                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-1599

R ONALD M ATRISCIANO,
                                              Plaintiff-Appellant,
                                v.

M ICHAEL P. R ANDLE, Director of the Department
of Corrections of the State of Illinois, and
D ONALD S NYDER,
                                         Defendants-Appellees.


           Appeal from the United States District Court
                for the Central District of Illinois.
               No. 03-3072—Richard Mills, Judge.



     A RGUED N OVEMBER 6, 2006—D ECIDED JUNE 26, 2009




  Before R IPPLE, W ILLIAMS, and SYKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. After an Assistant Deputy
Director in the Illinois Department of Corrections volun-
tarily testified at a Prisoner Review Board hearing in
support of an inmate’s release, his employer transferred
him to another role in the Department. He maintains
that doing so violated the rights guaranteed to him by
2                                               No. 06-1599

the First Amendment to the United States Constitution.
At the time of the transfer, however, it was not clearly
established that the employer’s action violated any con-
stitutional rights. As a result, the defendants are entitled
to qualified immunity, and the district court’s grant of
summary judgment is affirmed.


                   I. BACKGROUND
  On this appeal from the grant of summary judgment
in the defendants’ favor, we recount the evidence in the
summary judgment record in the light most favorable
to the plaintiff. See Burnett v. LFW, Inc., 472 F.3d 471, 477
(7th Cir. 2006). During the time period relevant to this
case, Donald Snyder was the director of the Illinois Depart-
ment of Corrections (IDOC). George DeTella, the Depart-
ment’s Associate Director, reported to Snyder. DeTella’s
direct reports included the Deputy Directors for each of
the Department’s five districts. Underneath them were
the Assistant Deputy Directors in each of the districts, one
of which was the plaintiff.
  Ronald Matrisciano began working for the IDOC in
September of 1980. He was promoted several times and,
on July 1, 2002, rose to the level of Assistant Deputy
Director. An Assistant Deputy Director was responsible
for supervising the wardens and other administrative
personnel in his district. The Assistant Deputy Director
job description outlines its various functions, including
“develops policies and procedures regarding program
area[s]” and “makes recommendations for new programs
and projects.” The Deputy Director in Matrisciano’s
No. 06-1599                                                3

district passed away on the same day Matrisciano
assumed the Assistant Deputy Director role, and the
Deputy Director role remained vacant throughout the
time Matrisciano served as Assistant Deputy Director.
  Before rising to the level of Assistant Deputy Di-
rector, Matrisciano had been assigned the task of ensur-
ing inmate Harry Aleman’s safety during his transfer
from the federal prison system to the Joliet IDOC facility
in July of 2000. Aleman had been tried in 1977 for a
murder that occurred in 1973 but was found not guilty.
He was later convicted of violating federal racketeering
laws as well as transporting stolen goods across state
lines. In addition, years after his murder acquittal, federal
investigators discovered that the judge presiding over
his murder trial had received a $10,000 bribe from
Aleman. Aleman was retried in 1993 for the 1973 murder,
found guilty, and sentenced to 100 to 300 years in prison.
See People v. Aleman, 729 N.E.2d 20 (Ill. App. Ct. 2000).
  Aleman was housed at the Joliet facility for six months
after his transfer there. During that time, Matrisciano
visited the Joliet facility two or three times a month to
address inmates’ concerns and issues regarding the
facility, and he met with Aleman during those visits.
Aleman’s family members also contacted Matrisciano to
convey concerns. With Aleman coming up for parole,
Aleman and his grandson asked Matrisciano if he
would speak at a parole hearing before the Prisoner
Review Board on Aleman’s behalf.
  A Board hearing was originally scheduled for March
of 2002. That January, Matrisciano says that he informed
4                                               No. 06-1599

