CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant,
Shirley FOLEY et al.
United States Court of Appeals,
District of Columbia Circuit.
Originally Argued Jan. 4, 1979.
Argued before Court En Banc Oct. 20, 1981.
Decided by Court En Banc Jan. 8, 1981.
Action was instituted by plaintiff church to obtain compensatory damages from
defendant federal employees for their role in preparation and dissemination of
allegedly false memorandum. The United States District Court for the District
of Columbia, Aubrey E. Robinson, Jr., J., dismissed complaint, and plaintiff
appealed. The Court of Appeals, Bazelon, Senior Circuit Judge, held that
complaint wherein plaintiff church alleged that, as a result of a memorandum
prepared and disseminated by defendant federal employees, church and those
associated with it were subjected to an eight-year program of harassment and
discrimination by government sounded only in defamation and, hence, was time
barred under applicable statute of limitations.
MacKinnon, Circuit Judge, concurred and filed opinion.
Robinson, Circuit Judge, dissented and filed opinion in which Edwards and
Ginsburg, Circuit Judges, joined.
LIBEL AND SLANDER
Complaint wherein plaintiff church alleged that, as a result of a memorandum
prepared and disseminated by defendant federal employees, church and those
associated with it were subjected to an eight-year program of harassment and
discrimination by government sounded only in defamation and, hence, was time
barred under applicable statute of limitations. D.C.C.E. s 12-301(4).
*1335 **364 Appeal from the United States District Court for the District
of Columbia (D.C. Civil 77-0495).
Russell F. Canan, Washington, D. C., for appellant.
John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Earl J.
Silbert [FN*], U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington,
D. C., were on the brief, for appellee.
FN* United States Attorney at the time the brief was filed.
Before WRIGHT, Chief Judge, and McGOWAN, TAMM, ROBINSON, MacKINNON, ROBB,
WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
Judgment PER CURIAM.
Concurring opinion filed by Circuit Judge MacKINNON.
Dissenting opinion, in which Circuit Judges EDWARDS and GINSBURG join, filed
by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
This cause came on to be heard on the record from the United States District
Court for the District of Columbia and was argued by counsel before the court
en banc. While the issues presented occasion no need for an opinion, they have
been accorded full consideration by the court. See Local Rule 13(c).
This court is of the view that the complaint filed in this case was properly
dismissed by the District Court, basically for *1336 **365 the reason
stated in its order filed October 27, 1977.
On consideration of the foregoing, it is ORDERED and ADJUDGED by this court
that the judgment of the District Court appealed from in this cause is hereby
MacKINNON, Circuit Judge (concurring).
In my opinion en banc rehearing was necessary to maintain the uniformity of
In dissenting from the panel opinion in this case Judge Wilkey stated
this court quite logically has construed that language (of the D.C. statute of
limitations) as mandating an inquiry into the "nature of the injury involved
rather than to the legal theories available for its redress." (Emphasis added.)
Footnote 3 was cited in support of this assertion, as follows:
3 District of Columbia Armory Bd. v. Volkert, 402 F.2d 215, 220
(D.C.Cir.1968). In Volkert, plaintiff sued the supplier and architect firm
responsible for the construction of the D.C. stadium after defects occurred in
the stadium. Although the underlying theory of liability alleged was
negligence, the purpose of the action was to recover damages for injury to the
property. Thus the court held that the provision "for the recovery of damages
for an injury to real or personal property," 12 D.C.Code s 301(3), stated
the applicable limitation period.
The dissent takes the position that three potential claims have been
suggested: First, infringement of appellant's rights under the First and Fifth
Amendments. Second, breach of a due-care duty implicit in whatever federal
statute or regulation purportedly authorized the activities of the appellees.
Third, common law negligence in the maintenance of government files. Yet, the
purpose of each of these claims is to recover damages for defamation.
Therefore, the statute of limitations applicable to actions for defamation
determines whether the suit was timely filed.
The en banc court's action affirms the district court's dismissal of the
complaint, because the activities complained of therein occurred in excess of
one year before the filing of the law suit and hence plaintiff's claim was
barred by the District of Columbia one-year statute of limitations for libel.
12 D.C.Code s 301(4). (App. 60). The dissent argues that the issues
presented are too unimportant for en banc consideration, and that the panel
opinion therefore should be reinstated. Rehearing en banc, however, is proper
to "secure or maintain uniformity of ... decisions." F.R.App.P. 35. And
since the panel decision in this case was inconsistent with Volkert, it was
proper to maintain the uniformity of our decisions by reversing the panel
decision on rehearing en banc.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge, with whom EDWARDS and GINSBURG,
Circuit Judges, join, dissenting:
This case came before the court en banc after a divided panel [FN1] reversed a
District Court order [FN2] dismissing as time-barred an action brought by
appellant, the Church of Scientology of California, against four federal
employees, the appellees herein.[FN3] The **366 *1337 Church sought money
damages on the basis of allegations that appellees had participated some ten
years earlier in the preparation and dissemination of a Department of Labor
memorandum containing statements falsely accusing the Church of certain bizarre
activities. Today, without opinion, the court exercises its en banc power to
affirm the District Court, for no apparent reason other than disagreement with
the panel's decision. Because I am persuaded that nothing in this case presents
a question of exceptional importance and that the majority panel opinion
portends no conflict with our past holdings, I would vacate the order granting
the rehearing en banc as improvident and dissolve the en banc court.
