Commentary

Serving the Holy See Through Letters Rogatory: Pray for a Miracle to Effectuate?

By Andrew Brendon Ojeda

Andrew Brendon Ojeda is a licensed attorney in the Commonwealth of the Northern Mariana Islands. He attended UCLA as an undergraduate and USC Gould School of Law. He was born and raised in Los Angeles and is of Puerto Rican and Mexican descent. ©2021 Andrew Brendon Ojeda. All rights reserved. Under Federal Rules of Civil Procedure 4(j)(1),1 a plaintiff may serve a foreign state like the Holy See with a complaint. First, the plaintiff prepares a summons and presents it to the clerk of court to seal and sign.2 Then, the summons, complaint, notice of suit,3 and letters rogatory must be prepared in the official language of the country—Italian in the Holy See.4 The plaintiff must also submit to the federal court copies of the translated complaint, summons, notice of suit, and letters rogatory with a prepaid, preaddressed envelope for the clerk of court to dispatch the documents under 28 U.S.C. § 1608(a)(3). Then, the court executes the Request for International Judicial Assistance (letters rogatory).5

Unfortunately, as litigants seek redress for sexual abuse from the Catholic Church, the occurrence of rejecting service of process through letters rogatory is not uncommon.

Practitioners who have represented survivors of sexual abuse have commented on the difficulty of effectuating service of process on the Holy See through letters rogatory. “The Holy See avoids service like the plague,” said Marci Hamilton, founder and CEO at CHILD USA, a nonprofit academic think tank dedicated to ending child abuse. She continued,

It pulls out every stop possible to avoid service. It avoids direct service by arguing that whoever tries to serve it is not the proper person. Serving the Holy See usually takes one to two years. The Holy See also requires that briefs be translated into an arcane version of Latin. And these cases are few and far between because it is often better for litigants to pursue a live claim under state law.

“Before getting to discovery, the Holy See resisted service (the complaint had to be translated into Latin),” said William Barton, counsel in a suit filed against the Holy See in the U.S. District Court in Oregon.6

Litigants are first required to serve the Holy See through letters rogatory, but when this process fails, the next method of service allowed is through diplomatic channels under the Foreign Sovereign Immunities Act.7 First, counsel representing survivors must draft a letter to the clerk of court requesting service of process on the Holy See through diplomatic channels (i.e., through the U.S. Department of State).8 Second, counsel must file the request with the federal court as an Affidavit of Foreign Mailing. Third, counsel must provide the clerk of court with the following:

1. One copy of the letter requesting service. 2. One copy of the notice of electronic filing, confirming filing of the letter. 3. Proof that service via letters rogatory under 28

U.S.C. § 1608(a)(3) was unsuccessful.9 4. Two copies of the summons, complaint, and notice of suit, and translations of all documents in Italian.10

In addition, counsel must include a check to cover the $2,275 fee required by the U.S. Department of State for service through diplomatic channels.11

Once diplomatic channels prove successful, the federal court will receive a diplomatic note from the Embassy of the United States to the Holy See, stating that it transmitted the above documents to the Secretariat of State to the Holy See.12

Following receipt of this diplomatic note, litigants are generally met with a motion to dismiss for, among other reasons, lack of subject matter jurisdiction.

Survivors of sexual abuse face many hurdles in trying to serve the Holy See. Expense and the long and complicated process of having to first move for letters rogatory, which often proves unsuccessful, represents one of the main hurdles. Then, the only true way to serve the Holy See is through diplomatic channels, adding more expense and complication. On top of this, survivors must pay thousands of dollars to translate documents into Italian and Latin. As long as the Holy See continues to reject service through letters rogatory, survivors of sexual abuse will continue to face hurdles in serving the Holy See and finally healing from the trauma they have had to endure from childhood to adulthood. 

