ORDER DENYING REHEARING

Before MERRILL, WRIGHT and TRASK, Circuit Judges.

In their Petition for Rehearing Defendants-Appellees argue that the proper question under the third prong of Procunier is whether at the time of the termination decision they knew or should have known that they could not prevail in their contention that Appellant’s employment was properly terminated. They assert that a finding against one party does not per se eliminate the possibility that his contention to the contrary was in good faith.

There may be cases where this contention would have merit — cases where critical factual issues were disputed in good faith. This is not such a case. Here there simply was no dispute upon the critical Mt. Healthy issues at the time the injunction was granted.

It could hardly be denied that the protected conduct figured substantially in the discharge. Of the eight grounds upon which Appellees based the discharge in their notice to Appellant, six were related to the protected conduct. As to whether Appellees would have discharged Appellant absent the protected conduct, apparently they had given no thought to the question and were not aware of its significance. Certainly they made no effort to meet their burden. Appellee Clark testified at the injunction hearing that all of the reasons listed in the discharge notice were important to him in reaching his decision.

The dispute was one of law. Appellants were simply in error in believing that they could lawfully discharge Appellant despite the fact that the discharge was in substantial part because of her protected conduct. Such belief as matter of law cannot be said to have been in good faith. Under Harlow, for reasons of public policy, those holding such positions of responsibility should know the law and are deemed to know it.

The panel as constituted in the above case has voted to deny the petition for rehearing. The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.