No. 95-25

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ORD & NORMAN, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNTIED STATES IN OPPOSITION

DREW S. DAYS, III
Solicitor General

LORETTA C. ARGRETT
Assistant Attorney General

ROBERT E. LINDSAY
GREGORY VICTORY DAVIS
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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     QUESTIONS PRESENTED

  1. Whether the district court's denial of a motion
to quash a grand jury subpoena directed to an ac-
countant employed by an attorney representing the
party being investigated by the grand jury was a final
order subject to immediate appeal.
  2. Whether the court of appeals abused its dis-
cretion in denying a petition for a writ of mandamus
directing the district court to quash the subpoena.

(I)

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TABLE OF CONTENTS

Page

Opinions below  . . . . 1 
Jurisdiction  . . . . 1 
Statement  . . . . 2 
Argument  . . . . 6 
Conclusion  . . . . 14
Appendix  . . . . 1a

     TABLE OF AUTHORITIES

Cases:

Aetna Life Ins. Co. v. Haworth, 300 U. S. 227
  (1937)  . . . . 8-9
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.
  33 (1980)  . . . . 13, 14 
Church of Scientology v. United States, 113 S.
  Ct. 447 (1992)  . . . . 10, 13 
Cobbledick v. United States, 309 U.S. 323
  (1940)  . . . . 10, 12
Corporacion Insular de Seguros v. Garcia,
  876 F.2d 254(lst Cir. 1989)  . . . . 11
DeFunis v. Odegaard, 416 U. S. 312(1974)  . . . . 9
DiBella V. United States, 369 U.S. 121(l962) . . . . 10
Golden v. Zwickler, 394 U. S. 103(1969)  . . . . 9 
Grand Juy Proceedings in the Matter of Fine,
  In re, 641 F.2d 199(5th Cir. 1981)  . . . . 11
Grand Jury Proceedings (Malone), In re, 655
  F.2d 882 (8th Cir. 1981)  . . . . 11
Grand Jury Proceedings (Vargas), In re, 723
   F.2d 1461 (10th Cir. 1983) . . . . 8, 11, 13-14
Grand Jury Subpoena Duces Tecum Dated Sept.
  15, 1983, In re, 731 F.2d 1032 (2d Cir. 1984) . . . . 12
Iron Arrow Honor Soc'y v. Heckler, 464 U.S.
67 (1983) . . . . 9
Klein, In re, 776 F.2d 628 (7th Cir. 1985) . . . . 11, 12

(III)

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IV

Cases-Continued: 

Page

Lake Coal Co. v. Roberts & Schaefer Co.,
474 U.S. 120 (1985)  . . . . 9 
National Super Spuds, Inc. v. New York
Mercantile Exchange, 591 F.2d 174 (2d Cir.
1979)  . . . . 12
North Carolina v. Rice, 404 U.S. 244 (1971)  . . . . 9 
O'Connor v. O'Connell, 253 F.2d 365 (lst Cir.
1958)  . . . . 12-13 
Perlman v. United States, 247 U.S. 7 (1918)  . . . . 4, 10 
Reisman  v. Caplin, 375 U.S. 440 (1964)  . . . . 12 
Roche v. Evaporated Milk Ass'n, 319 U.S. 21
(1943)  . . . . 13 
Sealed Case, In re:
655 F.2d 1298 (D.C. Cir. 1981)  . . . . 10, 11 
737 F.2d 94 (D.C. Cir. 1984)  . . . . 11 
U.S. Bancorp Mortage Co. v. Bonner Mall
Partnership, 115 S. Ct. 386 (1994)  . . . . 9 
United States v. Hollywood Motor Car Co.,
458 U.S. 263 (1982)  . . . . 10 
United States v. Nixon, 418 U.S. 683 (1974)  . . . . 10 
United States v. Ryan, 402 U.S. 530 (1970)  . . . . 10, 11 
Will v. United States, 389 U.S. 90 (1967)  . . . . 13
 
Statute and rule:

28 U.S.C. 1291  . . . . 9 
Sup. Ct. Rule 46  . . . . 2 

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In the Supreme Court of the United States

      OCTOBER TERM, 1995

     No. 95-25

ORD & NORMAN, ET AL., PETITIONERS

       v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.
2a-19a) is reported at 51 F.3d 203. The opinion and
order of the district court (Pet. App. 20a-34a) are
unreported.

