CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiff,
v.
INTERNAL REVENUE SERVICE, et al., Defendants.
Civ. A. No. 91-0070(JHG).
United States District Court, District of Columbia.
April 15, 1992.
MEMORANDUM OPINION AND ORDER
JOYCE HENS GREEN, District Judge.
*1 Plaintiff, Church of Scientology International ("CSI" or the "Church"),
initiated this action against the Internal Revenue Service ("IRS") and William
Connett ("Connett"), the IRS representative in Paris and the IRS District
Director for the Los Angeles, California office from 1973 to 1986, alleging,
inter alia, that defendants interfered with the ability of plaintiff's members
to obtain valid entry visas under the immigration laws of the United States by
furnishing to United States consular officials in Europe false and misleading
information regarding CSI, the Scientology religion, and the legal requirements
for the entry of such members into the United States. [FN1]
On August 12, 1991, plaintiff initiated another action in the United States
District Court for the District of Columbia against several defendants,
including Connett, alleging violations of the First Amendment, Fourth
Amendment, and Fifth Amendment of the Constitution. [FN2] According to the
allegations advanced in that complaint, "Assaults on churches of Scientology by
or as a result of actions by IRS personnel have not been limited to the borders
of the United States. William Connett is now stationed as the IRS' foreign
representative in France where he has a wide range of influence in European
countries.... When two staff members of the Church of Scientology in Brussels
were initially denied visas to travel to the United States, this was traced
directly back to false information provided to the consulate officials by
Connett." [FN3] Complaint II, P 60.
On October 30, 1991, the Court issued a Memorandum Opinion, granting in part
and denying in part defendants' motion to dismiss, dismissing plaintiff's
Freedom of Information Act ("FOIA") contention, [FN4] and directing that all
motions, including cross-motions for summary judgment, be filed by November 25,
1991. On January 6, 1992, in response to numerous submissions, the Court
issued another Order, setting a new briefing schedule. Understanding that the
Court has broad authority to regulate discovery and "should not hesitate to
exercise appropriate control over the discovery process," [FN5] the Court
denied plaintiff's request to take additional discovery. As suggested in the
January 6, 1992 Order, the Court was specifically concerned that the District
Court in the Central District of California had issued a protective order
prohibiting discovery against all of the individual federal defendants,
including Connett, pending a ruling on the dispositive motions before it, and
that permitting discovery here would have circumvented that ruling.
The Court is now in receipt of plaintiff's motion for an order deeming
admitted all allegations contained in the complaint and defendants' motion for
summary judgment. For the following reasons, plaintiff's motion is denied, and
defendants' motion is granted in part and denied in part.
I. BACKGROUND
In October, 1990, two Scientology staff members from Belgium, Christian
Megank ("Megank") [FN6] and Erwin De Ryck ("De Ryck"), applied for visas to the
United States, for a period of three months, in order to participate in
religious training with the Church. On October 10, 1990, however, Megank and
De Ryck received responses from the United States Embassy in Brussels, denying
their applications and stating that they needed to obtain verification that the
Church was recognized as exempt by the IRS.
*2 William Martin Weightman ("Weightman") asserts the following in his
declaration ("Weightman Decl."):
Weightman recommended that the two Church members return to the Embassy with a
copy of a State Department decision, which, among other things, recognized the
Church in California as a bona fide religious organization. When the
individuals returned to the Embassy, they were again turned away.
Specifically, Weightman contends, the individuals were informed by a consular
official, John M. Jones ("Jones") that the Church is known for brainwashing;
it is a cult; it keeps people against their will; the "leader of the Church,"
L. Ron Hubbard, is in prison; the Church was taking money under dubious
pretenses from people; and because the Church is unable to hire people in the
United States, it is now trying to hire people abroad. Weightman Decl., P 6.
