B-135719, MAY 31, 1960, 39 COMP. GEN. 797

B-135719, MAY 31, 1960, 39 COMP. GEN. 797

MILITARY PERSONNEL - RETIRED PAY - JUDGMENT - RES JUDICATA A JUDGMENT UNDER WHICH A RETIRED OFFICER OF THE UNIFORMED SERVICES WAS AWARDED RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ON THE BASIS THAT SUCH RETIRED PAY WAS EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, BUT WHICH JUDGMENT WAS BASED ON THE ERRONEOUS ASSUMPTION AND ADMISSION THAT THE OFFICER HAD THE REQUIRED SERVICE TO QUALIFY FOR TITLE III RETIRED PAY, WHEN IN FACT HE DID NOT, DOES NOT AFFORD ANY BASIS TO SANCTION CURRENT PAYMENTS OF RETIRED PAY OR TO APPROVE PAYMENTS FOR ANY PERIOD NOT COVERED BY THE JUDGMENT IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE DISPUTE AS TO THE BASIC FACT OR AS TO THE APPLICATION OF THE RULE OF RES JUDICATA TO SUCH A JUDGMENT.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, MAY 31, 1960:

YOUR LETTER OF JANUARY 13, 1960 (FORWARDED BY THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY UNDER D.O. NO. 475, ALLOCATED BY DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTS AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT ON A VOUCHER (ENCLOSURE (1) TO YOUR LETTER) STATED IN FAVOR OF MR. NATHAN R. WARTHEN IN THE AMOUNT OF $922.77, REPRESENTING AN ADJUSTMENT IN THE RATE OF HIS MILITARY RETIRED PAY FOR THE PERIOD AUGUST 4, 1955, TO MARCH 31, 1959, INCLUSIVE, PLUS THE FULL AMOUNT OF SUCH RETIRED PAY FOR THE PERIOD APRIL 1, 1959, TO DECEMBER 31, 1959, INCLUSIVE.

NATHAN REED WARTHEN WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST APRIL 30, 1953, PURSUANT TO THE PROVISIONS OF TITLE III, ACT OF JUNE 29, 1948, ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087, 10 U.S.C. 1036 (1952 ED.), ON THE BASIS OF A TOTAL OF 24 YEARS, 8 MONTHS AND 9 DAYS OF SATISFACTORY FEDERAL SERVICE. THIS TOTAL SERVICE ERRONEOUSLY INCLUDED A PERIOD OF 6 YEARS, 11 MONTHS AND 14 DAYS DURING WHICH WARTHEN WAS A MEMBER OF THE NATIONAL GUARD RESERVE. MEMBERSHIP IN THE NATIONAL GUARD RESERVE IS NOT QUALIFYING SERVICE FOR THE PURPOSES OF SECTION 302 (A), TITLE III OF THE 1948 LAW, 10 U.S.C. 1036A (A) (1952 ED.). SEE WATERBURY V. UNITED STATES, 121 C.1CLS. 691, DECIDED APRIL 15, 1952, AND 38 COMP. GEN. 633 (B-138684, MARCH 26, 1959). THEREFORE, WARTHEN ACTUALLY HAS ONLY 17 YEARS, 8 MONTHS AND 25 DAYS OF SATISFACTORY FEDERAL SERVICE, WHICH IS LESS THAN THE 20-YEAR MINIMUM PRESCRIBED IN SECTION 302 (A) OF THE 1948 LAW. SINCE HE DOES NOT MEET THE STATUTORY REQUIREMENTS FOR TITLE III RETIRED PAY, HIS PLACEMENT ON THE ARMY OF THE UNITED STATES RETIRED LIST WAS WITHOUT LAWFUL AUTHORITY. COMP. GEN. 741, 743.

