A-56721, JANUARY 23, 1967, 46 COMP. GEN. 620

A-56721, JANUARY 23, 1967, 46 COMP. GEN. 620

PAY - RETIRED - RE-RETIREMENT - BARRED CLAIMS THE REMOVAL BY THE ACT OF APRIL 14, 1966, PUBLIC LAW 89-395, OF THE BAR IMPOSED BY THE ACT OF OCT. 9, 1940, ON THE PAYMENT OF INCREASED RETIRED PAY COMPUTED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, NOT INCLUDING CLAIMS BARRED UNDER THE DOCTRINE OF RES JUDICATA, AN OFFICER OF THE REGULAR ARMY RETIRED SEPTEMBER 21, 1944, AND AWARDED SECTION 15 RE-RETIREMENT BENEFITS IN HOLDEN V. UNITED STATES, 123 CT. CL. 866, DECIDED JULY 15, 1952, UNDER THE ACT OF JUNE 29, 1948, FROM THAT DATE TO APRIL 30, 1952, IS BARRED UNDER THE DOCTRINE OF RES JUDICATA FROM HAVING HIS CLAIM CONSIDERED PURSUANT TO THE 1966 ACT FOR THAT PORTION--- MAY 16, 1945 TO JUNE 28, 1948--- OF THE 6-YEAR PERIOD PRECEDING PETITION FILING ON MAY 16, 1951 WHICH ALTHOUGH NOT BARRED BY 28 U.S.C. 2501 WAS NOT INCLUDED IN THE PETITION, THE COURT HAVING HAD COMPLETE JURISDICTION OF THE OFFICER'S THEN EXISTING CAUSE OF ACTION, AND FOR THE PERIOD SUBSEQUENT TO THE PERIOD OF THE AWARD, MAY 1, 1952, TO DATE OF JUDGMENT, JULY 15, 1952, THE HOLDING IN 155 CT. CL. 177 RESTRICTING PAYMENT ABSENT JUDGMENT AMENDMENT.

TO EMERY, SELLS AND WOOD, JANUARY 23, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1966, REQUESTING REVIEW OF THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 30, 1966, ON THE CLAIM OF MAJOR OLIVER HOLDEN, U.S. ARMY, RETIRED, FOR INCREASED RETIRED PAY SOUGHT BY HIM BY REASON OF THE ENACTMENT ON APRIL 14, 1966, OF PUBLIC LAW 89-395, 80 STAT. 120.

UNDER PUBLIC LAW 89-395 THE BENEFITS OF INCREASE RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, 37 U.S.C. 115 (1958 ED.), MAY BE PAID ONLY FOR SUCH PERIODS OF TIME AS TO WHICH THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WOULD BE THE SOLE LEGAL IMPEDIMENT. NO OTHER STATUTORY PROVISION OR ESTABLISHED LEGAL DOCTRINE WAS AFFECTED BY PUBLIC LAW 89 395.

FOLLOWING A PERIOD OF EXTENDED ACTIVE DUTY MAJOR HOLDEN, A RETIRED OFFICER OF THE REGULAR ARMY REVERTED ON SEPTEMBER 21, 1944, TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST. HIS RETIRED PAY STATUS ON THAT DATE ENTITLED HIM TO RECEIVE THE INCREASED RETIRED PAY BENEFITS PRESCRIBED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. HIS CLAIM FOR SUCH BENEFITS WAS FIRST PRESENTED TO THIS OFFICE ON APRIL 2, 1957, AND THE APPLICATION BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED MAY 13, 1957, OF THE BARRING ACT OF OCTOBER 9, 1940, TO THAT PORTION OF THE CLAIM COVERING THE PERIOD PRECEDING APRIL 2, 1947, WAS UPHELD IN DECISION OF MAY 7, 1959, A-56721.

