those undisputedly of public concern the misconduct of a state legislator petitioner testified about events that he learned while working but the testimony itself was not a part of his job responsibilities this court should petitions testimony implicates the first amendment because he spoke as a citizen on a matter of public concern to further hold that this was clearly established in two thousand and nine when respondent frings fired him those old holdings follow from a long line of this court's precedents which establishes that the first moment applies to all public employee speech on matters of public concern except when the employee speaks pursuant to his official duties the remainder of the case including the application of the pickering balancing test and respondents other defenses can all be addressed on remain and this court can also leave for another day the question of whether a public employee who testifies in court but pursuant to his official responsibilities would be protected the way the case is shaken out in the briefing the principal point of contention has become whether the fact that petitioner learned the facts about which he testified at work is sufficient to deprive his testimony of protection but for  if the person who testified had a definite job responsibility of investigating possible corruption in the agency suppose that that person was something like an inspector general if the testimony be  be within the scope of the persons job duties i think it would depend on the circumstances of the particular case and that would be the exact next question because the responsibility to investigate by itself does not necessarily also include the responsibility to testify and so in certain cases you could imagine where there's an internal investigator whose job is to deal with issues internally and that wouldn't be covered by job responsibilities but there may be other cases in which that investigator also regularly testifies in this case there's no dispute that my client's responsibility was to manage the staff of his department and therefore to deal with issues that arose but there's also no dispute that he was never expected to testify  court and that this testimony was all the result of a subpoena issued by a federal court in response to your quest from federal prosecutors and so i think that that is the that case gets us towards the harder question that this court doesn't have to decide in this case wolf just to follow up on that could there ever be a situation in which are government employees testimonies within the scope of an employee's duties if the employee is not does not testify on behalf of his employer articulated the scope of an employee's duties in the termination whether employees acting in the scope of those duties is a practical inquiry and so it would vary considerably case the case i think the fact of a subpoena is strong evidence that when an employee testifies he's not doing so because it's his job to do so there's a separate and very strong obligation but again that's really sort of wondering if you're let's use the consensual example police officers will have technicians generally they're called by the prosecutor but occasionally they're called by defense attorneys so whenever they immunize them when are they not when are they acting within the scope of their duties and when are they not if you are in those cases i think there would be an argument that in every case they're acting in the scope of their duties if you consider the practical circumstances that give rise to that testimony but there is also an argument and this is sort of the stronger version of the first amendment the argument that we make  this is not the rule that we're asking for because the rule that's asked for by the a c l u by a couple of the other i mean the strong version of the first amendment argument is that even in those circumstances there is a separate and superior obligation to testify truthfully to the court that is to provide information in a way that is unbiased in toward the interests of the employer and recognizing first amendment protection furthers that interest because it frees the employee to testify candidly incompletely and you're on a mission so what happens in a situation where a police officer gets on the stand and then testifying honestly at mit's to corruption  to or does it in a slap in leeway comes to court dressed in a clown suit could the employer fire him then i think the answer is almost certainly yes and that occurs through the application of the pick ring balancing test the way that first amendment protection for employees speech has worked since the one nine hundred sixty s is that when speech relates to a matter of public concern the speech the first amendment applies the next question which is whether the employer discipline is nevertheless permitted is a function of a balancing of the employee's interest in speaking in society's interest in hearing the speech versus the employer's interest in effectively and efficiently providing public  the case of the clown suit in the case of testimony that's unprepared reflects badly on the department all of those are justifications that any employer can use to argue that even though the first amendment applies discipline is nevertheless  and thing your honor we don't believe that in the summary judgment record there is any evidence that my client speech was at all disruptive and that's why the united states has argued that if you perform the balancing test here yourself you can find in our favor nevertheless we think it's ok to remember that question we have a brief that we haven't asked you to decide it but we are asked to decide that and how can we find th we think the morris decision is finally distinguishable there are a few arguments that we would raise against that decision the first is and this is a point that's been made by not only us but also the united states and the alabama attorney general that morris is flatly contrary to this cour precedents all of the emphasis in morris on whether the employee was intending to speak out on a matter of public concern finds no support