B-114422, JANUARY 10, 1957, 36 COMP. GEN. 489

B-114422: Jan 10, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IN WHICH A RETIRED NAVAL RESERVE OFFICER WAS AWARDED INCREASED RETIRED PAY ON THE BASIS THAT HIS DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION. EVEN THOUGH THE EXAMINATION WAS AFTER THE EFFECTIVE DATE OF HIS RETIREMENT FOR DISABILITY. THE GENERAL ACCOUNTING OFFICE WILL CONTINUE TO HOLD THE VIEW THAT THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 WAS NOT INTENDED TO AUTHORIZE INCREASED RETIRED PAY IN ANY CASE WHERE THE MEMBER'S DISABILITY WAS FOUND TO EXIST NOT AS A RESULT OF A PROMOTION PHYSICAL EXAMINATION BUT WAS FOUND TO EXIST PRIOR TO THE DATE OF SUCH EXAMINATION. BY THE COURT OF CLAIMS TO A NAVAL RESERVE OFFICER FOR INCREASED RETIRED PAY ON THE BASIS THAT HIS DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION.

B-114422, JANUARY 10, 1957, 36 COMP. GEN. 489

MILITARY PERSONNEL - RETIRED PAY - DISABILITY - FREDRICKSON V. UNITED STATES - ESTOPPEL BY JUDGMENT NOTWITHSTANDING THE DECISION IN FREDRICKSON V. UNITED STATES, DECIDED BY THE COURT OF CLAIMS ON JANUARY 31, 1956, ( COURT OF CLAIMS NO. 100-53), IN WHICH A RETIRED NAVAL RESERVE OFFICER WAS AWARDED INCREASED RETIRED PAY ON THE BASIS THAT HIS DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION, EVEN THOUGH THE EXAMINATION WAS AFTER THE EFFECTIVE DATE OF HIS RETIREMENT FOR DISABILITY, THE GENERAL ACCOUNTING OFFICE WILL CONTINUE TO HOLD THE VIEW THAT THE FIFTH PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 WAS NOT INTENDED TO AUTHORIZE INCREASED RETIRED PAY IN ANY CASE WHERE THE MEMBER'S DISABILITY WAS FOUND TO EXIST NOT AS A RESULT OF A PROMOTION PHYSICAL EXAMINATION BUT WAS FOUND TO EXIST PRIOR TO THE DATE OF SUCH EXAMINATION. A JUDGMENT AWARDED ON JANUARY 31, 1956, BY THE COURT OF CLAIMS TO A NAVAL RESERVE OFFICER FOR INCREASED RETIRED PAY ON THE BASIS THAT HIS DISABILITY WAS FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION, EVEN THOUGH THE EXAMINATION WAS AFTER THE EFFECTIVE DATE OF HIS RETIREMENT FOR THE SAME DISABILITY, HAS MADE THE ISSUES OF FACT AND AND LAW RES JUDICTA, AND, THEREFORE, THE RULE OF ESTOPPEL BY JUDGMENT WOULD PRECLUDE THE GENERAL ACCOUNTING OFFICE FROM DENYING THE PLAINTIFF'S CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD SUBSEQUENT TO THE JUDGMENT.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, JANUARY 10, 1957:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, FORWARDED HERE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY UNDER THE DATE OF OCTOBER 24, 1956, REQUESTING THAT YOU BE ADVISED WHETHER THE DECISION RENDERED ON JANUARY 31, 1956, BY THE COURT OF CLAIMS IN THE PLAINTIFF'S FAVOR IN THE CASE OF CASPER T. FREDRICKSON V. UNITED STATES, C.1CLS. NO. 100-53, SHOULD BE FOLLOWED ON AND AFTER FEBRUARY 1, 1956, THE DAY FOLLOWING THE PERIOD COVERED BY THE JUDGMENT, SO AS TO ENTITLE FREDRICKSON TO THE RETIRED PAY OF A CAPTAIN UNDER SECTION 402 (D), CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272 (D).

THE PERTINENT FACTS OF THE CASE ARE SET FORTH IN PARAGRAPH 1 OF YOUR LETTER, AS FOLLOWS:

1. AVAILABLE INFORMATION SHOWS THAT COMMANDER CASPER TALMAGE FREDRICKSON, SUPPLY CORPS, UNITED STATES NAVAL RESERVE( RETIRED), 16081,

(A) WAS ADMITTED TO THE U. S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, AS A PATIENT ON 10 OCTOBER 1949 WITH A DIAGNOSIS OF ARTERIOSCLEROTIC HEART DISEASE AND SUBSEQUENTLY DISCHARGED

(B) WAS AGAIN ADMITTED TO U. S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA ON 17 JANUARY 1950 WITH THE SAME DIAGNOSIS

(C) APPEARED BEFORE A CLINICAL BOARD ON 31 JANUARY 1950, WHICH BOARD RECOMMENDED APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD

(D) APPEARED BEFORE A PHYSICAL EVALUATION BOARD ON 10 MARCH 1950, WHICH BOARD RECOMMENDED FINDINGS THAT HE WAS UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF ARTERIOSCLEROTIC HEART DISEASE AND DUODENAL ULCER, AND SUCH FINDINGS WERE APPROVED BY THE PRESIDENT ON 31 MARCH 1950.