1Codified in 28 U.S.C. § 1608(a)(3), Rule 4(j)(1) allows for service of process on a foreign state. In addition, § 1608(a)(3) states that service of process be made “by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail required a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. § 1608(a)(3). 2See Fed. R. Civ. P. 4(b). 3A Notice of Suit is prepared in accordance with 22 C.F.R. § 93.2. 4Since 2014, Italian has been the official language of the State of the Vatican City. See Pope ditches Latin as official language of Vatican synod, Reuters (Oct. 6, 2014), https://www.reuters.com/article/ us-pope-latin/pope-ditches-latin-as-official-language-of-vaticansynod-idUSKCN0HV1O220141006. Before this move by the Pope, Latin had been the official language of the State of the Vatican City. 5In other words, the court sends the package directly to the Holy See, asking the judicial entity there to help in serving the country itself. 6William A. Barton, Recovering for Psychological Injuries 525 (3rd ed. 2010). 7When serving the Holy See through letters rogatory fails, the FSIA provides for service of process via diplomatic channels. See 28 U.S.C. § 1608(a)(4). A litigant may serve the Holy See under § 1608(a)(4): “[I]f service cannot be made within 30 days under [§ 1608(a)(3)], by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.” 8This letter must specify that that request is under 28 U.S.C. § 1608(a) (4), and include any other details, exhibits, or explanations as a basis for the request. 9In this case, proof that the Holy See rejected a DHL package with the documents mentioned would suffice. 10See U.S. District Court for the District of Columbia, Attorney Manual for Service of Process on a Foreign Defendant (July 2018), https://www.dcd.uscourts.gov/sites/dcd/ files/AttyForeignMlg2018wAttach.pdf. 11See id. 12See, e.g., U.S. Department of State Letter of Transmittal, D.M. v. Holy See, et al., No. 1:19-cv-0030 (District of Guam).

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Products, 12 Nova. L. Rev. 213, 229 (1987). 5See id. 6See id. 7H.R. 989, 110th Cong. (2007). 8Dunn v. Kanawha City. Bd. Of Educ., 459 S.E.2d 151, 157 (W. Va. 1995). 9Robert A. Sachs, Product Liability Reform and Seller Liability: A Proposal for Change, 55 Baylor L. Rev. 1031, 1037 (2003). 10See id. 11Colo. Rev. Stat. Ann. § 13-21-402(1). 12Colo. Rev. Stat. Ann. § 13-21-402(2). 13Ind. Code Ann. § 34-20-2-3. 14Ind. Code Ann. § 34-20-2-4. 15See N.J. Stat. Ann. 2A:58C-9; see also Fidelity and Guar. Ins. Underwriters, Inc. v. Omega Flex, Inc., 936 F. Supp. 2d 441 (D.N.J. 2013). 16See Fidelity and Guar. Ins. Underwriters, Inc. v. Omega Flex, Inc., 936 F. Supp. 2d 441 (D.N.J. 2013). 17N.J. Stat. Ann. 2A:58C-9 18N.J. Stat. Ann. § 2A:58C-9(d). 19Similarly, in New York, manufacturers and retailers have some indemnity protections through common law. “New York courts have consistently held that common-law indemnification lies only against those who are actually at fault.” Nourse v. Fulton Cnty. Cmty. Heritage Corp., 2 A.D.3d 1121, 1122 (2003); see Colyer v. K Mart Corp., 273 A.D.2d 809, 810 (2000), Trustees of Columbia Univ. v. Mitchell/ Giurgola Assoc., 109 A.D.2d 449, 451 (1985). In the products liability context, a manufacturer is held accountable as a “wrongdoer” when it releases a defective product into the stream of commerce, see Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 25-26 (1985), and “innocent” sellers who merely distribute the defective product are entitled to indemnification from the at-fault manufacturer. See Godoy v. Abamaster of Miami, 302 A.D.2d 57, 62 (2001). 20Ariz. Rev. Stat. Ann. § 12-684. 21Rachel S. Nevarez, How to Take Advantage of “Seller’s Exception” Statutes, American Bar Association (2016), https://www. americanbar.org/groups/litigation/committees/products-liability/ practice/2016/how-to-take-advantage-sellers-exception-statutes/. 22Innocent Sellers Fairness Act, H.R. 5500, 109th Cong. (2006). 23Innocent Sellers Fairness Act, supra note 7; H.R. 2518, 111th Cong. (2009). 24Innocent Sellers Fairness Act, supra note 22. 25Innocent Sellers Fairness Act, H.R. 2746, 113th Cong. (2013). 26Innocent Sellers Fairness Act, H.R. 1199, 114th Cong. (2015); H.R. 1118, 115th Cong. (2017). 27See H.R. 1118, 115th Cong. (2017). 28Innocent Sellers Fairness Act, supra note 25. 29See Innocent Sellers Fairness Act, H.R. 5500, 109th Cong. (2006); H.R. 989, 110th Cong. (2007); H.R. 1118, 115th Cong. (2017).