well here brown vs helping good morning i may please the court my name is ian lynch in together with my colleague assistant attorney general just being graff who seed to my left we represent the defendants appellants in this case the state of connecticut and brenda help your honour's the district court heard in denying the motion to dismiss for the following three reasons first the allegations the complaint suggested that the plaintiff was speaking as an employee rather than a citizen second a minimum reasonable retirement division directors in the position of brenda help and could disagree over whether or not miss attorney brown was speaking as a citizen or as an employee and third the state of connecticut had sovereign immunity that was not implicated by the allegations in the complaint to state a thirty one fifty one q claim your honors with regard to the first point there are the plausible allegations this court  has burned stated that the question of whether or not someone is speaking as a citizen or speaking as an employee is a question of law for the court and in the seminal case iqbal versus let's go to  requirement of the of the statute and i think that this is a matter of public appointments i don't see how one could get away from that part of jacqueline it's not that it's a matter of public importance and it's also doesn't seem to me that it's and further and the employees duty to alter her or were written retract her position which is the one that was the one that was taken i go that there are cases that say look if the department has a viewpoint a policy viewpoint you've got to march to that drummer and that's part of part of being an employee but it's another thing when you have a seems to me when you have a position here about how the statute is to be applied and whether it covers any employee or just employees that any employment or or or or just past employment and the statute is crystal clear on that question and indeed ms ms brown was told by ms howe pride and the others in the office that she was correct in her interpretation so under those circumstances why doesn't jack reply write any thank you your honor the allegations in the complaint allege allegations against  has the power the duty and the responsibility to conduct the business an activity as the state employees retirement system and the plaintiff also alleged that the retirement services division administered the provisions of the retirement plan under that if she had if you didn't have the jack or problem i don't see you are a much more sympathetic to your your side it's the fact that she was told to curtail her speak but and then and then and then told to you to alter it and when she refused the no statement was made to the commission that's where that's that's where i have a problem that's that's where i see draco coming in but the fact that she's alleged a very important judge walker because the plaintiff stated in her complaint that a month into her job she gets hired in in september two thousand and twelve according to her complaint a month into her job she's opining on the meaning of the term suitable uncomparable in the state statutes and that is all that is all very well let me just be clear about my position i've never liked our city i descended honour's i think it's christe critical that this court take into consideration that we're talking what the speech that you're talking about in this particular case is an attorney's stat statutory interpretation that conflicts with a be own occupation i'm sorry her up her interpretation was any occupation in that the trustee of the trust said no we have interpret it as own occupation if she continued to be interpreted as own occupation and keep in mind the facts as alleged in the complaint matter the plain of comes and tells her boss you have to interpret suitable and comparable to mean any occupation a month into the job the trustee of the trust whose obligation is to to you know conduct the business says no it's been interpreted as own occupation that's how it should be interpreted where would my client trying to help and where would she know where's the paste law that puts her on notice your honor that when an attorney is opining on the meaning of a state statute that she is speaking as a citizen and not as an employee where is that precisely the case that that the argument the burlington northern standard that my brother counsel here has argued should be the standard for thirty one fifty one q is not the appropriate standard and what is  we can just dismiss the state name without prejudice and let that be taken remained that to the state and let that be taken care of but if we don't if we find against you with there is a federal claim then should that's correct but i don't understand that she was stripped of her job responsibilities correct while she alleges she used that is an allegation but that was found by this she knew she didn't she lost her benefits when she had to take a new job because because with a different kind of job she didn't have the same kind of benefit carryover right so it's not a form of discipline which she alleges her honor is that she lost her benefit and then she said what she meant by that was it was going to take her three years to advance to a staff attorney three position as opposed to a staff attorney two that that was that sort of punishment or discipline of the statute in what bob bullock is said was that the denial of a benefit even one do an owing is not discipline and what that he did and what this court did intervene isn't is it looked at the dictionary definitions of discipline and specifically black's law dictionary says that there has to be a punishment imposed after an official finding a misconduct discipline is a very term of art if you will  in what he said is there may be well there may be policy reasons for creating a legal rule that the employer cannot be in that case it was denied a promotion because of the exercise of first amendment rights however thirty one fifty one q is to slander read to pair that way and what he did your honour's was he looked at the other statutes that were in existence and or promulgated shortly before thirty one fifty one q