-47 (2d Cir.2001); Cabin v. Gov’t of Republic of Ghana, 165 F.3d 193, 199-201 (2d Cir.1999); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 379 (7th Cir.1985); Asociación de Reclamantes v. United Mexican States, 735 F.2d 1517, 1524-25 (D.C.Cir.1984); Persinger v. Islamic Republic of Iran, 729 F.2d 835, 838-39 (D.C.Cir.1984).

4 . See Gupta, 487 F.3d at 763-64.

5 . We are aware of the theory that allows alternate grounds to be used to support a district court decision, even where no cross-appeal has been filed. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-80, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999); Rivero v. City & County of San Francisco, 316 F.3d 857, 861-62 (9th Cir.2002). We have said that taking jurisdiction in that instance is prudential and discretionary. See Lee v. Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1107 (9th Cir.2001); Bryant v. Tech. Research Co., 654 F.2d 1337, 1341-42 (9th Cir.1981). For reasons explained in the text, we would decline to exercise that jurisdiction. The theory makes a good deal of jurisprudential sense when both the grant and the denial of relief were actually appealable issues; it makes much less sense where, as here, a grant of immunity is not interlocutorily ap-pealable at all and would involve, as we have said, a vast expansion of the issues in and complexity of the appeal.

6 . We note that the question we address here is distinct from the question whether the Archdiocese, the Chicago Bishop, and the Order are themselves immune from suit under the FSIA. An "agency or instrumentality” of a foreign state, as defined by the FSIA, is immune from suit because it is itself a "foreign state” within the meaning of the Act. § 1603(a), (b). On the allegation of the complaint, however, the Archdiocese, the Chicago Bishop, and the Order are not "agencies or instrumentalities” of a foreign state within the meaning of the FSIA, because they are all citizens of the United States. See § 1603(b) (an agency or instrumentality of a foreign state means, among other things, an entity "which is neither a citizen of a State of the United States ... nor created under the laws of any third country”). They are therefore not immune from suit.

7 . "In any action brought by a foreign state [or its agency or instrumentality] ... in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim ... to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the foreign state.” 28 U.S.C. § 1607(c).

8 . We have, however, applied the Bancec presumption of separate juridical status at the merits phase of FSIA litigation. See Flatow v. Islamic Republic of Iran, 308 F.3d 1065 (9th Cir.2002) (applying Bancec in a case in which an individual who had obtained a judgment against Iran attempted to enforce it against the Bank Saderat Iran).

9 . We are aware of the fact that the Sixth Circuit has reached a different result, but the law of Kentucky, which it was construing, differs from the law of Oregon. See O’Bryan v. Holy See, 556 F.3d 361, 382-83, 2009 WL 305342, at *14 (6th Cir.2009).

10 . Even were it not the case that the “failure to warn” claim is barred by the discretionary function exclusion, it would be barred by the “misrepresentation” exclusion. Like the discretionary function exclusion, the misrepresentation exclusion in the FSIA, § 1605(a)(5)(B), has been interpreted in light of the misrepresentation exclusion in the FTCA, § 2680(h). See de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1398 (5th Cir.1985). The misrepresentation exclusion covers both acts of affirmative misrepresentation and failure to warn. See City and County of San Francisco v. United States, 615 F.2d 498, 505 (9th Cir.1980) (holding that "a negligent failure to inform, without more, is misrepresentation within the meaning of” the misrepresentation exclusion). In particular, we have held that government officials’ failure to warn about an individual's dangerousness, which ultimately led to sexual abuse of a minor, comes within the misrepresentation exclusion. See Lawrence v. United States, 340 F.3d 952, 958 (9th Cir.2003).

11 . Because we conclude that the tortious act exception does not apply to the above claims, we have no occasion to consider whether the entire tort must occur in the United States, as the Sixth and D.C. Circuits have held. See O’Bryan v. Holy See, 556 F.3d 361, 382, 2009 WL 305342, at *13 (6th Cir.2009); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1524-25 (D.C.Cir.1984). But see Olsen v. Gov’t of Mexico, 729 F.2d 641, 646 (9th Cir.1984).