UNITED STATES OF AMERICA, PETITIONER V. SELLS ENGINEERING, INC., ET AL. No. 81-1032 In the Supreme Court of the United States October Term, 1982 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States PARTIES TO THE PROCEEDING The respondents, in addition to Sells Engineering, Inc., are Peter A. Sells and Fred R. Witte. TABLE OF CONTENTS Opinions below Jurisdiction Federal rules involved Statement Summary of argument Argument I. A Department of Justice Civil Division attorney preparing a civil fraud action under the False Claims Act is "an attorney for the government" engaged in "the performance of such attorney's duty" entitled to review pertinent grand jury materials, without prior judicial authorization A. The plain language of Rule 6(e) authorizes Department of Justice attorneys to review grand jury materials as of right B. This Court's decisions reflect awareness and approval of the Department of Justice's practice of making grand jury materials available to attorneys responsible for relevant civil litigation without a court order C. Nothing in the legislative or administrative history of Rule 6(e) restricts the availability of grand jury material to Government attorneys engaged in criminal prosecution D. Pertinent policy considerations support a literal interpretation of Rule 6(e) (3) (A) (i) II. Disclosure of grand jury materials to persons assisting Department of Justice attorneys in civil litigation is presumptively proper Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-19a) is reported at 642 F.2d 1184. The oral opinion of the district court (Pet. App. 22a-24a) and the district court's order (Pet. App. 25a-26a) are not reported. JURISDICTION The judgment of the court of appeals (Pet. App. 20a) was entered on April 2, 1981, and a petition for rehearing was denied on August 6, 1981 (Pet. App. 21a). On October 27, 1981, Justice Rehnquist extended the time in which to file a petition for a writ of certiorari until December 2, 1981. The petition for a writ of certiorari was filed on that date and was granted on May 3, 1982 (J.A. 47a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). Federal Rules Involved Pertinent portions of the Federal Rules of Criminal Procedure are reproduced in the appendix to this brief. QUESTIONS PRESENTED 1. Whether an attorney serving in the Civil Division of the United States Department of Justice engaged in preparing a civil fraud action under the False Claims Act is "an attorney for the government * * * perform(ing) such attorney's duty" within the meaning of Federal Rule of Criminal Procedure 6(e) (3) (A) (i), and accordingly is entitled to examine relevant grand jury materials without judicial authorization. 2. Whether (i) Department of Justice attorneys engaged in preparing a civil fraud action under the False Claims Act, if not entitled to access to grand jury materials without judicial authorization, and (ii) any support or technical personnel needed to assist such attorneys, must demonstrate a "particularized and compelling need" in order to obtain access to grand jury materials. STATEMENT 1. In May 1977, a federal grand jury was convened in the Southern District of California to investigate possible criminal conduct by respondents Peter A. Sells, Fred R. Witte, and Sells Engineering, Inc. (Pet. App. 2a). /1/ Both Witte and Sells were officers of Sells Engineering, Inc. That company had contracts with the United States Navy to produce airborne electronic devices designed to interfere with enemy radar systems. In April 1978, the grand jury indicted respondents along with other persons on two counts of conspiracy to defraud the United States (18 U.S.C. 371) and nine counts of tax fraud (26 U.S.C. 7206(2)) (Pet. App. 2a). The indictments described a scheme under which Sells made and concealed false entries on the books of Sells Engineering. Sells and Witte then used other corporations they controlled to submit fictitious invoices to Sells Engineering, Inc., which Sells and Witte represented to be genuine. The purpose of the conspiracy was to conceal use of corporate funds for personal purposes and to overcharge the United States under the defense contracts (C.R. 99-100, 497-504). Sells and Witte each moved to dismiss the indictments, alleging various defects in the grand jury process pertaining primarily to the manner in which evidence was alleged to have been presented or withheld from that body. They also sought wide-ranging discovery into grand jury proceedings. Finally, respondents claimed that because subpoenas issued by the grand jury sought the very information covered by outstanding IRS administrative summonses, the issuance of the subpoenas was designed to evade a stay pending appeal of a district court order enforcing the IRS administrative summonses, and that this practice constituted "corruption of the Grand Jury process as a means of obtaining evidence for a mixed criminal and civil purpose (that) flaunts (sic) the policy of the law and is an abuse of the Grand Jury" (C.R. 49). /2/ In response to respondents' contentions, the government reviewed the course of the administrative investigation and the ensuing grand jury proceeding and denied all claims that the relationship between the two was in any respect improper (see C.R. 93-129). The Assistant United States Attorney who assisted the initial stages of the grand jury investigation filed an affidavit affirming that (C.R. 183): At no time was the grand jury used to obtain documents in furtherance of a civil investigation. At all times the sole purpose of resorting to the grand jury process was to determine the existence of potential criminal liability on the part of the subjects of the investigation. A different Assistant United States Attorney who assisted the final stages of the grand jury investigation similarly affirmed that he had "not used the grand jury process to obtain evidence for use in civil or administrative investigations or litigation" (C.R. 328). In December 1978, pursuant to a plea bargain, Sells and Witte pleaded guilty to one count of conspiracy to defraud the United States (Pet. App. 2a-3a). As part of this plea bargain the other counts of the indictment against Sells and Witte, as well as all counts against Sells Engineering, were dismissed. 2. Shortly before Sells and Witte entered their guilty pleas, the United States Department of Justice sought an order under Fed. R. Crim. P. 6(e) from the district court in which the criminal charges were pending that would authorize disclosure of grand jury transcripts and documents considered by the grand jury to attorneys serving in the Civil Division of the Department and to personnel assisting them. The Civil Division requested this disclosure in order to determine whether to file a civil suit under the False Claims Act (Rev. Stat. 3490 et seq. (1875 ed.)) against persons indicted by the grand jury. The Civil Division explained that it needed the material promptly because it feared that the six-year period provided by the statute of limitations might otherwise expire before it could determine whether a suit should be filed (Tr. of Dec. 7, 1978 at 6, 26). One week later, the district court accepted the guilty pleas from Sells and Witte (Tr. of Dec. 15, 1978 at 40-59), who also withdrew their allegation of grand jury abuse (id. at 40, 60). /3/ Several days thereafter, the district court held a hearing on the Civil Division's request for access to grand jury transcripts and documents. The government claimed access for Civil Division attorneys engaged in the False Claims Act investigation as of right under Fed. R. Crim. P. 6(e) (3) (A) (i), noting that under the Rule no court order was necessary for such disclosure (C.R. 437, 438), and sought disclosure to personnel assisting the Civil Division attorneys under Rule 6(e) (3) (C) (i) (Tr. of Dec. 18, 1978 at 77-79). Government counsel specified that the disclosure request covered all materials that had been before the grand jury investigating respondents (id. at 77). Respondent opposed disclosure of the grand jury materials, arguing that a Civil Division attorney is not an "attorney for the government" entitled to disclosure of such materials as of right and that the government had not made an adequate showing of need to justify disclosure (Tr. of Dec. 18, 1978 at 67). Respondents also sought to revive the claim of grand jury abuse abandoned in the criminal case (id. at 67-68, 71-75). In reply the government noted that respondents' motions to dismiss the indictment, containing the allegation of abuse, had been withdrawn and that, in any event, the government's opposition to the withdrawn motions (C.R. 93-330) fully dispelled any suggestion of impropriety (Tr. of Dec. 18, 1978 at 78-79). The district court granted the government's request for disclosure (Pet. App. 22a-26a). Relying on the Fifth Circuit's decision in In re Grand Jury (LTV), 583 F.2d 128 (1978), the court held (Pet. App. 22a) that Civil Division attorneys are "attorney(s) for the government" entitled to review grand jury materials relevant to their duties pursuant to Rule 6(e) (3) (A) (i). /4/ The district court held in addition that the government had shown what it characterized as a "particularized need" sufficient to justify the requested disclosure, in that it had "demonstrated that the grand jury materials are rationally related to civil matters within the duty of the attorney for the government and that he requires the assistance of non-lawyers" (Pet. App. 23a). The court concluded that it was not required to rule upon the allegations of grand jury abuse made by respondents because they had been withdrawn when Sells and Witte pleaded guilty (id. at 24a). The court stated, however, that it "would have ruled there was no abuse of the grand jury process" (ibid.). The court accordingly authorized disclosure to Justice Department attorneys and assisting personnel and denied respondents' motion to stay disclosure (Tr. of Dec. 18, 1978 at 82-83). Respondents secured an interim stay of disclosure through January 15, 1979, from a single circuit judge. They then appealed the district court's order to the Ninth Circuit. On February 27, 1979, a panel of two circuit judges vacated the earlier stay order and refused any further stay. Following this order, Civil Division attorneys and assisting personnel gained access to the grand jury materials through the United States Attorney's office. On September 17, 1979, the Department of Justice filed a civil suit in the United States District Court for the Southern District of California (United States v. Peter A. Sells, et al., Civ. No. 79-1282-GT) against respondents and others under the False Claims Act and at common law, seeking recovery of amounts they had overcharged the United States on their contracts. 