2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-4-2011

C.A. C. II v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1488

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"C.A. C. II v. USA" (2011). 2011 Decisions. Paper 260.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/260
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-1488

_____________

C. A. C., II, an infant, by his Guardian Ad Litem, C.C., father and P.C., mother; C. C., 

Individually; P. C., Individually,

Appellants

v.

UNITED STATES OF AMERICA; UNITED STATES AIR FORCE; LT. COL. 

WILLIAM PALIWODA, individually and in his official capacity as Lt. Col. with the 

Unites States Air Force; JANE PALIWODA, a fictitious name; JOHN DOE I, a fictitious 

name; JOHN DOE II, a fictitious name; JOHN DOE III, a fictitious name; JOHN DOE 

IV, a fictitious name; JOHN DOE V, a fictitious name

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civ. No. 09-06057)

District Judge: Honorable Joel A. Pisano

______________

Argued October 24, 2011

______________

Before: SLOVITER, GREENAWAY, JR., Circuit Judges, 

and POLLAK*

, Senior District Judge.

(Opinion Filed: November 4, 2011)

______________

Cristina Vasillou Harvey (argued)

Lomurro, Davison, Eastman and Munoz, P.A.

Monmuth Executive Center

 * Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern 

District of Pennsylvania, sitting by designation.
2

100 Willow Brook Road, Suite 100

Freehold, New Jersey 07728

Counsel for Appellants

Paul J. Fishman, United States Attorney

Tony West, Assistant Attorney General

Thomas M. Bondy, Attorney, Appellate Staff

Benjamin M. Shultz, Attorney, Appellate Staff (argued)

U.S. Department of Justice, Civil Division

Room 7211

950 Pennsylvania Ave. NW

Washington, D.C. 20530

Allan Urgent, United States Attorney

Office of the United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Appellant C.A.C. II (“C.A.C.”), a minor, together with his parents C.C. and P.C., 

(collectively, “Appellants”), brought suit against Lieutenant Colonel William J. 

Paliwoda, his wife, the United States Air Force (“the Air Force”), and the United States 

(“the Government”) seeking damages based on the claim that Paliwoda had sexually 

abused C.A.C. Their complaint alleges that Paliwoda had previously abused other 

children and that the Air Force, knowing about the wrongful conduct, transferred 

Paliwoda to New Jersey, where C.A.C. resides. The United States moved to dismiss for 

lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), asserting that sovereign 

immunity barred the suit as to the federal government. The District Court found that the 
3

waiver of sovereign immunity contained in the Federal Tort Claims Act (“FTCA”), 28 

U.S.C. § 1346(b)(1), did not apply here, and therefore granted the Government’s motion 

to dismiss. Appellants timely appealed and now seek our review of the District Court’s 

decision.

Because Appellants failed to raise before the District Court the New Jersey statute 

upon which this appeal is based, the argument is now waived. We will affirm the order 

of the District Court.

I. BACKGROUND

Because we write primarily for the benefit of the parties, we recount only the 

essential facts.

While employed by the Air Force and stationed in Virginia and Arkansas, 

Paliwoda sexually abused and inappropriately touched children on several occasions,

over a period of approximately fifteen years. This inappropriate touching consisted 

largely of sucking on and biting several boys’ toes for sexual gratification and on at least 

one occasion touching a boy’s testicles. Appellants allege that the Government was 

aware of this behavior, as were individual Government employees John Does 1-5. 

Despite its knowledge of his inappropriate touching, the Government transferred 

Paliwoda to McGuire Air Force Base in New Jersey. There, Paliwoda resided off base in 

a private home in New Egypt, New Jersey. The Air Force did not select or locate this 

residence for him. 

C.A.C. lived across the street from Paliwoda’s new home. Appellants allege that 

on multiple occasions, Paliwoda inappropriately touched C.A.C., leaving C.A.C. with 
4

psychological injuries that required medical treatment. At Paliwoda’s court martial,

C.A.C. testified that Paliwoda had sucked and nibbled on his toes. 

Appellants filed their complaint in the District Court, seeking damages from 

Paliwoda, his wife (fictitiously identified as “Jane Paliwoda”), the Air Force, and the 

Government. The Government and the Air Force filed a motion to dismiss, pursuant to 

Fed. R. Civ. P. 12(b)(1), with two declarations. The first declaration, from Lt. Col. 

Bradford T. Johnson, detailed Paliwoda’s job responsibilities at his McGuire Air Force 

Base Post. The second, from Lt. Col. Mark D. Pollard, stated that Paliwoda’s New Jersey 

home was a private residence, which the Air Force had not secured for Paliwoda, and that 

Paliwoda had not been on duty at the time the incident in question occurred. 

The District Court granted the motion to dismiss. The Court dismissed the Air 

Force, finding that the general waiver of sovereign immunity in the FTCA is inapplicable 

to claims against federal agencies and that the Air Force had not explicitly waived 

sovereign immunity in any other fashion. Regarding the Government’s liability, the 

District Court first noted that Appellants did not contend that the Government was liable 

for Paliwoda’s conduct and thus considered only the Government’s own negligence. It 

found that the decision to investigate or discipline Paliwoda for his earlier actions was 

discretionary and therefore excluded from the FTCA’s waiver of sovereign immunity by 

the discretionary function exception, codified at 28 U.S.C § 2680. 

