Appeal from an order by the United States District Court for 7 the Western District of New York (Arcara, J.).
Rulings by summary order do not have precedential effect. Citation 7 to a summary order filed on or after January 1, 2007, is permitted 8 and is governed by Federal Rule of Appellate Procedure 32.1 and 9 this court's Local Rule 32.1.1. When citing a summary order in a 10 document filed with this court, a party must cite either the 11 Federal Appendix or an electronic database (with the notation 12 "summary order"). A party citing a summary order must serve a copy 13 of it on any party not represented by counsel.
15 At a stated term of the United States Court of Appeals for 16 the Second Circuit, held at the Daniel Patrick Moynihan United 17 States Courthouse, 500 Pearl Street, in the City of New York, on 18 the 10th day of October, two thousand twelve.
20 Present: RALPH K. WINTER, 21 REENA RAGGI, 22 DEBORAH ANN LIVINGSTON, 23 Circuit Judges.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED 10 AND DECREED that the order of said court be and hereby is 11 AFFIRMED in part, VACATED in part, and REMANDED.
13 Chris Collins, Christopher Grant, John Greenan, the County 14 of Erie, and Gregory Skibitsky appeal from Judge Arcara's order 15 denying their motion to dismiss based on legislative immunity.
16 Appellants assert that the district court erred in concluding 17 that it lacked sufficient factual information to conclude as a 18 matter of law that appellants' actions were protected by 19 legislative immunity. We assume familiarity with the underlying 20 facts, the procedural history, and the issues presented for 21 review.
22 When a district court denies absolute or qualified immunity 23 in response to a motion to dismiss, we review the district 24 court's denial de novo. State Emps. Bargaining Agent Coal. v. 25 Rowland, 494 F.3d 71, 82 (2d Cir. 2007). Accepting as true all 26 factual allegations in the complaint, we conclude that the 27 individual appellants, but not the County of Erie, are entitled 28 to absolute legislative immunity.
1 State, regional, and local legislators are entitled to 2 absolute immunity from liability under 42 U.S.C. § 1983 for 3 official action undertaken in "the sphere of legitimate 4 legislative activity." Tenny v. Brandhove, 341 U.S. 367, 376 5 (1951) (state legislators); Lake Country Estates, Inc. v. Tahoe 6 Reg'l Planning Agency, 440 U.S. 391, 404-05 (1979) (regional 7 legislators); Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998) 8 (local legislators).
9 More pertinently, "[l]egislative immunity shields from suit 10 not only legislators, but also officials in the executive and 11 judicial branches when they are acting 'in a legislative 12 capacity.'" Rowland, 494 F.3d at 82 (quoting Bogan, 523 U.S. at 13 55 (finding that actions by mayor that were "integral steps in 14 the legislative process" were protected by legislative 15 immunity)); see also Supreme Court v. Consumers Union of the 16 U.S., Inc., 446 U.S. 719, 734 (1980) (holding that Virginia 17 Supreme Court justices were entitled to legislative immunity for 18 actions taken in their legislative capacities). "Under the 19 Supreme Court's functional test [for determining the 20 applicability] of absolute legislative immunity, whether immunity 21 attaches turns not on the official's identity, or even on the 22 official's motive or intent, but on the nature of the act in 23 question." Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d 24 Cir. 2007); see also Bogan, 523 U.S. at 54-55.
1 Olma's position was eliminated in a budget amendment 2 approved by the Erie County Legislature on February 7, 2008. Olma 3 was thereafter terminated by letter dated February 15, 2008. He 4 was not administratively fired prior to the passage of the 5 budget. Cf. Jessen v. Town of Eastchester, 114 F.3d 7, 8 (2d 6 Cir. 1997) (upholding district court's denial of motion to 7 dismiss based on legislative immunity "[b]ecause the complaint 8 allege[d] that defendants fired Jessen before eliminating his 9 position through any legislative action").
10 The individual appellants acted "in a legislative capacity," 11 Bogan, 523 U.S. at 55, when they prepared and submitted to the 12 City Council the proposed budget amendment and accompanying memo 13 suggesting elimination of the position filled by Olma. See id. 14 (finding that mayor's introduction of budget was legislative, 15 even though mayor was an executive official). Their motives for 16 preparing and submitting the proposed budget amendment and memo 17 are irrelevant for purposes of the immunity analysis. Id. at 54- 18 55 ...