Diamond v. United States

• Decision Date: 12 June 1970
• Docket Number: No. 294-61.,294-61.
• Citation: 427 F.2d 1246,192 Ct. Cl. 502
• Parties: Dan D. DIAMOND v. The UNITED STATES.
• Court: U.S. Claims Court

192 Ct. Cl. 502, 427 F.2d 1246 (1970)

Dan D. DIAMOND v. The UNITED STATES.

No. 294-61.

United States Court of Claims.

June 12, 1970.

Jeffrey M. Glosser, Washington, D. C., attorney of record, for plaintiff; N. Alfred Pasternak, Washington, D. C., of counsel.

Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Lloyd Fletcher with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a) since September 1, 1969, Rule 134 (h). The commissioner has done so in an opinion and report filed on August 22, 1969. Both parties filed exceptions to the commissioner's opinion, findings and recommended conclusion of law and the case has been submitted to the court on oral argument of counsel and the briefs of the parties.

At the oral argument, defendant renewed its jurisdictional objection that limitations bars the entire claim, citing the recent Supreme Court decision in Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (decided March 2, 1970). That case, however, has little bearing on the limitations issue decided in Diamond v. United States, 344 F.2d 703, 170 Ct.Cl. 166 (1965). Toussie was a criminal case, and the statute of limitations there involved was a criminal statute of limitations. The Supreme Court's opinion makes clear that the considerations moving the Court to decide that that offense was not a continuing one were entwined with the criminal aspects of the matter, and its holding was limited to criminal statutes of limitations. See 397 U.S. 112 at 114-115, 122-123, 90 S.Ct. at 858. Those considerations have little relevance to the problems of limitations in civil cases. We see nothing in the Toussie opinion to cause us to change our earlier holding in this case that plaintiff's claim is a continuing one.

Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law, with minor changes in the computation, it hereby adopts the same, together with the preceding paragraph, as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiff is entitled to recover the sum of $11,956.40 plus retired pay accruing to plaintiff subsequent to July 31, 1969. The exact amount of recovery will be determined pursuant to Rule 131(c).

OPINION OF COMMISSIONER

FLETCHER, Commissioner:

This protracted litigation has been before the court on two previous occasions. On April 16, 1965, the court held that plaintiff's claims for disability retirement pay were barred by the statute of limitations but held further that his alternate claim for active duty pay was a coninuing claim which required further proceedings before the commissioner to resolve the question of whether plaintiff had made a timely application for reenlistment as a master sergeant in the Army. See Diamond v. United States, 344 F.2d 703, 709-710, 170 Ct.Cl. 166, 177-178 (1965).

Thereafter, in an opinion handed down on July 15, 1966, the court held that, under the clear provisions of the Act of July 14, 1939, ch. 267, 53 Stat. 1001, plaintiff was entitled to reenlistment as a master sergeant without regard to any physical disqualification incurred in line of duty; that plaintiff had made a timely effort to reenlist under that statute on June 14, 1949; and that the rejection of that effort by defendant's recruiting personnel was unlawful. The court concluded that plaintiff must be considered a reenlisted master sergeant in the Army from June 14, 1949, and returned the case to the commissioner for further proceedings under Rule 47(c) to determine the amount of recovery, if any. Diamond v. United States, 176 Ct.Cl. 1103 (1966).

At plaintiff's request, the Rule 47(c) proceedings were temporarily suspended so that he might return to the Army Board for Correction of Military Records and endeavor to obtain relief there administratively. Despite this court's decision of July 15, 1966, however, the Board refused to reopen the matter, and plaintiff returned to the court for a resumption of Rule 47(c) proceedings, which have now been concluded.

Plaintiff's principal contention is that under the facts and circumstances of this case, he is entitled, from July 1, 1955, to the date of judgment herein, to the basic pay and allowances of a master sergeant in the Army, less VA compensation, but without reduction for civilian earnings. Since, for the periods involved, his civilian earnings far exceeded the pay and allowances he would have received as a master sergeant, plaintiff obviously sees his victory of July 15, 1966, as a Pyrrhic one, indeed, if he is required to mitigate in keeping with the general rule.

