Kingrey v. Wormuth

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

KRISTIN M. KINGREY,

Plaintiff,

v. CIVIL ACTION NO. 2:21-cv-00612

CHRISTINE WORMUTH, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants’ Motion to Dismiss and/or for Summary

Judgment. [ECF No. 42]. The motion offers several arguments in favor of dismissal,

but the dispositive issue in this case is whether the intra-military immunity doctrine

deprives this court of jurisdiction over the claims asserted by Plaintiff, a dual-status

technician with both military and civilian roles. For the reasons explained below, I

find that it does. Defendants’ motion is GRANTED.

I. Background

This case involves claims of employment discrimination on the basis of sex, in

violation of Title VII of the Civil Rights Act of 1964.

Master Sergeant Kristin M. Kingrey (“MSgt Kingrey”) is “a dual status

technician” in the West Virginia National Guard. [ECF No. 1, ¶ 8]. She “is a female

employee who identifies as a lesbian.” ¶ 12. Based on her outward appearance,

MSgt Kingrey “is often perceived as masculine” and “gender nonconforming.” ¶¶

13–14.

“As a dual status technician, [MSgt] Kingrey is employed with the Department

of the Air Force as an Air Transportation Craftsman1 and as a[] [Human Resource

Office] Benefits Specialist.” ¶ 10. The Human Resource Office (“HRO”) position “is

a civilian position within the federal government” and is “temporary in nature.”

¶¶ 11, 26.

In August 2018, MSgt Kingrey was deployed to Qatar. ¶ 23. While in Qatar,

she applied for the permanent position of Human Resource Development Specialist

(“HRDS”). ¶¶ 24–25. MSgt Kingrey remotely interviewed for the HRDS position

on January 7, 2019, and was informed later that day that she had been selected for

the role. ¶¶ 28–29. MSgt Kingrey accepted the offer and “began completing

paperwork to begin training for the . . . position.” ¶¶ 31–32.

When MSgt Kingrey returned to West Virginia in March 2019, she was placed

on medical restrictions due to an injury she sustained while deployed. ¶ 33. Her

injury rendered her unable to assume the HRDS role. ¶ 35. According to MSgt

Kingrey, certain unspecified regulations provide that the “position could be

temporarily filled,” but once she was medically cleared, she “was to begin serving in

the HRDS position.” ¶ 36. Although she remained on medical convalescence orders

1 Since filing her Complaint, Plaintiff has “left her Air Transportation Craftsman position” and, as of

May 2022, serves as “the First Sergeant for the 167th Aeromedical Evacuation Squadron.” [ECF No.

56, at 3]. Because this matter involves allegations of past employment discrimination, the court will

refer to MSgt Kingrey’s work positions as they are alleged in the Complaint.

2

until December 2020, MSgt Kingrey “received training for the HRDS position” upon

her return from deployment. ¶ 34; [ECF No. 48, at 6].

After returning from Qatar, MSgt Kingrey was informed by Lieutenant Colonel

(“Lt Col”) Kelly Ambrose that Colonel Michael Cadle (“Brig Gen Cadle”)2 “had made

negative, disparaging, and intentionally discriminatory remarks about Plaintiff

Kingrey which were centered on her sex – including her sexual orientation and

perceived gender nonconformity.” [ECF No. 1, ¶ 37]. Specifically, MSgt Kingrey

allegedly learned that Brig Gen Cadle had arranged for a meeting with Lt Col

Ambrose during which he commented on MSgt Kingrey’s “masculine features and

requested and/or instructed [Lt Col] Ambrose to counsel . . . Kingrey on how to appear

more feminine.” ¶ 41. During this conversation, Brig Gen Cadle allegedly told Lt

Col Ambrose that MSgt Kingrey’s career advancement “would suffer unless [she]

began taking steps to make herself appear more feminine.” ¶ 42. At the time he

allegedly made these remarks, Brig Gen Cadle “was the Vice Commander of the 130th

Air Lift Wing” and supervised MSgt Kingrey, a member of that Wing. [ECF No. 42-

1, at 3]. In his roles as Vice Commander, and later as Director of Joint Staff, Brig Gen

Cadle “was actively involved in the hiring decisions” for his units. [ECF No. 1, ¶ 47].

