In Re: Sealed Case

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2001 Decided May 11, 2001

No. 00-3076

In re: Sealed Case

Appeal from the United States District Court
for the District of Columbia
(No. 00ms00409)

---------

Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: A witness before a grand jury
sitting in the United States District Court for the District of
Columbia testified that he had received a copy of the qui tam
complaint in a certain sealed civil proceeding then pending
before a different federal district court. Two prosecuting
attorneys from the Department of Justice, acting upon their
own initiative and without the approval of the court supervis-
ing the grand jury (hereinafter sometimes referred to as the
grand jury court), informed the judge hearing the qui tam
case of the breach of the seal and provided him with a

summary of the witness's testimony before the grand jury.
That judge then sent a letter to the district court here
requesting a copy of the relevant testimony, and the Govern-
ment moved the court ex parte to transmit the testimony
pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E).
The court acceded and ordered the relevant portions of the
grand jury transcript transmitted to the court that had
requested them (hereinafter sometimes referred to as the qui
tam court).

The plaintiffs in this case, including the witness who testi-
fied before the grand jury about the breach of the seal, are
also plaintiffs in the qui tam action; they are aggrieved
because divulgement and subsequent transmission of the
grand jury testimony have jeopardized their entitlement to
share in the financial settlement in the civil case. The
plaintiffs appeal from the district court's denial of two mo-
tions: one requesting that the Government be ordered to
show cause why it should not be held in contempt for
violating Rule 6(e) by divulging to the qui tam court a matter
occurring before the grand jury; and another seeking vacatur
of the district court's order transmitting the testimony to that
court because the order did not comply with the requirements
of Rule 6(e)(3)(E).

As to the first motion, we hold that although the Govern-
ment violated Rule 6(e) when the two prosecutors sent a
summary of the testimony to the qui tam court without the
approval of the court supervising the grand jury, the latter
court appropriately declined to order the Government to show
cause why it should not be held in contempt; the court had
previously ratified the disclosure when it ordered transmis-
sion of the testimony. As to the second motion, we hold that
the court's transmission of the testimony failed to comply
with Rule 6(e)(3)(E) because the court did not include the
required "written evaluation of the need for continued grand
jury secrecy"; only if the court upon remand properly makes
and transmits such an evaluation will its transmission of the
materials be valid.

 I. Background*

In 1996 a certain party filed a qui tam complaint under the
False Claims Act, 31 U.S.C. s 3730, with a district court in
another circuit. That court ordered the proceedings sealed,
as required by 31 U.S.C. s 3730(b)(2)-(b)(4). The plaintiffs in
this case later filed in that same district a separate qui tam
complaint substantially similar to the first such complaint,
and the two complaints were consolidated (along with other
similar complaints). Although the qui tam court ultimately
dismissed the present plaintiffs' complaint on a jurisdictional
ground, the parties later entered into a settlement agreement
under which these plaintiffs were to share in the proceeds.

Subsequently a grand jury was impaneled by the district
court in the District of Columbia to investigate allegations
that certain government employees had received payments
out of the aforementioned settlement. The Criminal Division
of the Department of Justice handled the investigation. One
of the plaintiffs in this case testified before the grand jury
that he had received from a government employee a copy of
the first complaint filed under seal with the qui tam court.
The witness (and present plaintiff) testified that he promptly
returned the complaint to the sender and advised the sender
that he should not have sent it. Acting upon this testimony,
agents from the Office of the Inspector General (OIG) in the
Department of the Interior interviewed the sender, who said
that he had indeed sent the complaint for the purpose of
getting advice but that he had not known the complaint was
under seal.

On July 18, 2000 two prosecutors from the Department of
Justice filed with the qui tam court, under seal and ex parte, a
document they styled "Notice to the Court of A Breach of
Seal." In that document the prosecutors summarized the
nature of the grand jury proceedings, the substance of the
witness-plaintiff's testimony, and the answers the sender gave
in the ensuing interview with OIG agents. With respect to
the grand jury testimony, they specifically stated "[the wit-

__________
* Certain factual details are necessarily omitted because this case is
itself under seal.

ness] testified that he received a copy of the then-sealed ...
qui tam from [the government sender]." The prosecutors
also explained that the grand jury proceeding was ongoing
and asked the qui tam court, in order to avoid interfering
with their criminal investigation, to afford the DOJ an oppor-
tunity to seek a stay of the civil proceedings should the court
decide to disclose the breach of seal to the qui tam parties.

