court erred for several reasons first the district court erred in determining that even when considering all the facts in the best light to the plaintiff that there was a constitutional well but your brief i think sort of puts together a lot of different strands of argument me it's one thing to say there's no constitutional violation here because there's no causation and because there was no retaliation but it's another thing to say that as a matter of just abstract a law there is no constitutional right right involved at all if there is a firing along the lines established law even if the facts as alleged by even if there were a constitutional violation we think the district court erred in finding that there was a violation of clearly established law as to the first part which leave out the word constitutional this is just the merits and i will say the facts are all over the place the bat what jobs she saw what in a nutshell is your position assuming that there's a constitutional climate what is your position as to why the evidence does not or any knowledge from dr worden ski and let me take it there are three positions there are three assignments that are at issue at this case two of them i think are i can discuss together and then one of them and have to discuss all i'm sorry that would be the toast which stands for teacher on special assignment that i'm now in the process for tose is different than the other two than the first two the process for the for the literacy coach and the curriculum specialist as you apply in the communications with dr wendy and ski about miscarrying application they decided talent management department decided that she didn't have or they were not aware of any the fact that she had any training testified that she called him back and here are going on that was sort of an incomplete application yes well that and however it was decided dr warden ski was involved in that decision he only took what's the talent management script so the talent management screened applicants for curriculum specialist and for literacy coach then the talent management would then take four people and they would give four applicants to each principal who had that position in the principal with and choose among the fo people that were given to give in to that principle by talent management a pretty principal didn't have carte blanche to hire whoever they wanted and this goes back to reasons for departing does not go to the her principal at davis because they viewed her as not having a little bit different because while you're still sprained by the talent management department you do it isn't an assignment that you apply for the normal process that a principal will recommend to you for that a director of instruction or essay or a deputy superintendent on rare cases a superintendent can ask the talent management department to put that person through the screen even if they're not recommended by principle  so what happens and none of that happened here nobody recommended and plan if i want to talk about that but nobody recommended so how is your plan now and you still just sad i'd like to be considered for this in any any place where there might be a position are the way it was set up said course this is a case where where the plaintiff is alleging that she was retaliated against based on statements that were made not by her about her father and that makes it an unusual case and so the district court said that it's clearly established that you can have a retaliation claim a first amendment retaliation claim freedom of speech or television claim based on the statements of your of a relative or your father w bryson case doesn't say that and so i think the price in case was missed cited well if you want bryson bryson doesn't say that what is it because his title seven is because it's a first amendment case because the fact that case didn't involve the speech of a relative it involved the speech of the employee but there are a lot of cases that are certainly out there on that attribution to other family members and others right how do those i'm not aware of of the cases you're discussing i know that there was a case louis versus the louis case from the middle district which discussed a similar case where an adverse employment action was taken against an education employee based on the statement of her father and the question in that case was was it clearly established that that that it that a superintendent or a power decider could some cases in other circuits and we think it's obvious and but there was this is an obvious clarity situation isn't it i don't believe it is i believe it i would kind of liken it to the case where you had a you had an employee education employee who was terminated because he but because because he  let me read you this from the priesthood case living through that this inquiry's another kind of obvious clarity assessment see it that it's applicable when the official to conduct last so obviously at the very core of what the first amendment prohibits that the  i'm sorry and i don't believe that this fits in the narrow exception to obvious i don't think it's obvious that you can't retaliate based on the statements of a relative guess that i mean that you couldn't retaliate based on that person's test of truthful testimony in a court proceeding i mean you do you think there is to follow up on judge vinson's line of questioning do you think there is any clarity on retaliation and in the freedom of association sphere there is there are other words people right now public officials can just there's no clearly established law that officials can't of speech no this let's talk about this case freedom of association about what's the core that everybody knows you can't do you can't you that you can't undo really intrude on  proof of causation existed so that's putting aside judge carnes as questions about the record we're talking abstract you don't think that it's obvious to a government official that he or she can't discriminate against an employee based on what a family member does or says i think i think it's obvious that he can't do it in a manner which intrudes all the light on the relationship let me finish let me flip that let me flip the the facts on you a little bit and give you a hypothetical that is not this case so let's assume that a public official  has a subordinate who is applying for a certain position right and that person is about to be married to another person and the official says you know i don't really want you marrying that person i've known his or her