According to MSgt Kingrey, she has dealt with other instances of

discrimination and harassment from colleagues throughout her military career.

2 This individual has since been promoted from Colonel to Brigadier General (“Brig Gen”). [ECF

No. 42-12, at 30:2–6]. For clarity and consistency, the court will refer to Brig Gen Cadle and other

military officers by their current titles, although they may have held a different rank at the time of

the events in this case.

3

¶¶ 48–54. For example, MSgt Kingrey alleges that she is “frequently harassed for the

length of her hair,” and that she “was forced to ‘try on’ a women’s Honor Guard jacket,

in front of others, to confirm that none of the women’s sizes would fit.” ¶¶ 48, 50.

Another instance involved “colleagues and superiors perpetuating the rumor that

[she] was ‘transitioning’ from female to male.” ¶¶ 51–52. When MSgt Kingrey

reported the rumor to Brig Gen Cadle, he allegedly directed her to “work it out” with

the superior believed to have started the rumor, and he insinuated that the

disagreement was motivated by “a prior intimate relationship” with that superior,

who also identifies as a lesbian. ¶¶ 53–54. Until receiving the adverse employment

decisions at issue in this case, MSgt Kingrey says that she largely “attempted to

endure and tolerate these discriminatory acts and comments.” ¶ 56.

In March 2020, Brig Gen Cadle began acting “as a general supervisor over the

HRO.” [ECF No. 48-1, at 38:10]. Later that spring, MSgt Kingrey “received a phone

call from Lieutenant Colonel Board informing her that the Army had pulled the

funding for the HRDS position.” [ECF No. 1, ¶ 59]. Within a few months, the position

was reposted as a temporary role and subsequently “filled by a person outside the

protected class.” ¶¶ 61, 68.

In September 2020, MSgt Kingrey applied for another role within the HRO,

this time an Employee Benefits position. ¶ 70. She had previously received

relevant training and was certified for the position “at the grade level GS-11/12.”

¶¶ 71, 72. After interviewing before a panel, MSgt Kingrey “was notified that –

4

despite her experience and training – she had not been selected.” ¶ 73. The

Employee Benefits position was awarded to “a non-veteran employee who is outside

the protected class.” ¶ 74. MSgt Kingrey claims that the hiring panel was

supervised by Brig Gen Cadle. ¶ 80.

As a result of the alleged discrimination, MSgt Kingrey filed an Equal

Employment Opportunity complaint in October of 2020. ¶ 81. While her complaint

was being investigated, MSgt Kingrey was notified that she was under investigation

by the National Guard for an unprofessional relationship. ¶ 84. She claims that

her “primary witness,” Lt Col Ambrose, was also investigated, and “other favorable

witness(es) . . . were contacted and made to feel threatened.” ¶¶ 85–86. During

the investigation, MSgt Kingrey received “her first negative performance appraisal.”

¶ 87. She claims that these retaliatory actions “resulted in a bias[ed] Final Agency

Decision which fails and/or outright refuses to acknowledge the intentional, unlawful,

discrimination and the supervisory authority [Brig Gen] Cadle held/holds over all

those within the HRO.” ¶ 88.

On November 23, 2021, MSgt Kingrey filed a Complaint in this court against

Christine Wormuth, Secretary of the Department of the Army, and Frank Kendall,

Secretary of the Department of the Air Force, in their official capacities, based on

federal question jurisdiction. She asserts two claims under Title VII: Sex

Discrimination (Count I) and Retaliation (Count II). at 12–18. To remedy her

alleged injuries, MSgt Kingrey seeks appointment to the HRDS position,

5

appointment to the Employee Benefits position, compensatory damages, back pay,

pre- and post-judgment interest, attorneys’ fees and costs, and other equitable relief.

at 18–19.

