Opposition Brief — In re Parker

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mn Bupreme Court, US

¢ | FILED

| FEB 24 1993

NO. 92-1350 |

| arrics Cr 1 CLERK

a NDOT. 2 >. Se (ea marae _— nanan

IN THE

OCTOBER TERM, 1992

IN RE GEORGE L. PARKER,

Petitioner,

Vv.

GILBERT S. MERRITT,

CHIEF JUDGE, UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAMON J. KEITH,

CIRCUIT JUDGE, UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT, AND

PIERCE LIVELY,

SENIOR CIRCUIT JUDGE, UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT,

Respondents.

BRIEF IN OPPOSITION TO GEORGE L. PARKER’S PETITION FOR WRIT OF

PROHIBITION OR MANDAMUS

Michael E. Tigar

727 E. 26th Street

Austin, Texas 78705

(512) 471-6319 -

(Counsel of Record)

Edward F. Marek

Office of the Federal Defender

Skylight Office Tower

Suite 750

1660 West 2nd Street

Cleveland, Ohio 44113-1454

(216) 522-4856

Attorneys for John Demjanjuk

Respondent

February 23, 1993

WW \ .

TABLE OF CONTENTS

IE, 5 6450 6658006628:60560866 6066006640055 0066455 084 48%

z. Petitioner Parker lacks standing to challenge

the procedures by which the Sixth Circuit has

chosen to investigate fraud on the court...........

II. It would be an improper use of the extraordinary

writ of mandamus for this Court to stay the Sixth

Circuit’s investigation of fraud on the court......

a. If Petitioner has standing to obtain an

extraordinary writ, then he also has

standing to appeal from an adverse

finding, and therefore there is an

OURUACS TOMORY GE BOMe sinc acces ecewawscuevess

b. Petitioner alleges no actions by the

Sixth Circuit which would justify the

issuance of an extraordinary writ of

Rs 66.05.45 04S OAV OO O86 8650808686646 O e086

III. With regard to Petitioner Parker, this case

PT TTT ET Te CT TT Te TEE ECU C OTT CT CCRT TCT

IV. The equities of this case favor a speedy

resolution of this dispute and militate against

the issuance of an extraordinary writ of mandamus..

ES 65S N44 4068668406 K ERE WEEKES OA EDA SOS 6604086 008

TABLE OF AUTHORITIES

PAGE

CASES:

Alexander v. United States, 201 U.S. 117 (1906)......... 7

pane wv. Care, SED G.8. 186 CIDER) «cc ccccsseseeseveseses 6

Bankers Life & Casualty Co. v. Holland,

ge ee. Be epee Tea TT err Te TTT eT Tee 14

Beacon Theatres, Inc v. Westover, 359 U.S. 500 (1959)... 16

Bender v. Williamsport Area Schoo! Dist.,

STD Use BIS CAPSS) cc ccnesvecseseesessevesesesesses 6

Blair vy. United States, 250 U.S. 273 (19129) ..ccscesececs 6

Champers .v. MASCO. Inc., 1231 &.C. 2123 (1991)... cescens 13

Dairy Queen v. Wood, 369 U.S. 469 (1962).......ceeeeeees 15

DeGaston v. Dillon, 247 F.Supp. 511 (1963)

affirmed sub. nom Degaster v. Fowler,

“OS” go: BS ee ee ee earrara er rerrer TS 19

ree Pee, See Usls SOO CADET bon cc asec anes eeeesees 9

De Pere Meee, BC) Gud. 158 CASTE) vc ccccvesiancessesesees 12

ot Parte Perry, 102 U.S. 183 (1SSO) . sc wicacsvussevesssacs 12

oe Perse Bewver, BE U.8. 225 CASE) cccccsevceocvsessences 12

First National Bank of Waukesha v. Warren,

eX Ee ee eR eee aaron e er ree 16

Guifstream Aerospace v. Mayacamas Corp.,

ee AS Ey Rie eee ee eee 12

Hazel-Atlas Glass Co. v. Hartford Empire Co.,

SEO Ucs BAe CAPSS iss cca Seen de ade dca rcedcrsecdesas 13

In re Armco, Inc., 770 F.2d 103 (8th Cir. 1985)..... Seea 15

In re Bituminous Coal Operators’ Ass’n, inc.,

Dan Dc SEO CicGs. CEE. BOGE 654 h 65% 50% eK eho 8 haces 15

In re First Federal Sav. and Loan Ass’n of Durhan,

860 F.2d 135 (4th Cir. 1988)..... Se hewhs VERS BRERA ES 19

in 2e Matring. 273 F.2G 771i (SCR Cir. 1959) .occsacccsces 15

Interstate Commerce Commission v. U.S. ex rel Campbell,

oy ae | a) rrr Ernie 11

La Buy v. Howes Leather Co., 352 U.S. 249 (1957)........4,13-16

Mallard v. U.S. Dist. Court for the Southern Dist.