IDOC Director Snyder and Associate Director DeTella
of his intent to testify at a Prisoner Review Board hearing.
Matrisciano also states that he told members of the Board
in March of 2002 that he planned to testify at a hearing,
and that none objected. The hearing was rescheduled and
did not take place until December 17, 2002. After the
date was rescheduled, Matrisciano says that he again
informed Snyder and DeTella of his intent to testify at
a hearing. Although DeTella acknowledges that he
knew before the hearing that Matrisciano planned to
testify, Snyder maintains that he did not know until after
the fact. Matrisciano prepared a statement before his
testimony and had attorney Nancy Miller, the IDOC
Chief of the Bureau of Operations, review it. Most of the
information that Matrisciano used to prepare his state-
ment came from the inmate himself, and he also
gathered information from the case file and family mem-
bers.
  At a meeting with Board members prior to the hearing
in question, DeTella told Board members including
the Chair that an Assistant Deputy Director would be
testifying before the Board concerning a high-profile case
and asked whether the Chair viewed that as a problem.
The Chair said she did not. On December 17, 2002,
Matrisciano took the day off from work as a personal
day and testified before the Board. He read his
prepared two and a half page statement, which began
with a description of the numerous capacities in which
he had served during his twenty-two years at IDOC,
including his current position as the Assistant Deputy
Director for District One. He noted that this testimony
No. 06-1599                                              5

marked the first time in his career that he had testified
in support of an offender’s release on parole and said
that he was doing so on behalf of Aleman because of
his “strong conviction” that Aleman posed no threat if
released. In addition, Matrisciano said that “[s]peaking in
[his] professional capacity,” he believed that Aleman
had been a model inmate, and that in his “professional
opinion, it would serve no penological purpose to incar-
cerate him further.” His statement ended by saying, “for
the first and only time in my professional career,
I appear before the Board and humbly request to grant
Harry Aleman his release to parole.” Matrisciano main-
tains that he also made comments that were not in his
prepared statement, namely that he told the Board that
he was not at the hearing in his capacity as the Assistant
Director. Nonetheless, he signed the statement, “Ronald
Matrisciano, Assistant Deputy Director, Illinois Depart-
ment of Corrections.”
  Within the next few days, Matrisciano says that he
called Snyder and informed him he had testified before
the Board. On December 24, 2002, Snyder told DeTella
about media inquiries regarding Matrisciano’s testimony
and said that Matrisciano had “screwed up.” Snyder
directed DeTella to reassign Matrisciano to oversee the
final construction phases at the Stateville Reception and
Classification Center, which was not yet open and had
no inmates.
 Matrisciano was reassigned to the Stateville facility on
December 27. He retained his job title and salary, but his
duties and responsibilities changed. He remained in this
6                                                No. 06-1599

position until IDOC laid him off on May 30, 2003 as part
of a department-wide restructuring that eliminated
Assistant Deputy Directors and their staff. Matrisciano
was eventually recalled from a layoff list but was
“locked out” pending an investigation concerning his
testimony before the Board. Matrisciano was placed on
paid administrative leave with full pay.
  The district court granted the defendants’ motion
for summary judgment on Matrisciano’s claim of First
Amendment retaliation, and Matrisciano appeals.1 The
defendants’ brief on appeal notes that about three years
after Matrisciano’s testimony in front of the Board, state
court charges were brought against him alleging official
misconduct in connection with his testimony before
the Board and perjury during his deposition in this case.
After oral argument in this case, Matrisciano went to
trial and was found not guilty on all counts.


                      II. ANALYSIS
  Matrisciano maintains that summary judgment should
not have been granted against him on his claim that the
defendants retaliated against him for engaging in
speech protected by the First Amendment. We review
the district court’s grant of summary judgment in the



1
  The district court concluded that Matrisciano had abandoned
a claim that he should have been recalled earlier, and he does
not challenge that determination or argue for any injunctive
relief on appeal.
No. 06-1599                                                7

defendants’ favor de novo. Chaklos v. Stevens, 560 F.3d
705, 710 (7th Cir. 2009). Summary judgment is proper only
if “there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c).


