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USCA1 Opinion

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[NOT FOR PUBLICATION]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.
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____________________

Peter Grabler on brief pro se.


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Donald K. Stern, United States Attorney, and
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George B. Henders
_________________

II, Assistant United States Attorney, on brief for appellee.

__

____________________

____________________

Per Curiam.
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When the United

States would not sell

or lease

so

land it owned to

that he

could

Grabler went

dispute

by the

build a

tennis

court in

ahead and built the court

his

anyway.

backyard,

There is no

that part of the court was constructed on land owned

government (which

government

sued in

court granted the

and

defendant-appellant Peter Grabler

abutted Grabler's property).

federal

district court.

government's motion

The

The

district

for summary

judgment

ordered Grabler to remove the court and restore the land

to its original

condition.

Grabler

makes two arguments

on

appeal.

1.

Grabler

Theodore Smollen,

that,

as

government lawyer,

committed fraud on the

district court and

a result,

equitable remedy.

contends that

the government

is

not entitled

to an

Specifically, Grabler asserts that Smollen

told Grabler that but for the

affluent

neighborhood,

the

something out

instead of

tennis court.

In

denied

that

government

would

have

insisting that Grabler

an

worked

remove the

a district court pleading,

the government

that Smollen had made this statement.

Grabler argues

this denial was for the purpose of misleading the court

and for

his

fact that Grabler lived in

the purpose of preventing him

counterclaim that

the government

from fully presenting

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

occurs

where

on

the
it

demonstrated,

court"
can

be

clearly

and

convincingly, that

a party has

sentiently

motion some

set in

unconscionable
calculated
the

scheme

to

interfere

judicial

with

system's ability

impartially

to

matter

by

adjudicate

improperly

influencing

the

trier

unfairly

hampering

presentation

of

the

or
the

opposing

party's claim or defense.

Aoude
_____

v.

1989).

Mobil Oil Corp., 892


________________

Only

F.2d

1115, 1118

(1st Cir.

the "most egregious misconduct directed

court itself" will justify

a finding of fraud on

to the

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

there

never

further,

was

claim fails for

an

equal

because Grabler

after he says
_____

government's

actions

protection

never

he discovered

the simple

counterclaim

raised such

a claim

the alleged fraud.

prior to
________

the

reason that

assertion

Thus,

of an

and,

until

the

equal

protection violation could

preventing the district

not have been for

the purpose of

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,

protection

Grabler

violation on

does

not

the merits.

make

In

out

an

a case,

equal

as here,

which alleges improper selective enforcement, a litigant must

show, among

"situated

other things,

similarly

differently . . . ."

in

references to

government

land do

all relevant

aspects

were treated

not

persons who

were permitted

contain any
___

information about

any malicious

Grabler's.

intent on the

to use

how

Nor does Grabler

government's part,

another requirement for stating such a claim.

2.

others

quotations and citations omitted).

their circumstances compared to

demonstrate

instances where

Rubinovitz v. Rogato, 60 F.3d 906, 910


__________
______

(1st Cir. 1995) (internal

Grabler's

specific

See id.
___ ___

Grabler's second appellate contention

is that

the

injunction

inappropriate.

entered

We have

regard and find

Evans, Inc.
___________

633

the

district

court

is

reviewed Grabler's arguments in this

that the

discretion in ordering

by

district court did

the relief

it did.

not abuse

its

See Merchant &


___ ___________

v. Roosevelt Bldg. Products Co., 963


_____________________________

F.2d 628,

(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.

as moot.

See Local Rule 27.1.


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The motion for a stay is denied


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