family they're just not good stock not good people they're trouble makers i or i'd rather you not do that and the subordinate says no harm i'm going to go ahead with the marriage i love him or her and we're going forward and the supervisor says well you know if you do that against my wishes th that promotion isn't going to happen for you and you're going to run into a dead end here at this place there's not going to be any future for you person goes ahead and gets married and it turns out that there is a dead end and that there is no promotion and that life becomes really difficult at the workplace is that a situation of obvious clarity yes yes but it's different than this than this i only know is why i say it's a hypothetical it's different i completely acknowledge that it is but i'm trying to get you to tell me where that core of obviousness is so you think in that hypothetical which is admittedly different there would be a clearly established freedom of association right that couldn't be violated right because th because the associational that the job was conditioned on whether or not it intrudes on the relationship but because your job is conditioned on whether or not you can enter into that relationship it's an area that has that answers this question that answers this case at least on the abstract question because if that's it and if that is clearly established because an intrusion how could this not be an intrusion were again putting aside the factual record because you've got two or three arguments on that but we're talking about the clearly established question if you deny somebody a position or a promotion because of what a father or a mother or a brother or a sister or a spouse says how can that not intrude on that relationship aren't you at that point discouraging an association between the daughter and son and father or mother like stay away disassociate yourself from what your family members are saying or else you're going to have trouble here i don't think well i think there's any evidence of that in this case and i know this is i'm putting aside all the eviden issues and your arguments about the lack of causation for as is the abstract question about whether or not there is a right and whether or not any such right is clearly established i would argue your honor that there would have to be some further it not just that there was an adverse employment action but that somehow the relationship was intruded upon other than just the fact that there that there was an adverse action i think that s supported by the singleton case which we cited although all the albeit from another circuit all right thank you very much will give your full time for you gave us a stack of i believe yes or supplemental authority this morning i count over ten cases i speak only for myself but that's not a very good thing to do yes or if you have supplemental authority you know give it to us at least a couple of days before so that we can look at it so that your opponent can look at it and so that we can talk about the issues but handing out a number of cases minutes before argument is supposed to begin is it really helpful to to anybody so have you given copies of those cases to your opponent i brought i read the rules before coming today your honor and i apologize for not i probably should have called the clerk's office for clarity and i did not the short answer is i brought enough copies for everybody including opposing counsel today you have you given them to him i gave all my copies to the clerk's office this morning including my own copies you're all are aware of the copies for mr brooks you've got the other copy ok not that it's going to do him any good at this point well you're not planning to argue these cases that nobody's heard of until today are you certain i was planning on making reference to them your honor yes well you know that puts everybody in in a very difficult bind because we've read the briefs we've read the district court's order we've read parts of the record not the whole record and now it i mean i skimmed and it has always they told you in law school is a very dangerous thing to always to ever do but i've skimmed the headnotes just to get an idea of what the case is about but that's not a good situation so on the other hand we can't act as if we're going to stick our heads in the sand and ignore them so what i'm going to do is give you a chance and we're not going to discuss these cases today because that would not be fair to mr brooks but what we are going to do is give you a chance to file within a week of today a five page letter brief addressing those authorities and mr brooks you've got an additional week after that to file a respons letter brief also limited to five pages with regard to those authorities as well ok with that go right ahead thank you both so there  always important to me and we've got a lot of tough legal issues but we don't even have to get to them if it turns out that a basic employment case your client didn't apply for the job and we can't say that the superintendent had anything to do with about her not getting a particular job so could you take it one by one we've given you more time what exactly what job whatever section is it what job are you saying she did not get a promotion to and what is the connection of the superintendent i guess starting are you saying that your cause of action is based on the literacy coach position your honor i think the primary position in this case clearly the position that miss gaines would have preferred and that she was clearly in line for was the  application she didn't call them back when i applied for a job and they asked me to call back and i don't on the employer i think they're not interested in the job i think there's issues of fact as to whether she got the phone call in the first place  testimony indicating she didn't get the call i don't know that there is one way or the other that she got the call your audit says they left a message well you know the record i mean did she test on say i never never got a call honestly your honor i don't remember that issue on the record as we sit here right now but nevertheless that is the superintendent's trying to divorce himself from the position of a our i coach which was a position that had been discussed with miss ga curriculum specialist one of the two if you'll stay davis hills i want you to be that and miss gates says well i'm talking about tosa but i'll lead with that with the superintendent but i'll let you know the superintendent then does not offer position and so