CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff,
v.
Elmer F. LINBERG, et al., Defendants.
No. CV77-2654-Kn.
United States District Court, C. D. California.
Dec. 14, 1981.
Nonprofit religious corporation sought damages and an injunction against
present and former FBI agents and Department of Justice for alleged violations
of its First and Fourth Amendment rights in connection with a search and
seizure operation conducted by the FBI. The District Court, Kenyon, J., held
that: (1) complaint by religious corporation was sufficiently specific in
allegations of present or likely future harm, a necessary predicate to
injunctive relief; (2) adverse decision in preindictment motion by nonprofit
religious corporation seeking return of property did not have a collateral
estoppel effect in subsequent civil suit by religious corporation; (3) denial
of criminal defendants' motion to suppress evidence seized during operation did
not have a collateral estoppel effect in subsequent civil suit by religious
corporation; and (4) section of the Administrative Procedure Act waiving
sovereign immunity was applicable to civil suit by nonprofit religious
corporation, even though the Act does not provide a statutory basis for review
of the allegations against the Department; therefore, court had subject-matter
jurisdiction over Department of Justice.
Ordered accordingly.
[1] FEDERAL CIVIL PROCEDURE
An action may be dismissed for failure to state a claim only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of the
claim which would entitle him to relief. Fed.Rules Civ.Proc. Rule 12(b)(6),
28 U.S.C.A.
[2] SEARCHES AND SEIZURES
Complaint by nonprofit religious corporation sufficiently stated a cause of
action against present and former agents of the FBI and the Department of
Justice seeking damages and injunction for alleged violations of its First and
Fourth Amendment rights in connection with extensive search and seizure
operation conducted by the FBI. U.S.C.A.Const.Amends. 1, 4; Fed.Rules
Civ.Proc. Rules 8(a), 12(b)(6), 28 U.S.C.A.
[3] FEDERAL CIVIL PROCEDURE
Fact that in complaint by nonprofit religious corporation seeking damages and
injunction against FBI agents and Department of Justice for alleged violations
of its First and Fourth Amendment rights in connection with search and
seizure operation conducted by the FBI 13 of the individual defendants were
not referred to by name in substantive paragraphs of complaint did not warrant
automatic dismissal of those defendants, because the complaint did allege that
"all defendants" engaged in the Los Angeles searches, and because those 13
defendants were at several places in the complaint alleged to have been in
"complicity" or "cooperation" with the seven supervisory defendants.
U.S.C.A.Const.Amends. 1, 4.
[4] INJUNCTION
Complaint by nonprofit religious corporation, seeking injunction against
present and former FBI agents and the Department of Justice with respect to
search and seizure operation conducted by the FBI against it, was sufficiently
specific in allegations of present or likely future harm, a necessary predicate
to injunctive relief.
[5] INJUNCTION
Court should act with great caution in granting injunctions against law
enforcement action or surveillance; however, injunctive relief may be ordered
against law enforcement agencies in appropriate circumstances.
[6] ADMINISTRATIVE LAW AND PROCEDURE
Mere existence of some degree of discretion does not render activity
nonreviewable unless the potential disruption of the administrative process is
shown clearly to outweigh the need for and feasibility of judicial review.
5 U.S.C.A. s 701(a)(2).
[7] INJUNCTION
Present and former FBI agents, and the Department of Justice, defendants in
suit by nonprofit religious corporation seeking injunction with regard to
search and seizure operation conducted by the FBI, failed to show that any
injunctive decree that could be issued would necessarily encroach improperly on
legitimate investigative activities, or that the Department of Justice could
not be enjoined because its conduct relevant to the case was "committed to
agency discretion by law" and therefore not reviewable, because the Department
pointed to no statute that gave it absolute discretion to commit the acts
alleged in the complaint. 5 U.S.C.A. s 701(a)(2).
[8] FEDERAL COURTS
Assertion of jurisdiction, under federal statute providing for federal
jurisdiction for redress of deprivations of civil rights, by nonprofit
religious corporation seeking damages and injunction against FBI agents and the
Department of Justice for alleged violations of its First and Fourth Amendment
rights in connection with a search and seizure operation conducted by the FBI,
was improper, because religious corporation stated no claim for relief under
any act of Congress for the protection of civil rights. 28 U.S.C. (1976
Ed.) s 1343(4).
[9] ADMINISTRATIVE LAW AND PROCEDURE
Jurisdiction did not lie under Administrative Procedure Act in suit by
nonprofit religious corporation seeking damages and an injunction against FBI
agents and the Department of Justice for alleged violations of its First and
Fourth Amendment rights in connection with a search and seizure operation by
the FBI, because the Act does not afford an implied grant of jurisdiction
permitting federal judicial review of agency action. 5 U.S.C.A. s 551 et
seq.; U.S.C.A.Const.Amends. 1, 4.
[10] DECLARATORY JUDGMENT
Declaratory Judgment Act did not provide an independent basis for federal
jurisdiction in suit by nonprofit religious corporation seeking damages and an
injunction against FBI agents and the Department of Justice for alleged
violations of its First and Fourth Amendment rights in connection with a search
and seizure operation conducted by the FBI. 28 U.S.C.A. ss 2201, 2202;
U.S.C.A.Const.Amends. 1, 4.
[11] FEDERAL COURTS
Nonprofit religious corporation, in suit against FBI agents and Department of
Justice for damages and injunction for alleged violations of its First and
Fourth Amendment rights in connection with a search and seizure
operation conducted by the FBI, did not seek to compel the execution of a
ministerial, nondiscretionary act, and therefore jurisdiction of the suit did
not lie under federal mandamus statute. 28 U.S.C.A. s 1341;
U.S.C.A.Const.Amends. 1, 4.
[12] FEDERAL CIVIL PROCEDURE
Nonprofit religious corporation, seeking damages and an injunction against
present and former FBI agents and the Department of Justice for alleged
violations of its constitutional rights in connection with a search and seizure
operation conducted by the FBI, provided no authority or hint as to how its
Fifth Amendment rights to due process or equal protection or its Ninth
Amendment rights may have been infringed; therefore, any mention of the Fifth
and Ninth Amendments would be stricken from the complaint, since religious
corporation's claims appeared to be adequately encompassed by the First and
Fourth Amendments. U.S.C.A.Const.Amends. 1, 4, 5, 9.
[13] JUDGMENT
In order to have collateral estoppel effect in subsequent action, an issue of
fact or law must be actually litigated and determined by a valid and final
judgment, and the determination of the issue must be essential to the judgment.
[13] JUDGMENT
In order to have collateral estoppel effect in subsequent action, an issue of
fact or law must be actually litigated and determined by a valid and final
judgment, and the determination of the issue must be essential to the judgment.
[14] JUDGMENT
Adverse decision in preindictment motion by nonprofit religious corporation
seeking return of property seized by FBI during search and seizure operation
did not have a collateral estoppel effect in subsequent suit by religious
corporation seeking damages and an injunction against present and former FBI
agents and the Department of Justice for alleged violations of its First and
Fourth Amendment rights in connection with the search and seizure operation,
because suppression objective of preindictment motion and close connection to
pending criminal proceeding rendered it not appealable. Fed.Rules Cr.Proc.
Rule 41(e), 18 U.S.C.A.; U.S.C.A.Const.Amends. 1, 4.
[15] JUDGMENT
Nonparties may be bound to the results of a prior litigation in which they had
a direct financial or proprietary interest and over which they assumed a
sufficient degree of control and participation; exercise of control is a
question of fact to be proved affirmatively by the party invoking the
conclusive forces of the judgment.
[16] JUDGMENT
Present and former FBI agents and the Department of Justice, defendants in suit
by nonprofit religious corporation seeking damages and an injunction for
alleged violations of its First and Fourth Amendment rights in connection with
search and seizure operation conducted by FBI, failed to prove either that
religious corporation effectively controlled conduct of litigation of members
in criminal proceeding arising out of the search, or that sufficient identity
of interests existed between religious corporation and the criminal defendants
to bring religious corporation into privity with them; therefore, denial of
criminal defendants' motion to suppress evidence seized during the operation
did not have a collateral estoppel effect in subsequent suit by religious
corporation. U.S.C.A.Const.Amends. 1, 4.
[16] JUDGMENT
Present and former FBI agents and the Department of Justice, defendants in suit
by nonprofit religious corporation seeking damages and an injunction for
alleged violations of its First and Fourth Amendment rights in connection with
search and seizure operation conducted by FBI, failed to prove either that
religious corporation effectively controlled conduct of litigation of members
in criminal proceeding arising out of the search, or that sufficient identity
of interests existed between religious corporation and the criminal defendants
to bring religious corporation into privity with them; therefore, denial of
criminal defendants' motion to suppress evidence seized during the operation
did not have a collateral estoppel effect in subsequent suit by religious
corporation. U.S.C.A.Const.Amends. 1, 4.
[17] JUDGMENT
Issue preclusion is available where the party against whom the prior decision
was asserted is not identical to losing party in the prior action, but
nevertheless has a sufficient identity with that party to be deemed its
"privy."--
[18] JUDGMENT
Privity for estoppel purposes is a creature of particular circumstances which
may be described by a variety of terms, including "substantial identity," and
status as a "virtual representative."--
[19] JUDGMENT
Ultimate issue decided in denial of motion by criminal defendants to suppress
evidence seized from nonprofit religious corporation during FBI search and
seizure operation was limited to whether a "flagrant" or "egregious" Fourth
Amendment violation occurred, which was not in substance same as issue
of reasonableness in civil suit by nonprofit religious corporation seeking
damages and an injunction against present and former FBI agents and the
Department of Justice for alleged violations of its First and Fourth Amendment
rights in connection with search and seizure operation; therefore, religious
corporation's Fourth Amendment contentions were not properly precluded by
holding denying criminal defendant's suppression motion. U.S.C.A.Const.Amends.
1, 4.
[20] FEDERAL CIVIL PROCEDURE
Where motion to dismiss for failure to state a claim upon which relief can be
granted was filed, in suit by nonprofit religious corporation seeking damages
and an injunction against present and former FBI agents and the Department of
Justice for alleged violations of its First and Fourth Amendment rights in
connection with a search and seizure operation conducted by the FBI, without
asserting personal defenses of two individual defendants that service of
process was insufficient, those defenses were permanently waived, and such
waiver was not prevented by fact that religious corporation filed a "very
different" amended complaint, or by fact that they were not parties to the
prior motion to dismiss. Fed.Rules Civ.Proc. Rule 12(g), (h)(1, 2), 28
U.S.C.A.; U.S.C.A.Const.Amends. 1, 4.
[21] UNITED STATES
Section of the Administrative Procedure Act waiving sovereign immunity with
respect to "agency action" giving rise to a suit "stating a claim that an
agency or an officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority" was applicable to suit by nonprofit
religious corporation seeking damages and an injunction against present and
former FBI agents and the Department of Justice for alleged violations of its
First and Fourth Amendment rights in connection with a search and seizure
operation conducted by the FBI, even though the Act does not provide a
statutory basis for review of the allegations against the Department.
Fed.Rules Civ.Proc. Rule 12(b)(1), 28 U.S.C.A.; 5 U.S.C.A. ss 551 et
seq., 702; U.S.C.A.Const.Amends. 1, 4.
[22] JUDGMENT
Paragraph in suit by nonprofit religious corporation seeking damages and an
injunction against present and former FBI agents and the Department of Justice
for alleged violations of its First and Fourth Amendment rights in connection
with a search and seizure operation conducted by the FBI, which paragraph
asserted that the Department and several individual defendants disseminated the
fruits of the search to private and governmental entities involved in the
litigation, was not identical with that raised in earlier complaint in which
religious corporation sought relief from the Department for selective leaking
to newspaper of confidential information obtained in the searches; therefore,
dismissal of latter complaint did not bar former by res judicata or collateral
estoppel. U.S.C.A.Const.Amends. 1, 4.
