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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–483
_________________
EDWARD R. LANE, PETITIONER v. STEVE FRANKS, in
his individual capacity, and SUSAN BURROW, in her official capacity
as ACTING PRESIDENT OF CENTRALALABAMA COMMUNITYCOLLEGE
on writ of certiorari to the united states
court of appeals for the eleventh circuit
[June 19, 2014]
Justice Sotomayor
delivered the opinion of the Court.
Almost 50 years ago,
this Court declared that citizens do not surrender their First
Amendment rights by accepting public employment. Rather, the First
Amendment protection of a public employee’s speech depends on a
careful balance “between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.”
Pickering v. Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U. S. 563, 568 (1968) . In Pickering, the Court
struck the balance in favor of the public employee, extending First
Amendment protection to a teacher who was fired after writing a
letter to the editor of a local newspaper criticizing the school
board that employed him. Today, we consider whether the First
Amendment similarly protects a public employee who provided
truthful sworn testimony, compelled by sub-poena, outside the
course of his ordinary job responsibilities. We hold that it
does.
I
In 2006, Central
Alabama Community College (CACC) hired petitioner Edward Lane to be
the Director of Community Intensive Training for Youth (CITY), a
statewide program for underprivileged youth. CACC hired Lane on a
probationary basis. In his capacity as Director, Lane was
responsible for overseeing CITY’s day-to-day operations, hiring and
firing employees, and making decisions with respect to the
program’s finances.
At the time of Lane’s
appointment, CITY faced significant financial difficulties. That
prompted Lane to conduct a comprehensive audit of the program’s
expenses. The audit revealed that Suzanne Schmitz, an Alabama State
Representative on CITY’s payroll, had not been reporting to her
CITY office. After unfruitful discussions with Schmitz, Lane shared
his finding with CACC’s president and its attorney. They warned him
that firing Schmitz could have negative repercussions for him and
CACC.
Lane nonetheless
contacted Schmitz again and in-structed her to show up to the
Huntsville office to serveas a counselor. Schmitz refused; she
responded that shewished to “ ‘continue to serve the CITY
program in the same manner as [she had] in the past.’ ” Lane
v. Central Ala. Community College, 523 Fed. Appx. 709, 710 (CA11
2013) (per curiam). Lane fired her shortly thereafter. Schmitz told
another CITY employee, Charles Foley, that she intended to
“ ‘get [Lane] back’ ” for firing her. 2012 WL 5289412, *1
(ND Ala., Oct. 18, 2012). She also said that if Lane ever requested
money from the state legislature for the program, she would tell
him, “ ‘[y]ou’re fired.’ ” Ibid.
Schmitz’ termination
drew the attention of many, including agents of the Federal Bureau
of Investigation, which initiated an investigation into Schmitz’
employment with CITY. In November 2006, Lane testified before a
federal grand jury about his reasons for firing Schmitz. In January
2008, the grand jury indicted Schmitz on four counts of mail fraud
and four counts of theft concerning a program receiving federal
funds. See United States v. Schmitz, 634 F. 3d 1247, 1256–1257
(CA11 2011). The indictment alleged that Schmitz had collected
$177,251.82 in federal funds even though she performed
“ ‘virtually no services,’ ” “ ‘generated virtually
no work product,’ ” and “ ‘rarely even appeared for work
at the CITY Program offices.’ ” Id., at 1260. It further
alleged that Schmitz had submitted false statements concerning the
hours she worked and the nature of the services she performed. Id.,
at 1257.
Schmitz’ trial, which
garnered extensive press coverage,[
1] commenced in August 2008. Lane testified, under
subpoena, regarding the events that led to his terminating Schmitz.
The jury failed to reach a verdict. Roughly six months later,
federal prosecutors retried Schmitz, and Lane testified once again.
This time, the jury convicted Schmitz on three counts of mail fraud
and four countsof theft concerning a program receiving federal
funds. The District Court sentenced her to 30 months in prison and
ordered her to pay $177,251.82 in restitution and forfeiture.
