# In the United States Court of Federal Claims

No. 11

- 595C

(Filed July 1 9 , 201 3 )

NOT FOR PUBLICATION

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LOUIS A. ARROYO III, *

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Plaintiff, *

v. *

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THE UNITED STATES, *

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Defendant. *

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ORDER

As discussed at yesterday ’ s status conference , the Court DENIES the

government’ s motion to remand and DENIES WITHOUT PREJUDICE t he

government’s partial motion to dismiss . Concerning the motion to remand, the

Court does not think that it is appropriate to remand this matter over the plaintiff’ s

objection. Review of a matter by a military correction board i s an option, not a

requirement, see Martinez v. United States , 333 F.3d 1295, 1301 , 1304 (Fed. Cir.

2003) (en banc)

, and plaintiff’s choice of forum should normally be respected. The

only tw o cases that the government can identify in which such a remand was

ordered over the objection of plaintiffs concerned the application of the harmless

error doctrine to promotion decisions in which illegal criteria were employed. See

Christensen v. United States , 60 Fed. Cl. 19, 27

- 28 (2004); Ricks v. United States , 65

Fed. Cl. 826, 830 (2005). Remand in such cases is appropriate because specialized

military judgment and expertise are required for promotion decisions . In this case,

by contrast, plaintiff is not challenging the substance of a personnel decision, but

instead the failure to decide issues, through a medical evaluation process that he

maintains is a predicate to a lawful discharge. Although the Court believes that a

remand could not be to pla intiff’s detriment, and might result in a remedy superior

to that available in this forum, plaintiff, acting pro se , has not been persuaded to

accept a remand. The Court will respect that choice.Concerning the government’s partial motion to dismiss, d efendant argues

that part of plaintiff’s requested relief has been rendered moot by the United States

Air Force’s attempts to schedule medical evaluation s of plaintiff

--- with which

plaintiff has not cooperated. It appears to the Court that for this particular matter,

issues bearing on the appropriate remedies available to plaintiff cannot be

determined prior to (or separate from) a resolution of the question of liability

. Thus,

the motion to dis miss is denied without prejudice, and the government is free to

revisit the issue in its motion for judgment on the administrative record.

As discussed during yester day’s conference, in light of plaintiff’s pro se status,

the Court will treat three of plaintiff’s filings (ECF no s

. 9, 32 and 38) collectively as

a motion for summary judgment and, in the alternative, for judgment on the

administrative record

. The following schedule has been adopted :

1. The government shall file its cross

- motion motion for j udgment on the

administrative record and opposition to plaintiff’s motion on or by

Wednesday, July 31 , 2013 ;

2. plaintiff shall have the twenty

- eight days

--- plus three days for service,

allowed under Rule s 6(d) and 7.2(b)(1) of the Rules of the United States

Court of Federal Claims

--- in which to file his opposition to the

government’s motion and reply in support of his own motion (thus, if the

government files its paper on July 31, the plaintiff’s response will be due

in the Clerk’s office by Tuesday, September 3 , 2013 ) ; and

3. the government will then have fourteen days in which to file its reply

paper.

The filing of the government’s motion for judgment on the administrative

record obviates the need for the filing of an answer in this matter.

IT IS SO ORDERED.

VICTOR J. WOLSKI

Judge

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