Ruotolo v. City of New York, No. 06-3886 (2d Cir. 2008)

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06-3886-cv Ruotolo v. City of New York 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: September 25, 2007 Decided: February 6, 2008) Docket No. 06-3886-cv - - - - - - - - - - - - - - - - - - - -X ANGELO RUOTOLO, Plaintiff-Appellant, - v.CITY OF NEW YORK; RAYMOND KELLY, Commissioner of Police, City of New York; PATRICK J. TIMLIN, Former Chief of Police, City of New York, Bronx; RAYMOND ROONEY, Deputy Inspector, New York City Police Department, formerly Commanding Officer 50th Precinct, Bronx; WILLIAM RILEY, Lieutenant, New York City Police Department, formerly Integrity Control Officer, 50th Precinct, Bronx, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, LEVAL and SOTOMAYOR, Circuit Judges. Appeal from the judgment of the United States District 1 Court for the Southern District of New York (Stein, J.) 2 dismissing, under Fed. R. Civ. P. 12(b)(6), a police 3 officer s claim that he was subjected to retaliation in 4 violation of his First Amendment rights for [i] writing an 5 official report about health concerns at his precinct, and 6 [ii] filing a lawsuit that challenged personnel action taken 7 against him in the wake of that report. 8 the denial of leave to amend the complaint. 9 10 11 12 13 14 15 16 17 18 19 20 Also appealed is AFFIRMED. ANDREW M. WONG, New York, NY, for Plaintiff-Appellant. TAHIRIH M. SADRIEH, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel for the City of New York), New York, NY, for Defendants-Appellees. DENNIS JACOBS, Chief Judge: Retired police sergeant Angelo Ruotolo ( Ruotolo ) sues 21 the City of New York (the City ) and various officials and 22 members of the New York City Police Department 23 (collectively, the NYPD ), alleging retaliation in 24 violation of the First Amendment for his speech regarding 25 health concerns at his precinct. 26 of the United States District Court for the Southern 27 District of New York (Stein, J.), granting defendants 2 He appeals from a judgment 1 motion to dismiss the Second Amended and Supplemental 2 Complaint (the Complaint ) for failure to state a claim 3 under Fed. R. Civ. P. 12(b)(6). 4 of a report concerning health conditions at his precinct, 5 which he was directed to prepare in his role as precinct 6 Safety Officer, and a lawsuit he filed in the wake of 7 retaliatory personnel action taken against him after the 8 report was submitted. 9 Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006), Ruotolo s speech consisted The district court dismissed, citing 10 on the ground that both the report and the lawsuit were 11 unprotected because Ruotolo was speaking as a public 12 employee in the course of his employment duties. 13 is taken from the dismissal of the claim premised on 14 Ruotolo s report. 15 ground that it did not address a matter of public concern. 16 And we affirm the district court s exercise of its 17 discretion to deny leave to amend the complaint based on 18 plaintiff s delay and the undue burden and prejudice to 19 defendants. No appeal As to Ruotolo s lawsuit, we affirm on the 20 21 22 BACKGROUND Ruotolo was an NYPD Sergeant with 20 years service when 3 1 he retired in 2004. In October 1999, Ruotolo was serving as 2 the Training and Safety Officer for the 50th Precinct in the 3 Bronx. 4 contamination and health risks at the precinct from 5 underground gasoline storage tanks, Ruotolo was assigned--in 6 his capacity as Safety Officer--to survey employee illnesses 7 and deaths that might be related to this potential 8 environmental hazard. 9 28, 1999 (the October 1999 Report ), and titled Survey When a local newspaper reported possible His two-page report, dated October 10 Pursuant to Request, identified a seemingly large number of 11 cancers, miscarriages, birth defects and other health 12 problems afflicting individuals working at the precinct. 13 Ruotolo recommended a thorough environmental evaluation, 14 which was done. 15 The environmental experts reported that leakage from 16 the fuel storage tanks into the soil and air had raised 17 contaminant levels above OSHA and EPA safety standards. 18 great expense and over many months, the City undertook to 19 abate the hazard. 20 Benevolent Association ( PBA ) came to the precinct in April 21 2000 to sign up potential plaintiffs for a personal injury 22 lawsuit. At Representatives of the Patrolmen s One of the PBA lawyers asked to speak with Ruotolo 4 1 because he was the author of the October 1999 Report. 