In re: Special Grand v.

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 31, 2005
• Docket: 04-1193
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit PUBLISH June 15, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT

In re: SPECIAL GRAND JURY 89-2,

Appellants. Nos. 04-1193 and 04-1215

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF COLORADO (D.C. NO . 96-Y-203)

Jonathan Turley, George W ashington Law School, W ashington, D.C., and Kenneth E. Peck, Bushell & Peck, Denver, Colorado, (Bette K . Bushell, Bushell & Peck, Denver, Colorado, with him on the brief) for the A ppellants.

Jerry N. Jones, Assistant United States Attorney (W illiam J. Leone, Acting United States Attorney, with him on the brief), Denver, Colorado, for the Appellee.

Before M U RPH Y, EBEL, and HA RTZ, Circuit Judges.

HA RTZ, Circuit Judge.

Federal Rule of Criminal Procedure 6(e) prohibits grand jurors, court

reporters, government attorneys, and others from disclosing “a matter occurring

before the grand jury.” The rule contains several exceptions authorizing

disclosure to certain government attorneys and other government officials in

specified circumstances, and permitting a court to authorize disclosure in other limited circumstances. Appellants were members of a federal grand jury

empaneled in 1989 to investigate possible environmental crimes at the Rocky

Flats Nuclear W eapons Plant (Rocky Flats) in Colorado. They were discharged

on M arch 24, 1992, on the eve of a plea agreement between the United States

Attorney and Rockwell International Corporation (Rockwell), the operator of the

facility under contract with the Department of Energy (DOE) from 1975 through

1989. At that time the grand jury submitted to the district court a report of its

findings. In January 1993 the district court publicly released a heavily redacted

version of the report.

On August 1, 1996, almost all the members of the grand jury filed with the

district court a petition requesting that the secrecy obligation imposed on them by

Rule 6(e) be lifted so that they could give an “accurate account” of certain

matters that had occurred before the grand jury. Aplt. App. at 8. Later they

added requests to release a less redacted version of the report, along with portions

of the grand jury transcript and certain sealed filings from this case. They

contend that some of this material is not governed by Rule 6(e); that some can be

released under the exceptions in Rule 6(e); and that insofar as Rule 6(e) does not

authorize disclosure of other material, the district court has inherent power to do

so. One of the grand jurors, Appellant Kenneth Peck, has also separately filed a

similar petition. The district court denied both petitions, believing that it lacked

jurisdiction because the petitions sought only an advisory opinion and therefore

-2- did not present a Case or Controversy under Article III of the United States

Constitution. Appellants filed two notices of appeal, one by Appellant Peck and

one by the others. W e have jurisdiction under 28 U.S.C. § 1291.

On appeal the government contends that Appellants’ notices of appeal were

untimely because they did not meet the 10-day deadline for appeals in criminal

cases, and that the district court lacked jurisdiction because the petitions sought

an advisory opinion and Appellants lacked standing. W e disagree, holding that

the notices of appeal satisfied the time limits for appeals in civil cases and that

the district court had jurisdiction. W e therefore reverse and remand for further

proceedings, providing some guidance to the district court regarding the scope of

Rule 6(e).

I. B ACKGR OU N D

Rocky Flats is owned by the United States. It produced components for

nuclear weapons until it was shut down more than 10 years ago. From June 30,

1975, through 1989 it was operated by Rockwell. In 1987 the FBI began

investigating possible environmental crimes occurring at Rocky Flats, and on

August 1, 1989, the United States District Court for the District of Colorado

empaneled Special Grand Jury 89-2 for further investigation. The grand jury met

for more than two and one-half years, examined hundreds of boxes of evidence,

and heard testimony from more than 100 witnesses. Plea negotiations between

prosecutors and Rockwell began in 1990 and culminated in an agreement on

-3- M arch 26, 1992, two days after the grand jury was formally discharged.

Rockwell pleaded guilty to five felonies and five misdemeanors and agreed to pay

a fine of $18.5 million. The plea agreement was accepted by the district court on

June 1, 1992.

At the end of its service on M arch 24, 1992, the grand jury submitted to the

district court a report of its findings; draft indictments purporting to charge

current and former Rockwell and DOE employees with crimes; and documents,

designated as “presentments,” that alleged wrongdoing without any formal

charges. See In re Grand Jury Proceedings, 813 F. Supp. 1451, 1456 (D. Colo.

1992). The U nited States A ttorney refused to sign the indictments. On

September 25, 1992, the supervising court issued an order prohibiting the report

from being released to the public. See id.

A newspaper and a television station then filed a petition with the district

court seeking release of the report, draft indictments, and presentments. The

court denied much of the petition. It rejected the request for the draft

indictments, noting that grand juries cannot initiate a prosecution or issue an

indictment without the signature and approval of a United States Attorney. Id. at

1461-62. The request for the “presentments” was likew ise denied because

presentments are “considered obsolete in the federal system” and are “no longer

included by statute as a charging document.” Id. at 1462 (internal citations

omitted).

-4- As for the report, the district court acknowledged that grand juries may

issue reports, see 18 U.S.C. § 3333, but it refused to release in full the report

prepared by this grand jury, saying:

The Court explained to the Special Grand Jury the detailed requirements of how to submit a report for public view. The Grand Jury held in its hands a unique opportunity to enlighten a community entitled to know of the successes and failures of its government, in this case, the operation of Rocky Flats. Accordingly, we must be clear on this point: it was possible for the special grand jury to draft an acceptable report, a report which the Court could, in good conscience, release to public view. It is with great regret that the Court has watched the Special Grand Jury fall short of the objectives of its empaneling. The Grand Jury submitted documents that failed the legal requirements for release.

Id. at 1459. 1 The court added, however, that “it may be that portions of the

Report may legitimately be disclosed in order to enlighten the community on

matters dealing with health, safety, and environmental concerns.” In re Grand

Jury Proceedings, 813 F. Supp. at 1468. It therefore ordered the government to

1 In a later order, the court summarized its reasons for refusing to release the report. The report was faulty, the court said, because it

accused individuals identifiable by name or position, including accusations against public officials that lacked the required recommendation for removal; dealt in rumor and conjecture; engaged in social and even legal argument; dealt with political and social issues outside the province of the special grand jury’s duty of investigating crime; [and] contained charges not based upon a preponderance of the evidence.

Aplt. App. at 245 (Order Re Release of G rand Jury Docs. at 2, Jan. 26, 1993).

-5- produce a redacted copy of the report for in camera review for possible release.

Id.

