B-107056, AUG. 2, 1962

B-107056, AUG. 2, 1962

TO LIEUTENANT WILLIAM T. CAPPS, JR., AUS, RETIRED:

YOUR LETTER OF MAY 14, 1962, ADDRESSED TO THE U.S. ARMY FINANCE OFFICE, INDIANAPOLIS, INDIANA, CONCERNING THE POSSIBILITY OF A RETROACTIVE ADJUSTMENT IN YOUR RETIRED PAY ACCOUNT HAS BEEN FORWARDED HERE (UNDER DATE OF JUNE 6, 1962) FOR OUR ACTION IN THE MATTER.

IN THE CIRCUMSTANCES PRESENTED YOUR LETTER WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 9, 1957, DISALLOWING YOUR CLAIM (SUBMITTED ON YOUR BEHALF IN LETTER OF JULY 24, 1957, BY THE LAW FIRM OF GEIGER AND HARMEL, 231 TOWER BUILDING, WASHINGTON 5, D.C.) FOR REFUND OF THE AMOUNT OF RETIRED PAY WITHHELD (FOR THE PERIOD JUNE 1, 1944, TO FEBRUARY 9, 1951, INCLUSIVE, DURING WHICH YOU WERE EMPLOYED IN A CIVILIAN FEDERAL CAPACITY) BY REASON OF THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, 1940 ED.

THE RECORD SHOWS THAT THE COURT OF CLAIMS RENDERED A DECISION JANUARY 31, 1956, ON CT.CL. PETITION NO. 50425, HOLDING THAT YOU WERE ENTITLED TO RECEIVE DISABILITY RETIRED PAY INCIDENT TO YOUR MILITARY SERVICE EFFECTIVE FROM MAY 9, 1944, THE DAY FOLLOWING THE DATE OF YOUR DISCHARGE AS SECOND LIEUTENANT, ARMY OF THE UNITED STATES. ON JULY 12, 1956, JUDGMENT WAS RENDERED IN YOUR FAVOR BY THE COURT IN THE AMOUNT OF $7,056.84, REPRESENTING THE NET AMOUNT FOUND DUE YOU FOR THE PERIOD MAY 9, 1944, TO JANUARY 31, 1956, INCLUSIVE, AFTER APPLYING THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 WITH RESPECT TO THE PERIOD OF YOUR CIVILIAN FEDERAL EMPLOYMENT, JUNE 1, 1944, TO FEBRUARY 9, 1951, INCLUSIVE. THAT JUDGMENT BECAME FINAL AND WAS PAID AUGUST 14, 1956, AS AUTHORIZED IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 2275839, DATED AUGUST 7, 1956.

SECTION 2517, TITLE 28, U.S.C. RELATING TO THE PAYMENT OF JUDGMENTS IS AS FOLLOWS: THE UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR, ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A 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.'

SUBSECTION (B), YOU WILL NOTE, EXPRESSLY PROVIDES THAT THE PAYMENT OF ANY FINAL JUDGMENT "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. IN THE CASE OF JAMES B. MCCARTHY, PLAINTIFF NO. 17, IN AMSDEN, ET AL. V. UNITED STATES, CT.CL.NO. 134-54, DECIDED JUNE 8, 1960 (REFERRING TO A PRIOR SUIT WHICH HAD BEEN FILED BY THE PLAINTIFF MCCARTHY FOR INCREASED RETIRED PAY) THE COURT STATED "IN THAT SUIT HE ASKED FOR INCREASED PAY, BUT HE DID NOT ALLEGE THE GROUND OF RECOVERY HERE ALLEGED, BUT, OF COURSE, HE COULD HAVE DONE SO AND, HENCE, IS BARRED FROM NOW DOING SO, UNDER THE DOCTRINE OF RES JUDICATA AND BY 28 U.S.C. SEC. 2517 (B).' SEE OUR SETTLEMENT OF AUGUST 9, 1957, IN YOUR CASE APPLYING THE RULE OF RES JUDICATA AND CITING HEISER V. WOODRUFF, 327 U.S. 726. SEE, ALSO, THE CLARK CASE, CT.CL.NO. 45-55, DECIDED JUNE 8, 1960, AND REGISTER V. UNITED STATES, CT.CL.NO. 207-59, DECIDED JULY 15, 1960.

IN THE REGISTER CASE THE COURT STATED THAT THE PLAINTIFF'S CLAIM "IS PLAINLY BARRED BY THE DOCTRINE OF RES JUDICATA FOR THE PERIOD COVERED BY OUR FORMER JUDGMENT. WE DECIDED IN THE FORMER CASE THAT PLAINTIFF WAS ENTITLED TO THE ACTIVE DUTY AND RETIRED PAY OF A LIEUTENANT, JUNIOR GRADE. THAT WAS A FINAL JUDGMENT ON THAT QUESTION AND IT CANNOT BE LITIGATED AGAIN. SEE 28 U.S.C. SEC. 2517.' THE COURT FURTHER ADDED "IT IS TRUE THAT IN OUR FORMER DECISION WE DID NOT CONSIDER NOR DECIDE THE QUESTION OF PLAINTIFF'S RIGHT TO THE RETIRED PAY OF A LIEUTENANT. HOWEVER, SINCE PLAINTIFF COULD AND SHOULD HAVE RAISED THIS QUESTION IN THE FORMER LITIGATION, OUR JUDGMENT THERE BARS HIM FROM NOW MAKING THIS CLAIM AS TO THE PERIOD PREVIOUSLY COVERED BY THE FIRST SUIT.'

THE DECISION JANUARY 31, 1956, ON CT.CL. PETITION NO. 50425 IN YOUR CASE, THE JUDGMENT OF JULY 12, 1956, AND THE PAYMENT THEREOF ON RESTRICTIONS IMPOSED BY THE PROVISIONS OF 28 U.S.C. SEC. 2517 (B). HENCE, YOUR PRESENT CLAIM FOR EXEMPTION FROM THE DUAL COMPENSATION LIMITATIONS OF SECTION 212 IS NOW BARRED FROM CONSIDERATION.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF AUGUST 9, 1957, IS SUSTAINED.