FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Plaintiff,
v.
DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
Civ. A. No. 78-0107.
United States District Court, District of Columbia.
Oct. 19, 1978.
Plaintiff, nonprofit religious organization, brought action against United
States and various public officers of United States, alleging that defendants
had violated its constitutional and statutory rights by harassing, surveilling,
infiltrating plaintiff, blacklisting its members, and subjecting it to
discriminatory tax audits. The District Court, Charles R. Richey, J., held
that: (1) where each alleged class member had not exhausted his or her
administrative remedies, plaintiff was precluded from maintaining action as
class action for damages under Federal Tort Claims Act; (2) class would be
conditionally certified for purposes of injunctive relief only; (3) complaint
sufficiently complied with rule requiring claim to contain short and plain
statement of claim showing that pleader is entitled to relief; (4) plaintiff
failed to properly exhaust its administrative remedies, and thus court lacked
jurisdiction over action for damages under Federal Tort Claims Act; (5)
Title VII of Civil Rights Act of 1964 was exclusive remedy for injunctive
relief based on claims of religious discrimination in federal employment, and
(6) plaintiff stated claim upon which relief could be granted in its
allegations regarding surveillance, informants, and involvement of foreign
officials.
Ordered accordingly.
[1] INJUNCTION
In action brought by religious organization which alleged that it had been
subject of government-wide conspiracy to destroy a religion, organization
properly asserted claim against public officers of United States in their
official capacities for injunctive relief under First and Fourth Amendments.
U.S.C.A.Const. Amends. 1, 4.
[2] UNITED STATES
Where religious organization brought action against United States and various
public officers in their official capacities, alleging that it had been subject
of government-wide conspiracy to destroy a religion, and where religious
organization alleged violations of First, Fourth, Fifth, and Ninth Amendment
rights, organization could proceed under Federal Tort Claims Act while relying
upon constitutional tort theory. 28 U.S.C.A. ss 2671-2680;
U.S.C.A.Const. Amends. 1, 4, 5, 9.
[3] CONSPIRACY
Under civil rights conspiracy statute, recovery may be had against persons if
plaintiff establishes (1) a conspiracy, (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons of equal
protection of the laws or of equal privileges and immunities under the laws,
(3) pursuant to which one or more of the conspirators did or caused to be done
an act in furtherance of object of conspiracy, whereby (4) plaintiff
was injured in his person or property or deprived of having and exercising any
right or privilege of a citizen of the United States. 42 U.S.C.A. s
1985(3).
[4] CONSPIRACY
Under civil rights conspiracy statute allowing recovery against "persons,"
federal officials should be considered "persons." 42 U.S.C.A. s 1985(3).
See publication Words and Phrases for other judicial constructions and
definitions.
[5] CONSPIRACY
Civil rights conspiracy statute is not limited to racial discrimination but
includes any class-based, invidiously discriminatory animus. 42 U.S.C.A. s
1985(3).
[6] UNITED STATES
Where religious organization alleged that it had been subject of conspiracy to
destroy a religion and where civil rights conspiracy statute was potentially
applicable to suit by religious organization against public officers of the
United States, organization could maintain action against the United States
since Federal Tort Claims Act made United States liable to the same extent as a
private individual under like circumstances. 42 U.S.C.A. s 1985(3);
U.S.C.A.Const. Amends. 1, 4, 9; 28 U.S.C.A. s 2674.
[7] UNITED STATES
Federal Tort Claims Act's requirement of exhaustion of administrative remedies
is jurisdictional and is an absolute prerequisite to an action under the Act.
28 U.S.C.A. s 2675(a).
[8] UNITED STATES
Under Federal Tort Claims Act, each alleged class member must exhaust his or
her administrative remedies. 28 U.S.C.A. s 2675(a); Fed.Rules Civ.Proc.
rule 23, 28 U.S.C.A.
[9] FEDERAL CIVIL PROCEDURE
Every member of class must usually comply with jurisdictional prerequisites in
a damage suit. Fed.Rules Civ.Proc. rule 23, 28 U.S.C.A.
[10] UNITED STATES
Integral requirement of a proper claim to an administrative agency under
Federal Tort Claims Act is that claim state a sum certain; reason for sum
certain requirement is that if agency knows exactly what claimant seeks,
prelitigation settlement will more likely result. 28 U.S.C.A. ss 2671-2680.
[11] UNITED STATES
To allow exhaustion of one claimant under Federal Tort Claims Act to satisfy
exhaustion requirement for all members of proposed class would eliminate
requirement that each claimant state sum certain and accompanying advantage to
prelitigation process consisting of increased likelihood of prelitigation
settlement, and thus every member of proposed class must state sum certain in
his or her administrative claim. 28 U.S.C.A. ss 2671-2680.
[12] UNITED STATES
In view of statutory provision that exhaustion requirement under Federal Tort
Claims Act does not apply to claims as may be asserted under Federal Rules of
Civil Procedure by third-party complaint, cross claim, or counterclaim and in
view of notion of expressio unius est exclusio alterius, Congress did not
intend to waive exhaustion requirement of Federal Tort Claims Act for class
action rule. 28 U.S.C.A. s 2675(a); Fed.Rules Civ.Proc. rule 23, 28
U.S.C.A.
[13] FEDERAL CIVIL PROCEDURE
In action brought against United States and public officers of United States by
religious organization which alleged that it was subject of government-wide
conspiracy to destroy a religion, proposed class would be conditionally
certified for purposes of injunctive relief sought, despite argument that court
could fashion injunctive relief that would protect members of class without
certifying class, in view of fact that treating action as class action would
prevent any party from withholding discovery material on basis that it related
to entity not included in class and in view of fact that class action
would probably make it easier for members of class to enforce injunction in the
future should one be issued. Fed.Rules Civ.Proc. rule 23(b)(2), 28 U.S.C.A.
[14] FEDERAL CIVIL PROCEDURE
Complaint filed by religious organization alleging that it was subject of
government-wide conspiracy to destroy a religion sufficiently complied with
rule requiring pleading to contain short and plain statement of claim showing
that pleader is entitled to relief, but, even though complaint was sufficient,
in view of fact that complaint permitted neither defendants nor court to judge
exactly what prior actions might have barred claim, religious organization
would be directed to make specific factual allegations once discovery
progressed further. Fed.Rules Civ.Proc. rule 8(a), 28 U.S.C.A.