IN COURT OF CLAIMS PETITION NO. 50147, FILED MAY 16, 1951, MAJOR HOLDEN SUED FOR INCREASED RETIRED PAY BENEFITS "FOR THE PERIOD COMMENCING AUGUST 12, 1948, AND EXTENDING TO THE DATE UPON WHICH JUDGMENT MAY BE ENTERED HEREIN.' SUCH ACTION WAS BASED ON THE PROVISIONS OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085, 10 U.S.C. 3963 (A). THE COURT OF CLAIMS ENTERED A JUDGMENT IN HIS FAVOR ON JULY 15, 1952 (123 CT. CL. 866), IN THE AMOUNT OF $2,332.35, WHICH APPEARS TO REPRESENT INCREASED RETIRED PAY UNDER THE 1948 ACT FOR THE PERIOD JUNE 29, 1948 TO APRIL 30, 1952, INCLUSIVE.

THE BAR OF THE 10-YEAR STATUTE OF LIMITATIONS ON MAJOR HOLDEN'S CLAIM FOR INCREASED RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW HAS BEEN REMOVED BY PUBLIC LAW 89-395, AND THE AMOUNT OF $10,785.69, REPRESENTING SUCH INCREASED RETIRED PAY FOR THE PERIODS SEPTEMBER 21, 1944 TO MAY 15, 1945, AND JULY 16, 1952 TO AUGUST 31, 1966, INCLUSIVE, WAS CERTIFIED DUE HIM IN THE SETTLEMENT OF SEPTEMBER 30, 1966. HOWEVER, THAT PART OF HIS CLAIM COVERING THE PERIOD MAY 16, 1945, TO JULY 15, 1952, INCLUSIVE, WAS DENIED FOR THE REASON THAT SUCH PERIOD "IS BARRED BY THE DOCTRINE OF RES JUDICATA AS A RESULT OF THE COURT OF CLAIMS DECISION IN THE CASE OF HOLDEN V. UNITED STATES, 123 CT. CL. 866 (1952).' YOU OBJECT TO APPLICATION OF THE BAR OF RES JUDICATA TO THE PERIODS MAY 16, 1945 TO JUNE 28, 1948, AND MAY 1 TO JULY 15, 1952, INCLUSIVE.

THE CLAIM ADVANCED BY MAJOR HOLDEN IN COURT OF CLAIMS PETITION NO. 50147, EXPRESSLY COVERED THE PERIOD TO THE DATE "UPON WHICH JUDGMENT MAY BE ENTERED HEREIN.' SINCE JUDGMENT WAS ENTERED THEREIN ON JULY 15, 1952, THE MATTER OF APPLYING THE BAR OF RES JUDICATA TO THE PERIOD MAY 1 TO JULY 15, 1952, INCLUSIVE, FALLS SQUARELY WITHIN THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF JOSEPH A. HERBERT PLAINTIFF NO. 6 IN ARMSTRONG, ET AL. V. UNITED STATES, 155 CT. CL. 177, DECIDED JULY 19, 1961.

JOSEPH A. HERBERT WAS PLAINTIFF NO. 26 IN THE CASE OF AGUINALDO, ET AL. V. UNITED STATES, CT. CL. NO. 49726, WHEREIN HE SUED FOR INCREASED RETIRED PAY COMPUTED IN ACCORDANCE WITH THE DECISION IN SANDERS V. UNITED STATES, 120 CT. CL. 501 (1951) "COMMENCING WITH HIS RELEASE TO AN INACTIVE DUTY STATUS AND CONTINUING TO DATE OF JUDGMENT.' A JUDGMENT WAS ENTERED IN THAT CASE ON APRIL 7, 1953, ALLOWING HERBERT INCREASED RETIRED PAY UNDER THE SANDERS RULE FOR THE PERIOD NOVEMBER 7, 1946 TO SEPTEMBER 30, 1949, INCLUSIVE.