Meanwhile, CITY
continued to experience considerable budget shortfalls. In November
2008, Lane began reporting to respondent Steve Franks, who had
become president of CACC in January 2008. Lane recommended that
Franks consider layoffs to address the financial difficulties. In
January 2009, Franks decided to terminate 29 probationary CITY
employees, including Lane. Shortly thereafter, however, Franks
rescinded all but 2 of the 29 terminations—those of Lane and one
other employee— because of an “ambiguity in [those other
employees’] probationary service.” Brief for Respondent Franks 11.
Franks claims that he “did not rescind Lane’s
termination . . . because he believed that Lane
was in a fundamentally different category than the other employees:
he was the director of the entire CITY program, and not simply an
employee.” Ibid. In September 2009, CACC eliminated the CITY
program and terminated the program’s remaining employees. Franks
later retired, and respondent Susan Burrow, the current Acting
President of CACC, replaced him while this case was pending before
the Eleventh Circuit.
In January 2011, Lane
sued Franks in his individual and official capacities under Rev.
Stat. §1979, 42 U. S. C. §1983, alleging that Franks had
violated the First Amendment by firing him in retaliation for his
testimony against Schmitz.[
2]
Lane sought damages from Franks in his individual capacity and
sought equitable relief, including reinstatement, from Franks in
his official capacity.[
3]
The District Court
granted Franks’ motion for summary judgment. Although the court
concluded that the record raised “genuine issues of material fact
. . . concerning [Franks’] true motivation for
terminating [Lane’s] employment,” 2012 WL 5289412, *6, it held that
Franks was entitled to qualified immunity as to the damages claims
because “a reasonable government official in [Franks’] position
would not have had reason to believe that the Constitution
protected [Lane’s] testimony,” id., *12. The District Court relied
on Garcetti v. Ceballos, 547 U. S. 410 (2006) , which held
that “ ‘when public employees make statements pursuant to
their official duties, the employees are not speaking as citizens
for First Amendment pur-poses.’ ” 2012 WL 5289412, *10
(quoting Garcetti, 547 U. S.,at 421). The court found no
violation of clearly established law because Lane had “learned of
the information that he testified about while working as Director
at [CITY],” such that his “speech [could] still be considered as
part of his official job duties and not made as a citizen on a
matter of public concern.” 2012 WL 5289412, *10.
The Eleventh Circuit
affirmed. 523 Fed. Appx., at 710. Like the District Court, it
relied extensively on Garcetti. It reasoned that, “[e]ven if an
employee was not required to make the speech as part of his
official duties, he enjoys no First Amendment protection if his
speech ‘owes its existence to [the] employee’s professional
responsibilities’ and is ‘a product that the “employer himself has
commissioned or created.” ’ ” Id., at 711 (quoting
Abdur-Rahman v. Walker, 567 F. 3d 1278, 1283 (CA11 2009)). The
court concluded that Lane spoke as an employee and not as a citizen
because he was acting pursuant to his official duties when he
investigated Schmitz’ employment, spoke with Schmitz and CACC
officials regarding the issue, and terminated Schmitz. 523 Fed.
Appx., at 712. “That Lane testified about his official activities
pursuant to a sub-poena and in the litigation context,” the court
continued,“does not bring Lane’s speech within the protection of
the First Amendment.” Ibid. The Eleventh Circuit also concluded
that, “even if . . . a constitutional violation of Lane’s
First Amendment rights occurred in these circumstances, Franks
would be entitled to qualified immunity in his personal capacity”
because the right at issue had not been clearly established. Id.,
at 711, n. 2.
We granted certiorari,
571 U. S. __ (2014), to resolve discord among the Courts of
Appeals as to whether public employees may be fired—or suffer other
adverse employment consequences—for providing truthful subpoenaed
testimony outside the course of their ordinary job
responsibilities. Compare 523 Fed. Appx., at 712 (case below),
with, e.g., Reilly v. Atlantic City, 532 F. 3d 216, 231 (CA3
2008).
II
Speech by citizens on
matters of public concern lies at the heart of the First Amendment,
which “was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the
people,” Roth v. United States, 354 U. S. 476, 484 (1957) .