*948 Howard J. Stechel, Beverly Hills, Cal., for plaintiff.
James Stotter, II, Asst. U. S. Atty., Los Angeles, Cal., for defendants.
ORDER RE DEFENDANTS' MOTION TO DISMISS
KENYON, District Judge.
Plaintiff in this action seeks damages and an injunction pursuant to Bivens
v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971), for alleged violations of its First and Fourth Amendment rights in
connection with an extensive search and seizure operation conducted by the
Federal Bureau of Investigation. Defendants, 20 agents and former FBI agents
and the Department of Justice,[FN1] *949 have filed motions to dismiss the
present complaint on numerous grounds. The court, as indicated in its order
entered June 23, 1981, denies the motions in their entirety with the exception
of striking several of the provisions plaintiff has offered as a basis for
jurisdiction and its constitutional claims.
FN1. There were originally 22 individual defendants named, but on June 23,
1981, the court granted plaintiff's motion to dismiss with prejudice
defendants Raymond Banoun and Henry Schuelke III, both of whom were
allegedly involved with the Los Angeles searches while serving as Assistant
United States Attorneys in the District of Columbia. Because these were the
only two defendants which were asserted to be residing outside of this
District, defendants' argument that venue "may" be improper no longer
requires consideration.
In the early morning of July 8, 1977, more than 150 FBI agents and other
personnel, authorized by virtually identical warrants, entered three facilities
of the Church of Scientology. One was the site of the Founding Church of
Scientology in Washington, D.C., and the others were the Los Angeles premises
of plaintiff, the Church of Scientology of California (hereinafter referred to
as "the Church"). The warrants identified 162 items and classes of items to be
seized based upon an affidavit of a former Scientology official who testified
with respect to the thefts in 1975 of Government documents from the
headquarters of the Department of Justice in Washington, D.C., and the offices
of the United States Attorney for the District of Columbia. The vast majority
of the agents participated in the Los Angeles searches, during which nearly
50,000 documents were seized in the course of approximately 23 hours.
Shortly after the execution of the warrants, the Church of Scientology filed
this action and along with the Founding Church, two additional federal court
actions in Los Angeles and the District of Columbia seeking the return and
suppression of property pursuant to Rule 41(e) of the Federal Rules of Criminal
Procedure.[FN2] Following a stay of proceedings entered October 20, 1977, very
little of significance occurred in this action for nearly three years, during
which time the Rule 41(e) petitions were actively litigated.
FN2. Rule 41(e) of the Federal Rules of Criminal Procedure provides:
A person aggrieved by an unlawful search and seizure may move the district
court for the district in which the property was seized for the return of
the property on the ground that he is entitled to lawful possession of the
property which was illegally seized. The judge shall receive evidence on
any issue of fact necessary to the decision of the motion. If the motion is
granted the property shall be restored and it shall not be admissible in
evidence at any hearing or trial. If a motion for return of property is
made or comes on for hearing in the district of trial after an indictment
or information is filed, it shall be treated as a motion to suppress under
Rule 12.
On July 27, 1977, Chief Judge William B. Bryant ruled that the warrant
executed in the District of Columbia was invalid on its face as a "general
warrant" in violation of the particularity requirement of the Fourth Amendment.
[FN3] In re Search Warrant Dated July 4, 1977, 436 F.Supp. 689 (D.D.C.1977).
On December 1, 1977, the D.C. Circuit reversed, and upheld the validity of the
warrant, remanding for consideration of the legality of the execution of the
warrant. In re Search Warrant Dated July 4, 1977, 572 F.2d 321
(D.C.Cir.1977), cert. denied sub nom. Founding Church of Scientology v.
United States, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978).[FN4]
FN3. The Fourth Amendment of the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
FN4. On remand, Judge Bryant held that the D.C. search was general and
exploratory in violation of the Fourth Amendment and 18 U.S.C. s 2234,
and therefore again ordered return of the documents seized in the District
of Columbia and the destruction of all copies. In re Search Warrant
Dated July 4, 1977, Misc.No. 77-0151 (D.D.C. August 24, 1979). On appeal by
the Government, the D.C. Circuit again reversed, and upheld the
constitutionality of the search as a whole. The court remanded to allow the
Church to make a showing that particular documents may have been seized
unlawfully. In re Search Warrant dated July 4, 1977, 667 F.2d 117
(D.C.Cir. 1981).
Following several days of hearings, Judge Malcolm M. Lucas in memorandum
opinions *950 of April 4 and July 5, 1978, upheld the facial validity and
the execution of the warrants in Los Angeles on all grounds raised by the
Church. Church of Scientology v. United States, No. CV 77-2565-MML
(C.D.Cal.1978) (hereinafter cited as the Lucas decision). On August 14, 1978,
eleven members of the Church of Scientology, including several of its top
officers, were indicted by a federal grand jury in the District of Columbia. On
February 22, 1979, the Ninth Circuit, citing DiBella v. United States, 369
U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1963), dismissed the Church's appeal of
the Lucas decision in light of its potential disruptive effect on pending
criminal proceedings in the District of Columbia. Church of Scientology v.
United States, 591 F.2d 533 (9th Cir. 1979), cert. denied, 444 U.S. 1043,
100 S.Ct. 729, 62 L.Ed.2d 729 (1980).
Nine of the Scientology defendants scheduled to go to trial before Judge
Charles B. Richey moved to suppress the evidence seized during the July 8,
1977, searches. The suppression motion concerned only the legality of the Los
Angeles searches, as the Government took the position that it had not shown any
of the documents seized in the District of Columbia to the grand jury nor did
it intend to use such documents at or in preparation for trial. United
States v. Hubbard, 493 F.Supp. 209, 212 (D.D.C.1979). The suppression hearing
began on July 3, 1979, in Los Angeles and ended in Washington, D.C. on August
29, 1979.
In an opinion issued September 13, 1979, Judge Richey upheld the facial
validity of the Los Angeles warrants, and ruled that the 201 documents the
prosecution intended to introduce in its case-in-chief had been legally seized.
He rejected the attempt of the nine Scientology defendants [FN5] to invalidate
the seizure of the 201 documents based upon, among other Fourth Amendment
contentions, the seizure of numerous other documents alleged to be outside the
scope of the warrant. Judge Richey based his denial of the suppression motion
not only on a broad finding that the Government agents did not violate the
Fourth Amendment, but also on two specific legal grounds-the virtual absence of
standing to challenge seizures and an apparent rejection of defendants' theory
for suppressing the 201 documents as beyond the permissible scope of the
exclusionary rule. Id. at 215, 224. On October 26, 1979, each of the nine
defendants was found guilty on a stipulated record of one count of the
indictment.[FN6] They were sentenced on December 6-7, 1979, and appealed.
Arguments were held February 27, 1981, and the D.C. Circuit in a per curiam
opinion issued October 2, 1981, affirmed the convictions and rejected all of
defendants' contentions, including their challenge to the denial of the
suppression motion. United States v. Heldt, 668 F.2d 1238, (D.C.Cir. 1981).
FN5. The other two of the 11 individuals indicted by the grand jury
resided in England and were not extradited in time to stand trial with the
nine defendants before Judge Richey. These two defendants also filed
motions to suppress which were denied for lack of standing by Judge Aubrey
E. Robinson, Jr., in the District of Columbia federal court. On November
26, 1980, the two extradited defendants were convicted on nine counts of
burglarizing Government offices.
FN6. Seven of the nine were found guilty of conspiracy to obstruct
justice; one was found guilty of conspiracy to obtain government documents
illegally; and the other was found guilty of theft of government property.
In the present action, activity relevant to the current proceedings began with
the filing of the Second Amended Complaint on June 2, 1980. On June 23, 1980,
defendants filed a motion to dismiss the complaint under Federal Rule of
Civil Procedure 12(b). At the July 21, 1980, hearing on the motion before Judge
William Matthew Byrne, Jr., defendants agreed to withdraw their motion and
plaintiff on September 3, 1980, filed the Third Amended Complaint (hereinafter
referred to as the Complaint). It alleges that the 20 individual defendants and
the U.S. Department of Justice violated plaintiff's First, Fourth, Fifth and
Ninth Amendment rights in the execution of the Los Angeles searches and their
aftermath.
*951 The Complaint contends that defendants violated plaintiff's rights and
those of its members to be free from unreasonable searches and seizures in
several specific respects, including: 1) conducting a "general search"
involving the seizure of thousands of documents beyond the geographic scope of
the search authorized in the warrant (P 14), and beyond the 162 categories of
seizable documents described in the warrant and accompanying affidavit (PP 15,
16); 2) using the search as an opportunity to develop information for
collateral Government investigations (PP 13, 16); and 3) the "wanton and
needless" destruction of Church property in connection with the forcible
breaking of doors, locks and safes (P 19).[FN7] Plaintiff also alleges that its
constitutional rights were violated when defendants disrupted Church activities
by totally occupying the premises searched without any legitimate law
enforcement purpose (P 17), used physical and other means of intimidating and
harassing Church members who were present (P 18), and disseminated information
gained in the searches to individuals and entities engaged in litigation
against the Church (P 20). Plaintiff asserts that all of these actions were
taken "in bad faith" and for the purpose of "harassing" the Church and its
members in the exercise of their First Amendment rights (P 21), and as part of
a "continuing effort" by the Justice Department, stretching over nearly a
quarter of a century, to interfere with, and ultimately to destroy, the Church
of Scientology (PP 7-12).
FN7. Plaintiff does not in the present complaint challenge the facial
validity of the warrants used in the Los Angeles searches. Judge Byrne at
the July 21, 1980, hearing on defendants' motion to dismiss ordered the
constitutional challenge to the validity of the warrants stricken from the
Second Amended Complaint on the ground of collateral estoppel. The court
gave preclusive effect to the D.C. Circuit decision upholding the District
of Columbia warrant because the Los Angeles warrant was nearly identical.
See In re Search Warrant Dated July 4, 1977, supra.
The Church seeks at least $100 million in general damages from defendants in
their individual and official capacities, and at least $400 million in punitive
damages. The Church also seeks injunctive and declaratory relief and reasonable
attorneys' fees.
On October 20, 1980, defendants filed the present Rule 21(b) motion to
dismiss the Complaint. Defendants contend that it should be entirely dismissed
for lack of specificity and failure to state a claim upon which relief may be
granted, and that the request for injunctive relief should be stricken on
several grounds. Defendants also object to various claims and bases for
jurisdiction set forth in the complaint. Three of the individual defendants
assert personal defenses of improper service of process and/or lack of personal
jurisdiction. Defendants also assert that the Lucas decision on the Rule
41(e) motion and Judge Richey's ruling on the Scientology defendants'
suppression motion each bar plaintiff under the doctrine of collateral estoppel
from attempting to relitigate any of the allegations of the complaint.
The Court held a hearing on the motion on November 10, 1980, and submitted six
additional questions to the litigants by minute order dated November 12, 1980.
The Court held additional hearings on January 15, and March 4, 1981, before
which the litigants submitted further documents and briefing. Meanwhile, the
Department of Justice, which had not been served at the time the general motion
to dismiss the Third Amended Complaint was filed, also moved to dismiss on
February 9, 1981, on the ground that it is not a suable entity under the
doctrine of sovereign immunity. The court denied the motion at a hearing on
March 2, 1981, and the Department moved to reconsider, after which an
additional hearing was held and numerous briefs were filed. Further memoranda
were submitted in early June on the additional claim by the Department that
Plaintiff's dissemination of information claim in Paragraph 20 is barred by res
judicata.