  A. Qualified Immunity
  The defendants contend, as they did in their request for
summary judgment in the district court, that summary
judgment was proper on the merits of the First Amend-
ment claim and also that they are entitled to qualified
immunity. Matrisciano argues that the defendants
should not be permitted to raise qualified immunity on
appeal because the district court did not address
qualified immunity in its order granting summary judg-
ment and the defendants did not file a cross appeal. As
support, he points to the rule that without a cross
appeal, an appellee may not “ ‘attack the decree with a
view either to enlarging his own rights thereunder or
of lessening the rights of his adversary, whether what he
seeks is to correct an error or to supplement the decree
with respect to a matter not dealt with below.’ ” United
States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 937 (7th
Cir. 1975) (quoting United States v. Amer. Ry. Express
Co., 265 U.S. 425, 434 (1924)); see also Alejo v. Heller, 328
F.3d 930, 937 (7th Cir. 2003). The defendants are not
attempting to enlarge any rights beyond those conferred
by the district court’s grant of summary judgment in
their favor, however. Instead, their qualified immunity
argument is simply an alternative argument they make
8                                               No. 06-1599

for upholding the summary judgment decision. The
defendants argued that they were entitled to qualified
immunity in their memorandum in support of their
motion for summary judgment, so there is no question
that they may make this argument again on appeal. See
Stachulak, 520 F.2d at 937 (stating that without a cross
appeal, an appellee may argue in support of the judg-
ment any argument in the record, even if the lower
court ignored it); cf. Humphries v. CBOCS West, Inc., 474
F.3d 387, 391 n.1 (7th Cir. 2007) (noting some tension
in case law as to whether appellee who did not make a
particular argument in the district court could make it
for the first time on appeal).
   Government officials performing discretionary func-
tions enjoy qualified immunity shielding them “ ‘from
liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.’ ” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
Supreme Court has described qualified immunity as
balancing two interests—“the need to hold public officials
accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distrac-
tion, and liability when they perform their duties rea-
sonably.” Id. In its decision in Saucier v. Katz, 533 U.S.
194 (2001), the Supreme Court had mandated a two-step
analysis for courts to undertake when addressing claims
of qualified immunity. First, the court had to determine
whether a constitutional right had been violated under
the facts alleged or shown. See id. at 201; see also Chaklos,
No. 06-1599                                               9

560 F.3d at 711. If that hurdle was satisfied, the court
would next determine whether the particular right
was “clearly established” at the time of the alleged viola-
tion. See Saucier, 533 U.S. at 201. If the right was not
clearly established, qualified immunity applied. Id.
  More recently, however, the Supreme Court has
decreed that the Saucier two-step sequence is no longer
mandatory. Pearson, 129 S. Ct. at 818. Instead, district and
appellate court judges can exercise their discretion to
determine which prong of the qualified immunity test
will be addressed first. See id. In this case, as we will
explain, we conclude that it was not clearly established
at the time of Matrisciano’s transfer that doing so
violated his First Amendment rights. Accordingly, the
defendants are entitled to qualified immunity.


  B. First Amendment Retaliation
  Although we ultimately decide this case on account of
the failure to meet the “clearly established” requirement,
some examination of the alleged constitutional right
that was violated is helpful in understanding whether
such a right was clearly established at the relevant
time. Matrisciano argues that the defendants retaliated
against him, in a manner contrary to the protections
guaranteed by the First Amendment, by reassigning him
after he testified before the Prisoner Review Board in
support of Aleman’s release. To establish a prima facie
case of retaliation under the First Amendment, a
plaintiff must show that: (1) his speech was constitution-
ally protected; (2) he suffered a deprivation likely
10                                                  No. 06-1599

to deter free speech; and (3) the speech was at least a
motivating factor behind the adverse action. Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006). The
defendants do not contest whether Matrisciano suffered
a deprivation likely to deter free speech.2


    1.   Motivating Factor
  Viewing the evidence in the light most favorable to
Matrisciano as we must at this stage, there is sufficient
evidence in the record that the reassignment was at least
in part on account of Matrisciano’s testimony before
the Prisoner Review Board. There is evidence in the
record that a few days after the testimony, Director
Snyder telephoned Associate Director DeTella and told
him that Matrisciano had “screwed up” and that some-
thing had to be done. DeTella further stated that in the
days after Matrisciano’s testimony, Director Snyder told
him the media had been calling regarding Matrisciano’s
testimony and that Matrisciano would have to be disci-



