if the court takes walters for the defendants plaintiffs in this case seek money damages from two agency lawyers based on a recommendation of the f t c commissioners initiated administrator's proceedings play this claim should be dismissed for two principal reasons first special factors preclude a defense remedy because the f t c act is an alternative existing process for protecting the interests at stake second plane is complete not only fails to state a first amendment claim it does not satisfy even the basic pleading invoked in their pending petition for review before the eleventh circuit and it's worth noting that in denying or in holding that a given for money was available here the district court relied almost exclusively on justice marshall's concurring opinion in bush v lucas which opined that a scheme could preclude a remedy only if it were specifically designed to provide for compensation that is not the law it was not the law that it is certainly not the law now in light if a remedy were available plaintiffs have not plausibly stated a first amendment claim there are no factual allegations supporting an inference of retaliation other than this three day time period between one instance of criticism of the f t c is an ongoing multi year investigation and the date that plaintiffs are the defense plaintiffs learned that a force a recommendation had been made that can't be enough  to state a first amendment claim particularly when the criticism was of a multi year investigation and where there is no specific allegations of animus or a change in behavior or anything else other than th frankly on information or belief raising inferences and their you know employees or contractors or regulate and these are often in the situation of saying we know event it happened in sequence followed by  recommendation that might be correct although they don't even really say exactly that on information belief that the recommendation itself occurred afterwards but it certainly doesn't help them in any way on the core teaching failure which is the  the fact that the only thing they're offering is this temporal proximity between one instance of criticism of an ongoing i'd like to make one comment about the position of the government here it is deeply disturbing this is in their brief course this is deeply disturbing that we have two attorneys employed by the federal government who are now telling this court in the brief that in two thousand and thirteen the law was not clear enough for them to know that retaliation for protected speech was a violation of the first amendment they knew that and they wanted to communicate to my client that they were going to retaliate reasonable inference from the complaint shows that mr shear wanted mr darty eleven d to know complaint because your complaint says this that the reason for the retaliation was either the trailer for the book or their failure to sign a consent w their refusal to sign a consent to work so even under kind of the theory of your your your complaint that the trailer for the book isn't that it could be about for college your honor not with the line would be to do one or the other well it would not have been a legitimate justification for the filing of the enforcement action just because mr hardy alive and they refused to sign a consent decree that would be violate the first amendment now but it's going to be for the jury to make a determination there are so many facts at issue here mean you're pleading that there's an alternative explanation that is not unconstitutional now your honor but it is easy to reasonably infer as the court must draw reason the references in favor of my client that when mr share just three days after the promotional video was post if the f t c nonetheless and i know this is not your position and that you're litigating that and then separate if the f t c did have grounds to investigate then isn't it under the supreme court's decision and rightfully and disclose the fact that this file was never floating in cyberspace right now i know i've read that or the record and i know that there's that you've raised questions about this whistleblower and about the relationship between the whistleblower and see and you know that that's all very much in litigation right before the eleventh circuit but i'm talking about a legal question for us in looking at the retaliation claim if there weren't in this with you know from three from your perspective take this as a hypothetical because i know you want to  amendment retaliatory enforced and in harping versus more you're out of this question is also address where the court actually reversed the circuit because the circuit had held previously if as long as there was a retaliatory decades i don't think i've sufficiently answered judge the large question you'll get a moment ago the complaint was brought based upon the allegation that there was spread that would have been needed in order for that to have possibly been significant consumer harm which is required under fifteen u s c forty five and if the if a tree falls in the woods and nobody here is that it doesn't matter and this is a quote from one of the judges in the eleventh circuit court of appeals wondering why there was ever any prosecution here now to answer judge a large question earlier it's also important to know that after the evidence fell  apart was shredded as judge joan flat said in the eleventh circuit the f t c the f t c changed its position it was not their original position that simply being available was a violation of section five that was a position that they came up with later and frankly is not supported at all in the case law because there has been no consumer injury no matter what theory the f c c may have had about availability in the absence of substantial consumer injury they had no basis for bringing the case to  where there's a posting on the internet and we are to presume retaliation doesn't work unless they though that this posting was the coalition doesn't work unless they know that a complaint was made the letter was filed at the collingsworth why in the world should we stretch the temporal proximity precedent to say that  honor it is in the record in this case and it is on the public record that in response the day of the publication of a video seventy five different users from the federal trade commission looks not necessarily your own or not it was a request made below now the court didn't look at that you're either with us the court to look at that no we did not but why should we look at it now the court has the ability to take  pleaded in her favor that some people did look at it given the time proximity so but i'm still troubled by what i see as a legal obstacle to your claim which is that this was a investigation ahead and going on for some years and it may in the end have proved baseless i mean the be in the end then in the eleventh circuit you win but if the members of the f t c said however their belief that this public you know this information had been the lebanese information had been carelessly made public they believe that they had reason to go on investigating and force based on that you have no c they also i thought they were saying they and they indeed are still defending in the eleventh circuit based on an idea that a different modicum of harm or risk is sufficient from what you're arguing that did not it still this is a risk these are people you know preventing this kind of hacking of their files and so their legal theory and narrows focuses adapt had any reason to bring this because the recommendations that were made by the attorneys at issue contain false and fraudulent information whether the f has a separate ground independent of the brutality ation your honor is of course a question but it's a question that cannot be answered based upon this complaint based upon the allegations that we have here cannot be decided at this point in time by the court i agree but i think that cuts against you the fact that it can't be decided whether they have a separate ground you know they thought they had a ground well we don't sitting on that basis which they have that then we don't know  that's of course true but that but the reichl court and this court and you corey both made clear that that broad general proposition does not defeat the claim of qualified immunity what you need is something more specific to the factual circumstances at hand and players have still haven't come forward with a single case that is even remotely analogous to this recommendation of administrative proceeding do they need a case or is it enough that if if they are not sure th this but if they allege not only that that the enforcement action is baseless but that it's frivolous and bad faith from the beginning i think that take it outside of rightly into core that would help with the probable cause issue if they had specific allegations that if taken as true would show that there was a lack of probable cause they'd still i think have to have something involving recommendation of administrative proceeding i mean the cases they rely on i'm not sure when you're in that realm of intentional misconduct and that's why they think as you know as a government attorney that clearly established right feature of a qualified immunity doesn't really get you very on the basis of protected speech is sufficient to defeat the claim for qualified immunity yes your honor so just to hold otherwise would basically be she qualified immunity in this context again we're not it's not your case whether or not