The court rejected some of the government’s proposed redactions, but did

redact “passages of legal argumentation and unsubstantiated, inappropriate

charges against nongovernmental entities” as well as “material highly critical of

identifiable individuals, forays into recommendations on national nuclear

facilities policy, charges against entities beyond the scope of the G rand Jury’s

inquiry, conclusions without any factual bases whatsoever, and discussions of

policy or activities outside the Grand Jury’s charged jurisdiction . . . .” Aplt.

App. at 247 n.4 (Order Re Release of Grand Jury Docs. at 4, Jan. 26, 1993). The

court ordered release of the redacted report. No grand juror was a party to any of

these proceedings.

On August 1, 1996, eighteen members of the grand jury (Appellants) filed a

petition with the district court “seeking permission to release information and

freedom to speak publicly about their experience as grand jurors and their

perceptions of the conduct of government employees and Department of Justice

lawyers.” App. A at 17 (Order on Sealed Pets. at 2, M arch 12, 2004). An open

hearing on the petition was held on N ovember 26, 1996. One of A ppellants’

attorneys, Jonathan Turley, was instructed to file a proffer detailing the

occurrences before the grand jury that Appellants wished to discuss publicly. The

proffer w as filed under seal in February 1997.

-6- The matter was then referred to a magistrate judge to conduct a “non-

adjudicatory hearing at which time sworn testimony will be given by former

members of Grand Jury 89-2 relating to conduct or events which they allege have

occurred.” Aplt. App. Vol. 2 at 257. The district court ordered that the

proceeding be closed, advising that this testimony was subject to the secrecy

requirements of Rule 6(e). Testimony was taken from several of the grand jurors

and sealed transcripts were delivered to the district court.

On September 24, 1997, the district court granted a motion relieving

M r. Turley and co-counsel Joan M anley from representation of Appellant Kenneth

Peck. Bette K. Bushell continued to represent Appellant Peck but withdrew as

counsel for the other 17 Appellants. (W e will refer to the 17 Appellants still

represented by M r. Turley and M s. M anley as “the Turley Appellants.”) On

September 26, in a sealed motion, M r. Turley requested release to the parties of

the transcripts of the grand jurors’ testimony. On October 15 the district court

ordered that the transcripts of the sealed hearing be released to the United States

Attorney, as well as to M s. Bushell and M r. Turley, subject to the secrecy

requirements of Rule 6(e), “for the limited purpose of pursuing this matter before

this court and for no other purpose.” Id. at 269. On December 30, 1997,

M r. Peck submitted a “M emorandum Concerning Proposed Procedure for

Litigating the Issues.” Aplee. Supp. App. Vol. B at 396. The district court did

-7- not act on the memorandum. Nothing further occurred in the case for more than

five years.

On April 22, 2003, in response to a letter from one of the grand jurors, the

district court issued an order directing that “respective counsel for the petitioners

shall file their statements specifying the relief sought.” Aplt. A pp. Vol. 2 at 267.

On June 21, 2003, the Turley Appellants submitted their statement. They

requested release of (1) the transcript of the grand jurors’ testimony and the

proffer from the sealed hearing conducted in 1997; (2) the legal arguments and

filings in this case; and (3) portions of the grand jury transcript and a less-

redacted version of the grand jurors’ report. They also requested (4) court

findings regarding the grand jury’s allegations of wrongdoing, and possible

referral for investigation; (5) “confirmation that the grand jurors m ay discuss their

allegations and the underlying controversy within the boundaries of the public

record created in this case,” id. at 287; (6) preservation of all grand jury material

for possible future investigations by the Justice Department or Congress; and (7)

attorney fees. They further suggested that this relief be addressed in two stages,

with items (1) and (2) being addressed first and the remaining items addressed

later. They also suggested procedures for dealing with each requested category of

relief. W ith respect to the grand jury transcript they recommended that both sides

be given the opportunity to review the transcript and identify which portions, if

any, were relevant to the proffer and testimony of the grand jurors. They said that

-8- “[t]hese portions will almost exclusively concern exchanges between the special

grand jurors and the prosecutors . . . .” Id. at 286. The parties would then

propose redacted transcripts or summaries to the district court, which would

review them to determine what should remain sealed.

Appellant Peck filed a separate petition on June 24, 2003. According to the

district court, his petition contends that because he is a lawyer, he should be

released from the grand jury secrecy obligations so that he can report “claimed

unethical and potentially criminal acts” and “inform the Attorney Regulation

Counsel of the Colorado Supreme Court, the Inspector General for the

Department of Justice, the Federal Bureau of Investigation and other regulatory

and prosecutorial officials of his perceptions of the conduct of those involved in

the Special Grand Jury proceedings.” Id. at 373 (Order on Sealed Petitions at 4,

M arch 12, 2004). Appellant Peck also requested release of the grand jury report,

but without any redactions.

In an order dated M arch 12, 2004, the district court denied the petitions for

lack of jurisdiction, stating:

[T]he petitions now before this court and the procedures suggested do not enable this court to go forward to adjudicate and balance the competing interests of grand jury secrecy and the interests of petitioners in public disclosure. It is fundamental to the jurisdiction of this court that questions presented to it must be in the form of a case or controversy under Article III of the United States Constitution. W hile the Tenth Circuit Court of Appeals recognized in Hoffman-Pugh [v. Keenan, 338 F.3d 1136 (10th Cir. 2003),] that the plaintiff there might seek relief from the court having supervisory

-9- authority over the state grand jury and the petitioners are essentially seeking that type of relief here, the ultimate result would be nothing more than an advisory opinion of general conclusions and insufficient particularity to protect the petitioners from possible sanctions in criminal or civil proceedings.

Id. at 374.

II. D ISC USSIO N

A. Timeliness of Notices of Appeal

The district court’s order denying Appellants their requested relief was

filed on M arch 12, 2004. The Turley Appellants filed their notice of appeal 56

days later on M ay 7, 2004. Appellant Peck filed his notice of appeal on M ay 21,

2004, fourteen days after the Turley Appellants filed their notice and 70 days

after the district court issued its final order. After issuing on October 7, 2004, an

order to Appellants to show cause why their appeals should not be dismissed as

untimely, this court dismissed the appeals as untimely on January 31, 2005.

Appellants filed a petition for rehearing, which was granted on M arch 23, 2005,

and the timeliness issue was referred to the merits panel. W e now hold that the

notices of appeal were timely.

This court has held that “[a] timely notice of appeal is both mandatory and

jurisdictional.” United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th

Cir. 2003) (internal quotation marks omitted). 2 The dispute here is w hether this

2 United States v. Robinson, 361 U.S. 220, 229 (1960), is often cited for this proposition. But in Eberhart v. United States, 126 S. Ct. 403 (2005), the Supreme (continued...)