       JURISDICTION

The judgment of the court of appeals was entered on
March 28, 1995. A petition for rehearing was denied
on June 7, 1995. Pet. App. 39a-40a. The petition for
a writ of certiorari was filed on July 3, 1995. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).        

(1)

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2

       STATEMENT

  1. In March 1992, an Internal Revenue Service
agent contacted former petitioner Edward Silva, Jr.,
concerning an audit of his individual income tax
return for 1989.1 Pet. App. 21a. Silva referred the
agent to Charles Bailin, who for some 20 years had
been Silva's accountant and had prepared tax returns
for Silva and his company, former petitioner Silva
Harvesting, Inc. In April 1992, the agent informed
Bailin that the audit had been expanded to include
Silva Harvesting's 1990 tax return.  Bailin then
recommended that Silva engage a tax attorney in
connection with the audit. In April 1992, Bailin intro-
duced Silva to petitioner Edward Oral.  At that
meeting, Silva engaged Ord to represent him in the
audit, and Ord retained Bailin and his accounting firm
to act as Oral's "sub-agent[s]" in connection with the
representation. Bailin testified that all the actions he
took in connection with the audit after Ord was
retained were taken at Oral's direction. Id. at 8a-9a,
20a-22a.
  In July 1992, the revenue agent gave Bailin a list of
ten cash payments that had been made to Silva
Harvesting in 1989, and requested that he trace them
into Silva's books and records to determine whether
they had been reported as income. Pet. App. 9a. The
agent told Bailin that she suspected that the cash paid
to Silva had been used illegally. Bailin undertook the
requested inquiry, and in December 1992 he disclosed

___________________(footnotes)
             
  1 The petitions of Edward Silva, Jr., and Silva Harvesting,
Inc., for a writ of certiorari in this case were dismissed on
September 26, 1995, under Rule 46 of the Rules of this Court.
See pages 6-7, infra.

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3

to the agent that he could trace only two of the cash
payments into Silva Harvesting's records. Bailin
testified that he made that disclosure under the
direction and control of Oral. Id. at 9a, 23a-24a.
  The revenue agent subsequently referred the case
to the IRS's Criminal Investigation Division, and in
March 1994 an agent from that Division served Bailin
with a grand jury subpoena demanding his testimony
and the production of various documents. Pet. App.
9a-10a; Gov't C.A. Br. 9. The required documents
included those related to the cash-tracing project, as
well as all notes of conversations with the original
revenue agent, Silva, or Silva's employees relating to
that inquiry. Pet. App. 9a-10a. Silva moved to quash
parts of the subpoena directed to Bailin, on the ground
that the information sought was protected by his
attorney-client privilege. See id. at 27a.
  2. The district court held an evidentiary hearing
and then, with one exception not relevant here, denied
the motion to quash. Pet. App. 20a, 27a-29a. The
court found that Bailin was employed as Oral's sub-
agent in Oral's performance of legal work for Silva,
Id, at 22a-23a, 25a. The court indicated, however, that
it was "extremely doubtful" whether the results of
Bailin's investigation, which was undertaken in
response to an inquiry from the IRS rather than one
from Oral, could represent or embody the sort of
confidential communication, made for the purpose
of seeking legal advice, that is protected by the
attorney-client privilege. Id, at 24a-25a. In any event,
the court concluded that, even if the privilege applied,
it was waived by Bailin's December 1992 disclosure of
the results of his investigation to the IRS at Oral's
direction. Id. at 25a. Finally, the court held that no

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4

attorney "work product" privilege ever attached to
Bailin's investigation, again because it was initiated
at the IRS's request, "not by any inquiry germane to
Ord's representation" of Silva and Silva Harvesting.
Id. at 25a-26a.
  3. The court of appeals stayed the district court's
order enforcing the subpoena, expedited the appeal
filed by Silva, Silva Harvesting, and remaining peti-
tioners Oral, Edward O.C. Oral, Inc., and Ord &
Norman, and directed the parties to brief the issue of
appellate jurisdiction. Pet. App. 35a-38a. The same
parties also sought review of the district court's
order through a petition for a writ of mandamus,
which the court of appeals consolidated with the
appeal. See id. at 2a, 7a-8a, 18a-19a.
  After briefing and argument, the court of appeals
dismissed the appeal for lack of jurisdiction and
denied the petition for mandamus. Pet. App. 8a, 10a.
The court first noted (id. at 11a) that the denial of a
motion to quash normally is not appealable as a final
order. hut may be challenged immediately only by
refusing to comply and then appealing from a final
order of contempt. The court recognized a "narrow
exception" to that rule, rooted in this Court's
decision in Perlman v. United States, 247 U.S. 7
(1918), "where the subpoena is directed at a third
party who `cannot he expected to risk a contempt
citation' in order to preserve the movant's right to
appeal." Id. at 1 la. The court explained, however,
that it had previously held that the Perlman ex-
ception does not apply if the subpoena is directed
to an attorney who is currently representing the
movant in connection with the grand jury pro-
ceedings. Id. at lla-13a. Under those circumstances

