APPELLATE-#280714-v3-Canadian St Regis brief · DEBRA THOMAS; SARAH DAVID; CAROLINE DAY Plaintiffs, v. TOWN OF BOMBAY, NY; COUNTY OF FRANKLIN, NY Defendants-Intervenor Defendants-Counter

No. 10-3115

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CANADIAN ST. REGIS BAND OF MOHAWK INDIANS, by Lawrence Francis, Chief; and LLOYD BENEDICT; MIKE MITCHELL, BRUCE ROUDPOINT; JOE

JACOBS; JOHN OAKES; ANGUS BONAPARTE, JR.; DAVID BENEDICT Plaintiffs-Counter Defendants-Appellees,

ST. REGIS MOHAWK TRIBE, by the St. Regis Mohawk Tribal Council; PEOPLE OF THE LONGHOUSE AT AKWESANE, by the Mohawk nation Council of Chiefs

Plaintiffs-Consolidated Plaintiffs-Counter Defendants-Appellees,

UNITED STATES OF AMERICA Plaintiff-Intervenor Plaintiff-Counter Defendant-Appellee

JEROME COOK; BASIL COOK; CHERYL ROURKE; PATRICIA PHILLIPS;

DEBRA THOMAS; SARAH DAVID; CAROLINE DAY Plaintiffs,

v.

TOWN OF BOMBAY, NY; COUNTY OF FRANKLIN, NY Defendants-Intervenor Defendants-Counter Claimants-Appellants,

(Caption Continued on Inside Cover)

On Appeal from the U.S. District Court for the Northern District of New York

ANSWERING BRIEF FOR THE UNITED STATES OF AMERICA

IGNACIA S. MORENO Assistant Attorney General MICHAEL T. GRAY U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 7415 Washington, DC 20044 (202) 305-4903

Case: 10-3115 Document: 115 Page: 1 01/23/2012 505182 26

PAUL PERRYON; HELGA PERRYON; EVA L. KLEINERT; FARMER NATIONAL BANK; NATIONWIDE MUTUAL INSURANCE COMPANY; MARINE MIDLAND

PROPERTIES CORPORATION; WALSH REALTY CORPORATION; MARIO CUOMO, as Governor of the State of New York

Defendants-Intervenor Defendants,

STATE OF NEW YORK; CANADIAN NATIONAL RAILWAYS; NIAGARA MOHAWK POWER CORPORATION; TOWN OF MASSENA, NY; VILLAGE OF

MASSENA, NY; FORT COVINGTON, NEW YORK, TOWN AND VILLAGE; COUNTY OF ST. LAWRENCE, NY,

Defendants-Intervenor Defendants-Counter Claimants

POWER AUTHORITY OF THE STATE OF NEW YORK, Defendant-Consolidated Defendant-Counter Claimant

KEY BANK OF NORTH NEW YORK, N.A.,

Defendant-Consolidated Defendant-Intervenor Defendant

WILLIAM J. BROCKWAY; LORETTA BROCKWAY; JAMES CHAPMAN; MARY CHAPMAN; ROBERT CHAPMAN; BURTON CHAPMAN; PAUL COMPEAU; CATHERINE COMPEAU; REAL C. COUPAL; THELMA B. COUPAL; HARRY

GROW; LAURENT HEBERT; VINCENT JERRY; DANIEL JERRY; ERNEST L. JOCK; CARRIE JOCK; ALPHA LATRAY; DUANE STEWART; KAY STEWART;

THOMAS TORREY; ELOISE TORREY, Consolidated Defendants-Intervenor Defendants


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TABLE OF CONTENTS PAGE

JURISDICTIONAL STATEMENT ............................................................ 1 STATEMENT OF THE ISSUES ................................................................ 2 STATEMENT OF THE CASE ................................................................... 2 STATEMENT OF THE FACTS ................................................................. 3 SUMMARY OF ARGUMENT .................................................................... 5 ARGUMENT ............................................................................................... 7 I. THE DISTRICT COURT’S ORDER IS NOT APPEALABLE .................. 7