Accordingly, I respectfully dissent.
FN1. Church of Scientology v. Foley, --- F.2d ----, No. 77-2134
(D.C.Cir. Feb. 20, 1980) (majority and dissenting opinions). In accordance
with current practice, the panel opinions and judgment were vacated when
rehearing en banc was granted.
FN2. Church of Scientology v. Foley, Civ. No. 77-0495 (D.D.C. Oct. 27,
1977), Appendix (App.) 60.
FN3. The four employees are Shirley Foley, John T. McGill, Charlotte
Murphy and June Norris. At all times relevant to this appeal, Foley was an
employee of the Department of Labor, McGill was an officer of the
Department of State, and Murphy and Norris were attorneys at the Internal
Revenue Service. All four sought the dismissal on the ground that the
action was barred by the District of Columbia statute of limitations
applicable to defamation actions, D.C.Code s 12-301(4) (1973). They did
not then claim official immunity from suit, but in their dismissal motion
they made known their intention to address that subject if the motion was
denied. App. 14. Because the motion was successful, an immunity defense
The factual backdrop of this litigation is supplied by the Church's
complaint. [FN4] The memorandum ultimately sparking the controversy was written
by appellee Shirley Foley in November, 1967. It was a summary of an
"investigation concerning the Church of Scientology ... made in order to form
an opinion as to whether the body can be considered a bona fide religious
organization for the purpose of alien employment certification." [FN5] Foley
reported that there was evidence that LSD and perhaps other drugs were widely
used by assembled Church members; that an electric shock was administered to
new members as a part of the Church's initiation ceremony; and that several
persons in different parts of the United States had been shot, though not
killed, because they had objected to the membership of their teen-aged children
in the Church.[FN6] The memorandum cited appellees June Norris and Charlotte
Murphy as the sources of this information,[FN7] and advised that they "urgently
request(ed) that the Department of Labor withhold alien employment
certification on any basis for the Church of Scientology." [FN8]
FN4. In consequence of the issuance of a protective order deferring
discovery and the dismissal of the Church's action shortly thereafter, the
facts of the case were never fully developed. But it is well settled that
on a motion to dismiss for failure to state a claim upon which relief can
be granted, the complaint must be indulged the construction most favorable
to the plaintiff and its allegations must be taken as true. Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96-97
(1974); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S.
508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642, 649 (1972); Jenkins v.
McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416-
FN5. Appendix to Appellants' Brief (Supp.App.) 1. The investigation
apparently was conducted pursuant to a request by the Immigration and
Naturalization Service to the Department of Labor.
FN6. Supp.App. 1.
FN7. Supp.App. 1. During the course of the investigation Foley had
conferred with Norris and Murphy, who apparently based their statements
upon prior Internal Revenue Service investigations of the Church. Supp.App.
FN8. Supp.App. 2.
In February, 1968, the memorandum was forwarded to appellee John McGill,[FN9]
who in turn supplied a copy to a branch office of the Immigration and
Naturalization Service.[FN10] That, the Church asserts, led to initiation of
visa-revocation proceedings against an alien Scientologist minister,[FN11] and
to a long-term pattern of unremitting discrimination and harassment by
governmental officials and agencies acting on the strength of the memorandum.
FN9. Appellant's Complaint, P 14, App. 5-6 (hereinafter cited as
FN10. Complaint, P 14, App. 5-6.
FN11. Complaint, P 13, App. 5.
FN12. Complaint, PP 17-18, App. 6-7. In 1975, the Department of Labor
officially acknowledged that the information incorporated into the
memorandum "was irrelevant, unverified and based on hearsay," and slated
the memorandum for destruction. Supp.App. 3.
**367 *1338 The Church instituted the instant litigation in March, 1977.
[FN13] In its complaint, it charged that the forerunning events infringed its
First Amendment right to freely exercise religious beliefs and its Fifth
Amendment right to due process of law.[FN14] The complaint averred that the
memorandum incorporated information that appellees knew or reasonably should
have known was false; [FN15] that the memorandum was maintained in the files of
the Department of Labor despite the risk that the information would be
disseminated to the detriment of the Church; [FN16] and that the harm feared
actually came to pass.[FN17]
FN13. The Church asserted that it had no knowledge of the existence of the
memorandum prior to the conclusion of a contested Freedom of Information
Act proceeding in April, 1975. Complaint, P 19, App. 7. While stating that
it was long aware that it was the object of governmental discrimination and
harassment, the Church says it previously was unable to identify the
individuals responsible therefor. Complaint, P 19, App. 7.
FN14. Complaint, P 20, App. 8. Invoking also the common law of the
District of Columbia, Complaint, P 2, App. 2, the Church laid claim to both
federal-question and diversity jurisdiction, 28 U.S.C. ss 1331(a),
1332(a)(1) (1976). Complaint, P 2, App. 2. Damages exceeding $10,000
were sought for injuries assertedly suffered. Complaint P 2, App. 2.
