John Doe v. John L. McMillan

459 F.2d 1304

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 26, 1972
• Docket: 71-1027
• Status: Published

Opinions

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 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.

Appellants moved this court for summary reversal or an injunction pending appeal. On January 14, 1971, >ve 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, 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, 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 not be questioned in any other place.” This provision, which was adopted by the Constitutional Convention without debate or opposition,¹¹ found its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689.¹² In light of this history, the Supreme Court concluded in United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681, (1966), that the purpose of the Speech or Debate Clause was “to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile judiciary.”

“In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.” ¹³ To accomplish this important objective, the Supreme Court has recognized the necessity for construing the Speech or Debate Clause protection in a broad fashion. Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881); United States v. Johnson, 383 U.S. 169, 179-180, 86 S. Ct. 749, 15 L.Ed.2d 681 (1966). “[I]t would be a ‘narrow view’ to confine [its] protection ... to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.’ Kilbourn v. Thompson, supra, at 204.” Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969) (emphasis supplied)¹⁴

The Speech or Debate Clause not only provides a defense on the merits, but it generally protects a legislator from the annoyance of having to devote his time and efforts to defending himself in court. Powell v. McCormack, supra, 395 U.S. at 502-503, 89 S.Ct. 1944. See Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).¹⁵ The only question which a trial court should consider is “whether from the pleadings it appears that the [legislators] were acting in the sphere of legitimate legislative activity.” Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). Since we believe that the activities of the defendant-members of the Committee on the District of Columbia of the House of Representatives “may fairly be deemed within [the Committee’s] province,” it is clear that the District Court properly dismissed the suit as to them. Id., at 378, 71 S.Ct. at 789. See United States v. Doe, 455 F.2d 753, 757 (1st Cir. 1972).

As has been noted, appellants concede the authority of the House District Committee to investigate and report to Congress on the District of Columbia Public School System. They have only questioned the propriety of that small portion of the Committee Report which uses their names in Somewhat derogatory contexts. “That the protection of private rights upon occasion involves an invasion of those rights is inxtheory a paradox but, in the world as it hapjieps to be, is a realistic problem requiring a practical answer.” Barsky v. United States, supra, 83 U.S.App.D.C. at 135, 167 F.2d at 249. It is apparent that the House District Committee was faced with a great dilemma. In its effort to expose the vexing problems which adversely affect the District of Columbia School System, with a view toward the alleviation of such problems to the benefit of all school children, the Committee obviously believed that some disclosure which might possibly injure a few pupils was necessary. While there may or may not be any substantial public interest in the test papers, discipline memoranda, or absentee lists themselves, the inclusion of such material in the Committee Report clearly increased its credibility. While some might consider that it was unnecessary to include the names, at a time such as this when “credibility gaps” are frequently mentioned, it was entirely reasonable for the House District Committee to include what it considered to be sufficient factual data to support its findings concerning a controversial and complex area. Delinquency in the District of Columbia Schools is such a problem and in connection with its investigation of the Student Suspension Policy, which it was investigating, Congress had a right to know the precise details of a few particular disciplinary problems involving the discipline of particular students for particular acts committed in the class rooms of the public schools of the District. All the details of such circumstances, including the names of the students involved and their acts were relevant and necessary for a full and proper consideration of the matter. Many of the instances of student delinquency which one hears daily are considered by many to be unbelievable. Others assert they are untrue. Under such circumstances the desire of the Committee to present specific evidence to support its findings is understandable. And the discretion is vested in Congress, not the courts. We must be careful to remember that under such circumstances, “every reasonable indulgence of legality must be accorded to the actions of [the] coordinate branch of our Government” by the judiciary. Watkins v. United States, supra, 354 U. S. at 204, 77 S.Ct. at 1188.¹⁶

What is really involved here is Congress functioning as it must with respect to the District of Columbia, as a combination state legislature and education committee that is concerned with a grass roots problem. As with any local school board problem, this involves individuals, administrators, teachers, employees, parents, students and taxpayers. The Report recognizes this and to make its study complete and to give it the maximum credibility, the Report throughout, in hundreds of situations in addition to the students involved in disciplinary problems, has named the persons involved. The Report is replete with names of individuals, groups and organizations, many of which are discussed in connection with highly derogatory conduct. For instance, in reporting on the narcotics situation, names and incidents are recited of employees who were furnishing narcotics to drivers employed by the schools. H.R.Rep. No. 91-1681, 91st Cong., 2d Sess. 109-110 (1970). Appellants are not singled out. They are a minor part of the Report. However, it must be noted that the use of specific names throughout the Report does add considerably to its credibility in an area where reliability is necessary.