-10- case is civil or criminal. If criminal, then the notices of appeal were untimely

under Fed. R. App. P. 4(b)(1)(A), which requires a defendant to file the notice

within 10 days after entry of the judgment or order being appealed. If civil, then

the Turley Appellants’ notice was timely under Fed. R. App. P. 4(a)(1)(B), which

permits 60 days to file the notice in a civil case to w hich the government is a

party, and Appellant Peck’s notice was timely under Fed. R. App. P. 4(a)(3),

which grants an additional 14 days after another party has filed a timely notice.

See Woodruff v. Covington, 389 F.3d 1117, 1120-21 (10th Cir. 2004)

(Rule 4(a)(3) permits “any party to file a notice of appeal from any order within

fourteen days after another party appealed a decision of the district court”).

Ordinarily, it is obvious whether a case is criminal or civil. A criminal

prosecution is a “criminal case” within the meaning of Rule 4. See 20 James W m.

M oore et al., M oore’s Federal Practice ¶ 304.20 (3d ed. 1999) (hereafter M oore’s)

2 (...continued) Court retreated from what had been the widely accepted meaning of Robinson and strongly suggested that a timely notice of appeal is not jurisdictional and that objection to an untimely notice may be forfeited: “Robinson has created some confusion because of its observation that ‘courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.’ . . . [S]ubsequent opinions have repeated this phrase, attributing it directly or indirectly to Robinson.” Id. at 406 (internal citation omitted). But the “narrow and unremarkable holding” of Robinson was that “when the Government objected to a filing untimely under Rule 37, the court’s duty to dismiss the appeal was mandatory. The net effect of Robinson . . . is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection, and to admonish defendants that timeliness is of the essence . . . .” Id. Because we conclude that Appellants’ notices of appeal were timely, we do not need to resolve today whether timeliness of a notice of appeal is jurisdictional.

-11- And “[t]he term ‘civil case,’ although not defined in Appellate Rule 4, has been

broadly construed to cover all cases that are not criminal prosecutions.” Id. ¶

304.10. The language of Rule 4(b) itself is quite suggestive. Entitled “Appeal in

a Criminal Case,” its timeliness requirements deal explicitly only with “ a

defendant’s notice of appeal,” Rule 4(b)(1)(A) (10-day limit), and “the

government[’s] . . . notice of appeal,” Rule 4(b)(1)(B) (30-day limit).

Accordingly, the 10-day time period generally applies only to a criminal

defendant being prosecuted by the government. Rule 4(b)(1)(A).

Nevertheless, there are gray areas presenting challenging issues. On

several occasions we have had to address whether a proceeding was criminal or

civil for purposes of Rule 4. Our leading, and controlling, opinion is the en banc

decision in United States v. Brouillet, 736 F.2d 1414 (10th Cir. 1984). Brouillet

held that a proceeding relating to the forfeiture of a criminal bail bond was

“essentially . . . civil” and governed by Rule 4(a)(1)(A), overruling our earlier

decision in United States v. Jones, 567 F.2d 965 (10th Cir. 1977). Jones had held

that such a forfeiture proceeding is a case “arising under the criminal law s and is

governed by the rules of criminal procedure respecting the filing of appeals,” id.

at 967, because “all provisions for release from custody on bail, including those

providing for forfeiture and judgment of default against the obligors on the bond,

are set forth in the Rules of Criminal Procedure and in the Criminal Code,” id. at

966-67. But Brouillet disowned that approach. W e noted that four other circuits

-12- had refused to follow Jones: “These circuits view a motion relating to the

forfeiture of a bail bond as essentially a civil proceeding arising from a criminal

one, similar to an action to collect a criminal fine.” Brouillet, 736 F.2d at 1415

(emphasis added). W e joined our fellow circuits in adopting the view that it is

the essential nature of the action, not the underlying proceeding it arose from, that

determines whether it is civil or criminal. See United States v. Holland, 214 F.3d

523, 526 (4th Cir. 2000) (“Ancillary motions in a criminal case are not

necessarily criminal . . . . Instead, a proceeding that is basically civil should be

considered a civil action even if it stems from a prior criminal prosecution.”

(internal citations omitted)).

Our subsequent opinions have generally followed this view. Company X v.

United States (In re Grand Jury Proceedings), 835 F.2d 237 (10th Cir. 1987),

held that an appeal from the district court’s denial of a motion to quash a

subpoena issued by a grand jury was a criminal case controlled by Rule 4(b). W e

noted the “investigative and charging function of the grand jury,” id. at 239, and

the need for expedition in resolving legal challenges to its work, id. “[G]rand jury

proceedings,” we concluded, “are criminal in nature.” Id.

Next, in United States v. M adden, 95 F.3d 38, 39 n.1 (10th Cir. 1996), w e

agreed with every other circuit that had ruled on the issue in holding that a motion

for return of property under Fed. R. Crim. P. 41(g) is civil rather than criminal.

Such proceedings are essentially civil because they “‘represent a means by which

-13- a criminal defendant can determine her rights in property, and not a part of the

trial and punishment process that is criminal law.’” Id. (quoting Hunt v. U.S.

Dep’t of Justice, 2 F.3d 96, 97 (5th Cir. 1993)).

Perhaps our one outlier is United States v. Robbins, 179 F.3d 1268, 1270

(10th Cir. 1999), which held that a defendant’s request for attorney fees after a

failed prosecution was a criminal case governed by Rule 4(b)(1)(A). Robbins was

charged with two counts of interfering with a federal employee but was acquitted

after only 25 minutes of jury deliberations. He moved for fees under the Hyde

Amendment, which provides that “‘. . . in any criminal case . . . [the court] may

aw ard a reasonable attorney’s fee and other litigation expenses, where the court

finds that the position of the United States was vexatious, frivolous, or in bad

faith . . . .’” Id. at 1269 (quoting Pub. L. No. 105-119, 111 Stat. 2440, 2519

(1998)). Rather than conducting an analysis of the essential nature of the

proceeding at issue, as had been our prior practice, we simply held that the

motion for attorney fees was criminal because it “arises out of” a criminal

prosecution, and therefore the shorter appeal period in Rule 4(b) applied. Id. at

1270. Although other circuits have not adopted that view of proceedings under

the Hyde Amendment, see United States v. Bunn (In re 1997 Grand Jury), 215

F.3d 430, 435 (4th Cir. 2000) (Rule 4(a) applies); United States v. Truesdale, 211

F.3d 898, 902 (5th Cir. 2000) (same); United States v. Perry, 360 F.3d 519, 523

n.3 (6th Cir. 2004) (same); United States v. Braunstein, 281 F.3d 982, 993 (9th

-14- Cir. 2002) (same); United States v. Wade, 255 F.3d 833, 839 n.5 (D.C. Cir. 2001)

(same), it is still controlling in this circuit. See U nited States v. Chanthadara,

230 F.3d 1237, 1260 (10th Cir. 2000) (“Absent an intervening change in the

law . . . , or en banc review, we cannot review the judgment of another panel of

this court.”). But Robbins did not, and could not, change the mode of analysis

mandated by our prior decision in Brouillet. Cf. United States v. Espinoza, 244

F.3d 1234, 1244 (10th Cir. 2001) (“[W ]hen faced with an intra-circuit conflict, a

panel should follow earlier, settled precedent over a subsequent deviation

therefrom.” (internal quotation marks omitted)).

