Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00410-MMS

Document 74

Filed 07/09/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Mario R. Lopez-Velazquez Plaintiff, v. The United States, Defendant. ) ) ) ) ) ) ) ) )

No. 05-410C (Judge Sweeney)

PLAINTIFF'S REPLY BRIEF IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD. By order of this Court dated June 4, 2008, Plaintiff was ordered to file a reply brief replying to and limited to Defendant's argument that Plaintiff has waived his argument that substantial evidence is lacking based upon Plaintiff's alleged failure to raise this argument in his motion to remand. The following reply comports with that order. ARGUMENT The procedural status of the case is as follows: 1. 2. Plaintiff Defendant Motion to Remand Response to Motion to Remand Plus Motion for Judgment Upon the Administrative Record And Motion to Dismiss

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3.

Plaintiff

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Cross-Motion for Judgment Upon the Administrative Record And Opposition to Motion for Judgment Upon the Administrative Record and Motion to Dismiss

4.

Defendant

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Reply in Support of Motion to Dismiss And Motion for Judgment Upon the Administrative Record

Plaintiff did not reply to Defendant's Response to Plaintiff's Motion to Remand. Defendant did not respond to Plaintiff's Cross-Motion for Summary Judgment. Plaintiff's Cross-Motion and Opposition were Responsive Pleadings Plaintiff was the moving party with respect to the Motion to Remand. Defendant, however, was the moving party with respect to the Motion for Judgment Upon the Administrative Record. The Motion for Remand was grounded in the assertion that the AFBCMR should have held an evidentiary hearing and that the AFBCMR's failure to do so left facts in dispute, was not grounded in substantial evidence and was an abuse of discretion. The Motion to Remand was not dispositive in the sense that neither its granting nor denial by this Court will result in judicial resolution of the underlying issues. Those issues, in the absence of a favorable outcome for the Plaintiff at the AFBCMR upon remand, can only be resolved by dispositive cross-motions for judgment upon the administrative record.

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The focus of such cross-motions for judgment, rather than being interlocutory, is finality. The issues raised within such motions go to that end. Accordingly, a motion for judgment upon the administrative record is a principal brief, which the Defendant chose to file. Novosteel v. U.S., 284 F. 3d 1261, 1274 (Fed. Cir. 2002.) Plaintiff's Cross-Motion and Opposition are responsive pleadings to Defendant's Motion for Judgment Upon the Administrative Record. They are not a reply. In Novosteel the offending filing where new matter was raised was a reply. Novosteel does not apply to the case at bar. New matter may be raised in a responsive pleading. Hendricks v. Bank of America, 408 F. 3d 1127, 1135 (Fed. Cir. 2005.) Plaintiff did not reply to Defendant's Response to Plaintiff's Motion to Remand, and obviously no new matter was raised. Substantial Evidence Issues Were Raised in Plaintiff's Motion to Remand Beyond the notion that Plaintiff raised substantial evidence issues in his responsive pleading, is the equally compelling fact that such substantial evidence issues were raised in Plaintiff's Motion to Remand and Memorandum. Plaintiff raised evidentiary issues on multiple occasions in his Memorandum of Points and Authorities in Support of Plaintiff's Motion to Remand. See pgs. 4, 5 and 6. In fact Plaintiff's argument that remand is appropriate is an entanglement of abuse of discretion and substantial evidence argument. On page 4 of the Memorandum it is noted that there is direct conflict between the statements of Plaintiff and his wife as compared to those of Capt Brand and his paralegal.
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Page 5 of the Memorandum attacks the AFBCMR rationale for denying relief. The AFBCMR said without evidentiary support that Plaintiff understood the deal he was offered and that there was no convincing evidence that different counsel would have yielded a different result. On page 6 without an evidentiary predication the AFBCMR was noted to deny an evidentiary hearing because "it would not change our view of what additional remedy is appropriate." It is true that Plaintiff did not use the term "substantial evidence," but Defendant's unilateral declaration that the issue of substantial evidence was not raised in Plaintiff's Motion to Remand is not supported by fact. The standard in this regard is a "scintilla" standard. In U.S. v. Ford Motor Co., 463 F. 3d 1267, 1277 (Fed. Cir. 2006), the Court held that the issue in question was waived where the principal brief was "devoid of any argument relating" to the issue. Id. (emphasis in original.) "Substantial evidence" is defined by Black's Law Dictionary, 5th ed. (1979), as, "such evidence that a reasonable mind might accept as adequate to support a conclusion." The failure of the AFBCMR to cite evidence which supports the conclusion that an evidentiary hearing is unnecessary does not allow the reasonable mind to conclude that adequate support exists for the conclusion. It may well be that, when viewed solely from the perspective of Plaintiff or Capt Brand, substantial evidence exists to support each of their respective positions. Therein lies the inherent conflict. Therein also lies the reason for a need for a hearing.

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Case 1:05-cv-00410-MMS

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The Defendant was not unfairly prejudiced. Ultimately, the issue becomes, as it rightfully should, one of fairness. In this case the Defendant had a fair opportunity to respond. The waiver rule is not an absolute rule. An exception exists where "circumstances indicate that it would result in basically unfair procedure." Ironclad/EEI v. U.S., 78 Fed. Cl. 351, 358 (Fed. Cl. 2007) (quoting Norman v. U.S., 429 F.3d 1081, 1090 (Fed. Cir. 2005). CONCLUSION The waiver rule does not apply because in Plaintiff's Motion to Remand and Memorandum issues of substantial evidence were raised. Further, Plaintiff raised the issue of substantial evidence in a responsive, not a reply pleading. Accordingly the waiver rule does not apply. Finally, Defendant was on notice of the substantial evidence issues and was fairly postured to respond to those issues.

Respectfully submitted,

Dated: July 7, 2008

s/ Gary Myers Gary Myers Counsel for Plaintiff 78 Clark Mill Road Weare, NH 03281 (800) 355-1095 Fax (603) 529-3009

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