
    No. 364-79C.
    May 9, 1980
    Henry Bock, et al.
    
      J. Byron Holcomb, attorney of record, for plaintiffs.
    
      Glenn E. Harris, with whom was Assistant Attorney General Alice Daniel, for defendant.
   Military pay; nondisability retired pay; entitlement to retired pay; service creditable; reserve officers; class action; res judicata. — On May 9, the court entered the following order:

Before Friedman, Chief Judge, Kunzig and Bennett, Judges.

This case is before the court on defendant’s motion to dismiss. Plaintiffs are seeking military retirement pay pursuant to their years of service in the Navy reserve. Defendant contends that plaintiffs are members of the class of plaintiffs which sued for such retirement pay but was unsuccessful in Alexander v. Fioto, 430 U.S. 634 (1977), and maintains that plaintiffs are barred by res judicata from pursuing the instant case. Plaintiffs argue that their cause of action is based on a statute different from the one unsuccessfully challenged in Alexander and contend that they are therefore not barred by res judicata. For the reasons noted below, we find that plaintiffs are properly to be considered members of the unsuccessful plaintiff class in Alexander and correspondingly conclude that the instant claim is barred.

Chapter 67 of Title 10, United States Code, contains the provisions governing retirement based on service in the Reserves or National Guard. In particular, 10 U.S.C. § 1331 authorizes retirement pay for reservists who have accumulated 20 years of eligible service and are sixty years of age. Plaintiffs are over the age of 60 and have attained at least 20 years of service in the Navy. However, section 1331(c) contains important language limiting the eligibility to retirement pay as follows:

(c) No person who, before August 16, 1945, was a Reserve of an armed force, ... is eligible for retired pay under this chapter, unless he performed active duty after April 5, 1917, and before November 12, 1918, or after September 8, 1940, and before January 1, 1947, or unless he performed active duty (other than for training) after June 26, 1950, and before July 28,1953.

Essentially, section 1331(c) makes ineligible for retirement pay those who were in the Reserves before World War II unless they performed active duty during wartime. Bock and his fellow plaintiffs performed no such duty, and accordingly the Government denied them retirement pay, despite their service of more than 20 years. The instant suit seeks this retirement benefit.

The Government has moved to dismiss, relying primarily on the case of Alexander v. Fioto, 430 U.S. 634 (1977). Alexander was a class action suit in which a Guardsman sued to challenge the constitutionality of the section 1331(c) provision denying military retirement to those over sixty who had served the requisite 20 years but who had not served during wartime. The Supreme Court upheld the validity of the section 1331(c) exclusion of those who had no wartime service, indicating that Congress, in enacting the provision, was exercising a constitutional power to deny benefits to those with pre-World War II service who did not also serve on active duty during wartime. The Court reasoned that section 1331(c) was validly enacted as "an inducement to qualified personnel to remain active in the Reserves in order to maintain a cadre of trained soldiers for use in active duty if the need should arise.” 430 U.S. at 639.

The three-judge District Court sitting in the Eastern District of New York, which originally heard the Alexander case, certified the class of plaintiffs as follows:

. . . persons at least 60 years of age who have performed 20 years of service computed under 10 U.S.C. § 1332 since August 16,1945 and otherwise are entitled to Retired Pay for Non-Regular Military Service, except that before August 16, 1945, they were a Reserve of an armed force or a member of the Army without component and did not perform active duty after April 15, 1917 but before November 12,1918, or after September 8,1940 and before January 1, 1947, or after June 26, 1950 but before July 28, 1953, and therefore were disqualified from Retired Pay Benefits by virtue of 10 U.S.C. § 1331(c).

Defendant in the instant case maintains that plaintiffs meet all the requirements of the class in the Alexander case and that they are therefore bound by the judgment upholding the section 1331(c) exclusion from retirement pay eligibility for persons situated like them.

In opposition, plaintiffs do not put forth many of the more traditional objections heard from those adversely affected by a class action judgment, i.e. inadequate representation, no adequate notice. Instead, they insist that their claim arises from a different section in Title 10 and is therefore not within the ambit of the judgment in Alexander.

The provision under which plaintiffs attempt to base their cause of action is 10 U.S.C. § 1406 (1976). That section states that after one has been granted retirement pay, or "has been notified in accordance with section 1331(d) of this title that he has completed the years of service required for eligibility, . . .” such eligibility for retired pay "may not be denied or revoked on the basis of any error, miscalculation, misinformation or administrative determination of years of service. . . .” (Section 1331(d) states that service secretaries are to notify reservists in writing when they have served the requisite 20 years of service.)

Plaintiffs received notification that they had served the requisite 20 years. They claim that receipt of such notice sets them apart from the class bound by the Alexander judgment, since they are suing under section 1406 (having received notification) while the plaintiff class in Alexander was suing under, section 1331 itself.

We find no merit, however, in plaintiffs’ attempted distinction. While they did indeed receive notification that they had served 20 years, section 1406 operates to estop the Government from denying eligibility only for error in the "administrative determination of years of service.” It does not prevent the Government from making determinations about the quality of that service, i.e., was an appropriate portion of such service during a period of wartime. The language of section 1406 on its face is inapplicable to plaintiffs’ situation, and accordingly it cannot serve as a basis for their claim to retirement pay in the instant action.