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5

the movant is not powerless to control the actions of
the subpoenaed party, and it would be "particularly
inappropriate to extend the exception to third-parties
who are participants in the confidential relationship
upon which the movant's claim of privilege is based."
Id. at 13a.
  Applying the same rationale, the court concluded
that the Perlman exception to the rule of non-
appealability should not apply in cases like this one,
where the subpoenaed party is a non-attorney agent of
the movant. Pet. App. 10a, 14a. The court observed
that Bailin was retained by Silva's attorney to
represent Silva in a confidential, fiduciary capacity,
and was therefore to some degree subject to Silva's
control. Id. at 14a. More important, in the court's
view, Bailin was "necessarily a party to the relation-
ship upon which Silva's entire claim of privilege is
based." Ibid. The court held that it was "in precisely
these circumstances that a third party can be ex-
pected to risk contempt in order to protect the
privileged relationship." Id. at 14a-15a.2
  The court of appeals rejected any distinction based
on the fact that Bailin is an accountant rather than an
attorney. Pet. App. 15a. The court pointed out that
its prior cases declining to extend the Perlman
exception to agency relationships were based not on
any special fiduciary obligations of attorneys, but on
the "present, confidential nature of the movant's
agency relationship with the third party, and the
fact that the relationship was related to the grand

___________________(footnotes)

  2 The court noted that if a principal directs an agent to
resist a court order to comply with a subpoena, "it may be
appropriate for the contempt sanctions to be directed at the
principal." Pet. App. 15a n.1.

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6

jury investigation." Ibid. The court concluded that
extension of the rule to non-attorney confidential
agents was "consistent with a strict application of the
final judgment rule in the grand jury process,
designed to prevent parties from taking frivolous
appeals for the purpose of delay." Id. at 15a-16a.
  Having held that the district court's order was
not final for purposes of appeal, the court declined
to invoke "hypothetical jurisdiction" to resolve the
issue before it on the merits. Pet. App. 16a-17a. The
court also denied what it termed "Silva's eleventh-
hour petition for review of the district court's order
by extraordinary writ." Id. at 18a. Observing that
such writs are not to be used to avoid the final
judgment rule, the court held that a district court's
ruling on a motion to quash may not be reviewed on
a petition for mandamus unless it "amount[s] to a
judicial `usurpation of power.'" Ibid. The court found
no such abuse in the district court's exercise of its 
jurisdiction in this case. Id at 18a-19a.
  The court of appeals denied an application to stay
its mandate. On July 7, 1995. Justice O'Connor denied
a similar application.

        ARGUMENT

  1. Recent events have rendered this case moot.
  After this Court declined to stay the court of
appeals' mandate, Charles Bail in appeared before the
grand jury. He refused to comply with the district
court's order that he produce the subpoenaed docu-
ments, and on August 10, 1995, that court found him
in contempt.
  On August 22, 1995, the United States and former
petitioner Edward Silva entered into a plea agreement
under which Silva agreed, among other things, to

