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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) MARIO R. LOPEZ-VELAZQUEZ, ) ) Plaintiff, ) ) No. 05-410C v. ) ) (Judge Sweeney) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

DEFENDANT'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS AND MOTION FOR JUDGMENT UPON THE ADMINISTRATIVE RECORD Pursuant to the Rules 12(b)(6) and 52.1 of the Rules of this Court, defendant, the United States, respectfully submits this reply brief in support of its motion to dismiss and motion for judgment upon the administrative record. In his April 14, 2008 brief, Mr. Lopez-Velazquez contends for the first time that substantial evidence is lacking to support the decision by the Air Force Board for Correction of Military Records ("BCMR"). As we demonstrate below, Mr. Lopez-Velazquez waived this argument by failing to raise it in his principal brief. Even assuming that this argument was not waived, Mr. Lopez-Velazquez failed to overcome the strong presumption that his counsel's action fell within the wide range of reasonable professional conduct. ARGUMENT I. Mr. Lopez-Velazquez Waived Any Argument That Substantial Evidence Is Lacking To Support The BCMR's Decision Mr. Lopez-Velazquez waived any argument that substantial evidence is lacking based upon his failure to raise this argument in his initial brief. Pursuant to the parties' joint status report dated September 13, 2007 and the Court's order dated September 14, 2007, Mr. Lopez-

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Velazquez was to file his dispositive motion on or before December 3, 2007. JSR Sept. 13, 2007 at 1; Order Sept. 14, 2007 at 1. On December 2, 2007, Mr. Lopez-Velazquez filed his dispositive motion and memorandum in support of that motion, alleging that the BCMR abused its discretion by not holding an evidentiary hearing to enable his counsel to cross examine certain witnesses, and requesting a remand to the BCMR with instructions directing the BCMR to hold such a hearing.1 As we demonstrated in our initial brief, Mr. Lopez-Velazquez did not contend in his dispositive brief that substantial evidence was lacking to support the board's conclusion. See Def. Br. at 1, 5, 12 n.5. In his brief filed April 14, 2008, Mr. Lopez-Velazquez contends for the first time that substantial evidence is lacking to support the BCMR's conclusion. Having failed to raise this argument in his initial brief, Mr. Lopez-Velazquez waived the argument. Novosteel SA v. United States, 284 F.3d 1261, 1273-74 (Fed. Cir. 2002) (stating that a party waives an argument by failing to raise it in the party's principal brief).2

In this reply brief, we do not address Mr. Lopez-Velazquez's argument that the BCMR abused its discretion by failing to hold a live evidentiary hearing. This argument has been adequately briefed by the parties, and Mr. Lopez-Velazquez has not raised any new issues regarding this argument that warrant a reply. Even if the Court were to characterize plaintiff's argument regarding substantial evidence as a response to the Government's dispositive brief, Mr. Lopez-Velazquez should not be permitted to file a sur-reply to this reply brief, as the Court's rules do not permit a sur-reply absent leave of the Court. See RCFC 7.2. -22

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II.

Substantial Evidence Supports The BCMR's Decision A. Standard of Review

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). "A party challenging [an agency's] determination under the substantial evidence standard `has chosen a course with a high barrier to reversal.'" Id. at 1352 (quoting Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed. Cir. 2001). "[E]ven if it is possible to draw two inconsistent conclusions from evidence in the record, such a possibility does not prevent [the agency's] determination from being supported by substantial evidence." Id. (quoting Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001)).3 Mr. Lopez-Velazquez misstates the standard applied by the BCMR by contending that "no Board . . . could say with certainty that the military lawyer offered effective assistance of counsel." Pl. Br. at 8. Contrary to this contention, the BCMR was not required to determine