2
  A case brought under 42 U.S.C. § 1983 alleging First Amend-
ment retaliation does not require a plaintiff to show an “adverse
employment action.” Spiegla v. Hull, 371 F.3d 928 (7th Cir.
2004). Rather, any deprivation likely to deter free speech is
sufficient. Id. Here, the reassignment to a facility where no
inmates were housed, which DeTella considered a demotion,
suffices. See Miller v. Jones, 444 F.3d 929, 939 (7th Cir. 2006)
(prohibition on retaliation against public employees who
exercise First Amendment speech rights “extends to
retaliatory transfers to a less desired position”).
No. 06-1599                                                11

plined. Moreover, Snyder said in his deposition, “It’s not
every day that we have a high ranking official with the
Illinois Department of Corrections go and testify for a
mob hit man. And so I reassigned Mr.—Ron to the RNC at
Stateville.” A jury could find that the speech was a moti-
vating factor behind the reassignment.


 2.    Constitutionally Protected Speech
  The next and larger question is whether Matrisciano’s
speech before the Board was constitutionally protected.
Public employees do not surrender all of their First
Amendment rights by accepting employment with the
government. See Pickering v. Bd. of Educ., 391 U.S. 563
(1968). Instead, the First Amendment protects a public
employee’s right, in certain circumstances, to speak as
a citizen about matters of public concern. Morales v.
Jones, 494 F.3d 590, 595 (7th Cir. 2007). Whether the First
Amendment protects the speech is a question of law
that we review de novo. Williams v. Seniff, 342 F.3d 774,
782 (7th Cir. 2003).


      a. Speaking as citizen on matter of public concern
  If a public employee does not speak as a “citizen,” the
First Amendment does not protect that speech. See
Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008). As
a result, an inquiry often arises into whether an em-
ployee spoke as a citizen. The Supreme Court has ex-
plained that “when public employees make statements
pursuant to their official duties, the employees are not
12                                                No. 06-1599

speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications
from employer discipline.” Garcetti v. Ceballos, 547 U.S.
410, 421 (2006) (emphasis added); see also Spiegla, 481
F.3d at 966. Matrisciano voluntarily testified before
the Board on a day that he took off from work. His job
description does not hint at voluntary testimony before
the Board. In short, we find no evidence that Matrisciano
spoke to the Board pursuant to his official duties, and
the defendants do not argue otherwise. Cf. Fairley v.
Fearmint, 482 F.3d 897, 902 (7th Cir. 2007) (rejecting argu-
ment that jail guard’s testimony during inmate’s
lawsuit constituted speech made pursuant to guard’s
official duties and stating that “[a]ssistance to prisoners
and their lawyers in litigation is not part of a guard’s
official duties.”). The next step in the analysis would be
whether Matrisciano spoke on a matter of public concern,
as speech that serves only a private or personal interest
does not receive First Amendment protection. See
Houskins, 549 F.3d at 491-92. The defendants do not
contest the public concern requirement, however, and
we will proceed under the assumption that it has been met.


     b. Policy-maker corollary
  A weighing of interests sometimes referred to as
“Pickering balancing” often follows a determination that a
public employee spoke on a matter of public concern. See
Pickering v. Bd. of Educ., 391 U.S. 563 (1968); see also, e.g.,
Chaklos, 560 F.3d at 714. Drawing on principles established
in political patronage cases, however, we have said that
No. 06-1599                                                 13

