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DOE v. MCMILLAN

April 29, 1974

John DOE et al., Plaintiffs,
v.
John L. McMILLAN et al., Defendants


John H. Pratt, District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, District Judge.

On January 11, 1971, shortly after the action was filed, the District Court dismissed the action as to all defendants. Thereafter, on March 11, 1971, the Court of Appeals issued an order granting some injunctive relief pending disposition of plaintiffs' appeal. Doe v. McMillan, 143 U.S. App. D.C. 157, 442 F.2d 879. On January 20, 1972, the Court of Appeals affirmed the decision of the District Court. Doe v. McMillan, 148 U.S. App. D.C. 280, 459 F.2d 1304. On May 29, 1973, the Supreme Court remanded this case to the Court of Appeals for further proceedings consistent with the Supreme Court's opinion. Doe v. McMillan, 412 U.S. 306, 93 S. Ct. 2018, 36 L. Ed. 2d 912. By order filed October 15, 1973, the Court of Appeals ordered "that this case is remanded to the United States District Court for further proceedings not inconsistent with the May 29, 1973 opinion of the Supreme Court." Accordingly, the matter is now before the Court for resolution in accordance with the Supreme Court's May 29, 1973 opinion.

 Upon consideration of the record, the motions, affidavits and memoranda of the parties, and after hearing argument of counsel, the Court hereby makes the following Findings of Fact and Conclusions of Law.

 Findings of Fact

 1. On January 8, 1971, plaintiffs, under pseudonyms, brought this action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants included the Public Printer at the time, Mr. Adolphus N. Spence and the Superintendent of Documents, Mr. Robert E. Kling.

 2. Mr. Spence passed away on January 11, 1972.

 3. By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of . . . the organization, management, operation, and administration of any department or agency of the government of the District of Columbia * * * [or] of any independent agency or instrumentality of government operating solely within the District of Columbia. . . ."

 4. On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House of Representatives a report, H. Rept. No. 91-1681, 91st Cong., 2nd Sess. (1970), (hereinafter referred to as "the Report"), which was stated to be the Report directed to be prepared by said H. Res. No. 76.

 5. On the same day, December 8, 1970, the Report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter the Report was printed and distributed by the Government Printing Office pursuant to Title 44, United States Code, as more particularly described below.

 6. The printing of the Report was 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.

 7. A total number of 2,557 copies of the Report were delivered to offices of the House of Representatives on December 15, 1970. A total number of 796 copies of the Report were delivered on December 28, 1970 to various departments of the Government. Two copies of the Report were retained by the Production Department of the Government Printing Office.

 8. Seven hundred and ninety-six copies of the Report were placed, and are still secured, in a locked security cage at the Government Printing Office since a restraining order was issued by the United States Circuit Court of Appeals for the District of Columbia on January 14, 1971, No. 71-1027, enjoining Adolphus N. Spence, Public Printer, and Robert E. Kling, Superintendent of Documents, from further printing and distribution of said H. Rept. No. 91-1681, 91st Cong., 2nd Sess., December 8, 1970, so long as it contained the names and addresses of pupils and parents.

 9. In addition to the quantity of Reports scheduled for distribution, 54 extra copies of all House Reports have been for many years, and are, routinely scheduled to be printed and are designated as "emergencies", although the number of emergency copies actually available may vary from job to job depending on spoilage, since it is impossible to determine the exact number finally available until press and binding operations are completed. Emergency copies are retained in the Binding Division of the Government Printing Office, but a record of the number of Emergency copies actually on hand is not made. They are considered as extra copies made to fulfill requirements in case of shortage, deficiencies, or office needs. After a reasonable period of time has elapsed (usually about three months) any surplus emergency copies are reduced to waste scrap together with other waste paper through an automatic process of shredding, baling, and then sold as salvage paper.

 10. In the instant case, following the usual, normal and customary procedure, the emergency copies of the Report were retained by the Binding Division as described. One of the extra copies was retained by the Library of the Superintendent of Documents for the normal and customary purpose of preparation for microfilming by the Library ...


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