B-136156, JUL. 11, 1958

B-136156: Jul 11, 1958

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SARAH JANE WEAVER: REFERENCE IS MADE TO A LETTER DATED APRIL 15. WHILE HE WAS EMPLOYED AS A FEDERAL CIVILIAN EMPLOYEE. IT APPEARS THAT YOUR LATE HUSBAND WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF WARRANT OFFICER. THAT HE WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY OF $2. THAT HIS RETIRED PAY WAS REDUCED FOR SUCH PERIOD IN ACCORDANCE WITH THE TERMS OF THE ECONOMY ACT. GITTINGS INSISTS THAT YOUR PRESENT CLAIM FOR THE RETIRED PAY WITHHELD WAS NOT COVERED BY THE JUDGMENT ENTERED FEBRUARY 8. WAS ISSUED OUR OFFICE WAS UNAWARE THAT THE JUDGMENT DID NOT COVER THE PERIOD FROM NOVEMBER 1. THAT ALL OF THE JUDGMENTS OF THE COURT OF CLAIMS IN THIS TYPE OF CASE WERE BASED UPON ADMINISTRATIVE REPORTS PREPARED BY THE DEPARTMENT OF THE NAVY AND FURNISHED TO THE PARTIES.

B-136156, JUL. 11, 1958

TO MRS. SARAH JANE WEAVER:

REFERENCE IS MADE TO A LETTER DATED APRIL 15, 1958, FROM THOMAS M. GITTINGS, JR., OF THE FIRM OF KING AND KING, REQUESTING ON YOUR BEHALF REVIEW OF SETTLEMENT DATED MARCH 27, 1958, WHICH DISALLOWED YOUR CLAIM AS THE WIDOW OF PERCY A. WEAVER, DECEASED--- LATE RETIRED CHIEF WARRANT OFFICER, UNITED STATES NAVY--- FOR RETIRED PAY WITHHELD FROM HIM BY REASON OF THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59 (A), WHILE HE WAS EMPLOYED AS A FEDERAL CIVILIAN EMPLOYEE, THE CLAIM BEING BASED UPON THE OPINION RENDERED NOVEMBER 7, 1956, BY THE COURT OF CLAIMS IN THE CASE OF TATE V. UNITED STATES, 136 C.CLS. 651.

IT APPEARS THAT YOUR LATE HUSBAND WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF WARRANT OFFICER, RETROACTIVELY EFFECTIVE TO THE DATE OF HIS RETIREMENT ON OCTOBER 1, 1945 UNDER THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26; THAT HE WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY OF $2,683.20 PER ANNUM FOR THE PERIOD NOVEMBER 1, 1948, THROUGH MARCH 31, 1949, AND THAT HIS RETIRED PAY WAS REDUCED FOR SUCH PERIOD IN ACCORDANCE WITH THE TERMS OF THE ECONOMY ACT. AS A BASIS FOR DENIAL OF YOUR CLAIM, OUR CLAIMS DIVISION INVITED YOUR ATTENTION TO THE PROVISIONS OF 28 U.S.C. 2517, THAT PAYMENT OF EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS "SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'

IN HIS LETTER MR. GITTINGS INSISTS THAT YOUR PRESENT CLAIM FOR THE RETIRED PAY WITHHELD WAS NOT COVERED BY THE JUDGMENT ENTERED FEBRUARY 8, 1955, IN YOUR FAVOR IN THE CASE OF BERMEJO ET AL. V. UNITED STATES, C.CLS.NO. 280-54. HE SAYS THAT AT THE TIME THE SETTLEMENT OF MARCH 27, 1958, WAS ISSUED OUR OFFICE WAS UNAWARE THAT THE JUDGMENT DID NOT COVER THE PERIOD FROM NOVEMBER 1, 1948, THROUGH MARCH 31, 1949; THAT ALL OF THE JUDGMENTS OF THE COURT OF CLAIMS IN THIS TYPE OF CASE WERE BASED UPON ADMINISTRATIVE REPORTS PREPARED BY THE DEPARTMENT OF THE NAVY AND FURNISHED TO THE PARTIES, AND THAT THE REPORT SUBMITTED BY THE DEPARTMENT OF THE NAVY IN THIS CASE (COPY TRANSMITTED HERE BY MR. GITTINGS) CLEARLY SHOWS THAT THE PERIOD COVERED BY YOUR PRESENT CLAIM WAS EXCLUDED FROM THE JUDGMENT BECAUSE OF PREVIOUS RULINGS BY THE COMPTROLLER GENERAL OF THE UNITED STATES TO THE EFFECT THAT TEMPORARY COMMISSIONED WARRANT OFFICERS OF THE NAVY WERE COMMISSIONED OFFICERS WITHIN THE MEANING OF THE ECONOMY ACT.

