The opinion of the court was delivered by: FOLLMER
The right to bring an original action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., is specifically limited by 28 U.S.C. § 2401(b) which provides, inter alia:
'(b) A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * * or unless, if it is a claim not exceeding $ 1,000, it is presented in writing to the appropriate Federal agency within two years after such claim accrues * * *. If a claim not exceeding $ 1,000 has been presented in writing to the appropriate Federal agency within that period of time, suit thereon shall not be barred until the expiration of a period of six months after either the date of withdrawal of such claim from the agency or the date of mailing notice by the agency of final disposition of the claim.'
As to counterclaims, Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C., expressly provides:
'(d) Counterclaim Against the United States. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof.'
Rule 13 therefore does not aid the defendant.
The question is whether this is a claim on which the United States has given its statutory consent to be sued.
Where the United States is defendant Congress has provided in 28 U.S.C. § 1346(c) that
'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.'
Conversely, however, where the United States is plaintiff it is provided in 28 U.S.C. § 2406 that
'In an action by the United States against an individual, evidence supporting the defendant's claim for a credit shall not be admitted unless he first proves that such claim has been disallowed, in whole or in part, by the General Accounting Office, or that he has, at the time of the trial, obtained possession of vouchers not previously procurable and has been prevented from presenting such claim to the General Accounting Office by absence from the United States or unavoidable accident.'
In United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 406, 95 L. Ed. 523, where the United States was impleaded as a third-party defendant, the Supreme Court construed the Federal Tort Claims Act as a consent by the Government to be sued for contribution as a joint tort-feasor. The Statute of Limitations was not involved. The Supreme Court said:
A counterclaim is an analogous situation and with the Statute of Limitations not involved, such counterclaims were allowed in United States v. New York City Omnibus Corp., D.C.S.D.N.Y., 128 F.Supp. 86; United States v. Rosati, D.C.N.J., 97 F.Supp. 747; United States v. Vernon Cab Company, D.C.Mass., 125 F.Supp. 335, and United States v. Harms, D.C.Colo., 96 F.Supp. 1022.
We are not here concerned with the problems of recoupment or setoff since defendant could recover on its counterclaim only if the plaintiff lost in the main action. It becomes a separate action for affirmative relief instituted beyond the limitation of time for suit contained in the Federal Tort Claims Act. It was, as Congress had specifically provided in 28 U.S.C. § 2401(b), 'forever barred.' There was no waiver of immunity for a claim so filed and consequently, no jurisdiction to entertain it. In ' Problems Under The Federal Tort Claims Act', 9 F.R.D. 143, 153, Judge Yankwich points out
'The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be ...