                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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. 06-4246




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Recommended Citation
"Francis v. Joint Force HQ" (2007). 2007 Decisions. Paper 459.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/459


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                                                         NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              NO. 06-4246
                           ________________

                            JANET FRANCIS,

                                             Appellant

                                    v.

          JOINT FORCE HEADQUARTERS NATIONAL GUARD;
KATHEY MCCREADY, EO; LTC LAWLOR, IG; MAJOR GENERAL REITH, TAG;
         GENERAL CARLINI; COL GUARENO; LTC SCHEPENS;
               COL STEPHEN HINES, Chief of Staff- Col;
         MS. EVELSIZER, Chief-national Guard Bureau -NGB-EO;
DONALD BALLARD, NGB Counselor; DEPARTMENT OF ARMY; MAJOR BEALE;
        WO CONLEY; COL KENT MILLIKEN; MAJOR PERRON;
                      COL THOMAS SULLIVAN
                ____________________________________

              On Appeal From the United States District Court
                        For the District of New Jersey
                         (D.C. Civ. No. 05-cv-04882)
               District Judge: Honorable Jerome B. Simandle
              _______________________________________

                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 under Fed. R. Civ. P. 12(b)(1).

              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 appears to allege that her military

discharge violated various statutory and constitutional rights.2 She claims that she was:

denied the right to review her military records; harassed and discriminated against

because of her sex; retaliated against for filing a complaint with the Equal Employment

Office; denied access to materials and job opportunities necessary for promotion; and

defamed. For these alleged wrongs, she seeks $2.8 million in compensatory damages,

reinstatement at her previous rank, and removal of any negative materials from her

personnel file.

              We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the

District Court’s denial of appellant’s motion for default judgment for abuse of discretion.

See Jorden v. Nat’l Guard Bureau, 877 F.2d 245, 250-52 (3d Cir. 1989). Our review of


   1
    Like the District Court, we draw many of these facts from defendants’ Motion to
Dismiss, as the complaint filed by Francis is nearly devoid of factual allegations to
support her claims.
   2
    Francis challenged the termination from her civilian position in a separate action.
See D.N.J. Civ. No. 05-cv-04484; C.A. Nos. 06-2973 and 06-2920.

                                             2
the District Court’s dismissal of appellant’s complaint under Fed. R. Civ. P. 12(b)(1) is

plenary. See Taliaferro v. Darby Township Zoning Bd., 458 F.3d 181, 188 (3d Cir.

2006). In so doing we look only at “whether the allegations on the face of the complaint,

taken as true, allege facts sufficient to invoke the jurisdiction of the district court.” See

id. (quoting Turicentro, S.A. v. Am. Arlines Inc., 303 F.3d 293, 300 (3d Cir. 2000)).

              The District Court properly rejected plaintiff’s motion for entry of default.

Service was not perfected until appellant sent a copy of the summonses and complaint to

the Attorney General of the United States on February 6, 2006.3 See Opinion of

September 19, 2006, at 6-9; Fed R. Civ. P. 4(i). All defendants entered a limited

appearance to contest the Court’s jurisdiction by February 23, 2006, well within the

allowable time period.

              As discussed in some detail by the District Court, the military defendants in

this case are immune from claims seeking monetary damages. See Opinion of September

19, 2006, at 12-16; Jorden v. Nat’l Guard Bureau, 799 F.2d 99 (3d Cir. 1986); Chappell v.

Wallace, 462 U.S. 296, 300 (1983); Matreale v. N.J. Dep’t of Military & Veterans

Affairs, ___ F.3d ___, No. 06-2051, 2007 WL 1469661, at *3 (3d Cir. May 22, 2007).

The District Court properly dismissed these claims under Fed. R. Civ. P. 12(b)(1).

              We disagree, however, with the District Court’s dismissal of appellant’s



   3
     The District Court’s conclusion that some of defendants were never properly served
also appears to be correct; however, we need not reach that issue here. See Opinion of
September 19, 2006, at 9-10.

                                               3
claims for injunctive relief. As the District Court observed, this case is largely

indistinguishable from Jorden. In that case, however, we rejected the proposition

apparently adopted by the District Court here that Chappell closed the door to claims for

injunctive relief as well as for money damages. See Jorden, 799 F.2d at 109-110.

Therefore, Francis’s claims for injunctive relief were not barred by the intramilitary

immunity doctrine and should not have been dismissed under Rule 12(b)(1).

               Accordingly, we will affirm the District Court’s dismissal of appellant’s

damages claims. We vacate the judgment of the District Court insofar as it dismissed

Francis’s claims for injunctive relief and shall remand the case for further proceedings.4

We note that on remand, the District Court may wish to examine the complaint for

compliance with Federal Rule of Civil Procedure 8.




   4
       The motion for Default Judgment filed with this Court is denied.

                                              4
