35 F.3d 25
Olga J. NEGRON-GAZTAMBIDE, Plaintiff, Appellant,v.Zaida HERNANDEZ-TORRES, etc., et al., Defendants, Appellees.
Nos. 93-2376, 94-1183.
United States Court of Appeals,First Circuit.
Heard June 6, 1994.Decided Sept. 15, 1994.Rehearings and Suggestions for RehearingsEn Banc Denied Nov. 30, 1994.

Carlos A. Del Valle Cruz, with whom Ricardo L. Torres Munoz, Hato Rey, PR, was on brief, for appellant.
Teresa Medina Monteserin, with whom Manuel D. Herrero Garcia, Hato Rey, PR, and Miguel A. Pagan-Rivera, San Juan, PR, were on brief, for appellees.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LAGUEUX, District Judge.*
LEVIN H. CAMPBELL, Senior Circuit Judge.


1
Olga Negron Gaztambide ("Negron"), plaintiff-appellant, was employed by the Legislative Service Office of the Commonwealth of Puerto Rico as a librarian in the Legislative Library.1  In late January or early February 1993, Negron was discharged from her position.  She learned of this action by way of a letter, dated January 29, 1993, signed by Nelida Jimenez Velazquez ("Jimenez"), Director of the Legislative Service Office.2  On June 22, 1993, Negron sued Jimenez in the United States District Court for the District of Puerto Rico.  Also named as defendants were Zaida Hernandez Torres ("Hernandez"), President of the House of Representatives of the Commonwealth of Puerto Rico, and Roberto Rexach Benitez ("Rexach"), President of the Senate of the Commonwealth of Puerto Rico.  Negron claimed that she had been dismissed (1) because of her political affiliation with Puerto Rico's Popular Democratic Party in violation of the First, Fifth, and Fourteenth Amendments of the United States Constitution and 42 U.S.C. Sec. 1983 (1988), (2) without a hearing in violation of the Due Process Clause of the Fifth and Fourteenth Amendments, and (3) in disregard of her handicapped condition in violation of the Americans with Disabilities Act, 42 U.S.C. Secs. 12101-12213 (Supp.  IV 1992).


2
On August 5, 1993, Hernandez and Jimenez moved to dismiss Negron's complaint for lack of jurisdiction.  They argued that their decision to discharge Negron was a legislative act protected by the Legislative Immunity Doctrine.3  See U.S. Const. art.  I, Sec. 6 (Speech or Debate Clause);  P.R. Const. art.  III, Sec. 14.  On October 14, 1993, Negron moved for an extension of time within which to oppose defendants' motion to dismiss.  Her motion was denied.  On October 18, 1993, the district court issued the following order:


3
Before the Court is the defendants' unopposed motion to dismiss for lack of jurisdiction.  After fully reading the same, the Court finds itself in accord with the legal arguments proffered by the defendants in support of their motion.


4
WHEREFORE, for the reasons stated in defendants' motion, this case is hereby DISMISSED pursuant to Fed.R.Civ.P. 12(b)(6).4  (footnote supplied).


5
Judgment was entered on October 29, 1993.  Thereafter, on November 2, 1993, Negron filed a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e).  This motion was supplemented by Negron on November 4, 1993, subsequently opposed by defendants, and ultimately denied by the district court on November 17, 1993.  This appeal followed on November 29, 1993.5  We do not disturb the district court's dismissal of Negron's claims under the Due Process Clause and the Americans with Disabilities Act, but we reverse the dismissal of her Sec. 1983 claim.

I.

6
Although defendants ostensibly brought their motion to dismiss under Fed.R.Civ.P. 12(b)(1) ("lack of jurisdiction over the subject matter"), the district court granted it pursuant to Fed.R.Civ.P. 12(b)(6) ("failure to state a claim upon which relief can be granted").  For purposes of this appeal, however, we need not decide whether defendants' motion is more appropriately cast under one rule or the other.  In either case, we review the district court's decision granting defendants' motion to dismiss de novo.  Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994).  "We take the allegations of the complaint to be true, and we will not affirm the district court's dismissal unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of [her] claim which would entitle [her] to relief."  Carney v. Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir.1994);  e.g., Vartanian, 14 F.3d at 700.


7
Negron's complaint contained the following relevant allegations.  Negron began her employment with Puerto Rico's Legislative Library on July 14, 1967, as a Librarian Grade II.  She worked continuously for the library until she learned of her dismissal by way of a letter, dated January 29, 1993, signed by Nelida Jimenez Velazquez, Director of the Legislative Service Office.  During the period of her employment, Negron's job performance was exemplary.  At the time of her discharge, she was a Librarian Grade V.


8
On November 4, 1992--prior to Negron's dismissal--Zaida Hernandez Torres and Roberto Rexach Benitez, members of Puerto Rico's New Progressive Party, were elected to Puerto Rico's House of Representatives and Senate, respectively.  On or about January 11, 1993, Hernandez was elected President of the House of Representatives and Rexach was chosen to be President of the Senate.  On that same date, Hernandez and Rexach appointed Jimenez, also a member of the New Progressive Party, Director of the Legislative Service Office.  Less than three weeks later, Negron, who is affiliated with Puerto Rico's Popular Democratic Party, was discharged.  She was replaced by a New Progressive Party activist.

II.

9
Negron argues on appeal that, contrary to the district court's conclusion, defendants' decision to discharge her was not a legislative act entitled to absolute legislative immunity from damages under Sec. 1983.  We agree.


