The opinion of the court was delivered by: Rodriguez, District Judge
This matter is before the Court on Defendants' motion to dismiss the complaint for lack of jurisdiction or for failure to state a claim, or, in the alternative, for summary judgment. For the reasons set forth below, the Court will grant the Defendants' motion and the case will be dismissed.
Plaintiff originally filed suit in this matter in the Superior Court of New Jersey, Law Division, Atlantic County, alleging sexual harassment in violation of the New Jersey Law Against Discrimination. The then-named Defendants, State of New Jersey and the New Jersey Air National Guard, timely removed the case to this Court, asserting that as an employee of the United States Department of the Air Force, Plaintiff was required to bring any discrimination suit under Title VII, the exclusive remedy for federal employees; thus, this Court had federal question jurisdiction over the controversy. Plaintiff filed an Amended Complaint, which the Defendants seek to have dismissed by way of the instant motion, first noticed on November 6, 2001 and ultimately filed on February 5, 2002.
Plaintiff Kate S. Urie is an African-American female employed by the Department of the Air Force pursuant to 32 U.S.C. § 709 as an aircraft mechanic supervisor. (Complaint, ¶5.) She alleges that in the course of her employment, she was subjected to racial and gender-based discrimination and was otherwise racially and sexually harassed and subjected to a hostile work environment as well as retaliatory actions in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e). (Complaint, ¶10.) The essence of Plaintiff's claim is that for several days beginning on February 10, 1999, and then on May 10 and 21, 1999, Plaintiff's male supervisor inappropriately entered the women's restroom of a certain building on the Atlantic County base of the New Jersey Air National Guard while Plaintiff was using the facility, and that on various dates from February 10, 1999 through May 21, 1999, the supervisor pounded on the ladies' room door of that building when he knew Plaintiff was occupying the facility. (Complaint, ¶¶11-14.)
Plaintiff has also alleged generally that her supervisors and co-workers acted in a manner contrary to the provisions of Title VII, including retaliating against Plaintiff, prohibiting her from receiving awards and recognition, and otherwise prohibiting her from being promoted. (Complaint, ¶15.) She seeks compensatory and punitive damages, as well as attorney's fees and costs of suit for the Defendants' violations of Title VII and of "a clear mandate of public policy of the United States of America and of the State of New Jersey." (Complaint, ¶27 and "Wherefore" clauses of two counts.)
Plaintiff is a civilian technician, aircraft mechanic supervisor in the New Jersey Air National Guard, which is the reserve component of the United States Air Force, 10 U.S.C. § 10110. *fn1 Because this Court finds that National Guard technicians are "irreducibly military" federal employees, it holds that the doctrine of intramilitary immunity, first articulated in Feres v. United States, 340 U.S. 135 (1950), *fn2 bars Plaintiff's claim; the Amended Complaint will therefore be dismissed.
The Defendants initially have framed the instant motion as pursuant to Fed. R. Civ. P. 12(b)(1), requesting dismissal for lack of subject matter jurisdiction. *fn3 This Court will dismiss a case for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) where it lacks the statutory or constitutional power to adjudicate the controversy. See Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) ("at issue in a 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case"); see also Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
It appears that the Defendants have launched this attack on the allegations on the face of the complaint, as opposed to disputing the existence of certain jurisdictional facts alleged by the Plaintiff. See Carpet Group Intern. v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (comparing attack on jurisdiction "in fact" with facial challenge to subject matter jurisdiction). In determining the merits of a facial challenge to subject matter jurisdiction, the Court must read the complaint in a light most favorable to the plaintiff and accept all factual allegations as true. NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001). In either a facial challenge or a factual one, the burden of establishing the Court's subject matter jurisdiction lies with the plaintiff. Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993) (citing McNutt v. ...