B-140734, NOV. 29, 1961

B-140734, NOV. 29, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1961, REQUESTING FURTHER CONSIDERATION (UNDER THE HOLDING CONCERNING JOSEPH A. HERBERT, PLAINTIFF NO. 6 IN ARMSTRONG, ET AL. V. UNITED STATES, CT.CL. NO. 431 56, DECIDED JULY 19, 1961) OF THE CLAIM OF WILLIAM H. LASLEY, USN, RETIRED, FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1949, TO DATE. THE CLAIM, WHICH IS ADVANCED UNDER THE RULE OF THE SELIGA CASE, 137 CT.CL. 710, WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED NOVEMBER 27, 1959.

IN OUR LETTER TO YOU OF MARCH 11, 1960, B-140734, WE SUSTAINED THE DISALLOWANCE AS TO THE PERIOD PRECEDING DECEMBER 2, 1953, UNDER THE DOCTRINE OF RES JUDICATA WHICH RESULTED FROM THE JUDGMENT ENTERED IN MR. LASLEY'S FAVOR ON DECEMBER 1, 1953, AS PLAINTIFF NO. 25 IN THE CASE OF ABAYA, ET AL. V. UNITED STATES, CT.CL. NO. 130-53. ALSO, WE STATED THAT NO FURTHER ACTION WOULD BE TAKEN BY THIS OFFICE ON MR. LASLEY'S CLAIM WITH RESPECT TO THE PERIOD BEGINNING DECEMBER 2, 1953, IN VIEW OF HIS SUIT (AS PLAINTIFF NO. 5) PENDING IN THE COURT OF CLAIMS IN THE CASE OF CAMPBELL, ET AL. V. UNITED STATES, CT.CL. NO. 371-59, COVERING THE PERIOD COMMENCING AUGUST 1, 1953.

THE DEPARTMENT OF JUSTICE HAS ADVISED US THAT A MOTION TO DISMISS COURT OF CLAIMS PETITION NO. 371-59 AS TO LASLEY, PLAINTIFF NO. 5, HAS BEEN FILED WITH THAT DEPARTMENT TO BE HELD IN ESCROW PENDING ADMINISTRATIVE SETTLEMENT OF THE CLAIM BY THIS OFFICE. IN VIEW OF YOUR LETTER OF SEPTEMBER 7, 1961, IT IS PRESUMED THAT SUCH MOTION REMAINS IN ESCROW WITH THE DEPARTMENT OF JUSTICE.

AS STATED ABOVE, LASLEY WAS PLAINTIFF NO. 25 IN THE CASE OF ABAYA, ET AL. V. UNITED STATES, CT.CL. 130-53, IN WHICH A JUDGMENT WAS ENTERED IN HIS FAVOR ON DECEMBER 1, 1953, ALLOWING HIM ADDITIONAL RETIRED PAY UNDER THE RULE OF THE SANDERS CASE, 120 CT.CL. 501, FOR THE PERIOD APRIL 3, 1947, TO SEPTEMBER 30, 1949, INCLUSIVE. THAT JUDGMENT WAS BASED ON A STIPULATION AGREEMENT BETWEEN THE PLAINTIFF AND THE DEFENDANT (GOVERNMENT) REFLECTING THE COMPUTATION THAT WAS FURNISHED TO THE ATTORNEY GENERAL BY THE DEPARTMENT OF THE NAVY. HENCE, THERE ARISES THE SAME ISSUE OF RES JUDICATA THAT WAS DECIDED BY THE COURT ON JULY 19, 1961, IN THE CASE OF HERBERT, PLAINTIFF NO. 6, IN THE ARMSTRONG CASE.

IN COMMENTING ON THAT DECISION WE POINTED OUT IN OUR LETTER TO YOU OF SEPTEMBER 11, 1961, B-128594, ON THE CASE OF CHARLIE D. HOWARD, USN, RETIRED, THAT THE LANGUAGE OF THE OPINION OF JULY 19, 1961, AND THE COURT'S ACTION THEREIN AMENDING THE JUDGMENT OF APRIL 7, 1953 (WHICH HAD BEEN RENDERED IN FAVOR OF HERBERT IN A PRIOR SANDERS TYPE CASE) "TO ACCORD WITH THE STIPULATION" INDICATED QUITE CLEARLY THAT, UNLESS SO AMENDED BY THE COURT, THE JUDGMENT OF APRIL 7, 1953, WOULD BE RES JUDICATA UP TO AND INCLUDING THE DATE THEREOF.

THE PERTINENT PROVISIONS OF PARAGRAPH 8 OF THE STIPULATION AGREEMENT AND THE JUDGMENT OF DECEMBER 1, 1953, IN LASLEY'S CASE ARE THE SAME AS THOSE CONSIDERED BY THE COURT IN THE HERBERT DECISION OF JULY 19, 1961. THEREFORE, IN THE ABSENCE OF AN AMENDMENT BY THE COURT OF THE JUDGMENT OF DECEMBER 1, 1953, REMOVING THE BAR OF RES JUDICATA AS TO THE PERIOD PRECEDING DECEMBER 2, 1953, NO PART OF LASLEY'S CLAIM MAY BE ALLOWED WITH RESPECT TO THE PERIOD COVERED BY THAT JUDGMENT. FURTHER, IT SEEMS DOUBTFUL THAT A SETTLEMENT FOR THE PERIOD COMMENCING DECEMBER 2, 1953, WOULD BE SATISFACTORY TO YOU SO AS TO AUTHORIZE DISMISSAL OF PETITION NO. 371-59 AS TO LASLEY, PLAINTIFF NO. 5. CONSEQUENTLY, IN THE ABSENCE OF A STATEMENT FROM YOU, INDICATING THAT YOU AGREE TO SUCH ACTION, NO FURTHER ACTION MAY BE TAKEN BY THIS OFFICE ON THE CLAIM PENDING HERE.