Opposition Brief — In re Parker

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Supreme Court, U.S.

FILED

APR 1 1993

NO. 92-1447 OFFICE: OF THE CLERK

IN THE

OCTOBER TERM, 1992

IN RE NORMAN A. MOSCOWITZ,

Petitioner,

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 NORMAN A. MOSCOWITZ’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

April 1, 1993

TABLE OF CONTENTS

PAGE

ZABLE OF AUTHORITIES. cc ccc cccceseessccesesssecses eeesece iil

STATEMENT OF THE CASE. cc cc ccc csaccsvesescececsseescacass 1

SUMMARY OF ARGUMENT........ CO oe eeeresreeseeeesesesececees 2

ARGUMEME cc cc eee ee eeeeseseseseseecessesesessseseseosecess s

q. Petitioner Moscowitz lacks standing to challenge

the procedures by which the Sixth Circuit has

chosen to investigate fraud on the court........... 4

a. Petitioner lacks the basic requirements of

i. bt. errrrrrrrerrererrrrrrr ery Ter erT Tere Te 5

b. Petitioner is not a de facto party............ 7

SC. A nonparty witness has limited rights of

| SUVETERELELELTLELETTT TET TTL eee 9

II. With regard to Petitioner Moscowitz, this case

Ve SePerrrrerTr erry rere err rere eee Te Tee er re 11

III. 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...... 13

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

SGOGURCS FOMORY OE LOW ec ccncsdcescescccecesens 13

». Petitioner alleges no actions by the

Sixth Circuit that justify the

issuance of an extraordinary writ of

MOANGOBUS. ccs ceeencweeanesesseseeesecesesesesess 13

IV. The equities of this case favor a speedy

resolution of this dispute and militate against

the issuance of an extraordinary writ of mandamus.. 21

as stl tis POOP EPEVECESEPCTO CECE TET TTT Te eee ee eT ee ee 23

TABLE OF AUTHORITIES

CASES:

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

k e & Casualt . Vv. Holland,

346 U.S. 379 (1953) .. cece cece rec cee r nee rneenesecces

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

der v. Wi iamspo ea Schoo ae

475 U.S. 534 (1986) .. cc cree cence reser nsersessevees

Blair v. United States, 250 U.S. 273 (1919)..........+...

Block v. Meese, 793 F.2d 1303 (D.C. Cir.)

cert. denied, 106 S.Ct. 3335 (1986).......... See

Chambers v. NASCO, Inc., 111 S.Ct. 2123 (1991)..........

Dairy Queen v. Wood, 369 U.S. 469 (1962).......+...-+---

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

affirmed sub. nom Degaster v. Fowler,

Sa 2 ee ee See, ee, BOERS © cubin UaNR ANSON REN WE SxS

Ex Parte Fahey, 332 U.S. 258 (1947)... 2c. eee cere nee eeees

Ex Parte Newman, 81 U.S. 152 (1871)... - eee eee eee eee nee

Ex Parte Perry, 102 U.S. 183 (1880) ....... eee eee ee eeeees

Ex Parte Sawyer, 88 U.S. 235 (1874)... cee eee nen nee nenes

First National Bank of Waukesha v. Warren,

TOR Fea OOO TPE GAR. ROBE civic ccc ca cassascasccxess

Gulfstream Aerospace v. Mayacamas Corp.,

eR ae WT eee rrr errr ee

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

Se Se ery ry ar

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

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

949 F.2d 1165 (D.C. Cir. 1991)... eee eee nnnneennens

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

860 F.2d 135 (4th Cir. 1988)... cece een renee nee eaes

PAGE

in re Matking, 271 F.2@ 771 (Sth Cir. 1959) .....ses. eevee 19

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

SOP Vehsn JSS CAPSS) vccececessasssasssacssevneséenses 16

Dereeee oe. Mer, 666 G.5. FR (2087) x cs i nsdsanwdaseaasedan 7

Vv. wes Leathe o., 392 U.S. 249 (2957) .vcceses 3,17-21

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

of Iowa, 4390 a x 296 (1989) . ce. 7 a ee ae ee Ae eenrteeekeee#e#e#ekee#ee#*e* 14

