B-100214, FEB. 23, 1960

B-100214, FEB. 23, 1960

TO COMMANDER FRANK G. KUTZ, USN, RETIRED:

REFERENCE IS MADE TO LETTER DATED DECEMBER 16, 1959, FROM THE LAW FIRM OF KING AND KING, YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF NOVEMBER 18, 1959, WHICH ALLOWED YOU THE SUM OF $8,549.47, AS AN ADJUSTMENT OF YOUR RETIRED PAY AS COMMANDER FOR THE PERIOD MARCH 1, 1944, TO FEBRUARY 28, 1959.

THE SETTLEMENT WAS ISSUED ON THE BASIS OF THE CORRECTION OF YOUR NAVAL RECORDS SHOWING YOUR ACTIVE DUTY GRADE AS COMMANDER (INSTEAD OF LIEUTENANT COMMANDER) FOR THE PERIOD ENDING FEBRUARY 29, 1944, AND HENCE, YOU WERE ALLOWED ADDITIONAL RETIRED PAY FOR THE PERIOD BEGINNING MARCH 1, 1944, COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF A COMMANDER WITH OVER 21 YEARS OF CREDITABLE SERVICE (NOT INCLUDING YOUR INACTIVE TIME ON THE RETIRED LIST AS ORIGINALLY CLAIMED), LESS THE AMOUNT OF RETIRED PAY YOU HAVE RECEIVED. IT WAS POINTED OUT IN THE SETTLEMENT THAT YOUR RETIRED PAY STATUS ON MARCH 1, 1944, WITH RESPECT TO COUNTING THE PERIOD OF YOUR INACTIVE TIME ON THE RETIRED LIST FOR THE PURPOSE OF INCREASING THE RATE OF YOUR RETIRED PAY UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WAS SQUARELY WITHIN THE SCOPE OF THE GORDON, FIELD AND SHERFEY DECISIONS. THIS ISSUE, WHICH COULD AND SHOULD HAVE BEEN RAISED FOR JUDICIAL DETERMINATION WAS NOT PRESENTED FOR CONSIDERATION IN THE CASE OF KUTZ V. UNITED STATES, C.CLS. NO. 291- 52, FILED BY YOU IN 1952, AND THE SUBSEQUENT PAYMENT OF THE JUDGMENT RENDERED ON NOVEMBER 8, 1955 (132 C.CLS. 329, 341), IN YOUR FAVOR HAS RENDERED THE MATTER RES JUDICATA. CONSEQUENTLY, YOU ARE NOT ENTITLED TO THE BENEFITS OF THE RE-RETIREMENT RULE ESTABLISHED IN THE GORDON, FIELD AND SHERFEY DECISIONS, WHICH WOULD HAVE PERMITTED YOU TO COUNT YOUR INACTIVE TIME ON THE RETIRED LIST IN DETERMINING THE RATE OF YOUR RETIRED PAY.

IN PROTESTING THE APPLICATION OF THE DOCTRINE OF RES JUDICATA IN YOUR CASE, YOUR ATTORNEY STATES THAT IT IS ELEMENTAL LAW THAT THE DOCTRINE OF RES JUDICATA DOES NOT APPLY UNLESS THERE IS AN IDENTITY OF PARTIES AND ISSUES. HE ALSO STATES THAT THE ACTION TAKEN BY THE SECRETARY OF THE NAVY ON AUGUST 15, 1957, CHANGING YOUR RANK FROM LIEUTENANT COMMANDER TO COMMANDER, CHANGED THE FACTS FROM THOSE WHICH WERE BEFORE THE COURT OF CLAIMS AND IN EFFECT GAVE RISE TO A NEW CAUSE OF ACTION FOR INCREASED RETIRED PAY.

IN GENERAL, A JUDGMENT IS RES JUDICATA NOT ONLY AS TO ALL MATTERS LITIGATED AND DECIDED BY IT, BUT AS TO ALL RELEVANT ISSUES WHICH COULD HAVE BEEN, BUT WERE NOT RAISED AND LITIGATED IN THE SUIT. HEISER V. WOODRUFF, ET AL., 327 U.S. 726. A JUDGMENT ON THE MERITS BETWEEN THE SAME PARTIES OPERATES AS AN ESTOPPEL, NOT ONLY AS TO EVERY MATTER WHICH WAS OFFERED AND RECEIVED TO SUSTAIN OR DEFEAT THE CLAIM, BUT AS TO EVERY OTHER MATTER WHICH MIGHT WITH PROPRIETY HAVE BEEN LITIGATED AND DETERMINED IN THAT ACTION. INTERNATIONAL CURTIS MARINE TURBINE COMPANY V. UNITED STATES, 74 C.CLS. 132. THE DOCTRINE OF RES JUDICATA APPLIES TO ALL MATTERS WHICH EXISTED AT THE TIME OF GIVING JUDGMENT OR RENDERING DECREE AND WHICH PLAINTIFF HAD OPPORTUNITY OF BRINGING BEFORE THE COURT. GRIFFIN V. GRIFFIN, 32 S.E.2D 700.

