                                                                  NOT PRECEDENTIAL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.

                                            1
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


                                             2
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

                                             3
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

                                              4
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

                                              5
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 “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)).

         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


1
    Counsel for Appellants conceded this point at oral argument.

                                               6
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

See id.

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

                                         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.

                                                7
