Poffenbarger v. Kendall et al
| Michael Poffenbarger |
| Frank Kendall, Robert Miller, Richard Scobee, Jeffrey Pennington, Christopher Kojak, Raymond Smith, United States Of America, Hon Frank Kendall, Lt Gen Robert I Miller, Lt. General Richard W Scobee, Maj. General Jeffrey T Pennington, Lt Colonel Christopher Kojak and Colonel Raymond Smith |
| 3:2022cv00001 |
| January 2, 2022 |
| US District Court for the Southern District of Ohio |
| Dayton Office |
| Caroline H Gentry |
| Sharon L Ovington |
| Thomas M Rose |
| Civil Rights: Other |
| 42 U.S.C. § 2000 Job Discrimination (Public Accomodations) |
| None |
Docket Report
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Filing 32
ENTRY AND ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION #2 AND ISSUING A PRELIMINARY INJUNCTION -- In accordance with Federal Rule of Civil Procedure 65, the Court GRANTS, IN PART, Poffenbarger's request for issuance of a preliminary injunction and ISSUES a preliminary injunction whose terms are specifically set forth in the Order's CONCLUSION section. Signed by Judge Thomas M. Rose on 2-28-2022. (mm)
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Filing 31
TRANSCRIPT REQUEST by Plaintiff Michael Poffenbarger for proceedings held on 2/22/2022 before Judge Judge Rose.. (Wiest, Christopher)
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Minute Entry for proceedings held before Judge Thomas M. Rose: In Chambers Conference held on 2/22/2022. (ep)
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Minute Entry for proceedings held before Judge Thomas M. Rose: Evidentiary (motion for preliminary injunction) Hearing held on 2/22/2022. Testimony taken, exhibits offered and admitted without objection. Order to issue. (Court Reporter: Mary Schweinhagen) (ep)
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Filing 30
NOTICE by Plaintiff Michael Poffenbarger (Proposed Agreed Order between Plaintiff and Individual Capacity Defendants as to withdrawal, without prejudice, of those claims) (Wiest, Christopher)
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Filing 29
NOTICE by Plaintiff Michael Poffenbarger of Supplemental Authority (Attachments: #1 Exhibit Navy Seal 1 v. Austin, Opinion and Order granting Preliminary Injunction (2/18/2022)) (Wiest, Christopher)
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Filing 28
NOTICE of Substitution of Counsel - Andrew Evan Carmichael substituting for Courtney Enlow as to Defendants Frank Kendall, Christopher Kojak, Robert I Miller, Jeffrey T Pennington, Richard W Scobee, Raymond Smith, United States Of America. (Carmichael, Andrew)
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NOTATION ORDER granting #25 Motion for Leave to Appear Pro Hac Vice of Aaron Siri, Elizabeth Brehm, Wendy Cox Co-Counsel. Co-Counsel is directed to register for e-filing through PACER unless they have done so previously. Signed by Judge Thomas M. Rose on 2/16/2022. (srb)
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Filing 27
NOTICE by Plaintiff Michael Poffenbarger of supplemental authority (Attachments: #1 Exhibit Exhibit - Decision, Air Force Officer v. Austin, MDGA No. 5:22-cv-00009) (Wiest, Christopher)
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Filing 26
REPLY to Response to Motion re #2 Emergency MOTION for Temporary Restraining Order Emergency MOTION for Preliminary Injunction filed by Plaintiff Michael Poffenbarger. (Attachments: #1 Affidavit Declaration of Colonel Holbrook (filed in FLMD action), #2 Exhibit PI Granted, TXND action, #3 Exhibit Stay Denied, TXND action, #4 Exhibit TRO Granted, FLMD action, #5 Exhibit Order in MDFL Action directing Government to supplement record) (Wiest, Christopher)
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Filing 25
MOTION for Leave to Appear Pro Hac Vice (Filing fee of $600 paid, receipt number AOHSDC-8720742) of Aaron Siri, Elizabeth Brehm, Wendy Cox by Plaintiff Michael Poffenbarger. (Attachments: #1 Text of Proposed Order) (Wiest, Christopher)
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Filing 24
ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Caroline H. Gentry for all further proceedings. Magistrate Judge Sharon L. Ovington no longer assigned to case. Signed by Chief Judge Algenon L. Marbley on 2/8/22. (jcw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing 23
SUMMONS Returned Executed as to Defendant, Frank Kendall. Frank Kendall served on 1/10/2022, Answer due 3/11/2022. (bjr)
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Filing 22