specifically thirty one fifty one m which is commonly known as the whistleblower statute and that statute prohibits discipline discharge or otherwise penalize the connecticut legislature has used a very specific term of art was not discipline there was another superior court decision where it was did involve a transfer as a high school teacher in a denial of its a stipend that went along and that was held not to be disciplined so it's a very it's a  very specific term of art that the connecticut legislature has not seen fit to change or expand upon the statute so i submit t the plane of comes and she's employed for a month she says suitable uncomparable is being interpreted as own occupation it should be interpreted as any occupation and then as she prepares all these documents these legal memoranda stating that as an attorney that shared with the trustee from the trust and the trustee a says absolutely not its own occupation in the allegations of the complaint are that when the trustees gave direction to  in the retirement division director she followed those directions she followed those instructions so you know i submit to you that somebody who has a different opinion of our meaning of a statute is incredibly dangerous to sit there and con give that first amendment protection which is what the plaintiff is asking this court to do and at a minimum your argument that she could and she could have been correct but even if she were correct that is not sustaining in your view because that's just a difference of opinion rather than an ordering to tell a add to what she said this is my opinion other opinions are different rather than asking her to change something that you had written i come back to the question of whether they asked her to do something which would be inappropriate in terms of what she had said envy or for possibly open to criminal invents jocular or whether they just said to her hey come on this is your view it may be bad but note that other people have different views she alleges something much stronger than the question is is that allegation speech that is commissioned by the employer and i believe you quoted from our city in that regard and in this particular case i don't think there's any dispute that the speech that was commissioned by the state in this particular case is the meaning of state o under under of you know under no circumstances can they get benefits period that would be crazy and then under those circumstances there would be but this is a question  of you're saying it's a quirk it's debatable at the very least even though you think you think that your client is is correct and that's you say he's arguably different from her it's completely different jackle your honors i've looked at spent a fair amount of time looking at this issue and i looked at the ford motor company case that's in the context of a title seven case and what it what an individual has to do to mitigate their damages as your no entitle seven an individual has to mitigate their damages by finding suitable employment and enforcement or company the supreme court said that doesn't mean any job that doesn't mean you have to take any job so if if this united states supreme court can say suitable doesn't mean any then how you know if we're going to debate who's right who's it legal interpretation is right and who's wrong find something for me what was the plaintiff's position if she was just hired and she was there just a month i mean she was a lateral hire presumably she came into the background because she had the authority to make a statement to the commission she was i mean sure otherwise why would it just be she was the lawyer advice the commission and the comptroller's office on all aspects of the state employees retirement commission that was her allegations that that that was her job duties and that's in her complaint thank you  informing from the red brief facilitating the authorization payment of benefit claims for people that she knew were not entitled to benefits but has but as i read the statute the statute says something different and correct me if i'm wrong it makes it illegal for a person and i'm quoting authorized certified test or file a claim for benefits which he knows is false how does giving a legal opinion i've got some follow up questions for you but go ahead and look at the statute  the the arguments based on the statutory language that is your honor points out prohibits the authorization certification attestation for filing a claim for benefits from a local station authorizing she would be facilitating the knowingly providing benefits to people who she knew were not entitle to them and that in her mind that was being done with the corrupt purpose of signing it making it sound as though this is a statement of fact that people are not entitled to benefits because i don't know they're not employed easer they're not there somehow it's a matter of fact as opposed to illegal interpretation of a provision that doesn't say specifically a the same thing as facts in the same sense that jack or at least that's what your adversary just argued yes your honor and thank you for giving me an opportunity to address that issue so  contention and the allegations in the complaint in this case which at the stage of the proceeding must be accepted as true is that this was not a difference over a legal interpretation it was not a good faith disagreement over the statutory interpretation of this language we specifically allege in the complaint and a legal opinion that everybody kind of agrees with but they say that look that isn't going to the commission has a different view and we can't advise them on that that way and they withdraw but that's you say closer to  synvisc case is seems could be described as a close one because of the arguments of it have been made and if that is so why the senior officers of the comptroller office knowingly and intentionally directed my client to withdraw a truthful memo that included factual statements and you say that statement because the defendants in this case are arguing an alternative version of facts that's alleged in the complaint they don't accept the plaintiff's narrative of the case they're trying