10
It is established that "state legislators enjoy common-law immunity from liability for their legislative acts ... that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause."  Supreme Court of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980).  In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the United States Supreme Court "concluded that Congress did not intend Sec. 1983 to abrogate the common-law immunity of state legislators."  Supreme Court of Va., 446 U.S. at 732, 100 S.Ct. at 1974.   Nevertheless, the Supreme Court "has been cautious in recognizing claims that government officials should be free of the obligation to answer for their acts in court."  Forrester v. White, 484 U.S. 219, 223-24, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988).  Legislators are absolutely immune only from claims that stem from their legitimate legislative activities.  E.g., Supreme Court of Va., 446 U.S. at 732, 100 S.Ct. at 1974;  Roberson v. Mullins, 29 F.3d 132, 134 (4th Cir.1994);  see Forrester, 484 U.S. at 227, 108 S.Ct. at 544 ("[I]mmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches."  (emphasis in original));  Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 23 (1st Cir.1992) ("Under current legal theory, immunity attaches or does not attach depending on what kind of action was performed rather than on who performed the action.").  Acts undertaken by legislators that are administrative in nature do not "give rise to absolute immunity from liability in damages under Sec. 1983."  Forrester, 484 U.S. at 229, 108 S.Ct. at 545;  Acevedo-Cordero, 958 F.2d at 23;  Gross v. Winter, 876 F.2d 165, 170-73 (D.C.Cir.1989).


11
The issue is thus whether defendants were acting in a legislative or administrative capacity when they discharged Negron.  In Cutting v. Muzzey, 724 F.2d 259 (1st Cir.1984), we spoke of


12
two tests for distinguishing between legislative and administrative activity.  The first test focuses on the nature of the facts used to reach the given decision.  If the underlying facts on which the decision is based are "legislative facts," such as "generalizations concerning a policy or state of affairs," then the decision is legislative.  If the facts used in the decisionmaking are more specific, such as those that relate to particular individuals or situations, then the decision is administrative.  The second test focuses on the "particularity of the impact of the state action."   If the action involves establishment of a general policy, it is legislative;  if the action "single[s] out specifiable individuals and affect[s] them differently from others," it is administrative.


13
Id. at 261 (quoting Developments in the Law--Zoning, 91 Harv.L.Rev. 1427, 1510-11 (1978));  e.g., Roberson, 29 F.3d at 135 ("[A] local governmental body ... acts in a legislative capacity when it engages in the process of 'adopt[ing] prospective, legislative-type rules.' "  (quoting Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir.1989))).  Under either of these purported tests, defendants' decision to replace Negron--a member of the Popular Democratic Party--with a New Progressive Party activist was administrative.  E.g., Forrester, 484 U.S. at 229, 108 S.Ct. at 545 (holding that state-court judge acted in an administrative capacity when he demoted and discharged a subordinate probation officer, allegedly on account of her sex, and, therefore, was not absolutely immune from a suit for damages under Sec. 1983);  Roberson, 29 F.3d at 135 (holding that members of a county board did not act in a legislative capacity when they terminated the public works superintendent, allegedly on account of his political affiliation, and, therefore, were not absolutely immune from a suit for damages under Sec. 1983);  Gross, 876 F.2d at 170-73 (holding that councilmember acted in an administrative, not legislative, capacity when she discharged a legislative researcher, allegedly on account of her religion, and, therefore, was not absolutely immune from a suit for damages under Sec. 1983);  c.f. Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir.1988) (finding absolute legislative immunity under the circumstances, but agreeing with plaintiffs "to the extent that employment decisions generally are administrative, regardless [of] whether [they are] made by a judge or a legislature").  The district court erred, therefore, when it dismissed Negron's Sec. 1983 claim on the grounds that defendants were shielded by absolute legislative immunity.6

III.

14
The district court's dismissal of Negron's Sec. 1983 claim is reversed, and we remand for further proceedings consistent with this opinion.  As Negron does not argue on appeal that the district court erred in dismissing her claims brought pursuant to the Due Process Clause and the Americans with Disabilities Act (i.e., Counts 2 and 3), we do not disturb the district court's dismissal of those counts.


15
So ordered.



*
 Of the District of Rhode Island, sitting by designation


1
 The purpose of the Legislative Library is "to make all kinds of basic reference material available to the members of [Puerto Rico's] Legislative Assembly and to persons in the community who may be interested in gathering data on the legislative proceedings and other governmental activities."   1964 P.R.Laws Act No. 59 (Statement of Motives)


2
 Pursuant to P.R.Laws Ann. tit. 2, Sec. 424 (1982):
All officers and employees of the Legislative Library shall form part of the personnel of the Legislative Service Office and shall be appointed according to the procedure established for the appointment of said personnel.


3
 "The doctrine of absolute [legislative] immunity provides a complete bar to civil liability for damages, regardless of the culpability of the actor...."  Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 22 (1st Cir.1992)


4
 The district court observed that defendants' motion was unopposed.  Pursuant to Local Rule 311.5 of the United States District Court for the District of Puerto Rico, "[i]f the respondent opposes a motion, [she] shall file a response within ten (10) days after service of the motion, including brief and such supporting documents as are then available...."  Failure to so respond renders a party susceptible to involuntary dismissal, pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute.  See Local Rule 313.3 (D.P.R.).  Here, however, the district court dismissed for failure to state a claim, not failure to prosecute, and neither the court nor appellees suggest that Negron has waived her right to appeal from the dismissal by initially failing to oppose Hernandez and Jimenez's motion


5
 Negron filed a second notice of appeal on January 24, 1994, because her Rule 59(e) motion, while denied on November 17, 1993, was not actually entered in the docket until January 12, 1994


6
 We do not reach the issue of whether defendants may be entitled to qualified immunity, see Forrester, 484 U.S. at 230, 108 S.Ct. at 545-46;  Gross, 876 F.2d at 173 n. 12, "which provides a bar to liability for damages only where the immune actor can show that his actions were reasonable," Acevedo-Cordero, 958 F.2d at 22


