802 F.2d 1448 (D.C. Cir. 1986), 85-5885, Founding Church of Scientology of Washington, D.C., Inc. v. Webster

Docket Nº:85-5885.
Citation:802 F.2d 1448
Party Name:FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D.C., INC., Appellant, v. William H. WEBSTER, Director of the Federal Bureau of Investigation of the United States, et al.
Case Date:September 26, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1448

802 F.2d 1448 (D.C. Cir. 1986)



William H. WEBSTER, Director of the Federal Bureau of

Investigation of the United States, et al.

No. 85-5885.

United States Court of Appeals, District of Columbia Circuit

September 26, 1986

Argued June 3, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 78-0107).

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Anthony P. Bisceglie, Washington, D.C., with whom William C. Walsh and Jeffrey B. O'Toole were on the brief, for appellant.

Freddi Lipstein, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, were on the brief, for appellees. Anthony J. Steinmeyer and E. Roy Hawkens, Attys., Dept. of Justice, also entered appearances for appellees.

Regina Jackson, Washington, D.C., was on the brief for amici curiae, American Coalition of Unregistered Churches, et al., urging reversal.

Before GINSBURG, STARR, and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

The appeal before us marks the end of eight years of litigation in a case that has never passed beyond the stage of pre-trial discovery. The District Court dismissed the case as a sanction under Fed.R.Civ.P. 37 for failure to comply with a discovery order entered by the court. Specifically, L. Ron Hubbard, the founder of the Church of Scientology, failed to appear for a court-ordered deposition to inquire into his status as a managing agent of that organization. We are satisfied that the District Court acted lawfully within its authority and sound discretion. We therefore affirm.


In 1978, the Founding Church of Scientology of Washington, D.C. ("Scientology") filed suit on behalf of itself and a class composed of all "Churches" and "Missions" of Scientology in the United States. In its complaint, Scientology named the United States and numerous federal officials as defendants. 1 The complaint alleged an extensive campaign of government harassment that included illegal investigative and law enforcement activities, collection and dissemination of information about Scientology and other related organizations, and encouragement of hostility toward the movement inside and outside the federal government.

By virtue of this alleged unlawful activity, Scientology asserted violations of the First, Fourth and Ninth Amendments to the Constitution. It sought compensatory and punitive damages under the Federal Tort Claims Act; a declaratory judgment that the defendants' actions had violated the Constitution and laws of the United States; an injunction against further law enforcement activities by defendants directed at the various Scientology "Churches" and their members; and further injunctive relief to expunge or destroy false and derogatory information allegedly collected and obtained illegally by defendants and placed in government records.

In an initial opinion and order dated October 19, 1978, the District Court dismissed the damage claims for failure to exhaust administrative remedies under the Federal Tort Claims Act, and the claim for injunctive relief from asserted religiously based discrimination on the grounds that plaintiff had not pursued the exclusive remedy available under Title VII of the Civil Rights Act of 1964. The trial court allowed the remainder of the suit to proceed and conditionally certified a class of all Scientology Churches and Missions for purposes of seeking declaratory and injunctive relief.

Subsequent developments in the case followed on the heels of a criminal prosecution, United States v. Mary Sue Hubbard, Crim. No. 78-401, slip op. (D.D.C. order

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enforcing plea agreement Oct. 8, 1979), brought against nine high ranking officials of the Church of Scientology. In that case, several defendants stipulated that the network of Scientology organizations had conducted a broad campaign against U.S. Government entities and officials, particularly the Internal Revenue Service. 2 This concerted campaign by the Scientology apparatus encompassed a wide range of illegal activities, including theft of government documents for use in litigation against the United States, falsification of government identification cards, wiretapping, infiltration and perjury.