This remains true when speech concerns information related to or
learned through public employment. After all, public employees do
not renounce their citizenship when they accept employment, and
this Court has cautioned time and again that public employers may
not condition employment on the relinquishment of constitutional
rights. See, e.g., Keyishian v. Board of Regents of Univ. of State
of N. Y., 385 U. S. 589, 605 (1967) ; Pickering, 391
U. S., at 568; Connick v. Myers, 461 U. S. 138, 142
(1983) . There is considerable value, moreover, in encouraging,
rather than inhibiting, speech by public employees. For
“[g]overnment employees are often in the best position to know what
ails the agencies for which they work.” Waters v. Churchill, 511
U. S. 661, 674 (1994) (plurality opinion). “The interest at
stake is as much the public’s interest in receiving informed
opinion as it is the employee’s own right to disseminate it.” San
Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam).
Our precedents have
also acknowledged the government’s countervailing interest in
controlling the operation of its workplaces. See, e.g., Pickering,
391 U. S., at 568. “Government employers, like private
employers, need a significant degree of control over their
employees’ words and actions; without it, there would be little
chance for the efficient provision of public services.” Garcetti,
547 U. S., at 418.
Pickering provides the
framework for analyzing whether the employee’s interest or the
government’s interest should prevail in cases where the government
seeks to curtail the speech of its employees. It requires
“balanc[ing] . . . the interests of the [public
employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees.” 391 U. S., at 568. In Pickering, the Court held
that a teacher’s letter to the editor of a local news-paper
concerning a school budget constituted speech on amatter of public
concern. Id., at 571. And in balancing the employee’s interest in
such speech against the government’s efficiency interest, the Court
held that the publication of the letter did not “imped[e] the
teacher’s proper performance of his daily duties in the classroom”
or “interfer[e] with the regular operation of the schools
generally.” Id., at 572–573. The Court therefore held that the
teacher’s speech could not serve as the basis for his dismissal.
Id., at 574.
In Garcetti, we
described a two-step inquiry into whether a public employee’s
speech is entitled to protection:
“The first requires determining whether
the employee spoke as a citizen on a matter of public concern. If
the answer is no, the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech. If
the answer is yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant government entity
had an adequate justification for treating the employee differently
from any other member of the general public.” 547 U. S., at
418 (citations omitted).
In describing the first
step in this inquiry, Garcetti distinguished between employee
speech and citizen speech. Whereas speech as a citizen may trigger
protection, the Court held that “when public employees make
statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment pur-poses, and the
Constitution does not insulate their communi-cations from employer
discipline.” Id., at 421. Applying that rule to the facts before
it, the Court found that an internal memorandum prepared by a
prosecutor in the course of his ordinary job responsibilities
constituted unprotected employee speech. Id., at 424.
III
Against this
backdrop, we turn to the question pre-sented: whether the First
Amendment protects a public employee who provides truthful sworn
testimony, compelledby subpoena, outside the scope of his ordinary
job responsibilities.[
4] We
hold that it does.
A
The first inquiry is
whether the speech in question—Lane’s testimony at Schmitz’
trials—is speech as a citizen on a matter of public concern. It
clearly is.
1
Truthful testimony
under oath by a public employee outside the scope of his ordinary
job duties is speech as a citizen for First Amendment purposes.
That is so even when the testimony relates to his public employment
or concerns information learned during that employment.
In rejecting Lane’s
argument that his testimony was speech as a citizen, the Eleventh
Circuit gave short shrift to the nature of sworn judicial
statements and ignored the obligation borne by all witnesses
testifying under oath. See 523 Fed. Appx., at 712 (finding
immaterial the fact that Lane spoke “pursuant to a subpoena and in
the litigation context”). Sworn testimony in judicial proceedings
is a quintessential example of speech as a citizen for a simple
reason: Anyone who testifies in court bears an obligation, to the
court and society at large, to tell the truth. See, e.g., 18
U. S. C. §1623 (criminalizing false statements under oath
in judicial proceedings); United States v. Mandujano, 425
U. S. 564, 576 (1976) (plurality opinion) (“Perjured testimony
is an obvious and flagrant affront to the basic concept of judicial
proceedings”). When the person testifying is a public employee, he
may bear separate obligations to his employer—for example, an
obligation not to show up to court dressed in an unprofessional
manner. But any such obligations as an employee are distinct and
independent from the obligation, as a citizen, to speak the truth.
That independent obligation renders sworn testimony speech as a
citizen and sets it apart from speech made purely in the capacity
of an employee.
