ski did you want to i thought that's pretty close but let's find out you want i'm happy to go on and ruled in plain a saver and ruled plainness pleaded claims for compensatory damages claims that survived meanness instead of insisting upon seeing the one magic word in the prayer for relief nd the district court should have given plaintiff's leave to complaint to speak that incurred costs both in time and expense and in financial costs so we believe we have to the complaint pleaded those claims but if we were going to admin we would add we clarify that issue quantify plaintiff's favor is that he incurred costs time and expense in coming to campus for the purpose of speaking would have been easy enough to say if your honor you're correct we could set it more clearly but we believe we played it sufficiently for a motion to dismiss and that's also why we told the district court as soon as the flanagan's issues raised that if the we believe we've played this issue if the court disagrees we would request leave to amend we at least request that the district court to grant us the opportunity to amend by dismissing without prejudice did in the district court dismissed the st amend complaint without prejudice and suggests the plaintiffs could file a motion for leave to amend technically your honor it did but the problem is that nine minutes later it render judgment and therefore it for a closed our ability to file the in the i'm in if the motion it had instructed us to file did you ever come back to the district court and say look we got compensatory damages here maybe our complaint was no good it was too brief it was too conclusory but here's what we got we incurred costs they were x y and z what's more our reputation was affected you didn't do you ever say to the judge here's what we're concerned about by way of compensatory damages because there's nothing in the complaints that say a word about any of that you know we did discuss to the court in our supplemental response to defend a supplemental motion when we filed it may have twenty the motion to amend the one that the district court instructed us to follow but the problem again was that nine minutes later the court issued judgment which foreclosed our ability under rule fifteen to file the motion for leave to him and so we are prevented from british i want to ask you another question assuming that you can't convince us that you raised the claim enough and that the judge excuse abused his discretion or abused his discretion in not allowing you to unmanned can you distinguish flanagan's yes your honor we should we believe we can flanagan's involved official claim to a policy that was never enforced an ordinance that was never in force our clients here have as applied claims because definitive twice apply their policies to the it was the past deprivation of a constitutional right and even if you only sought nominal damages you would find that distinguishable from flann a mets fan against which was basically our rights are challenged that is mr bradford self censored as a result of watching his friend watching what his friend i take it they're free at this point to go ahead and speak at these locations right that is no limitation today that is correct your honor and that's why we did not challenge his bradford t the other student his name starts with a you would have a claim for past damages which would be nominal if you didn't show compensatory your getting claim compensatory i would agree with you  one exception i believe that mr bradford's chill is different this club is qualitatively different than the one alleged in flanagan's because in flanagan's the only chill came from the existence of the policy here mr bradford self censorship was the result and here we have as applied claims in addition flanagan's is different because they are the put the challenged ordinance was at odds with that other with other regulations that were also relevant here we don't have that just that critical fact but your honor we also but again so we believe that our nominal damages claims are distinguishable from those in planning it's big for these reasons but again the critical the primary reason we believe the district court should be reversed is because we believe we pleaded the complete claims for compensatory damages we allege of those in every count of the complaint we believe pleaded sufficient thanks if not we were willing to clarify that and we would have had the district court give us a reasonable opportunity to him in the complaint but by issuing judgment and so therefore we believe this court can address this issue without even having to get into the intricacies of flanagan's but if it does again we believe we're different because we have as applied claims for actual censorship there is no way nothing can erase that injury but those the constitutional injuries were completely two thousand and sixteen those injuries and never been addressed let alone remedied but and therefore plaintiffs claim should not have been made you basically had two claim whatever actual proof we can show of injured lost to him but the nominal damages would recognize that for that period of time while that policy was in effect his constitutional rights were violated that's the purpose of nominal damages thanks very much you have reserved five minutes for your report that you can up your hours are asking the court to affirm the dismissal of this case on the grounds that it is moot our position is that this case is controlled by flanagan's you know prises versus city of see any springs that case was decided only two years ago it was an on bank decision and in that case this court the earliest asked the issue of nominal damages  there in flanagan's the statute wasn't enforced against anyone i mean so he stood by that this claim for purposes of this argument and so the answer is does part of that claim survived because it's but it says it was a moribund statute and it was on the books and a basically chilled behavior and your honor i do disagree with that characterization of planning for these reasons well st of all paragraph flanagan's complaint deals with a plaintiff you suffered from m s and in order to be intimate with her husband she she needed to buy these these banned devices she also sought to sell those devices to other women who suffered from that same condition so in other words she was engaged in speech and then all of a sudden was was unable to engage in that same speech because of the ordinance she was all of a sudden the ordinance was around and wasn't enforced right that is correct but it wasn't forced because she decided to stop engaging in that speech especially since this but it was because it was a criminal  ordinance and then you also have a nd plaintiff in that case who was an artist who used those devices in his artwork and then sought to sell his artwork and he because of that ordinance was no longer able to buy those devices create his artwork or sell his artwork those are st amendment violations and i nagged the effect of that ordinance was to keep those plaintiffs from engaging in speech that they wanted to engage and the same is true in this case but you know ok but the student whose name starts with you he actually violated the policy and was an action was taking against him he was moved he was stopped i don't you know i it's a distinction whether it's a distinction that makes a difference i don't know but