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT

DENIED THE DEFENDANT’S MOTION FOR AN ORDER TO SHOW

CAUSE AND A TEMPORARY RESTRAINING ORDER ...................... 9 A. Standard of Review ......................................................... 9

B. The district court correctly concluded that an All Writs Act injunction is not necessary in aid of its

Jurisdiction ................................................................... 11

C. The Defendants have alternate remedies available to them ............................................................................... 15

CONCLUSION ......................................................................................... 19

CERTIFICATE OF COMPLAINCE ........................................................ 20 STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES CASES: Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117 (11th Cir. 2005) ....................................................... 10

Castle Hills Prop. Co. v. CAPX Realty, LLC, No. 4:10cv6, 2010 U.S. Dist. LEXIS 69315 (E.D. Tex. May 12, 2010) ................................................................. 17

Clinton v. Goldsmith, 526 U.S. 529 (1999) .................................................................... 15,16 First Eagle SoGen Funds, Inc. v. Bank for Intern. Settlements, 252 F.3d 604 (2d Cir. 2001) ............................................................ 8,9 In re Baldwin-United Corp., 770 F.2d 328 (2d Cir. 1985) ......................................... 11,12,13,14,15 New York Assocation of Convenience Stores v. Urbach, 694 N.Y.S.2d 885, 890 (N.Y. Supp. Ct. 1990), aff’d N.Y.S.2d 220 (3d Dept. 2000) ................................................ 18 Retirement Sys. of Ala. v. J.P. Morgan Chase & Co., 386 F.3d 419 (2d Cir. 2004) ............................................................. 10 Romer v. Green Point Savings Bank, 27 F.3d 12 (2d Cir. 1994) ................................................................. 10 St. Regis Development Corp. v. Nemier, 563 N.Y.S.2d 189 (3d Dept. 1990) ................................................... 18 Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28 (2002) ........................................................................... 11 United States v. 63-39 Trimble Rd., 860 F. Supp. 72 (E.D.N.Y. 1994) ..................................................... 17


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United States v. Int'l Bhd. of Teamsters, 266 F.3d 45 (2d Cir. 2001) .......................................................... 10,11 United States v. New York Telephone Co., 434 U.S. 159 (1977) .................................................................... 14,15 United States v. Porter, No. 4:CV92-3293, 1993 U.S. Dist. LEXIS 4211 (D. Neb. Jan. 7, 1993) ................................................................. 14,15 United States v. Young,

806 F.2d 805 (8th Cir. 1986) ........................................................... 17 STATUTES: All Writs Act 28 U.S.C. § 1651(a) .......................................................................... 11 Indian Nonintercourse Act

25 U.S.C. § 177 .................................................................................. 1 28 U.S.C. § 1292(a)(1) ........................................................................ 2,4,6,7 28 U.S.C. § 1331 ......................................................................................... 1


1

JURISDICTIONAL STATEMENT

The underlying district court action is a longstanding Indian land

claim in which the Tribal Plaintiffs seek a declaration of ownership and

right to possess about 12,000 acres of land in northern New York, as

well as damages for more than 200 years of dispossession of the land.

Their complaint alleges violations of the Indian Nonintercourse Act, 25

U.S.C. § 177, and the district court has jurisdiction under 28 U.S.C. §

1331. The United States filed a complaint in intervention seeking

money damages on behalf of the Tribal Plaintiffs.

During the litigation, a group of non-parties, called the Occupying

Group in this brief, began trespassing on one parcel subject to the land

claim. A group of defendants affected by the trespass moved the district

court both to enter an order to show cause why the Occupying Group

should not be enjoined and to issue a temporary restraining order

requiring them to vacate the property. App. A-64, Docket 508-13. The

district court denied the motion. App. A-183. The Defendants moved for

reconsideration, and the district court denied that motion as well. App.

