DECISION AND ORDER

BRENDA K. SANNES, District Judge.

I. INTRODUCTION

Pro se plaintiff J'kendric Jirelle Agee ("plaintiff") commenced this civil rights action pursuant to 42 U.S.C. § 1983 on or about January 16, 2019. See Dkt. No. 1. On October 10, 2019, the Court accepted plaintiff's amended complaint for filing pursuant to 28 U.S.C. § 1915 and 28 U.S.C. § 1915A with respect to three claims asserted against five defendants and dismissed the remaining claims. Dkt. No. 16 ("October Order") at 13. On November 12, 2019, the Court issued a Decision and Order denying plaintiffs motion for relief under 28 U.S.C. § 2283 and 28 U.S.C. § 2284. Dkt. No. 24 ("November Order") at 5.

Currently pending before the Court are plaintiff's motions for reconsideration of both the October and November Orders. Dkt. Nos. 20, 37. Also pending before the Court are two further submissions from plaintiff. Dkt. Nos. 21, 22. The Court construes one of those submissions as a notice of appeal of this Order and the November Order. Dkt. No. 21. The second submission is a request to proceed in forma pauperis ("IFP") on appeal. Dkt. No. 22.

II. DISCUSSION

A. Plaintiff's Motions for Reconsideration

1. Legal Standard Governing Motions for Reconsideration

Plaintiff's motions implicate Rule 7.1(g) of the Local Rules of Practice for this Court, which provides, in pertinent part, as follows:

N.D.N.Y. L.R. 7.1(g) (emphasis in original).2 In this district, reconsideration of an order entered by the Court is appropriate upon a showing of "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC 9th Ave. P'ship, 182 B.R.1, 3 (N.D.N.Y. 1995); see also Cayuga Indian Nation of N.Y. v. Pataki, 188 F.Supp.2d 223, 244 (N.D.N.Y. 2002); Sumner v. McCall, 103 F.Supp.2d 555, 558 (N.D.N.Y. 2000).

The benchmark for seeking reconsideration of a court's order has been described as demanding. In re C-TC 9th Ave. P'ship, 182 B.R. at 2. A motion for reconsideration is not a vehicle through which a losing party may raise arguments that could have been presented earlier but for neglect, nor is it a device "intended to give an unhappy litigant one additional chance to sway the judge." Brown v. City of Oneonta. N.Y., 858 F.Supp. 340, 342 (N.D.N.Y. 1994) (internal quotation marks omitted). To qualify for reconsideration, "[t]he moving party [must] point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

2. Plaintiffs Motion for Reconsideration of the Court's October Order

After carefully reviewing plaintiff's motion for reconsideration of the Court's October Order, and with due regard to plaintiffs pro se status, the Court concludes that plaintiff's motion provides no basis for granting the relief requested. Plaintiff does not cite to an intervening change in controlling legal authority that alters the Court's analysis of the amended complaint, nor does plaintiff cite new evidence now available to him that would change the Court's analysis. See generally Dkt. No. 20. Plaintiff's motion repeats the arguments and allegations set forth in his amended complaint, all of which the Court considered upon reviewing that pleading. Id. To the extent plaintiff purports to set forth new claims and/or allegations, including a conspiracy or fraud claim, the allegations and arguments set forth in the motion are without merit and borderline frivolous. Accordingly, plaintiff's motion for reconsideration of the October Order is denied.

3. Plaintiffs Motion for Reconsideration of the Court's November Order

After carefully reviewing plaintiff's motion for reconsideration of the Court's November Order, and with due regard for plaintiff's pro se status, the Court concludes that it does not provide any basis for granting the relief requested. Plaintiff's motion recites the factual allegations set forth in his amended complaint and original motion for relief under 28 U.S.C. § 2283 and 28 U.S.C. § 2284, and plaintiff repeats an abbreviated recitation of the legal authority he included in his original motion. See generally Dkt. No. 37. Plaintiff does not cite to any intervening change in the law, nor does plaintiff provide new evidence that the Court did not consider when issuing the November Order. Id. Because plaintiffs motion sets forth no grounds for reconsidering the November Order, it is denied.

B. Plaintiffs Notice of Appeal and Request to Proceed IFP on Appeal

Plaintiff filed a submission entitled "Notice to Appeal in a Civil Case," dated October 28, 2019, and the Court received it on or about November 8, 2019. Dkt. No. 21 ("Notice of Appeal"). The Notice of Appeal purports to be plaintiffs notice to appeal the Court's November Order, as well as this Order, which denies plaintiffs motion for reconsideration of the October Order. See id. Although plaintiff filed the Notice of Appeal before the Court issued the Orders from which he seeks to appeal, because the Court has now rendered its decisions denying plaintiff's motion for an injunction and denying plaintiff's motion for reconsideration of the October Order, the Notice of Appeal is now ripe. Accordingly, the Clerk of the Court is respectfully directed to re-docket plaintiff's Notice of Appeal (Dkt. No. 21) as an appeal of this Order and the Court's November Orders and notify the Clerk of the Second Circuit. Any request to join this appeal with plaintiffs appeal in Agee v. Cuomo, No. 19-CV-0195 (N.D.N.Y. filed Feb. 13, 2019), should be directed to the Court of Appeals. See Fed. R. App. P. 3(b)(2).

Plaintiff has also filed a motion for permission to proceed IFP on appeal to the Second Circuit. Dkt. No. 22. "A party who was permitted to proceed [IFP] in the district-court action . . . may proceed on appeal [IFP] without further authorization." Fed. R. App. P. 24(a)(3)(A). Accordingly, because plaintiff has been granted IFP status in this action by the Court and it has not been revoked, plaintiff's motion to proceed IFP on appeal (Dkt. No. 22) is denied as unnecessary.

III. CONCLUSION

WHEREFORE, it is hereby

ORDERED that plaintiff's motion for reconsideration of the October Order (Dkt. No. 20) is DENIED: and it is further

ORDERED that plaintiff's motion for reconsideration of the November Order (Dkt. No. 37) is DENIED: and it is further

ORDERED that the Clerk of the Court shall re-docket Dkt. No. 21 as a Notice of Appeal of this Order and the Court's November Order (Dkt. No. 24) and notify the Clerk of the Second Circuit; and it is further

ORDERED that plaintiff's motion to proceed IFP on appeal (Dkt. No. 22) is DENIED as unnecessary; and it is further

ORDERED the Clerk shall serve a copy of this Decision and Order on the parties and serve a copy of any unreported cases cited to in this Decision and Order on plaintiff.3

IT IS SO ORDERED.

Attorneys and Law Firms

*267 Martin R. Gold (Raymond J. Heslin, Robert P. Mulvey, of counsel), Sonnenschein Nath & Rosenthal, LLP, New York, NY, for Cayuga Indian Nation of New York.

Glenn M. Feldman (Brian M. Mueller, of counsel), Mariscal, Weeks, McIntyre & Friedlander, PA., Phoenix, AZ, for Seneca-Cayuga Tribe of Oklahoma.

Todd S. Kim (Thomas L. Sansonetti, Assistant Attorney General, on the brief, Roger R. Martella, Jr., Hank Meshorer, Elizabeth A. Peterson, of counsel), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for United States of America.

Howard L. Zwickel, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, on the brief, Caitlin J. Halligan, Peter H. Schiff, Andrew D. Bing, Sachin Pandya, Brian Kreiswirth, of counsel), Albany, NY, for George E. Pataki, as Governor of the State of New York.

William L. Dorr (Daniel J. Moore, Brian Laudadio, Gregory J. McDonald, of counsel), Harris Beach LLP, Pittsford, NY, for Cayuga County and Seneca County.

Gus P. Coldebella (Anthony M. Feeheny, Mark S. Puzella, Brett C. Gerry, of counsel), Goodwin Procter LLP, Boston, MA, for Miller Brewing Co. et al, Individually and as Representative of the Defendant Class.

Carey R. Ramos (Jacqueline P. Rubin, of counsel), Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, for amicus curiae Oneida of the Thames.

William W. Taylor, III (Michael R. Smith, Thomas B. Mason, David A. Reiser, of counsel), Zuckerman Spaeder LLP, Washington, D.C., for amicus curiae Oneida Indian Nation of New York.

Arlinda F. Locklear (Lawrence S. Roberts, of counsel), Jefferson, MD, for amicus curiae Oneida Tribe of Indians of Wisconsin.

Jeanne S. Whiteing (Tod Smith, of counsel), Whiteing Smith, Boulder, CO, for amicus curiae Seneca Nation of Indians of New York.

Don B. Miller, PC, Boulder, CO, for amicus curiae Stockbridge-Munsee Indian Community.

Hans Walker, Jr. (Marsha K. Schmidt, of counsel), Hobbs, Straus, Dean & Walker, LLP, Washington, D.C., for amicus curiae St. Regis Mohawk Tribe.

Steven M. Tulberg (Alexandra C. Page, Andrew I. Huff, of counsel), Indian Law Resource Center, Washington, D.C., for amicus curiae Tonawanda Band of Seneca Indians and Mohawk Nation.

Before: CABRANES and POOLER, Circuit Judges, and HALL, District Judge.*

Opinion

JOSÉ A. CABRANES, Circuit Judge.

We are here confronted by land claims of historic vintage —the wrongs alleged occurred over two hundred years ago, and this action is itself twenty-five years old—which we must adjudicate against a legal *268 backdrop that has evolved since the District Court's rulings The United States District Court for the Northern District of New York (Neil P. McCum, Judge), determined (1) that treaties between the Cayuga Nation and the State of New York in 1795 and 1807 were not properly ratified by the federal government and were thus invalid under the Nonintercourse Act, 25 U.S.C. § 177, and (2) that none of defendants' other arguments barred plaintiffs' suit After ruling in plaintiffs' favor on liability, the District Court conducted a jury trial on damages, which resulted in a verdict for plaintiffs of approximately $36.9 million, representing the current fair market value of the land as well as fair rental value damages for 204 years. The District Court then concluded, following a month-long hearing, that plaintiffs were entitled to about $211 million in prejudgment interest, resulting in a total award of $247,911,999.42.

In another case raising land claims stemming from late-eighteenth-century treaties between Indian tribes and the State of New York, the Supreme Court recently ruled that equitable doctrines—such as laches, acquiescence, and impossibility—can be applied to Indian land claims in appropriate circumstances. See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, ___, 125 S.Ct. 1478, 1494, 161 L.Ed.2d 386 (2005). Based on Sherrill, we conclude that the possessory land claim alleged here is the type of claim to which a laches defense can be applied. Taking into account the considerations identified by the Supreme Court in Sherrill and the findings of the District Court in the remedy stages of this case, we further conclude that plaintiffs' claim is barred by laches Accordingly, we reverse the judgment of the District Court and enter judgment for defendants.

BACKGROUND

Because of the disposition we reach here, we need not describe in great detail the long history of relations between the Cayuga Nation and the State of New York. We set forth below a concise description of the events underlying this lawsuit, as well as a more extended recounting of the case's procedural history.

1. Historical Background

Plaintiffs allege that from time aninemorial until the late eighteenth century the Cayuga Nation owned and occupied approximately three million acres of land in what is now New York State, a swath of land approximately fifty miles wide that runs from Lake Ontario to the Pennsylvania border. This action involves 64,015 acres of that land, encompassing the Cayuga's "Original Reservation," as set forth in a treaty with the State of New York, concluded on February 25, 1789 ("1789 Treaty"). In the 1789 Treaty, the Cayugas ceded all of their lands to New York, except the lands designated as the "Original Reservation," which consists of lands on the eastern and western shores of the northern end of Cayuga Lake.

Congress passed the first Indian Trade and Intercourse Act, known as the "Nonintercourse Act," in 1790, pursuant to Congress's power under Article I, Section 8, clause 3 of the Constitution, which gives Congress the power "to regulate Commerce . . . with the Indian Tribes." Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137, 138. As the Supreme Court described it, "the Act bars sales of tribal land without the acquiescence of the Federal Government." Sherrill, 125 S.Ct. at 1484 Successive versions of the Act have been continuously in force from that time to the present day. See Rev. Stat § 2116, 25 U.S.C. § 177.

On November 11, 1794, the Six Iroquois *269 Nations1 entered the Treaty of Canandaigua with the United States. 7 Stat 44. This treaty acknowledged the Original Reservation the Cayugas retained in the 1789 treaty with New York, and promised the Cayugas that the land would remain theirs until they "chose to sell the same to the people of the United States who have the right to purchase." Id. art. II, 7 Stat. at 45 On June 16, 1795, William Bradford, then Attorney General of the United States, issued an opinion concluding that, under the 1793 version of the Nonintercourse Act, no Indian land sale was valid, nor could the land claims of the Six Iroquois Nations be extinguished, except pursuant to a treaty entered into by the Federal Government. See Cayuga Indian Nation v. Cuomo, 565 F.Supp. 1297, 1305 (N.D.N.Y.1983) ("`Cayuga I").

On July 27, 1795, the Cayuga entered into a treaty with the State of New York in which the State acquired the entire Original Reservation of the Cayugas (except for a three-square-mile area on the eastern shore of Cayuga Lake) in exchange for a promise that the State pay the Cayuga Nation $1,800 annually in perpetuity. Id. Although there is some debate about whether a federal official who signed the treaty as a witness was acting in a personal or official capacity, id., it is undisputed that this treaty was never explicitly ratified by a treaty of the Federal Government. In 1807, the State of New York purchased the Cayugas' remaining three-squaremile parcel for $4,800. Id. Again, the Federal Government never explicitly ratified this treaty.2

2. Procedural History—Liability Phase

Many years later, on November 19, 1980, the Tribe filed its complaint in this action, alleging these facts and requesting that the Court "[d]eclare that plaintiffs are the owners of and have the legal and equitable title and the right of possession" to all of the land in the Original Reservation and that the Court "[r]estore plaintiffs to immediate possession of all portions of the subject land claimed by any defendant or member of the defendant class and eject any defendant claiming their chain of title through the 1795 and 1807 New York State `treaties.' "Plaintiffs also sought: (1) an accounting of all tax funds paid by possessors of the lands, (2) trespass damages in the amount of the fair rental value of the land for the entire period of plaintiffs' dispossession, (3) all proceeds derived in the future in connection with the removal or extraction of any natural resources to be placed in a trust fund for plaintiffs' benefit, (4) the costs of the action and attorneys' fees, and (5) "such other and further relief as the Court deems just."

Soon after filing the action, plaintiffs moved to certify a defendant class of landowners under Federal Rule of Civil Procedure 23(b)(1)(B) The District Court certified a defendant class with respect to liability and named defendant Miller Brewing Company as representative of the defendant class In 1981, the Seneca—Cayuga Tribe of Oklahoma was granted leave to intervene as plaintiff-intervenor *270 and filed a complaint in intervention that was in pertinent respects identical to the original complaint filed by the Cayuga Nation of New York.

Defendants moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b) (I) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). After the District Court denied the motion to dismiss, and defendants filed their answer to the complaint, plaintiffs moved for partial suirunary judgment, asking the Court to find the 1795 and 1807 treaties invalid under the Nomntercourse Act and federal common law and to determine that plaintiffs were the current owners of the lands in question. The District Court found that plaintiffs constituted "Indian tribes" and that they were entitled to sue under the Nonintercourse Act, but held that it could not rule on whether the United States ratified the treaties as the record was not yet complete. Cayuga Indian Nation v. Cuomo, 667 F.Supp. 938, 942-43, 948 (N.D.N.Y. 1987) ("Cayuga II") The District Court also rejected defendants' arguments that the suit was barred by various doctrines, including election of remedies, res judicata, and collateral estoppel. Id. at 946-48.

After further discovery, plaintiffs again moved for partial summary judgment, asking that the Court find that the treaties had not been properly ratified. The District Court concluded that the Nonintercourse Act requires of any land-conveyance treaty with an Indian tribe (1) the presence of federal treaty commissioners at the signing of the treaty and (2) ratification, pursuant to the Treaty Clause of the U.S. Constitution. Cayuga Indian Nation v. Cuomo, 730 F.Supp. 485, 487 (N.D.N.Y.1990) ("Cayuga III"). The Court granted plaintiffs partial summary judgment on this issue, concluding that there was no evidence that the treaties had been ratified pursuant to the Treaty Clause. Id. at 493.

In separate opinions in 1991, the District Court rejected defendants' remaining defenses of abandonment and laches. Cayuga Indian Nation v. Cuomo, 758 F.Supp. 107 (N.D.N.Y.1991) ("Cayuga IV") Cayuga Indian Nation v. Cuomo, 771 F.Supp. 19 (N.D.N.Y.1991) ("Cayuga V"). The Court determined that the "1794 Treaty of Canandaigua conferred recognized title to the Cayugas concerning the land at issue" and that "proof of the plaintiffs' physical abandonment of the property at issue is irrelevant in a claim for land based upon reserved title to Indian land, for such title can only be extinguished by an act of Congress." Cayuga IV, 758 F.Supp. at 118. With regard to laches, the District Court concluded that Second Circuit precedent was clear that "claims brought by Indian tribes in general, including the plaintiffs herein, should be held by courts to be timely, and therefore not barred by laches, if, at the very least, such a suit would have been timely if the same had been brought by the United States." Cayuga, V, 771 F.Supp. at 22 (citing Oneida Indian Nation v. Oneida County, 719 F.2d 525, 538 (2d Cir.1983)). The Court thus found plaintiffs' action timely. Id. at 24.

