# Petition for Writ of Certiorari — Yonkers Racing Corp. v. City of Yonkers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0620%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1077 ## Text (3 Supreme Court, U.S, - SFIDED DEC 19 1988 88-1029 JO@EPH F. SPANIOL, JR, No, —-—--— CLERK ——— ————. - IN THE Supreme Court of the United States OCTOBER TERM, 1988 YONKERS RACING CORPORATION, Petitioner, ¥. THE CITY OF YONKERS, Respondent, and UNITED STATES OF AMERICA and YONKERS BRANCH NAACP, et al., Intervenor-Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ROBERT D. MEADE * WILLIAM P. HARRINGTON BLEAKLEY PLATT & SCHMIDT One North Lexington Avenue White Plains, NY 10601-1700 Telephone: (914) 949-2700 Attorneys for Petitioner * Counsel of Record WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED FOR REVIEW" 1. May a state court proceeding, lacking a federal sub- ject matter jurisdictional basis, be removed to the District Court under the authority of the All Writs Act? 2. May a state court proceeding be removed to the District Court under the authority of the All Writs Act in the absence of the circumstances permitting removal under the applicable removal statutes? 3. May the defenses to a state court eminent domain proceeding, raised in a separate proceeding as required by state law, identical to the affirmative defenses raised in the answer to the petition for condemnation, be re- moved to the District Court while the condemnation pro- ceeding itself remains in the state court? 4. May a state court proceeding be removed to the District Court by a party occupying the status of a plaintiff? 5. Are the absence of federal subject matter jurisdic- tion or statutory grounds for removal “exceptional cir- cumstances” permitting the application of the All Writs Act where another federal statute would otherwise apply, under the rule of Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) as found by the Court of Appeals to uphold removal? 6. May the jurisdiction of the District Court be en- larged other than by an Act of Congress? 7. May a party be compelled, under penalty of con- tempt, to remove defenses to a state court proceeding? 8. May a consent decree in a federal civil rights action be enforced in such a manner as to lessen the property rights of a non-party owner of real property sought to be obtained to provide a remedy for violations committed by others? 9. Did the decision of the Court of Appeals dismiss the defenses to the proceeding upon grounds contrary to ap- plicable state law? (i) TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ................ i ME BU RE EID hes cncccncscccceceseemecncesrenenssncsens iv I cc ncscaaitiiocensunrcnvesecscaninesancdmeegeancenses 1 Neen tsi ni cccraneheasnensueincdinenninacathinnens 1 py waleet 3 Be 6. gi) 6), | ahi 2 RUIN PE BU PRIN ss ssncsenscncecnsennsesepesnuncees 2 Jurisdiction Of The District Court -.........0....0............ REASONS FOR GRANTING THE WRIT .................... 7 I. REMOVAL OF A PROCEEDING CANNOT BE BASED UPON THE ALL WRITS ACT WHEN REMOVAL IS PROHIBITED BY THE APPLI- ETE nccnsssneunnscionivencsrtnsneasanaonesnssaanese 7 II. THE DECISION OF THE COURT OF AP- PEALS IS IN CONFLICT WITH APPLICA- eae Geese Lew ...................... EARS i CO 16 TEE 20 (ili) iv TABLE OF AUTHORITIES CASES: Page Ayers v. Watson, 113 U.S. 594 (1885) -..000022 2. 10 Bath County v. Amy, 13 Wall. 244 (1871) -.............. 12 Board of Visitors—Marcy Psychiatric Center v. Coughlin, 60 N.Y.2d 14; 453 N.E.2d 1085 fT er PAN NES 19 City of Greenwood v. Peacock, 384 U.S. 808 RRR Donen en eerie) ote WAR AA OO IE 10 Cheago, Rock Island & Pacific Railroad Company eo UL 8 Commercial Security Bank v. Walker Bank & Trust Company, 456 F.2d 1352 (10th Cir., 1972) .......... 13 Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust, 463 U.S. Oe 7 Gerges v. Koch, 62 N.Y.2d 84, 464 N.E.2d 441 Da RIES SEA, acl OST ree FE a Sine ek 18 Harrison-Halstead Community Group, ine. v. Housing & Home Finance Agency, 310 F.2d 99, cert. denied, 373 U.S. 914 (1968) -....00.........2....... 7 Healy v. Ratta, 292 U.S. 263 (1934) -................---..... 8 In Re Winn, 218 U.S. 458 (1909) ............................. 8 Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400; 494 N.E.2d 429 (1986)...... 17 Local Number 93, International Association of Firefighters, AFL-CIO v. City of Cleveland, 478 Pe Te «IIE sitcsatinchniiracciincisimsastteippescaditcanacatcehemiaiicestertacsn 14 Maczko v. Joyce, 814 F.2d 308 (6th Cir., 1987) ...... 13 Mansfield, C & L.M.R. Co. v. Swan, 111 U.S. 379 IT sosccus eidetescabintadatieuiacessceaialtekapaicseean ik bianiamaais. ccateasien 8 Marino v. Ortiz, 484 U.S. ——, 108 S.Ct. 586 SII, sical. (aiihtveapeapebeicenetrcicccstedcasiaie Aleadameeeaaeindecdredin dina aceaceaagies 15 Mason City & Ford Dodge Railroad Company v. Boynton, 204 U.S. 570 (1907) ...................-........... 8 Metropolitan Life Insurance Company v. Taylor, E.R eer. 12 Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982)........ 15 v TABLE OF AUTHORITIES—Continued Page Milliken v. Bradley, 418 U.S. 717 (1974) -.............-.. 15 New York Public Interest Research Group, Inc. v. Town of Islip, 71 N.Y.2d 292; 520 N.E.2d 517 (DIIIIIE asciscsicckcncnicissaicadatstabicbenibiciiadenibiemadeanee 19 New York State Thruway Authority v. Dufel, 129 A.D.2d 44; 516 N.Y.S.2d 981 (3rd Dept. 1987) ... 18 Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) ...... 10 People ex rel. Burhans v. City of New York, 198 Bi Ac MET TIE sis Ancenstchsiintinaitiideedaaenncmiaacanameminannes 16 Phillips Petroleum Company v. Texaco, Inc., 415 Oo I CI cesitiisancehinista hnseieiiciniatiiieitansttinbaniwieste 8 Rizzo v. Goode, 423 U.S. 362 (1970) ..............-.......-.- 14 Rosenbaum v. Bauer, 120 U.S. 450 (1887) ............... 12 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 NE isa ccdisccetencisanbbiseceaiasame iets an alee 9 Stafford v. Superior Court, 272 F.2d 407 (9th Cir., ARAN Cae MS Mec taetT AUS BUS WHEL BR, MATA EIN 13 State Farm Fire & Casualty Company v. Tashire, ee Ce ND CED icin htt csi 13 Swank, Inc. v. Carnes, 856 F.2d 1481 (11th Cir., |, , CONDI SNOT IITD WS AE AI Ae hd SETS DEVE OR 13 Torrence v. Shedd, 144 U.S. 527 (1892) ..................- 12 United States Alkali Export Association v. United Soden, BEG UB. TDG CAGGG) ao ocnccs nc eccncssccnanenscesnee 11 United States v. First Federal Savings & Loan Association, 248 F.2d 804 (7th Cir., 1957) _......... 13 United States v. New York Telephone Company, TRS Be Bb yf ee. ee 13 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 fF LSNVE AN AISA HER aL er RC SU IAL MERI Sinks 10 West v. Aurora City, 6 Wall. 139 (1867) ................. 10 OTHER AUTHORITIES: Be ee EEE cs cssnsjatcionraceconanens ea a ce eee 9 I a a ei 10 BE I, SIT ID 5st: icscisesssepncnniacinangacemnateesaniemce naan 13 BE Beas Te Ee skssniens Aicnsdsavinscscieaonaeccepatepantitaieaaae ates 5 vi TABLE OF AUTHORITIES—Continued Page 1 Moore’s Federal Practice, § 0.60[2-3] ..................... 12 I IOI ED 3 iicshinins shank goebepnnaisiaaioseaeiaadis 13 (|. ae ae 8 14A Wright-Miller-Cooper, Federal Practice & FG BI niviitescwscoebnnnstntieticivicibiaaeeceshajilinilieastinn 9 New York Second Class Cities Law, § 108 ..... ....... 16 New York Eminent Domain Procedure Law § 204.. 16 New York Eminent Domain Procedure Law § 206 |; PREPRESS RE ROO Neal meen Encl Teena Lye lt eG ARCS Riga 18 New York Eminent Domain Procedure Law § 207.. 17 New York Environmental Quality Review Act, 6 PEE GEE sthidieincinis untieaneieniaaniel 17 IN THE Siyprene Court of the United States OCTOBER TERM, 1988 No. YONKERS RACING CORPORATION, - Petitioner, THE CITY OF YONKERS, Respondent, UNITED STATES OF AMERICA and YONKERS BRANCH NAACP, et al., Intervenor-Respondents. and PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT OPINIONS BELOW The opinion of the Court of Appeals is reported at 858 F.2d 855 (1988). The opinion is set forth in Appendix A(la). The opinions of the District Court were not re- ported. The District Court opinions and orders are set forth in Appendix B(43a). JURISDICTION The opinion of the Court of Appeals was entered on September 22, 1988. The jurisdiction of this Court is in- voked under 28 U.S.C. § 1254(1). 2 STATUTORY PROVISIONS 28 U.S.C. §§ 1441, 1443 and 1651. New York Eminent Domain Procedure Law §§ 201-207. New York Environ- mental Quality Review Act, 6 NYCRR §§617 et seq. The text of these statutes is set forth in Appendix C (58a). STATEMENT OF THE CASE Jurisdiction Of The District Court Yonkers Racing Corporation (“Raceway”) submits that there was no basis for federal jurisdiction in the District Court. Neither federal question nor diversity jurisdiction are present. The subject proceeding, shown, infra, to have been the required method for asserting the defenses to a state court eminent domain proceeding under New York law (and based upon issues identical to the affirmative defenses raised in the answer to the con- demnation petition) was removed by order of the District Court under the authority of 28 U.S.C. § 1443(a) and 28 U.S.C. § 1651 (the All Writs Act) (43a, 52a). The proceeding did not qualify for removal under the statutes pertaining to such procedure. Federal subject matter jurisdiction was not present. The Court of Appeals found that grounds for statutory removal were not apparent but held that the All Writs Act provided a basis for re- moval independent of the removal statutes and created grounds for removal and federal subject matter jurisdic- tion heretofore unknown. The eminent domain proceeding commenced against property of the Raceway in the Supreme Court of the State of New York, County of Westchester, which is the event giving rise to the within proceeding, was com- menced following the resolution of a civil rights action between other parties. On or about January 25, 1988, the City of Yonkers, (“City”), the United States of America and the Yonkers Branch-National Association for the Advancement of Colored People (“NAACP”) entered into a Consent Decree resolving an action (80 3 CIV. 6761 [LBS]) brought by the latter parties against the City to enforce the provisions of 24 U.S.C. § 2000c-6; 42 U.S.C. § 2000; 42 U.S.C. § 3601 et seq. The com- plaint, inter alia, sought an injunction against the City to implement a system-wide plan of desegregation in the Yonkers City School District and a housing remedy plan to locate public and subsidized housing throughout the City of Yonkers. The Raceway had never been a party to or in any way involved in that action. The events leading up to the Consent Decree should be briefly stated. On November 20, 1985, the District Court issued a finding, inter alia, that the City had violated both the Equal Protection Clause and the Fair Housing Act by virtue of its actions with regard to the location of sites for public and subsidized housing, and had vio- lated the Equal Protection Clause by its role in perpetu- ating and exacerbating racial segregation in the Yonkers public schools. On May 28, 1986, following further pro- ceedings, the District Court entered a Housing Remedy Order (reported at 635 F. Supp. 1588) which, inter alia, set forth a broad injunction against the City (Part I); directed the City to establish a municipal fair housing policy and fair housing office (Part II); directed the City to select sites for 200 units of federally-aided public housing, retaining the right to designate sites for such housing should the City fail to select sites (Part IV), and directed the City to develop a plan for additional sub- sidized housing (Part VI). On December 28, 1987, the United States Court of Ap- peals for the Second Circuit issued an opinion (reported at 837 F.2d 1181) in which it affirmed “{t]he judgment of the district court in all respects.” This Court, on June 13, 1988, denied a petition for a writ of certiorari filed by the City in Case No. 87-1686. (108 S.Ct. 2821). The petition sought review, inter alia, of the District Court’s and Court of Appeals’ holdings that the City was liable for segregated housing in Yonkers. a ieaeasenmenann tae earn en, 4 On January 28, 1988, the City with the approval of the City Council entered into a Remedial Consent Decree setting forth actions that the City would take “in con- nection with [the] consensual implementation” of Parts IV and VI of the District Court’s Housing Remedy Order. Pursuant to Section I of the Consent Decree, the City acknowledged its obligation to construct 200 units of. public housing and agreed, in Section 2, to provide cer- tain designated “sites” for the location of the housing. Four privately owned parcels were designated including “Clark Street” a parking lot owned by the Raceway. In Section 4 of the Consent Decree it was agreed that the City would attempt to purchase the private sites and “in the absence of a voluntary agreement for the purchase by (or on behalf of) the City, the City will commence (or will cause to be commenced) legal proceedings to secure control over the relevant site in the most expedi- tious manner, including the use of the power of eminent domain.” The Raceway rejected the City’s offer to purchase. The parcel is extremely important to the operations of Yon- kers Raceway, as it is the only off-site parking lot owned by the corporation. It is the Raceway’s position that the property was designated in an arbitrary manner with- out consideration of the problems inherent in the use of such a commercia! site, located across the street from a racetrack and adjacent to a gasoline station, tavern and a major public highway (New York State Thruway) for _ housing. These problems were noted in the preliminary report of the planning expert retained by the City issued prior to the selection of the Raceway site finding that the environmental issues required further study. On April 21, 1988, the City commenced a condemnation proceeding against the Raceway property in the Supreme Court of the State of New York, County of Westchester. Prior to commencing the proceeding, the City did not follow the procedures required by state law and failed 5 to hold a public hearing as required by Article 2 of the state Eminent Domain Procedure Law. The purpose of such a hearing is discussed, infra. In addition, the City did not conduct the environmental review required by statute as a prerequisite to condemnation. On May 19, 1988, after answering the petition for condemnation, the Raceway commenced the within pro- ceeding pursuant to Article 78 of the New York Civil Practice Law and Rules in the Supreme Court, County of Westchester, seeking dismissal of the condemnation pro- ceeding