A-191. The Defendants filed a timely notice of appeal. App. A-193. As

explained below, this Court does not have jurisdiction over this appeal


2

because the district court’s order did not refuse injunctive relief;

instead, the district court declined to issue a temporary restraining

order and order to show cause. The district court’s order is therefore not

immediately appealable under 28 U.S.C. § 1292(a)(1).

STATEMENT OF THE ISSUES

1. Is the denial of a motion for a temporary restraining order

against non-parties and an order to show cause why they should not be

permanently enjoined appealable as an “interlocutory order . . . refusing

[an] injunction[]?” 28 U.S.C. § 1292(a)(1).

2. Did the district court abuse its discretion when it denied the

motion for an order to show cause and temporary restraining order

because relief was not necessary in aid of its jurisdiction and alternate

remedies are available to the Defendants?

STATEMENT OF THE CASE

A group of non-party Native Americans entered and occupied a

parcel of land that is subject to the underlying land claim in this case.

The owner of the land obtained a state court judgment and Warrant of

Eviction against the Occupying Group. The local Sheriff did not execute

the warrant after concluding that the Occupying Group had vacated the

property. The Defendants, believing the Sheriff had erred in that


3

conclusion and that a state court mandamus action would be fruitless,

moved in this case for an order to show cause and a temporary

restraining order against the Occupying Group. The United States filed

a response opposing the motion because the relief is unwarranted under

the All Writs Act and would invite district court involvement in all

manner of localized disputes relating to the 12,000 acres that are the

subject of the land claim. The district court denied the motion. The

Defendants moved for reconsideration, and the district court denied

that motion as well. The Defendants appeal.

STATEMENT OF THE FACTS

For purposes of this appeal the United States accepts the facts as

alleged by the Defendants, and we summarize them here briefly. This

appeal relates to a 230-acre parcel of land currently owned by Horst

Wuersching and located within the land-claim area that is the subject of

the underlying action. In 2009 a group of Native Americans, the

Kanienkehaka Kanonhsesne and the Men’s Council of the Great Law

Longhouse in Akwesasne, who are not affiliated with any of the

plaintiffs in this case and are not parties to this action, entered and

occupied Wuersching’s Property. App. A-88 to A-100. They made


4

improvements to the property and excluded Wuersching from it. App. A-

98 to A-100.

Wuersching filed suit for trespass in state court and obtained a

Warrant of Eviction. App. A-171. The local Sheriff stated that it was the

policy of his office not to “enforce civil matters in the disputed land

claim area,” App. A-172, but that he had gone to the property to

investigate and concluded that “the premises seemed to have been

vacated,” id. He therefore did not execute the Warrant of Eviction.

The Defendants here (County of Franklin, Town of Bombay, and a

Class of Individual Property Owners that includes Wuersching) then

moved under Northern District of New York Local Rule 7.1(e) and the

All Writs Act for an order requiring the Occupying Group to show cause

why they should not be enjoined and for a temporary restraining order

“until the final determination of Defendants’ application for an

Injunction.” App. A-65. The motion was referred to a magistrate, who

recommended that the motion be denied for three reasons: First, any

intrusion by the non-parties on to the subject land was de minimis

because the non-parties appeared to have abandoned the property, and

thus did not threaten the court’s jurisdiction; second, even if not de


5

minimis, extraordinary relief was not necessary at the time the motion

was filed because no judgment had been issued and the court retained

the power to issue an injunction under the All Writs Act if necessary to

effectuate a judgment once entered; and third, the Defendants have

alternate state court remedies. App. A-175. The district court agreed

with the magistrate’s report and recommendation and denied the

motion. App. A-183. The Defendants moved for reconsideration,

bringing forth new evidence to show that the invasion was not de

minimis. App. A-190. The district court denied reconsideration because

even if the new information were accurate it would not affect two of the

three grounds on which the court had denied the motion. App. A-192.

The Defendants filed a timely notice of appeal. App. A-193.

SUMMARY OF ARGUMENT

This Court lacks jurisdiction over this appeal. The Defendants did

not move for injunctive relief, and thus the district court did not refuse

an injunction.. Instead, the Defendants asked the district court to enter

a temporary restraining order coupled with an order to show cause why

a permanent injunction against the Occupying Group should not issue.

