
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         ______                                         -2-            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                                         -3-            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                                         -4-            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.                                         -5-
