UNITED STATES OF AMERICA v. TERRY

Filing 35

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE signed by MAG/JUDGE JOE L. WEBSTER on 04/04/2016; that the Defendant's Motion for a Temporary Restraining Order, for Preliminary Injunction, and for Declaratory Judgment (Docket Entry 8 ) be DENIED. (Garland, Leah)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiff,
v.

GARY IVAN TERRY,

Defendant

)

)
)
)
)
)
)
)

1,:1,4MC42

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTR,{TE
This matter comes before the Coutt upon the Motion of Defend^nt G^ry Ivan Terry

for entry of

a TemporaLty Resttaining Order, a Preliminary

Injunction and for a Request for

DeclaratoryJudgment. (Docket Entty 8.) Defendant seeks to enjoin the United States from
violating his rights to obtain judicial review or previous administative orders, violating his

Fifth Amendment due ptocess rþhts, and violating other fedetal laws thtough enforcement
of a restitution otdet.

Qd. at

1-3.) The Government has filed

a response

bdef. Q)ocket Entry

18.) Fot the matters stated herein, the Court will recommend that Defendant's motion be
denied.

I.

BACKGROUND
On October 5, 2001, a Judgement was enteted against Defendant in the Western

Disttict of Missouri.

(Jee

Judgment, Docket Entry 44,United State¡ u. Terry,No.00-00308-01-

CR-W-6 flW.D. Mo. Oct. 5,2001)). The judgment detived from a 19 countindictment against
Defendant, which he pled gullty to 2 counts: making false statements

^gency

of amaterialfactto

an

of the United States, and obstruction of ju sttce. (Id. at 1 .) The Government dismissed

1,

the temaining counts against Defendant.

(Id.)

Defendant teceived a 15-month term of

imprisonment,3 years of supervised released, and criminal monetary penalties, including an
otdet of restitution in the amount of $545, 1,61,.20. (Id. at 2-5.) This Judgement was tegisteted
in the Middle District of

Noth

Carohna onJuly 7,201,4.

pocket Entry 1.) The Govetnment

thereaftet fi.led an application fot Writ of Garnishment. pocket E.ttty 2.) The Court entered

a Wdt

of Continuing Garnishment (Docket E.ttry 3) which âppears to be the immediate

rationale fot Defendant's motion seeking injunctive telief and a declaratory judgment.l

II. DISCUSSION
Injunctive Relief
The law is well settled and applies the same standard fot whether a litigant is entitled

to obtain a temporary restraining order or preliminary injunction.

See, e.g,,

Unind Snn: Dept.

ofI-øboru. Il/olfRønMininçC0.,452tr.3d275,281,n.1, (4thCir.2006). Rule65of theFederal
Rules

of Civil Ptocedute provides that a temporary resttaining otder ("TRO") shall not

issued in the absence

of "specific facts

...

be

fwhich] clearly show that immediate and futeparable

injury, loss, ot damage will result to the movant before the adverse p^rty can be heard in

opposition." Fed. R. Civ. P. 65(bX1)(A). Being extraordinary remedies, these remedies may
only be awatded upon a clear showing that the movânt is entitled to such relief. Il/inter
Re:. Def, Coancil,Lnc.,555 U.S. 7, 9 (2008);

2007

VlL

1,02851.6,

see also

u.

Nat.

Martinequ. RegisterFþ,1øa., No. 1:07CV00188,

at *1 (À4.D.N.C. Mar. 21,, 2001),

report and recommendation adopted,

No.

1 Defendant has had multiple filings in the ìØestern District of Missouri and in this Court. See Terry,
No. 00-00308-01-CR-W-6 (W.D. }t.{o.); United States a. Ten1,No.02-0064-CV-!ø-6 flX/.D. Mo.); United
Statesa.Terry,178 Fed.Âpp'x 232,atx1 (4th Clr.2006) (unpublished);seealsoOrdeqTerryu.U.S.Snall
Bw¡. Admin., No. 10-365-ESH P.D.C. Mar 72,2010) (denþgTRO motion).
2

1:07CV00188, 2007
injunction standard to

WL
a

1028527 (À{.D.N.C. }l4al 23, 2007) (applying the pteliminary

motion for aTRO). The United States Supreme Court has stated that

to obtain a TRO ot a pteliminary injunction, a movant must establish: "that he is likely to
succeed on the medts, that he is likely

to suffet ittepatable harm in the absence of pteliminary

telied that the balance of equities tips in his favor, and that an injunction is in the public

interest." IWinter,555 U.S. at20.
Defendant Cannot Demonstrate

a

Likelihood of Success on the Merits.

Defendant cannot show a likelihood of success on the merits for his conviction in the
'Western

District of Missouri, which included restitution as aparrt of the judgment. Cleady the

Appellate Courts have affumed Defendant's conviction, sentence, and judgment many times

in both his direct and collatetal appeals. Therefote, Defendant cannot prove he is likely to
succeed on the metits

in contesting the Government's garnishment proceeding, an authority

that has been statutorily granted to collect penalties assessed against parties to criminal
ptoceedings.

See 1.8 U.S.C. SS

3664(m)(1XÐ(Ð

-

(ü) (stating that testitution orders

are

enfotceable "in the same mânner" as judgments against defendants fot fines, ot "by all other
avallable and reasonable means"). Thus, the Court is unable to make a finding that Defendant

is likely to succeed on the merits.

