B-120159, NOV. 7, 1962

B-120159, NOV. 7, 1962

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT OF DECEMBER 7, 1961, WHEREIN FRANK MARSHALL MONDEAU WAS ALLOWED THE SUM OF $37.08 AS ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 10, 1959, THROUGH SEPTEMBER 30, 1961. THE AMOUNT ALLOWED IN SAID SETTLEMENT REPRESENTED AN INCREASE IN RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, CH. 20, 69 STAT. 18, IN ACCORDANCE WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FAGAN, ET AL. (GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL. NO. 535-57, DECIDED MAY 4, 1960, AND OUR DECISION 40 COMP. GEN. 222. THE SETTLEMENT DISALLOWED THAT PORTION OF THE CLAIM COVERING THE PERIOD FROM AUGUST 4, 1955, THROUGH OCTOBER 9, 1959, AS BARRED UNDER THE DOCTRINE OF RES JUDICATA BY REASON OF JUDGMENT ENTERED ON OCTOBER 9, 1959, IN THE CASE OF AMSDEN, ET AL. (MONDEAU, PLAINTIFF NO. 19) V. UNITED STATES, CT.CL. NO. 134-54, DECIDED JULY 15, 1959.

IT IS CONTENDED IN BEHALF OF THE CLAIMANT THAT THE DOCTRINE OF RES JUDICATA DOES NOT BAR HIS CLAIM FOR THE PERIOD FROM AUGUST 4, 1955, THROUGH OCTOBER 9, 1959, FOR THE REASON THAT THE JUDGMENT OBTAINED ON OCTOBER 9, 1959, REPRESENTED A REFUND OF RETIRED PAY WITHHELD UNDER THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, AND FURTHER, THAT THE JUDGMENT WAS ENTERED ON THE BASIS OF A COMPUTATION PREPARED BY THE GENERAL ACCOUNTING OFFICE WHICH ENDED THE COMPUTATION AS OF AUGUST 3, 1955, SINCE IT APPEARED THAT THE PLAINTIFF (MONDEAU) WAS PAID FULL RETIRED PAY SUBSEQUENT TO AUGUST 3, 1955, BY REASON OF AN AMENDMENT TO THE ECONOMY ACT OF 1932, CH. 561, 69 STAT. 498, RAISING THE LIMITATION AMOUNT. IT IS SUGGESTED THAT THE FOLLOWING STATEMENT, TAKEN FROM OUR LETTER DATED DECEMBER 22, 1959, B 128309, TO THE ATTORNEY GENERAL, IS APPLICABLE TO THE PRESENT SITUATION, AND AFFORDS AMPLE BASIS FOR THE ISSUANCE OF A SUPPLEMENTAL SETTLEMENT FOR THE PERIOD DISALLOWED:

"* * * IN SUCH CIRCUMSTANCES, THE RULE OF RES JUDICATA, IS REGARDED AS REQUIRING PAYMENT FOR THE PERIOD COMMENCING THE DAY FOLLOWING THE LAST DAY ACTUALLY COVERED BY THE JUDGMENT, REGARDLESS OF THE FACT THAT SOME TIME NECESSARILY MUST ELAPSE FROM THE DATE OF THE RULING ON THE MOTION FOR SUMMARY JUDGMENT AND ACTUAL ENTRY OF JUDGMENT ALLOWING INCREASED RETIRED PAY UP TO THE DATE OF SUCH RULING * * *.'

THE COMPLETE PARAGRAPH FROM WHICH THE ABOVE-QUOTED EXTRACT IS TAKEN IS AS FOLLOWS:

"THE PLAINTIFF'S MOTION APPEARS TO BE BASED ON A MISAPPREHENSION OF THE SCOPE OF YOUR DECISION OF DECEMBER 8, 1958, 38 COMP. GEN. 419, WHICH DISCUSSED THE RULE OF RES JUDICATA AS IT APPLIES TO A PLAINTIFF WHO SUES AT DIFFERENT TIMES FOR ADDITIONAL RETIRED PAY ON DIFFERENT LEGAL THEORIES AND THE PERIODS INVOLVED OVERLAP TO SOME EXTENT. THE VIEWS THERE EXPRESSED HAVE NO APPLICATION TO SITUATIONS SUCH AS ARE HERE INVOLVED WHERE THE SAME CLAIMS CONSIDERED BY THE COURT OF CLAIMS IN RULING ON A MOTION FOR SUMMARY JUDGMENT, ARE ALSO FILED HERE BUT INCLUDE LONGER PERIODS OF TIME. IN SUCH CIRCUMSTANCES, THE RULE OF RES JUDICATA, IS REGARDED AS REQUIRING PAYMENT FOR THE PERIOD COMMENCING THE DAY FOLLOWING THE LAST DAY ACTUALLY COVERED BY THE JUDGMENT, REGARDLESS OF THE FACT THAT SOME TIME NECESSARILY MUST ELAPSE FROM THE DATE OF THE RULING ON THE MOTION FOR SUMMARY JUDGMENT AND ACTUAL ENTRY OF JUDGMENT ALLOWING INCREASED RETIRED PAY UP TO THE DATE OF SUCH RULING. IN THE GORDON CASE, 134 C.CLS. 840, PLAINTIFF'S MOTION WAS GRANTED ON APRIL 3, 1956, BUT JUDGMENT WAS NOT ENTERED UNTIL OCTOBER 2, 1956. WE ADVISED THE DISBURSING OFFICER IN 36 COMP. GEN. 501, THAT INCREASED RETIRED PAY WAS PROPERLY PAYABLE ADMINISTRATIVELY UNDER THE COURT'S DECISION, COMMENCING APRIL 4, 1956.'

