Church of Scientology of California v. Foley, 77-2134

• Decision Date: 08 January 1981
• Docket Number: No. 77-2134,77-2134
• Citation: 640 F.2d 1335,205 U.S.App.D.C. 364
• Parties: CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant, v. Shirley FOLEY et al. . Originally
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1335

640 F.2d 1335

205 U.S.App.D.C. 364

CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant, v. Shirley FOLEY et al.

No. 77-2134.

United States Court of Appeals District of Columbia Circuit.

Originally Argued Jan. 4, 1979.

Argued before Court En Banc Oct. 20, 1981.

Decided by Court En Banc Jan. 8, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil 77-0495).

Russell F. Canan, Washington, D. C., for appellant.

John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert ^*, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before WRIGHT, Chief Judge, and McGOWAN, TAMM, ROBINSON, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.

Judgment PER CURIAM.

Concurring opinion filed by Circuit Judge MacKINNON.

Dissenting opinion, in which Circuit Judges EDWARDS and GINSBURG join, filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

JUDGMENT

PER CURIAM.

This cause came on to be heard on the record from the United States District Court for the District of Columbia and was argued by counsel before the court en banc. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the court. See Local Rule 13(c).

This court is of the view that the complaint filed in this case was properly dismissed by the District Court, basically for the reason stated in its order filed October 27, 1977.

On consideration of the foregoing, it is ORDERED and ADJUDGED by this court that the judgment of the District Court appealed from in this cause is hereby affirmed.

MacKINNON, Circuit Judge (concurring).

In my opinion en banc rehearing was necessary to maintain the uniformity of our decisions.

In dissenting from the panel opinion in this case Judge Wilkey stated

this court quite logically has construed that language (of the D.C. statute of limitations) as mandating an inquiry into the "nature of the injury involved rather than to the legal theories available for its redress." (Emphasis added.)

Footnote 3 was cited in support of this assertion, as follows:

3 District of Columbia Armory Bd. v. Volkert, 402 F.2d 215, 220 (D.C.Cir.1968). In Volkert, plaintiff sued the supplier and architect firm responsible for the construction of the D.C. stadium after defects occurred in the stadium. Although the underlying theory of liability alleged was negligence, the purpose of the action was to recover damages for injury to the property. Thus the court held that the provision "for the recovery of damages for an injury to real or personal property," 12 D.C.Code § 301(3), stated the applicable limitation period.

The dissent takes the position that three potential claims have been suggested: First, infringement of appellant's rights under the First and Fifth Amendments. Second, breach of a due-care duty implicit in whatever federal statute or regulation purportedly authorized the activities of the appellees. Third, common law negligence in the maintenance of government files. Yet, the purpose of each of these claims is to recover damages for defamation. Therefore, the statute of limitations applicable to actions for defamation determines whether the suit was timely filed.

The en banc court's action affirms the district court's dismissal of the complaint, because the activities complained of therein occurred in excess of one year before the filing of the law suit and hence plaintiff's claim was barred by the District of Columbia one-year statute of limitations for libel. 12 D.C.Code § 301(4). (App. 60). The dissent argues that the issues presented are too unimportant for en banc consideration, and that the panel opinion therefore should be reinstated. Rehearing en banc, however, is proper to "secure or maintain uniformity of ... decisions." F.R.App.P. 35. And since the panel decision in this case was inconsistent with Volkert, it was proper to maintain the uniformity of our decisions by reversing the panel decision on rehearing en banc.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge, with whom EDWARDS and GINSBURG, Circuit Judges, join, dissenting:

This case came before the court en banc after a divided panel ¹ reversed a District Court order ² dismissing as time-barred an action brought by appellant, the Church of Scientology of California, against four federal employees, the appellees herein. ³ The Church sought money damages on the basis of allegations that appellees had participated some ten years earlier in the preparation and dissemination of a Department of Labor memorandum containing statements falsely accusing the Church of certain bizarre activities. Today, without opinion, the court exercises its en banc power to affirm the District Court, for no apparent reason other than disagreement with the panel's decision. Because I am persuaded that nothing in this case presents a question of exceptional importance and that the majority panel opinion portends no conflict with our past holdings, I would vacate the order granting the rehearing en banc as improvident and dissolve the en banc court. Accordingly, I respectfully dissent.