2 Ruotolo testified in his March 2005 deposition in this 3 lawsuit, he answered the PBA s questions with the knowledge 4 of his commanding officer, spoke to no one else about the 5 proposed lawsuit, did not himself enlist as a plaintiff, and 6 never learned whether an action was filed. 7 was not pled in any version of Ruotolo s complaint prior to 8 dismissal of the action, but it is relevant to our analysis. 9 As This encounter Ruotolo alleges that he experienced on-the-job 10 retaliation starting soon after submitting the October 1999 11 Report to his commanding officer, and continuing until he 12 retired. 13 to undesirable shifts and to duties he considered beneath 14 his rank and tenure, denial of use of leave time, transfer 15 to a less desirable precinct, and discipline for trivial or 16 fabricated reasons. 17 retaliation (in the original complaint in this lawsuit, 18 filed in July 2003), Ruotolo alleged (in amended complaints) 19 that the retaliation took additional forms, including verbal 20 harassment by superior officers, denial of overtime 21 assignments, the first negative performance review of his 22 career, and excessive discipline for a minor infraction. The retaliation included: frequent reassignments After Ruotolo alleged those acts of 5 1 As a result of that discipline, Ruotolo was put on modified 2 duty, and was stripped of his badge, shield, identification 3 card and weapons. 4 retired on July 26, 2004, which meant he lost the privilege 5 of carrying a firearm after retirement (thus reducing his 6 prospect for future income in the security field). 7 these experiences, Ruotolo attributed to the City a 8 municipal custom and practice of tolerance of the violation 9 of [whistle-blowers ] rights. 10 He was still on modified duty when he Based on As compensatory damages, Ruotolo alleges lost income 11 and reduced pension benefits. Ruotolo also seeks punitive 12 damages, and an injunction to (i) expunge from his 13 employment records the retaliatory disciplinary charges and 14 performance reviews, and (ii) restore impaired retirement 15 benefits and privileges. 16 The original complaint identified the October 1999 17 Report as the single episode of speech underlying his First 18 Amendment claim. 19 litigation, Ruotolo was twice given leave to amend his 20 complaint, notably to add the filing of his lawsuit as the 21 second--and only other--instance of speech for which Ruotolo 22 alleged retaliation. Over the next three years of active By May 2006, the parties had concluded 6 1 extensive discovery, narrowed the claims through multiple 2 dispositive motions (various state law claims were dismissed 3 on an earlier Rule 12(b)(6) motion), litigated numerous 4 discovery and trial-related motions, and submitted their 5 final joint pretrial order. 6 Trial on Ruotolo s surviving claims was two weeks away 7 when the Supreme Court ruled in Garcetti v. Ceballos that 8 when public employees make statements pursuant to their 9 official duties, the employees are not speaking as citizens 10 for First Amendment purposes, and the Constitution does not 11 insulate their communications from employer discipline. 12 126 S. Ct. 1951, 1960 (2006). 13 motion to dismiss, the district court ruled that the First 14 Amendment claim succumbed to Garcetti because Ruotolo 15 admittedly wrote the October 1999 Report in his capacity as 16 Safety Officer, and because the lawsuit was premised solely 17 on non-actionable speech. 18 explained: 19 20 21 22 23 24 25 26 Upon the defendants renewed As to the lawsuit, the court After Garcetti, for a lawsuit adequately to charge a First Amendment retaliation claim, the lawsuit must be predicated on speech made by a public employee as a citizen, and not pursuant to his or her official duties. To hold otherwise--that filing a lawsuit alleging retaliation for nonprotected speech would give rise to a First Amendment complaint--would defy logic, allowing a 7 1 2 3 4 5 6 plaintiff to bootstrap a non-actionable objection to legitimate employer discipline into a valid First Amendment claim. (Emphasis in original). In opposing the Rule 12(b)(6) motion, Ruotolo 7 unsuccessfully attempted to rehabilitate his Complaint by 8 reference to his deposition testimony about the April 2000 9 conversation with a PBA representative. For the first time, 10 Ruotolo argued that he was not then speaking in his official 11 capacity as Safety Officer (and author of the October 1999 12 Report), but rather was speaking as a private citizen on a 13 health matter of public concern. 