3. On April 2, 1981, after Civil Division personnel had had access to the grand jury materials for more than two years, a divided panel of the court of appeals reversed the district court's disclosure order (Pet. App. 1a-19a). /5/ Although the court of appeals recognized that the Fifth Circuit and several district courts had ruled otherwise, it held that grand jury materials could not be disclosed to Civil Division attorneys in the absence of a court order entered under Fed. R. Crim. P. 6(e) (3) (C) (i) (Pet. App. 9a-14a). The court based this holding on its view that such extra-judicial disclosure "might irresistibly encourage use of the grand jury as a tool of civil discovery" (id. at 12a) and on its analysis of the history of Rule 6(e), which (the court believed) showed that disclosure to government attorneys under Rule 6(e) (3) (A) (i) was limited to attorneys engaged in criminal prosecution (Pet. App. 10a-12a). The court of appeals further held (Pet. App. 14a-17a) that, in order to secure access to grand jury materials by leave of court directed preliminarily to a judicial proceeding under Rule 6(e) (3) (C) (i), both Justice Department civil attorneys and personnel assisting them are required to demonstrate "particularized and compelling need" (Pet. App. 14a). Because the district court had employed a "rational relationship" standard to determine whether disclosure should be granted, the court of appeals remanded the case for reconsideration of the disclosure order (id. at 16a-17a, 18a). /6/ Finally, although recognizing that the legislative history of congressionally enacted amendments to Rule 6(e) indicates that any hearing upon a government disclosure request should be conducted ex parte so as to preserve grand jury secrecy, the court of appeals prescribed an adversary hearing on remand to allow respondents' attorneys to object to the government's request, to the extent that the particular grand jury materials involved were documents belonging to respondents (Pet. App. 17a). /7/ District Judge Curtis, sitting by designation, dissented (Pet. App. 18a-19a). He concluded that the case was moot in light of Civil Division attorneys two years of access to the grand jury materials, and he suggested that any objection to the government's use of the disputed materials could be entertained upon an appropriate motion in the pending civil action. /8/ STATEMENT OF ARGUMENT I A. The decision of the court of appeals restricting disclosure of grand jury materials to Department of Justice attorneys engaged in criminal prosecution is contrary to the plain language of the Federal Rules of Criminal Procedure. Rule 6(e) (3) (A) (i) authorizes disclosure to "an attorney for the government for use in the performance of such attorney's duty," and Rule 54(c) defines "attorney for the government" to include any "authorized assistant of the Attorney General" -- a category that includes attorneys in the Civil Division, just as it does their counterparts in the Criminal Division and the United States Attorney's Offices. Significantly, unlike other exceptions to the rule of grand jury secrecy, Rule 6(e) (3) (A) (i) does not limit access to persons engaged in criminal law enforcement. No such restriction should be read into the rule. B. This Court recognized the propriety of civil use of grand jury materials in United States v. Procter & Gamble Co., 356 U.S. 677, 683-684 (1958). The government argued in that case that use of existing grand jury materials in civil litigation brought by the United States was an integral part of the Attorney General's responsibility for civil law enforcement, while the appellees claimed that such use was inherently abusive. In rejecting appellees' contentions, the Court sanctioned the government's practice of employing grand jury materials to prepare for relevant civil litigation without seeking prior judicial authorization. The Court's decision in Procter & Gamble nowhere suggests that this rule is dependent upon the identity of the particular government attorneys involved -- i.e., whether the government attorneys handling the civil suit also conducted the grand jury proceedings. C. The legislative and administrative history of Rule 6(e) does not support the decision below. The Advisory Committee Notes accompanying Rule 6(e) as originally adopted reflect the drafters' intention to continue prevailing practices respecting disclosure of grand jury materials. There is no evidence that disclosure of such materials was limited to government attorneys engaged in criminal litigation in 1946. Indeed, no attention was paid to the civil/criminal distinction at that time, no doubt because the common pattern was for the same attorney or group of attorneys to handle related civil and criminal litigation for the government. But the law was clear in 1946, as it has been since the founding of the Department of Justice, and remains today, that the Attorney General has complete authority to allocate responsibility among his assistants without creating arbitrary barriers among those handling civil, criminal, or grand jury matters. Accordingly, there is no reason to believe that, contrary to the plain language of Rule 6(e), its provisions were intended to create such an artificial barrier. The legislative history of the 1977 amendment to Rule 6(e) also reflects approval of the prevailing practice of disclosure of grand jury materials to Department of Justice attorneys engaged in civil litigation, without prior judicial authorization. The 1977 amendment was designed to resolve existing uncertainty as to whether, and upon what terms, non-attorney personnel (generally employees of agencies outside the Department of Justice) assisting Department of Justice prosecutors could have access to grand jury materials. The amendment authorizes such disclosure, but requires leave of court before any agency outside the Department of Justice may employ information disclosed in this manner to its personnel for purposes of agency litigation. No change was made in the practice of disclosing grand jury materials to government attorneys within the Department of Justice, for purposes of civil law enforcement. D. The policies underlying grand jury secrecy do not support the court of appeals' restrictive interpretation of Rule 6(e). Unlike disclosure to the public generally or to private litigants, disclosure of grand jury materials to Department of Justice attorneys creates no basis for concern that potential defendants will be alerted and flee, or will importune or threaten witnesses or grand jurors. Nor will such limited additional disclosure within the government impugn the reputations of those wrongly accused. This is especially so where, as here, the grand jury proceedings were concluded before any civil disclosure was sought. On the other hand, availability of grand jury materials to Department of Justice attorneys engaged in civil litigation advances important public interests. Most important, of course, is the strong public interest in assuring enforcement of the civil law, especially in areas involving criminal or quasi-criminal conduct injurious to society as a whole, such as fraud upon the public fisc, bribery of officials, conflict of interest, and restraint of trade. The erection of artificial barriers between civil law enforcement and criminal prosecution is particularly inappropriate in such contexts, where the civil proscriptions form part of an integrated legislative scheme including criminal penalties. The civil provision of the False Claims Act, Rev. Stat. 3490 (1875 ed.), for example, simply establishes a monetary remedy for the government whenever criminal conduct as defined in Rev. Stat. 5438 (1875 ed.) has occurred. Congress could not have intended the practical consequences of the court of appeals' decision. The court's construction of Rule 6(e) requires abandonment of a key mechanism used by Civil Division attorneys to carry out their duty to enforce the False Claims Act and similar prohibitions -- systematic referrals from the FBI, the United States Attorneys and the Criminal Division containing information derived from grand jury proceedings that indicates a possible need for civil enforcement. In place of this mechanism, the Civil Division would often be forced to duplicate investigations already carried out by the grand jury at public expense. II The court of appeals erred in concluding that the United States must meet a standard of "particularized and compelling need" in order to obtain judicial authorization to disclose grand jury materials to Department of Justice attorneys, as well as to personnel assisting them, for use in civil law enforcement. The applicable provision, Fed. R. Crim. P. 6(e) (3) (C) (i), establishes no such standard. To be sure, this Court has held, in a case involving disclosure of grand jury materials to a private party, that disclosure should be authorized only when the private interest in disclousre outweighs the public interest in secrecy. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-223 (1979). But the Court's opinion reflects that that rule was intended to govern only in the context of disclosure to a private party. The standards applicable to disclosure to government personnel is far different, because the interest in disclosure is public rather than parochial. Even if Douglas Oil were controlling here, the court of appeals' decision incorrectly balances the relevant concerns. This Court did not sanction a rigid standard of "particularized and compelling need" for all grand jury disclosures. On the contrary, the Court established a flexible standard that adjusts the burden imposed upon the party urging disclosure in light of the force of the policy of grand jury secrecy in the setting of the particular case. But, as we explain in Point I, the considerations that underlie grand jury secrecy have little application in this setting or in the typical case of disclosure to government attorneys and their assistants for civil litigation. In that context, a showing that the materials to be disclosed are relevant to matters within the duties of the attorneys for the government and that the requested assistance is reasonably necessary to the fulfillment of those duties is plainly adequate to accommodate the competing interests. ARGUMENT This case presents two important questions concerning Rule 6(e) of the Federal Rules of Criminal Procedure, which governs disclosure of grand jury materials. The court of appeals has held that disclosure of grand jury materials to Department of Justice attorneys responsible for civil litigation requires judicial authorization and that disclosure to such attorneys, as well as to personnel assisting them, may be approved only upon satisfaction of an exacting standard heretofore applied to disclosure applications by private litigants: a showing of "particularized and compelling need." The court of appeals' decision is contrary to the language and history of Rule 6(e) and will seriously disrupt the Department of Justice's efforts to fulfill its duty to enforce civil statutes, such as the False Claims Act and prohibitions against bribery, tax evasion and conflicts of interests, that have criminal law overtones. The combined effect of the two branches of the court of appeals' decision is to obstruct the government's civil use of grand jury materials even though secured without any abuse of the grand jury process; the decision accordingly cannot be reconciled with this Court's decision in United States v. Procter & Gamble Co., 356 U.S. 677, 683-684 (1958). I. A DEPARTMENT OF JUSTICE CIVIL DIVISION ATTORNEY PREPARING A CIVIL FRAUD ACTION UNDER THE FALSE CLAIMS ACT IS "AN ATTORNEY FOR THE GOVERNMENT" ENGAGED IN "THE PERFORMANCE OF SUCH ATTORNEY'S DUTY," ENTITLED TO REVIEW PERTINENT GRAND JURY MATERIALS WITHOUT PRIOR JUDICIAL AUTHORIZATION A. The Plain Language of Rule 6(e) Authorizes Department of Justice Attorneys to Review Grand Jury Materials As of Right Rule 6(e) of the Federal Rules of Criminal Procedure establishes a general rule of secrecy respecting grand jury proceedings. Except as specifically authorized, the rule prohibits disclosure of "matters occurring before (a) grand jury" by anyone, other than a witness, who has a right of access to such proceedings. Fed. R. Crim. P. 6(e)(2). A knowing violation of this rule is punishable as a contempt of court. Ibid. Among the exceptions expressly established in the rule, however, is Fed. R. Crim. P. 6(e)(3)(A)(i), which authorizes disclosure of grand jury materials, other than records of actual deliberations and of voting by any grand juror, to "an attorney for the government for use in the performance of such attorney's duty." /9/ For the purposes of the Federal Rules of Criminal Procedure, Rule 54(c) defines an "attorney for the government" to include "an authorized assistant of the Attorney General." By statute and regulation, attorneys assigned to the Civil Division of the United States Department of Justice, like attorneys elsewhere in the Department, are authorized assistants of the Attorney General. See 28 U.S.C. 510, 515-517, 519; 28 C.F.R. 0.13 and 0.45. The duties of such attorneys include prosecution of civil fraud actions under the False Claims Act. See 28 C.F.R. 0.45(d). Accordingly, as the Fifth Circuit recognized in In re Grand Jury (LTV), 583 F.2d 128, 130 (1978), /10/ the plain language of Rule 6(e)(3)(A)(i) compels the conclusion that Civil Division attorneys were authorized to review the grand jury transcripts and documents sought in this case. /11/ Significantly, Rule 6(e)(3)(A)(i) contains no language