
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          March 18, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                           ______________                                 ____________________            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.                                         -2-                                         -2-                      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.                                         -3-                                         -3-                      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.                                         -4-                                         -4-