THE TITLE III RETIRED PAY WHICH WAS THOUGHT TO HAVE ACCRUED TO WARTHEN DURING THE PERIOD MAY 1, 1953, TO AUGUST 3, 1955, INCLUSIVE, WAS WITHHELD DUE TO HIS EMPLOYMENT BY THE UNITED STATES GOVERNMENT IN A CIVILIAN CAPACITY AT A SALARY EXCEEDING THE $3,000 PER ANNUM LIMITATION PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A. PLAINTIFF NO. 5 IN THE CASE OF HENRY L. BOWMAN, ET. AL. V. UNITED STATES, C.1CLS. NO. 108-58, WARTHEN INSTITUTED SUIT ON MARCH 13, 1958, AGAINST THE UNITED STATES TO RECOVER "RETIREMENT PAY UNDER TITLE III, ACT OF JUNE 29, 1948, WHICH HE HAS NOT BEEN PAID AND WILL NOT BE PAID BY REASON OF HIS EMPLOYMENT BY THE UNITED STATES IN A CIVILIAN CAPACITY, FOR THE PERIOD COMMENCING WITH THE DATE OF HIS SIXTIETH BIRTHDAY AND EXTENDING TO THE DATE JUDGMENT MAY BE ENTERED HEREIN.' IT WAS ALLEGED IN THE PETITION THAT " EACH PLAINTIFF, UPON ATTAINING THE AGE OF 60 YEARS, HAD COMPLETED TWENTY YEARS OF SATISFACTORY FEDERAL SERVICE * * * AND WAS IN ALL RESPECTS QUALIFIED TO RECEIVE RETIREMENT PAY COMMENCING THAT DATE AND TO BE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST * * * UNDER THE PROVISIONS OF TITLE III, ACT OF JUNE 29, 1948, 62 STAT. 1081.' IT WAS ALSO ALLEGED THAT " EACH PLAINTIFF, UPON HIS APPLICATION, HAS BEEN PLACED * * * ON THE ARMY OF THE UNITED STATES RETIRED LIST * * * WITH ENTITLEMENT TO RETIREMENT PAY UNDER THE PROVISIONS OF TITLE III * * * AND IS NOW ON SUCH RETIRED LIST WITH ENTITLEMENT TO RETIREMENT PAY.'

THESE ALLEGATIONS WERE NOT THEN KNOWN TO BE ERRONEOUS AND CONSEQUENTLY THEY WERE ADMITTED AND NOT CONTROVERTED BY THE GOVERNMENT IN THE REPLY MADE TO THE PETITION. THIS IS MADE CLEAR BY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FILED JULY 25, 1958, WHICH OPENED WITH THE FOLLOWING STATEMENT:

DEFENDANT MOVES THE COURT FOR SUMMARY JUDGMENT AS TO PLAINTIFF NATHAN REED WARTHEN (5), ON THE GROUND THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT IN THIS CASE AND THAT DEFENDANT IS ENTITLED AS A MATTER OF LAW TO JUDGMENT DISMISSING PLAINTIFF'S PETITION.

IN SUPPORT OF ITS MOTION, DEFENDANT RELIES UPON THE PLEADINGS AND THE BRIEF AND EXHIBIT SUBMITTED HEREWITH. ( ITALICS SUPPLIED.)

IN ITS OPINION RENDERED JANUARY 14, 1959, THE COURT OF CLAIMS STATED THAT " THE PLAINTIFF'S LENGTH OF SERVICE WAS SUFFICIENT IN 1943 TO SATISFY THE LONGEVITY REQUIREMENT.' ADHERING TO THE RULE OF THE SARLES DECISION OF MARCH 5, 1958, 141 C.1CLS. 709, THE COURT HELD THAT THE MATTER CAME WITHIN THE SCOPE OF THE TANNER CASE, 129 C.1CLS. 792, AND CONCLUDED THAT THE PAYMENT OF TITLE III RETIRED PAY TO WARTHEN WAS EXEMPT FROM THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT, 5 U.S.C. 59A. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WAS DENIED AND THE COURT, GRANTING THE PLAINTIFF'S SIMILAR MOTION, DIRECTED ENTRY OF JUDGMENT "FOR THE PLAINTIFF, NATHAN R. WARTHEN (5), THE AMOUNT OF THE JUDGMENT TO BE DETERMINED IN FURTHER PROCEEDINGS PURSUANT TO RULE 38 (C).'

THIS OFFICE SUBSEQUENTLY ACTING IN COMPLIANCE WITH PLAINTIFF'S MOTION FOR CALL ALLOWED BY THE COURT ON JANUARY 19, 1959, FOR A COMPUTATION OF THE AMOUNT DUE UNDER THE JUDGMENT RENDERED ON JANUARY 14, 1959, DISCOVERED THE DEFICIENCY IN WARTHEN'S MILITARY SERVICE. THEREAFTER, IN REPORTS DATED MAY 1, 1959, SHOWING THE AMOUNT OF TITLE III RETIRED PAY WHICH OTHERWISE WOULD HAVE ACCRUED TO WARTHEN DURING THE PERIOD MAY 1, 1952, TO AUGUST 3, 1955, INCLUSIVE, THE COURT OF CLAIMS AND THE DEPARTMENT OF JUSTICE WERE ADVISED THAT THE PLAINTIFF DID NOT MEET THE MINIMUM SERVICE REQUIREMENTS PRESCRIBED IN THE 1948 LAW. THE DEPARTMENT OF THE ARMY ALSO WAS ADVISED CONCERNING THIS SAME MATTER AND THE RECORD INDICATES THAT WARTHEN'S NAME WAS REMOVED FROM THE ARMY OF THE UNITED STATES RETIRED LIST BY ORDERS DATED APRIL 23, 1959.