14 never alleged the April 2000 PBA conversation, the district 15 court decided that the exchange with the PBA was outside the 16 pleadings and not properly considered on a motion to 17 dismiss. 18 As Ruotolo had as yet Final judgment was entered on July 21, 2006. Ruotolo 19 moved to vacate the judgment and for leave to file a Third 20 Amended and Supplemental Complaint. 21 denied vacatur because Ruotolo failed to demonstrate a need 22 to prevent manifest injustice or correct a clear error that 23 would affect the outcome of the case. 24 also denied leave to amend to add the PBA conversation 8 The district court The district court 1 because of undue delay, and the undue burden and prejudice 2 that would result to defendants. 3 these rulings and the final judgment. Ruotolo timely appealed 4 5 DISCUSSION 6 We review de novo a district court s dismissal of a 7 complaint pursuant to Rule 12(b)(6), accepting all factual 8 allegations in the complaint and drawing all reasonable 9 inferences in the plaintiff s favor. ATSI Commc n, Inc. v. 10 Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). To 11 survive a motion to dismiss, a complaint must plead enough 12 facts to state a claim to relief that is plausible on its 13 face. 14 Ct. 1955, 1974 (2007). Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S. 15 A 16 17 On appeal, Ruotolo concedes that Garcetti mandates 18 dismissal of the First Amendment claim premised on the 19 October 1999 Report. 20 district court erred in reading Garcetti to require 21 dismissal of the claim premised on his filing a federal 22 lawsuit. Ruotolo argues, however, that the We hold that Ruotolo s claim based on his lawsuit 9 1 must fail because his lawsuit did not address a matter of 2 public concern. 3 Whether public employee speech is protected from 4 retaliation under the First Amendment entails two inquiries: 5 (1) whether the employee spoke as a citizen on a matter of 6 public concern and, if so, (2) whether the relevant 7 government entity had an adequate justification for treating 8 the employee differently from any other member of the 9 general public. Garcetti, 126 S. Ct. at 1958 (citing 10 Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 11 Will County, 391 U.S. 563, 568 (1968)); see also Skehan v. 12 Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006) 13 (rephrasing the test for a First Amendment retaliation claim 14 as three-pronged, requiring plaintiffs to prove: (1) they 15 engaged in constitutionally protected speech because they 16 spoke as citizens on a matter of public concern; (2) they 17 suffered an adverse employment action; and (3) the speech 18 was a motivating factor in the adverse employment decision 19 (internal quotation marks and citation omitted)). The 20 majority opinion in Garcetti focused on the first inquiry, 21 and specifically its operation as a limiting principle when 22 the government is acting as an employer, exercising control 10 1 over employee speech in the interest of the efficient 2 provision of public services. 3 1958. 4 employers) have heightened interests in controlling speech 5 made by an employee in his or her professional capacity, 6 the Supreme Court ruled that a public employee speaking in 7 his official capacity is not speaking as a citizen for First 8 Amendment purposes, id. at 1960, and employer retaliation 9 for such speech does not justify the displacement of 10 11 Garcetti, 126 S. Ct. at Recognizing that government employers (like private managerial discretion by judicial supervision, id. at 1961. The principal episode of speech at issue in Garcetti 12 was a memo in which a deputy district attorney alerted his 13 supervisors to perceived irregularities in how a search 14 warrant was obtained in a particular case. 15 that First Amendment claim, the Court emphasized that the 16 memo was written as part of the employee s official duties 17 and that the employer s negative reaction to it simply 18 reflects the exercise of employer control over what the 19 employer itself has commissioned or created. 20 The Garcetti plaintiff did not act as a citizen when he 21 went about conducting his daily professional activities . . 22 . . When he went to work and performed the tasks he was paid 11 In precluding Id. at 1960. 1 to perform, [plaintiff] acted as a government employee. 