I. LACK OF SPECIFICITY
Defendants urge the court to dismiss with prejudice under Rule 12(b)(6) the
*952 present Complaint, which they describe as a "hodgepodge of generalized
and conclusory allegations, vaguely linked to a broad claim of an illegal
search, unencumbered by any specific allegations as to what defendant did what
to whom, or where or when." Defendants' Memorandum of October 3, 1980, at 13.
[FN8] Defendants assert that the Complaint fails to satisfy the alleged
requirement of Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-
2912, 57 L.Ed.2d 895 (1978), that allegations of a constitutional violation
against federal officials in their individual capacities be pled with clear and
specific facts. Counsel for defendants also urges the court to dismiss from the
suit 13 individual defendants who are not named in the text of the Complaint
except for the allegation in Paragraph 5 that they were special agents of the
FBI at the time of the Los Angeles searches.
FN8. Defendants are particularly critical of Paragraphs 7 through 11 of
the Third Amended Complaint, which allege in very general language a wide-
ranging plan, set in motion in the mid-1950's by the Justice Department and
other agencies of the federal government, to harass and destroy the
Scientology religion. Defendants assert that these paragraphs are as
clearly defective as were the lengthy "conspiracy" and "harassment"
allegations set forth in the Second Amended Complaint.
However, plaintiff indicates that it does not seek relief from the
defendants for any period prior to 1977, and notes that the sole purpose
of including Paragraphs 7 through 11 was to provide background information
regarding the origin and nature of the "campaign" in which defendants
allegedly participated by means of the Los Angeles searches. Plaintiff's
Memorandum of October 14, 1980, at 5 n.2. The court declines defendants'
invitation to strike Paragraphs 7 through 11 as irrelevant and
inflammatory, but does intend, consistent with plaintiff's stipulation on
the record at the hearing on January 15, 1981, to limit discovery regarding
these paragraphs to only those individuals, documents, and activities which
are reasonably calculated to lead to the discovery of evidence truly
relevant to defendants' actions, motivations and plans connected with the
Los Angeles searches. See Fed.R.Civ.P. 26(b)(1).
Since Paragraphs 7 through 11 do not, as interpreted by plaintiff, purport
to state an independent cause of action upon which relief could be granted,
the court need not address defendants' statute of limitations argument.
[1][2] The court does not find merit in defendants' contentions. Nowhere in
Butz nor in any other case cited by defendants is the "short and plain
statement of the claim" standard of Fed.R.Civ.P. 8(a) made inapplicable to
Bivens actions against federal officials. An action may be dismissed for
failure to state a claim only if "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 (1957).[FN9] At most, Butz serves to remind federal courts that the existing
rules of Civil Procedure should be applied "firm(ly)" in order to ensure that
federal officials are not "harassed by frivolous lawsuits." 438 U.S. at 508,
98 S.Ct. at 2911. In similar constitutional suits against multiple governmental
defendants, the courts have not required the plaintiff to do more than apprise
defendants of the incident out of which the claim arose and the general nature
of the action, especially where, as here, the defendants' activities are covert
and thus by their nature difficult to determine. See, e.g., Founding Church
of Scientology v. Director, Federal Bureau of Investigation, 459 F.Supp. 748,
756-57 (D.D.C.1978); American Civil Liberties Union v. City of Chicago, 431
F.Supp. 25, 32 (N.D.Ill.1976). The present Complaint meets these requirements.
FN9. The Ninth Circuit authority on which the defendants rely provides no
additional support for their position. Sherman v. Yakahi, 549 F.2d 1287,
1290 (9th Cir. 1977), merely states that "conclusory allegations,
unsupported by facts" have consistently been rejected as insufficient to
state a claim under the Civil Rights Act. Accord, Kennedy v. H & M
Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976). The court in Sherman
applied the Conley v. Gibson, supra, analysis and in fact reversed in
part the district court's dismissal of the claim.
Other than to argue lack of specificity, defendants make no serious effort to
establish that any paragraph of the Complaint is legally insufficient to state
a constitutional claim. The courts have extended Bivens, supra, beyond Fourth
Amendment claims to encompass several other constitutional provisions,
including the First Amendment. *953 See, e.g., Jacobson v. Tahoe Regional
Planning Agency, 558 F.2d 928 (9th Cir. 1977); Writers Guild of America
West, Inc. v. Federal Communications Commission, 423 F.Supp. 1064
(C.D.Cal.1976). The court finds no basis at this time for striking any part of
the Complaint as failing to state a cause of action under the First and/or
Fourth Amendments.
[3] Defendants' request to dismiss the 13 defendants not referred to by name
in the substantive paragraphs of the Complaint is also denied. Defendants have
provided no authority supporting a rule of automatic dismissal of defendants
named only in the caption of a complaint, nor would such a technical rule be
consistent with the spirit of liberal notice pleading under the Federal Rules.
Both of the cases on which defendants rely, see Potter v. Clark, 497 F.2d
1206, 1207 (7th Cir. 1974) and Child v. Beame, 417 F.Supp. 1023, 1205-26
(S.D.N.Y.1976), are distinguishable from the present action.
In Potter v. Clark, the complaint alleged no specific act by any defendant,
and the court ruled that in any case the complaint must be dismissed because
the issues raised were not cognizable under the Civil Rights Act. In Child
v. Beame, the defendants who were mentioned only in the caption of the
complaint were dismissed because the complaint failed to assert the existence
of a conspiracy or to allege facts tying the moving defendants in a personal
and direct manner to the challenged action taken by the principal defendant. In
any event, the complaint is far from silent on the role of the defendants other
than those seven who are alleged in Paragraph 13 to have "directed and
supervised" the searches at the Los Angeles premises. Paragraph 12 alleges
that "all defendants" engaged in the Los Angeles searches of July 8, 1977,
and the 13 defendants named only in the caption and in Paragraph 5 are at
several places in the Complaint alleged to have been in "complicity" or
"cooperation" with the seven supervisory defendants. (PP 13, 17, 19).
II. INJUNCTIVE RELIEF
[4] Defendants urge the court to dismiss plaintiff's claims for injunctive
relief on two grounds: 1) that the Complaint lacks sufficiently specific
allegations of present or likely future harm, a necessary predicate to
injunctive relief; and 2) that any injunction that might be granted would
intrude too extensively into the discretion and flexibility that must be
accorded to law enforcement officials. Although each of these contentions
raises legitimate problems, the court believes that dismissal of plaintiff's
request for injunctive relief is unwarranted at this time.
Defendants rely upon Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d
154 (1972), which held that there must be an allegation of a "specific present
objective harm or a threat of specific future harm" in order to establish a
proper case or controversy over which a federal court has jurisdiction to
enjoin data-gathering activities by the Army. Id. at 14, 92 S.Ct. at 2326.
Paragraph 22 of the Complaint alleges that defendants will continue to engage
in the unconstitutional conduct set forth in the Complaint unless an injunction
is issued. The allegations of harm to plaintiff from dissemination of documents
to litigants against the Church, see P 20, and other actions connected with the
searches, are substantially more concrete and direct than those in Laird v.
Tatum, supra, and other cases cited by defendants which involved a mere
"subjective chill" on the exercise of constitutional rights. See Founding
Church of Scientology v. Director of FBI, supra, 459 F.Supp. at 760 (refusing
to dismiss claim for injunction against collection and utilization of certain
information brought by a class of Scientology churches, including plaintiff);
cf. Socialist Workers Party v. Attorney General, 419 U.S. 1314, 1318, 95
S.Ct. 425, 427, 42 L.Ed.2d 627 (1974) ("(w)hether the claimed 'chill' is
substantial enough is still subject to question, but that is a matter to be
reached on the merits, not as a threshold jurisdictional question.").
[5][6][7] Defendants correctly observe that courts should act with great
caution in *954 granting injunctions against law enforcement action or
surveillance. See, e.g., Long v. District of Columbia, 469 F.2d 927, 932
(D.C.Cir.1972). However, injunctive relief may be ordered against law
enforcement agencies in appropriate circumstances. See, e.g., Allee v.
Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Lyons v. City
of Los Angeles, 615 F.2d 1243 (9th Cir. 1980). Defendants have not established
that any injunctive decree that could be issued in this case would necessarily
encroach improperly on legitimate investigative activities. Nor has the Justice
Department established, as it contends in its separate motion to dismiss, that
it cannot be enjoined because its conduct relevant to this case is "committed
to agency discretion by law" and therefore is not reviewable under 5 U.S.C.
s 701(a) (2). The Department points to no statute that gives it absolute
discretion to commit the acts alleged in the Complaint, and the mere existence
of some degree of discretion does not render activity nonreviewable unless the
potential disruption of the administrative process is shown clearly to outweigh
the need for and feasibility of judicial review. See, e.g., Local 2855,
AFGE (AFL-CIO) v. United States, 602 F.2d 574, 578-80 (3d Cir. 1979); Ferry
v. Udall, 336 F.2d 706, 711 (9th Cir. 1964), cert. denied, 381 U.S. 904, 85
S.Ct. 1449, 14 L.Ed.2d 286 (1965). No such clear showing has been made.
III. BASES FOR JURISDICTION AND CONSTITUTIONAL CLAIMS
[8][9][10][11] The court has jurisdiction over this case pursuant to 28
U.S.C. s 1331, as the complaint states a Bivens cause of action under the
Federal Constitution. The complaint sets forth numerous other bases for
jurisdiction, but the court agrees with defendants that none is valid, and
orders them stricken from the Complaint. Plaintiff's assertion of jurisdiction
under 28 U.S.C. s 1343(4) is improper because plaintiff has stated no claim
for relief under any act of Congress for the protection of civil rights.
Jurisdiction does not lie under the Administrative Procedure Act, 5 U.S.C. s
551 et seq., because that act "does not afford an implied grant of jurisdiction
permitting federal judicial review of agency action." Califano v. Sanders,
430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977). Nor does the
Declaratory Judgment Act, 28 U.S.C. ss 2201 and 2202, provide an independent
basis for federal jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667, 671-72, 70 S.Ct. 876, 878-879, 94 L.Ed. 1194 (1950). Plaintiff's
reliance on the mandamus statute, 28 U.S.C. s 1341, is also unavailing
because mandamus does not lie in this case. Plaintiff does not seek to compel
the execution of a ministerial, nondiscretionary act, the duty to perform which
is so plainly prescribed as to be free from doubt. See Lee Pharmaceuticals
v. Kreps, 577 F.2d 610, 618 (9th Cir. 1978), cert. denied, 439 U.S. 1073, 99
S.Ct. 847, 59 L.Ed.2d 40 (1979).
[12] Defendants also contend that plaintiff lacks even an arguable basis for
asserting a violation of its Fifth and Ninth Amendment rights.[FN10] Plaintiff
has provided no authority or hint as to how its Fifth Amendment rights to due
process or equal protection, or its Ninth Amendment rights, may have been
infringed. Since plaintiff's claims appear to be adequately encompassed by the
First and Fourth Amendments, the court orders stricken from the Complaint any
mention of the Fifth and Ninth Amendments.
FN10. The Fifth Amendment to the United States Constitution provides that
no person shall "be deprived of life, liberty, or property, without due
process of law," and has been interpreted to incorporate the equal
protection clause of the Fourteenth Amendment in suits against federal
agencies and officers. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98
L.Ed. 884 (1954). The Ninth Amendment states that "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
IV. COLLATERAL ESTOPPEL EFFECT OF THE LUCAS DECISION
[13] In order to have collateral estoppel effect in a subsequent action, an
issue of fact or law must be actually litigated and determined by a valid and
final judgment, *955 and the determination of the issue must be essential to
the judgment. Hoag v. New Jersey, 356 U.S. 464, 470, 78 S.Ct. 829, 833, 2
L.Ed.2d 913 (1958); Haize v. Hanover Ins. Co., 536 F.2d 576, 579 (3d Cir.