SUBSEQUENTLY, HERBERT BECAME PLAINTIFF NO. 6 IN THE ARMSTRONG CASE IN WHICH THE COURT IN THE DECISION OF JULY 19, 1961, POINTED OUT THAT HE, HERBERT, WAS SEEKING JUDGMENT FOR INCREASED DISABILITY RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 818, 37 U.S.C. 272 (D) (1952 ED.), FOR THE PERIOD FROM OCTOBER 1, 1950 THROUGH DECEMBER 31, 1958. (SINCE THE ARMSTRONG PETITION, CT. CL. NO. 431-56, WAS NOT FILED UNTIL OCTOBER 5, 1956, THE PROVISIONS OF 28 U.S.C. 2501 BARRED THE COURT OF CLAIMS FROM JURISDICTION OF THE PERIOD OCTOBER 1, 1949 TO SEPTEMBER 30, 1950, INCLUSIVE.)

THE COURT CONCLUDED THAT THE JUDGMENT OF APRIL 7, 1953, ON THE AGUINALDO PETITION HAD BEEN ERRONEOUSLY ENTERED "FOR THE ENTIRE PERIOD" FOR WHICH HERBERT HAD SUED AND DIRECTED THAT SUCH JUDGMENT BE AMENDED TO ACCORD WITH THE STIPULATION OF THE PARTIES WHICH ACTUALLY COVERED THE PERIOD NOVEMBER 7, 1946 TO SEPTEMBER 30, 1949, ONLY. SEE THE ORDER ISSUED BY THE COURT OF CLAIMS JULY 19, 1961, IN AGUINALDO, ET AL. V. UNITED STATES, CT. CL. NO. 49726, AMENDING THE JUDGMENT OF APRIL 7, 1953, INDICATING THAT THE JUDGMENT OF APRIL 7, 1953, OTHERWISE WOULD HAVE BARRED ANY FURTHER CLAIM BY HERBERT FOR ADDITIONAL RETIRED PAY FOR THE PERIOD PRECEDING APRIL 8, 1953.

MANY OTHER SIMILAR SANDERS TYPE JUDGMENTS WERE AMENDED BY THE COURT. SEE, FOR EXAMPLE, COURT OF CLAIMS ORDER OF SEPTEMBER 21, 1962, AMENDING, AMONG OTHERS, THE JUDGMENT OF OCTOBER 6, 1953, IN THE CASE OF JAMES BERNARD MCCARTHY, ET AL. V. UNITED STATES, CT. CL. NO. 49959. THUS, IT IS CLEAR THAT UNLESS AMENDED THE JUDGMENTS IN THOSE CASES WOULD HAVE RAISED THE BAR OF RES JUDICATA "TO DATE OF JUDGMENT.' THAT RULE IS APPLICABLE IN MAJOR HOLDEN'S CASE AND IN THE ABSENCE OF AN AMENDMENT BY THE COURT OF THE JUDGMENT RENDERED ON JULY 15, 1952, ON COURT OF CLAIMS PETITION NO. 50147 EFFECTIVELY RESTRICTING THE BAR OF RES JUDICATA TO THE PERIOD PRECEDING MAY 1, 1952, THE DISALLOWANCE OF THAT PART OF THE CLAIM COVERING THE PERIOD MAY 1 TO JULY 15, 1952, INCLUSIVE, IS SUSTAINED.

