*1 OF CHURCH SCIENTOLOGY OF
CALIFORNIA, Appellant,
Shirley al. FOLEY et
No. 77-2134. Appeals,
United States Court
District Columbia Circuit. Canan, C., Russell F. D. Washington, 4, 1979. Originally Argued Jan. appellant. Argued before Court En Banc 20, 1980.
Oct. Fisher, John R. Atty., Asst. U. S. Wash ington, C.,D. J. *, with whom Earl Silbert by Decided Court En Banc U. Atty., S. and John A. Asst. Terry, U. S. 8, 1981. Jan. Atty., C., Washington, brief, D. were on the
for appellee. WRIGHT,
Before Judge, Chief MeGOWAN, TAMM, ROBINSON, MacK- INNON, ROBB, WILKEY, WALD, MIKVA, GINSBURG, EDWARDS and Cir- Judges. cuit Judgment PER CURIAM. Concurring opinion Judge filed Circuit MacKINNON. opinion,
Dissenting in which Circuit Judges join, EDWARDS and GINSBURG filed by Judge Circuit SPOTTSWOOD W. ROBINSON, III.
JUDGMENT PER CURIAM.
This cause came 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 banc. presented While the issues occasion no need opinion, for an they have been accorded full consideration court. See Local Rule 13(c).
This court is the view that the com- plaint filed сase properly dis- missed Court, the District basically for * Attorney United the brief States at the time filed. *2 Second, duty implicit breach of due-care filed October stated in its order
the reason regulation or in whatever federal statute of the authorized the activities purportedly it is foregoing, of the On consideration Third, negligence common law appellees. court by this and ADJUDGED ORDERED files. government the of maintenance the Court of District judgment that the Yet, these purpose of each of claims the hereby af- in this cause is appealed from There- damages recover for defamation. firmed. fore, applicable to the of limitations statute determines whether MacKINNON, Judge (concurring). for defamation actions Circuit timely suit filed. the was rehearing was opinion en banc my In action affirms the The en banc court’s our uniformity the necessary to maintain the complaint, dismissal of district court’s decisions. complained of therein the activities because panel opinion the dissenting In from year in excess one before occurred stated Judge Wilkey this case hence filing plaintiff’s of the law suit and construed quite logically has court by was the District of Colum- claim barred of limi- language the D.C. statute that [of one-year limitations statute of for libel. bia mandating inquiry into the as an tations] 301(4). 60). (App. The dis- 12 D.C.Code § rather injury involved “nature of argues presented are sent issues legal for its than to the theories available consideration, unimportant for en banc too [Emphasis redress.” added.] opinion panel and that the therefore should support was of this cited Footnote banc, however, Rehearing en be reinstated. assertion, as follows: uniformity proper to “secure or maintain v. Vol Armory of Columbia Bd. District F.R.App.P. ... decisions.” 35. And (D.C.Cir.1968). kert, panel in this case was since decision Volkert, plaintiff supplier and sued Volkert, it was proper inconsistent with con responsible firm for the architect uniformity of our decisions maintain the de of the stadium after struction D.C. reversing rehearing en decision Although stadium. fects occurred in the banc. theory liability alleged underlying purpose the action negligence, was ROBINSON, III, W. Cir- SPOTTSWOOD damages injury was to recover Judge, with whom cuit EDWARDS Thus court held that property. GINSBURG, join, Judges, Circuit dissent- damages recovery provision “for the ing: injury personal proper for an real 301(3), ap ty,” 12 D.C.Code stated This case came before the court en banc plicable period. limitation panel1 reversed District after divided an dismissing as time-barred three Court order2 position The takes the dissent brought by appellant, suggested: been action Church potential claims have California, First, against fed- infringement appellant’s rights Scientology un- four appelleеs employees, Fifth Amendments. eral herein.3 der the First Labor, Foley, employee Department Scientology v. No. 77- McGill of the Church State, 1980) (majority (D.C.Cir. Department an Feb. officer of dissenting attorneys opinions). Murphy In accordance the Inter- and Norris were practice, panel opinions and with current sought All four the dis- nal Revenue Service. judgment were when vacated ground that missal on the action granted. banc was statute of barred the District of Columbia actions, applicable to