Marbury vy. Ma@ison, 1 Cranch 137 (1803)... cccccccccvceccss 14

Martin-Trigona v. Shiff, 702 F.2d 380 (2d Cir. 1983).... 7,8

Middlesex County Ethics Committee v. Garden

Sas Bee Beetn, 257 U.S. 489 (SSSR) cc ccnvvcesenses 6

Office of Thrift Supervision v. Dobbs,

SSS Fete Bee Cec Cu Sars TORR) 00 ck cece res tah onan aneeee 12

Parr wv. United States, 331 0.8. Sid (2996) ..ccwecdsasecn 19

Piemonte v. United States, 367 U.S. 558 (1961).......... 9

Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943)...... 15,16

Simon v. Eastern Kentucky Welfare Rights Org.,

S26 UG. BH CAB7E) cesesecesecseevesesecseeseseesesees 5

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

Thermatron Products, Inc. v. Hermansdorfer,

S22 VUeb. JSG CAPFSJccccenceessereesesevesesevenssenes 20

United Airlines, Inc. v. McDonald,

eS ars aoe re oy ere 14

United States Catholic Conference v. Abortion Rights

emt. AGer tem, GET GO.B. Fe ERBGRS cx uc ch ansc wh oeaveas 10

United States vy. Dern, 289 U.S. 352 (1933)... ccecvsssvces 22

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

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

“8 8 MC a eer ere eee 12

United States vy. Ryan, 402 U.S. 830 (1971)... cccevcccccees 10

United States v. Sciarra, 851 F.2d 621 (3d Cir. 1988)... 9

Whitehorse v. Ill. Central R. Co.,

oe ae! el are rT ee re ee 12

iii

Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978)...... 20,21

Baas we ee Seeees, 369 U.G. 90 (1967)... cccess 14,15,18,21

errr ws eee, 208 B.CE. F325 (1984). ccc ccccecsccneses 5

STATUTES:

18 U.S.C. § 3184........ TRHCHSSHHKOSESRE SEES SKK ODDO ROSES 6

FEDERAL RULES OF CIVIL PROCEDURE:

a 17,19

MISCELLANEOUS:

Matthew Brelis, Ex-U.S. Official Defends Demjanjuk

Prosecution, Boston Globe, Jan. 30, 1993,

Di ieee ee CSRS OR EGEEEHORSOSE NS ROB SSE ORS ES Eee ESO + Ee 11

Ex-Nazi Hunter Defends “Ivan” Investigation,

ne Ces Sis Be BOOS, BE Bea sn ncccovecsescoeecs 11

Former Nazi Hunter Says “Ivan” is Guilty,

San Jose Mercury News, Jan. 15, 1993, at 4A........ rH

“Ivan” Inguiry Defended, Sun Sentinel (Florida),

i eT ek ck ep b ee ee en eb ee ace eee eesceews 1

Paul Levitt, Ivan Hearing, USA Today,

ie ee ee Pes ce eke hue ees 6006066 b.08 60060680 11

Robert L. Stern & Eugene Gessman, Supreme Court

Dee. SEhce FOG OO. LTB). .wcacccsvccesacsecsees 13

13A Wright & Miller, Federal Practice and Procedure

ee ec ok ha 6 ue elke an e664 60 DR RS os 11

15A Wright & Miller, Federal Practice and Procedure

DE SE CAMP BP RAGE RSSSERE REDROCK DEREK OO DE HEH OR OOS 7

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 order 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:

[T}he 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 Trebiinka, 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.

