Fehrenbach v. Department of the Air Force et al

Filing 5

REQUEST for an Expedited Hearing Date M Andrew Woodmansee, Jessica A Roberts, James J Cekola, Aramide O Fields appearing for Plaintiff Victor J Fehrenbach. Responses due by 9/7/2010

M. ANDREW WOODMANSEE (CA SBN 201780) MAWoodmansee@mo fo.com ARAMIDE O. FIELDS (CA SBN 239692) AFields@mo fo.com JAMES J. CEKOLA (CA SBN 259443) JCeko la@mo fo.com JESSICA A. ROBERTS (CA SBN 265570) JRoberts@mo fo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130-2040 Telephone: [phone] Facsimile: 858.720.5125 AARON D. TAX (DC SBN 501597) [e-mail] JOHN GOODMAN (DC SBN 383147) [e-mail] SERVICEMEMBERS LEGAL DEFENSE NETWORK P.O. Box 65301 Washington, DC 20035-5301 Telephone: [phone] ext. 10 Facsimile: 202.797.1635 Attorneys for Plaintiff LIEUTENANT COLONEL VICTOR J. FEHRENBACH UNITED STATES DISTRICT COURT DISTRICT OF IDAHO LIEUTENANT COLONEL VICTOR J. FEHRENBACH, Plaint iff, v. DEPARTMENT OF THE AIR FORCE; ROBERT M. GATES, Secretary of Defense; MICHAEL B. DONLEY, Secretary, Department of the Air Force; LT. GENERAL GLENN SPEARS, Twelfth Air Force Commander, COL. RONALD BUCKLEY, 366th Fighter Wing Commander, Defendants. Case No. CIV 10-402-S-EJL PLAINTIFF'S REQUEST FOR AN EXPEDITED HEARING DATE

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Pursuant to Local Civil Rule 6.1, Plaintiff Lieutenant Colonel Victor J. Fehrenbach respectfully requests an expedited hearing date of Friday August 13, 2010 or earlier for his concurrently filed motion for a temporary restraining order in which he seeks a court order to preserve the status quo unt il such time that the Court can hold a hearing on his motion for a preliminary injunction. I. PLAINTIFF FACES THE IMMEDIATE AND GREAT DANGER OF IRREPARABLE CONSTITUTIONAL INJURY THAT NECESSITATES AN EXPEDITED HEARING.

Lt. Col. Fehrenbach is an active duty, highly-decorated Air Force Weapons Systems Officer, described by his commanders throughout his nearly 19-year military career as a "Superstar," the "best I've seen," "My #1 officer/aviator," and "[ a] War Hero." Despite his impeccable record, superior skills and excellence at building morale and cohesion, the Defendants now seeks to separate Lt. Col. Fehrenbach fro m the Air Force under 10 U.S.C. § 654, the law commonly known as "Don't Ask, Don't Tell," in violation of his constitutionally protected rights. As explained in the Paragraph 13 of the Declaration of M. Andrew Woodmansee in Support of Application for Temporary Restraining Order and Preliminary Injunction (filed August 11, 2010), on August 4, 2010, counsel for Plaintiff received an email from the Honorable Charles A. Blanchard, General Counsel to named Defendant Secretary of the Air Force. In that email, Mr. Blanchard confirmed that the Air Force Personnel Board had met and made a recommendation to the Secretary's designated separation authority in Lt. Col. Fehrenbach's administrative separation case. The applicable Air Force regulation, AFI 36-3206 Chapter 6.10, states that had the AFPB concluded that Lt. Col. Fehrenbach should be retained, no action by the Secretary's designated separation authority would be required. AFI 36-3206 Chapter 6.10 ("When the AFPB recommends retaining the respondent, HQ AFPC/DPRS advises the

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respondent, through the SCA, that the AFPB's determination ends the action."). But under Air Force regulation AFI 36-3206 Chapter 6.10.1, further action by the Secretary's designated separation authority is required if the AFPB recommended discharge and Chapter 6.10.1 ("When the AFPB recommends removal fro m active duty, discharge, or other action, the AFPB sends the case to the SAF.") With the Air Force moving to unconstitutionally separate Lt. Col. Fehrenbach under "Don't Ask, Don't Tell," if the hearing date for his motion for a temporary restraining order is not expedited there may be insufficient time to prevent great irreparable injury to him. There is good cause to grant Plaintiff's request for an expedited hearing date also because Defendants' counsel has present notice of both this request and Plaintiff's Application for a Temporary Restraining Order and Preliminary Injunction since Plaintiff served, via hand delivery, a copy of both this request and the motion for a temporary restraining with its supporting memorandum of points of authorities, declaration and exhibits on the United States Attorney for the District of Idaho on August 11, 2010. Further, Plaintiff's counsel has been in communication with the military authorities involved in this case about possible federal litigation since at least May 3, 2010, so Defendants cannot claim prejudice from the requested expedited hearing date due to lack of time to prepare. II. CONCLUSION

For the reasons above, Plaintiff respectfully requests that the Court grant his request for expedited hearing date so that his motion for a temporary restraining order can be heard on Friday August 13, 2010 or earlier.

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Dated: August 11, 2010

MORRISON & FOERSTER LLP

By: /s/ M. Andrew Woodmansee M. ANDREW WOODMANSEE M. ANDREW WOODMANSEE (CA SBN 201780) MAWoodmansee@mo fo.com ARAMIDE O. FIELDS (CA SBN 239692) AFields@mo fo.com JAMES J. CEKOLA (CA SBN 259443) JCeko la@mo fo.com JESSICA A. ROBERTS (CA SBN 265570) JRoberts@mo fo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130-2040 Telephone: [phone] Facsimile: 858.720.5125 AARON D. TAX (DC SBN 501597) [e-mail] JOHN GOODMAN (DC SBN 383147) [e-mail] SERVICEMEMBERS LEGAL DEFENSE NETWORK P.O. Box 65301 Washington, DC 20035-5301 Telephone: [phone] ext. 10 Facsimile: 202.797.1635 Attorneys for Plaintiff LIEUTENANT COLONEL VICTOR J. FEHRENBACH

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CERTIFICATE OF SERVICE I hereby certify that on August 11, 2010, a copy of the following document: PLAINTIFF'S REQUEST FOR AN EXPEDITED HEARING DATE; which was filed in this matter, was mailed, with first class postage prepaid, certified, return receipt requested, to all parties listed below or on the attached mailing matrix: Dr. Robert M. Gates Secretary of Defense 1000 Defense Pentagon Washington, D.C. 20301-1000 Honorable Michael B. Donley Secretary of the Air Force 1660 Air Force Pentagon Washington, D.C. 20330-1660 Lieutenant General Glenn F. Spears Commander of the Twelfth Air Force Davis--Monthan AFB, AZ 85707 Colonel Ronald D. Buckley Commander of the 366th Fighter Wing Mountain Home AFB, ID 83648 Department of Air Force c/o Major General Nolan Skulte -- Chief, General Litigation Division Office of the Judge Advocate General 1660 Air Force Pentagon Washington, D.C. 20330-1660

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U.S. Attorney U.S. Department of Justice District of Idaho 550 West Fort Street, Room 400 Boise, ID 83724 ALSO SERVED VIA HAND-DELIVERY ON 8/11/10

/s/ M. Andrew Woodmansee M. Andrew Woodmansee Attorney for Plaintiff LIEUTENANT COLONEL VICTOR J. FEHRENBACH

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