Witt v. Department of the Air Force et al

Filing 8

Oral MOTION for Preliminary Injunction And Memorandum In Support of Motion by Plaintiff Margaret Witt. Noting Date 5/12/2006.Oral Argument Requested. (Attachments: # 1 Second half of Motion# 2 Proposed Order Proposed Order)(McCraw, Nichole)

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The Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA MAJOR MARGARET WITT, Plaintiff, vs. UNITED STATES DEPARTMENT OF THE AIR FORCE; DONALD H. RUMSFELD, Secretary of Defense; MICHAEL W. WYNNE, Secretary of the Department of Air Force; and COLONEL MARY L. WALKER, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB; Defendants. This matter having come on for hearing on Plaintiff's Motion for Preliminary Injunction, and the Court having considered the briefs and records on file and the arguments of counsel, IT IS HEREBY ORDERED THAT Plaintiff's motion is GRANTED as follows:
(Proposed) ORDER GRANTING PRELIMINARY INJUNCTION NO. 06-5195 RBL ­ 1
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NO. C06-5195 RBL (Proposed) ORDER GRANTING PRELIMINARY INJUNCTION

CARNEY BADLEY SPELLMAN

LAW OFFICES A PROFESSIONAL SERVICE CORPORATION 700 FIFTH AVENUE, #5800 SEATTLE, WA 98104-5017 FAX [phone] TEL [phone]

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The Defendants are preliminarily enjoined from: () () Air Force. This Order shall remain in effect until further order of this Court. The bond requirement is waived. The purpose of this preliminary injunction is to maintain the status quo ante, which is a state in which Major Witt is not discharged from the United States Air Force and is eligible to earn pay and points. This preliminary injunction allows the Defendants to proceed with an administrative discharge hearing and issuing a recommendation therefrom, if Defendants so desire in order to provide this Court the opportunity to review the record of that proceeding. The Plaintiff has shown that she is likely to prevail on the merits of her claims and she has shown a possibility of irreparable injury if injunctive relief is not granted. Plaintiff has also shown the existence of serious questions going to the merits of her claim and that the balance of hardships tips sharply in favor of granting preliminary injunctive relief. The hardship that would be suffered by the Plaintiff if preliminary injunctive relief were not granted would be severe, because the Court is preliminarily enjoining the entry of a discharge order that would formally end the Plaintiff's military career. In addition, the Court is preliminarily enjoining the United States Air Force from barring Major Witt from earning points and pay from the United States Air Force. On the other side of the
(Proposed) ORDER GRANTING PRELIMINARY INJUNCTION NO. 06-5195 RBL ­ 2
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Discharging the Plaintiff from the United States Air Force; and Barring the Plaintiff from earning pay and points from the United States

CARNEY BADLEY SPELLMAN

LAW OFFICES A PROFESSIONAL SERVICE CORPORATION 700 FIFTH AVENUE, #5800 SEATTLE, WA 98104-5017 FAX [phone] TEL [phone]

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coin, the Defendants will suffer virtually no hardship at all from the granting of preliminary injunctive relief. In fact, the Defendants will have the services of a highly qualified and decorated flight nurse and will only suffer an insignificant financial hardship representing the pay and points which Plaintiff will earn. The Defendants have prohibited the Plaintiff from participating in reserve duty since November of 2004, and the Court is not enjoining the Defendants from continuing to bar the Plaintiff from participation in reserve duties. Therefore, there cannot possibly be any hardship suffered by the Defendants by simply requiring them to refrain from entering a final discharge order until this case has been decided and from barring them from allowing Major Witt to earn points and pay from the Air Force. The Clerk of the Court is directed to serve a copy of this order upon defendants Rumsfeld and Wynne by certified mail. DATED this _____ day of April, 2006.

____________________________________ The Honorable Ronald B. Leighton Presented by: CARNEY BADLEY SPELLMAN, P.S. By s/Nicki D. McCraw James E. Lobsenz, WSBA #8787 Nicki D. McCraw, WSBA #20533 On Behalf of the American Civil Liberties Union of Washington

(Proposed) ORDER GRANTING PRELIMINARY INJUNCTION NO. 06-5195 RBL ­ 3
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CARNEY BADLEY SPELLMAN

LAW OFFICES A PROFESSIONAL SERVICE CORPORATION 700 FIFTH AVENUE, #5800 SEATTLE, WA 98104-5017 FAX [phone] TEL [phone]

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CARNEY BADLEY SPELLMAN, P.S. 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] E-Mail: [e-mail] AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON By s/ Aaron H. Caplan Aaron H. Caplan, WSBA #22525 American Civil Liberties Union of Washington 705 Second Avenue Seattle WA 98104 Telephone: [phone] E-Mail: [e-mail] Attorneys for Plaintiff

(Proposed) ORDER GRANTING PRELIMINARY INJUNCTION NO. 06-5195 RBL ­ 4
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CARNEY BADLEY SPELLMAN

LAW OFFICES A PROFESSIONAL SERVICE CORPORATION 700 FIFTH AVENUE, #5800 SEATTLE, WA 98104-5017 FAX [phone] TEL [phone]

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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: , and I hereby certify that I have mailed by United States Postal Service, Postage Prepaid/ABC Legal Messenger Service, Inc./Facsimile to the following non CM/ECF participants: .
James E. Lobsenz Nicki D. McCraw Aaron Caplan [e-mail] [e-mail] [e-mail]

Service by ABC Legal Messenger Service on: John McKay U.S. Attorney 700 Stewart Street, Suite 5220 Seattle, WA 98101

s/Karla Dotchin KARLA L. DOTCHIN

(Proposed) ORDER GRANTING PRELIMINARY INJUNCTION NO. 06-5195 RBL ­ 5
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CARNEY BADLEY SPELLMAN

LAW OFFICES A PROFESSIONAL SERVICE CORPORATION 700 FIFTH AVENUE, #5800 SEATTLE, WA 98104-5017 FAX [phone] TEL [phone]