defense for these reasons this court has jurisdiction to hear this appeal under the cloud order doctrine we identified a couple of weeks we can come back and talk about the issue jurisdiction but we identified a couple of cases involving  raising questions but if this conduct whether it's huge how it is that we should think about what needs to be shown or i'm for adverse action under our case law can you can you address those and reconcile for example rouser in law yes we can i believe there are a few reasons why that why dr a case and penalty qualified immunity and i think only one of those reasons hinges on this case being about a recommendation rather than a decision and i think that argument flows from mclachlan were this court held they want to defendant is alleged to of have persuaded a third party to take an adverse action against the plaintiff the nowhere comes nowhere near that level it's objective it's talks about treating these recommendations why does a disagreement the reasons for that disagreement and simply makes a recommendation to the to the body that it's out of her so i understand that distinction and then that is a qualified immunity analysis so i think i think your honour's correct there is a distinction but i would not expect a reasonable government officials understand that distinction that goes to whether it's clearly established but soon it would be your preference for us to decide this on the that the first prong while hiding unity that is whether there was a violation and whether our recommendation in these circumstances and as a matter of law could constitute  contacts for example public employment where public employee certainly has a right to the first amendment expression but that right is not unqualified and a public employer can curtail that right if the employer has a legitimate interest in in effect the workings of government and what if you would have us apply that here how would we reconcile that with our city and that line of cases that is are we really going to say that public employees do not have the first minute right balancing analysis right but if their speech is simply the speech that is part and parcel of their employment and then we've said that that is not a basis and to bring an action for employment i they need on the basis of their their performance and their right that that that that is not protected by the first amendment so i have the question then becomes when we have an employee in this situation you seem to be asking  there needs to be a test here and i'm not saying it has to be the same tests in part and the cost of employment but there has to be a test by which clinicians conduct is judged when she has it was jim a clinical interest in  each and that's especially important in the context of sex offender treatment where it is vital for the patient to acknowledge this wrongdoings to admit what happened and even to change his thinking and his inclinations so they actually cannot be a wholesale prohibition growth time i it that that may be true when it comes to considering what the motivation was but that of course raises questions of fact and would require discovery if we dared looking at question would deter a reasonable person from the exercise of their first amendment rights if if that's the case then don't we need to take a more expansive approach because while it may not be factually true here discovery w that out if it can't be the case that we see as a matter of law that someone making the recommendation who is recommendation will certainly be considered in a final decision in in grants which is a case that was cited by the the plaintiff actually was primary brief for the purposes of clarity when we use the term state of mind and motivation we are referring to the state of more an element of the underlying offense rather than to the question whether the public officials know they were established rights so i think the point is the court does not get into a state of mind analysis and that evidence of state run is irrelevant to get past the threshold issue of whether the alleged conduct by the police now has rights and i think the point is how is the but still a recommendation of words the recommendation here was that the plaintiff not be put into face three for treatment which was very important to him so how is this really just the facts are you no different setting for miles around here but isn't the principle or the theme much the same  believe that this case should be decided on jurisdictional grounds but given that the focus of the questioning has been on the the merits issues crop i mean i'll start with that if that's acceptable but i don't hear i mean the facts are you have a non binding recommendation by a medical professional regarding the treatment of a silly committed individual and the question is does for non binding recommendation is it clearly established that this could be a constitutional violation well yes your honor this is not any ordinary clinical situation this is a clinical situation in which this alleges it's rock has responsibility to evaluate individuals to in terms of promoting them into the next phase of treatment and he has to get into that next phase reman in order to complete the process so that he can beat the pain is released so it yes there's a clinical component here but there's also a very significant cost already or component and you know his his liberty is being impacted by the clinical decision the recommenders here were not and and i'm referring to that to members right of the of the team who produced the t p r see yes they were not actually clinicians providing direct at odds with those who are actually offering him direct medical or psychological yes that's your honor that's my understanding of the process here that is his actual treating doctors we're  shouldn't be so but i mean it's i making some assumptions there simply because we haven't had any discovery and so to the actual treatment process here isn't entirely clear it is clear that his treatment team recommended that  real cases recommendation as non binding and that deserve a body called carp which includes clinical assessment of you program or something like that that that's actually the decision maker that is their characterization of the process i don't rubber stamps the decisions of the t p r c i mean if if if carp is not an independent decision maker and that essentially once dr ok issues her report recommending that he not be promoted if that's  should be discovery shouldn't be necessary yes on that agree just we are we ought to be able to determine really is a matter of wall whether such a such a recommendation by t p r c constitutes adverse this or had person is the appropriate terminology yes yes the allegation here is that this recommendation was was had the likely