IN ITS CONTEXT THE QUOTED EXTRACT IS NOT APPLICABLE TO THE PRESENT SITUATION. THE PRESENT CLAIM IS FOR RETIRED PAY BENEFITS UNDER THE CAREER INCENTIVE ACT OF 1955, WHEREAS THE COURT ACTION UNDER PETITION NO. 134-54 WAS CONCERNED WITH THE WITHHOLDING OF RETIRED PAY PURSUANT TO THE ECONOMY ACT OF 1932, AND THE BENEFITS OF THE CAREER INCENTIVE ACT OF 1955 COULD HAVE BEEN PLEADED IN THAT ACTION. THE BASES OF THE CLAIMS ARE NOT THE SAME.

IN THE CASE OF ARMSTRONG, ET AL. (JOSEPH A. HERBERT, PLAINTIFF NO. 6) V. THE UNITED STATES, CT.CL. NO. 431-56, DECIDED JULY 19, 1961, THE COURT STATED:

"/PLAINTIFF-S) RIGHT TO THE BENEFITS * * * WERE NOT PASSED ON IN THE FORMER LITIGATION, BUT DEFENDANT SAYS THAT IT WAS INCUMBENT ON PLAINTIFF IN THAT LITIGATION TO ADVANCE EVERY GROUND HE EVER WISHED TO RELY UPON TO SUPPORT HIS CLAIM FOR RETIRED PAY. THAT IS CORRECT, AND HAD IT BEEN PROPER TO RENDER JUDGMENT FOR THE ENTIRE PERIOD FOR WHICH PLAINTIFF SUED, IT WOULD HAVE BARRED ANY FURTHER CLAIM FOR THAT PERIOD. CLARK V. UNITED STATES, CT.CL. NO. 45-55, DECIDED JUNE 8, 1960, AND CASES THERE CITED.'

THE DOCTRINE OF RES JUDICATA WAS NOT APPLIED IN THE ARMSTRONG CASE, HOWEVER, BECAUSE THE JUDGMENT ENTERED IN THE PRIOR ACTION WAS NOT IN ACCORD WITH THE STIPULATION OF THE PARTIES. THE COURT AMENDED THE JUDGMENT IN THE PRIOR CASE AND AS SO AMENDED IT COVERED A PERIOD PRIOR TO THAT FOR WHICH JUDGMENT WAS ENTERED IN THE ARMSTRONG CASE. IN THE PRESENT CASE, MONDEAU'S PETITION, CT.CL. NO. 134-54, CLAIMED "RETIRED PAY WITHHELD FROM HIM SINCE MARCH 1, 1948, AND THE DIFFERENCE IN THE RETIRED PAY WHICH HE HAS RECEIVED AS A RETIRED ENLISTED MAN OF THE UNITED STATES NAVY AND THE RETIRED PAY OF A CHIEF WARRANT OFFICER CREDITED WITH HIS RESPECTIVE LENGTH OF SERVICE FOR THE PERIOD MARCH 1, 1948, TO DATE OF JUDGMENT * * *.' DECISION WAS RENDERED IN FAVOR OF MONDEAU ON THE MERITS OF THE CASE, ON JULY 15, 1959. ON OCTOBER 7, 1959, THE TRIAL COMMISSIONER OF THE COURT OF CLAIMS FILED A MEMORANDUM REPORT RECOMMENDING THAT JUDGMENT BE ENTERED FOR MONDEAU ON THE SUM OF $15,141.20. JUDGMENT WAS ENTERED ON OCTOBER 9, 1959. THE FACT THAT RETIRED PAY HAD NOT BEEN WITHHELD SUBSEQUENT TO AUGUST 3, 1955, IS NOT MATERIAL, SINCE THE PETITION REQUESTED JUDGMENT FOR THE RETIRED PAY WITHHELD BETWEEN MARCH 1, 1948, AND DATE OF JUDGMENT, WHICH WAS PAYABLE UNDER THE THEORY OF HIS CASE. NO STIPULATIONS WERE INVOLVED AND THE COURT WAS NOT MISLED AT ANY TIME. THE PLAINTIFF OBTAINED EXACTLY WHAT HE SOUGHT, AND FOR THE PERIOD SPECIFIED. UNDER SUCH CIRCUMSTANCES WE ARE OF THE OPINION THAT ANY CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD PRIOR TO OCTOBER 9, 1959, FALLS WITHIN THE DOCTRINE OF RES JUDICATA, SINCE SUCH CLAIM COULD HAVE BEEN ASSERTED IN PETITION NO. 134-54.

ACCORDINGLY IT IS CONSIDERED THAT THE SETTLEMENT OF DECEMBER 7, 1961, WAS CORRECT, AND UPON REVIEW, IS SUSTAINED.