Finally, in Espinosa-Talamantes, 319 F.3d at 1246, we held that a motion

to modify a term of imprisonment under 18 U.S.C. § 3582(c) was controlled by

Rule 4(b)(1)(A) because it w as “a continuation of the prior criminal proceeding.”

(internal quotation marks omitted). W e cited with approval United States v. Ono,

72 F.3d 101, 102 (9th Cir. 1995) (motion under § 3582(c) is “a step in the

criminal case” (internal quotation marks omitted)); United States v. Petty, 82 F.3d

809, 810 (8th Cir. 1996) (same); and United States v. Alvarez, 210 F.3d 309, 310

(5th Cir. 2000) (same).

Thus, however desirable a bright line rule may be, see Com pany X, 835

F.2d at 239 (“in matters relating to appellate jurisdiction, bright line rules are

highly desirable”), such clarity is not always possible, and we “must examine the

nature of the proceedings and of the order being appealed from” to determine

-15- whether this is a criminal or civil case, 20 M oore’s, supra, ¶ 304-20. In our view ,

the case before us is a civil one.

This case involves merely the request for disclosure of secret information,

not unlike a request under the Freedom of Information Act (FO IA). A similar

request was considered in United States v. M iramontez, 995 F.2d 56 (5th Cir.

1993). M r. M iramontez petitioned the district court for disclosure of grand jury

transcripts, which he intended to use to file a petition for a writ of habeas corpus

under 28 U.S.C. § 2241. The district court treated his petition as a request under

both FOIA and Rule 6(e), and denied it. W hen M r. M iramontez appealed 49 days

after the ruling, the Fifth Circuit held that the case was civil and therefore the

appeal was timely; the court noted that his conviction had long been final, and

that the district court’s treatment of the petition as a FOIA request “emphasizes

the civil aspect of these proceedings.” Id. at 58; see also United States v.

Campbell, 294 F.3d 824, 827 (7th Cir. 2002) (Rule 6(e) motions for disclosure are

civil proceedings). W e agree with M iramontez.

The government presents four reasons why this should be treated as a

criminal case. First, relying on our opinion in Company X, 835 F.2d at 237, it

asserts that appeals from grand jury proceedings are “categorically criminal.”

United States Juris. M em. Br. at 8. But in Company X we were being asked to

review a subpoena from an active grand jury. The appeal now before us, in

contrast, will not affect the “investigative and charging function of the grand

-16- jury,” 835 F.2d at 239, whose activities are to be reviewed. This grand jury was

discharged more than 13 years ago, and this case was not filed until more than

four years after that discharge.

Second, the government notes that the grand jurors are seeking to be

released from an obligation imposed on them by a rule of criminal procedure, and

that grand jury secrecy protects the proper functioning of the criminal justice

system. As described above, we relied on similar reasoning in Jones, noting that

proceedings relating to the forfeiture of a criminal bail bond arise “under the

criminal laws” and that the provisions relating to forfeiture “are set forth in the

Rules of Criminal Procedure.” 567 F.2d at 966-67. But we rejected this

reasoning when we overruled Jones in Brouillet, 736 F.2d at 1415.

Notwithstanding the underlying criminal case and rules, we looked to whether the

case was essentially civil. See id.

Closely related to this argument is the government’s third contention— that

it is a rule of criminal procedure, Rule 6(e), that governs the process for seeking

disclosure of grand jury materials. This is sufficiently addressed by the preceding

paragraph. W e add only that this argument is further undercut by M adden,

95 F.3d at 39 n.1, which held that a motion under Fed. R. Crim. P. 41(g) for

return of seized property is a civil proceeding.

Finally, the government contends that this case encompasses a core grand

jury function because Appellants have requested that the district court make

-17- referrals for possible prosecution based on what occurred before the grand jury.

But this is, at most, a collateral matter. There is no ongoing criminal

investigation. The gist of Appellants’ petitions is a request for disclosure of

documents and permission to speak.

W e hold that the proceeding below was “essentially a civil proceeding,”

Brouillet, 736 F.2d at 1415; Rule 4(a) therefore applies; and Appellants’ notices

of appeal w ere timely.

B. Article III Case or C ontroversy

The government contends that Appellants’ claim must fail because the

district court had no jurisdiction to hear the matter. The outlines of jurisdiction

were summarized in Flast v. Cohen, 392 U.S. 83 (1968):

The jurisdiction of federal courts is defined and limited by Article III of the Constitution. . . . [T]he judicial power of federal courts is constitutionally restricted to “cases” and “controversies.” . . . Embodied in the w ords “cases” and “controversies” are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.

Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when

-18- the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.

Id. at 94-95 (footnotes omitted). The government raises two arguments why the

district court lacked jurisdiction: (1) they endorse the district court’s view that

resolution of this case calls for only an advisory opinion, and (2) they contend

that Appellants lack standing. W e address, and reject, each argument in turn. W e

review jurisdictional questions de novo. See Prairie Band of Potawatomi Indians

v. Pierce, 253 F.3d 1234, 1241 (10th Cir. 2001).

1. Advisory O pinion

As stated in Preiser v. Newkirk, 422 U.S. 395, 401 (1975):

[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

(internal quotation marks omitted). Thus, “[t]he real value of the judicial

pronouncement— what makes it a proper judicial resolution of a ‘case or

controversy’ rather than an advisory opinion— is in the settling of some dispute

which affects the behavior of the defendant towards the plaintiff.” Hewitt v.

H elm s, 482 U.S. 755, 761 (1987) (emphasis omitted).