she sends an e mail to the superintendent that says respectfully mr superintendent my principal offered me a literacy coach position i'd like to take that position the superintendent  e mail to the deputy superintendent that says are we making her i'm sorry n a r i coach and then at some point the there's issues as to whether it was before or after that e mail the director secondary education then calls the principal and says to joel burwell the principal don't talk to linda gaines about any positions anymore you're saying that even whenever this application came through and she didn't respond essentially s apply for the job over the head of the process to the superintend that's right and the superintendent became directly involved in the process to ensure that she would not get the job and he partly got involved because her father asked him about his daughter getting a position that was talked about with miss gaines a year before about potential administrative positions and the superintendent asked miss gaines a year before please remain in davis hills for a year and then the impression that ms gaines got was they would talk again  a year and certainly the e mails and that the superintendent sent an e mail saying i promise to get back with her at the end of the year to talk about future positions and the superintendent then direct his number to the assistant superintendent and he direct the director of secondary education the person who's in charge of high schools sit down and talk to him to get it and they do that believe it is on april eighth two thousand and thirteen and during that meeting the  director of secondary education edith pickens talks myth gains and says you know good doing a good job i want you to accept summer committee positions we have heard we have a tape that said word mr pickens says when you're in both agree that she would make a great candidate for toast so what do you think dr ward answer and dr gordon ski response i think she'd make a great candidate i'd like to see her in that position i think she has a good head and a good heart but vestiges of segregation and i so i'd like to ask you mr brooks on the law of this case and set aside the facts for a minute you're a lying almost entirely on thompson versus north american in your speech claim but that's a title seven case it doesn't give me one side taishan to any supreme court decision or eleventh circuit decision or supreme court of alabama decision that says the free speech is applicable in this kind of a situation to a relative's exercises and you cite the middle district  valid bama district court decision the lewis versus you follow city but that's hardly in that category i have to apply so that you are certainly one case that we have cited in our brief from the eleventh circuit is car versus could does which rose the facts in that arose in october of two thousand and thirteen which obviously is after may of twenty third but in that case a husband and wife are walking down the street and the wife unquestionably curses at a police officer who then engages in a retaliatory arrest of both the wife and her husband and the eleven circuit didn't throw out the husband's claim on the ground that he didn't possess any such claim of the first amendment free speech provision instead it found that both the wife and the husband possess clearly established free i've i've looked at the mets case which is one of your late found cases and it also is unpublished and of course it's far after the time we're talking about three years later in its sights thompson in passing but it doesn't specifically argue one way or the other that first amendment claims under the constitution are encompassed within the thompsons decision on a statutory right under title seven it's pretty weak connection well the way i read the case law your honor is first of all that mess and could go recognize the existence of the right within the first amendment then the second question is what does it tell me what is your best i mean what is the one or two standing right here you don't have other than a case you just and she can't come up with a with a good case that one would that would show this is obviously clear well the obvious clarity is different from material similarity in the analysis you know those are two different i'm just saying whatever you want to call out what is the best case we've got to say yes this was this what if this case if it had been read by the superintendent would have put him on notice that case out is there one other than wilson which you just handed out and again wouldn't wouldn't qualify for qualified immunity and even if you're talking about the obvious that the second circuit said it's its point is debatable so that makes it sort of  questionable whether that would be found to be true at the circuits anyway it isn't what you're on again i think with regard to all the way from the supreme court decided to make a porsche sure of anything that resembles a family relationship is protected well that sound we all know from from our qualified immunity law that's so general so yeah it's protected but then you have to dig down to particular facts what does that mean protected in what way so we need a are no cases that we've cited dealing with the protection of a child from retaliation based upon the conduct of a parent or nevertheless given the fact that it is clearly established even on a gentle level your honor that family relationships are protected and cannot be retaliated against from that the only issue after that is whether or not government has a legitimate reason why are you saying that in a situation then employees father could just go out and say any sort of thing he wants and i'm sure the father in this situation is a respectable man and would not do this that's not my example but let's say another father would just be angry that it is child's boston and gage and all sorts of ad hominem attacks and call the principal a superintendent names really ugly things on the internet as these things get going and superintendent can have this kind of thing where this kind of thing is going on certainly if the employee had said that she could be fired there's no protected conduct there are you saying on that kind of attack by a family member comes along with this broad association all right means that the principal has to has to put up with that and can take no action against the a father who's just going after tooth and tongue and creating an uproar in the school and if the employee were acting that way she should be fired why would