

                    [NOT FOR PUBLICATION]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                                                                   

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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.                                             

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