ON JUNE 19, 1959, THE GOVERNMENT FILED A MOTION FOR A NEW TRIAL AND FOR AMENDMENT OF JUDGMENT, INCLUDING JUDGMENT ON DEFENDANT'S COUNTERCLAIM AGAINST THE PLAINTIFF FOR TITLE III RETIRED PAY ERRONEOUSLY PAID TO HIM DURING THE PERIOD AUGUST 4, 1955, TO MARCH 31, 1959, INCLUSIVE, STATING THAT THE PLAINTIFF HAD INSUFFICIENT SERVICE TO QUALIFY FOR SUCH RETIRED PAY. THE DEPARTMENT OF JUSTICE ADVISED THIS OFFICE IN LETTER DATED DECEMBER 15, 1959, IN PERTINENT PART AS FOLLOWS:

ON OCTOBER 7, 1959, THE COURT OVERRULED OUR MOTION FOR A NEW TRIAL AND AMENDMENT OF THE JUDGMENT. THE DENIAL OF THE MOTION WAS WITHOUT OPINION AND, THEREFORE, WE DO NOT KNOW ON WHAT GROUND OR GROUNDS THE COURT OVERRULED IT. IN ANY EVENT, THERE HAS NOT BEEN A REVERSAL OF THE WATERMAN CASE ( WATERBURY V. UNITED STATES, 121 C.1CLS. 691), ON THE BASIS OF WHICH THIS PLAINTIFF'S RETIREMENT ORDERS HAVE BEEN REVOKED. * * *

THE AMOUNT OF THE JUDGMENT WAS THEREUPON CERTIFIED FOR PAYMENT BY OUR CLAIMS DIVISION IN SETTLEMENT DATED DECEMBER 22, 1959.

SINCE WARTHEN DOES NOT HAVE THE MINIMUM NUMBER OF YEARS OF SATISFACTORY FEDERAL SERVICE TO QUALIFY FOR THE RETIRED PAY IN QUESTION, HIS RIGHT TO TITLE III RETIRED PAY FOR ANY PERIOD NOT COVERED BY THE JUDGMENT OF JANUARY 14, 1959, MUST BE BASED SOLELY ON THE RULE OF RES JUDICATA OR ESTOPPEL BY JUDGMENT. THAT RULE, IN GENERAL, REQUIRES THAT A MATTER ONCE LITIGATED SHOULD NOT AGAIN BE DRAWN INTO QUESTION BETWEEN THE SAME PARTIES. IN THE CASE OF COMMISSIONER OF INTERNAL REVENUE V. SUNNEN, 333 U.S. 591, 598, THE SUPREME COURT OF THE UNITED STATES STATED THAT:

* * * MATTERS WHICH WERE ACTUALLY LITIGATED AND DETERMINED IN THE FIRST PROCEEDING CANNOT LATER BE RELITIGATED. ONCE A PARTY HAS FOUGHT OUT A MATTER IN LITIGATION WITH THE OTHER PARTY, HE CANNOT LATER RENEW THAT DUEL. IN THIS SENSE, RES JUDICATA IS USUALLY AND MORE ACCURATELY REFERRED TO AS ESTOPPEL BY JUDGMENT, OR COLLATERAL ESTOPPEL. ( ITALICS SUPPLIED.)

IN UNITED STATES V. MOSER, 266 U.S. 236, 242, IT WAS 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 REACH UPON AN ERRONEOUS VIEW OR BY AN ERRONEOUS APPLICATION OF THE LAW. ( ITALICS SUPPLIED.)

WHEN THE GOVERNMENT FILED ITS MOTION FOR A NEW TRIAL AND AMENDMENT OF JUDGMENT ON JUNE 19, 1959, AN ISSUE OF FACT WAS PRESENTED FOR THE COURT'S CONSIDERATION AS TO WHETHER THE PLAINTIFF HAD SUFFICIENT SERVICE TO QUALIFY FOR THE RETIRED PAY CLAIMED. THERE HAS BEEN NO AFFIRMATIVE JUDICIAL RULING ON THIS DISPUTED POINT.