limiting access to or use of grand jury materials to attorneys for the government engaged in criminal prosecution duties. The absence of such language is especially striking because limiting language of this nature is incorporated in Rule 6(e)(3)(A)(ii), which authorizes disclosure of grand jury materials to government personnel outside the Department of Justice (and to nonattorney personnel within the Department of Justice) when such access is "deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce the criminal law." Plainly Congress /12/ knew how to limit access to grand jury materials to persons engaged in criminal prosecutorial functions. See Fedorenko v. United States, 449 U.S. 490, 512 (1981). Moreover, persons who review grand jury materials pursuant to Rule 6(e)(3)(A)(ii) are expressly prohibited from "utiliz(ing) that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce federal criminal law." Fed. R. Crim. P. 6(e)(3)(B). No comparable restriction on use of grand jury materials by Department of Justice attorneys is contained in the rule. Accordingly, the rule on its face clearly authorizes disclosure, without judicial approval, to Department of Justice attorneys engaged in civil law enforcement. B. This Court's Decisions Reflect Awareness and Approval of the Department of Justice's Practice of Making Grand Jury Materials Available to Attorneys Responsible for Relevant Civil Litigation Without a Court Order The decision of the court of appeals not only disregards the clear implication of the statutory language, but also cannot be reconciled with this Court's ruling in United States v. Procter & Gamble Co., 356 U.S. 677 (1958). There this Court reviewed the order of a district court granting disclosure of grand jury transcripts to the defendants in a civil antitrust case. /13/ The civil suit was the outgrowth of a grand jury investigation that had terminated without the return of an indictment. The record made clear the government's assertion of the right to employ grand jury materials in civil litigation generally (United States v. Procter & Gamble Co., 19 F.R.D. 247, 250 (D.N.J. 1956) (quoting statement of government counsel)): (T)he Government feels free, indeed obligated, to use information obtained from grand jury investigations in the preparation of civil actions which the Government is required to bring in its sovereign regulatory capacity * * * . The district court granted the defendants' disclosure motion, holding that good cause for discovery had been established. In support of that conclusion the district court observed that the government was using the grand jury transcripts for preparation of the civil case, that the transcripts would be of significant assistance to the defendants, and that the transcripts were not otherwise available to the defendants. United States v. Procter & Gamble Co., 19 F.R.D. 122, 123-128 (D.N.J. 1956). Appellee Association of American Soap & Glycerine Producers, Inc., asserted in this Court (Br. 19-34) that the government's retention and use of the grand jury transcripts in civil litigation violated the rule of grand jury secrecy and that disclosure to the defendants should accordingly be permitted. The government defended the practice of using grand jury materials to prepare a civil case where the grand jury was convened for a proper purpose (Br. 50-52), explaining that "the Attorney General should not be deprived of the right to use evidence properly and lawfully secured, in carrying out his statutory" duty under the Sherman Act (Br. 50). This Court reversed the disclosure order, holding that the policy of grand jury secrecy was not overcome by the considerations marshalled by the district court and the appellees in support of disclosure, because there had been no showing of "compelling necessity" and "particularized need." 356 U.S. at 681-683. By contrast, the Court approved the government's use of the grand jury materials, lawfully compiled, for purposes of civil law enforcement (id. at 683-684): (The district court) seemed to have been influenced by the fact that the prosecution was using criminal procedures to elicit evidence in a civil case. If the prosecution were using that device, it would be flouting the policy of the law. For these Sherman Act cases Congress has guarded against in camera proceedings by providing that "the taking of depositions . . . shall be open to the public" and that no order excluding the public shall be valid. 37 Stat. 731, 15 U.S.C. Section 30. We cannot condemn the Government for any such practice in this case. There is no finding that the grand jury proceeding was used as a short cut to goals otherwise barred or more difficult to reach. It is true that no indictment was returned in the present case. But that is no reflection on the integrity of the prosecution. For all we know, the trails that looked fresh at the start faded along the way. What seemed at the beginning to be a case with a criminal cast apparently took on a different character as the events and transactions were disclosed. The fact that a criminal case failed does not mean that the evidence obtained could not be used in a civil case. It is only when the criminal procedure is subverted that "good cause" for wholesale discovery and production of a grand jury transcript would be warranted. No such showing was made here. Procter & Gamble strongly suggests that the court of appeals erred in restricting the government's access to the grand jury materials in this case. To be sure, neither the appellees' argument nor the Court's holding in Procter & Gamble respecting the government's use of the grand jury transcripts was couched explicitly in terms of Rule 6(e), but the Court recognized that Rule 6(e) is merely declaratory of the pre-existing policy of grand jury secrecy (356 U.S. at 681 & n.5; see also Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959)), which the government's practice was held not to offend. Given the Court's recognition of the role of Rule 6(e) and its rejection of appellees' contention that the government had violated the rule of grand jury secrecy, Procter & Gamble must fairly be interpreted to approve civil use of grand jury materials by government attorneys as consistent with Rule 6(e). Moreover, the Court was plainly aware that the government had reviewed the grand jury transcripts without the benefit of any prior judicial authorization (see 356 U.S. at 684-685 (Whittaker, J., concurring); see also Pittsburgh Plate Glass Co. v. United States, supra, 360 U.S. at 404 (Brenan, J., dissenting)) and equally clearly approved that practice. /14/ Strictly speaking, of course, Procter & Gamble only addressed the civil use of grand jury materials by the government, and not the theoretically separate question whether disclosure may be made to individual government attorneys not privy to the materials as a result of the grand jury investigation or criminal prosecution. No viable distinction may be fashioned along these lines, however. Neither the Court's opinion nor the contentions of the parties in any way turned upon the identity of the government attorneys engaged in the civil antitrust action. Indeed, it appears that the record does not even indicate whether disclosures to additional government attorneys were involved. In short, the Court had no basis for assuming that disclosure of grand jury materials to civil attorneys had not occurred. /15/ And it would be a strange and pointless rule that made the availability of grand jury materials for civil use by the United States turn upon attorney assignment patterns or a chance event such as the departure of an individual attorney from government employment. See pages 21-23, infra. Accordingly, the fair implication of the Court's decision in Procter & Gamble is that, so long as the grand jury was utilized for proper criminal law enforcement purposes, disclosure of the material generated during the grand jury proceedings to government attorneys responsible for relevant civil litigation does not offend Rule 6(e). C. Nothing in the Legislative or Administrative History of Rule 6(e) Restricts the Availability of Grand Jury Materials to Government Attorneys Engaged in Criminal Prosecution Notwithstanding the plain language of Rule 6(e) (3) (A) (i) and the decision in Procter & Gamble, the court of appeals construed the rule as limiting disclosure to "attorneys for the government" engaged in criminal prosecution (Pet. App. 13a). In support of its interpretation, the court below cited (id. at 11a) the Advisory Committee Notes accompanying Rule 6(e) as first promulgated in 1946, similar notes accompanying an amendment to the rule proposed in 1976, and the legislative history of amendments to Rule 6(e) enacted by Congress in 1977. These materials do not support the court of appeals' restrictive interpretation of Rule 6(e) (3) (A) (i). 1. The Advisory Committee Notes accompanying Rule 6(e) as originally promulgated indicate the drafters' intention to continue traditional practices respecting disclosure of grand jury materials. 18 U.S.C. App. at 1411. /16/ We are unaware of any evidence, however, that practices employed prior to 1946 restricted disclosure of grand jury materials to government attorneys engaged in criminal prosecution. Any such rule would be at odds with patterns of organization that have prevailed in the Department of Justice and the Offices of the United States Attorneys since the earliest days of this Nation. Today, as in the past, several units of the Department and all of the United States Attorneys Offices have both civil and criminal law enforcement responsibilities, including authority to conduct grand jury proceedings. /17/ And it has never been understood that the availability of grand jury materials for civil use turns upon assignment of the civil and criminal aspects of a given matter to the same attorney. Since the enactment of the Judiciary Act of 1789, ch. 20, Section 35, 1 Stat. 92, both civil and criminal litigation responsibilities have been vested without distinction in the person of the Attorney General and the several United States Attorneys. See 28 U.S.C. 515(a), 518, 519, 547. The authority of the Attorney General to assign responsibility for litigation to his assistants without respecting any arbitrary division among civil, criminal, and grand jury matters has long been confirmed by statute. See, e.g., Rev. Stat. 359, 360 (1875 ed.); 5 U.S.C. (1940 ed.) 310; 28 U.S.C. 510, 515(a), 517, 518(b). /18/ 28 U.S.C. 515(a), like its predecessor, 5 U.S.C. (1940 ed.) 310, is derived from the Act of June 30, 1906, ch. 3935, 34 Stat. 816, and provides: The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings * * * which United States Attorneys are authorized by law to conduct * * * . Given the unqualified discretion of the Attorney General and the United States Attorneys to assign responsibility for civil litigation, criminal prosecution and grand jury matters in any manner deemed to suit the interests of the United States, there is no reason to believe that, by authorizing disclosure of grand jury materials to "the attorneys for the government for use in the performance of their duties" (see App. 3a, infra), the drafters of Rule 6(e) intended in 1946 to create a new distinction by limiting disclosure to attorneys engaged in criminal prosecution duties. To be sure, as the court of appeals observed (Pet. App. 10a), the 1946 Advisory Committee Note also states (18 U.S.C. App. at 1411) that Government attorneys are entitled to disclosure of grand jury proceedings * * * inasmuch as they may be present in the grand jury room during the presentation of evidence. This comment does not reflect an intent to restrict disclosure to those actually engaged in criminal prosecution duties, or to those actually present in the grand jury room. Plainly, there would be no point in authorizing disclosure to persons already privy to the grand jury materials. And it is established that grand jury materials may be disclosed to officials within the Department of Justice with supervisory authority over the conduct of the grand jury proceedings. United States v. United States District Court, 238 F.2d 713, 721 (4th Cir. 1956), cert. denied sub nom. Valley Bell Dairy Co. v. United States, 352 U.S. 981 (1957). Accordingly, the explanatory comment simply reflects the rule that the class of attorneys entitled to review grand jury materials is identical to the class of attorneys that could be authorized by the Attorney General to be present in the grand jury room during the presentation of evidence. As explained above, the Attorney General may authorize any Department of Justice attorney to conduct grand jury proceedings, without regard to the nature of his or her other duties. /19/ Given the practice of assigning criminal and civil litigation arising from a common factual nexus to a single attorney or group of attorneys, a practice that we believe was more common in 1946 than it is today, /20/ the Advisory Committee simply had no occasion to comment upon the disclosure of grand jury materials to government attorneys responsible solely for the civil aspect of the matter investigated by the grand jury. The Advisory Committee Note accordingly does not suggest that the Attorney General's exercise of his discretion to assign the civil and criminal aspects of an investigation to different attorneys or functional units within the Department should limit the availability of grand jury materials to the government for use in civil litigation. 