OF toa, 490 U.8. 296 (1989) ..ccccvcceces eases beuede 10

Martury ¥, Magigen, 1 Cranch 137 (1803) ...ccccscseecs es 10

Middlesex County Ethics Committee v. Garden

Bee mer Been, 457 U.S. 423 (ISSR) .acacecesescves 19

Office of Thrift Supervision v. Dobbs,

332 F.28 936 (8.C.Cir. I1981)..s66. TREC? CLT YC 18

Parr v. United States, 351 U.S. 513 (1956).....cccescees 14

Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943)...... 11

Simon v. Eastern Kentucky Welfare Rights Org.,

fe Wee Be. | | Pears ari pair ray mee e

Stern v. South Cester Tube Co., 390 U.S. 606 (1968)..... 19

Thermatron Products, Inc. v. Hermansdorfer,

ee Rs Oe MOO PET ich skkn cece be¥ bate raha danke 15

United Airlines, Inc. v. McDonald,

SSS CU COTE s outed bakes anes ae heucadees wens 9

United States Catholic Conference v. Abortion Rights

Mobilization, 487 U.S. 72 CRUG) 66 vb 650s eA OE OH EES 758

United States v. Dern, 289 U.S. 352 (1933).......ccccees 19

United States v. Kis, 658 F.2d 526 (7th Cir. 1981),

cert. denied sub. nom. Salkin v. U.S.,

See ewe, DO CAPES) 64656065 004668 OOOO 68d 8 6 O% 19

United States v. Ryan, 402 U.S. 530 (1971)... ...ceeeeeee 7

Whitehorse v. Ill. Central R. Co.,

PUTER OC kk cacy uc bus cues eensneceee 19

Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978)...... 16

Will v. United States, 389 U.S. 90 (1967)............. 10, 14-16

STATUTES:

oe a ee ee ee ee ee ee ee ee ee ee ee eee 3

iii

FEDERAL RULES OF CIVIL PROCEDURE:

ee ee eee b eee uns o6466h0 4068248 8

MISCELLANEOUS:

“And More on Mr. Demjanjuk”, Washington Post,

MOV. 25, A9BZ, BE GOOG ceccccccsesescscscceseceseces 17

"Attorney Testifies that Demjanjuk’s Extradition

was a Mistake”, St. Paul Pioneer Press,

MOV. 13, L99RZ, BS BAe cccsvccsseessesecsesevseseccese 17

“"Demjanjuk Case Stirs New Doubt Ex-Prosecutor

Says Fears Were Ignored”; San Jose Mercury News,

NOV. 13, 1992, OE GH. sesvccvvcescsesssessccsecscscses 17

Joe Edwards, “Judge Told that Demjanjuk Wasn’t

‘Ivan’ A Former Justice Lawyer Testified.

He said the wrong man deported”,

Philadelphia Inquirer, Nov. 13, 1992, at A26....... 17

Eric Harrison, “Probe of Nazi War Criminal Case

Raises Ethics Questions. Government: A former

Justice Dept. attorney said he resigned over

handling of possibly exculpatory evidence

concerning the accused”, Los Angeles Times,

ee ne ee kbs eke ha hw ROSS 17

"Ivan’s Terrible Treatment the Issue: The John

Demjanjuk Case--Our View: He should be

returned to the U.S.” Rocky Mountain News,

as Ges BOEE, Oe AGRcccec cn ete etek eecanneeeseceane 17

"Justice Dept. Lawyer Reports He Voiced Doubt on

Demjanjuk”, Boston Globe, Nov. 13, 1992, at 12..... 17

Nightline (ABC television broadcast,

a ae ee oe ee ee ee eee ee ee ee ee 17

Bill Sloat & Micelle Lesie, “Ivan Probe Prosecutor

Testifies He Doubted, Then Quit”,

Cleveland Plain Dealer, Nov. 13, 1992, at 20A...... 17

Wright & Miller, Federal Practice and Procedure

SSDS Se kd CIDSE) a cccccnnesesenesenenceceseseseeeseseses 18

Statement of the Case

John Demjanjuk was extradited to Israel on February 27,

1987. He was convicted there in 1988 for crimes committed by

“Ivan the Terrible”, the ruthless Nazi guard of the Treblinka gas

chambers during World War II. The Israeli Court sentenced Mr.

Demjanjuk to death; he is currently in Israel in solitary

confinement under 24 hour surveillance awaiting a final

determination by the Israeli Supreme Court.

In 1985, the United States Court of Appeals for the Sixth

Circuit had upheld the extradition of Mr. Demjanjuk by declining

to issue a writ of habeas corpus to stop the process. 776 F.2d

571 (6th Cir. 1985). On June 5, 1992, the Sixth Circuit, sua

sponte, issued an order beginning an inquiry to determine whether

Demjanjuk’s extradition may have been based on erroneous

information. The June 5 ordei: asked, inter alia, for a brief

from the United States describing all information in the

government’s possession tending to show Demjanjuk was not “Ivan

the Terrible.” A second order issued on June 18 asked the parties

to brief relevant international law issues, “in light of possible

new evidence that Demjanjuk is not ‘Ivan the Terrible’.”

