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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.
