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

Case 1:05-cv-00410-MMS

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Filed 09/12/2005

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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 (Chief Judge Damich)

DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION TO REMAND Pursuant to Rule 7.1 of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits the following reply brief in support of its motion to remand. In support of this motion, we rely upon our opening brief and the following reply brief. In our opening brief, we informed the Court that the Air Force had performed a prior investigation of the quality of the legal representation that Mr. Lopez-Velazquez received during his criminal proceedings and that the Air Force Board for Correction of Military Records ("AFBCMR") had apparently not reviewed the evidence from this prior investigation. We requested that this Court remand this matter to the AFBCMR to review the record of that prior investigation. Prior to our filing, the plaintiff indicated that he supported remand. In response to our motion, plaintiff continued to support remand, but requested that this Court require that the AFBCMR conduct an "evidentiary hearing" or, alternatively, that this Court hold such a hearing itself. The only case which plaintiff cites in support of his request is Tippett v. United States, 185 F.3d 1250 (Fed. Cir. 1999). Pl.'s Resp. Br. at 2. However, the Tippett decision reversed a

Case 1:05-cv-00410-MMS

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dismissal by the Court of Federal Claims for lack of jurisdiction and held that the Court itself had to hold an evidentiary hearing. 185 F.3d at 1258. It does not support the proposition that this Court could hold a hearing in this matter while, at the same time, remanding it to the AFBCMR. Nor would the Tippett decision support this Court ordering the AFBCMR to hold a hearing if the AFBCMR did not find such a hearing to be necessary. The United States Supreme Court has long held that, to the extent possible, reviewing Courts should not seek out additional evidence that was not before the deciding agency making the decision. Florida Power & Light v. Lorion, 470 U.S. 729, 744 (1985). After the AFBCMR performs its examination upon remand, this Court will be able to review whether its decision was supported by the record and render a decision based upon that determination. However, mandating that the AFBCMR hold a hearing without a showing by the plaintiff of specific evidence which the AFBCMR was required to consider, would be improper at this point. For the reasons stated here and in our opening brief, we respectfully request that this Court grant our motion to remand this matter to the AFBCMR with instructions to review the Air Force's prior investigation of Mr. Lopez-Velazquez's claim of ineffective assistance of counsel.

Respectfully submitted, PETER D. KEISLER. Assistant Attorney General DAVID M. COHEN Director s/ Todd M. Hughes TODD M. HUGHES Assistant Director

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s/ James D. Colt JAMES D. COLT 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) 514-7300 Fax: (202) 307-0972 September 12, 2005 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of September, 2005, a copy of the foregoing DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION TO REMAND was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing though the Court's system.

s/ James D. Colt