(concurring in the result).
I cannot agree that the issue concerning denial of Appellant’s motion to the Committee is open. The point was not raised to the Committee; it was not raised in the District Court; it was not raised in this court.
The orderly and efficient administration of the business of the courts ought to preclude — and I think it does preclude —a litigant from ignoring a point which is obvious even though not valid only to have it raised sua sponte by a member of the reviewing court.
That the point discussed by the court has no merit is shown by our own holdings that a ruling may be implicit in the conduct of a tribunal. Judge Wright pointed this out in Cooper v. United States, 119 U.S.App.D.C. 142, 143, 337 F.2d 538, 539 (1964), where he articulated the reasons underlying the summary affirmance of the conviction where the District Court proceeded to trial without entering an order or formally ruling on the Defendant’s competence to stand trial. “The court did not in terms hold that Cooper was competent. But its ruling to this effect is clear from its actions [in proceeding to trial].”
Appellant here moved to vacate the subpoena and “set aside” the hearing. His objection went to the fact of any ■questioning at all. To suggest that continuance of the hearing did not dispose ■of Appellant’s motion by denying it is to ignore the realities of the situation. Nor is the rule of the Quinn and Bart ■cases, cited by the court, to the contrary. Those cases significantly did not involve express directions to answer such as Gojack here received. See 349 U.S. at 222, 75 S.Ct. at 714. Moreover, we expressly held the Quinn rule unavailable to Appellant on his former appeal. Gojack v. United States, 108 U.S.App.D.C. 130, 139, 280 F.2d 678, 687 (1960).
For these reasons I am bound to express my disagreement with the court’s discussion of this point.