FN15. Complaint, P 11, App. 4.
FN16. Complaint, P 12, App. 4-5.
FN17. Complaint, PP 11, 13-15, 17-18, App. 4, 5-7. In addition to the
alleged invasions of the constitutional and common law rights themselves,
the Church averred that its reputation was damaged; that it was hindered in
its ability to enlist parishioners and financial contributions; that it
became the continuous object of arbitrary discrimination and harassment by
various governmental agencies and personnel; and that it was required to
pay large sums of money for legal and related expenses in endeavors to
regain its rights. Complaint, PP 18, 20, App. 7, 8.
In response to the complaint, appellees moved for dismissal on the ground that
the suit was precluded by the District of Columbia statute limiting the time
period for commencement of defamation actions to one year.[FN18] Appellees also
requested a protective order barring discovery pending disposition of the
motion.[FN19] The District Court subsequently issued the protective order.
[FN20] When the Church thereafter filed an amended complaint which, save for
minor alterations, was identical to the original,[FN21] the court granted
appellees' renewed motion to dismiss, concluding that the cause of action
sounded only in defamation and thus was barred by the one-year statutory
FN18. D.C.Code s 12-301(4) (1973), quoted in relevant part infra note
FN19. Supp.App. 4. Appellees argued that judicial economy would be
promoted by deferring discovery until after disposition of the motion to
dismiss. Supp.App. 4.
FN20. Church of Scientology v. Foley, supra note 1 (order staying
discovery, July 22, 1977), Record on Appeal at 17.
FN21. App. 30.
FN22. Church of Scientology v. Foley, supra note 2, App. 60.
On appeal, the panel upheld the dismissal to the extent that the claim was one
for defamation.[FN23] On the ground that the complaint might have stated some
additional and different cause of action under either the Constitution or some
unspecified federal statute or regulation, however, a majority of the panel
reversed and remanded for further consideration.[FN24] The full court then
agreed to rehear the case en banc, and now affirms the District Court's
FN23. Church of Scientology v. Foley, supra note 1, at ----.
FN24. Id. at ---- - ----.
II. RULE 35 AND THE PREEMINENCE OF THE THREE-JUDGE COURT
The full panoply of powers conferred upon the federal courts of appeals are
statutorily vested in three-judge panels.[FN25] A court of appeals may sit en
banc only in the narrowly-defined circumstances specified by Rule 35 of the
Federal Rules of Appellate Procedure, which declares that
FN25. 28 U.S.C. s 46(c) (Supp. II 1976).
**368 *1339 a hearing or rehearing (en banc ) is not favored and
ordinarily will not be ordered except (1) when consideration by the full court
is necessary to secure or maintain uniformity of its decisions, or (2) when the
proceeding involves a question of exceptional importance.[FN26]
FN26. Fed.R.App.P. 35(a).
Rule 35 governs all en banc hearings and rehearings. To be sure, its
criteria are not entirely free from ambiguity, but an examination of the
statutory and judicial developments culminating in promulgation of the rule,
and of the more recent decisions construing its mandate, makes clear that
courts of appeals are to function principally through divisions of three
judges. Exceptions are appropriate only in rare instances, and, as we shall
see, the instant case is not one of them.
A. The Development of En Banc Review
From the moment the federal courts of appeals were created in 1891,[FN27] the
primary decisionmaking unit was statutorily limited to the three-judge panel.
[FN28] Indeed, while the appointment of a fourth appellate judge to three
circuits in 1911 [FN29] stirred debate [FN30] over whether the courts of
appeals could ever function as a whole rather than by three-judge divisions, it
was not until 1940 almost half a century after federal appeals courts came into
existence that the Supreme Court sanctioned use of the en banc tribunal.[FN31]
FN27. Act of March 3, 1891, ch. 517, s 2, 26 Stat. 826 (1891). The courts
of appeal should not be confused with the original circuit courts, which
also initially made use of a three-judge panel. A detailed account of the
evolution of the federal courts may be found in C. Wright, A. Miller, & E.
Cooper, Federal Practice ss 3503-3504 (1975 ed.). For present purposes,
however, a brief history of the precursors of the modern courts of appeals
The circuit courts were created by the Judiciary Act of 1789, ch. 20, s 4,
1 Stat. 73. This legislation in which Congress for the first time exercised
the power granted it under Art. III, s 1, of the Constitution to establish
the lower federal courts provided for thirteen district and three circuit
courts. The latter had both original and appellate jurisdiction. There
were, however, no circuit judges as such; the circuit courts were conducted
by panels consisting of two Supreme Court justices "riding circuit" and the
judge of the district in which a given session was convened. Judiciary Act
of 1789, ch. 20, s 4, 1 Stat. 73. The regular panel was reduced to one
Supreme Court justice and one district judge in 1793. Act of March 2, 1793,
ch. 22, s 1, 1 Stat. 333. It was not until 1869 that Congress established
circuit judgeships; by the Act of April 10, 1869, ch. 22, s 2, 16 Stat. 44,
one judge was assigned to each circuit.
