Doe v. McMillan, No. 71-1027.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: WILBUR K. MILLER, Senior Circuit , and WRIGHT and MacKINNON, Circuit
• Citation: 459 F.2d 1304
• Parties: John DOE et al., Appellants, v. John L. McMILLAN et al.
• Docket Number: No. 71-1027.
• Decision Date: 20 January 1972

459 F.2d 1304 (1972)

John DOE et al., Appellants,
v.
John L. McMILLAN et al.

No. 71-1027.

United States Court of Appeals, District of Columbia Circuit.

Argued June 7, 1971.

Decided January 20, 1972.

Certiorari Granted June 26, 1972.

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Mr. Dennis Dutterer, Washington, D. C., with whom Mrs. Jean Camper Cahn and Mr. J. Kirkwood White, Washington, D. C., were on the brief, for appellants

Mr. David P. Sutton, Asst. Corporation Counsel for District of Columbia, for District of Columbia appellees. Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, also entered appearances for District of Columbia appellees.

Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, Joseph M. Hannon, Asst. U. S. Atty., Fred M. Vinson, Jr., William C. Cramer, Michael P. Bentzen, Sheldon S. Gilbert, Richard M. Haber, and James S. Rubin, Washington, D. C., were on the brief, for Federal appellees.

Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges.

Certiorari Granted June 26, 1972. See 92 S.Ct. 2505.

MacKINNON, Circuit Judge:

Plaintiff-appellants in this case are a class of persons composed of students at Jefferson Junior High School in the District of Columbia and their parents and guardians. Defendant-appellees are: (1) The Chairman and Members of the House of Representatives Committee on the District of Columbia¹; (2) the Clerk, Staff Director, Counsel and a consultant to the Committee; (3) the Superintendent of Public Documents and the Public Printer, i. e., the Government Printing Office; (4) the President and Members of the Board of Education of the District of Columbia; (5) the Superintendent of the Public Schools of the District of Columbia; (6) the Principal of Jefferson Junior High School; (7) a teacher at Jefferson Junior High School; (8) a District of Columbia Police Officer acting as an investigator for the Committee; and (9) the United States of America.

Appellants, proceeding in forma pauperis and under fictitious names to preserve their anonymity, commenced this action in the District Court for damages, a declaratory judgment and for an injunction against further publication and distribution of a report of the House of Representatives Committee on the District of Columbia on the District of Columbia School System² unless 45

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pages thereof were altered to delete certain names of students. The pages in question contain copies of: (1) student absentee lists; (2) letters, memoranda, and other papers regarding student disciplinary problems; and (3) student test papers.³ These documents, which include the true names and addresses of appellants, identify the students in contexts that are, at least partially, derogatory. Appellants contend, inter alia, that the disclosure, dissemination, and publication of the House Committee Report, so long as it contains the names of said students, violate their constitutional and common law right to privacy, constitute an impermissible bill of attainder, deny them due process of law, violate the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1970), are devoid of any valid legislative purpose, and will cause severe damage to their mental and physical health, their reputations, and appellant-students' future careers. They also make a contention on appeal which was not raised below, namely, that the House Committee Report was published and distributed in violation of House rules

The District Court denied appellants' motion for temporary relief and dismissed their complaint. It found that the House Committee Report had a "legitimate and proper legislative purpose," as demonstrated by the underlying enabling resolution,⁴ and it held that it was without jurisdiction to grant the requested injunctive relief by reason of the doctrine of separation of powers. It further determined that since the acts of the Legislative Branch employees named as defendants were performed by them in the course of their employment, they were absolutely privileged under the doctrine of official immunity. The District of Columbia defendants were found to be protected by the doctrine that a public officer cannot be liable in money damages, even if he has acted negligently, so long as his act was discretionary. Finally, the District Court concluded that it lacked jurisdiction over any claim against the United States, since appellants had not exhausted their other remedies as required by 28 U.S.C. § 2675(a) (1970).⁵ This appeal followed.