On August 17, after briefing and oral argument pursuant to

the orders of June 5 and June 18, the Sixth Circuit panel issued

a third order. The order of August 17 recounted the motivation

for the court’s reopening of the case:

(Tjhe court’s inquiry concerns whether lawyers from

the Department of Justice engaged in prosecutorial

misconduct by concealing or withholding from the

district court and this court evidence in their

“possession that John Demjanjuk was not the notorious

Ukrainian guard known as ‘Ivan the Terrible’ who

operated the gas chambers at the Treblinka, Poland

death camp. The ‘bedrock question’ for the court

--- is whether the failure of the attorneys to

disclose such exculpatory information constituted

fraud upon the court that mislead this court into

allowing Demjanjuk to be extradited.

In order to procure information the Sixth Circuit panel deemed

“essential” for reaching a decision on the issue of fraud, the

court appointed Judge Thomas Wiseman of the Middle District of

Tennessee as Special Master to conduct hearings and report back

to the Sixth Circuit.

Petitioner George Parker was called as a witness in the

Special Master proceedings; he took the stand before Judge

Wiseman on November 12, 1992. His testimony is a matter of

public record. Petitioner Parker was one of the lead attorneys

during the initial Demjanjuk denaturalization investigation at

the Justice Department’s Office of Special Investigations (OSI) --

the Nazi hunting office of the Department. Mr. Parker swore

under oath that he had had serious doubts at the time the

investigation against Mr. Demjanjuk was proceeding in 1979-1980

that Mr. Demjanjuk was in fact “Ivan the Terrible”. Petitioner

Parker testified extensively about a five page single-spaced

memorandum that he had written to the Director and Deputy

Director of OSI, outlining his doubts about the case. Petitioner

Parker testified that by pursuing the Treblinka charges, he

believed that the Department was skirting the ethical obligations

which should bind government lawyers in this cas. Petitioner

Parker testified that he later left his position as a government

attorney in part because of the way the Demjanjuk investigation

had been carried out.

Having testified that he believed that John Demjanjuk was

not Ivan the Terrible of Treblinka, petitioner Parker now asks

this Court for a writ of mandamus or prohibition to stop the

hearings being conducted by the Sixth Circuit with the assistance

of Judge Wiseman as special master.

Summary of Arqument

George Parker lacks the standing necessary to petition this

Court for an extraordinary writ. A basic requirement of standing

is that the party claiming standing must be aggrieved by a

prospective judgement. Petitioner Parker is--by his own

admission--not a party to this dispute; he is a non-party

witness. A judgement against the government will have no adverse

legal impact for Petitioner Parker. It is only in the most

unusual circumstances that a non-party witness may make

procedural challenges to a proceeding. Having declined to suffer

a contempt citation in order to challenge the jurisdiction of the

Special Master, Parker now lacks standing to challenge the Sixth

Circuit’s procedures.

The use of the extraordinary writ of mandamus would be

inappropriate in this case. Mandamus should not issue where

there is another adequate remedy available. If petitioner Parker

has the standing he claims (but which respondent does not

concede) then the avenue of appeal is available after an adverse

judgement by the Sixth Circuit. Moreover, mandamus may not be

used to challenge a Court’s actions in the exercise of its proper

jurisdiction. Only when a court has refused to act, or has acted

completely outside of its jurisdiction may a superior court issue

a writ of mandamus. In this instance, the Sixth Circuit has

acted. An investigation of fraud on the court is clearly within

the Sixth Circuit’s jurisdiction. Thus, mandamus is

inappropriate. The writ may not be used to dictate the manner of

a judge’s action. The case of La Buy v. Howes Leather Co., 352

U.S. 249 (1957) is inapposite. The inquiry by the Special Master

in this instance is being conducted by a sitting federal judge

and the inquiry is not a trial. These facts distinguish the

current case from La Buy.

This case is moot with regard to petitioner Parker.

Petitioner Parker has testified under oath in open court. Parker

asserts that he may suffer reputat-ional injury from a finding by

the Sixth Circuit, based in part on his testimony. Having

testified, Parker may not now complain of the process by which

his testimony was procured. Speculative reputational harm or

professional injury are not adequate to make ripe for decision an

otherwise moot case.

Finally, the equities of this case militate against the

issuance of an extraordinary writ to stop the Special Master

proceeding. Mandamus is governed by equitable principles. The

Sixth Circuit is attempting to determine whether Justice

Department attorneys conducted a fraud on the court in order to

procure the extradition of John Demjanjuk. The former government

attorney who has stated under oath that he believed that John

Demjanjuk was not “Ivan the Terrible,” the offense for which

Demjanjuk was extradited, now asks for a halt in the proceedings

designed to determine whether judicial approval of the

extradition was erroneous. Mandamus should be withheld where the

equities do not favor the issuance of the writ.

Argument

I. Petitioner Parker lacks standing to challenge the

procedures by which the Sixth Circuit has chosen to

investigate fraud on the court.