in the way this court has applied the rules relating public employee speech but that means the  the case were clearly on point that qualified immunity should perhaps nevertheless apply think that it's highly questionable but it's an open question and and i would be willing to concede that the reason the real reason that morris is not a problem for us at all is that morris is not close to the facts of this case in morris a sheriff's accident investigator prepared an internal report describing a car accident in which another sheriff caused a civilian death the report surmise the accident was the sheriff's fault and then he was subpoenaed to testify in the civil wrongful death case he was shortly fired there after he brought a claim seeking both protection of the report itself which of course  with this court's decision and our city holding that an internal memorandum prepared in the course of official duties is not protected he also sought protection for his deposition testimony describing we do think the eleventh circuit was wrong to hold that testimony was unprotected but it's  moment because private closed door civil deposition testimonies describing bad driving are nothing like public trial testimony describing public corruption is there a why for an eleventh is there or do in eleventh circuit case you should have looked at morris but it was distinguished only on grounds that would also distinguish this case the grounds on which the eleventh circuit distinguished martina's in morris word that the testimony was in a public proceeding and that it identified public corruption which is exactly what back to the eleventh circuit i'm sorry i think the qualified immunity question was decided below the eleventh circuit both found that there was no constitutional right but also i believe footnote two of the court's opinion says because we find that there is no right we would id and so the issue is squarely before you and i think that it's getting to that question does not require the court to do very much work we're not asking for a new rule of law relating to qualified immunity we're not asking you to dilute the protection the officers currently have what we're asking for is a relatively straightforward application of this court's precedents in for example growth might have to send it back you if we were to say yes they did violate the constitution next question would be is it clear i mean the second circuit law they didn't violate the constitution is not right that's correct and so they say obviously they didn't violate the constitution they didn't clearly violate the constitution so we're to say no did violate the constitution that footnote doesn't express any view that's correct the eleventh circuit did not rule out that they got the whole thing wrong from beginning  might have to send it back to send it back you got it wrong it was the constitution now tell us it's clear so we should we did decide it ourselves whether it was clear it's a matter of eleventh circuit precedent or should we send it back to their tender i think you should decide the question your honor i think that that the principle guidance that the lower courts require is clarity about what the constitutional standard is once you write the opinion explaining that there was a violation of the constitution in this case i think that that opinion will establish that it's clear and it will establish that it was clear in two thousand and nine not those are two very different things you spend a fair amount of time in your brief talking about a court of appeals decisions from other circuits but i think it's a little bit of  who wrote leap to assume that employees are familiar with court of appeals decisions in their own circuit do you really think we should be looking to the opinions from other circuits in deciding whether the law was clearly established in a different circuit in ashcroft or sell kid the score articulated the standard for qualified immunity as either there is controlling precedent in the jurisdiction or there's a consensus of persuasive authorities and we've cited a couple of cases decided after ghar city from other circuits holding that public employee speech was protected i don't want that to obscure the fact that before bar city there were many many many more cases there was an overwhelming consensus and in the circuits that this type of testimony was protected the eleventh circuit really is out on its own here and when you consider the strength of that consensus and if you say the eleventh circuit is out on its own it seems to me to be a concession that their law is different from the law that you're arguing for and again my point is do you ask a state employee to recognize yeah this is the law in the eleventh circuit but they're out on their their own so we're going to follow different different your honor our argument is that the eleventh circuit was wrong but until this case they weren't wrong enough to justify this result in one thousand nine hundred two the martinez case set down clear markers that would allow and we should have compelled a result in our favor in this case martinez was raised below and the eleventh circuit simply ignored it choosing to rely instead on morris we think that was a very grave mistake of interpreted not only this court's law but eleventh circuit law and we think that especially in light of this court's precedents that misinterpretation of eleventh circuit precedent was especially agreed i go back to my point which is they got it wrong but do we expect the employee to know they got it or under what circumstances do we expect know i think an instructive case is grove versus ramirez in that case i was a fourth amendment case involving a warrant the didn't state particulars on its face the district court found that there was no fourth amendment violation at all of the circuit court affirmed on grounds of all fight immunity in this court reversed on both graham said there was a violation of the violation was clear and one of the points of the court made in this is in footnote nine of the court's opinion was that that was not a case in which for example police