WIRTZ v. UNITED STATES OF AMERICA et al

Filing 8

ORDER - Mr. Wirtz has not met the exacting standard for a temporary restraining order, and his motion for a temporary restraining order is DENIED. Dkt. 7 . The parties are ORDERED to meet with Magistrate Judge Baker to determine if discovery i s required and to create an expedited briefing schedule. A hearing on the motion for a preliminary injunction will be set by separate order. Mr. Wirtz's attorney IS FURTHER ORDERED to provide prompt notice of this order and his motion for injunctive relief to the United States Attorney for the Southern District of Indiana (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James Patrick Hanlon on 2/5/2020. Copies distributed pursuant to distribution list. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NATHAN WIRTZ,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
DEPARTMENT OF TRANSPORTATION
Secretary,
FEDERAL AVIATION ADMINISTRATION
Administrator,
JOYE HOLMES Dr.,
Defendants.

No. 1:20-cv-00118-JPH-TAB

ORDER
Plaintiff Nathan Wirtz has filed an Emergency Motion for Temporary
Restraining Order and Preliminary Injunction. Dkt. [7]. For the reasons below,
the motion for a temporary restraining order is DENIED and the motion for a
preliminary injunction is taken under advisement.
Mr. Wirtz alleges that he is an airline captain who has held an
unrestricted First Class Airman Medical Certificate for his entire career. Dkt. 7
at 2. In August 2019, he was given a September 16, 2019 deadline to provide
voluminous documents because of his tardy reporting of a 2009 public
intoxication conviction. Id. In December 2019, after several more rounds of
providing documents in response to requests, Mr. Wirtz requested a sixty-day
extension to provide additional documents. Id. at 2–3. Defendant Joye
Holmes—a regional flight surgeon—denied the extension and ordered Mr. Wirtz

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to surrender his medical certificate. Id. On January 27, 2020, Dr. Holmes
threatened Mr. Wirtz with a daily fine of $1501.00. Id. at 4.
Federal Rule of Civil Procedure 65(b)(1) gives the “strict procedural
requirements” for temporary restraining orders issued without notice:
The court may issue a temporary restraining order
without written or oral notice to the adverse party or
its attorney only if:
(A) specific facts in an affidavit or a verified
complaint clearly show that immediate or
irreparable injury, loss, or damage will result to
the movant before the adverse party can be heard
in opposition; and
(B) The movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it
should not be required.
Am. Can Co. v. Mansukhani, 742 F.2d 314, 321 (7th Cir. 1984). The purpose of
a temporary restraining order issued without notice is to “preserve the status
quo pending a hearing.” Id. Such an order should be granted only in
“extremely limited” circumstances because of the presumption in favor of court
action only after “reasonable notice and an opportunity to be heard.” Id. at
321–22.
Here, the certificate of service accompanying Mr. Wirtz’s motion indicates
that a copy of the motion was mailed to Defendants, but does not include the
United States Attorney for the Southern District of Indiana. See Fed. R. Civ. P.
4(i); 65(b)(1)(B). Moreover, Mr. Wirtz’s attorney has not certified any other
efforts to give notice or explained why additional efforts should not be required.
See Fed. R. Civ. P. 65(b)(1)(B).

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Mr. Wirtz’s motion also does not include “an affidavit or a verified
complaint,” or other evidence in support of a temporary restraining order. Fed.
R. Civ. P. 65(b)(1)(A). So he has not “clearly show[n] that immediate and
irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” Id.; see Planned Parenthood of Ind. v.
Comm’r of Ind. State Dept. of Health, No. 1:11-cv-630-TWP-TAB, 2011 WL
13234836 at *1 (S.D. Ind. May 11, 2011) (denying a temporary restraining
order and setting a preliminary injunction hearing because Defendants had
“not yet had a full opportunity to respond in writing or provide any briefing on
the legal issues that are before the Court”).
For these reasons, Mr. Wirtz has not met the exacting standard for a
temporary restraining order, and his motion for a temporary restraining order
is DENIED. Dkt. [7]. The parties are ORDERED to meet with Magistrate
Judge Baker to determine if discovery is required and to create an expedited
briefing schedule. A hearing on the motion for a preliminary injunction will be
set by separate order. Mr. Wirtz’s attorney IS FURTHER ORDERED to provide
prompt notice of this order and his motion for injunctive relief to the United
States Attorney for the Southern District of Indiana.
SO ORDERED.
Date: 2/5/2020

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Distribution:
John Joseph Coomes
[e-mail]
United States Attorney’s Office
Southern District of Indiana
10 W. Market St., Suite 2100
Indianapolis, IN 46204
Secretary of the Department of Transportation
1200 New Jersey Ave, SE
Washington, DC 20590
Administrator of the Federal Aviation Administration
800 Independence Ave., S.W.
Washington, DC 20591
Dr. Joye Holmes
Regional Flight Surgeon
2300 East Devon Av.
Des Plaines, IL 60018-4686

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