Free Motion to Remand - District Court of Federal Claims - federal

Case 1:05-cv-00410-MMS

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Filed 08/29/2005

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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 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 Rules of the United States Court of Federal Claims ("RCFC"), defendant respectfully requests that this Court remand this matter to the Secretary of the Air Force Board for Correction of Military Records ("AFBCMR") to consider the Air Force's prior examination of Mr. Lopez-Velazquez's February 15, 2001, claim that he had been given ineffective assistance of counsel. Plaintiff's counsel has indicated that he supports this motion. Mr. Lopez-Velazquez seeks resinstatement as a technical sergeant retroactive to January 5, 2001, as well as back pay and to have all references to his separation from military service in lieu of court-martial expunged from his records. Pl.'s Compl. at 4. Though he sought discharge in lieu of court martial when he faced allegations of sexual misconduct, Mr. Lopez-Velazquez now argues that he did so under guidance from ineffective counsel. Id. ¶¶ 7-11, 16. Because he sought discharge, this Court would not have jurisdiction to review the complaint unless Mr. Lopez-Velazquez can demonstrate that he made his decision due to ineffective counsel. See, e.g., Moody v. United States, 58 Fed. Cl. 522, 524 (2003) (citing Rigsbee v. United States, 226 F.3d 1376, 1378-79 (Fed. Cir. 2000). Therefore, this matter turns upon Mr. Lopez-Velazquez's claim of ineffective assistance of counsel. The Air Force found the evidence which Mr. Lopez-

Case 1:05-cv-00410-MMS

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Filed 08/29/2005

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Velazquez presented to be insufficient to prove ineffective assistance of counsel or material error or injustice. It also considered the Report of Investigation of the sexual assault claims against then-Sergeant Lopez-Velazquez. However, the AFBCMR did not review the Air Force's own prior examination of Mr. Lopez-Velazquez's assertion of ineffective assistance of counsel. Given that the same agency made a previous examination of the same claim, full review can be guaranteed by having that agency's BCMR review the report of that prior investigation. To insure that the record is fully reviewed and any relevant information explored, the AFBCMR should be given an opportunity to review these materials. For these reasons, 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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Case 1:05-cv-00410-MMS

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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 August 29, 2005 Attorneys for Defendant

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Case 1:05-cv-00410-MMS

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of August, 2005, a copy of the foregoing DEFENDANT'S MOTION TO REMAND THIS MATTER FOR ADDITIONAL REVIEW BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 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