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IN RE HARRISBURG

March 31, 1986

IN THE MATTER OF: HARRISBURG GRAND JURY--83-2

William J. Nealon, Chief Judge.


The opinion of the court was delivered by: NEALON

This matter is before the court in an unusual posture. The United States Department of Justice ("Department") has filed a motion requesting that this court agree to review certain documents subpoenaed by the House Subcommittee on Crime ("Subcommittee"). *fn1" The purpose of this "review" is for the court to determine if the Department would be subject to contempt under Fed.R.Crim.P. 6(e) for releasing the subpoenaed documents. The Subcommittee filed an amicus curiae brief asserting this court's lack of jurisdiction over the motion on February 19, 1986. For the reasons set forth below, the Department's motion will be denied.

 DISCUSSION

 I. The Department's Motion

 In essence, the Department's motion *fn2" states, "we are simply asking the court to decide if production of certain information and documents which we (Department) have not as yet produced would run afoul of the secrecy imposed by Rule 6(e) and thus subject the Department to potential contempt of court." See Document 158 of the Record at 2 (emphasis added). While it is not clear what the Department requests, it is significant that the "Department is not asking this court to conclude that we (Department) do not have to comply with the (Subcommittee's) subpoena." Id. Furthermore, the Department states, "nor are we asking the court to order disclosure of material that is subject to Rule 6(e)." Id. See In Re Grand Jury Matter (Catania), 682 F.2d 61 (3d Cir. 1982) (Federal government sought an order authorizing disclosure of matters before the grand jury). Moreover, the Subcommittee is not before the court seeking disclosure of grand jury material. See In Re Grand Jury Matter (Garden Court Nursing Home), 697 F.2d 511 (3d Cir. 1982) (Commonwealth Department of Revenue petitioned court to examine grand jury material); In Re Grand Jury Investigation (New Jersey State Commission of Investigation), 630 F.2d 996 (3d Cir. 1980), cert. denied, 449 U.S. 1081, 101 S. Ct. 865, 66 L. Ed. 2d 805 (1981) (New Jersey State Commission of Investigation filed motion seeking access to grand jury records). This case clearly is distinguishable in that neither the Department nor the Subcommittee is seeking disclosure or an order prohibiting disclosure. What the Department wants is advice on the proper course to follow.

 It is axiomatic that "under Art. III of the Constitution, federal court jurisdiction 'depends on the existence of a case or controversy.'" Blinder, Robinson & Co., Inc. v. United States Securities and Exchange Commission, 748 F.2d 1415, 1418 (10th Cir. 1984), cert. denied, 471 U.S. 1125, 105 S. Ct. 2655, 86 L. Ed. 2d 272 (1985) citing North Carolina v. Rice, 404 U.S. 244 (1971). "It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Id. (emphasis added) citing Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937). As stated, in this case, the Department is seeking an opinion advising what the court would do if the Department complied with the subpoena. The potential for a contempt proceeding does not alter the Department's request for advice. *fn3" Accordingly, this case presents no case or controversy over which this court has jurisdiction. On this basis alone, the court must refuse to exercise jurisdiction over the Department's Motion. As will be discussed, however, additional pragmatic reasons exist which prevent judicial intervention at this time.

 III. Lack of a Justiciable Controversy

 As a separate, although related matter, the Department's motion does not present a justiciable controversy. Courts should avoid premature intervention in matters which are committed to other branches or agencies of Government. See e.g., Wearly, W. L. v. Federal Trade Commission, 616 F.2d 662 (3d Cir.), cert. denied, 449 U.S. 822, 101 S. Ct. 81, 66 L. Ed. 2d 25 (1980). Basically, the Department seeks to circumvent the enforcement procedures contained in 2 U.S.C. §§ 192 and 194 by seeking guidance in this court concerning the validity of the Congressional subpoena. This approach was rejected when the Department attempted to procure a similar advisory opinion. See In Re Grand Jury Proceedings, Newport News Drydock & Shipbuilding Co., (E.D. Va., Oct. 17, 1984). By way of analogy, it is recognized that "resort to a court by recipients of investigative subpoenas before an action for enforcement has commenced is generally disfavored." Wearly, W. L. v. Federal Trade Commission, supra, at 665. While preenforcement review of agency subpoenas may be necessary in some circumstances, it must be determined "whether anything in the statute authorizing agency action prohibited preenforcement review." Id. at 666. Only then should the court determine whether the controversy was ripe for judicial review. Id.

 A. The Department's Motion Seeks Review of a Congressional Subpoena Outside the Prescribed Statutory Framework.

 Congressional committees have the power to compel the production of documents via Congressional subpoenas as long as the material is pertinent to the matter under inquiry. See e.g., Watkins v. United States, 354 U.S. 178 (1957). The Department does not contend that the Subcommittee lacks authority to conduct the instant investigation or that the subpoena in question is not within this investigatory power. On the other hand, the Department maintains that certain requested material may be protected by the secrecy provisions of Fed.R.Crim.P. 6(e). *fn4" It appears, therefore, that the Department seeks to test the validity of the Subcommittee's subpoena in this court by attempting to bypass the procedures set forth in 2 U.S.C. §§ 192 and 194.

 The United States House of Representatives has the power to punish a witness for contempt for refusing to produce documents pursuant to a Congressional subpoena. *fn5" See 2 U.S.C. § 192. A statutory method is prescribed under which prosecutions for contempt of Congress are to be undertaken. *fn6" See 2 U.S.C. § 194. In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), respondents sought a permanent injunction restraining the Chief Counsel and a Senate Subcommittee from trying to enforce a subpoena by contempt of Congress. In addition, respondents attempted to prevent the party to whom the subpoena was directed from complying with the subpoena. The Supreme Court recognized that the court of appeals "correctly held that the District Court properly entertained this action initially." Id. at 501 n.14. In so doing, however, the Supreme Court noted the difference between cases when the subpoena seeks information directly from a party and those cases when the subpoena seeks the same information from a third person. Id. In the latter case, the traditional route of raising defenses by refusing compliance and testing the legal issues in a contempt proceeding is unavailable to the person against whom the information is sought. Id. at 498 citing Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971). In other words, when the subpoena seeks information directly from a party, that person can resist and thereby test the subpoena. Id. at 501 n.14. In the case sub judice, the Department may raise the applicability of Rule 6(e) in any proceeding initiating or attempting to prosecute the Department, or officers acting on its behalf, for contempt. *fn7"

 In Ansara v. Eastland, supra, the court recognized the general principle that courts avoid "needless friction" with a coordinate branch of government. The court found the "ongoing legislative process provides opportunity for presentation of plaintiffs' constitutional contentions" and denied a request to restrain a Senate Subcommittee from taking action pursuant to a subpoena duces tecum. Id. at 753. As the court stated:

 
We first note that the plaintiffs will have an opportunity to present their constitutional objections to the Subcommittee . . . . This court cannot assume, as plaintiffs urge, that the members of the committee will fail to give consideration to constitutional claims they consider may have merit . . . . Furthermore, if the existence of a contempt should be reported by a committee to the Senate (or House), that body will also be invested with jurisdiction to consider the ...

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