may please the court had their hacker for the defendant upon the district court should have granted qualified immunity in this case for three main reasons the first anderson cannot establish a constitutional violation because there's no evidence that she justice valdez even knew that andersen had filed complaints against him second anderson also cannot establish a constitutional violation because he admitted that filing a complaint against chief justice valdez was part of his job duties and third it was not clearly established at the time that an employee speaking in similar circumstances was engaging in protected activity starting for it's first with causation there is no need for this court to decide the more difficult constitutional issues of whether andersen speech was protected and whether it was clearly established because andersen has failed to put forth evidence to create a fact issue on the most fundamental element of his retaliation claim that the defendant knew about the speech in question after discovery there is no testimony or evidence suggesting that chief justice valdes knew about the complaint that andersen filed every justice of the thirteenth court of appeals all of their central staff justice valdez assistant all testified that they did not know that andersen had filed a complaint until after the decision was made to rescind his job offer anderson has no evidence to refute this anderson relies heavily on his claim that justice perks told him that she just as valid as retaliated against him but the distance in the district court said that this does not place chief justice valdez's knowledge at issue in genuine dispute in other words even if it was true that justice perks said that that doesn't prove anything about chief justice valdez's knowledge the district court relied on the fact that other people at the court knew about anderson complaints anderson said he told four people but none of those individuals were involved in the decision not to hire andersen and there's no evidence that any of those people told chief justice valdez or anyone else who was involved in the decision so let's look at those four people that anderson said he told two of those people were current employees of the court and two of them were former employees of the court first caylee holloway who was justice percs assistant anderson said he told her that she was she was deposed and she specifically testified that she did not tell anybody else at the court about that second anderson said he told justice of ayla who at that point had already left the court there is no testimony in her deposition that she told anybody at the court the other two people that he named that he told were patty fowler who is a current employee of the court and kathy wilburn who had retired some years prior to that those witnesses were not even deposed there's no evidence on the record that they spoke to anyone at the court daniel lockwood who was just as percs junior attorney at that time said he didn't know about the complaints until after the decision was made to rescind the job offer to anderson and he said another briefing attorney at the court megan kemp told him about it but that she had communicated with anderson also testified that he never heard anyone else at the court talk about it and that there was not a lot of office banter in general even after the lawsuit was filed and importantly these people that anderson said he told anderson himself formally did work and that in the corpus christi office of the court that court is divided into two different offices and chief justice valdes and two other justices work in the edinburg office so to sum it up the district court is going to put this case to a jury on nothing more than pure speculation that rumors were spread by court employees in corpus christi that made it all the way to the chief justice in edinburg with no evidence substantiating that if it was true in this case  justice valdez knew about these complaints there would be some evidence of it and there's none here even if we assume that chief justice valdez knew about the complaints in this case we still have a causation problem here for two reasons first it's unclear whether valdez was even the decision maker in this case just as percs had authority under the rules to hire him he wanted to he testified he didn't want to push it after he was made aware of the fact that the other justices didn't think he should hire andersen and he also testified that he wouldn't have hired andersen if he had known that the rest of the court didn't like him second there was a nondiscrimination reason that anderson was not hired that he has failed to rebut in this case the evidence shows that the court of the justice on the court how is that the chief justice is something honk want to have that want according to the courts rules each justice can hire for their own chambers and that's their decision the chief justice has more of an administrative role in setting the salary and things like that so he is involved in hiring but according to the court's rules the ultimate decision generally rests with the justice at issue the record shows though on two other occasions chief justice  his role as chief justice where justice wanted to make an inappropriate hire but the justice parks testified that he could have hired anyone he wanted to hire did me yes he  did the the record shows that when when the court heard that they were that he was considering hiring andersen one of the central staff expressed a concern that he was not capable of doing civil helping to draft civil opinions and so she went back and looked at the court records which dated back to two thousand and eight and from two thousand and eight to two through two thousand and twelve when he left the court he had written zero civil opinions for the court anderson has no evidence to contest that and i don't believe that he does contest that that right there is a nondiscriminatory reason why the court should have hired him because it's undisputed why the court didn't hire him because it is undisputed that percs was behind on his docket and that he needed help specifically with civil cases and the court's record showed that there was a good reason to question whether or not anderson was capable of helping him in that respect under this court's decision and gerhart even if anderson's complaint played a role in the decision if he would not have been rehired anyway because of this concern it would not be a constitutional violation