It is well-settled that the denial of a temporary restraining order is not


6

generally appealable. No special circumstance warrants departing from

that rule in this case. And the motion for order to show cause did not

request immediate injunctive relief. Jurisdiction is therefore not proper

under 28 U.S.C. § 1292(a)(1).

If this Court has jurisdiction, the district court did not abuse its

discretion by denying the motion. An injunction under the All Writs Act

is appropriate only where necessary or appropriate in aid of the district

court’s jurisdiction. Here, the district court reasonably concluded that it

was unnecessary to enjoin non-parties at this juncture because the

court’s immediate ability to decide the case between the parties is not

threatened, and if necessary the court retains the authority to issue an

injunction if there is a future threat to the efficacy of an order or

judgment of the court. Moreover, the Defendants have adequate state

court remedies available to them in the form of a state court Warrant of

Eviction (which the Defendants have already obtained) and relief under

the All Writs Act is therefore neither “necessary” nor “appropriate.”

This Court should therefore affirm the district court’s denial of the

motion for order to show cause and temporary restraining order.


7

ARGUMENT

I. THE DISTRICT COURT’S ORDER IS NOT APPEALABLE.

The Defendants assert that this Court has jurisdiction under 28

U.S.C. § 1292(a)(1), which provides for immediate review of

interlocutory orders “refusing . . . injunctions,” because the district court

“declin[ed] a request for an injunction.” Op. Br. at 1. But the

Defendants did not make a request for an injunction, and thus the

district court did not refuse any such request. Instead, the Defendants

sought an order to show cause and a temporary restraining order. App.

A-64. The Defendants’ proposed order, if granted, would have scheduled

a hearing to “show cause . . . why a further Order should not be entered”

enjoining the Occupying Group, and would have temporarily restrained

the Occupying Group “until the final determination of Defendants’

application for an injunction.” App. A-64 to A-65 (emphasis added).

Thus, the Defendants sought, and the district court denied, a temporary

restraining order coupled with an order to show cause why the

restraining order should not be made permanent. Id. (citing local rule

7.1(e), which governs motions for orders to show cause).

The denial of a temporary restraining order is not ordinarily

immediately appealable. First Eagle SoGen Funds, Inc. v. Bank for


8

Intern. Settlements, 252 F.3d 604, 607 (2d Cir. 2001). Coupling such a

request with a request for an order to show cause why the temporary

restraining order should not be made permanent does not change the

analysis, as many if not most requests for temporary restraining orders

will contemplate further proceedings on injunctive relief. The district

court’s order declining to issue an order to show cause and temporary

restraining order is therefore not appealable.

There is a narrow exception to the rule that temporary restraining

orders are not appealable: an order is appealable if it “effectively

disposes of the litigation and might have a serious, perhaps irreparable

consequence that can be effectively challenged only by immediate

appeal.” Id. (citation and internal marks omitted). That exception does

not apply here because, as the district court explained, it retains the

authority to issue an appropriate All Writs Act injunction in the future,

and thus its order does not effectively dispose of the litigation. App. A-

180. Furthermore, there are no irreparable consequences flowing from

the district court’s order both because the district court retains the

authority to issue such an injunction if necessary to effectuate its

judgment and because state court remedies remain available to the


9

Defendants (including a potential money judgment for any time that

they are unlawfully dispossessed of the land). Id. Finally, the significant

delay in the prosecution of this appeal (the district court denied

reconsideration on July 12, 2010) forecloses any claim of immediate

irreparable injury warranting an otherwise improper interlocutory

appeal. See First Eagle, 252 F.3d at 607. The district court’s order is

therefore not appealable, and this appeal must be dismissed.

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT

DENIED THE DEFENDANTS’ MOTION FOR AN ORDER TO SHOW

CAUSE AND A TEMPORARY RESTRAINING ORDER.

