Hernandez-Ortiz v. Diaz-Colon ( 1998 )

[NOT FOR PUBLICATION]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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