“Our function, at this point, is . . not to pass judgment upon the general wisdom or efficacy of the activities of this Committee in a vexing and complicated field.” Barenblatt v. United States, supra, 360 U.S. at 125, 79 S.Ct. at 1092. It is merely to determine whether the defendant-legislators were acting within the sphere of their legitimate activity when they collected the information in question and issued the House Committee Report in its present form. Since it is readily apparent that their actions were within the discretionary area of their constitutional authority, the defendant-Representatives are absolutely protected by the Speech or Debate Clause.

Ill

The legislative immunity provided by the Speech or Debate Clause is not limited to Congressmen, although the doctrine’s protection “is less absolute when applied to officers or employees of a legislative body, rather than to legislators themselves.” Dombrowski v. Eastland, supra, 387 U.S. at 85, 87 S.Ct. at 1427. See Tenney v. Brandhove, supra, 341 U.S. at 378, 71 S.Ct. 783. Therefore, when congressional employees or officers are acting pursuant to valid¹⁷ legislative authorization, in furtherance of a proper legislative purpose, they also come within the scope of the Speech or Debate Clause protection. See United States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972).

There is no contention by appellants that any of the Federal legislative employees named as defendants¹⁸ were acting outside the sphere of their official duties. They merely performed the incidental functions which were necessary to insure the full accomplishment of the House District Committee’s appropriate legislative objective. In this day of complex public problems, where assignment of authority by legislators to legislative assistants is an absolute necessity if Congress is to be able to perform its constitutional functions, it would indeed be hollow to afford immunity to the Congressmen, but not to their assistants, for these aides might be hesitant to undertake the full performance of their lawful duties if they had to face the threat of possible lawsuits. Such an inconsistent result would impossibly hinder congressional activities, and effectively prevent the attainment of the objectives underlying the Speech or Debate Clause. We therefore must conclude that the suit against the Federal legislative employees ¹⁹ was properly dismissed due to their legislative immunity.

Although we could base our decision regarding the Federal legislative employees wholly on the protection afforded them by the Speech or Debate Clause, an additional consideration further demonstrates why the District Court properly refused to enjoin the publication and distribution of the House Committee Report by them. “If a court could say to the Congress [, and we might add to its authorized agents,] that it could use or could not use information in its possession, the independence of the Legislature would be destroyed and the constitutional separation of the powers of government invaded. Nothing is better settled than that each of the three great departments of government shall be independent and not subject to be controlled directly or indirectly by either of the others.” Hearst v. Black, 66 App.D.C. 313, 316-317, 87 F.2d 68, 71-72 (1936). In Methodist Federation for Social Action v. Eastland, 141 F.Supp. 729 (D.D.C. 1956), a decision of a three-judge court, Judge Edgerton speaking for himself and Judge Prettyman said:

Nothing in the Constitution authorizes anyone to prevent the President of the United States from publishing any statement. This is equally true whether the statement is correct or not, whether it is defamatory or not, and whether it is or is not made after a fair hearing. Similarly, nothing in the Constitution authorizes anyone to prevent the Supreme Court from publishing any statement. We think it equally clear that nothing authorizes anyone to prevent Congress from publishing any statement.

* * *' * * *

[Courts] have no more authority to prevent Congress, or a committee or public officer acting at the express' direction of Congress,.from publishing a document than to prevent them from publishing the Congressional Record. If it unfortunately happens that a document which Congress has ordered published contains statements that are erroneous and defamatory, and are made without allowing the persons affected an opportunity to be heard, this adds nothing to our authority. Only Congress can deal with such a problem.

141 F.Supp. at 731-732. See Hobson v. Tobriner, 255 F.Supp. 295 (D.D.C.1966).

In light of the assurance provided this court by the Federal appellees that the Chairman and Members of the House District Committee, as presently constituted in the 92d Congress, have no intention of seeking republication or further distribution of the House Committee Report,²⁰ we believe that the admonition provided by this court in Cole v. McClellan, 142 U.S.App.D.C. 24, 26, 439 F.2d 534, 536 (1970), is highly relevant:

Judicial restraint is certainly proper in a case like the one before us, where the salient factors, taken in conjunction with each other, reveal (a) information delivered to the committee without objection or protest, (b) only the vaguest allegations of anticipated harm — a hypothetical speculation that at some indeterminate future occasion [appellants might suffer some injury] . ; and (c) a lack of any showing of current activity by the committee staffs which constitute, as to the class of plaintiffs, an actual threat along such lines, or which otherwise give immediacy to the claim that constitutional freedoms are being infringed or jeopardized.

