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Watson v. Geren

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


May 18, 2007

TIMOTHY D. WATSON, PETITIONER,
v.
THE HONORABLE PETE GEREN, ACTING SECRETARY OF THE ARMY, RESPONDENT.

The opinion of the court was delivered by: Gershon, United States District Judge

ORDER

By a judgment dated April 16, 2007, this court granted petitioner's petition for a writ of habeas corpus and ordered respondent to grant petitioner's application for conscientious objector status and release him through immediate discharge. Respondent now seeks a sixty (60) day stay of the judgment to permit him to file an appeal and, if an appeal is filed, a stay pending decision by the Court of Appeals for the Second Circuit. Respondent does not seek an order requiring petitioner to report to active duty, but agrees to maintenance of the status quo pending determination by the Court of Appeals.

Respondent argues that, absent a stay, "there is a risk that the Army effectively will lose its right to appeal, as it is unclear how the Army would go about re-commissioning Petitioner after he has been discharged from the service." I disagree. Entry of judgment will not divest respondent of his right to appeal or return petitioner to Army custody if an appeal were successful. See Lovallo v. Froehlke, 468 F.2d 340, 344 (2d Cir. 1972) (holding, under facts strikingly similar to those presented here, that "[r]eversal undoes what the habeas corpus did and makes lawful a resumption of custody") (quoting Eagles v. United States ex rel. Samuels, 329 U.S. 304, 308 (1946)). Because respondent fails to show that the Army will suffer any harm upon denial of a stay, analysis of the remaining stay factors, as outlined in Mohammed v. Reno, 309 F.3d 95, 100 (2d Cir. 2002), is unnecessary.

Accordingly, respondent's motion is denied.

SO ORDERED.

NINA GERSHON United States District Judge

20070518

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