A-11562, NOVEMBER 6, 1925, 5 COMP. GEN. 334

A-11562: Nov 6, 1925

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COURT DECISIONS - RES JUDICATA WHERE AN OFFICER OF THE NAVY HAD FILED A CLAIM AGAINST THE UNITED STATES FOR RETIRED PAY IN THE COURT OF CLAIMS AND THE JUDGMENT RENDERED WAS ADVERSE TO HIM AND WAS NOT APPEALED. THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO CONSIDER THE CLAIM AND THE ACCOUNTING OFFICERS MAY PROPERLY APPLY THE PRINCIPLE OF RES JUDICATA THERETO. I HAVE THE REQUEST OF LIEUT. FOR DECISION WHETHER HE IS AUTHORIZED TO PAY COMMANDER ROBERT T. COMMANDER JASPER FILED HIS PETITION FOR THE DIFFERENCE IN PAY NOW CLAIMED IN THE COURT OF CLAIMS AND HIS PETITION WAS DISMISSED ON THE COURT'S CONCLUSION THAT HE WAS NOT ENTITLED TO THE PAY CLAIMED. 43 CT.CLS. 368. THE BASIS OF THE PRESENT CLAIM IS THE ACTION OF THE SUPREME COURT IN THE CASE OF MOSER V.

A-11562, NOVEMBER 6, 1925, 5 COMP. GEN. 334

COURT DECISIONS - RES JUDICATA WHERE AN OFFICER OF THE NAVY HAD FILED A CLAIM AGAINST THE UNITED STATES FOR RETIRED PAY IN THE COURT OF CLAIMS AND THE JUDGMENT RENDERED WAS ADVERSE TO HIM AND WAS NOT APPEALED, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO CONSIDER THE CLAIM AND THE ACCOUNTING OFFICERS MAY PROPERLY APPLY THE PRINCIPLE OF RES JUDICATA THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 6, 1925:

BY YOUR INDORSEMENT OF OCTOBER 13, 1925, I HAVE THE REQUEST OF LIEUT. B. L. LANKFORD (S.C.), UNITED STATES NAVY, FOR DECISION WHETHER HE IS AUTHORIZED TO PAY COMMANDER ROBERT T. JASPER, UNITED STATES NAVY (RETIRED), THE RETIRED PAY OF A CAPTAIN IN THE NAVY, THAT OFFICER HAVING BEEN GIVEN, SEPTEMBER 16, 1925, A COMMISSION AS CAPTAIN IN THE NAVY ON THE RETIRED LIST FROM THE 21ST DAY OF SEPTEMBER, 1899, IN ACCORDANCE WITH SECTION 11 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007.

COMMANDER JASPER FILED HIS PETITION FOR THE DIFFERENCE IN PAY NOW CLAIMED IN THE COURT OF CLAIMS AND HIS PETITION WAS DISMISSED ON THE COURT'S CONCLUSION THAT HE WAS NOT ENTITLED TO THE PAY CLAIMED. 43 CT.CLS. 368. THERE HAD BEEN PRIOR CONSIDERATION OF HIS RIGHTS. 38 CT.CLS. 202 AND 40 CT.CLS. 76. THE BASIS OF THE PRESENT CLAIM IS THE ACTION OF THE SUPREME COURT IN THE CASE OF MOSER V. UNITED STATES, THE FACTS OF MOSER'S CASE BEING FOR PRACTICAL PURPOSES IDENTICAL WITH THE FACTS IN JASPER'S CASE. THE CLAIM OF MOSER WAS ALLOWED IN THE COURT OF CLAIMS, 42 CT.CLS. 86. IN THE CONSIDERATION OF THE JASPER CLAIM, 43 CT.CLS. 368, THE COURT CONCEDED THE ALLOWANCE IN THE MOSER CASE WAS AN ERROR OF LAW. NOTWITHSTANDING THE ERRONEOUS JUDGMENT, RECURRING INSTALLMENTS OF ADDITIONAL PAY WERE ALLOWED TO MOSER BY THE COURT OF CLAIMS, ITS VIEW BEING THAT THE MATTER WAS RES JUDICATA. 49 CT.CLS. 285, 53 CT.CLS. 639, AND 58 CT.CLS. 164. HOWEVER, ON THE LAST CONSIDERATION THE COURT IMPLIED THAT THE CONCLUSION OF LAW IN THE JASPER CASE WAS PROBABLY ERRONEOUS AND THE CONCLUSION IN THE MOSER CASE, 42 CT.CLS. 86, CORRECT. JASPER AGAIN FILED HIS PETITION IN THE COURT OF CLAIMS AFTER THE SECOND MOSER CASE, AND APPARENTLY ON THE GROUND THE MATTER WAS RES JUDICATA, THE COURT DISMISSED THE PETITION JANUARY 15, 1917, 52 CT.CLS. 521. THE LAST COURT, 266 U.S. 236, AFFIRMED THE COURT OF CLAIMS. IT, HOWEVER, SPECIFICALLY DECLINED TO CONSIDER THE MERITS OF THE CASE, AS APPEARS FROM THE FOLLOWING STATEMENT IN THE OPINION OF THE COURT:

