The Court of Appeals has reinstated a First Amendment retaliation lawsuit because the district court did not give plaintiff a fair opportunity to make certain arguments that could have saved the case from dismissal.
The case is Hughes v. Anderson, a summary order dated November 1. Plaintiff was a court officer working from the Unified Court System. He told the Chief Court of the Nassau County District Court that some court officers were leaving their posts early to work other jobs and falsified their time sheets to cover up their departure times. Cases like this are governed by Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that whistleblowing is not protected under the First Amendment if the speech is made pursuant to the plaintiff's official duties. Cases like this are now being routinely dismissed because most relevant work-related speech do grow out of the plaintiff's official duties.
Defendants' lawyers were probably licking their chops when they were assigned to handle this lawsuit, and they immediately began working on a Rule 12 motion to dismiss. The district court threw out the case "because, although Hughes’s alleged report of misconduct involved a matter of public concern, '[n]either the Complaint nor the proposed Amended Complaint adequately allege[d] facts to support the argument that the statement to the Chief Clerk was made outside Plaintiff’s official job duties.'”
There was a problem with the district court's ruling, which prompts the Second Circuit (Leval, Livingston and Lohier) to remand the case to the district court. "The district court erred in dismissing Hughes’s First Amendment claim with prejudice on a ground not raised by a defendant without giving him notice and opportunity to respond, and without affording him an opportunity to demonstrate that any deficiency in his complaint could be cured in an amended pleading. As a general matter (excepting clearly frivolous cases), it is improper for a district court to dismiss a complaint with prejudice for failure to state a claim without giving the plaintiff notice and an opportunity to be heard and to offer an amended pleading." Moral of the story is that the court has to give plaintiff a fair chance to save the complaint from dismissal. If not, the case returns to the trial court for round two.