Following these rulings, the District Court granted partial summary judgment on liability to plaintiffs against all defendants except the State of New York, which was excluded because it had asserted a new Eleventh Amendment defense based on the then-recent Supreme Court decision in Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) Cayuga V, 771 F.Supp. at 21 n. 2, 24. The other defendants then moved to dismiss on the grounds that the State was an indispensable party.

In response to the State's Eleventh Amendment motion, the United States *271 moved to intervene in the lawsuit on behalf of itself and on behalf of plaintiffs The complaint-in-intervention sought a declaration that plaintiffs were entitled to possession of the land, ejectment of the current residents, and damages and interest. The motion to intervene was granted in November 1992.

After a stay of the proceedings for settlement discussions that lasted over three years, the District Court concluded that the State was entitled to Eleventh Amendment immunity, but that its officials could be sued for prospective relief The Court denied the non-State defendants' motion to dismiss, rejecting their contention that the State was an indispensable party. Having ruled on all liability issues, the Court noted that it "anticipate[d] receiving an application for certification of an interlocutory appeal." Defendants decided not to seek an interlocutory appeal.

3. Procedural History—Damages Phase

After the ruling for plaintiffs on all liability issues, a number of questions remained to be decided at the damages phase. Defendants argued (1) that ejectment was not a proper remedy in the case, (2) that plaintiffs should not be able to obtain prejudgment interest against the State; (3) that damages should be limited to the loss suffered by the Cayugas at the time of the treaties, as measured by the difference between the value received by the Cayugas and the fair market value of the lands at that time, (4) that the lands should be valued as a single 64,000-acre tract rather than as smaller, individual tracts, and (5) that damages should be based on a single valuation date of July 27, 1795.

The District Court issued a series of rulings in 1999 to resolve these and other issues relating to the damages proceedings. First, the District Court agreed with defendants that the land should be valued as a single parcel ("4" above) and that damages should be determined by reference to the value of the land on July 27, 1795 ("5" above) Cayuga Indian Nation v. Pataki, No. 80-CIV-930, 1999 U.S. Dist. LEXIS 5228, at *18-19 (N.D.N.Y. Apr. 15, 1999) ("Cayuga VIII"). In that same ruling, the Court found that plaintiffs' potential damages consisted of damages at the time of the Treaties and the fair rental value of the Cayugas' loss of use and possession of the land for the years of dispossession, known as "mesne profits." Id. at *51-53. The Court determined that the award of prejudgment interest was an issue for the Court, and not for the jury, and that the Court would decide issues related to interest once the record had been further developed Id. at *60-75 & n. 35.

The Court next decided, on July 1, 1999, fully nineteen years after the filing of the complaint seeking "immediate possession" of the land, that ejectment was not a proper remedy. Cayuga Indian Nation v. Cuomo, No. 80-CIV-930, 1999 U.S. Dist. LEXIS 10579, at *97 (N.D.N.Y. July 1, 1999) ("Cayuga X"). The Court found that "monetary damages will produce results which are as satisfactory to the Cayugas as those which they could properly derive from ejectment" Id. at *79 Because ejectment was the only relief plaintiffs were seeking against the individual State defendants, the Court dismissed the claims against those defendants. Id. at *99.

On October 8, 1999, the District Court ruled that the State of New York "could be deemed an original or primary toitfeasor" Cayuga Indian Nation v. Pataki, 79 F.Supp.2d 66, 74 (N.D.N.Y. 1999) ("Cayuga XI"). Consequently, the Court determined that "a single trial against the State *272 of New York as the sole defendant is the only practical way to proceed here." Id. at 77 As a result, the remedial proceedings held in the District Court and discussed below pertain only to the State as defendant.

The Court further ruled, on December 23, 1999, that it would not allow testimony related to equitable issues to be presented to the jury and that all equitable issues would be reserved to the Court Cayuga Indian Nation v. Pataki, 79 F.Supp.2d 78, 92 (N.D.N.Y. 1999) ("Cayuga XII"). The Court decided that, because it had rejected ejectment as an available remedy, it would allow evidence of current fair market value as a proper measure of damages. Id. at 94 As a result of these rulings, the District Court bifurcated the proceedings into (1) a jury trial to determine current fair market value and rental damages and (2) a subsequent hearing on prejudgment interest and other equitable issues.

A jury trial was held from January, 18, 2000 through February 17, 2000. The parties' experts presented widely disparate estimates of the measure of plaintiffs' damages The jury was presented with a Special Verdict Form that asked for a calculation of current fair market value of the subject land and for a year-by-year breakdown of rental damages from 1795 to 1999. The July was instructed not to adjust rental damages to current day value, as all adjustments would be performed later by the Court On February 17, 2000, the jury returned a verdict finding current fair market value damages of $35 million and total fair rental value damages of $3.5 million. In awarding the fair rental value damages, the jury awarded the same rental value damages for each year from 1795 to 1999, in the amount of $17,156.86. The jury gave the State a credit for the payments it had made to the Cayugas, of about $1.6 million, leaving the total damages at this stage at approximately $36.9 million.

The hearing on prejudgment interest and other equitable issues was held from July 17, 2000 through August 18, 2000. Eight expert witnesses testified, regarding both the historical context and the assessment of prejudgment interest. Unsurprisingly, the experts reached substantially divergent estimates of the prejudgment interest to which the Cayugas were entitled, ranging from approximately $175 billion to zero (this counterintuitive calculation was based on the assumption that the jury verdict needed to be "adjusted" because the jury had expressed its verdict in "constant 2000 dollars").3

On October 2, 2001, the District Court issued a Memorandum—Decision and Order on the interest issue. Cayuga Indian Nation v. Pataki, 165 F.Supp.2d 266 (N.D.N.Y.2001) ("Cayuga XVI"). The District Court rejected both the "lowball" figure of the State's expert and the stratospheric figure of the plaintiffs' expert and relied on the estimate of the United States's expert, who had arrived at a figure of $529,377,082. Id. at 364 In doing so, the District Court took into account a number of equitable considerations, including "(1) the passage of 204 years, (2) the failure of the U.S. to intervene or to seek to protect the Cayuga's interests prior to 1992, (3) the lack of fraudulent or calculated purposeful intent on the pait of the State to deprive the Cayuga of fair compensation for the lands ceded by them in the 1795 and 1807 treaties, and (4) the financial factors enumerated by [the *273 State's expert]." Id. at 366 The District Court noted that these financial factors encompassed a number of considerations, including the question whether the Cayugas had access to financial markets or "the ability, knowledge, or skills to take advantage of such markets, especially in the early years," the failure of the verdict to take into account the Cayugas' expenses over the past 204 years, the fact that the unimproved claim area had no rental value until the twentieth century, and the fact that compounding interest over 204 years is at best "a theoretical exercise," because it ignores the history of banking in this country and is extremely unlikely to occur in a real-world market. Id. at 364. In light of all these factors, the District Court adjusted downward the interest estimate by 60 percent, resulting in a prejudgment interest award of $211,000,326.80 and a total award of $247,911,999.42. Id. at 366. The District Court entered judgment that day.

The District Court addressed various post-judgment motions on March 11, 2002. Cayuga Indian Nation v. Pataki, 188 F.Supp.2d 223 (N.D.N.Y.2002) ("Cayuga XVII"). The Court first denied the State's motions for judgment as a matter of law and for a new trial. Id. at 247-48. The Court granted the State's motion "to amend the judgment to provide that it runs jointly in favor of the U.S., as trustee, and the tribal plaintiffs," but denied the State's motion "to amend the judgment to run exclusively in favor of the U.S." Id. at 257. Finally, the Court denied both parties' motions for recalculation of the prejudgment interest and plaintiffs' motion for reconsideration of the Court's earlier decision rejecting ejectment as a remedy Id.

On June 17, 2002, the District Court granted the parties' motions for permission to appeal and certified for appeal, pursuant to 28 U.S.C. § 1292(b), the issues related to liability and remedies. We granted the District Court's certification of issues for immediate appellate resolution on December 11, 2002.

DISCUSSION

The Supreme Court's recent decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), has dramatically altered the legal landscape against which we consider plaintiffs' claims Sherrill concerned claims by the Oneida Indian Nation, another of the Six Iroquois Nations, that its "acquisition of fee title to discrete parcels of historic reservation land revived the Oneidas' ancient sovereignty piecemeal over each parcel" and that, consequently, the Tribe need not pay property taxes to the City of Sherrill Id. at 1483. The Supreme Court rejected this claim, concluding that "the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue." Id.

We understand Sherrill to hold that equitable doctrines, such as laches, acquiescence, and impossibility, can, in appropriate circumstances, be applied to Indian land claims, even when such a claim is legally viable and within the statute of limitations See, e.g., id. at 1494. ("[T]he distance from 1805 to the present day, the Oneidas' long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate"). Sherrill clarified that the decision does not "disturb" the Supreme Court's holding in County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 229-30, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) ("Oneida II"), *274 which allowed Indian Tribes to seek fair rental value damages for violation of their possessory rights following an ancient dispossession. See Sherrill, 125 S.Ct. at 1494 ("In sum, the question of damages for the Tribes ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II."). Because the Supreme Court in Oneida II expressly declined to decide whether laches would apply to such claims, see Oneida II, 470 U.S. at 244-45, 253 n. 27, 105 S.Ct. 1245, this statement in Sherrill is not diapositive of whether lathes would apply here.

The Courts characterizations of the Oneidas' attempt to regain sovereignty over their land indicate that what concerned the Court was the disruptive nature of the claim itself See id. at 1483. ("[W]e decline to project redress for the Tribe into the present and future, thereby disrupting the governance of central New York's counties and towns."), id. at 1491 ("This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude [the Tribe] from gaining the disruptive remedy it now seeks"), id. at 1491 n. 11 ("[The Oneidas'] claim concerns grave, but ancient, wrongs, and the relief available must be commensurate with that historical reality."). Although we recognize that the Supreme Court did not identify a formal standard for assessing when these equitable defenses apply, the broadness of the Supreme Court's statements indicates to us that Sherrill's holding is not narrowly limited to claims identical to that brought by the Oneidas, seeking a revival of sovereignty, but rather, that these equitable defenses apply to "disruptive" Indian land claims more generally.

In their post-Sherrill briefs, both the Cayugas and the United States maintain that the Sherrill decision "does not affect the award of monetary damages,". Cayuga Letter Br. at 1, and "concerned particular equitable remedies" which are not at issue here as "the district court confined its judgment to an award of damages" United States Letter Br. at 6. Our reading of Sherrill suggests that these assertions do not present an entirely accurate assessment of its effect on the present case. While the equitable remedy sought in Sherrill— a reinstatement of Tribal sovereignty—is not at issue here, this case involves comparably disruptive claims, and other, comparable remedies are in fact at issue.

Despite the eventual award by the District Court of monetary damages, we emphasize that plaintiffs' claim is and has always been one sounding in ejectment, plaintiffs have asserted a continuing right to immediate possession as the basis of all of their claims, and have always sought ejectment of the current landowners as their preferred form of relief As noted above, in their complaint in this case the Cayugas seek "immediate possession" of the land in question and ejectment of the current residents. Indeed, the District Court noted early in the litigation that it was "clear that the complaint "presents a possessory claim, basically in ejectment." Cayuga I, 565 F.Supp.at 1317 (internal quotation marks omitted).4 Plaintiffs continue to maintain, on appeal in this Court, that ejectment is their preferred remedy. It was not until 1999, nineteen years after the complaint was filed, and eight years after the District Court's decision on liability, *275 that the District Court determined that the ejectment remedy sought by the Cayugas was, "to put it mildly, . . . not an appropriate remedy in this case." Cayuga X, 1999 U.S. Dist LEXIS 10579, at *97. The District Court thus effectively "monetized" the ejectment remedy in concluding that "monetary damages will produce results which are as satisfactory to the Cayugas as those which they could properly derive from ejectment" Id. at *79.

The nature of the claim as a "possessory claim," as characterized by the District Court, underscores our decision to treat this claim like the tribal sovereignty claims in Sherrill. Under the Sherrill formulation, this type of possessory land claim—seeking possession of a large swath of central New York State and the ejectment of tens of thousands of landowners—is indisputably disruptive Indeed, this disruptiveness is inherent in the claim itself—which asks this Court to overturn years of settled land ownership—rather than an element of any particular remedy which would flow from the possessory land claim. Accordingly, we conclude that possessory land claims of this type are subject to the equitable considerations discussed in Sherrill.

This conclusion is reinforced by the fact that the Sherrill opinion does not limit application of these equitable defenses to claims seeking equitable relief We recognize that ejectment has been characterized as an action at law, as opposed to an action in equity. See, e.g., New York v. White, 528 F.2d 336, 338 (2d Cir. 1975) (discussing "the legal remedy of ejectment"); but see Bowen v. Massachusetts, 487 U.S. 879, 893, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (stating in dicta that "[o]ur cases have long recognized the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—and an equitable action for specific relief—which may include an order providing for . . . ejectment from land . . ."). Plaintiffs urge us to conclude that, as a legal remedy, ejectment is not subject to equitable defenses, relying, inter alia, on the Supreme Court's statement in Oneida II that "application of the equitable defense of laches in an action at law would be novel indeed" Oneida II, 470 U.S. at 244 n. 16, 105 S.Ct. 1245. In response to this claim, we note Sherrill's statement that "[n]o similar novelty exists when the specific relief [the Tribe] seeks would project redress . . . into the present and future." 125 S.Ct at 1494 n. 14. Whether characterized as an action at law or in equity, any remedy flowing from this possessory land claim, which would call Into question title to over 60,000 acres of land in upstate New York, can only be understood as a remedy that would similarly "project redress into the present and future."5

*276 One of the few incontestable propositions about this unusually complex and confusing area of law is that doctrines and categorizations applicable in other areas do not translate neatly to these claims. See, e.g., Oneida II, 470 U.S. at 240-44, 105 S.Ct. 1245 (holding that the general law favoring the borrowing of state law limitations-periods does not apply to federal Indian land claims), Mohegan Tribe v. Connecticut, 638 F.2d 612, 614-15 &. n. 3 (2d Cir.1980) (holding that adverse possession does not run against Indian land). This proposition was well stated by the District Court.

Cayuga XI, 79 F.Supp.2d at 70-71 (internal citations, quotations, and emphasis omitted). In light of the unusual considerations at play in this area of the law, and our agreement that ordinary common law principles are indeed "not readily transferrable to this action," we see no reason why the equitable principles identified by the Supreme Court in Sherrill should not apply to this case, whether or not it could be technically classified as an action at law.

Thus, whatever the state of the law in this area before Sherrill, see Oneida II, 470 U.S. at 253 n. 27, 105 S.Ct. 1245 (reserving "the question whether equitable considerations should limit the relief available" in these cases), id. at 244-45, 105 S.Ct. 1245 (deciding not to reach the question of laches because defendants had waived it), we conclude, for the abovestated reasons, that, after Sherrill, equitable defenses apply to possessory land claims of this type.

Our reading is not in conflict with the Supreme Court's decision in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) ("Oneida I"), where the Court specifically found federal jurisdiction to hear such possessory claims, including those in ejectment. Id. at 666, 94 S.Ct. 772. The Court there noted that "the complaint in this case asserts a present right to possession under federal law The claim may fail at a later stage for a variety of reasons; but for jurisdictional purposes, this is not a case where the underlying right or obligation arises only under state law and *277 federal law is merely alleged as a barrier to its effectuation." Id. at 675, 94 S.Ct. 772 The holding of Sherrill thus addresses the question reserved in Oneida II and follows from Oneida I's holding by providing that these possessory claims are subject to equitable defenses.