defamation limitations Foley, 77- Civ. No. 2. Church of 12-301(4) (1973). They did not D.C.Code § 27, 1977), (App.) (D.D.C. Appendix Oct. suit, immunity from then claim official they motion made known their their dismissal Shirley Foley, employees John T. four are McGill, Murphy and Norris. At June Charlotte Foley appeal, was an all times relevant to this sought money damages on the purpose basis zation for the employment Church alien appellees partici- allegations had Foley reported certification.”5 there years prepara- ten earlier in the pated some was evidence that perhaps LSD and other Department dissemination of a drugs tion and were widely used assembled containing members; Labor memorandum statements that an electric shock *3 accusing falsely the Church of certain bi- was administered to part new members as a Today, opinion, without zarre activities. the Church’s ceremony; initiation en banc power the court exercises its to that several persons in parts different Court, apparent the District for no affirm shot, the though United States had been disagreement other than with reason the killed, they objected because had am panel’s persuaded decision. Because I membership of their teen-aged children in nothing presents in this that case the Church.6 The memorandum cited ap- exceptional importance the and that ma- pellees June Norris and Charlotte Murphy opinion portends jority panel conflict no information,7 as the sources past holdings, with our I would vacate the they “urgently advised that requested] granting order the en banc as Department that the of Labor withhold improvident and dissolve the banc court. alien employment any on certification basis Accordingly, I respectfully dissent. for the of Scientology.”8
In February, the memorandum was I. BACKGROUND appellee McGill,9 forwarded to John who in supplied turn copy to a branch office of backdrop litigation The factual of this Immigration the and Naturalization Ser- supplied by complaint.4 the Church’s The That, asserts, vice.10 the Church led to ultimately memorandum sparking the con- initiation of visa-revocation proceedings troversy by appellee Shirley was written against minister,11 an Scientologist alien Novеmber, Foley in 1967. It was a summa- long-term pattern and to a of unremitting ry “investigation of an concerning the govern- discrimination and harassment Church of . .. made in order to mental opinion agencies acting an officials and on body form as to whether the can strength of religious organi- be considered a bona fide the memorandum.12 subject Department intention address that if the motion Naturalization Service to the App. was denied. 14. Labor. Because the motion was successful, immunity an defense never Supp.App. 6. 1. emerged. Supp.App. During 7. 1. the course of the inves- consequence protec- 4. In of the issuance of a tigation Foley had conferred with Norris and deferring discovery tive order and the dismissal apparently Murphy, who based their state- thereafter, shortly of the Church’s action prior upon ments Internal Revenue Service in- fully developed. facts case were never vestigations Supp.App. 1. the Church. But it well settled that on a motion to dismiss upon for failure to state a claim which relief Supp.App. 8. 2. granted, complaint indulged can be must be plaintiff the construction most favorable Appellant’s Complaint, App. 9. V 5-6 [here- allegations and its must be taken as true. Complaint], inafter cited as Rhodes, 232, 236, Scheuer *' L.Ed.2d 96-97 Cali- Complaint, App. 5-6. 10. Transp. Trucking fornia Motor Co. v. Unlimit- ed, r Complaint, App. 5. McKeithen, L.Ed.2d 395 U.S. Jenkins v. 411, 421-422, 12; In-1975, Complaint,17-18, App. 6-7. 416-417 Department officially acknowledged of Labor incorporated the information that memorandum based dum for destruction. into the Appendix Appellants’ (Supp.App.) irrelevant, Brief “was unverified and investigation apparently hearsay,” was conducted the memoran- and slated pursuant request Immigration Supp.App. to a dismiss, concluding tion that cause of litiga- the instant The Church instituted March, complaint, its 1977.13 In tion in defamation and thus action sounded forerunning in- events charged that one-year statutory limi- barred right freely fringed First Amendment its tation.22 its religious beliefs and Fifth exercise appeal, upheld the panel On the dismissal process law.14 right to due Amendment to the еxtent that the claim was one for averred that