to articulate a legal argument based on an alternative narrative that this court as i argued and there's some question about whether jack two replies it's debatable it's not clearly established the jackal replies that doesn't qualified immunity fall but i'm not sure that i would agree with the premise of your question your honor well because because jack i was a fact a pure fact case it didn't vava legal opinion just take it at that limited level even though everybody agreed that within the office that her legal opinion was was was correct that is that that doesn't make it a statement of fact yet and that could be a distinction that you know jack or didn't address that question and and so one could argue that it's not clearly established so your honor i wouldn't argue that the facts of this case bear sufficient similarity to the controlling facts and yes your honor if you look at they don't even have to say that right all they have to do is say that well jack or would have to be the clearly established rule right so so for purposes of so the our first amendment claim is based on two types of speech we're focusing right now on the fusil to make false statements by question of it as opposed to the disclosures to the authors so for the refusal to make false statements a portion of it jack clear is the case that makes clearly established legal principles that we think preclude the application of qualified i'm going to changing the term instead of refusal to make false statements to refusal to make a contrary opinion and opinion to give it a legal opinion that  the that her job might require your honor so i would agree with the general proposition that if this was a case about a good faith degree meant over statutory interpretation the jacker would not apply to that but that's not what we've ledged in the complaint we've alleged in the complaint that she received a directive after making drafting documents that included statements of fact about the historical application of the standard statements regarding the erroneous improper administration of the retirement plans statements of fact regarding the number of people that are receiving benefits statements of fact about the cost of the state and millions of dollars statements of fact about probative evidence of fraudulent claims see but you don't actually have the document we can't go back and read the actual words are incorporated by reference no we don't have the actual document your honor and so that's one of the reasons why i think that it's premature to address this issue  trifle for this court to address these issues with with finality for purposes of this case just at the pleading stage i think that there is just as this court has done many times in other cases that when cases cannot be decided based  intertwined or sufficiently overlapping with the qualified immunity appeal and it's not really a sovereign immunity question it's a statutory interpretation question dressed up in sovereign immunity robes so you say that we we shouldn't here that it is anyway so our initial position is that this court shouldn't address any of the merits issues raised by defend its appeal for jurisdictional reasons and we've articulated that in our briefing but assuming that the court does address the merits our position is that of how we believe discipline should be interpreted so we look at that issue as discipline means punishment and commonsense definition of punishment means that people impose discipline but this is connecticut not common sense bears striking similarity to the burlington northern standard which is any action adverse action against an employee that would dissuade a reasonable person from engaging in the underlying protected activity again and so we think the punishment  or discipline should be interpreted mean punishment which can be reconciled and interpreted consistently with burlington northern and we also believe that the interpretation of that statute statutory provision should be interpreted consistent with several principles one principle is that the connecticut supreme court has said repeatedly that section thirty one fifty one q is a remedial statute and should receive a generous interpretation just two years ago the connecticut supreme court issued another decision in a thirty one fifty one q case and valving the whether the broader than the first and that but on the same hand we'd interpret the word discipline narrower than the first minute it doesn't make any sense and we also would argue that the meaning of discipline should be interpreted consistent with the purpose of the statute the purpose of the statute was to protect let me ask you another thing if i can before you sit down and that is with respect to the waters and i'm i'm i'm looking at the page forty two of your brief and you say that the pla no reason to communicate with the auditors as part of her ordinary job duties because her job was counsel to the retirement of vision did not cause her to become involved in the financial statement of the office of the comptroller now if you could give me some counsel because i'm not quite understanding your whistleblower complaint states and this is on the appendix on page one thirty eight that on july sixteenth two thousand and thirteen plaintiff received a call from the state auditor is telling me that they would like to interview me as part of the audit of the division so it would appear that it was only after the call that the plaintiff met with the auditors and made her complaints is that correct believe that  the answer is that the meeting was on july thirtieth two thousand and thirteen right yes or no but i believe that there's other facts that are not in the record and that statement as you read it from the doc in the appendix was not part of the complaint in this case but i believe responsibilities i'm not you know i mean help me understand i'm not saying i understand so you aren't at this point i'm going outside the factual record in order to respond your question so my understanding is that if discovery would be allowed to proceed is that further facts would be introduced in the record that would in light in the circumstances which prompted the auditor person