A-56721, JUL. 22, 1959

A-56721, JUL. 22, 1959

TO EMERY AND WOOD, ATTORNEYS AT LAW:

IN YOUR LETTER OF JUNE 17, 1959, YOU REQUEST RECONSIDERATION OF OUR DECISION DATED MAY 7, 1959, A-56721, DENYING THE CLAIM OF MAJOR OLIVER HOLDEN FOR INCREASED RETIRED PAY ON THE GROUND OF THE DOCTRINE OF RES JUDICATA HE HAVING PREVIOUSLY HAD HIS RIGHT TO INCREASED RETIRED PAY ADJUDICATED BY THE COURT OF CLAIMS IN THE CASE OF HOLDEN V. UNITED STATES, 123 C.CLS. 866. AS A BASIS FOR THIS REQUEST YOU CITE THE COURT'S RULING IN THE CASE OF HARRINGTON V. UNITED STATES, C.CLS. 424 57, DECIDED JUNE 3, 1959.

THE COURT CONCLUDED IN THE HARRINGTON CASE THAT ITS PRIOR DECISION ON AN ACTION BY THE PLAINTIFF FOR INCREASED RETIRED PAY WAS NOT RES JUDICATA WITH RESPECT TO THE CLAIM FOR INCREASED RETIRED PAY THERE ASSERTED. ARRIVING AT THIS CONCLUSION, HOWEVER, THE COURT POINTED OUT THAT THE SECOND CLAIM AROSE UNDER A STATUTE WHICH HAD NOT BEEN ENACTED WHEN THE PETITION WHICH WAS THE SUBJECT OF THE PRIOR DECISION WAS FILED. APPARENTLY THAT FACT FORMED THE PRIMARY BASIS FOR THE COURT'S CONCLUSION.

SINCE THE STATUTE ON WHICH MAJOR HOLDEN BASES HIS PRESENT CLAIM WAS IN EXISTENCE WHEN HE FILED THE PETITION WHICH RESULTED IN THE DECISION REPORTED AT 123 C.CLS. 866, AND ANY RIGHT THEREUNDER COULD HAVE BEEN CLAIMED IN THAT PETITION, WE DO NOT BELIEVE THAT THE CITED DECISION IN THE HARRINGTON CASE CONSTITUTES ANY AUTHORITY FOR FAVORABLE ACTION ON HIS PRESENT CLAIM. ACCORDINGLY WE MUST CONTINUE TO DENY MAJOR HOLDEN'S CLAIM, AT LEAST UNTIL SUCH TIME AS THE COURT HAS CONSIDERED AND RULES ON THE RES JUDICATA QUESTION PRESENTED IN HIS PRESENT CASE. IN THIS CONNECTION SEE OUR COMMENTS IN THE DECISION OF MAY 7, 1959, CONCERNING THE PENDING CASE OF BERRY V. UNITED STATES, C.CLS. NO. 108 59.