RESPONSE in Opposition re #2 Emergency MOTION for Temporary Restraining Order Emergency MOTION for Preliminary Injunction filed by Defendants Frank Kendall, Christopher Kojak, Robert I Miller, Jeffrey T Pennington, Richard W Scobee, Raymond Smith, United States Of America. (Attachments: #1 Table of Exhibits, #2 Exhibit 1 - Secretary of Defense Message to the Force (Aug. 9, 2021), #3 Exhibit 2 - Secretary of Defense Memorandum For Senior Pentagon Leadership, Commanders of the Combatant Commands, Defense Agency and DoD Field Activity Directors (Aug. 24, 2021), #4 Exhibit 3 - Congressional Research Service, Defense Health Primer: Military Vaccinations, #5 Exhibit 4 - Department of Defense Instruction (DoDI) 6205.02, #6 Exhibit 5 - Air Force Instruction (AFI) 48-110_IP, #7 Exhibit 6 - Secretary of the Air Force Memorandum for Department of the Air Force Commanders (Sept. 3, 2021), #8 Exhibit 7 - Secretary of the Air Force Memorandum for ALMAJCOM-FLDCOM-FOA-DRU/CC (Dec. 7, 2021), #9 Exhibit 8 - Declaration of Peter Marks (filed in Robert v. Austin, 21-cv-02228 (D. Colo.), #10 Exhibit 9 - Declaration of Colonel Tonya Rans, #11 Exhibit 10 - Declaration of Major Scott Stanley, #12 Exhibit 11 - Declaration of Colonel Artemio C. Chapa, #13 Exhibit 12 - Declaration of Major Matthew J. Streett, #14 Exhibit 13 - Declaration of Colonel Elizabeth M. Hernandez, #15 Exhibit 14 - Declaration of Lieutenant Colonel Ethel M. Watson, #16 Exhibit 15 - Declaration of Lieutenant Colonel Nekitha M. Little, #17 Exhibit 16 - Declaration of Colonel Angela M. Maguinness, #18 Exhibit 17 - Declaration of Lieutenant Colonel Christopher P. Kojak, #19 Exhibit 18 - Declaration of Colonel James R. Poel, #20 Exhibit 19 - Declaration of Colonel Ashley Heyen) (Enlow, Courtney)
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Filing 21
SUMMONS Returned Executed as to Defendant Raymond Smith. Raymond Smith served on 1/11/2022, answer due 3/14/2022. (pb)
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Filing 20
SUMMONS Returned Executed as to Defendant Jeffrey T Pennington. Jeffrey T Pennington served on 1/19/2022, answer due 3/21/2022. (pb)
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Reset Deadline as to Plaintiff must file any reply to the response(s) on or before 2/14/2022. Set Hearing: Preliminary Injunction set for 2/22/2022 10:00 AM in Courtroom 3 - Dayton before Judge Thomas M. Rose. (srb)
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Filing 19
ENTRY AND ORDER DENYING, AS MOOT, PLAINTIFF'S MOTION FOR RECONSIDERATION ON THE TEMPORARY RESTRAINING ORDER #11 AND SETTING SCHEDULE CONCERNING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION #2 -- The Court DENIES Plaintiff's Motion for Reconsideration of the Temporary Restraining Order (Doc. No. 11). The Court ORDERS the following schedule concerning Plaintiff's Motion for Preliminary Injunction (within Doc. No. 2): Defendants shall file any response(s) to Plaintiff's Motion for Preliminary Injunction (within Doc. No. 2), as supplemented in Doc. No. 11, on or before January 31, 2022, and Defendants (in their official capacity only) may file a joint memorandum not to exceed 35 pages; Plaintiff must file any reply to the response(s) on or before February 14, 2022, and any reply is limited to no more than 20 pages; and the Court will hold a hearing on the motion for preliminary injunction on February 22, 2022 at 10:00 a.m. Signed by Judge Thomas M. Rose on 1-24-2022. (mm)
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Filing 18
REPLY to Response to Motion re #11 MOTION for Temporary Restraining Order (reconsidered) MOTION to Stay re #3 Order, and for Injunction Pending Appeal under FRAP 8 MOTION for Reconsideration re #3 Order, MOTION to Expedite Preliminary Injunction Consideration filed by Plaintiff Michael Poffenbarger. (Wiest, Christopher)
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Set/Reset Deadlines: Richard W Scobee answer due 3/11/2022. (bjr)
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Set Deadlines/Hearings: Christopher Kojak answer due 3/11/2022. (bjr)
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Filing 17
SUMMONS Returned Executed as to Defendant, United States Of America, c/o U. S. Attorney. United States Of America, c/o U. S. Attorney served on 1/11/2022, Answer due 3/14/2022. (bjr)
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Filing 16
SUMMONS Returned Executed as to Defendant, Lt. General Richard Scobee. Lt. General Richard Scobee served on 1/10/2022, Answer due 3/11/2022. (bjr) Modified on 1/20/2022 to correct Answer due date. (bjr).
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Filing 15
RESPONSE in Opposition re #11 MOTION for Temporary Restraining Order (reconsidered) MOTION to Stay re #3 Order, and for Injunction Pending Appeal under FRAP 8 MOTION for Reconsideration re #3 Order, MOTION to Expedite Preliminary Injunction Consideration filed by Defendants Frank Kendall, Christopher Kojak, Robert Miller, Jeffrey Pennington, Richard Scobee, Raymond Smith, United States Of America. (Attachments: #1 Declaration of Colonel Raymond Smith) (Enlow, Courtney)
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Filing 14
SUMMONS Returned Executed as to Defendant, United States Of America, Attorney General. United States Of America, Attorney General served on 1/10/2022. Answer due 3/11/2022. (bjr)
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Filing 13
SUMMONS Returned Executed as to Defendant, Lt Colonel Christopher Kojak. Lt Colonel Christopher Kojak served on 1/10/2022, Answer due 3/11/2022. (bjr) Modified on 1/20/2022 to correct Answer due date (bjr).