2. The court of appeals' reliance (Pet. App. 10a-11a, 13a) upon the 1976 Advisory Committee Note and the legislative history of the 1977 amendment to Rule 6(e) is equally unavailing. Attention at that time was focused on a problem distinct from the question in this case: the terms upon which grand jury materials might be disclosed to technical experts and other non-lawyers, particularly persons outside the Department of Justice, whose assistance was required by prosecuting attorneys. A section issue under debate was the question whether and on what terms agencies outside the Department of Justice whose personnel had assisted the grand jury could employ the information made available to the grand jury agents for their own investigations and litigation. /21/ The product of the 1977 amendment was a general reorganization of Rule 6, and the addition, inter alia, of the present Rule 6(e) (3) (A) (ii) and 6(e) (3) (B) (see Act of July 30, 1977, Pub. L. No. 95-78, 91 Stat. 319 et seq.). The present Rule 6(e) (3) (A) (i), however, was carried forward from the first sentence of the prior text (see App., infra, 3a) without substantive alteration. Although there was some passing reference to civil use of grand jury materials generally in the legislative hearings and reports, there is no indication that disclosure to Department of Justice attorneys with civil law enforcement responsibilities was to be precluded. Indeed, insofar as any inference can be drawn, it appears that Congress approved this practice. The amendment to Rule 6(e) proposed by the Advisory Committee and transmitted by this Court to Congress would have provided for disclosure to government personnel assisting the government attorney by adding the following definition of the phrase "attorney for the government" as used in Rule 6(e): For purposes of this subdivision, "attorneys for the government" includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. See 425 U.S. 1157, 1161. Although the drafters of the proposed Rule urged vigilance against abusive use of a grand jury for civil litigation ends, 18 U.S.C. App. (Supp. IV) at 611, there was no suggestion that the Rule would bar disclosure of grand jury materials already in existence to government attorneys for use in civil law enforcement. Indeed, the proposed incorporation of Rule 54(c) by reference highlights a contrary assumption. Moreover, in describing the availability of grand jury materials to the government under Rule 6(e) as it then stood, the Advisory Committee relied upon the Third Circuit's decision in In re Grand Jury Proceedings, 309 F.2d 440, 443 (1962), quoting from language therein distinguishing between disclosure to attorneys for the government subject to the control of the Attorney General and attorneys employed by administrative agencies. The court concluded that the latter were not entitled to disclosure as "attorneys for the government," implying a contrary view as to the former. The Advisory Committee Note accordingly reflects approval of the existing disclosure practices of the Department of Justice. /22/ Upon transmission of the proposed Rules by this Court, Congress acted to postpone the effective date of the amendment to Rule 6(e) to permit more thorough study of the matter than the Rules Enabling Act would otherwise have allowed. Act of July 8, 1976, Pub. L. No. 94-349, 90 Stat. 822. The House of Representatives then conducted hearings concerning the proposed amendments to Rule 6(e) and other criminal rules. See Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. (1977) (hereinafter "Hearings"). A substantial diversity of viewpoints was expressed at the hearings. Most significant for present purposes, several key witnesses emphasized the propriety under existing law of civil use of grand jury materials by Department of Justice attorneys (as distinguished from agency attorneys) in the absence of a showing of grand jury abuse (see Hearings, supra, at 36, 45 (testimony of Hon. Edward R. Becker, United States District Judge); /23/ 93-94 (testimony of Prof. Wayne LaFave, Reporter, Advisory Committee on Criminal Rules)) and remarked that under Rule 6(e) disclosure to attorneys for the government did not require judicial authorization (see id. at 55 (testimony of Richard L. Thornburgh, Acting Deputy Attorney General)). /24/ Several witnesses opposed the amendment as written, fearing that disclosure to agency personnel assisting the grand jury would inevitably make grand jury materials available for agency use. A variety of modifications to the amendment were proposed as a means of preventing such leakage. /25/ Finally, at least one witness suggested that no civil use of grand jury materials should be permitted. /26/ The House Committee was unable to agree upon a satisfactory disposition of the amendment to Rule 6(e) and recommended deferring any substantive change in the Rule until a comprehensive grand jury reform bill, including an exhaustive revision and clarification of Rule 6(e), could be completed. H.R. Rep. No. 95-195, 95th Cong., 1st Sess. 4-5 (1977). The focus of the Committee's concern, however, was on disclosure to non-Department of Justice personnel; there was no suggestion of disapproval of prevailing practices involving Justice Department attorneys in the House Committee's Report. Ibid. Representative Wiggins dissented from the Committee's action on Rule 6(e). He reported the finding of the Committee's survey of United States Attorneys and the Department of Justice respecting existing disclosure practices (H.R. Rep. No. 95-195, supra, at 13): (T)here was general agreement that disclosures at least to criminal investigative agents and other divisions within the Justice Department were permissible without court order. The Committee bill, H.R. 5864, 95th Cong., 1st Sess. (1977), deleting the amendment to Rule 6(e) promulgated by this Court, was passed by the House of Representatives. 123 Cong. Rec. 11111-11112 (1977). The Senate, however, was not content to await further legislation. Instead, the Senate Committee amended the House bill, reorganizing the existing provisions of Rule 6(e) and inserting the provisions that became the present Rule 6(e) (3) (A) (ii) and 6(e) (3) (B). These provisions authorize disclosure without a court order to personnel whose assistance is needed by government attorneys for criminal prosecution purposes, but require judicial approval prior to use of such information by such personnel for any other purpose. Rather than disapproving the Advisory Committee proposal, the Senate Committee suggested that a need for clarification prompted its reformulation. See S. Rep. No. 95-354, 95th Cong., 1st Sess. 6-8 (1977). There is no indication whatever that, in adding this clarification, Congress intended to end the prevailing practice allowing disclosure of grand jury materials to Department of Justice attorneys responsible for civil law enforcement. Rather, the Senate Committee Report expressly remarked (id. at 8): There is, however, no intent to preclude the use of grand jury-developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper, assuming that the grand jury was utilized for the legitimate purpose of a criminal investigation. /27/ Contrary to the court of appeals' statement (Pet. App. 13a), nothing in the Senate Committee Report "implies that a court order must be obtained" under Rule 6(e) (3) (C) (i) to authorize such disclosure. The court's assertion apparently rests upon language in the Committee Report, immediately following that quoted above (S. Rep. No. 95-354, supra, at 8; footnote omitted): Accordingly, the Committee believes and intends that the basis for a court's refusal to issue an order under * * * (Fed. R. Crim. P. 6(e) (3)) (C) to enable the government to disclose grand jury information in a non-criminal proceeding should be no more restrictive than is the case today under prevailing court decisions. This language, however, does not indicate that a court order under Rule 6(e) (3) (C) is required to disclose grand jury materials to Department of Justice attorneys with civil law enforcement responsibilities. Instead, the Committee's comments relate only to the standard to be applied when an order under Rule 6(e) (3) (C) is required -- for instance, when the government seeks to make disclosure to civil support personnel or to allow use of the materials in agency civil litigation. /28/ The House bill, as amended by the Senate Committee, passed the Senate without debate (123 Cong. Rec. 24641-24642 (1977)) and was referred back to the House of Representatives, which concurred in the Senate amendments. (id. at 25193-25196). The House consideration of the amended bill reveals that body's approval of disclosure of grand jury materials to Department of Justice attorneys for civil use. In presenting the Senate's amendments to the House, Representative Mann explained (id. at 25194) that Rule 6(e) (3) (A) (i) "is not intended to change any current practice." Of course, both the 1976 Advisory Committee Note transmitted to Congress and the House Committee hearings made clear that prevailing practices allowed disclosure to Department of Justice attorneys for civil use (see pages 26-27, supra). Moreover, Representative Wiggins, whose views had carried the day in the Senate (see page 29, supra), explained the prevailing practice, distinguishing between disclosure of grand jury materials to Department of Justice attorneys for the purpose of civil use and disclosure to agencies outside the Department (123 Cong. Rec. 25196 (1977); emphasis added): There will come a time when a grand jury uncovers violations of civil laws, or State or local laws. It then becomes the duty of the attorney for the Government, if he or some other attorney for the Government cannot act on that information, to turn it over to the appropriate governmental agency so that such agency can do its duty. However, the attorney for the Government may do this only after successfully seeking an order of the court. The history of Rule 6(e) accordingly leaves little room for doubt that Congress approved of disclosure of grand jury materials to Department of Justice attorneys responsible for relevant civil litigation, without court authorization. D. Pertinent Policy Considerations Support a Literal Interpretation of Rule 6(e)(3)(A)(i) The court of appeals rested its restrictive interpretation of Rule 6(e) (3) (A) (i) upon the general policy of grand jury secrecy and the belief that a contrary decision "might irresistibly encourage use of the grand jury as a tool of civil discovery" and would "severely limit court review of any such abuse" (Pet. App. 12a). These considerations do not support the court of appeals' decision. On the contrary, the pertinent policy considerations support disclosure to Civil Division attorneys. 