MEMORANDUM OPINION AND ORDER

ANN MONTGOMERY, District Judge

I. INTRODUCTION

On December 17, 2003, the undersigned United States District Judge heard oral argument on the Motion to Dismiss of Defendant Les Brownlee, Acting Secretary of the Army ("Defendant") [Docket No. 14]. Defendant claims the Court lacks subject matter jurisdiction over Plaintiff Crosby D. Kearsley's ("Plaintiff') employment discrimination lawsuit because his position was integrally related to the function and structure of the military. Plaintiff asserts he was a civilian employee and therefore entitled to the protections of Title VII. For the reasons set forth below, Defendant's Motion is granted

II. BACKGROUND

This matter arises from Plaintiff's employment as a probationary Aviation Life Support Equipment ("ALSE") technician at the Minnesota Army National Guard Aviation Support Facility. His duties involved preparation and maintenance of ALSE devices such as helmets, radios and other safety equipment used by Minnesota National Guard aviators. Plaintiff alleges wrongful termination motivated by racial discrimination and in retaliation for comments he made on a radio talk show while at his duty station. Defendant argues his dismissal was justified by performance concerns, but that regardless of the merits of Plaintiff's claims, this Court lacks jurisdiction over the matter because it involves a non-justiciable exercise of military discretion. See Watson v. Arkansas National Guard, 886 F.2d 1004, 1010 (8th Cir. 1989).

Plaintiff's technician position is governed and was created by the National Guard Technician Act of 1968 (the "Act"). 32 U.S.C. § 709. This statute requires National Guard technicians to:

(1) Be a military technician (dual status) as defined in section 10216(a) of title 10. (2) Be a member of the National Guard (3) Hold the military grade specified by the Secretary concerned for that position. (4) While performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces.

Prior to filing his Complaint, Plaintiff was advised in oral and written form of his right to file a Title VII discrimination action. Defendant concedes National Guard administrators unintentionally misled Plaintiff about his legal rights and acknowledge the policies referenced informed Plaintiff his position was covered by Title VII. Nonetheless, Defendant maintains that established case law requires dismissal of this action.

III. DISCUSSION

A. Standard for 12(b)(1) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(1) provides that a party may make a motion for dismissal based on lack of subject matter jurisdiction. Fed.R.Civ.Pro. 12(b)(1). The party asserting jurisdiction has the burden of establishing its existence. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In assessing a 12(b)(1) motion, the court may consider matters and submissions outside the pleadings and makes no presumptions of truthfulness of the allegations of the complaint. Osborn v. United States, 918 F.2d 724, 729-30 (8th Cir. 1990).

B. Title VII

Plaintiff does not dispute the Eighth Circuit's previous holdings that Title VII does not apply to enlisted members of the armed forces, or to questions of a National Guard technician's military qualifications.See Hupp v. West. 144 F.3d 1144, 1147 (8th Cir. 1998). Rather, Plaintiff argues that because the employment decision at issue involved the civilian side of his hybrid position, Title VII is the appropriate remedy. Defendant asserts the two facets of Plaintiff's technician post were inextricably intertwined and military in nature, such that the Court lacks subject matter jurisdiction.

Assuming without deciding that Title VII applies to National Guard technicians, the Hupp court held that the decision of whether to hire the plaintiff for a full-time civilian technician position was non-justiciable. Id. at 1148. The Eighth Circuit found the determinative issue to be whether or not the personnel action in question involved an assessment of the plaintiff's military qualifications.Id.; cf Mier v. Owens. 57 F.3d 747, 750 (9th Cir. 1995) (finding National Guard technicians covered by Title VII "except when the challenged conduct is integrally related to the military's unique structure," such as the denial of plaintiff's military promotion). Thus, although the plaintiff in Hupp claimed discrimination related to her application for a civilian technician post, the fact that the hiring process "included consideration of both military and civilian qualifications" rendered her Title VII claim non-justiciable.Hupp. 144 F.3d at 1148.

Other courts have taken an even broader view of military technician's exclusion from Title VII. The Sixth Circuit has held the National Guard technician position itself to be "irreducibly military in nature" and thus governed only by military employment discrimination protections.Fisher v. Peters. 249 F.3d 433, 443 (6th Cir. 2001). In a case with a fact pattern similar to the instant matter, the plaintiff was fired from his National Guard civilian position as an aircraft maintenance specialist, but retained his military rank and membership.Wright v. Park, 5 F.3d 586, 587 (1st Cir. 1993). He claimed wrongful termination in violation of the Civil Rights Act and federal and state whistleblower statutes. Id. at 587. In affirming summary judgment for the defendants on non-justiciability grounds, the court found that the military and civilian components of a National Guard technician "are inextricably intertwined" such that the "job's dual aspects are inseparable." Id. at 589. Accordingly, it held the Colonel plaintiff "necessarily suffered the injury of which he complains in his military capacity" and could not maintain a civil rights action in federal court. Id. at 590.

Defendant argues that because Plaintiff was responsible for maintenance of aviator emergency equipment and would serve as the unit ALSE technician in the event of deployment, Plaintiff's "work was integral to the safe, effective operation of [Minnesota Army National Guard] aviation." Kolbinger Decl. ¶¶ 3, 6. Military qualifications are an integral part of technician employment determinations, according to the National Guard, because the composition of the technician workforce affects who will be available for deployment when the Guard is activated. Id. ¶ 110.

Plaintiff argues the classification of technicians as "civilian employees," along with the distinct pay, benefit and chain of command systems, permits the Court to bifurcate his duties and roles and apply Title VII to his dismissal from his ALSE work He cites as factual support for his argument the information various government equal opportunity offices provided him stating his right to file a district court action under Title VII.

Though Plaintiff is correct that a 32 U.S.C. § 709 technician is technically a "civilian employee," Congress has specifically differentiated between dual status technicians, who must be enrolled in the National Guard, and "non-dual status technicians" who are not National Guard members. 10 U.S.C. § 10216, 10217. Additionally, dual status, or "military technicians," are "authorized and accounted for as a separate category of civilian employees," indicating their distinction from other civilian government workers. Id. § 10216.

Like the hiring decision in Hupp, the evidence presented by Defendant indicates selection and retention decisions regarding ALSE technicians are based, at least in part, upon a consideration of the ability to perform the ALSE tasks in a military capacity. Kolbinger Decl. ¶¶ 5, 10; Jacobs Decl. ¶¶ 5. Consistent with the precedent regarding application of Title VII to National Guard technicians, the Court finds the determination to terminate Plaintiff's probationary employment is beyond the subject matter jurisdiction of this Court. See Hupp. 144 F.3d at 1148. His ALSE technician position was intertwined with his National Guard duties and as such, the decision to terminate his job implicates the "military's unique structure." See Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998) (expressing that "decisions relating to the `promotion or suspension' of civilian employees of the National Guard, including technicians, are `integrally related to the military's unique structure'") (internal quotation omitted).

The Court shares Plaintiff's frustration with the evident contradiction between the military's emphatic stance against application of Title VII to National Guard technicians and its concurrent providing of personnel materials advising dual status technicians of their Title VII rights and ability to file suit in federal court. At oral argument, counsel for Defendant stated that Plaintiff could proceed with his discrimination claims under the National Guard Military Discrimination Complaint System and that the government would forgo any potential timeliness objections it may have in such a forum. Accordingly, if Plaintiff proceeds with his complaint in the military system, Defendant is bound by its offer to waive applicable statute of limitations defenses. Defendant's Motion to Dismiss is granted.

IV. CONCLUSION

1. Defendant's Motion to Dismiss [Docket No. 14] is GRANTED and

2. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.