United States v. Mt. Vernon Memorial Estates, Inc.

No. 76 C 3585 (N.D. Ill. November 13, 1981)

In a suit by the United States to enjoin unauthorized filling of a wetland, the court dismisses defendants' counterclaim on grounds that it is within the exclusive jurisdiction of the Court of Claims. The Tucker Act provides that claims against the United States for more than $10,000 are to be decided by the Court of Claims. Rule 13(a) of the Federal Rules of Civil Procedure, though it provides for ancillary district court jurisdiction over compulsory counterclaims, does not enlarge the court's jurisdiction over counterclaims against the United States, and cannot expand the scope of suit against the United States beyond that to which it has otherwise consented.

Counsel for Plaintiff
Gail C. Ginsberg, Ass't Attorney General
1500 S. Everett McKinley Dirksen Bldg., 219 S. Dearborn St., Chicago IL 60604
(312) 353-6400

Counsel for Defendants
Russell J. Topper
111 W. Washington St., Chicago IL 61820
(312) 726-3001

[12 ELR 20950]

ASPEN, J.:

Memorandum Opinion and Order

By this action the United States of America ("United States") seeks to enjoin defendants, Mt. Vernon Memorial Estates, Inc. ("Mt. Vernon") and John Sexton Sand and Gravel Corp. ("Sexton"), from constructing a sanitary landfill near Lemont, [12 ELR 20951] Illinois, on certain property known as the "Smitty Road Landfill" owned by Mt. Vernon. The United States contends that the Smitty Road Landfill is property subject to the regulatory authority of the Army Corps of Engineers pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1344. The United States further contends that Mt. Vernon failed to obtain a permit from the Army Corps of Engineers prior to engaging in the discharge of dredge and fill material in violation of the Clean Water Act, supra, and requests that Mt. Vernon and Sexton be enjoined from further construction of the landfill.¹ Mt. Vernon and Sexton thereafter alleged in a counterclaim against the United States that the application of the Clean Water Act in the present action constitutes a "taking" of Mt. Vernon's property without just compensation in violation of the Fifth Amendment to the United States Constitution, and they request judgment in excess of $8,000,000. Presently before this Court is the United States' motion to dismiss defendants' counterclaim for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1).

In its motion to dismiss, the United States contends that jurisdiction over claims against the United States for over $10,000 is vested exclusively in the United States Court of Claims and that this Court lacks jurisdiction over the present counterclaim, which seeks judgment against the United States in excess of $8,000,000. For the following reasons, we agree with this contention and thus, defendants' counterclaim will be dismissed.

Section 1491 of 28 U.S.C. vests subject matter jurisdiction over claims against the United States in the United States Court of Claims.² Jurisdiction concurrent with the Court of Claims is vested in the federal district courts by § 1346 of 28 U.S.C. over claims against the United States of the same type articulated in § 1491 of 28 U.S.C., but not exceeding $10,000. As the present counterclaim requests judgment against the United States in excess of $8,000,000, this Court, according to the plain language of the United States Code, lacks subject matter jurisdiction. Mt. Vernon and Sexton concede as much, but argue that the counterclaim falls within the ancillary jurisdiction of this Court.

It is widely recognized that a compulsory counterclaim filed pursuant to FED. R. CIV. P. 13(a) falls whthin the ancillary jurisdiction of a federal district court and does not require an independent jurisdictional ground. Baker v. Gold Seal Liquors, Inc., 417 U.S. 407, 409 n.1, 94 S. Ct. 1504, 1506 n.1, 41 L. Ed. 2d 243, 245 n.1 (1974); Valencia v. Anderson Bros. Ford, 617 F.2d 1278 (7th Cir. 1980); Mayer Paving & Asphalt Co. v. General Dynamics Corp., 486 F.2d 763 (7th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 899, 39 L. Ed. 2d 102 (1974); Great Horizons Development Corp. v. Massachusetts Mutual Life Ins. Co., 457 F. Supp. 1069 (N.D. Ind. 1978), aff'd, 601 F.2d 696 (7th Cir. 1979). However, under the doctrine of sovereign immunity, a counterclaim against the United States, whether compulsory or permissible, cannot be maintained unless it is predicated on a claim to which the United States has given consent to be sued. United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888 (1940); United States v. Levering, 446 F. Supp. 977 (D. Del. 1978); United States v. An Article of Food Consisting of Cartons of Swordfish, 395 F. Supp. 1184 (S.D.N.Y. 1975); 3 MOORE'S FEDERAL PRACTICE P13.28 (2d Ed. 1980); WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1427 (1971). Furthermore, even when the United States consents to be sued, suit may be brought against the government only in designated courts. United States v. Shaw, 309 U.S. 495, 500-01, 60 S. Ct. 659, 84 L. Ed. 888 (1940); United States v. Tse-kesi, 191 F.2d 518 (10th Cir. 1951); 3 MOORE'S FEDERAL PRACTICE P13.28 (2d Ed. 1980).

FED. R. CIV. P. 13(d) expressly reduces the general jurisdictional scope of counterclaims when the counterclaim is asserted against the United States. Rule 13(d) provides that the rules regarding counterclaims "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." Accordingly, the doctrine of ancillary jurisdiction cannot be held to expand the scope of suit against the United States beyond that to which it has otherwise consented. United States v. Longo, 464 F.2d 913 (6th Cir. 1972); United States v. Taylor, 342 F. Supp. 715 (D. Kan. 1972); WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1427 (1971).

Mt. Vernon and Sexton argue that regardless of the lack of congressional consent to maintenance of their counterclaim in this Court, the United States may be deemed to have implicitly waived its sovereign immunity by its institution of suit in this Court. The courts, however, have generally rejected this theory of implied waiver of sovereign immunity except in narrowly-defined circumstances not present in the case at bar.³ Federal Savings and Loan Insurance Corp. v. Quinn, 419 F.2d 1014 (7th Cir. 1969); Waylyn Corp. v. United States, 231 F.2d 544 (1st Cir. 1956), cert. denied, 352 U.S. 827, 77 S. Ct. 40, 1 L. Ed. 2d 49 (1956).

Accordingly, for the reasons stated herein, the United States' motion to dismiss defendants' counterclaim is granted. It is so ordered.

1. Federal subject matter jurisdiction over this action is grounded in § 1345 of 28 U.S.C. and §§ 1311, 1319, and 1344 of 33 U.S.C.

2. 28 U.S.C. § 1491, codifying § 1 of the Tucker Act of March 3, 1887, ch. 359, 24 Stat. 505, which waived sovereign immunity and enabled suits against the government of the United States, vests jurisdiction in the Court of Claims "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

3. See generally WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1427 nn.1, 5, 6 and accompanying text (1971); 3 MOORE'S FEDERAL PRACTICE P13.28 nn.9-11 and accompanying text (2d Ed. 1980).