1. The policies that undergird the traditional rule of grand jury secrecy were summarized in United States v. Procter & Gamble Co., supra, 356 U.S. at 681-682 n.6 (quoting United States v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954)): (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. These policies could in no event justify an interpretation of Rule 6(e) (3) (A) (i) that is contrary to the plain language of the Rule. But even if these policy factors are deemed relevant, they add little support to the court of appeals' ruling. As the court of appeals itself recognized (Pet. App. 16a), most of the policies underlying grand jury secrecy are inapposite here. Where, as in this case, grand jury proceedings and the resulting criminal prosecution have been concluded, /29/ there is no risk that disclosure will alert potential defendants who might escape, or importune or threaten witnesses or grand jurors. Nor is there need here for concern about the good name of those who are investigated but exonerated or about further disclosures that might make future grand jury witnesses hesitant to speak forthrightly. Disclosure of grand jury materials to Department of Justice attorneys does not make those materials public. Any further dissemination must be in conformity with the requirements of Rule 6(e), which are backed by the sanction of contempt. Fed. R. Crim. P. 6(e) (2). Civil Division attorneys, like their criminal law enforcement counterparts, are Department of Justice employees well aware of their professional and legal obligations not to breach grand jury secrecy and have access to the same security arrangements as prosecutors to ensure that secrecy. Further dissemination of grand jury materials will occur only if, upon examination, they are found to warrant a civil action in the name of the United States. In that event, any residual force remaining to the policies of grand jury secrecy is outweighed by the interest of the United States in redressing violations of the law. See Fed. R. Crim. P. 6(e) (3) (C) (i) (permitting disclosure of grand jury materials "when so directed by a court preliminarily to or in connection with a judicial proceeding"); pages 41-47, infra. Accordingly, the policies that underlie the rule of grand jury secrecy do not compel any departure from the plain meaning of Rule 6(e) (3) (A) (i). Contrary to the court of appeals' assumption, there is no evidence that Rule 6(e) was designed to prevent abuse of the grand jury. The Rule is, moreover, ill-suited to that task, for it places no direct limit upon civil use of grand jury materials. /30/ As explained above (see pages 16-21), United States v. Procter & Gamble Co., supra, 356 U.S. at 683-684, establishes at a minimum that attorneys who become privy to grand jury materials by assisting a properly-conducted grand jury may employ those materials for civil litigation purposes. Furthermore, nothing in Rule 6(e) prevents the Attorney General from assigning criminal and civil litigation responsibilities arising from a common nucleus of operative facts to a single attorney. Accordingly, if it were true, as the court of appeals supposed, that the temptation to abuse the grand jury process is irresistible and that there are no other adequate safeguards against such abuse, one could only conclude that the court of appeals' interpretation of Rule 6(e) would foster grand jury abuse by encouraging such dual assignments. The practice of assigning responsibility for the civil aspects of criminal-related matters to different attorneys is, on the other hand, a substantial safeguard against the perceived risk that a grand jury may be employed to develop evidence for a civil case. In any event, the district court found no grand jury abuse here (see Pet. App. 24a), /31/ and there is no foundation whatever for the court of appeals' cavalier assumption that grand jury abuse is a recurring problem. Department of Justice attorneys are fully cognizant of their professional and legal obligations respecting use of the grand jury, and the reported decisions, repeatedly rejecting claims of grand jury misuse, demonstrate strict adherence to these obligations. Should the need arise, the district courts have sufficient tools to control abusive use of grand jury proceedings without perverting the meaning of Rule 6(e). /32/ 2. Substantial practical and policy concerns support the disclosure of grand jury materials to Department of Justice attorneys engaged in pertinent civil litigation. Such disclosure serves the vital public interest in the enforcement of civil law proscriptions affecting criminal and quasi-criminal conduct. Enforcement of the False Claims Act and similar prohibitions respecting bribery and conflict of interest, like the civil enforcement of the antitrust laws, is as much a part of the duty of the sovereign as is the enforcement of the criminal law. See In re Petroleum Industry Investigation, 152 F. Supp. 646, 647 (E.D. Va. 1957). Indeed, the distinction between "civil" and "criminal" law enforcement duties is quite artificial in this context, when the United States has commenced an investigation for the purposes of bringing suit in its sovereign capacity. True, the historic role of the grand jury is as a criminal law enforcement device, and it would therefore be improper to use it for civil investigative purposes. But once a grand jury investigation has been lawfully conducted and concluded, it is difficult to appreciate the justifications for a rule that would restrict access by other parts of the Justice Department to relevant materials generated by the grand jury. There is no reason why evidence that may warrant civil law enforcement, uncovered in the course of a proper grand jury investigation, should not be acted upon by the attorney for the government with responsibility, delegated by the Attorney General, for enforcing the civil laws. This is especially true when Congress has enacted civil legislation that, together with related criminal law provisions, forms part of an integrated law enforcement scheme. The criminal penalties and injunctive provisions of the Sherman Act at issue in Procter & Gamble constitute part of such a scheme. The civil provisions of the False Claims Act, Rev. Stat. 3490 et seq. (1875 ed.), likewise were enacted as part of an integrated scheme of civil and criminal law enforcement. See United States v. Bornstein, 423 U.S. 303, 305-307 n.1 (1976); United States v. Neifert-White Co., 390 U.S. 228, 228-229 n.1 (1968). The False Claims Act was adopted in 1863. Act of Mar. 2 1863, ch. 67, Sections 1 and 3, 12 Stat. 696, 698. A single section of the Act, Section 3, prescribed both criminal and civil penalties. /33/ It was re=enacted as Rev. Stat. 3490-3494 and 5438 (1875 ed.). Section 3490, which establishes civil liability, simply incorporates by reference the proscriptions contained in the criminal provision, Section 5438. /34/ Although Rev. Stat. 5438 has been repealed and superseded by 18 U.S.C. 287 and 1001 (see United States v. Bornstein, supra, 423 U.S. at 307 n.1), it retains continued vitality insofar as it defines the acts giving rise to civil liability under Rev. Stat. 3490. 423 U.S. at 307 n.1. /35/ Because Congress devised the civil provisions of the False Claims Act as an integral part of the criminal enforcement scheme, there can be little doubt that Congress expected that the attorney for the government would pursue either civil or criminal enforcement, or both, as appropriate. /36/ In these circumstances, the court of appeals' erection of an arbitrary barrier to civil enforcement of the False Claims Act serves to frustrate the clear intent of Congress. In order to fulfill the congressional mandate for diligent enforcement of the False Claims Act (see note 36, supra) and to protect the public fisc, the Attorney General has assigned primary responsibility for civil enforcement to a litigation unit possessing the requisite expertise within the Civil Division of the Department of Justice. See 28 C.F.R. 0.45(d). In carrying out this mission the Civil Division regularly receives referrals in these areas of responsibility from the FBI, the Criminal Division of the Justice Department and the United States Attorneys that contain grand jury materials and documents that have been considered by a grand jury. These materials are examined by the responsible Civil Division attorneys to determine whether further investigation leading to filing of a civil action is warranted. If an affirmative determination is made, the Civil Division may receive files from the originating office that often include additional grand jury materials. The decision below precludes continuation of this referral system and will accordingly handicap the government's prosecution of civil actions arising out of criminal conduct. Meritorious claims may be abandoned for lack of sufficient information to frame a complaint before the statute of limitations expires. On the other hand, the decision below will encourage premature filing of suits that may not prove meritorious, so as to make civil discovery techniques available. The court of appeals' decision will also compel the Civil Division or government investigatory personnel to duplicate investigative work performed in connection with a grand jury investigation. United States Attorneys and attorneys within the Department of Justice conducting grand jury proceedings routinely make use of the assistance of investigatory personnel from the FBI or, as in this case, the IRS. Government investigators, serving as agents of the grand jury, may expend substantial amounts of time in this capacity. /37/ If Civil Division attorneys are not permitted to review the materials collected by these investigatory agents, they will be required to undertake a separate investigation employing personnel completely insulated from the grand jury proceedings to establish the factual basis for civil enforcement. See Fed. R. Crim. P. 6(e) (3) (B). There is no warrant for imposing this heavy burden upon the government, which (unlike a private party seeking disclosure) has already borne the cost of the initial investigation. Attorneys engaged in False Claims Act enforcement report that a significant proportion of False Claims Act cases involve elaborate schemes to defraud the United States, such as the one conducted by respondents. The financial and practical burden of re-investigation would accordingly be particularly large. In some cases duplication of the investigation may be impossible because of the passage of time. These cases are often ones involving the largest financial stakes for the public. Criminal prosecution of the white collar crimes that are typically involved, moreover, often results in a plea bargain that averts the criminal trial that would otherwise place the relevant evidence in the public record. Thus, there is a special public interest in making relevant grand jury materials freely available to Justice Department attorneys responsible for protection of the public fisc. The adverse impact of the court of appeals' decision, of course, is not limited to the Civil Division of the Department of Justice. The Antitrust, Tax, and Criminal Divisions of the Department also have occasion to employ grand jury materials in civil proceedings within the scope of their respective areas of responsibility. The same is true of the United States Attorneys' Offices. Unless the decision below is overturned, the Department of Justice may well be faced with the unpalatable alternatives of reorganization so as to assign the conduct of civil and criminal litigation arising out of a common nucleus of facts to a single attorney or group of attorneys, or curtailment of civil law enforcement activities. /38/ These dislocations would not be justified by any corresponding benefit in the nature of meaningful protection of grand jury secrecy. II. DISCLOSURE OF GRAND JURY MATERIALS TO PERSONS ASSISTING DEPARTMENT OF JUSTICE ATTORNEYS IN CIVIL LITIGATION IS PRESUMPTIVELY PROPER Rule 6(e) (3) (C) (i) provides authority for release of grand jury materials to persons other than attorneys for the government or personnel assisting such attorneys in enforcing criminal laws. It is applicable both to disclosures sought by private