United States v. Robert W. Agnew

Defendant appeals from a judgment entered by the United States District Court for the Central District of California. The questions presented are whether the District Court erred in (1) dismissing defendant’s counterclaim (incorrectly designated as a cross-complaint) ; (2) granting plaintiff’s motion for summary judgment; and (3) entering judgment in favor of plaintiff.

The United States cannot be sued without its consent. The filing of a suit in the name of the United States does not amount to a waiver of sovereign immunity subjecting the United States to an affirmative adverse judgment on a counterclaim filed by the defendant. Although a counterclaim may be asserted against a sovereign by way of set off or recoupment to defeat or diminish the sovereign’s recovery, no affirmative relief may be given against a sovereign in the absence of consent.

In this case, the United States did not consent to the counterclaim and the District Court was correct in granting plaintiff’s motion dismissing the defendant’s counterclaim and granting to defendant the right to present evidence of set off up to the amount of plaintiff’s claim.

Defendant in his answer admits that on or about May 10,…