1976); Restatement (Second) of Judgments s 68 (Tentative Draft No. 4, 1977).
Plaintiff contends that Judge Lucas' dismissal of its Fed.R.Crim.P. 41(e)
action fails to satisfy the final judgment requirement for collateral estoppel.
It urges that his decision must be appealable in order to have preclusive
effect in this action, and raises doubts about its appealability in view of its
past unsuccessful efforts to appeal. The Ninth Circuit has twice dismissed
appeals from the Lucas decision for lack of appellate jurisdiction, once after
the indictment of eleven Scientology defendants in the District of Columbia,
Church of Scientology v. United States, 591 F.2d 533 (9th Cir. 1979), cert.
denied, 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d 729 (1980), and later,
without opinion, after nine of the defendants were convicted.
Defendants, without offering any reasons for appealability, merely surmise
that Judge Lucas' decision "may" be appealable while repeatedly asserting that
appealability does not matter. They contend that the decision on the 41(e)
motion is "final" for purposes of collateral estoppel, if not for purposes of
appeal, since it is not tentative in any way and fully disposes of the Church's
claim for the return of its property.
[14] The court disagrees. It concludes that the Lucas decision cannot be
invoked as collateral estoppel unless it is appealable, and further that the
decision does not appear to be appealable under the relevant caselaw and policy
considerations. The court also believes that the Lucas decision fails to
satisfy the actually litigated and full and fair opportunity to litigate
standards required for issue preclusion.
A. Importance of Appealability
Defendants cite some authority suggesting that appealability may not be
essential to giving a prior judgment preclusive effect, see Lummus Co. v.
Commonwealth Oil Refining Co., 297 F.2d 80 (2d Cir. 1961), cert. denied, 368
U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962); Sherman v. Jacobsen, 247
F.Supp. 261 (S.D.N.Y.1965).[FN11] Although the issue presents "(l)ive and
difficult questions," 1B Moore's Federal Practice, supra, P 0.416(6), at
2325, this court concludes that the Lucas decision should not collaterally
estop plaintiff from relitigating the legality of the search and seizure unless
it is now or will at some future time be appealable.
FN11. The court notes that in both of these cases the prior decision was
appealable, and thus the language suggesting that appealability is only a
factor to be considered and not a prerequisite to collateral estoppel is
dicta. In Lummus Co., supra, the court noted that the prior judgment had
in fact been litigated on appeal, even though in the typical case the order
entered would not have been appealable. 297 F.2d at 90. In Sherman,
supra, the court recognized that an opportunity to appeal the prior
decision "will one day materialize." 247 F.Supp. at 270.
In support of this view, plaintiff cites Standefer v. United States, 447
U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). In that case, the Supreme Court
relied heavily upon the absence of an opportunity for appellate review to
reject the argument of a convicted aider and abettor that the criminal
complaint against him was barred under the doctrine of collateral estoppel by a
prior acquittal of the principal. The Court stated that the inability of the
Government to obtain appellate review and to utilize certain other procedural
devices for correcting errors "strongly militates against" giving a prior
acquittal preclusive effect, citing the Restatement (Second) of Judgments s
68.1 (Tentative Draft No. 3, 1976), which denies preclusive effect to any
judgment "unreviewable as a matter of law." 447 U.S. at 23, 100 S.Ct. at
2007. The Court noted that the absence of appellate review makes "often
unwarranted" an underlying premise of the estoppel doctrine-a basic confidence
that the result achieved in the initial litigation was substantially correct.
Id. at 23 n.18, 100 S.Ct. at 2007 n.18.[FN12]
FN12. The Standefer Court specifically refrained from ruling that the
availability of appellate review is always an essential predicate of
estoppel, citing Johnson Co. v. Wharton, 152 U.S. 252, 14 S.Ct. 608, 38
L.Ed. 429 (1894), and 1B Moore's Federal Practice, supra, P 0.416(5).
447 U.S. at 23 n.18, 100 S.Ct. at 2007 n.18. But the exceptions
recognized in these authorities are not applicable here. In Johnson Co.
v. Wharton, the plaintiff sought to preclude relitigation of the defense of
noncoverage of a patent and license agreement in a second action against a
licensee to recover royalties. The Court gave preclusive effect to the
prior judgment of the circuit court, the original trier of fact, even
though it had not been appealable to the Supreme Court because the
jurisdictional amount required by statute was lacking. 152 U.S. at 261,
14 S.Ct. at 611.
The Johnson Co. v. Wharton analysis is primarily applicable to claims of
res judicata, involving causes of action that are essentially identical. 1B
Moore's Federal Practice, supra, P 0.416(5), at 2301 (noting that in
Johnson Co. v. Wharton the plaintiffs had split virtually identical
claims into separate actions). Where only collateral estoppel and not res
judicata may be asserted because the causes of action are not identical,
see id. P 0.405(3), a prior nonappealable judgment is conclusive as to
issues previously litigated only if appeal of the second action is also not
permitted by statute. Id. P 0.416(6), at 2325-26. To reach a contrary
result would frustrate legislative intent in providing a right of appeal in
the second action.
Thus, the Johnson Co. v. Wharton exception noted by the Court does not
apply here, where the Lucas decision is asserted only as collateral
estoppel and not res judicata, and where no statute precludes appeal from
the prior determination or from a decision in this action. See also 18
Wright, Miller & Cooper, Federal Practice and Procedure s 4433, at 320-21 &
n.39 (1981) (exception may apply where special factors may explain lack of
appellate review). Defendants in the present action have not relied on the
doctrine of res judicata for good reason. The causes of action in the two
proceedings, although raising some of the same Fourth Amendment issues, are
different in that 1) the Rule 41(e) motion concerned the legality of the
seizure of particular documents, whereas the present action concerns the
legality of the search and seizure operation as a whole; and 2) the
defendant in the 41(e) action was the United States, and here defendants
are alleged to be certain of the individual Government agents involved in
the Los Angeles searches.
*956 In addition, plaintiff invokes the well-settled rule that a prior
judgment does not preclude relitigation of issues it determined if the right to
appeal that judgment was destroyed by events beyond the control of the losing
litigant, i.e., the appeal became moot. See 1B Moore's Federal Practice,
supra, P 0.416(1), at 2203. The only external event which had an effect on
the right to appeal the 41(e) decision was the Government's action in indicting
eleven members of the Church two months after Judge Lucas issued his ruling. As
the Church did not voluntarily destroy its right to appeal, it would be unfair
to invoke the 41(e) ruling against it in view of the "critical" importance that
the opportunity to appeal has assumed in the law of collateral estoppel. See
Standefer v. United States, supra; Restatement (Second) of Judgments s 68.1
(Tentative Draft No. 4, 1977) & comment a; Dorsey v. Solomon, 435 F.Supp.
725, 741-42 (D.Md.1977), modified on other grounds, 604 F.2d 271 (4th Cir.
1979).[FN13]
FN13. Several other well-established rules of collateral estoppel
highlight the importance of appealability. For example, a prior judgment is
conclusive of only those issues whose determination supports the judgment,
since the prevailing litigant does not generally have the opportunity or
incentive to appeal issues adjudicated against it. 1B Moore's Federal
Practice, supra, P 0.443(5), at 3922-23. Once an appeal of a decision
resting on alternative grounds is decided, the judgment is conclusive of
only those issues reached and affirmed by the appellate court. Id. at
3921.
In addition, although concepts of "finality" are not precisely the same for
collateral estoppel and appealability purposes, the two are "closely
related." Id. P 0.416(3), at 2251. To the extent that they diverge,
the finality requirement for appealability is generally easier to satisfy,
as, for example, a number of interlocutory decisions may be appealed but
may not be given preclusive effect in subsequent actions. See id.;
Restatement (Second) of Judgments s 41 (Tentative Draft No. 1, 1973),
comment b (finality for issue preclusion purposes resembles the more
restrictive formulation of the concept of finality formerly used in
connection with appellate review).
Furthermore, giving preclusive effect to the Lucas decision would be
inconsistent with the Supreme Court's decision in United States v. Wallace &
Tiernan Co., 336 U.S. 793, 69 S.Ct. 824, 93 L.Ed. 1042 (1949). That case was a
civil antitrust action in which defendants sought to invoke as res judicata a
suppression order in a prior criminal action. The district court in that prior
action had dismissed the criminal indictments *957 and suppressed and
returned the subpoenaed documents and copies because women had been excluded
from the grand jury. The Supreme Court found that the order was not intended to
apply beyond the criminal matter with respect to which it was entered, but even
if it was, the Court held that the prior order could not be treated as final
for purposes of res judicata since the prior decision was not appealable as it
was not litigated as "an independent plenary proceeding." As discussed in the
next section, the Court believes that the 41(e) petition before Judge Lucas
similarly lacks sufficient characteristics of independence to be treated as
appealable or be given preclusive effect.
B. Appealability of the Lucas Decision
In dismissing the Church's appeal for lack of appellate jurisdiction, the
Ninth Circuit in Church of Scientology v. United States, supra, carefully
avoided deciding whether Judge Lucas' ruling may someday be appealable. The
court was troubled by the fact that the action was brought by the Church
itself, against which there has not yet been any indictment. See 591 F.2d at
535. In the absence of an indictment against the Church, the question arises
whether the Church would ever have an alternative means-including an
opportunity to appeal-of seeking the return of its documents, since the normal
procedure of seeking return by a motion in a pending criminal proceeding might
not be available.
The Ninth Circuit cited United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580,
29 L.Ed.2d 85 (1971), in which the Court recognized an exception to the rule,
see DiBella v. United States, supra, of not disturbing ongoing criminal
proceedings with interlocutory appeals for a limited class of cases where
denial of immediate review would render impossible any appellate review of an
individual's claims for return of seized property. 591 F.2d at 536. Denial
of review when there is no criminal prosecution pending against the moving
party could mean that the Government might retain indefinitely the property
without any opportunity for the movant to assert on appeal his right to
possession. 402 U.S. at 533, 91 S.Ct. at 1582. Obviously concerned about the
impact of Ryan on a possible future appeal of Judge Lucas' decision, Judge
Duniway concluded by stating that:
Our decision that the order appealed from is not appealable is not free from
doubt, for the reasons stated by Mr. Justice Brennan in United States v.
Ryan, supra. There must, at some time, be a remedy available to the Church for
the return of its property, if it has been unlawfully taken. But the present
appeal is not that remedy. We decide nothing more.
Appeal dismissed.
591 F.2d at 537.
It could be argued that the Lucas decision will become appealable at some
future date when the criminal litigation is completed, because at that point
there would no longer be any concern about interfering with an ongoing criminal
proceeding. Clearly, the concern with interruption of criminal litigation is
one of the reasons why the immediate appeal from the 41(e) ruling was denied by
the Ninth Circuit. The principal case that the Ninth Circuit relied upon was
DiBella v. United States, supra, in which the Supreme Court held that a pre-
indictment Rule 41(e) motion was not normally appealable because such an
appeal may be used as "an instrument of harassment" that could seriously
disrupt the criminal proceedings. 369 U.S. at 129, 82 S.Ct. at 659. After
citing numerous cases following DiBella, the Ninth Circuit stated that:
The principle that runs through all of these authorities is that an ongoing
criminal proceeding is not to be interrupted by an appeal from an order denying
suppression of evidence that may be used in that proceeding. This is such a
case.
591 F.2d at 536.
However, the potential for disruption of pending criminal proceedings is not
the only reason why pre-indictment Rule 41(e) motions are generally not
appealable. The Supreme Court has consistently held that the appealability of a
petition for suppression and/or the return of documents depends *958 on "its
essential character and the circumstances under which it is made," i.e.,
whether the proceeding is "independent" or "merely a step in the trial of the
criminal case." See DiBella v. United States, supra, 369 U.S. at 129-31, 82
S.Ct. at 659-660; Carroll v. United States, 354 U.S. 394, 404 & n.17, 77
S.Ct. 1332, 1338 & n.17, 1 L.Ed.2d 1442 (1957); United States v.