It is clear that the information in question was provided the legislative investigators by the District of Columbia school officials without objection or protest. In view of the fact that the Report had already been published and distributed before this action was instituted and that appellants have only asserted vague allegations of anticipated harm at some indefinable future time, we believe that the court below exercised appropriate judicial restraint in dismissing that part of appellants’ complaint which sought the enjoining of the publication and dissemination of the House Committee Report. Any other determination would have caused needless friction between separate and independent departments of the Federal Government.

IV

We also decide that all of the District of Columbia defendant-appellees,²¹ as well as the Federal legislative employees named in the complaint,²² are protected from liability²³ in the instant case by the doctrine of official immunity.

Unlike the constitutionally based Speech or Debate Clause protection, the law of privilege as a defense by governmental officials to civil suits has in large part been of judicial making. Barr v. Matteo, 360 U.S. 564, 569, 79 S. Ct. 1335, 3 L.Ed.2d 1434 (1959). The courts have recognized that “officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Id,., at 571, 79 S.Ct. at 1339. The basic rationale for this doctrinal approach was excellently expressed by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949):

It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave un-redressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. .

See Barsky v. United States, supra, 83 U.S.App.D.C. at 136, 167 F.2d at 250; Spalding v. Vilas, 161 U.S. 483, 498-499, 16 S.Ct. 631, 40 L.Ed. 780 (1896); David v. Cohen, 132 U.S.App.D.C. 333, 336, 407 F.2d 1268, 1271 (1969).

Official immunity has not been restricted to those in high government positions. “The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.” Barr v. Matteo, supra, 360 U.S. at 572, 79 S.Ct. at 1340. See Cooper v. O’Connor, 66 App.D.C. 100, 107, 99 F.2d 135, 142 (1938); Farr v. Valentine, 38 App.D.C. 413, 420 (1912). Therefore, it is clear that this immunity doctrine is applicable with respect to both the District of Columbia and the Federal officials and employees with whom we are herein concerned.

It has been recognized that, to achieve the desired result, official immunity need not be applied to all actions engaged in by any governmental official. Immunity is only afforded in those instances where the official in question has performed a discretionary ²⁴ — as opposed to a ministerial — act, within the scope of his official duties. Kendall v. Stokes, 44 U.S. (3 How.) 87, 98, 11 L. Ed. 506 (1845); Cooper v. O'Connor, supra, 66 App.D.C. at 103, 99 F.2d at 138; Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 164 (1959). Cf. Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S. Ct. 1441, 10 L.Ed.2d 605 (1963). Thus a two-part analysis is required: (1) was the individual performing acts within the scope of his official duties, and (2) did the action undertaken require the exercise of discretion.

It is not necessary — in order that acts may be done within the scope of official authority — that they should be prescribed by statute (United States v. Birdsall, 233 U.S. 223, 230-231, 34 S.Ct. 512, 58 L.Ed. 930, . . .); or even that they should be specifically directed or requested by a superior officer. Mellon v. Brewer, 57 App.D. C. 126, 129, 18 F.2d 168, 171, ., certiorari denied, 275 U.S. 530, 48 S.Ct. 28, 72 L.Ed. 409, It is sufficient if they are done by an officer “in relation to matters committed by law to his control or supervision.” [Italics supplied] (Standard Nut Margarine Co. v. Mellon, 63 App.D.C. 339, 341, 72 F.2d 557, 559, certiorari denied, 293 U.S. 605, 55 S.Ct. 124, 79 L.Ed. 696, . . .); ór that they have “more or less connection with the general matters committed by law to his control or supervision.” [Italics supplied] (Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780, . ; and see Lang v. Wood, 67 App.D.C. 287, 288, 92 F.2d 211, 212); or that they are governed by a lawful requirement of the department under whose authority the officer is acting.

