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

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


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 purport to exercise a discretion on the ground of tardiness, but rather used other grounds that are questionable.*

I join in denying the petition for rehearing on the ground that it relates to a secondary issue of no current import. The principal ground of the appeal in the present case, No. 75-2016, concerned the ruling of the district court that the incidental public distribution of the report, to those who had a standing order for committee reports with the Government Printing Office, was entirely routine and usual and did not exceed the legitimate legislative needs of the Congress. This court sustained the district court, and I concur in that ruling.

The attempt to claim that the Congressional defendants participated in the public distribution was a subsidiary issue. There was no inkling that the "public distribution" now claimed as to the Congressmen was anything other than the routine distribution which the court held not to exceed the legitimate needs of Congress.

When the court is confronted with something as unusual as an attempt to sue Congressmen for participating in a "public" distribution, the least plaintiffs must supply before pressing any claim to discovery, is a concrete factual indication that there was indeed a "public" distribution. IN AGREEMENT FOOTNOTES

* The original complaint was dismissed a few days after it was filed. There were difficulties with seeking to amend the complaint in the trial court while the case was lodged in the appellate court. Procedures are available for use when a point is crucial, but that did not develop until the Supreme Court's ruling. The Supreme Court judgment in Doe v. McMillan issued May 29, 1973. On July 24, 1973, this court requested supplemental memoranda as to the action to be taken in the light of the Supreme Court decision. Plaintiffs' counsel filed a memorandum of Aug. 23, 1973, announcing the intention to move the district court for leave to amend the complaint. This court remanded on Oct. 15, 1973. On remand, the case was reassigned to a new district judge. At his status call, plaintiffs' counsel was given two weeks to seek leave to file the amended complaint. A motion, with amended complaint attached, was filed timely on March 27, 1974.

At a session held April 17, 1974, the district court denied the motion, saying (Tr. 15): "Under the Supreme Court decision they are out of the case. I don't think you can use a vehicle denominated as an Amended Complaint to state a complete new theory and try to avoid the thrust of the statute of limitations."

On April 29, 1974, the district court entered an order which recited that "no motion for leave to file with regard to same amended complaint [relating to Congressional defendants] having been filed," and directed that the amended complaint be "stricken".

19771013

© 2002 VersusLaw Inc.



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