parties and to disclosures sought by government personnel or agencies that are not within the scope of Rule 6(e) (3) (A). The Rule permits otherwise prohibited disclosures "when so directed by a court preliminarily to or in connection with a judicial proceeding * * * ." The Rule does not prescribe any standard, however, for the courts to apply in passing on applications falling within this authority. Nor do the Advisory Committee Notes accompanying Rule 6(e) as promulgated in 1946 address that issue. /39/ In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), following United States v. Procter & Gamble, supra, 356 U.S. at 682-683, the Court held that a private party seeking disclosure under Rule 6(e) (3) (C) (i) is required to show (441 U.S. at 222): that the material (sought) is needed to avoid a possible injustice in another proceeding, that the need for disclosure is greater than the need for continued secrecy and that the() request is structured to cover only material so needed. In this case, the government sought leave of court pursuant to Rule 6(e) (3) (C) (i) to disclose grand jury materials to expert personnel (including staff of the Defense Contract Audit Agency) whose assistance was required by Civil Division attorneys to enable them to analyze the materials, and if appropriate, to prepare a civil fraud action. /40/ The court of appeals reversed the district court's order granting this motion because, the court believed, the district court had not applied a standard of "particularized and compelling need" (Pet. App. 14a). The court of appeals thus rejected the view of the two other courts of appeals that have addressed this issue, both of which, like the district court, deemed it sufficient for purposes of Rule 6(e) (3) (C) (i) to show that "the grand jury materials (sought) are rationally related to civil matters within the duty of an attorney for the government and that he requires assistance from the non-lawyers described." In re Grand Jury (LTV), 583 F.2d 128, 131 (5th Cir. 1978); see also In re Grand Jury Subpoenas, April, 1978, at Baltimore, 581 F.2d 1103, 1110 (4th Cir. 1978), cert. denied sub nom. Fairchild Industries, Inc. v. Harvey, 440 U.S. 971 (1979). Because the court of appeals concluded that disclosure to Civil Division attorneys was not authorized by Rule 6(e) (3) (A) (i), it directed that the restrictive standard it enunciated be applied to government attorneys as well as to other government personnel. We have explained above why Rule 6(e) (3) (C) (i) has no application to Civil Division attorneys at all. In any event, we submit that the standard identified by the court of appeals cannot properly be applied to govern applications for disclosure to government attorneys or assisting personnel. The court of appeals rested its determination that the government must show a "particularized and compelling need" exclusively on decisions respecting disclosure of grand jury materials to private parties for civil litigation (see Pet. App. 14a). /41/ In Douglas Oil Co. v. Petrol Stops Northwest, supra, for example, this Court carefully framed the question presented as "(W)hat justification for disclosure must a private party show in order to overcome the presumption of grand jury secrecy." 441 U.S. at 213 (emphasis added). The rule announced in Douglas Oil, moreover, responds directly to this formulation of the issue; the Court instructed district courts considering a private party's motion for disclosure to weigh "the public interest in secrecy" against the private interest in disclosure, placing the burden on the "private party" to justify disclosure. Id. at 223. But where, as here, disclosure is sought by attorneys for the United States in furtherance of their responsibility to protect the public weal, the balancing task is fundamentally different, because the interests pitted against grand jury secrecy are public rather than parochial. Accordingly, the standard announced in Douglas Oil does not control the decision in this case. Substantial policy and practical reasons, overlooked by the court of appeals, require application of a different standard when leave of court is sought to make disclosure to government personnel necessary to evaluate, prepare and prosecute a civil action. These reasons are essentially those explained above in connection with Point I of our argument (see pages 32-41, supra). First, insofar as disclosure to government attorneys is concerned, no disclosure order would be required if the civil litigation were handled by an attorney who assisted the grand jury or otherwise had become privy to the grand jury materials through his role in criminal proceedings. Hence, no substantial interest of affected parties is protected by the strict test announced by the court of appeals, because such persons have no interest in the identity of the particular government counsel who employs grand jury material in civil litigation. Accordingly, like the court of appeals' interpretation of Rule 6(e) (3) (A) (i), the instant ruling serves primarily to interfere with the Attorney General's exercise of discretion respecting the allocation of responsibilities within the Department of Justice and the United States Attorneys' Offices. /42/ The court of appeals also failed to consider the substantial public interest in redressing fraud against the United States or in civil enforcement of other Acts of Congress such as the antitrust laws. Enactment of civil legislation of this kind, no less than enactment of a criminal statute, is a compelling indication of the public interest in disclosure to which the courts should give substantial weight in determining whether disclosure is warranted. No comparable public interest is served by disclosure of grand jury materials for use in private litigation. Even if Douglas Oil supplied the applicable standard for disclosure here, the court of appeals' decision should be reversed, for it represents a serious misapplication of that standard. Contrary to the view of the court of appeals (Pet. App. 14a) the balancing test established by Douglas Oil includes no fixed benchmark to be applied in every situation. Rather, even when the burden of justifying disclosure rests upon a private party, the Court stressed that (441 U.S. at 223): as the consideration justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. As noted above (pages 33-34), disclosure of grand jury materials to government attorneys typically implicates few, if any, of the concerns that underlie the policy of grand jury secrecy. That is equally true of disclosure to government personnel who assist the attorney for the government. Use of grand jury materials disclosed to such personnel may be limited to the purpose of assisting the attorney for the government; /43/ such a limitation is enforceable by the sanction of contempt. There is accordingly no reason to believe that disclosure to personnel assisting civil litigation attorneys in the Department of Justice will lead to further disclosure of grand jury materials within or outside the government, in the absence of an order authorizing such further dissemination. Given the attenuated strength of the considerations favoring unimpaired secrecy in the setting of a case such as this, disclosure to government personnel is properly authorized upon a showing that "the grand jury materials are rationally related to civil matters within the duty of an attorney for the government and that he requires assistance from the non-lawyers described" in the government's motion. In re Grand Jury (LTV), supra, 583 F.2d at 131. In view of the limited infringement of grand jury secrecy involved, this standard is sufficiently demanding to protect grand jury secrecy. At the same time, the test does not present an unreasonable barrier to plainly legitimate use of grand jury materials by the government. By contrast, the rigid standard announced by the court of appeals will frustrate the legitimate civil use of grand jury materials. It may prove difficult for Department of Justice attorneys to show "particularized and compelling need" for disclosure to non-attorney personnel, or personnel outside the Department of Justice, when a case is first referred for evaluation by a United States Attorney or the FBI, because technical assistance may be necessary before the case can be properly evaluated. This hurdle may prove insurmountable if this strict showing must be made even before Department of Justice attorneys specializing in the contemplated area of civil litigation may review the grand jury materials. If the Civil Division cannot surmount the barrier created by the court in the preliminary stages of a case, it will have to devote resources to duplicating already completed investigations so that its attorneys can determine if a case should be pursued further. See In re Grand Jury (LTV), supra, 583 F.2d at 131. Given the finite resources available, this will cause a reduction in the number of enforcement actions the Division is able to prosecute. In any event, the court of appeals' decision will substantially impair the utility of an important tool for screening and evaluating cases prior to filing a complaint. Because the court of appeals' decision substantially restricts civil use of grand jury materials by the Department of Justice in circumstances where no grand jury abuse has occurred, it is contrary to the intentions of Congress as revealed in the legislative history of the 1977 amendment to Rule 6(e). The Senate Committee Report (S. Rep. No. 95-354, supra, at 8) affirms that Congress had no intent to preclude the use of grand jury-developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper, assuming the grand jury was utilized for the legitimate purpose of a criminal investigation. /44/ See also 123 Cong. Rec. 25196 (1977) (remarks of Rep. Wiggins) (see pages 31-32, supra). Congress plainly viewed government use of grand jury materials for civil law enforcement purposes as presumptively proper. The heavy burden of justification placed upon the government by the decision below is accordingly incompatible with the intent of Congress. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General JOSHUA I. SCHWARTZ Assistant to the Solicitor General LEONARD SCHAITMAN DOUGLAS LETTER Attorneys AUGUST 1982 /1/ The May 1977 grand jury continued an investigation commenced by a predecessor grand jury in August 1976. Because the term of the earlier grand jury was due to expire in November 1977, and the case was then insufficiently developed to warrant indictment, the investigation was assumed by the May 1977 grand jury. Commencement of the initial grand jury investigation resulted from a recommendation by the Internal Revenue Service to the Department of Justice. The IRS' interest in respondents was initially purely civil. In late 1973 Agent Mark Rogers of the IRS Audit Division was assigned to conduct an audit of respondents and related business entities in order to determine each taxpayer's income tax liabilities for the tax years ending in 1972 and 1973. In the course of his examination, however, Agent Rogers discovered what he believed to be indications of fraud. Following established procedures, the agent referred the matter to the Intelligence Division of the IRS for a determination whether there was sufficient evidence of criminal violations of the Internal Revenue Code to warrant referral for prosecution. See United States v. LaSalle National Bank, 437 U.S. 298 (1978). The investigation was assigned to Special Agent Edwin W. Wordell of the Intelligence Division. Agent Wordell eventually concluded that sufficient evidence existed to show that respondents had committed criminal acts to warrant a recommendation that a grand jury be convened to investigate the matter. A recommendation to that effect was transmitted to the Department of Justice by the IRS. After study by the Tax Division of the Department of Justice, the United States Attorney was authorized to present the matter to a grand jury. IRS Agents Rogers and Wordell were detailed to assist the United States Attorney and the grand jury in the resulting investigation. The agents were instructed by the responsible Assistant United States