(E) WAS SELECTED FOR PROMOTION TO RANK OF CAPTAIN BY SELECTION BOARD REPORT AND ON 29 MARCH 1950, PURSUANT TO ALNAV 27-50, ISSUED 24 MARCH 1950, WAS ORDERED TO APPEAR BEFORE A BOARD OF MEDICAL EXAMINERS TO DETERMINE PHYSICAL FITNESS TO PERFORM DUTIES OF A CAPTAIN IN THE SUPPLY CORPS.

(F) WAS EXAMINED FOR PROMOTION TO RANK OF CAPTAIN BY BOARD OF MEDICAL EXAMINERS CONVENED ON 4 APRIL 1950 AND WAS FOUND UNFIT TO PERFORM THE DUTIES OF HIS RANK BY REASON OF ARTERIOSCLEROTIC HEART DISEASE AND MULTIPLE JOINT HYPERTROPHIC ARTHRITIS

(G) ON 27 APRIL 1950, RECEIVED RETIREMENT ORDERS DATED 18 APRIL 1950, PLACING HIM ON THE RETIRED LIST IN THE RANK OF COMMANDER, EFFECTIVE 1 APRIL 1950, PURSUANT TO THE PROVISIONS OF U.S. CODE TITLE 37, SECTION 272 (D)

THE POINT AT ISSUE WHICH THE COURT OF CLAIMS DECIDED IN FAVOR OF THE PLAINTIFF FREDRICKSON, WAS WHETHER THE PLAINTIFF'S STATUS, UNDER THE FACTS ABOVE STATED, BROUGHT HIM WITHIN THE SCOPE OF THE FIFTH PROVISO IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), THAT IS, WHETHER HIS PHYSICAL DISABILITY WAS "FOUND TO EXIST AS A RESULT OF A PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH EFFECTING" HIS PROMOTION TO CAPTAIN.

IN THE DECISION OF JANUARY 31, 1956, THE COURT SAID " THE FACTS OF THIS CASE ARE SIMILAR TO THE FACTS IN LEONARD V. UNITED STATES, 131 C.1CLS. 91.' IN COMPARING THE FACTS IN THE LEONARD CASE WITH THOSE BEFORE IT IN THE CASE OF FREDRICKSON, THE COURT FURTHER STATED " IN BOTH CASES THE PLAINTIFFS HAD PHYSICAL EXAMINATIONS IN CONNECTION WITH THEIR PROMOTIONS; THE PHYSICAL DISABILITIES ENTITLING THEM TO DISABILITY RETIREMENT WERE "FOUND TO EXIST" AS A RESULT OF THESE EXAMINATIONS IN BOTH THE CASES; AND IN BOTH CASES THE GOVERNMENT KNEW OF THE EXISTENCE OF THE DISABILITIES PRIOR TO THE EXAMINATIONS.' THE COURT THEN SAID " THE LATER FACT (THE GOVERNMENT'S KNOWLEDGE OF DISABILITY PRIOR TO PROMOTION PHYSICAL EXAMINATION) DID NOT PREVENT PLAINTIFF FROM RECOVERING IN THE LEONARD CASE, AND THAT FACT SHOULD NOT PRECLUDE THE PRESENT PLAINTIFF FROM RECOVERING IN THIS CASE.' THE COURT CONCLUDED THE MATTER BY SAYING " WE THOUGHT THEN AND THINK NOW THAT THE DATES OF THE PHYSICAL EXAMINATIONS FOR PROMOTION AND RETIREMENT WERE SO CLOSE TOGETHER AS TO BE PART AND PARCEL OF THE SAME TRANSACTION SO THAT IT MIGHT PROPERLY BE SAID THAT PLAINTIFF'S DISABILITIES WERE FOUND TO EXIST AS A RESULT OF PHYSICAL EXAMINATIONS GIVEN IN CONNECTION WITH EFFECTING THEIR PROMOTIONS.'

