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                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

   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 &amp;  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-