2 Id. 3 October 1999 Report as part of his official duties, and for 4 that reason Ruotolo has not appealed from this aspect of the 5 district court s ruling.1 6 Similarly (as is undisputed here), Ruotolo prepared his Ruotolo argues that his First Amendment retaliation 7 claim nonetheless survives as to damages arising out of 8 post-lawsuit retaliation, because this lawsuit was filed in 9 his capacity as a private citizen. The district court 10 rejected this argument, holding that under Garcetti, the 11 First Amendment does not protect a government employee from 12 retaliation for filing a lawsuit in which the underlying 13 retaliation claim rests on non-actionable official speech. 14 We need not decide whether Ruotolo s lawsuit amounts to 15 speech by a citizen rather than by a public employee 16 within the meaning of Garcetti: a simpler ground is 17 available because in any event that speech is not on a 1 As the Garcetti Court observed, public employees who suffer retaliation for their official speech are not without recourse, and should avail themselves of the powerful network of legislative enactments--such as whistle-blower protection laws and labor codes--available to those who seek to expose wrongdoing. Garcetti, 126 S. Ct. at 1962. We express no opinion as to the availability of such recourse to Ruotolo. 12 1 matter of public concern. Id. at 1958. 2 Whether an employee s speech addresses a matter of 3 public concern is a question of law for the court to decide, 4 taking into account the content, form, and context of a 5 given statement as revealed by the whole record. 6 Cowen, 165 F.3d 154, 163 (2d Cir. 1999) (citing Connick v. 7 Myers, 461 U.S. 138, 147-48 and n.7 (1983)). 8 the matter is whether the employee s speech was calculated 9 to redress personal grievances or whether it had a broader The heart of 10 public purpose. 11 lawsuit sought to redress his personal grievances. 12 not seek to advance a public purpose. 13 that his lawsuit did not constitute speech on a matter of 14 public concern, and we affirm the district court s dismissal 15 on that basis. 16 Lewis, 165 F.3d at 163-64. Lewis v. Ruotolo s It did We therefore hold As to the personal nature of Ruotolo s grievances, the 17 Complaint alleges that Ruotolo wrote the October 1999 Report 18 because he was assigned to do so as part of his job, and 19 that the Report led to retaliatory acts affecting Ruotolo 20 alone. 21 upon the circumstances and perquisites of his employment, 22 such as reassignment, transfer, time off, and discipline. The acts of alleged retaliation against Ruotolo bear 13 1 The section of the Complaint titled Consequences of the 2 Retaliation enumerates adverse career, financial and 3 emotional effects that Ruotolo suffered personally. 4 relief sought is also almost entirely personal to Ruotolo, 5 including compensatory damages and an injunction relating to 6 Ruotolo s employment records. 7 The The Complaint accuses the City of routinely tolerating 8 the violation of whistleblower rights, and seeks punitive 9 damages to deter future illegal and retaliatory conduct, 10 arguably hinting at some broader public purpose. 11 retaliation against the airing of generally personal 12 grievances is not brought within the protection of the First 13 Amendment by the mere fact that one or two of [a public 14 employee s] comments could be construed broadly to implicate 15 matters of public concern. 16 & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991). 17 However, Ezekwo v. New York City Health In Ezekwo, a physician complained about aspects of her 18 hospital residency program, including unfair evaluation of 19 her by attending physicians, the lack of opportunity to 20 perform surgery and learn specialized skills, and 21 discrimination on the basis of race, sex and national 22 origin. She also complained generally about the attending 14 1 physicians poor management skills and teaching methods, 2 their lack of punctuality, and the lack of proper hospital 3 maintenance. 4 whole, we held that, for First Amendment purposes, these 5 complaints were not matters of public concern. 6 Although the quality of a physician-training program may 7 affect the public, we concluded that the plaintiff was not 8 on a mission to protect the public welfare. 9 primary aim was to protect her own reputation and individual Viewing these complaints objectively and as a Id. Rather her 10 development as a doctor. 