officers make split second judgments in the field that was a case where an officer had ample time to figure out what the law was here we're dealing with a university administrator who has a general counsel who has the ability to consult that counsel before making any personnel decisions and the qualified immunity standard has always asked what would a reasonable official in the position of the relevant defendant have done so there may be cases in which it would be very hard are employed so tell me what you shoot anyone subpoenaed in a criminal trial at this protected no your honor we're not asking the courts ruled that broadly in this case all we want is a rule that says when a public employee testifies on a matter of public concern and does not do so pursuant his job responsibilities the first amendment protects that testimony subject to the pickering balance that it always has and that is in fact the rule that this court laid down in garside to the extent that any clarification is required only clarification would be that even when the testimony describes facts that the employee learned in the course of employment it's still protected but that's not a leap at all from this court's precedents if i could reserve the remainder of my time thank you counsel mr chief justice in may it please the court in gore said he this court recognized that the government like any private employer has a strong interest in managing and supervising its employees as they do their jobs that managerial interest extends even to the thousands of agents investigators technicians and other employees across the government who are expected as part of their job responsibilities to testify in court in our view when government employees testify they sometimes speak as citizens and they sometimes speak as employees we agree that petitioner here spoke as a citizen when he testified but we disagree with the suggestion of some of the government employees always speak as  still be part of his job responsibilities the fact of the subpoena doesn't change that a technician or an officer or an investigator may be called to testify as part of his duties so you could take fire him because he testified your honor there is a range of discipline  dishonest or if he indicates that he's clearly incompetent some of the hypotheticals given in the earlier i might understand it but this just so far as the subject matter if the subject matter is of public concern is it not or am i wrong no are you are we would say that in a criminal case i want to distinguish between the public concern aspect of the test and then the citizen employee aspect because they really are distinct in a criminal case if you were subpoenaed we would say that you are testifying on a matter of public concern but that's not the same question is whether you are testifying as a citizen or as an employee which is exactly what this court addressed in ghar city we do think that petitioner someone who was not regularly expected to testify in court as part of his government responsibilities w testifying as a citizen on a matter of public concern however there will be situations and the government has thousands of people whose job it is to investigate who are records custodians sometimes even testify on a thirty six on behalf of the government of the what's the context in which that person should not receive a minimum of protection subject to pickering balance but that that should be concerned why not consider that protected your because that's exactly what the court step to a the balance wait a minute what are you doing about the true finding function of the of a trial setting when you're saying or telling people employees don't go and tell the truth because if the truth her chilling ploy are you're going to be fired your honor their ad that they're something you can be always fired for some other reason that the employer can point to under pickering or otherwise but what kind of message are we giving when we're telling employees you're subpoenaed for any reason in a trial go and tell a falsehood because otherwise you can be fired your honor if it's actual instruction to do a fall so there's a range of protections that the government that are available there are whistleblowers there are whistle are said i mean the constitution doesn't protect someone in a trial from telling the truth that it's not a matter of public concern that an employee tell the truth your honor it is a matter of public concern but we think it's the same as in car said he what was that issue in our city was a false affidavit to the court to support a warrant and what this court says was it said was it was part of the employee's job to to to investigate and in that situation he was acting on behalf of the government now we would say that you don't have to reach this question but we urge the court not to hold this that what the u and i gather petitioner is stepping back from here a broad rule saying that anytime an employee testifies in court it is automatically speech as a citizen as distinct from on a matter of public concern and we think that that would really intrude on the government's ability to supervise its employees who are test find as i say there may be lack of candor there may be belligerent and belligerency and things like that that the government has to be able to to react to and rely on whistleblower statutes  criminal prosecutions and first amendment protections into whistle blowing contacts for to provide protection for the floor for him for employees if i could just touch briefly on the qualified immunity we do not think that this case should be sent back we think we agree with the chief justice and justice sotomayor that the eleventh circuit decision was sufficiently clear that it employee could not be said to have been either plainly incompetent or intentionally violating the law and it relied on that eleven could i ask the question that i tried and failed to ask mr send because justice pryor is of course completely right this footnote to doesn't really answer the question it answers it on a hypothesis that the constitutional issue came out in a certain way and