Appellate sua sponte dismissal under Rule 12(b)(6) had never occurred in US history. On March 25, 2008, the Massachusetts Appeal Court voluntarily (sua sponte) dismissed Yong Lis discrimination lawsuit against her ex-employer Raytheon Company for failure to state a claim upon which relief can be granted (Rule 12(b)(6), despite the issue of failure to state a claim had never been raised in the low court. The Appeal Courts ruling can be subjected to appellate sua sponte dismissal under Rule 12(b)(6). Accordingly, we urge the Massachusetts Supreme Court to review Yong Lis appeal from such outstanding ruling.

Yong Li was a senior software engineer in Raytheon's Marlborough facility. As a result of her early year internal discrimination complaint, she was retaliatory harassed by her managers in 2004. The harassment caused her worried about her personal safety. When she emailed to the human resource and addressed her personal safety and family safety concern, Raytheon, through EAP counselor John Didio, imposed a mental evaluation without her consent. The counselor did not ask why she felt unsafe, he directly asked do you want to kill someone with his finger pointing at her and showing scurrilous staring. Gripped with panic, she was traumatized and became long term disabled. (see the Appeal Courts judgment http://www.bbcdaily.com/li/thefile/appealJudgment.pdf and Lis FAR http://www.bbcdaily.com/li/thefile/Application4FurtherAppellateReivew.pdf )

Originally, the Middlesex Superior Court dismissed Li's case for a pending action in the federal court. On appeal, the judges panel ruled that the Superior Court erred by dismissing the case. However, the panel did not remand the case back to the Superior Court. Instead, the panel sat as a low court judge and voluntarily ruled dismissal under Rule 12(b)(6). Since the sua sponte dismissal under Rule 12(b)(6) directly occurred in the Appeal Court, Yong Li had no opportunity to go appeal court. Any appeal in the Supreme Court will not be a matter of right. Thus, the Appeal Court deprived Yong Lis right to appeal and violated her Fourteenth Amendment rights.

Even low-court sua sponte dismissal under Rule 12(b)(6) is very rare, and had been passed judgment in the Massachusetts Appeal Court. The federal court allowed low-court sua sponte dismissal under Rule 12(b)(6), but only if the plaintiff had been proffered an opportunity to amend the complaint. In Yong Lis case, she was not allowed to amend the complaint, but also the sua sponte dismissal occurred in the upper court.

The appellate sue sponte dismissal under Rule 12(b)(6) is inconsistent with the fundamental principal of due process and violated the parties Fourteenth Amendment rights. We urge the Massachusetts Supreme Court review this case.