effect and the allegation is that it was ok elated to have the likely effect because there's an allegation of intent retaliatory tat that this recommendation was calculated to have the likely effect of prolonging mr and don't we have enough just from the complaint and the documents that are referenced incorporated into it including the guide which lays out that the fifty six of the appendix on how this process works including the information that goes to car the recommendation of the t p r see but also other information including from the treatment team training with the explanation that haarp is making this decision and that this process this flow of information provide document that the allegation here is that dr real k is the driving force in this process that she was aware that mr oliver was highly to regis and handing out his newsletter and all these other spending too much time on his paralegal work he's got this newsletter it's counter therapeutic and odd we want to make sure that he's not headed in a bad direction with this so so there's direct evidence that there's a that there's a clinical decision being made that mr all of a not to be promoted based on his litigation activity now if carbon took that into account conversation that took place between the u s attorney and the attorney general so there was discovery in the brothel which is a major distinguishing factor and here we don't we have not had any discovery at all the second thing is and your honor pointed this out in the first phase of the argument mclaughlin is part of a line of cases that deals with where the adverse conduct by the defendant is itself protected s was a speech component here obviously i mean she's i guess you could characterize the report and the recommendation as having a speech component but it's not just each it's it's it's it's it's more like conduct mean this is per saying that in that situation where the u s attorney is sort of voicing these kind of gripes about these individuals and saying we don't want these guys running office we don't want we don't want to go out you know and then the attorney general makes the decision or so here i mean we're not at the stick maybe after discovery maybe after discovery to make that argument that i wouldn't have given everything and just i was making this good faith clinical recommendation  and respond because the he's still tails i want to respond to the argument that when we're doing the qualified immunity analysis when this court is doing an analysis that there's no account taken of motive or intact if you look at what crawford well it's simply because the intent aspect of the conduct is part of the the player's own case as opposed to being part doing the qualified immunity analysis and the quality of what you're asking is is it a violation of clear terms clearly established law prohibit retaliate ing based on litigation activity in the context of there's some risk in relying too heavily on rouser because it is it discusses this issue in a very summary way and conflates the question recommendation and decision making in fact at one point it just begins to talk in the language of this  the decision itself there's no suggestion that was raised in the case and it's not addressed by the media and whether recommendations and alone to a separate decision maker constitutes adverse action that that's the question it's really and understood your honor but but the the correspondence between them and first of all in terms of corporate immunity there does not need to be a case directly on point i mean what this report said and hold a general knows that she's acting with retaliatory intent that official is going to understand that she's violating clearly established law that i mean it's it if you assume that she's acting with that intent it's it's extremely i it's not enough to act with this effect lee retaliatory intent when you're making a recommendation under the circumstances there needs to be more which translates into more even alleged pleading stage u situation where you have one independent actor the u s attorney for the eastern district talking to somebody completely separate the state attorney general and saying i don't like these guys i don't want them in our office space get them out of there now head that's very different from a situation none of that's part of his official duties he's not make an official recommendation that's going to be part of the job review of these individuals or something like that this is in this situation we've got  is as part of her official duty making a decision out we can call a recommendation but it's a decision about whether or not he's going to be promoted and you can see what a decision it was reviewed by car and so on but it's still very different from just sort of one individual who's completely separate from another individual saying i just don't like these guys i don't want to be in our office space get them out of there this is this is not real  she's not simply saying i just think this guy's too with issues she's not saying that she's making a recommendation as part of her official duties that is alleged to be critical in the in the in whether her is going to move into the next phase of treatment so that you really think that distinguishes this case from garcia report was actually not a recommendation first of all what is what is the process rather than we have an appendix but in reality the process in fact different from what takes place or what is set out to independen i think it's the spirit and what it is think that info to what extent can a recommendation or do we know to what extent a recommendation from ok or somebody that would be in her position would not be followed by the group that ultimately larger point maybe the more important point is that there cannot be a wholesale prohibition on dr ok factoring in all of his being listed in a short recommendation when it's quite clear that's what she was part of but would want recognition  and other courts give deference to clinicians when they're read ring rendering professional judgment and when i was just of the court here is that if there is a standard it's going to be announced that's going to govern the on the in the future there should be deference even if even if they even if a clinician is factoring for district court suit to to rule in this case solely for declaratory judgment but i also think that i think the doctor ok even if the court announces a test here that's going to govern these cases moving forward i think her conduct is going to satisfy that past because i think it's clear from the report that her recommendation or decision whatever what we want to consider it was an exercise of professional judgment that's well thought out it's objective and in your office very well done and much appreciate