then it said for she were right there is immunity so it didn't really if there was a different decision as to the constitutional question and didn't answer the question of qualified immunity and of course it's an eleventh circuit law why would we be deciding that your honor we don't think that you should send it back precisely because three judges for some reason but among them that three judges below read their own precedent to say that this was not unconstitutional we think in the qualified immunity context with this court has said is that a reasonable official should not be penalize for picking the losing side of the judicial controversy the eleventh circuit construed its own precedent to to to authorize or at least not make unconstitutional this action and that is enough under this court's precedents and employers should be able to look to the precedent of his own court of his own circuit particularly when what that court is doing is not interpret something for the first time but construing its own precedent mr chief justice you asked if there were other cases we think morris v crow is enough but we also think the green be barrett which is the only post car city case and it's cited in both of the red briefs is even a stronger precedent and actually reinforces everything that was that issue in  in barrett that was testimony at a court hearing and i think the rule coming out of the eleventh circuit which a reasonable employer could have relied on was that testimony when the motive is to comply with the subpoena and the subject matter was related to information you learned on your job that was not protected even if it's presented in the course of a civil deposition or if it's presented at a court hearing and so your honor we really don't think there is any need send this case back we don't think that grow or hope or cases that are reasonably helpful to to petition are here because those are cases in which the courts of appeals actually decided the constitutional question against the petition now that they did find qualified immunity and this court reversed but it would be very unusual and i think unprecedented in this court's history to find a situation which the court of appeals actually found no constitutional violation and yet this court denied qualified immunity so we don't think there is any need to send it back if there are no further questions thank you  counsel strange mr chief justice in a may it please the court as attorney general i stand here before you with a particular risk for so keen interest really in the situation that both the public employees in this place find themselves mr lane who entitled to first amendment protection because he was talking about the matter as a citizen a matter of public concern and mr franks who we believe is entitled to rely on sovereign i mean i mean qualified immunity because he was relying on the present president of a circuit and it with the law in this area was not clearly established as attorney general i get to supervise these people every day and we depend on people like mr lane or people who find themselves in that situation who are willing to and need to be able to testify in cases involving public corruption the case at the heart situation at the heart of this case was one of the most egregious public corruption situations in alabama sr it led to a total rewrite of our public corruption laws and our ethics laws and if we can't depend on people like mr lane or people in a bizarre situation like mr lane to feel free to testify as citizens on matters of public concern it matter th if an employee is job is to investigate corruption that's their job and their call look by you to testify at a corruption trial and then they're fired for it should it really matter that it's part of their job or not your honor i think it should and i think the as we point out in our brief i think the court has the right rule and the right test and our set because the court clearly recognized there are a group of employees who are paid by money appropriated by the government to do jobs exactly like you describe to investigate cases child welfare case work and so forth they're in a park category that has a less we've already made the decision the court h that they have not the entire free speech rights in the first minute allowed us to employees that seems counter intuitive to me why do we live why do we put people at risk for telling the truth well i wouldn't care to tell the truth about something and i'm assuming if they lie they can be fired but why are we well i agree with my colleague from the department of justice there are very lots of legitimate reasons and i think it carr said to the court knowledge this that why the government has to supervise has to take a look at the overall look i certainly understand people government being able to tell people don't go on and talk to the newspapers about this don't go out and talk about x publicly because we should be able to control those kinds of disclosures but why are we putting people at risk for doing telling fundamental truth in a public forum like the trial well i think it certainly is the top prosecutor in the state of alabama i expect an insistence the value of the testimony is that they're telling the truth the question i guess is are they at risk for doing that and i think in a public employee in the category of mr lane they shouldn't be i think they're protected under the first then because they're speaking as citizens on matters of public concern police officers child welfare  we expect them to tell the truth too but they're in a slightly different category as my colleague from d o j said they have other protections and i hope in alabama they get a medal for telling the truth however the truth comes out but i'd like to get to one thing that i think helps settle some of the number of these issues and that's what we say in our brief which is the core holding of the car said the test and maybe it will help clarify we think it will answer most of these questions that as they arise and that the fundamental test is this as we say in our break whether the employers job duties