# Shippen v. United States

> United States Court of Claims · June 17, 1981 · 654 F.2d 45

URL: https://www.frixlaw.com/law-library/cases/8597507

## Case

- **Full name:** BEN R. SHIPPEN d/b/a ASSURANCE COMPANY v. United States
- **Court:** United States Court of Claims
- **Decided:** June 17, 1981
- **Citations:** 654 F.2d 45; 28 Cont. Cas. Fed. 81,495; 228 Ct. Cl. 137; 24 Wage & Hour Cas. (BNA) 1432; 1981 U.S. Ct. Cl. LEXIS 330
- **Precedential status:** Published
- **Opinion:** Dissent by Kashiwa
- **Judges:** Friedman, Kashiwa, Nichols
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8597507

## How later opinions describe it (automated extraction)

- holding that defendant may not seek declarations via its counterclaims

## Opinion text

KASHIWA, Judge,
dissenting:
The majority, it seems to me, decides this case by simply fastening a label of "declaratory judgment” on the second counterclaim. Since United States v. King, 395 U. S. 1 (1969), speaks ill of declaratory judgments when sought by plaintiffs against the sovereign, it must follow, says the majority, that we cannot entertain a "declaratory judgment” when sought by the Government. Yet the sovereign is immune from suit save its consent, e.g., United States v. *144 Sherwood, 312 U. S. 584, 586 (1941), and even a cursory reading discloses that proposition to be the sine qua non of the King decision. Plaintiff Shippen is no sovereign, and I perceive little difficulty in reading the expansive language of 28 U.S.C. § 1503 differently than the Supreme Court read the 28 U.S.C. § 1491 consent to suit in King . Those are, after all, different sections, applicable to different parties.
The proper analysis, I think, is that the Government here has a "demand” within the meaning of 28 U.S.C. § 1503 . Without benefit of citation, the majority asserts that this statutory term must be limited to claims for money. Nowhere, however, does the legislative history of 28 U.S.C. § 1503 or its predecessors (including the first such provision, § 3 of the Act of March 3, 1863, ch. 92, 12 Stat. 765 ) indicate that the term "demand” is to be so narrowly read. Lord Coke wrote in his Institutes (a source with which Congress in 1863 was undoubtedly familiar) that "demand” was among the most comprehensive terms in the law. American courts have long accorded the term a similar scope. E.g., Helliker v. Bram, 277 S.W.2d 556, 558 (Mo. 1955); Burns v. Drake, 157 Kan. 367, 371 , 139 P.2d 386, 389 (1943); Talley v. Brown, 146 Iowa 360, 363 , 125 N. W. 248 , 249 (1910); Henry v. Board of County Commissioners, 41 Colo. 267, 269 , 92 P. 697 , 697 (1907); In re Denny, 2 Hill [N.Y.] 220, 223 (1842); White v. Hunt, 6 N.J.L. 415, 417 (1798). Congress, had it chosen to limit the broad term "demand” in the manner the majority now does, could have modified "demand” by the addition of "monetary” or by the substitution of the less comprehensive term "debt,” see Sands v. Codwise, 4 Am. Dec. 305 , 318 (N.Y. 1808); Henry v. Board, supra. Yet neither was done.
Leaving aside these considerations of statutory construction, 28 U.S.C. § 1503 is a condition limiting the waiver of immunity. That is, a plaintiff must expose himself to the counteractions specified therein to bring suit under 28 U.S.C. § 1491 . McElrath v. United States, 102 U. S. 426, 440 (1880); Frantz Equipment Co. v. United States, 122 Ct. Cl. 622, 631 , 105 F. Supp. 490, 496 (1952). Conditions on the waiver must be strictly construed in the sovereign’s favor, see, e.g., Sherwood, supra, so that the waiver itself is read narrowly. Not surprisingly, 28 U.S.C. § 1503 has long been *145 read expansively to encompass all controversies between the sovereign and plaintiff. Cherry Cotton Mills, Inc. v. United States, 327 U. S. 536, 539 (1946); Jankowitz v. United States, 209 Ct. Cl. 489 , 505 n.10, 533 F. 2d 538 , 547 n.10 (1976); Scott v. United States, 173 Ct. Cl. 650, 659 , 354 F. 2d 292, 297 (1965); Erie Basin Metal Products, Inc. v. United States, 123 Ct. Cl. 433, 437-438 , 107 F. Supp. 588, 590 (1952); Rodney Milling Co. v. United States, 111 Ct. Cl. 625, 642 , 75 F. Supp. 707, 717 (1948). Thus, the Government may counterclaim in tort, see Tennessee Mechanical Institute, Inc. v. United States, 145 Ct. Cl. 344, 350-351 (1959), or while an identical Government claim is pending in another court, see Universal Fiberglass Corp. v. United States, 210 Ct. Cl. 206, 218-219 , 537 F. 2d 393, 399 (1976), even though 28 U.S.C. §§ 1491 and 1500, respectively, preclude plaintiffs from doing the same. In short, we have heretofore recognized that we as a court
* * * are not at liberty, by interpretation, to limit or restrict the plain and broad terms of the statute relating to the right of the Government to assert counterclaims and to the jurisdiction of this court to hear and determine such claims. * * * [Frantz Equipment Co., 122 Ct. Cl. at 630 , 105 F. Supp. at 495 .]
I would, therefore, allow the Government to maintain its second counterclaim. That course would require this ongoing dispute to be resolved in a single forum, rather than piecemeal in scattered fora as the majority opinion may yet require. See, e.g., Cherry Cotton Mills, supra; Jankowitz, supra; cf. Southern Construction Co. v. Pickard, 371 U. S. 57, 60 (1962). (Fed. R. Civ. P. 13(a), which requires certain counterclaims to be asserted or lost, is designed to prevent multiplicity of actions and to achieve resolution of all related disputes in a single lawsuit).
To repeat, 28 U.S.C. § 1503 is not 28 U.S.C. § 1491 . I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8597507. Public record. Not legal advice.