Doe v. McMillan

• Decision Date: 13 October 1977
• Docket Number: No. 75-2016,75-2016
• Citation: 185 U.S.App.D.C. 48,566 F.2d 713
• Parties: John DOE, by his guardian Mary Doe, et al., Appellants, v. John L. McMILLAN, Chairman of the Committee on the District of Columbia of the United States House of Representatives, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 713

566 F.2d 713

185 U.S.App.D.C. 48

John DOE, by his guardian Mary Doe, et al., Appellants, v. John L. McMILLAN, Chairman of the Committee on the District of Columbia of the United States House of Representatives, et al.

No. 75-2016.

United States Court of Appeals District of Columbia Circuit.

Argued April 5, 1977.

Decided July 29, 1977.

Rehearing Denied Oct. 13, 1977.

John S. McCreery and Robert S. Catz, Washington, D. C., for appellants.

Barbara L. Herwig, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty. and Robert E. Kopp, and William Kanter, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellees, the Superintendent of Documents and the Public Printer.

Benton L. Becker and Fred M. Vinson, Washington, D. C., entered appearances for Congressional Appellees.

David P. Sutton, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., entered an appearance for District of Columbia appellees.

Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.

Opinion for the court PER CURIAM.

PER CURIAM:

Appellants filed suit against various Members of Congress, their staffs and consultants, District of Columbia school officials, and the Public Printer and Superintendent of Public Documents, seeking declaratory and injunctive relief and damages based on the publication of a congressional report containing material claimed to invade their privacy. The district court dismissed their suit, and this court affirmed. The Supreme Court affirmed the dismissal as to the congressional and District of Columbia defendants, but remanded for further proceedings as to the Printer and Superintendent. On remand, the district court again dismissed and denied appellants' request for leave to amend their complaint. The present appeal was filed.

I.

On December 8, 1970, a report of the House of Representatives Committee on the District of Columbia dealing with problems in the District school system was published, H.R.Rep.No.91-1681, 91st Cong., 2d Sess. (1970). Included in the 459-page report were some 64 pages of absentee lists, memoranda on student disciplinary problems, and unsatisfactory student test papers, all of which identified the students involved. Various of these students and their parents, proceeding in forma pauperis and under assumed names to preserve anonymity, filed this class action in the district court on January 8, 1971, charging that the publication of these pages violated their constitutional and common-law right to privacy and other rights. They sought declaratory and injunctive relief and damages. Named as defendants were the members of the House Committee and various staff members and the investigator (congressional defendants), the Superintendent of Public Documents and Public Printer (Printer defendants), various District of Columbia school officials, including the members of the Board of Education (District defendants), and the United States. The district court denied appellants' motion for temporary relief and dismissed their complaint. This court granted an injunction pending appeal, but denied appellants' motion for summary reversal, 143 U.S.App.D.C. 157, 442 F.2d 879 (1971).

We subsequently affirmed the district court's dismissal of the complaint against all defendants, holding that in compiling and publishing the report the defendant Members of Congress and legislative employees ¹ were "acting in the sphere of legitimate legislative activity," and were therefore protected from suit by the Speech or Debate Clause of the Constitution, Article I, § 6, cl. 1. Our decision further held that the legislative employees and District defendants had performed "discretionary" duties in furtherance of a valid legislative purpose, with proper congressional authorization, and so were protected by judicially-made "official immunity" under Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Finding adequate the assurance of the Federal appellees that no further distribution of the report was planned, we denied injunctive relief. 148 U.S.App.D.C. 280, 289-94, 459 F.2d 1304, 1313-18 (1972).

