# Opposition Brief — In re Parker

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 938

## Text

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,
We

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
i

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

ii

PAGE

20

19

nN
tw

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

iv

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

1

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

3

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

5

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.

6

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

7

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-

8

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

9

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

10

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.

11

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

12

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.

13

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).

14

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

15

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.”).

16

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”

17

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).

18

(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

19

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

20

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

21

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

22

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.

23

Michael E. Tigar

727 East 26th Street
Austin, Texas 78705
(512) 471-6319
(Counsel of Record)

Respectfully submitted,
Wu ae

Edward F. Marex
Office of the Federal Defender
Skylight Office Tower

Suite 750
1660 West 2nd Street
Cleveland, Ohio 44113-1454
(216) 522-4856

Attorneys for Jchn Demjanjuk
Respondent

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2200%3A2. Public record. Not legal advice.