B-98978, B-141450, AUG. 28, 1962

B-98978, B-141450, AUG. 28, 1962

TO ACTING ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE:

THERE IS ENCLOSED HEREWITH A COPY OF OUR LETTER OF TODAY TO KING AND KING, ATTORNEYS AT LAW, RELATIVE TO THE ABOVE MATTERS.

BY LETTER DATED MAY 3, 1961, MR. BULLARD'S ATTORNEYS PRESENTED A CLAIM HERE FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM APRIL 1, 1955, TO DATE OF SETTLEMENT BY REASON OF THE DECISION OF THE COURT OF CLAIMS IN FAGAN, ET AL. (GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL.NO. 535-57, DECIDED MAY 4, 1960, AND OUR DECISIONS 40 COMP. GEN. 222 AND 223. THIS CLAIM WAS TO BE REGARDED AS AN ALTERNATIVE CLAIM TO THE ONE PREVIOUSLY SUBMITTED UNDER DATE OF DECEMBER 2, 1959, FOR THE PERIOD BEGINNING DECEMBER 1, 1949, FOR THE BENEFITS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 368, WHICH WAS BEING HELD IN ABEYANCE, SINCE THE SAME CLAIM WAS PENDING IN THE COURT OF CLAIMS IN BARNES, ET AL. (BULLARD, PLAINTIFF NO. 3) V. UNITED STATES, CT.CL.NO. 500- 59.

BY LETTER DATED MAY 3, 1961, THE ATTORNEYS ADVISED THAT A MOTION TO DISMISS THE ACTION IN THE COURT OF CLAIMS AS TO BULLARD HAD BEEN DEPOSITED WITH YOUR DEPARTMENT TO BE HELD IN ESCROW PENDING SATISFACTORY ADMINISTRATIVE SETTLEMENT OF THE CLAIM. GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 28, 1961, ALLOWED THE CLAIMANT THE SUM OF $131.29 AS ADJUSTMENT OF RETIRED PAY FOR THE PERIOD AUGUST 28, 1958 (DATE FOLLOWING THE DATE OF ENTRY OF JUDGMENT FOR MR. BULLARD IN THE ABERCROMBIE CASE), THROUGH APRIL 30, 1961, ON THE BASIS OF THE DECISION IN THE FAGAN (GOVER) CASE. THE CLAIM FOR RETIRED PAY COMPUTED ON THE BASIS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WAS DISALLOWED BY THE SETTLEMENT OF NOVEMBER 28, 1961. A CHECK WAS ISSUED PURSUANT TO THE SETTLEMENT AND WAS TRANSMITTED TO THE CLAIMANT'S ATTORNEYS. WE ARE INFORMALLY ADVISED THAT THE ATTORNEYS RECEIVED THE CHECK EARLY IN JANUARY 1962 AND THAT IT HAS NOT BEEN NEGOTIATED, BUT IS BEING RETAINED IN THEIR POSSESSION.

IN A LETTER DATED JULY 6, 1962, THE ATTORNEYS ADVISE THAT THE ORDER OF JUDGMENT ENTERED IN THE ABERCROMBIE (BULLARD) CASE HAS BEEN AMENDED, WHICH HAS THE EFFECT OF REMOVING THE BAR OF RES JUDICATA FOR PERIODS SUBSEQUENT TO MARCH 31, 1955, AND THEY HAVE REQUESTED RECONSIDERATION OF THE CLAIMS DIVISION SETTLEMENT TO INCLUDE THE PERIOD APRIL 1, 1955, THROUGH AUGUST 27, 1957.

THE FAILURE OF THE CLAIMANT OR HIS ATTORNEYS TO ACCEPT OR REJECT THE CLAIMS DIVISION SETTLEMENT FOR MORE THAN SIX MONTHS, AND THE RETENTION OF THE CHECK WITHOUT NEGOTIATING OR RETURNING IT, HAS BEEN TO THE PREJUDICE OF THE GOVERNMENT. HAD THE SETTLEMENT BEEN ACCEPTED AND THE CHECK NEGOTIATED, THE MOTION TO DISMISS WITH PREJUDICE COULD HAVE BEEN FILED IN THE COURT OF CLAIMS, AND ANY FURTHER CLAIM FOR ADDITIONAL RETIRED PAY FOR PERIODS PRIOR TO THE PERIOD INCLUDED IN THE SETTLEMENT WOULD BE BARRED. ON THE OTHER HAND, HAD THE SETTLEMENT AND CHECK BEEN REJECTED, THE MOTION TO DISMISS WOULD HAVE BEEN RETURNED TO THE ATTORNEYS AND YOUR DEPARTMENT WOULD HAVE BEEN FREE TO REQUEST SUMMARY JUDGMENT OF THE COURT, AS TO MR. BULLARD, SINCE THAT CLAIM APPEARS TO BE WITHOUT MERIT IN VIEW OF THE COURT'S DECISION IN THE CASE OF JONES V. UNITED STATES, NO. 300-56, DECIDED OCTOBER 5, 1960. THE JUDGMENT, IF SO OBTAINED, WOULD BE ON THE MERITS OF THE CASE, AND WOULD SERVE AS AN ADDITIONAL BAR OF RES JUDICATA FOR THE PERIOD OF THE COURT ACTION.

WE CALL YOUR ATTENTION TO THAT PART OF THE ENCLOSED LETTER WHEREIN WE DECLINE TO STATE A FURTHER SETTLEMENT, SINCE WE CANNOT ALLOW ADDITIONAL RETIRED PAY FOR THE PERIOD FROM APRIL 1, 1955, TO SEPTEMBER 30, 1957, AND OUR BELIEF THAT ALLOWANCE FOR ONLY PART OF THE PERIOD WOULD BE UNSATISFACTORY TO THE CLAIMANT AND HIS ATTORNEYS. WE HAVE REQUESTED RETURN OF THE CHECK ISSUED PURSUANT TO THE SETTLEMENT OF NOVEMBER 28, 1961, AND UPON ITS RECEIPT, WE SHALL ADVISE YOU IMMEDIATELY.