B-98978, NOV 22, 1961

B-98978, NOV 22, 1961

PRECIS-UNAVAILABLE

MR. SECRETARY:

THERE IS BEFORE US FOR CONSIDERATION LETTER OF JULY 6, 1961, FROM KING & KING, ATTORNEYS OF RECORD, PRESENTING THE CLAIM OF CLARENCE B. BENNETT, U.S. NAVY, RETIRED, FOR INCREASED RETIRED PAY FROM APRIL 1, 1955, TO CURRENT DATE. THIS CLAIM IS ADVANCED UNDER THE HOLDING IN OUR DECISION OF OCTOBER 20, 1960, 40 COMP.GEN. 222, THAT THIS OFFICE WOULD FOLLOW THE RULE IN THE CASE OF LEWIS L. GOVER, PLAINTIFF NO. 2 IN FAGAN, ET AL. V. UNITED STATES, CT.CL. NO. 535-57, DECIDED MAY 4, 1960, AS A PRECEDENT IN SETTLING CLAIMS AND PASSING UPON THE PROPRIETY OF PAYMENTS MADE BY DISBURSING OFFICERS IN SIMILAR CASES UNDER THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18. THERE ALSO IS PRESENTED IN THE LETTER OF JULY 6, 1961, A CLAIM COVERING THE PERIOD FROM OCTOBER 1, 1954, TO CURRENT DATE, FOR AN ADDITIONAL INCREASE IN RETIRED PAY BELIEVED TO BE DUE UNDER THE RULE OF THE DECISION RENDERED MAY 3, 1961, IN JOHNSON V. UNITED STATES, CT.CL. NO. 217-56.

CLARENCE B. BENNETT SERVED ON ACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE FROM SEPTEMBER 25, 1939, TO DECEMBER 20, 1945, INCLUSIVE. WHEN RELEASED TO INACTIVE DUTY ON DECEMBER 21, 1945, HE HAD 22 YEARS, 4 MONTHS AND 10 DAYS OF ACTUAL ACTIVE SERVICE. HIS RETAINER PAY WAS BASED ON HIS ENLISTED GRADE THRU DECEMBER 31, 1947, AND EFFECTIVE FROM JANUARY 1, 1948, THE DATE OF HIS TRANSFER TO THE RETIRED LIST AND CONCURRENT ADVANCEMENT THEREON TO THE GRADE OF COMMISSIONED WARRANT OFFICER, HIS RETIRED PAY WAS BASED ON THE GRADE OF COMMISSIONED WARRANT OFFICER.

THE RECORD DISCLOSES THAT SEVERAL ADJUSTMENTS HAVE BEEN MADE IN BENNETT'S RETAINER AND RETIRED PAY ACCOUNTS. THE FIRST ADJUSTMENT OCCURRED WHEN THE COURT OF CLAIMS ENTERED JUDGMENT IN HIS FAVOR ON FEBRUARY 8, 1955, IN THE CASE OF BENNETT, ET AL. V. UNITED STATES, CT.CL. NO. 361-54. THIS JUDGMENT, AS IN OTHER SANDERS TYPE CASES, WAS BASED UPON A STIPULATION AGREEMENT AND COVERED THE PERIOD SEPTEMBER 14, 1948, TO SEPTEMBER 30, 1954, INCLUSIVE. THE NEXT ADJUSTMENT IN BENNETT'S RETAINER AND RETIRED PAY ACCOUNT WAS ACCOMPLISHED IN GENERAL ACCOUNTING OFFICE CLAIMS DIVISION CERTIFICATION DATED APRIL 27, 1955, COVERING THE PERIOD DECEMBER 21, 1945, TO SEPTEMBER 13, 1948, INCLUSIVE. THE MOST RECENT ADJUSTMENT IN BENNETT'S RETIRED PAY ACCOUNT (AS REPORTED BY THE NAVY FINANCE CENTER IN LETTER OF AUGUST 15, 1961, FILE REFERENCE XAA:64:36 285 477, ADDRESSED TO THE CLAIMS DIVISION OF THIS OFFICE) WAS MADE ON JULY 27, 1961, IN ACCORDANCE WITH THE HOLDING IN 40 COMP.GEN. 222 FOR THE PERIOD FROM APRIL 1, 1955, TO THE DATE OF THAT LETTER, PRESUMABLY WITHOUT KNOWLEDGE OF THE FACT THAT BENNETT WAS A PLAINTIFF IN A LATER COURT OF CLAIMS CASE.

