Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)

                  INTERNAL REVENUE SERVICE, et al., Defendants.
                            Civ. A. No. 91-0070(JHG).
               United States District Court, District of Columbia.
                                 April 15, 1992.
                          MEMORANDUM OPINION AND ORDER

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

      FN1. The complaint filed in the District of Columbia action shall be
     hereinafter referred to as the "complaint."

      FN2. The complaint filed in the California action shall be hereinafter
     referred to as "Complaint II."

      FN3. Although the Court had directed plaintiff to file a copy of Complaint
     II with this Court, in its December 16, 1991 submission, CSI submitted,
     instead, its opposition, to defendants' motion to dismiss and for summary
     judgment, which opposition was filed in the California proceeding.

      FN4. In plaintiff's February 3, 1992 pleading, captioned "Motion for Order
     Deeming Admitted all Allegations Contained in the Church's Complaint" ("Pl.
     Motion"), CSI states that this Court's October 30, 1991 Order "granted
     Defendants' Motion only as to a non-existent [FOIA] cause of action."  Pl.
     Motion, at 4 n. 1.  Plaintiff had, however, clearly complained that "[a]t
     the same time that they have knowingly spread these falsehoods, defendants
     have claimed to have no files on the Church in their European offices, and
     have thereby denied plaintiff access to records under the Freedom of
     Information Act."  Complaint, P 2.

      FN5. Herbert v. Lando, 441 U.S. 153, 177 (1979).

      FN6. Throughout the various pleadings, Megank is sometimes referred to as

      FN7. Weightman Decl., P 7.

      FN8. Weightman Decl., P 8.

      FN9. Throughout the various pleadings, Livingston is sometimes referred to
     as "Livingstone."

      FN10. The latest version of Connett's affidavit, and the one on which the
     Court relies, is appended to the Reply to Plaintiff's Opposition to
     Defendants' Motion for Summary Judgment and Opposition to Plaintiff's
     Motion to Strike ("Defs. Reply").

      FN11. Jones does not specify which affidavit of Connett he reviewed, and
     several have been submitted.  Nonetheless, the affidavits are very similar
     with few exceptions.

      FN12. The March 25, 1992 statement only contains three additional
     sentences that were not included in the February 14, 1992 or March 10, 1992

      FN13. In the future, supplemental pleadings will not be filed without
     leave of the Court.

End of file...