Inasmuch as the instant claim, a possessory, land claim, is subject to the doctrine of laches, we conclude that the present case must be dismissed because the same considerations that doomed the Oneidas' claim in Sherrill apply with equal force here These considerations include the following. "[g]enerations have passed during which non-Indians have owned and developed the area that once composed the Tribe's historic reservation," Sherrill, 125 S.Ct. at 1483, "at least since the middle years of the 19th century, most of the [Tribe] have resided elsewhere," id.; "the longstanding, distinctly non-Indian character of the area and its inhabitants," id.; "the distance from 1805 to the present day," id. at 1494; "the [Tribe's] long delay in seeking equitable relief against New York or its local units," id.; and "developments in [the area] spanning several generations" Id.; see also id. at 1492-93. ("[T]his Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands.") (citing Yankton Sioux Tribe v. United States, 272 U.S. 351, 357, 47 S.Ct. 142, 71 S.Ct. 294 (1926) ("It is impossible . . . to rescind the cession and restore the Indians to their former rights because the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers. . . .")). We thus hold that the doctrine of laches bars the possessory land claim presented by the Cayugas here.6 The District Court, after serious consideration of this exact question, explicitly agreed with this assessment. Cayuga X, 1999 U.S. Dist. LEXIS 10579, at *86 ("Thus, even though some delay on the part of the Cayugas is explainable, in the context of determining whether ejectment is an appropriate remedy, . . . the delay factor tips decidedly in favor of the defendants.").

To summarize: the import of Sherrill is that "disruptive," forward-looking claims, a category exemplified by possessory land claims, are subject to equitable defenses, including laches Insofar as the Cayugas' claim in the instant case is unquestionably a possessory land claim, it is subject to laches The District Court found that lathes barred the possessory land claim, and the considerations identified by the Supreme Court in Sherrill mandate that we affirm the District Court's finding that the possessory land claim is barred by laches The fact that, nineteen years into the case, at the damages stage, the District Court substituted a monetary remedy for plaintiffs' preferred remedy of ejectment7 cannot salvage the claim, which was *278 subject to dismissal ab initio. To frame this point a different way if the Cayugas filed this complaint today, exactly as worded, a District Court would be required to find the claim subject to the defense of laches under Sherrill and could dismiss on that basis.

Although we conclude that plaintiffs' ejectment claim is barred by laches, we must also consider whether their other claims, especially their request for trespass damages in the amount of the fair rental value of the land for the entire period of plaintiffs' dispossession, are likewise subject to dismissal. In assessing these claims, we must recognize that the trespass claim, like all of plaintiffs' claims in this action, is predicated entirely upon plaintiffs' possessory land claim, for the simple reason that there can be no trespass unless the Cayugas possessed the land in question See, e.g., West 14th Street Commercial Cop. v. 5 West 14th Owners Corp., 815 F.2d 188, 195 (2d Cir. 1987) (holding that a trespass cause of action must allege possession). Inasmuch as plaintiffs' trespass claim is based on a violation of their constructive possession, it follows that plaintiffs' inability to secure relief on their ejectment claim alleging constructive possession forecloses plaintiffs' trespass claim In other words, because plaintiffs are barred by laches from obtaining an order conferring possession in ejectment, no basis remains for finding such constructive possession or immediate right of possession as could support the damages claimed. Because the trespass claim, like plaintiffs' other requests for relief, depends on the possessory land claim, a claim we have found subject to laches, we dismiss plaintiffs' trespass claim, and plaintiffs' other remaining claims, along with the plaintiffs' action in ejectment.

We recognize that the United States has traditionally not been subject to the defense of laches See United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 84 S.Ct. 1283 (1940) However, this does not seem to be a per se rule. See, e.g., Clearfield Mat Co. v. United States, 318 U.S. 363, 369, 63 S.Ct. 573, 87 S.Ct. 838 (1943) (holding that laches is a defense to the United States in its capacity as holder of coirimercial paper). Judge Posner has aptly noted that "the availability of laches in at least some government suits is supported by Supreme Court decisions, notably Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 373, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60-61, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984); and Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), that refuse to shut the door completely to the invocation of laches or estoppel (similar doctrines) in government suits." United States v. Administrative `Enterprises, Inc., 46 F.3d 670, 672-73 (7th Cir.1995). Indeed, the Seventh Circuit has made clear that, in appropriate circumstances, laches can apply to suits by the federal government. See NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 894 (7th Cir. 1990) ("Following dictum in Occidental Life and the general principle noted earlier that government suits in equity are subject to the principles of equity, laches is generally and we think correctly assumed to be applicable to suits by government agencies as well as by private parties.") (internal citations omitted).

Notwithstanding our conclusion that the United States as plaintiff-intervenor is subject to laches in this case, we do not purport to set forth broad guidelines for when the doctrine might apply Rather, we follow the Seventh Circuit, which, after canvassing the case law, noted in Administrative *279 Enterprises that there are three main possibilities for when laches might apply against the United States. first, "that only the most egregious instances of laches can be used to abate a government suit", second, "to confine the doctrine to suits against the government in which . . . there is no statute of limitations", and third, "to draw a line between government suits in which the government is seeking to enforce either on its own behalf or that of private parties what are in the nature of private rights, and government suits to enforce sovereign rights, and to allow laches as a defense in the former class of cases but not the latter." Administrative Enterprises, 46 F.3d at 673 (internal citations omitted) We need not decide which of these three possibilities might govern because this case falls within all three. First, given the relative youth of this country, a suit based on events that occurred two hundred years ago is about as egregious an instance of lathes on the part of the United States as can be imagined, second, though there is now a statute of limitations, see 28 U.S.C. § 2415(a), there was none until 1966—i.e., until one hundred and fifty years after the cause of action accrued, and third, the United States intervened in this case to vindicate the interest of the Tribe, with whom it has a trust relationship.8 Accordingly, we conclude that whatever the precise contours of the exception to the nile against subjecting the United States to a laches defense, this case falls within the heartland of the exception.

We acknowledge that we stated in Oneida Indian Nation v. New York, 691 F.2d 1070 (2d Cir. 1982), that "[I]t is clearly established that a suit by the United States as trustee on behalf of an Indian tribe is not subject to state delay-based defenses." Id. at 1084. That opinion, however, left open the possibility of asserting delay-based defenses founded on federal law in these circumstances. See id. (stating that "[t]here remains the question whether a delay-based defense founded on federal law may be asserted" and concluding that because the suit was within the statute of limitations of 28 U.S.C. § 2415, the suit was timely in any case). In light of Sherrill, which, as noted above, we read to have substantially altered the legal landscape in this area, we conclude that the federal law of lathes can apply against the United States in these particular circumstances.

The Cayugas and the United States highlight the District Court's findings, in deciding whether to award prejudgment interest, that the Cayugas were not "responsible for any delay in bringing this action" and that the "delay was not unreasonable, insofar as the actions of the Cayuga are concerned." Cayuga Letter Br. at 3, United States Letter Br. at 3. We acknowledge these findings, but do not believe they are diapositive for our consideration of the lathes question. The equitable considerations relevant to an assessment of a possessory land claim—which is precisely what this case was from the outset—differ dramatically from the equitable considerations in a claim for prejudgment Interest, which is what the case had become at the time the District Court made these findings The District Court itself, as discussed above, found that ladies barred the Cayugas' preferred remedy of ejectment Indeed, the District Court noted that "[degardless of when the Cayugas *280 should have or could have commenced this lawsuit, the court cannot overlook the prejudicial consequences which the defendants would sustain if the court were to order ejectment," and found that the "prejudice factor" was "a factor which is far too important to ignore." Cayuga X, 1999 U.S. Dist. LEXIS 10579, at *85-86. In light of these findings, and the Supreme Court's ruling in Sherrill, we see no need to remand to the District Court for a determination of the lathes question.

Our decision to reverse the judgment of the District Court and enter judgment for defendants should in no way be interpreted as a reflection on the District Court's efforts and rulings in this case. We recognize and applaud the thoughtful and painstaking efforts, over many years, of Judge Neil P. McCurn, who presided over this and related land claims in upstate New York with fairness and due regard to the rights and interests of all parties as well as with a keen appreciation of the complexities of the subject matter and of the relevant law. Our decision is based on a subsequent ruling by the Supreme Court, which could not be anticipated by Judge McCurn in his handling of this case over more than twenty years.

The judgment of the District Court is REVERSED and judgment is entered for defendants.

HALL, District Judge, dissenting in part and concurring in part in the judgment.

While City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), has an impact on this case, it does not compel the conclusion that the plaintiffs are without any remedy for what the District Court found to be the illegal transfer of their land My understanding of City of Sherrill is that it supports the majority's conclusion that the plaintiffs cannot obtain ejectment of those currently in possession of the land which was, over 200 years ago, the Cayuga Nation's Original Reservation. However, based on the nature of the claims long asserted in this case, the elements of the defense of ladies, and the language and precedent relied on in City of Sherrill, I cannot join the majority in its conclusion that ladies bars all of the plaintiffs' remedies, including those for money damages Therefore, I respectfully dissent in part and concur in part in the judgment.

I. Procedural History

The majority sets forth an excellent summary of the extensive background to this appeal. There are, however, a few procedural aspects that bear noting.

The history of this case makes clear that the Cayuga plaintiffs.1 have, from its filing, asserted multiple causes of action and sought multiple remedies The complaint states a claim, inter alia, for trespass damages The Cayuga plaintiffs allege that "[a]ll of the defendants are in trespass" and that "[t]he defendants are keeping plaintiffs out of possession of their land in violation of the common law and 25 U.S.C. § 177 (The Non—Intercourse Act)." Cayuga Indian Nation Compl. at ¶ 50. The Cayuga plaintiffs sought several forms of relief, including declaratory relief, ejectment, an accounting, and trespass damages for the fair rental value of the land. It bears noting that the statute of limitations established by Congress did not expire until approximately three years following. *281 the date this action was filed. 28 U.S.C. § 2415(a) ("for those claims that are on either of the two lists published pursuant to the Indian Claims Limitations Act of 1982, any right of action shall be bared unless the complaint is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim . . ."); 48 Fed Reg 13920 (Mar. 31, 1983) (listing Cayuga's "Nomntercourse Act Land Claim"), see also County of Oneida v. Oneida Indian Nation of N.Y. 470 U.S. 226, 243, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) ("Oneida II") ("So long as a listed claim is neither acted upon nor formally rejected by the Secretary, it remains live.")

While the majority may be correct that "ejectment is [the plaintiffs'] preferred remedy," Maj. Op. at 274, there is certainly nothing in the record to suggest that the Cayuga plaintiffs relinquished their claims for money damages See, e.g., Cayuga Indian Nation v. Cuomo, 565 F.Supp. 1297, 1305-06 (N.D.N.Y.1983) ("Cayuga I") ("With respect to the common law bases for their claim, references are made in plaintiffs' papers to `ejectment', `trespass', `waste' and `conversion', either as analogous forms of action or as indices of damages."). Indeed, federal common law provides the Cayuga plaintiffs with a variety of remedial theories. "The Supreme Court has recognized a variety of federal common law causes of action to protect Indian lands from trespass, including actions for ejectment, accounting for profits, and damages." U.S. v. Pend Oreille Pub. Utl. Dist. No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir. 1994), cert. denied, 514 U.S. 1015, 115 S.Ct. 1356, 131 L.Ed.2d 214 (1995). The District Court found that, "the plaintiffs are not specifying a single source for their substantive possessory right, or a single source for their right of action" and read the complaint and the plaintiffs' papers to state a claim "derived from the Nomntercourse Act itself or from federal common law." Cayuga I, 565 F.Supp. at 1306 Such a claim has been recognized to include as a remedy a monetary award for damages. Oneida II, 470 U.S. at 235-40, 105 S.Ct. 1245. Thus, the plaintiffs here have sought money damages from the filing of this case.

The District Court addressed the application of equitable defenses early in the case, when it considered the nonstate defendants' argument "that the equitable remedies of rescission and restitution are no longer available where the use and the value of the land has changed drastically, and where it is held by innocent purchasers."2 Cayuga I, 565 F.Supp. at 1310. The court concluded on the basis of Second Circuit precedent that, while laches did not bar the Cayuga plaintiffs' claims, it may later become relevant with respect to the relief sought. Id.

After the District Court held that the 1795 and 1807 land conveyances to New York State were invalid, Cayuga Indian Nation v. CUOMO, 730 F.Supp. 485, 493 (N.D.N.Y. 1990) ("Cayuga III"), the District Court again faced the question of laches. Cayuga Indian Nation v. Cuomo, 771 F.Supp. 19, 20 (N.D.N.Y.1991) ("Cayuga V"). However, the District Court again relied on pre-City of Sherrill precedent to find that the action had been filed timely and that laches did not apply. Id. at 20-24 (citing *282 Oneida Indian Nation of New York v. Oneida County, 719 F.2d 525, 538 (2d Cir. 1983); Oneida Indian Nation of New York v. New York, 691 F.2d 1070, 1084 (2d Cir. 1982)).

On November 5, 1992, the United States filed a motion to intervene It did so both on its own behalf and as trustee to the tribe. In its Answer to the United States' Complaint in Intervention, which, inter alia, sought trespass damages, the State alleged that the common law defense of laches barred the claims of and relief sought by the United States The District Court never reached the question of whether laches could be asserted against the United States in this case because the parties stipulated that the court's previous rejection of the defense as to the other plaintiffs would apply with equal force as to the United States.

Following the District Court's grant of partial summary judgment on the question of liability, the defendants then moved to preclude ejectment as a remedy The court found "that from the outset ejectment is one of several remedies which the Cayugas have been seeking, and their claims also have been framed in terms of ejectment." Cayuga Indian Nation v. Cuomo, 1999 U.S. Dist LEXIS 10579, at *58 (N.D.N.Y. July 1, 1999) ("Cayuga X"). Following the reasoning in United States v. Imperial Irrigation District, 799 F.Supp. 1052 (S.D.Cal.1992), the District Court treated the ejectment remedy as a request for a permanent injunction. The court considered the factors iterated by the Restatement (Second) of Torts for application to requests for injunctions against trespass. Cayuga X, 1999 U.S Dist. LEXIS 10579, at *62-63. The District Court did so because, as noted in Imperial Irrigation, "an equitable analysis is appropriate before issuing any final orders other than for monetary damages." 799 F.Supp. at 1068 (quoted in Cayuga X, 1999 U.S. Dist LEXIS 10579, at *62) (emphasis added).

After considering the interest to be protected, the relative adequacy of various remedies, delay, misconduct, and relative hardship, the interests of third parties, and the practicability of an injunction, see Restatement (Second) of Torts § 936(1) (a)-(g), the District Court granted the defendants' motion to preclude ejectment as a remedy.3 Cayuga X, 1999 U.S. Dist LEXIS 10579, at *99. The court then dismissed those defendants against whom the plaintiffs had sought ejectment and no other remedies. Id. Those defendants against whom the plaintiffs had sought other remedies remained in the case. While the majority states that the District Court "monetized" the remedy, Maj. Op. at 275, as I understand the term, it is only partially correct.4 Instead, it rejected an ejectment remedy based on equitable considerations, including the remedial adequacy of money damages, and allowed the plaintiffs to pursue other remedies.5

II. Application of Laches to the Plaintiffs' Claims for Damages

The issue before this court—"the application of a nonstatutory time hmitation in *283 an action for damages"—has not been addressed by the Supreme Court. See City of Sherrill, 125 S.Ct. at 1494 n. 14 (citing Oneida II, 470 U.S. at 244, 105 S.Ct. 12456). To extend this defense to the Tribe's claim for money damages would be "novel indeed." Oneida II, 470 U.S. at 244 n.16, 105 S.Ct. 1245. The majority argues that, "[o]ne of the few incontestable propositions about this unusually complex and confusing area of law is that doctrines and categorizations applicable in other areas do not translate neatly to these claims."7 Maj. Op. at 276 Such complexity is best addressed by relying on relevant precedent and established principles. Congressional action and centuries of precedent with regard to both Indian land claims and foundational distinctions between rights and remedies, coercive relief and damages, and legal claims and equitable relief, should guide the attempt to resolve this historic dispute.

The plaintiffs here seek relief under two theories, ejectment and trespass. As noted, all claims were brought prior to expiration of the relevant statute of limitations. Historically, both ejectment and trespass are actions at law. Dan B. Dobbs, Law of Remedies §§ 5.1, 5.10(1) (2d ed.1993). Unless a party's delay amounts to either an estoppel or waiver, it does not bar a party's access to remedies at law. Id. at § 2.4(4) ("When laches does not amount to estoppel or waiver, it does not ordinarily bar legal claims, only equitable remedies."). Furthermore, laches is not a complete defense to a claim "Because laches is based on prejudice to the defendant, the bar it raises should be no broader than the prejudice shown." Id.

A. Ejectment and Ladles

An action for ejectment generally seeks two remedies, restoration of possession and damages equivalent to the fair market rent for the period the plaintiff was wrongfully out of possession, sometimes referred to as mesne profits. Id. at § 5.10(1) Reinstatement of one's possessory interest in land is typically the most salient of the two remedies. It is hardly surprising, therefore, that some jurisdictions have chosen to make the doctrine of laches available to defendants in ejectment actions where a coercive remedy is sought See Maj. Op. at 275-76 n. 5. New York courts have held, for example, that "[a]n equitable defense is good in ejectment." Dixey v. Dixey, 196 A.D. 352, 354, 187 N.Y.S. 879 (2d Dept. 1921) (citing Phillips v. Gorham, 17 N.Y. 270 (1858)).

