The opinion of the court was delivered by: ZAVATT
The complaint in this action alleges that on September 29, 1958 the Government filed a libel of information against certain real property; that subsequently the defendants agreed with the plaintiff and others to purchase the property from the owner; that defendants subsequently breached the contract; that as a result of such breach the mortgagees foreclosed their mortgage on the property and the res of plaintiff's forfeiture action was lost; that as a result the Government has suffered damage in the sum of $ 9,000. The answer of defendant Carey Terminal Corporation sets forth some 17 defenses, and, in addition, asserts a counterclaim against the Government in the amount of $ 10,000, allegedly based upon plaintiff's breach of the agreement to sell said property to the defendant in that it was not able to convey a good and marketable title.
The Government now moves pursuant to Rule 12(b)(1), (2) and (6) of the Rules of Civil Procedure, 28 U.S.C.A., to dismiss the defendant's counterclaim on the ground that this court lacks jurisdiction. Plaintiff contends that the Tucker Act, 28 U.S.C. 1346(a)(2), which provides that:
'(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
'(2) Any other civil action or claim against the United States, not exceeding $ 10,000 in amount, founded * * * upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.'
authorized only original actions on the subjects mentioned therein. The defendant contends that the Tucker Act waiver of sovereign immunity extends to counterclaims as well as to original actions. If, however, the court orders dismissal of its counterclaim, the defendant seeks leave to amend its answer, pursuant to Rule 15 of the Federal Rules of Civil Procedure, so as to assert its claim against the Government as a set-off.
It is fundamental, of course, that without statutory consent no suit may be brought against the United States. Where suits against the United States are authorized they are allowed only in the designated forum and only to the extent that the United States has consented to be sued. These limitations apply to counterclaims as well as to original suits. Thus the United States does not, merely by filing its complaint, consent to be sued on a counterclaim based upon a cause of action on which it had not otherwise given its consent to be sued. United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888 (1940).
The counterclaim in the instant case is not authorized under 28 U.S.C. § 2406,
which deals only with credits against the United States since the defendant here seeks not a credit against the claim of the United States but recovery of an affirmative judgment. United States v. Shaw, supra. For the same reason, it may not be asserted as matter of recoupment. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894 (1940); United States v. Wessel, Duval & Co., 115 F.Supp. 678 (S.D.N.Y.1953); United States v. Lashlee, 105 F.Supp. 184 (W.D.Ark.1952); see Note, 50 Colum.L.Rev. 505, 509-10 (1950).
In this Circuit the rule appears to have been firmly established that district courts are without jurisdiction over counterclaims against the United States on matters concerning which the defendant might have brought an original action under the Tucker Act. This doctrine was originally expressed in United States v. Nipissing Mines Co., 206 F. 431 (2d Cir.1913), in which the court stated:
'The affirmative judgment against the United States upon the counter claim cannot, however, be permitted to stand. * * * in our opinion, the Tucker Act of 1887 which gives the District Courts jurisdiction over certain suits against the United States, is not broad enough to permit the recovery of demands upon counter claims. We think that that statute refers to original suits and prescribes procedure inconsistent with its use as the basis of a counter claim.' (206 F. at 434).
A more detailed statement of the basis of this view was given in United States v. Wissahickon Tool Works, 84 F.Supp. 896 (S.D.N.Y.1949), aff'd 200 F.2d 936, 939 (2d Cir.1952):
'The only statute concerning the jurisdiction of the District Courts to entertain counterclaims affecting the United States is 28 U.S.C.A. § 1346, which defines the jurisdiction of the District Courts in actions against the United States. Subdivision (c) of that section provides:
'The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section.'
'There is no reciprocal provision authorizing counterclaims against the United States in actions in which the United States is plaintiff, and it appears to be settled that although a claim may be of such a character that an original suit might be brought on it against the United States, the provisions authorizing such a suit are not broad enough to authorize the assertion of the claim as a counterclaim in so far as it seeks to recover an affirmative judgment against the United States. United States v. Nipissing Mines Co., 2 Cir., 206 F. 431; see United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888; United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894; United States, for use of Mutual Mfg. Co. v. Biggs, D.C., 46 F.Supp. 8; 3 Moore's Federal Practice § 13.29. The motions to strike the counterclaims are to that extent granted.'
Other reasons for the interpretation given 28 U.S.C. § 1346(a)(2) in this Circuit have also been advanced. In United States v. Double End Mfg. Co., 114 F.Supp. 750 (S.D.N.Y.1953) the court found support for its position in United States v. Shaw, supra, in which ...