The origin of the current system can be traced to the creation of federal-
question jurisdiction in 1875. Act of March 3, 1875, ch. 137, 18 Stat. 470.
The resultant increase in caseloads necessitated restructuring of the
judiciary and concomitant creation of the courts of appeals. See C. Wright,
A. Miller, & E. Cooper, supra, s 3504 at 11; Bickel, The Caseload of the
Supreme Court at 3 (1973); Hart & Wechsler, The Federal Courts and the
Federal System, at 40-41 (Bator, Mishkin, Shapiro & Wechsler ed. 1973).
Although the original circuit courts survived the 1891 legislation that act
terminated their appellate jurisdiction, Act of March 3, 1891, ch. 517, s
4, 26 Stat. 826 (1891); they were abolished in 1911, and their original
jurisdiction was transferred to the district courts. Act of March 3, 1911,
ch. 231, 36 Stat. 1087.
FN28. Act of March 3, 1891, ch. 517, ss 2, 4, 26 Stat. 826 (1891).
FN29. Act of March 3, 1911, ch. 231, s 118, 36 Stat. 1087.
FN30. The rather complex situation was explained by the Supreme Court in
Textile Mills Sec. Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86
L.Ed. 249 (1941):
If s 117 (of the Judicial Code) were to be ready (sic ) literally, the
circuit court of appeals was to "consist" of only three judges in spite of
the fact that Congress had already provided in some circuits for more than
three circuit judges. Clearly, where there were four, all could not be
members of a court of three. Yet there was plainly inferable a
Congressional purpose to constitute in some circuits a circuit court of
appeals of four judges.
Id. at 330, 62 S.Ct. at 275, 86 L.Ed. at 255-256 (footnotes omitted).
FN31. As of 1938, all but two of the circuit courts of appeals had more
than three judges. Comment, In Banc Procedures in the United States Courts
of Appeals, 43 Ford.L.Rev. 401, 402 (1974); Note, En Banc Hearings in the
Federal Courts of Appeals: Accommodating Institutional Responsibilities,
40 N.Y.U.L.Rev. 563, 570 (1965).
**369 *1340 In that year, the Third and the Ninth Circuits disagreed over
the propriety of holding hearings before a court's full membership.[FN32] The
Ninth Circuit held that "no more than three judges (could) sit in the Circuit
Court of Appeals." [FN33] The Third Circuit, on the other hand, ruled that en
banc sittings were permissible in "exceptional cases ... (w)here ... there is a
difference in view among the judges upon a question of fundamental
importance." [FN34] The Supreme Court resolved the conflict by affirming the
Third Circuit's understanding,[FN35] thus approving for the first time the use
of the en banc proceeding. The Court, however, agreed that an en banc sitting
was not to be the norm; rather, it was a special technique designed to
eliminate "(c)onflicts within a circuit" [FN36] and to promote "more effective
judicial administration." [FN37]
FN32. See Lang's Estate v. Commissioner, 97 F.2d 867 (9th Cir.),
certified question answered, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331
(1938), rev'd, sub nom. Textile Mills Sec. Corp. v. Commissioner,
supra note 30; Commissioner v. Textile Mills Sec. Corp., 117 F.2d 62
(3d Cir. 1940) (en banc ), aff'd, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed.
FN33. Lang's Estate v. Commissioner, supra note 32, 97 F.2d at 869.
FN34. Commissioner v. Textile Mills Sec. Corp., supra note 32, 117 F.2d
FN35. Textile Mills Sec. Corp. v. Commissioner, supra note 30.
FN36. 314 U.S. at 335, 62 S.Ct. at 277-278, 86 L.Ed. at 258.
Congress, in turn, confirmed the Court's interpretation of earlier legislation
by the enactment in 1948 of 28 U.S.C. s 46(c).[FN38] Again, the leading role
of the three-judge panel was emphasized:
FN38. Act of June 25, 1948, ch. 646, 62 Stat. 878, now codified at 28
U.S.C. s 46(c) (Supp. II 1976).
Cases and controversies shall be heard and determined by a court or division
of not more than three judges unless a hearing or rehearing before the court en
banc is ordered by a majority of the circuit judges of the circuit who are in
As the statutory language suggested, this section was intended to "continue
( ) the tradition of a three-judge appellate court and make( ) the decision of
a division, the decision of the court, unless rehearing in banc is ordered."
[FN40] Above all, as the Supreme Court was soon thereafter to observe, Congress
was concerned with "preserving the 'tradition' of the three-judge courts
against further inroads." [FN41]
FN40. Revision of Federal Judicial Code, Preliminary Draft (of H.R.3498,
79th Cong., 1st Sess.) Committee Print (1949), quoted in Western Pac. R.
R. Corp. v. Western Pac. R. R. Co., 345 U.S. 247, 256 n.13, 73 S.Ct. 656,
660 n.13, 97 L.Ed. 986, 993 n.13 (1952).
