B-141010, APR. 13, 1961

B-141010: Apr 13, 1961

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6. IS REPORTED TO HAVE BEEN BASED ON A STIPULATION AGREEMENT. THE ACTUAL PERIOD COVERED BY THAT JUDGMENT IS NOT SHOWN IN THE RECORD PRESENTLY BEFORE THIS OFFICE. IS TAKEN AS SIGNIFYING YOUR ASSENT TO THE APPLICATION OF A RES JUDICATA CUT-OFF DATE BASED UPON THE HOLDING OF THE COURT IN THE PRIOR STIPULATED JUDGMENT IN THAT CASE. IT IS NOTED THAT THE CUT-OFF DATE IN THAT CASE IS THE SAME AS THE CUT-OFF DATE UNDER THE . YOUR LAW FIRM IS LISTED AS "OF COUNSEL" ON THE POSITION FILED IN THE CLARK CASE. NO FINAL DETERMINATION HAS YET BEEN REACHED ON THE PART OF THE GOVERNMENT AS TO THE EXTENT THE RES JUDICATA RULE OF THE CLARK CASE WILL BE APPLIED AND FOLLOWED IN OTHER SIMILAR STIPULATED JUDGMENT CASES.

B-141010, APR. 13, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1960, REQUESTING FURTHER CONSIDERATION OF SETTLEMENT DATED APRIL 13, 1960, DISALLOWING THE CLAIM OF JOSEPH EUSTACE HANNAH FOR INCREASED RETIRED PAY (UNDER THE SELIGA CASE, 137 CT.CL. 710) FOR THE PERIOD OCTOBER 1, 1949, TO DATE OF SETTLEMENT, ON THE GROUNDS OF RES JUDICATA BY REASON OF A STIPULATED JUDGMENT ENTERED IN HIS FAVOR ON DECEMBER 1, 1953, AS PLAINTIFF NO. 63 IN THE CASE OF ADAMS, ET AL. V. UNITED STATES, CT.CL. NO. 50159.

AS INDICATED ABOVE, THE JUDGMENT ENTERED ON DECEMBER 1, 1953, IS REPORTED TO HAVE BEEN BASED ON A STIPULATION AGREEMENT. HOWEVER, THE ACTUAL PERIOD COVERED BY THAT JUDGMENT IS NOT SHOWN IN THE RECORD PRESENTLY BEFORE THIS OFFICE. IN THAT CONNECTION, THE REFERENCE IN YOUR LETTER OF DECEMBER 6, 1960, TO THE CASE OF CLARK, ET AL. V. UNITED STATES, CT.CL. NO. 45-55, DECIDED JUNE 8, 1960, AS AMENDED NOVEMBER 2, 1960, IS TAKEN AS SIGNIFYING YOUR ASSENT TO THE APPLICATION OF A RES JUDICATA CUT-OFF DATE BASED UPON THE HOLDING OF THE COURT IN THE PRIOR STIPULATED JUDGMENT IN THAT CASE. IT IS NOTED THAT THE CUT-OFF DATE IN THAT CASE IS THE SAME AS THE CUT-OFF DATE UNDER THE ,TACIT AGREEMENT" THEORY DISCUSSED IN DEFENDANT'S MOTION FOR RECONSIDERATION AND CLARIFICATION FILED IN THAT CASE ON JULY 28, 1960. YOUR LAW FIRM IS LISTED AS "OF COUNSEL" ON THE POSITION FILED IN THE CLARK CASE.

NO FINAL DETERMINATION HAS YET BEEN REACHED ON THE PART OF THE GOVERNMENT AS TO THE EXTENT THE RES JUDICATA RULE OF THE CLARK CASE WILL BE APPLIED AND FOLLOWED IN OTHER SIMILAR STIPULATED JUDGMENT CASES, PARTICULAR REFERENCE BEING MADE TO THOSE CASES INVOLVING SITUATIONS WHERE THE PERIOD OF TIME BETWEEN THAT ACTUALLY COVERED BY THE JUDGMENT AND THE DATE OF THE STIPULATION AGREEMENT VARIED TO A CONSIDERABLE EXTENT. THEREFORE, FURTHER ACTION WILL BE HELD IN ABEYANCE IN THE PRESENT CASE UNTIL THIS MATTER HAS BEEN DECIDED, UNLESS THE CUT-OFF DATE UNDER THE RULE OF THE CLARK CASE AND UNDER THE "TACIT AGREEMENT" THEORY ARE THE SAME, IN WHICH EVENT SETTLEMENT WILL ISSUE FOR THE AMOUNT DUE.