The defense of laches pertains only to the remedy sought, not the cause of action itself. The elements of laches are both delay and prejudice City of Sherrill, 125 S.Ct. at 1491 ("laches, a doctrine focused on one side's inaction and the other's legitimate reliance, may bar long-dormant claims for equitable relief'), Kansas v. Colorado, 514 U.S. 673, 687, 115 S.Ct. 1733, 131 L.Ed.2d 759 (1995) ("The defense of laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the "284 party asserting the defense." (internal quotations omitted)); Penn Mut. Life Ins. Co. v. City of Austin, 168 U.S. 685, 698, 18 S.Ct. 223, 42 S.Ct. 626 (1898). ("The reason upon which the rule [of ladies] is based is not alone the lapse of time during which the neglect to enforce the right has existed, but the changes of condition which may have arisen during the period in which there has been neglect"); see also Fred F. Lawrence, A aeatise on the Substantive Law of Equity Jurisprudence, § 1037 (1929) ("Being, like all other equitable relief, purely protective, it is not to be inferred from delay alone, but rather from the consequences which may under the circumstances flow from it.") The nature of the remedy sought will necessarily change the court's analysis of the effect of delay "[E]quity may, in the exercise of its own inherent powers, refuse relief where it is sought after undue and unexplained delay, and when injustice would be done, in the particular case, by granting the relief asked." Abraham v. Oithvay, 158 U.S. 416, 420, 15 S.Ct. 894, 39 S.Ct. 1036 (1895) (emphasis added) "[L]aches is not, like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced." Gallihe" v. Cadwell, 145 U.S. 368, 373, 12 S.Ct. 873, 36 S.Ct. 738 (1892). Thus, the application of the equitable defense of laches is, by its nature and function, confined by the particular prejudice caused by the remedy.

However, where a plaintiff seeks ejectment damages, rather than restoration of a possession interest, application of the doctrine of laches to such a money damage claim is rarely if ever justified. Even where reinstatement of possession is disruptive, attendant damage claims are not similarly disruptive It is axiomatic that a menu of remedies, some mutually exclusive, may be associated with the same right and that, in different factual situations, different remedies will be appropriate. Here, the plaintiffs' claims for possession and for fair rental value damages should be treated separately. While the element of delay found in connection with application of the defense to the possession remedy is equally present with regard to the money damages remedy, there is no corresponding prejudice to the defendant New York State ("State") in connection with an award of money damages. The bar of laches does not rise high enough to bar the money judgment here See Dobbs, snpra, § 2.4(4).

Determining that the coercive remedy of restoration of possession is barred by laches requires a fact-intensive inquiry regarding the disruptiveness of that remedy In City of Sherrill, for example, the Court found that the defendants in that case had "justifiable expectations" which were "grounded in two centuries of New York's exercise of regulatory jurisdiction." 125 S.Ct. at 1490-91. The Supreme Court held that the remedy sought by the Oneida Indian Nation—the reassertion of sovereignty resulting in" a checkerboard of state and tribal jurisdiction"—was disruptive to justifiable expectations regarding the state, and therefore local, regulatory authority over territory. Id. at 1482 The City of Sherrill Court concluded, in the face of two hundred years of sovereign control by the State of New York and its municipalities, that the reassertion of tribal sovereignty would be "disruptive." Id. at 1491.

City of Sherrill would thus support a finding that restoration of possession, following two hundred years of unlawful possession, is a sufficiently disruptive remedy that it may satisfy the prejudice element of the laches defense However, the proof involved with the remedy of damages will be radically different than that involved with a claim for an injunction, specific *285 performance, or equitable repossession in real property. Indeed, there does not appear to be anything in the money damages award in this case that would be disruptive.

The majority concludes that the plaintiffs' "possessory land claims" are barred in their entirety by City of Sherrill and reasons that the plaintiffs, having been denied the right to possession, cannot prove the elements of their claims for money damages However, current possession is not an element of a legal claim for ejectment A legal claim for ejectment consists of the following elements. "[p]laintiffs are out of possession, the defendants are in possession, allegedly wrongfully, and the plaintiffs claim damages because of the allegedly wrongful possession." Oneida Indian Nation of N.Y. v. County of Oneida, N.Y., 414 U.S. 661, 683, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) ("Oneida I") (citing Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed.1218 (1914)). Making out this claim cannot depend on the plaintiffs' ability to obtain the right to future possession, whether legal or constructive, as such requirement would make the claim circular Instead, the only necessary element in this regard is that the plaintiffs are wrongfully out of possession, which element the District Court here found. Cayuga III, 730 F.Supp. at 493. The inability to obtain the coercive remedy of possession, as a result of the court's exercise of discretion in the same case, should not bar an ejectment claim for money damages.

B. Trespass

While the majority does not appear to apply the laches defense to a claim for trespass damages, it nevertheless dismisses the plaintiffs' trespass claim on the basis that it is derivative of the ejectment claim and requires proof of possession. The fact that "possession" is an element of a claim for trespass does not require dismissal of the action, however The trespass claim is not predicated upon the plaintiffs' possessory claim, nor is there any relationship between the two claims that necessitates dismissal of the trespass claim Indeed, the plaintiffs may be able to prove the right to possession.8 while being unable to obtain a coercive remedy that would restore them in the future to physical possession.

The majority's contention that the plaintiffs cannot make out their claim for damages because their claim for coercive relief fails treats the special defense of lathes as if it were in the nature of a statute of repose. However, nowhere in City of Sherrill is the "right" of possession addressed, the Court writes always about the "remedy" of possession See, e.g., City of Sherrill, 125 S.Ct. at 1489. Courts have discretion to apply laches to deny a party some or all remedies. See supra at 283-84 However, the defense of laches does not apply to prevent a party from establishing an element of its cause of action. See Felix v. Patrick, 145 U.S. 317, 325, 12 S.Ct. 862, 36 S.Ct. 719 (1892) (discussed in City of Sheroll, 125 S.Ct. at 1491-92). Perhaps if laches were a doctrine akin to a statute of repose, such that, first, it applied to a legal claim and, second, it vitiated the claim, the majority's analysis that claims involving the right to possess are barred by laches because laches bars the remedy of possession might be persuasive. See generally P. Stolz Family P'ship v. Dawn, 355 F.3d 92, 102 (2d Cir.2004) (discussing difference between statutes of repose, which define and limit rights, and statutes of limitations, which "bear on available *286 remedies"). Nothing in the case law concerning laches, however, supports such an analysis.

C. United States as Plaintiff

The United States is a plaintiff in this case. "The principle that the United States are not . . . barred by any laches of their officers, however gross, in a suit brought by them as a sovereign Government to enforce a public right, or to assert a public interest, is established past all controversy or doubt" United States v. Beebe, 127 U.S. 338, 344, 8 S.Ct. 1083, 32 S.Ct. 121 (1888) (quoted in Alaska Dep't of Envtl. Conservation v. EPA., 540 U.S. 461, 514, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (Kennedy, J., dissenting)); see also United States v. Suminerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 84 S.Ct. 1283 (1940). In the instant case, the United States pursues a right created by a federal statute and proceeds in its sovereign capacity and, as such, is not subject to a laches defense. Suininerlin, 310 U.S. at 417, 60 S.Ct. 1019, c.f., United States v. California, 507 U.S. 746, 757-58, 113 S.Ct. 1784, 123 L.Ed.2d 528 (1993). That the United States acts both on its own behalf as well as that of the Cayugas does not affect this principle for "it is also settled that state statutes of limitation neither bind nor have any application to the United States, when suing to enforce a public right or to protect interests of its Indian wards." United States v. Minnesota, 270 U.S. 181, 196, 46 S.Ct. 298, 70 S.Ct. 539 (1926); see also Nevada v. United States, 463 U.S. 110, 141-42, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983). Board of County Comm'rs of Jackson County v. United States, 308 U.S. 343, 350-51, 60 S.Ct. 285, 84 S.Ct. 313 (1939).

The majority explains its application of the defense of laches to claims asserted by the United States by suggesting that the doctrine that the United States is not subject to the defense of laches "does not seem to be a per se" rule. See Maj. OOp. at 278. For this point, it relies upon Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 S.Ct. 838 (1943). However, that case is distinguishable from the instant one in two important respects, both of which exclude this case from the limited holding reached in Clearfield Trust.

First, the Court in Clearfield mist limited its application of non-statutory time bars to those claims brought by the United States that were not subject to any statutory time bar Id. at 367, 63 S.Ct. 573 ("In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards."). The claims in this case are subject to a statutory time bar See 28 U.S.C. § 2415; see also supra at 280-81. As Congress has already defined the applicable time bar, Clearfield Dust supports the conclusion that this court should not reach the question of whether it ought to fashion a time-bar, whether from state law or federal common law. See id. at 367, 63 S.Ct. 573, see also Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 95, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981) ("the federal lawmaking power is vested in the legislative, not the judicial, branch of government, therefore federal common law is `subject to the paramount authority of Congress.") New Jersey v. New York, 283 U.S. 336, 348, 51 S.Ct. 478, 75 S.Ct. 1104 (1931)", Westnau Land Corp. v. United States Small Bus. Admin., 1 F.3d 112, 117 (2d Cir. 1993) ("[T]he acknowledged federal interest in the `rights of the United States arising under nationwide federal programs,' United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979), should be determined by application of the statutory rule provided by Congress.").

*287 Second, the Clearfield Trust Court limited the application of laches to those claims deriving not from the sovereign authority and rights of the United States but, instead, relating to the actions of the United States with respect to business and commerce. Clearfield Dust, 318 U.S. at 369, 63 S.Ct. 573. ("The United States as drawee of commercial paper stands in no different light than any other drawee."), see also Franconia Assocs. v. United States, 536 U.S. 129, 141, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002) (citing Clearfield Trust for the proposition that "[o]nce the United States waives its immunity and does business with its citizens, it does so much as a party never cloaked with immunity"); Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 607, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000) ("When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." (internal quotation marks omitted)). In the instant case, the United States is not a commercial actor. Here, it acts both "to enforce a public right [and] to protect interests of its Indian wards." United States v. Minnesota, 270 U.S. at 196, 46 S.Ct. 298. It is clear, then, that the United States's claims in this case, both on its own behalf and as trustee to the Tribe, are not barred by laches.

After relying on Clearfield Trust to open the door for application of laches to claims by the United States, the majority then finds that the defense is appropriate in the instant case. In doing so, it relies on a Seventh Circuit case for the proposition that three Supreme Court cases support the application of laches in cases such as this one. United States v. Admin. Enters., Inc., 46 F.3d 670, 673 (7th Cir.1995) (citing Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 373, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60-61, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).

However, neither Administrative Enterprises, nor the cases cited therein, support the application of laches to the United States in the instant case Of the three cases cited by Administrative Enterprises, only one specifically addresses the applicability of a delay-based defense like laches in a suit brought by the United States.9 Occidental Life, 432 U.S. at 373, 97 S.Ct. 2447. The Occidental Life Court declined to allow delay to bar a claim by the United States. Id. To the extent that it "refuse[d] to shut the door completely to the invocation of laches or estoppel," Administrative Enterprises, Inc., 46 F.3d at 673, it did so, in dicta, only where a "private plaintiffs unexcused conduct of a particular case" made limitations on relief specifically backpay, appropriate. Occidental Life, 432 U.S. at 373, 97 S.Ct. 2447 Occidental Life, thus, differentiates between claims and remedies, and unexcused delay by private plaintiffs and the United States Id. It does not support application of laches here, where the majority applies the defense *288 to bar the claim itself, rather than a specific remedy for the claim.10

These cases cannot support the proposition that this Court has the authority to craft a federal common law defense of laches against an Indian land claim sought by the United States. Indeed, Administrative Enterprises "three main possibilities for when laches might apply against the United States," Maj. Op. at 279, are not present in this case. With regard to Administrative Enterprises first "possibility," egregious delay, while two hundred years is surely a significant length of time, the majority fails to consider the nature of that delay and to what extent it may be excused With regard to Administrative Enterprises' second "possibility," the absence of an applicable statute of limitations, here Congress did enact a statute of limitations applicable to the plaintiffs' claims for damages. 28 U.S.C. § 2415(a).11 With regard to Administrative Enterprises third "possibility," situations where the United States pursues a "private" interest, the Supreme Court has found that, insofar as it acts on behalf of Indian tribes, the United States acts to protect a public interest, entirely dissimilar from the private interest served where the United States pursues an action based on its purely commercial endeavors. See United States v. Minnesota, 270 U.S. 181, 196, 46 S.Ct. 298, 70 S.Ct. 539 (1926) (describing United States' role in serving public interest by protecting "interests of its Indian wards."). Indeed, it is in its role as a sovereign that the United States participates in this case Id. at 194, 46 S.Ct. 298 (United States' interest in suit in which it represents Indians' interests as trustee is based in its own sovereignty) Thus, even if Administrative Enterprises were persuasive precedent, this case presents none of its suggested possible situations justifying use of laches against the United States.

III. The Import of City of Sherrill

The majority sees "no reason why the equitable principles identified by the Supreme Court in City of Sherrill should not apply to this case, whether or not it could be technically classified as an action at law." Maj. Op. at 276. However, the clear language of City of Sherrill confines its holding to the use of laches to bar certain relief, not to bar a claim or all remedies:

The City of Sherrill opinion is not support for the application of the equitable defense of laches as a bar to money damages in this case.12

The City of Sherrill Court's analysis, which underpins its holding, is framed by the nature of the equitable remedy that the Oneida Indian Nation sought there See 125 S.Ct. at 1488 ("OIN sought equitable relief"); id. at 1489 ("OIN seeks declaratory and injunctive relief"); id. at 1491 ("This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and [evidence of prejudice] . . . preclude OIN from gaining the disruptive remedy it now seeks."); id. at 1494 ("long delay in seeking equitable relief'); id. at 1494 n. 14 ("specific relief"). This language makes clear that the City of Sherrill Court addresses laches in the context of the specific equitable relief sought in that case. Further, it repeatedly notes the difference between a right and a remedy. As the City of Sherrill Court notes, the question of right is "very different" from the question of remedy Id. at 1489 (quoting Dan B. Dobbs, Law of Remedies § 1.2 (1st ed. 1973)). The City of Sherrill Court also quotes with approval a Tenth Circuit case for the principle that "the distinction between a claim or substantive right and a remedy is fundamental." Id. at 1489 (quoting Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1467 (10th Cir. 1987) As if to emphasize this point, and its importance to the opinion, the City of Sherrill Court also quotes, with approval, the district court in Oneida Indian Nation of New York v. County of Oneida on this distinction between right and remedy. "[There is a]'sharp distinction between the existence of a federal common law right to Indian homelands,' a right this Court recognized in Oneida II,' and how to vindicate that right.'" City of Sherrill, 125 S.Ct. at 1488 (quoting Oneida Indian Nation of N.Y. County of Oneida, 199 F.R.D 61, 90 (N.D.N.Y.2000) (emphasis in original).

Further, the Supreme Court in City of Sherrill addresses at length an Indian land claim case, Felix v. Patrick, 145 U.S. 317, 12 S.Ct. 862, 36 S.Ct. 719 (1892) 125 S.Ct. at 1491-92. While the Felix Court applied laches to bar the equitable remedy of a constructive trust over land conveyed by the plaintiffs Indian ancestor in violation of a statutory restriction, the Court noted, in dicta, that a money damages award would be appropriate Felix, 145 U.S. at 334, 12 S.Ct. 862. While the law demanded a measure of money damages, the delay and prejudice due to changed circumstances over thirty years supported the application of the doctrine of laches to "290 the equitable remedy of constructive trust Id. at 333-34, 12 S.Ct. 862, see City of Sherrill, 125 S.Ct. at 1491-92.

Finally, the City of Sherrill Court expressly noted that, "the question of damages for the Tribe's ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II." 125 S.Ct. at 1494. While this statement is not dispositive of whether laches would apply here to bar a money damage award, the Court in City of Sherrill did reiterate its observation in Oneida II that "application of a nonstatutoiy time limitation in an action for damages would be `novel.'" Id. at 1494 n. 14. (quoting Oneida II, 470 U.S. at 244, 105 S.Ct. 1245). In contrast, it noted that "no similar novelty exists when the specific relief OIN now seeks would project redress for the Tribe into the present and future." Id. (emphasis added). In light of the clear language and the analysis in City of Sherrill, the conclusion that City of Sherrill limits the application of the equitable defense of laches to the award of forward-looking, disruptive equitable relief is compelling.13

Further, even assuming laches could apply to the money damages award in this case, there is nothing in the record before us to support a finding of the disruptive nature of the monetaiy award The City of Sherrill decision certainly supports affirming the District Court's denial of repossession as an equitable remedy, based on the District Court's findings that the equitable considerations involved in the case did not permit it. See Cayuga X, 1999 U.S. Dist LEXIS 10579, at *74-*99.14 However, there is no basis to support such a finding on the prejudice element with regard to the award of money damages as a remedy in this case.