Appellants also claimed that the Government had negligently reassigned Paliwoda 

to a new base. The District Court held that this claim fell within the intentional torts 

exception to the FTCA because it was inextricably intertwined with Paliwoda’s status as 
5

an employee of the Government. There was also no duty under New Jersey law that the 

Government owed Appellants that existed independent of Paliwoda’s employment status. 

As such, there was no subject matter jurisdiction as to the Government. 

The District Court subsequently declined to exercise supplemental jurisdiction 

over the state law claims against Paliwoda and his wife. 

II. JURISDICTION AND STANDARD OF REVIEW

If the District Court did have subject matter jurisdiction over this case, an issue 

that lies at the heart of this appeal, that jurisdiction would have stemmed from the waiver 

of sovereign immunity contained in the FTCA, 28 U.S.C. §1346(b)(1). We have 

jurisdiction over an appeal of the District Court’s order dismissing a complaint for lack of 

subject matter jurisdiction under 28 U.S.C. § 1291. Taliaferro v. Darby Twp. Zoning Bd., 

458 F.3d 181, 188 (3d Cir. 2006). We exercise plenary review over such an order. Id. 

III. ANALYSIS

Appellants must overcome any specter of waiver before consideration of the 

merits here. Appellants contend that the Government breached a duty to Appellants 

created by New Jersey statute, N.J. Stat. Ann. 9:6-8.10 (“the Child Abuse Reporting 

Statute” or “the Statute”). The Statute requires every person with reasonable cause to 

believe that child abuse has occurred to report the abuse to the Department of Youth and 

Family Services (“DYFS”). In Sheridan v. United States, 487 U.S. 392 (1988), the 

Supreme Court held that the FTCA waives sovereign immunity where the Government is 

liable under state law for an assault committed by a Government employee on a basis 

“entirely independent of [the assailant’s] employment status.” Id. at 401; see also Matsko 
6

v. United States, 372 F.3d 556, 561 & n.10 (3d Cir. 2004). Appellants argue that the 

District Court had subject matter jurisdiction based on the Government’s breach of the 

duty imposed by the Child Abuse Reporting Statute, which exists independent of the 

employment relationship between the Government and Paliwoda.

However, Appellants never argued or mentioned the applicability of the Child 

Abuse Reporting Statute before the District Court.1

Appellants failed to mention the Statute in their pleadings or briefs below. The 

complaint does, however, allege that the Government “failed to take any action or 

otherwise to protect the infant Plaintiff, CAC, II., from the foreseeable injuries caused by 

Defendant [Lt.] Col. Paliwoda.” (App. at 21.) This general mention of a failure to 

protect in no way presented to the District Court the argument that the Government had 

 “This court has consistently held that 

it will not consider issues that are raised for the first time on appeal.” Harris v. City of 

Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994). For an issue to be preserved for appeal, 

“a party ‘must unequivocally put its position before the trial court at a point and in a 

manner that permits the court to consider its merits.’” In re Ins. Brokerage Antitrust 

Litigation, 579 F.3d 241, 262 (3d Cir. 2009) (quoting Shell Petroleum, Inc. v. United 

States, 182 F.3d 212, 218 (3d Cir. 1999)). “A fleeting reference or vague allusion to an 

issue will not suffice to preserve it for appeal, so ‘the crucial question regarding waiver is 

whether defendants presented the argument with sufficient specificity to alert the district 

court.’” Id. (quoting Keenan v. City of Phila., 983 F.2d 459, 471 (3d Cir. 1992)).

 1 Counsel for Appellants conceded this point at oral argument.
7

breached its duty under the Statute “‘in a manner that permit[ted] the court to consider its 

merits.’” Shell Petroleum, Inc., 182 F.3d at 218. Accordingly, Appellants have waived 

the only argument that they present on appeal.

Appellants urge us to exercise our discretionary power to consider “a pure 

question of law even if not raised below where refusal to reach the issue would result in a 

miscarriage of justice or where the issue’s resolution is of public importance.” 

Loretangeli v. Critelli, 853 F.2d 186, 189-90 n.5 (3d Cir. 1988). We exercise this 

discretion “only when manifest injustice would result from a failure to consider novel 

issues,” a category of cases which we have labeled “extraordinary.” Pritzker v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1115 (3d Cir. 1993). Where litigants 

will have an opportunity to seek a remedy in another forum, as Appellants here will be 

free to do in the New Jersey courts, no such extraordinary circumstances are presented.2

We decline to exercise our discretion to consider Appellants’ waived argument. 

 

See id. 

IV. CONCLUSION

For the reasons set forth above, we will affirm the order of the District Court.

 2 The waiver rule “applies with added force where the timely raising of the issue would 

have permitted the parties to develop a factual record.” Matter of American Biomaterials 

Corp., 954 F.2d 919, 927-28 (3d Cir. 1992). Here, the New Jersey case upon which 

Appellants’ argument hinges engages in a highly fact-bound inquiry to determine 

whether a duty to report abuse exists, J.S. v. R.T.H., 714 A.2d 924 (N.J. 1998), thereby 

compounding our reluctance to pass upon an issue raised for the first time in this Court.