AS PREVIOUSLY POINTED OUT, MAJOR HOLDEN WAS ENTITLED UPON HIS REVERSION TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST (SEPTEMBER 21, 1944), TO THE RE-RETIREMENT BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW. THE COURT OF CLAIMS HAS HELD THAT ENTITLEMENT TO MONTHLY RETIRED PAY CONSTITUTES A CONTINUING CLAIM AND THAT A NEW CAUSE OF ACTION ACCRUES AT THE END OF EACH MONTHLY PAY PERIOD. ALSO, THAT ALL THE MONTHLY PAYMENTS WHICH BECAME DUE WITHIN THE 6-YEAR PERIOD PRIOR TO THE FILING OF A PETITION IN THE COURT OF CLAIMS ARE NOT BARRED BY THE PROVISIONS OF 28 U.S.C. 2501. SEE LERNER V. UNITED STATES, 168 CT. CL. 247 (1964); GORDON V. UNITED STATES, 134 CT. CL. 840 (1956), AND FRIEDMAN V. UNITED STATES, 159 CT. CL. 1 (1962). HENCE, AT THE TIME OF FILING OF COURT OF CLAIMS PETITION NO. 50147, BY MAJOR HOLDEN, THE COURT HAD COMPLETE JURISDICTION OF HIS THEN EXISTING CAUSE OF ACTION FOR THE FULL AMOUNT OF RETIRED PAY DUE FOR THE 6-YEAR PERIOD PRECEDING MAY 16, 1951, THE DATE THE PETITION WAS FILED. THEREFORE, IN THE ACTION INSTITUTED BY HIM IN THAT PETITION HE COULD HAVE PRESENTED A CLAIM FOR INCREASED MONTHLY RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW FOR THE PERIOD COMENCING MAY 16, 1945.

IN STRADLEY V. BATH PORTLAND CEMENT CO., 77 A. 242 (1910), IT WAS HELD THAT:

WHEN AN EMPLOYEE ON A CONTRACT FOR A FIXED PERIOD, AT A PER ANNUM SALARY PAYABLE MONTHLY, HAS BEEN WRONGFULLY DISCHARGED, HE CAN, IF HE SEES FIT, BRING A SEPARATE ACTION AS EACH INSTALLMENT OF SALARY FALLS DUE; YET IF NO ACTION IS BROUGHT UNTIL MORE THAN ONE IS DUE, ALL INSTALLMENTS THAT ARE THEN DUE MUST BE INCLUDED IN THE ONE ACTION; AND IF AN ACTION IS BROUGHT WHEN MORE THAN ONE IS DUE, A RECOVERY IN SUCH ACTION WILL BE AN EFFECTUAL BAR TO A SECOND SUIT BROUGHT TO RECOVER INSTALLMENTS WHICH WERE DUE AT THE TIME OF THE INCEPTION OF THE FIRST ACTION; AND THIS ON THE THEORY THAT A JUDGMENT SETTLES EVERYTHING INVOLVED IN THE RIGHT TO RECOVER, NOT ONLY MATTERS THAT WERE RAISED, BUT THOSE WHICH MIGHT HAVE BEEN RAISED. THIS RULE WAS RECOGNIZED AND APPLIED IN JENKINS V. SCRANTON, 205 PA. 598, 55 ATL. 788.

THE COURT FURTHER STATED IN THE STRADLEY CASE THAT:

WHEN THE PLAINTIFF BROUGHT HIS ACTION ON APRIL 19, 1909, FOR ONE MONTH'S SALARY FROM OCTOBER 28 TO NOVEMBER 28, 1908, HE DID NOT INCLUDE THE OTHER FOUR MONTHS' SALARY (NOVEMBER 29, 1908, TO MARCH 28, 1909) WHICH WERE THEN DUE. THE FOUR MONTHS OMITTED IN THAT ACTION HE INCLUDED IN HIS PRESENT SUIT; AND THIS HE HAD NO RIGHT TO DO.

IN KELLER V. OLSON, 173 S.W. 28 (1915), THE DOCTRINE WAS EXPRESSED AS FOLLOWS:

IT IS ELEMENTARY LAW THAT A PERSON HAVING A SINGLE DEMAND, THOUGH MADE UP OF SEVERAL DISTINCT ITEMS, CANNOT SPLIT THE SAME SO AS TO MAKE TWO CAUSES OF ACTION, AND A JUDGMENT CONCLUDES THE PARTIES IN RESPECT TO THE WHOLE CAUSE OF ACTION SUED ON, WHETHER THE SUIT INCLUDED THE WHOLE OR ONLY A PART OF THE DEMAND SUED FOR. THIS RULE APPLIES, ALTHOUGH THE ITEMS ARE IN THEIR NATURE DISTINCT AND ARISE OR BECOME DUE AT DIFFERENT TIMES, IF THEY GROW OUT OF A SINGLE TORT OR CONTRACT.