IV. Conclusion

While City of Sherrill may have "dramatically altered the legal landscape" of Indian land claims, Maj. Op at 273, it does not reach as far as the majority reads it. City of Sherrill holds that laches can bar a tribe from obtaining the disruptive remedy of re-assertion of tribal sovereignty Furthermore, the case supports the proposition that the nature of forward-looking, disruptive remedies generally will serve as equitable considerations that can bar such equitable remedies as repossession, even against the United States An award of money damages is not an equitable remedy, nor is it forward-looking or disruptive in the way dispossession inherently is. Nothing in City of Sherrill suggests a total bar on the ability of Indian tribes to obtain damages for past wrongs where Congress has explicitly provided for it.

City of Sherrill serves as strong support to affirm the District Court's refusal to award possession to the plaintiffs, and I join in the judgment to that extent However, *291 I respectfully dissent from that part of the majority opinion which dismisses the Tribe's claim for money damages While there remain issues as to the nature or amount of the money damages awarded, I cannot join the majority in reading City of Sherrill to bar all remedies.

While I do not join entirely in the majority's resolution of this case, I wholeheartedly concur — in its comments concerning Judge McCum's tireless and thoughtful attention to this complex and challenging case for over two decades.

All Citations

413 F.3d 266

Attorneys and Law Firms

*557 Boothby Yingst, Washington, DC (Lee Boothby, of counsel), Office of Robert Epstein, Rochester, NY (Robert Epstein, of counsel), for the plaintiffs.

Hon. Eliot L. Spitzer, Attorney General of the State of New York, Albany, NY (Assistant Attorneys General, Howard L. Zwickel, James B. McGowan, of counsel), for state defendants and cross-defendants.

O'Hara & O'Connell, Syracuse, NY (Dennis G. O'Hara, James P Evans, of counsel), for East Syracuse-Minoa defendants and cross-claimants.

Costello Cooney & Fearon, LLP, Syracuse, NY (Donald L. Nicholas, of counsel), for defendant The Franciscan Academy (Sisters of the Third Franciscan Order).

Nixon Peabody, LLP, Rochester, NY (David M. Schraver, of counsel), for defendant Greater Rochester Community of Churches (formerly known as Genesee Ecumenical Ministries).

Tobin and Dempf, Albany, NY (Michael L. Costello, of counsel), for defendants Catholic Charities of the Diocese of Albany, and other defendants, and intervenor-defendants John Calareso and Thomas Quaresima.

Law Office of Jacqueline Stover (Jacqueline Stover, of Counsel) New York, Bishop Robert Sanders, Buffalo, NY, for defendant Refuge Temple of Christ.

Westchester Community Opportunity Program, Inc., Elmsford, NY (Susan Gibney, of counsel), Bozeman & Trott, LLP, Mount Vernon, NY (Bruce L. Bozeman, of counsel), St. Peter's Community Outreach, c/o Mr Paul Tumley, Peekskill, NY, for defendant St. Peter's Day Care.

Blumberg, Cherkoss, Fitz Gibbons & Blumberg, Amityville, NY (H Lee Blumberg, of counsel), for defendant Hollywood Baptist Church of Christ.

Debbie Friedman or David I. Rosenberg, Commack, NY, for defendant Suffolk Association for Jewish Educational Services (formerly known as Suffolk Association of Jewish Schools).

Greenberg, Wanderman & Fromson, Spring Valley, NY (Stephen M. Fromson, of counsel), for defendant and cross— defendant East Ramapo School District

Cammarata & Cronin, LLP, Oyster Bay, NY (James Cammarata, of counsel), for defendant and cross—defendant Oyster Bay—East Norwich County School District.

Shaw & Perelson, L.L.P, Poughkeepsie, NY (Stephen A Perelson, of counsel), for defendant and cross—defendant Dobbs Ferry Union Free School District.

*558 New York City Law Department, Office of the Corporation Counsel, New York City (Naomi Fern Sheiner, of counsel), for defendant and cross—defendant New York City Board of Education.

Ruberti, Guvin & Ferlazzo, PC., Albany, NY (Christopher P Langlois, Jeffrey D. Honeywell, of counsel), for defendant and cross—defendant Albany City School District

MEMORANDUM—DECISION AND ORDER

KAHN, District Judge.

This decision addresses whether it is appropriate to grant motions for reconsideration of the Court's earlier denial of surnmaly judgment motions, when in denying those motions on procedural grounds the Court overlooked the permission it had given the parties to file memoranda of law longer than the page limits established under the Northern District of New York's Local Rules of Practice The Court also addresses the issue of whether it is appropriate to grant reconsideration on the ground that a change in the controlling law is imminent.

Now before the Court are motions for reconsideration of the Court's 30 September 1999 Memorandum—Decision and Order ("Order" (Doc. #259)). In that Order the Court denied New York City Board of Education's ("NYCBOE") motion for summary judgment (Def.'s Notice Mot. (Doc. 181, 27 May 1998D, denied New York State Defendants' ("State") motion for summary judgment (Notice Mot (Doc. 189, 28 May 1998)), denied Plaintiffs' motion and cross motion for summaly judgment (Pls.' Notice Mot. (Doc. 197, 28 May 1998)), denied Intervenor—Defendants Calareso and Quaresima's motion for summary judgment (Notice Mot. Pursuant to Rule 56 (Doc. 208, 29 May 1998)), and denied Plaintiffs' second motion and cross motion for summary judgment (Pls.' Notice Mot and Cross—Mot. Sunup J. Pursuant to Rule 56 (Doc. 225, 29 May 1998)). State Defendants have timely submitted a motion for reconsideration. (see Notice Mot. (Doc. 260, 7 Oct. 1999)), as hay be Defendant NYCBOE (see Notice Mot (Doc. 263, 8 Oct. 1999)) and the Plaintiffs (see Pls.' Notice Mot. (Doc. 265, 12 Oct. 1999)).

I. Standard of Review for Motions for Reconsideration

Motions for reconsideration proceed in the Northern District of New York under Local Rule 7.1(g), unless otherwise governed by Fed.R.Civ.P. 60. The "clearly erroneous" standard of review applies to motions for reconsideration The moving party must "point to controlling decisions or data that the court overlooked— matters, in other words, that might reasonably be expected to alter the conclusion reached by the court" Shrader v. CSX Tramp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (Calabresi, J.). Generally, the prevailing rule in the Northern District "recognizes only three possible grounds upon which motions for reconsideration may be granted, they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C—TC Pth Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y.1995) (McAvoy, C.J.).

In the present case, Movants do not contend that the first ground, an intervening change in controlling law, applies, although a number of parties in this action have pointed out that a substantial change in the controlling law may well be imminent. The Movants are not contending that the second ground, the availability of new evidence not previously available, applies Movants are instead arguing principally on the basis of the third ground, that their motions for reconsideration should be granted in order to correct a clear error of law or prevent a manifest injustice.

This is a demanding standard.

Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (Friendly, J.) (citations omitted) (quoting White Higgins, 116 F.2d 312, 317 (1st Cir.1940), and Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964) (Friendly, 3.)). A simple difference of *559 opinion, no matter how deep it runs, will not warrant reconsideration. "[A]ny litigant considering bringing a motion for reconsideration must evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." In re C-TC 9th Ave. Partnership, 182 B.R. at 3.

II. Discussion

A New York State Defendants' and New York City Board of Education's Motions for Reconsideration

The Court did not reach the substance of the issues raised in the State's and the NYCBOE's motions because it found that the moving and nonmoving parties were not in compliance with the Local Rules pertaining to motion practice—specifically, that those parties had exceeded the page limits mandated for memoranda of law. (See Order at 3-5.) In moving for reconsideration, the State and the NYCBOE have pointed out that the Court had previously granted authorization for all extensions of the page limits that were exceeded in submissions to the Court with respect to their motions. (See State's Affirmation at 1-2, and Exs. 1, 2 (Doc. 261, 7 Oct. 1999); State Defs.' Mem.Law.Supp.Mot.Recoils. at 2 (Doc 262, 7 Oct. 1999), NYCBOE's Notice Mot, Decl. Naomi Sheiner Supp.Def.N.Y.City Bd.Educ.'s Mot Recoils. at 2 ¶¶ 4-5, and Exs. A, B, C (Doc. 263, 8 Oct. 1999); Mem.Law of Def N.Y. City Bd.Educ Supp MotRecons. at 1— 2 (Doc. 264, 8 Oct. 1999).) The Court has reviewed the docket report, and agrees with the State and NYCBOE Movants that it overlooked the authorizations it had given the parties for over-length submissions The Court gladly acknowledges that the parties and counsel who made those submissions were blameless, and conducted themselves in a manner wholly consistent with the orders of this Court The Court's mistake in overlooking the page-length extensions was an administrative error, attributable in part to a turnover in Court staff shortly before consideration of the motions Inexperience collided with the extremely lengthy docket report in this (now thirteen years old) case, the individual reviewing the report was unable to find the authorizations for extra pages, and informed the Court that a number of submissions were not in compliance with Northern District motion practice. The Court apologizes to all parties and counsel It is aware of the large number of litigants that have been embroiled in this action for many years, and regrets that it unintentionally imposed this additional delay on the resolution of this case.

The Court finds that the bases for its denial of the State's and the NYCBOE's motions were clearly erroneous, because of its oversight of the parties' earlier requests pertaining to those motions. There can be no doubt under the precedents discussed supra pp. 558-59, section I, that the facts at hand provide ample and well-founded bases for reconsidering the previous decisions to deny those motions on procedural grounds The Court therefore GRANTS the State's and the NYCBOE's motions for reconsideration, VACATES its Order insofar as it denied their motions for dismissal or summary judgment, and orders those motions REINSTATED for consideration of their substance Because its administrative error alone was sufficient basis for the reconsideration of its earlier decision, the Court need not address the other reasons advanced for reconsideration, and reaches no conclusions regarding their merits.

B. Plaintiffs' Motion for Reconsideration

Plaintiffs move for reconsideration of the Court's denial of their "member item-grant" motion and cross-motion for summary judgment or partial summary judgment (Doc. 197), and "libraly and software state aid" motion and cross motion for summary judgment or partial summary *560 judgment (Doc. 225), on the grounds that the Court's decision

(Pls.' Notice Mot. at 1-2.) Plaintiffs' attorney points out that the Court "grant[ed] P]laintiffs leave to file an enlarged (to 50 pages) memorandum in opposition to [D]efendant New York City Board of Education and a similar enlarged memorandum regarding opposition to the State [D]efendants's [sic motion." (Decl. Lee Boothby Supp. Pls.' Mot.Recons at 1 (Doc. 266, 12 Oct. 1999) (citing Doc. 162 at 1, 7 April 1998).)

The grants of enlargement that Plaintiffs and their counsel point out are irrelevant to their motion for reconsideration of the Court's denial of their two motions/cross-motions, because those grants applied to memoranda responding to Defendants' motions (as Plaintiffs' counsel was clearly aware; see quotation from counsel's Declaration supra, in the final sentence of the previous paragraph) Those memoranda (Pls.' Mem.Law Opp'n to Def. N.Y. City. Bd. Educ.'s Mot Summ.J. (Doc. 187, 27 May 1998) (41 pp.), and Pls.' Mem Law Opp'n to State Defs `Mot Summ.J. and to Dismiss Certain Claims (Doc. 192, 28 May 1998) (42 pp.)) addressed only the Defendants' motions to which their titles referred, they did not address Plaintiffs' motions for which Plaintiffs now request reconsideration

Despite the focus of Plaintiffs' arguments for reconsideration on the issue of the granting of enlargements of page limitations, none of the memoranda submitted pursuant to Plaintiffs' summary judgment motions exceeded the standard page limits under L.R. 7.1(a)1 and 7.1(b)1(C),1 and the Court did not fail or refuse to consider any of those memoranda Indeed, the Court's Order denying the various summary judgment motions made no mention of the length of memoranda in the sections concerning Plaintiffs' motions. (See Order at 6-7, 8-9.) Accordingly, Plaintiffs' arguments for reconsideration are wholly off-point, and unavailing.

Nevertheless, the Court has taken note of the numerous communications from various parties in this action regarding an imminent Supreme Court decision that is likely to have a broad, substantial effect on the Constitutional law of the separation of church and state This is discussed in greater detail infra, pp 561, section III It will suffice here to say that, just as an intervening change in controlling law is a proper ground for reconsideration of a court's decision, see In re C-TC 9th Ave. Partnership, 182 B.R at 3, it is within this Court's discretion to recognize that an imminent change in controlling law may "reasonably be expected to alter the conclusion reached by the [C]ourt," Shradei; 70 F.3d at 257— thereby requiring reconsideration of its recent decisions, or a resubmission of essentially the same motions by the parties —and that, therefore, the interests of justice require that the *561 Court forthwith reconsider its disposition of the motions, and revive them for further review in the light of the forthcoming changes in the controlling law. The Court therefore GRANTS Plaintiffs' motion for reconsideration, VACATES its Order insofar as it denied their motions/cross-motions for summary judgment or partial summary judgment, and orders those motions REINSTATED for consideration.

C. Denial of Intervenor—Defendants' Motion for SUMInaly Judgment

Intervenor-Defendants Mr John Calareso and Mr Thomas Quaresima have not moved for reconsideration of the Court's denial of their motion2 for summary judgment (See Order at 7-8.) Nonetheless, the Court of its own initiative, for the reasons discussed supra pp. 560-61, section II B, finds that the interests of justice require that the Court reconsider its disposition of this motion, and revive it for further review in the light what are in all likelihood imminently forthcoming changes in the controlling law. The Court therefore sua sponte GRANTS reconsideration of its denial of Intervenor-Defendants' motion for summary judgment, VACATES its Order insofar as it denied that motion, and orders the motion REINSTATED for consideration

III. Pending Supreme Court Decision

The Supreme Court heard oral argument on 1 December 1999 in Mitchell v. Helms. See U.S. S.Ct. Official Tr. of oral argument, Mitchell v. Helms, No. 98-1648, 1999 WI, 1134744 (U.S Dec 1, 1999); see also Helms v. Picard, 151 F.3d 347 (5th Cir. 1998), cert. Granted sub nom. Mitchell v. Helms, 527 U.S. 1002, 119 S.Ct. 2336, 144 L.Ed.2d 234 (1999). The central issues in that case—as a number of the present parties have asserted to this Court on several occasions—are very nearly identical to the issues before this Court in the present case (indeed, Mr. Boothby, Plaintiffs' lead attorney in this case, is also among the principal attorneys in Mitchell, and participated in that oral argument at the Supreme Court bar last December) The Supreme Court's much-anticipated decision in Mitchell is thought likely to be issued toward the end of that Court's current term, later this month It is expected to resolve a number of highly contentious issues in the Constitutional law of the separation of church and state This Court believes that it would not be productive to issue a decision on the reinstated summary judgment motions now before it in this case, when an important decision by the Supreme Court is imminent, and could well require profound changes in this Court's adjudication of the issues presented in those motions See Shrader; 70 F.3d at 257 Accordingly, the Court will STAY consideration of these motions until the Supreme Court issues its decision in Mitchell.

CONCLUSION

For the reasons stated above, it is hereby:

ORDERED that the New York State Defendants' motion for reconsideration is GRANTED; and

IT IS FURTHER ORDERED that Defendant New York City Board of Education's Motion for reconsideration is GRANTED; and

IT IS FURTHER ORDERED that Plaintiffs' motion for reconsideration is GRANTED; and

IT IS FURTHER ORDERED that reconsideration of the Court's denial of Intervenor-Defendants Calareso and Quaresima's summary judgment motion is GRANTED sua sponte, and

IT IS FURTHER ORDERED that the Court's Memorandum-Decision and Order of 30 September 1999 is VACATED, insofar as it denied the parties' motions and cross-motions for dismissal, or for summary judgment in whole or in part, and

*562 IT IS FURTHER ORDERED that the parties' motions and cross-motions are REINSTATED for consideration of their merits, and

IT IS FURTHER ORDERED that consideration of the parties' motions and cross-motions is STAYED pending the Supreme Court's decision in Mitchell v. Helms; and

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Order by regular mail upon the parties to this action.

IT IS SO ORDERED

All Citations

103 F.Supp.2d 555

Attorneys and Law Firms

*1306 Alan W. Kornberg, Paul, Weiss, Rifland, Wharton & Garrison, New York City, for Plaintiff-Appellant.

David F. Kunz, DeGraff, Foy, Holt-Harris, Healey & Kunz, L.L.P., Albany, NY, for Defendant-Appellee

David R. Murphy, Cusick, Hacker &Murphy, L.L.P, Latham, New York City, for Creditor-Appellee.

William A. Nowak, Town Attorney for Town of Colonie, Newtonville, NY, for Creditor-Appellee

Before: NEWMAN, Chief Judge, McLAUGHLIN and CUDAHY,* Circuit Judges.

