derivative jurisdiction doctrine as this court has recognized the doctrine is improvidently names and that includes the word jurisdiction which the supreme court itself has called a word of many to many meanings here the similar question there the court held that the form defendant rule twenty eight u s c fourteen forty one b is not jurisdictional but rather a procedural defect and that it thus can be waived the opinion cited three supreme court cases controversy was only satisfied in the defendants how to claim later filed in federal court nonetheless the supreme court concluded that there was no jurisdictional defect because removal proceedings are in the nature of process to bring the parties before the court similarly three man stance to amend and add the individual forestry employees as plaintiffs in which case the government you do your back well the government will again you know substitute in the case will be removed ok and there will be again the danger and i think this is why this appeals before the court is that the trial court could not grant leave to amend in which case the claims against the government will be unjustly excluded from this location and here remember we have two other to see to it's from the plane crash and those cases are currently pending and in discovery in the eastern district of pennsylvania the only reason this case is not is because it was first and my clients did not have the identities of the individual forester employees so that they sued the service ok and so that was the little tweak in the procedure that resulted in this whole rigamarole that we're now dealing with ok i don't think that that that sort of procedural defect should preclude claims that the federal government has submitted to one of the federal tort claims act i'm trying to follow this all the way through though i mean you've got you've got the government got the federal government in the other cases right correct and it's the same accident it is and so whatever outcome of that case will be restricted would it not be with respect to whether the federal government has liability i mean the fact that you can't bring them in now as a third party defendant wouldn't preclude a claim for indemnification or contribution later you know if you couldn't if you went back to the t yeah well all of the cases should be tried together right defect procedural defect of any was not waived it was it was raised at the first possible power how does how does how do you deal with that i'm sorry the defect was raised at the first possible time right i mean road this was yeah i mean that's how it's factually this thing well here i don't know that was raised at the first possible time i mean i think we need to really look at this jurisdiction of vs procedural issue here the first time it was raised by notion ok was when the plaintiffs moved to dismiss ok and they raised it if it's really a matter of subject matter jurisdiction the court should have granted that motion ok it's something else it's  raised within thirty days following removal here the government answered the complaint in federal court ok and then almost three months went by before after got the cue from the trial court's decision on a motion to dismiss then it finally court and also i think korea exchange that is a procedural issue ok and it is way so you're saying in this case the procedural defect was waived because it was it was raised to really it was waived  president with regard to this doctrine as well as what congress did in two thousand and eleven and look at both of those things and say you know what we're going to go another way i mean that seems t o sort of what we should be doing to tell me why it's compelled here particularly given your response to judge that estes question that you still have the federal  continue to generate this kind of unnecessary litigation and we as a panel make that decision or does this have to be decided by the court i think you can issue a decision from the panel the key point is that subject matter jurisdiction concerns the power of the court to hear cases or talking about in rogue us the court held that the durative that derivative jurisdiction is rooted in the idea that there is no case at all so i'm not saying that there's never going to be a situation where fourteen forty two removal is is not going to be challenged properly on a motion just mess one circumstance when that dismissal might be appropriate is when there's a state the u s is not being deprived of any rights here it should be noted that finding the derivative jurisdiction to be procedural is not going to deprive them of any rights the u s always had the right to move to dismiss in the state court for lack of subject matter jurisdiction it didn't do only your honor that is very very strange in my opinion it doesn't make any sense and it's been commented time and again that that does not make any sense the only circumstance that want to turn around and say that there is none so the best case scenario here is that the amendment will be granted in state court the government will once again substitute in and then once issues it's possible that we could have a race based judicata situation down the road but we're not sure so such a scenario would present significant potential for inconsistent results and of course some duplication of efforts and it's completely unwarranted given that the u s did good morning your honour's out of debt for the government may have fisa court appellant filed a third party complaint against the united states in a state court and it's common ground among all of the parties in this suit that that suit was barred by sovereign immunity and that it would have properly been dismissed in the state court had the united states so moved there instead the united states removed an exercised its right to have a federal court here its defense which again is the well established purpose of fourteen forty two and in so doing the united states did not either of whether in fact what has been referred to as the