just some of the this issue of causation summary judgment must be granted were critical evidence is so weak on an essential fact that it could not support a judgment in favor of the mom movement and that it's this case here attorney like i'd like to turn now to the issue of job duties even if the court determines that anderson has enough evidence to demonstrate the cause ation element he still cannot establish a constitutional violation because his speech was made pursuant to his job duties the record shows that as a condition of employment with the thirteenth court of appeals as a briefing attorney anderson signed a statement agreeing to be bound by the texas texas code of judicial conduct the code in traditional conduct normally only applies to texas judges the statement that andersen filed and the record shows that it was not only just that it was not only specific to the thirteenth court of appeals but it was also specific to briefing attorneys at the court of appeals and it was signed by him and his boss just as available anderson himself testified that compliance with the code was part of his job duties he admitted that he felt he should report chief justice valdez after his judge chose not to for political reasons it's also important to note that the information in this case was discovered in the context of a political campaign the individual who obtained the information did so by a public records request and that individual was the chair of the republican power party of the county  in addition at that time justice avila was running against chief justice valdez for for the position of chief justice that's why she said she didn't want to report him because she thought it would look too political this court in wilson and also suggested so in the charles opinion those are cited in our brief has found that speech made to put made pursuant to professional ethical duties that are part of the job is job related speech the previous opinion in this case offered up the idea of control as one possible factor the court could look at to determine whether or not the speech was made pursuant to job duties and here there are legitimate reasons for the employer to control an employee speaking even if it they were speaking pursuant to an ethical duty for example if if a court employee makes a false accusation against a sitting judge seems that the employer should be able to address that problem and the specific context of this case is what makes this the scenario unique in the law because we're talking about essentially a law clerk here who has various special function in the judiciary if a law clerk made an accusation against a judge say for bias and that judge that the judge would probably have an interest in firing that clerk because they could no longer trust and that the position of law clerk involves a great degree of trust with between the judge and the clerk and his response brief anderson tries to get around his admissions about job duties by arguing that complying with the code was a general rather than an actual job duty but not only is this contradicted by anderson's own testimony that places this case squarely in the distinction between general and ordinary job duties which this court already noted in this case was clarified by the supreme court in lane which was not decided yet when the decision was made to rescind anderson's anderson's job offer  i believe it was june twenty one thousand your honor and the decision yes and yes the decision the decision was made to not rehire andersen and may twenty fourteen so i'd like to turn now to the issue of whether it was clearly established that manderson speech was protected given anderson's testimony in the statement he signed as a condition of employment compliance with the code must at least be a general job duty as the court previously held in this case if the court determines that the issue implicates the ordinariness distinction from lane as anderson appears to argue it was not clearly established at the time that his speech was protected even if the court finds it anderson speech does not implicate lane it was still not clearly established that his speech was protected because andersen failed to meet his burden to point to a case that does not divine the right and a high level of generality that's most clearly illustrated by anderson's nearly exclusive reliance a a case that established general doctrine regarding first amendment retaliation claims and which specifically stated that it because the plaintiff in that case admitted that his speech was made pursuant to his job duties they were not speaking on how the court would be able to determine whether or not speech was made to pursuant to job duties and cases where there were serious questions about that and that's this case anderson this point to no case holding that an employee's speech in similar circumstances was made pursuant to his job duties and while there does not have to be an identical case it does have to be particularized to the facts of this case such that it places the constitutional question beyond to beat as i mentioned before there are several twists in this case that make the situation unique the fact that this case involves a law clerk the fact that that here insta the code in this case was a specific job duty there was specific to this court and this person as a briefing attorney and his position and that he admitted that it was part of his job duty to report even if chief justice valdez knew about anderson's complaints it cannot be said that a reasonable official would have known it was clearly unconstitutional to refuse to rehire a briefing attorney who had made an untrue complaint against him during a campaign based only on hearsay the district court's decision denying qualified immunity was incorrect anderson failed to establish a constitutional violation or even the chief justice felt as knew about his complaints before his job offer was rescinded and in any event anderson also failed to show that it may please the court him a court restricting the rights of law clerks from a first amendment perspective simply by requiring them to comply with the code of judicial conduct chief justice valdes argues yes but gar said he says no notably in car seti the supreme court stated that we jacked the suggestion that employers can restrict the rights of its employees by crafty excessively broad job descriptions now in this situation that the obligations to report a judge for malfeasance is broader under the state code than it is under the texas rules display just marry procedure and that is fundamentally incorrect the reason why that is important is that regardless of whether the thirteenth court made the decision to incorporate the state code of judicial conduct mr anderson still had that obligation under the texas rules of disciplinary procedure and as a result that is what obligated him arguably to make that speech or his letters not the state code and judicial conduct now in the first appeal this court determined that whether the employer was intitled to control the speech determines whether that speech was made pursuant to official duties here because that obligation stems from the texas rules that apply to all the lawyers whether they work for the government or not the court could not have instructed mr anderson not to send those letters any more than it could have told him to ignore his ethical obligations ultimately because the thirteenth court had no right to discard the speech because mr anderson's letters were not official communications with official consequences because there is clearly a citizen analog related to mr anderson's speech it was citizen speech protected by the first amendment now in the first issue raised by opposing counsel concerning causation importantly and bear saying we all admit that this is not an issue that we raised in our brief we did submit it on the rule twenty eight j letter ultimately the court struck that letter  cases specifically kinney vs weaver connally vs apartment of texas charles v grief and david versus mckinney where this court said that in a qualified immunity context when you're dealing with the collateral order doctrine the only thing the can review is materiality of issues not genuineness and if you look at the causation argument that opposing counsel raises it is specifically based on genuineness and she's asking the court to say well this evidence should be weighed in favor in this way and what not and in interesting lee and charles v grief this court actually admonished the texas attorney general of raising this issue which the court labeled as wasting the court's time and resources now is absolutely so the first point isn't one rule actually record nine twenty eight valdez wrote an e mail to his staff saying that it was his decision concerning value anderson he actually said call me about my decision regarding a regarding andersen so as to who the decision maker here it's clear it was chief justice valdez and i'll get to the mt healthy mixed motives in a second you can tell me about the evidence that he knew of anderson's complicity i'm going to get in there honor so the next part of it is that valve has testified that he took it upon himself to approach all the other judges and tell them that he had personal issues with mr anderson and that they should not hire each judge should solely make decisions regarding their own chambers so they can alone road to get be your honor here i will acknowledge that chief justice valdez denies that he knew that with regard to mr anderson and then the question is why why would he violate this unambiguous policy to revet mr anderson from working at the thirteenth court and that's because there was some sort of animists now importan because in december of two thousand and twelve when this when justice vell overtire from the court mr anderson actually asked for from mission to volunteer for the court and he asked justice parks whether he could do that just as parks went to justice vella i mean i'm sorry justice valdez and said do you mind if mr anderson works for certain to a certain period time and volunteer capacity and even just has been a veto as he was a big critic of mr anderson was consulted about that issue at that time nobody raise any concerns whatsoever about mr hadn't yes there's been a veto has already raised concerns about andersen to justice perks prior to the interview not not at that time so there's two different time periods are there is december two thousand and twelve when he asked to volunteer so he's saying can i work in a volunteer status will basically i get something else going on and at that time they could easily said no we don't want him to work here because he's not good at his job and then instead all they said is no you would be covered by workers compensation insurance we don't have enough computer equipment and it would set a bad precedent to allow people to work here and sometimes you just want to think your really bad employee well they could say that it would have just let them down easy but anyway you go in well mind you that nobody was communicating with mr anders notably nowhere and no piece of paper before mr anderson made these complaints was anybody ever critical of his work and in fact there's there's testimony that he was actually very good at justice perks wanted to hire him just as vela gave him glowing reviews he worked for four different justices over a twenty year period mr are just as perks as law clerks said that he was was excellent and helpful to him during his time period you don't similarly it was just his perks sole decision to determine whether he wanted to hire mr anderson and you're right just has been a view does did tell mister sorry justice perks that she had concerns about him before he made the offer but notwithstanding those complaints he still decided to proceed with making that making that offer which was his whether he had a computer couldn't they could just said we don't want to make an exception for this guy because he's not a very good employee nobody ever said that but instead we know that between that time period and may of two thousand and fourteen he raises a number of complaints about  chief justice valdez and then chief justice valdez said i took it upon myself to go to those judges tell him that i don't want the justice perks to hire him because i have personal issues with him in addition to the answer to my question way back ago it he must have known or he wouldn't have raised these complaints about that's the that's the evidence that he knew that's that's something that's right and there's more so in addition to that we know that justice perks or at least mr anderson testified that justice perks told him that was the reason why i didn't i wasn't allowed to hire you because you made these complaints to him to the state commission on judicial conduct in addition to that additional evidence is that that in hiring mr anderson's replacement they again violated the rules which is you need to have