[14] FEDERAL CIVIL PROCEDURE
Complaint filed by religious organization alleging that it was subject of
government-wide conspiracy to destroy a religion sufficiently complied with
rule requiring pleading to contain short and plain statement of claim showing
that pleader is entitled to relief, but, even though complaint was sufficient,
in view of fact that complaint permitted neither defendants nor court to judge
exactly what prior actions might have barred claim, religious organization
would be directed to make specific factual allegations once discovery
progressed further. Fed.Rules Civ.Proc. rule 8(a), 28 U.S.C.A.
[15] UNITED STATES
Signature of vice-president of religious organization on letters accompanying
claim forms submitted to government agencies was sufficient to fix
responsibility for claims and representations made therein for purposes of
action against United States and certain public officers under Federal Tort
Claims Act. 28 U.S.C.A. ss 2671-2680.
[16] UNITED STATES
Where religious organization filed claims with government agencies alleging
existence of government-wide conspiracy to destroy a religion, alleging that
agency personnel secretly planned and executed series of harassing programs and
that agency personnel negligently disseminated erroneous information from
intelligence and criminal files, but where no specific time, place nor incident
was given for any alleged negligent maintenance or dissemination of erroneous
information, and where organization failed to comply with agency requests for
supplemental information, description of claims was insufficient under Federal
Tort Claims Act, and thus court lacked jurisdiction over damages claim under
Act. 28 U.S.C.A. s 2675.
[17] ESTOPPEL
For estoppel to apply, party asserting estoppel must reasonably rely upon
government's action or inaction.
[18] ESTOPPEL
Where religious organization filed claims against government agencies, where
description of wrong alleged was insufficient, and where agencies indicated
insufficiency of claim, silence of agencies did not indicate sufficiency of
claim and organization could not invoke any estoppel against government
agencies that did not request further information with respect to
organization's claims.
[19] CIVIL RIGHTS
Title VII of Civil Rights Act of 1964 is exclusive remedy for injunctive
relief based on claims of religious discrimination in federal employment.
Civil Rights Act of 1964, s 701 et seq. as amended 42 U.S.C.A. s 2000e et
seq.
[20] CIVIL RIGHTS
Where religious organization sought injunctive relief with respect to its
claims of religious discrimination in federal employment but where organization
failed to exhaust administrative remedies prescribed under Title VII,
exclusivity of Title VII barred organization's request for injunctive
relief, despite absence of any claim for hiring or reinstating individuals or
for back pay or for an affirmative plan to eliminate vestiges of past
discrimination. Civil Rights Act of 1964, ss 701 et seq., 706(g), 717
as amended 42 U.S.C.A. ss 2000e et seq., 2000e-5(g), 2000e-16.
[21] RECORDS
District court is empowered to order expungement of government records where
necessary to vindicate rights secured by the Constitution or by statute.
[22] CIVIL RIGHTS
Where religious organization alleged that actions of United States and its
officers had effect of interfering with lawful association and religious
activities of organization, disrupting organization's growth, harassing
and intimidating practitioners of organization and denying of government
benefits, preventing free practicing of religious beliefs and other
associational activities, and deterring supporters from joining organization,
crime alleged was more than a "subjective chill," and complaint was sufficient
to withstand motion to dismiss. U.S.C.A.Const. Amend. 1.
[23] CRIMINAL LAW
While law enforcement officials have a right to use informers and infiltrators,
there are limits to use thereof. U.S.C.A.Const. Amend. 1.
[24] CIVIL RIGHTS
Where religious organization alleged that government used informants or
infiltrators to harass and harm organization and where complaint also charged
that these law enforcement techniques interfered with lawful associational and
religious activities of organization, organization's allegation was sufficient
to overcome motion to dismiss complaint. U.S.C.A.Const. Amend. 1.
[25] INJUNCTION
Where religious organization sought injunction to prevent United States and its
officers from releasing allegedly false and derogatory information about
organization to foreign governments and where organization did not seek to
enjoin actions of foreign officials on foreign soil, organization stated claim
upon which relief could be granted.
*751 Earl C. Dudley, Jr., Robert A. Seefried, Washington, D. C., for
plaintiff.
Barbara Allen Babcock, Asst. U. S. Atty. Gen., Barbara B. O'Malley, Elizabeth
Gere Whitaker, David H. White, Brian G. Kennedy, Mauricio A. Flores, Civil
Div., Dept. of Justice, Washington, D. C., for defendants.
MEMORANDUM OPINION
CHARLES R. RICHEY, District Judge.
This case is before the Court on the plaintiff's motion for class
certification and the defendants' motion to dismiss. For the reasons
hereinafter stated, the Court will grant plaintiff's motion for class
certification in part and will grant defendants' motion to dismiss in part.
[FN1]
FN1. Because of the complexity of the issues in this case and to help
expedite the ultimate resolution of this entire matter, the Court will
address many of the issues raised in the pending motions which, because of
the resolution of certain issues, would otherwise not be reached.
I. BACKGROUND
Plaintiff, the Founding Church of Scientology of Washington, D. C., is a non-
profit corporation chartered and operating under the laws of the District of
Columbia as a religious organization practicing the religion of Scientology.
[FN2] Plaintiff brought this case as a class action, purporting to represent
"all Churches of Scientology and Scientology missions located throughout the
United States."
FN2. Because this case is before the Court on a motion to dismiss, the
Court will accept the allegations made in the complaint as true. See
Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404
(1969). Nothing in the "Background" section should in any way be construed
as a finding of fact.
The defendants include public officers of the United States and are sued in
their official capacities only: the Director of the Federal Bureau of
Investigation, the Attorney General of the United States, the Director of the
Central Intelligence Agency, the Secretary of the Treasury, the Chief of the
National Central Bureau of the International Criminal Police Organization, the
Director of the National Security Agency, the Secretary of the Army, and the
Postmaster General of the Postal Service. The United States is also named as a
defendant.
