USCA1 Opinion

[NOT FOR PUBLICATION]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

_____________
____________________
Rio, Assistant
___

United States Attorney,

States of America.

on brief for

appellee Uni

____________________

January 23, 1998

____________________

Per Curiam.
___________

Jose

Hernandez-Ortiz and his

wife, Lydia

Esther

Delgado-Lopez,

dismissal

under

rights and

appeal

Fed. R.

Civ.

from

the

district

P. 12(b)(6)

employment discrimination claims

of

court's

their civil

arising out

of

Hernandez' separation from the Puerto Rico Air National Guard

("PRANG"). "In the

operates

court,

state a

facts

Rule 12(b)(6) milieu, an

under the same

that is,

we may

claim only if

alleged,

viable theory."

that

appellate court

constraints that bind

affirm a

dismissal for

the district

failure to

it clearly appears, according

the plaintiff

Correa-Martinez v.
_______________

cannot

recover

to the

on any

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

Wright v.
______

claims

Park, 5 F.3d
____

court applied

Circuit in

and

587, 590 (1st Cir.

for injunctive relief

In Penagaricano v.
____________

this

the "bright line rule" adopted in

found

an analysis

plaintiff's

Even if we were

of reinstatement.

Llenza, 747 F.2d 55, 59

______

Mindes v. Seaman,
______
______

reinstatement in the

in the form

1983) applies to

(1st Cir. 1984),

first stated

by the

453 F.2d 197 (5th

claims,

including

National Guard,

to be

Fifth

Cir. 1971),

claim

for

nonjusticiable.

to apply the Mindes factors to

______

the facts of

this case, we would conclude, as we did in Penagaricano, that

____________

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balancing

of

nonreviewability."

those

factors

"favors

finding

of

Penagaricano, 747 F.2d at 64.

____________

II. Employment Discrimination Claims

________________________________

Hernandez'

discriminated

complaint

against

him

political beliefs, but does

alleges

on

the

basis

that

of

defendants

his age

not allege discrimination

and

based

on race, color, religion, sex or national origin.

Hernandez has not stated a

Nor

is

Hernandez

Therefore,

claim for relief under Title VII.

entitled

Discrimination in Employment

to

relief

Act (ADEA).

under

The ADEA

apply to uniformed members of the armed services.

Spain v. Ball, 928 F.2d 61, 63 (2d Cir. 1991).

_____
____

the

Age

does not

See, e.g.,
___ ____

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

1997, is summarily affirmed.

_________ ________

and Order dated

See Loc. R. 27.1.

___

July 15,

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