Attorneys not to employ any information gained in that process for any purpose other than assisting in the grand jury investigation (C.R. 160-161, 163, 219-220; "C.R." denotes the district court clerk's compiled record on appeal). /2/ This allegation was a variation on charges raised by respondents in separate litigation arising from the IRS's administrative investigation of them (see page 2 note 1, supra) and in respondent Witte's appeal from an order of the district court finding him to be a recalcitrant witness in the grand jury proceedings, within the meaning of 28 U.S.C. 1826(a). This litigation is described in our Reply to the Brief in Opposition to our petition at pages 2-6. /3/ The grand jury had also indicted two other individuals, Robert Tucker and Richard Teerlink. Tucker was ultimately convicted after trial and Teerlink pleaded guilty. /4/ The district court cited Rule 6(e) (2) (A) (i) (Pet. App. 22a), the designation for the pertinent provision prior to renumbering occasioned by a 1979 amendment to the rule. See page 21 note 16, infra. /5/ In the court of appeals, the government argued that the disclosure order was not an appealable final order (Br. 5-8). The government also argued that insofar as respondents sought to preclude Civil Division attorneys' access to the grand jury materials, their claim had become moot, and that insofar as respondents sought to bar use of those materials, their claim could only be addressed in the pending civil case (Br. 8-11). The court of appeals held, however, that, in the circumstances of this case, the disclosure order was appealable under 28 U.S.C. 1291 (Pet. App. 5a-6a); that, notwithstanding Civil Division personnel's two years of access to the materials at issue, the case was not moot because of the possibility of continued access to the materials and of disclosure to additional individuals that was created by the existing disclosure order (id. at 6a-7a); and that the challenge to disclosure was ripe and could properly be pressed in this proceeding rather than in the government's civil action (id. at 7a). /6/ The court of appeals added that "(a)ny grand jury abuse that has occurred is relevant to the district court's decision whether to disclose, and the court should consider (respondents') allegations of such abuse" (Pet. App. 17a; citations omitted). /7/ The court of appeals also directed the district court to consider whether respondents' counsel were entitled to be heard in opposition to disclosure of other documents with which respondents were already familiar (Pet. App. 17a-18a). Although we believe that the court of appeals' requirement of adversary hearings on a Rule 6(e) motion is erroneous (see Pet. App. 21-22 n.12), we have not raised that issue in the petition. /8/ On June 5, 1980, while this case was pending before the court of appeals, the United States filed a second motion pursuant to Fed. R. Crim. P. 6(e) (3) (C) (i) seeking authority to disclose documents considered by the grand jury, and grand jury transcripts, to the IRS, to enable it to conduct an income tax audit of respondents and several affiliated taxpayers. In opposing this application, the taxpayers (respondents Sells and Witte, and Robert Tucker) repeated their allegations of grand jury abuse upon the participation of IRS personnel in the grand jury investigation, again relying upon the motion filed but later withdrawn in the criminal case (see pages 3-5, supra). The district court found that no grand jury abuse had occurred, noting, inter alia, that the grand jury proceedings had produced indictments against respondents, culminating in convictions. In re Grand Jury Investigation, Grand Jury No. 78-184, Tr. of June 23, 1980 at 3-4. The court found the applicable standard for disclosure to be satisfied (id. at 23) and granted disclosure, albeit on more restrictive terms than those the IRS had sought (id. at 24-28). The taxpayers appealed. Sells v. United States, No. 80-5829 (9th Cir.) ("Sells II"). The appeal was argued on March 3, 1982, and awaits decision. On July 16, 1982, the court of appeals withdrew Sells II from submission pending this Court's decision herein. The Sells II litigation is described in greater detail in our Reply to the Brief in Opposition to our petition at pages 7-8. /9/ We employ the term "grand jury materials" as a convenient shorthand for the label actually employed in the Rule: "matters occurring before the grand jury." See page 15 not 11, infra. /10/ Accord: In re Grand Jury Proceedings, Misc. No. 80-56P, 505 F. Supp. 978, 982 (D. Me. 1981); United States v. General Electric Co., 209 F. Supp. 197, 198-202 (E.D. Pa. 1962); In re Petroleum Industry Investigation, 152 F. Supp. 646, 647 (E.D. Va. 1957); see also Washingtion v. American Pipe & Construction Co., 41 F.R.D. 59, 62 (W.D. Wash 1966). But see In re Grand Jury, 82 F.R.D. 70, 73 (N.D. W. Va. 1979); and Capitol Indemnity Corp. v. First Minnesota Construction Co., 405 F. Supp. 929 (D. Mass. 1975). The last case cited is distinguishable because the decision there rested upon the court's finding that disclosure would actually be to a government agency not covered by Rule 54(c) and would be made during the pendency of the grand jury proceeding. Id. at 932-934. /11/ For the purposes of this case we have not challenged the court of appeals' assumption that all of the items that Civil Division attorneys sought to review -- including documents presented to the grand jury -- are "matters occurring before the grand jury" subject to the general rule of secrecy established by Fed. R. Crim. P. 6(e) (2). We note, however, that there is substantial reason to question the accuracy of that assumption. See In re Grand Jury Investigation, 630 F.2d 996, 1000-1001 (3d Cir. 1980); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382-1383 (D.C. Cir. 1980); United States v. Stanford, 589 F.2d 285, 290-291 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1979); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). Many of the documents sought in this case were government agency documents (see Tr. of Dec. 7, 1978 at 6; J.A. 43a). It is especially difficult to understand how such documents may be deemed grand jury materials. We note, as well, that the Judicial Conference's Advisory Committee on Criminal Rules has now withdrawn proposed amendments to Rule 6(e) (2) and 6(e) (3) (C), mentioned in our petition (Pet. App. 11 n.8), that would have affected the status of documents considered or subpoenaed by a grand jury. Pending this Court's decision in this case the Committee has also tabled consideration of the American Bar Association's proposal to amend Rule 6(e) (3) (A) (i), mentioned in our petition (Pet. 23 n.13), to bar all civil use of grand jury materials absent prior judicial authorization. /12/ The pertinent provisions of Rule 6(e) in its present form are the product of legislative modification of rules prescribed by this Court pursuant to the Rules Enabling Act, 18 U.S.C. 3771. See pages 21-32, infra. /13/ Defendants sought disclosure pursuant to the civil discovery rules, and in one instance, pursuant to Rule 6(e), Fed. R. Crim. P., in a pending civil action. The district court directed the government to produce the grand jury transcripts for inspection and copying and dismissed the government's complaint when the government declined to comply. /14/ Justice Whittaker, concurring in Procter & Gamble, joined the Court's judgment reversing the district court's discovery order, bur wrote separately to call for equalization of the terms of access to grand jury materials for civil use between the government and private litigants. He stated (356 U.S. at 685): I would adopt a rule requiring that the grand jury minutes and transcripts and all copies thereof and memoranda made therefrom, in cases where a "no true bill" has been voted, be promptly upon return sealed and impounded with the clerk of the court, subject to inspection by any party to such a civil suit only upon order to the court made, after notice and hearing, upon a showing of such exceptional and particularized need as is necessary to establish "good cause" in the circumstances, under Rule 34. Although Justice Whittaker added, "Surely such an order may still be made by the trial court in this case" (ibid.), his view was plainly rejected by the majority, and he appeared to recognize that adoption of his view would represent a change in the law. Justice Whittaker's view also was not shared by the dissenting Justices, who would have granted discovery to the defendants rather than denying use of the grand jury materials to the government. 356 U.S. at 689-690 (Harlan, J., dissenting). We note, as well, that even under the rule proposed by Justice Whittaker, disclosure to government attorneys apparently would be permissible in the circumstances of this case, for the respondents were, in fact, indicted; indeed, the individual respondents were convicted. /15/ The issue of disclosure to additional attorneys was squarely presented by In re Petroleum Industry Investigation, supra, 152 F. Supp. at 646, upon which the government relied (see Br. at 51-52) in Procter & Gamble. /16/ The text of Rule 6(e) as promulgated in 1946 is reproduced in the appendix to this brief (page 3a, infra). Technical changes were made in Rule 6(e) in 1966. Substantive changes were made in the rule in 1977, as described at pages 25-32, infra. The present Rule 6(e) (1), not material here, was inserted in 1979, resulting in renumbering of the succeeding sections. /17/ See, e.g., 28 C.F.R. 0.40(a) (criminal and grand jury jurisdiction of Antitrust Division); 28 C.F.R. 0.50(a) (criminal jurisdiction of Civil Rights Division); 28 C.F.R. 0.55(c), (d), (f)-(i), (n), (s) (civil jurisidiction of Criminal Division); 28 C.F.R. 0.65(d)-(g), (i) (criminal jurisdiction of Land and Natural Resources Division); 28 C.F.R. 0.70(b) (criminal jurisdiction of Tax Division). /18/ Rev. Stat. 359 (1875 ed.) provided in pertinent part: (T)he Attorney-General may, whenever he deems it for the interest of the United States, either in person conduct and argue any case in any court of the United States in which the United States is interested or may direct the Solicitor General or any officer of the Department of Justice to do so. This provision is in effect today as 28 U.S.C. 518(b). Rev. Stat. 360 (1875 ed.) provided: The Attorney-General may require any solicitor or officer of the Department of Justice to perform any duty required of the Department or any officer thereof. /19/ We do not suggest that an attorney with no responsibility for assisting the grand jury may be present in the grand jury room during the presentation of evidence. Fed. R. Crim. P. 6(d) may preclude that practice. The Attorney General's discretion to assign the civil and criminal aspects of a given matter to different attorneys would not warrant the presence in the grand jury room of an attorney interested solely in the civil matter. But that authority is a sufficient basis for extending disclosure of grand jury materials to such an attorney under Rule 6(e), for Rule 6(e) necessarily contemplates access by government attorneys who are not actually assisting the grand jury. For instance, we assume that Rule 6(d) would preclude the presence in the grand jury room of an attorney who is not assisting the grand jury, even though that attorney may subsequently assume a role in a resulting criminal prosecution. Disclosure to such an attorney would clearly be permitted under Rule 6(e) should that possibility become reality. Rules 6(e) and 6(d) are accordingly not congruent in this respect. The legislative history of the 1977 amendments to Rule 6(e) reveals that Rule 6(e) is intended to authorize disclosure to some persons not entitled to be present in the grand jury room. Proposed Amendments to the Federal Rules of Criminal Procedures: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 39-41 (testimony of Hon. Edward R. Becker, United States District Judge), 89-90 (testimony of Prof. Wayne LaFave, Reporter, Advisory Committee on Criminal Rules) (1977). /20/ Section 35 of the Judiciary Act of 1789 established an extremely decentralized pattern of responsibility for