
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1964                           JOSE F. HERNANDEZ-ORTIZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                              EMILIO DIAZ-COLON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Boudin, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Nydia Maria Diaz-Buxo on brief for appellants.            _____________________            Guillermo Gil, United States Attorney, and Fidel  A. Sevillano Del            _____________                              _______________________        Rio, Assistant  United States Attorney,  on brief for  appellee United        ___        States of America.                                 ____________________                                   January 23, 1998                                 ____________________                 Per  Curiam.  Jose  Hernandez-Ortiz and his  wife, Lydia                 ___________            Esther  Delgado-Lopez,  appeal  from  the  district   court's            dismissal  under  Fed. R.  Civ.  P. 12(b)(6)  of  their civil            rights and  employment discrimination claims  arising out  of            Hernandez' separation from the Puerto Rico Air National Guard            ("PRANG"). "In the  Rule 12(b)(6) milieu, an  appellate court            operates  under the same  constraints that bind  the district            court,  that is,  we may  affirm a  dismissal for  failure to            state a  claim only if  it clearly appears, according  to the            facts  alleged,  that  the plaintiff  cannot  recover  on any            viable theory."   Correa-Martinez v.  Arrillaga-Belendez, 903                              _______________     __________________            F.2d 49, 52 (1st Cir. 1990) (citations omitted).                 I. Civil Rights Claims                    ___________________                 We agree with the district court that appellants' claims            pursuant  to 42 U.S.C.     1983 and 1985 are non-justiciable.            We need not decide whether  the "bright line rule" adopted in            Wright v.  Park, 5 F.3d  587, 590 (1st Cir.  1983) applies to            ______     ____            claims  for injunctive relief  in the form  of reinstatement.            In Penagaricano v.  Llenza, 747 F.2d 55, 59  (1st Cir. 1984),               ____________     ______            this  court applied  an analysis  first stated  by the  Fifth            Circuit in  Mindes v. Seaman,  453 F.2d 197 (5th  Cir. 1971),                        ______    ______            and  found   plaintiff's  claims,   including  a   claim  for            reinstatement in the  National Guard,  to be  nonjusticiable.            Even if we were  to apply the Mindes factors to  the facts of                                          ______            this case, we would conclude, as we did in Penagaricano, that                                                       ____________                                         -2-            a  balancing   of  those   factors  "favors   a  finding   of            nonreviewability."  Penagaricano, 747 F.2d at 64.                                    ____________                 II. Employment Discrimination Claims                     ________________________________                 Hernandez'    complaint    alleges    that    defendants            discriminated  against  him  on  the  basis  of  his age  and            political beliefs, but does  not allege discrimination  based            on race, color, religion, sex or national origin.  Therefore,            Hernandez has not stated a  claim for relief under Title VII.            Nor  is   Hernandez  entitled   to  relief   under  the   Age            Discrimination in Employment  Act (ADEA).  The ADEA  does not            apply to uniformed members of the armed services.  See, e.g.,                                                               ___  ____            Spain v. Ball, 928 F.2d 61, 63 (2d Cir. 1991).  Specifically,            _____    ____            conduct of the Air National Guard "is beyond the reach of the            ADEA."  Johnson v. State of New York, 49 F.3d 75, 78 (2d Cir.                    _______    _________________            1995); see  also Frey v.  State of California, 982  F.2d 399,                   ___  ____ ____     ___________________            404 (9th Cir. 1993).                 The  district court's Opinion  and Order dated  July 15,            1997, is summarily affirmed.  See Loc. R. 27.1.                     _________ ________   ___                                         -3-