George Parker has petitioned the Court for a writ of

prohibition or mandamus to halt the Sixth Circuit’s Special

Master proceeding because “his individual rights may be violated

or denied.” Petition at 13. By his own admission Parker is not a

party to the ongoing dispute between John Demjanjuk and the

United States Government. Petition at 17. His only role is as a

witness called to testify about the procedures in the Office of

Special Investigations and his own actions during the

denaturalization proceedings against John Demjanjuk over a decade

ago. Parker has no standing to challenge the Sixth Circuit’s

method of conducting this investigation. A basic requirement for

standing is that a party claiming standing must be aggrieved by

the prospective judgment. The crux of the dispute in this case

is whether judicial approval under 18 U.S.C. § 3184 for Mr.

Demjanjuk’s extradition to Israel was improperly procured by the

Justice Department. An adverse finding against the government

would have no legal impact for Mr. Parker.

At an irreducible minimum, article III requires that the

party who invokes the court’s authority show that he personally

has suffered some actual or threatened injury as the result of

the putatively illegal conduct of the defendant, and that the

injury can fairly be traced to the challenged action and is

likely to be redressed by a favorable decision. Bender v.

Williamsport Area School Dist., 475 U.S. 534, 542 (1986), Simon

v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41

(1976). Beyond the constitutional requirements, the Court has

expressed a prudential concern that the plaintiff’s stake in the

outcome be adequate to assure "the concrete adverseness which

sharpens the presentation of the issues upon which the court so

largely depends for illumination of difficult ... questions.”

Baker v. Carr, 369 U.S. 186, 204 (1962). Because Parker does

not suffer from any redressable injury from the prospective

judgment of the Sixth Circuit, and because his stake in the

outcome is tangential at best, this Court should deny the

requested writ for lack of standing.

A finding that Petitioner Parker has standing to make a

procedural challenge in a court proceeding in which his only role

is as a nonparty witness would set a remarkable precedent. This

Court has in the past severely constrained the rights of nonparty

witnesses to challenge court proceedings. A nonparty witness is

not permitted to make objections of incompetency or irrelevancy,

"for this is no concern of his.” Blair v. United States, 250 U.S.

273, 282 (1919). “”{I]}t is in the ordinary case no concern of one

summoned as a witness whether the offense is within the

jurisdiction of the court or not.” Id. The Court has limited

nonparty witnesses’ rights to a jurisdictional challenge via the

appeal of a contempt citation for refusal to testify. United

States Catholic Conference v. Abortion Rights Mobilization, 487

U.S. 72 (1988). Except in the unique circumstance of a contempt

citation, a nonparty witness may not obtain appellate review of a

court’s order requiring testimony or production of documents.

See United States v. Ryan, 402 U.S. 530, 532 (1971) (”"If... the

subpoena is unduly burdensome or otherwise unlawful, he may

refuse to comply and litigate those questions in the event that

contempt or similar proceedings are brought against him.”). In

Alexander v. United States, 201 U.S. 117 (1906) the Circuit Court

for the Eastern District of Wisconsin had issued orders that a

number of witnesses appear before a “special examiner” to answer

questions and produce requested documents. The subpoenaed

witnesses appeared but refused to answer certain questions or

permit the use of certain papers “on the ground of this action

being the immateriality and irrelevancy of the evidence sought to

be adduced.” The Circuit Court ordered the witnesses to answer

the questions and the nonparties appealed to this Court. This

Court held that the only means of review for the nonparty witness

was to refuse to testify and then challenge the contempt order:

[A]n order may coerce a witness, leaving him no

alternative but to obey or be punished. It may have

the effect and the same characteristic of finality

as orders under review, but from such a ruling it is

not contended there is an appeal. Let the court go

further, and punish the witness for contempt of its

order, --then arrives the right of review....”

Id. at 121. Petitioner Parker could have challenged the

jurisdiction of the Sixth Circuit by refusing to testify and by

being held in contempt. To his credit, Parker did not choose

that route. But appeal through contempt is the only method by

which a nonparty witness may challenge the order of a court.

Moreover, it is important to distinguish between a rule-

based challenge and a jurisdictional challenge to a court’s

authority. Nowhere in his petition does Parker question the

jurisdiction of the Sixth Circuit to investigate fraud on the

court. Rather, Parker questions the procedure used by the Sixth

Circuit to conduct the investigation. The Supreme Court in

Catholic Conference made clear that a non-jurisdictional attack

on court procedures by a nonparty would not be tolerated even

through a contempt citation:

We are not confronted here with a non-party witness

attempting to challenge its civil contempt by

raising matters in which it has no legitimate

interest, for instance the District Court’s lack of

personal jurisdiction over the parties or a

limitations statute that would compel dismissal of

the action. As to such matters, even if it were

ultimately determined that the court should not have

allowed the suit to proceed, the order or process it

issued in the conduct of the litigation would still

be valid.

Catholic Conference, 487 U.S. at 76-77. Because Parker is a

nonparty witness who will not be aggrieved by an adverse judgment

of the Sixth Circuit, and because he attacks procedures and not

1 see Petition at 72 (asking that the cause be remanded to the

Sixth Circuit “for its consideration of a more appropriate course

of action consistent with the requirements of Fed. R. Civ. P.

53”).

the jurisdiction of that Court, he lacks standing to petition for

a writ of mandamus.

