arbitrary power in the bud because that's the only maxim which can ever preserve the liberties of any people through this concern judge the constitution protects against the archery power of a state or local government and the abuse of that power in the s did as a free speech claim retaliation claimed in the district court as let it hit and access to the courts retaliation claims judge i i disagree i know that was what the court light on bridges and we talked about that the brief and there is no if you look at the period when they're united they can point there is no claim that the court access was denied the court relied upon that bridges but when you read bridges bridges has two claims retaliation for accessing the courts any now bridget's your case wasn't litigated as a tele claim in the district court it was mitigated as a access to the courts retaliation m you shifted your your theory on appeal no i judge i would disagree and i'd there's nowhere in the complaint that states we were denied access to the courts well now i know you litigated the st amendment retaliation claim at summary employment correct judge s that was the allegation that because he was disclosed in this other litigation as a witness for the the voice mail in the e mail that was the retaliation so by definition we're in court were excess in court the excess  shifts the theory on appeal and you can't do that so you have to stick with what you let a kid although i guess i would answer that judge assuming that's true from a trial b six motion perspective you go through all the pleading present which you're familiar with i mean if there is a chance to cure that then we should be given that chance to amend which we could easily do and i'd be willing to do i think that's the other problem with the district court order that our briefs address and that would i think obviate the concern about what was actually applied in the st of many comply well react if you met a new complaint with that with a different set of claims no just because once the dismissal order was entered with prejudice i don't have that right i have to somehow go in it or get the district court to reconsider or i p o and i chose to appeal  because of the state of our case law on there but what we do know is that if there is a rational basis for the city's actions or i guess we don't have the city in the appeal anymore because the city was the defendant only in the state bar claims all we have is is mr nicholas the city manager if there was a rational basis for what he did which is to say make the recommendation that this to financing untrue incorrect in no way shape or form true by definition has to be irrational from a pleading stage now if a summary judgment and they can come up with some certain facts or something that's a different else's judgment for purposes of twelve b six the the court has  much deeper than miller the issue here is not that the project had problems the issue was that the manager that defendant went after the projects principles of the themselves rather than the project that's a big difference because now we're going into subjective untruths judge it by definition have to be irrational at the pleading stage well the plaintiff here is your client is the l l c it's not you and the people that we're talking about here said one of the two correct judge is not a question of age and you know our agency law has to do with the extent to which a principle might be liable for the torts of its agents or the extent to which agents can act for their principles we don't have any of those issues here we've got a constitutional a set of constitutional claims by l c that last development objection is a serious one interview the record to see if it has merit so even if you want to get agree with the district court that the retaliation claim should be dismissed under hilo under lake forest the favoritism issue with show d in which with pappas absolutely raises an but lake forest was not lake forest was make a protection claim and i'm saying for purposes of analogy when you're in essence giving government funds to try to rebuild by areas that is similar to you know development and so when you look at the facts that are alleged you've got the defendant manager comes and the st week in office he's meeting with showed being to do a hotel development the same company he was meeting with years prior trying to do a private public joint venture with him and you also have alleged that as soon as he successfully released false information about the plaintiff and its principles he then in the next day had an agenda to redirect the money to his friend confident pappas development which project the principles underlying that project yes i'm very comfortable representation of the court so one for fifty six if it has no experience in hotel development this isn't  it ort it can be if if that's a concern in the amendment needs to be made that can be made the way it was approaches that the statement was made it was false and the the public statements at issue here didn't even deal the experience adult with working there are good faith and plausible allegations in the complaint or any argument at twelve these six that one for five has had financing and working possible allegations made that this was a completely new venture for well it shell corporation and even your partner judge so the the elevations talk about how the defendant was able to talk to at least one banker the banker he chose and that banker told him that there is sufficient capital don't worry about it there are credible and despite that conversation occurring as a matter of fact the next day or what weeks or whatever was the timing cames out  something totally opposite and false despite his conversation with the banker but you're now going there was no working capital i'm not acknowledging the hope of rationing that the working capital from a shell corporation is from the principles which at the fed it knows because he was trying to do the same thing there is absolutely working capital and if that's that's the issue then we can amend we can head to ali's allegations to try to refute the false narrative been perpetuated by nicholas was named as a witness in the earlier litigation one hundred and forty five just was not even formed and soul of a twenty eight team for real estate investment purposes unrelated to the earlier litigation it to posture that it is really making a free speech client would have never used those words anywhere in those paragraphs this court should reject the attempt to change theories on appeal well we heard something this morning about a motion to admit let's be very clear one hundred and forty five just never filed a motion to amend and it never made any proposed amendments of record we never had price it is not a property of rights in the constitutional sense the mere opportunity to acquire property is not a protected property interests we cited united states versus one in our brief specifically making its interest after all the agreement was only collimator and it was subject to a final agreement for consideration at approval at a later time which never happened plaintiff cannot be deprived of a property interest when it and forty five fisk is a shell it had no working capital and it was dependent on t i of funding and lender financing for the project even plaintiff's claim of animosity in favorites is taken at face value the pleadings show that the city was proceeding cautiously and not committing funding to any proposed project has received china funding and any hotel project is our carries i financially risk as far as the due process claim jumps there's the alchemy case which talks about due process arises from statutes resolutions regulations clearly we had that in this case the to fact been earmarked pursuant to an official the cobra solution which required that resolution be filled as passed in for i think the court to again take the defendant's statements as true despite to your prior work history between the city and the plaintiffs and i get undermines any rational basis d because it doesn't make common sense under swanson that two years later all the sudden money has become an issue i think to argue now with kobe had obviously i would move to strike that judge because kobe can't be availed reasons now and there's nothing the record to support that so thank you for your time judge