In response, the qui tam court urged the Government to
move the grand jury court under Rule 6(e) to transmit the
grand jury testimony to it for review, which the Government
did on July 26. Immediately thereafter the qui tam court
sent its own letter to the grand jury court requesting trans-
mission of the testimony. On August 1 the grand jury court
held a sealed, ex parte proceeding at which only the Govern-
ment was represented; there the court balanced the need for
grand jury secrecy against the public interest in avoiding an
injustice in the qui tam case, and ordered transmission of the
relevant grand jury materials to the qui tam court.

On August 9 the qui tam court held a sealed, in camera
hearing attended by counsel for all the plaintiffs sharing in
the settlement. Having considered the objections of the
plaintiffs in this case and the public interest in grand jury
secrecy, the qui tam court nonetheless decided to disclose to
the other plaintiffs that the plaintiffs in this case had illicitly
learned of the initial sealed complaint before filing their own:
the "integrity of the court ha[d] been violated" and the
plaintiffs in this case "should not be allowed to keep the gains
that they have made because of their bad faith filing" of a
copycat complaint. At the same time, the qui tam court
invited the other plaintiffs to consider initiating civil contempt
proceedings against these plaintiffs; it also suggested that it
might initiate proceedings to sanction them for criminal con-
tempt. The plaintiffs here represent that other plaintiffs in
the qui tam case have indeed since "filed contempt motions
against [them] and requested disgorgement of all past settle-
ment monies paid to [them]"; and that the qui tam court "has
frozen all future settlement money" owed to them under the
settlement agreement.

 Thus aggrieved by the disclosure of the grand jury testimo-
ny, these plaintiffs moved the grand jury court to (1) order
the Government to show cause why it should not be held in
contempt for disclosing the testimony in the "Notice" to the
qui tam court; and (2) vacate its order transferring grand
jury testimony to the qui tam court. The grand jury court
denied both motions because it had already determined that
the competing interests weighed in favor of transmission and
it "s[aw] no good reason to revisit [its prior] ruling." The
plaintiffs now appeal from the denial of those motions.

II. Analysis

As the Supreme Court has said, "the proper functioning of
our grand jury system depends upon the secrecy of grand
jury proceedings." Douglas Oil Co. v. Petrol Stops North-
west, 441 U.S. 211, 218 (1979). That secrecy safeguards vital
interests in (1) preserving the willingness and candor of
witnesses called before the grand jury; (2) not alerting the
target of an investigation who might otherwise flee or inter-
fere with the grand jury; and (3) preserving the rights of a
suspect who might later be exonerated. Id. at 219. In order
to protect these interests, "[b]oth Congress and th[e] Court
have consistently stood ready to defend [grand jury secrecy]
against unwarranted intrusion. In the absence of a clear
indication in a statute or Rule, we must always be reluctant to
conclude that a breach of this secrecy has been authorized."
United States v. Sells Engineering, Inc., 463 U.S. 418, 425
(1983).

Rule 6(e)(2) protects the secrecy of grand jury proceedings
by specifying that "[a]n attorney for the government ... shall
not disclose matters occurring before the grand jury, except
as otherwise provided for in these rules." The exceptions
permit disclosure: (i) to an attorney for the Government in
the performance of that attorney's duty; (ii) to such govern-
ment personnel as an attorney for the Government deems
necessary to assist an attorney in enforcing federal criminal
law; or (iii) to another federal grand jury. Rule 6(e)(3)(A)
and (3)(C)(iii). The Rule also permits, when directed by a

court, disclosure: (i) preliminary to or in connection with a
judicial proceeding; (ii) at the request of a criminal defendant
if the defendant shows cause; or (iii) to an appropriate state
or local official for the purpose of enforcing state criminal law.
See Rule 6(e)(3)(C). It is against this legal background that
we analyze the two motions here at issue.