it's a dis it's a distinction so the question is you say it's not a constitutionally relevant distinction is that what you're saying yes your honor that is that is exactly what i'm saying and and in all other  enforcement so that they still challenge case right it appears to be so that it was not express explicitly stated that way late but again i would i would argue that those two plainti they had been engaging in speech and all of a sudden they could not engage and that is i don't think we can say that that is a lesser st amendment violation than what happened here let me ask you a question another question assuming argue endo that plan against doesn't control then what's your reason for saying the case is moot anyway th has nominal damages any any can't he can't get redress for his constitutional injury i mean what about kerry well i think the flanagan's addressed kerry and found that it  if nominal damages don't save a case the case would die right it dies right then that's so but kerry didn't die right then it was it was it was the case survived  right this distinction that if you combine a nominal damage claim with a compensatory damage claim and the compensatory damage claim dies and the nominal damage claim saves the case why is that why does it save it when it used to be with a compensatory damages claim why believing kerry what happened is it was remained to the court and at that point time there was still a live claim for compensatory damages and so the mood is you never really even came into play what should have come up in the in the court of should have died i mean there can't be a principle that when you have a compensatory damage claim it al saves your case even when it dies what if it died you know in the st part of the case it died in the nd part of the case it makes no sense to me that how how having a compensatory damages claim that was no good saves a case and your honor i understand your concern just going back to flanagan's this court has made it clear that nominal damages cannot alone save a case from from being dismissed as moot does that principle only apply when you've made a facial challenge to a statute or policy no your honor i don't think there at that is the case there's nothing  suggesting that it's certainly leaves open areas where that could be the case for example in libel cases and trespass cases but here i really don't see that there's any distinguish  of facts that would make for and against and not control the outcome of this case let me go to his st point which is the compensatory damages as i read the complaint it said compensatory damages but it didn't say what they were in the same terms bed you know would survive a challenge for complaint from  but he wanted to says he wanted to mendis complaint in the district court acted too fast he never got a chance flanagan's came down it tells him whatever i think of this idea of you need compensatory damages to save your case it came down and it said that and he wants to do that and he says he never got a chance is he right that he never got a chance i disagree ok wayne why you never got it but he got a chance that once we filed dismiss based on the line against act that point the two students could have very easily found a motion asking the court to allow them to amend their complaint in so i do think they had a chance to do that but they decided not because they would have to know that the judge the judge was going to say oh yes i'm bound by flanagan's it's on all fours with this case in this case is moot they would have to know that he was going to rule that way when they correct but even even they can't wait till he says it looks to me well i think even if the court even when the court did come down with this decision you know point was to ask for reconsideration and to put in say we want to file a amended complaint correct but that's that's how you see the obligation judge says hey it's moot and then they have to ask for reconsideration or come back and say yes your honor but we and how fast are they have to do that i don't know how fast they have to do that that is certainly one option i think the better approach is that once we f motion citing flanagan's which again was an on bank case decided to years prior you know i think they should have made known to the judge at that point that they wanted to complaint can't claim compensatory damages absolutely and i think they needed to do more than just say that they wanted to add the magic words of compensatory damages so he said today what his compensatory damages would be it's got costs and reputation and whatever that might be five dollars but there compensatory correct all right a run out of questions for you if there are no more questions i will give it back to my colleague bit but again our view in this case is that flanagan's is controlling law and should control the outcome of this case thank you ruled that the declaratory injunctive claims were moot because there was that was part of the way that the city proved it would not require that it would not revert to the old policy so that distinguishes our case from from planning its enterprise in addition judge or study raise the issue of the carry case from the supreme court and we believe that case does suggest that compared that nominal damages claims especially when it's when dealing with as applied claims damages so that compensatory claim fails at that point they were still they died at that point the nominal damages claims were still going to be nominal damages are still going to be awarded on the amendment issue our our case was filed instead it came down six months after a mini complaint was filed we believe that we have already clarified we've already raised the compensatory damages issue we raised that issue to the district court we then we offered to clarify thought we needed to be more specific in the facts and therefore we asked that it grantley that it give us opportunity and by dismissing without prejudice but again not minutes after its motion of this or miss order the judgment was granted under rule fifteen we could not file a motion for leave at that point in time another reason we thought we had raised compensatory damages was because we had pled for damages to be determined by the evidence and that obviously cannot refer just nominal damages but we had we thought we had raised the issue we thought sought leave to him and the district court again granted leave nine minutes or granted judgment nine minutes later preventing us from falling that motion we couldn't even really raise it in a motion to reconsider context because we'd already raised the issue previously in motions reconsider for things that had not been raised previously so we'd raise that an arm and a supplemental brief so we could not really raise that issue in there so we should have been granted that leave if we had we would have clarified the issue but it clarified that flanagan's doesn't even doesn't apply because we because we didn't have the compensatory damages claim we wouldn't be here so we would ask him this court reversed the district court reversed the decision below remand for further proceedings allow us to amend the complaint or conclude that we already have fled the compensatory damages claims damped claims that are not moot so unless or further question rush thank you very much thank you both and this court will be in recess until nine am tomorrow morning