Cooper v. O’Connor, supra, 66 App.D.C. at 104, 99 F.2d at 139. See Barr v. Matteo, supra, 360 U.S. at 575, 79 S.Ct. 1335; Gregoire v. Biddle, supra, 177 F. 2d at 581. All of the District of Columbia and Federal officials named as defendants have only engaged in official conduct in furtherance of a duly authorized congressional investigation. “It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action.” Watkins v. United States, supra, 354 U.S. at 187, 77 S.Ct. at 1179. This obligation is even more compelling where the citizen involved is a governmental official. Pearson v. Wright, 156 F.Supp. 136, 137 (D. D.C.1957). See Farr v. Valentine, 38 App.D.C. 413, 419 (1912). Clearly the failure of an official to cooperate when matters under his control are being examined by a congressional committee would amount to malfeasance in office. See Cooper v. O’Connor, supra, 66 App. D.C. at 105, 99 F.2d at 140. We must therefore conclude that all the complained of actions were undertaken by the defendant-officials within the scope of their official authority.

“The test of whether a challenged action is ministerial or non-ministerial is not the office per se or its height, but whether the function itself was of such discretionary nature that the threat of litigation would impede the official to whom it was assigned.” David v. Cohen, supra, 132 U.S.App.D.C. at 337, 407 F.2d at 1272. All of the pertinent actions undertaken by the officials in question here were non-ministerial. The District of Columbia school officials were required to exercise judgment in deciding what information they should provide the House District Committee investigators, who in turn, had to exercise clear discretion in determining what data to seek.²⁵ For these reasons, we are forced to conclude that the District Court properly dismissed the suit against the District of Columbia school officials,²⁶ as well as against the Federal officials.²⁷

For the foregoing reasons, the decision of the District Court must be

Affirmed.

APPENDIX

POLICY STATEMENT REGARDING CONFIDENTIAL INQUIRIES

The Board of Education has determined the need to establish certain policies in order to prevent the disclosure of confidential information and reports regarding .students and school personnel. It is the view of the Board that there are aspects of the professional relationships of school personnel with students, parents, and community which must be considered privileged and remain confidential.

The Board of Education in an effort to provide for the protection of the confidentiality of certain information related to school affairs and to respond appropriately to inquiries into the conduct of school affairs in the Public Schools of the District of Columbia establishes the following policies with regard to the release of such information:

1. Formal requests for confidential information regarding students and school personnel, shall be addressed to the Board of Education or its designee and the Superintendent or his designee for appropriate action.

2. The names, addresses and other identifying information related to students are not to be released under any circumstances by school personnel without prior written approval by the Superintendent and President of the Board of Education. The Superintendent and the Board of Education shall ensure that the confidentiality of privileged information is protected.

3. The names, addresses and other identifying information related to teachers or any other school personnel are not to be released under any circumstances by school personnel without prior written approval by the Superintendent and President of the Board of Education. The Superintendent and the Board of Education shall ensure that the confidentiality of privileged information is protected.

4. The Superintendent shall' define with reasonable precision what is privileged information. The Board of Education may review and amend the Superintendent’s definitions.

5. Privileged information can only be released as provided for by Chapter XVI, Section 6, Paragraph 1 of the Rules of the Board.

The foregoing shall not be applicable to legislative or judicial subpoenas issued to school personnel. However, upon receipt of such subpoena the employee, through his supervisor, shall as soon as possible contact either the Superintendent or his designee, who, in turn, may refer the matter to the Corporation Counsel for consideration. Approved by the Board February 17, 1971

1 . Although the complaint initially named all of the Members of the House District Committee as defendants, we subsequently granted appellants’ motion to sever Congressmen Brock Adams, ' Charles C. Diggs, Jr., Donald M. Fraser, Gilbert Gude, and Andrew Jacobs, Jr., and to dismiss this appeal with respect to them. June 7, 1971. The stipulation upon which such dismissal was based, indicated that the above-named Congressmen oppose the distribution of the House Committee Report, so long as the names complained of remain therein, and that they would have voted against the publication thereof had they been given the opportunity to do so.