the First Amendment “does not prohibit the discharge of
a policy-making employee when that individual has
engaged in speech on a matter of public concern in a
manner that is critical of superiors or their stated
policies.” Vargas-Harrison v. Racine Unified School Dist.,
272 F.3d 964, 971 (7th Cir. 2001). We have not limited
this “policy-maker corollary” to instances where the
plaintiff’s political views led to the adverse action. See id.;
Warzon v. Drew, 60 F.3d 1234 (7th Cir. 1995); Wilbur v.
Mahan, 3 F.3d 214, 218 (7th Cir. 1993) (“The exception
recognized in the patronage cases for sensitive em-
ployees . . . retains its force in cases that have nothing
directly to do with patronage or party affiliation.”).
  The defendants argue that the “policy-maker corollary”
we discussed in Vargas-Harrison applies here, and the
district court agreed. We have set forth two require-
ments for the corollary to apply. First, the employee
must have occupied a policy-making position. See Vargas-
Harrison, 272 F.3d at 972. If so, his speech must have
been of the kind that falls within the scope of the corollary.
See id.
  An employee occupies a policy-making position when
the position “ ‘authorizes, either directly or indirectly,
meaningful input into government decisionmaking on
issues where there is room for principled disagreement
on goals or their implementation.’ ” Vargas-Harrison, 272
F.3d at 972 (quoting Nekolny v. Painter, 653 F.2d 1164, 1170
(7th Cir. 1981)); see also Fuest v. Clarke, 454 F.3d 770 (7th
Cir. 2006). A reliable job description can aid in this deter-
mination. See Riley v. Blagojevich, 425 F.3d 357, 361 (7th
14                                               No. 06-1599

Cir. 2005). During the relevant time period, Matrisciano
held the position of Assistant Deputy Director in the
Illinois Department of Corrections. In this role, Matrisciano
supervised wardens and assistant wardens. Notably, we
have already held that both positions constitute policy-
making positions, see Pierson v. Blagojevich, 437 F.3d 587,
588 (7th Cir. 2006) (wardens); Riley, 425 F.3d at 365 (assis-
tant wardens), and it would seem odd for a policy-maker’s
supervisor not to qualify as a policy-maker himself.
Moreover, the Assistant Deputy Director job description
lists responsibilities including: “[r]eviews and audits
policies, programs and management practices; makes
recommendations regarding changes”; and “develops
policies and procedures regarding program area.” Al-
though Matrisciano and DeTella may not have viewed
Matrisciano as a policy-maker, we have little trouble
concluding that the Assistant Deputy Director position
was one that fit that description as the term is used in
cases such as Vargas-Harrison.
  The next question is whether the speech at issue falls
within the scope of the policy-making corollary. See Vargas-
Harrison, 272 F.3d at 972. We have stated that the policy-
maker corollary “ ‘does not apply, and the courts must
apply Pickering balancing, when the speech at issue does
not implicate the employee’s politics or substantive
policy viewpoints.’ ” Id. at 973 (citing Bonds v. Milwaukee
County, 207 F.3d 969, 979 (7th Cir. 2000)). When a “policy-
maker’s speech creates a conflict with the policy stance
of his superiors, the effects on government are ‘acute.’ ” Id.
However, “speech unrelated to job duties or political
No. 06-1599                                              15

viewpoint runs too remote from the interests that
animate the exception.” Bonds, 207 F.3d at 979.
  The defendants maintain that Matrisciano’s speech
implicated substantive policy viewpoints. (We left open
the question of whether an employer may terminate a
policy-making employee for any speech without running
afoul of the First Amendment, Vargas-Harrison, 272 F.3d
at 973, and the defendants do not go that far here.) In
this case, however, Matrisciano’s testimony did not
criticize Department of Corrections policy, nor did he
criticize any of his superiors. The Department does not
profess to have a policy of opposing the release of all
inmates, and the defendants do not point to any
evidence in the record suggesting that the Department
had a policy of opposing the release of this particular
inmate. So although Matrisciano was a policy-maker, we
cannot find that his speech falls within the scope of the
policy-maker corollary we discussed in Vargas-Harrison.


    c. Pickering balancing
  Although we agree with Matrisciano that the policy-
maker corollary does not apply, that does not mean that
he is home free. “The government is entitled to restrict
speech that addresses a matter of public concern ‘if it
can prove that the interest of the employee as a citizen
in commenting on the matter is outweighed by the
interest of the government employer in promoting
effective and efficient public service.’ ” Chaklos, 560 F.3d
at 714 (quoting McGreal v. Ostrov, 368 F.3d 657, 675-76
16                                              No. 06-1599