In denying Appellants’ petitions the district court invoked Article III and

stated that “the petitions now before this court and the procedures suggested do

-19- not enable this court to go forward to adjudicate and balance the competing

interests of grand jury secrecy and the interests of petitioners in public

disclosure,” and that were the court to do so, “the ultimate result would be

nothing more than an advisory opinion of general conclusions and insufficient

particularity to protect the petitioners from possible sanctions in criminal or civil

proceedings.” Aplt. App. Vol. 2 at 373 (Order on Sealed Petitions at 4, M arch 12,

2004).

It is not clear to us why the district court felt that resolution of A ppellants’

petitions would require an advisory opinion. Aside from attorney fees, which are

derivative of the other claims, see Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 107 (1998) (“An interest in attorney’s fees is insufficient to create

an Article III case or controversy where none exists on the merits of the

underlying claim.” (internal quotation marks and ellipsis omitted)), the Turley

Appellants requested six categories of relief: (1) release of the proffer and

transcript from the 1997 hearings; (2) release of the legal arguments and filings

from this case; (3) release of identified portions of the grand jury report and

transcript relevant to the proffer; (4) findings from the court regarding the

allegations of wrongdoing made by Appellants, and possible referral for further

investigation; (5) permission for Appellants to discuss their concerns “within the

boundaries of the public record,” Aplt. App. Vol. 2 at 287 (Petitioners’ Statement

of Relief at 15, June 23, 2003); and (6) preservation of all grand jury material for

-20- possible future investigations. W ith respect to categories (1) through (3), the

Turley Appellants also proposed procedures whereby the court could determine,

after appropriate motions and responses from each side, whether portions of these

materials should be redacted before release. Appellant Peck likewise requested

(1) release from the secrecy obligation, and (2) disclosure of (a) an unredacted

version of the grand jury report, (b) his testimony before the magistrate judge,

and (c) an affidavit attached to his petition which gives details about certain

occurrences before the grand jury. There would be nothing advisory about a

decision either granting or denying the requested relief. Either way, the ruling

would relate not to a hypothetical set of facts, but to a concrete dispute

concerning the parties before it.

The district court’s view appears to have been based, at least in part, on a

concern that the relief sought was not specific enough, because, for example,

Appellants did not state precisely what portions of the report should remain

redacted. But Appellants have sought release of specified documents. Their

recognition that the government may pose objections and that the court may grant

only partial relief hardly makes the case a hypothetical one. W e have been

directed to no authority, nor are we aware of any, stating that a claim seeks an

advisory opinion unless it predicts how the court will rule on the claim. Such

authority would surprise us.

-21- Perhaps the request for findings by the district court regarding A ppellants’

allegations of w rongdoing amounts to a request for an advisory opinion, because

it is not apparent how such nonbinding findings or recommendations would affect

anyone’s rights or duties under the law. See Preiser, 422 U.S. at 401 (federal

court lacks power “to decide questions that cannot affect the rights of litigants in

the case before them” (internal quotation marks omitted)); United States v.

Andersen, 940 F.2d 593, 597 (10th Cir. 1991) (“The ultimate decision whether to

charge a defendant, and what charges to file . . . , rests solely with state and

federal prosecutors.”). Appellants suggest that “[f]ederal courts routinely refer

such matters for investigation once a cognizable basis for suspicion of criminal or

unethical conduct has been brought to its attention.” A plt. Br. at 20. But we are

unaware of, and have not been cited to, any instances in which courts have

recognized a cause of action that merely seeks such a referral. The only authority

cited by Appellants is M uskrat v. United States, 219 U.S. 346 (1911), and

Hayburn’s Case, 2 U.S. 408 (1792). Neither opinion, however, supports their

contention. Neither case involved a request for a referral for prosecution (or

anything similar), and both held that there was no jurisdiction. Nevertheless,

Appellants’ request for findings regarding their allegations of wrongdoing are a

collateral matter, representing only a fraction of the relief sought, the bulk of

which certainly does not seek an advisory opinion; and that particular request can

be clarified, and perhaps rejected as beyond the court’s jurisdiction, on remand.

-22- 2. Standing

Closely related to the proscription against advisory opinions is the

“standing” requirement of Article III. It “ensures that a plaintiff has a sufficient

personal stake in a dispute to ensure the existence of a live case or controversy

which renders judicial resolution appropriate.” Tandy v. City of Wichita, 380

F.3d 1277, 1283 (10th Cir. 2004). To establish standing, “plaintiffs must allege

(and ultimately prove) that they have suffered an ‘injury in fact,’ that the injury is

fairly traceable to the challenged action of the Defendants, and that it is

redressable by a favorable decision.” Initiative & Referendum Institute v. Walker,

Nos. 02-4105, 02-4123, 2006 W L 1377028, at *3 (10th Cir. M ay 17, 2006) (en

banc). The government contends that Appellants have not suffered the requisite

injury, and that the relief sought would not adequately redress the claimed

injuries. Although this issue was raised below, the district court did not address it

because it found that it lacked jurisdiction on other grounds.

W e first address the requirement that plaintiffs suffer an “injury in fact.”

The Supreme Court has not precisely defined the term. Some alleged injuries

suffice and some do not. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992), the Supreme Court defined injury in fact as “an invasion of a legally

protected interest which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical.” (internal citations and quotation

marks omitted). The term legally protected interest has generated some confusion

-23- because the Court has made clear that a plaintiff can have standing despite losing

on the merits— that is, even though the interest would not be protected by the law

in that case. See, e.g., Warth v. Seldin, 422 U.S. 490, 500 (1975) (“[S]tanding in

no way depends on the merits of the plaintiff’s contention that particular conduct

is illegal . . . .”); Tandy, 380 F.3d at 1283 n.10 (same); Initiative & Referendum

Institute, 2006 W L 1377028, at *9 (“[W]here the plaintiff presents a nonfrivolous

legal challenge, alleging an injury to a protected right such as free speech, the

federal courts may not dismiss for lack of standing on the theory that the

underlying interest is not legally protected.”); cf. Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994) (newspapers seek disclosure of

sealed settlement agreement; “w e need not determine that the Newspapers w ill

ultimately obtain access to the sought-after Settlement Agreement. We need only

find that the Order of Confidentiality being challenged presents an obstacle to the

Newspapers’ attempt to obtain access.”).