On March 20, 2023, Defendants filed the instant Motion to Dismiss and/or for

Summary Judgment. [ECF No. 42]. MSgt Kingrey responded to the motion on April

10, 2023, [ECF No. 48], and Defendants replied on April 19, 2023, [ECF No. 52]. The

motion is ripe for review.

II. Legal Standard

Federal courts are courts of limited jurisdiction, meaning that they have the

power to act solely in the areas authorized by Congress and the United States

Constitution. , 530 F.3d 293, 296 (4th Cir. 2008). The

two bases for subject matter jurisdiction are federal question and diversity. 28

U.S.C. §§ 1331, 1332. The only form of subject matter jurisdiction alleged to exist in

this case is federal question jurisdiction. [ECF No. 1, ¶ 18].

Federal question jurisdiction “exists only when a federal question is presented

on the face of the plaintiff’s properly pleaded complaint.” ,

482 U.S. 386, 392 (1987); 28 U.S.C. § 1331. Here, MSgt Kingrey’s Complaint plainly

raises a federal question by asserting claims under Title VII, a federal statute. In this

case, however, that threshold showing does not end the inquiry, because the

defendants against whom she asserts her claims are both federal officials sued in

their official capacities. It is well established that the United States, including its

6

officers, is immune from suit unless sovereign immunity has been waived.

, 19 F.4th 421, 426 (4th Cir. 2021) (quoting ,

937 F.3d 316, 327 (4th Cir. 2019)). Accordingly, Defendants argue they are immune

from this suit because “Congress has not waived its sovereign immunity to allow

uniformed members of the armed forces to pursue discrimination claims under Title

VII.” [ECF No. 43-1, at 7].

Defendants’ challenges to the justiciability of Plaintiff’s claims are properly

raised in a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

, 95 F.3d 339, 343 (4th Cir. 1996). “In ruling on a 12(b)(1)

motion, the court may consider exhibits outside the pleadings.”

, 50 F.3d 299, 304 (4th Cir. 1995) (citing

, 549 F.2d 884, 891 (3d Cir. 1977)). Moreover, insofar as the jurisdictional facts

are in dispute, “the trial court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case.” But where a party challenges the

sufficiency—rather than truthfulness—of the facts purported to sustain jurisdiction,

the court must accept the plaintiff’s allegations as true and consider the motion as it

would a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). , 783 F. App’x 277, 279 (4th Cir. 2019).

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. , 521 F.3d 298, 302 (4th Cir. 2008). To

survive dismissal, “a complaint must contain sufficient factual matter, accepted as

7

true, to ‘state a claim for relief that is plausible on its face.’” , 556

U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 570 (2007)).

As the ensuing discussion will show, this case must be dismissed on

jurisdictional grounds. Accordingly, the court treats Defendants’ motion as a motion

to dismiss under Rule 12 and does not reach their arguments in favor of summary

judgment under Rule 56.

III. Discussion

a. Dual-Status Technicians

Dual-status technicians are unique federal employees in that they occupy

spaces in both the civilian and military realms. They are full-time civilian employees

who are required as a condition of that employment to maintain membership in a

military entity—in MSgt Kingrey’s case, the National Guard. 32 U.S.C. § 709(b)(2);

10 U.S.C. § 10216(a)(1)(B).

These dual-status employees are “assigned to a civilian position as a

technician” in “the organizing, administering, instructing, or training of the National

Guard,” “the maintenance and repair of supplies issued to the National Guard or the

armed forces,” and in the performance of other specified duties supporting the

military. 32 U.S.C. § 709(a). In addition to maintaining membership in the relevant

military branch, dual-status technicians must hold the appropriate “military grade”

specified for their position, and they must “wear the uniform appropriate for the

member’s grade and component of the armed forces” while performing duties as a

8

dual-status technician. § 709(b). When National Guard units are activated and

deployed, dual-status technicians are designated “Absent – Uniformed Service” with

respect to their civilian roles. [ECF No. 55, at 7–8; ECF No. 56, at 6].

b. and Title VII

Defendants argue that the intra-military immunity doctrine—also known as

the doctrine—divests this court of subject matter jurisdiction over Plaintiff’s

claims. Under this well-established doctrine, United States military personnel may

not bring actions against the government for injuries that “arise out of or are in the

course of activity incident to service.” , 340 U.S. 135, 146 (1950).