THE CHANGE THAT WAS MADE IN YOUR NAVAL RECORDS TO SHOW YOU AS SERVING ON ACTIVE DUTY IN THE GRADE OF COMMANDER (THEREBY ENTITLING YOU TO RECEIVE ACTIVE DUTY PAY AS A COMMANDER) AFFECTED THE GRADE, NOT THE LONGEVITY, ON WHICH YOUR RIGHT TO RETIRED PAY WAS BASED. YOUR STATUS AS A COMMISSIONED OFFICER WITH OVER 30 YEARS OF CREDITABLE ACTIVE AND INACTIVE SERVICE REMAINED UNCHANGED. CONSEQUENTLY, THE BASIC ISSUES AS TO WHETHER YOU WERE ENTITLED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW TO COUNT YOUR INACTIVE TIME ON THE RETIRED LIST IN DETERMINING THE RATE OF YOUR RETIRED PAY EFFECTIVE FROM MARCH 1, 1944, DATE OF YOUR REVERSION TO INACTIVE STATUS ON THE RETIRED LIST, COULD AND SHOULD HAVE BEEN LITIGATED ON THE BASIS OF THE GRADE THEN HELD BY YOU (LIEUTENANT COMMANDER) IN THE JUDICIAL PROCEEDINGS UNDERTAKEN ON COURT OF CLAIMS PETITION NO. 291-52. THIS WAS NOT DONE AND IN VIEW OF THE JUDGMENT RENDERED ON NOVEMBER 8, 1955, IN YOUR FAVOR, AND THE SUBSEQUENT PAYMENT OF THAT JUDGMENT, THE ISSUE WITH RESPECT TO CREDITING YOUR INACTIVE TIME ON THE RETIRED LIST IN DETERMINING THE RATE OF RETIRED PAY DUE YOU FROM MARCH 1, 1944, IS RES JUDICATA. HEISER V. WOODRUFF, ET AL., 327 U.S. 726; GRUBB V. PUBLIC UTILITIES COMMISSION, 281 U.S. 470, 479; STOCKBRIDGE TRIBE OF INDIANS V. UNITED STATES, 63 C.CLS. 268, 269; INTERNATIONAL CURTIS MARINE TURBINE COMPANY V. UNITED STATES, 74 C.CLS. 132; ELECTRIC BEST COMPANY V. UNITED STATES, 61 C.CLS. 361; AND MELHEIN V. UNITED STATES, 87 C.CLS. 601. HENCE, CONTRARY TO THE VIEWS EXPRESSED BY YOUR ATTORNEY, THE CHANGE IN THE FACTS BY THE CORRECTION BOARD IN YOUR CASE AS RELATED ABOVE DID NOT AFFECT THE BASIC LONGEVITY ISSUE WHICH EXISTED WHEN YOUR CASE WAS BEFORE THE COURT OF CLAIMS.

WITH RESPECT TO THE STATEMENT THAT THE DOCTRINE OF RES JUDICATA DOES NOT APPLY UNLESS THERE IS AN IDENTITY OF PARTIES AND ISSUES, IT WOULD SEEM THAT THE MATTER AT ISSUE WHEN YOU FILED PETITION NO. 291-52, WAS THE CORRECT AMOUNT OF RETIRED PAY TO WHICH YOU WERE THEN ENTITLED. IT WAS NOT PROPER TO SPLIT THAT CAUSE OF ACTION AND ATTEMPT TO RECOVER DIFFERENT AMOUNTS ON DIFFERENT LEGAL THEORIES. UNITED STATES V. CALIFORNIA AND OREGON LAND CO., 192 U.S. 355, 358.

WE ARE ADVISED THAT A RES JUDICATA QUESTION SIMILAR TO THAT HERE INVOLVED NOW IS PENDING BEFORE THE COURT OF CLAIMS IN THE CASE OF BERRY, ET AL. V. UNITED STATES, C.CLS. NO. 108-59, PETITION FILED MARCH 9, 1959. THE PLAINTIFF BERRY IS CLAIMING ADDITIONAL RETIRED PAY ON A BASIS THAT COULD HAVE BEEN PRESENTED IN A SUCCESSFUL PRIOR ACTION (123 C.CLS. 530) BY HIM FOR INCREASED RETIRED PAY FOR A PART OF THE PERIOD COVERED BY THE PENDING CASE.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION MUST BE AND IS SUSTAINED.