actual conversations from her time as a phone sex are greater but also her reaction to those conversations that miss harness figure sought to provide information for the benefit of the public and in her words to rip the rose colored glasses off the phone sex industry and there's no reason to believe that her authorship of the thought before her time as a government employee and done using a pseudonym would in any manner jeopardize the national guard's ability to perform its function the governmental interest whether he would in terms of public perception or viewed in more concrete terms is quote unquote quote minimal and i don't think be on i don't think the government can overcome that decision the only occurred before she became a government employee and was in absolutely no manner going to her government employment are are are also very very compelling points in our favor under p and i think in order to overcome rankin the government needs to suggest as i think it does implicitly in that in its briefing that a different result would have reached if in addition to the amendment issues in that case your honor the fact of the matter is is that if the only thing the post did why is identify her as the author of this book and as i say i don't think the pseud ym is necessary for our case and it is for it for a case here i think that certainly the fact that it was otherwise anonymous as i say makes it very difficult for the government to conclude that it had an interest but that the only thing the post did was identify her and if instead of that post or that book miss harness figures we noted in our preset and had during the course of a social gathering out entirely on her personal time something mentioned i worked for the national guard oh and by the way half an hour later also mentions that she was she wrote this book i think that then we would have the exact same case here and i don't think that position and we have another service organization including several that serve children and i think it is nonsensical to suggest that the authorship of this book before her time as a public employee somehow unfit to serve the national guard while at the same time suggesting that you might get a position with indianapolis public schools but if that point hadn't the post the link doesn't deactivated  she had already taken it down in compliance with with the request and and i think that the fact that the i think the fact that the government waited until follow until after her removal to make that i think there's something to be said for that because if the government thought that the facebook page really was the issue that required her discipline there's absolutely no reason it would have it would not have made that request to allow her to stay at scroll down through dozens possibly hundreds of different posts in order to find this information and as time continue to pass that only became a more and more difficult task for for anyone else who might conceivably might have learned of this and might have refused to do business with the national guard as a result i think as a practical matter it is very difficult to imagine a service organization refusing to assist person because of what a ministerial employee did on their own time before they were government and employee know what no one cares what the person performing data entry did but that issue aside even if  rule i am aware of no case law however stand in for the proposition that this ins act and the special circumstance under it if in fact it in new context can be deemed to exist simply because someone else also violated your constitutional rights which i think is what that question gets at the only special circumstance that the government lets you know this is the existence of this supposedly comprehensive remedial scheme and i we have we have gone back and forth with the government over our of our very interpretations of the of the regulations at issue i think even a simple comparison between that the regulations here and the regulations under the civil service act make that we are at the very least not talking about a comprehensive scheme in the same way that we were and bush versus lucas but those regulations are only conceived look at the applicable to her actual removal from the national guard general the federal employees whom you sued in their individual capacities as i understand it were sensually just complying with regulations here that is as i understand the way the regulations fifty gathered yes the sponsoring organization here the national guard asks for removal and no war agreement can be reached to keep the person you know in that placement then they have to remove the vista volunteer  i don't think that's right at all generally i realize that the government says that as it did in the district court under the applicable regulations once the sponsoring organization requests the removal of it this is a volunteer the state program director for the best  the project and we might very well have a different situation if the federal employees had done exercising their discretion under subsection b had to have explained to the national guard you cannot do this under the first amendment and the national guard said well we want to do this otherwise we hear your point that that then see might might might might come into play but the fact that the government the federal defendants themselves as completely incapable of doing anything i don't think that and you know to me is not the way they describe themselves that that is the way that they were they described themselves in the  level of analysis that would be pretty novel in this case not not in the traditional i know you've got our cases that you cited on called by them unity that would apply to the lieutenant colonel in th guard quite clearly but i'm not sure i see that with respect to the federal employees i think the qualified immunity analysis asked whether it was clear at the time of the action back it's hard to see personal liability there i think assuming at this point that for the sake of the side of questioning that it was clear that the constitution was being violated and would be violated by her removal and her terminations as a result of her protected speech i don't think it's a strong significant leap to conclude that given regulations that impose at the very least some discretion not just on the them to exercise their discretion that's afforded to them in order to reach a resolution that complies with the constitution i think at that point if the national guard is insistent she she she has to go we understand that there were violating her constitutional rights or that these do you think we are i think i think at that point the federal defendants may have may have in the united some cells but all of this i mean if you know forgive me but it interest outside of why you moved to indiana and that may or may not exist and in fact as a practical matter it did not exist i think requiring you to do that because if you're protected speech i think that's very very much as a constitutional really are you entitled to under i think there are as a as a as a practical matter we are entitled to have her that the serious decisions against her are set aside i think that would two different final agency actions here one is the removal from the national guard and the other is the terminations props from the vista program and i think both of those if they flow directly from unconstitutional the constitutionality of the connotation here but only whether the actions so clearly violated a constitution a clearly established constitutional prohibition that the individual defendants should be liable and damages and that action because they would be equally subject to qualified immunity and it's not a constitute what happened here was not a constitutional violation much less a clearly established constitutional violation that first of all this became a question was on a fear with a mention of the family program sought to make and there's no dispute that any of the agents she was attempting to contact would be able to see her i spoke post purposes she could have your honor but what happened here is that she was holding herself out as an employee of the indiana national guard on her facebook page she was using that facebook page to conduct the business of the guard presenting herself as the person of contact as not you know merely a ministerial employee but rather the individual who was responsible for connecting organizations that provide services for victims of domestic violence and sexual abuse with members of might have previously been private with the public business of the indiana national guard and again the question is here is rather not only whether it was reasonable just rather it was reasonable for them to think that perhaps mixing of a business and her private account would could potentially interfere with her having potentially could you address the language this is relevant to drug runners question as well about w she even matters whether the speech addressed a matter of public concern could you address the language you know treasury employees union case and the city of san diego it's about private speech that has nothing to do with work  speculation to punish public employees for their private speech oh if i could take those interned in n t e u that national treasury employees union case but the court the supreme court said it looked at the kinds  of question the speeches and articles that have been published by government employees and said that they were made to a larger public audience that they were on content that was related to matters of public concern and that they were unrelated to the government employment and taken as a whole that as if they were in fact speech on a matter of public concern and then the court moved on to conduct the pickering analysis and concluded in that case that because of that broad nature of the prohibition and the government could not articulate particular concerns about individual instances of free speech conduct such that it would outweigh the free speech interests in that case and there's there's no against this kind of speculative foundation for disciplinary actions against government employees for speech unrelated to their work your honor the court has also said that the respect the question about city of san diego versus rosewell which you had earlier asked about in that case the court was considering the decision of the ninth circuit which very much mirrors what the congress are doing here is that because the speech honor i think perhaps your question is getting at is something i was hoping to address which is that the plaintiff's theory of the case has the presumption of how the first amendment interacts with government employment relationship exactly backwards not in fact outweigh the free speech interest so you're looking at an employment relationship there supreme court clearly said in pickering and conic and cases like that the government may in fact engage in behavior that would be unconstitutional if applied to private citizens but that is perfectly reasonable when it is considering its relationship with its employees and so what we're talking about here is whether the use of it a personal facebook page for the business of the that had they known about the previous employment they would not have hired her for the position that whether those pings are reason to think that the government's interest as her employer in fact outweighs her free speech interests in in said the court has said that it is only speech on a matter of public concern by an individual as a private citizen where the interests of the government cannot outweigh the free speech interests that the constitution is implicated my read on the that all of that took place relatively quickly so i think there's reason to conclude that it was not so difficult for her to find this on her facebook page and as i mentioned it's not just the post but also it as the indiana national concluded that there are because there are so little on the government's side to indicate that any harm might follow that qualified immunity was in fact so clearly established a constitutional violation but this is a very plaintiffs as opposed to the government's favor and in addition that at the time that the decision was made that it was still clearly established that this kind of thing could or could not possibly be permissible and  that's just not what the situation that we have here in crag this court said that a plaintiff's explanation description of his own sexual exploits would not be a matter of public concern and so i think there's certainly reason to think that the book that we have here is very close to if not exactly that kind of description of an individual sexual exploits viewed in isolation and so it would in addition to that indication to perhaps was not a matter of public concern to the individual employees at issue here they would also have had to the court would also need to conclude that the fact that she even though she had held herself out as an employee on the same facebook page where he was promoting her author ship of this book and she had used that facebook page for purposes of contacting organizations on behalf of the national guard that it was in fact so clearly established that this would violate her first amendment rights that no other course of conduct could have federal volunteer she received federal funds for that and as you mentioned that the national guard is a particularly unique organization in which you require to consider whether they're acting in the state or civilian or agency well the national guard is particularly unique because i think i'm asking you about the others i think you know it would be different in the case about a different organization because they wouldn't necessarily have the same which would also title nine all of which allow individual rights of action against people using federal funds correct against the organization yes yes the organization right we'll take some actions against them sponsoring organization and most likely terminate the relationship between the sponsoring organization and since yes you have future of us are volunteers but i'd individual would not receive any process different than what are i think it's not fair to say that she was you know in a backroom just entering information into a database she was in fact reaching out to organizations publicly on the behalf of the organization and and the of that request is not actually change the fact that she was presenting herself as an employee of the guard in that context and could you go back to my  they known about her prior employment not the speech or the post in question by her current claim as a context operator they would not have hired her so i don't think if we even know that she would have been selected for those positions but all she was entitle to was the opportunity to reassignment and she had that she chose not to avail herself of it and i don't there is no reason for this court to conclude not only an inappropriate for the guard to think that her previous conduct as a phone sex operator and her incredibly graphic account of it promoting that kind of thing would not be reconcilable with her  to public employment that was published under a pseudonym by a ministerial employee and not just any ministerial employee a temporary ministerial employee there was no showing of actual disruption in three months which makes