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Malman v. United States.

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.


decided: May 29, 1953.

MALMAN
v.
UNITED STATES.

Author: Frank

Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

In our former opinion we said that, treating the United States as an "ordinary person," it had a right of set-off, based on its claims against plaintiff's client (Trimore), and that that set-off was superior to plaintiff's claim as his client's assignee. On rehearing, plaintiff directs us to New York decisions which, he asserts, hold that the lawyer's statutory lien ranks ahead of such a right of set-off of an "ordinary person."*fn1 We shall assume, without discussion, (1) that such is the New York ruling and (2) that such a ruling, involving "substantive rights," will ordinarily be applied in suits in the federal courts.*fn2

Here, however, the suit is not against an ordinary person but against the United States. Consequently, under the doctrine of sovereign immunity,*fn3 the suit cannot be maintained unless the United States has explicitly consented. The consent on which plaintiff here must rely is contained in the Tucker Act.*fn4 That Act unlike the later Tort Claims Act,*fn5 does not provide that, in general, the United States is to be dealt with as if it were a "private person." Furthermore, the Supreme Court has construed the Tucker Act in a manner most ungenerous to "private persons."*fn6 The Tucker Act's consent is coupled with the government's right of set-off and counterclaim.*fn7 And this Court has already recognized "the general policy of the Set-Off Act [31 U.S.C.A. ยง 227] that claims against the United States are always to be subject to set-off."*fn8 We think that New York, by its lawyer-lien statute, could not enlarge the scope of the consent given by the Tucker Act. Accordingly we hold that plaintiff, suing as assignee of Trimore's claim - a claim on which Trimore could not have maintained a suit except with the government's consent - is subject to the government's set-off against Trimore.

Petition denied.


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