A. Motion To Order Government To Show Cause Why
It Should Not Be Held in Contempt

The plaintiffs moved the district court to order the Govern-
ment to show cause why it should not be held in civil
contempt for disclosing grand jury testimony to the qui tam
court. The plaintiffs also sought equitable relief for the
alleged civil contempt, thereby asserting a cognizable interest
in preventing transmittal of the grand jury testimony. Cf.
Barry v. United States, 865 F.2d 1317, 1322 (D.C. Cir. 1989)
(private party lacks cause of action for civil contempt without
other equitable relief).

We readily agree with the plaintiffs that the Government
violated Rule 6(e)(2) when, without prior authorization from
the grand jury court, it filed with the qui tam court the
Notice summarizing the grand jury testimony of one of the
present plaintiffs. Indeed, the Government does not dispute
that its summary of the plaintiff's testimony in the Notice
embraces "matters occurring before the grand jury," Rule
6(e)(2), or that its summary does not come within any excep-
tion enumerated in the Rule.

The Government instead takes the untenable and disturb-
ingly cavalier position that "[a] sealed, ex parte, conveyance of
grand jury information to a federal judge who is acting in his
judicial capacity is not a 'disclosure' within the meaning of the
grand jury secrecy rule." For this the Government relies
upon that eminent legal authority, Webster's New Collegiate
Dictionary (1977), which defines to "disclose" as to "expose to
view" or to "make known or public." By this logic the
Government presumably would have us read the Rule to
permit any revelation of matters occurring before a grand
jury as long as it is not made to "the public" or at least a
member thereof. That position, however, is foreclosed by the

Rule itself, which expressly provides that grand jury informa-
tion may in specified circumstances be conveyed to "an attor-
ney for the government," "government personnel," "another
federal grand jury," and "an appropriate official of a state or
subdivision of a state"; the necessary implication is that
absent such express exceptions, sharing grand jury informa-
tion with those persons would be a prohibited disclosure even
though they are not "the public."

Moreover, the Government's interpretation of the Rule
defies the Supreme Court's clear instruction in Sells Engi-
neering, 463 U.S. at 425-27, that exceptions to Rule 6(e) must
be narrowly construed and that secrecy concerns extend to
disclosures made to (and indeed, within) the Government
itself. There the Court rejected the argument that Rule
6(e)(3)(A)(i) permits the disclosure of grand jury material to
an attorney on the civil -- as opposed to the criminal -- side
of the DOJ:

[D]isclosure to Government bodies raises much the same
concerns that underlie the rule of secrecy in other con-
texts. Not only does disclosure increase the number of
persons to whom information is available (thereby in-
creasing the risk of inadvertent or illegal disclosure to
others), but it renders considerably more concrete the
threat to the willingness of witnesses to come forward
and to testify fully and candidly. If a witness knows or
fears that his testimony before the grand jury will be
routinely available for use in governmental civil litigation
or administrative action, he may well be less willing to
speak for fear that he will get himself into trouble in
some other forum.

463 U.S. at 432. The disclosure the Government made in this
case clearly implicates the Sells Court's concern about penal-
izing a witness for testifying: Although the disclosure was
made to the qui tam court and not to a government attorney
for use in a civil investigation, the result has been that civil
contempt proceedings were brought against the plaintiffs in
this case, they may be required to disgorge the proceeds of
their settlement, and they face the possibility that the qui tam

court itself will initiate criminal contempt proceedings against
them. Whatever the equities of the matter in the qui tam
court, therefore, we have no doubt that this revelation is
within the core concern of Rule 6(e).

