B-141705, MAR. 10, 1961

B-141705, MAR. 10, 1961

TO LAW OFFICES, KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1960, REQUESTING THAT THE GENERAL ACCOUNTING OFFICE NOW PROCEED WITH CONSIDERATION OF THE CLAIM OF MRS. ALMA A. RINGE FOR ADDITIONAL NAVAL RETIRED PAY BELIEVED DUE HER LATE HUSBAND, LEON C. RINGE, UNDER THE RULE OF THE SELIGA CASE (137 CT.CL. 710).

MRS. RINGE'S CLAIM (COVERING THE PERIOD OCTOBER 1, 1949, TO SEPTEMBER 7, 1957, DATE OF DECEDENT'S DEATH) WAS FILED BY YOU IN HER BEHALF IN LETTER OF DECEMBER 14, 1959, AND IN LETTER DATED JANUARY 19, 1960 (CLAIMS DIVISION FILE NO. Z 1515721), YOU WERE ADVISED THAT THIS OFFICE WOULD NOT TAKE ANY FURTHER ACTION IN THE MATTER UNTIL FINAL SETTLEMENT IN THE COURT OF CLAIMS OF THE SUIT PENDING THERE UNDER COURT OF CLAIMS PETITION NO. 528 -59, FILED DECEMBER 14, 1959. A MOTION TO DISMISS THAT SUIT HAS BEEN FILED AND IS BEING HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE PENDING SATISFACTORY SETTLEMENT OF THE CLAIM BY THIS OFFICE.

THE RECORD DISCLOSES THAT ON DECEMBER 1, 1953, THE COURT OF CLAIMS ENTERED A JUDGMENT IN FAVOR OF LEON C. RINGE IN THE AMOUNT OF $2,946.58 AS PLAINTIFF NO. 80 IN THE CASE OF JOHN C. MAAR, ET AL. V. UNITED STATES, CT.CL. PETITION NO. 50223, FILED JULY 9, 1951. THAT JUDGMENT APPEARS TO HAVE BEEN BASED ON A STIPULATION AGREEMENT SIMILAR TO THOSE IN OTHER SANDERS TYPE CASES. ALTHOUGH THE RECORD BEFORE THIS OFFICE DOES NOT SHOW THE ACTUAL PERIOD COVERED BY THE STIPULATION AGREEMENT, IT WOULD APPEAR, AS POINTED OUT BELOW, THAT THE LAST DAY OF SUCH PERIOD WAS JUNE 30, 1952.

THE RECORD ALSO DISCLOSES THAT LEON C. RINGE WAS PLAINTIFF NO. 112 IN THE CASE OF ARMSTRONG, ET AL. V. UNITED STATES, CT.CL. PETITION NO. 249 56, FILED JUNE 8, 1956. THERE WAS CLAIMED IN THAT ACTION ADDITIONAL RETIRED PAY (10 PERCENT INCREASE FOR GOOD CONDUCT) ALLEGED TO BE DUE FROM JULY 1, 1952, TO DATE OF JUDGMENT, THE PETITION BEING BASED ON THE GROUNDS OF RES JUDICATA BY REASON OF THE PRIOR JUDGMENT ENTERED ON DECEMBER 1, 1953, IN FAVOR OF THE DECEDENT UNDER COURT OF CLAIMS PETITION NO. 50223. THE COURT OF CLAIMS HELD THAT THE MATTER DID NOT COME WITHIN THE DOCTRINE OF RES JUDICATA BECAUSE THE JUDGMENT OF DECEMBER 1, 1953, ON PETITION NO. 50223 WAS BASED ON A STIPULATION AGREEMENT. HENCE, THE ACTION BROUGHT IN COURT OF CLAIMS PETITION NO. 249-56 WAS DISMISSED BY THE COURT ON JULY 12, 1957. SEE 139 CT.CL. 748.

THE REFERENCE IN YOUR LETTER OF DECEMBER 6, 1960, TO THE DECISION RENDERED ON JUNE 8, 1960, IN CLARK, ET AL. V. UNITED STATES, CT.CL. NO. 45 -55, WOULD SEEM TO SIGNIFY YOUR ASSENT TO THE APPLICATION IN THE CLAIM NOW PENDING HERE OF THE RULE OF RES JUDICATA AS APPLIED IN THAT CASE (STIPULATED JUDGMENT CUT-OFF DATE). ALLEGATIONS IN THE ARMSTRONG CASE INDICATE THAT SUCH DATE IS JUNE 30, 1952. THUS, YOU APPEAR TO HAVE IN MIND JUNE 30, 1952, AS CONSTITUTING THE STIPULATED JUDGMENT CUT-OFF DATE UNDER THE JUDGMENT ENTERED DECEMBER 1, 1953, IN THE MAAR CASE.

HOWEVER, THE DISMISSAL ON JULY 12, 1957, OF DECEDENT'S ACTION IN THE ARMSTRONG CASE WAS AN ADJUDICATION ON THE MERITS AS TO HIS RIGHT TO THE INCREASED RETIRED PAY THERE CLAIMED AND RAISES THE BAR OF RES JUDICATA AS TO THE PERIOD UP TO AND INCLUDING THE DATE OF THAT DECISION. CONSEQUENTLY, WHILE YOU HAVE FILED A MOTION TO DISMISS THE ACTION NOW PENDING UNDER COURT OF CLAIMS PETITION NO. 528-59, IT MUST BE ASSUMED THAT YOU WOULD NOT REGARD PAYMENT FOR THE PERIOD JULY 13 TO SEPTEMBER 7, 1957, INCLUSIVE, AS A SATISFACTORY SETTLEMENT OF THE CLAIM BEFORE THE COURT. HENCE, A SETTLEMENT ON THAT BASIS WOULD NOT AUTHORIZE DISMISSAL OF PETITION NO. 528-59.

ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN BY THIS OFFICE ON THE CLAIM PENDING HERE.