memoran- complaint ground On the the com- defamation.23 appel- information incorporated dum might plaint have stated some additional have reasonably knew should known lees of action either and different cause under false;15 memorandum was unspecified the Constitution or some federal Department the files of the maintained in however, regulation, majority statute or despite Labor risk that informa- and remanded for reversed disseminated to the detriment tion would be further consideration.24 The full court then Church;16 and the harm feared *4 agreed rehear case en and now actually pass.17 to to the banc, came affirms the District Court’s dismissal order. complaint, appellees to the response ground on the that the moved for dismissal by District of precluded suit was the Colum- RULE 35 AND THE PREEMI- II. limiting period
bia statute the time for NENCE THE THREE- OF of defamation actions to commencement JUDGE COURT year.18 Appellees requested pro- also a one panoply powers The full of conferred barring discovery pending dis- tective order is stat- upon appeals of the federal courts motion.19 The position of the District Court three-judge utorily panels.25 vested in A subsequently protective issued the order.20 appeals may only court of sit in banc When the Church thereafter filed an narrowly-definеd specified by circumstances which, complaint save for minor amended Appellate Rules alterations, Rule 35 of Federal original,21 was identical Procedure, granted appellees’ mo- which the court renewed declares by trary it had no 13. asserted that knowl- discrimination and harassment various Church edge prior governmental agencies personnel; existence of and and that the memorandum required money pay large of a conclusion contested Freedom of it was sums for April, proceeding legal expenses in Information Act Complaint, 1975. related re- and endeavors to App. stating 18| 20, gain rights. Complaint, App. ¶ While that it 7. its 8. f'i object long gоv- it aware that was the harassment, discrimination and ernmental (1973), 12-301(4) quoted in rele- § 18. D.C.Code says previously Church was unable to identi- part infra vant note 52. responsible fy the therefor. Com- individuals plaint, App. ¶ 7. argued Supp.App. Appellees judicial 4. 19. economy promoted deferring would dis- be Invoking Complaint, App. ¶ 14. 8. also the covery disposition until motion to after Columbia, common law of the District of plaint, Com- Supp.App. dismiss. 4. App. laid ¶ Church claim diversity jurisdiction, federal-question both and Scientology Foley, supra 20. note 1 Church 1331(a), 1332(a)(1) 28 plaint, §§ U.S.C. Com- (order staying discovery, July 1977), Record $10,- ¶2, App. Damages exceeding 2. Appeal 17. sought injuries assertedly suf- were ¶|2, Complaint App. fered. 2. App. 21. 30. Complaint, App. ¶ 15. 4. Scientology Foley, 22. note Church Complaint, App. ¶ 16. 4-5. 2, App. 60. ¶|1111, 13-15, App. Complaint, 5-7. Foley, supra Church alleged In. addition to the invasions the con- 1, at 5. themselves, rights stitutional common law reputation the damaged; averred its Id. at ability 5-16. in its that it was hindered contributions; parishioners enlist and financial object 46(c) (Supp. 1976). II § that it arbi- 25. 28 U.S.C. became continuous and, hearing see, or is not as we shall [en instant case is not banc] ordinarily one of them. favored will not be ordered except (1) when consideration the full necessary
court
to secure or maintain A. The Development of En Banc Review
decisions,
uniformity
(2)
of its
when
From the moment the federаl courts of
proceeding
involves a
of ex-
appeals
1891,27
were created in
the primary
ceptional importance.26
decisionmaking unit was statutorily limited
governs
Rule 35
all en
hearings
Indeed,
to the three-judge panel.28
while
sure,
rehearings. To
its
criteria are not
appointment
of a fourth appellate judge
entirely
ambiguity,
free from
an
exami-
three
circuits
191129stirred debate
statutory
develop-
nation
over whether the
of appeals
courts
could
ments
culminating
promulgation of the
ever function
as whole rather than
rule, and
more recent decisions con-
divisions,
three-judge
it was not until 1940
mandate,
struing its
makes clear that courts —almost half
century
ap-
after federal
appeals
are to
principally
function
peals courts came into
existence—that
through
judges. Excep-
divisions
three
Supreme Court sanctioned
use
the en
instances,
appropriate
tions are
rare
banc tribunal.31
Fed.R.App.P. 35(a).