FN41. Western Pac. R. R. Corp. v. Western Pac. R. R. Co., supra note
40, 345 U.S. at 256, 73 S.Ct. at 661, 97 L.Ed. at 994. In Western
Pacific, litigants sought to establish a statutory right to compel each
member of a court of appeals to give formal consideration to an application
for rehearing en banc. The Supreme Court held that the courts of appeals
need not adopt any particular procedure, but must allow parties to suggest
rehearings en banc to the judges authorized to initiate such proceedings.
See id. at 249-250, 268, 73 S.Ct. at 657-658, 666, 97 L.Ed. at 990, 999.
In reaching this conclusion, the Court declared that it was desirable to
allow the judges " 'to provide for a court of more than three judges when
in their opinion unusual circumstances make such action advisable.' "
Id. at 251, 73 S.Ct. at 658, 97 L.Ed. at 991, quoting Annual Report of
Attorney General (1938) at 231 (footnote omitted) (emphasis supplied).
Some years later, the Court put to rest any lingering doubts about the
paramount importance of the three-judge court and the concomitant limitations
on resort to en banc decisionmaking. The Court admonished:
En banc courts are the exception, not the rule. They are convened only when
extraordinary circumstances exist that call for authoritative consideration and
decision by those charged with the administration *1341 **370 and
development of the law of the circuit.[FN42]
FN42. United States v. American-Foreign S. S. Corp., 363 U.S. 685, 689,
80 S.Ct. 1336, 1339, 4 L.Ed.2d 1491, 1495 (1960). This admonition is also
reflected in subsequent opinions dealing with related subjects. See
Moody v. Albemarle Paper Co., 417 U.S. 622, 626, 94 S.Ct. 2513, 2516, 41
L.Ed.2d 358, 362 (1974).
B. Interpretations of Rule 35
The original view of limited use of the en banc court of appeals has
frequently been mirrored in judicial opinions issued since promulgation of
Rule 35. There is now general agreement among the circuits that the "truly
extraordinary" [FN43] cases meriting en banc treatment are those involving
"issue(s) likely to affect many other cases" [FN44] in other words, those of
real significance to the legal process as well as to the litigants.[FN45]
Contrary to the view one must perforce infer from the court's decision today,
the en banc court is not an institution for monitoring panel decisionmaking; it
flies in the face of both the intent of Congress and Supreme Court precedent to
use the Rule 35 procedure " 'merely' to correct individual injustices or
mistakes." [FN46] And while Rule 35 looks to preserving the uniformity of a
circuit's decisions, the courts agree that the availability of en banc
rehearings to cure intra-circuit conflicts does not justify "a vote for
reconsideration by the entire court merely because (a judge) disagrees with the
result reached by the panel." [FN47]
FN43. Boraas v. Village of Belle Terre, 476 F.2d 806, 829 (2d Cir.
1973) (statement of Mansfield, J.).
FN44. Walters v. Moore-McCormack Lines, Inc., 312 F.2d 893, 894 (2d
Cir. 1963) (statement of Lumbard, C. J.).
FN45. See Gilliard v. Oswald, 557 F.2d 359 (2d Cir. 1977) (statement of
Kaufman, C. J.); Galella v. Onassis, 487 F.2d 986, 1004 (2d Cir. 1973);
id. at 1005 (dissenting opinion); Eisen v. Carlisle & Jacqueline, 479
F.2d 1005, 1021-1022 (2d Cir. 1973) (dissenting opinion); Boraas v.
Village of Belle Terre, supra note 43, 476 F.2d at 829 (statement of
Mansfield, J.); United States v. Rosciano, 499 F.2d 173, 174 (7th Cir.
1974) (en banc ); United States v. Page, 302 F.2d 81, 86 (9th Cir.
1962) (en banc ) (pre-Rule 35 decision).
FN46. Galella v. Onassis, supra note 45, 487 F.2d at 1005
(dissenting opinion), quoting Eisen v. Carlisle & Jacqueline, supra note
45, 479 F.2d at 1021-1022 (dissenting opinion). In the exceptional case,
however, an en banc rehearing may be appropriate to cure gross individual
injustice. See Eisen v. Carlisle & Jacqueline, supra note 45, 479 F.2d
at 1021 n.2 (dissenting opinion). Indeed, Rule 35 directs that
"ordinarily" a rehearing will not be ordered in the absence of its two
enumerated factors; it does not establish a blanket rule.
FN47. Gilliard v. Oswald, supra note 45, 557 F.2d at 359 (statement
of Kaufman, C. J.). Accord, cases cited supra note 45.
