B-98978, B-141450, AUG. 28, 1962
Highlights
ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER DATED JULY 6. BULLARD WAS ALLOWED THE AMOUNT OF $131.29. CLAIM WAS MADE IN MR. YOUR OFFICE WAS ADVISED THAT. THE CLAIM PRESENTED HERE WOULD BE HELD IN ABEYANCE UNTIL DISPOSITION WAS MADE OF THE PETITION IN THE COURT OF CLAIMS. AN ALTERNATIVE CLAIM WAS PRESENTED IN MR. THERE WAS DEPOSITED WITH THE DEPARTMENT OF JUSTICE A MOTION TO DISMISS THE PENDING COURT ACTION. TO BE HELD IN ESCROW UNTIL SATISFACTORY PAYMENT WAS MADE OF THE CLAIM HERE. A SETTLEMENT WAS ISSUED DISALLOWING THE CLAIM PREDICATED ON PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. WAS DENIED. THE CHECK ISSUED PURSUANT TO THE ABOVE SETTLEMENT WAS FORWARDED TO YOUR OFFICE.
B-98978, B-141450, AUG. 28, 1962
TO KING AND KING, ATTORNEYS AT LAW:
REFERENCE IS MADE TO YOUR LETTER DATED JULY 6, 1962, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 28, 1961, WHEREIN LUTHER L. BULLARD WAS ALLOWED THE AMOUNT OF $131.29, ADJUSTMENT OF RETIRED PAY FOR THE PERIOD AUGUST 28, 1958, THROUGH APRIL 30, 1961.
IT APPEARS THAT MR. BULLARD, AS PLAINTIFF NO. 3 IN THE CASE OF JAMES BARNES, ET AL. V. UNITED STATES, CT.CL.NO. 500-59, FILED NOVEMBER 25, 1959, PETITIONED THE COURT OF CLAIMS FOR A JUDGMENT FOR ADDITIONAL RETIRED PAY FOR THE PERIOD NOVEMBER 1, 1953, TO DATE OF JUDGMENT, PURSUANT TO THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 368. BY LETTER DATED DECEMBER 2, 1959, ADDRESSED TO THE GENERAL ACCOUNTING OFFICE CLAIMS DIVISION, CLAIM WAS MADE IN MR. BULLARD'S BEHALF FOR THE SAME ADDITIONAL RETIRED PAY BUT FOR THE PERIOD DECEMBER 1, 1949, TO DATE OF SETTLEMENT. ON DECEMBER 28, 1959, YOUR OFFICE WAS ADVISED THAT, IN VIEW OF THE PENDING COURT ACTION, THE CLAIM PRESENTED HERE WOULD BE HELD IN ABEYANCE UNTIL DISPOSITION WAS MADE OF THE PETITION IN THE COURT OF CLAIMS.
BY LETTER DATED MAY 3, 1961, AN ALTERNATIVE CLAIM WAS PRESENTED IN MR. BULLARD'S BEHALF, FOR ADDITIONAL RETIRED PAY FOR THE PERIOD APRIL 1, 1955, TO DATE OF SETTLEMENT, PREDICATED ON THE DECISION OF THE COURT OF CLAIMS IN LOUIS E. FAGAN, ET AL. (LEWIS L. GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL.NO. 535-57, DECIDED MAY 4, 1960. IN CONJUNCTION WITH THIS LATTER CLAIM, THERE WAS DEPOSITED WITH THE DEPARTMENT OF JUSTICE A MOTION TO DISMISS THE PENDING COURT ACTION, TO BE HELD IN ESCROW UNTIL SATISFACTORY PAYMENT WAS MADE OF THE CLAIM HERE. ON NOVEMBER 28, 1961, A SETTLEMENT WAS ISSUED DISALLOWING THE CLAIM PREDICATED ON PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, BUT ALLOWING THE SUM OF $131.29 FOR ADJUSTMENT OF RETIRED PAY FOR THE PERIOD AUGUST 28, 1958, THROUGH APRIL 30, 1961, ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE FAGAN (GOVER) CASE.
THAT PART OF THE CLAIM FOR THE PERIOD APRIL 1, 1955, THROUGH AUGUST 27, 1958, WAS DENIED, INVOKING THE DOCTRINE OF RES JUDICATA, SINCE MR. BULLARD HAD OBTAINED A JUDGMENT FOR ADDITIONAL RETIRED PAY ON AUGUST 27, 1958, AS PLAINTIFF NO. 32, IN THE CASE OF ABERCROMBIE, ET AL. V. UNITED STATES, CT.CL.NO. 49877. THE CHECK ISSUED PURSUANT TO THE ABOVE SETTLEMENT WAS FORWARDED TO YOUR OFFICE. THE CHECK WAS NOT RETURNED AS UNSATISFACTORY. YOUR LETTER OF JULY 6, 1962, STATES:
"IT IS CLAIMANT'S POSITION THAT HE IS ENTITLED TO RECEIVE A SUPPLEMENTAL SETTLEMENT COVERING THE EXCLUDED PERIOD (APRIL 1, 1955, TO AUGUST 27, 1958) UNDER THE DECISION OF THE COURT OF CLAIMS IN LYLE H. ARMSTRONG, ET AL. (JOSEPH A. HERBERT, PLAINTIFF NO. 6) V. UNITED STATES, C.CLS.NO. 431- 56, DECIDED JULY 19, 1961. PURSUANT TO THE HERBERT DECISION THE COURT OF CLAIMS ENTERED AN AMENDED ORDER IN THIS CLAIMANT'S PRIOR SANDERS-TYPE CASE, BENJAMIN FRANKLIN ABERCROMBIE, ET AL. (LUTHER L. BULLARD, PLAINTIFF NO. 32) V. UNITED STATES, C.CLS.NO. 49877, ON JUNE 29, 1962, IN WHICH IT SPECIFIED THAT THE CLAIMANT'S PRIOR JUDGMENT WAS RESTRICTED TO THE PERIOD ENDING MARCH 31, 1955. HENCE, THE BASIS FOR THE APPLICATION OF THE DOCTRINE OF RES JUDICATA HAS NOW BEEN REMOVED.'
THE COURT ORDER OF JUNE 29, 1962, AMENDED THE JUDGMENT OBTAINED BY MR. BULLARD IN THE ABERCROMBIE CASE BY ADDING THE FOLLOWING PHRASE:
"WITH SAID PETITION DEEMED TO BE AMENDED SO AS TO LIMIT PLAINTIFFS' CLAIMS TO THE PERIODS COVERED IN SAID STIPULATION OF SETTLEMENT.'
THE STIPULATION INSOFAR AS MR. BULLARD IS CONCERNED STATED THAT THE PERIOD OF HIS CLAIM WAS FOR THE PERIOD JULY 7, 1945, TO SEPTEMBER 30, 1957.
HENCE, AND WITHOUT OTHER CONSIDERATIONS, ISSUANCE OF ANOTHER SETTLEMENT WOULD NOT APPEAR TO DISPOSE OF THE CLAIM, SINCE IT WOULD NOT BE IN THE AMOUNT CLAIMED, AND THUS WOULD APPEAR TO BE UNSATISFACTORY.
ACCORDINGLY, WE MUST REQUEST THE RETURN OF THE CHECK NOW HELD IN YOUR OFFICE IN ORDER THAT PROCEEDINGS MAY CONTINUE IN YOUR ACTION IN THE COURT.