Wallace & Tiernan Co., supra, 336 U.S. at 802, 69 S.Ct. at 829; Cogen v.
United States, 278 U.S. 221, 225, 49 S.Ct. 118, 119, 73 L.Ed. 275 (1929). The
Court in DiBella characterized as "truly interlocutory" pre-indictment
Rule 41(e) motions directed at the suppression of evidence, and noted that
the filing of such a motion at a very early stage of the criminal proceedings
does not by itself "transmute the ensuing evidentiary ruling into an
independent proceeding begetting finality even for purposes of appealability,"
let alone for issue preclusion purposes. 369 U.S. at 131, 82 S.Ct. at 660.
In examining the character of a Rule 41(e) proceeding to determine if it is
appealable, the DiBella Court focused on two criteria. The Court held that:
Only if the motion is solely for the return of property and is in no way tied
to a criminal prosecution in esse against the movant can the proceedings be
regarded as independent.
369 U.S. at 131-32, 82 S.Ct. at 660. The Ninth Circuit in Church of
Scientology v. United States, supra, quoted this language, and several
decisions have interpreted it literally to require dismissal of an appeal if
there was any attempt in the motion to suppress evidence or any connection with
a pending criminal proceeding, including a grand jury investigation. See,
e.g., Meier v. Keller, 521 F.2d 548, 556 (9th Cir. 1975), cert. denied,
424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976); Parrish v. United
States, 376 F.2d 601, 603 (4th Cir. 1967) (Boreman, J., concurring); Hill v.
United States, 346 F.2d 175, 178 (9th Cir.), cert. denied, 382 U.S. 956, 86
S.Ct. 433, 15 L.Ed.2d 361 (1965).[FN14] Other authorities suggest that an
appellate court may be less strict about requiring that the 41(e) action be
absolutely separate from any criminal proceedings. But these authorities also
require dismissal of an appeal from a Rule 41(e) decision where suppression
was the primary if not the exclusive objective of the action. See Carroll v.
United States, supra, 354 U.S. at 404 & n.17, 77 S.Ct. at 1338 & n.17; Cogen
v. United States, supra, 278 U.S. at 228, 49 S.Ct. at 120; Dudley v. United
States, 427 F.2d 1140, 1141 (5th Cir. 1970).
FN14. Two Ninth Circuit decisions following DiBella indicate that the
denial of a Rule 41(e) petition does not necessarily become appealable
upon the termination of a pending criminal proceeding, the existence of
which had previously required dismissal of an appeal. In Hill v. United
States, supra, the court held that the denial of a 41(e) petition was not
appealable even though there was no longer any pending criminal matter
because a change in the law barred further prosecution of the moving party.
The court ruled that the motion was interlocutory in character because it
had been directed at suppressing evidence in any possible future
prosecution. Id. at 177-78. In Goodman v. United States, 369 F.2d
166 (9th Cir. 1966), the Ninth Circuit suggested that a proceeding for
suppression and return of documents is independent and appealable only if
"there is, and has been, no criminal case pending in any stage" to which it
was closely tied. Id. at 168 (emphasis added).
There can be little doubt that the suppression objective and the relationship
to the pending criminal proceedings in the District of Columbia had a pervasive
effect on the conduct of the Rule 41(e) litigation. As the Ninth Circuit
stated in dismissing the first appeal,
The petition or motion here did not and does not seek only the return of the
property. It expressly seeks suppression of evidence, and is avowedly aimed at
suppressing evidence in grand jury, extradition, and other criminal
proceedings.
Church of Scientology v. United States, supra, 591 F.2d at 537. The court
had earlier indicated that:
Throughout the proceedings in the District Court in the case at bar, the
Church has made it clear that the principal reason for its motion has been and
is to prevent the use of any of the seized papers for the purpose of obtaining
indictments *959 against either the Church or its officials or employees.
Id. at 534.[FN15] Because of the suppression objective and the close
connection with the pending criminal proceedings in the District of Columbia,
the court believes that the Church's 41(e) motion is not a sufficiently
"independent" proceeding to be appealable or capable of collateral estoppel
effect in the present action.[FN16]
FN15. Plaintiff now contends that the Ninth Circuit's characterization of
the 41(e) action is "inaccurate" in that the primary purpose of the Church
was to prevent a further invasion of privacy by seeking return of its
documents. Plaintiff's Memorandum of February 27, 1981, at 8-9. But the
Church itself in its opening brief to the Ninth Circuit urged that mere
return of the documents would not be a sufficient remedy, since only their
suppression could prohibit the Government from making any use whatsoever of
the documents or the information contained in them. Brief of the Church of
Scientology of California, Church of Scientology v. United States,
supra, at 65. Furthermore, Judge Lucas stated that
As the Petitioner has a copy of the documents, the principal purpose of
this action is to determine whether the Government will be free to use the
documents in possible future criminal proceedings.
Lucas decision at 3.
FN16. This conclusion is further supported by an examination of the
reasons for the DiBella criteria for appealability. Rulings on specific
items of evidence tend to be "disjointed" in a preindictment Rule 41(e)
proceeding because the legality of the search as to that evidence cannot
truly be determined until the evidence in the case is sufficiently
developed and organized to bring all relevant circumstances to light.
DiBella v. United States, supra, 369 U.S. at 129, 82 S.Ct. at 659.
Permitting appeals of such proceedings would lead to a "truncated" and
"premature and inadequate" discussion of admissibility by the appellate
court. Id. at 129, 132, 82 S.Ct. at 659, 660. Important preliminary
issues such as standing also might not receive proper focus. See Church
of Scientology v. United States, supra, 591 F.2d at 537 ("(s)uppression at
the behest of the Church would be an abuse of Rule 41(e) (because it
would benefit individuals who may not, in fact, have Fourth Amendment
standing, see United States v. Hubbard, supra, 493 F.Supp. at 215) and
is an additional reason to deny appealability.").
Finally, it may be argued that the possible unavailability of an alternative
remedy, permitting appeal, for the return of the Church's documents requires
that an appeal of Judge Lucas' decision someday be permitted. See United
States v. Ryan, supra. However, the court believes that a decision of the D.C.
Circuit last year substantially lessens the basis for the Ninth Circuit's
concern about the availability of an alternative remedy.
In appeals from Judge Richey's denial of several post-trial motions by the
Church, the D.C. Circuit ruled that the district court had ancillary
jurisdiction to entertain the Church's motion for return of property, even
though it was not a party to the criminal proceedings. See United States v.
Hubbard, 650 F.2d 293 at 307, 310 (D.C.Cir.1980). The court vacated and
remanded Judge Richey's decision to make public all the documents seized,
whether or not used in the criminal litigation, id. at 325, and in a
supplemental opinion filed February 9, 1981, ordered most of the documents to
remain sealed based on the "privacy" interests of the Church. In the course of
its opinion the D.C. Circuit appeared to assume that the Church would be
entitled to return of the documents, regardless of the validity or invalidity
of the underlying search and seizure, upon bringing a motion in the district
court as soon as the evidentiary utility of all of the documents is exhausted.
See id. at 302, 310.
C. Additional Problems
The Lucas decision does not appear to satisfy two additional prerequisites for
invoking collateral estoppel. First, it appears that the Church's contentions
that the scope of the search went far beyond the terms and geographic confines
of the warrant were not "actually litigated." See 1B Moore's Federal Practice,
supra. Although the 41(e) hearings were continued for several months in order
to permit the Church to prepare its evidence on these issues, the Church
introduced no such evidence. Judge Lucas denied the Church's request for a
further continuance, observing that the Church had "abandoned" its prior
contentions *960 and unveiled a "completely new theory" based upon a failure
to minimize the intrusion. Lucas decision at 7-8, 24 n.10. Given the extensive
evidence later introduced in support of the suppression motion before Judge
Richey regarding the number of documents seized beyond the terms and geographic
confines of the warrant, it would be unfair to preclude plaintiff from raising
these issues here based upon a ruling on which no evidence was introduced.
Second, by virtue of the nature of 41(e) proceedings, Plaintiff does not
appear to have had a "full and fair opportunity" to litigate its Fourth
Amendment contentions before Judge Lucas, an opportunity which the Supreme
Court has repeatedly emphasized in recent years. See, e.g., Standefer v.
United States, supra, 447 U.S. at 22, 100 S.Ct. at 2007 (1980); Montana v.
United States, 440 U.S. 147, at 164, 99 S.Ct. 970, at 979, 59 L.Ed.2d 210
(1979); Parklane Hosiery Co. v. Shore, 439 U.S. 320, at 332, 99 S.Ct.
644, at 652, 58 L.Ed.2d 549 (1979). Plaintiff's Fourth Amendment claims were
litigated far less extensively before Judge Lucas than they were before Judge
Richey. In the 41(e) action before Judge Lucas approximately 12 FBI agents and
three members of the Church testified in the course of several days of hearings
on the execution of the search. The suppression hearing before Judge Richey
covered six full weeks, divided between Washington, D.C., and Los Angeles,
and the transcript is over 8,000 pages long. The Scientology defendants called
5 witnesses and introduced 701 exhibits; they presented to Judge Richey two
major studies of the number and variety of documents seized outside of the
warrant and the plain view exception. United States v. Hubbard, supra, 493
F.Supp. at 233-34.
By contrast, the Church in the 41(e) action conducted no discovery, even
though it was a civil action, as Judge Lucas ruled initially that there was no
authority for discovery under Rule 41(e), and the Church made no subsequent
attempt to pursue discovery. Lucas decision at 26 n.12. The absence of
litigation over the extent of documents seized outside the warrant and the
absence of an opportunity to appeal also preclude a finding that the Church's
Fourth Amendment contentions were "fully and fairly" litigated in the 41(e)
proceeding.[FN17]
FN17. The importance of the fullness and fairness of the litigation
asserted as estoppel is accentuated by the fact that defendants to the
present action were not parties to the 41(e) action. The doctrine of
mutuality of estoppel once required that one who invokes the conclusive
effect of a judgment have been either a party or a privy to the suit in
which the judgment was rendered. 1B Moore's Federal Practice, supra, P
0.412, at 1801. Although use of the mutuality doctrine in the federal
courts has been eliminated, Allen v. McCurry, 449 U.S. 90, 101 S.Ct.
411, 415, 66 L.Ed.2d 308 (1980), it remains proper to give greater weight
to concerns about the fairness of using a prior decision as collateral
estoppel where, as here, the party asserting estoppel was not a party to
the prior action. See Standefer v. United States, supra, 447 U.S. at 22-
24, 100 S.Ct. at 2007-2008; Restatement (Second) of Judgments s 88
(Tentative Draft No. 3, 1976), comment b.
V. COLLATERAL ESTOPPEL EFFECT OF THE RICHEY DECISION
The nine Scientology defendants vigorously and extensively litigated their
Fourth Amendment contentions in a suppression motion before Judge Richey in the
District of Columbia. The court rejected these arguments, finding that "(o)
verall, the FBI agents who executed the warrants at issue in this case
performed a very difficult job in a most reasonable manner." United States
v. Hubbard, supra, 493 F.Supp. at 234. In reaching its ultimate conclusion of
reasonableness, the court found that the agents had adequate preparation and
supervision for the searches, did not use excessive force, did not exceed the
geographical bounds of the warrant, and did not seize an unreasonable number of
documents outside of the terms of the warrant and not within the "plain view"
exception to the warrant requirement. Id. at 219-34.
