                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2007

Francis v. Joint Force HQ
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2793




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                                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                         ________________

                  Nos. 06-2793 and 06-2920 (Consolidated)
                            ________________

                             JANET FRANCIS,

                                              Appellant

                                     v.

JOINT FORCE HEADQUARTERS, HRO, HRO-EO, JAG, IG and management offices;
                NATIONAL GUARD BUREAU-NGB-EO;
   AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, c/o AFL-CIO;
DONALD BALLARD; MS. EVELSIZER; LTC GIUARENO; COL STEPHEN HINES;
      LTC INGRAO; COL KEYES; LTC MAHON; KATHEY MCCREADY;
 COL MILLIKEN; MR PHELAN; MG GLEN REITH; LTC SCHEPENS; JOHN SORI;
           MAJOR JAMAL BEALE; GENERAL FRANK CARLINI;
            SECRETARY OF THE DEPARTMENT OF THE ARMY
                ____________________________________

               On Appeal From the United States District Court
                        For the District of New Jersey
                         (D.C. Civ. No. 05-cv-04484)
                 District Judge: Honorable Robert B. Kugler
               _______________________________________

                 Submitted Under Third Circuit LAR 34.1(a)
                             August 24, 2007

        Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES

                         (Filed: September 7, 2007)

                        _______________________

                               OPINION
                        _______________________
PER CURIAM

              Janet Francis, acting pro se, appeals an order of the United States District

Court for the District of New Jersey denying her motion for entry of default and granting

defendants’ motion to dismiss the complaint.

              Francis is a former military technician who was discharged from the United

States Army National Guard and fired from her related civilian employment with the

Department of the Army.1 Her complaint in this case involves the termination of her

civilian employment.2 She claims that her employer and supervisors retaliated against her

for filing a complaint with the Equal Employment Opportunity Commission; failed to

give her a proper hearing before termination; forged documents; and violated Title VII of

the Civil Rights Act of 1964.3 In addition, she brings breach of duty of fair representation

claims against her employee union and two of its officers. For these alleged wrongs, she

seeks $1.3 million in compensatory damages, reinstatement at her previous position, and

removal of any negative materials from her personnel file.

              The District Court dismissed the union defendants on the grounds that

   1
     Like the District Court, we draw many of these facts from various defense motions,
as the complaint filed by Francis is nearly devoid of factual allegations to support her
claims.
   2
    Francis challenged the discharge from her military position in a separate action. See
D.N.J. Civ. No. 05-cv-04882; C.A. No. 06-4246.
   3
     Given the extremely terse nature of the complaint, it is difficult to ascertain the
precise nature of appellant’s claims. We agree with the District Court’s reading that all of
the claims raised against the agency defendants should be treated as falling under Title
VII.

                                             2
government employees have no private right of action against unions for breaching their

duty of fair representation. The Court denied appellant’s motion for entry of default and

dismissed the government defendants for failure to perfect service as required by Federal

Rule of Civil Procedure 4(i)(1). No leave of additional time to serve the Attorney

General was granted, as the District Court concluded that none of the named defendants

was subject to suit under Title VII. Nor did the Court permit the filing of a second or

third amended complaint. Instead, the Court granted defendants’ motion to substitute the

Secretary of the Department of the Army as the proper Title VII defendant and gave

Francis nearly three weeks to serve the Secretary and the Attorney General properly.

When no proof of service was submitted, the District Court dismissed the complaint for

failure to effectuate service. Appellant moved for reconsideration, which the Court

denied. A timely appeal followed.4

              We exercise jurisdiction pursuant to 28 U.S.C. § 1291, undertaking plenary

review of the District Court’s determinations about the propriety of service under Rule 4.

See Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1303-04 (3d Cir. 1995). All

other issues in this case will be reviewed for abuse of discretion: the denial of appellant’s

motion for default judgment, see Jorden v. Nat’l Guard Bureau, 877 F.2d 245, 250-52 (3d

Cir. 1989); the determination that there was not “good cause” to excuse late service for

abuse of discretion, See MCI Tellecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,


   4
    Francis appealed various district court orders in two separate actions, which were
consolidated by order of the Clerk on August 25, 2006.

                                              3
1096 (3d Cir. 1995); and the denial of reconsideration, see Alston v. Parker, 363 F.3d

229, 233 (3d Cir. 2004).

              Appellant’s breach of fair representation claims were properly dismissed.

As the District Court explained at some length, federal employees do not enjoy a private

right of action against their union for breach of its statutory duty of fair representation.

See District Court Opinion of April 10, 2006, at 3-7; Karahalios v. Nat’l Fed’n of Fed.

Employees, Local 1263, 489 U.S. 527, 529 (1989). Nor may such claims be brought

against attorneys or union officials who implemented the union’s course of action. See

Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989). Therefore, Francis’s claims are

barred as to defendant American Federation of Government Employees and its officers,

Sori and Phelan.

              The District Court was also correct in concluding that the Secretary of the

Department of the Army was the only proper defendant under 42 U.S.C. § 2000e-16(c).5

The individual defendants were not subject to suit under Title VII, see Sheridan v. E.I.

DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996), and the named

government entities are not proper defendants, as the statute provides for suit only against

the head of the employing agency. See Williams v. Army and Air Force Exch. Serv., 830

F.2d 27, 29 (3d Cir. 1987).


   5
     We also agree with the District Court’s determination that Francis was an employee
of the Department of the Army under 42 U.S.C. § 709. See Ass’n of Civilian Technicians
v. Fed. Labor Relations Auth., 250 F.3d 778, 781 (D.C. Cir. 2001); Leistiko v. Stone, 135
F.3d 817, 818 (6th Cir. 1998).

                                               4
              The District Court did not abuse its discretion in substituting the Secretary

of the Department of the Army as the only proper defendant for appellant’s Title VII

claims.6 It afforded her a reasonable amount of time to effectuate service, given the

length of time that had already passed since the filing of the complaint. Appellant

contends that she did mail a copy of the summonses and complaint to the Attorney

General of the United States, submitting United States Post Office receipts reflecting mail

sent to the attention of the Attorney General at an address in New Jersey. As Rule

4(i)(1)(B) makes clear, and as the District Court repeated in its Opinion dismissing the

originally-named defendants, a copy of the summons and complaint must be mailed to the

Attorney General “at Washington, District of Columbia.” Appellant was afforded every

opportunity to comply with this unambiguous requirement, and she has submitted no

evidence of having done so. The District Court acted within its discretion in dismissing

the complaint.

              We find no abuse of discretion in the District Court’s denial of Francis’s

motion for reconsideration, which identified neither errors in the District Court’s orders

nor any other basis to justify revisiting them.

              Accordingly, we will affirm the order of the District Court.




   6
     The District Court acted properly in denying Francis leave to submit additional
amendments to her complaint, as she had already amended the complaint once as of right
and the proposed amendments would have been futile. See Fed. R. Civ. P. 15(a); Arthur
v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006).

                                              5
