B-123369, JULY 3, 1961, 41 COMP. GEN. 3

B-123369, JULY 3, 1961, 41 COMP. GEN. 3

COURTS - JUDGMENTS - RES JUDICATA - WATMAN CASE OVERRULING LEONARD CASE AN UNVACATED OR UNREVERSED JUDGMENT RENDERED AGAINST A PLAINTIFF ON THE MERITS OF A CONTROVERSY IS CONCLUSIVE AS TO ALL MATTERS WHICH WERE DECIDED AND WHICH MIGHT HAVE BEEN DECIDED, AND EVEN THOUGH, IN A SUBSEQUENT CASE INVOLVING ANOTHER PLAINTIFF BUT SIMILAR ISSUES, A JUDGMENT IS RENDERED IN FAVOR OF THE PLAINTIFF THE FIRST JUDGMENT IS RES JUDICATA SO THAT A CLAIM BY THE PLAINTIFF IN THE FIRST CASE, ON THE BASIS OF THE SUBSEQUENT HOLDING, MUST BE DENIED. NOTWITHSTANDING THAT THE DECISION IN LEONARD V. UNITED STATES, 136 CT. CL. 686, WHICH HELD THAT A RETIRED MEMBER OF THE UNIFORMED SERVICES WAS NOT ENTITLED TO AN EXEMPTION FROM THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, 5 U.S.C. 59A, BY REASON OF FORMER MEMBERSHIP IN THE ARMY OF THE UNITED STATES, WAS OVERRULED AS PRECEDENT IN WATMAN V. UNITED STATES, CT. CL. NO. 189-59, THE JUDGMENT IN THE LEONARD CASE WHICH WAS NOT VACATED OR REVERSED IS CONCLUSIVE AS TO ALL MATTERS WHICH WERE RAISED OR WHICH COULD HAVE BEEN RAISED AND, SINCE THE STATUTES ON WHICH THE PLAINTIFF IN THE LEONARD CASE BASES HIS RETIRED PAY CLAIM WERE IN EXISTENCE WHEN THE PETITION WAS FILED WHICH RESULTED IN THE ORIGINAL DECISION, THE WATMAN CASE DOES NOT CONSTITUTE ANY AUTHORITY FOR ALLOWANCE OF THE CLAIM FOR DISABILITY RETIRED PAY WITHHELD DURING CIVILIAN EMPLOYMENT BECAUSE OF THE DUAL COMPENSATION RESTRICTIONS.

TO GEORGE EDWARD LEONARD, JR., JULY 3, 1961:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1961, AND ENCLOSURE, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR DISABILITY RETIRED PAY ADMINISTRATIVELY WITHHELD DURING THE PERIODS OF YOUR CIVILIAN FEDERAL EMPLOYMENT BECAUSE OF THE DUAL COMPENSATION RESTRICTIONS PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED FEBRUARY 10, 1955. THE BASIS OF YOUR PETITION COVERING A SIMILAR CLAIM, IN THE CASE OF LEONARD V. UNITED STATES, 136 CT. CL. 686, CERTIORARI DENIED, 353 U.S. 976, THE COURT HELD THAT YOU WERE NOT ENTITLED TO EXEMPTION FROM THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT FOR THE REASON THAT YOUR FORMER MEMBERSHIP IN THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, FURNISHED NO BASIS FOR THE EXEMPTION CLAIMED. THEREAFTER, IN THE CASE OF WATMAN V. UNITED STATES, CT. CL. NO. 189-59, DECIDED MARCH 1, 1961, THE COURT OF CLAIMS AGAIN CONSIDERED THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT. IN THE WATMAN CASE, THE COURT OVERRULED (AS A PRECEDENT) THE DECISION RENDERED IN YOUR CASE, BUT THE JUDGMENT AGAINST YOU HAS NOT BEEN VACATED OR REVERSED AND NOTHING APPEARS IN THE RECORD AVAILABLE TO US TO AFFECT THE FINALITY OF THAT JUDGMENT. IN THE WATMAN CASE THE COURT INDICATED THAT THE PLAINTIFF'S INACTIVE STATUS AS A RESERVE OFFICER HAD NOTHING TO DO WITH THE MATTER AND CONCLUDED THAT THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, 729, 10 U.S.C. 484 (1946 USED.), GRANTING TO OFFICERS OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, WHO WERE APPOINTED UNDER THE PROVISIONS OF THAT ACT, THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS, EXEMPTED SUCH ARMY OF THE UNITED STATES OFFICERS (AND FORMER AUS OFFICERS) FROM THE PROVISIONS OF SECTION 212 . YOU NOW REQUEST RECONSIDERATION AND PAYMENT OF YOUR CLAIM ON THE BASIS OF THE COURT'S DECISION IN THE WATMAN CASE.