This rule is “premised upon the disruptive nature of judicial second-guessing of

military decisions.” , 533 F.3d 289, 296 (5th

Cir. 2008) (citing , 348 U.S. 110, 112 (1954)). In particular,

the rule is concerned with “the disruption of the peculiar and special relationship of

the soldier to his superiors that might result if the soldier were allowed to hale his

superiors into court.” , 462 U.S. 296, 304 (1983) (internal

markings omitted). The doctrine “may bar a claim in federal court even though

its pursuit, under the particular circumstances of the case, might not weaken military

discipline or interfere with discretion as to military matters.”

, 373 F.3d 83, 91 (2d Cir. 2004). The breadth of the “incident

to service” standard recognizes that “[t]he process of determining case-by-case the

impact of litigation on the operation of the military would itself unduly intrude into

9

military affairs.” (citing , 483 U.S. 669, 682 (1987));

, 518 F.2d 1138, 1141 (4th

Cir. 1975) (explaining that “incident to service” is not “a narrow term restricted to

actual military operations such as field maneuvers or small arms instruction” and

has been held to encompass activities like “enjoying a drink in a noncommissioned

officers club,” “riding a donkey during a ballgame sponsored by the Special Services

division of a naval air station,” and “swimming in a swimming pool at an airbase”).

Thus, the doctrine “caution[s] against interference with military disputes in

the absence of explicit congressional approval.” , 811 F.3d 643, 650

(4th Cir. 2016). In this case, Defendants argue that the doctrine prevents the

court from finding that Congress has waived sovereign immunity with respect to

MSgt Kingrey’s claims.

Both of MSgt Kingrey’s claims invoke Title VII, a federal law that prohibits

discrimination in employment “based on race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-16(a). Title VII, which includes a congressional waiver of sovereign

immunity, expressly applies to “employees . . . in military departments,” , but that

provision has been interpreted to apply only to civilian employees of the armed forces,

, , 95 F.3d at 343; 29 C.F.R. § 1614.103 (Equal Employment

Opportunity Commission regulation noting that Title VII applies to “[m]ilitary

departments” but not to “[u]niformed members of the military departments”).

Accordingly, the central question in this case is whether Plaintiff, as a dual-status

10

technician with both military and civilian roles, can bring her claims under Title VII.

Defendants argue that MSgt Kingrey is a uniformed member of the armed forces

whose claims arise out of her military service; thus, this court is deprived of

jurisdiction. [ECF No. 46, at 7–21]. Plaintiff, meanwhile, contends that her claims

“arise solely from her civilian role” and are therefore justiciable in this forum. [ECF

No. 48, at 2].

c. Applicability of to MSgt Kingrey’s Claims

The United States Court of Appeals for the Fourth Circuit has not yet spoken

on the application of to claims brought by dual-status technicians. Other

circuits employ a variety of approaches, which fall into three general categories. On

one end of the spectrum, the Sixth Circuit has held that dual-status technicians can

never bring Title VII claims, even if the alleged discrimination arises in the course of

their civilian roles, because the hybrid position as a whole “is irreducibly military in

nature.” , 249 F.3d 433, 443 (6th Cir. 2001).

