The opinion of the court was delivered by: RICHEY
This case is before the Court on the plaintiff's motion for class certification and the defendants' motion to dismiss. For the reasons hereinafter stated, the Court will grant plaintiff's motion for class certification in part and will grant defendants' motion to dismiss in part.
Plaintiff, the Founding Church of Scientology of Washington, D.C., is a non-profit corporation chartered and operating under the laws of the District of Columbia as a religious organization practicing the religion of Scientology.
Plaintiff brought this case as a class action, purporting to represent "all Churches of Scientology and Scientology missions located throughout the United States."
The defendants include public officers of the United States and are sued in their official capacities only: the Director of the Federal Bureau of Investigation, the Attorney General of the United States, the Director of the Central Intelligence Agency, the Secretary of the Treasury, the Chief of the National Central Bureau of the International Criminal Police Organization, the Director of the National Security Agency, the Secretary of the Army, and the Postmaster General of the Postal Service. The United States is also named as a defendant.
Plaintiff commenced the instant action on January 24, 1978, three weeks after dismissing on its own motion a virtually identical action which had been filed on January 31, 1977. See The Founding Church of Scientology v. Clarence Kelley, et al., C.A. No. 77-0175 (D.D.C. January 31, 1977). Plaintiff alleges that it, as well as the class it seeks to represent, has been the subject of a government-wide conspiracy to destroy a religion. Plaintiff claims that its constitutional and statutory rights have been violated in that the defendants have improperly maintained and disseminated information regarding the plaintiff; harassed, observed, and infiltrated the plaintiff organization; "blacklisted" members of the plaintiff; and subjected the plaintiff to discriminatory tax audits. This conspiracy, plaintiff claims, began about the year 1955 and allegedly continues to date. Plaintiff charges that these alleged actions of the defendants were in violation of the first, fourth, fifth, ninth and fourteenth amendments to the Constitution; 28 U.S.C. § 534, 42 U.S.C. § 1985(3), 18 U.S.C. § 2520, 50 U.S.C. § 403(d), 47 U.S.C. § 605, 18 U.S.C. §§ 1702 and 1703, and 28 U.S.C. § 2674.
In terms of relief, plaintiff seeks a declaratory judgment that the alleged actions of the defendants violate the Constitution. Plaintiff also requests an injunction restraining all the defendants from interrogating, observing, infiltrating, reviewing or opening mail, disrupting travel or collecting or utilizing any information regarding the plaintiff. Plaintiff further requests the expungement of all information and files regarding the plaintiff that is in the possession of the defendants. In addition, plaintiff demands from the United States compensatory damages totalling $ 20 million, and punitive damages of ten times the amount of compensatory damages awarded by the Court, not to exceed $ 750 million.
II. JURISDICTIONAL ISSUES AND CLAIMS UPON WHICH RELIEF MAY BE GRANTED
The Court, upon initially reviewing the extensive allegations in the complaint, directed the parties to submit memoranda concerning the statutes and constitutional provisions relied upon by the plaintiff herein. Although plaintiff enumerated several sources of liability in its complaint, plaintiff now admits that "several of the statutes cited are not necessarily relied upon as independent sources of damage liability, but rather to establish standards of legality governing the conduct of government officials . . ." (Memorandum of Law Concerning Statutes and Constitutional Provisions Relied Upon at 2, February 13, 1978) Therefore, the Court need not now concern itself with whether every statute cited in the complaint properly states a claim upon which relief may be granted. Moreover, because no motion specifically based on the jurisdictional issues has been made and because of the Court's opinion in part IV B, Infra, the Court need rule on neither of these jurisdictional issues nor whether these statutes state a cognizable claim. However, in order to expedite this litigation, the Court Sua sponte has decided some of the basic jurisdictional issues set forth in the complaint even though the Court's final resolution of the motion to dismiss obviates the need to decide all jurisdictional questions at this time.
As to plaintiff's claim for declaratory and injunctive relief, the Court notes, and the defendants appear to concede, that plaintiff has properly based jurisdiction on 28 U.S.C. § 1331. In addition, plaintiff has properly asserted a claim against the defendant officials for injunctive relief under the first and fourth amendments, and perhaps other amendments as well. See Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C.1976).
As to plaintiff's claim for damages against the United States, the Court notes that plaintiff has asserted a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. According to this Act, unless expressly excepted, the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances . . .." 28 U.S.C. § 2674. In Black v. Sheraton Corp. of America, 184 U.S.App.D.C. 46, 54, 564 F.2d 531, 539 (1977), the court recognized the sweeping effect of this language:
(emphasis added). The court then found that liability predicated upon a violation of a constitutional right could give rise to a claim under the FTCA.
