B-142059, DEC. 14, 1961

B-142059: Dec 14, 1961

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7. ROBERTSON WAS A PETITIONER IN THE CASE OF MIMS. THAT A JUDGMENT ALLOWING THE ADDITIONAL RETIRED PAY SOUGHT BY HIM WAS ENTERED ON A STIPULATION OF THE PARTIES ON JULY 12. THAT HE WAS SUBJECT TO A CHECK AGE OF THE AMOUNT OVERPAID. YOU HAVE FILED WITH THE DEPARTMENT OF JUSTICE A MOTION TO DISMISS THAT PETITION ON BEHALF OF MRS. SUCH MOTION TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF AN ALTERNATIVE CLAIM FILED IN OUR OFFICE IN MAY 1961 FOR RECOVERY OF THE AMOUNT PREVIOUSLY DETERMINED BY BOTH THE DECEDENT AND THE GOVERNMENT TO HAVE BEEN AN OVERPAYMENT FOR THE PERIOD SUBSEQUENT TO MARCH 31. THE ALTERNATIVE CLAIM IS BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FAGAN.

B-142059, DEC. 14, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1961, WRITTEN ON BEHALF OF MRS. BEULAH G. ROBERTSON, DESIGNATED BENEFICIARY OF EDDKER H. ROBERTSON, DECEASED, IN WHICH YOU PROTESTED THE ACTION TAKEN BY OUR CLAIMS DIVISION IN HOLDING MRS. ROBERTSON'S CLAIM IN ABEYANCE PENDING CLARIFICATION OF THE QUESTION AS TO APPLICATION OF THE RES JUDICATA RULE IN CASES INVOLVING PERSONS WHO PREVIOUSLY OBTAINED STIPULATED JUDGMENTS BASED ON THE SANDERS DECISION.

THE RECORDS SHOW THAT EDDKER H. ROBERTSON WAS A PETITIONER IN THE CASE OF MIMS, ET AL. V. UNITED STATES, CT.CL. NO. 49645, SEEKING ADDITIONAL RETIRED PAY BASED ON THE DECISION IN THE CASE OF SANDERS V. UNITED STATES, 120 CT.CL. 501, AND THAT A JUDGMENT ALLOWING THE ADDITIONAL RETIRED PAY SOUGHT BY HIM WAS ENTERED ON A STIPULATION OF THE PARTIES ON JULY 12, 1957. THE AMOUNT OF THE JUDGMENT REPRESENTED COMPUTATION OF ADDITIONAL RETIRED PAY UNDER THE SANDERS FORMULA FOR THE PERIOD AUGUST 13, 1946, THROUGH MARCH 31, 1955, IT HAVING BEEN AGREED BY BOTH PARTIES THAT ENTRY OF SUCH JUDGMENT WOULD ESTABLISH THAT MR. ROBERTSON HAD BEEN OVERPAID RETIRED PAY UNDER THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, SUBSEQUENT TO MARCH 31, 1955, AND THAT HE WAS SUBJECT TO A CHECK AGE OF THE AMOUNT OVERPAID.

SUBSEQUENT TO MR. ROBERTSON'S DEATH IN 1958, YOU FILED IN THE COURT OF CLAIMS ON BEHALF OF MRS. BEULAH G. ROBERTSON, AS DESIGNATED BENEFICIARY OF EDDKER H. ROBERTSON, DECEASED, AND THREE RETIRED FLEET RESERVISTS, A PETITION, CARPENTER, ET AL. V. UNITED STATES, CT.CL. NO. 38-60, SEEKING ADDITIONAL RETIRED PAY COMPUTED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368. YOU HAVE FILED WITH THE DEPARTMENT OF JUSTICE A MOTION TO DISMISS THAT PETITION ON BEHALF OF MRS. ROBERTSON, SUCH MOTION TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF AN ALTERNATIVE CLAIM FILED IN OUR OFFICE IN MAY 1961 FOR RECOVERY OF THE AMOUNT PREVIOUSLY DETERMINED BY BOTH THE DECEDENT AND THE GOVERNMENT TO HAVE BEEN AN OVERPAYMENT FOR THE PERIOD SUBSEQUENT TO MARCH 31, 1955, AND COLLECTED FROM MR. ROBERTSON IN CONNECTION WITH PAYMENT OF THE JUDGMENT OBTAINED BY HIM UNDER PETITION NO. 49645. THE ALTERNATIVE CLAIM IS BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FAGAN, ET AL. (GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL. NO. 535- 57, DECIDED MAY 4, 1960, WHICH DECISION WE ARE FOLLOWING IN THE DISPOSITION OF OTHER SIMILAR CLAIMS. (40 COMP. GEN. 222).

IN THE CASE OF ARMSTRONG, ET AL. (HERBERT, PLAINTIFF NO. 6) V. UNITED STATES, CT.CL. NO. 431-56, DECIDED JULY 19, 1961, THE COURT RULED THAT THE EARLIER SANDERS TYPE JUDGMENT BE AMENDED ,TO ACCORD WITH THIS STIPULATION.' THE COURT'S OPINION AND ITS ACTION IN THAT CASE INDICATE THAT UNLESS THE EARLIER JUDGMENT WAS SO AMENDED, THE CLAIM WOULD BE RES JUDICATA TO THE DATE OF SUCH JUDGMENT. THE CIRCUMSTANCES IN THE HERBERT CASE ARE SIMILAR TO THOSE INVOLVED IN THE CLAIM COVERING ADDITIONAL RETIRED PAY IN THE CASE OF EDDKER H. ROBERTSON, DECEASED. THEREFORE, IN THE ABSENCE OF AN AMENDMENT BY THE COURT OF THE JUDGMENT OF JULY 12, 1957, EFFECTIVELY RESTRICTING THE BAR OF RES JUDICATA TO THE PERIOD PRIOR TO APRIL 1, 1955, NO PART OF MRS. ROBERTSON'S CLAIM MAY BE ALLOWED FOR ANY PERIOD PRIOR TO JULY 13, 1957. MRS. ROBERTSON IS ENTITLED TO A SETTLEMENT COVERING THE NECESSARY ADJUSTMENT IN THE DECEDENT'S RETIRED PAY FROM JULY 13, 1957, UNTIL THE DATE OF HIS DEATH COMPUTED IN ACCORDANCE WITH SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18. HOWEVER, SINCE SETTLEMENT ON THAT BASIS APPARENTLY WOULD NOT BE ACCEPTABLE SO AS TO AUTHORIZE DISMISSAL OF THE PETITION NO. 38-60, NO FURTHER ACTION WILL BE TAKEN ON THE CLAIM PENDING HERE IN THE ABSENCE OF A STATEMENT FROM YOU INDICATING THAT YOU AGREE TO SUCH SETTLEMENT.