three to five years minimum experience to be a senior attorney however they chose to look the other way when mr lockwood was put into that position and the question is why why violate all these rules why isn't the chief justice intervening in somebody else's decision and i would knowledge it circumstantial evidence and we don't need to prove by direct evidence or direct evidence that that that knowledge was there and then also in the first testimony in a deposition no sixty ninety in one nine hundred thirty four percs testified that he was steadfast in favor of bruce and only resend of the employment offer because his decision to hire andersen was countermand manned by and then on page one hundred thirty all i'm saying is he never testified that he asked for it that he saw any input from the delegate that's right even though the timeline here is interesting because as soon as the justice perks offered the job to mr anderson mr anderson went down the hall and told the clerk and then the clerk said can i assume that you hired mr anderson and just as perk said yes that's right in immediately justice valdez started  reasons not to hire him let's look at his civil pinions and importantly justice vella unequivocally testified that mr anderson worked on civil cases so one of the problems with appellate opposing counsel is argument is that they're trying to credit all of the testimony that's arguably in their favor and ignore the testimony that's in favor of mr anderson which in the summary judgment contest in that context is backwards your honor with regard to clearly  even though it is the case that defines the exception about whether speech is made pursuant to official conduct or fishel duties provides more than enough to inform any reasonable fishel that it would have violated mr ander constitutional rights to terminate him because he gave that speech so importantly the first thing that gaar said he says is that it applies over employer control over things that itself creates so that if this court passed its law clerks to create bench memos it can make the decision to do away with that practice it could make the decision to change the format it could make the decision to discipline a law clerk if they don't do it well we'll hear the obligation  to speak to the state commission on judicial conduct the travis county district attorney's office did not originate with the stuffed into court of appeals instead it's eight o three b of the texas rules of disciplinary procedure wh specifically state that lawyers have an obligation to tell the authorities if a judge gauges in conduct that arguably questions his his fitness to serve the other thing that the thirteenth sorry that the  is that when there is a citizen analogue it's going to be citizen speech importantly in this case is in the first appeal this court said that the type of speech that mr anderson made that that is exactly the type of speech that non government lawyers make it said all lawyers not just lawyers who work for the government have an obligation to report malfeasance and then lastly the garci opinion says that official communications have official consequences and because of the circumstances a court or an employer has a heightened interest in controlling that speech notably in the first appeal this quarter ready determined that mr anderson's communications were not official communications with official consequences instead they were citizen speech and attorney's office so i think the question is is all are all of them protected speech or are they employees speech or citizen speech importantly three of those letters the ones of the travis county district attorney's office one was written four months after he stopped working for the court another was written a year and four months afterwards and then another one was written a year and five months after the fact so how could he be speaking pursuant to an official job duty if he was even working at the court any more and the answer to that question is this continuation argument they cite nixon they cite a few cases from other circuits that well if the subject matter is the same then it's just a continuation of previous speech where there's two problems with that argument the first problem is that the communications  different if you look at the complaint that mr anderson made to chief justice jefferson and also the state commission on judicial conduct it focuses on double reimbursements from his campaign finance report and also from the court's filing fee find or as the post employment communications deal with double reimbursements from the texas judiciary or center for judiciary and then from his from the filing fee fund in addition there's new allegations that mr anderson reported after he stopped working there they didn't exist at the time that he made his first letters while he was still working for the court so first fundamentally this idea that they're the same substance is just inaccurate in addition to that in all of the cases that opposing counsel cites on this particular continuation argument both sets of speech were made while the individuals were still working for the court or for the employer in that case where here we have speech and then some cases a year and five months later the second set of speech coming in now most of the cases that opposing counsel cites on the clearly established issue are law enforcement cases situations where the police chief or a sheriff will report to the f b i or to some external agency about for example  elaine basically introduced this idea of ordinary whether this is ordinarily within somebodies job duties and if it's not the ordinarily within their job duties then it's it can be protected speech we don't need to rely on blame because the court in our study said we reject the notion that job descriptions alone can create an official job duty and that's exactly what the chief justice valdez is arguing here they're arguing because we created this obligation for law clerks to comply with the state code of judicial conduct and that is a job and it's true that mr anderson testified that he had an obligation under the way that the thirteenth court defined his job to report it but job descriptions by themselves are not enough and in fact although in a unpublished opinion williams b riley this court stated that it is error to rely solely on a job description or a policy in mind to not bring greater clarit know i think it would be a different question after line the question would be was this