

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1677

                VICTOR QUINONEZ-CRUZ, 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. Jose Antonio Fuste, U.S. District Judge]                                                                 

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          

                                         

Nydia Maria Diaz-Buxo on brief for appellant.                                 
Carlos Lugo-Fiol, Solicitor  General, Edda Serrano-Blasini, Deputy                                                                      
Solicitor  General, and Gustavo  A. Gelpi,  Assistant to  the Attorney                                                 
General,  Department of  Justice, on brief  for appellee  Emilio Diaz-
Colon.
Guillermo Gil, United States Attorney, and Fidel A. Sevillano  Del                                                                              
Rio, Assistant United  States Attorney, on  brief for appellee  United           
States of America.

                                         

                       November 4, 1997
                                         

     Per  Curiam.    Victor Quinonez-Cruz  appeals  from  the                            

district court's dismissal under Fed. R. Civ. P. 12(b)(6), of

his complaint challenging his separation from the Puerto Rico

National Guard.   "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.  Conley v Gibson, 355  U.S. 41,                                                          

45-48,  78 S.Ct. 99,  101-03, 2 L.Ed.2d  80 (1957); Dartmouth                                                                         

Review,  889   F.2d  at   16.     In  making   that  critical                  

determination,  we  accept plaintiff's  well-pleaded  factual

averments and  indulge every reasonable  inference hospitable

to his  case.  Gooley,  851 F.2d at 514."  Correa-Martinez v.                                                                      

Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990).                              

     I. Civil Rights Claims                                       

     For the reasons stated  by the district court, we  agree

that  under Wright  v.  Park,  5 F.3d  587  (1st Cir.  1993),                                        

Quinonez's    civil   rights    claims   for    damages   are

nonjusticiable.   Quinonez argues  on appeal that  Chapell v.                                                                      

Wallace, 462 U.S.  296 (1983) and  United States v.  Stanley,                                                                        

483 U.S. 669 (1987), do  not require dismissal of his damages

claims because those claims primarily concern his status as a

civilian National Guard technician.  We specifically rejected

an  identical  argument  in  Wright,  where  we held  that  a                                               

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National Guard  technician's civilian and military  roles are

"inextricably intertwined."  Wright, 5 F.3d at 589.                                               

     Quinonez contends  that  even if  Wright  precludes  his                                                         

damages  claims, the district  court erred in  dismissing his

claims for injunctive relief.  Because Wright did not involve                                                         

a claim for  injunctive relief, this court has  not yet ruled

on  whether Chappell and  Stanley bar  such relief.   Several                                             

other circuits  have ruled that there is no injunctive relief

exception to Chappell, however.  See Knutson v. Wisconsin Air                                                                         

National Guard, 995 F.2d 765,  771 (7th Cir. 1993); Watson v.                                                                      

Arkansas National Guard, 886 F.2d 1004, 1009 (8th Cir. 1989);                                   

Crawford v. Texas Army National Guard, et al., 794 F.2d 1034,                                                         

1036-37 (5th  Cir. 1986);  but see  Jorden v.  National Guard                                                                         

Bureau, 799 F.2d 99 (3d Cir. 1986) (holding that Chappell did                                                                     

not  bar  1983 claim  for reinstatement and  determining that

under  the Third Circuit's "own jurisprudence," the claim was

justiciable).

     As  we recently stated in another context, "[t]he courts

have  long been reluctant to interfere with internal military

decisionmaking,  including personnel  decisions.   With  only

rare   exceptions,  the  courts  have  taken  the  view  that

assignments within the  military structure are matters  to be

decided by the military and not  by the courts. . . .   [T]he

underlying  notion is that  matters of military organization,

personnel  and operations  are  extremely sensitive  and that

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courts will do more harm  than good by interfering."  Tirado-                                                                         

Acosta v. Puerto Rico National  Guard, 118 F.3d 852, 855 (1st                                                 

Cir.  1997).   As a  result, we  decline to  entertain claims

seeking  reinstatement as a form of injunctive relief because

such a remedy  would "intrude on a province  committed to the

military's discretion."  Knutson, 995 F.2d at 771.                                            

     Appellants  argue  that  we  should  take  the  approach

followed in Penagaricano v. Llenza, 747 F.2d 55, 59 (1st Cir.                                              

1984), which was overruled in part by Wright, 5 F.3d  at 591.                                                        

Even  were we to  do so, the  result would be the  same.  The

civil  rights claims that  we dismissed as  nonjusticiable in

Penagaricano,  including  a  claim  for  reinstatement,  were                        

strikingly  similar to  Quinonez's claims.    Mindful of  the

concerns  expressed  in  Chappell,  this  court  applied  the                                             

analysis set  forth in  Mindes v. Seaman,  453 F.2d  197 (5th                                                    

Cir. 1971), weighing the last two Mindes factors heavily, and                                                    

concluded   that   Penagaricano's    claims   constituted   a

nonjusticiable military controversy.   Penagaricano, 747 F.2d                                                               

at  64.   We would  do  the same  in this  case.   Therefore,

whether  judged under  Wright or  Penagaricano,  the district                                                          

court's dismissal  of Quinonez's claim for  injunctive relief

was correct.

     II. Title VII Claim                                    

     Quinonez appeals from the district court's  dismissal of

his Title VII  claims.  Title VII prohibits  an employer from

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discriminating  against   any  individual  because   of  that

person's "race, color, religion, sex or national origin."  42

U.S.C.   2000e-2(a).    Quinonez's   complaint  alleges  that

defendants discriminated against  him because of his  age and

political  beliefs.   Therefore, Quinonez  has  not stated  a

claim for relief under Title VII.

     Even  if Quinonez had relied upon the Age Discrimination

in Employment Act ("ADEA"), 29 U.S.C.   621 et seq., he would

not be entitled to relief.  See Johnson v. State of New York,                                                                        

49 F.3d 75,  78 (2d Cir. 1995)  (conduct of the  Air National

Guard "is beyond  the reach of the  ADEA"); Frey v. State  of                                                                         

California, 982 F.2d 399, 404 (9th Cir. 1993) ("Congress  did                      

not intend to extend the protections of Title VII or the ADEA

to members of the state National Guard"); Costner v. Oklahoma                                                                         

Army National Guard,  833 F.2d 905,  907-08 (10th Cir.  1987)                               

(ADEA   claim  by  member  of  National  Guard  and  civilian

technician  was nonreviewable under Mindes); Helm v. State of                                                                         

California, 722 F.2d 507, 509  (9th Cir. 1983) (ADEA does not                      

apply to military reservists).  Therefore, the district court

correctly ruled  that Quinonez  failed to  state a  statutory

claim of employment discrimination under federal law.

     The  district court  judgment dismissing  with prejudice

appellants'  federal   law  claims  and   dismissing  without

prejudice the Puerto Rico law  claims, is affirmed.  See Loc.                                                                    

R. 27.1.

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