and based upon multiple points the district court erred and nine qualified immunity to the defendants in the first instance the protected speech at issue or the tray alleges is a determined that the speech engaged in by mr trey was protected speech what it did was it looked at the information on the spreadsheet collectively as a whole and stated that even though some information might be confidential others not and therefore this is protected speech and i believe that is an error for instance in conic if you miers in that case where the district attorney even even assuming it's confidential information what about the exception that permit two to more force why does that exception not apply here that exception does not apply because when it relates soley if you take a look at the issue separately that the information contained therein was mortgage fraud and was welfare  fraud looking at the mortgage fraud aspect of it and taking it separately work is fraud is a white collar crime and in this instance the information contained on the on the spread sheet there were individuals who was social security numbers and was an issue as to whether the mortgage fraud was related to welfare fraud but your honour's on the information in the spreadsheet there were individuals named with public assistance benefits that occurred years years before she disclosed this information first they were not and they were not receiving public assistance at that time so clearly want to believe some of the individuals were receiving public court erred in assuming that that was reasonably related to public to the public assistance are you saying that even for the people on the list who were receiving public assistance that indications that they might be engaged in mortgage fraud or not reasonably related to the purposes of the public welfare program you have people that are receiving public assistance who are also receiving money by virtue of mortgage fraud those are two completely unrelated things for purposes of the spread the spreadsheet yes runners because it could have been done differently in this instance what it related to if she were receiving additional income through their mortgage fraud without not impact their eligibility for public benefits but in the first instance when you look at it from the point of view of the public assistance program that information assistance in order to get in and work it to repeat you have to accept the facts as alleged by the plain are you prepared to accept the proposition that the list that you're talking about the spreadsheet the history of this case it was alleged that that the investigation done by miss the tray dealt with mortgage fraud and yes you know it is a simple question are you prepared to accept the plaintiff's proposition as a matter that the list was not prepared within the scope of her responsibilities your honor i do not the least was not prepared within the scope of her responsibilities and my question is are you prepared to accept that were not i am prepared to accept the facts that she relies on to make the characterization that it was not within the scope of responsibilities however there have been many cases before the circuit where the plaintiffs are the individuals of ledge that their duties are outside the scope of the employment however it is the court's responsibility to look at the underlying facts and to look at what that individual actually did based upon the undisputed facts to make the determination as to whether or not it was within the scope even the and its ability and in your fire the charges charges one and charged to clearly seem to indicate to allege that she was using the electronics communication system and engaged in activities that were outside the scope of her employer sponsored your honor if you look at the charges directly it doesn't so it makes reference to both confidential and public record as a whole it makes reference to the confidential database and what it makes reference to that confidential database when this individual divulged confidential information about mortgage fraud yes that was outside the scope of her employment however because it was confidential the court erred in teaming it protected speech that as a social welfare examiner that is what she did if she uncovered potential discrepancies or potential fraud in welfare benefits she was supposed to report that now to the extent that the court found that it was protected speech and then when on here the court erred in determining that the defendants were not in total qualified immunity because the right was not clearly established in this instance you have a combination  of an allegation that the individual's incubation both welfare fraud investigation and mortgage fraud investigation it is the defendant's contention that as it relates to the the welfare fraud obviously that's within the scope of her as it relates to the mortgage fraud it was not there was no there is no case either within this circuit of the supreme court that has clearly established what instant melcombe ation of both confidential and non conference information that  that right is protected that that is protected speech questions a lot of these arguments are inconsistent frankly with the positions that have been taken below and were taken in the charges by the county so let me just try to unpack that a little  the county charge from the outset that misled trell in everything she did making no distinction between mortgage fraud and public welfare fraud engaged in conduct which was outside of the scope of her sponsibilit finding that miss the district court accepted in its decision the reason the district word accepted that in its decision was because the court saw it as an extra goodly linked what miss latrell did with regard to the issues the court did not see nor is it logical to see these as somehow polar issues they're not polar they're inextricably connected that is people who are engaging in the mortgage fraud who are also concurrently defrauding the public welfare to extirpate fraud however as a district court properly held that went so far that was to report to the fraud unit of the department of social services the evidence she had collected a fraud she did that and when that fraud unit was ineffectual was a part of her job to uncover welfare fraud it may have been not not i would say no but let's assume it was it's not really alleged that it was but let's assume that was it was not part of her job to proceed as she did to the f b i were to make known that fraud beyond her supervisor who suggested that she speak to the f b i her supervisor facilitated that i believe was misled trails desired to do that but she did facilitate it that would suggest that it was within her scalp and if her supervisors suggesting that she do it well let me say that the supervisor the record shows was also disciplined for acting outside the scope of her duties so i think that undercuts that argument to a large extent the county took the position and in fact retrieved from the f b i the spreadsheet taking the position that disclosure was a disclosure which couldn't be made either by her or supervisor so i don't think either we're acting from the county's point of view within the scope of their employment the county's position was that both all of that was altered varies with regard to their employment and they read and they reached the entire list not just those names on the list that's accurate that's correct so this distinction which is now being articulated i don't think is accurate i mean frankly this the closest case i've seen to this is the case that you would you like a typical tell actually never thomas case in the district court where what actually happened is an individual was a social worker within department of corrections the social worker was repeatedly told you are not to do this meaning discuss brutality and racism with the prison guards resultantly terminated after terminations she came to the district court and said she was terminated for the country of the first amendment because she was engaging in discussions and that is why they say they terminated her about racism in prison brutality outside of her job function before the court the district court the defendant argued the exact opposite that they terminated her this was part of her job duties and the district where i think correct she said in that case no you can't have it both ways and i think that's what's going on here if you read the charges as judge sidel read the charges make clear that they were disappointing her for things that they believed route side of her job duties and responsibilities with regard to qualified immunity i believe this is not an appropriate appeal which is why i asked for at this point to be dismissed after briefing because it's pretty clear that there is on the facts most favorably taken to the point of no doubt that she was acting outside the scope for the defendants are now saying something different than what they said in the lower courts i believe cited to in the brief make specific reference to statements made by counsel during the discovery phase during the deposition and specifically states she already told you that the entire project was about mortgage fraud which is as the complaints alleges based upon those statements that she made during the course of the investigation that is why the county conceded when it deals with mortgage fraud d s s the department of social services does not investigate mortgage fraud and therefore that investigation was outside the scope for employment and that was why that was alleged in the lower courts the only time that it was alleged that welfare fraud benefits were now being investigated by ms the tray was after the summary judgment motion was filed and then the argument was made that when it relates to mortgage fraud that information is not protected because violated state regulations and statutes and so when that occurred in the opposition that is the first time that missler trained now said oh this investigation contrary to what was represented during this very contract what was represented during the investigation which is in the records to the statements that miss the train made to both the commissioners gross and miller this is the first time that she said it's a combination of mortgage fraud and benefits for welfare benefits and if they are also getting income from mortgage fraud it is that not go to their eligibility for for public benefits it does but then when they go in if it does then why isn't it fall within the action the individual is a falsifying information about low income and it relates to the public benefits program that can be severed from them work it fraud the mortgage fraud did not have to come about argue oh no no no all of it is outside the scope of employment we argued both the public welfare fraud and the