to contact the plaintiff such as it was may have been communicated to the auditors that the plaintiff had issues that she would like to address and that in response to that the auditors may have contacted her to give her cover of doing this in some fashion but again that's another reason why we think that it's premature for that these issues to be resolved job is to render truthful statements to the commission and she finds an ally in the owners  several months prior to that in february and march of two thousand and thirteen all responsibilities relating to the retirement commission and relating to disability retirement restrict out of her job so this happened in july this four and five months after it was clearly communicated to the you're outside of the whole system could i go to the order yes your honor section four dash sixty one d d of the connecticut general statute allows any person i believe this person may see citizen i think it's this person to go to the author so there's a civilian analogue which makes this case much  progeny don't apply here is because we don't just look at the subject matter of the speech we don't look at one of the subject matter of the speech was related to your job duties we look at whether the actual speech the speech that was expressed and the manner  expressed was part of your official job duties and here she had never talked to the authors before she disclosed these concerns in july she was expressly told on two different occasions longer responsible for anything to deal with the retirement age in matthews when the officer jumped the chain of command and went to the captain he didn't have a duty to report to the captain and he reported to the captain but the the what of where the critical aspect in that case was the fact that there was a civilian analogue and the captain opened up his office to people in the community to come in and complain about police practices and so he did that and that seems to be what you've just said  here would apply maybe in this case yes you're absolutely there's a civilian analogue here it's part of the extensive discussion and the district court's ruling about the existence of a civilian analogue varsity is itself another reason why we think that factors if still part of her job the fact that civilians could do it doesn't matter that's why the more interesting thing to me is whether she was told expressly whatever she may have for before or a so paragraph forty three of the first in a complaint and this is on page three eighty seven of the joint appendix at the conclusion of the february fourteenth two thousand and thirteen meeting carlson is one of the officials in the controllers office told plaintiff to quote take a page four of five of the joint appendix says on march twentieth two thousand and thirteen plaintiff's job description was changed and most references to the commission were removed from the plaintiff's court job duties as in been directed by at that time defend is what was the last one sixty six which is page three ninety three of the joint appendix in advance of the plaintiff scheduled meeting with the auditors on july thirtieth two thousand and thirteen defendant help until plaintiff that she discussion with the auditor's that was approaching and she was told by her supervisor you shouldn't even be talking to them so we believe that those facts allege in the complaint which again must be accepted as true for purposes of analysis at this point further reinforce that this is not a core city or a weintraub case and i go back to something just following up on something that judge walker said ask you in terms of the auditors so independent three seventy nine  brown was additionally tasked with and i quote implementing corrective policies and procedures for the administration of the retirement system for the commission to that and she provided this is on three ninety three the auditor's of all the corrective policies and procedures that she designed drafted and attempted to implement in early two thousand and thirteen but were blocked from being presented to the full commission so isn't this just really part and pop parcel that those allegations preclude protection for the first amendment protected speech that we're claiming we're not claiming first to memphis act a speech for her communications to the commission or drafting of those policies were claiming first  protected speech for her refusal to make false statements and were claiming protected speech only for her disclosures to an extra independent state agency the auditors and so we would not be claiming first never protected speech for those policies that she had drafted for delivery to the commission although we are claiming protection for her refusal to alter them or modify them under the jackal or line of cases or jacket case we weren't speaking about jack or what what w best case be if we were not speaking about jackie or will than the refusal to make the false statements claim wouldn't be there because that's based on jack or and so it would be limited to resulting in criminal liability whereas a criminal liability in this case for you so that's that's still based on the refusal to make false statements so we i think that criminal liability  is implicated in two arenas are two issues one is the potential liability relating to that larceny statute that i was discussing with the owner of the fifty three a dash one thousand provision where she would be asked to facilitate something that she believed would be  her legal memos were being solicited and she was being directed to change her legal memos for the express purpose of authorizing illegal payments and that's why she objected and directors of the pining that the pavements that illegal payments were ok that the commission with that ratified that's a more accurate report i mean it's not like she's she's rendering an opinion to the commission it's not loki's she's not directing payments  issue of when documents were being prepared for submission to the i r s for voluntary correction plans and in connection with that her role was to provide information to outside counsel who would be submitting these documents to the s and she was directed to