Friedman v. United States

• Citation: 159 Ct. Cl. 1,310 F.2d 381
• Decision Date: 11 January 1963
• Docket Number: No. 377-60.,377-60.
• Parties: Betty FRIEDMAN, Executrix of the Estate of Joseph Friedman, Deceased, v. The UNITED STATES.
• Court: Court of Federal Claims

159 Ct. Cl. 1, 310 F.2d 381 (1962)

Betty FRIEDMAN, Executrix of the Estate of Joseph Friedman, Deceased, v. The UNITED STATES.

No. 377-60.

United States Court of Claims.

November 7, 1962.

Rehearing Denied January 11, 1963.

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Guy Emery, Washington, D. C., for plaintiff. Emery & Wood, Washington, D. C., were on the briefs.

Charles M. Munnecke, Washington, D. C., with whom was Asst. Atty. Gen., William H. Orrick, Jr., for defendant.

DAVIS, Judge.

The plaintiff is the widow and executrix of Dr. Joseph Friedman who served in the Army on active duty as a medical officer from January 9, 1941, to January 30, 1947. She sues for disability retirement pay alleged to have been arbitrarily denied her husband.

During his service Dr. Friedman suffered a number of periods of serious illness and underwent considerable hospitalization. In 1944-1946 he had a series of boards to canvass his capacity for continued service, the last of which was a Retiring Board at Walter Reed General Hospital which decided on October 25, 1946, that he was not permanently incapacitated for active service, but also recommended that he be placed on a period of temporary limited duty not in excess of six months, with re-examination and reevaluation at the end of that time. This was not done and he was released, at his own request, on January 30, 1947, not for physical disability. The plaintiff claims that in December 1946, before his release, Major Friedman wrote to Walter Reed, in response to an official request that he indicate whether he wished to remain on temporary limited service for six months or be separated at once, asking that he be recalled to active duty at the end of six months from his appearance before the Retiring Board (which had been in October 1946), for the purpose of re-examination and reevaluation at the hospital. What is said to be the decedent's office copies of such an exchange of letters is presented to us. The defendant answers that the files at Walter Reed and in the Adjutant General's Office contain no such correspondence or indication of it. Whether or not Dr. Friedman did make such a request in December 1946, it is clear that after his separation in January 1947 he made no further request of the Army and did nothing further to obtain disability retirement pay at any time during the remainder of his life. He died on October 4, 1958. After his death, his widow applied to the Board for Correction of Military Records on March 18, 1960 for a determination that he had been entitled to disability retired pay when he was released from active duty in January 1947. This application was denied on August 17, 1960. The petition in this court was filed on September 30, 1960. The parties have both moved for summary judgment.

As our statement of the case implies, this is another suit for disability retirement pay in which the first issue is whether the claim is barred by the six-year statute of limitations, 28 U.S.C. § 2501. There are a multitude of cases — past, present, and potential — involving this thorny question. The court's recent ruling in Lipp v. United States, Ct.Cl., 301 F.2d 674, 1962, has been the fulcrum for a broad range of claims and contentions put forth both by plaintiffs and the Government. Briefs in pending cases and motions for rehearing or reconsideration strongly suggest that there are large uncertainties and inconsistencies in our past decisions; they call upon us to reassess the court's general position on the bar of limitations in the field of pay cases. We therefore take the opportunity to spell out in detail, in this case and the related case of Harper v. United States, 310 F.2d 405, also decided this day, the rules we shall now follow and which we believe the court has been following, in the main, in its prior holdings. In the present case, the result of our consideration is that the claim is barred by limitations. In the Harper case, we conclude that the suit is not time-barred.

We discuss first the course of this court's past decisions on the time-bar in pay cases, including the rulings in the disability retirement area. Next we consider afresh the primary contention pressed by the plaintiffs in this and related cases: Does the determination of the Board for Correction of Military Records denying a claim for disability retirement ground a new cause of action upon which the claimant has six years to sue in this court? Finally, we treat the limitations problem as it is presented in this particular case.

I. THE COURSE OF THIS COURT'S DECISIONS ON THE LIMITATIONS BAR IN PAY CASES

We emphasize at the outset that, in canvassing the court's prior decisions, we have been mainly guided by our holdings, as distinguished from dicta and observations not truly part of the rationale of the decisions. Also, because the place of limitations in disability retirement cases becomes clearer when seen as part of the general design of our rulings on that problem in pay cases of all types, we begin with a discussion of the different kinds of pay litigation from the standpoint of the time-bar.