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				7

waive indictment and to plead guilty to a charge of
willfully signing and filing a false corporate income
tax return for Silva Harvesting for its 1988 tax year.
Silva also agreed to move to dismiss his petition for a
writ of certiorari in this case. Plea Agrmt. Par l(a) and
(f). The government agreed, among other things. to
move to dismiss the contempt charge against Bailin:
not to file any additional criminal charges against
Silva, Silva Harvesting, or Silva Harvesting's em-
ployees for known offenses arising out of the criminal
investigation conducted by the IRS and the grand
jury and to discontinue the pending grand jury
investigation of Silva, Silva Harvesting, and its
employees, including withdrawing any pending grand
jury subpoenas. Plea Agrmt. Par 3(a), (c) and (d).
  The district court accepted the plea agreement
on August 22, 1995, and on August 24 it entered an
order purging Bailin's contempt. App., infra, la. On
September 7, petitioners Silva and Silva Harvesting
asked this Court to dismiss their petition as moot,
because of the plea agreement and because "the grand
jury subpoena of Bailin has been withdrawn and
the grand jury investigation is terminated." Mot. to
Dismiss 2. The motion was granted, as to those
petitioners, on September 26.1995.
  The real parties in interest on appeal in this case
were Edward Silva and his company, Silva Harvest-
ing. 3. Any evidentiary privilege asserted in the case
belonged primarily to them, not to their lawyers.
Now that those parties have dismissed their petitions,

___________________(footnotes)

  3 Charles Bailin, to whom the subpoena in question was
directed, did not participate in the appeal of the district court's
order denying the motion to quash. See Pet. iii.

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8

however, the only remaining petitioners are their
attorney, Edward Oral, his professional corporation,
and his law firm. 4.
The motion to dismiss filed by Ord on behalf of his
clients requests that this Court continue to entertain
the petition on behalf of the other petitioners alone,
on the ground that "the issue of work product is still
at issue and the other petitioners regularly represent
clients who are being investigated by the IRS. The
current decision of the Ninth Circuit puts all the
work product of the firm's clients in jeopardy in the
future." Mot, to Dismiss 2. But even if the remaining
petitioners had an independently cognizable interest
in asserting the work-product privilege (as opposed to
the attorney-client privilege, which is exclusively
that of the client) with respect to particular docu-
ments involved in this case (see, e.g., In re Grand
Jury Proceedings (Vargas), 723 F.2d  1461, 1466 (lOth
Cir. 1983)), the government is no longer seeking any
of those documents. Petitioners' speculative asser--
tion of possible interference with the general in-
terests of unnamed future clients is not the sort of
"definite and concrete" controversy necessary to
support the exercise of jurisdiction by a federal
court. 5.  Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,

___________________(footnotes)            
                                            
4 The court of appeals' opinion lists only the professional
corporation and the law firm as appellants. Pet. App. 2a, 7a.
The amended notice of appeal filed in the district court on
September 29, 1994, however, also listed Ord in his individual
capacity.
5 The original controversy in this case is not likely to recur
between the real parties in interest. Under the plea agree-
ment, the government has withdrawn all pending subpoenas,
discontinued the pending grand jury investigation, and agreed

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9

240-241 (1937) (jurisdiction requires "a real and
substantial controversy admitting of specific relief
through a decree of a conclusive character, as
distinguished from an opinion advising what the law
would be upon a hypothetical state of facts"); see also,
e.g., Lake Coal Co. v. Roberts & Schaefer Co., 474
U.S. 120 (1985) (per curiam) (denying motion to decide
questions presented despite complete settlement of
the underlying causes of action); Iron Arrow Honor
Soc'y v. Heckler, 464 U.S. 67, 71 & n.1 (1983) (per
curiam); North Carolina v. Rice, 404 U.S. 244, 246
(1971) (per curiam); Golden v. Zwickler, 394 U.S. 103,
109-110 (1969) (questions "must be presented in the
context of a specific live grievance"). The petition for
a writ of certiorari on behalf of the remaining peti-
tioners should therefore be dismissed as moot. 6.
2. In any event, the court of appeals correctly held
that the district court's denial of the motion to quash
the grand jury subpoena in this case was not a final
order appealable under 28 U.S.C. 1291. As petitioner
concedes (Pet. 12), such an order is ordinarily not
subject to immediate appeal. A party wishing to
challenge the order must instead refuse to comply,

___________________(footnotes)

not to file further criminal charges for any other offenses
discovered as part of the underlying criminal investigation.
The contempt citation issued to accountant Bailin has been
purged. Nor is the question presented one that will likely
evade review in any future case that is not settled by
agreement of the parties in interest.  See. e.g., DeFunnis v.
Odegaard, 416 U.S. 312, 318-319 (1974) (per curiam).
6 Because this case became moot through voluntary actions
of the parties in interest taken after the court of appeals' deci-
sion had become final, there is no reason to vacate the decision
below. U.S. Bancorp Mortgage Co. v. Bonner Mall Partner -
ship, 115 S. Ct. 386 (1994).