Plaintiff offers numerous arguments against the use of Judge Richey's ruling
on the suppression motion as collateral estoppel. It places primary emphasis on
asserting the absence of two essential elements of collateral estoppel: 1) lack
of sufficient *961 identity of the Scientology defendants and plaintiff, one
of several assertedly "different" and "independent" churches of the Scientology
faith; and 2) that Judge Richey's findings of no Fourth Amendment violation are
not "essential to the judgment" in the District of Columbia criminal action.
Although the court finds little merit in plaintiff's other contentions,[FN18]
the court agrees with the Church that its two primary arguments preclude the
Richey decision from having any preclusive effect in the present action.
FN18. Plaintiff's assertion that the motion to suppress was merely a
"procedural step" in the litigation which cannot be accorded preclusive
effect lacks merit because the denial of the suppression motion was
incorporated in the final judgments of conviction. Plaintiff's contention
that differences in procedure and rules of evidence justify a refusal to
permit issue preclusion in a civil case based upon a criminal judgment is
also unpersuasive, since numerous courts have used the denial of a criminal
suppression motion prior to conviction as a bar to civil suits against
police officers for violation of civil rights. See, e.g., Allen v.
McCurry, supra, 101 S.Ct. at 414; Manis v. United States, 467 F.Supp.
828 (E.D.Tenn.1979).
Plaintiff also urges that the Richey decision should not preclude the
Church from relitigating any of the issues connected with the search and
seizure because the allegations of bad faith and intent to interfere with
First Amendment rights (see PP 12, 13 & 21) render the issues in the
present suit fundamentally different from those litigated in the
suppression motion. Plaintiff relies on Brubaker v. King, 505 F.2d 534
(7th Cir. 1974), for the proposition that a constitutional claim may be
asserted against an officer for acting in bad faith even though a prior
decision has held that the conduct itself was lawful. In Brubaker, the
court refused to dismiss a civil claim for unlawful arrest in spite of a
magistrate's finding of objective probable cause for arrest. Id. at 538
n.2. But in Allen v. McCurry, supra, the Supreme Court expressly
disapproved of the result in Brubaker, stating that "a state court
decision that the police acted legally cannot but foreclose a claim that
they acted in bad faith." Plaintiff's addition of a bad faith gloss to its
essentially Fourth (and thus not First) Amendment claims (which do not
include, in the court's opinion, Paragraphs 17, 18 and 20 of the Complaint)
thus has no bearing on whether the Richey decision has collateral estoppel
effect in the present action.
A. Identity of Parties
[15][16][17][18] Defendants set forth two theories for binding the Church
even though it was not a party to the criminal proceedings in the District of
Columbia:
1) that the Church behind the scenes effectively controlled the Scientology
defendants' conduct of the litigation, see Montana v. United States, 440
U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); and
2) that a sufficient identity of interests exists between the California
Church and the nine Scientology defendants, many of whom at the time of the
searches and their trial were top officials of the Church, to bring the Church
in privity with them. The court believes that defendants have failed to carry
their burden on both theories, each of which involves significant factual
issues.
1. Control by a nonparty
Nonparties may be bound to the results of a prior litigation in which they had
a direct financial or proprietary interest and over which they assumed a
sufficient degree of control and participation. Montana v. United States,
supra, 440 U.S. at 154-55 & n., 99 S.Ct. at 974 & n. (control theory as
analytically distinct from privity); Restatement (Second) of Judgments s 83
(Tentative Draft No. 2, 1975); 1B Moore's Federal Practice, supra, P
0.411(6). Exercise of control is a question of fact to be proved affirmatively
by the party invoking the conclusive forces of the judgment. Id. at 1566-67.
The Government defendants assert that "(i)t is logical to assume" that the
Church paid for the attorney's fees and the costs of defending its officers and
members before Judge Richey, and that the Church had significant influence on
the way in which their defense was conducted. They note that many of the nine
Scientology defendants were prominent decisionmakers in the Church as a whole,
including Mary Sue Hubbard, who is the wife of the founder of the Church of
Scientology, Ronald Hubbard, and its "Commodore Staff Guardian," and Henning
Heldt, who has been described by his counsel as "the highest administrative
official of the Church of Scientology in *962 the United States." The
Government defendants also request the court to infer control of the litigation
by the Church because certain of the large contingent of attorneys for the nine
Scientology defendants have also represented either the California or Founding
Churches of Scientology in related proceedings not including the present
action.
The court is not willing to entertain such assumptions. Defendants have made
no real effort to establish with probative evidence that the Church had a
sufficient "laboring oar" in the criminal proceeding to activate principles of
estoppel, see Montana v. United States, supra, 440 U.S. at 155, 99 S.Ct. at
974, and thus the control theory for binding the Church to the ruling on the
suppression motion must be denied for lack of proof.
2. Privity
Issue preclusion has long been available where the party against whom the
prior decision is asserted is not identical to the losing party in the prior
action, but nevertheless has a sufficient identity with that party to be deemed
its "privy". See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99
S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). Privity for estoppel purposes is a
creature of particular circumstances which may be described by a variety of
terms, including "substantial identity," see Chicago, R. I. & P. Railway Co.
v. Schendel, 270 U.S. 611, 618, 46 S.Ct. 420, 423, 70 L.Ed. 757 (1927), and
status as a "virtual representative," see Performance Plus Fund v.
Winfield & Co., 443 F.Supp. 1188, 1191 (N.D.Cal.1977). Whatever the label, the
fundamental issue is whether the party against whom estoppel is asserted has a
sufficient identity of interests with the losing litigant in the prior suit to
make the assertion of judicial finality consistent with fairness to all
litigants involved. The question is factual, and one of substance, not form.
Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir. 1977);
Aerojet General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. denied,
423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975).
The privity issue in this case is a difficult one because the Ninth Circuit's
opinion in Church of Scientology v. United States, supra, 591 F.2d at 537,
and the position taken by the Scientology defendants and the Church in
documents filed in other actions which the parties have inserted into the
record in this case, do contain language suggesting that there might be an
identity of interests between plaintiff and the nine Scientology defendants.
Curiously, however, after the initial hearing on the present motion, the
Government defendants explicitly abandoned their assertion of privity in favor
of exclusive reliance on the Montana v. United States, supra, theory of
control by a nonparty. In response to the Court's question regarding the
application of legal precedents to the privity issue, see Minute Order of
November 12, 1980, the defendants argued that "the test for use of collateral
estoppel is not privity" but rather whether the party to be estopped had a
sufficient "laboring oar" in the prior suit. Defendants' Memorandum of January
14, 1981, at 7. As a result, the court declines to find privity on the present
motion because defendants have failed to carry their burden as moving parties
of proving that the ties between the California Church and the Scientology
defendants are sufficient to meet the legal standards for privity.
A finding of privity in the circumstances of this case would be a novel result
for which the court has found no analagous precedent. Many cases hold that as a
prerequisite for privity the party in the prior litigation must have express or
implied authority to represent the interests of the party to be bound. See,
e.g., Ellentuck v. Klein, 570 F.2d 414, 425 (2d Cir. 1978); 1B Moore's
Federal Practice, supra, P 0.411(1), at 1253-54 & n.14. The Government
defendants have not established the existence of such authority, nor have they
shown that the due process requirements of notice and full and fair opportunity
to litigate were afforded the Church through the defendants in the criminal
litigation. See Performance Plus Fund v. Winfield & Co., supra, 443 F.Supp.
at 1191; 1B Moore's Federal Practice, supra, P 0.411(1), at 1252.
*963 Nor have defendants attempted to prove the extent and nature of any
"direct" interest the Church itself might have had in the proceedings before
Judge Richey. See Davis v. Eide, 439 F.2d 1077 (9th Cir. 1971) (findings for
defendant in prior criminal action on consent to entry and probable cause for
arrest issues could not be asserted against police officers in subsequent civil
rights action for lack of privity because officers had no measure of control
over criminal proceedings and had no "direct individual personal interest" in
its outcome).
Furthermore, Judge Byrne has ruled in this case that the Church has standing
to seek monetary damages only on its own behalf, and not on behalf of its
members. Minute Order of July 21, 1980; see Hunt v. Washington State Apple
Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). This
ruling suggests that the Church is a jural entity distinct from its members,
which is a key factor in determining whether or not privity exists. See, e.g.,
Restatement (Second) of Judgments s 110 (Tentative Draft No. 4, 1977)
(unincorporated associations); id. s 108, comment a (judgment in action to
which corporation is a party does not generally bind or redound to benefit of
shareholders, directors, or officers since corporation is for most purposes
treated as a distinct jural person). Defendants have not persuasively responded
to plaintiff's assertion that, as in the corporate context, the Church and its
officers cannot be deemed to be in privity in the absence of an "alter ego"
relationship that has not been demonstrated on the present record. See, e.g.,
Dudley v. Smith, 504 F.2d 979, 982 (5th Cir. 1974).
B. Not Essential to the Judgment
[19] Plaintiff also argues that Judge Richey's findings cannot preclude
relitigation here of its Fourth Amendment claims because those findings fail to
meet the "essential to the judgment" requirement for issue preclusion. See
Hoag v. New Jersey, 356 U.S. 464, 470, 78 S.Ct. 829, 833, 2 L.Ed.2d 913
(1958); Segal v. American Telephone & Telegraph Co., 606 F.2d 842, 845 n.2
(9th Cir. 1979). The court agrees, although its reasoning has changed in light
of the D.C. Circuit's affirmance of the convictions of the nine Scientology
defendants in a per curiam opinion issued October 2, 1981.
Plaintiff points out that Judge Richey's rulings on the merits of the
Scientology defendants' Fourth Amendment contentions were not the sole bases
for his denial of the motion to suppress. The defendants did not make the
traditional argument that the particular evidence to be used against them at
trial was unlawfully seized and therefore should be suppressed under the
exclusionary rule. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49
L.Ed.2d 1067 (1976). Judge Richey noted that defendants made very little, if
any, effort to challenge directly as not described in the valid warrant and
therefore improperly seized any of the 201 documents the prosecution had
earmarked for use in its case-in-chief. United States v. Hubbard, supra, 493
F.Supp. at 221, 234. Thus, defendants' only theory for suppressing the 201
case-in-chief documents was to argue that the Los Angeles searches went so far
beyond permissible bounds as to constitute a "general" or "exploratory" search
which required the exclusion of all documents seized therein. Id. at 221-22.
After extensive analysis of the caselaw, the court seemingly reached two legal
conclusions which "convincingly undermined" defendants' general search theory
for total suppression. Id. at 213. Each provided a sufficient basis for
denial of the motion to suppress the 201 documents without any factual inquiry
into the lawfulness of the execution of the Los Angeles warrants. First, the
court ruled that only four of the nine Scientology defendants had standing to
assert their Fourth Amendment rights against the search, and that the rights of
the four were limited to evidence to be used against them which was seized from
their own respective offices. Id. at 215. Thus, because of the limited scope
of defendants' "reasonable expectation of privacy" under Rakas v. Illinois,
439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the court permitted only a
very small percentage of the documents *964 seized from over 40 offices and
other areas to be subject to challenge in the suppression motion, the
consequence of which would apparently be to impair significantly defendants'
efforts to argue that the searches as a whole were unreasonable.
Second, the court appeared to reject defendants' legal theory for suppression
of the only evidence at issue, the lawfully seized case-in-chief documents. The
court carefully distinguished all five cases which the Scientology defendants
cited in support of their theory for total suppression. 493 F.Supp. at 222-
24. Judge Richey concluded, after citing a number of cases contrary to
defendants' position, that even the cases relied upon by the defendants show
that "where the warrant is valid, and severability (of the validly and
invalidly seized items) is possible, only material which has been illegally
seized is suppressed." Id. at 224.
