United States District Court, Northern District of Illinois, W.D
February 25, 1953
JOSEPH BEHR & SONS, INC.
The opinion of the court was delivered by: 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.
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