B-120159, DECEMBER 8, 1958, 38 COMP. GEN. 419

B-120159, DECEMBER 8, 1958, 38 COMP. GEN. 419

COURTS - JUDGMENTS - ADDITIONAL MATTER NOT LITIGATED - RES JUDICATA IN A SUIT AGAINST THE GOVERNMENT FOR PAYMENT FOR A PARTICULAR PERIOD OF TIME, THE PLAINTIFF SHOULD SEEK JUDGMENT FOR ALL OF THE AMOUNT WHICH MIGHT BE PAYABLE FOR THE PERIOD UNDER ANY AND ALL LEGAL THEORIES AND LAWS BEARING ON HIS ENTITLEMENT AND AFTER AWARD AND PAYMENT OF A JUDGMENT, THE FAILURE OF THE PLAINTIFF TO SEEK JUDGMENT IN THE ORIGINAL PETITION UNDER ALL OF THE LAW APPLICABLE TO THE CASE PRECLUDES FAVORABLE CONSIDERATION OF A CLAIM FOR AN ADDITIONAL AMOUNT ON THE BASIS OF ANOTHER LAW. PAYMENT OF A JUDGMENT BASED ON A STIPULATION AGREEMENT AND PROVIDING THAT ACCEPTANCE CONSTITUTES FULL SETTLEMENT OF THE CLAIMS SET FORTH IN THE PETITION UNDER WHICH A RETIRED NAVY OFFICER SOUGHT ADDITIONAL RETIRED PAY, BASED ON SANDERS V. UNITED STATES, 120 C.1CLS. 501, IS A FULL AND FINAL DISCHARGE TO THE UNITED STATES OF CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS LITIGATED PURSUANT TO 28 U.S.C. 2517 AND THE FAILURE OF THE OFFICER TO QUESTION IN PETITION THE APPLICABILITY OF SEC. 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, AS IN TATO V. UNITED STATES, 136 C. CLS. 651, MAKES A CLAIM FOR ADDITIONAL RETIRED PAY UNDER THE TATO DECISION OF SUCH DOUBTFUL VALIDITY AS TO PRECLUDE FAVORABLE ACTION BY THE GENERAL ACCOUNTING OFFICE.

TO FRANK MARSHALL MONDEAU, DECEMBER 8, 1958:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 23, 1958, FROM PAUL E. MCNULTY, OF THE FIRM OF KING AND KING, REQUESTING ON YOUR BEHALF REVIEW OF SETTLEMENT DATED AUGUST 20, 1958, WHICH DISALLOWED THAT PORTION OF YOUR CLAIM, FOR THE PERIOD PRIOR TO MAY 7, 1953, FOR RETIRED PAY WITHHELD FROM YOU BY REASON OF THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A. THE DISALLOWANCE WAS MADE FOR THE STATED REASON THAT THE RECORD SHOWED YOU PREVIOUSLY FILED IN THE COURT OF CLAIMS A PETITION, NO. 264-52, FOR ADJUSTMENT IN RETIRED PAY FOR THE PERIOD FROM DATE OF RELEASE TO INACTIVE DUTY TO DATE OF JUDGMENT AND THAT, SINCE THE JUDGMENT WAS ENTERED ON STIPULATION OF THE PARTIES ON MAY 6, 1953, THERE WAS NO AUTHORITY FOR ALLOWANCE OF THAT PORTION OF YOUR PRESENT CLAIM FOR ANY PERIOD PRIOR TO MAY 7, 1953, BECAUSE OF THE PROVISIONS OF 28 U.S.C. 2517, THAT PAYMENT OF EVERY FINAL JUDGMENT OF THE COURT OF CLAIMS SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED.

THE LETTER OF SEPTEMBER 23, 1958, STATES, AS A BASIS FOR ALLOWANCE OF YOUR CLAIM FOR THE PERIOD NOT BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, THAT THE STIPULATION FOR THE ENTRY OF JUDGMENT AND THE JUDGMENT ITSELF IN YOUR PREVIOUS PETITION ONLY COVERED THE PERIOD ENDING OCTOBER 31, 1946, AND THAT THE DETERMINATIVE FACTOR IN THE APPLICATION OF THE DOCTRINE OF RES JUDICATA, AND OF THE STATUTE, IS THE PERIOD COVERED BY THE JUDGMENT RATHER THAN THE DATE OF ENTRY OF THE JUDGMENT.

THE RECORD DISCLOSES THAT YOU WERE ONE OF THE PLAINTIFFS ON COURT OF CLAIMS PETITION NO. 264-52 (3) ( PABLO MEJICO, ET AL. V. UNITED STATES), EACH OF WHOM SOUGHT RECOVERY OF THE DIFFERENCE BETWEEN THE RETAINER OR RETIRED PAY RECEIVED SINCE RELEASE TO AN INACTIVE STATUS BASED ON 16 YEARS OF ACTIVE SERVICE, AND THAT TO WHICH HE WOULD BE ENTITLED IF CREDITED WITH HIS ENTIRE ACTIVE NAVAL SERVICE OF 20 YEARS OR MORE, AS INCREASED BY TEN PERCENT ON ACCOUNT OF CONDUCT MARKS AVERAGING 95 PERCENT OR MORE DURING SUCH SERVICE, COMMENCING WITH HIS RELEASE TO AN INACTIVE DUTY STATUS AND CONTINUING TO DATE OF JUDGMENT. IT WILL BE NOTED THAT THE PERIOD INVOLVED INCLUDES THE PERIOD COVERED BY YOUR PRESENT CLAIM.

