March 18, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2374
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
PETER GRABLER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Peter Grabler on brief pro se.
Donald K. Stern, United States Attorney, and George B. Henderson,
II, Assistant United States Attorney, on brief for appellee.
Per Curiam. When the United States would not sell
or lease land it owned to defendant-appellant Peter Grabler
so that he could build a tennis court in his backyard,
Grabler went ahead and built the court anyway. There is no
dispute that part of the court was constructed on land owned
by the government (which abutted Grabler's property). The
government sued in federal district court. The district
court granted the government's motion for summary judgment
and ordered Grabler to remove the court and restore the land
to its original condition. Grabler makes two arguments on
appeal.
1. Grabler contends that a government lawyer,
Theodore Smollen, committed fraud on the district court and
that, as a result, the government is not entitled to an
equitable remedy. Specifically, Grabler asserts that Smollen
told Grabler that but for the fact that Grabler lived in an
affluent neighborhood, the government would have worked
something out instead of insisting that Grabler remove the
tennis court. In a district court pleading, the government
denied that Smollen had made this statement. Grabler argues
that this denial was for the purpose of misleading the court
and for the purpose of preventing him from fully presenting
his counterclaim that the government had denied him equal
protection of the laws by discriminating against him based on
wealth.
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We have stated that
[a] "fraud on the court"
occurs where it can be
demonstrated, clearly and
convincingly, that a party has
sentiently set in motion some
unconscionable scheme
calculated to interfere with
the judicial system's ability
impartially to adjudicate a
matter by improperly
influencing the trier or
unfairly hampering the
presentation of the opposing
party's claim or defense.
Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.
1989). Only the "most egregious misconduct directed to the
court itself" will justify a finding of fraud on the court.
Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180,
195 (8th Cir. 1976), cert. denied, 429 U.S. 1040 (1977). We
have no trouble concluding that there was no such fraud here.
Grabler's claim fails for the simple reason that
there never was an equal protection counterclaim and,
further, because Grabler never raised such a claim until
after he says he discovered the alleged fraud. Thus, the
government's actions prior to the assertion of an equal
protection violation could not have been for the purpose of
preventing the district court from adjudicating the matter.
Indeed, the government had no reason to formulate a scheme to
interfere with a claim Grabler never made.
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Finally, Grabler does not make out an equal
protection violation on the merits. In a case, as here,
which alleges improper selective enforcement, a litigant must
show, among other things, specific instances where others
"situated similarly in all relevant aspects were treated
differently . . . ." Rubinovitz v. Rogato, 60 F.3d 906, 910
(1st Cir. 1995) (internal quotations and citations omitted).
Grabler's references to persons who were permitted to use
government land do not contain any information about how
their circumstances compared to Grabler's. Nor does Grabler
demonstrate any malicious intent on the government's part,
another requirement for stating such a claim. See id.
2. Grabler's second appellate contention is that
the injunction entered by the district court is
inappropriate. We have reviewed Grabler's arguments in this
regard and find that the district court did not abuse its
discretion in ordering the relief it did. See Merchant &
Evans, Inc. v. Roosevelt Bldg. Products Co., 963 F.2d 628,
633 (3rd Cir. 1992) (the terms of an injunction are reviewed
for abuse of discretion). Specifically, the order does not
require Grabler to do any wetland reseeding.
Because this appeal does not present any
substantial questions, we affirm the judgment of the district
court. See Local Rule 27.1. The motion for a stay is denied
as moot.
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