With respect to the specific provisions of the Rule, we
simply do not understand how the Government can both
concede the Rule "does not explicitly authorize a government
attorney to give grand jury materials to the federal judge
presiding over the civil litigation," and yet maintain the Rule
does not "prohibit the prosecutor from communicating some
grand jury information to the judge." The Rule on its face
prohibits such a communication because it does not except it
from the general prohibition. Again, to hold otherwise clear-
ly would contradict the teaching of the Court in Sells, 463
U.S. at 425. The Government's effort to show there is a place
for implied exceptions to the Rule by noting that it "routinely
includes grand jury information in sealed search warrant
affidavits" comes to naught: as the plaintiffs point out, that
use of grand jury information is expressly authorized by Rule
6(e)(3)(A)(i) ("Disclosure otherwise prohibited ... may be
made to ... such government personnel ... as are deemed
necessary by a[ government] attorney to assist ... in the
performance of such attorney's duty to enforce federal crimi-
nal law").

The Government's remaining arguments from the Rule
itself are easily dispatched. It argues that because Rule
6(e)(3)(C) excepts certain disclosures when "permitted [or
directed] by a court," the Rule necessarily excludes from the
definition of "disclos[ure]" any communication of grand jury
information to a court; the Government's reasoning is that
the permitting or directing court must have "some knowledge
of the grand jury material" in order to decide whether it
should be disclosed. In this case, however, the grand jury
material is to be used in another "judicial proceeding," as
provided in Rule 6(e)(3)(C)(i); and because Rule 6(e)(D)
specifies the federal district court "in the district where the
grand jury convened" as the court that may authorize such a
disclosure, the Government's unauthorized disclosure of the
material to any other court is indeed a prohibited disclosure.

We therefore need not decide whether revelation of grand
jury materials to a different court pursuant to another of the
exceptions enumerated in Rule 6(e)(3)(C) necessarily consti-
tutes a disclosure, but we do note that the Government cites
no precedent -- nor do we know of any -- holding that it does
not. The Government also argues that use of the word
"transmit[ ]" in Rule 6(e)(3)(E) to describe the movement of
grand jury material from a court supervising a grand jury to
a federal district court in another district for use in a judicial
proceeding there means that the revelation of information to
a court is not a "disclosure." This argument is plainly
misconceived because Rule 6(e)(3)(E) specifically requires
that the court supervising the grand jury transmit to the
other court "a written evaluation of the need for continued
grand jury secrecy" along with the grand jury material; that
prescription would be meaningless if free movement of grand
jury information among courts were permitted in any event.

For the foregoing reasons there can be no doubt that the
two prosecutors violated the proscription of Rule 6(e) on July
18 when they sent their Notice to the qui tam court. The
proper course would have been for the Government to peti-
tion the grand jury court to transmit the materials pursuant
to Rule 6(e)(3)(E). And on July 26 -- as we have seen
before -- the Government did just that.

When the plaintiffs moved the grand jury court on August
14 to order the Government to show cause why it should not
be held in contempt, they undoubtedly made out a prima facie
case that the Government had violated Rule 6(e) on July 18.
Although the grand jury court's ultimate decision whether to
hold the Government in contempt would be subject to review
only for abuse of discretion, see Rule 6(e)(2) ("a knowing
violation ... may be punished"), ordinarily "[o]nce a prima
facie case is shown, the district court must conduct a 'show
cause' hearing," Barry v. United States, 865 F.2d 1317, 1321
(D.C. Cir. 1989) (emphases added); at that hearing the Gov-
ernment's burden would be "to rebut the inferences drawn
from the [evidence] establish[ing] the prima facie case" that it
had violated the Rule. In re Sealed Case No. 98-3077, 151
F.3d 1059, 1075 (D.C. Cir. 1998). In this case the grand jury

court did not err in denying the plaintiffs' show cause motion,
however, because there was no possibility the court would
give the plaintiffs the relief they sought. The overwhelming
fact is that on August 1 the grand jury court had itself
determined upon a proper request from the Government that
the underlying testimony summarized in the Notice should be
transmitted to the qui tam court. As such, it would have
been pointless for the grand jury court to hold a show cause
hearing: Because the Government could not undo the July 18
disclosure, holding the Government in civil contempt would
serve no useful purpose; the court would in no event have
ordered the recall and suppression of the materials, and it
was quite right in "see[ing] no good reason to revisit [its
prior] ruling [transmitting the testimony]." Accordingly, not-
withstanding the Government's initial violation of the Rule,
we affirm the district court's denial of the plaintiffs' motion to
require the Government to show cause why it should not be
held in contempt.