she be insulated because her father's doing it now i agree with him to the first amendment i agree with you totally on your on your fundamental premise that if it is interfering if the speech or the association is interfering with the operation of the school system then yes then the employment can be conditioned on that but that's not this case that's not but the whole point is when your time at clear notice is this is a difficult area it's a broad area and superintendent sitting there can't make the kind of line drawing we are just have a general right doesn't whether that right can be vindicated on the facts of a particular case absent case law telling us that i would i would disagree your honor i would say the case law demonstrates that that if there is a legitimate school were laid an operational reason for making employment a condition then yes but there is a but if there's any legitimate reason to to miss thing then there is fair notice to every reasonable government official that you can't take arbitrary action like this so respectfully your i would disagree with you on just luck would i do want to ask you about the standing issue before you lose your time here because i think standing is a major issue under the credential considerations that the eleventh circuit is said control the right of litigants to bring actions on behalf of which you may have giving him or her a sufficiently concrete interest in the outcome of the issue second then let it get must have a close relation to the third party which you've got but here's the third one and this is the thing i want to ask you about and there must exist some hindrance to the third party's ability to protect his or her own interest what what is the hindrance to the father in this case to bringing his first amendment claim you honor i can address that issue come letter brief time it is part of the authority that that for me there's certainly no his standing has been pretty clearly raised in the briefs here i mean it's an open issue and it very clearly is relied upon by the  i mean he has no damage all the damage in this case has been directed at his daughter miss gaines and respectfully on the standing issue i don't believe that mrs gaines is a is a speech but it's her right you're wrong or your your assertion is that this is not a third party standing case in the traditional craig vs boren sense where you are not only asserting your own injury but you're also trying to wrap into the constitutional right asserted by another party which gives you a better standard of review and gives you a better chance of succeeding whether you win or lose on the association speech claims your argument is i've always understood it in the district court and here is that miss game suffered injury by not getting the position she sought and that was based on retaliation for her father's speech that's right you're right yesterday and if you can prove that she didn't get a position because of her father's speech then she has shown injury in fact yes or right to quote that legal question is whether or not that sort of right is clearly established but your argument is that she has suffered injury in her own right and she's not asserting her father's injury she's asserting her own that's correct you've got your full time thank your honor the first the first thing i'd like to address that mr lockwood raised was all on the factual issue about tose as he's mr lockwood's correct that miss gaines did meet with the deputy superintendent and mrs pickens and that the superintendent and dr cooper the deputy superintendent did have discussions about possibly putting her through the tosa screen but what happened was on april tenth which was well before the may first date of of her father's speech that was alleged to retaliate on that just when you have somebody you just you know you say nice things when they're in front why would she say such nice things about the plaintiff when the plane was in the meeting but then contradict that later i believe miss pickens testimony was that she felt like when this gang's is there and then about the case i don't recall what her testimony was if she was asked that in apologize is that it and i made it issue of fact and i don't know because we've got her saying two different things that actually you know you know  and but the i think the important fact is in this case is the deadline for ptosis to be put to talent management for screening was able nineteenth and the date of the speech or to she was may first and so  didn't follow through if how could he have been motivated by the speech on may first not to give her name to talent management by the april nineteenth deadline and that's what where  there's no disputed issue of fact because it is clear in there that a pullback in line it sounds like he was still working collegiately with father about whatever their issues were because the father demeaning says my daughter like a job and he says whatever job she wants which probably is not the appropriate procedure to go to get jobs but that's what he said and and then that would have been obviously before the my first speech right that was that was right that was the  connection i want to ask you about the retaliation who was it against was it against the father or the daughter well you know you don't you think at this point i don't think i'll answer what any retaliation well assuming there is some retaliation it who who it is who is it against well i guess i guess it would have had to have been against the father because they're not alleging that the daughter did anything which would warrant retaliation it was you know but the whole purpose whether or not the claim survives legally is a whole different issue but the asserted claim is that the retaliation is against her through the nihil of a position based on her father's speech now i agree that that line that that theory may or may not play out under the first amendment and even if it does it may not be clearly established but that's the claim that's been played in argued throughout this case right that supposedly the father said x and adverse action was taken against her because of what her father had said which was critical of some of the things that mr what does he was doing with regards to the school system i respect to casey martin ski and dismiss an order that the claims against him be dismissed on the basis of all five of unity all right thank you very much again letter briefs starting with you a week from today and then  a week from that day ok five pages each thank you very much