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Gleason v. United States

decided: April 20, 1972.


Hastie and Rosenn, Circuit Judges, and McCune, District Judge.

Author: Mccune


McCUNE, District Judge.

This is a personal injury action against the United States and various private defendants. Jurisdiction of the claim against the United States is based on The Federal Torts Claims Act, 28 U.S.C.A., § 1346(b). Jurisdiction of the private defendants is based on diversity, 28 U.S.C.A., § 1332. In the court below all defendants moved for summary judgment alleging that the applicable statutes of limitation, 28 U.S.C.A., § 2401(b)*fn1 as to the United States, and N.J.S.A. 2A:14-2*fn2 as to the private defendants had run. Defendants' motions were granted and judgment entered against plaintiffs. It is from this judgment that plaintiffs appeal.

This suit was filed August 14, 1968. The incident purportedly causing injury to the plaintiff Edward Gleason and perhaps the other plaintiffs occurred on January 8, 1963. At that time all plaintiffs were employed by Eazor Express, Inc., at its Jersey City, New Jersey terminal. Plaintiff Gleason on that day lifted from a truck, which it was his duty to unload, a box which was leaking. It was later determined that the liquid which was leaking was radio-active material, a contaminated plutonium, shipped by the Atomic Energy Commission to Brookhaven by Eazor Express. The other plaintiffs had not handled the box but had been nearby.

When the exposure of Gleason, and the other plaintiffs, came to light, the Atomic Energy Commission arranged for all of them to be examined at New York University Hospital. The examinations conducted January 23, 1963 revealed no discernable injury to any of the plaintiffs but they were told that injury might appear in from five to eight years. The plaintiffs then sought legal advice although they were not suffering from any injury.

On December 17, 1964, the plaintiffs filed petitions for Workmen's Compensation with the New Jersey Department of Labor and Industry. Eazor Express, Inc., the employer, was the respondent in each case. Each sworn petition alleged that on January 8, 1963, the petitioner had been exposed to chemicals and radiation and as a consequence had suffered injury. No action has ever been taken on these petitions. At the time they were filed, we are told, none of the plaintiffs could point to a discernable injury.

Gleason developed a fibroma in his left hand in December of 1966 which was intermittently treated until February 16, 1968, when his now malignant left hand, shoulder and arm were amputated. The other plaintiffs have not, to this time, shown any ill effects from the radiation. Gleason contends in a deposition that he had no notice of malignancy or its causal connection to the exposure until February 16, 1968, when the amputation was advised.

Gleason and the other plaintiffs filed complaints in the Superior Court of New Jersey on August 14, 1968. The United States removed the case to the United States District Court which, we repeat, entered summary judgment for all defendants holding that the applicable statutes of limitation had run. The procedure followed by the plaintiffs confronts us with a jurisdictional problem which has not been briefed or argued but which nevertheless requires dismissal of the complaints as to the United States for the reasons which follow:

Tort actions against the United States must be brought under the Federal Tort Claims Act, 28 U.S.C.A., § 1346(b) and §§ 2671, et seq. There must be compliance with the act before a court can take jurisdiction. Although Congress has waived the government's immunity from suit, that waiver exists only if the aggrieved person complies with the terms of the sovereign's consent. Section 1346(b) in part, provides:

"(b) Subject to the provisions of chapter 171 of this title [28 U.S.C.A. §§ 2671-2680], the district courts, . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C.A., § 1346(b).

Since the consent to suit does not extend to suits brought against the United States in courts of the several states, the New Jersey court was from the inception of this suit without jurisdiction. The action of the United States in removing the case to the federal district court did not cure the defect. The effect of removal on jurisdictional defects was considered in Lambert Run Coal Co. v. Baltimore & Ohio Railroad Co., 258 U.S. 377, 42 S. Ct. 349, 66 L. Ed. 671 (1922):

"As the state court was without jurisdiction over either the subject-matter or the United States, the District Court could not acquire jurisdiction over them by the removal. The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction." 258 U.S. 377 at 379, 42 S. Ct. at 351.

This rule was reaffirmed in Minnesota v. United States, 305 U.S. 382 at 389, 59 S. Ct. 292, 83 L. Ed. 235 (1939) where the court explicitly held that removal at the behest of the United States Attorney did not cure a jurisdictional deficiency. For recent adherence to the rule in this Circuit see, Stapleton v. $2,438,110, 454 F.2d 1210, (3d Cir. 1972) and A. J. Curtis & Co. v. D. W. Falls, Inc., 305 F.2d 811 (3d Cir. 1962). We conclude that the instant case falls within the rule of the Lambert and Minnesota cases and the New Jersey court had no jurisdiction over the United States. The federal district ...

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