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June 25, 1985


The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

In this action the United States, on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland ("U.K."), seeks by the vehicle of declaratory judgment a collateral review of an order denying extradition.

 The U.K. sought the extradition from the United States of defendant Joseph Patrick Thomas Doherty. It based that extradition request upon Doherty's conviction in Northern Ireland for murder, attempted murder, alleged possession of firearms and ammunition, and other crimes. The matter came before District Judge John E. Sprizzo of this Court, sitting as an "extradition magistrate," First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 220 (2d Cir. 1960), vacated as moot, 375 U.S. 49, 84 S. Ct. 144, 11 L. Ed. 2d 106 (1963), pursuant to 18 U.S.C. § 3184. *fn1" Judge Sprizzo refused to certify Doherty to the Secretary of State for extradition. Matter of Doherty by Government of United Kingdom, 599 F. Supp. 270 (S.D.N.Y. 1984). Finding that Doherty committed the underlying acts as a member of the Provisional Irish Republican Army ("PIRA"), Judge Sprizzo concluded that Doherty's extradition was barred by the "political offense" exception contained in the relevant extradition treaty. *fn2"

 The U.K. was dissatisfied with that result. But it did not appeal Judge Sprizzo's order, unquestionably because grants or denials of requests for extradition are not appealable by either party under federal law. Matter of Mackin, 668 F.2d 122 (2d Cir. 1981).

 The proposed extraditee Mackin, like Doherty a PIRA member, was sought for extradition by the U.K. under circumstances identical to those at bar. Following a magistrate's decision denying the request, the United States on behalf of the U.K. took an appeal, which the Second Circuit dismissed for lack of appellate jurisdiction.

 In Mackin Judge Friendly wrote, during the course of a comprehensive and scholarly opinion:

"The extraditee may seek a writ of habeas corpus, the denial or grant of which is appealable, see note 8, supra, and the requesting party may refile the extradition request. Collins v. Loisel, 262 U.S. 426, 43 S. Ct. 618, 67 L. Ed. 1062 (1923); Hooker v. Klein, supra, 573 F.2d at 1365-66; In re Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); Ex parte Schorer, 195 F. 334 (E.D.Wis. 1912). Both these remedies are inconsistent with the notion that the original orders were appealable. If the grant of a request were appealable, habeas corpus would not lie since that writ cannot be used as a substitute for an appeal. Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S. Ct. 3037, 3044 n.10, 49 L. Ed. 2d 1067 (1976); Sunal v. Large, 332 U.S. 174, 178-79, 67 S. Ct. 1588, 1590-91, 91 L. Ed. 1982 (1947). If denial of a request were appealable, a second request would ordinarily be defeated by the principle of res judicata. See Hooker v. Klein, supra, 573 F.2d at 1367-68."

 668 F.2d at 128 (emphasis in original).

 Nor has the U.K. sought the assistance of the United States in refiling its extradition request with another judge, as Mackin point out it can. Rather, the U.K. seeks collateral review in this Court of Judge Sprizzo's order by invoking the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. Subject matter jurisdiction is posited upon 28 U.S.C. § 1331. *fn3"

 Invocation of the Declaratory Judgment Act will lead, the Government contends, "to an authoritative construction of key treaty provisions." I do not flatter myself that this is a reference to me. Clearly what the U.K. is aiming for is a decision on the merits of the extradition request rendered by an Article III judge whose decision is appealable under existing statutes to higher courts.

 Doherty's contention is that the U.K. as requesting party may not avail itself of the Declaratory Judgment Act to seek collateral review of Judge Sprizzo's denial of extradition. In consequence, in addition to challenging subject matter jurisdiction (fn. 3, supra), Doherty argues that the complaint fails to state a claim upon which relief can be granted. I directed that these questions be first considered before briefing or consideration of the merits.

 The Government places primary reliance upon Wacker v. Bisson, 348 F.2d 602 (5th Cir. 1965), in which an extraditee whose extradition had been ordered, after unsuccessfully petitioning for a writ of habeas corpus, was permitted by the majority of a Fifth Circuit panel to invoke the Declaratory Judgment Acrt. Proceeding from that holding, the Government argues that it "seeks literally nothing more than the same right to obtain judicial review of an adverse extradition decision by declaratory judgment that Doherty would have had if the matter had gone the other way." Brief at 2.

 That argument raises two questions: (1) was Wacker correctly decided; and (2) assuming that it was, is the converse proposition for which the Government contends a sound one? In the vernacular, ...

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