The need for judicial restraint in invoking the en banc mechanism is readily
understood. Because it engages the attention of every active judge,
consideration of a case en banc drains judicial resources while burdening the
litigants with added expense and delay.[FN48] And because it often leads to a
multiplicity of opinions, a too-frequent corollary of en banc decisionmaking is
the inability to offer authoritative guidance,[FN49] the raison d'etre of the
procedure. In this light, it is hardly surprising that Rule 35 explicitly
declares that en banc "hearing or rehearing is not favored." [FN50] On the
contrary, *1342 **371 the collective wisdom of the federal judiciary is
that en banc review must be soundly justified, else the game will not be worth
FN48. See Gilliard v. Oswald, supra note 45, 557 F.2d at 359
(statement of Kaufman, C. J.); Galella v. Onassis, supra note 45, 487
F.2d at 1005 (per curiam); Eisen v. Carlisle & Jacqueline, supra note
45, 479 F.2d at 1021-1022 (dissenting opinion); Maris, Hearing and
Rehearing Cases In Banc, 14 F.R.D. 91, 96 (1954); Comment, In Banc
Procedures in the United States Courts of Appeals, 43 Ford.L.Rev. 401, 417-
418 (1974). The degree to which en banc rehearings are disfavored is
illustrated by statistics for fiscal 1980. In that year, 23,200 appeals
were filed in the federal courts of appeals; and 10,598 were orally heard
or submitted on briefs, of these only 65 cases were heard en banc. See 1980
Annual Report of the Director, Administrative Office of the United States
Courts at 43, Table 1; 49, Table 7.
FN49. See Gilliard v. Oswald, supra note 45, 557 F.2d at 359
(statement of Kaufman, C. J.); Comment, In Banc Procedures in the United
States Courts of Appeals, 43 Ford.L.Rev. 401, 417 & n.162 (1974).
FN50. Fed.R.App.P. 35(a), quoted in relevant part in text supra at
In sum, the history of the en banc practice, the plain language of Rule 35,
and consistent judicial interpretation of the purposes and permissible uses of
en banc courts are in complete accord: barring extraordinary circumstances,
only three-judge panels may appropriately hear and decide cases coming before
the courts of appeals.
III. THE PRESENT CASE
The District Court dismissed the Church's action solely on the ground that it
was barred by the District of Columbia statute of limitations applicable to
actions for libel or slander.[FN51] In the court's view, the Church's
complaint "sound(ed) most nearly in defamation," and was intercepted by the
local one-year limitation on actions therefor.[FN52] The dispute on appeal is
whether the Church had a legitimate claim other than for defamation, and thus
is able to benefit from the statute's residual provision of three years for
actions "for which a limitation is not otherwise specifically prescribed."
FN51. Church of Scientology v. Foley, supra note 2, App. 60.
Since there is no federal statute of limitations applicable to the federal
claims in suit, the court properly looked for the most analogous District
of Columbia limitation. Runyan v. McCrary, 427 U.S. 160, 180, 96 S.Ct.
2586, 2599, 49 L.Ed.2d 415, 430-431 (1976); Johnson v. Railway Express
Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295, 302-303
(1975); UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 701-704, 86 S.Ct.
1107, 1110-1113, 16 L.Ed.2d 192, 197-199 (1966); Cope v. Anderson, 331
U.S. 461, 463, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602, 1606-1607 (1947).
Whether, however, it picked the right provision is another matter.
FN52. Church of Scientology v. Foley, supra note 2, App. 60. In
relevant part, the District of Columbia statute of limitations provides:
Except as otherwise specifically provided by law, actions for the following
purposes may not be brought after the expiration of the period specified
below from the time the right to maintain the action accrues: ...
(4) for libel (or) slander, ... 1 year; ...
(8) for which a limitation is not otherwise specially prescribed 3
D.C.Code s 12-301 (1973).
FN53. See D.C.Code s 12-301(8) (1973), quoted supra note 52. The
case was submitted to us on the theory that no cause of action accrued
until the Church became aware of the memorandum in 1975. Compare, e. g.,
Fitzgerald v. Seamans 180 U.S.App.D.C. 75, 83-86, 553 F.2d 220, 228-231
(1977); Jones v. Rogers Memorial Hosp., 143 U.S.App.D.C. 51, 52-53, 442
F.2d 773, 774-775 (1971); Emmett v. Eastern Dispensary & Cas. Hosp., 130
U.S.App.D.C. 50, 55-58, 396 F.2d 931, 936-939 (1967). I intimate no view in
A. The Possible Claims
Three potential claims have been suggested: infringement of rights secured to
the Church by the First and Fifth Amendments; breach of a due-care duty
implicit in whatever federal statute or regulation purportedly authorized the
activities in which appellees engaged; and common law negligence in the
formation of governmental files. If any one of these claims is valid, the
three-year limitation period may be legally viable.[FN54] The issue, then, is
whether the Church could have supported a claim for relief under one or more of
these theories.[FN55] I see no reason whatsoever for summoning this court's en
banc authority to conduct that inquiry.
FN54. See the discussion in note 65 infra.
FN55. "(I)n appraising the sufficiency of the complaint (federal courts)
follow, of course, the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 102, 2 L.Ed.2d 80, 84 (1957). Accord, Haines v. Kerner, 404 U.S.
519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654 (1972); Jenkins v.
McKeithen, supra note 4, 395 U.S. at 421-422, 89 S.Ct. at 1849, 23
L.Ed.2d at 416-417; Sass v. District of Columbia, 114 U.S.App.D.C. 365,
366, 316 F.2d 366, 367 (1963).
Certainly no question justifying an en banc decision is posed by the Church's
constitutional claims.[FN56] It is well settled that a cause of action for
money damages may be **372 *1343 implied directly from either the First or
the Fifth Amendment.[FN57] The issue here is not of significant import; it is
simply whether proof of the events the Church complains of would establish
official misconduct rising to the level of constitutional transgression.[FN58]
That question is largely factual, and the answer could have little if any
impact on proceedings other than those at hand.[FN59] Consequently, the
constitutional issues do not merit use of the special decisionmaking power of
the full court.