In holding that Lane
did not speak as a citizen whenhe testified, the Eleventh Circuit
read Garcetti far too broadly. It reasoned that, because Lane
learned of the sub-ject matter of his testimony in the course of
his employment with CITY, Garcetti requires that his testimony be
treated as the speech of an employee rather than that of a citizen.
See 523 Fed. Appx., at 712. It does not.
The sworn testimony in
this case is far removed from the speech at issue in Garcetti—an
internal memorandum prepared by a deputy district attorney for his
supervisors recommending dismissal of a particular prosecution. The
Garcetti Court held that such speech was made pursuant to the
employee’s “official responsibilities” because “[w]hen [the
employee] went to work and performed the tasks he was paid to
perform, [he] acted as a government employee. The fact that his
duties sometimes required him to speak or write does not mean that
his supervisors were prohib-ited from evaluating his performance.”
547 U. S., at 422, 424.
But Garcetti said
nothing about speech that simply relates to public employment or
concerns information learned in the course of public employment.
The Garcetti Court made explicit that its holding did not turn on
the fact that the memo at issue “concerned the subject matter of
[the prosecutor’s] employment,” because “[t]he First Amendment
protects some expressions related to the speaker’s job.” Id., at
421. In other words, the mere fact that a citizen’s speech concerns
information acquired by virtue of his public employment does not
transform that speech into employee—rather than citizen—speech. The
critical question under Garcetti is whether the speech at issue is
itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties.
It bears emphasis that
our precedents dating back to Pickering have recognized that speech
by public employees on subject matter related to their employment
holdsspecial value precisely because those employees gainknowledge
of matters of public concern through their employment. In
Pickering, for example, the Court observed that “[t]eachers are
. . . the members of a commu-nity most likely to have
informed and definite opinions as to how funds allotted to the
operation of the schools should be spent. Accordingly, it is
essential that they be able to speak out freely on such questions
without fear of retaliatory dismissal.” 391 U. S., at 572; see
also Garcetti, 547 U. S., at 421 (recognizing that “[t]he same
is true of many other categories of public employees”). Most
recently, in San Diego v. Roe, 543 U. S., at 80, the Court
again observed that public employees “are uniquely qualified to
comment” on “matters concerning government policies that are of
interest to the public at large.”
The importance of
public employee speech is especially evident in the context of this
case: a public corruption scandal. The United States, for example,
represents that because “[t]he more than 1000 prosecutions for
federal corruption offenses that are brought in a typical year
. . . often depend on evidence about activities that
government officials undertook while in office,” those prosecutions
often “require testimony from other government employees.” Brief
for United States as Amicus Curiae 20. It would be antithetical to
our jurisprudence to conclude that the very kind of speech
necessary to prosecute corruption by public officials—speech by
public employees regarding information learned through their
employment—may never form the basis for a First Amendment
retaliation claim. Such a rule would place public employees who
witness corruption in an impossible position, torn between the
obligation to testify truthfully and the desire to avoid
retaliation and keep their jobs.
Applying these
principles, it is clear that Lane’s sworn testimony is speech as a
citizen.
2
Lane’s testimony is
also speech on a matter of public concern. Speech involves matters
of public concern “when it can ‘be fairly considered as relating to
any matter of political, social, or other concern to the
community,’ or when it ‘is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to
the public.’ ” Snyder v. Phelps, 562 U. S. ___, ___
(2011) (slip op., at 6–7) (citation omitted). The inquiry turns on
the “content, form, and context” of the speech. Connick, 461
U. S., at 147–148.
The content of Lane’s
testimony—corruption in a public program and misuse of state
funds—obviously involves a matter of significant public concern.
See, e.g., Garcetti, 547 U. S., at 425 (“Exposing governmental
inefficiency and misconduct is a matter of considerable
significance”). And the form and context of the speech—sworn
testimony in a judicial proceeding—fortify that conclusion. “Unlike
speech in other contexts, testimony under oath has the formality
and gravity necessary to remind the witness that his or her
statements will be the basis for official governmental action,
action that often affects the rights and liberties of others.”
United States v. Alvarez, 567 U. S. ___, ___ (2012) (slip op.,
at 8–9) (plurality opinion).