Most circuits to have considered the issue take a less categorical approach,

holding that dual-status technicians may bring claims under Title VII if the claims

arise from their civilian position. , , 616 F.3d 789, 798 (8th

Cir. 2010); , 373 F.3d at 90, 95; , 227 F.3d 295, 299

(5th Cir. 2000); , 57 F.3d 747, 750 (9th Cir. 1995). Within this middle

category, the courts of appeals employ several different standards to determine when

claims are barred by . For example, the Eighth Circuit applies “the standard

11

articulated in itself” and simply asks “whether the injury arose out of activity

incident to military service.” , 616 F.3d at 798. The Second Circuit looks to

whether “the claim (1) challenges conduct integrally related to the military’s unique

structure, or (2) is not purely civilian.” , 373 F.3d at 95 (internal citations and

quotation marks omitted). If the answer to either question is “yes,” then the

technician is barred from pursuing her Title VII claim. The Fifth Circuit

determines whether the challenged conduct can be traced to “actions taken within

the military sphere,” explaining that “claims arising purely from [a technician]’s

civilian position are provided for under Title VII; claims that originate from [her]

military status, however, are not cognizable.” , 227 F.3d at 299. The Ninth

Circuit considers whether the conduct at issue is “integrally related to the military’s

unique structure.” , 57 F.3d at 750. That question is answered in the affirmative

where personnel decisions raise concerns about “military hierarchy and discipline” as

opposed to “discriminatory conduct on the part of peers or subordinates.” As a few

circuits have explained, “these various standards of ” are not “inconsistent” and

merely reflect “the unique facts and claims presented by the parties in those

particular cases.” , 616 F.3d at 798 (“To ask . . . whether the conduct was

‘integrally related to the military’s unique structure,’ or whether the position at issue

is ‘irreducibly military in nature,’ is only to ask, as applied to a particular set of facts

or a particular legal claim, whether the injury was incident to military service.”

(internal citations omitted)); , 533 F.3d at 299 (describing another

12

circuit’s standard as one of several “factors” the court might turn to “[i]f classification

of a claim is difficult”).

At the other extreme, the Federal Circuit has suggested that dual-status

technicians are almost always considered civilian employees who therefore may bring

statutory claims of discrimination against the government. ,

450 F.3d 1342, 1348 (Fed. Cir. 2006). involved a claim under the Equal Pay

Act, which applies to federal civilian employees. The court relied on 10 U.S.C. § 10216,

which was amended in 1997 to state that a dual-status technician “is a Federal

civilian employee” for purposes of “any other provision of law.” The Federal Circuit,

noting the lack of any limiting language, found this provision “sufficient to indicate

Congress’ purpose to remove dual-status technicians from the ambit of judge-made

doctrines such as .” , 616 F.3d at 795. Thus, announced a

categorical rule by which dual-status technicians must be treated as civilian

employees for purposes of any provision of law. 450 F.3d at 1349. The other circuits

to have addressed this issue have uniformly rejected the approach. ,

, 616 F.3d at 796–97; , 533 F.3d at 299–300; , 606

F.3d 1249, 1254 (9th Cir. 2010). Those courts found that the 1997 amendments “did

not effect such a substantive change,” , 606 F.3d at 1254, and instead were

merely “designed to harmonize the nomenclature to be used for dual-status

technicians throughout the U.S. Code,” , 616 F.3d at 796. Moreover, “it

would have been odd for Congress fundamentally to alter the legal condition of dual-

13

status technicians in 10 U.S.C. § 10216, a statute that overwhelmingly just addresses

the details of obtaining funding for National Guard positions.” at 796–97

(“Congress ‘does not, one might say, hide elephants in mouseholes.’” (quoting

, 531 U.S. 457, 468 (2001))). The Fourth Circuit has

yet to address the treatment of dual-status technicians under , but its

commentary on the doctrine in other contexts suggests the court would likely reject

the interpretation. , , 811 F.3d at 651 (“[T]he Supreme Court

has embarked on a course dedicated to broadening the doctrine to encompass,

at a minimum, injuries suffered by military personnel that are even remotely

related to the individual’s as a member of the military.” (quoting

, 90 F.3d 102, 105 (4th Cir. 1996))).