FN56. See text supra at note 14.
FN57. The Supreme Court's decision in Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-397, 91 S.Ct.
1999, 2004-2005, 29 L.Ed.2d 619, 626-627 (1971), definitively established
that a cause of action for money damages may be implied directly from the
Constitution. Bivens dealt with the Fourth Amendment, but subsequently the
Court has held that causes of action similarly may be derived from the
Fifth. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d
846 (1979). See also, e. g., Payne v. District of Columbia, 182
U.S.App.D.C. 188, 559 F.2d 809 (1977); United States ex rel. Moore v.
Koelzer, 457 F.2d 892, 894 (3rd Cir. 1972); Bethea v. Reid, 445 F.2d
1163, 1164-1165 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct.
747, 30 L.Ed.2d 749 (1972); States Marine Lines, Inc. v. Shultz, 498
F.2d 1146, 1155 (4th Cir. 1974); Revis v. Laird, 391 F.Supp. 1133, 1138-
1139 (E.D.Calif.1975); Patmore v. Carlson, 392 F.Supp. 737, 740
(E.D.Ill.1975). This court has also held that a cause of action may be
implied from the First Amendment. Dellums v. Powell, 184 U.S.App.D.C.
275, 302-304, 566 F.2d 167, 194-196 (1977). Although the Supreme Court has
not itself addressed that question, its decision in Davis suggests that
a valid claim may exist for any violation of a constitutional right, at
least where Congress has provided no other suitable remedy.
FN58. Decisions involving factual questions, which are unlikely to have
any significant precedential effect, are inappropriate for en banc review.
See cases cited supra note 45.
FN59. As noted earlier, see text supra at notes 43-46, an en banc decision
is not justified in such instances. See cases cited supra notes 44-45.
The further question whether appellees have disregarded a statutorily-imposed
obligation to exercise reasonable care involves very similar considerations.
This court at least twice previously has held that such a duty, and a
concomitant remedy for its breach, may follow from imposition of a statutory
responsibility to manage governmental records,[FN60] and the panel majority
felt that perhaps the Church could show that such a duty existed in this case.
[FN61] The panel decision forged no novel doctrine, nor did it conflict with
our precedents. I fail to see how the panel's remand for exploration of this
avenue to possible relief warrants en banc review.
FN60. Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 299-303, 507 F.2d 1116,
1122-1126 (1974); Menard v. Saxbe, 162 U.S.App.D.C. 284, 296, 498 F.2d
1017, 1029 (1974).
FN61. Church of Scientology v. Foley, supra note 1, at ---- - ----.
Nor, in my view, does the Church's common law theory of liability deserve en
banc treatment. The Church suggests that there was a nonfederal duty, grounded
in District of Columbia law, to use due care in assembling and maintaining
federal records.[FN62] But we no longer have either the responsibility or the
prerogative to fashion the common law of the District of Columbia,[FN63] or to
**373 *1344 act en banc to maintain its uniformity. Indeed, our obligation
as a federal court dealing with a nonfederal claim is to take nonfederal law
just as it is. [FN64] Against this background, I cannot conceive of anything
less appropriate for en banc consideration than a matter of purely local law.
FN62. That question crept into the case when the Church invoked diversity
of citizenship as one of the District Court's jurisdictional bases. See
note 14 supra. I recognize that the federal common law might also
provide a cause of action in this case, see generally Wheeldin v.
Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1965); United
States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067
(1947); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct.
573, 87 L.Ed. 838 (1945), but the issue is raised neither by the parties
nor in the panel opinion, and it therefore need not be addressed on this
FN63. The District of Columbia Court Reorganization Act of 1970,
Pub.L.No.91-358, tit. I, s 111, 84 Stat. 475, constituted the District of
Columbia Court of Appeals "(t)he highest court of the District of
Columbia," D.C.Code s 11-102 (1973), a role this court theretofore
occupied. As we have observed, "(t)hat court, and not this court, is now
the final expositor of local law." Thompson v. United States, 179
U.S.App.D.C. 76, 80, 548 F.2d 1031, 1035 (1976) (footnote omitted); and our
decisions subsequent to the effective date of the Act do not bear the
imprimatur of binding interpretations in that area. Bethea v. United
States, 365 A.2d 64, 71 (D.C.App.1976); District of Columbia v.
Schwerman Trucking Co., 327 A.2d 818, 820-821 (D.C.App.1974); Small v.
United States, 304 A.2d 641, 643 (D.C.App.1973); M. A. P. v. Ryan, 285
A.2d 310, 312 (D.C.App.1971).
FN64. Tuxedo Contractors, Inc. v. Swindell-Dressler Co., 198
U.S.App.D.C. 426, 428 n.14, 613 F.2d 1159, 1161 n.14 (1979); Lee v.