Plaintiff commenced the instant action on January 24, 1978, three weeks after
dismissing on its own motion a virtually identical action which had been filed
on January 31, 1977. See The Founding Church of Scientology v. Clarence
Kelley, et al., C.A. No. 77-0175 (D.D.C. January 31, 1977). *752 Plaintiff
alleges that it, as well as the class it seeks to represent, has been the
subject of a government-wide conspiracy to destroy a religion. Plaintiff claims
that its constitutional and statutory rights have been violated in that the
defendants have improperly maintained and disseminated information regarding
the plaintiff; harassed, observed, and infiltrated the plaintiff organization;
"blacklisted" members of the plaintiff; and subjected the plaintiff to
discriminatory tax audits. This conspiracy, plaintiff claims, began about the
year 1955 and allegedly continues to date. Plaintiff charges that these alleged
actions of the defendants were in violation of the first, fourth, fifth, ninth
and fourteenth amendments to the Constitution; 28 U.S.C. s 534, 42 U.S.C. s
1985(3), 18 U.S.C. s 2520, 50 U.S.C. s 403(d), 47 U.S.C. s 605, 18
U.S.C. ss 1702 and 1703, and 28 U.S.C. s 2674.
In terms of relief, plaintiff seeks a declaratory judgment that the alleged
actions of the defendants violate the Constitution. Plaintiff also requests an
injunction restraining all the defendants from interrogating, observing,
infiltrating, reviewing or opening mail, disrupting travel or collecting or
utilizing any information regarding the plaintiff. Plaintiff further requests
the expungement of all information and files regarding the plaintiff that is in
the possession of the defendants. In addition, plaintiff demands from the
United States compensatory damages totalling $20 million, and punitive damages
of ten times the amount of compensatory damages awarded by the Court, not to
exceed $750 million.
II. JURISDICTIONAL ISSUES AND CLAIMS UPON WHICH RELIEF MAY BE GRANTED
The Court, upon initially reviewing the extensive allegations in the
complaint, directed the parties to submit memoranda concerning the statutes and
constitutional provisions relied upon by the plaintiff herein. Although
plaintiff enumerated several sources of liability in its complaint, plaintiff
now admits that "several of the statutes cited are not necessarily relied upon
as independent sources of damage liability, but rather to establish standards
of legality governing the conduct of government officials . . ." (Memorandum of
Law Concerning Statutes and Constitutional Provisions Relied Upon at 2,
February 13, 1978) Therefore, the Court need not now concern itself with
whether every statute cited in the complaint properly states a claim upon which
relief may be granted. Moreover, because no motion specifically based on the
jurisdictional issues has been made and because of the Court's opinion in part
IV B, Infra, the Court need rule on neither of these jurisdictional issues nor
whether these statutes state a cognizable claim. However, in order to expedite
this litigation, the Court Sua sponte has decided some of the basic
jurisdictional issues set forth in the complaint even though the Court's final
resolution of the motion to dismiss obviates the need to decide all
jurisdictional questions at this time.
[1] As to plaintiff's claim for declaratory and injunctive relief, the Court
notes, and the defendants appear to concede, that plaintiff has properly based
jurisdiction on 28 U.S.C. s 1331. In addition, plaintiff has properly
asserted a claim against the defendant officials for injunctive relief under
the first and fourth amendments, and perhaps other amendments as well. See
Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975); Berlin Democratic Club v.
Rumsfeld, 410 F.Supp. 144 (D.D.C.1976).
As to plaintiff's claim for damages against the United States, the Court notes
that plaintiff has asserted a claim under the Federal Tort Claims Act (FTCA),
28 U.S.C. ss 2671-2680. According to this Act, unless expressly excepted, the
United States is liable in tort "in the same manner and to the same extent as a
private individual under like circumstances . . .." 28 U.S.C. s 2674. In
Black v. Sheraton Corp. of America, 184 U.S.App.D.C. 46, 54, 564 F.2d 531,
539 (1977), the court recognized the sweeping effect of this language:
As a result of this language, "the Government's liability is no longer
restricted to circumstances in which government bodies *753 have
traditionally been responsible for misconduct of their employees. The Act
extends to novel and unprecedented forms of liability as well." United
States v. Muniz, 374 U.S. (150) at 159, 83 S.Ct. (1850) at 1856 (10 L.Ed.2d
805).
(emphasis added). The court then found that liability predicated upon a
violation of a constitutional right could give rise to a claim under the FTCA.
The district court in this case awarded damages to plaintiff invoking four
overlapping theories of liability: trespass, invasion of privacy by intrusion,
invasion of privacy by publication and Violation of constitutional rights.
(Black v. U. S.,) 389 F.Supp. 529, 531 (1975). None of the theories, which
the district court invoked are among the exemptions from tort liability
specified in the Tort Claims Act.
184 U.S.App.D.C. at 54, 564 F.2d at 539 (emphasis added).
[2] The plaintiff herein relies upon at least two "torts" which, it claims,
render the United States liable because these torts would create a liability
against a "private individual under like circumstances." 28 U.S.C. s 2674.
The first "tort" is a violation of plaintiff's first, fourth, fifth and ninth
amendment rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1974) (fourth amendment); Dellums v. Powell, 184
U.S.App.D.C. 275, 566 F.2d 167 (1977), Cert. denied, --- U.S. ----, 98 S.Ct.
3146, 57 L.Ed.2d 1161 (1978) (first amendment); Paton v. La Prade, 524 F.2d
862 (3d Cir. 1975) (first amendment); States Marine Lines, Inc. v. Schultz,
498 F.2d 1146 (4th Cir. 1974) (fifth amendment). In a recent decision,
Norton v. United States of America, 581 F.2d 390 (4th Cir. 1978), the court
acknowledged the use of the FTCA for these Bivens -type of torts:
While Bivens created a federal tort for certain violations of the fourth
amendment, it did not (and indeed could not) impose liability on the officer's
employer, the federal government. (To correct this,) Senator Percy proposed a
rider to H.R. 8245 "to provide a remedy against the United States for the
intentional torts of its investigative and law enforcement officers." S.Rep.
No. 93-588, Supra, (1974) U.S.Code Cong. & Admin.News at 2789. Enacted in March
1974, as Pub.L. No. 93-253, s 2, this legislation amended FTCA to create an
exception to the intentional-tort exception of 28 U.S.C. s 2860(h).
The legislative history, however, makes clear that the 1974 amendment (to the
FTCA) was viewed by Congress as a "counterpart to the Bivens case. . . ."
S.Rep. No. 93-588, Supra, . . .
581 F.2d at 393. See Birnbaum v. United States, 436 F.Supp. 967, 974-75
(E.D.N.Y.1977). Thus, plaintiff herein could proceed under the FTCA, while
relying upon a constitutional tort theory.