A. The "continuing claim" cases. Over the years, the court's pay cases (military and civilian) concerned with the issue of limitations have often applied the so-called "continuing claim" theory, i. e., periodic pay claims arising more than six years prior to suit are barred, but not those arising within the six-year span even though the administrative refusal to pay the sum claimed may have occurred, or the statute on which the claim is grounded may have been enacted, prior to six years. These were suits for additional pay at a higher grade, or claiming greater compensation (under a statute or regulation) than the claimant was receiving, or seeking special statutory increments or allowances, etc. The important characteristics of all these cases were: (a) Congress had not entrusted an administrative officer or tribunal with the determination of the claimant's eligibility for the particular pay he sought; (b) the cases turned on pure issues of law or on specific issues of fact which the court was to decide for itself (i. e., Congress had not established any administrative tribunal to decide either the factual or the legal questions); and (c) in general the cases called upon the court to resolve sharp and narrow factual issues not demanding judicial evaluation of broad concepts such as "disability" (concepts which involve the weighing of numerous factors and considerations as well as the exercise of expertise and discretion).¹ For such cases — in which no administrative agency has been set up to decide the claim, and the court passes de novo on all issues of law and fact — the "continuing claim" doctrine is wholly appropriate and in accord with the general jurisprudence in this country on the statute of limitations. Under those general principles the cause of action for pay or compensation accrues as soon as the payor fails or refuses to pay what the law (or the contract) requires; there is no other condition precedent to the accrual of the cause of action (such as a factual determination by an executive tribunal or the exhaustion of some special procedure or remedy). And where the payments are to be made periodically, each successive failure to make proper payment gives rise to a new claim upon which suit can be brought. See, generally, Odell v. United States, 135 F.Supp. 539, 134 Ct.Cl. 634; Gordon v. United States, 140 F.Supp. 263, 134 Ct.Cl. 840, 843-844; Levadi v. United States, 146 F.Supp. 455, 137 Ct. Cl. 97, 100, cert. denied, 353 U.S. 917, 77 S.Ct. 665, 1 L.Ed.2d 664.²

B. Cases (other than disability retirement cases) in which the cause of action does not accrue until after a determination entrusted by Congress to an administrative official.

1. Concomitantly with its use of the "continuing claim" theory, the court has applied another principle in a different type of case. That second principle governs situations where Congress has deliberately given an administrative body the function of deciding all or part of the claimant's entitlement, i. e., where Congress has interposed an administrative tribunal between the claimant and the court. In those instances the claim does not accrue until the executive body has acted (if seasonably asked to act) or declines to act. So also where Congress has insisted that a special demand be made or a special application filed. Generally (but not always) these cases involve evaluation of the facts by the agency, some degree of administrative discretion, and some measure of conclusiveness for the administrative determination. There may be acute differences of opinion whether the particular agency has such a special function or is simply akin to the General Accounting Office — see, e. g., Smithmeyer v. United States, 147 U.S. 342, 357-358, 13 S.Ct. 321, 37 L.Ed. 196³ — but once the court has decided that the case falls into the former class it has ruled that the claim accrues, not when the events occurred, but when the agency has rendered or refused its determination.

Like the "continuing claim" theory, this second principle fits with general limitations law which recognizes that in appropriate cases conditions precedent to the accrual of a cause of action can be established by statute, contract, or common law, and that where such a condition precedent has been created the claim does not ripen until the condition is fulfilled. See Sese v. United States, 113 F.Supp. 658, 125 Ct.Cl. 526, 528-530.

2. Earlier cases in this court of this general type are Taylor v. United States, 14 Ct.Cl. 339, 353, aff'd 104 U.S. 216, 221-222, 26 L.Ed. 721 (statute required demand upon the Secretary); Lawton v. United States, 18 Ct. Cl. 595, 601, aff'd 110 U.S. 146, 149, 3 S.Ct. 545, 28 L.Ed. 100 (same); Harrison v. United States, 20 Ct.Cl. 175 (same); Louisiana v. United States, 22 Ct.Cl. 284, 288, aff'd 123 U.S. 32, 37, 8 S.Ct. 17, 31 L.Ed. 69 (General Land Office required to...