Opinion

CUDAHY, Circuit Judge:

The debtor, C-TC 9th Avenue Partnership (C-TC), appeals the detennmation, made in the first instance by the bankruptcy court, that C-TC is not a "person" eligible for Chapter 11 relief, and that C-TC filed its Chapter 11 petition in bad faith. C-TC's petition was dismissed by the bankruptcy court, whose decision was affumed by the district court We affirm.

I. Factual Background

C-TC, a general partnership under New York law, was formed in 1988 by Richard Cabral and the Timmons Corporation The purpose of the partnership was to purchase and manage the Cloverleaf Distribution Center (Cloverleaf), a 21-acre plot of open land containing warehouses. C-TC's purchase agreement with Norton Company (Norton), the then-owner of Cloverleaf, included payment *1307 of a $110,000 fee to compensate Norton for canceling a prior purchase agreement The purchase price itself required a $25,000 cash payment upon signing, another $850,000 in cash at closing and a $2,850,000 note secured by a mortgage on the property. The agreement also included a sale-leaseback provision whereby Norton leased and occupied approximately half of the property after the sale.

Prior to closing the sale, Norton executed at C-TC's request an environmental indemnification agreement in which Norton agreed to indemnify C-TC for" any discharges to [Cloverleaf] of hazardous wastes or substances within the meaning of the Comprehensive Environmental Response Compensation and Liability Act of 1980. . . ."

For various reasons, C-TC failed to make any of its required payments. In November, 1988, Norton brought two actions against C-TC. The first alleged that C-TC breached the obligation of the note by failing to make the required cash payments, and the second sought foreclosure of the mortgage on the property because of C-TC's breach of its obligations under the long-term note and mortgage. C-TC counterclaimed in the foreclosure action alleging breach of the purchase agreement and fraud C-TC claimed that the property was not in compliance with applicable zoning and environmental regulations and that Norton had purposely defrauded C-TC by selling the property to it in such a condition. The parties dispute whether there has been any actual environmental damage to the land or any pollution1 In any event, a New York state court severed Norton's foreclosure action from C-TC's counterclaims, and held that $4 million was the maximum C-TC could recover from Norton. The state court also required Norton to post bond in that amount, which it did. In addition, the New York court appointed a referee and orally granted Norton's motion to appoint a receiver On the same day that the court approved the appointment of a receiver, C-TC filed its voluntary Chapter 11 petition in bankruptcy court. This filing automatically stayed the foreclosure action in state court.

Norton sought relief from the automatic stay. These proceedings resulted in the dismissal of C-TC's petition on the grounds that C-TC was ineligible to proceed under Chapter 11 and that C-TC had filed in bad faith. The district court affirmed and C-TC again appealed

II. C-TC's Eligibility under Chapter 11

When C-TC filed its voluntary Chapter 11 petition in bankruptcy court, it listed itself as having only one partner, Timmons Corporation, thereby indicating that Richard Cabral had withdrawn from the partnership. Cabral's withdrawal, and the forced dissolution of the partnership which it precipitated, has become the central issue of the litigation The bankruptcy court dismissed C-TC's petition as a matter of law for the reason that C-TC, as a dissolved partnership, was not eligible for reorganization and could not implement a Chapter 11 reorganization As the bankruptcy court held, 11 U.S.C. § 109(d) places some limitations on the categories of entities eligible for Chapter 11 reorganization. This statute provides that "[o]nly a person that may be a debtor under chapter 7 . . . may be a debtor under chapter 11 of this title"

The bankruptcy court determined that the threshold issue was thus whether C-TC, as a partnership in dissolution, was a "person" within the meaning of the bankruptcy code. The definition of a partnership, which is not defined in the bankruptcy code, is a matter of nonbankruptcy law. See Chicago Title & Div Co. v. 4136 Wilcox Bldg. Corp., 302 U.S. 120, 128-29, 58 S.Ct. 125, 128-29, 82 S.Ct. 147 (1937). In New York a partnership is composed of two or more persons acting as partners. Thus, under New York law, the withdrawal of Richard Cabral, *1308 one of C-TC's two partners, dissolved the partnership. But a dissolved partnership is allowed to "continue [until the winding up of the partnership affairs is completed." N.Y. Partnership Law § 61 (McKinney 1996). This raises the question of the meaning of "continue" In Pastor v. State Tax Comm'n, 115 Ad.2d 144, 146, 495 N.Y.S.2d 515 (N.Y.App.Div.1985), the Appellate Division held that § 61 of the New York Partnership Law operates not to "prolong the life of an otherwise unv `able entity" but only to allow continuation of the partners' liability for debts of the partnership. Based on this interpretation, the bankruptcy court found that "the Debtor's restricted capacity as a partnership in dissolution under New York law is inconsistent with the Debtor's stated objective in Chapter 11 of obtaining a `fresh start'"

C-TC contends that the bankruptcy court disregarded the Supreme Court's insistence that the plain meaning of the Bankruptcy Code be given effect. See Tothb v. Radloff, 501 U.S. 157, 161, 111 S.Ct. 2197, 2199, 115 L.Ed.2d 145 (1991).2 Instead, C-TC argues that the bankruptcy court, relying on In re Fitzgerald Group, 38 B.R. 16 (Bankr.S.D.N.Y.1983), proposed an additional requirement for eligibility under Chapter 11, namely, that the debtor "intend to reorganize" C-TC further argues that the "dissolution" of a partnership is distinguishable from its "termination" in that a partnership in dissolution is still a "person" for purposes of Chapter 11.

Norton, on the other hand, supports the bankruptcy court's reasoning While Norton concedes that a partnership is an eligible person, Norton emphasizes that under New York law a partnership "is an association of two or more persons to cany on as co-owners a business for profit" N.Y. Partnership Law § 10(1) (McKinney 1996). Further, the argument goes, before C-TC filed its bankruptcy petition, one of its two partners had already withdrawn, thereby destroying the partnership Thus, since the bankruptcy code considers "partnerships" but not "partnerships in dissolution" to be eligible as "persons," C-TC is not a "person" and is not eligible. Norton agrees with the bankruptcy court's conclusion that C-TC's petition is inconsistent with the objectives of Chapter 11 In this connection, the Sixth Circuit has held that without a viable business to rehabilitate, Chapter 11 loses its purpose. In re Winshall Settlor's Rust, 758 F.2d 1136, 1137 (6th Cir. 1985).

If the primary purpose of Chapter 11 is to enable businesses to reorganize and emerge from bankruptcy as operating enterprises, and New York partnership law prohibits C-TC from engaging in any business other than liquidation, Chapter 11 reorganization is not available as a course for C-TC to follow. A somewhat analogous case applying New York law, In re Fitzgerald Group, held that

38 B.R at 18. C-TC has pointed out that the only asset involved in In re Fitzgerald was a typewriter (worth $2500) and that this was reason enough to deny a Chapter 11 petition. However, the bankruptcy court did not rely in its decision on the limited assets involved, but rather on the status of the debtor (i.e., as a partnership in dissolution).

The importance under New York law of dissolution as it affects a partnership can be *1309 appreciated when one compares the effect of dissolution on a partnership with the effect of dissolution on a corporation In Cedar Tide Corp. v. Chandler's Cove Inn, Ltd. (In re Cedar Tide Corp.), 859 F.2d 1127, 1128 (2d Cir.1988), this circuit examined the question "whether the federal courts have jurisdiction over a Chapter 11 petition filed by a corporation previously dissolved by New York State for nonpayment of franchise taxes" We held there that, while § 1006(a) of New York Business Corporation Law, (McKinney 1996), limited a dissolved corporation to those activities involved in the winding up of its affairs, the New York Tax Law, § 203-a(7) (McKinney 1996), allowed a dissolved corporation to be reinstated mow pro tunc upon the filing of a certificate indicating that all taxes, penalties, interest and fees had been paid. In re Cedar Tide, 859 F.2d at 1132. The easy reinstatement allowed a New York corporation is not available to a New York partnership. Upon dissolution, the partnership is relieved of its responsibilities, duties and powers except for completing transactions unfinished at dissolution. NY Partnership Law § 66(1)(a) (McKinney 1996). Thus, while a New York corporation in dissolution is entitled to proceed under Chapter 11 since reorganization is possible, a New York partnership in dissolution is not. Such an entity cannot reorganize See also In re Fitzgerald Group, 38 B.R. at 18 (holding that "[t]here can be no opportunity to rehabilitate an entity that, by law, no longer exists except for the purposes of liquidation"). We therefore conclude that a partnership in dissolution is not a "person" eligible to avail itself of reorganization in Chapter 11.

C-TC also argues that, even if reorganization is barred, Chapter 11 expressly allows liquidation Norton contends that this argument has been waived since C-TC failed to raise it in the district court. In fact, Norton points out that C-TC consistently insisted below that its intention was to reorganize. We believe, therefore, that there has been a waiver In any event, while a debtor may conclude Chapter 11 proceedings by liquidating and may even enter them with an intent to liquidate if necessary, there is no reason a debtor should be permitted to enter these proceedings without a possibility of reorganization. C-TC has not claimed that there was (or is) any possibility of reorganization here Hence, although the issue is waived, we believe that it is, in any event, without merit.

III. Bad Faith

After deciding that C-TC was ineligible for reorganization, the bankruptcy court also held that C-TC had filed its Chapter 11 bankruptcy petition in bad faith, and alternatively dismissed it on that ground as well Bankruptcy Judge Stosb erg, the first of the three bankruptcy judges to entertain this case, reserved decision on Norton's motion to dismiss (which was based both on ineligibility and bad faith) while other matters, not relevant here, were being decided. Bankruptcy Judge Edmonds, who succeeded Judge Stosberg, again declined to address the merits of Norton's motion to dismiss, choosing instead to set the issue for determination by Bankruptcy Judge Littlefield Judge Littlefield granted Norton's motion on two grounds. First, he held—along the lines that we have discussed—that as a dissolved partnership C-TC could not, as a matter of law, proceed with a Chapter 11 reorganization plan because, as a dissolved partnership, it was not eligible for reorganization. Second, he found that the circumstances surrounding C-TC's filing indicated a lack of good faith on its part. These circumstances included the fact that C-TC was obviously foreclosed from reorganizing from the date that it filed its petition. In addition, the bankruptcy court found that the "primary characteristic of the Debtor's Chapter 11 case is its longstanding dispute with Norton" and, thus, that the primary function of the petition was to serve as a litigation tactic. This issue of lack of good faith was not addressed by the district court, but we think it appropriate to do so here.

Because "a Chapter 11 filing `may be deemed frivolous if it is clear that on the filing date there was no reasonable likelihood that the debtor intended to reorganize and no reasonable probability that it would eventually emerge from bankruptcy proceedings,'" the bankruptcy court held that C-TC had filed in bad faith 193 B.R. 650, 654(quoting Baker v. Latham Sparrowbush *1310 Assoc. (In re Cohoes Indus. Terminal, Inc.), 931 F.2d 222, 227 (2d Cir.1991)). The bankruptcy court found that the dispute between C-TC and Norton could be fully resolved in a non-bankruptcy forum It also found that Norton's stated opposition to any reorganization plan created an almost insurmountable barrier to the confirmation of any such plan and that C-TC had obtained an automatic stay of the state court proceeding when it filed its petition.3 However, C-TC had let thirteen months elapse after its filing, during which it continued to operate normally while failing to file a Chapter 11 plan or disclosure statement. Id. at 654.

A. Merits of the Bad Faith Claim

When it is clear that, from the date of filing, the debtor has no reasonable probability of emerging from the bankruptcy proceedings and no realistic chance of reorganizing, then the Chapter 11 petition may be frivolous. In re Cohoes Indus Terminal, Inc., 931 F.2d at 227 Further, "an entity may not file a petition for reorganization which is solely designed to attack a judgment collaterally—the debtor must have some intention of reorganizing" Id. at 228. For example, in In re Wally Findlay Galleries (New York), Inc., 36 B.R. 849, 850 (Bankr S.D.N Y.1984), the bankruptcy court dismissed a Chapter 11 case as a bad faith filing after finding that the "petition was filed the same day that judgments on [certain] . . . promissory notes were entered in the state court" Finding that the "debtor filed its petition herein to avoid the consequences of adverse state court decisions while ft continues litigating," and that the "debtor is unable to propose a meaningful plan of reorganization until its litigation . . . is resolved," Id. at 851, the bankruptcy court then found it "evident that the debtor seeks to use this court not to reorganize, but to relitigate. This is an impermissible use of Chapter 11. . . ." Id.

The good faith standard applied to bankruptcy petitions "furthers the balancing process between the interests of debtors and creditors which characterizes so many provisions of the bankruptcy laws and is necessary to legitimize the delay and costs imposed upon parties to a bankruptcy." Little Creek Dev. Co. v. Commonwealth Mortgage Corp. (In re Little Creek Dev. Co.), 779 F.2d 1068, 1071 (5th Cir 1986). Further,

In re Winshall Settlor's Dust, 758 F.2d 1136, 1137 (6th Cir. 1985) A bankruptcy court may dismiss a bad faith filing on an interested party's motion or sua sponte. Here, the Chapter 11 filing was made with no hope of reorganization and at the very moment that the state litigation had taken a turn adverse to C-TC, making mortgage foreclosure imminent

C-TC argues that the bankruptcy court did not follow the factors suggested in the statute for a determination of bad faith 11 U.S.C. § 1112(b) provides in part that a court.

*1311 It is important to note that this list is illustrative, not exhaustive.5 Even so, the bankruptcy court, contrary to C-TC's allegations, did in fact address some of the factors listed in the statute. C-TC argues that "[t]he Bankruptcy Court did not rely on any of the enumerated examples contained in section 1112(b). . . . [T]here is no evidence of continuing loss or diminution of the estate, . . . C-TC has not failed to propose a plan within the time fixed by the Bankruptcy Court, . . . [n]or has there been prejudice to creditors." But the bankruptcy court specifically found that C-TC enjoyed no likelihood of rehabilitation and would be unable to effectuate a plan due to Norton's opposition Of course, the bankruptcy court also found rather dispositively that C-TC was unable to reorganize because it did not qualify as a "person" There was also a finding that C-TC knew that there was no reasonable probability that it would ever emerge from bankruptcy and yet C-TC chose to file the petition anyway Further, the bankruptcy court found that C-TC's main purpose in filing its Chapter 11 petition was to stay the state court proceedings and to relitigate in the bankruptcy forum the matters that had been settled in the state court.

In an analogous case, a federal district court in Kentucky sustained a bankruptcy courts sua sponte dismissal of a Chapter 11 petition for bad faith The district court said that the dismissal should stand if the bankruptcy court's factual determinations were not clearly erroneous. Pleasant Pointe Apartments, Ltd. v. Kentucky Hous. Corp., 139 B.R. 828 (W.D.Ky. 1992). Pleasant Pointe failed to make any payments on its loan from the Kentucky Housing Corporation (KHC). Id. at 830 KHC instituted state proceedings, including a foreclosure action, against Pleasant Pointe. Id. Pleasant Pointe filed its bankruptcy petition just as its prospects in state court deteriorated and immediately before KHC was set to file a motion for summary judgment Id. at 833 n. 6. KHC did not specifically request dismissal based on Pleasant Pointe's bad faith but did ask for "any other relief to which it may appear entitled" Id. at 832 n. 5 The district court held that this prayer for relief, in combination with the pleadings, was sufficient to raise the issue of bad faith and put Pleasant Pointe on notice. Id. The bankruptcy court in Pleasant Pointe considered the following factors as indicative of a bad faith filing.

Id. at 832; see also Phoenix Piccadilly, Ltd. v. Life Ins. Co. of Virginia (In re Phoenix Piccadilly, Ltd.), 849 F.2d 1393, 1394-95 (11th Cir 1988); Little Creek, 779 F.2d at 1072-73. The presence of the Pleasant Pointe factors was adequate evidence of the debtor's impermissible purpose in filing In the case before us, at least the following *1312 factors are present: (1) C-TC's only asset is Cloverleaf, (2) C-TC has few unsecured creditors and their claims are small in relation to Norton's, (3) Cloverleaf is the subject of a foreclosure action as a result of a mortgage in default, (4) C-TC's financial problems involve only a two party dispute with Norton that can be resolved in the pending state court action, (5) the timing of C-TC's filing evidences an Intent to delay and frustrate the legitimate efforts of Norton to enforce its rights, (6) C-TC has not paid its property or other taxes, (7) C-TC has no employees and (8) more than a year has elapsed after filing without further activity Based on these factors, the bankruptcy court did not abuse its discretion in dismissing C-TC's petition for bad faith.