[3] The second "tort" relied upon by the plaintiff is that created by42
U.S.C. s 1985(3). Under this statute, recovery may be had against " persons" if
a plaintiff establishes (1) a conspiracy, (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws,
(3) pursuant to which one or more of the conspirators did or caused to be done
an act in furtherance of the object of the conspiracy, whereby (4) the
plaintiff was injured in his person or property or deprived of having and
exercising any right or privilege of a citizen of the United States. Griffin
v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
[4][5][6] In applying the elements of 42 U.S.C. s 1985(3) to the facts of
this case, the Court notes that there are two initial obstacles, which may well
be surmountable. First, federal officials should be considered "persons" within
the meaning of s 1985(3). See Dry Creek Lodge, Inc. v. United States,515
F.2d 926, 931 (10th Cir. 1975); Stith v. Barnwell, 447 F.Supp. 970
(M.D.N.C.1978); Alvarez v. Wilson, 431 F.Supp. 136 (N.D.Ill.1977); Butler
v. United States, 365 F.Supp. 1035 (D.Hawaii 1973). Second, the statute
*754 is not limited to racial discrimination but includes any "class-based,
invidiously discriminatory animus," such as that alleged here. 403 U.S. at
102, 91 S.Ct. 1790. Having thus established the potential applicability of s
1985(3) to a suit by these plaintiffs against the Officers, the plaintiff can,
therefore, maintain an action against the United States, because the FTCA makes
the United States liable "to the same extent as a private individual under like
circumstances." 28 U.S.C. s 2674.
III. MOTION FOR CLASS CERTIFICATION
Plaintiff seeks in this litigation to represent the class of "all Churches and
Missions of the Church of Scientology located in the United States." Asserting
that the prerequisites of Fed.R.Civ.P. 23(a) are met, plaintiff asks that
the class be certified under either Rule 23(b)(1), (2), or (3).
Defendants do not challenge the application of the language of Rule 23 to
this case. However, defendants do challenge the proposed certification on two
grounds apart from Rule 23: (1) that the Court lacks jurisdiction to
adjudicate the damage claims of the proposed class members because they have
failed to exhaust their administrative remedies, required by 28 U.S.C. s
2675(a); [FN3] and (2) that the injunctive relief sought would have the same
effect as a class-wide injunction. The Court agrees with defendants' first
objection, but not their second.
FN3. Plaintiff has admitted that "the only member of the proposed class
which has presented administrative claims under the Federal Tort Claims Act
is the (named) plaintiff." (Memorandum of Points and Authorities in Support
of Motion for Class Action Certification at 9, February 13, 1978)
A. Under the FTCA, Each Alleged Class Member Must Exhaust His or Her
Administrative Remedies, Which Has Not Been Done Here and, Therefore, Plaintiff
May Not Maintain This Case as a Class Action for Damages.
[7][8] Section 2675(a) of Title 28 of the United States Code states:
An action shall not be instituted upon a claim against the United States for
money damages . . . unless the claimant shall have first presented the claim to
the appropriate Federal agency . . .
This requirement of exhaustion of administrative remedies is jurisdictional
and is an absolute prerequisite to an action under the FTCA. Melo v. United
States, 505 F.2d 1026, 1028 (8th Cir. 1974); Best Bearings Co. v. United
States, 463 F.2d 1177, 1179 (7th Cir. 1972); Bialowas v. United States, 443
F.2d 1047 (3d Cir. 1971). The issue here is whether proper exhaustion by one
class member obviates the need for other class members to exhaust, in order for
the Court to have jurisdiction over the entire class. All the courts that have
considered this issue have concluded that Every member of a class must exhaust
his administrative remedies. See Lunsford v. United States, 570 F.2d 221
(8th Cir. 1977); Caidin v. United States, 564 F.2d 284 (9th Cir. 1977);
Commonwealth of Pennsylvania v. National Association of Flood Insurance, 520
F.2d 11 (3d Cir. 1975); Harrigan v. United States, 63 F.R.D. 402
(E.D.Pa.1974). These decisions accord with the purpose of the exhaustion
requirement as well as other case law.[FN4]
FN4. The discussion of the exhaustion requirement involved here is
applicable only to the FTCA and does not apply to the procedure in a class
action under 42 U.S.C. s 2000e Et seq. See p. 755, Infra.
The purpose of the exhaustion requirement, as stated in the Senate and House
Reports, is
to improve and expedite disposition of monetary claims against the Government
by establishing a system of prelitigation settlement, to enable consideration
of claims by the agency having the best information concerning the incident,
and to ease court congestion and avoid unnecessary litigation.
S.Rep. No. 1327, 89th Cong., 2d Sess. 3 (1966); H.R. Rep. No. 1532, 89th
Cong., 2d Sess. 4 (1966); U.S.Code Cong & Admin.News 1966, p. 2515. The Court
finds these *755 reasons fully supportive of requiring each member of a
class to exhaust his administrative remedies. If the Court were to allow the
exhaustion of one to be sufficient, this might well delay the litigation and
burden the court congestion because, had some of the class members exhausted
and had the agency settled their claims, the ultimate litigation would be
quicker and less complex.
[9] Every member of the class must usually comply with the jurisdictional
prerequisites in a damage suit. In Harrigan v. United States, 63 F.R.D. 402
(E.D.Pa.1974), the court discussed the significance of a jurisdictional
requirement.
The Supreme Court held (in Zahn v. International Paper Co., 414 U.S. 291,
94 S.Ct. 505, 38 L.Ed.2d 511 (1973)) that a class action was not maintainable
since the separate claims of all the members of the class failed to satisfy
independently the $10,000 jurisdictional requirement of 28 U.S.C. s 1332. It
is concluded from the Zahn case that the jurisdictional requirement in the
present case must also be met independently by the members of the purported
class. To allow the named plaintiff here (in a suit under the FTCA), by the
filing an administrative claim on his own behalf, to satisfy the administrative
claim requirements for unnamed plaintiffs would constitute a prohibited
expansion of the jurisdiction of the federal courts. See Snyder v. Harris,
394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).
