it please the court i'd like to reserve four minutes for rebuttal please what clarke i'll try to help you but keep an eye on the clock thank you your honor the question in this case is not whether there was a first amendment right of intimate association there is nor is the question with a republican ploy should suffer adverse employment action for exercising or maintaining the right she shouldn't the question this court is called exactly what ashcroft told us was too conclusory and didn't provide enough factual allegations to be taken as true or has to be to be presented to go director of the department of child safety the the letter that my client received terminating her relationship with the department of child safety was written by a procurement officer  acquiesce but there's no facts in here that says he even knew about what was happening or did i just am in the complaint no your honor obviously we were not behind the curtain when this decision was made within twenty four hours of the department of child sale as graphic vaults as that doesn't really matter i mean the fact that you'd rather have discovered a so you could find out what the person's  weren't behind the curtain but he assumed as the director of the department of child safety if an independent contractor is going to be terminated after the department learned  his marriage that the director certainly set into motion the procurement officer didn't know that you're telling me if i'm understanding correctly that even if you were given a chance to end the complaint you couldn't make any further allegations against mr mckay not it's not but this is a thank you so i share my colleagues concern about this because i think it makes it very clear that in order to be plausible you have to have some specifics you know you have done that any opportunity to do any discovery but the reality is just to accuse someone because they are a department head doesn't reach that level of specificity for a constitutional violation but his name was on the lead or that letter stand up but i mean i don't believe i ever worked for the government before but people use your name all the time you know you're the whatever and you work in the department and they have your name up there and they're sending stuff out under your name all the time how do we know without an allegation of fact that mr mckay in fact did set this in motion your honor i could not i'd like to turn to i believe this is one of the key issues on this appeal and that is the district court's rejection of the clearly established law which we set forth in  so why is it that you think that is a cases from other circuits the primarily this excerpt at would put it beyond debate that firing or actually terminating her company so we have the supreme court has told us in qualified in the cases they at for something to be clearly established that there has to be something that's fairly close at closely analogous factually that there has to be a prior case  agency and they did not and basically one was demoted one was fired i believe and the allegation had nothing to do with any course of conduct of the other's case if there was a legitimate justification but here there is some justification right she is she's working with children she's got she's she's or he has an expert witness and they have concerns about her relationship with her husband who murdered who was convicted of murdering a child well we don't know that we haven't done any discovery yet we we don't we don't know the true basis of why but you know there was a news story that was i mean that's in the record correct yes and  it's in the record but judge hilberg did not consider that for purposes of the motion to dismiss in his order so we believe that the six circuit the three cases and in other cases have clearly established that it violates one's right to intimidate association by terminating the to fire her would have found out that or to have terminate the contract when i found out that her husband had been convicted of murder and so there's no case point well obviously if the court does we do not prevail but we believe that both gains and so words basically looked at the conduct of the spouse and whether that was the basis retaliatory i mean those other cases the the spouse was suing one of the government officials or the spouse was running against one of the government officials so there is an inference of retaliation believe as in tuam believe the conclusory allegations of paragraph sixteen stop short of the line between possibility and plausibility based on the information and belief and then sort the boilerplate allegations that are in there in the paragraph sixteen i guess i would just make an additional point you'd also mention the media report and judge bork down below did not consider the media report we've obviously raised in the answer in brief that was not something that was objected to by this desoto so we would submit that any objection to that is waive so it is in fact in the record i just ask you this one question your opposing counsel yes if i understood him correctly the best authority for the constitutional right issue here is a six governor himself and it would in fact that cover the circumstances of this case i don't think so your honor the primary cases that seem to be emphasized in the briefing by you know there was a media article in that case but it was exactly about that it was exactly about husband employee public employee working together in the context of of how close would this have to be as you know we deal with excessive force cases all the time in our circuit and the question of qualified immunity in the supreme court has made it very a recent case yet again that we can't have a rather high level of analysis we have to have a case that it's close enough that the affected  r if he or she is a reasonable intelligence can understand what his or her obligations are with respect to the other person is it your view is the government's view that in this case there was no such case that fit the facts or close to the facts of this case yes that's correct i think every other case other than the gaspers case was sort of a more typical retaliation case where there's there's sort of a shot across the sion and add a government agency could unduly intrude on it by firing someone for getting married we certainly don't object or take issue with the fact that there is indeed  right of intimate association i guess the you know the analysis that we see this is sort of a three fold progressive analysis first did paragraph sixteen of the amended complaint in fact allege plausibly the personal involvement of mr mckay if not then the analysis is done and dismissals should be affirmed if so then we move to the  second aspect that we haven't really addressed yet of whether ms desoto should be treated as a public employee and the cases that are addressed in that context  the alpha energy case are all sort of traditional retaliation cases as well all in the context of free speech whether the speech was a matter of public concern are you suggesting we analyze this under  i i'm suggesting that there's no way that every reasonable official would have known that in this separate context of the right of intimate association that missed desoto should have been viewed and treated as a public employee under the analysis set forth in whom burr or claremont or alpha energy in the context purely of the free speech the pickering balancing test just a sort of decided no picker it was her her entity it was it was a corporation this be in psych inc and so the contract was between b in psych inc and the department of child safety and state of treated as a public employee under the and we discussed the issues with judge hilberg in oral arguments and then mrs soto submitted supplemental briefing following the oral argument which was the purely a separate analysis and it's purely in the context of matter of public concern speech so i'm just going going back to more fundamental thing for me i guess we we all i think would agree that the supreme court has made it crystal clear that there is a protected right of marriage and into minnesota no question about it right correct ok so wouldn't a reasonable public and official acting to come to cancel a contract or take adverse employment action against employer fire an employee wouldn't that public official understand that if it occurs to