Mr. Lopez-Velazquez states in his brief that "[t]his Court has held evidentiary hearings to determine in an administrative separation setting whether ineffective counsel rendered the separation involuntary . . . ," citing Tippett v. United States, 185 F.3d 1250 (Fed. Cir. 1999) and Metz v. United States, 61 Fed. Cl. 144 (2004), rev'd 466 F.3d 991 (Fed. Cir. 2006). Pl. Br. at 45. Because Mr. Lopez-Velazquez does not request an evidentiary hearing in this Court, it is unclear why he refers to prior evidentiary hearings in this Court. In any event, this Court in Metz held an evidentiary hearing based upon the Court's belief, following Tippett, that the voluntariness of a service member's separation is jurisdictional. See Metz, 61 Fed. Cl. at 164 (stating that "when the underlying facts establishing jurisdiction are put in question, the Court may provide for the receipt into evidence of materials beyond those facts included on the face of the pleadings"). However, in reversing this Court's decision, the Federal Circuit made it clear that Tippett is no longer good law as to whether voluntariness of separation is jurisdictional, and that this Court's review for substantial evidence as to the voluntariness of separation is generally limited to the administrative record before it, absent "extremely limited" circumstances. Metz, 466 F.3d at 997-98. -3-

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"with certainty" whether Captain Brand offered effective assistance. Rather, as we demonstrated in our initial brief, the Supreme Court has held that review of counsel's actions must be "highly deferential," and that the party challenging the effectiveness of counsel must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland v. Washington, 466 U.S. 668, 689 (1984) (emphasis added); see also Sinclair v. United States, 66 Fed. Cl. 487, 496 (2005) ("Although ineffective assistance of counsel is sometimes found in military cases, it is a rare happening that occurs only when there is especially egregious conduct on the part of counsel."). B. Captain Brand's Actions Fell Within The Wide Range Of Reasonable Professional Assistance

Substantial evidence supports the BCMR's conclusion that Captain Brand acted reasonably. Mr. Lopez-Velazquez contends that Captain Brand's actions were deficient in three ways: (1) Captain Brand's investigation and preparation of the case were inadequate; (2) Captain Brand provided bad advice about requesting discharge in lieu of trial; and (3) Captain Brand provided incorrect advice about the impact of an under other than honorable conditions ("UOTHC") discharge. Mr. Lopez-Velazquez failed to overcome the strong presumption with respect to each of these contentions that Captain Brand acted reasonably. First, although Mr. Lopez-Velazquez contends that Captain Brand contacted only four witnesses, the administrative record contains ample evidence, including contemporaneous documents, indicating that Captain Brand and Staff Sergeant Johnson spoke with approximately 28 potential witnesses. See A281 (statement by Captain Brand); A284 (statement by Staff Sergeant Johnson); A172 (request that certain witnesses be produced for trial); A173-174 (witness worksheets, referred to in statement by Staff Sergeant Johnson). In fact, Mr. Lopez-4-

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Velazquez recalled merely that Captain Brand spoke with him about solely the four victims, and that Mr. Lopez-Velazquez suggested to Captain Brand that he speak with certain individuals who later indicated that they had not spoken with Captain Brand, or that he seemed uninterested in what they had to say. A275-76. Even if this were true, this contention does not undermine the testimony of Captain Brand or Staff Sergeant Johnson, or the contemporaneous documentation regarding contacts with witnesses.4 Furthermore, the Air Force Legal Services Agency ("AFLSA") conducted an investigation into this allegation of ineffective assistance and found no merit to it, and the Judge Advocate General of the Air Force concurred. A11, A37-38 (finding that Captain Brand "thoroughly" investigated the case). Thus, substantial evidence supports the BCMR's conclusion with respect to Captain Brand's preparation and investigation of the case. Mr. Lopez-Velazquez further contends that Captain Brand's advice to seek a discharge in lieu of trial was unreasonable, and that the discharge was "forced . . . upon him." Pl. Br. at 7-10. Contrary to this contention, substantial evidence supports the conclusion that Captain Brand's advice fell within the reasonable range of professional assistance, and that Mr. Lopez-Velazquez freely decided to seek discharge in lieu of trial. The AFLSA's investigation concluded that the Government had a "strong" case against Mr. Lopez-Velazquez. A38. As the AFLSA report of investigation summarized: At trial, the defense would have been in the unenviable position of attempting to impeach four alleged victims, each alleging inappropriate behavior of a sexual nature [by] TSgt LopezVelazquez. According to Captain Brand, at least one of the alleged victims was credible. There is a clear danger, from the defense

For example, it is possible that some of the individuals that Mr. Lopez-Velazquez suggested to Captain Brand were not among the 28 individuals contacted by Captain Brand or Staff Sergeant Johnson. -5-