(7th Cir. 2004)). When conducting the “Pickering balancing”
of the interests of the employee, as a citizen, in comment-
ing upon matters of public concern against the interests
of the State, as an employer, in promoting efficient
services of its employees, we consider the following
factors:
     (1) whether the statement would create problems in
     maintaining discipline by immediate supervisors or
     harmony among co-workers; (2) whether the employ-
     ment relationship is one in which personal loyalty
     and confidence are necessary; (3) whether the
     speech impeded the employee’s ability to perform her
     daily responsibilities; (4) the time, place, and manner
     of the speech; (5) the context in which the underlying
     dispute arose; (6) whether the matter was one on
     which debate was vital to informed decisionmaking;
     and (7) whether the speaker should be regarded
     as a member of the general public.
Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 n.7 (7th
Cir. 2005).
  Unfortunately, Matrisciano’s briefs emphasize that the
district court erred when it found the policy-maker corol-
lary applied and do not develop an argument as to
the balancing of interests. And there are competing inter-
ests at stake here. On the one hand, at the time Matrisciano
testified, no written policy prohibited Department of
Corrections employees from testifying at Prisoner
Review Board hearings. Viewing the evidence in the
record in the light most favorable to Matrisciano and
drawing all reasonable inference therefrom, as we must,
No. 06-1599                                               17

superiors at the Department of Corrections knew at least
that Matrisciano would testify before the Prisoner
Review Board, even if he did not tell them it was on
Aleman’s behalf. (The evidence Matrisciano points to in
the record contains assertions that Matrisciano told
Snyder and DeTella in advance that he planned to
testify before the Board, but they do not state that he
gave them Aleman’s name.)
   It might seem, then, that faced with a touchy situation,
Matrisciano did what an employer would want its em-
ployees to do—he talked to his supervisors. We have
commended employees before for attempting to proceed
through internal channels. See Hulbert v. Wilhelm, 120 F.3d
648, 654 (7th Cir. 1997). And after a principal gave prior
approval to a classroom speaker but then fired the
teacher when the speaker’s visit resulted in parent com-
plaints, the Sixth Circuit stated: “While ordinarily we
would give substantial weight to the government em-
ployer’s concerns of workplace efficiency, harmony, and
discipline in conducting our balancing of the employee’s
and employer’s competing interests, we cannot allow
these concerns to tilt the Pickering scale in favor of the
government, absent other evidence, when the disruptive
consequences of the employee speech can be traced back
to the government’s express decision permitting the
employee to engage in the speech.” Cockrel v. Shelby County
School Dist., 270 F.3d 1036, 1054-55 (6th Cir. 2001); see
also Evans-Marshall v. Bd. of Educ. of Tipp City, 428 F.3d
223, 231-32 (6th Cir. 2005) (allegations that teacher
fired after public outcry over pre-approved books and
material sufficient to state claim for protected First Amend-
18                                               No. 06-1599

ment activity under Pickering); Victor v. McElveen, 150
F.3d 451 (5th Cir. 1998) (interests of police department in
maintaining harmony and efficiency did not outweigh
deputy’s right to speak where sheriff gave officer prior
assurance he could speak without fear of recrimination).
But see Boring v. Buncombe Cty. Bd. of Educ., 136 F.3d 364
(4th Cir. 1998) (en banc) (affirming dismissal of teacher’s
First Amendment complaint after she was disciplined
for having students perform certain play even though
she had given principal prior notice of play’s name).
   It is also true that Department of Corrections em-
ployees may have information relevant and helpful to
the parole determination. We have recognized before that
prison guards may be particularly helpful to a parole
board, as “ ‘it is the guards who have daily contact with
[the inmate] and therefore can realistically assess his
person.’ ” See Hall v. Washington, 106 F.3d 742, 752 (7th Cir.
1997) (quoting Shimer v. Washington, 100 F.3d 506, 508 (7th
Cir. 1996)). Matrisciano had some contact with Aleman
while Aleman was in custody, but he did not have the
quantity or type of contact with Aleman as did the prison
guards discussed in Hall and Shimer. Matrisciano, then
Deputy Chief of Parole, first met Aleman when he had
been assigned to assure Aleman’s safety when he was
transferred from the federal prison system to the
Illinois Department of Corrections in July of 2000. He
subsequently visited the Joliet facility two to three times
per month to speak with inmates about their concerns
regarding the facility, and he says that he met with
Aleman during these visits for the six months Aleman
remained at Joliet. Unlike a prison guard who observes
No. 06-1599                                              19

inmates on a daily basis, in their normal routines,
Matrisciano only visited occasionally and for a particular
reason—to hear the inmates express concerns about the
facility. And by the time Matrisciano testified before
the Board in December 2002, it had been two years since
the Joliet visits.
   Moreover, the defendants contend that the testimony
of a high-ranking Department of Corrections official at
t h e p a r o le h e a rin g of a n ot oriou s p ris o n e r
calls Matrisciano’s judgment into question, and that the
Department has an interest in ensuring that its Director
has confidence in its high-level employees. Cf. United
States v. Miss. Valley Generating Co., 364 U.S. 520, 562
(1961) (“[A] democracy is effective only if the people
have faith in those who govern, and that faith is bound
to be shattered when high officials and their
appointees engage in activities which arouse suspicions
of malfeasance and corruption.”). The testimony here
marked the first time in Matrisciano’s twenty-two years
with the Department of Corrections that he had testified
at a Prisoner Review Board hearing. This testimony
concerned not just any inmate, but rather the infamous
Harry Aleman, acquitted of murder thirty years earlier
after bribing a judge. And the testimony urging release
also came only ten years into Aleman’s 100-300 year
sentence. The State has legitimate reason to suggest that
in light of these circumstances, observers including
other IDOC employees could wonder whether
Matrisciano’s motives for testifying were pure.
  Also of note is that Matrisciano spoke voluntarily
before the Prisoner Review Board. He did not make his
20                                                No. 06-1599

statement pursuant to a subpoena. Cf. 730 ILCS 5/3-3-2(f)
(“The Board or one who has allegedly violated the condi-
tions of his parole or mandatory supervised release may
require by subpoena the attendance and testimony of
witnesses and the production of documentary evidence
relating to any matter under investigation or hearing.”);
Wright v. Ill. Dep’t of Children & Family Servs., 40 F.3d 1492,
1505 (7th Cir. 1994) (“[S]urely an employee summoned
to give sworn testimony in a judicial proceeding has a
compelling interest in testifying truthfully and the gov-
ernment employer can have an offsetting interest in
preventing her from doing so only in the rarest of cases.”).
Rather, he spoke voluntarily, and not just about what
he had observed, either—he explicitly requested that
the Board release Aleman.
   And although the government does not receive the
benefit of the “policy-maker corollary,” Matrisciano’s
status as a high level Department of Corrections official
is still relevant in the Pickering balancing analysis.
“When public employees offer their opinions in roles
as representatives or employees of the government, the
government’s interest as an employer is greater than if
the speech comes divorced from the employment context,
and the second prong of Pickering should honor that
enhanced interest; however, the employee’s speech may
qualify as speech by a citizen on a public concern under
the first prong of Pickering nonetheless.” Bonds, 207 F.3d
at 980. Matrisciano signed the statement with his official
title and said that in his “professional capacity,” he be-
lieved Aleman had been a model inmate, as well as that
in his “professional opinion,” he did not believe further
incarceration would yield any penological purpose.
No. 06-1599                                                 21