WE CONTINUE TO HOLD THE VIEW THAT THE FIFTH PROVISO OF SECTION 402 (D) WAS NOT INTENDED TO AUTHORIZE INCREASED RETIRED PAY IN ANY CASE WHERE THE MEMBER'S DISABILITY WAS "FOUND TO EXIST" NOT AS A RESULT OF A PROMOTION PHYSICAL EXAMINATION, BUT PRIOR TO THE DATE OF SUCH AN EXAMINATION. MOREOVER, THE FACTS IN THE FREDRICKSON CASE DIFFER FROM THOSE IN THE LEONARD CASE IN AT LEAST ONE IMPORTANT PARTICULAR, NAMELY, THE PROMOTION PHYSICAL EXAMINATION WAS NOT GIVEN IN FREDRICKSON'S CASE UNTIL AFTER THE EFFECTIVE DATE OF HIS RETIREMENT FOR DISABILITY. HOWEVER, THE JUDGMENT IN FAVOR OF FREDRICKSON HAS BECOME FINAL AND ALL THE POINTS PLACED IN ISSUE INCLUDING THE FACTS WHICH WERE LITIGATED IN THE CASE HAVE BECOME RES JUDICATA. IN OTHER WORDS, THE QUESTION OF FREDRICKSON'S RIGHT AND THE BASIS FOR COMPUTING HIS RETIRED PAY ON AND AFTER FEBRUARY 1, 1956, NECESSARILY INVOLVE THE IDENTICAL ISSUES OF FACT AND LAW WHICH WERE CONSIDERED AND DECIDED BY THE COURT OF CLAIMS IN ITS DECISION OF JANUARY 31, 1956, IN HIS CASE. IN THAT SITUATION, THE RULE OF ESTOPPEL BY JUDGMENT (COLLATERAL ESTOPPEL) HAS THE EFFECT OF PRECLUDING THE DEFENDANT ( GOVERNMENT) AND THE PLAINTIFF ( FREDRICKSON) FROM ANY FURTHER LITIGATION (AGAINST EACH OTHER) OF THE ISSUES WHICH WERE ACTUALLY LITIGATED AND DETERMINED BY THE COURT IN THE DECISION OF JANUARY 31, 1956.

SUCH RULE OF LAW WAS STATED BY THE UNITED STATES SUPREME COURT IN SOUTHERN PACIFIC RAILROAD COMPANY V. UNITED STATES, 168 U.S. 1, 48 AS FOLLOWS:

* * * A RIGHT, QUESTION OR FACT DISTINCTLY PUT IN ISSUE AND DIRECTLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, AS A GROUND OF RECOVERY,CANNOT BE DISPUTED IN A SUBSEQUENT SUIT BETWEEN THE SAME PARTIES OR THEIR PRIVIES; AND EVEN IF THE SECOND SUIT IS FOR A DIFFERENT CAUSE OF ACTION, THE RIGHT, QUESTION OR FACT ONCE SO DETERMINED MUST, AS BETWEEN THE SAME PARTIES OR THEIR PRIVIES, BE TAKEN AS CONCLUSIVELY ESTABLISHED, SO LONG AS THE JUDGMENT IN THE FIRST SUIT REMAINS UNMODIFIED.

LATER, IN UNITED STATES V. MOSER, 266 U.S. 236, 242, IT WAS STATED THAT "* * * A FACT, QUESTION OR RIGHT DISTINCTLY ADJUDGED IN THE ORIGINAL ACTION CANNOT BE DISPUTED IN A SUBSEQUENT ACTION, EVEN THOUGH THE DETERMINATION WAS REACHED UPON AN ERRONEOUS VIEW OR BY AN ERRONEOUS APPLICATION OF THE LAW.' AND IN COMMISSIONER V. SUNNEN, 333 U.S. 591, 598, THE SUPREME COURT STATED THAT:

* * * MATTERS WHICH WERE ACTUALLY LITIGATED AND DETERMINED IN THE FIRST PROCEEDING CANNOT LATER BE RELITIGATED. ONCE A PARTY HAS FOUGHT OUT A MATTER IN LITIGATION WITH THE OTHER PARTY, HE CANNOT LATER RENEW THAT DUEL. IN THIS SENSE, RES JUDICATA IS USUALLY AND MORE ACCURATELY REFERRED TO AS ESTOPPEL BY JUDGMENT, OR COLLATERAL ESTOPPEL.

SEE, ALSO, PARTMAR CORP. V. PARAMOUNT CORP., 347 U.S. 89, 91, AND LAWLOR V. NATIONAL SCREEN SERVICE 349 U.S. 322, 326.

WHILE THE RULE OF ESTOPPEL BY JUDGMENT IS PRIMARILY A RULE DESIGNED TO APPLY TO PROCEEDINGS IN COURT, THERE IS GRAVE DOUBT, IN VIEW OF THE SUPREME COURT'S CLEAR AND CONTINUING SANCTION OF THAT RULE, THAT WE WOULD BE JUSTIFIED, IN THE EXERCISE OF OUR DUTIES AND RESPONSIBILITIES AS PRESCRIBED BY LAW, TO IGNORE SUCH RULE OR TO TAKE ACTION WHICH, IN EFFECT, WOULD BE INCONSISTENT WITH THE RULE. FOR THAT REASON, AND SINCE ANY FURTHER SUIT AGAINST THE GOVERNMENT BY THE PLAINTIFF, FREDRICKSON, FOR RETIRED PAY AS A CAPTAIN NECESSARILY WOULD BE DECIDED IN HIS FAVOR, ASSUMING THAT HE WOULD RELY ON THE RULE OF ESTOPPEL BY JUDGMENT AND THAT SUCH RULE AS STATED BY THE SUPREME COURT WOULD BE PROPERLY APPLIED, WE ARE CONSTRAINED TO GIVE AN AFFIRMATIVE ANSWER TO YOUR QUESTION. ACCORDINGLY, YOU ARE AUTHORIZED TO CREDIT THE OFFICER WITH RETIRED PAY COMPUTED ON THE PAY OF A CAPTAIN BEGINNING FEBRUARY 1, 1956.