Weightman further states that he called Jones that same day to inquire into
the visa denials. He was told that Jones had "received one or more directives
concerning this matter" [FN7] and had telephoned the IRS office in Paris after
receiving the visa applications from the two Scientologists. According to
Weightman, "Mr. Jones [also] said that there were two people in the Paris IRS
office whom I should contact, Fred Dules and Bill Connett, but that Connett was
really the one I should speak with." Weightman Decl., P 7.
Weightman subsequently called the Paris IRS office and spoke directly with
Connett. He introduced himself as a representative of the Church in Belgium
and explained that two of its members were having difficulty getting their
visas. Weightman further explained that he had spoken with Jones and that
Jones had referred him to Connett.
Connett advised Weightman that he had answered some queries when Jones called
him, that he had referred Jones to two Supreme Court decisions in which the
Court had not recognized the Church as a "charitable organization," [FN8] and
that principals of the Church had been convicted of burglary and bugging
conference rooms. Connett also stated that the Church would not permit the IRS
to examine its records for tax purposes.
Weightman further declares that on October 17, 1990, he accompanied one of the
applicants again to the United States Embassy. He brought the Telex from the
State Department, informing all consular offices that the Church was a bona
fide religious organization. Laura Livingston, [FN9] a consular officer at the
Embassy, stated that "there had been many conversations" with Connett and that
in order to obtain a visa, the Scientologists must demonstrate the Church is a
tax exempt organization.
Weightman made another appointment with Livingston, at which time he informed
her that Connett had passed on false reports to the consul concerning the
Church. Livingston stated that she could not comment on what had transpired
earlier but confirmed that she had not passed on any false information about
the Church. Livingston ultimately agreed to give the two Church members
temporary visas while she awaited further instructions from the State
Department.
*3 Connett asserts the following version of the facts in his affidavit
("Connett Aff."): [FN10]
In August or September, 1990, Connett received a telephone call from Jones, in
which Jones indicated he was considering a visa request from a member of the
Church and asked the status of the Church for federal income tax purposes.
His "recollection is that Mr. Jones stated that the applicant was a young woman
who wished to go to the United States for training." Connett Aff., at 1.
Connett told Jones that some of the local affiliates of the Church had been
recognized by the IRS as being organized and operated exclusively for purposes
described in section 501(c)(3) of the Internal Revenue Code but that such
recognition had not been extended to the Church in Los Angeles, California or
to the Church in Clearwater, Florida. He added that the United States Tax
Court had ruled that the Church of Scientology of California was not operated
exclusively for an exempt purpose under section 501(c)(3) of the Internal
Revenue Code.
Connett further states in his affidavit that he was not asked about the
issuance of a visa, is not qualified to make those determinations, and did not
express any opinion as to whether visas should be issued to anyone. "I made no
statements regarding the practices of the Church nor did I, to the best of my
recollection, make any reference to L. Ron Hubbard." Connett Aff., at 1.
Connett also indicates that several days later he received a telephone call
from Livingston. She asked Connett to confirm in writing what he had said to
Jones. He then sent her a memorandum explaining the tax status of the Church.
At a later date, Connett states, he received a telephone call from a person
who represented himself as an attorney for a visa applicant in Brussels.
Connett read to him the pertinent part of a headnote from Church of
Scientology v. Commissioner of Internal Revenue, 83 T.C. 381 (1984), aff'd,
823 F.2d 1310 (1987), cert. denied, 486 U.S. 1015 (1988).
In October, 1990, Connett traveled to Brussels on official business. As is
his custom, he stopped in Jones' office, which office distributes tax forms,
provides assistance on basic tax questions, and houses visiting tax assistors.
He did not offer advice and was not asked for advice about the issuance of
visas.
Connett concludes in his affidavit, "I believe to the best of my knowledge and
recollection that I have never stated that the Church engages in brainwashing,
keeps people against their will, takes money from people under dubious
pretenses, or that L. Ron Hubbard was ever in prison." Connett Aff., at 2.