IN THE SECOND AND THIRD MOSER CASES, HOWEVER, THE COURT OF CLAIMS DECLINED TO FOLLOW THE JASPER CASE, HOLDING THAT, BY REASON OF ITS DECISION IN THE FIRST MOSER CASE, THE QUESTION WAS RES JUDICATA. THE PRESENT SUIT WAS DECIDED IN MOSER'S FAVOR UPON THE SAME GROUND; AND, IN ADDITION, THE COURT REVERTED TO THE POSITION TAKEN IN THE FIRST MOSER CASE, ABANDONING AS UNSOUND ITS VIEW AS EXPRESSED IN THE JASPER CASE, UPON THE GROUND THAT THE RIGHT OF THE OFFICER WAS SAVED BY THE PROVISO.

WE FIND IT UNNECESSARY TO CONSIDER THE LATTER RULING, SINCE WE ARE OF OPINION THAT THE COURT WAS CLEARLY RIGHT IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA.

IF, UNDER THE DOCTRINE OF RES JUDICATA, MOSER WAS ENTITLED TO RECOVER, IT MUST BE OBVIOUS THAT UNDER THE SAME DOCTRINE JASPER, WHOSE RIGHT HAS BEEN LITIGATED IN THE COURT OF CLAIMS AND DECIDED ADVERSELY TO HIM ON TWO OCCASIONS, IS NOT ENTITLED TO RECOVER. THAT THIS IS CORRECT HAS BEEN DECIDED IN THIS CASE BY THE COURT OF CLAIMS, 49 CT.CLS. 292, WHERE IT WAS SAID, RESPECTING THE APPLICATION OF THE DOCTRINE OF RES JUDICATA.

* * * AS THIS COURT IS NOT INFALLIBLE, WE MAY HAVE BEEN WRONG IN THE JASPER CASE, AND RIGHT IN THE FORMER MOSER CASE. WE COULD NOT HAVE BEEN RIGHT IN BOTH CASES, BUT, RIGHT OR WRONG, WE MADE THE LAW IN THOSE TWO CASES. THIS CIRCUMSTANCE IS NOTED AS SHOWING THE REASON FOR THE RULE OF RES JUDICATA.

THE FINAL JUDGMENT OF THE COURT IS BINDING ON BOTH PARTIES TO THE SUIT AND ADMINISTRATIVE OFFICERS MAY NOT DEFEAT A JUDICIAL JUDGMENT FAVORABLE TO THE UNITED STATES, WHICH IS CONCLUSIVE ON THE CLAIM. THE ACCOUNTING OFFICERS MAY PROPERLY NEGATIVE SUCH CLAIM UPON THE PRINCIPLE OF RES JUDICATA. 7 COMP. DEC. 653. LIEUTENANT LANKFORD IS NOT AUTHORIZED TO CREDIT THE ADDITIONAL PAY CLAIMED BY COMMANDER JASPER.