Flintkote Co., 193 U.S.App.D.C. 121, 124 & n.14, 593 F.2d 1275, 1278 &
FN65. Appellees have implied that the panel decision conflicts with
District of Columbia Armory Bd. v. Volkert, 131 U.S.App.D.C. 74, 402
F.2d 215 (1968). See Supplemental Brief for Appellees at 13-18. Close
comparison satisfies me that there is no inconsistency between the two.
Volkert held that a suit claiming property damage was governed by the
District's three-year limitation on actions "for the recovery of damages
for an injury to real or personal property," D.C.Code s 12-
301(3) (1973), despite an assertion of alternative contract and tort
theories of liability. "Where," the court said, "real or personal property
is injured and suits are brought to recover damages, we think Congress has
said quite clearly that 3 years is the limitation period, whether contract
(sealed or unsealed, written or oral) or tort be made the legal vehicle of
recovery." 131 U.S.App.D.C. at 79, 402 F.2d at 220. Here, however, the
one-year limitation affects the Church only to the extent that recovery is
sought for "libel" or "slander." D.C.Code s 12-301(4) (1973), quoted in
relevant part supra note 52. The Church alleges that the Foley
memorandum not only curtailed its ability to attract adherents and
contributions, but also precipitated governmental discrimination and
harassment frustrating exercise of its First and Fifth Amendment rights and
necessitating large financial expenditures to preserve them. Complaint, PP
18-20, App. 7-8; Amended Complaint, PP 18, 20, App. 35-36. These
constitutional claims are not congruent with libel or slander, nor is the
panel decision in doctrinal collision with Volkert.
B. A Proposed Disposition
While it seems clear that this case presents no issue worthy of en banc
review, the question of how properly to dispose of it remains. Usually, of
course, courts do not face that need because they simply refused to accord
inappropriate cases an en banc audience. Occasionally, however, courts have
discovered, after convening en banc, viewing briefs and hearing oral argument,
that a given case does not warrant consideration by every active judge. In just
such a situation the Seventh Circuit withdrew its order granting a rehearing,
dissolved the en banc court and reinstated the panel opinion.[FN66] And this
court, when confronted by a similar problem, concluded that because of the
limited importance of the case it was inappropriate to provide detailed
"exposition en banc of the legal points beyond that already provided in the
majority and minority opinions of the panel," [FN67] and accordingly reissued
the panel opinions.[FN68] An obvious parallel is the Supreme Court's practice
of dismissing writs of certiorari when, after closer study of the case, it
becomes evident that the writ was granted on a mistaken impression of the
record; [FN69] that the case is an unsuitable one in which to issue an
authoritative decision; [FN70] or that the case is simply too unimportant to
merit the Court's attention.[FN71]
FN66. United States v. Rosciano, supra note 45, 499 F.2d at 175.
FN67. Verkouteren v. District of Columbia, 139 U.S.App.D.C. 303, 305,
433 F.2d 461, 463 (1970).
FN68. Id. Moreover, in Bulluck v. Washington, 152 U.S.App.D.C. 39,
65, 468 F.2d 1096, 1122 (1972), we dissolved our order granting en banc
rehearing and continued in effect the panel decision because we were
equally divided on the merits.
FN69. Burrell v. McCray, 426 U.S. 471, 472, 96 S.Ct. 2640, 2641, 48
L.Ed.2d 788-789 (1976) (concurring opinion); Bostic v. United States,
402 U.S. 547, 548, 91 S.Ct. 2174, 29 L.Ed.2d 102, 103 (1971); Johnson v.
Massachusetts, 390 U.S. 511, 88 S.Ct. 1155, 20 L.Ed.2d 69, 70 (1968); The
Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183, 79 S.Ct. 710,
713, 3 L.Ed.2d 723, 725 (1959).
FN70. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 365-366, 95
S.Ct. 449, 461, 42 L.Ed.2d 477, 492 (1974) (dissenting opinion);
DeBacker v. Brainard, 396 U.S. 28, 30-31, 90 S.Ct. 163, 165, 24 L.Ed.2d
148, 152-153 (1969); Massachusetts v. Painten, 389 U.S. 560, 561, 88
S.Ct. 660, 661, 19 L.Ed.2d 770, 771 (1968).
FN71. Piccirillo v. New York, 400 U.S. 548, 549, 91 S.Ct. 520, 521, 27
L.Ed.2d 596, 598 (1971); Rudolph v. United States, 370 U.S. 269, 270, 82
S.Ct. 1277, 1278, 8 L.Ed.2d 484, 486 (1962).
**374 *1345 Similar action, I believe, is demanded here. Basic rules of
judicial housekeeping admonish courts to avoid addressing issues they need not
resolve. Since reaching the merits here can serve none of the accepted purposes
of the en banc process, there is no occasion for a full-court decision of the
case. On the contrary, the court would do well to conserve its resources and
preserve the authority of its en banc voice by reserving both for those
fundamentally important cases where the collective attention and wisdom of its
full bench is both necessary and appropriate.
In my view, no issue meriting en banc attention has been tendered by the
parties or uncovered by the court. Rehearing en banc, I think, was
improvidently granted. I would therefore dissolve this en banc tribunal and
reinstate the panel opinions.