United States v. Van Meter

• Decision Date: 07 March 1957
• Docket Number: Civ. No. 7254.
• Citation: 149 F. Supp. 493
• Parties: UNITED STATES of America, Plaintiff, v. John W. VAN METER and Frank Gist, Defendants.
• Court: U.S. District Court — Northern District of California

149 F. Supp. 493

UNITED STATES of America, Plaintiff, v. John W. VAN METER and Frank Gist, Defendants.

Civ. No. 7254.

United States District Court N. D. California, N. D.

March 7, 1957.

Lloyd H. Burke, U. S. Atty., Sacramento, Cal., for plaintiff.

Hill & Hill and Clayton O. Rost, Eureka, Cal., for defendant John W. Van Meter.

HALBERT, District Judge.

In this action plaintiff seeks to recover for the damages to its property resulting from an alleged trespass and the wrongful taking of timber by the defendants. Defendant, Van Meter (hereinafter in this opinion referred to as "defendant"), has filed a counterclaim against plaintiff alleging that the timber was taken in reliance on wilful and negligent misrepresentations by an agent and servant of plaintiff.

Two motions are presently before the Court in this case. Plaintiff has filed a motion to dismiss the counterclaim, and defendant has filed a motion to amend his counterclaim by adding an allegation that the claim has previously been presented to the General Accounting office and the Controller General of the United States and has been denied.

The motion to dismiss presents the question of whether a defendant in an action instituted by the United States may assert a cause of action against the United States by way of counterclaim, when the sovereign immunity of the United States would bar such an action if it were commenced in an independent proceeding. As a general rule, it has been held that the Government's immunity from certain types of claims applies whether the claim is asserted by way of an independent action or by way of a counterclaim. Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Merchants Transfer & Storage Co., 9 Cir., 144 F.2d 324; United States v. Silverton, 1 Cir., 200 F.2d 824; United States v. Patterson, 5 Cir., 206 F.2d 345; Waylyn Corporation v. United States, 1 Cir., 231 F.2d 544; and Mitchell v. Floyd Pappin & Son, D.C., 122 F.Supp. 755. The rule has been paraphrased to mean that no consent to be sued on a counterclaim, based on a cause of action from which it is otherwise immune, can be implied from the Government's act of instituting a suit against the hypothetical counterclaimant. See, e.g., Waylyn Corporation v. United States, supra, 231 F.2d at page 547.

It is well settled that the United States has retained its cloak of immunity from actions based on the wilful or negligent misrepresentations of its agents or servants. 28 U.S.C.A. § 2680(h); Clark v. United States, 9 Cir., 218 F.2d 446; Jones v. United States, 2 Cir., 207 F.2d 563. The counterclaim in this action falls within this prohibited class.

Defendant contends that even though the United States has never consented to be sued on the particular cause of action, which he alleges in his counterclaim, the counterclaim may stand where it is used for the purpose of defeating or diminishing the Government's recovery, and not for the purpose of obtaining affirmative relief against the Government. Though there is language in United States v. Shaw, supra, which indicates that immunity may be waived to the extent that the counterclaim is used only as a "set-off,"¹ the Court in that case later points out that even if the defendant were successful on his counterclaim, "The judgment should be limited to a dismissal of the government's claim". 309 U.S. at page 504, 60 S.Ct. at page 663. As a...