2 . Investigation and Study of the Public School System of the District of Columbia (Report of the Committee on the District of Columbia, House of Representatives), H.R.Rep. No. 91-1681, 91st Cong., 2d Sess. (December 8, 1970). This report was prepared pursuant to a House Resolution, H.Res. 76, 91st Cong., 1st Sess. (February 5, 1969), which provides :

Resolved, That the Committee on the District of Columbia, acting as a whole or by subcommittee, is authorized to conduct a full and complete investigation and study of the following:

(1) the organization, management, operation, and administration of any department or agency of the government of the District of Columbia;

(2) the organization, management, operation, and administration of any independent agency or instrumentality of government operating solely in the District of Columbia; and

(3) those operations or activities directly affecting the' District of Columbia, of any governmental agency or instrumentality operating on a regional basis entirely within the Washington metropolitan area: Provided, That the Committee shall not undertake any investigation of any subject which is being investigated by any other committee of the House.

For the purpose of carrying out this resolution the committee or subcommittee is authorized ... to hold such hearings, and to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents, as it deems necessary

The committee shall report to the House as soon as practicable during the present Congress the results of its investigation and study together with such recommendations as it deems advisable. Any such report which is made when the House is not in session shall be filed with the Clerk of the House.

S{! Sfc * *

Counsel for appellants indicated at oral argument in the District Court that he does not contend that the House District Committee acted pursuant to an invalid legislative purpose in investigating the District of Columbia Public School System and publishing the Report (Tr. 23, 24, 27), but he does seek declaratory and injunctive relief against the Committee as well as others. Art. I, § 8, cl. 17, of the U. S. Constitution vests Congress with the power of “exclusive legislation” over the District of Columbia. See note 6, infra.

3 . This information was obtained voluntarily from District of Columbia school personnel by House District Committee investigators. Before the District Court below, appellants unsuccessfully sought an injunction against further disclosure of such “confidential information” by District of Columbia school officials.

4 . H.R.Res. 76, supra note 2.

5 . 28 U.S.C. § 2675(a) provides:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or. omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.

Appellants have not challenged the District Court’s dismissal of the suit against the United States on appeal.

6 . U.S.Const. art. I, § 8 provides:

“The Congress shall have Power [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, . ” See S. R. A., Inc. v. State of Minn., 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851 (1946); Gudmundson v. Cardillio, 75 U.S.App.D.C. 230, 126 F. 2d 521 (1942); La Forest v. Board of Commissioners of District of Columbia, 67 App.D.C. 396, 92 F.2d 547, cert. denied, 302 U.S. 760, 58 S.Ct. 367, 82 L.Ed. 588 (1937).

7 . See note 2, supra.

8 . For the fiscal year ending June 30, 1970, Congress appropriated $140,386,-000 for public education in the District of Columbia (83 Stat. 429). Further evidence of the vital interest of Congress in the current District school situation can be deduced from a letter of the President of the Board of Education appearing at pp. 16-19 of the Report which indicates that a grand total of $10,022,041 in additional appropriations will be needed “to create a safe learning environment for its students as determined by the school administration and the Board of Education.”

9 . In light of the vast amount of tax dollars spent annually on public education in the District of Columbia, the great interest of the public in the effectiveness of the District schools is apparent. It must be emphasized that "[t]he effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.” Barr v. Matteo, 360 U.S. 564, 577, 79 S.Ct. 1335, 1342, 3 L.Ed.2d 1434 (1959) (concurring opinion of Black, J.). “The informing function of Congress should be preferred even to its legislative function.” Watkins v. United States, 354 U.S. 178, 200 & n. 33, 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273 (1957). The fact that an educational institution was being investigated did not detract from Congress’ general authority. See Barenblatt v. United States, 360 U.S. 109, 112, 129, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).

10 . Appellants have raised an issue, concerning alleged violations of House Rules, in their appeal brief which was never raised in the District Court. We dismiss this portion of the appeal on the ground that it was not properly asserted below. Miller v. Avirom, 127 U.S.App.D.C. 367, 384 F.2d 319 (1967); United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936); Johnston v. Reily, 82 U.S.App.D.C. 6, 7, 160 F.2d 249, 250 (1947); United States v. United States Fidelity & Guaranty Co., 236 U.S. 512, 529, 35 S.Ct. 298, 59 L.Ed. 696 (1915); Williams v. Union Pacific Ry. Co., 286 F.2d 50, 55 (9th Cir. 1960); Burns v. United States, 274 U.S. 328, 336, 47 S.Ct. 650, 71 L.Ed. 1077 (1927). We do not believe that appellants have demonstrated the existence of any exceptional circumstances which might warrant divergence from this general principle. Compare Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) ; Morgan v. Garris, 113 U.S.App.D.C. 222, 223, 307 F.2d 179, 180 (1962) (en banc). “This is not a mere technicality but is of substance in the administration of the business of the courts. Enormous confusion and interminable delay would result if counsel were permitted to appeal upon points not presented to the court below. Almost every case would in effect be tried twice under any such practice. While the rule may work hardship in individual cases, it is necessary that its integrity be preserved.” Johnston v. Reily, supra, 82 U.S.App.D.C. at 7, 160 F.2d at 250.