encompassed the speech in question that's on the exact test but it's a test that certainly in our view for text mr lane in this situation he was a director of a program for at risk youth it wasn't anticipated or expected to testify in any form certainly could he's knowledgeable about his job and what happened there he was a valuable witness in this case let me switch over to the question of qualified immunity because i think a slightly different position they are i think that people in mr franks his position people who have to supervise employees are entitled to rely on the law their circuit because i agree with i think the chief justice we can expect employees who have to make decisions all the time to be aware of what's going on in other circuits and so forth we don't think the eleventh circuit got it right we think if they had applied the test that i just articulated the core they would have come out possibly different but what about the martinez case the morris talks about it in a way that suggests that it's quite different and it seems closer to the petitioners situation  chief justice you know i think if you're in frank's its position or if you have polling place like that there may be reasonable variable this maybe that case had made sense maybe a morris case made sense what i think happens i think the eleven they they went beyond our study we thought it was reasonable and what they had said before and they made this decision and i think franks has got to be able to rely on that so you think if every other circuit has come out the other way and you have what  if they were a lot on the law their circuit in alaska law is clearly established by this court for example i can't picture a situation where the eleventh circuit and that's not the situation because i think the eleventh circuit made its determination based on language that it felt like it could hang its hat on and are set and we think that was wrong but i don't think it's so once reasonable that they could rely on it and if it's something that's reasonable for the court to rely on even though there's a split in the circuits i don't think it's clearly established in which case i think a person who's trying in good faith to you know benefits government employees who rely on still in title to qualified immunity from the damages in his individual capacity in this case there is no reason for the court to depart from its precedent primarily in the go ghar said a decision to issuance of a subpoena in another self in titles of a speaker to protection of the first amendment it is the character of the speech rather that that has to  yes your honor in ghar city the court declined to set out a comprehensive framework for defining an employee's job duties when there is room for serious  debate that is why in this case we have suggested to the court that it adopt the frame or that we have set out that was originally articulated in gore said he about whether there is a citizen analogue for the speech the eleventh circuit in this case held that it was not distinctly one of the job duties of mr lane to testify however his testimony was inseparable from his job duties and we do believe that when he testified that it was pursuant to his official duties there is a gap  he about the the definition where the court declined to set out a comprehensive framework where there is room for debate in the us i still don't understand or didn't understand what it is you're saying if he testifies and you don't you want to keep the corruption secret you know you don't want to reveal it and he testifies truthfully and reveals it can he be disciplined for that your honor under the citizen analog test or inquiry that the court began to articulate in ghar said he if the testimony is factual based soley on the job duties as it was here inseparable from the job duties and it is information that a citizen would not know that only the testifier would know then that is not protected speech under garcia said he it's not the subpoena and it's not because testimony it is the character of the speech and and whether it is he what is he supposed to do i mean he gets the subpoena and the the other side or somebody is the independent counsel says you know what's going on what do you know about you know from your job responsibilities what happened with did you is this person taking money is this person showing up what's he supposed to do he says gosh if i if i answer i am going to lose my job or could if i don't or answer falsely in the fifth amendment protects him from incriminating himself or doesn't protect the department he works for from mr criminy to mr chief justice we would never suggest that anybody not comply with the subpoena comply with an investigation or testify truthfully but you are suggesting he can be fired if he does it if if it does not offend the first amendment and we believe that's why we're here we're talking about the garcia the precedent and whether the free speech under the first amendment calls to the constitution is implicated in as this court is gar said right current as it relates to testimony that that's really the issue that's a public concern is gore city right is the line between it being a part of your duties or no called to testify truthfully about a matter of public concern and they testify that way should they be able to be fired on the first of only your honor if the well of course says  for testifying truthfully certainly witness tampering mauls obstruction of justice laws whistleblower laws section one nine hundred eighty five which mr lane originally had count in his complaint under but we do believe that under garces city you have to first look at whether the employee is speaking as a citizen the petitioner and some of the the other parties here conflict the citizen analysis that the court articulated in ghar said he and the public concern analysis of course this was a man and a matter of public concern this trial that mr lane testified in but you have to look at as the again as you held and gore said in that whether or not there was speech by a citizen and you have to look at those two do you suggest in that when