SECTION 2519, TITLE 28 OF THE U.S.C. PROVIDES THAT A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF "SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'

IN CONSTRUING A SIMILAR STATUTE IN EFFECT AT THE TIME (SECTION 1093, REVISED STATUTES) IN THE CASE OF RAVESIES V. UNITED STATES, 21 CT. CL. 243, 248, THE COURT STATED THAT IF A CLAIMANT "BRINGS HIS ACTION HERE (IN THE COURT OF CLAIMS) FIRST, AND IT IS DECIDED AGAINST HIM, EITHER BY THIS COURT OR ON APPEAL BY THE SUPREME COURT, HE CANNOT THEN TAKE THE SAME CLAIM TO THE ACCOUNTING OFFICERS, FOR IT IS BY STATUTE FOREVER BARRED.' IN THE CASE OF ADAMS V. UNITED STATES, 36 CT. CL. 104, THE COURT STATED THAT, EVEN THOUGH FOUNDED UPON AN ERRONEOUS RULING OF LAW, A JUDGMENT RENDERED BY THE COURT UNDER ITS GENERAL JURISDICTION WHICH "STANDS UNVACATED AND UNREVERSED" IS A FINAL JUDGMENT, AND THAT THIS IS SO NOTWITHSTANDING THAT SUBSEQUENTLY THE SUPREME COURT DECIDED IN FAVOR OF ANOTHER PLAINTIFF IN A SIMILAR CASE. ALSO, SEE UNITED STATES V. O GRADY, 89 U.S. 641, 648, AND THE ASSINIBOINE INDIAN TRIBE V. UNITED STATES, 128 CT. CL. 617, CERTIORARI DENIED, 348 U.S. 863.

IT APPEARS THAT THE JUDGMENT RENDERED AGAINST YOU (136 CT. CL. 686) CONCLUSIVELY AND FINALLY DETERMINED AND SETTLED ALL OF THE QUESTIONS WHICH WERE RAISED OR WHICH COULD HAVE BEEN RAISED IN YOUR CASE. THE REASON FOR THIS IS THAT A JUDGMENT RENDERED ON THE MERITS IS CONCLUSIVE AS TO ALL MATTERS WHICH WERE DECIDED AND AS TO ALL MATTERS WHICH MIGHT HAVE BEEN DECIDED. SEE, IN THIS CONNECTION, HEISER V. WOODRUFF, 327 U.S. 726, 735; INTERNATIONAL CURTIS MARINE TURBINE COMPANY V. UNITED STATES, 74 CT. CL. 132; GUETTEL V. UNITED STATES, 95 F.2D 229, 230, CERTIORARI DENIED, 305 U.S. 603.