B. Motion To Vacate the Order To Transfer Grand
Jury Material

Rule 6(e) specifies how and under what conditions one
federal district court may transmit grand jury material to
another federal district court for possible disclosure in a
judicial proceeding in the transferee court: A petition is to be
filed in the district where the grand jury convened; if the
Government is the petitioner, then the court may hold an ex
parte hearing to consider the petition. See Rule 6(e)(3)(D).

A matter occurring before a grand jury may not be dis-
closed unless there is a "particularized need" therefor; that
is, only if the "material [sought] is needed to avoid a possible
injustice in another judicial proceeding, ... the need for
disclosure is greater than the need for continued secrecy, and
... the[ ] request is structured to cover only material so
needed." Douglas Oil Co., 441 U.S. at 222. In the case just
cited the Court held that the appropriate procedure generally
is for the court of the district in which the grand jury
convened,

 after making a written evaluation of the need for contin-
ued grand jury secrecy and a determination that the
limited evidence before it showed that disclosure might
be appropriate, to send the requested materials to the
court[ ] where the civil cases were pending. The [trans-
feree] court, armed with [its] special knowledge of the
status of the civil actions, then [may] consider[ ] the
requests for disclosure in light of the supervisory court's
evaluation of the need for continued grand jury secrecy.
In this way, both the need for continued secrecy and the
need for disclosure [can be] evaluated by the courts in
the best position to make the respective evaluations.

Id. at 230-31. Rule 6(e)(3)(E) now codifies this procedure:
"The court [where the grand jury convened] shall order
transmitted to the court to which the matter [i.e. the petition
for disclosure] is transferred the material sought to be dis-
closed ... and a written evaluation of the need for continued
grand jury secrecy."

In this case, however, the order of the court transmitting
grand jury material to the qui tam court did not comply with
Rule 6(e)(3)(E). The court failed to transmit a "written
evaluation of the need for continued grand jury secrecy."

The Government notes that later, in addressing the plain-
tiffs' motion to vacate its order transferring the grand jury
materials to the qui tam court, the grand jury court said
that prior to ordering the transfer it had "balanced such
need [for continuing secrecy] against the asserted interest in
avoiding injustice in another federal district court." The
grand jury court's performance under Rule 6(e) is nonethe-
less deficient in three respects: First, it did not supply a
"written evaluation" to the qui tam court, along with the
grand jury materials, as contemplated by the Rule. Second,
the court's subsequent statement that it had balanced the
competing interests -- even had it been made before rather
than after the transmission -- was too conclusory to inform
the qui tam court's balancing by conveying the grand jury
court's knowledge of the continuing need for grand jury
secrecy in the particular circumstances of this investigation.

Third, the grand jury court overreached in balancing the
interest in secrecy -- with which it was familiar -- against
the need for disclosure, as to which the qui tam court had
the comparative advantage; it thereby intruded upon the
role of the transferee court, which is to make a fully-
informed determination of the need for disclosure and to
perform the ultimate balancing in accordance with Douglas
Oil Co. and Rule 6(e)(3)(E). The only way to cure these
defects in any degree is for the grand jury court now to
make a "written evaluation" of the nature and extent of the
need for continued grand jury secrecy and to transmit it to
the qui tam court for that court to make its own, more
completely-informed determination in light of the former
court's submission.

The plaintiffs insist, however, that "no remedy other than
recall of all material and total suppression will redress the
harm" they incurred because of the district court's error, and
that the court therefore should have vacated its August 1
order transmitting materials to the qui tam court; still fur-
ther, they argue that transfer cannot proceed anew at this
point. Neither of these propositions is well founded.