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10

and then appeal from any ensuing judgment of con-
tempt. United States v. Ryan, 402 U.S. 530 (1970);
Cobbledick v. United States, 309 U.S. 323 (1940).
Indeed, that is the course that was followed after the
court of appeals' decision in this case, although the
case was ultimately resolved through the plea agree-
ment before there was any occasion for appeal of the
contempt order entered against accountant Bailin.
This Court has recognized an exception to the
general rule of nonappealability for cases like
Perlman v. United Mates, 247 U.S. 7 (1918), in which
the lower court's order is directed not to a party
with an interest in challenging the order, but to
"a disinterested third party * * * [who] presum-
ably lacks a sufficient stake in the proceeding to
risk contempt by refusing compliance." Church of
Scientology v. United States, 113 S. Ct. 447, 452 n.11
(1992); see also Ryan, 402 U.S. at 533; United States
v. Nixon, 418 U.S. 683, 691 (1974). As the court of
appeals recognized (Pet. App. 15a-16a), however, that
exception should be narrowly construed, because of
the "strong congressional policy against piecemeal
reviews, and against obstructing or impeding an
ongoing judicial proceeding by interlocutory appeals"
Nixon, 418 U.S. at 690), which "is at its strongest in
the field of criminal law." United States v. Hollywood
Motor Car Co., 458 U.S. 263, 265 (1982) (per curiam);
see also Ryan, 402 U.S. at 532-533; DiBella v. United
States, 369 U.S. 121, 126 (1962); In re Sealed Case, 655
F.2d 1298, 1301-1302 (D.C. Cir. 1981) (R.B. Ginsburg,
J.). The court properly-and, as subsequent events
demonstrated, correctly-concluded (Pet. App. 14a-
15a) that a confidential agent like Bailin would have
adequate incentive to risk a contempt citation in

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11

order to preserve his principal's ability to appeal, so
that the case did not fall within "the limited class of
cases where denial of immediate review [of the order
enforcing the subpoena] would render impossible any
review whatsoever of [the principal's] claims." Ryan,
402 U.S. at 533.
As petitioners point out (Pet. 12-20), the courts of
appeals have adopted somewhat different approaches
to application of the Perlman exception in eases
where a subpoenaed third party is an officer, attorney,
or other confidential agent of the party seeking to
appeal denial of a motion to quash. Compare, e.g., Pet.
App. lla-16a (not applicable to current agent with
confidential relationship related to grand jury pro-
ceeding), Corporation Insular de Seguros v. Garcia,
876 F.2d 254, 258-259 (lst Cir. 1989) (not applicable to
attorney or close aide), and In re Grand Jury Pro-
ceedings (Vargas), 723 F.2d at 1465-1466 (not applica-
ble to attorney unless client can prove attorney will
not risk contempt) with, e.g., In re Grand Jury
Proceedings in the Matter of Fine, 641 F.2d 199,201-
203 & n.3 (5th Cir. 1981) (client may appeal order to
attorney in the "usual" attorney-client situation), In
re Grand Jury Proceedings (Malone), 655 F.2d 882,
885 (8th Cir. 1981), and In re Klein, 776 F.2d 628, 630-
632 (7th Cir. 1985). The decisions involved are po-
tentially very sensitive to factual variations, and it
is therefore difficult to gauge the practical signif-
icance of apparent differences among the courts.
Compare, e.g., In re Sealed Case, 655 F.2d at 1302 (no
immediate appeal, focusing on role of in-house counsel
on particular facts) with In re Sealed Case, 737 F.2d
94, 97-98 (D.C. Cir. 1984) (R.B. Ginsburg, J.) (appeal
allowed where former general counsel stated under