tern,
(Bator, Mishkin,
Shapiro
at 40-41
&
1973). Although
original
ed.
Wechsler
cir-
27. Act of March
ch.
26 Stat.
legislation
cuit courts survived
*5
appeal
The courts of
should
be
appellate jurisdiction,
act terminated their
Act
courts,
original
confused with the
circuit
which
3, 1891,
517,
of March
ch.
§
Stat. 826
initially
three-judge panel.
also
made use of a
(1891); they
were abolished in
their
A detailed account of the evolution of the feder-
original jurisdiction was transferred to
dis-
the
may
Miller,
Wright,
al courts
in
be found C.
A.
3, 1911,
trict courts. Act of March
ch.
Cooper,
E.&
Federal Practice §§ 3503-3504
Stat. 1087.
(1975 ed.).
however,
present purposes,
For
a
history
precursors
brief
of the
of the modern
3, 1891,
28. Act of March
ch.
§§
appeals
of
courts
will suffice.
Stat. 826
by
The circuit courts were created
the Judici-
ary Act of
ch.
Stat. 73. This
§
3, 1911,
Act
of March
ch.
36 Stat.
§
legislation—in
Congress
which
first
for the
power granted
time exercised the
it under Art.
Ill,
1,§
of the Constitution to establish the
complex
explained
courts—provided
30. The rather
situation was
lower federal
for thirteen dis-
by
Supreme
trict and
the
three circuit courts.
Court
in Textile Mills Sec.
The latter had
Commissioner,
original
jurisdiction.
Corp.
appellate
both
There
S.Ct.
were, however,
such;
judges
(1941):
no circuit
as
tice, Rule plain language potential suggest- claims have Three been interpretation pur- of the consistent infringement rights secured to the ed: uses en banc courts poses permissible First by the and Fifth Amend- accord; barring extraordi- complete are in ments; duty implicit of a due-care breach circumstances, three-judge panels nary rеgulation federal statute or whatever cases hear and decide may appropriately authorized activities purportedly appeals. coming before courts engaged; appellees which and common law negligence governmen- in the formation of III. THE PRESENT CASE valid, is any tal files. If one of these claims Court dismissed Church's The District three-year period may limitation be le- ground that it solely action on the issue, then, is whether gally viable.54 statute the District Columbia barred supported have the Church could claim libel applicable actions for limitations for relief under one or more of these theo- view, In or slander.51 the court’s ries.55 I see no reason whatsoever for sum- nearly complaint most Church’s “sound[ed] moning authority this court’s en banc defamation,” intercepted by the and was inquiry. conduct there- one-year limitation on actions local Certainly an en question justifying no dispute appeal is whether the for.52 The posed by banc decision is the Church’s con- legitimate other than Church had a claim defamation, claims.56 It is well settled that a thus able to benefit stitutional is damages provision money may cause of action for be from the statute’s residual Scientology Foley, supra v. note until the Church became aware of the memo- 51. Church of g., Fitzgerald App. Compare, federal 60. Since there no statute in 1975. e. v. randum applicable 75, 83-86, U.S.App.D.C. to the federal claims limitations suit, 553 F.2d Seamans properly for the most the court looked (1977); Rogers 228-231 Jones Memorial analogous Ru- District of Columbia limitation. 