As the Sixth Circuit’s Order required, Petitioner Norman

Moscowitz was called as a witness in the Special Master

proceedings; he took the stand before Judge Wiseman January 14-

15, 1993. His testimony is a matter of public record. Petitioner

Moscowitz 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.

Having testified before the Special Master, petitioner

Moscowitz now asks this Court for a writ of mandamus or

prohibition to stop the hearings ordered by the Sixth Circuit.

Summary of Argument

Norman Moscowitz 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 judgment. Petitioner Moscowitz is--by his own

admission--not a party to this dispute; he is a nonparty witness.

A judgment against the government will have no adverse legal

impact for Petitioner Moscowitz. It is only in the most unusual

circumstances that a nonparty 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, Moscowitz 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

Moscowitz 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 justified by exceptional circumstances, is

conducted by a sitting federal judge and is not a trial. These

facts distinguish the current case from La Buy.

This case is moot with regard to petitioner Moscowitz.

Petitioner Moscowitz has testified under oath in open court.

Moscowitz asserts that he may suffer reputational injury from a

finding by the Sixth Circuit, based in part on his testimony.

Having testified, Moscowitz 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. One of the attorneys

testifying to the events of that extradition now asks that the

hearing be suspended and delayed to protect his reputation, while

the subject of the extradition itself remains under a death

penalty in Israel. Mandamus should be withheld where the

equities do not favor the issuance of the writ.

Argument

I. Petitioner Moscowitz lacks standing to challenge the

jurisdiction and procedures of the Sixth Circuit in its

investigation of fraud on the court.

Norman Moscowitz has petitioned the Court for a writ of

prohibition or mandamus to halt the Sixth Circuit’s Special

Master proceeding alleging that he has a “personal stake” in a

finding of prosecutorial misconduct. Petition at 3. By his own

admission, Moscowitz is not a party to the ongoing dispute

between John Demjanjuk and the United States Government.

Petition at 2. 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. As a nonparty witness, who

does not meet the essential standing requirements of

particularized injury, causation and redressability, Moscowitz

has no standing to challenge the Sixth Circuit’s proceedings.

a. Petitioner lacks the basic requirements of standing.

At an irreducible minimum, Article III requires that the

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

has suffered a particularized actual or threatened injury as the

result of the putatively illegal conduct of the defendant, and

that the injury can be fairly 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). Petitioner cannot show that the conduct of the Sixth

Circuit threatens him with an injury adequate to confer standing.

Petitioner’s claimed injury is speculative, unrelated to the

challenged action, and would not be redressed by a favorable

decision.

Petitioner’s claimed injury is too speculative to support

standing. At core, Petitioner claims that the Sixth Circuit’s

investigation would harm his reputation and possibly lead other

bodies to institute disciplinary sanctions against him. Petition

at 5. While in some circumstances a stigmatizing injury might be

sufficient to support standing, Wright v. Allen, 104 S.Ct. 3315,

3328 n.22 (1984), because Petitioner presents nothing beyond a

bare assertion to support his claim of reputational injury,

Petitioner’s claim of injury is insufficient. B])ock v. Meese,

793 F.2d 1303, 1308 (D.C. Cir.), cert. denied 478 U.S. 1021

(1986). Similarly, Petitioner’s concern about future

disciplinary proceedings is too speculative to confer standing,

because he makes no showing that such proceedings will likely be

initiated. Moreover, had such a showing been made, Petitioner’s

rights would be adequately protected in any state disciplinary

proceeding against him. See Middlesex County Ethics Committee v.

