- 95 -
barred any affirmative recovery by the defendant. The District
Court agreed with the defendant and allowed an affirmative
recovery to the extent of $10,000. However, it denied other,
permissive counterclaims sought to be brought by the logger's
surety, but only on the ground that these counterclaims were
brought against the United States not in its capacity as trustee
for the Indian tribes, but in its own capacity, so that they were
unauthorized under Fed. R. Civ. P. 13, because sovereign immunity
operated with respect to these other counterclaims.
The fact that no statute-of-limitations problem figures in
United States v. Timber Access Indus. Co., supra, does not
distinguish it from our case: There, the doctrine of recoupment
was needed to support the defendant's main counterclaim against
the Government's claim of sovereign immunity, whereas in our case
recoupment is needed to support petitioner's defense against the
bar of the statute of limitations. The fact that the defendant
in United States v. Timber Access Indus. Co., supra, could still,
after the decision in the case, bring suit in the Court of Claims
for the balance of its counterclaim means that to limit
40(...continued)
v. Timber Access Indus. Co., 54 F.R.D. 36 (D. Or. 1971), left
open the possibility that the defendant logger could recover the
balance of its counterclaim in the Court of Claims (as it was
then called), 54 F.R.D. at 38-39. The District Court held that
allowing the $10,000 recovery in the District Court would not be
the prohibited splitting of the cause of action.
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