the question on appeal is whether there was implied consent to try and as applied issue and whether there would be any prejudice to the county for the court to consider that relief the answers are that yes there was implied consent and no there is no prejudice in its brief the county never discusses the ask me case where this court approved the narrowing applied in that case the state noted that the complaint only mention facial relief and the state also complained that asked me had expressly disavowed seeking as applied relief during discovery the th circuit found this quote unconvincing why big knowledge that typically you need to file a  fifteen motion to add a new claim but they said that asked me quote was not stating a new claim only clarifying the scope of its desired remedy that's why the county's argument falls flat the county said at trial that quote a facial challenge and as applied challenge are vastly different claim close quote and the district judge denied the motion on that basis but we know that's wrong as a matter of law because they're not even different claims at all the plaintiffs here merely sought a narrower form of relief what's more the county always had a laser like focus on the plaintiffs vigorously pursuing the details of their lives in discovery plaintiffs were asked to disclose and did disclose their rental history employment history medical history criminal history the county deposed each plaintiff on each of these matters asking questions about recidivism risk sex offender treatment rehabilitation the underlying offenses decades worth of evidence and some instances far from ignoring the plaintiffs to focus on defeating a facial challenge to the circumstances of some other former sexual offender the county thought it best to focus on plaintiff's individual circumstances instead that's the consent the county focus on the plaintiffs as the vehicle for defeating a facial challenge and that shows lack of prejudice to now the district judge is finding on prejudice was focused on the fact the motion was filed in the last day of trial that standing alone is  a matter of law to deny a motion to conform the pleadings to the evidence because rule fifteen specifically contemplates that such motions could be made even after judgment and the district court cited no specific other grounds for prejudice he just said he agreed but the county said they were exactly correct but the county offered no credible case for prejudice either the county spends a lot of time trying to convince the court the plaintiffs were clearly just bringing a facial challenge all along and it's a bit beside the point but let me just say that i don't think that evidence is as clear as the county suggests because any statements by pla tough one you didn't have to move to a man at all well i'm not sure it was strictly required for planes to file a rule fifteen b two motions since the pleadings do not unequivocal or rule out and as applied challenge in the presumption is that challenges are as explicitly labeled facial but particularly since the district judge flag the issue it certainly was procedurally appropriate for us to file the motion to make clear to the judge that this is something that really was litigated all along and because it really was the  he asked me case in a couple of places but it seems to me that like you're deploying it there so as to indicate that as applied in facial challenges sort of in a gestalt kind of way are not really all that different and therefore there was implied consent and therefore there was no prejudice and then in the reply brief there seems to have been some awakening and instead you're really sort of arguing asked me really as a standalone basis and you're saying you know in effect we never really had to move to amend this thing anyway because this isn't even a different claim we didn't have to fold anything new in and it's just a narrower form of relief and those two things just seem different to me well i think it goes to the implied consent and it's because you know stepping back for a moment you know the counties theory is that salerno provided the standard of this case and just to be clear we said that smith be supplied the standard the county said that the court agreed but the county a trial which is true but then in the decision of the court but under the counties theory of the case they say it's the salerno salerno case and that plaintiffs would have to show no set of circumstances in which the ordinance could be constitutionally implied in other words all the county would have to do is show one set of circumstances in which the ordinance can be consciously applied and if plaintiffs were to establish as i believe that is by definition not a set of circumstances in which the ordnance can be constitutionally applied so it is by defeating what would be sufficient to establish an as applied challenge that they could succeed in defeating defending against a facial challenge so in their effort to defeat a facial challenge it requires them to defeat and as applied challenge for the plaintiffs if they chose to focus on the plane of which they did now they wouldn't have had to done that they could have ignored the plaintiffs altogether and just relied on the officer's testimony that you know a couple of folks showed up at the registration office and nice cars and said well case closed we win the facial challenge under their theory of course we argue with a different theory that applies but the point is that the as applied relief was always a part of the case the way they live a good because they