B. C-TC's Procedural Due Process Claims

In addition to its objection on the merits to the bad faith determination, C-TC raises procedural arguments. It contends that it was denied due process of law when the bankruptcy court decided the bad faith issue without a formal hearing The Bankruptcy Code, 11 U.S. C. § 1112(b), provides for the dismissal of a debtor's case for cause "after notice and a hearing" Judge Littlefield decided the bad faith issue at the same time that he considered C-TC's ineligibility to file under Chapter 11 and did so without first conducting a hearing.

C-TC argues that due process mandates the holding of an evidentiary hearing before bad faith can be determined. But the "notice and hearing" required before a debtor's case may be dismissed is further defined by the statute as "mean[ing] after such notice as is appropriate under the particular circumstances, and such opportunity for a hearing as is appropriate under the particular circumstances." 11 U.S.C. § 102(1)(A). These rather nebulous standards must lead to problematic interpretations However, the case law has been helpful in clarifying the standards.

When the record is sufficiently well developed to allow the bankruptcy court to draw the necessary inferences to dismiss a Chapter 11 case for cause, the bankruptcy court may do so. See, e.g., Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 n. 3 (3d Cir.1988). Here Norton first requested, in its cross-motion to dismiss, that C-TC's petition be dismissed on grounds of bad faith. C-TC un opposition to this motion filed a memorandum of law, an affidavit and certain other documents. Thus, before the bankruptcy court decided the issue of bad faith, C-TC was presented with notice of the claim and an opportunity to address it.

C-TC's main argument to discredit Judge Littlefield's decision on bad faith is based on the fact that the first two bankruptcy judges who earlier oversaw the case believed that the issue of bad faith was premature for determination As noted, supra, the bad faith issue was put off until Judge Littlefield received the case Judge Littlefield decided not only the eligibility issue but also the bad faith issue. C-TC correctly points out that a determination of bad faith requires a full examination of all the circumstances of the case, it is a highly factual determination but also one that may sweep broadly. See, e.g., Cohoes Indus. Terminal, 931 F.2d at 227; Little Creek, 779 F. 2d at 1072.

The bankruptcy court engaged in just such a fact-intensive examination and reached conclusions that are not clearly erroneous.6 While C-TC argues that the genuine disputes between C-TC and Norton should have given the lie to any claim of bad faith, the bankruptcy court examined these disputed matters and found them to be emblematic of a dispute limited to only two parties For such two-party disputes, the state court, which has been overseeing the case, is a preferable forum.7

*1313 C-TC's last point is that the bankruptcy court misunderstood the nature of C-TC's claims against Norton and others C-TC argues that it holds many significant unsecured claims—including tax, environmental and building code-related claims. Norton has rebuffed these contentions by showing that no governmental body has agreed with C-TC's assessment of environmental damage, in effect tending to show that many of these alleged debts may be nonexistent. In any event, they are adequately secured by the $4,000,000 bond. Thus we find that the bankruptcy court's election to decide the bad faith issue without a formal evidentiary hearing was within its discretion, the record provided ample evidence on which the court could make such a decision

IV. Conclusion

C-TC and Norton entered into a sale and lease-back arrangement. C-TC ultimately failed to make any of the payments on the purchase price This failure led to years of state court and bankruptcy court litigation. Because we find that C-TC, a dissolved New York partnership, is not a "person" for purposes of Chapter 11 and therefore cannot pursue a filing under that Chapter, we affirm the dismissal below We likewise affirm the dismissal on the alternative ground that C-TC filed its Chapter 11 petition in bad faith

The judgment of the district court is AFFIRIED

All Citations

113 F.3d 1304, 38 Collier Bankr.Cas.2d 115, 30 Bankr.Ct.Dec. 1146, Bankr. L. Rep. P. 77,410

Attorneys and Law Firms

*333 D. Scott Bassinson, Esq., Whiteman Osterman Hanna, Albany, N.Y., for Plaintiffs—Appellants.

Denise A Hartman, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Peter H. Schiff, Acting Solicitor General, Nancy A. Spiegel, Assistant Attorney General, of counsel), Albany, N.Y., for State Defendants—Appellees Daniel J. Stewart, Esq., Dreyer Boyajian LLP, Albany, N.Y., for City Defendants—Appellees. Charles Stephen Ralston, Esq., NAACP Legal Defense and Educational Fund, Inc. (Elaine R. Jones, Director—Counsel, Norman J. Chachkin, David T. Goldberg, Paul K. Sonn, on the brief), New York, N.Y., Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, N.Y., and William Goodman, Center for Constitutional Rights, New York, N.Y., as Amici Curiae in support of Plaintiffs—Appellants.

James B. Tuttle, Esq., Bohl, Della Rocca & Dorfman, PC., for the Police Conference of New York, Inc., Amicus Curiae in support of City Defendants—Appellees.

Before: OAKES and WALKER, Circuit Judges, and GOLDBERG,* Judge.

[AMENDED OPINION]

JOHN M. WALKER, Circuit Judge:

Plaintiffs-appellants, black residents of Oneonta, New York, appeal from the September 9, 1998 judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge) Plaintiffs' claims arise from their interactions with police authorities during an investigation conducted by the New York State and Oneonta Police Departments based on a victim's description of a suspect that consisted primarily of the suspect's race. Plaintiffs asserted claims under 42 U.S.C. § 1983 alleging violations of the Equal Protection Clause and the Fourth Amendment, claims under 42 U.S.C. §§ 1981, 1985(3) and 1986, and other related federal and state causes of action. The district court granted sunmmary judgment for defendants on some of plaintiffs' claims and dismissed others on the pleadings, and the parties stipulated to the discontinuance and dismissal of the remaining claims.

This case bears on the question of the extent to which law enforcement officials may utilize race in their investigation of a crime We hold that under the circumstances of this case, where law enforcement officials possessed a description of a criminal suspect, even though that description consisted primarily of the suspect's race and gender, absent other evidence of discriminatory racial animus, they could act on the basis of that description without "334 violating the Equal Protection Clause. Accordingly, we affirm the dismissal of plaintiffs' § 1983 claims under the Fourteenth Amendment as well as their claims under 42 U.S.C. §§ 1981, 1985(3) and 1986.

Police action is still subject to the constraints of the Fourth Amendment, however, and a description of race and gender alone will rarely provide reasonable suspicion justifying a police search or seizure In this case, certain individual plaintiffs were subjected to seizures by defendant law enforcement officials, and those individuals may proceed with their claims under the Fourth Amendment.

BACKGROUND

I Factual Background

Oneonta, a small town in upstate New York about sixty miles west of Albany, has about 10,000 full-time residents. In addition, some 7,500 students attend and reside at the State University of New York College at Oneonta ("SUCO"). The people in Oneonta are for the most part white. Fewer than three hundred blacks live in the town, and just two percent of the students at SUCO are black.

On September 4, 1992, shortly before 2:00 a.m., someone broke into a house just outside Oneonta and attacked a seventy-seven-year-old woman. The woman told the police who responded to the scene that she could not identify her assailant's face, but that he was wielding a knife, that he was a black man, based on her view of his hand and forearm, and that he was young, because of the speed with which he crossed her room She also told the police that, as they struggled, the suspect had cut himself on the hand with the knife. A police canine unit tracked the assailant's scent from the scene of the crime toward the SUCO campus, but lost the trail after several hundred yards.

The police immediately contacted SUCO and requested a list of its black male students An official at SUCO supplied the list, and the police attempted to locate and question every black male student at SUCO. This endeavor produced no suspects Then, over the next several days, the police conducted a "sweep" of Oneonta, stopping and questioning non-white persons on the streets and inspecting then-hands for cuts. More than two hundred persons were questioned during that period, but no suspect was apprehended. Those persons whose names appeared on the SUCO list and those who were approached and questioned by the police, believing that they had been unlawfully singled out because of their race, decided to seek redress.

II. Procedural History

In early 1993, the SUCO students whose names appeared on the list and other persons questioned during the sweep of Oneonta filed this action in the district court against the City of Oneonta, the State of New York, SUCO, certain SUCO officials, and various police departments and police officers1 Plaintiffs sought certification of two plaintiff classes consisting of the 78 students on the list as Class I, and those persons, whether students or not, stopped and questioned by the police as Class II.

In their amended complaint, plaintiffs asserted, under 42 U.S.C. § 1983, that defendants violated their rights under the Fourth Amendment and the Equal Protection Clause of the United States Constitution by questioning the black SUCO students and by conducting the sweep of Oneonta. Plaintiffs also alleged related claims under 42 U.S.C. §§ 1981, 1985(3) & 1986, and under Title VI, *335 42 U.S.C. § 2000d, and asserted various state law claims Plaintiffs whose names appeared on the list also asserted claims under §§ 1983, 1985(3) and 1986 alleging that certain defendants had violated their rights under the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, by releasing the list to the police

Both sides moved for summary judgment, and defendants moved to dismiss certain claims on the pleadings. On December 13, 1993, ruling from the bench, the district court certified Class I, but refused to certify Class II on the ground that each individual had experienced a separate and factually distinct encounter with the police. As there are no remaining claims arising from the release of the student list, Class I is of no continuing significance in the case.2 The plaintiffs seeking Class II certification, however, proceeded individually.

The district court dismissed one plaintiff's Fourth Amendment claim (because that plaintiff had not detailed the circumstances of his contact with law enforcement) and granted summary judgment for defendants on the remaining Fourth Amendment claims on the ground that the police encounters during the sweep were not seizures The district court dismissed the equal protection claims, with leave to rep lead, on the ground that plaintiffs had not properly pleaded the existence of "a similarly-situated group of non-minority individuals [that] were treated differently by law enforcement officers during the investigation of a crime." The district court granted defendants' motion to dismiss the § 1985(3) and § 1986 claims insofar as they were based on the Fourth Amendment, the Equal Protection Clause, or state law, but denied the motion to dismiss plaintiffs' claims under § 1981 and Title VI The court dismissed some state law claims and allowed others to continue In addition, the district court granted summary judgment on all claims in favor of defendants Redmond and Olsen, Oneonta police officers who had submitted unchallenged affidavits stating that they had not participated in any of the events giving rise to the complaint.3

Both sides moved for reconsideration of various portions of the district court's ruling, and on July 18, 1994, the district court filed a second opinion The district court granted defendants' motion to reconsider its ruling on the § 1981 claims, and dismissed those claims with leave to replead As with the equal protection claims, the district court held that § 1981 claims "require a showing of specific instances . . . where the plaintiffs were singled out for unlawful oppression in contrast to others similarly situated."

Plaintiffs filed a second amended complaint on January 30, 1995. This complaint added twenty-seven new plaintiffs and several new defendants4 and repleaded the federal claims that the district court had dismissed. Defendants again moved to dismiss and for summary judgment, and on January 3, 1996, the district court filed its next opinion. As to the newly added Fourth Amendment claims, the district court dismissed them or granted summary judgment for defendants on every claim except those of plaintiffs Jennings, Quinones, and Plaskett The district court granted summary judgment on all of the new Fourth Amendment claims in favor of defendants Chandler, Farrand, More, Way, Kimball, Grant, and Farrago, all of *336 whom are State Police Officers who had submitted unopposed affidavits indicating that they had had no contact with plaintiffs.5 The district court again rejected the equal protection claims on the ground that plaintiffs had failed to "allege that a similarly situated group of nonminority individuals was treated differently" It dismissed plaintiffs' § 1981 claims for the same reason, denied summary judgment on plaintiffs' § 1983 claims against the City of Oneonta, and granted summary judgment for all defendants on the §§ 1985(3) and 1986 claims.6

Following the decisions of the district court, the parties entered into several stipulations with a view to securing an appealable final judgment. On September 8, 1997, Quinones discontinued his claims against Oneonta Police Officers Donadio, Davis, and Shedlock. All of the plaintiffs except Michael Christian then stipulated to (1) the discontinuance with prejudice of all of the federal claims that the district court had not yet determined in favor of defendants,7 and (2) the dismissal of all of the supplemental state law claims without prejudice, but with an agreement not to reinstate those claims in the Northern District of New York Christian's action was dismissed for failure to prosecute by an order filed on August 13, 1998, and final judgment was entered on September 9, 1998.

The plaintiffs appealed and we issued an opinion on October 26, 1999, affirming the denial of plaintiffs' equal protection challenge, while vacating summary judgment as to certain plaintiffs' Fourth Amendment claims and remanding for further proceedings. See Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999). On December 17, 1999, plaintiffs filed a petition for rehearing and for rehearing in Banc The panel subsequently decided on changes to the opinion In addition to modifying the text of the original opinion in certain respects, this amended opinion, while adhering to the result originally reached on the equal protection claim, changes the result, and thereby grants rehearing, as to certain plaintiffs' Fourth Amendment claims. Upon the filing of this amended opinion, the original opinion is vacated

DISCUSSION

On appeal, plaintiffs raise several contentions of error: first, that the district court improperly dismissed their § 1983 claims under the Equal Protection Clause using an incorrect pleading standard, second, that the district court made the same error in dismissing their § 1981 claims, third, that the district court erroneously dismissed or granted summary judgment against plaintiffs on their § 1983 claims under the Fourth Amendment, and finally, that the district court improperly dismissed their "derivative" claims under §§ 1985(3) and 1986. We affirm the dismissal of plaintiffs' equal protection and § 1981 claims, but we reverse in part the district court's rulings on plaintiffs' claims under the Fourth Amendment. We will discuss the particulars of each of plaintiffs' claims in turn

I. Equal Protection Claims

The Fourteenth Amendment to the United States Constitution declares that "[n]o State shall deny to any *337 person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race. See Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.1999)

There are several ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause. A plaintiff could point to a law or policy that "expressly classifies persons on the basis of race." Id. (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213, 227-29, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). Or, a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 30 L.Ed. 220 (1886). A plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Johnson v. Wing, 178 Fad 611, 615 (2d Cir 1999).

Plaintiffs seek to plead an equal protection violation by the first method enumerated above They contend that defendants utilized an express racial classification by stopping and questioning plaintiffs solely on the basis of their race. Plaintiffs assert that the district court erred in requiring them to plead the existence of a similarly situated group of non-minority individuals that were treated differently in the investigation of a crime

When pleading a violation of the Equal Protection Clause, it is sometimes necessary to allege the existence of a similarly situated group that was treated differently. For example, if a plaintiff seeks to prove selective prosecution on the basis of his race, he "must show that similarly situated individuals of a different race were not prosecuted." United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).

Plaintiffs are correct, however, that it is not necessary to plead the existence of a similarly situated non-minority group when challenging a law or policy that contains an express, racial classification These classifications are subject to strict judicial scrutiny, see Able v. United States, 155 F.3d 628, 631-32 (2d Cir.1998), and strict scrutiny analysis in effect addresses the question of whether people of different races are similarly situated with regard to the law or policy at issue. This does not avail plaintiffs in this case, however, because they have not identified any law or policy that contains an express racial classification.

Plaintiffs do not allege that upon hearing that a violent crime had been committed, the police used an established profile of violent criminals to determine that the suspect must have been black. Nor do they allege that the defendant law enforcement agencies have a regular policy based upon racial stereotypes that all black Oneonta residents be questioned whenever a violent crime is reported In short, plaintiffs' factual premise is not supported by the pleadings, they were not questioned solely on the basis of their race They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime Defendants' policy was race-neutral on its face, their policy was to investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description This description contained not only race, but also gender and age, as well as the possibility of a cut on the hand In acting on the description provided by the victim of the assault—a description that included *338 race as one of several elements—defendants did not engage in a suspect racial classification that would draw strict scrutiny. The description, which originated not with the state but with the victim, was a legitimate classification within which potential suspects might be found.

Plaintiffs cite to cases holding that initiating an investigation of a person based solely upon that person's race violates the Equal Protection Clause In United States v. Avery", 137 F.3d 343 (6th Cir. 1997), the defendant claimed that he was stopped by law enforcement solely on the basis of his race While the court affirmed his conviction, citing other factors utilized by the police in choosing to follow the defendant, the court stated that "[i]f law enforcement . . . takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred." Id. at 355, see also United States v. Scopo, 19 F.3d 777, 786 (2d Cir.1994) (Newman, concurring) (speculating that while pretextual traffic stops based on probable cause are not Fourth Amendment violations, their selective use based on race could violate the Equal Protection clause). Here, the police were not routinely patrolling an airport for possible drug smuggling, as in Avery.8 Instead, it is alleged that they were searching for a particular perpetrator of a violent assault, relying in their search on the victim's description of the perpetrator as a young black man with a cut on his hand. As the police therefore are not alleged to have investigated "based solely upon . . . race, without more," id., plaintiffs have failed to state an actionable claim under the Equal Protection Clause.