51, 52-53, U.S.App.D.C. Hosp., 773, F.2d 160, 180, McCrary, nyan v. 96 S.Ct. (1971); Emmett Eastern Dis- 774-775 2586, 2599, (1976); 49 L.Ed.2d 430-431 Hosp., U.S.App.D.C. pensary & Cas. Railway Express Agency, U.S. Johnson v. 55-58, I inti- 936-939 1716, 1721, 95 S.Ct. regard. view mate no in this v. Hoosier 302-303 UAW Cardinal 701-704, Corp., U.S. in note 65 infra. 54. See the discussion 1110-1113, 16 L.Ed.2d 197-199 Anderson, Cope v. U.S. sufficiency appraising the com- 55. “[I]n 91 L.Ed. 1606-1607 follow, course, plaint [federal courts] Whether, however, right picked provision it accepted complaint rule that should not another matter. for failure to state claim unless dismissed appears Foley, supra beyond plaintiff 52. Church of doubt can 2, App. part, the District of support relevant prove his no set of facts in claim provides: of limitations Columbia statute Conley v. would entitle him to relief.” which specifically provided Except Gibson, as otherwise following law, purposes Accord, actions for Haines v. Ker- L.Ed.2d ner, *8 expiration may brought 520-521, 596, be after the 519, 594, not 92 404 U.S. S.Ct. period specified below from the time 652, (1972); 654 Jenkins v. 30 L.Ed.2d right . . . maintain the action accrues: McKeithen, 4, 421-422, supra note 395 U.S. at slander, (4) year; . . .—1 . for libel .. [or] 416-417; 1849, v. 23 at Sass 89 S.Ct. at (8) is not otherwise for which a limitation Columbia, U.S.App.D.C. 114 District of years prescribed—3 specially .... (1963). F.2d 367 316 (1973). 12-301 § D.C.Code (1973), quoted 12-301(8) supra at 56. See text note 53. See D.C.Code § supra to us 52. The case was submittеd theory action accrued that no cause of on
1343
statutory
implied directly
responsibility
manage
from either the First or the
govern-
The issue here
not
Fifth Amendment.57
is
panel
mental
and the
majority
records,60
import;
it is
significant
simply
whether
perhaps
felt
that
the Church could show
complains
proof
the events the
duty
that such a
in
existed
this case.61 rising
would establish official misconduct
forged no
doctrine,
decision
novel
nor
the level of constitutional
transgression.58
precedents.
did
conflict with our
I
fail
question
factual,
largely
That
panel’s
see how
exploration
remand for
any impact
answer
have little if
could
possible
of this avenue to
relief warrants en
proceedings other
than those at hand.59
banc review.
Consequently,
do
constitutional
issues
Nor,
view,
my
does
Church’s com-
special decisionmaking
not merit use of the
theory
mon law
of liability deserve
en banc
power
the full court.
suggests
treatment.
The Church
that there
The further
appellees
whether
grounded
duty,
nonfederal
in District
disregarded
have
a statutorily-imposed
obli-
law,
of Columbia
to use due care in assem-
gation to exercise reasonable care involves
bling
maintaining
federal
very similar considerations.
This court at
records.62
longer
But we no
have either the
previously
responsi-
least
twice
has held that such a
bility
duty, and
remedy
prerogative
a сoncomitant
for
its
fashion the com-
breach, may follow
imposition
from
of a
law
mon
the District
toor
Columbia,63
Supreme
Saxbe,
57. The
v.
U.S.App.D.C.
Court’s decision
Bivens
60. Tarlton v.
165
Agents
Six Unknown Named
of the Federal
(1974);
507 F.2d
1122-1126
Me-
Narcotics,
388, 395-397,
Saxbe,
Bureau
403 U.S.
91
U.S.App.D.C.
v.
nard
162
498
1999, 2004-2005,
S.Ct.
29 L.Ed.2d
626-627
F.2d
1029
(1971), definitively established
that
cause
money damages may
implied
action for
di
be
Foley, supra
61. Church of
v.
not
e
rectly from the Constitution. Bivens dealt with
1, at 7-12.
