Negron-Gaztambide v. Hernandez-Torres

• Court: Court of Appeals for the First Circuit
• Decided: September 22, 1994
• Docket: 93-2376
• Status: Published

Opinion

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-