derivative jurisdiction doctrine is actually jurisdictional and you just want to make two brief observations that i think might be helpful to the court in thinking about this the first is just to be clear as i think we've spelled out in our brief it's not actually necessary for the purposes of resolving this appeal to decide whether the derivative jurisdiction doctrine is jurisdictional and i'll get back to that in just a moment i just want to make the other observation which is that i think that a lot of the discussion in the appellants briefs gets a little bit confused because my friend is really just mixing up two entirely different doctrines the question of derivative jurisdiction is a question of once you've removed and got into federal court what jurisdiction has been conferred on that federal court a lot of the cases that my friend talks about the korea bank case for example that she was just discussing when she was up here or actually just questions about how removal were sort of the circumstances under which you can challenge removal i want to be very clear the united states removed this case from state court to federal court under fourteen forty two we are not here arguing that our own removal was a mistake or that the federal court should have somehow remanded our own our own attempt to bring this up to federal courts a lot of the cases that she's talking about are really just about an unrelated area of law and sort of a lot of errant language course as the court is well aware even if you haven't understood procedural rule they can't the court can't just ignore it because you know wants to so the only two real imports of it are the waiver argument they make and then argument with respect to the image of complaint let me just start with the waiver argument because that's the i think the bulk of the time she says i waved we we did not before explain why we didn't we have actually just want to point out that the weaver argument that they are making is not only waived but actually w a v first of all response that the appellant's made there they need a lot of the same arguments that they need here in their opening brief where they say well this isn't a real doctor and we think it's a bad idea as a matter of policy it seems in humean but in none of those did it ever say that the argument was waived and of course that's particularly prejudicial because as the court is aware of course if they had said to the district court that it was wade and the district court would potentially have been able to forgive the waiver but then i think it also didn't make the waiver argument in their opening pre fight really saw it for the first time in their reply its answer on august thirteenth two thousand and twelve i believe that was either five or seven days after the case got to federal court so it was the very first thing that the united states filed and i just want to point out again this is all coming up for the first time in the reply br but in their reply brief they spell out or at least kind of point to i think a couple of maybe series of waivers so i could just address each of those in turn again apologize we weren't able to do this in our brief because now did come out for the first time in their primary their main argument in this is spelled out in the is the derivative jurisdiction argument of course in our view it is an argument about subject matter jurisdiction which twelve each three of course makes clear that can be raised at any time but if somehow having gone from state court to federal court somehow trans a jurisdictional offense into some other kind of affirmative defense which is i think what helen's must be saying although they never quite explain how it is that the transformation occurred that kind of affirmative defense which would be a troll v six offense can also be put in the answer  and at that point if your honour's look to twelve each to explains that that sort of defense then would just be raised as a motion on the pleadings so long as it's already been in the answer and it isn't the answer so at the very most even if they were right that somehow this had been turned from jurisdictional defense into some other sort of affirmative defense that also was one that needed to have been raised it was raised in the answer and then it just means that the motion to dismiss should have been understood as a motion for decision on the pleadings which of course courts do every day so in any event this wouldn't be waive file your responsive pleading and the united states filed this answer it's responsive pleading and well under that time and then my friend just cites a number of excerpts from this court's nelson decision that nelson decision is actually about raising defects in removal that if a defendant t the only other import of the jurisdictional argument that my friend makes perhaps is i think at times she suggests that it may be relevant to the question whether that district court should have accepted there are mended pleading now again as far as we're concerned staples because there was no jurisdiction over the case at all the district court would not have even been empowered to have accepted the amended pleading but even sort of ignoring the question of jurisdiction i mean ultimately the question then and it's just whether after the sectional line one of them is i think the reason that actually the district court spelled out it pointed to this court's us ex decision and it said that when a case is removed it can only stay there on the basis on which it has been removed and once the united states is dismissed it out of the case and obviously fourteen forty two is no longer a basis for holding onto the case i'm so it just goes away my friends only point to an out of circuit case and ninth circuit decision called cosco which one is the district court pointed out  basically every other circuit has gone the other way and even the one circuits cosco decision is actually quite different i would encourage the court to read it essentially what happens there