The Supreme Court granted certiorari and affirmed this court's decision as to the Members of Congress, their staffs and consultant, 412 U.S. 306, 314-18, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), finding that their acts extended only to the preparation of the report and the order that it be printed. In addition, the Court "(did) not disturb" this court's decision as to the District defendants, 412 U.S. at 324 n. 15, 93 S.Ct. 2018, and left standing the denial of injunctive relief, 412 U.S. at 318, 93 S.Ct. 2018. It held, however, that the immunity of the Printer defendants went no farther than that of the Members of Congress whom they served, and that the complaint against these defendants should not have been dismissed on official immunity grounds before the question was resolved "whether any part of the previous publication and public distribution . . . went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the constitution," 412 U.S. at 318, 93 S.Ct. at 2027. The Court therefore remanded for a determination of the actual extent of distribution and whether this distribution had exceeded "the legitimate legislative needs of Congress, and hence the limits of immunity," 412 U.S. at 324, 93 S.Ct. at 2031.

We in turn remanded to the district court. Based on an affidavit submitted by the Public Printer and other material in the record, the district court by memorandum and order on April 29, 1974, made findings of fact and conclusions of law. It was determined that in addition to 2557 copies of the report distributed within the Congress and its staff, 796 copies were distributed to various federal government agencies based on statutory requirements and standing orders. Another 796 copies were retained in a security cage for future distribution but because of this suit would not be distributed. About 54 "extra" copies were retained by the Printer for internal use and for distribution in case of spoilage. This distribution, the district court concluded, was entirely "routine, usual and as a matter of course followed the same regular, customary and orderly procedures as requisitions for all Congressional printing and binding of bills, laws and reports from Congressional committees." Mem. op. at 2-3, R. 28. This distribution, the district court concluded as a matter of law, "did not exceed the legitimate legislative needs of Congress and thus their actions remained within the limits of the immunity of the Speech or Debate Clause and the doctrine of official immunity." Mem. op. at 7. Finding no material issues of fact remaining, the district court entered summary judgment for the appellees, and by a separate order denied appellants' motions for leave to amend their complaint to modify the cause of action and add a District of Columbia defendant. On May 22, 1974, the district court denied appellants' motion for a new trial, alteration of judgment and amendment of findings of fact and conclusions In a memorandum filed on that appeal, the Printer appellees stated that, contrary to the Printer's earlier affidavit, there had in fact been some distribution of the report outside the federal government. This court vacated the district court's judgment and remanded to permit it to consider the significance of this factual error, No. 74-1812 (D.C.Cir. April 28, 1975). On remand, the Printer appellees submitted new affidavits, R. 39, stating that the earlier affidavit had erroneously assumed that the 796 copies of the report delivered to federal agencies had remained within the federal government. Rather, some of these copies were delivered by the printer to the Superintendent, under standing requisition, and were in turn distributed pursuant to standing orders for all committee reports. It developed that about 92 copies were distributed to members of the public who maintained standing orders for all committee reports, ³ and that about 80 copies were automatically delivered to foreign legations with standing orders for all committee reports under 44 U.S.C. § 1717 (1970). ⁴ Other parts of the original affidavit were reaffirmed. The district court on July 10, 1975, issued an order concluding

of law, and appellants noted an appeal. ²

that the factual error in the prior affidavit executed by the Public Printer does not affect the Conclusions of Law or Order entered by the Court in these proceedings on April 29, 1974 in any way whatsoever; and that the record now before the Court established that the extent of publication and distribution of the Report did not exceed the legitimate legislative needs of Congress . . . .

R. 53. It therefore again granted appellees' motion for summary judgment and dismissed the complaint. Appeal was again taken.

II.

The principal issue raised in this appeal is whether the district court correctly held, as a matter of law, that the distribution it found by the Printer and Superintendent was within the scope of the immunity recognized by the Supreme Court. Appellants contend that the Court's opinion means that any distribution "beyond the halls of Congress," 412 U.S. at 317, 93 S.Ct. 2018, transcends any "legitimate legislative needs," ⁵ and so is per se unprotected by the Speech or Debate Clause or official immunity. Appellants read the Supreme Court's opinion much too broadly.

The Court's opinion in Doe does not expressly adopt the per se approach advocated by appellants, and its phrasing of the question addressed belies any such inference. The Court considered only "whether the act of (public distribution), simply because authorized by Congress, must always be considered 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings' . . . ." 412 U.S. at 314, 93 S.Ct. at 2025 (emphasis added),...