for the aforementioned failure of the City to comply with applicable law. As recognized by the Court of Appeals, this proceeding was the required vehicle for raising defenses to the condemnation proceeding under state law (12a-14a). The Court of Appeals also recog- nized that the Article 78 proceeding was based upon ground identical to the defenses raised in the answer to the petition. A copy of the answer is annexed as Ap- pendix D(66a). On May 27, 1988, the United States brought on an application, returnable on that same day, for an order compelling the City of Yonkers to petition to remove the Raceway’s Article 78 proceeding (but not the condemna- tion proceeding) to the District Court. It was the view of the United States that the Race- way’s insistence on the due process rights provided by applicable state law was an attempt to interfere with the implementation of the Consent Decree. The govern- ment argued that the proceeding was removable pursu- ant to the general removal statute (28 U.S.C. § 1441[a]) and the All Writs Act (28 U.S.C. § 1651) which provides in pertinent part that the federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 6 The Raceway, appearing in an aspect of the federal litigation commenced in 1980 for the first time, argued that only a defendant can remove, that it was the de- fendant under state law and that the presentation of its defenses in the required separate Article 78 proceeding did nothing to change that status. The Raceway also emphasized to the Court the fact that there were no issues of federal law raised in the Article 78 proceeding and that consequently the requisite subject matter jurisdictional predicate for removal was lacking. A copy of the Article 78 petition is annexed as Appendix E(70a). The petition seeks to enforce rights arising under the Eminent Domain Procedure Law and the Environmental Ccnservation Law of the State of New York. The City opposed the application of the government seeking to compel it to remove the Article 78 proceeding and argued that the proceeding was simply one aspect of an integral condemnation proceeding which could not be removed. Judge Leonard B. Sand disagreed and issued an order on May 27, 1988 directing the City of Yonkers, under penalty of contempt, to petition to remove the pro- ceeding. The District Court also authorized the submis- sion of an order permitting the plaintiffs in the housing suit to intervene as parties respondent in the Article 78 proceeding. The removal petition was filed on May 31, pursuant to the general removal statute (28 U.S.C. § 1441[a]). On June 6, 1988, the Raceway moved for an order, pur- suant to 28 U.S.C. § 1447, remanding the proceeding to the state court. On June 8, 1988, after hearing arguments from the parties, Judge Sand denied the motion to remand and dis- missed the Article 78 proceeding on the merits (48a). Re moval was upheld by the District Court under the Civil Rights Removal Statute (28 U.S.C. § 1443) and the All Writs Act (52a). The court found that the requirements of the Eminent Domain Procedure Law were inapplicable 7 due to either statutory exemption or substantial com- pliance and that “state policy must give way when it operates to hinder the vindication of federal constitu- tional guarantees” (47a). These issues will be discussed in detail, infra. By decision dated September 22, 1988, the United States Court of Appeals for the Second Circuit affirmed the order denying remand solely on the ground that the All Writs Act provided an independent basis for removal after expressing serious doubts whether removal was proper under the statutes pertaining to removal. Judge J. Daniel Mahoney dissented finding that removal did not lie on any basis. The Court of Appeals affirmed the findings of Judge Sand that the City was exempt from compliance with the Eminent Domain Procedure Law and Environmental Quality Review Act or had substantially complied with such requirements. REASONS FOR GRANTING THE WRIT I. REMOVAL OF A PROCEEDING CANNOT BE BASED UPON THE ALL WRITS ACT WHEN RE- MOVAL IS PROHIBITED BY THE APPLICABLE STATUTES Subject matter jurisdiction is not present in this pro- ceeding. Diversity of citizenship is not present. The Raceway does not rely upon the Constitution or laws of the United States within the meaning of the applicable criteria (Franchise Tax Board of The State of Califor- nia v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 [1983}). A claim that property is being taken in an eminent domain proceeding in violation of the due process rights of the owner under state law does not raise a federal question even when the program is fed- erally subsidized (Harrison-Halstead Community Group, Inc. v. Housing & Home Finance Agency, 310 F.2d 99 cert. denied 373 U.S. 914 [1963]). As a defense to a state proceeding, the presence of such issues raised by acini ica aii 8 a party sued in state court does not provide a basis for removal in any event (Jn Re Winn, 213 U.S. 458, 465 [1909]). Federal subject matter jurisdiction must be based upon the allegations of the plaintiff’s complaint not the defenses raised by the defendant. See the discussion of the “well pleaded complaint rule” in 1 Moore’s Federal Practice, § 0.62{2-2] pp. 660 et seq. As discussed, infra, the Raceway is the defendant for all purposes under the settled decisions of this Court. In Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884) it was declared that “the rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this Court, on its own motion, to deny its own jurisdic- tion, and, in the exercise of its appellate power, that of all other courts in the United States, in all cases where such jurisdiction does not affirmatively appear in the record . . .” See also Phillips Petroleum Company v. Texaco, Inc., 415 U.S. 125 (1974) where certiorari was granted and the judgment of the Court of Appeals re- versed due to the absence of federal subject matter juris- diction. “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined “(Healy v. Ratta, 292 U.S. 263, 270 [1934]). In Chicago Rock Island & Pacific Railroad Company v. Stude, 346 U.S. 574 [1954] & Mason City & Fort Dodge Railroad Company v. Boynton, 204 U.S. 570 [1907] it was held that a condemnee remains the defendant for removal purposes even though required by state law to commence a proceeding to protect its rights. The Court of Appeals recognized that the status of the City of Yonkers precluded the removal of the proceeding: “Quite simply, a party who is in the position of a plain- 9 tiff cannot remove” (14a). Nevertheless the majority found an independent basis for removal under the “re- sidual jurisdictional authority” of the All Writs Act (16a), a determination which it is submitted results in a radical expansion of the jurisdiction of the federal courts and raises novel and extremely important federal ques- tions. “The right to remove a case from a state to a fed- eral court is purely statutory and therefore is en- tirely dependent on the will of Congress” (14A Wright-Miller-Cooper, Federal Practice & Procedure § 3721). In Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941) it was declared that removal is a “right which can only be conferred by Act of Congress” and that such legislation should be strictly construed to effect- uate the “Congressional purpose to restrict the jurisdic- tion of the federal courts on removal...” The Court of Appeals, however, contrary to Shamrock Oil, declared that the “Federal removal statutes” are not the “exclusive sources of removal jurisdiction” (15a). The summary of the opinion recently published in the Second Circuit Digest by the Federal Bar Council high- lights the fact that the Court of Appeals relied upon a basis for removal independant of the controlling statute— “JURISDICTION—In exceptional circumstances the All- Writs Act, 28 U.S.C. § 1651, may be used to effectuate removal of a case from state court” (Appendix F) (79a). The note also states that the “Court of Appeals had serious doubts whether the removal statutes provided a proper basis to compel the City of Yonkers to remove the Article 78 proceedings to federal Court” but “did not have to resolve that difficult question since the district court had asserted an independent basis for removal jurisdiction under the All Writs Act.” The basic removal criteria are set forth in 28 U.S.C. § 1441(a) which provides that a civil action “of which | 10 the district courts of the United States have original jurisdiction may be removed by the defendant .. .”? The presence of federal subject matter jurisdiction in a non diversity removed case is “indispensible, and must be shown by the record ... and cannot be waived, and the want of it will be error at any stage of the case...” (Ayers v. Watson, 113 U.S. 594, 598 [1885]). Removal by a defendant is also a prerequisite of 28 U.S.C. § 1448, the civil rights removal statute. The sub- stantive grounds for the application of that statute are clearly absent. The condemnation proceeding is not a civil rights case. The purpose of the statute is to permit removal in cases where state officials and those acting under them are subject to penalty if they fail to enforce d'scriminatory state laws (City of Greenwood v. Peacock, 384 U.S. 808 [1966] ). As set forth, supra, Yonkers Racing Corporation oc- cupies the status of a defendant for removal purposes under the decis‘ons of this Court. Nevertheless the Dis- trict Court improperly ordered the plaintiff, City of Yonkers, to remove the defenses to the proceeding. The absence of a federal jurisdictional besis, was emphasized by the Raceway throughout this proceeding. See, e.g. Appendix G(85a) where counsel for the Raceway raised the argument before the District Court in support of the motion to remand. The decision of the Court of Appeals was based upon a misapplication of a recent decision of this Court, a rec- ognized basis for the granting of certiorari (Vermont Yankee Nuclear Power Corp. v. Natural Resources De- fense Council, Inc., 485 U.S. 519, 525 [1978]). In Penn- sylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) this Court held that the All 1A state plaintiff cannot remove a “cross-action” resulting from his invocation of state court jurisdiction (West v. Aurora City, 6 Wall. 139 [1867]). 11 Writs Act could not be applied to require that certain acts be performed when the statute applicable to the issue did not provide for such relief. Specifically it was held that a district court could not compel the United States Marshals Service to transport state prisoners to testify in a federal civil action “at least in the absence of an express finding of exceptional circumstances . . .” (474 U.S. at 43). The order was in effect a writ of habeas corpus ad testificandum which can only be di- rected to the custodian of a prisoner. It was also declared: Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act that is controlling.” (Id. at 43)? The “exceptional circumstances” envisioned by this Court in Pennsylvania Bureau were situations where, due to “serious security risks”, the assistance of the Marshals could be compelled under the All Writs Act as an exercise of the inherent power of a federal court to conduct its affairs. This Court clearly did not want to rule out the possibility of reliance upon the All Writs Act to require the Marshals to transport a state prisoner when the state custodian for some reason could not or should not do so. Can the All Writs Act provide grounds for removal or a federal subject matter jurisdictional basis where it does not otherwise exist? The Court of Appeals read 2 At 14a the Court of Appeals cites United States Alkali Export Association v. United States, 325 U.S. 196 (1945) for the proposi- tion that the “ ‘extraordinary power’ of the All Writs Act may be invoked even when another federal statute ordinarily would govern the issues.” The case does not support the reading by the Court of Appeals which is directly in conflict with Pennsylvania Bureau. The issue in United States Alkali was whether expedited appeal would lie under the Act or the regular appellate procedures pertain. In other words did the appellant qualify under the provisions of the All Writs Act. The issue was not whether the All Writs Act would override a controlling statute. 12 Pennsylvania Bureau to authorize the use of the All Writs Act in any situation where it is deemed imperative to compel the performance of act or reach a result not permitted by the applicable statute. Can this argument be applied to provide a basis for enlarging the jurisdic- tion of the district court? The clear answer is, we submit, no. The absence of grounds for removal or subject mat- ter jurisdiction are controlling facts not exceptional cir- cumstances. It is fundamental that the inferior federal courts cannot assume jurisdiction contrary to the ex- pressed will of Congress (1 Moore’s Federal Practice § 0.60[2-3]). This is precisely what has occurred in the removal of the defenses to a state proceeding, raising only issues of state law, by a plaintiff, against its will. The decision of the Court of Appeals completely disre- gards what was described in Metropolitan Life Insurance Company v. Taylor 481 U.S. 58 (1987) as the “century- old jurisdictional framework governing removal of fed- eral question cases from state into federal courts .. .” requiring either federal question or diversity jurisdiction as well as voluntary action by the defendant. A judg- ment in an action improperly removed must be reversed for want of jurisdiction (Torrence v. Shedd, 144 U.S. 527, 533 [1892]). It is also submitted that the decision of the Court of Appeals violates basic jurisdictional principles and is in direct conflict with prior decisions of this Court. In Bath County v. Amy, 13 Wall. 244, 249 (1871) it was held that “the writ cannot be used to confer a jurisdiction which the Circuit Court would not have without it. It is authorized only when ancillary to a jurisdiction already acquired.” See also Rosenbaum v. Bauer, 120 U.S. 450 (1887). The decision of the Second Circuit is also in conflict with decisions of several other circuits which have de- eC ith Baee I ale chil 5 Orin 5 as to 13 clared that the All Writs Act does not supply subject matter jurisdiction. See Swank, Inc. v. Carnes, 856 F.2d 1481 (11th Cir. 1988); Maczko v. Joyce, 814 F.2d 308 (6th Cir., 1987); Commercial Security Bank v. Walker Bank & Trust Company, 456 F.2d 1352, 1355 (10th Cir., 1972); Stafford v. Superior Court, 272 F.2d 407 (9th Cir., 1959); United States v. First Federal Savings & Loan Association, 248 F.2d 804, 808 (7th Cir., 1957). Such a conflict on a fundamental issue of jurisdiction warrants the grant of certiorari (State Farm Fire & Casualty Company v. Tashire, 386 U.S. 523, 529 [1967]). In addition it is submitted that the decision of the Court of Appeals is such a departure from the accepted and usual course of judicial proceedings as to warrant review by this Court. The All Writs Act has historically never been given such a sweeping application. See the discussion of the statute and the minimal burdens which may be imposed thereunder in United States v. New York Telephone Company, 434 U.S. 159 (1977). As previously stated only a defendant may remove. Removal exists so that a party sued in state court can decide to transfer the matter to a federal court when the jurisdictional prerequisites are present (14A Wright, supra, § 3721 pp. 186-87). There is no authority for an order directing a plaintiff to remove an action, let alone to remove the defenses to an action, which remains in state court. In Chicago, Rock Island, supra, it was stated that different aspects of a condemnation proceed- ing could not be separately litigated in federal and state courts. See also 1A Moore’s Federal Practice, § 0.157 (4- 11) at p. 108. 