Schuster v. United States

1 Cl. Ct. 708, 1983 U.S. Claims LEXIS 1835
CourtUnited States Court of Claims
DecidedMarch 4, 1983
DocketNo. 259-82C
StatusPublished
Cited by7 cases

This text of 1 Cl. Ct. 708 (Schuster v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schuster v. United States, 1 Cl. Ct. 708, 1983 U.S. Claims LEXIS 1835 (cc 1983).

Opinion

OPINION

WOOD, Judge:

This military pay case, before the court on cross-motions for summary judgment, has its genesis in a May 1959 recommendation that plaintiff, then an Air Force Reserve officer serving on extended active duty, be demoted. That recommendation, duly approved by the Secretary of the Air Force, led to plaintiff’s retirement from the Air Force, in the grade of lieutenant colonel, April 30, 1961.

In this action, filed May 24, 1982, plaintiff contends in essence that the recommendation of the Demotion Board, and his ensu[709]*709ing retirement, were “illegal” and should be held to be without any force or effect. He appears to seek a judgment for the difference between the basic pay and allowances of a lieutenant colonel and the retired pay he was paid from May 1, 1961, to April 30, 1969, and for the difference between the retired pay he would have received had he been retired April 30, 1969, and that which he has been paid from May 1, 1969, to date of judgment.1

Defendant points to a 1972 dismissal by the United States District Court for the District of Columbia of plaintiff’s challenge to his retirement as barred by limitations, and urges that, under the doctrines of res judicata and collateral estoppel, that decision should be afforded binding effect in this court. Defendant further contends, however, that the claim accrued no later than 1961 and is barred by limitations in any event. Plaintiff’s reply is that neither res judicata nor collateral estoppel is applicable here, that the statute of limitations was “tolled” until he became “aware,” in or about 1979, that “he had a cause of action,” and that, on the merits, the 1959 recommendation leading to his retirement, and his 1961 retirement, were “illegal.”

For the reasons hereinafter appearing, and without oral argument, it is concluded that plaintiff’s claim is barred by res judicata.

I

On May 22,1959, plaintiff, who then held both a permanent appointment as a lieutenant colonel, Air Force Reserve, and a temporary appointment as a lieutenant colonel in the Air Force,2 and who was then serving on extended active duty in his temporary grade, was recommended for demotion by an Air Force Demotion Board. That recommendation was approved by the Secretary of the Air Force July 22, 1959.

Because plaintiff was then serving on extended active duty in a temporary grade equal to his permanent Reserve grade, paragraph 2d, Air Force Regulation (AFR) No. 36-35, 30 August 1958, “Officer Personnel — Demotion of Officers,” required that he be released from active duty.3 Plaintiff had then completed over 18 years’ active duty, however, and he was within two years of qualifying for retired pay. Accordingly, he was permitted to continue on active duty in order to complete twenty years’ active service.4 He elected to do so, thereafter qualified for retired pay, and was retired from active service, in the grade of lieutenant colonel, April 30, 1961.

As of 1959, Section 266(a), Title 10, United States Code, provided in part that each board convened “for the * * * demotion * * of Reserves * * * shall include an appropriate number of Reserves, as prescribed by the Secretary concerned under standards and policies prescribed by the Secretary of Defense.”5 Plaintiff alleges that the 1959 Demotion Board that recommended him for demotion was unlawfully constituted, in that only two Board members6 were Re[710]*710serves. It follows, plaintiff asserts, that the Board’s recommendation, and his consequent retirement in 1961, were and are ineffective to deprive him of the basic pay (and increased retired pay) he would have received but for the unlawful action.

In 1972, plaintiff, represented by counsel, filed an action in the United States District Court for the District of Columbia.7 In that action, plaintiff alleged, among other things, that the Air Force orders separating him from active duty in 1961 were “illegal and void and of no effect * * 8 By order, dated June 14, 1972, Judge Howard F. Corcoran, citing 28 U.S.C. § 2401(a), Mathis v. United States, 183 Ct.Cl. 145, 391 F.2d 938 (1968), and Mathis v. Laird, 324 F.Supp. 885 (D.Fla.1971), aff’d, 457 F.2d 926 (5th Cir.1972), cert. denied, 409 U.S. 871, 93 S.Ct. 201, 34 L.Ed.2d 122 (1972), held that “the plaintiff’s action is barred by the statute of limitations,” and dismissed the complaint.

II

In Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979), the Supreme Court stated that:

Res judicata ensures the finality of decisions. Under res judicata, ‘a final judgment on the merits bars further claims by parties * * * based on the same cause of action.’ Montana v. United States, 440 U.S. 147, 153 [99 S.Ct. 970, 973, 59 L.Ed.2d 210] (1979). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378 [60 S.Ct. 317, 320, 84 L.Ed. 329] (1940) IB J. Moore, Federal Practice ¶ 0.405[1] (2d ed. 1974). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.

See also Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Alyeska Pipeline Service Co. et al. v. United States, 231 Ct.Cl. -, 688 F.2d 765 (1982); Red Lake Band v. United States, 229 Ct.Cl. -, 667 F.2d 73 (1981).

In 1972, the United States District Court for the District of Columbia held that plaintiff’s complaint that his 1961 separation from the Air Force was illegal was barred by limitations. For purposes of the doctrine of res judicata, the District Court judgment operated as an adjudication on the merits. Cemer v. Marathon Oil Co., 583 F.2d 830, 832 (6th Cir.1978). See also, Federated Department Stores Inc. v. Moitie, supra, 452 U.S. at 399, n. 3, 101 S.Ct. at 2428, n. 3; Mathis v. Laird, 457 F.2d 926, 927 (5th Cir.1972), cert. denied, 409 U.S. 871, 93 S.Ct. 201, 34 L.Ed.2d 122 (1972).

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