II. It would be an improper use of the extraordinary writ of

mandamus for this Court to stay the Sixth Circuit’s

investigation of fraud on the court.

a. If Petitioner has standing to obtain an extraordinary

writ, then he also has standing to appeal from an

adverse finding, and therefore there exists an

adequate remedy at law.

Petitioner Parker may not obtain review of the Sixth

Circuit’s investigation of fraud on the Court via a mandamus

petition.’ Mandamus is resorted to where appeal is clearly

inadequate and the writ is reserved for truly extraordinary

causes. These prohibitions are particularly relevant where

mandamus is requested against a judge. Ex Parte Fahey, 332 U.S.

258, 259-60 (1947). Petitioner Parker claims that he has no

other adequate remedy available to challenge the appointment of

the Special Master, bemoaning the United States’ reluctance to

take immediate action. Petition at 22-23.? But if Petitioner

Parker has standing to obtain a writ of mandamus, as he claims,

see Petition pp. 17-21, then he would also have standing to

obtain review through appeal after the final determination by the

Sixth Circuit.?

2 “(T)he government has deferred seeking review of the panel’s

interim order appointing a special master until the panel reaches

a final decision in this case....” Respondent’s [The United

States’] Reply Brief to George Parker’s and Norman Moscowitz’

suggestions for rehearing en banc, reprinted in Petition at A-

38.

If injured in a fashion adequate to support standing,

Petitioner Parker would be able to intervene after final judgment

and seek to appeal the Sixth Circuit’s findings. See e.g., United

—_

While Mr. Demjanjuk does not concede that Petitioner Parker

has standing to challenge actions by the Sixth Circuit (see Part

I, supra), taken on its own terms Petitioner’s argument is

internally inconsistent. In order to establish the standing

necessary to obtain an extraordinary writ, Parker makes reference

to cases granting nonparties the right to appeal. If petitioner

Parker Goes have the nonparty standing he claims, then like the

government, he may assail the procedures used by the Sixth

Circuit after a final decision.

No writ may be granted where there is an adequate remedy

through the appellate process. See Mallard v. U.S. Dist. Court

for the Southern Dist. of Iowa, 490 U.S. 296, 309 (1989)

(*(Pjetitioners must show that they lack alternative means to

obtain the relief they seek, and carry the burden of showing that

their right to issuance of the writ is clear and

indisputable.”) (citations omitted); Will v. United States, 389

U.S. 90, 96 (1967) (mandamus may never be employed as a substitute

for appeal); Marbury v. Madison, 1 Cranch 137, 169 (1803) (”Still,

to render the mandamus a proper remedy ... the person applying

for it must be without any other specific and legal remedy.”)

Because, if Petitioner Parker has the standing he claims, he

would also be able to appeal a final judgment, a mandamus action

before final judgment is improper.

Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) (permitting post-

judgment intervention by nonparty for purpose of appeal).

b. etiti e ctions b Si irc

which would justify the issuance of an extraordinary

writ of mandamus

Beyond the fact that Petitioner Parker--if he has any

standing at all--must wait for a proper appeal, the principles of

mandamus do not permit the issuance of a writ under the facts

alleged in the petition. The Sixth Circuit has not declined to

exercise its jurisdiction; nor does Parker allege that the Court

has exceeded its jurisdiction in appointing a Special Master.

Rather, petitioner Parker complains of a decision made by the

Sixth Circuit in the exercise of its jurisdiction. See Petition

at 15 (complaining of the Sixth Circuit’s failure to make

findings of exceptional circumstances necessitating the

appointment of a special master); petition at 52 (asking that the

writ be issued so that the Sixth Circuit may consider a “more

appropriate course of action”).

A writ of mandamus may not be used to challenge a court’s

actions in the exercise of its proper jurisdiction. An inferior

court may only be ordered through mandamus that it must exercise

its jurisdiction, or be instructed that it has engaged in a

usurpation of power. Mandamus may not be used to order a lower

court to re-evaluate an abuse of discretion. Will v. United

States, 389 U.S. 90, 104 (1967); See Roche v. Evaporated Milk

Ass‘n, 319 U.S. 21, 27 (1943) (refusing to issue writ where an

inferior court "acted within its jurisdiction” even though the

action taken may have been erroneous); Interstate Commerce

Commission v. U.S. ex rel Campbell, 289 U.S. 385, 394 (1933) ("If

mandamus were to stand...the result would be to compel an

adjudication in a particular way. The rule is elementary that

this is not the function of the writ. Mandamus is the

appropriate remedy to compel a judicial officer to act. It may

not be used as a substitute for an appeal or writ of error to

dictate the manner of his action.”); Ex Parte Perry, 102 U.S.

183, 186 (1880) ("We cannot by mandamus correct the judicial

errors committed by an inferior court in the progress of a cause.

We can in this way, in a proper case, compel an inferior court to

act, but cannot control its decisions while acting.”); Ex Parte

Sawyer, 88 U.S. 235, 238 (1874)(”A superior court may by mandamus

set the machinery of an inferior court in motion, but when that

has been done, its power under that form of proceeding is at an

end. The inferior court is supreme within its own jurisdiction,

so long as it is acting.”); Ex Parte Newman, 81 U.S. 152, 165

(1871) ("[T]he only office of the writ [of mandamus] when issued

to a subordinate court is to direct the performance of a

ministerial act or to command the court to act in a case where

the court has jurisdiction and refuses to act, but the

supervisory court will never prescribe what decision of the

subordinate court shall be, nor will the supervisory court

interfere in any way to control the judgment or discretion of the

subordinate court in disposing of the controversy.”).

