its discretion in failing to grant leave to amend the complaint as well but let me start with the rule twelve b six standard and let me start jurisdiction correct correct and in this particular case the only way in which this case would properly be here before us you sound a little tucker act correct that is rights act and the administrative procedure act correct and i don't think any of those are money mandating you have your ten thousand dollar claim in that county but i don't think any of those are money transferred the case here in the circuit then proceeded to judith cate that appeal and to deny us relief on that appeal therefore by virtue of that prior ruling i think we have to come to this  based on the tenth circuit sworn transferring the case here for want of jurisdiction in the tenth circuit but the question we have to look at are christians and versus coal use is is jurisdiction in this court plausible that's that's what the supreme court i think you said and it really does seem like it's not plausible given that none of those statutes are money mandating which is what we have to have for little which would in turn let us have a case so there may well be a jurisdictional problem here in which case we would i'm not sure what we have to may we have to dismiss little tucker right hank claims and the rest all of the various other claims back to the tenth circuit yeah i read with your honor's position when this case was before the tenth circuit that the tenth circuit had jurisdiction however the tenth circuit rule that this jurisdiction and so i'm here today in light of that way i mean i think that my clients are bound by the law of the case on that issue so i don't think we're in a position to challenge it i think what might have been the correct action at the time would have been for the federal circuit to remain and the tenth circuit on that issue but i don't know that i'm going to a position now to challenge the ruling that has been made on this court's jurisdiction i think that's something that's been made in this case and in my client's have to have to live with that and so we're here ok let me go back and very quickly quote some of justice thomas statements other provisions of the federal rules of civil procedure inexplicably went to rule a simplified notice pleading standard rule eighty one states that no technical terms of pleading or motions are required rule ada provides that all pleading shall be so construed as to do substantial justice given the federal will simple fight standard for pleading a court may dismiss a complaint only if it is clear that no set that no belief could be granted under any set of facts could be proved consistent with the allegations now the district court in this case we argue urged the cause although the complaint did not specify the form of a forty two u are contained within the complaint and therefore the substance of the claim exists and  seventy one f third twelve seventy five two thousand four decision to suggest that the failure to mention in the form of the complaint forty two u s c section one thousand nine hundred five so too even though the substance of a claim is there would preclude the court from allowing the complaint to proceed but is very important in this case and i'm looking now at page twelve seventy nine to understand what was happening in the green country case there had been allegations in the complaint in that case that focused exclusively on alleged monopolization under section two hundred three b of the antitrust act and denial of access to an essential facility which is what the apple e's contend the appellant's of failed to do here or in substance in other words in this case the factual allegations in the existing complaint did not support exception to three a claim and therefore the court's dismissal would be appropriate in that same case though the tenth circuit said a plaintiff should not be prevented from pursuing the claim simply because of a failure to set forth in the complaint a theory  which the plaintiff could recover provided that a late shift in the thrust of the case will not prejudice the other party in maintaining its defects now in the procedural posture of this case there had been no answers while these were the very first responsive motions of the apple leaves to the complaint at hand so there had been no answers there was no schedule in place discovery had not been commenced there was no planning meeting we were simply awaiting the decision of the disparate pork on these initial motions prior to the time of hearing on those motions the appellant's filed a motion to amend to claims exist in the complaint that was on file and so that motion was simply curing the failure to reference in the form of the complaint the actual statute but the substance of those allegations was in the original complaint that was before the court the court in ruling on the motion to amend will that it had not been timely brought up i've cited in the briefs the tenth circuit cases that say that a motion under rule fifteen is timely if it's brought before the hearing on the dispositive motion this motion was brought before the hearing and not only that but some two months previously in the response to the motion to dismiss filed by the federal defendants these accounts specifically had referenced forty two u s c section  five so to end their intent to move to amend following this result so we feel that this complaint was not given a fair chance to move forward by the disparate core that the allegations were in the complaint to support a claim for a conspiracy to retaliate for filing a complaint in federal court and that is an actionable conspiracy under the right versus no sk case seven seventy four f second or twenty two from one thousand nine hundred five in the tenth circuit the allegations were tally ition create a claim now let's look at the different defendants and i'll do it very quickly here we've got mr jury i and miss hammer they are not tribal members there's no question that a federal cause of action has been alleged against them we've got the federal defendants who participated in a conspiracy and right versus no skeeter incorporated they were federal defendants involved in that case and as i pointed out that was a recent jan you two thousand and six case from the tenth circuit that recognized for the first time that those assertions also support a claim inch remedy in that case it was in the context of a fifth amendment retaliation where b l one fishes wanted an easement the plaintiff wouldn't provide to them and so they retaliated by not granting him permits that he wanted