cases where the procedure is by separate action and deny it where the same relief is sought in a third-party action. * * *'
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 treated as limitations of the right.'
'And there is no jurisdiction to entertain the action after the expiration of the period within which it might have been brought. This, because we are dealing with a statute of creation and not with a statute of limitation. * * *'
In United States v. W. H. Pollard Company, Inc., D.C.N.D.Cal., 125 F.Supp. 495, 497, it is likewise pointed out that
'Whether the limitation prescribed in the Tort Claims Act be viewed as a condition of the right to sue or as a limitation on the remedy, Congress' waiver of sovereign immunity relating to affirmative relief for tort claims is limited by the terms of that statute. When such relief is sought more than two years after the accident it is sought too late. Anderegg v. U.S., 4 Cir., 1948, 171 F.2d 127; De Bonis v. U.S., D.C.W.D.Pa.1952, 103 F.Supp. 123. It should be noted that a limitation imposed in a statute such as this which creates a right, is normally treated as a limitation on the right. Anderegg v. U.S., supra. The expiration of the time destroys the right. See Judge Yankwich's collection of the cases involving similar Federal statutes in Adams v. Albany, D.C.S.D.Cal.1948, 80 F.Supp. 876, 880.
'Congress has not consented to this counterclaim.
'Consent alone gives jurisdiction to adjudge against a sovereign. Absent that consent, the attempted exercise of judicial power is void.' U.S. v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 514, 60 S. Ct. 653, 657, 84 L. Ed. 894. See Nassau Smelting & Refining Works v. U.S., 1924, 266 U.S. 101, 106, 45 S. Ct. 25, 69 L. Ed. 190.'
I am in accord with United States v. W. H. Pollard Company, Inc., supra, and with United States v. Webb Trucking Co., Inc., D.C.Del., 141 F.Supp. 573, in which Judge Rodney reached the same conclusion and dismissed the counterclaim.
The counterclaim must therefore be dismissed. Order will be entered accordingly.