The district court correctly declined to issue an order to show

cause and temporary restraining order because, even accepting the facts

as alleged by the Defendants, no injunction under the All Writs Act is

warranted. Relief is not necessary or appropriate in aid of the district

court’s jurisdiction, and the Defendants have alternate state court

remedies available to them. The district court therefore did not abuse

its discretion.

A. Standard of Review

Assuming the district court’s order amounted to the denial of

injunctive relief under the All Writs Act, this Court’s review is for an

abuse of discretion. United States v. Int’l Bhd. of Teamsters, 266 F.3d


10

45, 49 (2d Cir. 2001). Under the abuse of discretion standard, the

district court’s factual findings are reviewed for clear error and its legal

conclusions are reviewed de novo. Retirement Sys. of Ala. v. J.P. Morgan

Chase & Co., 386 F.3d 419, 425 (2d Cir. 2004).

The Defendants contend that review ought to be de novo, relying

on cases where the denial of a preliminary injunction “effectively

awards victory in the litigation.” Br. at 7-8 (citing Romer v. Green Point

Savings Bank, 27 F.3d 12, 16 (2d Cir. 1994)). The Defendants did not

move for a preliminary injunction, which must be tied to success on the

merits of the underlying litigation and relate to the relief requested.

See, e.g., In re Baldwin-United Corp., 770 F.2d 328, 338 (2d Cir. 1985);

Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127-28, 1134-35

(11th Cir. 2005). They moved instead for an injunction against non-

parties under the All Writs Act. An injunction under the All Writs Act is

appropriate only in aid of jurisdiction and is not tied to the underlying

merits of the claims being litigated. Int’l Bhd. of Teamsters, 266 F.3d at

49-50. The award of relief under the All Writs Act is therefore always

within the court’s equitable discretion, and final resolution of whether a

party is entitled to equitable relief is not akin to final resolution of the


11

underlying merits of the primary litigation at the preliminary

injunction stage. The district court’s exercise of its discretion is thus

reviewed only for an abuse of it, even where further proceedings on the

matter are not contemplated (as will often be the case in All Writs Act

proceedings). Id.

B. The district court correctly concluded that an All Writs Act injunction is not necessary in aid of its jurisdiction.

The All Writs Act authorizes federal courts to issue “all writs

necessary or appropriate in aid of their respective jurisdictions.” 28

U.S.C. § 1651(a). Because the Act authorizes writs only in aid of

existing jurisdiction, it is not an independent source of authority or a

specific grant of jurisdiction. Syngenta Crop Prot., Inc. v. Henson, 537

U.S. 28, 32-33 (2002). Federal courts may invoke the All Writs Act to

enjoin non-parties to prevent them “from thwarting the court’s ability to

reach and resolve the merits of the federal suit before it” to ensure that

“the activities of third parties do not interfere with the very conduct of

the proceeding before the Court.” In re Baldwin-United Corp., 770 F.2d

at 338-39. But the authority to enjoin non-parties is limited, and such


12

an injunction may be issued only when “needed to preserve the court’s

ability to reach or enforce its decision in a case.” Id. at 338.

The district court’s ability to reach and enforce a decision in this

case is not threatened by the Occupying Group’s actions. Both the

United States and the Tribal Plaintiffs have filed complaints in this

land claim case. The United States’ claims in this action are against the

State of New York and the New York Power Authority and not against

individual landowners. Docket No. 223. To the extent individuals

currently occupy land that is subject of the land claim, the United

States does not seek possession of the land and has expressly limited its

request for relief to money damages to be paid by the State as the initial

trespasser. Id. Given those limitations on the United States’ claims,

none of the Occupying Groups’ actions on the Defendants’ property in

any way affect the district court’s ability to either issue a money

judgment against New York or the New York Power Authority, or to

deny such relief. An All Writs Act injunction is therefore not “needed to

preserve the court’s ability to reach or enforce its decision” on the

United States’ claims in this litigation. In re Baldwin-United Corp., 770

F.2d at 338.