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Appellants moved this court for summary reversal or an injunction pending appeal. On January 14, 1971, we issued an injunction to preserve the status quo until responses were filed. Such order did not enjoin the Members of the House District Committee or the United States, but it did prohibit the other defendant-appellees from any further publication and distribution of the House Committee Report, so long as it contained the names and addresses of pupils and parents. On March 11, 1971, this court denied appellants' motion for summary reversal, and appellees' motion for summary affirmance, and it modified the injunctive order of January 14, 1971, to permit the publication of names of students absent from school. It otherwise continued the injunction and ordered the case set for argument on an expedited basis.

The issues have now been briefed and argued, and we hold that the District Court's dismissal was proper. For the reasons set out below, we have concluded that the District Court was without jurisdiction with respect to the defendant-appellees. Therefore, we have not found it necessary to consider the merits of the constitutional, statutory, administrative, and common law claims which appellants have asserted.

I

Under Article I, Section 8 of the Constitution, Congress is provided with exclusive legislative authority over the District of Columbia.⁶ This pervasive power is accompanied by inherently broad investigatory authority.

Preliminary inquiry has from the earliest times been considered an essential of the legislative process. By it are to be determined both the advisability for and the content of legislation. So that even as to ordinary subjects, the power of inquiry by the legislature is coextensive with the power of legislation and is not limited to the scope or the content of contemplated legislation. Constitutional legislation might ensue from information derived by an inquiry upon the subject described in the investigating body\'s legislative authorization. That potentiality is the measure of the power of inquiry.

Barsky v. United States, 83 U.S.App.D. C. 127, 131, 167 F.2d 241, 245, cert. denied, 334 U.S. 843, 68 S.Ct. 1511, 92 L. Ed. 177 (1948). See Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97 (1947), and authorities cited therein; McGrain v. Daugherty, 273 U.S. 135, 177-179, 47 S.Ct. 319, 71 L.Ed. 580 (1927). "The scope of the power of inquiry,

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in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Barenblatt v. United States, 360 U.S. 109, 111, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115 (1959). See Watkins v. United States, 354 U.S. 178, 187, 198, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957)

The instant case concerns an investigation of the District of Columbia Public School System which was conducted on behalf of the Committee on the District of Columbia of the House of Representatives, by a Special Select Subcommittee of that House District Committee, under the authority of H.R.Res. 76, 91st Congress, 1st Session.⁷ The study probed deeply into a great many problems of the District of Columbia School System. Included were: Administrative Problems, Board of Education of the District of Columbia, Crime in the Schools, D.C. School's Answer to Special Select Subcommittee Questions, Pornography, Revolutionary and other Inflammatory Materials, Damage to Property, Drug Abuse in the Schools, School Budget, Washington Teachers Union, Student Bussing, Student Suspension Policy, Schools without Walls, Open Class Rooms, Open Class Room Concept, Freedom School, Vocational Schools, Student Bill of Rights and Responsibilities and Teacher Comments. A portion of the study related to absenteeism, student discipline, and educational quality. On these matters, the 45 pages from 213-258 set forth for Jefferson Junior High School various absence sheets, lists of class cutters and certain reports and information concerning breaches of discipline and suspension problems. Also included were 19 pages of student test papers for a history examination taken from a fifth grade textbook but given to seventh graders. The average score was "F" and the report was submitted by the teacher to show the poor reading ability of most of her students.

At the conclusion of the investigation, the House Committee issued a 450-page Report, both for the benefit and use of Congress and for the information of the public. The material to which appellants object is only a small part of the entire Report. The Report in its entirety discloses a truly deplorable state of affairs in the public schools of the District of Columbia and obviously one of tremendous congressional concern.⁸ Appellants do not challenge the propriety of the investigation or the issuance of the Report generally—i. e., absent the use of their names—nor could they.⁹ They only assert a statutory, common law, and constitutional right to anonymity. We need not discuss the merits of appellants' innovative claims,

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however, since we conclude that all of the defendant-appellees named in the complaint are immune from the suit brought against them.¹⁰

II

Article I, Section 6 of the Constitution provides that "for any Speech or Debate in either House, they Senators and Representatives shall...