withhold information that she believed that she was duty bound to use share with outside counsel so these missions to i rest could be accurate there's a certification on the i r s form we've indicated this in our briefing with a link to the actual eves with any position to the contrary is really not worth while a lawyer who is too old to change your opinion and does have that would be subject would think that she was subject to criminal prosecution that is if you know this is an opinion but it is an opinion that if that is shared by everyone and that the reason they are telling me to do something else is not that they a i'm not a prosecutor i've never worked as a prosecutor but i think that there are there's enough here for the plaintiff to have held that belief that she should receive no that's not your argument yes and so there is there a case a precedent that you can cite i understand that you know there is there is case that you can cite for that proposition that calibrates it just said not i'm not aware of a specific case that i can cite your honor but we're going back to the i r s document issue because i just want to complete that on that on those forms there's a certification that the information contained and submitted to the i r s is truthful and accurate you know subject to the penalties implicate eighteen u s c one thousand and one which is the same statute potentially implicated in jaffa basically what you're saying is that if the legal opinion is such that everybody in the organization agrees to its accuracy and then she's the issue from a difference in legal opinion to a matter of fact about this is what the law means this is what the law says and again i wouldn't be standing here making this argument if the facts seem as if it's the same as if you're saying it's the same absolutely we've been briefed that extensively your honor about with the reasons why we think it's  reason why it's premature for this court to accept or section is because the facts in the complaint are not the facts that the defendant is arguing for the application of qualified immunity and it's not you know the factual record that's driving many of these questions about you know could this just be a difference of legal opinion versus the fact we've alleged that as a factual matter that everybody agreed with her interpretation but she was directed to alter and make misleading statements for political purposes knowingly and intentionally by the defendants and there's discussion about that at page twenty of the district court's opinion in the special appendix that judge underhill acknowledged that that's what the complaint was alleging this is an intentional and knowing act of direction to the point of to alter this document for improper purposes not a good faith disagreement about the war or policy or interpretation and another point that the limiting factor here that we think that makes jack were an appropriate application to these facts is that in jackson or you had a situation where somebody was being directed in force and coerced to withdraw a truthful statement replace it with a false statement that wasn't true under circumstances when that person had an obligation to be truthful and so the limiting principle of jaclyn or that the person had an obligation to be truthful in the statement that was made also applies here and so i believe the jacket was clearly established on that point that when a person has an obligation to be truthful truthful statement and then is directed to withdraw a truthful statement and replace it with a false and misleading statement that the refusal to make that false statement when that person has an obligation to be truthful makes it appropriate for the application of jack to hear and makes that principle clearly established for qualified that that the auditors called her as a routine audit and my understanding is that the court can consider and should consider matters some of which judicial notice can be taken on a motion to dismiss and therefore her sworn statement that was provided to the district court judicial notice could be taken of that secondly i would direct the court to joint appendix three ninety five specifically paragraph seventy five in that  paragraph seventy five  in there specifically there's an allegation made by the complainant that the defendant you know me mr bellamy was a defendant at the time wanted suitable uncomparable to be interpreted as own occupation not any occupation so there which says that clearly established law should not be defined at a high level of generality the clearly established law must be particularized to the facts of the case in the supreme court reiterated that a court must identify a case where party acting under circumstances similar to those faced by the defendant was held to a violation of the law and i submit to you that there is no case where a civilian retirement division director is given instructions based on the allegations in the complaint that are always followed by the trustee whose responsibility it is has a fiduciary obligation for the trust this is how the term should be followed that that person is now violating a lawyer first amendment rights when the or but i would submit there is no case that would have given miss help a notice that when miss brown was giving an opinion that was contrary to a trustee's opinion on the meaning of a statutory term she was speaking as a citizen  not as an employee at a minimum how would miss help and had known that  d just to address one i'm sorry one one finer point if i may your honor judge calibur easy asked brother council about whether or not it was critical that mr brown was told not to speak to the auditor's those were the  facts before the court and both loony versus black and an ammonium versus m t a and both of those courts of this court both those cases this court stated the fact that somebody persists in speech after a supervisor has told him to stop does not without more transform the speech into protected speech made as a private citizen it would be income grew us to interpret our city it's giving broader protections to disobedient employees who decide they know better than their bosses how to perform their dut