Defendant Cannot Demonsttate Irepatable Hatm Absent Immediate Relief
Defendant has not shown any injury that would be over and above the penalty which
was imposed by the sentencing

coutt. He was ordered to pay restitution and the injury

claims revolves around this payment. The Govetnment has the

tþht to pursue collection of

the testitution fiom the Defendant accotding to the writ of garnishment but an issuance

3

he

of

injunctive relief to Defendant would prevent the Government ftom tecovering testitution.
Safeguards

of abuse are afforded to the judgment debtot under this statute by allowing the

debtor to object by filing an answer and request fot a hearing. 28 U.S.C. $ 3205(c)(5). As of

Octobet 19, 201,5, Defendant still owed fi542,099.03

of the restitution.

Relief ftom

Defendant's obligation to pay this remaining balance will result in harm to the United States

it will delay relief

and the General Services Administration ("GSrA.") as

gatnishment. Thus, as Defendant failed

set forth in

wtit of

to show irreparable hatm in the absence of

pteliminary relief and the harm to Plaintiff is clear, the "balance of equities" does not tip in
the Defendant's favor. lWinter,555 U.S. at20.

Iniunctive Relief is Not in the Public Interest
Injunctive relief against testitution to victims does not serve the public interest.
Mandatory Victims Restitution,{.ct of 1996 ('MVR

\),

18 U.S.C S 3663,4. (tequiting the coutts

to otdet restitution to persons who are victims of cdmes);
U.S.C

S

36634, "victim" is broadly defined

See

see

al¡o 18 U.S.C. S 3664.

Undet

18

as:

of the commission of an
for which testitution may be ordered including, in the case of an offense
offense
that involves as an element a scheme, conspiracy, or pattern of criminal activity,
any person directly hatmed by the defendant's criminal conduct in the course
of the scheme, conspitacy, or pattern.
a person directly and ptoximately hatmed as a result

18 U.S.C. $ 3663A'(a)(2).

The Courts have broadly defined victims to include the United States

within the meaning of the stâtute.

See United Stales u.

Uncoln, 271 F.3d

1.1,1.2, 1,1,1.4

(9th Cir.

2002); United States u. E/<anem,383 F.3d 40,43 Qd Crr. 2004); Unind Stutes u. Bryønt,655 F.3d

232,253 (3d Cir. 201,1). The very purpose of the MVRA would be ftusttated

if injunctive

relief was granted to Defendant, especially, as here, whete Defendant seeks to ceâse the

4

collection of restitution ordered as p^tt of his cdminal conviction that has been affitmed by

the coutts on ditsç¡ and collater.al appeal. Conversely, thete is a strong public intetest in
ensuring that the restitution Defendant was ordered to pay in Septembe4 2001., is fully paid

to the victims. The granting of injunctive telief to Defendant would thwart the ptocess of
Plaintiff collecting the restitution after neatþ 15 yeats since it was ordeted. Aftet over

a decade

of appeals, Defendant continues to find ways to attackthe judgment, even though he has been
ordeted to stop filing essentially ftivolous lawsuits. Accotdingly, this Coutt recommends that
Defendant's motion for injunctive relief be denied.

Declaratory Judgment Relief
Pursuant to the Declatatory Judgment Act, the district coutt may declate the "dghts
and othet legal telations of any interested

paty seeking such declaration." 28 U.S.C. S 2201.

The Declar^toty Judgement,A.ct is an "enâbling Act, which confers disctetion on the courts
rather than an absolute

tþht upon the litigant."

V/ìlton a. Seuen Falh C0.,515 U.S. 277,287

(1995) (internal quotations omitted). !Øhile a"fedenl court has the discretion to decline to
entertain a declanto.ry judgment action," in this Citcuit, "the coutt must do so only for 'good

reason."' Cont'l Cas. Co.
Co.

u.

u.

Fascardo,35F.3d963,965 (4th Ctï. 1,994) (cittngAetna Cas. dz Saretl

paaile¡,92F.2d321,324 (4th Cit. 1937)). \X4rile the undersigned could assert numerous

good and proper reasons for the Cout not to exercise its discretionaty power to entettain
Defendánt's Motion

for Declaratory Relief, the Court can just as expeditiously

address

Defendant's Motion on the merits.

The gtavamen of Defendant's Motion is that the otders and decisions issued by GSA

contracting Officers violated Section 605(a)

5

of the Contract

Disputes Act because the

decisions failed to "advise Defendant of his due ptocess tights to the entitlement for obtaining

judicial review andfor the remedy to appeal the adverse GSA Contracting Officer's Final
Administrative Decision or Order." pocket Er,tty 8 at 7-8.) \Mhat Defendant misses in his

Motion seeking Declatatory Relief and Motions fot Injunctive Relief is that the Otder of
Restitution and the ${/dt of Continuing Garnishmentate solely

thus, even

if a reviewing

^p^rt

of the criminal judgment;

court found some flaw in the administrative process for which

Defendant continues to complain for neady 20 years, it would have no effect on the cdminal
case

fot which he was convicted and ordered to pay restitution. Defendant's contention that

the criminal proceeding which tesulted in the Otdet of Restitution is somehow flawed because

of some alleged ireguladties in the administrative ptocess is without merit. As pteviously
stated, Defendant's conviction and judgment has been reviewed and affirmed. Defendant's

pleadings prüsuant to the Declatatory Judgment Act and the Injunctive Relief he seeks are
merely additional collatetal attacks upon his criminal conviction upon which he disagrees and
has sought to have

III.

it

set aside many times without success.

CONCLUSION

Fot the reasons stated herein, IT IS HEREBY RECOMMENDED that

the

Defendant's Motion for a Temporary Restraining Order, for Preliminary Injunction, and for

DeclaratoryJudgment (Docket Entry 8) be

DENIED.

L Wdxter
Ëffi$ IrlqgistßtcJurlp

April 4,201.6
Durham, Notth Catolina

6