
USCA1 Opinion

	




          S   e   p   t   e   m   b   e   r     2   2   ,     1   9   9   4                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ______________________          No. 93-2376          No. 94-1183                              OLGA J. NEGRON-GAZTAMBIDE,                                Plaintiff, Appellant,                                          v.                        ZAIDA HERNANDEZ-TORRES, ETC., ET AL.,                                Defendants, Appellees.                                   _______________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of this  Court issued on September 15,  1994, is          corrected as follows:               On cover sheet:  change "sitting my designation" to "sitting          by designation."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2376          No. 94-1183                              OLGA J. NEGRON-GAZTAMBIDE,                                Plaintiff, Appellant,                                          v.                        ZAIDA HERNANDEZ-TORRES, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                            and Lagueux, District Judge.*                                         ______________                                 ____________________               Carlos A. Del Valle Cruz, with whom Ricardo L. Torres Munoz,               ________________________            _______________________          was on brief for appellant.               Teresa  Medina  Monteserin,  with  whom  Manuel  D.  Herrero               __________________________               ___________________          Garcia, and Miguel A. Pagan-Rivera were on brief for appellees.          ______      ______________________                                 ____________________                                  September 15, 1994                                 ____________________          ______________________          *Of the District of Rhode Island, sitting by designation.                                        ____________________          *Of the District of Rhode Island, sitting my designation.                      CAMPBELL,  Senior  Circuit  Judge.     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                                            ____________________            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,   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-            Popular Democratic  Party in  violation of the  First, Fifth,            and  Fourteenth Amendments of  the United States Constitution            and  42  U.S.C.    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.    12101-12213 (Supp. IV 1992).                      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,    6 (Speech  or Debate                         ___            Clause); P.R.  Const. art. III,    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:                           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.                           WHEREFORE, for the reasons stated in                      defendants' motion, this  case is  hereby                                            ____________________            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-                      DISMISSED  pursuant  to Fed.  R.  Civ. P.                      12(b)(6).4  (footnote supplied).            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   1983 claim.                                          I.                      Although defendants ostensibly brought their motion            to  dismiss  under  Fed.  R.  Civ.   P.  12(b)(1)  ("lack  of                                            ____________________            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.                                         -5-            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.                                 ____  _________                      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.                        On November 4, 1992     prior to Negron's dismissal               Zaida Hernandez Torres and Roberto Rexach Benitez, members                                         -6-            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.                      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   1983.  We agree.                      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, 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    1983 to  abrogate                                         -7-            the common-law immunity of state legislators."  Supreme Court                                                            _____________            of Va., 446  U.S. at  732.  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, 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;  Roberson v. Mullins,  No. 93-1618,               ___                     ________    _______            F.3d    , 1994 WL 322560, at *1 (4th  Cir. July 8, 1994); see                                                                      ___            Forrester,  484 U.S.  at  227 ("[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   1983."  Forrester, 484 U.S. at 229; Acevedo-                                     _________                   ________            Cordero,  958 F.2d at 23; Gross v. Winter, 876 F.2d 165, 170-            _______                   _____    ______            73 (D.C. Cir. 1989).                          The issue is thus whether defendants were acting in            a legislative or administrative capacity when they discharged                                         -8-            Negron.  In Cutting v. Muzzey, 724 F.2d 259  (1st Cir. 1984),                        _______    ______            we spoke of                       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.            Id. at 261 (quoting Developments in the Law  Zoning, 91 Harv.            ___                 _______________________________            L. Rev.  1427, 1510-11 (1978)); e.g.,  Roberson, No. 93-1618,                                            ____   ________                F.3d   , 1994 WL  322560, at *2  ("[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                                    ____   _________            (holding that state-court  judge acted  in an  administrative                                         -9-            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   1983);  Roberson, No.  93-1618,    F.3d    , 1994  WL                            ________            322560, at *2 (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    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   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   1983  claim on  the            grounds that defendants were shielded by absolute legislative            immunity.6                                              ____________________            6.  We  do not reach the  issue of whether  defendants may be            entitled to  qualified immunity,  see Forrester, 484  U.S. at                                              ___ _________            230; 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                                                _______________                                         -10-                                        III.                        The  district court's dismissal  of Negron's   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.                      So ordered.                      __________                                            ____________________            at 22.                                         -11-