There is no valid argument that the Sixth Circuit’s action

constituted the “usurpation of power” necessary to justify

mandamus. See Gulfstream Aerospace v. Mayacamas Corp., 485 U.S.

271, 289 (1988). Petitioner Parker is complaining only that the

Sixth Circuit decided to engage in fact-finding by delegating the

task of taking evidence during an inquiry into fraud on the court

to one federal judge rather than another. It is beyond dispute

that the Sixth Circuit has the authority to inquire into the

issue of fraud on the Court. Chambers v. NASCO, Inc., 111 S.Ct.

2123 (1991); Hazel-Atlas Glass Co. v. Hartford Empire Co., 322

U.S. 238 (1944). The challenged action by the Sixth Circuit is a

wholly proper exercise of discretion, unreviewable by mandamus.

Petitioner Parker relies heavily on La Buy v. Howes Leather

Co., 352 U.S. 249 (1957), a case where this Court affirmed the

issuance of a writ of mandamus ordering a district judge to

vacate a reference order to a non-judge special master under

F.R.C.P. 53. La Buy was a hotly debated 5-4 opinion which is

distinguishable on its facts and by subsequent decisions of the

Court. In La Buy, the district judge had referred entire civil

antitrust trials to a master on the basis that the district judge

feared full trial proceedings would take too long, clogging his

busy docket. In affirming the Circuit Court’s mandamus order,

this Court was concerned that the litigants had been denied their

right to a trial by an article III judge for no “exceptional”

reason. La Buy, 325 U.S. at 258.4 The Circuit court that had

4 Apparently the reference of cases to non-judge lawyers was of

particular concern to the La Buy majority as it cited ina

footnote a passage from a then current casebook on Judicial

Administration:

There is one special cause of delay in getting cases

on for trial that must be singled out for particular

condemnation, the all-too-prevalent habit of sending

matters tc a reference. There is no more effective

way of putting a case to sleep for an indefinite

period than to permit it to go to a reference with a

busy lawyer as a referee. Only a drastic

administrative rule...will put to rout this

inveterate enemy of dispatch in the trial of cases.

issued the mandamus order was aware of the district judge’s

propensity to abuse the special master process.

That there was no intent in the La Buy decision to permit

interlocutory review via mandamus of all discretionary

applications of the federal rules was subsequently made clear in

Will v. United States, 389 U.S. 90, 96 (1967). In Will, this

Court described La Buy as a case where the judge had displayed "a

persistent disregard for the federal rules.” Will, supra at 104

n.14. Finding no pattern of "deliberate disregard for the

federal rules” in the record in Will, the Court declined to issue

the requested writ:

In La Buy, however, we specifically relied upon

evidence in the record which showed a pattern of

improper references of cases to special masters by

the District Judge. There is no evidence in this

record concerning petitioner’s practice in other

cases, aside from his own remark that the government

is generally dissatisfied with it, and his

statements do not reveal any intent to evade or

disregard the rules.

Id. at 104-05. No such allegation has been made in Parker’s

petition. While the instant case involves the same rule

(F.R.C.P. 53) as La Buy, Parker’s petition is best analogized to

the situation found in Will:

Thus, the most that can be claimed on this record is

that petitioner may have erred in ruling on matters

within his discretion. See Parr v. United States,

351 U.S. 513, 520 (1956). But ”“[t])he extraordinary

writs do not reach such cases; they may not be used

to thwart the congressional policy against piecemeal

appeals.” Id., at 520-521. Mandamus, it must be

remembered, does not run the gauntlet of reversible

errors.” Bankers Life & Casualty Co. v. Holland, 346

U.S. 379 (1953). Its office is not to "control the

decision of the trial court,” but rather merely to

La Buy, 352 U.S. at 253 n.5 (citation omitted).

confine the lower court to the sphere of its

discretionary power. Id. at 383. Thus, the record

before us simply fails to demonstrate the necessity

for the drastic remedy employed.

Will, 389 U.S. at 103-04 (parallel citations omitted).

Beyond the lack of a “pattern of disregard” for the rules,

other facts distinguish La Buy from the instant case. La Buy

involved the reference of an entire trial to a master. The

master in La Buy was not an article III Judge. Other courts have

agreed that a reference of an entire trial, or reference to a

non-judge master is a clear abuse of discretion, to be cured

through mandamus under La Buy. See e.g., In re Bituminous Coal

Operators’ Ass’n, inc., 949 F.2d 1165, 1169 (D.C. Cir.