63 F.R.D. at 409.
[10][11] Another basic requirement which is integral to a proper claim to
the agency under the FTCA is that the claim state a sum certain. Lunsford,
supra at 226. In fact, cases have been dismissed for failure of the claimant to
state a sum certain in his or her administrative claim. See Allen v. United
States, 517 F.2d 1328 (6th Cir. 1975); Caton v. United States, 495 F.2d
635 (9th Cir. 1974). The reason for the sum certain requirement is that if the
agency knows exactly what the claimant seeks, prelitigation settlement will
more likely result. To allow the exhaustion of one claimant to satisfy the
exhaustion requirement for all members of the class would eliminate the
requirement that Each claimant state a sum certain and the accompanying
advantage to the prelitigation process. This Court will not allow this
advantage to the prelitigation process to be bypassed.
[12] Moreover, it is interesting to note that when Congress amended s
2675(a) to its present form in 1966, it considered the possible relationship
between the exhaustion requirement and the Federal Rules of Civil Procedure.
The last sentence of the provision states:
The provisions of this subsection shall not apply to such claims as may be
asserted under the Federal Rules of Civil Procedure by third party complaint,
crossclaim, or counterclaim.
Congress thus considered the impact of the exhaustion requirement on the
Federal Rules of Civil Procedure and, by virtue of the notion of Expressio
unius est exclusio alterius, decided not to waive the exhaustion requirement
for Rule 23.
While acknowledging the existence of contrary authority, plaintiff relies upon
an analogy to Title VII law, 42 U.S.C. s 2000e Et seq., for its
contention that not all members of a class need exhaust. Plaintiff argues that
because the instant case is actually one seeking recourse for violation of
civil rights, the rule under Title VII that only the named plaintiffs need
exhaust should be applicable.[FN5] The requirement of exhaustion is a Statutory
one; therefore, it must be the statute which is inherently appropriate for
class action treatment to allow the exhaustion of one to satisfy the
requirement for the entire class. While Title VII actions are inherently
class-based, See Bowe v. Colgate Palmolive Co., 416 F.2d 711, 719 (7th Cir.
1969), actions under the FTCA are not. When the Title VII rule developed, it
was based upon Congress's intent to provide *756 a basis for jurisdiction
consistent with the policy of the Title VII statute. In light of the FTCA
and its policy, the Court cannot conclude that Congress intended the "named
plaintiff exhaustion" rule to apply to the FTCA. Thus, even if a single FTCA
case raises Title VII-like claims and seems appropriate for the "named
plaintiff exhaustion" rule, the analogy to Title VII law fails. Accordingly,
each member of the plaintiff class must exhaust his or her administrative
remedies. This not being the case at bar, the Court will not certify the class
for purposes of damage relief.
FN5. This analogy was explicitly rejected in Lunsford v. United States,
570 F.2d 221 (8th Cir. 1977).
B. The Court Will Conditionally Certify the Class Under Fed.R.Civ.P.
23(b)(2) for Purposes of Injunctive Relief Only.
[13] Defendants argue that this Court can fashion injunctive relief that
would protect the members of the class, even without certifying the class. The
Court thanks the defendants for the confidence they have in it but the Court
has, nevertheless, decided to conditionally certify the class for purposes of
the injunctive relief sought, pursuant to Fed.R.Civ.P. 23(b)(2).
Treating this as a class action will prevent any party from withholding
discovery material on the basis that it relates to an entity not included in a
class. Furthermore, as a class action under Fed.R.Civ.P. 23(b)(2), in all
probability it may be easier for members of the class to enforce an injunction
in the future, should one be issued in this case.
IV. MOTION TO DISMISS
The defendants move to dismiss this action pursuant to Fed.R.Civ.P. 8(a)
and 12(b). The Court will discuss each of the defendants' arguments
seriatim.
A. The Complaint Complies Sufficiently with Fed.R.Civ.P. 8(a) Because it
Presents a Plain Statement of the Claim Showing that the Pleader is Entitled to
Relief.
[14] Defendants move to dismiss the complaint because, they allege, it is a
general, amorphous pleading not in accord with the requirements of
Fed.R.Civ.P. 8(a). This provision provides that
a pleading which sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall contain (1) a short and
plain statement of the grounds upon which the court's jurisdiction depends,
unless the court already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) A short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment
for the relief to which he deems himself entitled.
(emphasis added). Defendants argue that the lengthy complaint contains "prolix
and irrelevant matter," "fails to provide any specificity as to date or
location of the activity, who was involved, or any other information which
adequately sets out the elements of a claim or gives defendants fair notice of
what is complained of." (Memorandum of Points and Authorities in Support of
Defendants' Motion to Dismiss at 4-5, February 13, 1978) Furthermore,
defendants note, because of the generality of the allegations in the complaint,
it is difficult to discern what claims may be barred by prior litigation on
grounds of collateral estoppel or Res judicata.
Although the Court is sensitive to defendants' problems in dealing with the
complaint, the Court will not dismiss the complaint. "(T)he Federal Rules of
Civil Procedure do not require a claimant to act out in detail the facts upon
which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99,
103, 2 L.Ed.2d 80 (1957); Bogosian v. Gulf Oil Co., 561 F.2d 434, 446 (3d
Cir. 1977), Cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791
(1978). All that is required is a "short and plain statement of the claim."
Fed.R.Civ.P. 8(a)(2). However, the complaint is puzzling; it does not permit
the defendants nor the Court to judge exactly what prior actions may bar the
present one. Plaintiff's response has been, essentially, that only through
discovery can the plaintiff know the specific *757 acts allegedly concealed
by the claimed conspirators. Although as a matter of law the complaint is
sufficient, the Court will direct the plaintiff to make specific factual
allegations once discovery has progressed further. Therefore, the Court will
deny the defendants' motion to dismiss without prejudice to refiling after more
discovery is conducted and plaintiff has had an opportunity to state more
precisely and concisely its allegations.
B. The Court Lacks Jurisdiction Over Plaintiff's Action for Damages Under the
Federal Tort Claims Act Because Plaintiff Failed to Exhaust Its Administrative
Remedies.
The defendants next argue that a prerequisite to a suit under the FTCA has not
been met because plaintiff failed to properly exhaust its administrative
remedies. In its complaint, plaintiff contends that it filed administrative
claims with "the FBI, the CIA, Department of Treasury, Interpol, the NSA, the
Department of the Army, and the United States Postal Service." (Complaint, P
65) Defendants claim that plaintiff failed to sign the claims submitted to the
CIA and the Treasury; that plaintiff's description of the wrong committed on
the claim form was insufficient; and that the claims were ineffective because,
having been submitted after a similar civil suit had been filed in this Court,
the power to settle them was transferred from the agency to the Attorney
General.[FN6]
FN6. The Court has no occasion to address this issue because of the
Court's resolution of the issue regarding signing of the forms and the
sufficiency of wrong asserted in the forms.