him i'm firing this person because of who she's married to that's a problem certainly so ok and in the cases just say the case of the  case over there the district judge said well you know those cases are distinguishable because they really focus on firing somebody because of what their spouse did isn't firing somebody because of what who their spouse is benign than what the spouse did well firing you because your husband is a member of the grange and i don't like members of the grange so i'm firing you because your husband's membranes wouldn't any reasonable public official know that that's a constitutional problem possibly and in that context that's not our case this particular case so here the contract was terminated specifically in your view why well we've just noted the contractual provisions the reason well this was the arizona department of child safety there was a contractual provision that service was provided would include expert testimony i don't want i really don't want to take all your time was it because she was married to this person or was it because she was married to a person who committed a crime you know i think it was because it undermined the foundation in the basis of the contract prior prior to the dissemination of this information that she was married to a child murderer that she was attempting for years to try to get the child murderer to move into her home with her that sort of a line of demarcation that  perform certain duties and mr mckay arguably thought well this situation in the press comes out and says she's married to this guy's going to completely undermine her utility are you suggesting  that he focused on the contract and that's the reason he terminated her is it going to be an exposure for the news did you think about the constitutional right is that your position that's that's my position yeah and i think that would be the position of of any reasonable director of child safety this is the only state agency whose statutory charge is the protection of children had she sought to contract with a different whether it was reasonable whether there was a good policy basis or not where do we draw the line about how do we know what constitutes an undue intrusion into and that's the terminology that we is an i v k and the undue intrusion by the state i mean obviously some intrusion might be justifiable what's an undue intrusion well i think probably the gaspers case is an undue intrusion because it seems to be sort of more focused on the marriage aspect the you know the nepotism aspect whereas here and i would think across the country in you know a department charged with soley charged with child protection such as specially in a third party contract type of a situation you know there's a legitimate governmental interest and i know you know the government is not a an employer here because this disorder is not a public employee but certainly the cases are out there about the government's interest as an employer is different than the government's interest as a sovereign are you suggesting that in his analysis i income or an employment situation is america's issue and that he if he knew this law he would have had the right to do that and say ok there is a right of intimate association here but i cannot i cannot duly intrude into it but in this case given the charge that i have by statute the fact are doing with children and given the history involved here given the role that the plaintiff is supposed to be playing in court and so on i don't believe this is unduly intrusive into the relationship but not trying to break up the relationship she just can't represent us in connection with children is that a legitimate analysis is that a legitimate point that he could have undertaken if even aware of that law that it certainly is because the  marriage occurred two and a half years prior to the time that the contract was terminated and based on the language of the complaint there's allegations in there that somehow there was some sort of constructive knowledge on the part of the agency with respect to the fact of this marriage and so it wasn't the because of the marriage it was it was more so the impact on the contract once this information came out in the media report not only reference the fact that obviously ms desoto as husband you know had been convicted of murder to a child but there was also the fact that for years she had been trying to get this individual to move into her home with her two children which was another component to this in which they had you know it was  separate and apart from the you know the marriage itself so if there was so the if there was no undue intrusion then there's no constitutional violation but for qualified any purposes were really just looking at whether it just at least a couple of points i believe what an undue intrusion is had was clearly defined by the by the six or circuit we don't need to have the marriage abandoned or dissolved this it seems to me you're asking a lot mr mckay to be familiar with the with the judgments and cases from the sixth circuit but if you were familiar with that and he knew that you couldn't have an undue intrusion and he was charged with protecting children and the like given the facts which arguably could could be construed in a public setting as some quotes is that a clear constitutional violation i believe it is your honor and why i believe it is based upon those six circuit cases which have been existing since  no circumstances can government have an adverse employment action against someone because of marriage and it adler says you know in some circumstances the conduct or even the identity of a wife  raise such serious concerns about her husband's suitability for public employment as to justify the husband's discharge or six at suggests that would be a possibility so we know that it doesn't mean zero intrusion it  intrusion so the question is in this case would every reasonable official have known it was undue intrusion we need to focus on act is i believe that every reasonable public official should have known in light of the prior a look for a case that has an allergist facts and so we need to find a case where the government had policy reasons had reasonable reasons for terminating or taking ever simply an action against a spouse  and then did so and and and the courts that remained undue intrusion so so there isn't a case in that that you've cited where the state had greece policy reasons for terminating a spouse based on a marriage relationship no the only case is let's put it this way this is not a situation that happens very frequently like the excessive force cases that your honour's deal with all the time i grant that this is a novel circumstance and i hope verb versus pelzer certainly said that qualified immunity can even be denied  full circumstances so yes this is a novel circumstance we're not dealing with a public employee we're dealing with an independent contractor here but as this court recognizing now for energy that independent contractors can be treated as public employees when you're considering first amendment rights lashley just to file a course at least from my perspective number one as the record indicate that mr mckay knew prior to the news reports that your client was married to a prisoner in this case the record does not the only thing that we do have is that at least one of  piers was on the board of psychological examiners when there were those complaints that were made years earlier what d c s and high management knew about that that was certainly going to be the subject of discovery your honor that's a critical function and did you plead that he knew that that no i did not i did not he would he had only come on board i think about eight months before my client important if he didn't know that she was married to him yes when it would be important but still if he terminated her because of her marital relationship at least the cases that we found said that would be an  intrusion into her right of intimate association and one other question as you know the contracting party was your mother's a corporation or an l l c or whatever it was but she was the sole equity holder  does that make any difference for purposes of our analysis here that the contracting party was actually a entity a business entity as opposed to her personally i don't think that it does i believe justice o'connor in the case basically said