13

The Tribal Plaintiffs seek broader relief, requesting damages and

possession against individual defendants. Docket No. 13. But the

district court’s ability to render a judgment on those broader claims is

also not threatened. As the court concluded, there is no threat to its

current ability to adjudicate the claims presented, and the court retains

the ability to issue an injunction under the All Writs Act against the

Occupying Group should such an injunction ever become necessary to

effectuate the court’s judgment. App. A-180. In the current posture of

the litigation, though, there is no judgment to enforce and the

Occupying Group is not preventing adjudication of the claims among

the parties. The district court rightly concluded that to involve itself in

a localized property dispute at this juncture would open the door to

motions proceedings under the All Writs Act seeking to enjoin virtually

any interference of a defendant landowner’s possessory rights during

the pendency of this land claim action affecting more than 12,000 acres.

Id. The district court was well within its discretion to deny relief under

the All Writs Act as unnecessary in aid of its jurisdiction at this point in

the litigation.


14

Indeed, courts have enjoined non-parties under the All Writs Act

only where the level of interference with the court’s jurisdiction is

substantial. In United States v. New York Telephone Co., 434 U.S. 159

(1977), for example, a district court issued an order authorizing the FBI

to use pen registers (devices which record numbers dialed on a

telephone) to monitor certain phone calls. When a non-party telephone

company refused to cooperate, the Supreme Court held that the All

Writs Act authorized the district court to order the telephone company

to assist the FBI. The Supreme Court found such action necessary in

aid of the court’s jurisdiction because “without the Company’s

assistance there is no conceivable way in which the surveillance

authorized by the district court could have been successfully

accomplished” and the court’s order could not have been enforced. Id. at

374.

This Court similarly issued an injunction against non-parties in In

re Baldwin-United Corp., 770 F.2d 328 (2d Cir. 1985). In that case

several state attorneys general threatened to file lawsuits bringing

claims under the Securities Act of 1933 that the plaintiffs in Baldwin-

United intended to release in settlement. This Court approved an


15

injunction against those actions because “the success of any federal

settlement was dependent on the parties’ ability to agree to release any

and all related civil claims” and “if States or others could derivatively

assert the same claims . . . there could be no certainty about the finality

of any federal settlement. Id. at 337. Unlike in Baldwin-United or New

York Telephone Co., none of the Occupying Group’s actions in this case

threaten to undermine an order of the district court or an attempt to

settle the case with finality. Because the Occupying Group has taken no

action that would prevent the district court from issuing or enforcing its

orders, relief under the All Writs Act is inappropriate.

C. The Defendants have alternate remedies available to them.

The district court also denied the Defendants’ motion because they

have alternate state court remedies available to them in the form of an

action to evict the Occupying Group from the property. App. A-180.

Because the All Writs Act only authorizes relief where “necessary” and

“appropriate,” relief is not generally “available to provide alternatives to

other, adequate remedies at law.” Clinton v. Goldsmith, 526 U.S. 529,

537-38 (1999). Here, the Defendants sought and obtained a final state

court judgment awarding possession and a resultant Warrant of


16

Eviction from Bombay Town Court that “commanded” the Franklin

County Sheriff to remove trespassers from the Defendants’ land. App.

A-171. That is an adequate remedy for the Defendants’ alleged harm

and demonstrates that federal court relief is neither “necessary” nor

“appropriate” in aid of jurisdiction, as is required by the All Writs Act.

The Defendants contend that their state court remedies are

inadequate because the Franklin County Sheriff may continue to refuse

to execute the Warrant of Eviction and the state courts may not grant a

subsequent petition for a writ of mandamus requiring the Sheriff to

execute the Warrant. Op. Br. at 16-19. But the Defendants’ state court

remedies are adequate despite any uncertainty about whether the

warrant will ultimately be executed. As the Supreme Court has

explained, an alternate remedy is adequate if the forum is “authorized

to provide the relief sought” even if the forum is alleged to be

“unresponsive.” Clinton, 526 U.S. at 538 n.12. The mere existence of the

state court avenue of relief is sufficient to provide an adequate remedy

at law; it is not necessary to also show that the Defendants would

prevail in that forum. Id. at 539. Indeed, none of the cases the

Defendants cite support their position that alternate remedies are not


17

available here. Op. Br. at 18-19; Castle Hills Prop. Co. v. CAPX Realty,

LLC, No. 4:10cv6, 2010 U.S. Dist. LEXIS 69315 (E.D. Tex. May 12,

2010) (remanding action to state court; no discussion of alternate

remedies); United States v. Young, 806 F.2d 805, 807 (8th Cir. 1986)