government litigation. See 1 Stat. 92. Because communication, and particularly transportation, were much slower in 1946 (and before) than today, the common practice then was for the United States Attorneys' Offices to handle all aspects of litigation, civil and criminal, arising out of a particular factual situation. And there commonly was no formal separation between attorneys engaged in civil and criminal practice. In the ensuing years the mushrooming volume of litigation and the enactment of complex civil legislation have required specialization among government attorneys and special attention to the maintenance of uniform policies nationwide. Thus, a far higher share of government litigation is today handled at least in part by Justice Department attorneys based in Washington, D.C., specializing in particular kinds of practice. Compare 28 C.F.R Introduction at 2 (1938) (describing functions of the Claims Division, predecessor to the Civil Division) with 28 C.F.R 0.45 (detailing functions of the present-day Civil Division). /21/ See H.R. Rep. No. 95-195, 95th Cong., 1st Sess. 3-5 (1977): S. Rep. No. 95-354, 95th Cong., 1st Sess. 5-8 (1977). /22/ The Advisory Committee Note also cites this Court's Procter & Gamble decision, 18 U.S.C. App. (Supp. IV) at 611, and accordingly may be deemed to approve the result of that case. /23/ Judge Becker was invited to testify because of his authorship of two influential opinions respecting Rule 6(e), In re William H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (E.D. Pa. 1971), and Robert Hawthorne, Inc. v. Director of Internal Revenue Service, 406 F. Supp. 1098 (E.D. Pa. 1976). The latter opinion reflects approval of civil use of grand jury materials by Department of Justice attorneys. Id. at 1119 n.35. /24/ Mr. Thornburgh's oral presentation also includes the statement that a "6(e) order is clearly required * * * where a criminal fraud investigation before a grand jury fails to produce enough legally admissible evidence to prove beyond a reasonable doubt that criminal fraud ensued." Hearings, supra, at 67. Read in context, however, this comment appears to refer to disclosure to agencies outside the Department of Justice. The statement was made in response to a question whether disclosure could be made to agency personnel for use by their agencies in conducting their own civil or criminal investigations. Id. at 66. Mr. Thornburgh's response was that any such disclosure for agency use would require judicial authorization (id. at 67): It would be the practice of the Department at that time to seek a 6(e) order from the court in order that that evidence could be made available for whatever civil consequences might ensue. /25/ See, e.g., Hearings, supra, at 28 (statement of Terry Philip Segal and Gerald Feffer); 34, 50 (testimony and statement of Judge Becker); 194-195 (testimony of Prof. Leon Friedman); 230 (statement of Prof. Melvin Lewis). /26/ See, e.g., Hearings, supra, at 20 (testimony of Terry Philip Segal); see also id. at 76 (statement of Rep. Symms); 111, 124 (testimony and statement of David Epstein). /27/ As noted above (see page 16), the Senate's failure to restrict disclosure pursuant to Rule 6(e) (3) (A) (i) to government attorneys engaged in "enforce(ment) of federal criminal law," or to preclude civil use by such attorneys, at the time it inserted similar restrictions applicable to persons other than government attorneys, is a telling indication that no such restriction was intended. /28/ The "prevailing court decisions" cited by the Senate Committee (S. Rep. No. 95-354, supra, at 8 n.13) were this Court's Procter & Gamble decision and Judge Becker's opinion in Robert Hawthorne, Inc. v. Director of Internal Revenue Service, supra (see page 27 note 23, supra). The pages cited from Procter & Gamble reflect the standard established for disclosure upon motion to private parties, but primarily convey the Court's approval of the government's civil use of grand jury materials without a court order (see pages 16-21, supra). In Robert Hawthorne, Inc., the district court held that agency use of grand jury materials pursuant to the language that became Rule 6(e) (3) (C) (i) required a court order (406 F. Supp. at 1129 n.62), but appears to have approved ultimate civil use by the Department of Justice without any such precondition. Id. at 1119 n.35. Judge Becker's testimony to the House Committee was to the same effect. See page 27, supra. Accordingly, the court of appeals' inference that the Senate Report disapproves of disclosure of grand jury materials to Department of Justice attorneys responsible for relevant civil litigation is entirely unfounded. /29/ This is the typical situation in which access to grand jury materials is sought for civil law enforcement purposes. See Hearings, supra, at 67 (testimony of Acting Deputy Attorney General Thornburgh). /30/ Similarly, Rule 6(e) was not designed to protect, and does not provide any protection, against use of a grand jury to collect evidence for a pending criminal case. Allegations of abusive use of a grand jury may be considered upon a proper application in any civil or criminal proceeding that results. There is no need to press Rule 6(e) into this service. /31/ Respondents' claims of grand jury abuse in this case are entirely insubstantial. First, the district court in Sells I and Sells II found these charges devoid of merit. Second, the fact that indictments were returned and convictions secured against respondents belies the claim of abuse. Indeed, the allegation of misconduct raised in the criminal case and alluded to here was merely that the grand jury investigation had a "mixed" civil and criminal purpose. See page 3 & note 2, supra. Finally, and perhaps most significantly, respondents have never alleged that the grand jury proceedings were initiated for the purpose of establishing civil liability under the False Claims Act, but have asserted that the improper purpose involved was the establishment of tax deficiencies. /32/ Contrary to the court of appeals' assumption (Pet. App. 7a), suppression would not necessarily be warranted even if abuse were demonstrated. This Court's decision in Procter & Gamble suggests that compensating disclosure to civil defendants may be the proper remedy, at least in some circumstances. 356 U.S. at 684. And no decision of this Court establishes an "exclusionary rule" as the remedy for grand jury abuse in a civil case. The question of a proper remedy for demonstrated abuse of a grand jury remains open for consideration in an ensuing civil action. /33/ Section 1 of the Act listed the forms of proscribed conduct, but applied only to military personnel. Section 3 of the Act, applicable to other persons, incorporated by reference the proscriptions enumerated in Section 1. Section 3 prescribed a civil forfeiture of $2,000 plus double damages as the civil remedy and established criminal penalties of imprisonment and fines. 12 Stat. 698. /34/ Section 3490 provides: Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title 'CRIMES,' shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with costs of suit; and such forfeiture and damages shall be sued for in the same suit. /35/ A version of the civil provisions of the False Claims Act interpolating the substantive proscriptions of Rev. Stat. 5438 in haec verba into the text of Rev. Stat. 3490 is codified at 31 U.S.C. 231. Because Title 31 has not been enacted into positive law, however, the official text remains that of the Revised Statutes. United States v. Bornstein, supra, 423 U.S. at 305 n.1. /36/ Rev. Stat. 3492 (1875 ed.) commands the United States Attorneys "to be diligent in inquiring into any violation" of Rev. Stat. 3490 and to proceed against offenders "for the recovery of such forfeiture and damages." The special importance assigned to such enforcement and the quasi-criminal aspect of the conduct proscribed is emphasized, as well, by the provision for civil arrest of alleged offenders (Rev. Stat. 3492), and by the inclusion of a qui tam provision, Rev. Stat. 3491 (1875 ed.), authorizing individuals to maintain False Claims Act suits in the name of the United States. See United States v. Bornstein, supra, 423 U.S. at 315 n.11. /37/ For instance, the record in Sells II reflects that IRS personnel devoted approximately 20,000 man-hours to the grand jury investigation. Affidavit of Mark F. Rogers at Section 14 (June 5, 1980). /38/ To be sure, the adverse impact of the court of appeals' interpretation of Rule 6(e) (3) (A) (i) is substantially magnified by the Court's interpretation of Rule 6(e) (3) (C) (i) to require proof of a "particularized and compelling need," and would be somewhat mitigated should we prevail in our contentions respecting the latter point. As explained below (page 46), the combined effect of these rulings is especially damaging. But even if this Court were to disagree with the court of appeals' interpretation of Rule 6(e) (3) (C) (i), the injury to civil law enforcement worked by the requirement of judicial authorization for disclosure of grand jury materials is substantial. Unless Justice Department attorneys responsible for civil law enforcement are permitted access to grand jury materials, it will be difficult to satisfy any standard that might govern disclosure to attorneys and others subject to Rule 6(e) (3) (C) (i). The difficulty resulting from the court of appeals' decision arises in part from the specialization of functions within the Department of Justice. The Asisstant United States Attorney or other government prosecutor handling the grand jury proceeding will rarely have the expertise necessary to make a refined judgment as to the appropriateness of civil enforcement. To require that the screening process be conducted by the criminal prosecutor would constrain the Attorney General's exercise of authority to assign responsibility for litigation among his assistants and would compel a substantial duplication of labor by government attorneys. This difficulty is also exacerbated by the possibility that the attorney responsible for the prosecution might no longer be with the government when civil disclosure is sought. In that event there might be no government attorney sufficiently familiar with the grand jury materials to file a motion for disclosure detailed enough to enable the court intelligently to review the application. /39/ Rule 6(e) (3) (C) (i) is derived from the second sentence of Rule 6(e) as originally promulgated (see App., infra, 3a). /40/ Contrary to the court of appeals' assumption (Pet. App. 13a-14a), we believe that Rule 6(e) (3) (A) (i) contemplates disclosure to Department of Justice personnel whose contact with grand jury materials is limited to clerical and ministerial support for a government attorney, and that an application pursuant to Rule 6(e) (3) (C) (i) is not required for that purpose. Indeed, any other rule might make it impossible to file a motion under Rule 6(e) (3) (C) (i) without violating Rule 6(e) in the process. /41/ We note as a threshold matter that the formulation "particularized and compelling need" employed by the court of appeals does not receive sanction in Douglas Oil. /42/ On the other hand, assuming that disclosure is available to Civil Division attorneys under Rule 6(e) (3) (A) (i), it is difficult to perceive any interest in depriving government attorneys of the assistance of personnel needed to make such disclosure effective and meaningful. /43/ Rule 6(e) authorizes the district courts to impose appropriate conditions upon any disclosure order. /44/ The Committee Report also states that the standard to be applied to government disclosure motions should be no more restrictive than that established by prevailing case law. S. Rep. No. 95-354, supra, at 8. As explained above (page 31 note 28), however, the Committee's citations to this Court's Procter & Gamble decision and to Robert Hawthorne, Inc. v. Director of Internal Revenue Service, supra, are ambiguous. Neither case applies a "particularized and compelling need" standard to a government disclosure application, and accordingly neither provides any support for the decision of the court of appeals. Appendix Omitted