Jones also submitted a declaration ("Jones Decl."). In his statement, he
contends the following:
Jones reviewed both the declaration of Weightman and the affidavit of
Connett. According to Jones, Connett's affidavit is consistent with his
recollection of the facts and Weightman's declaration contains significant
misstatements. [FN11] Although he does not have any specific, independent
recollection of interviewing Megank and De Ryck in connection with their
applications for visas to the United States, he has reviewed the relevant visa
records. The applications bear a notation in his handwriting indicating that
he had denied the visas under Section 221(g) of the Immigration and Nationality
Act and that additional information would be required before a decision could
be made. The records also indicate that De Ryck returned to the Embassy to
renew his application on October 17, 1990 and that Megank did so on October 22,
1990. They were interviewed on those occasions by Livingston.
*4 Jones further states that nothing in the records supports, in any way,
Weightman's statement that the applicants went to the Embassy on October 11,
1990, that they applied for visas on that date, or that any person in the
consular section spoke with them on that date. Jones is certain that he did
not speak to Weightman that afternoon and does not have any recollection of
having spoken to him at any time over the telephone.
According to the standard operating procedures in Jones' section, he does not
respond to telephonic inquiries about non-immigrant visa refusals unless the
caller is an American citizen who makes an inquiry about a visa refusal for a
friend or relative. All other telephone calls about non-immigrant visas are
referred to the Visa Unit. Persons who are in Belgium are told to return to
the Visa Unit at their convenience to inquire about refusals and to present
more documentation, if necessary, to support their application.
When visa applications are received from persons who are affiliated with
religious organizations and who intend to travel, for what may be a church-
related purpose, the Embassy attempts to ensure that they are issued the most
appropriate visa. To the best of Jones' recollection, and based on his review
of the records and his standard practice, he explained to the applicants that
it would be necessary for them to present more information concerning the
purpose of their trip to the United States, the tax status of the branch of the
Church that they were going to visit, and proof of their ties to Belgium. He
further indicates that he requests such information to determine whether the
members should be issued special immigrant visas or business/tourist visas and
whether they had well-established ties to Belgium to show that they were not
"Intending Immigrants."
Earlier in 1990, Jones' office had received from Connett a memorandum, dated
September 10, 1990, providing factual information regarding the tax status of
various branches of the Church of Scientology in the United States. Connett
supplied that information at the request of the Embassy and in connection with
the visa application of an individual, not Megank or De Ryck, who claimed to be
affiliated with the Church.
Finally, Jones concludes, "I do not recall having any contact with Mr. Connett
in relation to the applications of Messers. [sic] Meganck and De Ryck. I
specifically do not recall having any conversation with Mr. Connett at any time
where he relayed any information of the nature described in paragraph 6 of Mr.
Weightman's declaration." Jones Aff., at 3.
II. DISCUSSION
The Church filed a motion for an order deeming admitted all of the allegations
set forth in plaintiff's complaint because defendants did not file their answer
until February 13, 1992. Plaintiff's motion clearly must be denied.
Rule 12(a) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.")
provides:
The United States or an officer or agency thereof shall serve an answer to the
complaint or to a cross-claim, or a reply to a counterclaim, within 60 days
after the service upon the United States attorney of the pleading in which the
claim is asserted. The service of a motion permitted under this rule alters
these periods of time as follows, unless a different time is fixed by order of
the court: (1) if the court denies the motion or postpones its disposition
until the trial on the merits, the responsive pleading shall be served within
10 days after notice of the court's action....
*5 Although the defendants did not serve their answer within 10 days after
the Court issued its October 30, 1991 decision, in the interests of justice,
the Court will consider defendants' answer timely filed. Despite its claims to
the contrary, the Church will not be prejudiced by allowing the defendants to
answer plaintiff's complaint and cannot realistically claim that the Church is
entirely unaware of the allegations the defendants are contesting. The
defendants had filed a motion to dismiss clearly setting forth their positions
with respect to plaintiff's claims. Moreover, the Church has received
defendants' answer sufficiently in advance of the deadline for dispositive
pleadings. Under these circumstances, plaintiff's motion for an order deeming
admitted all of the allegations set forth in the Church's complaint is denied.