Police practices that mirror defendants' behavior not the police in this case—attempting to question every person fitting a general description—may well have a disparate impact on small minority groups in towns such as Oneonta. If there are few black residents who fit the general description, for example, it would be more useful for the police to use race to find a black suspect than a white one. It may also be practicable for law enforcement to attempt to contact every black person who was a young male, but quite impossible to contact every such white person If a community were primarily black with very few white residents and the search were for a young white male, the impact would be reversed. The Equal Protection Clause, however, has long been interpreted to extend to governmental action that has a disparate impact on a minority group only when that action was undertaken with discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-41, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Without additional evidence of discriminatory animus, the disparate impact of an investigation such as the one in this case is insufficient to sustain an equal protection claim.

In this case, plaintiffs do not sufficiently allege discriminatory intent They do allege that at least one woman, Sheryl Champen, was stopped by law enforcement officials during their sweep of Oneonta. *339 This allegation is significant because it may indicate that defendants considered race more strongly than other parts of the victim's description. However, this single incident, to the extent that it was related to the investigation, is not sufficient in our view to support an equal protection claim under the circumstances of this case.

We are not blind to the sense of frustration that was doubtlessly felt by those questioned by the police during this investigation. The actions of the police were understandably upsetting to the innocent plaintiffs who were stopped to see if they fit the victim's description of the suspect The plaintiffs have argued that there is little difference between what occurred here and unlawful profiling based on a racial stereotype. While we disagree as a matter of law and believe that the conduct of the police in the circumstances presented here did not constitute a violation of the equal protection rights of the plaintiffs, we do not establish any rule that would govern circumstances giving rise to liability that are not present in this case. Any such rule will have to wait for the appropriate case Nor do we hold that under no circumstances may the police, when acting on a description of a suspect, violate the equal protection rights of non-suspects, whether or only stop persons conforming to the description of the suspect given by the victim.

We are also not unmindful of the impact of this police action on community relations. Law enforcement officials should always be cognizant of the impressions they leave on a community, lest distrust of law enforcement undermine its effectiveness. Cf. Sean Hecker, Race and Pretextual Traffic Stops: An Expanded Role for Civilian Review Boards, 28 Colum. Hum. Rts. L.Rev. 551, 552 (1997) (describing the impact on the community of race-based pretextual traffic stops). Yet our role is not to evaluate whether the police action in question was the appropriate response under the circumstances, but to determine whether what was done violated the Equal Protection Clause. We hold that it did not, and therefore affirm the district court's dismissal of plaintiffs' 1983 claims alleging equal protection violations.9

II. Section 1981 Claims

To establish a claim under 42 U.S.C. § 1981, plaintiffs must allege facts supporting the following elements: (1) plaintiffs are members of a racial minority, (2) defendants' intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute's enumerated activities. See Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Those enumerated activities include the rights "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property" 42 U.S.C. § 1981(a).

Plaintiffs' claims under 42 U.S.C. § 1981 suffer from the same shortcomings as their equal protection claims. Section 1981, like the Equal Protection Clause, only prohibits intentional racial discrimination. See General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed 2d 835 (1982); see also Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988) (holding that to plead a § 1981 claim alleging selective enforcement, plaintiff must allege instances in which "similarly situated" non-minorities were treated differently). Accordingly, plaintiffs must meet the same pleading standard for their § 1981 claims as for their § 1983 claims under the Equal Protection Clause, and these claims were insufficiently pleaded for the reasons stated above We therefore affirm the dismissal of plaintiffs' § 1981 claims.

*340 III. Fourth Amendment Claims

Plaintiffs' § 1983 claims also allege a violation of their Fourth Amendment rights during defendants' sweep of Oneonta. The district court dismissed many of these claims and granted summary judgment for defendants on other claims because, in its view, plaintiffs had not been subject to "seizures" under the Fourth Amendment.10 For the reasons that follow, we vacate the summary judgment against plaintiffs Jamel Champen, Jean Cantave, Ricky Brown, and Sheryl Champ en, and affirm the district court's dismissal or grant of summary judgment with regard to the remaining claims.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court established that the Fourth Amendment does not prohibit the police from stopping a person for questioning when the police have a reasonable suspicion that a person may be aimed and dangerous, even when that suspicion does not amount to the probable cause necessary to make an arrest See id. at 24-27, 88 S.Ct. 1868, United States v. Jaramillo, 25 F.3d 1146, 1150-51 (2d Cir. 1994). Defendants would have difficulty demonstrating reasonable suspicion in this case, and indeed, they do not attempt to do so Defendants instead argue that the district court correctly determined that no reasonable suspicion was necessary, because no seizure—not even a Terry stop—occurred in this case.

To prevail on a § 1983 claim under the Fourth Amendment based on an allegedly unlawful Terry, stop, a plaintiff first must prove that he was seized. "[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). However, a seizure does occur when, "by means of physical force or show of authority," United States v. Hooper, 935 F.2d 484, 491 (2d Cir.1991) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868), a police officer detains a person such that "a reasonable person would have believed that he was not free to leave," id. (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Pertinent factors identifying a police seizure can include

Hooper, 935 F.2d at 491 (quoting United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990)). Whether a seizure occurred is a question of law to be reviewed de novo, while the factual findings underlying that determination are reviewed for clear error See, e.g., United States v. Peterson, 100 F.3d 7, 11 (2d Cir. 1996); United States v. Tehran:, 49 F.3d 54, 58 (2d Cir. 1995)

Jamel Champen, in his affidavit, alleges that a police officer pointed a spotlight at him and said "What, are you stupid? Come here I want to talk to you" He was then told to show his hands. While it is arguably a close case, we conclude that a reasonable person in Champen's circumstances would have considered the police officer's request to be compulsory Accordingly, we hold that Champ en was seized and vacate the summary judgment for defendants on his Fourth Amendment claim.

Jean Cantave avers that he was driving in Oneonta when he was pulled over by a police car with a siren and the flashing Cantave was ordered out of the car and instructed to place his hands on top of the car. The Supreme Court has *341 stated that the "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons'" under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Under Whren, we have no doubt that Cantave was seized, and accordingly we vacate the summary judgment for defendants on Cantave's claim

Ricky Brown's affidavit states that three police officers stopped him on the street. The police officers questioned him about whether he was a student and where he had been They asked for his identification card, passed it around, and returned it to Brown At one point, the officers "formed a circle around" Brown When Brown asked if he had permission to leave, they told him that he was free to go. When Brown started to leave, however, one officer told him to come back and asked to see his hands. We conclude that a reasonable person in Brown's position—directed to return by one of the police officers who, just moments before, had encircled him—would not have felt free to leave We therefore vacate the district court's grant of summary judgment on Brown's claim.

Sheryl Champen alleges that a police officer approached her at a bus station and told her that if she wanted to board the bus for which she was waiting, she would have to produce some identification This contact is plainly a seizure under the caselaw because the police officer made it clear that he was detaining her Accordingly, we vacate the summary judgment for defendants on Sheryl Champen's claim.

Raishawn Morris alleges that he encountered two police officers in his dorm lobby, and that they asked him to show them his hands. This does not rise to the level of a seizure, and we affirm the summary judgment for defendants on Morris's claim.

Finally, we also affirm the district court's dismissal of the remaining Fourth Amendment claims. The other plaintiffs did not submit any affidavits describing the details of their contacts with defendants, and the complaint fails to allege facts stating a claim that they were seized by defendants See Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir. 1994).

IV. Claims Under §§ 11985(3) & 1986

Plaintiffs also asserted causes of action under 42 U.S.C. §§ 1985(3) and 1986. The elements of a claim under § 1985(3) are "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, . . .; (3) an act in furtherance of the conspiracy; (4) whereby a person is deprived of any right of a citizen of the United States." Mian, 7 F.3d at 1087. The conspiracy must be motivated by racial animus. See id. at 1088 Because a claim under § 1985(3) requires proof of discriminatory racial animus, we affirm the district court's dismissal of plaintiffs' § 1985(3) claims for the same reasons that we dismissed plaintiffs' equal protection and § 1981 claims, discussed in detail above. And because "a § 1986 claim must be predicated on a valid § 1985 claim," id., plaintiffs' § 1986 claim was properly dismissed as well

CONCLUSION

We affirm the dismissal of plaintiffs' § 1983 claims under the Equal Protection Clause. We also affirm the dismissal of plaintiffs' claims under §§ 1981, 1985(3) and 1986. With regard to the plaintiffs' § 1983 claims under the Fourth Amendment, we affirm the district court's dismissal of these claims except those of plaintiffs Jamel Champ en, Jean Cantave, Ricky Brown and Sheryl Champen We vacate the district court's grant of summary judgment on those claims, and remand the case to the district court for further proceedings Jamel Champen, Jean Cantave, Ricky Brown, and Sheryl Champen may continue to litigate their § 1983 claims of Fourth Amendment violations *342 against all law enforcement defendants except Redmond and Olsen, against whom their claims were previously dismissed.

Affirmed in part, vacated in part, and remanded Each party shall bear its own costs.

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Attorneys and Law Firms

*255 John F. Collins, Buffalo, NY, Collins S. Collins (Mark W. Pawlak, of counsel), for Plaintiff—Appellant

*256 Susan C. Roney, Buffalo, NY, Nixon, Hargave, Devans & Doyle (David P. Ford, of counsel), for Defendant— Appellee.

Before: FEINBERG, OAKES and CALABRESI, Circuit Judges.

Opinion

CALABRESI, Circuit Judge:

The dispute underlying this appeal began in 1991, when appellant Bruce Shrader alleged that he was injured in an on-the-job accident at a train yard run by CSX Transportation, Inc. (CSXT). The company ultimately determined that Shrader's claim of injury was false, and fired him "for conduct unbecoming a CSXT employee." Shrader challenged the determination that his claim was false in arbitration before a Public Law Board, convened pursuant to section 3 of the Railway Labor Act (RLA), codified at 45 U.S.C. § 153. The Board determined that there was sufficient evidence to support CSXT's decision to fire Shrader for filing a false accident report Shrader appealed that decision to the United States District Court for the Western District of New York (William M. Skretny, J.). Shrader further maintained that his discharge was in violation of section 10 of the Federal Employers' Liability Act (FELA), codified at 45 U.S.C. § 60, which provides criminal penalties when an employer "prevent['s] employees . . . from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee." CSXT moved to dismiss both charges for failure to state a claim upon which relief could be granted, under Fed.R.Civ.P. 12(b)(6). On August 1, 1994, the district court dismissed Shrader's challenge to the Board's decision, but declined to dismiss the FELA CSXT then filed a motion for reconsideration of the decision not to dismiss the second claim. The court granted the motion for reconsideration and, on December 8, 1994, dismissed Shrader's FELA claim, concluding that the prohibition against interfering with an employee who "voluntarily" furnishes information to a "person in interest" concerning a workplace accident does not apply in a situation, like this one, in which the employee has filed with his employer a mandatory report of his own alleged accident.

Shrader now appeals from the district court's decision to reconsider its August 1 order and its subsequent dismissal of his FELA claim The appellant's brief also challenges the district court's August 1, 1994, refusal to set aside the decision of the arbitral Board.

I.

The Notice of Appeal filed with this court by Shrader indicated his intent to appeal only from the district court's December 8, 1994, order Since a notice of appeal "must designate the judgment, order, or part thereof appealed from," Fed.R.App.P. 3(c), the appellant's failure to mention the August 1 order in his notice of appeal bars us from considering his claim that the Board's decision should have been set aside Of course, we construe notices of appeal liberally, taking the parties' intentions into account. See United States v. Schwimmer, 968 F.2d 1570, 1574-75 (2d Cir.1992). Here, however, not only does the notice of appeal refer solely to the December 8 order, but the December 8 order itself, while making reference to the August 1 order, does so simply to note the failure of that order to dismiss the FELA claim It is clear, therefore, that the December 8 order appealed from decides nothing other than the FELA claim. We accordingly have no jurisdiction to review the district court's earlier decision to dismiss the appellant's RLA challenge. In any event, we note in passing that the appellant's challenge to the Board's decision appears to be meatless,

II.1

Shrader also argues that the district court erred in granting CSXT's motion for *257 reconsideration of the August 1 order. The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court. See Schonberger Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y.1990); Adams v. United States, 686 F.Supp. 417, 418 (S.D.N.Y.1988). CSXT argues that it did present the district court with data that the court had not previously considered. First, CSXT pointed to numerous statements in the FELA's legislative history, which the district court had not discussed in its original ruling, and which CSXT claimed gave support to CSXT's interpretation of the statute Second, CSXT argued that the district court had originally examined only two of the circuit court decisions on the issue before it. Instead, four circuits—every one that had considered the applicability of section 10 to circumstances similar to those presented by Shrader's complaint—had concluded that section 10 did not apply See Bielicke v. Terminal R.R. Ass'n, 30 F.3d 877, 878 (7th Cir. 1994); Lewy v. Southern Pac. Tramp. Co., 799 F.2d 1281, 1293 (9th Cir. 1986); Gonzalez v. Southern Pac. Tramp. Co., 773 F.2d 637, 644 (5th Cir. 1985) ("Gonzalez II") Landfried v. Terminal R.R. Ass'n, 721 F.2d 254, 256 (8th Cir. 1983), cert. denied, 466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984).

Admittedly, a motion to reconsider should not be granted where the moving party seeks solely to rehtigate an issue already decided. But in light of CSXT's introduction of additional relevant case law and substantial legislative history, we cannot say that the district court's decision to reconsider its earlier ruling was an abuse of discretion

III.

Finally, Shrader challenges the district court's decision to dismiss his FELA complaint for failure to state a claim upon which relief can be granted. We reject this challenge, concluding not only that the terms of the statute do not include situations in which an employee—as required by a railroad-employer—informs that employer about his or her own accident, but also that, even if the statute did include those situations, it would not apply where, as here, the employees accident report was properly found to have been falsified.2

Section 10 of the FELA makes criminal employer interference with an employee who "voluntarily" furnishes information concerning a workplace injury to "a person in interest" 45 U.S.C. § 60.3 The courts of appeals "258 that have considered the application of this provision have concluded that an employee's filing of his own FELA claim with his employer does not constitute the voluntary furnishing of information to a person in interest about an employees injury, within the meaning of section 10 of the FELA See Bielicke, 30 F.3d at 878; Lewy, 799 F.2d at 1293, Gonzalez II, 773 F.2d at 642; Landfried, 721 F.2d at 256.

The FELA's legislative history provides strong support for the view that section 10 was enacted to "permit those who have information concerning the facts and circumstances of a personal injury to give statements to the injured employee or his dependents, or to someone authorized to represent him or them" S.Rep. No 661, 76th Cong., 1st Sess. 5 (1939). It was not meant to protect an employee who reports his or her own injury to an employer as required by the employer's rules. The enacting legislators' concern was that employers might be able to prevent employees from testifying on behalf of their co-workers when the precise circumstances of an accident were disputed See id.; see also H.R Rep. No. 1422, 76th Cong., 1st Sess. 2 (1939). Hence, they made retaliation in such Instances a crime, while at the same time relying on the procedures established under the RLA as the sole method of protecting an employee from discharge in retaliation for the filing of his or her own accident report. See, e.g., Mayon v. Southern Pac. Transp. Co., 805 F.2d 1250, 1252-53 (5th Cir. 1986) ("[O]ne who helps a co-worker file an FELA claim may have a cause of action under § 60 for retaliatory discharge. One who is discharged for filing his own FELA claim, however, does not. Only the remedies of the RLA are available."). In the case before us, Shrader filed a mandatory accident report regarding his own accident with his employer. Since the FELA's prohibitions against retaliatory discharge were not intended to apply in this situation, Shrader must rely on the procedures and remedies established under the RLA.

Further, even if section 10 of the FELA provided a cause of action for employees who have filed, or are preparing to file, their own accident Shrader still would not be entitled to the protections of section 10 because of the arbitration panel's conclusion that his accident report was false. In this respect, the circumstances before us are similar to those facing the Fifth Circuit in Gonzalez. In Gonzalez II, the court, which had remanded for a determination of whether the employees corroborating accident report had been falsified, see Gonzalez I, 755 F.2d at 1185-86, reheard the case and considered the effect of an RLA arbitrator's subsequent determination that the report had in fact been false The Fifth Circuit then dismissed the suit, holding that section 10 of the FELA does not provide protection for the filing of a false accident report. See Gonzalez II, 773 F. 2d at 642, cf. Benjamin v. Raffic Exec. Ass'n Eastern Railroads, 869 F.2d 107, 111 (2d Cir.1989) (in a collateral proceeding, a labor arbitration panel's decision was held to have preclusive effect). We agree Shrader was not dismissed in retaliation for filing an accident report, he was dismissed for dishonesty, and that is not protected conduct under the FELA.

In the case before us, an RLA arbitration panel has found that Shrader's accident report was falsified Even were we to reject the conclusions of the other courts of appeals and the strong evidence in the FELA's legislative history that section 10 applies only to employees who assist their injured co-workers by furnishing information about an accident, we would still affirm the district court's dismissal of this action because Shrader's filing of a false accident report is not protected by the FELA

We have examined all of the appellant's arguments and find them to be without merit Accordingly, we affirm the order of the district court

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