28 U.S.C. § 1446(e) provides that follow- ing removal “the State court shall proceed no further un- less and until the case is remanded.” However, in this matter the state court was required to proceed further since the condemnation proceeding remained and still re- mains in that venue. 14 The Court of Appeals stated that application of the injunctive powers of the federal court under the statu- tory exceptions contained in 28 U.S.C. § 2283 (the Anti- Inunction Act) would have been required to prevent the Raceway from presenting its defenses in the state court if the defenses were not removed (17a). The Anti- Injunction Act provides that certain proceedings in state court may be stayed under clearly defined circumstances. None of these statutory circumstances is present. No relief was ever sought under this statute. The City of Yonkers was under the legal obligation to commence the eminent domain proceeding in the state court. The Con- sent Decree did not (and could not) condemn the prop- erty of the Raceway. All proceedings to that end were required to be pursuant to state law. The Court of Appeals justification for the application of the All Writs Act is submitted to be completely con- trary to the decisions of this Court: “The fact that the petitioners were not parties to— and in their words ‘had absolutely no connection with’—the underlying discrimination lawsuit is of little consequence. The Raceway and the Seminary are in a position now—whether willingly or not—to frustrate implementation of the Consent Decree. We believe this is just the sort of extraordinary circum- stance envisioned by the All Writs Act.” (15a). The essential premise of the Court of Appeals that the Raceway could not assert its rights under state law flies in the face of the holding of this Court that the rights of non-parties may not be lessened by the provisions of a consent decree (Local Number 93, International Associa- tion of Firefighters, AFL-CIO v. City of Cleveland, 478 U.S. 501, 106 S. Ct. 3063, 3069 [1986]). It is also in direct conflict with the fundamental principle that a remedy in a civil rights case may not be awarded against a person or entity which has not been guilty of any vio- lation of the rights of a plaintiff (Rizzo v. Goode, 423 till “a a lm a Te aa ate 15 U.S. 362 ([1970]); Milliken v. Bradley, 418 U.S. 717 [1974]). This case raises the significant issue of whether a finding that a person is frustrating the implementation of a court order, conduct within the reach of the All Writs Act (United States v. New York Telephone, supra, 174) can ever result when that person is interjected into a controversy in which he has no interest except to pro- tect his own property rights. Cf. Marino v. Ortiz, 484 USS. ; 108 S. Ct. 586 (1988) where this Court was equally divided on the issue of whether non-parties could sue to challenge the provisions of a Consent Decree. The Raceway is taking no such action and is only seeking to protect its rights under the very state law the City was ordered to follow by the Consent Decree. It should also be stated that the order under the Ali Writs Act was issued to the City, not to the Raceway. This emphasizes that the motivation of the United States in seeking the order was to find some way around the fact that the City could not remove the proceeding, not that the Raceway was in any way acting inconsistently with the Consent Decree. The Raceway has never been a party to the underlying action and has certainly never been charged with any wrongdoing. Statements of the Court of Appeals such as “the implementation of that decree takes precedence over petitioners’ desire to have the defenses to the condemna- tion of their properties litigated in state court” (19a) cannot provide a basis for jurisdiction. The Consent Decree provided for state eminent domain proceedings. As this Court recently declared ‘minimal respect for the state process, of course, precludes any presumption that the state court will not safeguard fed- eral constitutional rights” (Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 431 [1982] ). 16 II. THE DECISION OF THE COURT OF APPEALS IS IN CONFLICT WITH APPLICABLE STATE LAW It is submitted that the Raceway would be entitled to review by this Court even if a jurisdictional basis existed for the proceedings below. The power of eminent domain has been conferred upon the City of Yonkers by the New York State legislature (New York Second Class Cities Law, Section 103). “The right of eminent domain is an attribute of sov- ereignty which the state may grant or withhold at its will. When it delegates that right, it may impose upon the donee any condition which does not en- croach upon or abridge any of the constitutional rights of those whose property is to be taken. It may require the donee of that right to do more than is demanded by the constitution, but it may not permit less to be done. If the donee accepts the right and exercises it, the conditions subject to which it is granted cannot be evaded or ignored. They are part and parcel of the grant.” People Ex. Rel. Burhans v. City of New York, 198 N.Y. 489, 446 (1910). Article 2 of the Eminent Domain Procedure Law (EDPL) of New York provides a detailed procedure for the holding of public hearings prior to the commencement of condemnation proceedings so that findings may be made concerning the following criteria contained in § 204 of the statute: (1) the public use, benefit or purpose to be served by the proposed public project; (2) the approximate location for the proposed public project and the reasons for the selection of that loca- tion; (3) the general effect of the proposed project on the environment and residents of the locality; (4) such other factors as it considers relevant.” 17 The failure of the City to address the issues raised by subparagraphs (3) & (4) is central to this dispute. Section 207 of the EDPL provides for direct judicial review to the state Appellate Division of the determina- tion and findings made after the public hearing. The statute provides that the jurisdiction of the Appellate Division “shall be exclusive’ [EDPL Section 207(B) ]. The New York Court of Appeals has declared that com- pliance with the procedures set forth in the EDPL is mandatory (Jackson v. New York State Urban Develop- ment Corporation, 67 N.Y.2d 400, 417-18; 494 N.E.2d 429 [1986]). The Court of Appeals stated in Jackson, supra, p. 28 that all of the criteria of the State Environmental Quality Review Act (SEQRA) are incorporated into § 204(B) (3) of the EDPL. No public hearings were held or findings made by the City prior to the commencement of eminent domain pro- ceedings. The City failed to conduct any environmental review following the initial report of its consultant stat- ing that serious environmental concerns (noise and traf- fic) should be studied in detail. The Raceway site is located on Central Park Avenue, an extremely heavily traveled roadway, directly across the street from Yonkers Raceway. The New York State Thruway is located between the site and the Raceway. A gas station is situated on one side of the site and on the other side is a bar and grill frequented by many Raceway patrons into the early hours of the morning. Racing is presently held at the Raceway on a daily year- round basis in the evening with simulcasting of thorough- bred racing held in the afternoons six days a week. The factors which make the site so appropriate for its precsent use make it of very questionable utility for hous- 18 ing. The failure to conduct environmental reviews is a significant omission under these circumstances. § 206(D) of the EDPL provides for an exemption from compliance with that statute when “because of an emer- gency situation the public interest will be endangered by any delay caused by the public hearing requirement in this Article.” This provision is intended to deal with physical emergencies such as that resulting from the im- mediate need for sites to reroute traffic following the collapse of a highway bridge (New York State Thruway Authority v. Dufel, 129 A.D.2d 44; 516 N.Y.S.2d 981 ({[8rd Dept. 1987]). In its decision the Court of Ap- peals erroneously declared that the City was exempted from compliance with the EDPL based upon the finding that the need for the housing in Yonkers created an emergency (19a-20a). No emergency as contemplated by the statute existed. The City did not commence condemnation proceedings until three months after the execution of the Consent Decree which designated the Raceway property. This was two years after it was originally ordered to obtain sites for public housing. There was more than enough time to comply with the statutory requirements. The desirability of the construction of public housing referred to by the Court of Appeals (21a) does not create an emergency within the meaning of the statute. The finding to the contrary is another application of the er- roneous premise that the Raceway can be penalized for the misconduct of the City. Incidentally, contrary to the claim of the Court of Appeals, the New York Court of Appeals did not find that the City of New York was ex- empt from compliance with environmental statutes in Gerges v. Koch (21a). In Gerges, the City of New York declared that the project would not have an environmen- tal impact as permitted by the applicable statute. The New York Court of Appeals found the record insufficient ; ; 3 & 1 Daetrten”s * bate - 19 to review the propriety of that determination (62 N.Y.2d at 93-94). In Marcy Center v. Coughlin, cited by the Court of Appeals (21a), New York’s highest court emphasized the distinction between taking allowable action to provide temporary relief for an emergency situation and seeking complete exemption from the environmental laws for a permanent facility (60 N.Y.2d, at 20-21). There was absolutely no proof in the record to support the finding of the Court of Appeals herein that prelimi- nary federal environmental studies had been performed sufficient to satisfy the requirements of New York law. There was thus no basis for the finding of the Court of Appeals that there had been “substantial compliance with the requirements of the EDPL in this case” (22a-23a). There was no proof as to the substance or content of any such studies. The Court of Appeals also found that an exemption existed under a regulation providing that “civil or crimi- nal enforcement proceedings” are not required to comply with SEQRA (24a; 64a). This provision is inapplicable on its face. This is not a proceeding to require the Raceway to comply with the environmental laws. The statute clearly pertains only to such situations so that duplicative environmental stu- dies are not required prior to corrective action taken pursuant to environmental studies which were the basis for the enforcement proceedings itself. See New York Public Interest Research Group, Inc. v. Town of Islip, 71 N.Y.2d 292, 303-4; 520 N.E.2d 517 (1988). It is respectfully submitted that the determination of the important issues raised by the Raceway in the Arti- cle 78 proceeding as a defense to the condemnation was so contrary to settled state law, as declared by New York’s highest court, as to warrant review by this Court. 20 CONCLUSION This Court should review this case because of the sig- nificant increase of the jurisdiction of the district courts, contrary to the expressed will of Congress, resulting from the decision of the Court of Appeals; the conflict between decisions of this Court and the subject determination concerning the removal jurisdiction of the district courts and the scope of the All Writs Act and the conflict be- tween applicable New York precedent and the determina- tion of the Court of Appeals on important issues of state law. Respectfully submitted, ROBERT D. MEADE * WILLIAM P. HARRINGTON BLEAKLEY PLATT & SCHMIDT One North Lexington Avenue White Plains, NY 10601-1700 Telephone: (914) 949-2700 Attorneys for Petitioner * Counsel of Record APPENDICES ae la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Nos. 1504, 1505 August Term, 1987 (Argued: July 20, 1988 Decided: Sep. 22, 1988) Docket Nos. 88-6140, -6146 YONKERS RACING CORPORATION and ST. JOSEPH’S SEMINARY AND COLLEGE Petitioners-A ppellants, , 2 CITY OF YONKERS Respondent-A ppellee, and UNITED STATES OF AMERICA and YONKERS BRANCH, NAACP, et al., Intervenors-A ppellees. Before: ALTIMARI and MAHONEY, Circuit Judges, and KORMAN, District Judge.