Of these three categories, the middle approach appears most consistent with

the relevant statutes and with the policies underlying the intra-military immunity

doctrine. The doctrine “is designed in large measure to prevent civilian courts

from interfering with military discipline and decision-making,” and “to prevent

federal courts from exercising constitutional powers that are delegated to Congress

and the Executive Branch.” , 373 F.3d at 89–90. A dual-status technician’s

claim, if civilian in nature, causes minimal intrusion on the military while furthering

the anti-discriminatory purposes of Title VII. On the other hand, there are

“persuasive reasons to conclude that the doctrine may apply” to a dual-status

technician’s lawsuit based on alleged actions taken while she was in a civilian role.

14

at 92. A technician’s “employment as a civilian is ordinarily in support of a mission

that is ultimately military in nature,” and thus, “the civilian employment of Guard

Technicians is often incident to military service.” Additionally, “there are concerns

about the intrusive nature of the inquiry that would be necessary for a federal court

to disentangle a plaintiff’s civilian and military duties if the doctrine were

applicable only to suits arising out of the latter.” (first citing , 483 U.S. at

683 (“[T]he mere process of arriving at correct conclusions would disrupt the military

regime.”); and then citing , 944 F.2d 1477, 1487 (9th Cir.

1991) (“[W]here it is sufficiently ambiguous whether challenged actions were

‘incident to military service,’ and the process of disentangling conduct not incident to

service from that incident to service would itself work an impermissible intrusion

upon military matters, must be applied to the whole course of conduct.”)).

Accordingly, I adopt the approach followed by a majority of circuits and hold that the

doctrine bars Title VII claims only “where the injuries arise out of or are in the

course of activity incident to military service.” , 373 F.3d at 90 (quoting

, 483 U.S. at 672) (internal markings omitted).

Notably, in none of the above-cited cases were the dual-status technician’s

claims ultimately found justiciable under . As at least one court has observed,

“what exists in theory may not always exist in practicality.” , 857

F. Supp. 2d 1229, 1234 n.5 (M.D. Ala. 2012),

, 517 F. App’x 878 (11th Cir. 2013). But be that as it may, “a dual-status

15

military technician may, at least in theory, bring suit under Title VII” for claims

arising out of her civilian status, at 1233, and no court has yet considered the facts

presented here.

Having determined the appropriate standard, I now apply that approach to the

instant case. As explained below, I find that MSgt Kingrey’s claims arise out of

activities “incident to service” and are therefore barred in this court.

This case presents a close call given that the adverse employment actions at

issue were clearly directed toward roles designated as civilian. Specifically, MSgt

Kingrey alleges: that “she was denied two separate technician positions

because of her sex,” [ECF No. 56, at 2]; that she was the subject of a retaliatory

investigation into an “unprofessional relationship,” which is broader than the

distinctively military concept of “fraternization,” at 8–9; [ECF No. 55, at 9–

14]; and that she was further subjected to retaliation in the form of “her first negative

performance appraisal” for her civilian position, [ECF No. 1, ¶ 87].

Nevertheless, MSgt Kingrey’s claims are inextricably linked to her military

service. At the time the challenged actions were taken, Plaintiff had returned from

deployment but was still “considered to be on active duty” while on medical

convalescence orders. [ECF No. 48-3, at 12:16–22]. More importantly, MSgt Kingrey’s

claims implicate “the peculiar and special relationship of the soldier to [her]

superiors.” , 462 U.S. at 300. “Civilian courts must, at the very least, hesitate

long before entertaining a suit which asks the court to tamper with the established

16

relationship between enlisted military personnel and their superior officers; that

relationship is at the heart of the necessarily unique structure of the military

establishment.” MSgt Kingrey largely challenges conduct allegedly committed by,

or traceable to, Brig Gen Cadle, who “was serving as the Director of Joint Staff and

Interim Head of HRO at the time Plaintiff Kingrey’s HRDS position was rescinded.”