1991) (special master may not be appointed as a “surrogate judge”

to try the controversy and determine liability); In re Armco,

Inc., 770 F.2d 103, 105 (8th Cir. 1985) (district court erred in

granting the master authority to preside at trial on the merits

but reference for other purposes held proper); In re Watkins, 271

F.2d 771, 775 (5th Cir. 1959) (mandamus appropriate where

reference to master ”“nullifies the right to an effective trial

before a constitutional court”). Thus, to the extent that

mandamus is used to guarantee a party the right to trial before a

constitutionally appropriate fact-finder, La Buy is in keeping

with Supreme Court precedent. See Thermatron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976) (mandamus appropriate to

correct a clearly erroneous remand of case out of a federal

forum); Dairy Queen v. Wood, 369 U.S. 469, 472 (1962) (mandamus

appropriate to protect constitutional right to trial by jury);

Beacon Theatres, Inc v. Westover, 359 U.S. 500 (1959)(same). The

Sixth Circuit referred the fact-finding duties in this case to a

sitting federal Judge--Judge Wiseman of the Middle District of

Tennessee. Judge Wiseman is anything but the “temporary

substitute appointed on an ad hoc basis and ordinarily not

experienced in judicial work” that the supreme Court had warned

against as a fact-finder in La Buy. La Buy, 325 U.S. at 259.

Moreover, the investigation taking place in Nashville is not a

trial. It is an inquiry into prosecutorial misconduct during

proceedings long past. Therefore, La Buy is inapplicable on its

facts.

Moreover, to the extent that La Buy was a decision generally

granting superior courts “Supervisory control” over inferior

courts though the use of mandamus, it is dubious precedent. In

this regard, “La Buy is defunct. Although the Court has not yet

erected the tombstone, it has ordered flowers.” First National

Bank of Waukesha v. Warren, 796 F.2d 999 (7th Cir. 1986) (opinion

of J. Easterbrook). See also, Will v. Calvert Fire Ins. Co., 437

U.S. 655, 665-66 n.7 (1978)(”Although in at least one instance we

approved the issuance of the writ upon a mere showing of an abuse

of discretion, La Buy v. Howes Leather Co., 352 U.S. 249, 257

(1957), we warned soon thereafter against the dangers of such a

practice.”) (plurality opinion) (citing Will v. United States).

Because the Sixth Circuit’s action does not fit the

requirements for a writ of mandamus under La Buy, and because the

Sixth Circuit was exercising its sound discretion by appointing

one federal judge rather than another to investigate fraud on the

Sixth Circuit court, no writ of mandamus should issue in this

case.

Iii. Wis ega Petitio Parke this se _is moo

Petitioner Parker alleges that the findings of Special

Master Wiseman will “affect George L. Parker’s reputation, his

livelihood and his future in his chosen profession.” Petition at

50. But Mr. Parker has already testified under oath before the

Special Master. This testimony was widely covered in the

5 He had also given interviews to the television

national press.

media regarding his involvement in the Demjanjuk case prior to

the case being reopened. See e.g., Nightline, (ABC television

brceadcast, December 23, 1991).

> 2 summary Westlaw search in the PAPERS library revealed more

than 70 articles containing the words “Parker” and ”“Demjanjuk”.

See e.g. “And More on Mr. Demjanjuk”, Washington Post, Nov. 15,

1992, at c06 (citing petitioner Parker’s testimony before the

Special Master and beginning with the words, "The revelations of

gaps and shabby dealing in the John Demjanjuk case have now

crossed the line from troubling to genuinely dreadful.”); Eric

Harrison, “Probe of Nazi War Criminal Case Raises Ethics

Questions. Government: A former Justice Dept. attorney said he

resigned over handling of possibly exculpatory evidence

concerning the accused”, Los Angeles Times, Nov. 13, 1992, at A4,

Home Edition (citing petitioner Parker’s testimony); “Justice

Dept. Lawyer Reports He Voiced Doubt on Demjanjuk”, Boston Globe,

Nov. 13, 1992, at 12 (citing petitioner Parker’s testimony); Joe

Edwards, “Judge Told that Demjanjuk Wasn’t ‘Ivan’ A Former

Justice Lawyer Testified. He said the wrong man deported”,

Philadelphia Inquirer, Nov. 13, 1992, at A26. (citing petitioner

Parker’s testimony); ”“Demjanjuk Case Stirs New Doubt Ex-

Prosecutor Says Fears Were Ignored”; San Jose Mercury News, Nov.

13, 1992, at 6E (citing petitioner Parker’s testimony); “Ivan’s

Terrible Treatment the Issue: The John Demjanjuk Case--Our View:

He should be returned to the U.S.” Rocky Mountain News, Nov. 15,

1992, at 161 (citing petitioner Parker’s testimony); “Attorney

Testifies that Demjanjuk’s Extradition was a Mistake”, St. Paul

Pioneer Press, Nov. 13, 1992, at 8A; Bill Sloat & Micelle Lesie,

"Ivan Probe Prosecutor Testifies He Doubted, Then Quit”,

Cleveland Plain Dealer, Nov. 13, 1992, at 20A (referring to

petitioner Parker).

Because petitioner Parker has testified and all of the

evidence surrounding his involvement with the Demjanjuk case is

now a matter of public record on file with the Special Master in

Nashville, the petition is moot. “”Mootness determinations are

concerned in large part with the determination whether any

effective purpose can still be served by a specific remedy.”

