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10/13/77 John Doe, By His Guardian v. John L. Mcmillan

October 13, 1977

JOHN DOE, BY HIS GUARDIAN MARY DOE, ET AL., APPELLANTS

v.

JOHN L. MCMILLAN, CHAIRMAN OF THE COMMITTEE OF THE DISTRICT OF COLUMBIA OF THE UNITED STATES HOUSE OF



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPRESENTATIVES, ET AL 1977.CDC.231

566 F.2d 713 at 720.

Date Reported: ON PETITION for REHEARING (D.C. Civil 56-71). Original Opinion of July 29, 1977 at: 566 F.2d at 713.

APPELLATE PANEL:

Tamm, Leventhal and MacKinnon, Circuit Judges. Statement of Circuit Judge Leventhal concurring in the denial of the petition for rehearing.

ORDER

On consideration of the petition for rehearing filed by appellants John Doe, et al., it is

ORDERED by the Court that appellants' aforesaid petition is denied. IN AGREEMENT

Statement of Circuit Judge LEVENTHAL concurring in the denial of the petition for rehearing.

LEVENTHAL, Circuit Judge, concurring:

I concur in the denial of the petition for rehearing, but believe it calls for another word concerning Part IV of the per curiam opinion.

The particular issue is denial of leave to file an amended complaint against the Congressmen because of the report challenged as an egregious violation of plaintiffs' privacy. The Supreme Court's opinion affirming dismissal of the original complaint against the Congressmen stated that it was material that there had been no claim of public distribution by the Congressmen. Doe v. McMillan, 412 U.S. 306, 36 L. Ed. 2d 912, 93 S. Ct. 2018 (1973).

On remand, plaintiffs sought leave to amend the complaint to allege "public distribution of the report by the Congressional appellees." That motion was denied, and this was one of the grounds of appeal.

This court's opinion of affirmance rested on the ground that the amendment was tardy and this was a matter within the discretion of the district court. This ground was not briefed by the government, and I now consider it inappropriate. The occurrences in both courts, marshaled in the petition for rehearing, indicate first that plaintiff's counsel acted with reasonable expedition all things considered, and second that the district court did not ...


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