IT IS NOT KNOWN WHY SUCH MOTION WAS OVERRULED. POSSIBLY SUCH ACTION WAS TAKEN BECAUSE THE MATTER WAS NOT BROUGHT TO THE COURT'S ATTENTION ON A MOTION FOR REHEARING OR NEW TRIAL WITHIN 30 DAYS AFTER THE COURT'S DECISION OF JANUARY 14, 1959, UNDER RULE 53 (A), (C) OF THE COURT OF CLAIMS. IN SUPPORT OF ITS MOTION, THE GOVERNMENT CITED 28 U.S.C. 2515, WHICH PERMITS THE GRANTING OF A NEW TRIAL WITHIN TWO YEARS AFTER FINAL DISPOSITION OF A SUIT, UPON A SHOWING THAT FRAUD, WRONG OR INJUSTICE HAS BEEN DONE TO THE UNITED STATES. ALSO CITED WAS RULE 54 (B) WHICH PERMITS RELIEF WITHIN ONE YEAR FROM A FINAL JUDGMENT, FOR REASONS OF MISTAKE, INADVERTENCE, EXCUSABLE NEGLECT OR NEWLY DISCOVERED EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME FOR A NEW TRIAL UNDER RULE 53 (A). IT MAY BE THAT THE COURT FELT THAT NO EXCUSABLE NEGLECT WAS INVOLVED, BECAUSE OF A BELIEF THAT THE ACTUAL FACTS COULD HAVE BEEN DISCOVERED BY DUE DILIGENCE PRIOR TO FEBRUARY 14, 1959, AND, HENCE, THAT NO WRONG OR INJUSTICE WAS DONE THE GOVERNMENT UNDER THE COURT'S DECISION.

IT IS NOT KNOWN WHETHER THE COURT OF CLAIMS WOULD REGARD THIS MATTER AS BEING GOVERNED BY THE RULE OF RES JUDICATA IF IT SHOULD AGAIN BECOME THE SUBJECT OF LITIGATION FOR ANY PERIOD NOT COVERED BY THE JUDGMENT IN WARTHEN'S FAVOR, PARTICULARLY SINCE THE COURT STATED IN ONE OF ITS RELATIVELY RECENT OPINIONS ( AMSDEN, ET AL. V. UNITED STATES, C.1CLS. NO. 134-54, JULY 15, 1959) THAT "WE ARE NOT WILLING TO PERMIT A STRICT APPLICATION OF THE DOCTRINE OF RES JUDICATA TO PREVENT US FROM REACHING A CONCLUSION WHICH IS CONSONANT WITH OUR SENSE OF JUSTICE.'

IN VIEW OF ALL THE CIRCUMSTANCES, AND SINCE A DISPUTE BETWEEN THE PARTIES AS TO A BASIC FACT HAS NOT YET BEEN SETTLED BY THE COURT OF CLAIMS, WE HAVE A SUBSTANTIAL DOUBT THAT SUCH COURT WOULD HOLD THAT THE MATTER OF MR. WARTHEN'S ENTITLEMENT TO RETIRED PAY FOR CURRENT PERIODS IS CONCLUDED BY THE JUDGMENT IN HIS FAVOR FOR AN EARLIER PERIOD WHICH WAS ENTERED ON THE BASIS OF AN ERRONEOUS ASSUMPTION AND ADMISSION REGARDING THE LENGTH AND NATURE OF HIS MILITARY SERVICE. HAVING SUCH DOUBT WE MUST REFUSE TO SANCTION CURRENT PAYMENTS OF RETIRED PAY TO HIM, OR APPROVE ANY PAYMENTS OF RETIRED PAY TO HIM FOR ANY PERIOD NOT COVERED BY THE JUDGMENT IN HIS FAVOR, UNLESS AND UNTIL HIS RIGHT TO SUCH PAYMENTS HAS BEEN RESOLVED BY THE COURTS. SEE LONGWILL V. UNITED STATES, 17 C.1CLS. 288, AND CHARLES V. UNITED STATES, 19 C.1CLS. 316.

ACCORDINGLY, PAYMENT ON THE VOUCHER RECEIVED WITH YOUR LETTER IS NOT PROPER AND SUCH VOUCHER, WITH RELATED PAPERS, WILL BE RETAINED HERE.