11 155 F.3d 596, 603 (2d Cir. 1998) (finding no public concern 12 in complaints about working conditions made by customs 13 officers who alleged retaliation when they were reassigned, 14 despite their claim that the relocations would adversely 15 affect homeland security); Cotarelo v. Vill. of Sleepy 16 Hollow Police Dep t, 460 F.3d 247, 252 (2d Cir. 2006) 17 (finding police officer s lawsuit is a matter of public 18 concern because his allegations concerned discrimination 19 problems generally and were not limited to instances 20 affecting only [the plaintiff]. ). 21 22 Id.; see also Tiltti v. Weise, As the Eleventh Circuit observed, [a] public employee may not transform a personal grievance into a matter of 15 1 public concern by invoking a supposed popular interest in 2 the way public institutions are run. 3 F.3d 1333, 1343 (11th Cir. 2007) (quoting Ferrara v. Mills, 4 781 F.2d 1508, 1516 (11th Cir. 1986)). 5 interest in the fair or proper treatment of public employees 6 is not enough. 7 essentially personal grievances and the relief he seeks is 8 for himself alone, the lawsuit is not speech on a matter of 9 public concern and cannot sustain a First Amendment 10 Boyce v. Andrew, 510 A generalized public Because Ruotolo s lawsuit concerns retaliation claim. 11 12 13 B After final judgment was entered dismissing the 14 Complaint, Ruotolo moved to vacate the judgment and file a 15 Third Amended and Supplemental Complaint. 16 sought to plead another instance of speech that would not be 17 vulnerable to the specific Garcetti analysis that had 18 defeated the claim premised on the October 1999 Report. 19 proposed amended pleading frames Ruotolo s April 2000 20 conversation with PBA representatives as an episode of 21 protected speech made in his capacity as a private citizen. 22 A denial of a motion to vacate a judgment under Rule 60(b) 16 Thus Ruotolo The 1 is reviewed for abuse of discretion, see Transaero, Inc. v. 2 La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998), 3 likewise, a denial of leave to amend a complaint under Rule 4 15(a), see Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 5 (2d Cir. 1993) (per curiam). 6 A party seeking to file an amended complaint post- 7 judgment must first have the judgment vacated or set aside 8 pursuant to Fed. R. Civ. P. 59(e) or 60(b). 9 Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, See Nat l 10 244-45 (2d Cir. 1991) (noting that Rule 15(a) s liberal 11 amendment policy should not be employed in a way that is 12 contrary to the philosophy favoring finality of judgments 13 and the expeditious termination of litigation (internal 14 quotation marks and citation omitted)). 15 set aside the judgment pursuant to Rule 60(b), a mechanism 16 for extraordinary judicial relief invoked only if the 17 moving party demonstrates exceptional circumstances. 18 Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 19 1994) (citation omitted). 20 exceptional circumstances, and Ruotolo s appeal does not 21 press for relief on that ground. 22 be a basis for Rule 60(b) relief. Ruotolo moved to The district court found no such 17 Nor does there appear to Therefore, ordinarily it 1 would be contradictory to entertain a motion to amend the 2 complaint. 3 245. 4 provision in rule 15(a) that leave [to amend] shall be 5 freely given when justice so requires, it might be 6 appropriate in a proper case to take into account the nature 7 of the proposed amendment in deciding whether to vacate the 8 previously entered judgment. 9 371 U.S. 178, 182 (1962)). Nat l Petrochemical Co. of Iran, 930 F.2d at However, we have said in dicta that in view of the Id. (citing Foman v. Davis, Even assuming that a post- 10 judgment motion to amend can be heard, we see no basis for 11 finding any abuse of discretion here. 12 Leave to amend, though liberally granted, may properly 13 be denied for: undue delay, bad faith or dilatory motive 14 on the part of the movant, repeated failure to cure 15 deficiencies by amendments previously allowed, undue 16 prejudice to the opposing party by virtue of allowance of 17 the amendment, futility of amendment, etc. 18 at 182. 19 or undue prejudice, does not provide a basis for the 20 district court to deny the right to amend. 21 Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); 22 see also 6 Charles Allen Wright, Arthur R. Miller & Mary Kay Foman, 371 U.S. Mere delay, however, absent a showing of bad faith 18 State Teachers 1 Kane, Federal Practice and Procedure: Civil 2d, § 1487, at 2 613 (1990 & 2007 Supp.) (citing prejudice to the opposing 3 party as the most important factor and the most frequent 4 reason for denying leave to amend ). 