* * The Honorable Edward R. Korman, United States District Court for the Eastern District of New York, sitting by designation. | | 2a Appeals from an order denying petitioners-appellants’ motions to remand to state court, following removal, Article 78 proceedinsg commenced in the Supreme Court of the State of New York, Westchester County and from an order denying and dismissing on the merits petitions for relief pursuant to Article 78, entered in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge). Affirmed in part, vacated and remanded in part. Judge Mahoney dissents in a separate opinion. ROBERT D. MEADE and MICHAEL J. TRAINOR, White Plains, New York (Bleakley & Schmidt, White Plains, New York, of counsel), for Petitioners-Appellants. MICHAEL W. SCULNICK, New York, New York (Stanley R. Strauss, Vedder, Price, Kaufman, Kamm- holz & Day, New York, New York; Paul W. Pickelle, Corporation Counsel, City of Yonkers, Yonkers, New York; Rex E. Lee, Carter G. Phillips, Mark D. Hopson, Gary I. Resnick, Sidley & Austin, Washington, D.C., of counsel) , for Respondent-Appellee. LINDA F. THOME, Attorney, United States Depart- ment of Justice, Washington, D.C. (Wm. Bradford Reynolds, Assistant Attorney General, David K. Flynn, Attorney, Department of Justice, Washington, D.C., of counsel), for Intervenor United States of America. MICHAEL H. SUSSMAN, Counsel, Yonkers Branch, NAACP, Yonkers, New York (Sussman & Sussman, Yonkers, New York, of counsel), for Intervenors Yonkers Branch, NAACP, et al. ALTIMARI, Circuit Judge: These two separate appeals, which we have consolidated for purposes of this opinion, follow from the housing remedy portions of a prior judgment, entered in the United States District Court for the Southern District of New York (Sand, J.), finding the City of Yonkers pnts MVR Scans 3a (the “City” or “Yonkers”) liable for a pattern and prac- tice over a span of forty years of deliberately concen- trating federal subsidized lew income housing in the southwest quadrant of Yonkers in order to maintain racial segregation, and ordering Yonkers, inter alia, to provide sites for 200 units of public housing in non- minority areas of the city. United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), and Housing Remedy Order, 635 F. Supp. 1577 (S.D.N.Y. 1986), aff'd, 837 F.2d 1181 (2d Cir. 1987), cert. denied, 108 S. Ct. 2821 (1988). This case concerns the consent decree (“Consent Decree”) reached between the City of Yonkers, the United States and the Yonkers chapter of the National Association for the Advancement of Colored People (NAACP) designating 7 public housing sites for 200 units of housing east of the Saw Mill River Parkway. Two of these sites currently are owned by petitioners- appellants Yonkers Racing Corporation (the “Raceway’’) and St. Joseph’s Seminary and College (the “Seminary’’), respectively. Pursuant to the terms of the Consent De- cree approved by the Yonkers city council (the “City Council”) and entered by the district court on January 28, 1988, the City initiated, under pain of contempt, con- demnation proceedings in state court against the Race- way and Seminary sites. Thereafter, the Raceway and the Seminary filed separate petitions against the City in the Supreme Court of the State of New York, West- chester County, pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR), seeking to en- join the condemnation of their respective properties. On May 27, 1988, Judge Sand ordered the City of Yonkers to remove the Article 78 proceedings to the district court. The Raceway and the Seminary appeal from an order denying their motions to remand the Article 78 pro- ceedings back to state court and from an order dis- missing their Article 78 petitions on the merits. The 4a district court held that removal was authorized under the federal removal statutes, 28 U.S.C. §§ 1441, 1443, and the All Writs Act, 28 U.S.C. § 1651. In addition, the court determined that the extraordinary nature of the proceedings warranted application of statutory exemp- tions from the notice, hearing and review requirements of the New York Eminent Domain Procedure Law (EDPL) and from the provisions of the State Environ- mental Quality Review Act (SEQRA). The district court also found that, even if such exemptions did not apply, there was such substantial compliance with the notice, hearing and review provisions of state law that petition- ers’ statutory rights were not violated. Finally, the district court considered the Seminary’s first and four- teenth amendment free exercise challenge to the taking of its property and held that, since the inclusion of the Seminary’s property was an integral part of the Consent Decree and thus essential to efforts designed to remedy racial segregation in housing, no valid claim for a vio- lation of the first amendment had been advanced. On appeal, the Raceway and the Seminary principally contend that removal was improper under the federal removal statutes and the All Writs Act since only a defendant is permited to remove and the City of Yonkers was a plaintiff, not a defendant, in the underlying con- demnation proceedings. Petitioners further contend that not only are the exemptions to the EDPL and SEQRA inapplicable but that full compliance with the notice, hearing and review provisions of the statutes is required. The Seminary separately argues that the district court erred in rejecting its free exercise defense to the con- demnation of its property without the benefit of a hear- ing to determine whether other reasonable alternatives exist to the taking of religiously owned and used prop- erty. For the reasons that follow, we affirm the district court’s order denying petitioners’ motions to remand for site tilahahinddla Qgha i a Or aa” PO ad Be eR A cl: 5a lack of federal removal jurisdiction, but solely on the authority of the All Writs Act. We also affirm the court’s order dismissing the Article 78 petitions in all respects except with regard to the Seminary’s first amendment challenge to the taking of its property which is remanded to the district court for further considera- tion. BACKGROUND The underlying facts of the Yonkers litigation are set forth in exhaustive fashion in Judge Kearse’s recent opinion affirming the district court’s finding of liability against the City under both Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act”), 42 U.S.C. § 3601 et seq., and the equal protection clause of the fourteenth amendment, and therefore need not be restated here. For our purposes, it suffices simply to emphasize that this court concluded, as did Judge Sand, that “ ‘the extreme concentration of subsidized housing that exists in South- west Yonkers today is the result of a pattern and prac- tice of racial discrimination by City officials, pursued in response to constituent pressures[,] to select or support only sites that would preserve existing patterns of racial segregation, and to reject or oppose sites that would threaten existing patterns of segregation.’” 837 F.2d at 1194 (quoting 624 F. Supp. at 1373). To remedy the statutory and constitutional violations, the district court in part ordered the City to fulfill its pre-existing commitment with the Department of Housing and Urban Development (HUD) to provide sites for 200 units of public housing east of the Saw Mill River Park- way funded by HUD’s Community Development Block Grant program. 635 F. Supp. at 1580. Following this court’s affirmance of the housing remedy order, the City, in January 1988, entered into extensive negotiations with the Department of Justice and the NAACP concerning compliance by the City with its obligation under the Housing Remedy Order to designate public housing sites. 6a Under threat of contempt sanctions by the district court for noncompliance with the Housing Remedy Order, the City eventually reached an agreement with the Depart- ment of Justice and the NAACP designating 7 sites on which to build a total of 200 units of public housing. The agreement was incorporated into the Consent Decree which required the City to initiate eminent domain pro- ceedings, if necessary, to acquire these sites within 60 days. As part of the Consent Decree, HUD was to review and approve the housing sites while the City was in the process of acquiring title to the 4 designated properties which were privately owned. Within 80 days of the entry of the decree, final HUD approval was to have been obtained and the City was to have solicited proposals from developers for construction of the housing. Two of the privately owned properties included the Raceway site, a 1.2-acre parcel now used as a parking lot and currently slated for 24 units of housing, and the Seminary site, a 2-acre parcel on the border of the Semi- ary’s 44-acre property and also currently slated for 24 units of housing. On January 25, 1988—the date that the City reached agreement with the United States on the Consent Decree—the Roman Catholic Archdiocese of New York on behalf of the Seminary issued a statement concerning the designation of the Seminary site: The Archdiocese of New York has been informed that there has been a recent decision to build units of affordable housing upon property now belonging to the Archdiocesan Major Seminary, Saint Joseph’s, in the Dunwoodie section of Yonkers. Since it has been decided to proceed with these plans, the Arch- diocese will do everything possible to promote the success of the effort .... Advised of the Cardinal’s intent to facilitate the con- struction of public housing on the Seminary site, Judge Sand welcomed the Church’s participation and support. A month later, the City of Yonkers, pursuant to the tl NS: tthe thn te AE: Aah BAe a Me LO Ee Det a Hn ar Bina Ta terms of the Consent Decree, made offers of purchase to the owners of each privately owned site; the Archdiocese rejected the City’s offer on March 18, 1988. On March 21, John Cardinal O’Connor wrote to Judge Sand stating that while the Archdiocese supported the addition of public housing in Yonkers, it believed there were “serious problems in the current plan.” Cardinal O’Connor ex- pressed concern that four of the seven housing sites would be located in one parish in southeast Yonkers. The Cardinal also objected to the public perception that he had “volunteer[ed]” the Seminary site. His Eminence explained that he had decided in January to “ ‘yield gra- ciously’” to the City, apparently believing (albeit er- roneously, as it later became apparent) that the Seminary site would be condemned with or without his consent. The district court responded by suggesting that the City and the Archdiocese consider substituting an alter- nate site in place of the Seminary property. In the interim, the court ordered the City of Yonkers to initiate eminent domain proceedings against the Seminary as well as against the Raceway, which also had rejected the City’s offer to purchase its property. On April 24, 1988, two days after the City filed condemnation petitions in state court, the Cardinal declared that the Consent De- cree was “fatally flawed.” In addition, he said he was “deeply resentful” of the process which led to the con- demnation action and which put the Archiocese in the “humiliating position” of being perceived as “so resistant to making the property available that the court had to require the city to condemn the property.” The City of Yonkers then attempted to vacate the Consent Decree on the basis of a “mutual mistake” be- tween the City Council and the Archdiocese. In support of its motion to vacate under Fed. R. Civ. P. 60(b) dated May 2, 1988, the City argued that the Cardinal’s endorse- ment of the Consent Decree and his willingness to sell the Seminary site had been essential to the City’s ap- OOOO Vn en 8a proval of the decree—the support of the Catholic Church being critical in order to achieve acceptance of the hous- ing plan by the City’s residents, a substantial proportion of whom are Catholic. At oral argument on the motion to vacate, the district court determined that while the Cardinal’s support for the Consent Decree had been a “welcome occurrence,” it had not been so crucial that his subsequent withdrawal of support was sufficient to in- validate the decree. In any event, the court noted that, even assuming there had been a mistake, the proper cause of action for the City was simply to propose a modifica- tion of the Consent Decree designating an alternative to the Seminary site. Judge Sand thereupon directed the City to meet with the Archdiocese to see if some ac- commodation could be reached. Meanwhile, the Seminary and the Raceway filed an- swers with affirmative defenses to the condemniation pe- titions, and on May 11, 1988, instituted Article 78 pro- ceedings against the City claiming that the proposed condemnations were “null and void.” The parties also sought injunctive relief preventing the City from acquir- ing the two sites. By the end of May, once it became clear that the City and the Archdiocese had failed to reach any agreement regarding the designation of an al- ternate housing site and that the City Council would not propose any modification of the Consent Decree, the United States filed an order to show cause in the district court seeking removal of the Article 78 proceedings from state court. On May 27, 1988, the district court granted the order directing the City to remove the Article 78 proceedings to federal court and permitted the United States and the NAACP, plaintiffs in the underlying civil rights litigation, to intervene as respondents. In ordering removal of the Article 78 proceedings, the district court explained: During the informal discussions which preceded entry of the consent decree, the question was raised 9a whether [the] condemnation proceedings should be commenced in [the district] court or in state court. It was then the understanding of the parties that the sole issue which would be present in the condemna- tion proceedings related to value, that is, the amount to be paid to the property owner whose land was condemned by the City of Yonkers in implementa- tion of the housing remedy order. It was with that understanding and intention that the consent decree did not contain a provision requiring that the con- demnation proceedings go forward in [the district] court. ... Judge Sand also found a “significant risk’ if removal were not ordered that the City of Yonkers “|would]| be confronted with inconsistent orders from two courts |—] . an order of {the district] court to proceed with the condemnation of the two properties, and an order of [the] state court either not to proceed with that condem- nation or to proceed pursuant to [procedures] and a time- table . . . inconsistent with [that] established by [the district] court.” While the All Writs Act was, accord- ing to Judge Sand, to be invoked only as a “last resort.” the court determined that, rather than allow the parties to go forward in state court knowing full well that there would be resort to the district court for injunctive relief against the implementation of any state court order in- consistent with the Consent Decree, the “more appropri- ate procedure” was for the district court to exercise re- moval jurisdiction over the Article 78 proceedings in the first instance. In sum, the court characterized the Ar- ticle 78 proceedings as a “classic case” for invocation of the All Writs Act to effectuate removal. Following removal, petitioners filed motions to remand the Article 78 proceedings to state court. On June 8, 1988, the district court heard argument from counsel on the motions to remand, the merits of the Articl pro- ceedings and the City’s motion to vacate the ™®onsent 10a Decree. With regard to the motions to remand, the court held that removal was authorized under the general fed- eral removal statute, 28 U.S.C. § 1441, the civil rights removal statute, 28 U.S.C. § 1443, and the All Writs Act. The court further stated that removal was ap- propriate because the petitioners’ defenses to the con- demnation were best litigated in federal court with the benefit of an existing record, that removal would not de- prive petitioners of their right to be heard on the merits of their Article 78 petitions, and that removal would eliminate the possibility of inconsistent orders from two courts. On the merits of the Article 78 petitions, the district court concluded that the “emergency situation” provision of section 206(D) of the EDPL applied in the instant case to exempt the City of Yonkers from compliance with the notice, hearing and review requirements of the stat- ute, and that the proposed condemnations were exempt from SEQRA pursuant to the court order provisions of SEQRA’s implementing regulations. 