The post-Lujan opinion in Bennett v. Spear, 520 U.S. 154 (1997), written

for a unanimous court by Lujan’s author, may have been trying to dispel some of

this confusion by substituting “judicially cognizable interest,” id. at 167, for

“legally protected interest” in the definition of injury in fact. W e take this new

locution to emphasize that an interest can support standing even if it is not

protected by law (at least, not protected in the particular case at issue) so long as

it is the sort of interest that courts think to be of sufficient moment to justify

-24- judicial intervention. This understanding would be consistent with the somewhat

cynical view of a leading treatise on the matter: “The only conclusion [regarding

what injuries are sufficient for standing] is that in addition to injuries to common

law, constitutional, and statutory rights, a plaintiff has standing if he or she

asserts an injury that the Court deems sufficient for standing purposes.” Erwin

Chemerinsky, Federal Jurisdiction § 2.3.2 at 74 (4th ed. 2003). The lesson for

this case is that once an interest has been identified as a “judicially cognizable

interest” in one case, it is such an interest in other cases as w ell (although there

may be other grounds for granting standing in one case but not the other). In the

new setting it may be abundantly clear that the interest is indeed not protected by

any law, but, as previously noted, that lack of protection goes to the merits, not

standing.

In this light, it is apparent that Appellants have a “judicially cognizable

interest” in stating what they know. That interest is the same interest justifying

standing to myriad litigants who have brought First Amendment claims

challenging restrictions on their speech. See, e.g., M embers of the City Council of

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803 (1984) (supporters of

political candidate had standing to challenge ordinance prohibiting posting of

signs on public property); American Civil Liberties Union v. Johnson, 194 F.3d

1149, 1154-55 (10th Cir. 1999) (internet providers had standing to challenge

statute prohibiting dissemination by computer of material that is harmful to

-25- minors). Appellants w ish to disclose matters that occurred before them while

serving as grand jurors. To be sure, they also seek disclosure of documents. But

this disclosure of documents is intimately connected to their desire to speak.

W hat they know and wish to disclose is also in those documents, and public

disclosure of the documents will both delineate what they can talk about and

protect them against claims that what they say has gone beyond what is permitted.

W e recognize, of course, that Appellants do not raise a claim under the

First Amendment. But there is no requirement that the legal basis for the interest

of plaintiff that is “injured in fact” be the same as, or even related to, the legal

basis for the plaintiff’s claim, at least outside the taxpayer-standing context. In

Duke Power v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 78

(1978), the plaintiffs challenged as a violation of due process and equal protection

the Price-Anderson Act’s limitation on the liability of private nuclear power

plants for nuclear accidents. The district court sustained the challenge because

“the amount of recovery is not rationally related to the potential losses; . . . the

Act tends to encourage irresponsibility in matters of safety and environmental

protection; . . . there is no quid pro quo for the liability limitations; . . . [and] the

Act places the cost of nuclear power on an arbitrarily chosen segment of society,

those injured by nuclear catastrophe.” Id. at 82 (internal brackets, citations, and

quotation marks omitted). The Supreme Court addressed at length the issue of

standing of the plaintiffs— a labor union, an environmental organization, and

-26- persons who lived near the site of the planned facility. It held that the injury-in-

fact requirement was satisfied by the injuries the plaintiffs would suffer from the

production of nuclear power— specifically, “the environmental and aesthetic

consequences of the thermal pollution of the two lakes in the vicinity of the

disputed power plants . . . [a]nd the emission of non-natural radiation into [their]

environment.” Id. at 73-74. The Court also held that the record supported a

finding that overturning the Price-Anderson Act would remedy these injuries by

making it unlikely that the plants would be constructed. Id. at 74-76.

The Court then turned to the antistanding argument that the plaintiffs “must

demonstrate a connection between the injuries they claim and the constitutional

rights being asserted.” Id. at 78. Such a nexus w as lacking, went the argument,

because “the environmental and health injuries claimed . . . are not directly

related to the constitutional attack on the Price-Anderson Act . . . .” Id. The

Court rejected the argument, observing that such a “nexus requirement,” id. at 78,

had been recognized only in the context of taxpayer suits, and refusing to extend

it further, id. at 79. M ore recently, Justice Scalia, in dissent, has observed,

without apparent disapproval, that the “‘logical nexus’ analysis of [the taxpayer-

standing case law] . . . has . . . fallen into desuetude.” Friends of the Earth, Inc.

v. Laidlaw Environmental Services (TO C), Inc., 528 U.S. 167, 203 (2000) (Scalia,

J. dissenting).

-27- Hence, we are persuaded that an infringement on Appellants’ interest in

speaking can constitute the requisite injury in fact for Article III standing even

though they are raising no First Amendment claim. Here, the critical feature of

Appellants’ claim is that they wish to set aside a bar to their speaking about what

they already know . Regardless of the legal basis for the claim or its merits,

granting Appellants standing to litigate whether they may speak, just as granting

standing to those claiming a First Amendment violation in limiting their right to

speech, will do no violence to the requirement that courts address only Cases or

Controversies: this litigation presents the sort of concrete adversary contest

typically presented to courts and the involvement of the judiciary hardly poses a

threat to the “tripartite allocation of power,” Flast, 392 U.S. at 95.

The government’s attack on Appellants’ “legally protected interest” focuses

on the reasons why Appellants seek disclosure and freedom to speak. For

exam ple, Appellants state that they wish to speak out to protect their own

reputations against what they assert to be false allegations. The government

challenges this particular contention by arguing that their claim of injuries to their

reputations is vague and speculative. Perhaps the government’s characterization

is correct. But the reasons why Appellants wish to speak are not the “interests”

conveying standing. The government’s argument is really directed at the merits

of Appellants’ claim— whether they have established adequate reasons to lift

grand-jury secrecy. For standing purposes w e need not concern ourselves w ith

-28- why Appellants wish to speak. Regardless of their motives— whether to reveal

alleged misconduct, protect their ow n reputations, make money, promote reform

of nuclear power, or merely tell an interesting story to the press— it is enough that

they wish to speak about matters within their knowledge.

Once we properly understand the interest claimed by Appellants, it is clear

that it is concrete and particularized, actual and imminent, and not conjectural or

hypothetical. Indeed, the “alleged injury is already occurring” because

Appellants are currently prohibited from revealing information they possess. Cf.

Initiative & Referendum, 2006 W L 1377028, at *13 (rejecting ripeness challenge

because alleged injury— chilled speech— “does not depend on any uncertain,

contingent future events” but is already occurring). Appellants have expressed a

definite intent and desire to speak out about specific matters that occurred before

them as grand jurors. It is the threat of punishment for violating Rule 6(e) that

keeps them silent. See Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006)

(“[T]o satisfy Article III, the plaintiff’s expressive activities must be inhibited by

an objectively justified fear of real consequences, which can be satisfied by

showing a credible threat of prosecution or other consequences following from

the statute’s enforcement.” (internal quotation marks omitted)).

