In re: Sealed Case
| Decision Date | 04 January 2000 |
| Docket Number | No. 99-3024,99-3024 |
| Citation | 199 F.3d 522 |
| Parties | (D.C. Cir. 2000) In re: Sealed Case |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia(No. 98ms00058) Theodore J. Boutrous, Jr. argued the cause and filed the brief for appellants.
Before: Edwards, Chief Judge, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Appellants in this case, a group of news organizations, seek to require the District Court to establish a public docket of grand jury ancillary proceedings to facilitate greater access to information emanating from the grand jury. The District Court denied appellants' request for a generic rule requiring public docketing of all grand jury matters. Appellants now appeal the judgment of the District Court.
This is the second time that this case has come before this court. In In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998) ("Dow Jones"), this court held that there is no First Amendment right of access to grand jury ancillary proceedings. See id. at 502-04. The decision in Dow Jones also made it clear that appellants have neither a statutory right, apart from Federal Rule of Criminal Procedure 6(e), nor a common law right of access to matters before the grand jury. See id. at 504. The only issue left unresolved in Dow Jones was the meaning of the District Court's Local Criminal Rule 6.1 (). Because Rule 6.1 "provides a limited means for disclosing non-secret" grand jury matters, id. at 504, the court in Dow Jones remanded the case to the District Court to consider the feasibility of a redacted public docket for grand jury ancillary proceedings. On remand, the District Court declined to establish an open docket for all grand jury related motions. The District Court held that it was under no legal obligation to establish a generic rule, and, further, that such a rule would be unduly burdensome to administer to no good end. See Mem. Order at 3-5, Jan. 20, 1999, reprinted in Joint Appendix ("J.A.") 116, 118-20. Appellants appeal this order, asking that we overturn the District Court's decision, or, in the alternative, that we ensure that, pursuant to Rule 6.1, press and other media organizations are allowed to file motions for public docketing in individual cases.
The District Court's judgment denying appellants' request for a generic rule requiring public docketing of all grand jury related matters is affirmed. There is no constitutional, statutory, or common law right requiring such a rule; indeed, by their own admission, appellants acknowledge that there is not even a widespread practice of public docketing of grand jury matters in the federal courts in the United States. In these circumstances, it would be presumptuous, at best, for this
court to re-write the District Court's local rules covering access to materials before the grand jury.
The appellants' alternative request for relief is less troublesome, for it finds support in Rule 6.1. Reasonably construed, Rule 6.1 says that, with respect to grand jury ancillary proceedings, when a party makes a request for a redacted docket in a specific case, the District Court will duly consider the request and will, if it denies the request, offer some explanation. Any denial must, of course, be based on something more than the justification that explains the denial of across-the-board docketing. Rule 6.1 would be heartless without the possibility of such an ad hoc procedure, so we have no doubt that the District Court will entertain such requests as they arise.
The events giving rise to this appeal are fully recounted in Dow Jones, so we will only briefly discuss the facts. Early in 1998, Independent Counsel Kenneth Starr convened a grand jury to consider evidence relating to matters that eventually led to presidential impeachment proceedings. See Dow Jones, 142 F.3d at 497-98. The grand jury spawned a flood of ancillary proceedings as witnesses challenged subpoenas and objected to various aspects of the investigation. Under Local Civil Rule 40.7(3), these ancillary proceedings were held before the Chief Judge. Although grand jury proceedings themselves are entirely secret, proceedings ancillary to the grand jury are subject to slightly different rules. The Federal Rules of Criminal Procedure require "matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury."Fed. R. Crim. P. 6(e)(5). Local Criminal Rule 6.1, in turn, provides that
[p]apers, orders and transcripts of hearings subject to this rule, or portions thereof, may be made public by the court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.
The press and other media services, quite predictably, sought access to ancillary proceedings and related documents emanating from the grand jury convened by the Independent Counsel. Motions were filed with the District Court requesting access to certain proceedings and also asking the District Court to establish procedures, including a public docket of all ancillary proceedings, to facilitate media access. The District Court, however, denied media requests to establish special "procedures relating to public access to judicial proceedings and records." Order, March 18, 1998, reprinted in J.A. 68 (internal quotation marks omitted). The media appealed, arguing "that the blanket closure of judicial proceedings and the failure to provide procedural safeguards prior to closure violate the First Amendment." Dow Jones, 142 F.3d at 499 (internal quotation marks omitted).
The court in Dow Jones recognized that, under federal and local rules, ancillary proceedings that do not reveal " 'matters occurring before the grand jury' " need not be closed. Id. at 501 (citation omitted). Most importantly, however, the decision in Dow Jones held that the First Amendment does not require the District Court to open grand jury ancillary proceedings. Rather, the court noted, Rule 6.1 "gives [the press] the most it could expect from its constitutional claim." Id. at 500.
Rule 6.1 addresses motions and orders relating to proceedings ancillary to the grand jury, providing that such matters "shall be filed under seal" and that "[a]ll hearings on matters affecting a grand jury proceeding shall be closed." L.Cr.R. 6.1. However, the rule also provides that matters "may be made public by the court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury." Id. Thus, Rule 6.1 "provides a limited means for disclosing non-secret matters." Dow Jones, 142 F.3d at 504; see also id. at 501 (). Given the possibility of access afforded by Rule 6.1, the court in Dow Jones questioned whether the District Court should establish an administrative rule or procedure ensuring a redacted public docket of grand jury ancillary proceedings. Noting that the District Court had not explained the lack of a public docket, the court remanded the case for further consideration.
On remand, the District Court declined to establish a public docket of "materials filed in connection with any grand jury proceedings." Mem. Order, Jan. 20, 1999 at 1, reprinted in J.A. 116 (internal quotation marks omitted). The District Court noted the importance of "secrecy to the proper functioning of the grand jury system." Id. at 2, reprinted in J.A. 117. Because of the need for secrecy, the court pointed out, any public docket would of necessity have to be "nondescriptive" to "protect[ ] the identities of subpoenaed witnesses and targets." Id. at 4, reprinted in J.A. 119. Such a non-descriptive docket, the District Court held, would be of only limited utility to the media while imposing undue administrative burdens on the trial court. The District Court concluded that the administrative burdens, combined with possible threats to grand jury secrecy, militated against a public docket for all grand jury ancillary proceedings. Therefore, the District Court ruled that it would "not waste either its or the news organizations' time and resources by establishing such a docket." Id. at 5, reprinted in J.A. 120. The appellants appealed.
Appellants argue that, under this court's decision in Dow Jones, the District Court must establish a public docket for all grand jury ancillary proceedings. Appellants thus seek an order from this court requiring the District Court to maintain such a public docket. Appellants are self-servingly generous in their reading of Dow Jones, for the decision simply does not mandate the result here sought. Indeed, as appellants' counsel was forced to concede at oral argument, the request for a generic rule requiring public docketing for all grand jury ancillary matters is completely unprecedented; and, in our view, the request is also unsupported and unavailing. We therefore affirm the District Court's judgment on this score. Appellants' alternative request--to allow parties to file motions pursuant to Rule 6.1 to request public docketing in specific cases--is unnoteworthy, for it seeks nothing more than what the rule already provides.
We begin by noting the extraordinary nature of appellants' request: mandatory public docketing of grand jury ancillary proceedings is virtually unknown in the federal courts. Appellants concede that they can point to no "practice" in the ...
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