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United States v. Nicolet, Inc.

Citation: 17 ELR 21085
No. No. 85-3060, (E.D. Pa., 12/31/1986) Motion to dismiss counterclaims granted in part

The court holds that a defendant in a cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may bring compulsory counterclaims against the United States pursuant to the Federal Tort Claims Act (FTCA). The court first holds that it lacks jurisdiction under the Tucker Act to hear defendant's counterclaims. Defendant's tort and declaratory relief claims are not authorized, since the Tucker Act authorizes suits only for monetary relief and defendant's claims seeking damages over $10,000 may be brought only in Claims Court. The court holds that defendant's counterclaim seeking declaratory relief is not foreclosed by the Administrative Procedure Act, 5 U.S.C. § 702, which waives the United States' sovereign immunity only for actions seeking nonmonetary relief but does not provide jurisdiction if "any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Both the Tucker Act and the FTCA expressly bar the declaratory relief sought by defendant. The court holds that defendant's declaratory relief claim is also barred by CERCLA, which waives the United States' sovereign immunity only where it may be liable for removal and remedial costs, response costs, and natural resource damages. The court therefore holds that CERCLA bars all counts in defendant's counterclaim except the claim for response costs because they do not fall within the waiver provision of CERCLA § 107(g).

The court holds that defendant's counterclaim in which it seeks recoupment of response costs may proceed to the extent that it constitutes a compulsory counterclaim. The court holds that defendant may bring its tort counterclaims pursuant to the FTCA. These counterclaims are not barred by the FTCA's requirement that claimants first file an administrative claim before the appropriate federal agency. The court holds that defendant's FTCA counterclaims are excused from this requirement if they are compulsory. The court concludes that defendant's counterclaims alleging deprivation of property, trespass, and negligence are compulsory since they arose out of the same transaction and occurrence that gave rise to the United States' cause of action.

[The court's rulings on the United States' motion for reconsideration and motion for a protective order appear at 17 ELR 21088 and 21091.]

Counsel for Plaintiff
Margaret L. Hutchinson, James G. Sheehan, Ass't U.S. Attorneys
601 Market St., Rm. 3310, Philadelphia PA 19106
(215) 597-2556

David E. Street
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3977

Counsel for Defendant
Joseph G. Manta, Joel Schneider
Manta & Welge
1515 Market St, Suite 1818, Philadelphia PA 19102
(215) 564-4388