M oreover, Appellants’ claimed injury is redressable. A court order

disclosing documents and permitting them to speak would end the restraints that

concern them. The government contends that a court order would still leave much

-29- uncertainty about what the grand jurors could say. W e are not convinced. It

should be crystal clear to each grand juror that he or she is barred from disclosing

anything not contained in released documents. To the extent that some gray areas

may remain, the problem is not sufficiently great to deny standing.

W e hold that Appellants have standing to petition to have the secrecy

requirement lifted.

C. Claim Preclusion and Issue Preclusion

The government contends on appeal that Appellants’ petitions are barred by

the doctrines of claim preclusion and issue preclusion. This contention is without

merit. Appellants were not parties to any former action involving release of the

report. See Park Lake Resources LLC v. U.S. Dep’t of Agric., 378 F.3d 1132,

1136 (10th Cir. 2004) (party may be precluded from raising a claim or issue only

when it w as a party, or in privity with a party, to the prior action).

D. M erits

The government contends that Appellants are not entitled to relief under

Rule 6(e), which, according to the government, is the exclusive vehicle for release

of matters occurring before a grand jury. Appellants respond that Rule 6(e) is not

the source of the supervising court’s authority to order release of grand jury

materials, but is merely declaratory of the general rule of grand jury secrecy, and

that courts retain inherent authority to go beyond the rule. Appellant Peck also

contends that some of his requests come w ithin Rule 6(e)’s exceptions to the

-30- secrecy requirement. And finally, Appellants contend that not all the material

they seek consists of “matter occurring before the grand jury.” Fed. R. Crim. P.

6(e)(2)(B). W e first address this final contention and then turn to the question of

inherent authority. W e leave to the district court the separate contentions of

Appellant Peck regarding the applicability of the exceptions in Rule 6(e).

1. M atter occurring before a grand jury.

According to Appellants, the transcript and proffer from the 1997 sealed

hearing are “not technically grand jury information since [they were] created long

after the termination of Special Grand Jury 89-2 and were not created as part of

the grand jury investigation.” Aplt. Br. at 28. They also argue that the legal

filings in this case “are standard filings sealed under the Court’s general

authority” and are not covered by Rule 6(e). Id. “[S]ome of these filings,” they

say, “contain absolutely no mention of any witness or document from the Special

Grand Jury,” but merely “focus on the legal issues in the case.” Id. at 29. They

further suggest that portions of the grand jury transcript, including certain

exchanges between the grand jurors and prosecutors, could be released without

offending Rule 6(e) by redacting names and other identifying factors.

W e reject Appellants’ contentions, at least in their full generality. First,

the reproduction of grand jury material in a later proceeding does not remove that

material from the protections of Rule 6(e). Otherwise, anyone with knowledge of

grand jury proceedings could file a sealed petition in a separate proceeding

-31- requesting release of grand jury material, and then, when the request was denied,

obtain release of the sealed petition without being bound by Rule 6(e).

Accordingly, Rule 6(e) contains the following provisions:

(5) C losed H earing. Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury.

(6) Sealed records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent unauthorized disclosure of a matter occurring before a grand jury.

Fed. R. Crim. P. 6(e)(5), (6). The Advisory Committee notes elaborate:

This addition to Rule 6 would make it clear that certain hearings which would reveal matters which have previously occurred before a grand jury or are likely to occur before a grand jury with respect to a pending or ongoing investigation must be conducted in camera in whole or in part in order to prevent public disclosure of such secret information.

Fed. R. Crim. P. 6, advisory committee notes, 1983 Amendments. As the Third

Circuit has stated: “To preserve the secrecy of grand jury proceedings, the

district court must seal certain hearings and records, although not grand jury

proceedings themselves, when access to those hearings and records w ould

jeopardize grand jury secrecy.” United States v. Smith, 123 F.3d 140, 149

(3d Cir. 1997); see also, In re Newark M orning Ledger Co., 260 F.3d 217, 222

(3d Cir. 2001) (“[T]he secrecy of grand jury proceedings also extends to collateral

proceedings containing grand jury material . . . .”).

-32- In support of their claim that the transcript and proffer from the 1997

hearings are not covered by Rule 6(e), Appellants cite DiLeo v. Commissioner,

959 F.2d 16 (2d Cir. 1992), and In re Plastics Additives Antitrust Litigation, 2004

W L 2743591 (E.D. Pa. Nov. 29, 2004), for the proposition that “true grand jury

material” is distinct from “material that is collateral and ‘sought for its own sake

or intrinsic value.’” Aplt. Br. at 28 n.14 (quoting DiLeo, 959 F.2d at 19-20). But

these two cases provide no support for Appellants. The subject matter of interest

in both cases w as not testimony or discussion before the grand jury but documents

originally in the hands of a witness who produced them to the grand jury. The

issue in both cases was whether Rule 6(e) precluded other persons from obtaining

the same documents by subpoenaing the same witness. The cases hold that Rule

6(e) is no bar because production in response to the subpoena “would not

seriously compromise the secrecy of the grand jury’s deliberations.” DiLeo, 959

F.2d at 19 (internal quotation marks omitted); see United States ex rel. Woodward

v. Tynan, 757 F.2d 1085, 1087-88 (10th Cir. 1985) (“[W ]hen testimony or data is

sought for its own sake— for its intrinsic value in the furtherance of a lawful

investigation— rather than to learn what took place before the grand jury, it is not

a valid defense to disclosure that the same information was revealed to a grand

jury or that the same documents had been, or were presently being, examined by a

grand jury.” (internal quotation marks omitted)). Here, in contrast, disclosure is

sought for the very purpose of revealing what occurred before the grand jury.

-33- Thus, to the extent that the transcript and proffer from the 1997 sealed

hearing disclose grand jury proceedings, they are protected by Rule 6(e). The

same goes for the other legal filings in this case. Of course, purely legal

argument, without reference to what occurred before the grand jury, needs no

protection. But the district court’s public orders, as well as this opinion,

adequately disclose those matters. Perhaps more can properly be disclosed, but

that can be better determined during the proceedings on remand, which we order.

There remains the question of what constitutes a “matter occurring before a

grand jury,” and therefore is protected from disclosure by Rule 6(e)(2)(B).

Appellants’ primary argument appears to be that what we might call

administrative matters, such as exchanges between grand jurors and prosecutors

concerning the grand jury’s investigation, are not so covered. W e are not

persuaded.

W e have broadly interpreted Rule 6(e) to encompass “what took place in

the grand jury room,” Anaya v. United States, 815 F.2d 1373, 1379 (10th Cir.