First, the plaintiffs argue that "even a subsequent disclo-
sure that complied with Rule 6(e)'s mandates could not eradi-
cate the taint created by the government's initial, improper
release of materials to the [qui tam] court." The exclusionary
rule from which the plaintiffs implicitly borrow is limited to
the cure of constitutional violations; no precedent supports
its extension to this breach of a Federal Rule of Criminal
Procedure with no constitutional underpinnings. Nor is there
any taint to eradicate: The Government's July 26 motion for
release by the grand jury court is in no way the fruit of its
July 18 disclosure to the qui tam court; the Government
obtained no additional evidence because of its disclosure and
was no better served than if it had properly petitioned the
grand jury court in the first instance. The plaintiffs' first
cogent articulation of a rationale for their claim of "taint"
came at oral argument, when they suggested that the letter
the qui tam court sent to the grand jury court requesting
transmission of the grand jury testimony was the fruit of the

Government's improper disclosure and may have informed
the district court's decision in favor of transmission. This is
too little, too late; we are left with no reason to think the
district court would not have ordered the transmission even if
all it knew was that the qui tam court's seal -- unbeknownst
to that court -- apparently had been breached.

Second, the plaintiffs argue that Rule 6(e) categorically
bars disclosure of grand jury materials while the grand jury
is still sitting. For this they claim support from the Second
Circuit's inability some time ago to identify "a single case
authorizing disclosure of a witness' testimony during the
pendency of grand jury investigations." In re Bonnano, 344
F.2d 830, 834 (1965). The Rule itself, however, draws no
distinction between ongoing and completed grand jury pro-
ceedings. The plaintiffs draw our attention to various places
in the Advisory Committee's Notes on Rule 6 where the past
tense is used, and to the reference in Rule 6(e)(3)(E) to "the
need for continued grand jury secrecy" (emphasis added),
which they see as suggesting that the grand jury proceedings
must have been concluded; but the Government reciprocally
points to Rules 6(e)(2) and (3)(C), which speak in the present
tense of "matters occurring before the grand jury" (emphasis
added), and therefore just as strongly suggest that a proceed-
ing may be ongoing. More important, however, the Supreme
Court has clearly indicated the inquiry into "particularized
need" would govern regardless whether the grand jury is
ongoing. See Douglas Oil Co., 441 U.S. at 222 (inquiry
proceeds "even when the grand jury whose transcripts are
sought has concluded its operations").

Third, the plaintiffs insist the district court may not pro-
ceed ex parte in determining whether to transmit the materi-
als. The Rule, however, expressly permits the court to
proceed ex parte where the Government is the petitioner, as
it was here. See Rule 6(e)(3)(D). The plaintiffs' sole basis
for arguing to the contrary is the Ninth Circuit's statement
that the Government must make "a specific showing of the
need to make the disclosure ex parte," which could be done
only in "the most unusual cases." United States v. Nix, 21
F.3d 347, 352 (1994). Nix, however, is on its face limited to

cases in which the Government petitions on behalf of a
private litigant and therefore "must make the same showing
as the private litigant would be required to make" -- that is,
ordinarily in open court. Id. at 351-52. As it would be inapt
to assimilate the qui tam court to a private litigant for this
purpose, we see no reason to doubt the Government may here
petition ex parte as authorized under the Rule.

Fourth, the plaintiffs argue that because the judge of the
qui tam court was effectively "the party petitioning for the
material," there would be "an irreconcilable conflict of inter-
est for that selfsame judge to serve as" the ultimate decision-
maker who assesses "particularized need." Here the plain-
tiffs conflate the qui tam court's legitimate concern for doing
justice to the parties before it with a personal interest on the
part of the judge; any decision to disclose the grand jury
materials to the parties in the civil action is for their benefit,
not that of the court. If the qui tam court -- once it receives
the grand jury court's written evaluation of the need for
continued secrecy -- in fact orders disclosure, it will be doing
so only because it weighed the competing considerations and
struck the balance on that side. That is the very process
dictated by the Supreme Court in Douglas Oil Co. and by the
Rule itself, and no bias can be ascribed to the qui tam court
for adhering to it.