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point of view, that credibility of one witness will enhance the credibility of the other witnesses especially if the government is able to show a pattern of misconduct. . . . Additionally, had the defense offered a good soldier defense, the government would have countered with TSgt Lopez-Velazquez's reputation as a womanizer in the unit and his tendency to prey upon junior enlisted females as outlined in the report by Colonel Finnan. . . . This evidence, along with the testimony of the four enlisted females, would have been catastrophically damaging to the defense's case. A39. Mr. Lopez-Velazquez attempts to minimize the charges against him by referring to one of the charges against him as "an attempted kiss." Pl. Br. at 9. However, the charges against him included more serious allegations, including non-consensual sexual acts with one victim, and lifting the shirt and trying to pull down the pants of another victim without her consent. A58-59, 121-24. Furthermore, all four alleged victims of Mr. Lopez-Velazquez's unwanted advances were junior service members. A58-59. Mr. Lopez-Velazquez further contends that Captain Brand provided incorrect advice about the effect of a UOTHC discharge upon his prospects for employment in law enforcement. However, Captain Brand testified that he did not provide any assurances that Mr. LopezVelazquez would receive a job in law enforcement despite the UOTHC discharge, and this testimony was corroborated by Staff Sergeant Johnson. A178 (statement by Captain Brand that he told Mr. Lopez-Velazquez several times "that no one could fully quantify the impact of a UOTHC discharge" and that "no assurances were ever given"); A193 (statement by Staff Sergeant Johnson recalling that Captain Brand told Mr. Lopez-Velazquez that there was "a chance" that he could still get a job in law enforcement). Moreover, the advice that Mr. LopezVelazquez provided in this regard was based upon information reasonably obtained through -6-

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indirect contact with the New York Police Department. A178.5 Mr. Lopez-Velazquez failed to demonstrate that Captain Brand's statements were incorrect, let alone unreasonable. In light of all of the information in the record, it was well within the range of reasonable attorney conduct for Captain Brand to advise Mr. Lopez-Velazquez to seek a discharge in lieu of trial by court-martial. Indeed, both Captain Brand and Staff Sergeant Johnson recall being told by Mr. Lopez-Velazquez that he had sought advice from a civilian attorney, and that this attorney had likewise recommended a discharge in lieu of trial by court-martial. A179, 193. A contemporaneous memorandum to the file confirms this recollection, and further indicates that Captain Brand discussed the case with another attorney, Captain Harding, and that Captain Harding likewise recommended voluntary separation in lieu of trial. A175. Finally, Mr. Lopez-Velazquez contends that Captain Brand essentially forced the separation in lieu of trial upon him. This contention is unsupported by the record. Mr. LopezVelazquez signed a Request for Discharge in Lieu of Trial by Court-Martial. A165. In that request, Mr. Lopez-Velazquez indicated, among other things, that he understood the nature of the charges against him, that he is aware of the consequences of a UOTHC discharge, and that he understood the possible consequences if he were to go to trial. Id.; see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (explaining the fundamental interests in relying upon a defendant's actions to forego a criminal trial, such as a plea agreement). Furthermore, Mr. Lopez-Velazquez had extensive discussions with Captain Brand regarding this case, and both Captain Brand and Staff Sergeant Johnson recalled Captain Brand informing Mr. Lopez-Velazquez that the choice was

Captain Brand informed Mr. Lopez-Velazquez that he was more likely to find employment in the major metropolitan areas rather than rural areas or areas near military bases. A178. -7-

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his and that Captain Brand was willing to proceed to trial if Mr. Lopez-Velazquez so desired. A175, 178-79, 193-94. CONCLUSION For the foregoing reasons, we respectfully request that the Court grant judgment upon the administrative record in favor of the Government and dismiss Mr. Lopez-Velazquez's suit.

Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Todd M. Hughes TODD M. HUGHES Deputy Director OF COUNSEL: Major Thomas R. Uiselt Air Force Legal Operations Agency Air Force Military Personnel Litigation Branch 1501 Wilson Bld., 7th Floor Arlington, VA 22209 s/ Michael J. Dierberg MICHAEL J. DIERBERG Trial Attorney Department of Justice Civil Division Commercial Litigation Branch 1100 L. Street, NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 353-0536 Fax: (202) 305-7643 Attorneys for Defendant

May 29, 2008

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