A large part of appellants’ argument, which is raised here for the first time, is devoted to the claim that they were entitled under Rule XI, 27(m) of the Rules of the House of Representatives, to have the evidence with respect to them received in executive session. Their argument further assumes that such procedure would have resulted in suppressing disclosure of the statements. However, an express determination by the “Committee” is required before it is necessary to convene an executive session of the Committee and no such determination was here made. Also, it is implicit from a reading of Rule XI, 27(o) that the taking of testimony in executive session does not automatically result in its suppression. It provides:

“(o) No evidence or testimony taken in executive session may be released or used in public sessions without the consent of the committee.”

Jefferson’s Manual and Rules of the House of Representatives, p. 387, 92nd Cong. It thus appears that the Committee may still consent to the release of any such evidence or testimony and to its use in public sessions.

Appellants also contend that under the Rules of the House the Report was improperly released without allowing certain Congressmen to express a minority view. It does appear, however, that some of the Congressmen were orally informed. In any event, the delivery of the Report to the Clerk for printing and reference to the proper calendar under Cl. 2 of Rule XIII were reported in the Congressional Record for December 8, 1970 and the Report was on that date referred to the whole House on the State of the Union and ordered to be printed (116 Cong.Rec. 40311). Such points of order must be raised by a member in the House of Representatives and unless done so in timely manner are waived. Appellants thus do not furnish a basis that justifies ordinary judicial intervention.

11 . See 5 Debates on the Federal Constitution 406 (J. Elliot ed. 1876) ; 2 Records of the Federal Convention of 1787, p. 246 (M. Farrand rev. ed. 1966).

12 . See Celia, The Doctrine of Legislative Privilege of Freedom of Speech and Debate : Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk U.L.Rev. 1, 3-16 (1968) ; Yankwich, The Immunity of Congressional Speech — Its Origin, Meaning and Scope, 99 U.Pa.L.Rev. 960, 961-966 (1951).

It is significant that legislative freedom was so carefully protected by constitutional framers at a time when even Jefferson expressed fear of legislative excess. [See Jefferson, Notes on the State of Virginia (3rd Am. ed. 1801), 174-175.] For the loyalist executive and judiciary had been deposed, and the legislature was supreme in most States during and after the Revolution. “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison, The Federalist, No. XLVIII.

Tenney v. Brandhove, 341 U.S. 367, 375, 71 S.Ct. 783, 787, 95 L.Ed. 1019 (1951).

13 . 2 Works of James Wilson (Andrews ed. 1896) 38, as quoted in Tenney v. Brandhove, supra, 341 U.S. at 373, 71 S.Ct. at 786.

14 . The Supreme Court has frequently cited the language of Chief Justice Parsons, of the Massachusetts Supreme Court, in Coffin v. Coffin, 4 Mass. 1, 27 (1808), interpreting the Massachusetts speech and debate clause, in support of its expansive interpretation rule:

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate ; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and I would define the article as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules, [emphasis supplied]

Tenney v. Brandhove, supra, 341 U.S. at 373-374, 71 S.Ct. at 787; Kilbourn v. Thompson, supra, 103 U.S. at 203.

15 . The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130 [3 L.Ed. 162], that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. See cases cited in [State of] Arizona v. [State of] California, 283 U.S. 423, 455, [51 S.Ct. 522, 526, 75 L.Ed. 1154].

Tenney v. Brandhove, supra, 341 U.S. at 377, 71 S.Ct. at 788.

16 . “[I]t does not lie with this Court to say when a congressional committee should be deemed to have acquired sufficient information for its legislative purposes.” Hutcheson v. United States, 369 U.S. 599, 619, 87 S.Ct. 1005, 1015, 8 L.Ed. 2d 137 (1962). Similarly, this court should not interpose its judgment for that of a congressional committee with respect to the amount of data required to bolster the credibility and effectiveness of a committee report.

