754
Opinion of the Court
operate a Maritime Commission vessel. A customs inspector suffered injuries on the vessel that led to his death, and his widow brought a maritime tort action against the private corporation. In defense, respondent contended "that if the judgment against [it] stands, the United States ultimately will have to pay it by reason of provisions of the contract between respondent and the [Maritime] Commission. It is therefore urged that the United States is the real party in interest." Id., at 582. We rejected respondent's argument that petitioner could be deprived of her cause of action by reason of the contract. "Immunity from suit on a cause of action which the law creates cannot be so readily obtained." Id., at 583. Absent congressional action, we would not allow "concessions made by contracting officers of the government" to make such a "basic alteration" in the law. Id., at 584.
We conclude from Brady and New Mexico that the Government cannot use the existence of an obligation to indemnify WBEC to create a federal cause of action for money had and received to recover state taxes paid by WBEC any more than the Roosevelt Steamship Company could use the existence of a right to indemnity from the Government to defeat a claim for recovery. See Brady, supra, at 584. Cf. Farid v. Smith, 850 F. 2d 917, 923 (CA2 1988) (a State's decision to indemnify its public servants does not confer Eleventh Amendment immunity on state officials sued in their personal capacity).
Although the Government does not cite Brady, it does cite two other cases that suggest the lesson of Brady might not apply in an action for money had and received. According to the Government, Bayne v. United States, 93 U. S. 642 (1877), and Gaines v. Miller, 111 U. S. 395 (1884), stand for the proposition that an action for money had and received may "be employed by the United States to recover money from a third party who received federal funds that had been misappropriated by a government agent." Brief for United
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