* * *
We hold, then, that
Lane’s truthful sworn testimony at Schmitz’ criminal trials is
speech as a citizen on a matter of public concern.
B
This does not settle
the matter, however. A public employee’s sworn testimony is not
categorically entitled to First Amendment protection simply because
it is speech as a citizen on a matter of public concern. Under
Pickering, if an employee speaks as a citizen on a matter of public
concern, the next question is whether the government had “an
adequate justification for treating the employee differently from
any other member of the public” based on the government’s needs as
an employer. Garcetti, 547 U. S., at 418.
As discussed
previously, we have recognized that government employers often have
legitimate “interest[s] in the effective and efficient fulfillment
of [their] responsibilities to the public,” including
“ ‘promot[ing] efficiency and integrity in the discharge of
official duties,’ ” and “ ‘maintain[ing] proper
discipline in public service.’ ” Connick, 461 U. S., at
150–151. We have also cautioned, however, that “a stronger showing
[of government interests] may be necessary if the employee’s speech
more substantially involve[s] matters of public concern.” Id., at
152.
Here, the employer’s
side of the Pickering scale is entirely empty: Respondents do not
assert, and cannot demonstrate, any government interest that tips
the balance in their favor. There is no evidence, for example, that
Lane’s testimony at Schmitz’ trials was false or erroneous or that
Lane unnecessarily disclosed any sensitive, confidential, or
privileged information while testifying.[
5] In these circumstances, we conclude that Lane’s
speech is entitled to protection under the First Amendment. The
Eleventh Circuit erred in holding otherwise and dismissing Lane’s
claim of retaliation on that basis.
IV
Respondent Franks
argues that even if Lane’s testimony is protected under the First
Amendment, the claims against him in his individual capacity should
be dismissed on the basis of qualified immunity. We agree.
Qualified immunity
“gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.” Ashcroft v.
al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12). Under
this doctrine, courts may not award damages against a government
official in his personal capacity unless “the official violated a
statutory or constitutional right,” and “the right was ‘clearly
established’ at the time of the challenged conduct.” Id., at ___
(slip op., at 3).
The relevant question
for qualified immunity purposes is this: Could Franks reasonably
have believed, at the time he fired Lane, that a government
employer could fire an employee on account of testimony the
employee gave, under oath and outside the scope of his ordinary job
responsibilities? Eleventh Circuit precedent did not preclude
Franks from reasonably holding that belief. And no decision of this
Court was sufficiently clear to cast doubt on the controlling
Eleventh Circuit precedent.
In dismissing Lane’s
claim, the Eleventh Circuit relied on its 1998 decision in Morris
v. Crow, 142 F. 3d 1379 (per curiam). There, a deputy sheriff
sued the sheriff and two other officials, alleging that he had been
fired in retaliation for statements he made in an accident report
and later giving deposition testimony about his investigation of a
fatal car crash between another officer and a citizen. Id., at
1381. In his accident report, the plaintiff noted that the officer
was driving more than 130 mph in a 50 mph zone, without using his
emergency blue warning light. See ibid. The plaintiff later
testified to these facts at a deposition in a wrongful death suit
against the sheriff’s office. Ibid. His superiors later fired him.
Ibid.
The Eleventh Circuit,
in a pre-Garcetti decision, concluded that the plaintiff’s
deposition testimony was unprotected. It held that a public
employee’s speech is protected only when it is “ ‘made
primarily in the employee’s role as citizen,’ ” rather than
“ ‘primarily in the role of employee.’ ” Morris, 142
F. 3d, at 1382. And it found the plaintiff’s deposition
testimony to be speech as an em-ployee because it “reiterated the
conclusions regardinghis observations of the accident” that he
“generated in thenormal course of [his] duties.” Ibid. Critically,
the court acknowledged—and was unmoved by—the fact that al-though
the plaintiff had investigated the accident andprepared the report
pursuant to his official duties, there was no “evidence that [he]
gave deposition testimony for any reason other than in compliance
with a subpoena to testify truthfully in the civil suit regarding
the . . . accident.” Ibid. The court further reasoned
that the speech could not “be characterized as an attempt to make
public comment on sheriff’s office policies and procedures, the
internal workings of the department, the quality of its employees
or upon any issue at all.” Ibid.