On the claim forms (Standard Form 95), plaintiff indicated that the "incidents
occurred throughout the U.S." "from 1955 to (the) present time." The injury
alleged was "impairment and suppression of basic First Amendment freedoms of
association and religion valued at $10,000,000.00." The plaintiff described the
circumstances attending the injury:
(Agency) personnel secretly planned and executed a series of programs whose
purpose and effect was to inhibit the growth of claimant organization and to
impair its ability to formulate and exercise its religious beliefs and rights
of association. (Agency) personnel negligently maintained intelligence and
criminal files with respect to claimant organization, and negligently
disseminated erroneous information from these files to state, local, federal
and foreign agencies thereby damaging claimant organization.
[15] As to defendants' argument that two of the claims were unsigned,
plaintiff points out that the letters forwarding the claims, to which the Form
95's were attached, were signed by plaintiff's then-Vice President. "The
necessity for a signature to the claim is to fix responsibility for the claim
and the representations made therein." Bialowas v. United States, 443 F.2d
1047, 1050 (3d Cir. 1971). The Court finds that the signature of the Vice
President of plaintiff On the accompanying letters was sufficient to "fix
responsibility for the claims and the representations made therein."
[16] Defendants next argue that the description of the claims was
insufficient. Most of the cases in which the claim form was held to be
sufficient are distinguishable on the basis that there the claim lacked a
request for a sum certain. See Molinar v. United States, 515 F.2d 246 (5th
Cir. 1975).[FN7] Here, plaintiff clearly stated a sum certain. The question
then becomes whether the general description of the wrong alleged was
sufficient to properly present a claim to the government. The Court finds that
the claims were too general to allow the agencies *758 to fully investigate
the situation.[FN8] No specific time nor specific place nor specific incident
was given for any alleged negligent maintenance or dissemination of erroneous
information. Without this, the agencies could not effectively evaluate the
claims presented.
FN7. The Court in Molinar distinguished Melo v. United States, 505
F.2d 1026 (8th Cir. 1974); Caton v. United States, 495 F.2d 635 (9th
Cir. 1974); Avril v. United States, 461 F.2d 1090 (9th Cir. 1972);
Ianni v. United States, 457 F.2d 804 (6th Cir. 1972) (per curiam);
Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971); Johnson v.
United States, 404 F.2d 22 (5th Cir. 1968) (per curiam); Jordan v.
United States, 333 F.Supp. 987 (E.D.Pa.1971), Aff'd without opinion, 474
F.2d 1340 (3d Cir. 1973), on this basis.
FN8. The Court wishes to note that while the complaint herein has been
held sufficient, the sufficiency of the claim in form serves a different
purpose and must be evaluated on different grounds. The complaint need only
show a "short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2),
and will be followed by extensive discovery.
The purpose of requiring preliminary administrative presentation of a claim
is to permit a government agency to evaluate and settle the claim at an early
stage, both for the possibility of financial economy and for the sake of
relieving the judicial burden of FTCA suits. These purposes would be defeated
if a claimant could refuse to submit the information necessary for the agency
to evaluate the claim and then present the matter for the first time to a
district court.
Kornbluth v. Savannah, 398 F.Supp. 1266, 1268 (E.D.N.Y.1975). No
administrative agency could be expected to settle a claim based on the scarce
information provided by the plaintiff in this case. In finding the claims
inadequate, the Court is aware that Form 95 was not designed for claims based
on constitutional or statutory violations. See Locke v. United States, 351
F.Supp. 185, 188 (D.Hawaii 1972). However, this Court Cannot excuse the
plaintiff's failure to expand its broad-scale and unparticularized allegations
in light of the failure of the plaintiff to respond to the requests of two
agencies for supplemental information.[FN9] See Rothman v. United States,
434 F.Supp. 13, 16 (C.D.Cal.1977) ("Having alleged that the government's
treatment of the decedent was negligent, it was plaintiffs' duty to respond to
the government's request for substantiation with whatever information they
possessed."); Mudlo v. United States, 423 F.Supp. 1373 (W.D.Pa.1976). In
fact, 28 C.F.R. s 14.4(b)(6) Required the plaintiff to respond to these
requests.
FN9. Plaintiff claims it did not receive the October 31, 1977 letter from
the Army and the National Security Agency, and that even if it had, the
letter was sent after the six months period following submission of the
claims. However, the October 31, 1977 letter was sent by certified mail and
the certification reflects receipt. Furthermore, and more importantly, the
October 31, 1977 letter was a follow-up to a letter requesting further
information sent on March 22, 1977. Plaintiff does not deny receipt of that
letter, and it was well within the six month period.
In support of a claim for personal injury, including pain and suffering, the
claimant may be Required to submit the following evidence or information:
Any other evidence or information which may have a bearing on either The
responsibility of the United States for the personal injury or the damages
claimed.
(emphasis added). Therefore, having failed to submit additional information
after being requested to do so, the claims submitted were inadequate.
[17][18] While it is true that not all the agencies involved requested
additional information from plaintiff, no estoppel against the government can
be established here. For estoppel to apply, plaintiff must reasonably rely upon
the government's action or inaction. See Beverly Enterprises v. Califano,
446 F.Supp. 599, 604 (D.D.C.1978); Brown v. Richardson, 395 F.Supp. 185,
191 (W.D.Pa.1975). No one could reasonably expect the silence of certain
agencies to indicate the sufficiency of the claim when the description of the
wrong was so general and where two agencies Did Indicate the insufficiency of
the claim. Therefore, the plaintiff will not be permitted to invoke any
estoppel against the government agencies that did not request further
information.
While this result may appear harsh, the Court has gone out of its way to
accommodate the plaintiff in submitting its administrative claims. The Court
allowed plaintiff to dismiss its first case without prejudice so that plaintiff
could properly file its administrative claims with the various agencies.
