B-147906, FEB. 24, 1964

B-147906, FEB. 24, 1964

TO MRS. JENNIE FULCHER SHARP:

REFERENCE IS MADE TO THE LETTER OF NOVEMBER 14, 1963, FROM YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF THE SETTLEMENT ISSUED IN YOUR FAVOR BY OUR CLAIMS DIVISION ON JULY 17, 1962, IN WHICH YOU, AS WIDOW OF PAUL E. SHARP, WERE ALLOWED AN ADJUSTMENT IN HIS RETIRED PAY FOR THE PERIOD MARCH 8, 1957, TO JANUARY 31, 1962, INCLUSIVE, BASED ON THE DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957). YOU REQUEST RECONSIDERATION OF YOUR CLAIM FOR THE PERIOD JANUARY 13, 1952, THROUGH MARCH 7, 1957, WHICH WAS DENIED ON THE GROUND OF RES JUDICATA BASED ON THE DISMISSAL WITH PREJUDICE ON MARCH 7, 1957, OF THE DECEDENT'S PRIOR PETITION IN THE COURT OF CLAIMS FOR INCREASED RETIRED PAY.

YOUR REQUEST FOR RECONSIDERATION IS BASED ON THE DECISION IN THE CASE OF ARMSTRONG, ET AL. (JOSEPH A. HERBERT) V. UNITED STATES, CT.CL. NO. 431-56, DECIDED JULY 19, 1961. IN AN EARLIER PETITION, AGUINALDO ET AL. V. UNITED STATES, CT.CL. NO. 49726, THE PLAINTIFF, JOSEPH A. HERBERT, HAD SOUGHT INCREASED RETIRED PAY FOR THE PERIOD NOVEMBER 7, 1946, TO "DATE OF JUDGMENT" BASED ON THE DECISION IN THE CASE OF SANDERS V. UNITED STATES, 120 CT.CL. 501 (1951). BASED ON A STIPULATION BY THE PARTIES THAT THE PLAINTIFF WAS ENTITLED TO THE ADJUSTMENT CLAIMED ONLY FOR THE PERIOD NOVEMBER 7, 1946, THROUGH SEPTEMBER 30, 1949, A JUDGMENT IN THE AMOUNT SO STIPULATED WAS RENDERED IN HIS FAVOR ON APRIL 7, 1953, AND THAT JUDGMENT PURPORTED TO COVER THE ENTIRE PERIOD FOR WHICH THE PLAINTIFF HAD SUED. THE ARMSTRONG CASE THE SAME PLAINTIFF, JOSEPH A. HERBERT, SOUGHT INCREASED RETIRED PAY BASED ON A DIFFERENT PREMISE FOR THE PERIOD OCTOBER 1, 1950, THROUGH DECEMBER 31, 1958. IN ITS 1961 DECISION THE COURT HELD THAT IT HAD ERRED IN ENTERING THE 1953 JUDGMENT FOR THE ENTIRE PERIOD FOR WHICH PLAINTIFF SUED IN THAT CASE, THE COURT HAVING NO BASIS FOR THE ENTRY OF JUDGMENT OTHER THAN THE STIPULATION OF THE PARTIES. THE COURT THEN AMENDED THE EARLIER JUDGMENT TO ACCORD WITH THE STIPULATION, THUS LIMITING APPLICATION OF THE RULE OF RES JUDICATA TO THE PERIOD NOVEMBER 7, 1946, TO SEPTEMBER 30, 1949, INCLUSIVE. THE COURT'S ACTION IN THAT CASE INDICATES THAT, IF THE EARLIER JUDGMENT WERE NOT AMENDED, IT WOULD BE RES JUDICATA TO THE DATE THEREOF, APRIL 7, 1953.

THE DECEDENT, PAUL E. SHARP, WAS PLAINTIFF NO. 21 IN THE CASE OF ACKER, ET AL. V. UNITED STATES, CT.CL. NO. 428-54, FILED IN THE COURT OF CLAIMS ON NOVEMBER 2, 1954, IN WHICH EACH PLAINTIFF SOUGHT INCREASED RETIRED PAY BASED ON THE SANDERS DECISION "FOR PERIOD FROM JANUARY 1, 1948, AND CONTINUING TO DATE OF JUDGMENT.' SUBSEQUENTLY THE CLAIMS DIVISION OF OUR OFFICE WAS REQUESTED TO SETTLE HIS CLAIM FOR THIS ADJUSTMENT FOR THE PERIOD AUGUST 8, 1945, THROUGH DATE OF SETTLEMENT, AND A MOTION TO DISMISS HIS PETITION IN COURT WAS FORWARDED TO THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SUCH SETTLEMENT. SETTLEMENT WAS ISSUED ON JANUARY 18, 1957, COVERING THE ENTIRE PERIOD OF MR. SHARPS' CLAIM BY ALLOWING THE BASIC PART OF THE ADJUSTMENT CLAIMED FOR THE PERIOD AUGUST 8, 1945, THROUGH SEPTEMBER 30, 1949, DISALLOWING THE REMAINING PART CLAIMED FOR THAT PERIOD, AND DISALLOWING THE ENTIRE ADJUSTMENT CLAIMED FOR THE PERIOD AFTER SEPTEMBER 30, 1949. ON THE BASIS OF THAT SETTLEMENT MR. SHARP'S ATTORNEYS ADVISED THE DEPARTMENT OF JUSTICE BY LETTER OF MARCH 1, 1957, THAT:

"WE HAVE NOW RECEIVED SATISFACTORY SETTLEMENT OF THE CLAIM BY THE GENERAL ACCOUNTING OFFICE AND ACCORDINGLY, YOU MAY FILE THE MOTION TO DISMISS IN COURT AT YOUR CONVENIENCE.'

ACCORDINGLY MR. SHARP'S MOTION TO DISMISS HIS PETITION WITH PREJUDICE WAS FILED IN THE COURT OF CLAIMS ON MARCH 7, 1957, AND WAS GRANTED BY THE COURT ON THAT DATE.

THE COURT OF CLAIMS IN THE ARMSTRONG (HERBERT) CASE SUBSEQUENTLY AMENDED ITS EARLIER JUDGMENT FOR THE REASON THAT THE EARLIER JUDGMENT, WHEN ENTERED, DID NOT CONFORM TO THE STIPULATION WHICH WAS THE BASIS THEREOF. IN THE CASE OF MR. SHARP THERE IS NO AMENDMENT OF THE JUDGMENT, AND HENCE THERE IS NOT APPARENT ANY BASIS FOR CONCLUDING THAT YOUR CLAIM IS NOT BARRED BY THE DOCTRINE OF RES JUDICATA.

THE DISALLOWANCE OF YOUR PRESENT CLAIM FOR THE PERIOD JANUARY 1, 1952, THROUGH MARCH 7, 1957, IS SUSTAINED.