Fehrenbach v. Department of the Air Force et al

Filing 19

Consent MOTION for Extension of Time to File Answer re 1 Complaint Jean Lin appearing for Defendants Ronald Buckley, Department of the Air Force, Michael B Donley, Robert M Gates, Glenn Spears. Responses due by 11/1/2010

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Fehrenbach v. Department of the Air Force et al Doc. 19 IAN HEATH GERSHENGORN Deputy Assistant Attorney General WENDY J. OLSON United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director JEAN LIN (NY Bar No. 4074530) JOSHUA E. GARDNER (DC Bar No. 478049) United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 (202) 514-3716 (202) 616-8470 (Fax) jean.lin@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF IDAHO LIEUTENANT COLONEL VICTOR J. FEHRENBACH Plaintiff, vs. DEPARTMENT OF THE AIR FORCE; ROBERT M. GATES, Secretary of Defense; MICHAEL B. DONLEY, Secretary, Department of the Air Force; LT. GENERAL GLEN SPEARS, Twelfth Air Force Commander, and COL. RONALD BUCKLEY, 366th Fighter Wing Commander, Defendants. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:10-CV-00402-EJL CONSENT MOTION TO EXTEND TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT FOR INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT Dockets.Justia.com Defendants, through undersigned counsel, respectfully request that this Court extend the time for the defendants to answer or otherwise respond to the Complaint for Injunctive Relief and Declaratory Judgment. Specifically, the defendants request that their time to answer or otherwise respond to the Complaint be extended until 30 days from the date of this Court's ruling on the plaintiff's application for a preliminary injunction, which remains pending. The undersigned counsel has conferred with the plaintiff's counsel, Mr. M. Andrew Woodmansee, who indicates that the plaintiff consents to this extension request. In support of this motion, the defendants state as follows: 1. On August 11, 2010, the plaintiff, an active duty Air Force officer, filed this action seeking to enjoin the Air Force from discharging him under the Don't Ask, Don't Tell statute, 10 U.S.C. § 654. Simultaneously with the filing of the Complaint, the plaintiff also sought a temporary restraining order and a preliminary injunction. The United States Attorney for the District of Idaho was served on August 12, 2010. 2. On August 17, 2010, the parties filed a stipulation (dkt. no. 16), whereby the defendants agreed to notify this Court and the plaintiff's counsel the same day that the Secretary of the Air Force or his designee has made a decision whether to discharge the plaintiff. The defendants further agreed not to take any steps to give effect to a decision to discharge the plaintiff for 21 days following the notification. The plaintiff, in turn, agreed to withdraw his application for a temporary restraining order. The parties further stipulated to a briefing scheduling for the plaintiff's application for a preliminary injunction if the Secretary or his designee decides to discharge the plaintiff. On August 17, 2010, this Court issued an order adopting the terms of the parties' stipulation. See dkt. no. 17. Consent Motion to Extend Time to Answer or Otherwise Respond to Complaint for Injunctive Relief and Declaratory Judgment 1 3. To date, no final decision regarding whether to discharge or retain the plaintiff has been made by the Secretary or his designee. The defendants' answer is currently due on October 12, 2010. 4. In the interests of judicial economy and conserving the parties' resources, the defendants believe that rather than answering the complaint or otherwise moving to dismiss this action, the better course is to await the Secretary or his designee's decision regarding whether to discharge the plaintiff, and, if applicable, to first resolve the plaintiff's motion for a preliminary injunction. Accordingly, the defendants respectfully request that their time to answer or otherwise respond to the Complaint be extended until 30 days from the date of this Court's ruling on the plaintiff's application for a preliminary injunction. Dated: October 7, 2010 Respectfully submitted, IAN HEATH GERSHENGORN Deputy Assistant Attorney General WENDY J. OLSON United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Jean Lin JEAN LIN (NY Bar No. 4074530) JOSHUA E. GARDNER (DC Bar No. 478049) United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 (202) 514-3716 jean.lin@usdoj.gov Attorneys for Defendants Consent Motion to Extend Time to Answer or Otherwise Respond to Complaint for Injunctive Relief and Declaratory Judgment 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 7th day of October, 2010, I filed the foregoing electronically through the CM/ECF system, which caused the following counsel for the plaintiff to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Bradley J. Dixon Stoel Rives LLP 101 S Capitol Blvd Ste 1900 Boise, ID 83702 208-387-4284 Email: bjdixon@stoel.com Mark Andrew Woodmansee MORRISON & FOERSTER LLP 12531 High Bluff Dr., Suite 100 San Diego, CA 92130-2040 (858) 720-5100 Fax: (858) 720-5125 Email: mawoodmansee@mofo.com Aramide O. Fields MORRISON & FOERSTER LLP 12531 High Bluff Drive #100 San Diego, CA 92130-2040 (858) 720-5100 Fax: (858) 720-5125 Email: afields@mofo.com James J. Cekola MORRISON & FOERSTER LLP 12531 High Bluff Dr., Ste. 100 San Diego, CA 92130-2040 (858) 720-5100 Fax: (858) 720-5125 Email: jcekola@mofo.com Jessica A. Roberts MORRISON & FOERSTER LLP 12531 High Bluff Dr., Ste. 100 San Diego, CA 92130-2040 (858) 720-5100 Fax: (858) 720-5125 Email: jroberts@mofo.com 1 AND I FURTHER CERTIFY that on such date I served the foregoing on the following non-CM/ECF Registered Participants via first class mail, postage prepaid addressed as follows: Aaron D. Tax John M. Goodman SERVICEMEMBERS LEGAL DEFENSE NETWORK PO Box 65301 Washington, DC 20035-5301 (202) 328-3244 /s/ Jean Lin Jean Lin Counsel for defendants 2

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