6 NYCRR § 617.2 (q). Moreover, according to the district court, the proc- ess by which the public housing sites were designated and reviewed constituted substantial compliance with the pur- pose of the notice, hearing and review requirements of state law. As for the Seminary’s free exercise challenge, the dis- trict court indicated that aside from the issue of the validity of the Seminary’s claim of a protectible religious purpose for the two-acre site under the first amendment, the alleged interference with the pastoral contemplative atmosphere of the only seminary in the Archdiocese had to be balanced against the need to vindicate the federal constitutional rights of those citizens of Yonkers who have been denied fair housing. In striking the balance in favor of vindication of fair housing rights, the court found the inclusion of the Seminary site in the Consent Decree to be essential. alah Skt ie moles? e*, Bat LIER AEP AP AEI OD IEE te 5k LAB III te odie Reith N matey 7 tacks ea: ON at a fe kre call ad “ rth ae Aide aA i Bees bie ww A lla Accordingly, the district court denied petitioners’ mo- tions to remand and the City’s motion to vacate the Con- sent Decree,! dismissed the Article 78 petitions, and or- dered the Seminary and the Raceway to “present to [the state c]ourt a proposed order stating that, insofar as all substantive grounds for objection to the proceedings in question have been . . . resolved in [federal cJourt,... the eminent domain proceedings shall go forward in ac- cordance with State law ... to determine the sole re- maining issue of valuation of [the] properties.” DISCUSSION I. JURISDICTION A. The Removal Statutes Section 1441(a) of Title 28 provides in pertinent part that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... , to the district court ... for the district . . . where such ac- tion is pending” (emphasis added). The civil rights re- moval statute, 28 U.S.C. § 1443(2), provides in pertinent part that any civil action commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law” may be removed “by the defendant to the district court . . . for the district . . . embracing the place wherein it is pending” (emphasis added). The initial question to be considered on this appeal is whether the City of Yonkers was correctly deemed by the district court to be a defendant for removal pur- poses under either statute. Appellants argue that Yonk- 1The City of Yonkers has not sought appellate review of the denial of its motion to vacate the Consent Decree and indeed is precluded from doing so under the terms of that decree. 12a ers was not a proper party to petition the state court to remove the Article 78 proceedings since it was the plaintiff in the underlying condemnation proceedings, and the Article 78 proceedings were merely state law pro- cedural vehicles for raising defenses to the condemnation petitions. See Matter of Piotrowski v. Town of Glenville, 101 A.D.2d 654, 475 N.Y.S.2d 511, 512 (3d Dep’t 1984) (defenses to condemnation action are properly brought via an Article 78 proceeding) ; but cf. Town of Coxsackie v. Denver, 105 A.D.2d 966, 482 N.Y.S.2d 106, 107 (3d Dep’t 1984) (challenge to condemnation may be made by an answer in that proceeding). In this regard, ap- pellants cite two Supreme Court decisions, Mason City & Fort Dodge R.R. v. Boynton, 204 U.S. 570, 579-80 (1907) and Chicago, Rock Island & Pac. R.R. v. Stude, 346 U.S. 574, 580 (1954), for the proposition that, re- gardless of the state’s procedural provisions, where a party seeks to remove a condemnation proceeding to fed- eral court, the condemnor is the plaintiff and the con- demnee is the defendant. The United States and the NAACP ” intervenors herein, responded by pointing out that the actions removed from state court were the Article 78 proceedings, not the un- derlying condemnation proceedings. Indeed, the condem- nation actions are still pending in state court. In the Article 78 proceedings, the City of Yonkers clearly was the defendant. Intervenors argue that the Article 78 actions were separate proceedings from the condemnation * In the district court, the City of Yonkers opposed Judge Sand’s assertion of removal jurisdiction over the Article 78 proceedings. In its brief on appeal, the City has again questioned whether the district court properly “divest[ed] the New York Supreme Court of jurisdiction to resolve the Article 78 proceedings.” City of Yonkers Brief at 8. Nevertheless, because in the City’s view “it would be wasteful to require the matters to be relitigated in the state court,” id. at 9, the City has argued on appeal in favor of an affirmance on the jurisdictional issue as well as on the disposition of the merits of the Article 78 petitions. eerie eee si ie is Deh AB ESR RAEN obi Ay be Hii LS is NitleS i Dag MRO DD 13a actions and that the Mason City and Chicago, Rock Is- land decisions are distinguishable. Both Supreme Court decisions cited by appellants in- volved Iowa eminent domain statutes under: which the condemnee was required to initiate a proceeding contest- ing the assessment of the condemned property’s value ar- rived at by a sheriff’s jury. In that separate proceeding, the condemnee was the plaintiff under state law. In each case, the Supreme Court held that in construing the re- moval statute, federal law determined who was the plain- tiff and who was the defendant, Chicago, Rock Island, 346 U.S. at 580; Mason City, 204 U.S. at 579; see Sham- rock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941) (state procedural law cannot supersede privilege of re- moval granted by federal statute), and that the con- demnor remained the plaintiff for purposes of removal. Intervenors contend that the Article 78 proceedings were fundamentally different from the state court actions in Mason City and Chicago, Rock Island, which consti- tuted challenges to property valuations. Their argument essentially is that the issues decided in the removed Ar- ticle 78 proceedings—whether the City complied with state procedural requirements, whether the sites were properly designated, and whether the condemnation of the Seminary site violated the first amendment—were separate issues resolvable apart from the question of the valuation of appellants’ properties, the sole remaining question in the condemnation actions. On the other hand, as appellants persuasively point out, the defenses they raised in their answers to the condemnation petitions were identical to their claims in the Article 78 petitions. In view of the foregoing, we have serious doubts in light of Mason City and Chicago, Rock Island whether the removal statutes provided a proper basis to compel the City of Yonkers to remove the Article 78 proceed- l4a ings to federal court. Quite simply, a party who is in the position of a plaintiff cannot remove. Cf. White v. Well- ington, 627 F.2d 582, 586 (2d Cir. 1980) (“right to re- move is statutory, jurisdictional and absolute’). Never- theless, we need not resolve this difficult question since the district court asserted an independent basis for re- moval jurisdiction under the All Writs Act. We turn now to consideration of removal under that statute. B. The All Writs Act The All Writs Act (the “Act”) provides that federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The Act “authorizes a federal court in exceptional circum- stances to issue such orders to persons ‘who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirma- tive action to hinder justice.’” Benjamin v. Malcolm, 803 F.2d 46, 53 (2d Cir. 1986) (emphasis added) (quot- ing United States v. New York Telephone Co., 434 U.S. 159, 174 (1977) (citations omitted)); cert. denied, 107 S. Ct. 1358 (1987). Although the Supreme Court has indicated that the All Writs Act, as a “residual source of authority,” ordinarily does not empower federal courts “to issue ad hoe writs” to circumvent compliance with a statute that “specifically addresses the particular issue at hand,” the Act may be invoked “to fashion extraordi- nary remedies when the need arises.” Pennsylvania Bu- reau of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985); see United States Alkali Export Ass’n v. United States, 325 U.S. 196, 201-04 (1945) (“extraordinary power” of All Writs Act may be in- voked even when another federal statute ordinarily would govern the issue). oi Stee RAs ee A ot 7a 15a Petitioners maintain that the federal removal statutes are the exclusive sources of removal jurisdiction. We dis- agree. In Pennsylvania Bureau of Correction, the Su- preme Court expressly left open the question of the avail- ability of the All Writs Act in exceptional circumstances to issue the writ when traditional statutory procedures clearly are inadequate. See 474 U.S. at 43. In this case, the district court was confronted both with the need to vindicate the constitutional rights of those in Yonkers who have been denied fair housing and the very real possibility that the City of Yonkers would be subjected to inconsistent orders from the state court and the federal court. Cf. Alkali, 325 U.S. at 203 (‘‘asserted conflict” between jurisdiction of federal court and that of govern- ment agency warranted exercise of power of All Writs Act to issue writ of certiorari in order to obtain review of interlocutory order). The Supreme Court has made clear “the power of a federal court to issue such com- mands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdic- tion otherwise obtained.” New York Telephone Co., 434 U.S. at 172; accord Pennsylvania Bureau of Correction, 474 U.S. at 40. The obligation of the City of Yonkers under the Con- stitution of the United States to remedy violations of civil rights is paramount. See, e.g., Cooper v. Aaron, 358 U.S. 1, 18-20 (1958); Brown v. Board of Educ. II, 349 U.S. 294, 300-01 (1955). The fact that petitioners were not parties to—and in their words “had absolutely no connection with’—the underlying discrimination lawsuit is of little consequence. The Raceway and the Seminary are in a position now—whether willingly or not—to frus- trate implementation of the Consent Decree. We believe this is just the sort of extraordinary circumstance en- visioned by the All Writs Act. | 16a This court previously has held that the All Writs Act enables a federal court in an exceptional case to exercise its “residual jurisdictional authority” to issue orders against non-parties to a civil rights action in order to vindicate the constitutional rights of existing parties. See Benjamin v. Malcolm, 803 F.2d at 53. In Benjamin, we affirmed an order of the district court joining, as third- party defendants pursuant to Fed. R. Civ.. P. 19(a) and the All Writs Act, state officials who were “ ‘in a posi- tio to frustrate the implementation of a court order’ ”’ to alleviate overcrowding in New York City’s detention cen- ter on Rikers Island. Jd. (quoting New York Telephone Co., 484 U.S. at 174). In rejecting the state’s claim that the district court could not assert jurisdiction over state officials under the All Writs Act, we noted that the dis- trict court “was faced with the necessity of acting im- mediately to relieve already-adjudicated unconstitutional conditions . . . and of avoiding the delay that would be entailed in the relitigation of those conditions.” Jd. Con- sequently, we held that exceptional circumstances justi- fied the exercise of jurisdiction under the All Writs Act. In the instant case, the record indicates that had the district court known from the outset that the Raceway and the Seminary would challenge the designation of their properties for condemnation as “null and void,” the Consent Decree would have included a provision requir- ing that the condemnation proceedings be instituted in federal court, presumably under the “residual jurisdic- tional authority” of the All Writs Act. In retrospect. the assertion by the district court of jurisdiction in the first instance over the condemnation of petitioners’ properties might have been a better course of action. We certainly would be less troubled by the use of the All Writs Act to initiate the condemnation proceedings in federal court had Judge Sand deemed petitioners to be necessary third parties to the implementation of the Consent Decree in the underlying civil rights litigation. Nevertheless, we thls etacbetadintet ses daatn tial 17a must decide the case before us, and as a practical matter we see no reason why it is any less “necessary or ap- propriate” at this stage of the proceedings to invoke the authority of the All Writs Act. Cf. In re Baldwin-United Corp., 770 F.2d 328, 337 (2d Cir. 1985) (using All . Writs Act to enjoin non-parties from commencing actions : in state court where such proceedings would “threaten [] to frustrate proceedings in a federal action”). Moreover, were we to decide that removal was improper under the All Writs Act, the state court would be faced with a . situation in which any order it issued that was incon- sistent with the Consent Decree would be subject to the injunctive powers of the federal court under the excep- tion provisions of the Anti-Injunction Act. See 28 U.S.C. § 2283 (fededal court may not grant injunction against state court “except as expressly authorized by . . . Con- gress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments”) ; see also Swann v. Charlotte-Mecklenburg Bd. of Educ., 501 F.2d 383, 384 (4th Cir. 1974) (possibility of “conflicting orders from state and federal courts” sufficient to warrant injunctive relief against state court under 28 U.S.C. § 2283). Use of the All Writs Act in this case to effectuate removal thus seems to us to be a less drastic, and therefore pref- erable, result. In sum, we agree with the district court that this is indeed an exceptional case. While we too have confidence in the “ability, objectivity, [and] integrity of the state court” to render an appropriate decision in an Article 78 proceeding, the fact remains, as the district court recognized, that “the issues raised [by the Article 78 proceedings] go to the very essence” of the Consent Decree. If this case simply involved ordinary condemna- tion proceedings collateral to the implementation of the housing remedy order, that would be one thing. Cf. Pennsylvania Bureau of Correction, 474 U.S. at 40 (All Writs Act does not authorize federal court to order a eEEEEEEEEEEEEeeee| 18a United States Marshals “to transport state prisoners from state prisons to the federal couthouse in the ordin- ary course of litigation”) (emphasis added). But as the United States has recognized, “[t]he City’s condemnation petitions, initiated pursuant to court order, must be seen in the context of the Yonkers [civil rights] litigation. The condemnor here is not the City acting in isolation|[,] but the City acting at the behest of the court[,] the Yonkers plaintiffs and . . . ‘the people who have been deprived of opportunities for housing free of racial dis- crimination.’”’ Department of Justice Brief at 37 (quot- ing Judge Sand, Transcript of Proceedings, June 8, 1988). Despite the City’s assurances through its counsel that it would vigorously defend against the Article 78 peti- tions, we have serious doubts whether a reluctant con- demnor, which at every opportunity has resisted imple- mentation of the Housing Remedy Order, could be counted on in state court to adequately protect the in- tegrity of the Consent Decree. To believe otherwise would be to ignore the fact that Yonkers entered into the Con- sent Decree and instituted the condemnation proceedings only after being threatened by the district court with sanctions for contempt. “One must realistically deal with the fact,” Judge Sand explained, “that the positions which the city would be compelled to take in [state court] would be significantly contrary to positions taken by [it] in [the district] court.” The inconsistency of these positions convinces us, therefore, of the necessity to exercise re- moval jurisdiction to prevent frustration of the Housing Remedy Order. Accordingly, we hold that removal was proper under the All Writs Act. We do so because removal was neces- sary to protect the integrity of the Consent Decree and because the issues raised by the Article 78 petitions can- not be separated from the relief provided by the Consent Decree. Cf. Swann v. Charlotte-Mecklenburg Bd. of > sre ln, tna rireetnaleens 19a Educ., 501 F.2d at 384 (affirming issuance of injunction under Anti-Injunction Act because “issues being litigated in the state court proceeding could not be separated from the issues and relief involved in the federal court suit”). The implementation of that decree takes precedence over petitioners’ desire to have the defenses to the condemna- tion of their properties litigated in state court. Cf. North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971). Given the exceptional circumstances presented here, it is clear that the power of the All Writs Act ex- tended over petitioners who were “in a position to frus- trate the implementation” of the Consent Decree. New York Telephone Co., 434 U.S. at 174. If the power exists to issue extraordinary orders under the Anti-Injunction Act and the All Writs Act to prevent the prosecution of state proceedings, surely in this case it also exists to effectuate removal notwithstanding the availability of an independent basis for the exercise of jurisdiction under the federal removal statutes. In any event, by removing the Aritcle 78 proceedings io federal court, petitioners are not being deprived of their statutory right to assert defenses to the taking of their properties; they are merely being prevented from litigating those defenses in state court. We conclude, therefore, that because of the sig- nificant risk of inconsistent decrees from two courts, it was “necessary or appropriate” for the distriet court to invoke the residual jurisdictional authority of the All Writs Act. II. THE MERITS OF THE ARTICLE 78 PETITIONS A. EDPL The Raceway and the Seminary contend on the merits that the City failed to comply with the notice, hearing and review requirements of Article 2 of New York’s Eminent Domain Procedure Law (EDPL). In its con- demnation petitions, the Citv claimed to be exempt from compliance with the procedural requirements of the stat- 20a ute pursuant to the “emergency situation” provision of La EDPL § 206. : Section 201 of the EDPL provides that, “prior to acqui- sition, the condemnor, in order to inform the public and / to review the public use to be served by a proposed public project and the impact on the environment and residents of the locality where such project will be constructed, shall conduct a public hearing.” The hearing must be held on at least ten days prior notice, EDPL § 202, and following the hearing, the condemnor is required, within ninety days, to make findings and a determination of the public purpose to be served by the proposed condem- nation. EDPL § 204. The factors to be considered in making such determination and findings include: (1) the public use, benefit or purpose to be served by the proposed public project; (2) the approximate location for the proposed public project and the reasons for the selection of that loca- tion; (3) the general effect of the proposed project on the environment and residents of the locality; (4) such other factors as [the condemnor] considers relevant. Id. § 204(B). A condemnor is exempt from compliance with the pro- visions of Article 2 of the EDPL when, inter alia, “be- cause of an emergency situation the public interest will be endangered by any delay caused by the public hearing requirement in this article.” Id. § 206(D). The district court found that “[cJontrary to the claims of St. Jo- seph’s and the Raceway, the City of Yonkers, in a very real sense, is faced with an emergency” (emphasis in original). As the court further explained, “[t]his mat- ter must end” because it is “tearing Yonkers apart and Yonkers is bleeding,” FE ——————— 2la | We believe that the district court’s factual finding of such an “emergency situation” is amply supported by . the record. See id. §207(C)(3), (4) (“seope of the review shall be limited to whether . . . determination and findings were made in accordance with procedures set forth in [Article 2], and [whether] a public use, benefit or purpose will be served by the proposed acquisition”’) ; see also Gerges v. Koch, 62 N.Y.2d 84, 476 N.Y.S.2d 73 (1984) (emergency situation presented by prison over- crowding warranted temporary exemption under New York City’s Environmental Quality Review (CEQR) pro- cedures, which parallel provisions of SEQRA, from filing environmental impact statement in order to begin reno- vation and construction of facilities as remedy for dep- rivation of constitutional rights of prisoners) ; Board of Visitors-Marcy Psychiatric Center v. Coughlin, 60 N.Y. 2d 14, 466 N.Y.S.2d 668 (1983) (same, except pursuant to SEQRA); City of Yonkers v. Hvizd, 93 A.D.2d 887, 461 N.Y.S.2d 408 (2d Dep’t 1983) (existence of emer- gency situation endangering public interest warrants application of EDPL 206(D) exemption); Matter of Village of Malverne, 70 A.D.2d 920, 418 N.Y.S.2d 93 (2d Dep’t 1979) (same). More than two years after the issuance of the Housing Remedy Order and eight years since the commencement of the civil rights action, no housing remedy has been implemented. The public inter- est cannot wait any longer. We thus agree with the district court that the “1200 people on the waiting list for public housing in Yonkers have a right to a remedy,” and in our judgment any further delay—aside from that which is necessary to address the first amendment claim of the Seminary as discussed in Part II. C. below— would be intolerable. Appellants maintain that the only emergency in this case is the result of Yonkers own intransigence, and con- sequently that full compliance with the terms of the statute cannot be excused. We disagree. An assessment of blame regarding the predicament in which Yonkers eon 22a presently finds itself is quite frankly irrelevant to a determination of whether or not Yonkers is faced with an “emergency situation” under the statute. Cf. Gerges, 62 N.Y.2d at 95, 476 N.Y.S.2d at 78 (that municipal officials “might have foreseen and . . . made appropriate provision for . . . resolution” of emergency situation re- garding constitutionally inadequate prison facilities “does not negate the existence of the present crisis”). Indeed, the very purpose of the exemption provisions under Ar- ticle 2 of EDPL is to excuse compliance with the pro- cecural requirements of the statute when the public inter- est so requires. See City of Buffalo Urban Renewal Agency v. Moreton, 100 A.D.2d 20, 473 N.Y.S.2d 278, 221 (4th Dep’t 1984); see also Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 305 (1986) (“principal purpose of Article 2... is to ensure that [the condemnor] does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose’’). Appellants concede that the construction of low income housing in Yonkers required by the Housing Remedy Order would serve a valid public purpose. In addition, as the district court stated, “[t]he process by which the public housing sites designated in the Consent Decree were determined, the notoriety of that process, the review already given to those sites and the continuing review . . . by HUD certainly satisfied the substance of the State law provisions upon which St. Joseph’s and the Raceway predicate their claims.” See also Aswad v. City School Dist., 74 A.D.2d 972, 425 N.Y.S.2d 896, 898 (3d Dep’t 1980) (holding that “substantial compliance” with ex- emption provisions of section 206 and four factors enum- erated in section 204(B) was sufficient to confirm pro- posed condemnation). We agree that there was substan- tial compliance with the requirements of the EDPL in this case. During extensive proceedings before the dis- trict court, the City’s independent planning experts, the 23a court-appointed Outside Housing Advisor, the Municipal Housing Authority and the City’s Community Develop- ment Agency all participated in a thorough review of the location, distribution and suitability of the 7 designated sites. With regard to the “general effect’ of the proposed condemnations “on the environment and residents of the locality,” EDPL § 204(B)(3), HUD conducted a pre- liminary evaluation as part of its ongoing review of the sites and reported to the district court that the housing plan appeared to meet site, neighborhood and environ- mental standards for public housing. See generally 24 C.F.R. § 941.202 (1988). Consequently, given the undisputed public purpose inherent in the implementation of the Housing Remedy Order and the nature and extent of the review process, we are convinced that there was a valid determination that the proposed condemnations would be in the public interest as required under Article 2 of the EDPL. B. SEQRA The New York State Environmental Quality Review Act (SEQRA), Environmental Conservation Law (ECL) § 8-0101 et seqg., requires the preparation of an environ- mental impact statement (EIS) by state and local agen- cies “on any action they propose or approve which may have a significant effect on the the environment.” /d. § 8-0109(2) (emphasis added). Pursuant to regulations adopted thereunder, the Department of Environmental Conservation has determined the types of actions having such a “significant effect”? (‘Type I’ actions) for which an EIS must be prepared. 6 NYCRR § 617.12. When an EIS is required, the full panoply of procedures prescribed under SEQRA comes, into play. See ECL § 8-0109. If, on the other hand, it is determined that the proposed action is one not likely to have a significant effect on the en- vironment (“Type II” action), then such action “do[es] not require [an] environmental impact statement[] or 24a any other determination or procedure’’ under SEQRA. 6 NYCRR § 617.13; see Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 304 (1986) (“the heart of SEQRA is the [EIS] proc- ess”) ; see also CPLR § 7803(3) (scope of review is lim- ited to whether determination was “arbitrary[,] capri- cious or an abuse of discretion’”’). Although appellants concede that the proposed condem- nations of the two sites are not Type I actions requiring the preparation of an EIS, see 6 NYCRR § 617.12(b), they argue nonetheless that an environmental assessment of the proposed condemnations should have been made to determine if there would be a significant impact on the environment. See ECL § 8-0109(4); 6 NYCRR § 617.6 (a) (1) (i). However, as indicated in Part II. A. above, HUD is in the process of conducting an environmental review of the proposed housing sites pursuant to the Na- tional Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. See 24 C.F.R. § 941.208(b) (1988); see also EDPL § 204(B) (3) (requiring consideration by con- demnor of “the general effect of the proposed project on the environment’). Thus, the environmental assessment that appellants seek is in fact taking place. In any event, we agree with the district court that the proposed condemnations of the Raceway and the Semi- nary sites are exempt from compliance with SEQRA. The implementing regulations to SEQRA expressly pro- vide an exemption for actions “required to be under- taken pursuant to a judgment or order” and for “actions . of any court.” 6 NYCRR § 617.2(q) (1), (5). Ac- cordingly, in view of the fact that the City was compelled by a federal court order to institute condemnation pro- ceedings against the subject properties and that there was, as the district court found, a “meticulous inquiry” regarding environmental factors, we conclude that the requirements of SEQRA were satisfied in all respects. 25a C. The First Amendment. We come finally to the Seminary’s challenge to the condemnation of its property on first amendment grounds.