B-98978, B-137626, MAR. 11, 1960

B-137626,B-98978: Mar 11, 1960

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KING AND KING: REFERENCE IS MADE TO YOUR LETTERS OF APRIL 27. ARE ADVANCED ON THE THEORY OF SELIGA V. WE ARE FOLLOWING THE SELIGA CASE. DENOFRA WERE PLAINTIFFS IN ABERCROMBIE. JUDGMENT WAS ENTERED IN FAVOR OF MR. THESE JUDGMENTS HAVE BEEN PAID. WHILE IT IS INDICATED THAT THE STIPULATIONS WERE BASED ON COMPUTATIONS THROUGH SEPTEMBER 30. JUDGMENT WAS ENTERED FOR ONE OF THE PLAINTIFFS. THAT JUDGMENT WAS ENTERED ON A STIPULATION SHOWING THAT THE PERIOD FOR WHICH MONDEAU AGREED TO ACCEPT THE STIPULATED AMOUNT WAS FROM JANUARY 27. HIS CLAIM IN THE LATTER CASE WOULD HAVE BEEN BARRED UNDER THE DOCTRINE OF RES JUDICATE THROUGH MAY 5. CHIEF JUDGE JONES STATED THAT "UNDER THE DOCTRINE OF RES JUDICATE PLAINTIFF IS FORECLOSED AS TO AMOUNTS OTHERWISE DUE HIM UNDER OUR DECISIONS IN TATE AND ATKINS DOWN TO THE DATE OF JUDGMENT IN MOJICA.'.

B-98978, B-137626, MAR. 11, 1960

TO LAW OFFICES, KING AND KING:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 27, 1959, PRESENTING THE CLAIMS OF MR. ROMAN DEL ROSARIO AND MR. FREDERICO DENOFRA FOR ADDITIONAL DISABILITY RETIRED PAY FROM OCTOBER 1, 1949, TO DATE OF SETTLEMENT. DECEMBER 4, 1959, THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, ADVISED US THAT MR. DEL ROSARIO AND MR. DENOFRA HAD FILED WITH THE DEPARTMENT OF JUSTICE, MOTIONS TO DISMISS THEIR SUITS IN LAWRENCE C. AUSTIN, ET AL. V. UNITED STATES, C.CLS.NO. 439-58, THE MOTIONS TO BE HELD IN ESCROW, PENDING SETTLEMENT OF THE CLAIMS HERE INVOLVED. THE CLAIMS COVERED BY THE PETITION IN THE ABOVE CASE, AND THE CLAIMS PRESENTED IN THE LETTERS OF APRIL 27, 1959, ARE ADVANCED ON THE THEORY OF SELIGA V. UNITED STATES 137 C.CLS. 710. WE ARE FOLLOWING THE SELIGA CASE. B-131700, SEPTEMBER 3, 1959, 39 COMP. GEN. 152.

HOWEVER, WHILE THE FACTS IN THE PRESENT CLAIMS MAY BE SUBSTANTIALLY SIMILAR TO THE FACTS IN THE SELIGA CASE, BOTH MR. DEL ROSARIO AND MR. DENOFRA WERE PLAINTIFFS IN ABERCROMBIE, ET AL. V. UNITED STATES, C.CLS.NO. 49877, PETITION FILED OCTOBER 20, 1950, IN WHICH THEY CLAIMED ADDITIONAL RETIRED PAY ON THE BASIS OF THE SANDERS CASE (120 C.CLS. 501) FROM DATES OF RELEASE FROM ACTIVE DUTY TO DATE OF JUDGMENT. ON OCTOBER 6, 1953, ON STIPULATION OF THE PARTIES, JUDGMENT WAS ENTERED IN FAVOR OF MR. DEL ROSARIO FOR $1,187.14 AND IN FAVOR OF MR. DENOFRA FOR $1,287.12. THESE JUDGMENTS HAVE BEEN PAID. WHILE IT IS INDICATED THAT THE STIPULATIONS WERE BASED ON COMPUTATIONS THROUGH SEPTEMBER 30, 1949, ONLY, MR. DEL ROSARIO AND MR. DENOFRA HAD CLAIMED INCREASED RETIRED PAY TO DATE OF JUDGMENT AND THEY APPARENTLY ACCEPTED THE STIPULATED AMOUNTS IN FULL DISCHARGE OF THEIR CLAIMS.

IN MOJICA, ET AL. V. UNITED STATES, C.CLS.NO. 264-52, A SUIT ON THE THEORY OF SANDERS V. UNITED STATES, 120 C.CLS. 501, JUDGMENT WAS ENTERED FOR ONE OF THE PLAINTIFFS, FRANK M. MONDEAU, ON MAY 5, 1953. THAT JUDGMENT WAS ENTERED ON A STIPULATION SHOWING THAT THE PERIOD FOR WHICH MONDEAU AGREED TO ACCEPT THE STIPULATED AMOUNT WAS FROM JANUARY 27, 1946, TO OCTOBER 31, 1946. IN AMADEN, ET AL. (FRANK N. MONDEAU), V. UNITED STATES, C.CLS.NO. 134-54, DECIDED JULY 15, 1959, MONDEAU SOUGHT ADDITIONAL RETIRED PAY FROM MARCH 1, 1948, TO DATE OF JUDGMENT ON THE THEORY OF TATE V. UNITED STATES, 136 C.CLS. 651, AND ATKINS V. UNITED STATES, 141 C.CLS. 88. IN THE MAJORITY OPINION OF JULY 15, 1959, THE COURT DISCUSSED THE STIPULATION IN THE MOJICA CASE AND IMPLIED STRONGLY THAT BUT FOR THE COURT'S REFUSAL TO ALLOW MONDEAU'S MOTION TO REOPEN JUDGMENT IN THE MOJICA CASE SO AS TO PRESENT THE TYPE OF CLAIM ADVANCED IN THE AMEDEN CASE, HIS CLAIM IN THE LATTER CASE WOULD HAVE BEEN BARRED UNDER THE DOCTRINE OF RES JUDICATE THROUGH MAY 5, 1953, THE DATE OF ENTRY OF JUDGMENT IN HIS FAVOR IN THE MOJICA CASE. IN HIS DISSENT, CHIEF JUDGE JONES STATED THAT "UNDER THE DOCTRINE OF RES JUDICATE PLAINTIFF IS FORECLOSED AS TO AMOUNTS OTHERWISE DUE HIM UNDER OUR DECISIONS IN TATE AND ATKINS DOWN TO THE DATE OF JUDGMENT IN MOJICA.'

COMPARE ALSO, ABARR, ET AL. V. UNITED STATES, 139 C.CLS. 748.

IN VIEW OF THE UNCERTAINTY AS TO THE APPLICATION OF THE DOCTRINE OF RES JUDICATA WHERE JUDGMENTS HAVE BEEN RENDERED ON STIPULATION AND IN THE ABSENCE OF A JUDICIAL RULING AS TO THE APPLICABILITY OF 28 U.S.C. 2517, IN SUCH CIRCUMSTANCES, WE FEEL THAT WE CANNOT AUTHORIZE SETTLEMENT OF CLAIMS OF THE TYPE HEREIN INVOLVED UNTIL THERE HAS BEEN SOME JUDICIAL CLARIFICATION OF THE MATTER.

ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN ON THE CLAIMS OF MR. DEL ROSARIO AND MR. DENOFRA AT THE PRESENT TIME.