somebody learned something from his job that that means it's not speech by a citizen only if it depends on the speech that follows from knowing something own your job the court has long articulated speech that is close to the heart of the first amendment whether it is opinion speech whether it is engaging in public debate whether public dialogue expressing viewpoints criticizing the government criticizing superiors but factual testimony based only on knowledge that an employee has pursue it to their official duties it would not be protected speech because of the character of the speech and because of that information is only gathered as part of their official duties what if that what if the same information that what if the employee writes a newspaper article or gives an interview and reveals the same information would that be subject to pickering well it depends on the character of the speech your honor and if well if it's about as well actually in my government in the place where i work employee writing a letter to the editor criticizing it when he using factual matter that he only knows because he's an employee in a particular branch of government then that would not be protected speech it's not forum under guard said he is not the forum that is dispositive it's the character of the speech and whether speaking as an employee and whether just relaying information that the employee possesses pursuant to their official didn't then you say it's protected is that you mean the under the why under the first step and our city doesn't mean the can't be disciplined under the pickering analysis that follows that well if it's not citizen speech under dar said to you then you don't get to public concern and then you don't get to pickering balancing right but even if it is you could say that it is when you say it's protected you mean that just it gets to the pickering of disclosing material that you knew as an employee why is that true your honor because as in as in gar said he where the court said that when you're speaking pursuant to official job duties yeah but your is not an official job duty it's just a matter that i know of because of my job why does that mean that when i disclose that i am not speaking as a citizen yes your honor it would also depend on the speech itself and the character of the speech if if if you engage in opinion testimony writing letters to the editor then  possibility i'm just talking about facts has no opinions just facts but i learned those facts on the job as an employee and like is it your position that whenever you  facts you cannot be speaking as a citizen that would not be protected speech your honor i mean we've said several times things like this government employees are often in the best position to know what else the agencies for which they work in other words expectant that people will know things because they work in a place and that they can take what they know as a result of working in a place and go out and be a citizen and that is certainly true your honor and when an employee as an pickering takes to that knowledge that they have gained in their public employment and engages in the speech type of that he gained by his interactions with his subordinate employee discussing with her the terms and conditions of her employment and he merely as the united states observed he merely relayed that information in the in the trial but because he was not expressing viewpoints engaging in opinion testimony the the forum of the trial did not in dallas that speech which with constitutional protection let me and make sure i understand what you're saying to employees know that there is someone who has in the shop no show job where they work one of them writes a letter to the editor and says john doe has a no show job one of them testifies pursuant to subpoena in a criminal trial john doe has an osha job it's is it your view that pickering does not apply in either of those situations or it applies and in the latter but not in the former pickering does not apply the pickering balancing does not apply in either of those situations really well let's say it's his job is to investigate corruption in the agency and he writes a letter saying here's all i have these you know facts here's all this corruption in the agency and in gricean through the letter to the editor surely he can be disciplined for that many would say the his superiors were not ready to call off the investigation at that point if his letter to the editor merely relayed factual testimony that he possessed only as pursuant to his official job duties that would not be protected speech now in the letter to the editor certainly pickering where the the employee goes beyond that and express it views criticizes the school board and that sort of where where we need to get this notion that the first amendment only applies to the expression of views and not to the conveyance of of facts so we all of us can be protected from knowing certain facts and it would not violate the first amendment yes your honor we we believe that economics no your honor in and out of the facts of world war two no your honor we were talking about a in a different context and i don't know where you get it from i've never heard of this distinction the first amendment protects only opinions and not facts i've never heard of well your honor we believe that it's a long time precedent of this court that speech certainly in the hustler falwell vs hustler case where it talked about speech that is close to the heart of the first amendment expressing viewpoints engaging in opinion public debate that that is certainly protected school i thought it was just because of the facts came from your employment if you're conducting an investigation and you find out that you know so and so has taken a bribe because that's your job i don't know that you have a first amendment right to go out and say that when for example your superior would saying oh we're about to set up a sting operation we're going to get the goods on her and you say well i think i'd rather write a letter to the editor saying that she's she's been caught you know taking a