B-123643, MAR. 27, 1957
Highlights
TO THE SECRETARY OF DEFENSE: REFERENCE IS MADE TO THAT PART OF THE DECISION OF MARCH 5. YOU WERE ADVISED IN THE DECISION OF MARCH 5. WHICH WERE LITIGATED. HAVE BECOME RES JUDICATA" AND THAT IN VIEW OF THE FURTHER REASONS THERE STATED THIS OFFICE "IS CONSTRAINED TO FOLLOW THE VIEWS EXPRESSED BY THE COURT OF CLAIMS IN THE DECISION OF JUNE 5. FORWARDING TWO COPIES OF THE GOVERNMENT'S MOTION FOR A NEW TRIAL WHICH WAS FILED WITH THE COURT ON FEBRUARY 8. ON THE GROUNDS THAT THE JUDGMENT WILL RESULT IN "A LEGAL INJUSTICE UPON THE DEFENDANT (GOVERNMENT).'. IT IS UNDERSTOOD. THAT THE DEPARTMENT OF THE ARMY WILL NOT MAKE ANY ADJUSTMENT IN THE COMPUTATION OF THE RETIRED PAY OF LOUIS STANDISH TRACY FOR ANY PART OF THE PERIOD COMMENCING JUNE 6.
B-123643, MAR. 27, 1957
TO THE SECRETARY OF DEFENSE:
REFERENCE IS MADE TO THAT PART OF THE DECISION OF MARCH 5, 1957, B 123643, ADDRESSED TO YOU, CONCERNING THE EFFECT TO BE GIVEN THE OPINION RENDERED JUNE 5, 1956, BY THE COURT OF CLAIMS IN THE CASE OF LOUIS STANDISH TRACY V. UNITED STATES, C.CLS. NO. 113-55, WITH RESPECT TO THE COMPUTATION OF THE RETIRED PAY OF THE PLAINTIFF (TRACY) COMMENCING JUNE 6, 1956.
YOU WERE ADVISED IN THE DECISION OF MARCH 5, 1957, THAT "THE JUDGMENT IN FAVOR OF LOUIS STANDISH TRACY HAS BECOME FINAL AND ALL THE POINTS PLACED IN ISSUE IN THAT CASE, WHICH WERE LITIGATED, HAVE BECOME RES JUDICATA" AND THAT IN VIEW OF THE FURTHER REASONS THERE STATED THIS OFFICE "IS CONSTRAINED TO FOLLOW THE VIEWS EXPRESSED BY THE COURT OF CLAIMS IN THE DECISION OF JUNE 5, 1956, WITH RESPECT TO PAYMENT OF DISABILITY RETIREMENT PAY TO LOUIS STANDISH TRACY COMMENCING JUNE 6, 1956.' HOWEVER, THERE HAS BEEN RECEIVED DEPARTMENT OF JUSTICE LETTER DATED MARCH 20, 1957, FORWARDING TWO COPIES OF THE GOVERNMENT'S MOTION FOR A NEW TRIAL WHICH WAS FILED WITH THE COURT ON FEBRUARY 8, 1957, UNDER THE AUTHORITY OF THE PROVISIONS OF 28 U.S.C. 2515 (B), ON THE GROUNDS THAT THE JUDGMENT WILL RESULT IN "A LEGAL INJUSTICE UPON THE DEFENDANT (GOVERNMENT).' UNDER THE PROVISIONS OF 28 U.S.C. 2515 (B), THE COURT OF CLAIMS MAY, WITHIN TWO YEARS AFTER THE FINAL DISPOSITION OF A SUIT, GRANT THE UNITED STATES A NEW TRIAL AND STAY THE PAYMENT OF ANY JUDGMENT UPON SATISFACTORY EVIDENCE, CUMULATIVE OR OTHERWISE, THAT ANY FRAUD, WRONG, OR INJUSTICE HAS BEEN DONE THE UNITED STATES.
ACCORDINGLY, ANY CONTEMPLATED ACTION BASED ON THAT PART OF THE DECISION TO YOU OF MARCH 5, 1957, ABOVE REFERRED TO, SHOULD BE HELD IN ABEYANCE PENDING FINAL DISPOSITION OF THE GOVERNMENT'S MOTION FOR NEW TRIAL NOW PENDING BEFORE THE COURT OF CLAIMS.
IT IS UNDERSTOOD, INFORMALLY, THAT THE DEPARTMENT OF THE ARMY WILL NOT MAKE ANY ADJUSTMENT IN THE COMPUTATION OF THE RETIRED PAY OF LOUIS STANDISH TRACY FOR ANY PART OF THE PERIOD COMMENCING JUNE 6, 1956, UNTIL THE PENDING MOTION FOR NEW TRIAL HAS BEEN ACTED UPON BY THE COURT OF CLAIMS.