(affirming writ of assistance where underlying eviction order, “right or

wrong,” had not been challenged on appeal; no discussion of alternate

remedies); United States v. 63-39 Trimble Rd., 860 F. Supp. 72, 73

(E.D.N.Y. 1994) (issuing writ of assistance to enforce forfeiture under

federal statute; no discussion of alternate remedies); United States v.

Porter, No. 4:CV92-3293, 1993 U.S. Dist. LEXIS 4211 (D. Neb. Jan. 7

1993) (issuing writ of assistance to enforce seizure under Internal

Revenue Code; no discussion of alternate remedies).

Even assuming that a potential inability to execute the Warrant is

relevant to determining whether relief under the All Writs Act is

appropriate, the Defendants have not established such inability because

they have not yet fully pursued their state court remedies and cannot

demonstrate that doing so would be futile. The cases that the

Defendants rely on to show futility each denied mandamus to enforce

an earlier state court order in circumstances markedly more severe


18

than those present here. In St. Regis Development Corp. v. Nemier, 563

N.Y.S.2d 189 (3d Dept. 1990), mandamus was denied where a “vigilante

group” that was “armed with semi-automatic” weapons had caused “two

deaths,” fired “[t]housands of rounds of bullets,” burned buildings,

destroyed property, and severely injured people. Id. at 190. Similarly, in

New York Assocation of Convenience Stores v. Urbach, 694 N.Y.S.2d

885, 890 (N.Y. Supp. Ct. 1990), aff’d N.Y.S.2d 220 (3d Dept. 2000),

mandamus was denied where there was “blockading of public highways,

threats of violence, actual violence and public unrest.” Id. at 889. The

Defendants cannot show that the New York state courts would be

similarly disinclined to issue a writ of mandamus to enforce the state

court Warrant of Eviction on the facts of this case. Nor have they

explained why this Court ought to presume the result of a proceeding

available but not yet invoked to justify finding that the district court

abused its discretion by not issuing relief under the All Writs Act.

Because the Defendants have adequate state court remedies available

to them, the district court did not abuse its discretion by denying relief

under the All Writs Act.


19

CONCLUSION

This Court should dismiss this appeal for lack of jurisdiction. In

the alternative, this Court should affirm the district court’s order

denying the Defendants’ motion for an order to show cause and

temporary restraining order.

Respectfully submitted,

/s/ Michael T. Gray IGNACIA S. MORENO Assistant Attorney General MICHAEL T. GRAY U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 7415 Washington, DC 20044 (202) 305-4903

January 23, 2012 90-6-20-2


CERTIFICATE OF COMPLIANCE WITH TYPE VOLUME LIMITATION

This brief complies with the type volume limitation set forth in

Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. The brief

contains 3,719 words.

/s/ Michael T. Gray

MICHAEL T. GRAY U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 7415 Washington, DC 20044 (202) 305-4903


CERTIFICATE OF SERVICE

I hereby certify that on January 23, 2011, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of

Appeals for the Second Circuit using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF

users and that service will accomplished by the appellate CM/ECF

system.

/s/ Michael T. Gray

MICHAEL T. GRAY U.S. Department of Justice Environment & Natural Res. Div. P.O. Box 7415 Washington, DC 20044 (202) 305-4903


Documents

APPELLATE-#280714-v3-Canadian St Regis brief · DEBRA THOMAS; SARAH DAVID; CAROLINE DAY Plaintiffs, v. TOWN OF BOMBAY, NY; COUNTY OF FRANKLIN, NY Defendants-Intervenor Defendants-Counter