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

Case 1:05-cv-00410-MMS

Document 17

Filed 08/30/2005

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS MARIO R. LOPEZ-VELAZQUEZ, Plaintiff, v. THE UNITED STATES Defendant. ) ) ) ) ) ) ) ) )

No. 05-410c (Chief Judge Damich)

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO REMAND THIS MATTER FOR ADDITIONAL REVIEW BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

Pursuant to Rule 56.2 of the United States Court of Federal Claims ("RCFC"), Plaintiff responds to Defendant's motion to remand this matter to the Air Force Board for Correction of Military Records. Plaintiff's counsel supports the idea of a remand on grounds of judicial economy and common sense. Plaintiff does not support the narrow scope of the remand proposed by the Defendant. Plaintiff seeks an evidentiary hearing regarding the palpable ineffective assistance of counsel provided to Plaintiff. See, Complaint paragraphs 18 and 21. Such an evidentiary hearing was denied by the AFBCMR for no good reason. Plaintiff's ineffective counsel has never provided justification for his conduct directly to the AFBCMR.

Case 1:05-cv-00410-MMS

Document 17

Filed 08/30/2005

Page 2 of 2

This Court could hold its own evidentiary hearing in this setting. Tippett v. United States, 185 F. 3d 1250 (Fed. Cir. 1999). Plaintiff certainly believes that such an evidentiary hearing before this Court would satisfy the ends of justice. Given the procedural posture of the case such an evidentiary hearing, properly conducted by the AFBCMR, may well serve both the ends of justice and judicial economy. Such an evidentiary hearing would require a personal appearance hearing before the AFBCMR by Plaintiff, under oath testimony by Plaintiff's witnesses and witnesses for the Defendant, perhaps by telephone if required. Most assuredly the attorney who provided counsel to Plaintiff must testify. All witnesses must be subject to cross-examination. The feeble attempt by the Defendant to seek remand limited to further review of a government produced document serves no useful purpose. That document concluded that counsel did not engage in an ethical breech. No ethical breech was ever alleged. The document is a non sequitur.

Respectfully submitted, s/Gary Myers Gary Myers Counsel for Plaintiff 78 Clark Mill Road Weare, NH 03281 (800) 355-1095 Fax (603) 529-3009 Email: [email protected]