always had a laser like focus on the plaintiffs asking them questions about the underlying offense asking about housing about their acceptance of responsibility their housing search their rehabilitation all of those questions were a part of the depositions they were part of the trial testimony trial day two they asked those five and six about their crime about their pleas they brought them back on days four and five on day three they asked our health expert dr greer who talked about the health impact on how most as they asked them about the specific diagnoses and symptoms of the plaintiffs they for was the most detailed inquiry into the plaintiff talking about the charges specific things they did with whom and what they did you know the  specifics the rental specifics so it was always very fast on the plaintiff themselves and so you know so that's that's the consent that it was always a necessary part of the case by their choice so it's not what plaintiff said in the moment it's about what they asked for all the information they have attained all of that information so it's not although they talk about you know the projects they list in their brief are yes we would have asked about sex offender treatment individual recidivism it's a bit on one  point out that's not quote vastly different it's just more of the same but to they they obtained they sought and obtained all of that information same with the health records and the final statement of prejudiced those would have devoted more time during trial t cross examination which is again not vastly different it's just more of the same and they had that opportunity indeed we filed the motion during our case in chief so it's really you know they sought and obtain this information and they had no incentive to go into this these issues and to any death except for the purpose of defeating what would constitute an as applied challenge because it is only through defeating what would constitute an as applied challenge that they would have a circumstances in which the concept the organs could be constitutionally applied which is what they would have to show to defeat the facial challenge so as applied challenge was always front and center when they went into the very evidence that they're now saying they would have sought more  but what about just the fact that you repeatedly both before and after the nd amended complaint for often has one challenge and then this goes i think really to your fifteen b argument less than it does to the extent you have won your think it's relevant under after which where there was also expressed as a vow but but just entertaining the notion you know if we get you know we can just look at the specific instances they cite and i'm looking at page twenty eight on their brief which is p d f page thirty six starting at number eight you know they're careful not to list dates on these statements because the dates are relevant so number eight documentary seventy six that's the hearing where we say it's a facial challenge that's june two thousand and fifteen the next entry is two and a half almost two and a half years later that's the filing of the nd amended complaint so two and a half years later after it's come back from the th circuit we dropped the organizational plaintiff we had additional plaintiffs different complaint different claims or we would still have the experts back to claim but the other four claims have been dropped many thank you so that's the two and a half years later that statement the next entry is their answer where they say documentary ninety one dollars that includes affirmative defenses that bear only an official challenge i truly don't know what that means ten months later that's their motion for summary judgment where they mention official challenge and then discovery closes and there's no statement by plaintiff till after that fact so even if we're going to really going to get into the weeds on who said what when there was no statement during the operative period and that came almost two and a was that was representing the plaintiff in time it's a facial challenge only right and lawyer for the plaintiff said yes yes that's true and the reason why that's not relevant is because for a couple of reasons the of course the rule fifteen b two motion only comes into play at trial or after trial and moreover i'll just return to the argument i said before that there's no prejudice and there's implied consent because they chose to bring the plaintiff into this and conduct required them to defeat and they applied challenge in order to defeat a facial challenge because only through that could they show a set of circumstances through which the ordinance could be constitutionally applied but so i guess your point is just given the nature of the relationship between that a blind challenge and a facial challenge the lawyer for the plaintiff here could have just i guess why not necessarily why i suppose but either wide or mis day of the proceedings before the amended complaint after the amended complaint during trial after trial and it just would not matter nothing the plaintiff's lawyer could say could possibly give away the as applied challenge it's to of course is their proper to mislead but the point really is about the cons and and i'm not i'm not suggesting that we didn't say it was a facial challenge obviously the but the focus is on how the case was litigated on how the case was litigated was the case litigated in a way that included as applied challenge and what i'm arguing and what i what i think you understood from what i was saying is that