THE RECORD FURTHER SHOWS THAT AN ORDER OF JUDGMENT WAS ENTERED IN THE MEJICO CASE ON MAY 6, 1953, BASED ON A STIPULATION AGREEMENT DATED APRIL 21, 1953, IN THE TOTAL AMOUNT OF $39,596.57. THE STIPULATION AGREEMENT WAS BASED ON SANDERS V. UNITED STATES, 120 C. CLS. 501, AND THE AMOUNT OF THE JUDGMENT, $359.27, REPRESENTED ADDITIONAL RETIRED PAY AS THE DIFFERENCE BETWEEN ONE-HALF AND ONE-THIRD BASE PAY FORMULA FOR THE PERIOD JANUARY 27, 1946, THROUGH OCTOBER 31, 1946, DUE YOU IN COMPROMISE OF YOUR CLAIM AS SET FORTH IN THE ORIGINAL PETITION DATED MAY 23, 1952.

THE RECORD FURTHER SHOWS THAT THE AMOUNT DETERMINED TO BE DUE YOU BASED ON THE STIPULATION AGREEMENT UNDER THE SANDERS DECISION WAS COMPUTED BY THE NAVY DEPARTMENT AND SHOWED THE NET AMOUNT OF $359.27, COVERING THE PERIOD JANUARY 27, 1946, TO OCTOBER 31, 1946, TO BE PAYABLE IN YOUR CASE. NO AMOUNT WAS ALLOWED FOR THE PERIOD SUBSEQUENT TO OCTOBER 31, 1946, SINCE IT THEN WAS BELIEVED THAT SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, BARRED PAYMENT OF ALL BUT A SMALL FRACTION OF THE RETIRED PAY WHICH ACCRUED TO YOU AT THAT TIME. IT DOES NOT APPEAR THAT YOU THEN QUESTIONED THE APPLICABILITY OF THE ECONOMY ACT. A COPY OF THAT COMPUTATION WAS IN OUR FILES WHEN THE SETTLEMENT ACTION OF AUGUST 20, 1958, WAS TAKEN. THE JUDGMENT RENDERED BY THE COURT, BASED ON THE STIPULATION ENTERED INTO BETWEEN YOUR ATTORNEYS AND THE DEPARTMENT OF JUSTICE, STATED THAT THE PLAINTIFFS AGREED TO ACCEPT IN FULL SETTLEMENT OF THEIR CLAIM "SET FORTH IN THE PETITION" THE AMOUNTS STATED IN THE JUDGMENT.

TITLE 28 U.S.C., SECTION 2517, PROVIDES:

(A) EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS AGAINST THE UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR, ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A CERTIFICATION OF THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT.

(B) PAYMENT OF ANY SUCH JUDGMENT AND OF INTEREST THEREON SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.

IT APPEARS REASONABLE TO CONCLUDE THAT THE PRINCIPAL PURPOSE OF THE STATUTORY PROVISIONS CONTAINED IN 28 U.S.C. 2517 WAS TO PREVENT A MULTIPLICITY OF COURT ACTIONS AGAINST THE GOVERNMENT WHICH WOULD RESULT FROM THE INSTITUTION OF DIFFERENT LAW SUITS BASED ON DIFFERENT LEGAL THEORIES OR THE APPLICABILITY OR NONAPPLICABILITY OF DIFFERENT STATUTORY PROVISIONS, THE ISSUES OF WHICH PROPERLY COULD BE DECIDED IN ONE ACTION. AS APPLIED TO A SUIT FOR ADDITIONAL RETIRED PAY, IT IS BELIEVED THAT THE CONGRESS INTENDED THAT IF A SUIT IS ENTERED AGAINST THE GOVERNMENT COVERING A PARTICULAR PERIOD OF TIME, THE PLAINTIFF SHOULD SEEK JUDGMENT FOR ALL THE ADDITIONAL RETIRED PAY WHICH MIGHT BE PAYABLE FOR THAT PERIOD UNDER ANY AND ALL LEGAL THEORIES AND STATUTORY PROVISIONS WHICH MIGHT HAVE A BEARING ON HIS RIGHT TO SUCH PAY. IN YOUR CASE BEFORE THE COURT OF CLAIMS, YOU COULD HAVE QUESTIONED THE APPLICABILITY OF THE ECONOMY ACT ON THE SAME BASIS AS DID THE PLAINTIFF IN THE CASE OF TATO V. UNITED STATES, 136 C. CLS. 651, ON WHICH CASE YOUR PRESENT CLAIM IS PREDICATED. SINCE YOU DID NOT DO SO AND THE JUDGMENT ENTERED IN YOUR PRIOR PETITION HAS BEEN PAID, YOUR PRESENT CLAIM IS OF SUCH DOUBTFUL VALIDITY AS NOT TO WARRANT FAVORABLE ACTION BY US.

YOUR ATTENTION IS ALSO INVITED TO THE CASE OF HEISER V. WOODRUFF, ET AL., 327 U.S. 726, WHEREIN THE SUPREME COURT HELD THAT, IN GENERAL, A JUDGMENT IS RES JUDICATA, NOT ONLY AS TO ALL MATTERS LITIGATED AND DECIDED BUT ALSO AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN, BUT WERE NOT, RAISED AND LITIGATED IN THE SUIT. SEE ALSO STOCKBRIDGE TRIBE OF INDIANS V. UNITED STATES, 63 C. CLS. 268; INTERNATIONAL TURBINE CO. V. UNITED STATES, 74 C. CLS. 132; ELECTRIC BOAT CO. V. UNITED STATES, 81 C. CLS. 361; AND MCSHAIN V. UNITED STATES, 87 C. CLS. 601.

UPON THE BASIS OF THE RECORD BEFORE US, AND IN VIEW OF THE PROVISION IN THE JUDGMENT CONCERNING SETTLEMENT OF THE CLAIM "SET FORTH IN THE PETITION," FAVORABLE CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM.