number one four dash three one seven three barbara moore versus christine money and now arguments not to exceed fifteen minutes per side mr callahan for the  amendment retaliation claim and we have four individual defendants chris money martha spawn amy asked and david pittman who each are alleged to have retaliated against her because of in court testimony that she made  two thousand and this is a simple case about what clearly established law means once the district court said that the sixth circuit has not addressed the issue of in court testimony as public employee speech the analysis in that in that opinion in order should have gone in a much different direction and casting about looking at the ninth circuit a third circuit decision in city of atlantic city what the eleventh circuit had done and the case that was going up to the u s supreme court lane versus franks should have shown that there was not clearly established law that it would allow these reasonable public officers the opponents in this case to conform their conduct to an accepted standard and the second issue basically is that the defendants didn't take any action in this case against the rights of barbara moore the district court didn't make any individual determination for each defendant each appellant that they acted or that there was any evidence to show a causal connection an intent to retaliate against barbara more for her in court testimony and in addition to that there were no adverse employed let me cut to the chase and try to figure out what i'm missing here under lane it seems to me in a mistake of all that the and went off on medical leave in march two thousand and eleven well more importantly at any point is she sought restoration of her job she's not i mean she has been found to be a prevailing party here that's i think one things have been discussed but she i'm asking what she by way of relief here if she simply want to damages what would be the purpose of re mandating on an official capacity claim for which you can't get damages correct she couldn't seek damages it would be i think it the i think they can m the decision dismissed the case completely since there isn't any remaining  please the court my name is raphael davis williams and i am representing apple barber more in this matter so let's divide it out into the two categories and your individual capacity claims is there any conceivable theory under which you can win that in light of the lane saying the law was not clearly established at this time absolutely your honor i would actually ask that the court take a more careful reading of lane  specifically look at lane at page twenty three eighty one where the supreme court is the relevant question for qualified immunity purposes in this case could frank the employer reasonably have believed at the time he fired claim the employee that a government employee could fire an employee on account of testimony that was given under oath outside the scope of the ordinary responsibilities the eleventh circuit precedent did not preclude frank from reasonably holding that belief and the decision of the supreme court had sufficiently cast doubt on that however that is the exact opposite in the six circuit to six circuit has almost thirty years of precedent that absolutely says there is a very clear  no i'm sorry ya know the district court said there was no six circuit precedent on court ordered testimony which is what the case is here which distinguishes this case from both claim garcia and all of the other cases that are the that are in line with this particular case the testimony that was a listed it from my client was ordered by the district court the district court ordered her to test where she was not to testify she was not chosen by go she did not go to make a complaint she was ordered by the district court to come in and testify the court clearly this court the six circuit clearly established and more hunted versus walker that employs speech was protected when the this that particular case the facts of that case when the employee spoke to the police officer conducting criminal investigations in his blood against his public employer this court the sixth circuit emphasized that more hunted speech was induced by civic commitment to cooperate with law enforcement rather than by any official duty related to his employment what the district court in this case it was that there was there is no case on point where there was court order testimony but there are compelled testimony did i get that right a minute ago and you cite to a case that you don't even rely upon in your brief so is there a case that you rely upon in your brief that stands for the proposition that you're just arguing because i did i'd misunderstood that i didn't get that yes your hon we had to change after you know in an effort to address the lane these are the cases that we came up with but they were cited in our in the lower court they were cited in our briefings both at the at the lower court they may not be in the legal framework for public employees and their first amendment rights and therefore really put in doubt whether the pre or city six circuit cases are applicable absolutely your honor however lane to do is to establish a role that would say if a public employee provides testimony that is compelled by a judge that that employee must then choose between giving truthful testimony or suffering adverse employment act i think there are gives it a more limited they're  saying that prior to lane versus franks that the law wasn't clearly established in this area i mean i think that lane versus franks at least for the issue there i mean were they reversed the eleventh circuit and they've created clearly established law for their holding i think their argument is that after selig city and before lane versus right that the law was unsettled and that's why the the defendants in the lane never a last one because the supreme court said ok eleventh circuit was wrong unanimously wrong which i thought was significant they never alas said the defendants in the eleventh circuit had a right to rely on the eleven circuits erroneous decision and therefore they are entitled to qualified immunity well we're not in the eleventh circuit and my question is i mean lane was very clear that the eleventh circuit is wrong animist you don't see that very often and if the eleventh circuit is outlier and their decision was so way out there was a reasonable question as one of the defendants were were reasonable to rely on such an outrageous decision  and how do you respond to that because that that you're absolutely right the eleventh circuit was an outlier the six circuit it is it has been established in the six or there is theirs that the death more on a case was set in one thousand nine hundred six it's almost thirty years of of of of definition and presidential law stating that any public employer cannot take adverse employment actions against a public employee based on testimony that is provided there a constitutional right violation and two was a law clearly established it was clearly established in the six circuit it wasn't clearly established in the eleventh circuit but it is absolutely clearly established in the six circuit that don't pollute for you cannot take adverse employment actions said was there was no precedent for a federal court ordered testimony compared to all of the other cases war individuals who either  terribly testified or it was a part of their duty but there is no those cases were if they were binding and they were good authority that the situation you have where you have compel testimony  stronger for a first amendment right than cases where they voluntarily give testimony isn't that you're right you're on it but judge morally still said those cases were on point right no i believe would just morally set in and we can read again i don't have inverses testimony that's either a part of the individual's job duties or where the individual initiated the process or where there were some other means of eliciting that testimony other than the court order test we had compelled that phrase as although the six circuit has not expressly addressed the issue of in court testimony is protected by public employees speech and then i believe that the phraseology he uses after that is  was ordered by this court to appear it is a document thirteen this is documents seventy four the opinion orders document seventy four from the motion to dismiss we don't know i'm looking at what i think you appealed from here right i you t and earlier opinion of his in this case not the one from which the state has taken the appeal on this case yes sure i pods i was taking a view of the entire earlier opinion was that a motion to dismiss yes it was a motion to dismiss that was did not ok let's get get past the issue of whether these old six circuit cases are on point or not tell me otherwise why you think that it was clearly clearly established that the defendants could not act the way they allegedly did here sure it was clearly established on tide of the cases is a and we did include this in our briefing based on a practical application where if if the sixth circuit in this case reverses course  marble and says that it is in fact permissible for public employer well no we're not going to do that and the issue is whether it's clear that steps backwards again versus prince already has already centrally said that there's this  constitutional violation but we're trying we have to decide if it was clearly established by the time of your corns test you just assume for purposes of argument that i don't think those six circuit cases bind us or that that's the point what you what your next argument as to why this was clearly established it was it was clearly established because at the end that's where i was going with this a moment ago because it is it's illogical to assume that a compel right oh not at the supreme court's taking up in lane well that is that's definitely important issue but it's not the sole issue but it is important in this case as well because it was wholly outside of her job duties there were there was nothing about she was not a prosecutor she wasn't she had there was nothing but for the court ordering her to testify she would never provide if we thought the constitutional claim you probably win on that i understand but you how do you make it well this is mr callahan at least for me this is taken an unexpected twist so what about these cases appear at least cited in a different earlier opinion of judge maher believe it may or may not still you know that their party should present evidence as the what the adverse employment actions actually were since it began the employee wasn't terminated and what the good faith reason for any of these actions were proceed with and we did that and then we filed a motion for summary judgment last year and when that was denied that's what we've brought up now with a more complete record for the court to review so i would say there weren't any opinions in there certainly not judge different posts are seti that established that in court public employee testimony was clearly established law for violation of first amendment and so just on that last point what i'll reiterate is i still think there is a question about what adverse employment actions actually occurred here there's a laundry list of twelve different things i mean i i think the eleventh circuit badly just i was not surprised at all that lane reversed the eleventh circuit unanimously which you very rarely see and i think the best argument for firms is that the eleventh circuit was allowing taking away ploys first amendment rights of court testimony tell me what's wrong with that argument that there is no six circuit case and the eleventh circuit interpretation of our city is just so out there the attorney general the calendar deputy i'm sorry i forgot his exact title he had written a memo challenging the just cause determination and that was what was found to be you know what we now refer to as the car city speech this memorandum where he  a probable cause term the murder part of his job but he'd also testified in court when he was called by the defense in the criminal case and the supreme court didn't reach that issue so that has developed a lot of different litigation post ar i mean so you have an ear decision that's probably reversed by this six circuit or by the ninth circuit you have an eleventh circuit decision which is unanimously reversed by this supreme court and the issue is are the interpretations by those circuits was a reasonable i think it what i think the issue is it for my clients is what what standard could they be hold helped to and if the courts are disagreeing then that seems like that's what's  qualified immunity should be granted and the only thing i would add was with lee versus franks there was footnote four where they specifically the you know his court as you said specifically stated that there they would reach opinion on how carr said he applies when in court testimony is part of the employee's ordinary job duties and justice thomas concurrence mentions police officers crime scene technicians lab analysts and also thirty  departments who are presented as a witness on behalf of the institution to speak about policy how policies implemented there that's still an open question after a lame versus franks about whether you know sworn testimony would protected when those employees are making that speech as part of their regular official duties so i think it's a very ambiguous area so again i think it's a compelling case for qualified immunity for for the parents in this case but in addition because there was no adverse employment action and the you know two most recent cases for public employee first a member retaliation case claims savage versus gay why would we want to get to where there was a net resection he moving her office having an investigation giving her supervisory counseling that none of those things are an adverse employment action that supports a first amendment retaliation claim for a public employee so i think that's an important component bob about this case obviously i want the case dismissed against my clients but i'm also concerned about an official capacity claim if if something was identified likely versus franks and i wanted to point out that because this isn't a discharged case where the employee was fired i'm likely versus franks but that's