Garden State Bar Ass’n, 457 U.S. 423 (1982).1+

In addition, Petitioner’s claimed injury cannot be traced to

the Sixth Circuit’s fraud on the court investigation. 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. The Sixth

Circuit’s order appointing the Special Master explicitly

indicates that the "bedrock question” before the Sixth Circuit

“is whether the failure of the [Department of Justice] attorneys

to disclose...exculpatory information constituted fraud upon the

court that misled this court into allowing Demjanjuk to be

extradited.” Order of Aug. 17, at 3. The purpose of the Sixth

Circuit inquiry, and the focus of the fact finding delegated to

the Special Master, is to discern whether there was fraud on the

court necessitating vacatur of Demjanjuk’s extradition. Id.; see

also Chambers v. NASCO, 111 S.Ct. 2123, 2132 (1991). Thus,

Ito see the extent of the protections that the Sixth Circuit has

erected in its disciplinary proceedings, see Petition at 21 n.12.

contrary to Petitioner’s assertion, the purpose of the

investigation is not to sanction or to impugn the particular

government attorneys who worked on or supervised the Demjanjuk

denaturalization, deportation, and extradition proceedings. This

Court should not confer standing for appeal on the losing counsel

in every action where a court dismissed or vacated a judgment,

regardless of its ancillary effect on an attorney’s reputation.

Finally, Petitioner’s claimed injury would not be redressed

by a decision in his favor. Petitioner criticizes the procedures

by which the Sixth Circuit is conducting its investigation.

Petition at 21. However, following Petitioner’s suggestion--that

"the matter be[] properly remanded to the district court, ”--would

nonetheless require Petitioner to testify as to his conduct, the

very requirement in which Petitioner finds his injury.

b. Petitioner is not a de facto party.

Petitioner wisely concedes that, in general, “one who is not

a party or has not been treated as a party to a judgment has no

right to appeal therefrom.” S Vv. May, 484 U.S. 72, 77

(1987). Petitioner nonetheless suggests that he is a de facto

party. This Court should reject Petitioner’s suggestion.

The doctrine of de facto parties allows appeals to persons

who were required to participate in trial court proceedings much

as if they had intervened. See, e.g., Martin-Trigona v. Shiff,

702 F.2d 380, 385 (2d Cir. 1983); see also 15A Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure § 3902.1

(1992). Petitioner would stretch this doctrine beyond

usefulness. His assertions that he has been ordered “to

participate in the proceedings” and that he was “specifically

named” in the Sixth Circuit’s order appointing a Special Master,

Petition at 4, do not bring him into the fold of the de facto

party doctrine, but rather confirm his status as a witness. The

Sixth Circuit listed Petitioner’s name among the four lawyers

whose involvement in Mr. Demjanjuk’s proceedings would make them

particularly knowledgeable witnesses. Petition at A-7. The

“participation” that the Sixth Circuit ordered of Petitioner was

not as a party but rather as a witness.

By contrast, the de facto parties recognized in Martin-

Trigona, which the Petitioner cites as authority for his own

status, participated in the underlying proceedings much as

parties. Martin-Trigona involved trustees of a bankruptcy estate

who sought to appeal a habeas corpus judgment that released the

bankrupt from civil contempt ordered when the bankrupt refused to

answer questions relating to the estate. In that case,

“(ajlthough the trustees were not named parties in the district

court, they did participate in those proceedings. In fact, the

district court ordered both trustees, 'being the real parities

[sic] in interest,’ to respond to [the petitioner’s) application

for...relief.” Id. at 385. In light of their involvement, the

court allowed them te brine their appeal of the habeas action.

Petitioner’s involvement in this case as a witness is not

commensurately significant nor insisted upon.

Finally, one cannot use the de facto party doctrine to

circumvent the constitutional requirement of standing. In the

absence of standing, Petitioner cannot cling to his self-

perceived status as a de facto party to allow'‘him to bring this

appeal.

c. A _nonparty witness has limited rights of appeal.

Witnesses are essential to the fair and full adjudication of

legal issues. “Every citizen of course owes to his society the

duty of giving testimony to aid in the enforcement of the law.

Lord Chancellor Hardwicke’s pithy phrase cannot be too often

recalled: '{T}he public has a right to every man’s evidence.’”