Instead of seizing this opportunity to comply *759 fully with the technical
requirements of a claim form, plaintiff has made efforts to thwart the entire
claims process: it failed to sign the Form 95 that was sent to the CIA,
although it had three chances to do so (Memorandum of Points and Authorities in
Support of Defendants' Motion to Dismiss at 10-11, February 13, 1978); it
failed to sign the Form 95 sent to the Treasury; it failed to supply additional
information when asked to do so by the Army and the CIA (Id. at 11-12); it
failed to adequately specify any specific events that the agencies could
investigate, so as to settle a claim. These suggest the absence of good faith
in the submission of the claims and are not helpful to the plaintiff in its
attempt to persuade the Court that it has diligently filed the claim forms for
the purpose of settlement at the agency level, as contemplated by the FTCA.
Accordingly, the Court is forced to dismiss plaintiff's action for damages on
the ground that the Court lacks jurisdiction over this claim because of
plaintiff's failure to exhaust its administrative remedies, as is required by
the plain and unmistakable mandate of 28 U.S.C. s 2675, on its face.
C. Title VII Is the Exclusive Remedy for Injunctive Relief Based on Claims
of Religious Discrimination in Federal Employment. Therefore, the Court will
Dismiss Plaintiff's Religious Discrimination Claims Because Plaintiff has
Neither Asserted nor Complied with Title VII.
[19] The defendants contend that any request for injunctive relief from
religious discrimination in the federal government must be based upon a claim
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. s
2000e-16. Plaintiff has neither alleged Title VII nor exhausted the
administrative remedies prescribed thereunder. In Brown v. General Services
Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the
Supreme Court held that Title VII is the exclusive judicial remedy for
religious discrimination in federal employment. See League of United Latin
American Citizens v. Hampton, 163 U.S.App.D.C. 283, 501 F.2d 843 (1974).
Nothing in the recent decision of Neely v. Blumenthal, (D.D.C.1978), 458
F.Supp. 945 is to the contrary. There, the court held that Title VII does
not preclude a suit for Damages against the government officials who allegedly
discriminated. However, the court explicitly acknowledged the exclusivity of
Title VII when the action is one for Injunctive relief against officials, as
is the case here.
Unlike in this case, the remedies sought in Richardson (V. Wiley, 186
U.S.App.D.C. 309, 569 F.2d 140 (1977)) were all official injunctive remedies.
So, in holding that plaintiff was barred from obtaining injunctive relief on
any of his non-Title VII theories, the Court of Appeals did not decide the
question of Brown's preemptive effect on constitutional damage causes of
action. The only application Richardson can have in the case at bar is with
regard to plaintiff's first amendment claim for injunctive relief also
available under Title VII. Accordingly, based on the Richardson decision,
the Court will dismiss plaintiff's constitutional claim for injunctive
remedies.
At 458 F.Supp. at 955 n.17. Thus, this Court must similarly dismiss
plaintiff's request for injunctive relief as to religious discrimination in
employment by federal officials.
[20] Plaintiff has argued that the exclusivity of Title VII should not
bar its claims here because plaintiff has not sought the remedies that Title
VII was designed to invoke. Plaintiff, seeking a mere injunction, points out
that, here, "there is no claim for hiring or reinstating individuals or for
back pay, or for an affirmative plan to eliminate the vestiges of past
discrimination." (Plaintiff's Opposition to Defendants' Motion to Dismiss at
11, August 30, 1977, in C.A. No. 77-0175, incorporated by reference into
this case by Plaintiff's Opposition to Defendants' Motion to Dismiss at 23,
February 2, 1978) Therefore, according to plaintiff's argument, it need not
rely upon Title VII. This argument, however, overlooks the terms of Title
VII, which authorizes all "appropriate remedies," 42 U.S.C. s 2000e-16. Not
only is an injunction an "appropriate remedy," but Title VII *760 was
designed for the simple purpose of Enjoining unlawful employment practices.
See 42 U.S.C. s 2000e-5(g). Thus, the relief plaintiff seeks here, an
injunction, is available under Title VII. Consequently, because plaintiff has
not alleged nor complied with Title VII, and because Title VII is the
exclusive independent remedy for claims of religious discrimination in the
federal sector, plaintiff's claims for relief from such discrimination are
barred herein.
D. It Is Premature to Now Decide Whether the Remedy of Expungement Will Be
Available in This Case; Further Discovery and Proof Are Necessary.
[21] The defendants move to dismiss plaintiff's suit for expungement of all
records referring to plaintiff because plaintiff has failed to "specify the
nature of the items it seeks to have expunged and the harm caused by their
continued retention." (Memorandum of Points and Authorities in Support of
Defendants' Motion to Dismiss at 27, February 13, 1978) However, the Court is
empowered to order the expungement of government records where necessary to
vindicate rights secured by the Constitution or by statute. See Chastain v.
Kelley, 167 U.S.App.D.C. 11, 14, 510 F.2d 1232, 1235 (1975); Menard v.
Saxbe, 162 U.S.App.D.C. 284, 290, 498 F.2d 1017, 1023 (1974); Sullivan v.
Murphy, 156 U.S.App.D.C. 28, 56, 478 F.2d 938, 966, Cert. denied, 414 U.S.
880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); Washington Mobilization Committee
v. Cullinane, 400 F.Supp. 186, 219 (D.D.C.1975), Aff'd, 184 U.S.App.D.C.
215, 229, 566 F.2d 107, 121 (1977). Therefore, it is too premature to rule upon
defendants' instant argument. Only after discovery and proof can the Court
decide which specific records, if any, should be expunged.
E. Plaintiff Has Stated a Claim Upon Which Relief Can be Granted in its
Allegations Regarding Surveillance, Informants, and the Involvement of Foreign
Officials.
The defendants have moved to dismiss three other independent claims made by
the plaintiff. Each will be dealt with seriatim.
[22] First, the defendants claim that plaintiff's contention that it "was
the subject of surveillance and the object of informant interest by the
government" fails to state a claim without more harm being alleged than a
" subjective chill." (Memorandum of Points and Authorities in Support of
Defendants' Motion to Dismiss at 28, February 13, 1978) See Laird v. Tatum,
408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). The Court finds the
allegations herein more specific than those in Laird, and more akin to those
in Socialist Workers Party v. Attorney General of United States, 419 U.S.
