in pursuance thereof.' this requirement is jurisdictional and may not be circumvented by resort to the expedient here adopted by the defendants.
The second affirmative defense, although so designated in the answer, is in fact a counterclaim in which the defendants pray for affirmative relief, to wit, the rescission of the renegotiation agreement on the ground of 'mutuality of mistake.' The rescission or modification of the agreement is prohibited by subsection (c)(4) of Section 1191 of the Act, supra, except 'upon a showing of fraud or malfeasance or a willful misrepresentation of a material fact.'
The pertinent provisions of the cited subsection read as follows: 'For the purposes of this section the Board may make final or other agreements with a contractor * * * for the elimination of excessive profits and for the discharge of any liability for excessive profits under this section. * * *. Any such agreement shall be conclusive according to its terms; and except upon a showing of fraud or malfeasance or a willful misrepresentation of a material fact, (A) such agreement shall not * * * be reopened as to the matters agreed upon, and shall not be modified by any officer, employee, or agent of the United States, and (B) Such Agreement * * * Shall Not Be Annulled, Modified, Set Aside, Or Disregarded In Any Suit, Action, Or Proceeding.' (Emphasis by the Court).
This provision is consistent with the generally recognized doctrine of sovereign immunity which prohibits suits against the United States in the absence of a statutory waiver. The subsection, and particularly subdivision (B), was clearly intended to prohibit civil actions which have for their object the rescission or modification of renegotiation contracts. The prohibition is consistent with the obvious purpose of the Act.
We are of the opinion, however, that even in the absence of a statutory prohibition the Court is without jurisdiction of the counterclaim. The jurisdiction of the Court under Section 403(c)(2) of the Act, supra, is limited to actions 'on behalf of the United States.' This is likewise true of the jurisdiction of the Court under Section 1345 of Title 28 U.S.C.A. The statutory jurisdiction of the Court cannot be extended by implication to include counterclaims which seek affirmative relief against the United States. It is well established that sovereign immunity extends not only to original claims but also to counterclaims which demand the entry of an affirmative judgment against the sovereign. The district courts are without jurisdiction of such claims in the absence of a waiver of immunity.
The second affirmative defense, regarded as a counterclaim, is defective on its face. It does not contain 'a short and plain statement of the grounds upon which the court's jurisdiction depends,' the jurisdictional statement required by the Federal Rules of Civil Procedure, Rule 8(a)(1), 28 U.S.C.A. The denomination of the counterclaim as a separate defense does not relieve the defendants of this requirement.
The affirmative defenses must be dismissed for the reason hereinabove stated.
There is no genuine issue as to any material fact and the plaintiff is therefore entitled to judgment as a matter of law.
Motion of Defendants
The defendants filed a motion to dismiss the amended complaint on the ground that 'the record now before the Court discloses that there is no cause of action in favor of the plaintiff and against the defendants.' The ground urged in support of the motion is without merit and is therefore dismissed.
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