The district court in this case awarded damages to plaintiff invoking four overlapping theories of liability: trespass, invasion of privacy by intrusion, invasion of privacy by publication and Violation of constitutional rights. (Black v. U. S.,) 389 F. Supp. 529, 531 (1975). None of the theories, which the district court invoked are among the exemptions from tort liability specified in the Tort Claims Act.
184 U.S.App.D.C. at 54, 564 F.2d at 539 (emphasis added).
The plaintiff herein relies upon at least two "torts" which, it claims, render the United States liable because these torts would create a liability against a "private individual under like circumstances." 28 U.S.C. § 2674. The first "tort" is a violation of plaintiff's first, fourth, fifth and ninth amendment rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1974) (fourth amendment); Dellums v. Powell, 184 U.S.App.D.C. 275, 566 F.2d 167 (1977), Cert. denied, 438 U.S. 916, 98 S. Ct. 3146, 57 L. Ed. 2d 1161 (1978) (first amendment); Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) (first amendment); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974) (fifth amendment). In a recent decision, Norton v. United States of America, 581 F.2d 390 (4th Cir. 1978), the court acknowledged the use of the FTCA for these Bivens -type of torts:
While Bivens created a federal tort for certain violations of the fourth amendment, it did not (and indeed could not) impose liability on the officer's employer, the federal government. (To correct this,) Senator Percy proposed a rider to H.R. 8245 "to provide a remedy against the United States for the intentional torts of its investigative and law enforcement officers." S.Rep. No. 93-588, Supra, (1974) U.S.Code Cong. & Admin.News at 2789. Enacted in March 1974, as Pub.L. No. 93-253, § 2, this legislation amended FTCA to create an exception to the intentional-tort exception of 28 U.S.C. § 2860(h).
The legislative history, however, makes clear that the 1974 amendment (to the FTCA) was viewed by Congress as a "counterpart to the Bivens case. . . ." S.Rep. No. 93-588, Supra, . . .
581 F.2d at 393. See Birnbaum v. United States, 436 F. Supp. 967, 974-75 (E.D.N.Y.1977). Thus, plaintiff herein could proceed under the FTCA, while relying upon a constitutional tort theory.
The second "tort" relied upon by the plaintiff is that created by 42 U.S.C. § 1985(3). Under this statute, recovery may be had against "persons" if a plaintiff establishes (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) pursuant to which one or more of the conspirators did or caused to be done an act in furtherance of the object of the conspiracy, whereby (4) the plaintiff was injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).
In applying the elements of 42 U.S.C. § 1985(3) to the facts of this case, the Court notes that there are two initial obstacles, which may well be surmountable. First, federal officials should be considered "persons" within the meaning of § 1985(3). See Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th Cir. 1975); Stith v. Barnwell, 447 F. Supp. 970 (M.D.N.C.1978); Alvarez v. Wilson, 431 F. Supp. 136 (N.D.Ill.1977); Butler v. United States, 365 F. Supp. 1035 (D.Hawaii 1973). Second, the statute is not limited to racial discrimination but includes any "class-based, invidiously discriminatory animus," such as that alleged here. 403 U.S. at 102, 91 S. Ct. 1790. Having thus established the potential applicability of § 1985(3) to a suit by these plaintiffs against the Officers, the plaintiff can, therefore, maintain an action against the United States, because the FTCA makes the United States liable "to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.
III. MOTION FOR CLASS CERTIFICATION
Plaintiff seeks in this litigation to represent the class of "all Churches and Missions of the Church of Scientology located in the United States." Asserting that the prerequisites of Fed.R.Civ.P. 23(a) are met, plaintiff asks that the class be certified under either Rule 23(b)(1), (2), or (3).
Defendants do not challenge the application of the language of Rule 23 to this case. However, defendants do challenge the proposed certification on two grounds apart from Rule 23: (1) that the Court lacks jurisdiction to adjudicate the damage claims of the proposed class members because they have failed to exhaust their administrative remedies, required by 28 U.S.C. § 2675(a);
and (2) that the injunctive relief sought would have the same effect as a class-wide injunction. The Court agrees with defendants' first objection, but not their second.
A. Under the FTCA, Each Alleged Class Member Must Exhaust His or Her Administrative Remedies, Which Has Not Been Done Here and, Therefore, Plaintiff May Not Maintain ...