  All of this goes to show that there are considerations
on both sides of the Pickering equation, and that the
circumstances in this case are unique. As we said, we
do not have the benefit of adversarial briefing on the
question of whether the government’s interests outweigh
the interests of the employee in this case, which is one
reason we are not inclined to decide whether
Matrisciano’s First Amendment rights were infringed
here. See Pearson, 129 S. Ct. at 820 (stating that “[t]he
lower courts sometimes encounter cases in which the
briefing of constitutional questions is . . . inadequate” and
noting that resolving constitutional questions in such
circumstances can lead to poor decisionmaking).
   The more significant reason that we turn to the
clearly established prong is that we conclude no clearly
established right was violated at the time of the reassign-
ment. “For a constitutional right to be clearly estab-
lished, its ‘contours must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right.’ ” Hope v. Pelzer, 536 U.S. 730, 739
(2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). “This is not to say that an official action is pro-
tected by qualified immunity unless the very action in
question has previously been held unlawful; but it is to
say that in the light of pre-existing law the unlawfulness
must be apparent.” Id. (quoting Anderson, 483 U.S. at 640)
(internal citation omitted). In these particular circum-
stances, the law at the time was not such that reasonable
officials would know that transferring Matrisciano
after his testimony before the Board was unlawful.
22                                              No. 06-1599

   The Supreme Court has emphasized that the qualified
immunity inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposi-
tion.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting
Saucier, 533 U.S. at 206). In Brosseau, the Court reversed
an appellate court determination that “general tests” set
forth in the Court’s Fourth Amendment jurisprudence
gave officials fair warning that their conduct was unlaw-
ful. Id. at 199. The Court made clear that the general tests
were not enough to give fair warning, nor was it an
“obvious case” where general standards clearly estab-
lished the answer without developed case law. See id.
  This is also not an obvious case. Aleman was an infa-
mous prisoner known to have bribed a government official,
and an Assistant Deputy Director in the Department of
Corrections voluntarily made his first Prisoner Review
Board comments on behalf of that inmate, without any
special knowledge of the inmate’s daily behavior in
custody. None of the cases to which Matrisciano points
put the defendants on notice that reassigning him as a
result of this testimony violated the Constitution.
  Matrisciano emphasizes our decision in Shimer v. Wash-
ington, 100 F.3d 506 (7th Cir. 1996), but that case does not
help him. First, we did not find a constitutional violation
in Shimer. Instead, we concluded that the record presented
material questions of fact as to whether the Department
of Corrections’ unwritten policy against allowing em-
ployees to testify before the Board was reasonably related
to a legitimate penological interest. Id. at 510. We also
emphasized the daily contact prison guards have with
No. 06-1599                                                23

inmates and suggested that as a result, guards might be
in a position to present a realistic assessment of an
inmate to the Board. Id. at 508. Here, even putting aside
that Matrisciano’s role was not one of daily interaction
with inmates, the important point is that we did not rule
in Shimer that the Department’s policy violated the
First Amendment. The other decision to which he
points, Hall v. Washington, 106 F.3d 742, 752 (7th Cir. 1997),
quotes Shimer for the proposition that guards with daily
contact with inmates can realistically assess them, but it
is not a First Amendment case itself. Neither case makes
it apparent that the action here was unlawful.
  Nor does the “prior approval” line of cases that we
discussed demonstrate that the violation of a constitu-
tional right was clearly established. First, the teachers
and sheriff’s deputy in those cases were lower-level
employees, so they do not make apparent what action
an employer cannot take against a high-level employee
in whom trust and sound judgment are especially im-
portant. See Bonds, 207 F.3d at 981 (finding decision to
rescind offer of policy-making position did not violate
First Amendment where plaintiff’s speech had under-
mined plaintiff’s credibility and embarrassed employer).
Significantly too, the evidence on which Matrisciano
relies does not suggest that Snyder, or even DeTella,
approved what would be said at the hearing. Instead,
the evidence to which Matrisciano points reflects that
under his version of the circumstances, at best, he told
them he planned to testify at a Board hearing. Because
the violation of a constitutional right was not clearly
established at the relevant time, the defendants are
entitled to qualified immunity.
24                                         No. 06-1599

                 III. CONCLUSION
 For the foregoing reasons, the grant of summary judg-
ment in favor of the defendants is AFFIRMED.




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