Finally, the plaintiffs maintain that the provisions of Rule
6(e) authorizing the transmission of grand jury materials "in
connection with a judicial proceeding" are inapposite to this
case; their claim is that a would-be transferee court cannot
itself be a petitioner under Rule 6(e), nor can the Government
act on its behalf.

As to the first aspect of that claim, the plaintiffs try to
make something of the Court's allusion in Douglas Oil Co. to
the "occasional need for litigants" to obtain grand jury tran-
scripts, 441 U.S. at 220, but that obviously does not rule out
the possibility that a district court might likewise need to
obtain a transcript in connection with a "judicial proceeding"
before it.

 As to the ability of the Government to petition on behalf of
a transferee court, the plaintiffs again seek support from
United States v. Nix. But the Ninth Circuit did not there
circumscribe the ability of the United States to petition under
Rule 6(e); quite the contrary, it held that the United States
may petition not only on its own behalf, but also, as it had in
that case, on behalf of a private party. Id. at 351. We see no
reason the United States may not likewise petition on behalf
of a federal district court, which has an important interest in
the integrity of its seal. (We note also, for what it is worth,
that the private parties before that court are the immediate
beneficiaries of any disclosure the qui tam court may make.)
The plaintiffs then suggest that because the Sells Engineer-
ing decision, above, precludes the Government from using its
access to the grand jury to further its interest in related civil
litigation, "this Court should reject the interpretation that
Rule 6(e)(3)(C)(i) permits disclosure of secret grand jury
materials to a federal court in a collateral civil matter." The
lesson of Sells, however, is more nuanced than that: the
Government may not freely use grand jury materials for civil
litigation, but it may obtain a court order for such use under
Rule 6(e)(3)(C)(i). See 463 U.S. at 442-44. That is all the
Government seeks in this case and all it may obtain in a
properly conducted proceeding upon remand.

Evidently the plaintiffs would have us believe that Rule 6(e)
precludes the Government from doing anything to bring
grand jury testimony regarding the breach of a court's seal to
the attention of that court. That is neither sensible nor
consonant with the judgment reflected in the Rule that the
Government may petition to disclose grand jury material "in
connection with a judicial proceeding."

Inexplicably, however, the Government does not character-
ize its motion to have the district court transmit the materials
to the qui tam court as a "petition" within the meaning of
6(e)(3)(D). Instead, it represents that "[i]n this case, because
no one had petitioned for disclosure, [the grand jury court]
and [the qui tam court] followed a slightly different proce-
dure," the result of which was that the grand jury court
decided sua sponte to transmit the materials to the qui tam

court. Although the Rule does nothing affirmatively to au-
thorize this procedure, the Government posits that "[s]ubsec-
tion D [of Rule 6(e)(2)] merely establishes a process when
someone does 'petition for disclosure.' "

We cannot possibly sanction that interpretation. For one
thing, it would be disingenuous to hold that the district court
acted sua sponte when it ordered grand jury testimony
transmitted in direct response to the Government's motion
and its ex parte appearance (in support of the qui tam court's
written request). Worse still, we would do substantial vio-
lence to the Rule if we were to accept the Government's
proposition that the specification of procedures governing a
petition under Rule 6(e)(3)(C)(i) leaves room for a court to
release materials to another court without having received
such a petition whenever it sees fit and presumably uncon-
strained by the notice and hearing requirements applicable to
a petition. Therefore in keeping with the Rule, the district
court should upon remand of this case proceed upon the
understanding that the Government is acting under 6(e)(3)(D)
as a petitioner on behalf of the qui tam court.

III. Conclusion

For the foregoing reasons, we affirm the order of the
district court denying the plaintiffs' motion to require the
Government to show cause why it should not be held in
contempt. We nonetheless remand this matter to the district
court because its order to transfer grand jury materials to the
qui tam court did not comply with Rule 6(e)(3)(E). Consis-
tent with this opinion, the district court shall transmit to the
qui tam court "a written evaluation of the need for continued
grand jury secrecy."

So ordered.