I. BACKGROUND

The factual backdrop of this litigation is supplied by the Church's complaint. ⁴ The memorandum ultimately sparking the controversy was written by appellee Shirley Foley in November, 1967. It was a summary of an "investigation concerning the Church of Scientology ... made in order to form an opinion as to whether the body can be considered a bona fide religious organization for the purpose of alien employment certification." ⁵ Foley reported that there was evidence that LSD and perhaps other drugs were widely used by assembled Church members; that an electric shock was administered to new members as a part of the Church's initiation ceremony; and that several persons in different parts of the United States had been shot, though not killed, because they had objected to the membership of their teen-aged children in the Church. ⁶ The memorandum cited appellees June Norris and Charlotte Murphy as the sources of this information, ⁷ and advised that they "urgently request(ed) that the Department of Labor withhold alien employment certification on any basis for the Church of Scientology." ⁸

In February, 1968, the memorandum was forwarded to appellee John McGill, ⁹ who in turn supplied a copy to a branch office of the Immigration and Naturalization Service. ¹⁰ That, the Church asserts, led to initiation of visa-revocation proceedings against an alien Scientologist minister, ¹¹ and to a long-term pattern of unremitting discrimination and harassment by governmental officials and agencies acting on the strength of the memorandum. ¹²

The Church instituted the instant litigation in March, 1977. ¹³ In its complaint, it charged that the forerunning events infringed its First Amendment right to freely exercise religious beliefs and its Fifth Amendment right to due process of law. ¹⁴ The complaint averred that the memorandum incorporated information that appellees knew or reasonably should have known was false; ¹⁵ that the memorandum was maintained in the files of the Department of Labor despite the risk that the information would be disseminated to the detriment of the Church; ¹⁶ and that the harm feared actually came to pass. ¹⁷

In response to the complaint, appellees moved for dismissal on the ground that the suit was precluded by the District of Columbia statute limiting the time period for commencement of defamation actions to one year. ¹⁸ Appellees also requested a protective order barring discovery pending disposition of the motion. ¹⁹ The District Court subsequently issued the protective order. ²⁰ When the Church thereafter filed an amended complaint which, save for minor alterations, was identical to the original, ²¹ the court granted appellees' renewed motion to dismiss, concluding that the cause of action sounded only in defamation and thus was barred by the one-year statutory limitation. ²²

On appeal, the panel upheld the dismissal to the extent that the claim was one for defamation. ²³ On the ground that the complaint might have stated some additional and different cause of action under either the Constitution or some unspecified federal statute or regulation, however, a majority of the panel reversed and remanded for further consideration. ²⁴ The full court then agreed to rehear the case en banc, and now affirms the District Court's dismissal order.

II. RULE 35 AND THE PREEMINENCE OF THE THREE-JUDGE COURT

The full panoply of powers conferred upon the federal courts of appeals are statutorily vested in three-judge panels. ²⁵ A court of appeals may sit en banc only in the narrowly-defined circumstances specified by Rule 35 of the Federal Rules of Appellate Procedure, which declares that a hearing or rehearing (en banc ) is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. ²⁶

Rule 35 governs all en banc hearings and rehearings. To be sure, its criteria are not entirely free from ambiguity, but an examination of the statutory and judicial developments culminating in promulgation of the rule, and of the more recent decisions construing its mandate, makes clear that courts of appeals are to function principally through divisions of three judges. Exceptions are appropriate only in rare instances, and, as we shall see, the instant case is not one of them.

A. The Development of En Banc Review

From the moment the federal courts of appeals were created in 1891, ²⁷ the primary decisionmaking unit was statutorily limited to the three-judge panel. ²⁸ Indeed, while the appointment of a fourth appellate judge to three circuits in 1911 ²⁹ stirred debate ³⁰ over whether the courts of appeals could ever function as a whole rather than by three-judge...