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July 11, 1980


The opinion of the court was delivered by: POLLAK


In the summer of 1979, I was asked to direct the release to officials of the Mine Safety and Health Administration, an agency within the Department of Labor, of transcripts of certain proceedings held before a grand jury here in the Eastern District of Pennsylvania. That grand jury had inquired into the question whether perjury had been committed at certain public hearings conducted by the Mine Safety and Health Administration, apparently in conjunction with certain state authorities, for the purpose of inquiring into the circumstances surrounding a very tragic accident which took place in Pennsylvania in a coal mine in 1977; the coal mine was under the administrative supervision of the Mine Safety and Health Administration (MSHA) and its predecessor agency, an agency with a slightly different name, formerly located in the Department of the Interior, from which MSHA has inherited its statutory and administrative responsibilities.

 The application advised me that the grand jury had not returned a true bill, which fact had been conveyed by the United States Attorney to the Department of Labor. The application explained that release of the proceedings before the grand jury was important to MSHA so that it could carry out its statutory responsibilities which looked in the direction of civil enforcement proceedings.

 There was also reference in the application to other responsibilities of the agency which would be facilitated by a release of the proceedings namely, the development, if necessary, of revised mandatory safety standards, and making public report of the events surrounding the tragic accident of 1977.

 On July 20, 1979, I granted the application and I supplemented that order in September of 1979 when I was advised that the release of further transcripts not covered by the July 20, 1979 order was sought for the same reasons and under the same authority.

 In February of 1980, the Mine Safety and Health Administration, on behalf of the Secretary of Labor, issued citations against Kocher Coal Company, thereby initiating a civil proceeding before the Department of Labor which proceeding would, if the respondent resisted the citation, lead to an adjudication of the Secretary's citation and of the Secretary's proposed findings of appropriate penalty, if any, by an administrative law judge who is a member of the Mine Safety and Health Review Commission.

 The citation issued in February was resisted by Kocher Coal Company, thereby setting the stage for the administrative proceeding contemplated. But, at the same time, the resistance of respondent Kocher took the form of an application to vacate the citation and expedite the hearing which, together with certain judicial proceedings to which I shall now refer, brought to a focus the matters which are at issue before this court today.

 Certainly just after, but it now appears very shortly before, the public issuance by the Secretary of the citation, Kocher and its officials were advised by MSHA that an order from this court last year had directed the release to MSHA of transcripts of grand jury proceedings. Believing that release to be unauthorized in law, Kocher and its general mine foreman, Samuel Klinger, moved in this court to vacate my order of last July 20, supplemented by the September order, for release of grand jury proceedings; and Kocher and Klinger also sought a declaration that the citation and associated administrative proceedings which followed chronologically subsequent to, and allegedly flowing from, the release of the grand jury transcripts, be determined to be unlawful in their inception and restrained.

 The assignment by the Clerk of this court of these requests by Kocher and Klinger for equitable relief resulted in the motion for vacation of my July and September, 1979, orders being placed on my calendar, while the associated request for equitable relief enjoining the administrative proceedings went to Judge Troutman.

 Judge Troutman, on March 25 of this year, granted plaintiffs' application for a preliminary injunction. Specifically, what Judge Troutman directed was that:

Defendants Ray Marshall, Robert B. Lagather, John B. Shutack, Charles C. Klinger and all of their officers, agents, servants, employees, attorneys and all those in active concert or participation with any of them are enjoined from further viewing or in any other way reviewing the contents of the transcripts of the subject grand jury proceedings; from disclosing to any person whatsoever, either orally or by publication or by another means, including reports to the public, citations, orders or directives, any information contained within the transcripts of the subject grand jury proceedings. IT IS FURTHER ORDERED that all administrative proceedings heretofore initiated or to be hereafter initiated based in whole or in part on information contained in transcripts of the grand jury proceedings are hereby preliminarily enjoined and stayed pending final hearing and further Order of Court.

 It is apparent from the transcript of the proceedings before Judge Troutman, who kindly made that transcript available to me, that Judge Troutman, on March 25, on the day on which the order from which I have quoted was entered, contemplated that his preliminary injunction would remain in force pending my determination of the application made to me to vacate my orders of disclosure of grand jury transcripts.

 The claim by Kocher and Samuel Klinger that my orders of last summer were unwarranted rests essentially on three separate propositions:

 The first proposition is that it was error for me to resolve the applications on an ex parte basis. This proposition breaks down, really, into two subheadings, one of which is that the application should not have been made ex parte ; the second subproposition is that the application should, in any event, not have been determined by me on an ex parte basis, that is to say, without giving notice to Kocher and Samuel Klinger before ruling on the agency's request.

 The second proposition which is urged is that, even assuming that I had authority to entertain the application on an ex parte basis, or that so entertaining it was not an abuse of discretion, my order of release was not warranted by Rule 6(e) for the reason that 6(e)(3)(C)(i) is limited to situations in which release is requested for the purpose of carrying out a court directive as follows: "when so directed by a court preliminarily to or in connection with a judicial proceeding." The argument is that the proceedings to be initiated, and which since ...

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