USA v. HARRIMAN et al

Filing 43

ORDER denying 37 Motion for Injunctive Relief and amending Execution of Ejectment 28 By JUDGE JOHN A. WOODCOCK, JR. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
Plaintiff,
v.
GREGORY HARRIMAN,
KATHRYN HARRIMAN, and
UNKNOWN OCCUPANTS of
207 Burnham Road, Troy, Maine,
Defendants.

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1:12-cv-00113-JAW

ORDER ON MOTION FOR INJUNCTIVE RELIEF
Gregory and Kathryn Harriman have fought the Government’s foreclosure
proceeding every step of the way. Now, with eviction at their doorstep, they have
filed a motion demanding that the Court issue an injunction to prohibit the
Government from executing the Writ of Execution of Ejectment. Mot. for Injunctive
Relief (ECF No. 37) (Pls.’ Mot.). The Court denies their motion.
The Harrimans cite three grounds for the requested relief: (1) that this Court
issued a stay of execution on the Writ of Execution and has not lifted the stay; (2)
that the Writ of Execution is no longer valid because it was not returned in 60 days;
and (3) that the Writ of Execution was never valid “because Rural Housing has never
perfected its security interest by complying with the requirements of” 14 M.R.S. §§
4151, 4651-A and 4652, and Federal Rule of Civil Procedure 69. Id. at 1. On April
28, 2015, the Government filed its response. Resp. to Defs.’ Mot. for Injunctive Relief

(ECF No. 39) (Gov’t’s Opp’n). After the Court reviewed the parties’ filings, it issued
an order on April 29, 2015 requiring the Government to provide authority for the
proposition contained in its proposed order, which the Court endorsed, that the
United States Marshal was to return the Writ “according to law, within the next sixty
days.” Order Requiring Further Explanation (ECF No. 41). On April 29, 2015, the
Government filed a further response. Resp. to Order Requiring Further Explanation
(ECF No. 42) (Gov’t’s Supplemental Opp’n).
I.

THE STAY OF EXECUTION
The Harrimans correctly state that the Court issued a stay of execution of the

Writ of Execution of Ejectment on January 28, 2013. Order on Mot. for Stay of Writ
of Ejectment Pending Appeal (ECF No. 33) (Stay Order). However, they are incorrect
in asserting that the stay is still in effect. The Court issued the stay order in direct
response to the Harrimans’ motion filed on January 17, 2013. Mot. for Stay Pending
Appeal (ECF No. 29) (Mot. for Stay). In that motion, the Harrimans cited Federal
Rule of Appellate Procedure 8(a)(1)(A), which authorizes a district court to stay a
judgment or order of the court “pending appeal.” Id. at 1. The Harrimans made it
clear that they were seeking the stay only “pending appeal to the United States Court
of Appeals for the First Circuit and the rendering of a decision by the appellate court”
and that they were seeking the stay only “to preserve the status quo pending appeal.”
Id. In its January 28, 2013 Order, the Court expressly stated that it was ordering
“the Writ of Execution of Ejectment dated January 9, 2013 STAYED pending the

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First Circuit Court of Appeals’ resolution of the Harrimans’ appeal.” Stay Order at
2.
The Harrimans filed their notice of appeal to the First Circuit the same day
they moved to stay the execution of the Writ. Notice of Appeal (ECF No. 30). On July
25, 2013, the First Circuit issued its judgment, affirming the district court judgment,
J. (ECF No. 35), and on October 22, 2013, the First Circuit issued its mandate.
Mandate (ECF No. 36). Upon the issuance of the mandate, the Harrimans’ appeal
was no longer pending in the First Circuit Court of Appeals and therefore the stay
was lifted automatically. The Court therefore clarifies that the Order on Motion for
Stay of Writ of Ejectment Pending Appeal was lifted upon the First Circuit Court of
Appeals’ issuance of its mandate on October 22, 2013 because the appeal was no
longer pending. The Court rejects the Harrimans’ contention that the Stay Order is
still effective and that it bars the execution of the Writ.
II.

THE VALIDITY OF THE WRIT OF EXECUTION: THE SIXTY-DAY
PERIOD
The Harrimans’ next point is that the United States Marshal failed to execute

the Writ of Execution of Ejectment within sixty days of January 9, 2013 and they
claim that this delay invalidates the Writ. Pls.’ Mot. at 1; Execution of Ejectment
(ECF No. 28). In its supplemental response, the Government explained that the
authority for a writ of ejectment comes from the All Writs Act, 28 U.S.C. § 1651(a).
Gov’t’s Supplemental Opp’n at 2. It also explained that, contrary to the implication
of the language in the Order, the sixty-day period is not a matter of law, but was
included in the proposed order “to provide an appropriate deadline by which the
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United States Marshal was to demonstrate to the Court that the ejection had
occurred.” Id. at 3.
The All Writs Act, 28 U.S.C. § 1651(a), authorizes the federal court to issue
writs of assistance to enforce final judgments, including an order of ejectment. United
States v. Young, 806 F.2d 805, 807 (8th Cir. 1986) (holding the district court correctly
granted a writ of assistance to enforce its eviction order because the government was
entitled to possession of the property); United States v. Capriotti, No. 1:11-cv-00847SAB, 2013 U.S. Dist. LEXIS 61009, at *9 (E.D. Cal. Apr. 29, 2013) (“[T]he All Writs
Act authorizes federal courts to issue writs of assistance to enforce final judgments”);
United States v. McKinnie, No. 07-1024B, 2009 U.S. Dist. LEXIS 45408, at *5 (W.D.
Tenn. Mar. 12, 2009) (“[C]ourts have applied the All Writs Act to authorize the United
States to take possession of real property that has been forfeited to the United States,
to evict the occupants, and to dispose of the property in accordance with a forfeiture
decree”) (internal quotation marks and citation omitted); United States v. Bell, No.
CIV-F 95-5346 OWW SMS, 2002 U.S. Dist. LEXIS 7487, at *13 (E.D. Cal. Feb. 19,
2002) (“The All Writs Act . . . authorizes federal district courts to issue writs of
assistance to enforce final judgments”); United States v. Real Prop. & Premises
Known as 63-39 Trimble Rd., Woodside, N.Y., 860 F. Supp. 72, 74-76 (E.D.N.Y. 1994)
(the All Writs Act authorizes a federal court to order the United States Marshal to
enter and take possession of the premises, to evict its occupants, and to dispose of the
premises pursuant to the court’s decree of forfeiture).