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Filing 12
SCHEDULING ORDER - The Court sets the following briefing schedule for Plaintiff's Motion for Reconsideration of the Temporary Restraining Order (Doc. No. 11), in which Plaintiff "requests reconsideration of the temporary restraining order, only to prevent the Plaintiff from being involuntarily transferred to the individual ready reserve." Defendants shall file any response(s) on or before Wednesday, January 19, 2022; and Plaintiff shall file any reply on or before Monday, January 24, 2022. The response(s) and reply are limited to 20 pages in length. Signed by Judge Thomas M. Rose on 1-10-2022. (mm)
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Filing 11
MOTION for Temporary Restraining Order (reconsidered), MOTION to Stay re #3 Order, and for Injunction Pending Appeal under FRAP 8, MOTION for Reconsideration re #3 Order, , MOTION to Expedite Preliminary Injunction Consideration ( Responses due by 1/18/2022) by Plaintiff Michael Poffenbarger. (Attachments: #1 Affidavit Supplemental Declaration Poffenbarger with Attachments, #2 Text of Proposed Order Proposed Order) (Wiest, Christopher) Modified on 1/31/2022 to terminate motion; which was ruled upon in document #12 (srb).
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Filing 10
NOTICE of Appearance by Courtney Danielle Enlow for Defendants Frank Kendall, Christopher Kojak, Robert Miller, Jeffrey Pennington, Richard Scobee, Raymond Smith, United States Of America (Enlow, Courtney)
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Filing 9
CERTIFICATE of Mailing: Certified mailing of Summons and Complaint through the Clerk's Office pursuant to Local Rule 4.2. (Attachments: #1 Certified Mail Receipts) (kh)
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Filing 8
Summons Issued as to Robert Miller. (srb)
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Filing 7
NOTICE of Appearance by Thomas B Bruns for Plaintiff Michael Poffenbarger (Bruns, Thomas)
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NOTATION ORDER -- In accordance with footnote 2 of the Court's 1/3/22 Order #3 , the Court ORDERS that the "informal preliminary conference with all parties to determine what additional proceedings are necessary" (in accordance with S.D. Ohio Civ. R. 65.1(a)) is scheduled to take place by telephone on Friday, January 7, 2022 at 9:30 a.m. The Court notes that this conference is not a hearing on the requested preliminary injunction. The Court FURTHER ORDERS that, in accordance with S.D. Ohiio Civ. R. 65.1(a), Plaintiff immediately notify counsel for the adverse parties, if known, or if not known, the adverse parties, of the date and time of the informal preliminary conference set forth above, as well as the fact that it will take place by telephone. The Court will provide the call-in information for the informal preliminary conference in a separate entry. Signed by Judge Thomas M. Rose on 1-4-2022. (mm)
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Filing 6
REQUEST for Issuance of Summons. as to LTGEN Miller (Wiest, Christopher)
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Filing 4
Summons Issued as to Frank Kendall, Christopher Kojak, Jeffrey Pennington, Richard Scobee, Raymond Smith, United States Of America, U.S. Attorney and U.S. Attorney General (srb)
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Filing 3
ENTRY AND ORDER DENYING PLAINTIFF'S MOTION FOR AN EMERGENCY TEMPORARY RESTRAINING ORDER (within Doc. No. 2). Based on what has been presented to the Court, and having considered and balanced the four factors, the Court finds that Plaintiff has not met his burden of justifying issuance of a temporary restraining order. Signed by Judge Thomas M. Rose on 1-3-2022. (mm)
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Filing 2
Emergency MOTION for Temporary Restraining Order , Emergency MOTION for Preliminary Injunction ( Responses due by 1/24/2022) by Plaintiff Michael Poffenbarger. (Attachments: #1 Affidavit Declaration Poffenbarger, #2 Affidavit Declaration of Peter McCullough MD, #3 Text of Proposed Order Proposed Status Quo TRO Order, #4 Text of Proposed Order Proposed PI Order) (Wiest, Christopher) Modified on 1/3/2022 to terminate motion (srb).
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Filing 1
COMPLAINT (verified) against Frank Kendall, Christopher Kojak, Robert Miller, Jeffrey Pennington, Richard Scobee, Raymond Smith, United States Of America ( Filing fee $ 402 paid - receipt number: AOHSDC-8655372), filed by Michael Poffenbarger. (Attachments: #1 Exhibit Exhibit 1 - SECAF Order, #2 Exhibit Exhibit 2 - Sopko Order to Poffenbarger, #3 Exhibit Exhibit 3 - Scobee Denial of Religious Accomodation, #4 Exhibit Exhibit 4 - Poffenbarger Appeal to LTG Miller, #5 Exhibit Exhibit 5 - Miller Denial, #6 Exhibit Exhibit 6 - Order and threat of punitive action, #7 Summons Form Summons package, #8 Civil Cover Sheet Civil Cover) (Wiest, Christopher)
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