[ECF No. 1, ¶ 98]. Prior to joining the Joint Staff, Brig Gen Cadle served as Vice

Commander of the 130th Air Lift Wing and, prior to that role, as Commander of the

Wing’s Mission Support Group, to which Plaintiff was assigned at that time. [ECF

No. 42-1; ECF No. 55; ECF No. 48-5, at 31:7–8 (Brig Gen Cadle testifying that

Plaintiff “was in a subordinate unit of [his]”)]. In both his military and civilian roles,

Brig Gen Cadle “exercised authority and supervision over Plaintiff Kingrey.” [ECF

No. 1, ¶ 76]; , [ECF No. 48-5, at 63:24 (stating that when MSgt Kingrey was

harassed by other colleagues, she reported the incident to Brig Gen Cadle as “her

section chief”); ECF No. 48-3, at 46:16–20 (stating that Brig Gen Cadle initiated the

arrangements for Plaintiff’s Honor Guard jacket); ECF No. 48-1, at 38:23–39:15 (Lt

Col Board confirming that Brig Gen Cadle “approved all job announcements for

distribution and signed selection documents” in his role as Interim HRO)]. Thus,

MSgt Kingrey’s suit, if permitted to proceed, would likely affect her military

relationship with Brig Gen Cadle. Brig Gen Cadle denies most of the allegations

against him, and he notes that “there were so many levels between [him and MSgt

Kingrey]” that he “had no day to day oversight supervision or engagement with her.”

17

[ECF No. 48-5, at 37:7–12]. But it is undisputed that Brig Gen Cadle was Plaintiff’s

superior, (“She was in an organization that I was in and I was the highest level

commander.”), and thus, “disruption of the peculiar and special relationship of the

soldier to [her] superiors . . . might result if [MSgt Kingrey] were allowed to hale [Brig

Gen Cadle] into court,” , 462 U.S. at 304. Moreover, “[a]ny attempt to

surgically dissect and analyze the civilian relationship between [MSgt Kingrey] and

[Brig Gen Cadle], with its military dimensions, . . . would itself threaten to intrude

into their military relationship.” , 373 F.3d at 96; , 462 U.S.

at 305 (“[C]ourts are ill-equipped to determine the impact upon discipline that any

particular intrusion upon military authority might have.”). Additionally, MSgt

Kingrey’s allegations implicate “the application of military rules and regulations and

decisions regarding personnel management and the allocation of military budget

resources.” [ECF No. 52, at 7 (discussing Plaintiff’s argument that budgetary

concerns were merely pretext for refusing her the HRDS position on impermissible

grounds)]. Such matters “go directly to the ‘management’ of the military” and are “the

of claims that, if generally permitted, would involve the judiciary in sensitive

military affairs at the expense of military discipline and effectiveness.”

, 473 U.S. 52, 58–59 (1985).

Because MSgt Kingrey’s suit “would likely intrude into” her military

relationships and other aspects of military administration, I conclude that the

challenged conduct is “integrally related to the military’s unique structure,” and her

18

claims therefore arise out of activity “incident to military service.” Overton, 373 F.3d

at 90, 96 (holding Feres barred Title VII suit that “would likely intrude into” the

plaintiffs “nominally civilian, yet distinctly military, relationship” with his superior);

see Norris, 857 F. Supp. 2d at 1235-36 (holding Feres barred Title VII suit where

“those who made the decision to remove [plaintiff] from her civilian position served

the dual roles of military and civilian supervisors”). Accordingly, the intra-military

immunity doctrine prevents this court from hearing MSgt Kingrey’s claims, which

are more appropriately addressed through the military’s own grievance processes.

See Chappell, 462 U.S. at 302 (‘Congress has exercised its plenary constitutional

authority over the military, has enacted statutes regulating military life, and has

established a comprehensive internal system of justice to regulate military life,

taking into account the special patterns that define the military structure.”).

IV. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss and/or for Summary

Judgment [ECF No. 42] is GRANTED. Plaintiff's claims are hereby DISMISSED

without prejudice.

The court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented party. The court further DIRECTS the Clerk to post a copy of

this published opinion on the court’s website, www.wvsd.uscourts.gov.

ENTER: Augast /LO, 2023

Ip

JOSEPH &. GOODW

19 ew STATES DISTRICT JUDGE