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The question the Harrimans have raised is whether the phrase in the January
9, 2013 Execution of Ejectment, “You shall make return of this Writ, according to law,
within the next sixty days,” means that the Writ itself is invalid because it is now
long after that sixty-day period. Pls.’ Mot. at 1; Execution of Ejectment at 1. The
Court concludes that the failure of the Marshal to execute on the January 9, 2013
Order does not affect its validity.
Plainly, the Harrimans are not in a position to complain about the delay. After
all, the Harrimans have been strenuously arguing for years that they should not be
evicted at all and now they come to Court saying that they should have been evicted
long ago. In addition, they occasioned a substantial portion of the delay when on
January 17, 2013 they filed a motion to stay the Writ pending resolution of the appeal.
Mot. for Stay at 1. The Harrimans may not benefit from a delay that they themselves
caused.

Once the First Circuit issued its mandate on October 22, 2013, the

Harrimans were again subject to eviction pursuant to the Execution of Ejectment
Order as they no longer had any legal right to remain in the property.

The

Government’s decision to forego immediate eviction or eviction within the sixty-day
period provided by the Ejectment Order only benefitted the Harrimans by allowing
them to remain in a place they had no right to remain. Here, the Government
explained that it was reluctant to evict the Harrimans in the middle of a harsh Maine
winter. Gov’t’s Opp’n at 3.
Because the Order could be interpreted as saying that the Writ must be
returned “according to law, within the next sixty days,” not “return . . . this Writ,

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according to the law,” the Court required the Government to provide the legal
authority for the sixty-day period that the Government earlier proposed to the Court.
In its research the Court had not been able to locate the sixty-day period referenced
in the Order in any statute, rule, or court case. In its supplemental response, the
Government confirmed not only that the sixty-day interval was not a matter of law,
but also that it had suggested the sixty-day period as a decent interval within which
the United States Marshal could respond to the court order. Gov’t’s Supplemental
Opp’n at 3. The Government’s response confirmed the Court’s own research.
As the sixty-day period was not compelled by law, the legal force of the sixtyday time frame is purely a function of the Order itself, and the Court has the inherent
authority to revise its own Order. The Court clarifies that the sixty-day period was
precatory only and the Court hereby amends its January 9, 2013 Execution of
Ejectment to provide that the United States Marshal “shall make return of this Writ,
according to law, if possible, within sixty days following the date of this Order on
Motion for Injunctive Relief.”
III.

THE VALIDITY OF THE WRIT OF EXECUTION: PERFECTION ISSUE
Lastly, the Harrimans assert that the Writ of Execution is invalid “because

Rural Housing has never perfected its security interest by complying with the
requirements of” 14 M.R.S. §§ 4151, 4651-A and 4652, and Federal Rule of Civil
Procedure 69. Pls.’ Mot. at 1. This argument, however, goes to the merits of the
Government’s foreclosure against the Harrimans and this Court and the First Circuit
Court of Appeals have both ruled in favor of the Government and against the

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Harrimans on the merits. Recommended Decision (ECF No. 23); Order Affirming the
Recommended Decision of the Magistrate Judge (ECF No. 25); J. (ECF No. 26); J. of
the United States Ct. of Appeals for the First Circuit (ECF No. 35); Mandate of the
United States Ct. of Appeals for the First Circuit (ECF No. 36); Recommended Decision
on Mot. to Dismiss (ECF No. 10) (1:13-cv-00450-JAW); Order Affirming the
Recommended Decision of the Magistrate Judge (ECF No. 13) (1:13-cv-00450-JAW);
J. (ECF No. 14) (1:13-cv-00450-JAW); J. of the United States Ct. of Appeals for the
First Circuit (ECF No. 19) (1:13-cv-00450-JAW); Mandate of the United States Ct. of
Appeals for the First Circuit (ECF No. 20) (1:13-cv-00450-JAW). The Harrimans have
more than had their day in court and may not now attempt to re-litigate the issues
they have already lost or could have raised in the prior lawsuits.
IV.

CONCLUSION
The Court DENIES the Plaintiffs’ Motion for Injunctive Relief (ECF No. 37).

The Court clarifies that the Order on Motion for Stay of Writ of Ejectment Pending
Appeal (ECF No. 33) was lifted upon the First Circuit Court of Appeals’ issuance of
its mandate on October 22, 2013. Finally, the Court AMENDS its Execution of
Ejectment (ECF No. 28) to provide that the United States Marshal “shall make return
of this Writ, according to law, if possible, within sixty days following the date of this
Order on Motion for Injunctive Relief.”
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 30th day of April, 2015
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