Piemonte v. United States, 367 U.S. 558, 559 n.2 (1961); see also

United States v. Sciarra, 851 F.2d 621, 636 (3d Cir. 1988)

(observing that the nonparty witnesses in the case before it

“have done nothing more than their public duty, inconvenient as

it may have been, to provide unprivileged information requested

by their government.”). Petitioner Moscowitz is a witness in the

Sixth Circuit’s investigation of fraud on the court, and was so

designated by the Court’s order of August 17, 1992, appointing a

Special Master to conduct hearings.

A finding that Petitioner Moscowitz 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 Moscowitz could have challenged the

jurisdiction of the Sixth Circuit by refusing to testify and by

being held in contempt. To his credit, in a deliberate tactical

decision, Moscowitz did not choose that route. But appeal

through contempt remains the only method by which a nonparty

witness may challenge the order of a court. Having chosen to

testify, Petitioner now lacks standing to ask this Court to issue

a writ of mandamus.

II. With regard to Petitioner Moscowitz, this case is moot.

Petitioner Moscowitz alleges that the findings of Special

Master Wiseman will "not only cause irreparable harm to his

reputation, but could also lead to further discipiinary

proceedings against him.” Petition at 5. But Mr. Moscowitz has

already testified under oath before the Special Master. This

testimony was covered in the national press. *

Because Mr. Moscowitz 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.” 13A

Charles A. Wright 4& Arthur R. Miller, Federal Practice and

Procedure §3533.1 (1984). Had Moscowitz chosen to resist the

subpoena compelling him to testify, his complaints about the

procedures used by the Sixth Circuit would be ripe. But having

2 See, e.g., ~Ivan” Inquiry Defended, Sun Sentinel (Florida),

Jan. 16, 1993, at 3A; Matthew Brelis, Ex-U.S. Official Defends

Demjanjuk Prosecution, Boston Globe, Jan. 30, 1993, at 15; Former

Nazi Hunter Says “Ivan” is Guilty, San Jose Mercury News, Jan.

15, 1993, at 4A; Paul Levitt, Ivan Hearing, USA Today, Jan. 15,

1993, at 11A; Ex-Nazi Hunter Defends “Ivan” Investigation, Wash.

Times, Jan. 16, 1993, at A2.

testified, Moscowitz 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 Dobrs had already complied and OTS had obtained his

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

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 that are too speculative do not

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

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

Moscowitz’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. Moreover, the testimony on which

such an action would be based is part of the public record of

this case. There is no live controversy regarding petitioner

Moscowitz and the writ of mandamus should be denied.?

zzz. t_ 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

a ate remed WwW.

Petitioner Moscowitz may not obtain review of the Sixth

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

petition.‘

Mandamus is appropriate when 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 Moscowitz 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 6.° But if Petitioner

Moscowitz has standing to obtain a writ of mandamus, as he

Claims, Petition at 2-6, then he would also have standing to

3 An apparent acceptable remedy to Mr. Moscowitz -- 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. Moscowitz requests relief.

Petitioner styles his motion a "Petition for a Writ of of

Prohibition or Mandamus.” The following arguments, although

directed toward the writ of mandamus, apply equally to the writ

of prohibition. See Robert L. Stern & Eugene Gessman, Supreme

Court Practice § 11.2, at 630 (5th ed. 1978) ("[{S]Jince almost any

issue can be phrased either affirmatively or negatively, these

yrits are often used interchangeably....”).

"(T)he Department [of Justice] has elected not to pursue

(jurisdiction) objections until after judgment.” Petition at 6.

obtain review through appeal after the final determination by the

Sixth Circuit. ®

While Mr. Demjanjuk does not concede that Petitioner

Moscowitz 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, Moscowitz makes

reference to cases granting nonparties the right to appeal. If

petitioner Moscowitz does 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 cranted 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 Moscowitz has the standing he claims, he

6 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

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

judgment intervention by nonparty for purpose of appeal).

