Goss v. Beilfuss et al

Filing 8

DECISION AND ORDER signed by Judge Rudolph T Randa on 7/7/06 denying 7 petitioner's Rule 7.4 Motion for Expedited Hearing on Preliminary Injunction Motion. (cc: all counsel) (Randa, Rudolph T)

Goss v. Beilfuss et al

Doc. 8

Case 2:06-cv-00737-RTR

Filed 07/07/2006

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Document 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

S P E C I A L I S T PHILLIP M. GOSS, P e titio n e r , v. C O M M A N D IN G OFFICER CAPTAIN MATTHEW P. BEILFUSS 1 s t Battalion, 121st Field Artillery Wisconsin National Guard, S E C R E T A R Y OF THE ARMY, R e s p o n d e n t s. C a s e No. 06-C-0737

DECISION AND ORDER

O n July 5, 2006, the petitioner, Specialist Phillip M. Goss ("Goss"), filed motions for a temporary restraining order (TRO), preliminary injunction, and habeas relief. In his motion f o r a temporary restraining order and preliminary injunction, Goss argued that he should be m a in ta in e d in the Wisconsin National Guard and exempted from deployment, or discharged, b e c au s e : (1) he is physically unable to perform the duties required of active soldiers in the M id d le East; (2) his assignment to active duty was unlawful because he did not request a tra n sf e r to active status; (3) he was denied access to a physical evaluation board; and (4) the W is c o n s in Guard failed to permit him access to separation processes as prescribed by Army re g u la tio n s . Goss's requests are pressing insofar as he must leave for Camp Shelby, M is s is s ip p i on July 9, 2006. He is to be deployed to the Middle East between July 17th and J u ly 19th of this year.

Dockets.Justia.com

Case 2:06-cv-00737-RTR

Filed 07/07/2006

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O n July 6, 2006, the Court denied Goss's request for a TRO. That same day, Goss filed an expedited motion seeking an expedited hearing on his request for preliminary in ju n c tiv e relief. In fact, Goss asks for a hearing no later than the afternoon of July 7th, b e c a u se he will be leaving this district on Sunday, July 9, 2006. Goss argues that failure to h o ld a hearing, in light of the Court's July 6, 2006 order, will render moot his request for h a b e as relief. If the Court does not hold a hearing expeditiously, "[p]etitioner would have to file again in Mississippi, or elsewhere, which defeats any notion of judicial economy and e f f e c tiv e ly denies him a hearing on the merits of the relief he seeks prior to suffering the h a rm the Petition was brought to prevent." (R. 7.4 Mot. for Expedited Hearing on Prel. Inj. M o t. 2.) It is unclear whether Goss seeks an ex parte hearing on his motion for a preliminary in ju n c tio n .1 If so, such a request related to a pending preliminary injunction request would b e highly unusual. Alternatively, if Goss expects the presence of the respondents, the Court q u e stio n s the fairness of a hearing where so little notice has been provided. The ability of a n adversary to respond to a motion necessarily means the opportunity to respond in a m e a n in g f u l way. Goss raises the prospect that failure to hold an immediate hearing would defeat ju d ic ia l economy. The concerns of judicial economy, however, cannot be invoked to deny a party's right to meaningfully respond to a pending motion. Furthermore, according to G o ss 's own submissions, his Wisconsin Guard Unit was called to active duty and sent to

The phrase "ex parte" describes a judicial proceeding at which only one party is present. United States v. A n d e r s o n , 798 F.2d 919, 923 (7th Cir. 1986).

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Case 2:06-cv-00737-RTR

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C a m p Shelby for mobilization training on April 19, 2006, well over two months ago. (H a b e as Pet. 3.) And, many of the medical episodes that undergird Goss's claims occurred w e ll in advance of that date. (See, e.g., Aff. of Specialist P.M. Goss in Supp. of Mot. for a T e m p . Restraining Order and Prel. Inj. ¶ 7.) In other words, many of the circumstances u n d e rlyin g Goss's habeas petition, and his pending motion for a preliminary injunction, did n o t spring up in the last few days, though that is when the present action was filed. Goss, with his TRO request denied, essentially asks this Court to hold an ex parte h e a rin g related to his request for a preliminary injunction. Even if respondents and/or their c o u n se l were present at such a hearing, their ability to formulate a meaningful response, g iv e n such short time to prepare, would likely be hindered. Goss's expedited motion seems ta n ta m o u n t to an attempt to revive his TRO request, though the Court has already denied G o s s the expediency of that remedy. NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: G o s s 's Rule 7.4 Motion for Expedited Hearing on Preliminary Injunction Motion ( D o c k e t No. 7) is DENIED. Dated at Milwaukee, Wisconsin, this 7th day of July, 2006. BY THE COURT: s /R u d o l p h T. Randa HON. RUDOLPH T. RANDA C h ie f Judge

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