
USCA1 Opinion

	




                         [NOT FOR PUBLICATION]                    UNITED STATES COURT OF APPEALS                         FOR THE FIRST CIRCUIT                         ____________________No. 97-2425                                                            JOSE A. MATOS-ARROYO,                         Plaintiff, Appellant,                                  v.                   EMILIO DIAZ-COLON, ETC., ET AL.,                        Defendants, Appellees.                         ____________________             APPEAL FROM THE UNITED STATES DISTRICT COURT                    FOR THE DISTRICT OF PUERTO RICO         [Hon. Raymond L. Acosta, Senior U.S. District Judge]                         ____________________                                Before                        Torruella, Chief Judge,                   Selya and Stahl, Circuit Judges.                         ____________________    Raul S. Mariani Franco and Harry Anduze Montano on brief forappellant.    Carlos Lugo-Fiol, Solicitor General, Roxanna Badillo-Rodriguez,Assistant Solicitor General, and Edda Serrano-Blasini, Deputy SolicitorGeneral, on brief for appellees.                         ____________________April 24, 1998                                             ____________________      Per Curiam.  Jose A. Matos-Arroyo 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.   We affirm, although on different grounds than    those relied upon by the district court.        "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); [The] Dartmouth Review [v. Dartmouth College], 889 F.2d    [13,] 16 [(1st Cir. 1989)].  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).  "In    conducting this tamisage, we are not wedded to the district    court's rationale, but remain free to affirm the judgment below    on any independently sufficient ground made manifest by the    record."  Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201,    204 (1st Cir. 1994).        1. Claims for Monetary Relief        Matos-Arroyo seeks damages for harm resulting from    defendants' discharge of him in violation of his procedural due    process rights under the United States Constitution.  Those    claims are non-justiciable as the alleged injuries "'arise out    of or are in the course of activity incident to service.'"    Wright v. Park, 5 F.3d 586, 590 (1st Cir. 1993).  Because we    have determined that the claims for damages are non-    justiciable, we need not decide whether the district court    erred in ruling that the Eleventh Amendment barred those    claims.        2. Claims for Injunctive Relief in the Form of    Reinstatement        Matos-Arroyo also seeks relief in the form of    reinstatement to his military and civilian positions.  We need    not decide whether the "bright line rule" adopted in Wright v.    Park, 5 F.3d 586, 590 (1st Cir. 1993), 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 non-justiciable.        Even if we were to apply the Mindes factors to the facts    of this case, we would conclude, for essentially the same    reasons given in Penagaricano, that the Mindes factors weigh in    favor of finding that Matos-Arroyo's claims for injunctive    relief are not justiciable.  See Penagaricano, 747 F.2d at 62    (noting that plaintiff's procedural due process claim was    "insubstantial" because plaintiff lacked "a constitutionally    protected property interest in continued employment with the    Guard").  As this court has recently stated,        [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 be the courts.  The reasons are        too obvious to need elaboration.        Tirado-Acosta v. Puerto Rico National Guard, 118 F.3d 852, 855    (1st Cir. 1997).        The district court's Opinion and Order dated November 14,    1997, is summarily affirmed.  See Loc. R. 27.1.