A SERIOUS QUESTION AS TO THE PROPRIETY OF THE ACTION TAKEN BY THE NAVY FINANCE CENTER WITH RESPECT TO THE PERIOD PRECEDING JULY 13, 1957, ARISES BY REASON OF THE FACT THAT CLARENCE B. BENNETT WAS PLAINTIFF NO. 25, ON COURT OF CLAIMS PETITION NO. 221-56, IN THE CASE OF ABERCROMBIE, ET AL. V. UNITED STATES. BENNETT'S ACTION UNDER COURT OF CLAIMS PETITION NO. 221-56 WAS DISMISSED BY THE COURT ON JULY 12, 1957. SEE 139 CT.CL. NO. 748 (1957), DISMISSING THE SIMILAR ACTIONS OF MORE THAN 800 OTHER PLAINTIFFS UNDER FIVE SEPARATE PETITIONS IN ABARR, ET AL. V. UNITED STATES, CT.CL. NO. 40-56; HAIMONWITZ, ET AL. V. UNITED STATES, CT.CL. NO. 41-56; PRENDABLE, ET AL. V. UNITED STATES, CT.CL. NO 42-56; ABERCROMBIE, ET AL. V. UNITED STATES CT.CL. NO. 221-56 AND ARMSTRONG, ET AL. V. UNITED STATES, CT.CL. NO. 249-56. THE DISMISSAL OF BENNETT'S ACTION IN THE ABERCROMBIE CASE WAS AN ADJUDICATION ON THE MERITS AS TO HIS RIGHT TO ANY INCREASE IN RETIRED PAY WHICH COULD AND SHOULD HAVE BEEN CLAIMED BY HIM IN THAT PETITION AND HENCE THE BAR OF RES JUDICATA ARISES WITH RESPECT TO THE PERIOD UP TO AND INCLUDING JULY 12, 1957, THE DATE OF THAT DECISION. HIS SUIT FOR INCREASED RETIRED PAY UNDER PETITION NO. 221-56, BENNETT DID NOT ALLEGE THE GROUNDS FOR RECOVERY WHICH WERE SUBSEQUENTLY DECIDED BY THE COURT IN THE GOVER DECISION OF MAY 4, 1960. THEREFORE, AS STATED BY THE COURT IN REGISTER V. UNITED STATES, CT.CL. NO. 207-59, DECIDED JULY 15, 1960, "SINCE PLAINTIFF COULD AND SHOULD HAVE RAISED THIS QUESTION IN THE FORMER LITIGATION, OUR JUDGMENT THERE BARS HIM FROM NOW MAKING THIS CLAIM AS TO THE PERIOD PREVIOUSLY COVERED BY THE FIRST SUIT." SEE DECISION ON JUNE 8, 1960, IN THE CASE OF JAMES B. MCCARTHY, PLAINTIFF NO. 17 IN AMSDEN, ET AL. V. UNITED STATES, CT.CL. NO. 134-54, AND CLARK, ET AL. V. UNITED STATES, CT.CL. NO. 45-55, DECIDED THAT SAME DATE.

IN THE INSTANT CASE THE BAR OF RES JUDICATA ALSO IS BASED ON THE SPECIFIC PROVISIONS OF SECTION 2519, TITLE 28, U.S.C. (1958 ED.), WHICH PROVIDE THAT:

"A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY."

THIS STATUTE CLEARLY AND EXPLICITLY BARS ANY FURTHER CLAIM, SUIT, OR DEMAND BY BENNETT AGAINST THE UNITED STATES FOR RETIRED PAY FOR THE PERIOD COVERED BY THE JUDGMENT OF JULY 12, 1957, 139 CT.CL. NO. 748.

IT HAS BEEN HELD THAT NO OFFICER OR AGENCY OF THE GOVERNMENT HAS THE POWER TO WAIVE A PERIOD OF LIMITATIONS PLACED UPON CLAIMS AGAINST THE GOVERNMENT BY STATUTE. MODERN ENGINEERING CO., INC. V. UNITED STATES, 126 CT.CL. 136 (1953), CITING UNITED STATES V. GARBUTT OIL COMPANY, 302 U.S. 528. SEE, ALSO, MUNRO V. UNITED STATES, 303 U.S. 36, HOLDING THAT A UNITED STATES DISTRICT ATTORNEY HAS NO POWER TO WAIVE CONDITIONS OR LIMITATIONS IMPOSED BY STATUTE IN RESPECT OF SUITS AGAINST THE UNITED STATES. COMPARE FINN V. UNITED STATES, 123 U.S. 227, CITED IN TUCKER V. ALEXANDER, 275 U.S. 228, INDICATING THAT SUCH WAIVERS, IF ALLOWED, WOULD DEFEAT THE ONLY PURPOSE OF THE STATUTE AND IMPOSE A LIABILITY UPON THE UNITED STATES WHICH OTHERWISE WOULD NOT EXIST.