However, the court went on to cite two district court cases not relied upon by
defendants which suggest, in dicta, that "at some point an entire search may
become so unreasonable that its unreasonableness infects the seizure of each
and every item asported." Id. Thus, despite the court's prior analysis of
the standing and scope of exclusionary rule issues, it undertook to examine at
length "the reasonableness of the entire search to be completely certain that
justice is done in this case." Id. In fact, the court's analysis of the
facts went beyond what was called for by the theory of the two district court
cases it cited and defendants' theory for total suppression that the search and
seizure were so unreasonable as to be a "general search" in total disregard of
the warrant. The court applied the general "reasonableness" standard to the
defendants' specific Fourth Amendment objections to the searches, id. at
225, rejecting each one with a finding that the Government agents acted
reasonably and in good faith. Id. at 228, 231, 234. The court framed its
conclusions as broadly as possible. It concluded not only that the search was
not "general" or "exploratory," but that there was "no illegality in the
actions of the government agents who executed the warrants at issue." Id. at
211.
This court by its order of June 23, 1981, denied the Government defendants'
motion with respect to the assertion of the Richey decision as collateral
estoppel because of their failure to establish sufficient identity of parties
and because the court believed that Judge Richey's findings of no Fourth
Amendment violations were not essential to his denial of the suppression
motion. If correct, the alternative bases for the denial of the motion-standing
and the denial or severely limited scope of the theory for total suppression,
neither of which are or could be relevant to this action-rendered immaterial
Judge Richey's broad factual findings. This court therefore declined to give
preclusive effect to those findings because they appeared to have some of the
characteristics of dicta, including the substantial risk that appellate review
of those particular findings could not be obtained. See Restatement (Second) of
Judgments s 68, comment i (Tentative Draft No. 4, 1977); Stebbins v.
Keystone Insurance Co., 481 F.2d 501, 507 (D.C.Cir.1973); Halpern v.
Schwartz, 426 F.2d 102 (2d Cir. 1970). But see 1B Moore's Federal Practice,
supra, P 0.443(5), at 3921-22; Williams v. Ward, 556 F.2d 1143, 1154 (2d
Cir. 1977).
The court delayed issuance of the present opinion pending resolution of the
Scientology defendants' appeal in the D.C. Circuit. The appellate court's
opinion affirming the district court has substantiated this court's above
analysis and provided a clearer, although slightly modified, basis for deeming
not essential to the judgment Judge Richey's findings on the reasonableness of
the Los Angeles searches.
The D.C. Circuit affirmed the district court's denial of the suppression
motion "by way of a somewhat different rationale." United States v. Heldt,
668 F.2d at 1269 (D.C.Cir. 1981). It found the lower court's resolution of the
standing issue "unclear" but did not itself appear to resolve the difficult
issue of whether the allegations of a general search can be based, even in
part, upon evidence that the agents rummaged at will in areas *965 outside
of the few personal offices as to which certain of the defendants had
standing. Id. at 1258 n.28. The court merely concluded that "the district
court properly considered the totality of circumstances surrounding the search
of the two buildings."
The D.C. Circuit also did not limit the exclusionary rule to preclude
defendants from asserting their theory that a general search justified the
remedy of total suppression. However, in the course of ruling on this issue,
the court made clear how extreme a violation of defendants' Fourth Amendment
rights had to be before the "drastic remedy" of total suppression could be
invoked:
We recognize that in some cases a flagrant disregard for the limitations in a
warrant might transform an otherwise valid search into a general one, thereby
requiring the entire fruits of the search to be suppressed. (Citations
omitted). If in this case law enforcement officers had conducted a document
search as if no limiting warrant existed, rummaging at will among defendants'
offices and files, then the mere existence of a valid-but practically
irrelevant-warrant for certain specified documents would not be determinative
of whether the search was so unreasonable as to require suppression of
everything seized.
Id. at 1259. Absent such "flagrant disregard" for the terms of the warrant
or the limits on the use of force, the court found the appropriate rule to be
that the seizure of "some items" outside the scope of a valid warrant has no
effect on the admissibility of contemporaneously seized items which do fall
within the warrant. Id. at 1259. Thus, the court held that the defendants'
motion to suppress the 201 case-in-chief documents could succeed only if the
defendants proved such a "flagrant disregard" for their Fourth Amendment
rights. The appellate court's entire analysis of the record on the suppression
motion was focused upon whether this extreme form of Fourth Amendment violation
has occurred. The court on several occasions found "disturbing" evidence of
some possible violations, but found the evidence not of sufficient magnitude to
justify the extraordinary remedy of excluding the otherwise lawfully seized
case-in-chief documents. Id. at 1260 n.33, 1261 - 62, 1263 n.49, id. at
1288 - 89 (Wald, Jr., concurring in part and concurring the result). For
example, the court recognized "the possibility that many documents were
improperly seized under the plain view doctrine," but nevertheless concluded
that the remedy of total suppression was not required. Id. at 1268. As the
court explained:
We must emphasize at this point ... that our concern with the agents'
obedience to the limitations of the warrant relates solely to determining
whether a violation of such egregious magnitude occurred that all fruits of the
search must be suppressed .... If particular documents seized under the plain
view exception had been admitted and the admissibility of those documents had
been put in issue before us, an entirely different analysis would be required.
In conclusion, despite the possibility that some (unspecified) documents seized
under plain view failed the incriminating character requirement (of the plain
view doctrine), we hold that the searches of Fifield Manor and Cedars-Sinai
(the Church premises in Los Angeles) were not so unreasonable that total
suppression is required.
Id. at 1269 (emphasis by the court).
Because this is a civil action, the flagrant violation requirement for use of
the exclusionary rule remedy of total suppression is not applicable. As in the
normal criminal suppression motion challenging the legality of the seizure of
particular items of evidence, the fundamental inquiry in the present action is
whether or not the search and seizure is "reasonable under all the
circumstances." See United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476,
2482, 53 L.Ed.2d 538 (1977). As a result of the appellate court's holding, the
ultimate issue decided in the suppression motion was limited to whether a
"flagrant" or "egregious" Fourth Amendment violation occurred, which is not "in
substance the same" as the *966 issue of reasonableness in the present
Bivens action. See Montana v. United States, 440 U.S. 147, 155, 99 S.Ct.
970, 974, 59 L.Ed.2d 210 (1979). Therefore, the Church's Fourth Amendment
contentions are not properly precluded by the holding of the appellate court.
[FN19]
FN19. Even the qualified immunity for "good faith" conduct which the
Government defendants may later assert, see Butz v. Economou, supra,
does not make the ultimate issues in the present action identical to the
issues considered by the D.C. Circuit for two reasons. The level of proof
that the D.C. Circuit required before the suppression motion could have
been granted is clearly greater than the mere absence of good faith by the
law enforcement officers involved. See at ----. In any case, the burden of
proving a good faith affirmative defense shifts to the Government
defendants, whereas the burden of proving flagrant disregard for the
warrant was entirely on the parties claiming a Fourth Amendment violation.
The D.C. Circuit opinion did not expressly disapprove Judge Richey's broad
findings that the Los Angeles searches were completely lawful. In fact, the
appellate court, in an initial summary of its conclusions that has no support
at all by virtue of the holding it repeatedly emphasized in its actual analysis
of the suppression motion, stated that the execution of the Los Angeles
warrants "satisfied the ultimate constitutional requirement of
reasonableness." Id. 668 F.2d at 1254. Nevertheless, the "flagrant
disregard" standard set forth by the appellate court clarifies the fact that in
ruling on the reasonableness and good faith of the Government agents, the
district court went beyond the necessities of the case. It is well-settled that
findings which are immaterial, collateral or incidental to the prior judgment
cannot have preclusive effect in subsequent litigation. See 1B Moore's Federal
Practice, supra, P 0.443(5), at 3919; Memorex Corp. v. International
Business Machines Corp., 555 F.2d 1379, 1384 (9th Cir. 1977).
Judge Richey's findings beyond the application of the flagrant disregard
standard cannot bar plaintiff's Bivens claims for the further reason that the
appellate court did not reach those specific findings in affirming the ruling
on the suppression motion. The appellate decision has a critical bearing on the
continued force of a final judgment as res judicata or collateral estoppel.
Once an appeal is resolved, the alternative grounds raised on appeal but not
decided upon by the appellate court are not "essential to the judgment," 1B
Moore's Federal Practice, supra, P 0.443(5), at 3921 n.10; Restatement
(Second) of Judgments s 68, comment o (Tentative Draft No. 4, 1977);
Stebbins v. Keystone Insurance Co., supra, 481 F.2d at 507 n.13;
International Refugee Organization v. Republic S.S. Corp., 189 F.2d 858,
862 (4th Cir. 1951), because appellate review of the grounds omitted from the
appellate court decision has not been available to the litigant (or his privy)
against whom the omitted ground is asserted. 18 Wright, Miller & Cooper,
Federal Practice & Procedure, supra, s 4421, at 205-06 & n.25.
VI. SERVICE OF PROCESS
[20] Defendants Varley and Chefalo urge that the complaint be dismissed
against them as individuals for insufficient service of process under Rule
12(b)(5). Plaintiff responds that these defendants have waived their personal
defenses by prior participation in this action combined with a failure to
assert the defenses in a previous Rule 12(b) motion. The court agrees.
The United States Attorney for the Central District of California, the only
counsel of record who has appeared for any of the 23 original defendants in
this action, filed on June 23, 1980, a Rule 12(b)(6) motion to dismiss the
Second Amended Complaint for failure to state a claim upon which relief may be
granted. The motion did not assert the personal defenses of the two defendants,
now raised for the first time in this action. Under Rules 12(g) and
12(g)(1),[FN20] *967 these defenses are therefore permanently waived
since they were omitted from a previous 12(b) motion. 5 Wright & Miller, supra,
s 1391.
FN20. Fed.R.Civ.P. 12(g) states that
If a party makes a motion under this rule but omits therefrom any defense
or objection then available to him which this rule permits to be raised by
motion, he shall not thereafter make a motion based on the defense or
objection so omitted, except a motion as provided in subdivision (h)(2)
hereof on any of the grounds there stated.
Rule 12(h)(2) excludes certain defenses from the consolidation
requirement of Rule 12(g), but Rule 12(h)(1) specifies that the
defense of insufficiency of service of process is waived if omitted from a
motion in the circumstances described in subdivision (g).
Defendants Varley and Chefalo raise two arguments against waiver, but neither
is persuasive. First, they assert that the filing of a very different amended
complaint by plaintiff revives their right to raise Rule 12(b) waivable
defenses. However, Rule 12(g) specifically rejects this possibility where,
as here, the grounds for the objections were "available" at the time the
previous motion was filed. See, e.g., Rowley v. McMillan, 502 F.2d 1326,
1332-33 (4th Cir. 1974); 2A Moore's Federal Practice, supra, P 12.22, at 2442-
43.
Second, defendants argue that their personal defenses were not waived by the
prior motion to dismiss because they were not parties to that motion. They
claim that the defenses were effectively "reserved" by the notation in the June
23 motion that it was brought on behalf of only "those defendants herein who
have been properly served with process." Nothing in the Federal Rules requires
multiple defendants who are represented by different counsel from the outset of
a case to consolidate all of their Rule 12(b) objections into one motion.
However, in view of the U.S. Attorney's previous and contemporaneous
representation of all defendants, the court will not permit defendants Varley
and Chefalo to circumvent the consolidation requirements of Rules 12(g) and
12(h)(1) by purporting to have been excluded from representation in
connection with the June 23 motion.
