2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-28-2010

USA v. Walter Himmelreich

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3621

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Walter Himmelreich" (2010). 2010 Decisions. Paper 1990.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1990
CLD-080 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

NO. 09-3621

___________

UNITED STATES OF AMERICA

v.

WALTER J. HIMMELREICH,

Appellant

____________________________________

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(M.D. Pa. Crim. No. 05-cr-00214-001)

District Judge: Yvette Kane

_______________________________________

Submitted for Possible Summary Action Pursuant 

to Third Circuit LAR 27.4 and I.O.P. 10.6

December 23, 2009

Before: BARRY, FISHER and VAN ANTWERPEN Circuit Judges

(Filed: January 28, 2010)

_________

 OPINION

_________

PER CURIAM

Walter J. Himmelreich, proceeding pro se, appeals from the District Court’s

August 14, 2009 order denying his motion for a temporary restraining order and a
 The judgment shows that the restitution is due immediately, payable during his 1

incarceration, and provides for a payment schedule for any remaining amount due upon

commencement of supervised release. See Judgment, p. 7.

preliminary injunction. Because we conclude that this appeal presents no substantial

question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. 

Himmelreich is confined at the Federal Correctional Institution–Elkton after

pleading guilty to production of child pornography. In December 2006, the District Court

sentenced him to 240 months of incarceration, plus in restitution and other penalties. In 1

July 2009, Himmelreich filed a motion seeking to vacate his conviction pursuant to 28

U.S.C. § 2255. On August 13, 2009, Himmelreich filed a motion for a temporary

restraining order and a preliminary injunction, requesting that the District Court compel

the Bureau of Prisons (“BOP”) to cease its collections system under the Inmate Financial

Responsibility Program (“IFRP”). 

Himmelreich states that he is a member of a class of inmates sentenced after April

24, 1996, and is therefore subject to the Mandatory Victim Restitution Act (“MVRA”). 

He claims that the sentencing court did not establish a payment schedule detailing how he

would repay his restitution order and fine while incarcerated. He relies on United States

v. Corley, 500 F.3d 210 (3d Cir. 2007), judgment vacated, 129 S.Ct. 1558 (2009), in

which we held that a restitution order that delegates to the BOP how a defendant will pay

restitution while incarcerated constitutes an improper delegation of judicial function. He

further claims that the BOP “illegally coerced” him into signing a payment plan contract. 

He argues that the BOP lacks the authority to withhold his prison wages through the
IFRP, and that the program as applied to him constitutes an unconstitutional taking. The

District Court denied the motion after finding that Himmelreich failed to demonstrate any

immediate injury sufficient to qualify for a temporary restraining order and failed to meet

the requirements for a preliminary injunction. Himmelreich filed a timely appeal.

“As a general proposition, orders granting or denying temporary restraining orders

are unappealable.” NutraSweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689, 692 (3d Cir.

1997). However, we do have appellate jurisdiction over the order denying Himmelreich’s

motion for a preliminary injunction under 28 U.S.C. § 1292(a)(1). “We review the denial

of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake

in the consideration of proof.” Kos Pharms., Inc. V. Andrx Corp., 369 F.3d 700, 708 (3d

Cir. 2004) (internal quotations omitted).

A preliminary injunction is “an extraordinary remedy” that should be granted only

if the plaintiff shows: “(1) a likelihood of success on the merits; (2) that [he] will suffer

irreparable harm if the injunction is denied; (3) that granting preliminary relief will not

result in even greater harm to the nonmoving party; and (4) that the public interest favors

such relief.” Id. The District Court found it unlikely that Himmelreich could show an

improper delegation to the BOP, given that the judgment provides that the restitution is

due immediately, and further provides for a fifty dollars per month payment schedule for

any remaining unpaid balance upon commencement of his supervised release. The

District Court also found that the public interest in compensating victims of child

pornography and in enforcing restitution orders weighs against granting an injunction. 
After reviewing the record, we agree with the District Court that Himmelreich did not

satisfy the criteria for the grant of a preliminary injunction.

For the foregoing reasons, we conclude that the appeal presents no substantial

question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d

Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.