IT WAS STATED IN METROPOLITAN LIFE INS. CO. V. RICHTER, 78 P.2D 307 (1937), QUOTING FROM THE SYLLABUS PREPARED BY THE COURT, THAT:

A CONTRACT PROVIDING FOR THE PAYMENT OF WEEKLY BENEFITS IS DIVISIBLE IN ITS NATURE. THE BENEFICIARY UNDER SUCH CONTRACT MAY, IF HE SEES FIT, BRING A SEPARATE ACTION AS EACH INSTALLMENT OR WEEKLY BENEFIT BECOMES DUE. HOWEVER, IF NO ACTION IS COMMENCED UNTIL MORE THAN ONE OF SUCH INSTALLMENTS OR BENEFITS IS DUE, ALL INSTALLMENTS THAT ARE THEN DUE MUST BE INCLUDED IN THE ONE ACTION AND, IF AN ACTION IS BROUGHT WHEN MORE THAN ONE INSTALLMENT IS DUE, A RECOVERY IN SUCH ACTION WILL BE AN EFFECTUAL BAR TO A SECOND SUIT TO RECOVER INSTALLMENTS WHICH WERE DUE AT THE INCEPTION OF THE FIRST ACTION AND WHICH WERE NOT INCLUDED THEREIN.

ALSO, SEE PARAGRAPH 1247 (34 C.J. 838, JUDGMENTS, SUCCESSIVE CAUSES OF ACTION), WHERE IT IS STATED THAT WHEN SEVERAL CLAIMS DUE OR ENFORCEABLE AT DIFFERENT TIMES ARISE OUT OF THE SAME TRANSACTION, SEPARATE ACTIONS MAY BE BROUGHT AS EACH LIABILITY ACCRUES, ALTHOUGH ALL OF SUCH CLAIMS WHICH MAY BE DUE AT THE TIME OF BRINGING A GIVEN ACTION MUST BE INCLUDED IN THAT ACTION.

THE RULE INDICATED ABOVE APPEARS PARTICULARLY APPROPRIATE FOR APPLICATION IN SITUATIONS INVOLVING JUDICIAL ACTION TO COLLECT THE AMOUNT BELIEVED TO BE DUE AS RETIRED PAY AT THE TIME SUCH ACTION IS COMMENCED, BASED ON A LESS FAVORABLE LEGAL THEORY AND FOR A SHORTER PERIOD OF TIME THAN ACTUALLY WAS INVOLVED. ALL OF THE FACTS RELATING TO MAJOR HOLDEN'S RETIRED PAY RIGHTS DURING THE PERIOD MAY 16, 1945, TO MAY 16, 1951, ARISING FROM THE FAILURE OF THE GOVERNMENT TO PAY HIM INCREASED RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW WERE KNOWN TO HIM WHEN HE FILED HIS PETITION NO. 50147 ON MAY 16, 1951. CONSEQUENTLY, HIS CLAIM FOR ANY MONTHLY INSTALLMENTS OF INCREASED RETIRED PAY WHICH WERE PAST DUE AND UNPAID FOR THE PERIOD NOT BARRED FROM THE JURISDICTION OF THE COURT BY 28 U.S.C. 2501 COULD AND SHOULD HAVE BEEN INCLUDED IN THAT ACTION. HAVING FILED SUIT FOR AND OBTAINED A JUDGMENT COVERING ONLY A PART OF THAT PERIOD, NO CONSIDERATION MAY NOW BE GIVEN THAT PART OF HIS CLAIM RELATING TO THE EARLIER PORTION OF THAT PERIOD.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF SEPTEMBER 30, 1966, DISALLOWING HIS CLAIM FOR THE PERIOD MAY 16, 1945 TO JUNE 28, 1948, IS ALSO SUSTAINED.