Wright & Miller, Federal Practice and Procedure §3533.1 (1984).

Had Parker chosen to resist the subpoena compelling him to

testify, his complaints about the procedures used by the Sixth

Circuit would be ripe. But having testified, Parker cannot now

complain about the process by which his testimony was procured.

In Office of Thrift Supervision v. Dobbs, 931 F.2d 956

(D.C.Cir. 1991), the OTS had issued a subpoena duces tecum

requiring the production of certain documents and an appearance

at a deposition. Citing numerous decisions of other courts, the

D.C. Circuit dismissed an appeal challenging the subpoena on the

ground that Dobbs had already complied and OTS had obtained his

testimony. See id. at 957 and cases cited therein. As to Dobbs’

complaint that he remained subject to the subpoena and could be

called to testify again, the court found that “future speculative

action that may never occur is insufficient to create a concrete

present controversy.” Id. at 958. See also, United States v. Kis,

658 F.2d 526, 532-33 (7th Cir. 1981), cert. denied sub. nom.

Salkin v. U.S., 455 U.S. 1018 (1982) (appeal to prevent future use

of compelled evidence dismissed as moot because such use would be

highly speculative). Injuries which are too speculative do not

merit extraordinary relief. Whitehorse v. Ill. Central R. Co.,

349 U.S. 366, 373 (1955).

Parker’s complaints about the potential for future injury in

his professional life on the basis of theoretical disciplinary

action by a hypothetical body are also moot, because any such

action is highly speculative. ® There is no live controversy

regarding petitioner Parker and the writ of mandamus should be

denied. ’

——

IV. The equities of this case favor a speedy resolution of

this dispute and militate against the issuance of an

extraordinary writ of mandamus.

While mandamus is available only in an action at law, it is

governed by equitable principles. Stern v. South Cester Tube Co.,

390 U.S. 606, 609 (1968). ”{Mandamus] may be refused for reasons

comparable to those which would lead a court in equity, in the

exercise of its sound discretion, to withhold its protection of

an undoubted legal right.” United States v. Dern, 289 U.S. 352,

359 (1933). See also In re First Federal Sav. and Loan Ass’n of

Durham, 860 F.2d 135, 140 (4th Cir. 1988) (court should not

overlook principles of fairness when they are enmeshed in

mandamus considerations); DeGaston v. Dillon, 247 F.Supp. 511

(1963) affirmed sub. nom Degaster v. Fowler, 354 F.2d 515 (D.C.

6 Moreover, it is presumed that Mr. Parker’s rights will be

adequately protected in any state disciplinary proceeding that

may be brought against him. See Middlesex County Ethics

Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982).

An apparent acceptable remedy to Mr. Parker -- remand to the

district court judge who heard the denaturalization and

extradition cases -- would not avoid the type of public inquiry

that is now taking place before the Special Master and from which

Mr. Parker requests relief.

Cir. 1955) (mandamus denied because plaintiff came into court with

unclean hands).

Petitioner Parker has insisted that additional delay ”will

not prejudice any of the witnesses or parties” while there is the

potential for “grave harm” to George L. Parker if the proceeding

is allowed to continue. See George L. Parker’s Motion to Stay

Proceedings in Demjanjuk v. Petrovsky, (6th Cir. 1993) (No. 85-

3435), at 4. Nothing could be further from the truth. Mr.

Demjanjuk is currently in Israel locked in solitary confinement

under a death sentence. It is ludicrous for a former employee of

the United States government to claim that the potential for

reputational injury merits further delay “so that the Sixth

Circuit may reconsider its procedures” while John Demjanjuk’s

life quite literally may hang in the balance. A speedy

determination by the Sixth Circuit could have great significance,

legal and diplomatic, to the proceedings in that country.

Beyond the reality of Mr. Demjanjuk’s incarceration in

solitary confinement under 24-hour surveillance is a simple yet

powerful principle: justice delayed is justice denied. For the

past fifteen years John Demjanjuk and his family have lived under

the accusation that Demjanjuk was “Ivan the Terrible”--one of the

most sadistic and ruthless mass-murderers in human history. This

was the offense for which Mr. Demjanjuk was extradited and for

which the Rule of Specialty allowed him to be tried, convicted

and sentenced to death in Israel.

A court should not act on a request for mandamus where the

equities do not favor issuance of the writ. Petitioner Parker

Claims to be fearful that a 1

or his colleagues acted frauc

extraditing John Demjanjuk fc

another person committed. Pz

writ of mandamus stopping fur

court into petitioner’s own <

a circumstance runs counter t

court should exercise its sor

requested writ.

For the foregoing reas

Parker’s petition for a writ

1 federal court will determine that he

audulently in proceedings that led to

for crimes the evidence now shows

Parker petitions the Court to issue a

further investigation by a federal

1 conduct. Issuance of mandamus in such

- to all principles of equity. The

sound discretion and withhold the

Conclusion

asons, this Court should deny George

.t of prohibition or mandamus.

Respectfully submitted,

Tn h~

Michael E. Tig

727 East 26th Street