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207.

Counterclaims Against the United States

A counterclaim cannot be asserted in the context of a suit brought by the United States in a federal court, absent express statutory consent.[FN1] See Marcus Garvey Square, Inc. v. Winston Burnett Construction Co. of California, Inc., 595 F.2d 1126, 1130 (9th Cir. 1979); United States v. Longo, 464 F.2d 913 (8th Cir. 1972); Lacy v. United States ex rel. and for Use of Tennessee Valley Authority, 216 F.2d 223 (5th Cir. 1954); United States v. Silverton, 200 F.2d 824 (1st Cir. 1952); see Fed. R. Civ. P. 13(d). A counterclaim cannot be asserted except in the manner and in the court in which the United States has consented to be sued. Oyster Shell Products Corp. v. United States, 197 F.2d 1022 (5th Cir.), cert. denied, 344 U.S. 885 (1952). A statute permitting suit against an agency or its head does not necessarily authorize a counterclaim in a suit brought by the government in the name of the United States, unless there is a specific waiver of sovereign immunity. Waylyn Corp. v. United States, 231 F.2d 544 (1st Cir.), cert. denied, 352 U.S. 827 (1956). This immunity cannot be waived by any government official. Munro v. United States, supra, at 41; United States v. U.S. Fidelity Co., 309 U.S. 506, 514-15 (1940); Jackson v. Irving Trust Co., 311 U.S. 494, 500 (1941).

FN1. The court in United States v. Shaw, 309 U.S. 495 (1940), ruled that a counterclaim could not be asserted against the United States in a state court. See also United States v. Sherwood, 312 U.S. 584, 586 (1941). The same rule applies in the federal courts in certain circuits. See United States v. Agnew, 423 F.2d 513 (9th Cir. 1970); United States v. Nipissing Mines Co., 206 F. 431 (2d Cir. 1913), cert. denied, 234 U.S. 765 (1914); United States v. Wilson, 523 F. Supp. 874, 901 (N.D. Iowa 1981); United States v. Ameco Electronic Corp., 224 F. Supp. 783 (E.D.N.Y. 1963). Certain other circuits recognize the right of counterclaim against the United States in the federal courts, if there is a specific statutory jurisdictional basis for suit against the United States for the same cause of action. See United States v. Silverton, supra; United States v. 40.60 Acres of Land, 483 F.2d 927, 928 (9th Cir. 1973); United States v. Springfield, 276 F.2d 798 (5th Cir. 1960); Thompson v. United States, 250 F.2d 43 (4th Cir. 1957); Landow v. Carmen, 555 F. Supp. 195, 196 (D. Md. 1983); United States v. Martin, 267 F.2d 764 (10th Cir. 1959).

It should be kept in mind that, if a counterclaim exceeds $10,000 in amount, jurisdiction in a district court would not be conferred by the Tucker Act, 28 U.S.C. § 1346(a)(2). Thus, unless some other statutory basis for jurisdiction exists, such a counterclaim must be dismissed. See, e.g., United States v. Aleutian Homes, Inc., 193 F. Supp. 571 (D. Alaska 1961).