                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 11-2105
                                    ______________

                                 SCOTT DIDONATO,

                                                Appellant

                                           v.

                           UNITED STATES OF AMERICA

                                    ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 10-cv-05760)
                    Honorable Mary A. McLaughlin, District Judge
                                  ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                   October 6, 2011

  BEFORE: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges

                               (Filed: October 20, 2011)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on plaintiff-appellant Scott DiDonato’s

appeal from a District Court order dated March 31, 2011, entered on April 1, 2011,

granting defendant-appellee United States’ motion to dismiss his case that he brought
against the United States under the Federal Tort Claims Act (“FTCA”). The Court

granted the motion in accordance with its memorandum opinion dated March 31, 2011, in

which it accepted, as we do on this appeal, the allegations of facts that DiDonato made in

his complaint as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 205-06 (3d Cir.

2009) (“The relevant facts underlying this appeal are not complicated and we take them

directly from [plaintiff’s] complaint.”). In making our review we cannot affirm unless

we conclude that the complaint contains sufficient factual matter which, if true, states a

claim that is plausible on its face. See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822,

826 (3d Cir. 2011). Thus, if as a matter of law the complaint does not set forth a basis for

the imposition of liability on the United States it does not contain such matter. We

exercise plenary review on this appeal. See id. at 826.

       The case is unusual in that DiDonato asserts that certain individuals who were

members of or employed by the armed forces were guilty of what he regards as legal

malpractice in incorrectly advising him of the procedure that he was required to follow in

order to clear his record following his discharge from the United States Marines so that

he could reenlist. He also asserts that they committed malpractice in giving him advice

inasmuch as they had conflicts of interest when they did so because of their government

employment. The District Court held that 28 U.S.C. § 2401(b), which requires that

FTCA claims be made to the appropriate federal agency within two years of their accrual,

barred this action. DiDonato acknowledges that the negligence and malpractice of which

he complains was committed not later than in 2004 and that he did not file his claim until

December 8, 2008. He seeks to circumvent the bar of the two-year claim period by

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contending that the discovery rule which sometimes extends a limitations period renders

his claim timely as it was not until a time within a period ending two years before

December 8, 2008, that he had “any inkling that the advice” given him was faulty or the

persons giving him the advice had “an inherent conflict of interest” because of their

federal employment. Appellant’s br at 11. The Court rejected DiDonato’s argument

because it held that he had sufficient notice of the facts supporting his potential claims so

that his cause of action accrued not later than the summer of 2004.

       Significantly, the government, in addition to challenging the timeliness of

DiDonato’s prosecution of his case, contended in the District Court and contends here

that the intra-military immunity doctrine traced to Feres v. United States, 340 U.S. 135,

146, 71 S.Ct. 153, 159 (1950), bars this action as well. Under Feres “the Government is

not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or

are in the course of activity incident to service.” Id., 71 S.Ct. at 159. The District Court,

though stating the government presented a “strong argument” under Feres, did “not

definitively” determine its applicability. DiDonato v. United States, No. 10-5760, at 15-

16 (E.D. Pa. Mar. 31, 2011).

       After our review of this matter we are in full accord with the District Court’s

conclusion that this action is time-barred and thus we will affirm. We add, however, that

we also think that Feres bars this action. Though it is true that DiDonato had been

discharged before the events constituting the alleged negligence and malpractice involved

here took place, clearly this action implicates the direct management of the military, see

United States v. Shearer, 473 U.S. 52, 57-58, 105 S.Ct. 3039, 3042-43 (1985), and thus

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this case is the type of matter in which the courts should not interfere. Contrary to what

DiDonato seems to believe, the mere fact that he brought this action after his discharge

for events that occurred after his discharge does not mean that the Feres concerns are

inapplicable in this case. Accordingly, this case differs from ordinary automobile and

medical malpractice actions in which a court appropriately might impose liability on the

government without acting inconsistently with Feres. Compare Brooks v. United States,

337 U.S. 49, 69 S.Ct. 918 (1949); United States v. Brown, 348 U.S. 110, 75 S.Ct. 141

(1954). Indeed, we think that, as the District Court recognized, the individual

government employees involved in this case gave the type of advice to DiDonato that

employers’ human resources personnel ordinarily give their employees. We do not doubt

that armed forces personnel give advice of the nature involved here regularly and we do

not think that their conduct in doing so should be subjected to judicial review. The courts

cannot micro-manage the armed forces.

       The order of dismissal entered on April 1, 2011, will be affirmed.




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