it is it is necessary for them to do it and as applied challenge in order to defeat a facial  the point not i'm not justifying any certainly inappropriate conduct by anyone and nor did we believe we were not intending to mislead anyone and of course we thought we were entitled to facial relief and we were incorrect in that  assumption based on what the district court said so i totally get your point about the logical relationship between between the two claims and i find it i find it pretty compelling actually but you understand my concern that as an officer of the court there's just i don't know there's something a little jakey about continuing to represent the court that and to your opponent that we're only pursuing this relief not that one over and over and over and then sort of knowing all the while well don't worry because when we get to the end of the road we'll always have the as applied challenge well know we did we didn't i mean that we the reason we filed a motion is because specific comments  in day four i believe at the trial where we believed essentially the court was suggesting that it would be a good idea to add an as applied challenge it certainly was not any sort of you know belief that we could get away with something at a later time that would be  improper and of course the sense of fairness underlies i think all the federal rules of civil procedure the question is how is that mediated through doctrine and the doctrine talks about consent and prejudice that's why i've been focused on on on on on how the case was litigated got it thank you thank you at every turn the district court denied that last minute requests based upon st proper application of the circuit precedent and wesco manufacturing and others which hold it as it is relevant to a properly treated issue cannot put a party on notice that a new issue has entered the case that maybe i haven't read it asked me quite closely enough but there's a dissenting opinion in the th circuit that is cited with approval and asked and asked me that says there's an exception to the to the proposition to the principle that and as applied brings with it a facial or facial brings with it and has applied where it's been expressly sworn off but doesn't ask me to cite to citizens united where in fact they are the party had sworn off a facial challenge and the supreme court said no matter of action or there are claims the rules use the word issues i understand you to be saying that the issue of relief is different and as applied challenge  moving target where my last minute awakenings as to better arguments that could have been raised but weren't raised in the st instance but the county was expected to argue and defend against those claims i understand that there are  denounces isn't whether or not the plaintiffs had an option but rather their homelessness was uniquely attributable to the application of the ordinance here there was evidence as to both john number five and six that they had found compliant housing in the past they had secured compliant housing they had found housing that there's no obligation that the plaintiffs have to be allowed to reside with a family member if they were able to find compliant housing an i think you're on of there there comes a point in time in which there has to be finality to litigation and want to party bring a case on a party could bring a claim that they chose not to bring you know there's a question as to whether or not there clearly are stopped or whether as you to i don't think that anyone would be no you know i don't think anyone would be permanently for clothes from being an as applied challenge i think it would be based on whether or not a new cause of action a rose based on a unique enforcement action or unique circumstance that and i do want to focus on one of the statement that was made by my opposing counsel in his argument your honour's where he said that it was the county that focused on these plaintiffs and that we had essentially laser focus on these plaintiffs i want to emphasize the fact that it wasn't the good morning again this is daniel tele for planned us all make this very short couple of things on surprise you can't be surprised by something that you saw it and i don't want to beat a dead horse but as i said before they needed to add salt to defeat what would constitute an as applied challenge to defeat the special challenge regardless of whether there was actually not as applied challenge in the case as to as to individual relief the district judge of course said both at trial and in the opinion that he was considering  they say unless a plane to express lee does the balancing out by the complaint that a regulation is invalid should be construed as possible as an as a flight challenge and he says that at least by implication we have said where court's construe a plaintive challenge a possible to be as applied right and so so i think that answers my my contention that if it's you know if if it's unclear in the complaint but then plaintiff disavow the challenge that you construe it if possible to be as applied but here it doesn't change the standard for rule fifteen b two and as i've said before and again this  again rule fifteen b two still permits us we can time to to the relief requested but do you just as a matter of fact the record in this case do you think it's fair to say that you expressively disavowed and as blind challenge we certainly did at some point the question is is how you consider the effect of that of course we expressed leaders about it at times we did not do so during the relevant time