is once the case had proceeded for quite a long time there was a change i believe it was a change in the complaint amended complaint itself presented no grounds for jurisdiction and the amended complaint filed us state tort lawsuit against two individuals and the only response that my friends make is they say well we all kind of know that eventually the united states was probably going to substitute in and then bring it back up here and then it would have turned into an act you see a suit but nonetheless the complaint i mean as filed presented no federal question is whether or not i've been through respond to you or your friends your friends your comment about first is i should just note that the question of derivative jurisdiction is one that comes up in a number of different contacts not just when you have an f t c a suit against the united states and so it may be true in all kind of circle back and explain this but it may be true that in this particular case because of what is basically a little corner of the federal for claims act the westfall act which was a late add amendment basically meant to surpass the whole created by a supreme court decision it may be that this would go back into state court and then ultimately come back up to your friend points out the state court they don't allow the the complaint so i don't think that would be a particular practical problem for them in the reason is that they could proceed as people normally proceed if the united states has liability again towards you which is they can just file a normal federal court claims act case in a federal court against the united states and i should point out as far as i know i mean this has been discussed in the respect as far as i know there's not even a limitations clock that's ticking because my understanding is their theory is one for contribution and remember that there's not even yet any i believe answer them so this is all irrelevant if they win their suit which i'm guessing they probably are going to argue here that they would win their suit it's only if they lose their court suit then at that point would accrue a contribution claim and they could then bring that against the united states on the federal for claims act you know obviously subject of course to you know the other offenses that the united states may raise in much the same way than anyone else can and finally i should add judge brinn way that even if there ends up being missed what might be described as a sort of weirdness that this could go down to state court and then come back up to federal court one it is obviously just true that when congress sets up rules for the way that courts operators operate in lawsuits proceed that sometimes on the margins of those rules you can end up with circumstances that seem a little bit i think the word my friend was using is weird in here it actually seems like congress i mean quite intentionally has retained this rule and had good reasons to do so i mean in two thousand and eleven congress expressly decided that it was going to change this war with the specter of working forty one and keep it with respect to fourteen forty two we still have a number of potential policy reasons one of them actually addresses the westfall act concern that you're on a specifically has which is notice right which is that under the westfall act even though simply hasn't been served on the attorney general before the u s can substitute the actual meaning individual defendants then have to notify the attorney general and there has to be a proper process that occurs there and of course there's the count's i'm sorry and of course there's the other concern that may very well be what's going on in this case that congress held out which is simply that the plaintiffs never tried to sue anyone connected to united states until i'm sorry the third party white house until they had tried to remove and have been remanded back down thank you separate tracks two lawsuits that are in federal court right now and this lawsuit that is that's before this court right now is because teledyne chose to take different approaches for the respective cases in the snyder and whiteman cases there were jessop case so that's part of the reason that we're in two different tracks because the different approaches that removal which is to prevent claims were third parties claims against federal employees creates federal jurisdiction and to prevent the fabrication of federal jurisdiction where there should be not an increase in all suits against as i just i want to start by addressing the double or triple waiver argument that was made by my friend i think we should like invoke a everybody should call each other friends alike was raised because we had argued from the time of the motion calhoun in korea exchange and the fact of the procedural versus jurisdictional distinction ok which leads the court we're not going to be decided by calhoun i mean you know that right institutionally out to the question of having raised the derivative jurisdiction doctrine and if in the affirmative defenses i would like to direct the court's attention to the lopez case from the western district of texas  that case is currently on appeal but the court's first decision in that case really provided a good outline of the arguments that were presented here the policy reasons judicially chrono me that kind of thing that that warrant looking at this procedural vs jurisdiction issue and settling it once and for all in that case it was very similar procedural situation there was an answer and then there was a  and then there was a motion to dismiss the court the court granted the motion to dismiss only because the government immediately upon removal moved to and noticed that that thirty day requirement does apply i also want to say that the parties are to her so there is diversity jurisdiction in this case and the case law has said that that the court can retain jurisdiction on any basis once once it's before the court and that does provide the court with an alternative