Matos-Arroyo v. Diaz-Colon ( 1998 )

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                         [NOT FOR PUBLICATION]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.