Jain-Miecell Roberson v. United States Department of Na

ELD-009 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-3074
___________
JAIN-MIECELL IRWIN ROBERSON,
Appellant
v.
DEPARTMENT OF US NAVY;
DEPARTMENT OF VETERANS AFFAIRS; CYNTHIA E. ABAIR; BRANCH
HEALTH CLINIC - MARINE CORPS; AIR STATION MIRAMAR
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-20-cv-02058)
District Judge: Honorable Yvette Kane
____________________________________
Submitted on Appellees’ Motion for Summary Action
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
January 10, 2022
Before: JORDAN, PORTER, and MATEY, Circuit Judges
(Opinion filed: January 13, 2022)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Jain-Miecell Irwin Roberson is a veteran of the United States Navy. In November
2020, he brought this action against the United States under the Federal Tort Claims Act
(FTCA). He claimed that in 2010, while he was on active duty, Navy medical providers
negligently failed to diagnose him with sleep apnea.1 As a result of their negligent
treatment, he alleged, he suffered adverse effects until 2018, when he was properly
diagnosed. The Government moved to dismiss the complaint for lack of jurisdiction on
the ground that Roberson’s claim was barred by the Feres doctrine. The District Court
granted the motion and dismissed the complaint. Roberson appealed. The Government
now moves for summary affirmance.
We grant the Government’s motion and will summarily affirm the District Court’s
order because no substantial question is presented by this appeal. See 3d Cir. L.A.R.
27.4; 3d Cir. I.O.P. 10.6. In Feres v. United States, the Supreme Court held that the
FTCA, which established a limited waiver of sovereign immunity from suit, did not
extend to “injuries to servicemen where the injuries arise out of or are in the course of
activity incident to service.” 340 U.S. 135, 146 (1950). The doctrine applies to injuries
sustained as a result of medical malpractice by military doctors. See, e.g., Loughney v.
United States, 839 F.2d 186, 188 (3d Cir. 1988) (barring malpractice suit based on
1
Roberson initially alleged that he was treated by medical personnel at the Department of
Veterans Affairs (VA), but he later agreed with the Government that he received
treatment at the Naval Medical Center San Diego.
2
allegedly negligent medical advice of Army doctor that plaintiff undergo surgery for
abdominal pain); Peluso v. United States, 474 F.2d 605, 606 (3d Cir. 1973) (barring
malpractice suit based on Army doctors’ alleged improper diagnosis and treatment of
ruptured appendix); Henning v. United States, 446 F.2d 774, 776–77 (3d Cir. 1971)
(barring claim that Army doctor failed to diagnose tuberculosis because, the Court
explained, “the negligent act, failing to advise [Plaintiff] of his condition before
discharge, occurred while [Plaintiff] was in the service”). Because Roberson complains
of treatment provided by Navy doctors while he was on active duty, the District Court
correctly concluded that Feres bars his claim. To the extent that Roberson argues that
Feres is inapplicable because his sleep apnea is not “service connected,” we have made
clear that what caused his injury is immaterial; rather, “[i]t is simply the military status of
the claimant that is dispositive.” Loughney, 839 F.2d at 188. And, to the extent that he
attempts to remove his case from Feres’s reach by arguing that (1) his treating physician
was acting outside the scope of his duties at the time of the injury, and (2) he received
more negligent treatment after he was discharged, “[w]e generally do not consider
arguments raised for the first time on appeal.” Orie v. Dist. Att’y Allegheny Cty., 946
F.3d 187, 195 (3d Cir. 2019).
We have considered Roberson’s remaining arguments and conclude that they are
meritless. Accordingly, we grant the Government’s motion and will summarily affirm
the District Court’s order.
3