THE SUPREME COURT OF THE UNITED STATES IN TAIT V. WESTERN MARYLAND RAILWAY COMPANY, 289 U.S. 620, 624, REFERS TO THIS RULE AS ONE FOUNDED IN SOUND POLICY, WHICH APPLIES "WITH EQUAL FORCE TO THE SOVEREIGN'S DEMAND AND THE CLAIMS OF PRIVATE CITIZENS.' THE RULE IS BASED UPON THAT PUBLIC POLICY WHICH REQUIRES THAT A SINGLE CONTROVERSY CAPABLE OF BEING COMPLETELY DETERMINED IN ONE SUIT SHALL BE ENDED BY THE JUDGMENT IN THAT SUIT AND SHALL NOT BECOME THE SUBJECT MATTER OF SUBSEQUENT LITIGATION. SEE SOUTHERN PACIFIC RAILROAD COMPANY V. UNITED STATES, 168 U.S. 1, 48- 49. EVEN LACK OF KNOWLEDGE BY THE PARTIES AS TO THEIR LEGAL RIGHTS WILL NOT PREVENT THE APPLICATION OF THE RULE. SEE, IN THIS CONNECTION, THE DECISION IN THE GUETTEL CASE, 95 F.2D 229, 232.

IN MOSER V. UNITED STATES, 42 CT. CL. 86, IN A SUIT FOR RETIRED PAY, THE COURT OF CLAIMS HELD THAT SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY DURING THE CIVIL WAR WAS SERVICE AS AN OFFICER OF THE NAVY. IN A CASE DECIDED LATER ( JASPER V. UNITED STATES, 43 CT. CL. 368), THE COURT OF CLAIMS REVERSED THE MOSER DECISION AND REACHED THE OPPOSITE CONCLUSION; IT STATED THAT, IF A CERTAIN STATUTORY PROVISION HAD BEEN CALLED TO ITS ATTENTION IN THE MOSER CASE, IT "WOULD NOT IN THE FACE OF THAT STATUTE * * * HAVE GIVEN JUDGMENT" FOR MOSER. THE GOVERNMENT THEREAFTER REFUSED TO PAY MOSER RETIRED PAY BASED ON THE JUDGMENT RENDERED IN HIS CASE AND IN A SUBSEQUENT SUIT THE COURT OF CLAIMS (49 CT. CL. 285) UPHELD HIS RIGHT TO RECEIVE RETIRED PAY ON THE BASIS OF ITS FIRST JUDGMENT IN HIS CASE NOTWITHSTANDING THAT IT HAD LATER REACHED A DIFFERENT CONCLUSION IN THE JASPER CASE. THAT DECISION RESTED ON THE PROPOSITION THAT THE ISSUE IN THE FORMER MOSER CASE WAS IDENTICAL TO THE ISSUE IN THE SECOND MOSER CASE AND HAD BEEN TRIED AND DETERMINED, AND THEREFORE THE JUDGMENT IN THE FORMER MOSER CASE WAS RES JUDICATA AND CONCLUSIVE UPON THE PARTIES. THAT HOLDING WAS AFFIRMED BY THE SUPREME COURT OF THE UNITED STATES. SEE UNITED STATES V. MOSER, 266 U.S. 236, 242, WHERE THE COURT STATED THAT "A FACT, QUESTION OR RIGHT DISTINCTLY ADJUDGED IN THE ORIGINAL ACTION CANNOT BE DISPUTED IN A SUBSEQUENT ACTION, EVEN THOUGH THE DETERMINATION WAS REACHED UPON AN ERRONEOUS VIEW OR BY AN ERRONEOUS APPLICATION OF THE LAW.'

SINCE THE STATUTES ON WHICH YOU BASE YOUR CLAIM WERE IN EXISTENCE WHEN YOU FILED THE PETITION WHICH RESULTED IN THE DECISION REPORTED AT 136 CT. CL. 686, AND ANY RIGHT THEREUNDER COULD HAVE BEEN CLAIMED IN THAT PETITION, WE DO NOT BELIEVE THAT, UNDER THE CIRCUMSTANCES, THE DECISION IN THE WATMAN CASE CONSTITUTES ANY AUTHORITY FOR FAVORABLE ACTION ON YOUR CLAIM. THEREFORE, WE MUST AGAIN DENY YOUR CLAIM.