ordinarily within his job or not our position here is because that obligation was not created by the thirteenth court but instead by the texas disciplinary rules that it wasn't a job duty at all i mean if this court had told mr anderson as opposing counsel suggest that he couldn't make that speech or that it should be different as this court stated in the first appeal that would be no job duty at all it would be asking him to ignore his ethical obligations so it's not that this is ordinary or not of mary is that it was no duty at all because that is an obligation that exists as a result of him being a lawyer it's professional acquired speech not job required speech and if you look at judge crane's order below  that's the crux of his opinion that the obligations under the state code of judicial conduct and the the texas display rules are identical and that's something that opposing counsel doesn't focus on in fact they state the opposite i settled on page twenty one of their initi then page four of their reply of your i do think there was an issue with my time we didn't start until later if you want me to stop talking i'm happy to do it but in summary seeing that the issue regarding causation appears to be of even if the court decides to go to that issue when you credit the evidence of the circumstantial evidence about whether chief justice felt as a new justice crane did not abuses discretion and did not air there is a conflict in the evidence about who knew when and specifically why chief justice valdez chose to act in a way that violated the court's policies and the jury is certainly capable of making the decision as to whether that was motivated there's additional cases where when other people know about the complaints and and for an unexplained reason as somebody who doesn't supervise that person has a negative view towards that person and that considered together that can be enough evidence of knowledge and of causation and we would cite the court to those cases on the issue of causation ultimately your honor the court doesn't have appellate jurisdiction on the causation issue and it was clearly established because of our city because of charles you know grief because of davi i'd like to pick back up on the jurisdictional argument that he's made this court does have jurisdiction pendent jurisdiction this court already exercise pendent jurisdiction in the previous opinion over whether or not andersen stated a claim  because it was an extra couple intertwined with the qualified immunity inquiry and that's the same with this issue as this court very recently decided in the escobar decision where where there's an issue of in the qualified immunity question that provides a basis for the court to exercise pen and jurisdiction over that claim in addition it doesn't make a lot of sense here for the court to reach these more complicated constitutional questions when anderson has not put forth evidence that sufficient to establish just the very basic element of retaliation claim which was that how can he have retaliation against the retaliate against someone when you don't know that they've complained against your they've done anything against you and in fact this court in the gerhardt case did did just this and judge higginbotham i think you had something to do with that opinion but what ha ppened in that case was the court of originally decided the case based on the job duties question of whether or not it was whether or not the person speech was protected there was a petition for rehearing on bonked filed the court amended its opinion and instead said we don't we didn't need to reach that issue it was sufficient for us to just look at the fact that they didn't that she didn't meet the cause ation element here and so the court ended up deciding the case on causation element and that was a summary judgment case as well clear up a couple of things raised the employees argument the e mail that he references from the chief justice has and this was part of the decision discussion about whether valdez was a decision maker there was an e mail that he sent to his staff saying and he does say my decision about anderson but then the e mail that he sent to justice percs said our decision referencing the rest of the court set clear whether he's referencing a decision as to the final decision or not and going back again to the court's rules and just a span of years his testimony and chief justice file does his testimony that decision was still perks his decision and more importantly percs said that he would not have hired anderson if he had known that the rest of the court had these issues with him he didn't want to make enemies on the court  testified that he called perks and voiced his concerns to him and said why don't we ask the other justices what they think and percs agreed to that and why did kirk's agree to that because as he testified he didn't want to hire somebody that the rest of the opposing counsel also references he put a lot of emphasis on the fact that andersen fowling the complaint against valdez that that's what citizens do and so where there's a citizen citizen analog for the speech that means that it can't be part of job duties but that's and that can't be dispositive here and if you look at the concurring opinion in the lane case explains why because the court specifically said  concurrence noted that we are so so that case was all about testifying in court and obviously citizens testifying course there's a citizen analogue but the concurrence noted that the outcome might be different or testifying in court is actually part of that public employees job like a police officer so that really doesn't get us really anywhere in this case opposing counsel also mention the travis county district attorney's office complaints and no the fact that andersen was not an employee when he made these complaints however they would have a causation problem on that point because they would then have to show if if we have the anderson's complaints well that he made while he was an employee were not protected they were present to job duties but his complaints that he made while he was not an employee were protected then in order to win anderson would have to show that valdez knew about the travis county district attorney's complaints and not the other ones or that the other ones didn't have anything to do with his decision and his decision was based only on the travis county district attorney's complaints and as we've already stated he can't even show that he