On the basis of this new evidence, the defendants in the present case sought to amend their answer to the complaint in order to interpose a defense of "unclean hands." The United States Magistrate, in a decision affirmed by the District Court, permitted the defense to be raised and discovery to be conducted without deciding whether such a defense should in fact be applied in this case. We pause to observe that "unclean hands" as a defense went to the injunctive remedy, but not to the request for declaratory relief. As will be seen, however, the defendants contend on appeal that the discovery they sought extended beyond this defense to provide a general, substantive defense to the claims asserted in this suit. 3

On August 21, 1984, as part of a series of discovery requests, the Government noticed the deposition of L. Ron Hubbard, the founder of the Church of Scientology, in his capacity as "an officer, director, or managing agent of plaintiffs." Joint Appendix ("J.A.") at 163. When Hubbard failed to appear for the deposition on the designated date, defendants moved to dismiss the suit or, in the alternative, to compel Hubbard's deposition. The court responded by ordering defendants to renotice the deposition and to submit a factual proffer as to why Hubbard's deposition was necessary. J.A. at 262. The court stated that if Hubbard did not appear, the Government could then renew its alternative motion to compel his deposition or dismiss the case. The defendants submitted the requested factual proffer and renoticed the deposition. Hubbard again failed to appear on the appointed date. In the wake of this turn of events, plaintiffs submitted numerous declarations by officials of the individual Scientology churches and high officials in the central Scientology organization denying not only Hubbard's status as managing agent but any capability of contacting him. J.A. at 271-350. The Government responded with additional declarations and other evidence in support of Hubbard's status as managing agent. J.A. at 351-407.

In an order issued March 13, 1985, the District Court found that the Government had established "at least a prima facie case" that Hubbard was managing agent as of November 19, 1984. To settle this issue conclusively, the court ordered Hubbard to appear on April 5, 1985, for a limited-purpose deposition addressed to "the issue of his relationship to the organization." J.A. at 429. No inquiry could be made into the facts pertaining to the merits of the suit. Failure to appear, the court expressly warned, would result in dismissal of the suit altogether. Id. Submitting several additional declarations by Church employees and officials, plaintiff moved for reconsideration. J.A. at 431-72. This the court denied. J.A. at 475. On April 9, 1985, upon notification by counsel that Hubbard had failed to appear for the limited-purpose deposition as scheduled, the court dismissed the case with prejudice. J.A. at 488. On July 10, the court denied the plaintiff's motion to vacate the judgment of dismissal. Scientology then filed this appeal.

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The ultimate question for resolution is whether the District Court abused its discretion when it dismissed this suit as a discovery sanction under Fed.R.Civ.P. 37. Before we reach that issue, however, we must first determine whether the District Court properly resolved the underlying question whether the Government had shown, at least prima facie, that Hubbard was a managing agent of Scientology and could therefore be compelled to testify on its behalf.


Fed.R.Civ.P. 26(a) broadly authorizes parties to obtain discovery by various means, the first of which is "depositions upon oral examination." Depositions thus rank high in the hierarchy of pre-trial, truth-finding mechanisms. That is not surprising. Face-to-face confrontations prior to trial, with such indicia of formality as administration of the oath, the presence of counsel and stenographic recording of the proceedings, are a critical component of the tools of justice in civil litigation. Fed.R.Civ.P. 30(a) thus broadly provides that "any party may take the testimony of any person, including a party, by deposition upon oral examination." Fed.R.Civ.P. 32(a)(2), governing the use of depositions in court proceedings, provides that the deposition "of anyone who at the time of taking the deposition was an officer, director, or managing agent ... may be used by an adverse party for any purpose." (Emphasis added.) At the same time, Fed.R.Civ.P. 37(d) authorizes dismissal and other sanctions "[i]f a party or an officer, director or managing agent of a party ... fails ... to appear before the officer who is to take his deposition, after being served with a proper notice." (Emphasis added.) The concept of "managing agent" is thus an integral part of the corpus of discovery law. See also Fed.R.Civ.P. 30(b)(6).

Federal discovery provisions have traditionally provided a mechanism for an adverse party to secure depositions from a public or private corporation through a managing agent designated by the adverse party. In 1970, an amendment to the Federal Rules of Civil Procedure replaced a specific authorization for securing depositions of managing agents with the current, more general framework, and established a new mechanism permitting the corporation (or other entity) itself to...

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