Judge William Skretny
Hayes’ firm MKH Construction Inc. did work for the Buffalo Municipal Housing Authority (BMHA). BMHA allegedly retaliated against MKH for Hayes’ report of administrator Fischer—who later pleaded guilty to federal extortion charges—to the FBI. BMHA and its employees sought dismissal of plaintiffs’ claims for tortious interference with business relations, prima facie tort, and under the First Amendment. The court denied dismissal of Hayes’ First Amendment claim. He spoke as a citizen on a matter of public concern, and his personal interest in the subject matter did not remove his speech from First Amendment protection. The court also let stand Hayes’ claim that BMHA and individual defendants interfered with his business relationship with other contractors. Hayes alleged that a BMHA employee informed a general contractor who had just won a BMHA bid that it could not use Hayes’ company as a subcontractor. Hayes’ prima facie tort claim was dismissed. His failure to itemize his special damages failed to satisfy the claim’s second element. Addition of a cause of action under the False Claims Act would be futile given Hayes’ failure to allege that Fischer, or anyone else, defrauded or tried to defraud the federal government.
