USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 97-1677
VICTOR QUINONEZ-CRUZ, ET AL.,
Plaintiffs, Appellants,
v.
EMILIO DIAZ-COLON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Nydia Maria Diaz-Buxo on brief for appellant.
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Carlos Lugo-Fiol, Solicitor General, Edda Serrano-Blasini, Deputy
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Solicitor General, and Gustavo A. Gelpi, Assistant to the Attorney
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General, Department of Justice, on brief for appellee Emilio Diaz-
Colon.
Guillermo Gil, United States Attorney, and Fidel A. Sevillano Del
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Rio, Assistant United States Attorney, on brief for appellee United
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States of America.
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November 4, 1997
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Per Curiam. Victor Quinonez-Cruz appeals from the
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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,
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45-48, 78 S. Ct. 99, 101-03, 2 L. Ed. 2d 80 (1957); Dartmouth
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Review, 889 F.2d at 16. In making that critical
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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.
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Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990).
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I. Civil Rights Claims
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For the reasons stated by the district court, we agree
that under Wright v. Park, 5 F.3d 587 (1st Cir. 1993),
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Quinonez's civil rights claims for damages are
nonjusticiable. Quinonez argues on appeal that Chapell v.
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Wallace, 462 U.S. 296 (1983) and United States v. Stanley,
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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.
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Quinonez contends that even if Wright precludes his
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damages claims, the district court erred in dismissing his
claims for injunctive relief. Because Wright did not involve
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a claim for injunctive relief, this court has not yet ruled
on whether Chappell and Stanley bar such relief. Several
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other circuits have ruled that there is no injunctive relief
exception to Chappell, however. See Knutson v. Wisconsin Air
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National Guard, 995 F.2d 765, 771 (7th Cir. 1993); Watson v.
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Arkansas National Guard, 886 F.2d 1004, 1009 (8th Cir. 1989);
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Crawford v. Texas Army National Guard, et al., 794 F.2d 1034,
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1036-37 (5th Cir. 1986); but see Jorden v. National Guard
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Bureau, 799 F.2d 99 (3d Cir. 1986) (holding that Chappell did
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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-
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Acosta v. Puerto Rico National Guard, 118 F.3d 852, 855 (1st
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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.
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Appellants argue that we should take the approach
followed in Penagaricano v. Llenza, 747 F.2d 55, 59 (1st Cir.
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1984), which was overruled in part by Wright, 5 F.3d at 591.
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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
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strikingly similar to Quinonez's claims. Mindful of the
concerns expressed in Chappell, this court applied the
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analysis set forth in Mindes v. Seaman, 453 F.2d 197 (5th
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Cir. 1971), weighing the last two Mindes factors heavily, and
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concluded that Penagaricano's claims constituted a
nonjusticiable military controversy. Penagaricano, 747 F.2d
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at 64. We would do the same in this case. Therefore,
whether judged under Wright or Penagaricano, the district
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court's dismissal of Quinonez's claim for injunctive relief
was correct.
II. Title VII Claim
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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,
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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
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California, 982 F.2d 399, 404 (9th Cir. 1993) ("Congress did
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not intend to extend the protections of Title VII or the ADEA
to members of the state National Guard"); Costner v. Oklahoma
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Army National Guard, 833 F.2d 905, 907-08 (10th Cir. 1987)
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(ADEA claim by member of National Guard and civilian
technician was nonreviewable under Mindes); Helm v. State of
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California, 722 F.2d 507, 509 (9th Cir. 1983) (ADEA does not
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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.
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R. 27.1.
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