While recognizing the well-established rule that civilian earnings must be "set off" in mitigation of the amount otherwise due plaintiff (see Motto v. United States, 175 Ct.Cl. 862, 360 F.2d 643 (1966), and cases cited therein), plaintiff asserts the rule should not apply here. His contention is that mitigation of damages is an equitable doctrine; that in seeking the equity of mitigation, defendant must do equity; and that by its continued refusal to treat plaintiff equitably in accordance with this court's decision, defendant has forfeited all right to "setoff."

Despite its superficial appeal, this argument has no merit. In cases where defendant has treated a serviceman much more shabbily and inequitably than here, the court has nonetheless required mitigation by "setoff" of his civilian earnings. See, for example, Egan v. United States, 158 F.Supp. 377, 141 Ct.Cl. 1 (1958), which the court described as "an unusual case of mistaken identity and almost incredible negligence" by defendant in its illegal discharge of an officer in the Marine Corps. 158 F.Supp. 377, 141 Ct.Cl. at 3. Nonetheless, mitigation through deduction of civilian earnings was required. 158 F. Supp. 377, 141 Ct.Cl. at 27. See, also, Gearinger v. United States, 412 F.2d 862, 867, 188 Ct.Cl. 512, 523 (1969).

Accordingly, plaintiff's civilian earnings must be "set off" in mitigation of the amount otherwise due plaintiff, and since the proof shows that his "civilian earnings exceed the amount of entitlement, the latter is * * * obliterated." Conn v. United States, 407 F.2d 879, 880, 187 Ct.Cl. 319, 321 (1969).

If plaintiff is not entitled to basic pay and allowances, without offset for civilian compensation, he then alternatively contends that from July 16, 1966, to the date of judgment herein, his recovery should be measured by (a) disability retirement pay at the rate of 60 percent of the basic pay of a major with over 26 years' service, or (b) longevity retired pay at the rate of 60 percent of the basic pay of a master sergeant with such service, less VA compensation, but without other offset.¹

Plaintiff's alternate contention (a) need not detain us. He frankly concedes the absence of any request for Secretarial determination of his unfitness for duty as a master sergeant on July 15, 1966, and agrees that normally this court will not "undertake to determine who is fit or unfit to serve in the military forces." Wales v. United States, 130 F.Supp. 900, 132 Ct.Cl. 765, 769 (1955). Therefore, as defendant contends, plaintiff's judicial claim for disability retirement as a master sergeant has not yet accrued. See Friedman v. United States, 310 F.2d 381, 396, 159 Ct.Cl. 1, 24 (1962), cert. denied sub nom. Lipp v. United States, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963).

With respect, however, to plaintiff's alternate contention (b), it is my opinion that he is entitled to recover longevity retired pay as computed in finding 14 below. In its opinion of July 15, 1966, the court said at 176 Ct.Cl. 1110:

Hence, it is clear that in the present case the court will not lend its support to the Army\'s rejection of plaintiff\'s reenlistment attempt in the face of his clear entitlement thereto. Rather, it will regard that as done which ought to have been done and will treat plaintiff as having been a reenlisted master sergeant in the Army from June 14, 1949.

In its brief defendant notes its acceptance of the court's opinion that plaintiff can be considered as having remained on active duty on June 14, 1949, under an indefinite term of enlistment.² Defendant goes on to say, however, that it can find no decision wherein, under the fiction of continuing active duty, a former serviceman has been credited by the court with active duty credits for retirement purposes.

However, in a recent decision, the court has done just that. Gearinger v. United States, supra. There, the court was called upon to determine, inter alia, the amount of recovery due the estate of a deceased Naval officer. In a prior decision the court had held that he had been illegally discharged from the Navy as a result of a court-material conviction which was vitiated by a significant constitutional defect, and returned the case to the trial commissioner for computation of the amount due from defendant. Shaw v. United States, 357 F.2d 949, 174 Ct.Cl. 899 (1966). The court concluded not only that he was entitled to recover active duty pay and allowances to the date of his eligibility for retirement (less his civilian earnings, however) but also was entitled to recover retired pay from the date he would normally have retired to the date of his death. See Gearinger, supra, 412 F.2d 866 (ftn. 8), 867, 188 Ct.Cl. 518 (ftn. 8), 523.

While the Shaw litigation involved an illegal discharge, the principles described above would seem to apply equally to a case where, as here, the serviceman's application for reenlistment has been illegally rejected. By its very nature, retirement pay should not be subject to the mitigation rule previously discussed.³ Accordingly, plaintiff is entitled...