Having determined that plaintiffs’ action cannot be considered based on section 1406, we agree with defendant that the actual basis for plaintiffs’ claim for money from the Government is section 1331 and its provisions for retirement pay. Since plaintiffs are ineligible for such retirement pay by virtue of section 1331(c), and since they were members of the class of plaintiffs in the Supreme Court case challenging the validity of that section, they are barred by res judicata from challenging it here.

Accordingly, it is ordered, after careful consideration of the parties’ submissions but without oral argument, that defendant’s motion to dismiss is granted. The petition is dismissed.

Bennett, Judge,

concurring in part and dissenting in part:

I respectfully disagree with the reasoning in the court’s order in this case, although I concur in the result. I conclude that plaintiffs are not barred by res judicata but that they have failed to state a claim upon which relief can be granted. Therefore, I would grant defendant’s motion to dismiss on this second ground.

The court correctly concludes that 10 U.S.C. § 1406 is inapplicable to plaintiffs’ situation. Sections 1406 and 1331(d) of Title 10 of the United States Code were both enacted by Pub. L. No. 89-652, 80 Stat. 902 (1966). Section 1331(d) requires the Government to calculate a reservist’s years of service and to notify the reservist when he becomes eligible for retired pay. Section 1406 was intended to protect a reservist who, in reliance on the Government’s computation of the years of service, has left military service before his entitlement to retired pay would vest under section 1331. See S. Rep. No. 1693, 89th Cong., 2d Sess. (1966), reprinted in [1966] U.S. CODE CONG. & AD. NEWS 3268, 3269. In contrast, plaintiffs’ ineligibility for retired pay is in no way due to any reliance by them on the notice of eligibility allegedly sent to them by the Government. Plaintiffs are not eligible for retired pay because of their lack of active duty during wartime, and their failure to meet this requirement could not have been remedied at the time that notice of eligibility was sent to them. I therefore agree that plaintiffs cannot prevail on the merits of their claim.

Plaintiffs’ failure to state a claim within the scope of section 1406 has no bearing on the question of res judicata. See, for example, Forrest Village Apartments, Inc. v. United States, 178 Ct. Cl. 490, 371 F.2d 500 (1967). In effect, the court is holding that because plaintiffs must lose on the merits of their claim under section 1406, their claim cannot be read as being made under that section hut must be read as being made under some other section, i.e., section 1331. It is improper for the court to agree with defendant’s construction that the actual basis for plaintiffs’ claim is section 1331. Plaintiffs’ petition states that they are suing under section 1406 (as well as other sections), and plaintiffs reaffirm this in their opposition to defendant’s motion to dismiss. It is certainly plaintiffs’ prerogative to state the basis for their suit even if they cannot prevail upon such basis.

Once the illogical grounds offered by the court for applying res judicata are dismissed, the application of res judicata hinges upon whether section 1406 creates a cause of action distinct from section 1331. It is well established that a later suit between the same parties is not barred by res judicata if it involves a different cause of action. Commissioner v. Sunnen, 333 U.S. 591, 597-98 (1948); Forrest Village Apartments, Inc. v. United States, supra, 178 Ct. Cl. at 495, 371 F.2d at 502-03.

Defendant argues that only section 1331 creates a cause of action while section 1406 merely estops the Government in certain cases with respect to this cause of action. This view of section 1406 is inaccurate because section 1331 creates no rights, no entitlements, and no cause of action for a reservist who does not meet the specific requirements of sections 1331(a) and (c). If, however, that reservist receives a notice within the scope of section 1406, he becomes thereby entitled to retired pay under section 1406 even though no right existed prior to the notice.

There is no simple test as to what constitutes the same claim or cause of action for purposes of res judicata. In the past, this court has considered causes of action to be the same if: (1) the same principles of substantive and procedural law are applicable to both actions; (2) the same right is alleged to be infringed by the same wrong in both actions; (3) the judgment sought in the second action would infringe rights established in the first; (4) the same evidence would support both actions; or (5) the operative facts are the same in both actions. Forrest Village Apartments, Inc. v. United States, supra, 178 Ct. Cl. at 496 n.2, 371 F.2d 503 n.2. More recently, the court has acted in a pragmatic manner, giving weight to such considerations as whether the facts are related in time, space, motivation or the like so as to form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding and usage. Container Transport Int’l, Inc. v. United States, 199 Ct. Cl. 713, 718, 468 F.2d 926, 928-29 (1972).

Regardless of the test applied, I conclude that plaintiffs’ present cause of action differs from the one presented in Alexander v. Fioto, 430 U.S. 634 (1977). The different evidence, operative facts and issues of law applicable to the two causes of action outweigh the similarity of the right which plaintiffs seek to establish in both actions. Because of the complications which could have ensued had plaintiffs sought to raise the section 1406 issue in the class action, the claims under sections 1331 and 1406 cannot be considered as one convenient trial unit. While a different result might possibly be correct if the first suit was not a class action, it would have been difficult although not impossible to litigate the distinct facts and issues relating to section 1406 which almost certainly affected only a few members of the class.

I therefore conclude that plaintiffs are now suing under a new cause of action and are not barred by res judicata. I also disagree with the court’s conclusion in footnote 1 of the order that the decision in Alexander v. Fioto, supra, would dictate the denial of plaintiffs’ claims even if they were not a member of the class action. Although plaintiffs’ claims under section 1406 must be denied, Alexander does not discuss this provision and offers no guidance at all on the question presently before the court. 
      
       Moreover, even if plaintiffs were not members of the class in Alexander, we note that they could not prevail in the instant case, because the Alexander decision nonetheless would dictate denial of their claims.
     