B-129426, APRIL 19, 1968, 47 COMP. GEN. 573

B-129426: Apr 19, 1968

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NO. 111-64) FOR INCREASED RETIRED PAY WHICH WAS BASED ON THE FACT THAT HE SHOULD HAVE BEEN ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964 TO THE RANK OF MAJOR RATHER THAN TO THE RANK OF CAPTAIN CONSTITUTES A JUDICIAL DETERMINATION ON THE MERITS AND THE JUDGMENT HAVING BECOME FINAL. THE MATTER IS NOW RES JUDICATA AND. 1968: REFERENCE IS MADE TO YOUR LETTER OF MARCH 25. YOU WERE PLACED ON THE RETIRED LIST AS AN ENLISTED MEMBER OF THE REGULAR ARMY. YOU WERE ADVANCED ON THE RETIRED LIST OF THE ARMY TO THE GRADE OF CAPTAIN UNDER AUTHORITY OF 10 U.S.C. 3964. THE CONTENTION THAT YOU SHOULD HAVE BEEN ADVANCED TO THE GRADE OF MAJOR ON THE RETIRED LIST WAS THE PRIMARY ISSUE RAISED IN THE ACTION FILED BY YOU ON APRIL 24.

B-129426, APRIL 19, 1968, 47 COMP. GEN. 573

COURTS - JUDGMENTS, DECREES, ETC. - RES JUDICATA - JUDGMENT ON THE MERITS THE DISMISSAL BY THE UNITED STATES COURT OF CLAIMS OF THE SUIT FILED BY A RETIRED ARMY OFFICER (CT. CL. NO. 111-64) FOR INCREASED RETIRED PAY WHICH WAS BASED ON THE FACT THAT HE SHOULD HAVE BEEN ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964 TO THE RANK OF MAJOR RATHER THAN TO THE RANK OF CAPTAIN CONSTITUTES A JUDICIAL DETERMINATION ON THE MERITS AND THE JUDGMENT HAVING BECOME FINAL, THE MATTER IS NOW RES JUDICATA AND, THEREFORE, THE OFFICER'S CLAIM FOR INCREASED RETIRED PAY MAY NOT BE CONSIDERED UNDER THE RULE IN 5 COMP. GEN. 334, AND IN VIEW OF 28 U.S.C. 2519, PRESCRIBING THAT A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST A PLAINTIFF BARS ANY FURTHER CLAIM AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY. COURTS - JUDGMENTS, DECREES, ETC. - RES JUDICATA - SUBSEQUENT CLAIMS UNDER THE DOCTRINE OF RES JUIDCATA, WHICH APPLIES TO REPETITIOUS SUITS INVOLVING THE SAME CAUSE OF ACTION, A VALID JUDGMENT ON THE MERITS CONSTITUTES AN ABSOLUTE BAR TO A SUBSEQUENT ACTION ON THE SAME CLAIM OR DEMAND AS THE CAUSE OF ACTION HAD BEEN EXTINGUISHED IN THE COURT PROCEEDINGS.

TO CAPTAIN GUY TAYLOR, APRIL 19, 1968:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1968, AND ENCLOSURES, REQUESTING INCREASED RETIRED PAY ON THE BASIS THAT YOUR "RETIRED GRADE (SHOULD) BE CHANGED FROM CAPTAIN TO MAJOR.'

THE RECORD SHOWS THAT ON MAY 31, 1948, YOU WERE PLACED ON THE RETIRED LIST AS AN ENLISTED MEMBER OF THE REGULAR ARMY. EFFECTIVE APRIL 27,1958, YOU WERE ADVANCED ON THE RETIRED LIST OF THE ARMY TO THE GRADE OF CAPTAIN UNDER AUTHORITY OF 10 U.S.C. 3964.

THE CONTENTION THAT YOU SHOULD HAVE BEEN ADVANCED TO THE GRADE OF MAJOR ON THE RETIRED LIST WAS THE PRIMARY ISSUE RAISED IN THE ACTION FILED BY YOU ON APRIL 24, 1964, IN THE UNITED STATES COURT OF CLAIMS (GUY TAYLOR V UNITED STATES, CT. CL. NO. 111-64).

YOU ARE DOUBTLESS AWARE THAT ON JANUARY 7, 1966, THE COURT ORDERED THAT THE DEFENDANT'S (GOVERNMENT-S) MOTION FOR SUMMARY JUDGMENT "BE GRANTED AND THE PETITION BE DISMISSED," AND THAT YOUR MOTION FOR REHEARING WAS DENIED ON APRIL 15, 1966. SEE 174 CT. CL. 1266. THIS ACTION CONSTITUTED A JUDICAL DETERMINATION OF YOUR SUIT ON THE MERITS AND SINCE THAT JUDGMENT HAS BECOME FINAL THE MATTER OF YOUR RETIRED PAY GRADE IS NOW RES JUDICATA. THE DOCTRINE OF RES JUDICATA APPLIES TO REPETITIOUS SUITS INVOLVING THE SAME CAUSE OF ACTION. THE DOCTRINE IS TO THE EFFECT THAT A VALID JUDGMENT RENDERED UPON THE MERITS CONSTITUTES AN ABSOLUTE BAR TO A SUBSEQUENT ACTION ON THE SAME CLAIM OR DEMAND. IT IS A FINALITY AS TO THE CLAIM OR DEMAND IN CONTROVERSY AND SUCH CLAIM OR DEMAND CANNOT AGAIN BE LITIGATED. A JUDGMENT HAS THE EFFECT OF PUTTING AN END TO AND EXTINGUISHING THE CAUSE OF ACTION WHICH WAS THE BASIS OF THE PROCEEDING IN WHICH THE JUDGMENT WAS RENDERED. SEE MAX BANDER V UNITED STATES, 161 CT. CL. 475 (1963), AND THE SUPREME COURT DECISIONS AND LEGAL AUTHORITIES THEREIN CITED.

IN DECISION OF THIS OFFICE DATED NOVEMBER 6, 1925, 5 COMP. GEN. 334, IT WAS HELD (QUOTING THE SYLLABUS):

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. MOREOVER SECTION 2519, TITLE 28, U.S. CODE, PROVIDES AS FOLLOWS: SEC. 2519. CONCLUSIVENESS OF JUDGMENT.

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.

IN THE CIRCUMSTANCES STATED ABOVE WE ARE WITHOUT AUTHORITY TO CONSIDER YOUR CLAIM.