Amendment,
subsequently
the Fourth
but
similarly
Court has held that causes of action
question crept
62. That
into the case when the
may be derived from the Fifth. See Davis v.
diversity
citizenship
Church invoked
one
as
Passman,
442 U.S.
99
60
S.Ct.
jurisdictional
District Court’s
bases. See
also,
g., Payne
L.Ed.2d 846
See
e.
v.
supra.
recognize
note 14
I
the federal
Columbia,
U.S.App.D.C.
District
182
might
provide
common law
also
a cause of
(1977);
act en
the en
rehearing, dissolved
granting
order
court deal-
a federal
deed,
obligation as
our
panel opin-
reinstated
non-
court and
to take
banc
claim is
a nonfederal
ing with
court,
by a
when confronted
And this
Against
is.64
this
ion.66
it
just
law
as
federal
because of
concluded that
anything
problem,
conceive
similar
I cannot
background,
of the case it
importance
for en banc consideration
the limited
appropriate
less
“exposi-
detailed
provide
purely
inappropriate
local law.65
a matter
than
beyond that
legal points
of the
tion en banc
Disposition
Proposed
B. A
majority
and minor-
already provided
according-
and
opinions
panel,”67
of the
ity
case
clear
seems
that
While
opinions.68 An obvious
panel
ly reissued
review,
banc
worthy
issue
en
presents no
practice of
Supreme Court’s
is the
parallel
dispose
itof
properly
how
when, after
of certiorari
dismissing writs
course,
Usually,
courts do
remains.
case, it becomes evident
study
closer
simply refuse
they
that need because
face
granted on a mistaken
writ was
that
an
banc
cases
en
inappropriate
to accord
record;69
is
the case
impression of
that
however,
Occasionally,
courts
audience.
to issue
au-
banc,
in which
an
an unsuitable one
discovered,
convening en
after
have
decision;70
that
is
or
case
thoritative
hearing
viewing
argument,
oral
briefs
to merit the Court’s
simply
unimportant
too
consider-
given case does not warrant
that a
just
judge.
such
attention.71
by every active
ation
641,
(D.C.App.1973);
P. v.
M. A.
A.2d
643
36.
constitutional claims are not con-
304
These
310,
slander,
Ryan,
(D.C.App.1971).
gruent
panel
285 A.2d
312
libel or
nor is the
with
decision in doctrinal collision with Volkert.
Contractors, Inc. v. Swindell-Dres
64. Tuxedo
426,
n.14,
Co.,
U.S.App.D.C.
613
428
198
sler
Rosciano,
United
v.
66.
States
(1979);
v. Flintkote
1161 n.14
Lee
F.2d
here. Basic rules of housekeeping
admonish courts addressing to avoid issues
they need not resolve. reaching Since
merits here can serve accepted none of the
purposes process, of the en banc there is no
occasion for a full-court decision of the case.
On the contrary, the court would do well to
conserve its preserve resources and the au-
thority of its en by reserving banc voice
both for those fundamentally important
cases where the collective attention
wisdom of its full bench is both necessary
and appropriate. view,
In my meriting no issue en banc
attention has been tendered by parties uncovered Rehearing court.
banc, think, I was improvidently granted. I
would therefore dissolve this en banc tribu-
nal and reinstate panel opinions. AKINYEMI, Appellant,
Robert F.
NATIONAL RAILROAD PASSENGER
CORPORATION, a/k/a Amtrak.
No. 79-1763. Appeals,
United States Court
District of Columbia Circuit.
May WRIGHT, Judge, Chief MacKIN Before PENN,* NON, Judge, and District Circuit Judge.
JUDGMENT consideration on This cause came on for appeal from the United the record on States * for the Dis- the United States District Court Of Columbia, sitting by designation pursu- trict of (a) (1976). ant to 28 U.S.C. cited notes