Defendants have also filed a motion for summary judgment, claiming that
Connett did not violate the First Amendment by communicating information about
CSI to State Department consular officials who were responsible for processing
the visa application of Church affiliates Megank and De Ryck. Plaintiff has
opposed defendants' motion by moving to strike the affidavit of Connett filed
in support of defendants' motion; by arguing that it must undertake discovery
to respond further to defendants' motion; and by submitting a declaration that
suggests that Connett, in fact, said more to the consular officers than is set
out in his declaration. While the Court will not defer ruling on defendants'
dispositive motion or strike the affidavit of Connett, there are clearly
disputes of material fact that cannot be resolved at this juncture. See,
e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
As a preliminary matter, plaintiff complains that Connett's affidavit does not
comply with the relevant statutory provisions governing such statements and,
therefore, should be excluded. Plaintiff's argument is meritless.
Although on February 14, 1992 and on March 10, 1992, the government provided
legally insufficient affidavits by Connett, which failed to state that the
contents were sworn to under penalty of perjury, defendants submitted a
slightly different, yet legally valid, version of Connett's statement on March
25, 1992. [FN12] Moreover, as late as April 3, 1992, plaintiff filed a
supplemental memorandum in support of its opposition to plaintiff's motion;
the Church, therefore, cannot now complain that it did not have an opportunity
to address the issues raised in Connett's affidavit. [FN13]
Plaintiff's contention that the Court should defer ruling on the summary
judgment motions until plaintiff has had an opportunity to conduct discovery is
also meritless. Plaintiff initiated a simultaneous and somewhat related action
in the United States District Court for the Central District of California, and
that Court had stayed discovery pending rulings on certain motions. This Court
will not permit plaintiff to violate an Order of the California court by
allowing discovery to proceed here. In the event the stay in the California
action is lifted prior to the trial of this case, the parties will be permitted
a brief opportunity to depose the more relevant witnesses. Unless and until
that time, however, the Church cannot be allowed to circumvent Orders of
another court.
*6 Plaintiff also cannot succeed with its suggestion, as it has asserted in
its complaint, that Connett somehow abridged the Church's First Amendment
rights by providing false and misleading information to Jones regarding the
legal requirements for entry of Church members into the United States. The
Foreign Affairs Manual ("FAM") and the pertinent provisions of the Immigration
and Nationality Act make clear that Jones' inquiries and Connett's responses
concerning the tax status of the Church were entirely appropriate. The notes
to Section 42.24 of the FAM apply to issuance of visas to certain religious
workers, who comprise one type of "special immigrant," as that term is defined
in 8 U.S.C. s 1101(a)(27)(C). These notes contain guidance for consular
officers in determining whether or not the group with which the applicant is
affiliated is, in fact, a bona fide religious organization. The notes provide,
in pertinent part:
In any case where a question exists as to whether or not a particular
religious denomination is a "recognized religious denomination in the United
States," the consular officer may request the applicant to provide proof of the
denomination's tax exempt status, evidence of the organization's assets and
methods of operation, as well as the organization's papers of incorporation
under applicable state law.
FAM s 42.24 N2, attached to Jones Decl. Under these circumstances, there is
no basis for the Church's assertion that Connett provided false information
concerning the legal requirements for the issuance of visas, and summary
judgment shall be granted in favor of the defendants on that part of
plaintiff's claim.