bribe well your honor we're honor i would i would suggest something close to the pickering fact situation where a letter to the editor was written that in that contained opinion speech debate speech critical speech and assuming that that was based solely on information that the employee had pursuant to their official duties then that would be protected speech i think the under the settled citizen analog analysis there's a pretty limited range of speech that would not be protected but it would apply here where  it was and it was solely factual testimony that that is not protected speech even though a subpoena was issued because as the court said in car said he had the forum is not dispositive but if i could just understand what you're saying are you saying that no matter what the employees official duties are as long as he gets information because he's a public employee and he's in a work place that that's what matters i mean i know all kinds of things about a workplace that go beyond exactly what my official responsibilities are so if i communicate things that i learn in a workplace but you know i have nothing to do with prosecuting corruption or with investigating corruption do i count as an employee any or do i not count as an employee in that context i think the question there your honor at the court or to be lighted in gore said he is it is is it pursuant to to your official job duties for example in this case mr line his official duties were to manage and hire and fire his subordinate employees in this case so he was acting and nobody does nobody here disputes that he was acting pursuant to his official duties when he did that and because he he testified soley to those facts his thank you i'd like to begin if i might by just talking about the subject of qualified immunity in the import of the eleven circuits and what did and didn't decide the eleventh circuit clearly has decided that in two thousand and nine one petition was fired the law is not clearly establish a right to testify in the eleventh circuit that was decided in this case and so i think there's no point to remaining it nothing about this court's decision in two thousand and fourteen is going to change the eleventh circuit's belief about what the law was in two thousand  and so i think you should decide the question on that issue i think it's very telling that both of the sovereigns in this case say that we win under a straightforward application of car seti and cited in two thousand and six if you look at respondent burros brief and repeatedly urges don't make a new rule of law just apply the rule of law you had in our said the united states makes the same argument page sixteen of its brief argues that the holding of course said he was especially clear about the factors a court should consider in deciding whether an employee testified pursuant to is responsible so the eleventh circuit really got it wrong absolutely your honor this is not it's still the precedent that governs in this situation unless you're going to have the employees analyze the law on the other circuits or unless you're going to have the employees look at the eleventh circuit opinion and say i know that's what it says but it's wrong since your honor i think if supreme court precedent is clear then contrary eleventh circuit precedent shouldn't be controlling employees shouldn't be entitled to rely on it and that's certainly the implication of what this court said and hope for says pelts and hope for says one of the arguments that the defendants made was that there were a variety of district court decisions that supported their view of the law and this court said that the import of judicial precedent is a function of the judicial hierarchy and when as here supreme or precedent sets the rules eleventh circuit precedent can't supply a contrary rule and so you're requiring the government employee in this case to be a better analyzer of supreme court precedent than the three eleventh circuit judges your honor i think that that is not what we're requiring because our argument in this case is supplemented by what i think is an equally strong argument that eleventh circuit precedent really did not support this outcome that the court went very very far out on a limb in this case and i might just talk about the one case that the solicitor general mentioned the green versus barrett case this is an unpublished case issued in two thousand and seven in which the chief jailer of a jail attended a hearing at a core and it's not even one hundred percent clear why this hearing was out of court it was an emergency hearing convened to decide whether a particular prison over which the jailer had responsibility was a safe place to keep a particularly dangerous in me and she was fired after that testimony there's no indication that it was even a public hearing there's no indication that it was the sort of judicial proceedings we're talking about here and i think when you compare that case again to the presidential decision in martinez in one thousand nine hundred two no one could have looked at those cases and come to the conclusion that it's really a good idea for a state employer to fire a federal witness in retaliation for their truthful testimony that's the conclusion that franks would have had to be able to reach in two thousand and nine and he would have had to examine the body of this court's precedents which consistently have held that even knowledge gained in this course of employment is subject to first amendment protection and that's been the rule in mr pickering's case where he talked about how his work at the high school was the reason he knew that certain statements were false it was the case in the mt healthy case where all a teacher did was disclose a memorandum an internal memorandum to a radio station that's been established since the one nine hundred sixty s and there was nothing that franks could have looked to or pointed to in two thousand and nine that would have said firing somebody in retaliation for truthful testimony in a federal corruption trial is permissible there no for the question thank you counsel the case is submitted