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

before final judgment is improper.

b. Petitioner alleges no actions by the Sixth Circuit

t justi t issuanc n ext ina j

mandamus

Beyond the fact that Petitioner Moscowitz--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 Moscowitz allege that the

Court has exceeded its jurisdiction in appointing a Special

Master. Rather, petitioner Moscowitz complains in part of a

decision made by the Sixth Circuit in the exercise of its

jurisdiction. See Petition at 13-16 (arguing that the Sixth

Circuit should have remanded the case to the district court as a

fact-finder in the fraud on the court investigation); id. at 16-

19 (arguing against the procedures adopted by the Sixth Circuit

in hearing the fraud on the coumt case). Petitioner also argues

that the Sixth Circuit is without jurisdiction. This claim is

too frivolous to justify mandamus.

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

appointment of a Special Master constituted the “usurpation of

power” necessary to justify mandamus. See Gulfstream Aerospace v.

a mas , 485 U.S. 271, 289 (1988). To the extent that

Petitioner Moscowitz complains only that the Sixth Circuit

decided to engage in fact-finding by delecating the task of

taking evidence during an inquiry into fraud on the court to one

federal judge rather than another, writ of mandamus is an

inappropriate vehicle for relief. On the other hand, to the

extent that Petitioner Mcscowitz complains that the Sixth Circuit

has acted beyond its jurisdiction, Petition at 10-13, the

Petitioner is clearly in error.

The the Sixth Circuit’s appointment of a Special Master is a

wholly proper exercise of discretion, unreviewable by mandamus.

Petitioner Moscowitz relies 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 éievismeionadic

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.’ The Circuit court that had

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 4s a case where the judge had displayed "a

persistent disregard for the federal rules.” Will, 389 U.S. 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 Moscowitz’s

petition. While the instant case involves the same rule

7 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 to 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.

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

(F.R.C.P. 53) as La Buy, Moscowiv:z’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 *[tjhe 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 & Casvalty Co. v. Holland, 346

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

Gecision of the trial court,” but rather merely to

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) (mandanus 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 (195%) (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 te 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.

Finally, to the extent that Petitioner Moscowitz complains

that the Sixth Circuit has acted beyond its jurisdiction,

Petition at 10-13, the Petitioner is clearly in error. 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). Petitioner labors the question

of Mr. Demjanjuk’s possible stake in this proceeding, but ignores

that the question before the Sixth Circuit is simply whether it

was defrauded. Public faith in the judiciary is reaffirmed by

assiduous analysis of possible fraud on the court.

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.

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

unclean hands).

Petitioner Moscowitz claims that the Sixth Circuit’s

investigation would harm his reputation and possibly lead other

bodies to institute disciplinary sanctions against him. Petition

at 5. By contrast, 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. Ina similar vein, public

dissatisfaction with the fairness and propriety of its courts and

government litigators must be resolved in a timely fashion.

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

equities do not favor issuance of the writ. Petitioner Moscowitz

Claims to be fearful that a federal court will determine that he

or his colleagues acted fraudulently in proceedings that led to

extraditing John Demjanjuk for crimes the evidence now shows

another person committed.® Moscowitz petitions the Court to

issue a writ of mandamus stopping further investigation by a

federal court into petitioner’s own conduct. Issuance of mandamus

in such a circumstance runs counter to all principles of equity.

The court should exercise its sound discretion and withhold the

requested writ.

Conclusion

For the foregoing reasons, this Court should deny Norman

Moscowitz’s petition for a writ of prohibition or mandamus.

8in his own testimony, however, Petitioner seemed to deny that he

partook in any wrongdoing. Were this believed, Petitioner’s

testimony would present, obviously, no danger to his reputation

at all.

Michael E. Tigar

727 East 26th Street

Austin, Texas 78705

(512) 471-6319

(Counsel of Record)

Respectfully submitted,

Wu ae

Edward F. Marex