1314, 95 S.Ct. 425, 42 L.Ed.2d 627 (1974). In Socialist Workers Party, the
Court remarked:
In this case, the allegations are much more specific (than in Laird ): the
applicants have complained that the challenged investigative activity will have
the concrete effects of dissuading some YSA delegates from participating
actively in the convention and leading to possible loss of employment for those
who are identified as being in attendance. Whether the claimed "chill" is
substantial or not is still subject to question, but that is a matter to be
reached on the merits, not as a threshold jurisdictional question.
419 U.S. at 1318, 95 S.Ct. at 428. Similarly, plaintiff in this case has
asserted that the actions of the defendants have had the effect, Inter alia,
of: interfering with the lawful associational and religious activities of the
plaintiff (Complaint, P 31); disrupting the plaintiff's organization and its
growth (Complaint, P 33, P 35); harassing and intimidating practitioners of
plaintiff and denying of government benefits (Complaint, P 44); and preventing
the free practicing of religious beliefs and other associational activities, as
well as deterring supporters from joining the plaintiff (Complaint, P 50).
These are more than a "subjective chill" and, whether they are substantial can
only be decided at a later time. 419 U.S. at 1318, 95 S.Ct. 425. Therefore,
the Court will deny defendants' motion to dismiss on this ground.
*761 [23][24] Second, defendants claim that plaintiff's charge that the
government used informants or infiltrators does not state a claim upon which
relief can be granted. The complaint, however, also charges that these law
enforcement techniques "interfere with the lawful associational and religious
activities" of plaintiff. (Complaint, P 31) While law enforcement officials do
have a right to use informers, there are limits to its use.
The use of informers and infiltrators by itself does not give rise to any
claim of violation of constitutional rights. However, those so engaged may not
overstep constitutional bounds: the Bill of Rights protects individuals against
excesses and abuses in such activities. . . . Plaintiffs' challenge here is not
to the use of informers and undercover agents as such, but to conduct of SIS
and its agents that allegedly exceeds permissible limits and goes far beyond
legitimate surveillance activities with the intent and purpose to invade their
constitutional right of free association and communication.
Handschu v. Special Services Division, 349 F.Supp. 766, 769-70
(S.D.N.Y.1972) (footnotes omitted). Under the teaching of Handschu, plaintiff's
allegation is sufficient to overcome defendants' motion to dismiss.
[25] Third, defendants argue that plaintiff failed to state a claim when it
asserted violations based on alleged actions taken wholly by foreign
governments, or organs thereof on foreign soil. For this proposition,
defendants rely upon Stonehill v. United States, 405 F.2d 738 (9th Cir.
1968), Cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969),
and Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.1976). Both
are inapposite. In Stonehill, the court held that Raids by foreign officials
did not give rise to a cause of action unless the United States substantially
participated in the raids. 405 F.2d at 743. In Berlin Democratic Club,
the court held Wiretaps carried out by foreign officials are not actionable
unless the United States was a joint venturer in the endeavor. 410 F.Supp.
at 154. Here, however, plaintiff seeks an injunction [FN10] to prevent The
defendants from releasing allegedly false and derogatory information about
plaintiff to other governments. The action sought to be restrained is action
that this Court has power to affect and, therefore, the reason for the holdings
of Stonehill and Berlin Democratic Club that courts cannot require foreign
officials to abide by our Constitution on foreign soil is inapplicable here.
Accordingly, the Court will not dismiss these claims of the plaintiff at this
time.
FN10. Plaintiff cannot obtain damages for either the United States'
actions nor the actions of the foreign officials because plaintiff failed
to exhaust its administrative remedies. See Part IV B, Supra.
V. SUMMARY
There are two motions before the Court. In plaintiff's motion for class
certification, plaintiff sought to represent the class of "all Churches and
Missions of the Church of Scientology located in the United States." The Court
will conditionally certify this case as a class action for the purpose of
injunctive relief pursuant to Fed.R.Civ.P. 23(b)(2). However, because each
member of the class must exhaust its administrative remedies under the FTCA,
and because this was not done here, the Court will Not certify the class for
purposes of damage relief.
In defendants' motion to dismiss, several arguments were advanced. The
defendants argued that the complaint failed to satisfy Fed.R.Civ.P. 8(a)
because, defendants contend, the complaint does not present a plain statement
of the claims asserted by the plaintiff. The Court finds the complaint
sufficient but will allow the defendants to renew their motion to dismiss on
this basis at a later date after the plaintiff has had a chance to conduct some
discovery and can precisely and concisely specify its allegations. The
defendants next argued that the Court lacks jurisdiction over the FTCA claims
because plaintiff failed to properly exhaust its administrative remedies. The
Court finds that the plaintiff has not properly exhausted because it has not
filed a *762 Form 95 that is sufficiently specific and because the plaintiff
did not respond to the requests of two agencies for more information. Thus, all
of plaintiff's claims for damages, whether premised upon a Bivens action or
42 U.S.C. s 1985(3) as a basis under the FTCA, will be dismissed. The
defendants next argued that the plaintiff's claim for discrimination in federal
employment on the basis of religion is barred by the exclusivity of Title VII.
The Court agrees, and will therefore dismiss the plaintiff's claim for relief
from religious discrimination in federal employment. Moreover, the defendants
argued that plaintiff has failed to state a claim for expungement. The Court
finds defendants' argument premature because the expungement issue can only be
decided after the merits are determined. The defendants argued also that
plaintiff has failed to state a claim regarding surveillance and informants.
The Court finds that plaintiff's claim alleges more than a "subjective chill,"
and, therefore, plaintiff's claim surpasses a motion to dismiss. Finally,
defendants argued that the plaintiff has failed to state a claim for the
actions of foreign governments. The Court finds that because plaintiff seeks
only to enjoin the actions of United States officials, not the actions of
foreign officials on foreign soil, plaintiff has stated a claim upon which
relief may be granted.
Accordingly, the Court will grant plaintiff's motion for class certification
and conditionally certify, for purposes of injunctive relief only, the class
of "all Churches and Missions of the Church of Scientology located in the
United States," pursuant to Fed.R.Civ.P. 23(b)(2). Furthermore, the Court
will grant defendants' motion to dismiss to the extent that this Court lacks
jurisdiction over plaintiff's claim under the Federal Tort Claims Act, 28
U.S.C. s 2671 Et seq., and to the extent that plaintiff's claims seek
injunctive relief from religious discrimination in federal employment.
An Order in accordance with the foregoing will be issued of even date
herewith.