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12

oath that he would not stand in contempt); compare
National Super Spuds, Inc. v. New York Mercantile
Exchange, 591 F.2d 174, 179-180 & n.7 (2d Cir. 1979)
(Friendly, J.) (no appeal from order directed to
responsible official of public agency) with In re
Grand Jury Subpoena Duces Tecum Dated Sept. 15,
1983, 731 F.2d 1032, 1036 n.3 (2d Cir. 1984) (appeal
ordinarily available from order directed to outside
counsel); see also In re Klein, 776 F.2d at 631.
Although it may ultimately be desirable for this
Court to provide further guidance on the proper scope
of the Perlman exception, there is no reason to do so
in a case that has been voluntarily dismissed by the
real parties in interest, and in which it is clear that
appellate review would have been available in any
event, if it had been desired, through the usual
procedural mechanism of appeal from Bailin's citation
for contempt.
Finally, petitioners argue (Pet. 31-34) that under
Reisman v. Caplin, 375 U.S. 440 (1964), they would
have had the right to appeal an order directing Bailin
to comply with an administrative summons issued by
the IRS, and that a parallel rule should apply in the
case of a grand jury subpoena. In determining finality
for purposes of appeal, however, this Court has
distinguished sharply between cases in which a court
enforces a grand jury subpoena, which is "ancillary to
[a] judicial proceeding" that could be disrupted by an
immediate appeal, and cases in which the court
enforces an administrative summons, and in which
the judicial enforcement proceeding provided for by
statute is, from the court's point of view, "complete
in itself." Cobbledick, 309 U.S. at 329-330; see also
Reisman, 375 U.S. at 449 (citing 0'Connor v.

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13

O'Connell, 253 F.2d 365,365-367 (lst Cir. 1958), which
applied Cobbledick's reasoning to enforcement of an
IRS summons); Church of Scientology, 113 S. Ct. at
452 n.11. There is no reason to revisit that distinc-
tion in this case. 7.
3. Petitioners argue (Pet. 51-63) that the court of
appeals erred in denying their alternative request for
a writ of mandamus. As this Court has made clear,
however, "the remedy of mandamus is a drastic one, to
be invoked only in extraordinary situations." Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)
(per curiam). In particular, mandamus is not to be
used to "undermine the settled limitations upon the
power of an appellate court to review interlocutory
orders." Id. at 35, quoting Will v. United States, 389
U.S. 90, 98 n.6 (1967). Thus, mandamus "has tradi-
tionally been used in the federal courts only `to
confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.'" Will, 389 U.S.
at 95, quoting Roche v. Evaporated Milk Ass`n, 319
U.S. 21, 26 (1943). "Only exceptional circumstances,
amounting to a judicial usurpation of power, will
justify the invocation of this extraordinary remedy."
Allied Chem. Corp., 449 U.S. at 35.
The court of appeals correctly applied those princi-
ples in this case. Pet. App. 18a-19a; see also, e.g., In re
Grand Jury Proceedings (Vargas), 723 F.2d at 1466-

___________________(footnotes)                                         

7 Petitioners have offered no factual support for their
suggestion (Pet. 34) that the IRS converted its original civil
investigation into a criminal investigation, and ultimately into a
grand jury proceeding, for the purpose of depriving Silva or
Silva Harvesting of a right to appellate review of their privi-
lege claims.

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14

1467. Observing that mandamus should not be used
"as a means of avoiding the final judgment rule" (Pet.
App. 18a), the court concluded that "it was obviously
within the district court's jurisdiction to rule on
Silva's motion to quash, and to decide whether the
subpoenaed materials [were] privileged" (id. at 18a-
19a). The district court's decision therefore involved
nothing like the "judicial usurpation of power"
contemplated by this Court in Allied Chemical, 449
U.S. at 35. Moreover, on the facts of this case, in
which accountant Bailin ultimately proved willing to
go into contempt to preserve the taxpayers' ability
to appeal, the parties seeking mandamus failed to
demonstrate that they had "no other adequate means
to attain the relief [they] desire[d]" or to show that
their right to issuance of the writ was "clear and
indisputable." Ibid. Even if the case were not moot,
there would be no reason for further review,
      
 CONCLUSION

The petition for a writ of certiorari should be
dismissed as moot. Alternatively, the petition should
be denied.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

LORETTA C. ARGRETT
Assistant Attorney General

ROBERT E. LINDSAY
GREGORY VICTOR DAVIS
Attorneys

OCTOBER 1995

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         APPENDIX

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
               

No. C-94-7008 WAI

IN RE GRAND JURY SUBPOENA DUCES TECUM
  DATED MARCH 15, 1994, ISSUED To
     CHARLES D. BAILIN     

[FILED Aug. 24, 1995]   

ORDER

Upon application of the United States and good
cause having been demonstrated, IT IS HEREBY
ORDERED that the August 10, 1995, civil contempt
of Charles Bailin be purged.

Dated: 8/24/95

/s/ William A. Ingram        
WILLIAM A. INGRAM
United States District Judge

(la)