17 . Compare Kilbourn v. Thompson, 103 U. S. 168, 26 L.Ed. 377 (1881); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ; and Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L. Ed.2d 235 (1966), where the underlying authorizations were invalid. Since the House District Committee’s enabling resolution was clearly valid, as appellants have conceded, the holdings in these cases are inapposite to the present situation. The scope of the House District Committee’s inquiry into the District of Columbia Public School System was properly limited and defined, and no compulsory process was utilized. Thus the rationale of Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957), is not relevant here. See Hutcheson v. United States, 369 U.S. 599, 613 n. 16, 616, 82 S.Ct. 1005, 8 L.Ed.2d 137 (1962).

18 . These include the Clerk, Staff Director, Counsel, and consultant to the Committee, its investigator, the Superintendent of Public Documents and the Public Printer.

19 . Although it might be possible to extend the protection of the Speech or Debate Clause to cover the District of Columbia officials and employees who cooperated with the House District Committee’s investigation, we need not reach this complex issue, due to the official immunity doctrine discussed in Part IV of this opinion. The parties have not argued this point, and we believe that its resolution is best left to another time. Compare United States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972).

20 . Brief for Federal Appellants at 20 n. 44.

21 . These include the President and Members of the Bonrd of Education, the Superintendent of the Public School System, and the Principal and teacher at Jefferson Junior 'High School.

22 . Although we concluded in Part II of this opinion that the Federal legislative employees are protected by the Speech or Debate Clause coverage, it is apparent that they are also protected by the official immunity doctrine. Therefore, wo have included them in the discussion pertaining to this area.

23 . In light of events which have transpired subsequent to the occurrences of which appellants have complained, concerning the District of Columbia officials, we do not believe that a decision on the injunc-tive relief sought against these defendant-appellees would be appropriate. On February 17, 1971, the Board of Education of the District of Columbia adopted a revised “Policy Statement Regarding Confidential Information” [see Appendix to this opinion], which appears to fully protect the rights of students, including appellant-pupils herein. There is no reason to think that this new policy will not be fully implemented by all school personnel, thus we are forced to conclude that there is no substantial threat of future injury to appellants which would necessitate a decision on their request for an injunction against tho District of Columbia appellees. Dulles v. Nathan, 96 U.S.App.D.C. 190, 225 F.2d 29 (1955) ; Spreckels Sugar Co. v. Wickard, 75 U.S.App.D.C. 44, 131 F.2d 12 (1941). See Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) ; Davis v. Ichord, 143 U.S.App. D.C. 183, 442 F.2d 1207 (1970) ; Reiss v. Richardson, 147 U.S.App.D.C. 219, 455 F.2d 1287 (decided January 13, 1971).

24 . “Where [discretion and judgment] are important, it is desirable that they operate freely and without the inhibiting influence of potential legal liability asserted with the advantage of hindsight.” Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 119, 337 F.2d 152, 155 (1964).

25 . Appellants have in no way challenged these facts, nor could they.

26 . Unlike the situation which was present in Spencer v. General Hospital of District of Columbia, 138 U.S.App.D.C. 48, 425 F.2d 479 (1969) (en banc), we believe that the i)resent case is one where “wise considerations of public policy suggest the undesirability of subjecting the [District of Columbia officials to suit.” 138 U.S.App.D.C. at 52, 425 F.2d at 483.

27 . Without intimating any opinion concerning the merits of appellants’ substantive claims of official abuse of power, we should note that their remedy — if one is in fact called for — lies not with the courts, as we have indicated, but rather with Congress and the general public.

“It is, of course, true,” us was said in McCray v. United States, 195 U.S. 27, 55, 24 S.Ct. 769, 776, 49 L.Ed. 78, “that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power.”

Barenblatt v. United States, 360 U.S. 109, 132-133, 79 S.Ct. 1081, 1096, 3 L.Ed.2d -(1959). See Tenney v. Brandhove, supra, 341 U.S. at 378, 71 S.Ct. 783, 95 L.Ed. 1019; Barsky v. United States, supra, 83 U.S.App.D.C. at 136, 167 F.2d at 250.

It appears from oral argument before the District Court that appellants elected to come immediately to court rather than to approach the School Board or the administration (Tr. 22). By so doing they may have given more publicity to the information they seek to suppress than would have otherwise resulted. This lawsuit thus may not serve the best interests of appellants. IVe have not explored the question as to whether appellants were required to request the relief they seek from defendants before bringing this lawsuit.