5 relief, the district court found that Ruotolo s delay in 6 seeking leave to amend was inexcusable given the previous 7 opportunities to amend, and the defendants burden and 8 prejudice. 9 its discretion. In denying Rule 15(a) These findings were well within the bounds of 10 When the original complaint was filed in 2003, Ruotolo 11 certainly knew about his own conversation with the PBA back 12 in 2000. 13 conversation on the ground that he did not realize its 14 significance until the Supreme Court spoke in Garcetti. 15 True, Ruotolo was not required to plead every conversation 16 he had as a private citizen; but he may be expected to have 17 pled every such conversation as to which he was asserting 18 unconstitutional retaliation. 19 Garcetti prevented or inhibited him from pleading the PBA 20 conversation. 21 March 2005 deposition, he evidently did not believe that he 22 suffered unconstitutional retaliation on that account, and Ruotolo seeks to excuse his delay in pleading this Nothing in the law pre- Even after Ruotolo testified about it at his 19 1 therefore did not mention it in his Second Amended and 2 Supplemental Complaint filed in August 2005. 3 moving party has had an opportunity to assert the amendment 4 earlier, but has waited until after judgment before 5 requesting leave, a court may exercise its discretion more 6 exactingly. 7 Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990) 8 (denying leave to amend complaint to plead additional causes 9 of action based on foreign law long known to movant). 10 When the State Trading Corp. of India, Ltd. v. In gauging prejudice, we consider, among other factors, 11 whether an amendment would require the opponent to expend 12 significant additional resources to conduct discovery and 13 prepare for trial or significantly delay the resolution of 14 the dispute. 15 350 (2d Cir. 1993). 16 amendment [comes] on the eve of trial and would result in 17 new problems of proof. 18 (reversing denial of leave to amend sought promptly after 19 learning new facts, where no trial date had been set by the 20 court and no motion for summary judgment had yet been filed 21 by the defendants and where the amendment will not involve 22 a great deal of additional discovery ). Block v. First Blood Assocs., 988 F.2d 344, Undue prejudice arises when an Fluor Corp., 654 F.2d at 856 20 1 Ruotolo argues that he should not be faulted for his 2 delay in seeking to amend his complaint prior to the 3 Garcetti decision because prior to Garcetti he had no good 4 reason to do so. 5 of this argument because Ruotolo did not move promptly 6 following the Garcetti decision, when the vulnerability of 7 his complaint became evident. 8 the district court dismissed his complaint to propose an 9 amendment. 10 We need not decide what would be the force Ruotolo waited until after Ruotolo s proposed amendment comes post-judgment in a 11 case that had been trial-ready, and pleads a new scenario 12 that would prevent disposition of the case until either 13 further motion practice or a trial--and any trial or motion 14 practice would likely be delayed pending discovery on open 15 questions. 16 in his official capacity? 17 conversation provoke retaliation? 18 teased apart from the retaliation allegedly premised on the 19 October 1999 Report? 20 unduly burden and prejudice defendants in the circumstances 21 of this case, it is properly barred. 22 377 F.2d 262, 263 (2d Cir. 1967) (per curiam) (affirming Did Ruotolo participate in the PBA conversation Who said what? Did that Can that retaliation be Because the proposed amendment would 21 See Bradick v. Israel, 1 denial of motion to amend brought on eve of trial, adding 2 new theories of law and new problems of proof); 6 Wright, 3 Miller & Kane, § 1487, at 623 and n.9 (amendment is 4 prejudicial when it substantially changes the theory on 5 which the case has been proceeding and is proposed late 6 enough so that the opponent would be required to engage in 7 significant new preparation ). 8 for vacatur or other post-judgment relief. We therefore see no ground 9 C 10 11 Ruotolo s remaining arguments pertain to his due 12 process claim and the New York State whistle-blower 13 protection statute. 14 because they were raised for the first time on appeal. 15 Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 16 2006). Those claims are not properly before us See 17 CONCLUSION 18 19 20 For the foregoing reasons, the judgment of the district court is affirmed. 22

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