Lane argues that two
other Eleventh Circuit precedents put Franks on notice that his
conduct violated the First Amendment: Martinez v. Opa-Locka, 971
F. 2d 708 (1992) (per curiam), and Tindal v. Montgomery Cty.
Comm’n, 32 F. 3d 1535 (1994). Martinez involved a public
employee’s subpoenaed testimony before the Opa-Locka City
Commission regarding her employer’s procurement practices. 971
F. 2d, at 710. The Eleventh Circuit held that her speech was
protected, reasoning that it addressed a matter of public concern
and that her interest in speaking freely was not outweighed by her
employer’s interest in providing government services. Id., at 712.
It held, further, that the relevant constitutional rules were so
clearly established at the time that qualified immunity did not
apply. Id., at 713. Tindal, decided two years after Martinez,
involved a public employee’s subpoenaed testimony in her
co-worker’s sexual harassment lawsuit. 32 F. 3d, at 1537–1538.
The court again ruled in favor of the em-ployee. It held that the
employee’s speech touched upona public concern and that her
employer had not offered any evidence that the speech hindered
operations. Id., at 1539–1540.
Morris, Martinez, and
Tindal represent the landscape of Eleventh Circuit precedent the
parties rely on for qualified immunity purposes. If Martinez and
Tindal were controlling in the Eleventh Circuit in 2009, we would
agree with Lane that Franks could not reasonably have believed that
it was lawful to fire Lane in retaliation for his testimony. But
both cases must be read together with Morris, which reasoned—in
declining to afford First Amendment protection—that the plaintiff’s
decision to testify was motivated solely by his desire to comply
with a subpoena. The same could be said of Lane’s decision to
testify. Franks was thus entitled to rely on Morris when he fired
Lane.[
6]
Lane argues that Morris
is inapplicable because it distinguished Martinez, suggesting that
Martinez survived Morris. See Morris, 142 F. 3d, at 1382–1383.
But this debate over whether Martinez or Morris applies to Lane’s
claim only highlights the dispositive point: At the time of Lane’s
termination, Eleventh Circuit precedent did not provide clear
notice that subpoenaed testimony concerning information acquired
through public employment is speech of a citizen entitled to First
Amendment protection. At best, Lane can demonstrate only a
discrepancy in Eleventh Circuit precedent, which is insufficient to
defeat the defense of qualified immunity.
Finally, Lane argues
that decisions of the Third and Seventh Circuits put Franks on
notice that his firing of Lane was unconstitutional. See Reilly,
532 F. 3d, at 231 (CA3) (truthful testimony in court is
citizen speech protected by the First Amendment); Morales v. Jones,
494 F. 3d 590, 598 (CA7 2007) (similar). But, as the court
below acknowledged, those precedents were in direct conflict with
Eleventh Circuit precedent. See 523 Fed. Appx., at 712,
n. 3.
There is no doubt that
the Eleventh Circuit incorrectly concluded that Lane’s testimony
was not entitled to First Amendment protection. But because the
question was not “beyond debate” at the time Franks acted, al-Kidd,
563 U. S., at ___ (slip op., at 9), Franks is entitled to
qualified immunity.
V
Lane’s speech is
entitled to First Amendment protection, but because respondent
Franks is entitled to qualified immunity, we affirm the judgment of
the Eleventh Circuit as to the claims against Franks in his
individual capacity. Our decision does not resolve, however, the
claims against Burrow—initially brought against Franks when he
served as President of CACC—in her official capacity. Although the
District Court dismissed those claims for prospective relief as
barred by the Eleventh Amendment, the Eleventh Circuit declined to
consider that question on appeal, see 523 Fed. Appx., at 711
(“Because Lane has failed to establish a prima facie case of
retaliation, we do not decide about Franks’ defense of sovereign
immunity”), and the parties have not asked us to consider it now.
We therefore reverse the judgment of the Eleventh Circuit as to
those claims and remand for further proceedings.
* * *
For the foregoing
reasons, the judgment of the United States Court of Appeals for the
Eleventh Circuit is affirmed in part and reversed in part, and the
case is remandedfor further proceedings consistent with this
opinion.
It is so ordered.