The Church has, however, raised disputes of material fact that preclude the
granting of summary judgment on its claim that Connett abridged its
constitutional rights by providing to Jones false and misleading information
regarding CSI and the Scientology religion. As illustration, although Connett
claims that he can only recall advising Jones of the tax status of the Church,
Weightman declares that Connett also had informed Jones, who, in turn, informed
the Church applicants, that the Church is known for brainwashing; it is a
cult; it keeps people against their will; the "leader of the Church," L. Ron
Hubbard, is in prison; the Church was taking money under dubious pretenses
from people; and because the Church is unable to hire people in the United
States, it is now trying to hire people abroad. It is, of course, impossible
to discern, on the basis of the pleadings, whether Connett even made these
remarks. Assuming arguendo that Connett made the above-referenced statements,
the Court also cannot determine whether the remarks are false. For example,
in United States v. Heldt, 668 F.2d 1238, 1249 (D.C.Cir.1981), cert.
denied, 456 U.S. 926 (1982), the Court of Appeals for this Circuit noted
that when one of the Scientologists "indicated he was tired of waiting for the
case to be resolved and wished to be sent back to the District of Columbia as
soon as possible ..... he was placed under 24-hour guard, and on one occasion
was removed from one building to another, handcuffed and gagged [and] [o]n
another occasion he was apprehended by Scientologists in Las Vegas and returned
in their custody to Los Angeles where he was again placed under house arrest,"
thereby giving credence to the statement that the Church has kept people
against their will. Finally, the extent of Connett's input in the visa
decisions and the nature of the relationship between the IRS office and the
Embassy are unclear. While it does not appear from Connett's affidavit that he
can exert any influence over visa decisions, there is also evidence that Jones
and Connett have discussed the issue of visa issuance and that Jones' office
also distributes tax forms, provides assistance on basic tax questions, and
houses visiting tax assistors. Consequently, defendants' motion for summary
judgment on plaintiff's claim that defendants abridged its First Amendment
rights by providing false information regarding the Church and the Scientology
religion must be denied.
III. CONCLUSION
*7 For the reasons expressed above, it is hereby
ORDERED that plaintiff's motion for an order deeming admitted all allegations
contained in the complaint is denied; it is
FURTHER ORDERED that defendants' motion for summary judgment is granted in
part and denied in part; it is
FURTHER ORDERED that there shall be a status conference on May 5, 1992 at 9:15
a.m. for the purpose of scheduling pretrial and trial dates.
IT IS SO ORDERED.
FN1. The complaint filed in the District of Columbia action shall be
hereinafter referred to as the "complaint."
FN2. The complaint filed in the California action shall be hereinafter
referred to as "Complaint II."
FN3. Although the Court had directed plaintiff to file a copy of Complaint
II with this Court, in its December 16, 1991 submission, CSI submitted,
instead, its opposition, to defendants' motion to dismiss and for summary
judgment, which opposition was filed in the California proceeding.
FN4. In plaintiff's February 3, 1992 pleading, captioned "Motion for Order
Deeming Admitted all Allegations Contained in the Church's Complaint" ("Pl.
Motion"), CSI states that this Court's October 30, 1991 Order "granted
Defendants' Motion only as to a non-existent [FOIA] cause of action." Pl.
Motion, at 4 n. 1. Plaintiff had, however, clearly complained that "[a]t
the same time that they have knowingly spread these falsehoods, defendants
have claimed to have no files on the Church in their European offices, and
have thereby denied plaintiff access to records under the Freedom of
Information Act." Complaint, P 2.
FN5. Herbert v. Lando, 441 U.S. 153, 177 (1979).
FN6. Throughout the various pleadings, Megank is sometimes referred to as
"Meganck."
FN7. Weightman Decl., P 7.
FN8. Weightman Decl., P 8.
FN9. Throughout the various pleadings, Livingston is sometimes referred to
as "Livingstone."
FN10. The latest version of Connett's affidavit, and the one on which the
Court relies, is appended to the Reply to Plaintiff's Opposition to
Defendants' Motion for Summary Judgment and Opposition to Plaintiff's
Motion to Strike ("Defs. Reply").
FN11. Jones does not specify which affidavit of Connett he reviewed, and
several have been submitted. Nonetheless, the affidavits are very similar
with few exceptions.
FN12. The March 25, 1992 statement only contains three additional
sentences that were not included in the February 14, 1992 or March 10, 1992
filings.
FN13. In the future, supplemental pleadings will not be filed without
leave of the Court.