United States v. Joseph Behr & Sons, 110 F. Supp. 286 (N.D. Ill. 1953)

Otto Kerner, Jr., U. S. Atty., Chicago, Ill., for plaintiff.

Miller, Thomas, Hickey & Collins, Rockford, Ill., for defendant.

*287 PERRY, District Judge.

In this cause the United States seeks to recover the sum of $25,350 which is the balance of the price for goods purchased by the defendant corporation through the War Assets Administration. The defendant corporation has filed an amended counterclaim alleging damages in the sum of $50,737.80 for nondelivery of certain items. Defendant prays for judgment against the United States in the sum of $10,000. The plaintiff has moved to dismiss the amended counterclaim.

No suit may be brought against the United States without statutory consent. U. S. v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888. If a suit is brought by the United States against a defendant for an amount allegedly due the United States, it may be properly set up by way of defense in the amount owing him to the extent of such claim. The Court, however, has no jurisdiction to render an affirmative judgment against the United States on a counterclaim. The provision of the Tucker Act, 28 U.S.C.A. § 1346, giving the District Court jurisdiction over certain suits against the United States do not permit the recovery of demands against the United States on counterclaims but refer to original suits and prescribe procedure inconsistent with its use as the basis for a counterclaim. U. S. v. Nipissing Mines Company, 2 Cir., 206 F. 431 and U. S. for use of Mutual Metal Mfg. Co. v. Biggs, D.C., 46 F. Supp. 8.

Accordingly, the amended counterclaim must be dismissed for want of jurisdiction.