OUR RECORDS SHOW THAT YOU WERE ONE OF THE PLAINTIFFS IN THE BERMEJO CASE EACH OF WHOM SOUGHT RECOVERY OF THE DIFFERENCE BETWEEN THE RETAINER OR RETIRED PAY RECEIVED SINCE RELEASE TO AN INACTIVE STATUS BASED ON 16 YEARS OF ACTIVE SERVICE, AND THAT TO WHICH HE WOULD BE ENTITLED IF CREDITED WITH HIS ENTIRE ACTIVE NAVAL SERVICE OF 20 YEARS OR MORE, AS INCREASED BY TEN PERCENT ON ACCOUNT OF CONDUCT MARKS AVERAGING 95 PERCENT OR MORE DURING SUCH SERVICE, FROM AUGUST 1, 1946, AND CONTINUING TO DATE OF JUDGMENT. WILL BE NOTED THAT THE PERIOD INVOLVED INCLUDES THE PERIOD COVERED BY YOUR PRESENT CLAIM.

THE RECORD FURTHER SHOWS THAT UNDER DATE OF OCTOBER 20, 1954, THE DEPARTMENT OF THE NAVY TRANSMITTED TO THE DEPARTMENT OF JUSTICE A COMPUTATION SHOWING THAT NET AMOUNT OF $1,497.97 TO BE PAYABLE IN YOUR CASE. NO AMOUNT WAS ALLOWED FOR THE PERIOD NOVEMBER 1, 1948, TO MARCH 31, 1949, SINCE IT THEN WAS BELIEVED THAT THE ECONOMY ACT BARRED PAYMENT OF ALL BUT A SMALL FRACTION OF THE RETIRED PAY WHICH ACCRUED TO YOUR HUSBAND AT THAT TIME. YOU DID NOT QUESTION THE APPLICABILITY OF THE ECONOMY ACT. A COPY OF THAT COMPUTATION WAS IN OUR FILES WHEN THE SETTLEMENT ACTION OF MARCH 27, 1958, WAS TAKEN. A STIPULATION FOR ENTRY OF JUDGMENT WAS ENTERED INTO BETWEEN YOUR ATTORNEYS AND THE DEPARTMENT OF JUSTICE IN WHICH IT WAS AGREED THAT JUDGMENT AGAINST THE UNITED STATES COULD BE ENTERED IN YOUR FAVOR IN THE AMOUNT OF $1,497.97, FOR THE PERIOD JULY 1, 1948, THROUGH DECEMBER 26, 1952.

IT APPEARS REASONABLE TO CONCLUDE THAT THE PRINCIPAL PURPOSE OF THE STATUTORY PROVISIONS CONTAINED IN 28 U.S.C. 2517 WAS TO PREVENT A MULTIPLICITY OF COURT ACTIONS AGAINST THE GOVERNMENT WHICH WOULD RESULT FROM THE INSTITUTION OF DIFFERENT LAW SUITS BASED ON DIFFERENT LEGAL THEORIES OR THE APPLICABILITY OR NONAPPLICABILITY OF DIFFERENT STATUTORY PROVISIONS, THE ISSUES OF WHICH PROPERLY COULD BE DECIDED IN ONE ACTION. AS APPLIED TO A SUIT FOR ADDITIONAL RETIRED PAY, IT IS BELIEVED THAT THE CONGRESS INTENDED THAT IF A SUIT IS ENTERED AGAINST THE GOVERNMENT COVERING A PARTICULAR PERIOD OF TIME, THE PLAINTIFF SHOULD SEEK JUDGMENT FOR ALL THE ADDITIONAL RETIRED PAY WHICH MIGHT BE PAYABLE FOR THAT PERIOD UNDER ANY AND ALL LEGAL THEORIES AND STATUTORY PROVISIONS WHICH MIGHT HAVE A BEARING ON HIS RIGHT TO SUCH PAY. IN YOUR CASE BEFORE THE COURT OF CLAIMS, YOU COULD HAVE QUESTIONED THE APPLICABILITY OF THE ECONOMY ACT ON THE SAME BASIS AS DID THE PLAINTIFF IN THE TATE CASE. SINCE YOU DID NOT DO SO AND THE JUDGMENT ENTERED IN THAT CASE HAS BEEN PAID, YOUR PRESENT CLAIM IS OF SUCH DOUBTFUL VALIDITY AS NOT TO WARRANT FAVORABLE ACTION BY US.

YOUR ATTENTION IS ALSO INVITED TO THE CASE OF MEISER V. WOODRUFF, ETAL., 327 U.S. 726, WHEREIN THE SUPREME COURT HELD THAT IN GENERAL, A JUDGMENT IS RES JUDICATA, NOT ONLY AS TO ALL MATTERS LITIGATED AND DECIDED BUT ALSO AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN, BUT WERE NOT, RAISED AND LITIGATED IN THE SUIT. SEE ALSO STOCKBRIDGE TRIBE OF INDIANS V. UNITED STATES, 63 C.CLS. 268, 269; INTERNATIONAL CURTIS MARINE TURBINE CO. V. UNITED STATES, 74 C.CLS. 132; ELECTRIC BOAT CO. V. UNITED STATES, 81 C.CLS. 361; AND MCSHAIN V. UNITED STATES, 87 C.CLS. 601.

UPON THE BASIS OF THE RECORD, THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 27, 1958, APPEARS TO HAVE BEEN CORRECT AND IS SUSTAINED.