128 Fed. Appx. 496; 2005 U.S. App. LEXIS 6854

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOHN DEMJANJUK, Defendant-Appellant

No. 03-3773

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

April 20, 2005, Filed

NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT IF CITED A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THE DECISION IS REPRODUCED

PRIOR HISTORY:  ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO. 99-01193. Paul R. Matia, U.S. District Judge. United States v. Demjanjuk, 367 F.3d 623, 2004 U.S. App. LEXIS 8528 (6th Cir. Ohio, 2004)

COUNSEL:  For UNITED STATES OF AMERICA, Plaintiff - Appellee: Michael Anne Johnson, Asst., U.S. Attorney’s Office, Cleveland, OH; Michelle Heyer, Stephen J. Paskey, U. S. Department of Justice Office of Special Investigations, Washington, DC

For JOHN DEMJANJUK, Defendant - Appellant: John H. Broadley, Washington, DC

JUDGES:  BEFORE: COLE and CLAY, Circuit Judges, and COLLIER, District Judge. *

* The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting by designation.

OPINION: ORDER

PER CURIAM. This is the fourth opinion issued by this Court in Defendant-Appellant John Demjanjuk’s attempt to prevent the revocation of his citizenship. See United States v. Demjanjuk, 367 F.3d 623, 627 (6th Cir. 2004) [*2] (cataloging decisions). The relevant procedural history to the instant appeal is as follows. On February 21, 2002, the district court revoked Demjanjuk’s citizenship. See United States v. Demjanjuk, 2002 U.S. Dist. LEXIS 6999, No. 1:99CV1193, 2002 WL 544622 (N.D. Ohio Feb. 21, 2002) (findings of fact and conclusions of law); United States v. Demjanjuk, 2002 U.S. Dist. LEXIS 6991, No. 1:99CV1193, 2002 Wl 544623 (N.D. Ohio Feb. 21, 2002) (supplemental opinion). Demjanjuk filed an appeal of that decision on May 13, 2002, and this Court affirmed the district court in United States v. Demjanjuk, 367 F.3d 623. While that case was on appeal, Demjanjuk filed a motion for Fed. R. Civ. P. 60(b) relief in the district court on February 12, 2003. The district court denied the motion for lack of jurisdiction on May 1, 2003. Demjankjuk now appeals that denial. We review a district court’s denial of Rule 60(b) relief for an abuse of discretion. Blue Diamond Coal Co. v. Trustees of the United Mine Workers of Am. Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001).

Prior case law clearly establishes that the district court did not abuse its [*3] discretion. As we have previously held:

The filing of an appeal with this Court generally divests a district court of jurisdiction over the case. In the district court’s discretion, however, it may enter an order stating that it is disposed to grant a Rule 60(b) motion, which would allow the requesting party to move this Court to remand the case, thereby once again vesting jurisdiction in the district court... The district court is under no obligation to issue such an order, and in fact [this appeal was characterized] as a 'procedural misstep' at oral argument. We agree. The district court did not abuse its discretion in refusing to rule on... [a] Rule 60(b) motion following... [an] appeal to this Court.

Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville, 274 F.3d 377, 403 (6th Cir. 2001) (internal citations omitted). Since Demjanjuk moved for Rule 60(b) relief after he filed a notice of appeal, the district court had no jurisdiction to entertain the motion, and was under no obligation to issue an order stating it was disposed to grant the Rule 60(b) motion.

In any event, this Court finds that the merits of Demjanjuk’s instant Rule 60(b) motion are not [*4] well-taken. Demjanjuk seeks relief under Rule 60(b)(1) (mistake), Rule 60(b)(2) (newly discovered evidence) and Rule 60(b)(6) (other reasons justifying relief). Demjanjuk argues that a document known as the “Vanya letter” contains a signature that is inconsistent with his signature on his Trawinki Prison Camp identity card. However, Demjanjuk has had the relevant documents in his possession since 1981, during his first defense of the government’s attempt to revoke his citizenship. Accordingly, the time has long passed for him to seek relief under either Rule 60(b)(1) and Rule 60(b)(2). See Fed. R. Civ. P. 60(b) (noting that (b)(1) and (b)(2) motions must be made within a year from entry of judgment). Nor can Demjanjuk assert that there are “extraordinary or exceptional circumstances” sufficient to support relief under Rule 60(b)(6). See Blue Diamond Coal Co., 249 F.3d at 524. Demjanjuk’s prior failure to claim that the Vanya letter undermined the credibility of other documents, given his two-decade possession of these documents, simply cannot be considered an “unusual and extreme situation where principles of equity mandate [*5] relief.” Id. (internal quotes removed) (emphasis in original).

Accordingly, we AFFIRM the district court’s denial of the Rule 60(b) motion.