® In its Article 78 petition, the Seminary alleged that “[b]ly the inclusion of the subject property in the [Consent Decree] and by the commencement of the con- demnation proceeding, [the City] has attempted to regu- late the use of church owned property without any com- pelling public interest and has sought the acquisition of the subject property in violation of ... the First and Fourteenth Amendments to the United States Constitu- tion.” The Seminary’s position is that, because the dis- trict court recognized on a number of occasions the avail- ability of suitable alternate sites to the Seminary parcel and repeatedly stated its willingness to modify the Con- sent Decree should the City designate such an alternate site, no compelling need existed to justify the proposed condemnation of the Seminary’s property. The first amendment provides that “Congress shall make no law .. . prohibiting the free exercise [or reli- gion].”’ U.S. Const. amend. I; see Cantwell v. Connecti- cut, 310 U.S. 296, 303 (1940) (first amendment free exercise clause is applicable to states through fourteenth amendment). In order to show that a particular govern- mental action implicates the free exercise clause, the aggrieved party must show that the challenged action— in this case, the condemnation of church-owned property 3 The Seminary also challenges the proposed taking of its property under Article I, §3, of the New York State Constitution. The Seminary did not make any argument in the district court or in its brief on appeal, however, based specifically on New York law. We thus are afforded no grounds to consider whether New York’s “free exercise and enjoyment of religious . . . worship” clause provides any broader protection than the first amendment regarding the City’s proposed acquisition of the Seminary site, cf. Brown v. McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497 (1962), and proceed therefore to consider just the Seminary’s federal constitutional claim. 26a —would coerce a violation of religious beliefs or would penalize the practice of religion by denying the aggrieved party “an equal share of the rights, benefits, and privi- leges enjoyed by other citizens.” Lyng v. Northwest In- dian Cemetery Protective Ass’n, 108 S. Ct. 1819, 1325 (1988). See also School Dist of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963 ) (coercion) ; Sherbert v. Verner, 374 U.S. 398, 402-06 (1963) (penalty). The state may, however, justify any such limitation on reli- gious liberty by showing that its action is essential to accomplish an overriding or compelling governmental in- terest. See, e.g., Hobbie v. Unemployment Appeals Comm’n of Florida, 107 S. Ct. 1046, 1049 (1987); Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983) ; United States v. Lee, 455 U.S. 252, 257-58 (1982). The Seminary’s free exercise challenge to the proposed taking of its property raises an issue which has only very rarely been presented. While the condemnation of church property for public use is not unheard of, see, e.g., United States v. 564.54 Acres of Land, More or Less, 506 F.2d 796 (3d Cir. 1974) ; Foster v. Herley, 491 F.2d 174 (6th Cir. 1974); Kozemchak v. Ukrainian Orthodox Church of Am., 443 F.2d 401 (2d Cir. 1971), we are aware of no federal court case in which a religious organization has challenged the taking of real property on free exer- cise grounds. The parties in the instant case, however, have discussed at some length a decision of the Colorado Supreme Court, Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973), in which this precise issue was considered, apparently for the first time. In Piliar of Fire, an evangelical sect sought to enjoin a municipal urban renewal agency from condemning a church building said to have unique religious significance. The building was alleged to be sui generis and the birth- place of the Pillar of Fire denomination. However, the record contained no findings indicating that the trial Jie, 27a court weighed the competing interests of church and state regarding the proposed condemnation. After expressing concern about “direct confrontations of the sort in this case [which] have been avoided because legislatures and administrative bodies have generally accorded great re- spect to religious organizations,” 509 P.2d at 1254 (em- phasis added), the Colorado Supreme Court remanded the case to the trial court for a full hearing. The court noted that the “loss of the Pillar of Fire [Church] would al- legedly go far beyond the incidental burden of having to move to a new location” and, as a result of the competing interests involved, required that on remand a determina- tion be made whether the state had a “substantial inter- est” in the taking of the alleged birthplace of the Pillar of Fire Church “without a reasonable alternate means of accomplishment” of its plans for urban renewal. Id. at 1253-54; see Wisconsin v. Yoder, 406 U.S. 205 (1972) ; Sherbert v. Verner, 374 U.S. 398 (1963); cf. Father Flanagan’s Boys’ Home v. Millard School Dist., 196 Neb. 299, 242 N.W.2d 687 (condemnation of 40-acre tract of farmland owned by church would not substantially inter- fere with church’s school program since more than 900 acres would remain after taking), cert. denied, 429 U.S. 887 (1976). Although the Colorado court conceded that church property could be taken by eminent domain for “paramount public use,” 509 P.2d at 1254 (citation omitted), the court nonetheless concluded that the church was entitled to a hearing on the merits of its first amend- ment claim.* 4 On remand, the trial court found that, despite Pillar of Fire’s allegations to the contrary, the church property was neither the birthplace nor the mother church of the Pillar of Fire denomina- tion. When the case returned to the Colorado Supreme Court on appeal, the court upheld the trial court’s subsequent finding that the church property was not sui generis and also cited evidence from the record supporting the state’s “weighty and substantial” need for the property. Denver Urban Renewal Auth. v. Pillard of Fire, 191 Colo. 238, 552 P.2d 23, 25 (1976). In the court’s view, even had a 28a In support of its claim of a free exercise infringement, the Seminary, during the June 8, 1988 proceedings before the district court, relied principally on an affidavit of Monsignor Edwin O’Brien, the Rector at St. Joseph’s, who stated that the Seminary grounds, including the two acres designated for public housing, form an “apron” of quietude surrounding St. Joseph’s and contribute to the “atmosphere of quiet reflection” essential to the “aca- demic, spiritual, psychological and pastoral” preparation of young men for the priesthood. Monsignor, O’Brien also averred that the two-acre site together with the remain- ing forty-two acres of church property have been used for religious purposes by the Archiocese at least since the opening of the Seminary in 1896 and that “the con- struction of multi-family housing . . . [would] substan- tially affect our work at St. Joseph’s” the only facility in the Archdiocese for the training of new priests. The district court considered without resolving the question of whether the taking of the Seminary’s prop- erty would constitute an interference with the free exer- cise rights of the Archdiocese. Counsel for the Seminary argued before the district court that, because the use of the two acres would substantially affect the work at the Seminary, the condemnation of the site would violate the first amendment. He added, however, that that “doesn’t mean ... the church could not agree voluntarily .. . to use of the property ..., but [the property] is not going to be . . . willingly subjected to condemnation under this plan.” Clearly perplexed by the “varying positions” of the Archdiocese regarding the inclusion of its property as part of the Consent Decree, the district court described Pillar of Fire proven that the church building was sui generis, the record now indicated a substantial state interest in the con- demnation of the building without an alternate means of accom- plishing the urban renewal project. Accordingly, the Colorado Supreme Court affirmed the trial court’s decision allowing the con- demnation of the Pillar of Fire Church. | sina Se 29a the Seminary’s claim of religious interference as equivo- cal: “if there [is] agreement by the Archdiocese with the overall plan, it [would] allow the use of this prop- erty, and that would not interfere with free exercise rights; but since the Archdiocese has reservations .. . with respect to the overall plan, it is resisting the taking on free exercise grounds.” Nevertheless, the district court assumed the validity of the Archdiocese’s claim of religious use of the property and proceeded to balance the competing interests of church and state, finding that the purported constitutional necessity to include the Semi- nary property into the Consent Decree outweighed the Seminary’s first amendment rights. The Seminary argues on appeal that “while it is very true that a remedy for the proven segregative policies of the City is necessary, it is just as true that the Semi- nary property is not necessary to that remedy.” Reply Brief at 22 (emphasis in original). The Archdiocese further contends that the City’s refusal to modify the decree because it believed there were no “politically ac- ceptable” alternatives to the Seminary site is hardly a sufficient reason to justify infringement of a first amend- ment privilege. In the Seminary’s view, therefore, the district court’s conclusion concerning the compelling need for the Seminary’s property was simply not supported by the record. Appellees respond first by claiming that under Lyng the Seminary was unable to show that the condemnation of its property would have a coercive or penal effect on the practice of religion. See 108 S. Ct. at 1325. In Lyng, members of three Indian tribes in northwest California challenged a United States Forest Service plan to build a paved 75-mile road connecting two towns, Gasquet and Orleans, on a 6-mile stretch of land located in the Six Rivers National Forest that, while owned by the federal government, traditionally had been used by the Indians for religious purposes. The Forest Service commissioned 30a a study of the American Indian cultural and religious sites in the Chimney Rock area of Six Rivers which found that the region was integral to Indian religious ritual, and that “privacy, silence, and an undisturbed natural setting” were necessary to the practice of their religion. Id, at 1322. The report accordingly recommended that the roadway not be completed. The Forest Service de- cided, however, not to adopt this recommendation and proceeded to select a route through the Chimney Rock area as far removed as possible from the archeological and other sites used by the Indians for spiritual activi- ties. Alternate routes specifically were considered and rejected “because they would have required the acquisi- tion of private land, had serious soil stability problems, and would in any event have traversed areas having rit- ualistic value to American Indians.” Jd. (emphasis added). The Supreme Court in Lyng held that, notwithstanding the undisputed severe adverse effects completion of the proposed roadway would have on the practice of the Indians’ religion, “[w]hatever rights the Indians may have to the use of the [Chimney Rock] area .. ., those rights do not divest the Government of its right to use what is, after all, 7ts land.” Jd. at 1327 (emphasis in original) (citation omitted). While recognizing that “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment,” the Court noted that “[t]his does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring for- ward a compelling justification for its otherwise lawful actions.” Jd. at 1326 (emphasis added). Appellees seize upon the first amendment principles considered in Lyng in support of their contention that 3la the free exercise clause does not prohibit governmental action that would substantially interfere with the practice of religion so long as the government’s conduct is not actually coercive or penal in nature. We disagree. The Lyng Court declined to determine the “exact line between unconstitutional prohibitions on the free exercise of reli- gion and the legitimate conduct by government of its own affairs.” Jd. The Supreme Court merely held that “whatever” the effect completion of the roadway might have on traditional Indian religious practices, the gov- ernment could not be denied use of its own land. Id. at 1327 (citing with approval Bowen v. Roy, 476 U.S. 693, 724-27 (1986) (O’Connor, J., concurring in part, dis- senting in part) (distinguishing between government’s use of Social Security number in its possession to aid administration of welfare programs and the government’s requiring individual to provide such information)). Be- sides, as Judge Lumbard has recognized, the government’s use of its property involves significantly different con- siderations than the taking by the government of privately-owned religious property. See Wilson v. Block, 708 F.2d 735, 742 n.8 (D.C. Cir.) (Lumbard, J., sitting by designation) (distinguishing Pillar of Fire), cert. denied, 469 U.S. 956 (1983). Incidental burdens on the practice of religion will not suffice to require the state to come forward with a compelling reason justifying its actions. When, as is claimed in this case, however, a proposed governmental action would substantially effect the practice of religion, there exists at least a material issue of fact concerning whether the state has interfered with the free exercise of religion. Cf. Lyng, 108 S. Ct. at 1326; see Wisconsin v. Yoder, 406 U.S. at 218; see also Johnson v. Katz, 68 N.Y.2d 649, 505 N.Y.S.2d 64, 65 (1986) (lack of “material issue of fact” warrants dismissal of Article 78 petition without a hearing) ; CPLR § 7804(h) (requiring hearing on any “triable is- sue of fact’’). 