Counsel for defendants concedes that at a February 15, 1978, hearing on a
motion to serve interrogatories, he told the court that he had received
authority to represent all the defendants except for Frank Kelly, who was and
still remains an unknown person. See Defendants' Brief of December 8, 1980, at
24. Counsel acted on behalf of defendants Varley and Chefalo, among others, by
filing several motions prior to the June 23 motion to dismiss.[FN21] Counsel
now points to no legitimate reason-for example, potentially differing interests
among defendants-why it could not have represented the two defendants in
connection with the June 23 motion. Under these circumstances to permit
defendants now to assert insufficient service of process would run directly
counter to the central objectives of Rules 12(g) and 12(h)(1)-to force
litigants to exercise great diligence in challenging personal service at the
earliest possible time, and to deter defendants from the dilatory tactic of
filing a series of 12(b) motions. See Wright & Miller, supra, s 1391, at 855;
2A Moore's Federal Practice, supra, P 12.22, at 2440.
FN21. Represented by the U.S. Attorney, defendants Varley and Chefalo,
along with other named defendants, filed opposition to plaintiff's motion
to transfer on October 10, 1978, and on January 24, 1978, they filed
opposition to plaintiff's motion to serve interrogatories.
The hollowness of the U.S. Attorney's vigorous effort to "reserve" the
Rule 12(b) personal defenses is perhaps most graphically evidenced by
the fact that the initial brief for the present motion again excludes from
representation the "five named defendants (which originally included the
now voluntarily dismissed defendants, Banoun and Schuelke) who have not
been properly served," even though the brief goes on to urge dismissal of
these very defendants based on the personal defenses.
VII. SOVEREIGN IMMUNITY
[21] The United States Attorney on February 9, 1981, moved to dismiss the
United States Department of Justice under Fed.R.Civ.P. 12(b)(1) on the
ground that the court lacks subject matter jurisdiction over it because it
cannot be sued eo nomine under the doctrine of sovereign immunity. See
Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 411, 96 L.Ed. 534
(1952). It is well-established that suits to enjoin the United States or its
agencies, like damage suits, cannot be maintained unless Congress first
consents by enacting a waiver of sovereign *968 immunity. 14 Wright &
Miller, supra, s 3655. The Justice Department contended that no such waiver was
applicable here, but at the March 2, 1981, hearing, the court denied the motion
to dismiss based upon the waiver of sovereign immunity for nonmonetary relief
contained in the 1976 amendments to 5 U.S.C. ss 702 and 703. Because the
issue had not yet been adequately briefed, the Department moved to reconsider.
After receiving a series of memoranda on the issue, the court once again denies
the Department's motion to dismiss.
The Department, without any reference to the legislative history of the 1976
amendments or the leading cases interpreting them, argues that the waiver of
sovereign immunity contained in 5 U.S.C. s 702 applies only to actions which
are cognizable under the Administrative Procedure Act (APA), 5 U.S.C. s 551
et seq. Section 702, which is part of the APA, now reads in relevant part:
A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. An action in a court of the
United States seeking relief other than money damages and stating a claim that
an agency or an officer or employee thereof acted or failed to act in an
official capacity or under color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is against the United States or
that the United States is an indispensable party. The United States may be
named as a defendant in any such action, and a judgment or decree may be
entered against the United States.
The Department, contending that the "agency action" language in section 702
limits the scope of the waiver, relies on 5 U.S.C. s 704, which states that
"agency action" is reviewable under the APA only if it is "made reviewable by
statute" or "final agency action for which there is no other adequate remedy in
a court." Pointing to the definition of "agency action" set forth in 5
U.S.C. s 551(13),[FN22] the Department accurately observes that the actions of
the Department and its agents which are alleged in the complaint are not made
reviewable by any section of the APA, nor are they "final agency action" within
the meaning of section 704.
FN22. Section 551(13) defines "agency action" as including "the whole
or a part of an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act."
But the fact that the APA does not provide a statutory basis for review of the
allegations against the Department is not the end of the analysis. The waiver
of sovereign immunity contained in section 702 is not by its terms limited
to "agency action" reviewable under the APA. In Jaffee v. United States, 592
F.2d 712 (3d Cir. 1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60
L.Ed.2d 1066 (1980), the Third Circuit held that the section 702 waiver of
sovereign immunity extended also to "nonstatutory" review of agency action
sought under 28 U.S.C. s 1331. The court rejected, based upon an extensive
review of the legislative history, an earlier decision, Watson v.
Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978), in which the Second Circuit ruled
that the section 702 waiver did apply generally to section 1331 suits.
592 F.2d at 718-19. As discussed in the House Report on P.L. 94-574, which
amended section 702, "nonstatutory" review actions refer to those involving
matters which arise "under the Constitution, Laws, or treaties of the United
States" as provided in section 1331(a), but for which there is no special
statute, regulatory in nature or contained in the APA itself, which authorizes
review in federal court of that particular action. H.R.Rep.No.94-1656, 95th
Cong., 2d Sess. at 5, reprinted in (1976) U.S.Code Cong. & Ad.News 6121, 6125
(hereinafter H.R.Rep.). The Report notes that actions by many of the older
executive departments, including the Department of Justice, are subject to
judicial review only through such "nonstatutory" suits under section 1331.
Id. Plaintiff's Bivens constitutional tort action is precisely such a
nonstatutory review action *969 covered by section 702 insofar as it
seeks nonmonetary relief against the Department.
The Ninth Circuit in Beller v. Middendorf, 632 F.2d 788, 796-97 (9th Cir.
1980), recently approved the Third Circuit's ruling in Jaffee. The Department
cites the statement in Hill v. United States, 571 F.2d 1098, 1102 n.2 (9th
Cir. 1978), that section 702 waives sovereign immunity as to all nonmonetary
claims against government agencies, officers or employees "covered by the
Administrative Procedure Act," and asserts that Beller v. Middendorf is in
accord with this view. But the language in Hill is simply dicta since the
court dismissed the case for failure to state a claim and not on grounds of
sovereign immunity. Beller v. Middendorf does not specifically note the
inconsistency of Jaffee with the Hill dictum, nor does it mention the critical
distinction between actions reviewable under the APA and "nonstatutory" review
actions. Nevertheless, the court in Beller v. Middendorf acknowledged the
split of authority among the circuits as to whether section 702 constitutes
a general waiver of sovereign immunity in section 1331 actions. It rejected
the Second Circuit's limitation of the section 702 waiver, and affirmed the
district court's determination that it had jurisdiction over the plaintiff's
claims for nonmonetary relief against the Secretary of the Navy in his
official capacity. 632 F.2d at 797.
To the extent that Beller v. Middendorf leaves any doubt about the
applicability of section 702 to nonstatutory review actions under section
1331 for nonmonetary relief, the court holds that such application is compelled
by the legislative history of the 1976 amendment. The House Report states that
the amendment seeks to "facilitate nonstatutory judicial review of Federal
administrative action ...," H.R.Rep., supra, at 19, U.S.Code Cong. & Ad.News
at 6140, and that "the time (has) now come to eliminate the sovereign immunity
defense in all equitable actions for specific relief against a Federal agency
or officer acting in an official capacity." H.R.Rep. at 9, U.S.Code Cong. &
Ad.News at 6129. It is not surprising that every circuit other than the Second
Circuit which has considered the issue has followed the Jaffee decision.
See, e.g., Beller v. Middendorf, supra; Sheehan v. Army & Air Force
Exchange Service, 619 F.2d 1132, 1139 (5th Cir.1980); Collyard v. Washington
Capitals, 477 F.Supp. 1247, 1252-53 (D.Minn.1979).
Section 702 itself does not address whether the Justice Department may be a
proper party defendant in an action where sovereign immunity has been waived.
That issue is treated in 5 U.S.C. s 703, which, as amended in 1976, provides
in relevant part that
If no special statutory review provision is applicable, the action for
judicial review may be brought against the United States, the agency by its
official title, or the appropriate officer.
The House Report on P.L. 94-574 makes clear that section 703 permits the
plaintiff in suits for nonstatutory review of administrative action to name as
a defendant the agency or department itself. See H.R.Rep., supra, at 3, 18,
U.S.Code Cong. & Ad.News at 6123, 6138. This intention is also implied by 28
U.S.C. s 1331(a), which, as amended in 1976, provides that the $10,000 amount
in controversy requirement does not apply to actions under the section brought
against "the United States, any agency thereof, or any officer or employee
thereof in his official capacity" (emphasis added).[FN23]
FN23. In light of the ruling on the coverage of the s 702 waiver, the
court finds it unnecessary to rule upon plaintiff's additional contention
that sovereign immunity does not bar suits for injunctive relief against
federal agencies, even in the absence of a congressional waiver, where
unconstitutional action is alleged. Of the cases which plaintiff cites for
this proposition, only Wounded Knee Legal Defense/Offense Committee v.
F.B.I., 507 F.2d 1281 (8th Cir. 1974), appears to be truly supportive. Most
of the cases in this area distinguish between suits against individual
federal officers in their official capacities and suits against the United
States or the agencies themselves. See 14 Wright & Miller, supra, s
3655. Under the legal fiction adopted in Larson v. Domestic and Foreign
Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), courts
have reasoned that sovereign immunity does not apply to actions seeking
nonmonetary relief where the officer acted unconstitutionally, since such
relief would not then "in effect" be "against the sovereign," so long as
the relief requested can be accomplished by merely ordering the cessation
of the conduct, and need not require "affirmative action" by the sovereign
or the disposition of unquestionably sovereign property. Id. at 691
n.11, 69 S.Ct. at 1462 n.11.
Most authorities, including the Ninth Circuit, have not extended this
doctrine to suits against federal agencies, and have required statutory
waiver of the sovereign immunity bar before the action could proceed. See,
e.g., City of Whittier v. United States Department of Justice, 598 F.2d
561, 562 (9th Cir.1979); Midwest Growers Cooperative Corp. v. Kirkemo,
533 F.2d 455, 465 (9th Cir. 1976). These cases, of course, do not have any
bearing on the court's ruling regarding the s 702 waiver since the
application of the sovereign immunity bar in both was predicated on the
lack of any congressional consent to suit that had been brought to the
attention of the court.
*970 VIII. DISMISSAL OF THE DISSEMINATION CLAIM
[22] In its final two filings with the court, the Department also asserts
that Paragraph 20 of the Third Amended Complaint is barred as to it by res
judicata. In Church of Scientology of California v. United States Department
of Justice, No. CV 78-3365-RF(Kx) (C.D.Cal. October 10, 1979), Judge David
Williams dismissed with prejudice for lack of jurisdiction a complaint against
the Department. The complaint, which was amended several times, sought relief
from the Department for "selectively" leaking to the Los Angeles Times (which,
along with two of its reporters, was dismissed as a defendant by a previous
order) confidential information obtained in the Los Angeles searches in a
deliberate attempt to create a "negative animus" toward the Church in the
community and in the courts.
The court finds the Department's assertion of res judicata to be without
merit. The cause of action asserted in Paragraph 20 of the present complaint
asserts that the Department and several individual defendants disseminated the
fruits of the search to private and governmental entities involved in
litigation against the Church in an effort to interfere with the free exercise
of the Scientology religion. The cause of action asserted in that paragraph is
clearly not identical to that raised before Judge Williams, and therefore
res judicata does not apply. Neither does the doctrine of collateral estoppel
bar litigation of Paragraph 20, since the subject matter of the prior complaint
was quite different, and the Department failed to show that any of the issues
previously decided are raised in Paragraph 20. In any case, because Judge
Williams' dismissal was not on the merits, it fails to satisfy the requirement
that the issue asserted as estoppel have been "actually litigated." See, e.g.,
1B Wright, Miller & Cooper, supra, s 4436.
CONCLUSION
Defendants' motions to dismiss are DENIED in all respects except that
plaintiff's Fifth and Ninth Amendment claims are stricken, as are the
jurisdictional bases set forth in the complaint other than 28 U.S.C. s 1331.
IT IS SO ORDERED.