THIS SAME RULE NECESSARILY MUST BE APPLIED IN CONNECTION WITH 28 U.S.C. 2519, THE PROVISIONS OF WHICH MAY NOT BE WAIVED BY ANY OFFICER OR AGENCY OF THE GOVERNMENT. CONSEQUENTLY, THE ADJUSTMENT THAT WAS MADE IN BENNETT'S RETIRED PAY ACCOUNT BY THE NAVY FINANCE CENTER WAS ERRONEOUS AS TO THE PERIOD APRIL 1, 1955, TO JULY 12, 1957, INCLUSIVE. IN SUCH CIRCUMSTANCES AS IN VIEW OF THE INHERENT RIGHT OF THE GOVERNMENT TO BALANCE ANY ACCOUNT BY "SET-OFF" FROM ANY OTHER SUMS FOUND DUE THE INDIVIDUAL CONCERNED (NOT OTHERWISE EXPRESSLY EXEMPTED BY LAW), THE AMOUNT WHICH HAS BEEN IMPROPERLY PAID TO BENNETT SHOULD BE WITHHELD FROM ANY SUMS DUE HIM, INCLUDING HIS CURRENT RETIRED PAY. SEE 5 U.S.C. 46D. SIMILAR ADMINISTRATIVE ACTION WOULD APPEAR TO BE APPROPRIATE IN ALL OTHER LIKE CASES WHERE IMPROPER PAYMENTS OF RETAINER OR RETIRED PAY HAVE BEEN MADE BY THE DEPARTMENT OF THE NAVY (UNDER THE RULE OF THE GOVER CASE EFFECTIVE FROM APRIL 1, 1955, AND THE HOLDING IN 40 COMP.GEN. 222) AS TO ANY PERIOD WHERE AS THE RESULT OF A PRIOR FINAL JUDGMENT IN THE COURT OF CLAIMS THE PAYMENT WAS BARRED BY THE SPECIFIC PROVISIONS OF 28 U.S.C. 2519.

AS STATED PREVIOUSLY THE DECISION OF JULY 12, 1957, 139 CT.CL. 748, INVOLVED MORE THAN 800 PLAINTIFFS ON FIVE SEPARATE PETITIONS. IT IS PERTINENT TO ADD THAT ON APRIL 3, 1957, THE COURT OF CLAIMS DISMISSED THE SUITS OF 181 OTHER PLAINTIFFS IN THE SIMILAR CASE OF ABENGOSA, ET AL. V. UNITED STATES, 138 CT.CL. 869, THEREBY RAISING THE BAR OF RES JUDICATA UNDER THE PROVISIONS OF 28 U.S.C. 2519, IN THOSE CASES AS TO THE PERIOD PRECEDING APRIL 4, 1957. THEREFORE, THE QUESTION OF RES JUDICATA SHOULD AND MUST BE GIVEN INITIAL CONSIDERATION BY THE NAVY FINANCE CENTER IN CONNECTION WITH ALL CLAIMS PRESENTED BY MEMBERS AND FORMER MEMBERS OF THE FLEET RESERVE WHO MAY HAVE HAD PRIOR CLAIMS FOR INCREASED RETAINER OR RETIRED PAY ADJUDICATED IN THE COURT OF CLAIMS. IN THE CIRCUMSTANCES ABOVE RELATED, THE CLAIM PENDING HERE UNDER THE RULE OF THE GOVER CASE AND OUR HOLDING IN 40 COMP.GEN. 222, WILL BE DENIED.

BENNETT'S OTHER CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1954, IS BASED ON THE ERRONEOUS PREMISE THAT IN THE JOHNSON DECISION OF MAY 3, 1961, CT.CL. NO. 217-56, THE COURT HELD THAT CONSTRUCTIVE SERVICE RESULTING FROM MINORITY OR SHORT-TERM ENLISTMENTS MAY BE CREDITED FOR PURPOSES OF ESTABLISHING THE RATE OF MONTHLY BASIC PAY IN COMPUTING RETIRED PAY UNDER METHOD (B) IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS WELL AS IN THE PERCENTAGE MULTIPLE FACTOR PRESCRIBED IN THAT FORMULA. THE COURT DID NOT SO HOLD. WE ARE FOLLOWING THE RULE OF THE JOHNSON CASE-- SEE B-147085, OCTOBER 13, 1961, COPY HEREWITH-- WHICH DECISION, WHILE DENYING CREDIT FOR INACTIVE SERVICE IN CLASS F-2 OF THE FLEET NAVAL RESERVE DOES ALLOW CREDIT FOR MINORITY AND SHORT-TERM ENLISTMENTS AS "CONSTRUCTIVE SERVICE" IN THE COMPUTATION OF "ACTIVE SERVICE" FOR THE PURPOSES OF THE NEXT TO THE LAST PROVISO IN SECTION 511 OF THE 1949 LAW, THAT IS, ONLY FOR THE PURPOSE OF ADVANCING THE DATE OF COMPUTING RETIRED PAY ON THE BASIS OF A HIGHER OFFICER OR WARRANT-OFFICER GRADE PREVIOUSLY HELD AS AUTHORIZED IN THE METHOD (B) FORMULA PRESCRIBED IN THAT SECTION. THIS CLAIM LIKEWISE WILL BE DISALLOWED IN A SETTLEMENT TO BE ISSUED IN DUE COURSE BY THE CLAIMS DIVISION OF THIS OFFICE.