32a The Seminary’s initial willingness to sell the two-acre parcel in January 1988 does not alter our determination that the proposed taking of the Seminary’s property raises a significant question under the first amendment. As the district court itself stated, “if [the] taking [of] these two acres [constitutes] an interference with [the] free exercise of a religion[,] that is the case regardless of what the attitude of the church is to the overall [housing] plan.” There is in our judgment an enormous difference between the Archdiocese agreeing to sell its property and the government proceeding to condemn it. We certainly do not take lightly the Seminary’s claim of interference with a first amendment right. In any event, the district court assumed for purposes of its decision the validity of the Seminary’s claim of religious inter- ference. To have held otherwise, the district court would have had to hold a plenary hearing on the issue. Indeed, since the record before us does not reflect a considered judgment on the religious interference question, we do not preclude the district court on remand from address- ing this issue. Nevertheless, we too accept as true for purposes of this appeal the Archdiocese’s allegations that the taking of the Seminary site would “substantially affect [the] work at St. Joseph’s and that the site is “essential” to the Seminary’s mission. Cf. Pillar of Fire, 509 P.2d at 1253-54. Turning to the question of whether the condemnation of the Seminary’s property is essential to achieve a com- pelling state interest, it is well settled that a limitation by the government on the free exercise of religion is permitted only when the state can demonstrate that a compelling interest justifies the restriction and that no alternate means of accomplishing the state’s compelling interest are available. See Brandon v. Board of Educ., 635 F.2d 971, 976 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981); see also Sherbert v. Verner, 374 U.S. at 406; Pillar of Fire, 509 F.2d at 1253. Consistent with the district court’s disposition below, appellees assert ——————————— 33a that the inclusion of the Seminary property in the Con- sent Decree is essential to the implementation of the Housing Remedy Order. We do not agree that this as necessarily so. Although the district court considered the universe of reasonable alternate sites to be limited to those “capable of being utilized in a federal decree [with] a reasonable time- table for implementation,” the court also clearly recog- | nized the availability of such sites since it was willing to permit the City to designate a substitute for the Seminary property. Thus, the City’s steadfast refusal to propose a modification of the Consent Decree to delete the Seminary site does not provide a sufficient basis to justify interference with petitioner’s first amendment right. While the City now takes the position that the “framework for remedying the constitutional violation found by the district court cannot be modified simply by substituting sites [because t]here are no politically ac- ceptable alternatives,” City of Yonkers Brief at 35, the fact remains that political expediency is far from a com- pelling reason to force the Seminary to give up its property in derogation of a constitutional right. Consequently, assuming as we do for purposes of this appeal that the taking otherwise impermissibly burdens the Seminary’s free exercise rights, the Seminary is en- titled to be heard on the issue whether the taking is necessary to vindicate a compelling state interest. At such a plenary hearing with expert testimony from both sides and in which the competing interests of church and state are fully addressed and the availability of reason- able alternate sites seriously considered, the district court will be able to determine whether the public inter- est in remedying discrimination can be reasonably accom- plished without the taking of the Seminary’s property. The point is that on the basis of the existing record before us, we are not in a position to make an intelligent judgment in this matter one way or the other. The pro- 34a tections afforded by the first amendment require at the very least that the Seminary have a full and fair oppor- tunity to have its rights considered in an attempt— consistent with the “great respect” courts accord religious groups—to avoid a direct confrontation between church and state. See Pillar of Fire, 509 P.2d at 1254. If ac- commodation between the competing interests of church and state is possible, then it ought to be pursued no matter how compelling the state interests might be. See Lyng, 108 8. Ct. at 1327-28 (“[nJothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen[; t]he Government’s rights to the use of its own land, for example, need not and should not discourage it from accommodating reli- gious practices”) (citation omitted) ; Wisconsin v. Yoder, 406 U.S. at 215; Sherbert v. Verner, 374 U.S. at 406-07. * * * One final word is in order. The patience exhibited by the district court under enormously trying circumstances is commendable. Judge Sand has always kept sight of the decisive objective in this case: “[t]hat is, to build the [200 units of] housing as quickly as possible in a manner . . . which will enable future generations in Yonkers to look back and say this was the best possible housing in the best possible locations [that could be built] under the circumstances which obtained in 1988.” We trust that the district court will find some way to facili- tate reconciliation among everyone concerned in this case so that implementation of the first leg of the Housing Remedy Order can begin as quickly, and hopefully as smoothly, as possible. 35a CONCLUSION We affirm the district court’s order denying petition- ers’ motions to remand for lack of federal removal juris- diction under the authority of the All Writs Act. We also affirm the court’s order dismissing the Article 78 petitions in every respect except with regard to the Seminary’s first amendment challenge to the taking of its property which is remanded to the district court for fur- ther consideration consistent with the views expressed in this opinion. The mandate shall issue in 7 days, and it is so ordered. Affirmed in part, vacated and remanded in part. 86a MAHONEY, Circuit Judge, dissenting: I respectfully dissent. In my_view, the Article 78 pro- ceedings were improperly removed and should be re- manded to state court. Accordingly, I would not reach the merits. The facts respecting the removal are straightforward. The City commenced condemnation proceedings against the Raceway and the Seminary, as required by the Con- sent Decree. on April 21, 1988. The Raceway and the Seminary filed answers and, on May 18, 1988, filed Ar- tice 78 petitions as well, presumably for protective rea- sons.! On the morning of May 27. 1988, before any significant action had been taken in state court with respect either to the condemnation or Article 78 proceedings, the dis- trict court signed an order to show cause bringing on, later that morning a motion by the United States in the federal litigation to compel the City to petition for re- moval of the Article 78 proceedings to the federal district court. The motion was granted, and the City so ordered, later that day. Accordingly, the City filed a petition for removal on May 31, 1988, whereupon the Raceway and Seminary moved to remand the Article 78 proceedings to state court. On June 8, 1988, the district court heard arguments on both the motions to remand and the merits of the Article 78 proceedings. That day, the district court de- nied the motions to remand, rejected all of the claims 1 Compare Piotrowsky v. Town of Glenville, 101 A.D.2d 654, 475 N.Y.S.2d 511 (3d Dep’t 1984) (defenses to a taking of property by condemnation properly raised by initiation of separate Article 78 proceeding), with Town of Cocksackie v. Dernier, 105 A.D.2d 966, 482 N.Y.S.2d 106 (3d Dep’t 1984) (such defenses may be raised by answer in condemnation proceeding). The Raceway and the Seminary posed the same defenses both by answer in the con- demnation proceedings and in their separate Article 78 proceedings; the latter also sought to enjoin the condemnation proceedings. 37a raised by the Raceway and the Seminary concerning the merits of the Article 78 proceedings, and dismissed the Article 78 proceedings. The district court then ordered: that St. Joseph’s and the Raceway shall forthwith each serve on the State court in the pending eminent domain proceedings against their properties a copy of this Order and present to such Court a proposed order stating that, insofar as all substantive grounds for objection to the proceedings in question have been fully litigated and resolved in this Court, the City of Yonkers’ petitions in those actions should be granted and the eminent domain proceedings shall go forward in accordance with State law in order to determine the sole remaining issue of valuation of St. Joseph’s and the Raceway’s properties.” Against this background, the majority concludes that removal of the Article 78 proceedings pursuant to the general removal statute, 28 U.S.C. $1441 (1982 and Supp. IV 1986), or the civil rights removal statute, 28 U.S.C. § 1443 (1982), presents a “difficult question,” but that removal is in any event authorized by the All Writs Act, 28 U.S.C. § 1651(a) (1982). I disagree with both conclusions. As to the general and civil rights removal statutes, both allow removal only by a “defendant” (or, in the case of section 1441, “defendants,” presumably a distinction without a difference), and the Supreme Court has twice held that whatever labels state law may apply, a con- demnee is a defendant for purposes of federal removal statutes. See Chicago, Rock Island & Pac. R.R. v. Stude, 346 U.S. 574, 580 (1954); Mason City & Fort Dodge R.R. v. Boynton, 204 U.S. 570, 579-80 (1907). In both those cases, as here, a complaining landowner was re- 2 Because only the Article 78 proceedings had been removed, the condemnation proceedings remained pending before the state court, thus providing a basis for a state court determination as to value. 38a quired by state law to initiate an action to raise objec- tions to condemnation, in which action the landowner was denominated the “plaintiff” by state law. Both cases held the landowner/condemnee was the defendant for fed- eral removal purposes, regardless of state law, and there- fore, the only party that could remove the case to federal court. In all candor. given the clear language of the pertinent statutes and the equally clear holdings of two Supreme Court decisions, I do not regard this question as difficult, or even close. Removal is manifestly not warranted by 28 U.S.C. § 1441 (1982 and Supp. IV 1986) or 28 U.S.C. § 1443 (1982). This brings us to the All Writs Act, 28 U.S.C. §1651(a) (1982). Cf. 28 U.S.C. § 2283 (1982) (federal court stay of state court proceedings). Echoing the rationale expressed by the district court, the majority concludes that “because of the significant risk of inconsistent decrees from two courts, it was ‘nec- essary or appropriate’ [within the meaning of 28 U.S.C. § 1651(a) (1982)] for the district court to invoke the residual jurisdictional authority of the All Writs Act.” The majority notes also that, in light of the history of the underlying federal litigation, the City is likely to be a reluctant and ineffective party to the state condemna- tion proceedings, whatever assurances it may give to the federal district court in that regard. In reaching this conclusion, the majority cites and dis- cusses the leading Supreme Court case on this issue, Pennsylvania Bureau of Correction v. United States Mar- shals Service, 474 U.S. 34 (1985), but never sets forth the basic rule articulated in that case for a situation where, as in the case of removal, other federal statutes address the issue or situation before the court. That rule is: The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by 39a statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although the Act empowers federal courts to fashion extraor- dinary remedies when the need arises, it does not authorize them to issue ad hoe writs whenever com- pliance with statutory procedures appears inconven- ient or less appropriate. Id. at ——, 106 S. Ct. at 361. Pennsylvania Bureau of Correction held that the per- tinent habeas corpus statute, which stated that the writ should be directed “to the person in whose custody the party is detained,” did not authorize direction of the writ to a noncustodian; and that the All Writs Act should not be invoked for that purpose in view of the statute specifically addressed to the situation and making a different provision. Id. at , 106 S. Ct. at 360-61. The court, added, however: There may be exceptional circumstances in which a district court can show clearly the inadequacy of traditional habeas corpus writs, such as where there are serious security risks. In such circumstances, a district court may find it “necessary or appropriate” for Marshals to transport state prisoners. We there- fore leave open the question of the availability of the Ali Writs Act to authorize such an order where ex- ceptional circumstances require it. Id. at , 106 S. Ct. at 361. When the issue which this court must decide is prop- erly framed in terms of the controlling authority of _ Pennsylvania Bureau of Correction, it is apparent that the removal undertaken below and approved by the ma- jority here was not warranted by the All Writs Act. Whatever the difficulties in the underlying federal civil rights litigation, to which of course the Raceway and the Seminary are not parties, I see no warrant for a preemp- 40a tive strike upon a state court which had not even begun to consider the eminent domain proceedings pending be- fore it. Both the district court below and the majority here acknowledge the “ability, objectivity, [and] integrity of the state court.” The officers of that state court are, it might be added, sworn to support the Constitution of the United States. U.S. Const. Art. VI, cl. 3. Accordingly, the state court was entitled to a presumption at the out- set of the condemnation proceeding that it would proceed with sensitivity to and awareness of the legal and social context in which the condemnations are occurring.’ In sum, there was no basis to disregard the “principles of equity, comity and federalism,” see Mitchum v. Foster, 407 U.S. 225, 248 (1982); see also Kerr-McGee Chemical Corp. v. Hartigan, 816 F.2d 1177, 1181-82 (7th Cir. 1987), which should govern our consideration of this issue. The authorities cited by the majority in support of re- moval are easily distinguishable. United States Alakli Export Ass’n, Inc. v. United States, 325 U.S. 196 (1945), construed the All Writs Act to authorize an appeal of a district court determination that it had jurisdiction over a dispute whose resolution, in the Supreme Court’s view, Congress had entrusted exclusively to the Federal Trade Commission. There is no question here that the state court is an appropriate forum to deal with eminent do- main proceedings under state law. 3 It was similarly premature to allow removal on the assumption that the City would be a reluctant condemnor when, whatever weight is accorded to that hypothesis, the United States and/or the N.A.A.C.P. could seek to intervene in the state court proceedings, and it appears likely that such an application would be granted. See N.Y. Civ. Prac. L. & R. 1013 (1976); Bay State Heating & Air Conditioning Co. v. Am. Ins. Co., 78 A.D.2d 147, 434 N.Y.S.2d 66 (Ath Dep’t. 1980). oe a od 4la The All Writs Act was invoked in Benjamin v. Mal- [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0620%3A1. Public record. Not legal advice.