1987), or “what is said or . . . takes place in the grand jury room.” Tynan, 757

F.2d at 1087 (internal quotation marks omitted). This includes, and properly so,

exchanges between the grand jurors and prosecutors. These exchanges could

reveal whom the grand jury is investigating and what witnesses have been called,

how likely is an indictment, and what is the direction of the investigation. See

Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 219 n.10 (1979)

-34- (grand jury secrecy “prevent[s] the escape of those whose indictment may be

contemplated; . . . prevent[s] persons subject to indictment or their friends from

importuning the grand jurors; . . . [and] protect[s] [the] innocent accused who is

exonerated” (internal quotation marks omitted)). Some grand jurors might be

more hesitant to pose questions if there is a chance they might become public, and

prosecutors’ answers to questions also may be less forthcoming. Secrecy

encourages untrammeled discourse during the investigation. Id. (grand jury

secrecy “insures the utmost freedom to the grand jury in its deliberations”

(internal quotation marks omitted)). As stated by the D.C. Circuit, “[T]he

touchstone is whether disclosure would tend to reveal some secret aspect of the

grand jury’s investigation[;] such matters as the identities of w itnesses or jurors,

the substance of testimony, the strategy or direction of the investigation, the

deliberations or questions of jurors, and the like.” Senate of Puerto Rico ex rel.

Judiciary Comm. v. United States, 823 F.2d 574, 582 (D.C. Cir. 1987) (emphasis

added; internal quotation marks omitted).

To be sure, as Appellants contend, some of these concerns can be

ameliorated by redacting names. And the fact that the grand jury ended its

investigation long ago also reduces the need for secrecy. These considerations

can be weighed in determining whether a “matter occurring before the grand jury”

should be disclosed. They do not mean, however, that such exchanges are not

covered by Rule 6(e). See Douglas Oil Co., 441 U.S. at 222 (“[T]he interests in

-35- grand jury secrecy, although reduced, are not eliminated merely because the grand

jury has ended its activities.”).

Other authorities support this broad view of Rule 6(e). See United States v.

Phillips, 843 F.2d 438, 441 (11th Cir. 1988) (“The term ‘matters occurring before

a grand jury’ has been defined to include anything that will reveal what transpired

during the grand jury proceedings.”); Lance v. United States (In re Grand Jury

Investigation), 610 F.2d 202, 216 (5th Cir. 1980) (“Courts have interpreted the

secrecy requirement imposed by Rule 6(e) to apply not only to information draw n

from transcripts of grand jury proceedings, but also to anything which may tend

to reveal what transpired before the grand jury.” (internal quotation marks

omitted)); 1 Charles Alan W right & Arthur R. M iller, Federal Practice and

Procedure § 106 (3d ed. 1999) (“The rule of secrecy applies . . . to anything . . .

that might tend to reveal what happened in the grand-jury room.”); 24 M oore’s,

supra, ¶ 606.06[6] (“The term ‘matter occurring before the grand jury’ has been

defined as anything that will reveal what transpired during the grand jury

proceedings.”); Sara Sun Beale, et al., Grand Jury Law and Practice § 5.6 (2d ed.

2005) (“The touchstone for determining whether the disclosure of a particular

item w ould reveal ‘a matter occurring before the grand jury’ is whether the

disclosure of the item would reveal something of substance about the grand jury’s

investigation.”).

2. Disclosure of G rand Jury M aterial

-36- Having determined that the disclosures sought by Appellants are, with

perhaps a few modest exceptions, governed by Rule 6(e), we remand to the

district court to determine in the first instance whether any of the relief sought by

Appellants is warranted. The court initially must determine whether Rule 6(e)

authorizes disclosures for Appellants’ purposes, and, if so, whether they have met

“the standard for determining when the traditional secrecy of the grand jury may

be broken.” Douglas Oil Co., 441 U.S. at 222.

Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.

If Appellants seek relief beyond what, if any, is granted by the court under

Rule 6(e), the court must then determine whether relief outside of Rule 6(e) is

appropriate. This would be a two-part inquiry. First, as previously noted, some

matters that Appellants seek to disclose, such as legal arguments in their

pleadings, may not be protected by Rule 6(e) and can be disclosed, perhaps in

redacted form.

Second, some relief may be proper under the court’s inherent authority.

The government contends that there is no such inherent authority. The Appellants

contend the contrary. There is substantial support for A ppellants’ position.

Several courts have held that “a court’s power to order disclosure of grand jury

-37- records is not strictly confined to instances spelled out in [Rule 6(e)].” In re

Petition to Inspect and Copy Grand Jury M aterials, 735 F.2d 1261, 1268 (11th

Cir. 1984); see also Craig v. United States (In re Petition of Craig), 131 F.3d 99,

102 (2d Cir. 1997) (“Although . . . Rule 6(e) governs almost all requests for the

release of grand jury records, this court has recognized that there are certain

‘special circumstances’ in which release of grand jury records is appropriate even

outside the boundaries of the rule.”); In re Grand Jury Proceedings, 417 F.3d 18,

26 (1st Cir. 2005) (Rule 6(e) permits “rare exceptions premised on inherent

judicial power” to restrict disclosure beyond the requirements of the rule); see

generally, Beale, et al., supra, § 5.19 (“The courts . . . have recognized an

‘inherent authority’ to disclose grand jury materials, although they have confined

that authority to exceptional cases.”).

The Supreme Court, however, has not explicitly recognized such authority.

To be sure, it has recognized that disclosure of grand jury materials is “committed

to the discretion of the trial judge,” Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395, 399 (1959); but it does not necessarily follow that Rule 6(e) sets no

boundaries on that discretion. Although the Court has said that “Rule 6(e) is but

declaratory [of the proposition that disclosure is committed to the trial judge’s

discretion],” id., it also said in the same opinion that “any disclosure of grand

jury minutes is covered by Fed. Rules Crim. P. 6(e) promulgated by this Court,”

id. at 398 (emphasis added). And the Advisory Committee notes state that

-38- “Rule 6(e) continues to spell out the general rule of secrecy of grand-jury

proceedings and the exceptions to that general rule.” Fed. R. Civ. P. 6(e),

advisory committee notes, 2002 Amendments (emphasis added); see also

1 W right & M iller, Federal Practice and Procedure § 106 (“[R]eliance on the

inherent powers doctrine is suspect.” (internal quotation marks omitted)).

In our view, it would be unwise for us to resolve this delicate issue on the

present record. The cases that have recognized this inherent authority “have

confined [it] to exceptional cases.” Beale et al., supra, § 5.6. The district court

should therefore first determine w hether such circumstances are present before

deciding whether it has inherent power to permit or order disclosure.

W e REVERSE and REM AND for further consideration in accordance with

this opinion.

-39-