to have but the principle remains the same so the claim has been pleaded the complaint should be allowed to go forward finally let's look at the four members of the tribe business commit because that is i think with the district court became confused but where the confusion should at the actions of the four members of the business committee whether or not they were illegal do not prevent them from being liable if may be a little bit of a disadvantage but but at the time of the briefing in the tenth circuit what you say is true but at about the time of the transfer order we had a non bank decision in a case called fisher and if you're familiar with changed the law at about the time of the transfer in a way that appears to say that it's no longer a two step process but it's a one step process such that if you don't find a money mandating statu in connection with the little tucker act claim there's no jurisdiction period so i'm not sure that the tenth circuit would have at least had they had to fish a case before them would have been in a position to transfer the case which leaves us in the position  assume for the moment that one were to conclude that this court did not have jurisdiction under the analysis the one step analysis that fisher would compel and i realize you have to take a look at that and the basis for it was that there was not a money mandating statute here which is which would be required for our jurisdiction correct  they defended on the basis that the first amended complaint off state a claim under ninety five three which is what exactly what it says itself they rely on a footnote that was included in one of  chuck kiser for trouble defendants this case has been a moving target from the beginning bronner's the changes have been so massive and so frequent that this court need not address the intricacies of the civil rights act or the hundred five three claim at the eleventh hour plaintiffs tried to move to amend the complaint to state in one thousand and five to claim the district court deny that in a well reasoned decision and what they argued before this court is they really already stated in and five to claim in their complaint will not only did they not argue that before the district court they are you exactly the contrary they argue that they did not state that claim in their complaint and i would call the court's attention to the ministry of record of page fourteen thirty two and this is a quote they are legit in their reply that they're asserting two new claims is what they said so under hill in other cases this course familiar with there is no way they can raise for the first time before this court and argue that it raised before the district court there barred from doing so with respect to the suggestion that because you argue facts and that's sufficient to sort of state a claim when you argue specific statutory cites that's just wrong in the tenth circuit your honor there's been discussion already and i don't need to repeat given my lack of time here the the green country case for all the tenth circuit cases cited in the br the done in re santa fe downs case the evidence versus mcdowell corp case in all of those cases there was a statement of facts to stay the same what the court said is when you specifically referred to a statute you were calling the court's attention and to that statute what the court said was is that you can't use the commonly gibson sort of liberal i standards to wait until the eleventh hour to ascertain and determine what your cause of action are not only is that unfair to the parties but it's unfair to the summary judgment motion to dismiss process people always change things at the end as mr bryce and said the court focused on the fact that there was substantial difference in the in the claims and also focused on the fact that that in that case there was even argument that they had made the claim before the you come in on that would argue yes again you don't even the need to get to the merits of the abuse of discretion because the court ruled the first two grounds of the court's ruling were first that they were aware of the facts and the claims at the time that they found the original complaint the second argument or the second finding the court made was is that they shifted grounds because of the court's prior rulings on arguments of defendants those are independent grounds for the court's ruling that were not addressed by plaintiffs in the appeal and again under the earth and that line of authority these independent grounds are sufficient for the court to rule against plaintiffs on the argument without even getting to the abuse of discretion of the court were to get to the abuse of discretion we think it quite clear that the court acted properly but the important point i guess are essential point we want to understand is that these are into pen grounds under seven and under the big understand still call in that line of authority and we would hope the parties here do not have a lot of money they've been around and around here on this case as you know there have been proceedings before district courts i i trial courts it's cost a lot of money to the tribe and we hope that you'll find a way to address the case here but i don't mean to slight a jurisdictional problem if there's a jurisdictional problem here we understand the law and jurisdiction to decide all of the issues so i would say either you can decide none of the issues or you can decide all of the well we have we always have jurisdiction to decide our own jurisdiction and if we decide we don't have jurisdiction we have jurisdiction to do that much so right i don't know that  her employment as a direct direct result of her being a point of and this action so it was clear at that time we knew upon looking at it that the facts existed in the complaint raising a claim under forty two u hundred eighty five so too even though we had not swept terms the form of forty two u s c section one hundred eighty five so too and we intended to do that by a later amendment so the court was on notice that the retaliation against country that means that you can't get rid of a claim like that early on through dismissal and this was early on a member no answer had been filed this was the very first attack upon any complaint by these apple lees so it was not as all the cases they cite far down the road with a lot of litigation having progressed through discovery and development of theories and so on and so forth with respect to amendment let me just say  hearing the presumption allowing amendment goes away after here the presumption allowing amendment goes away before hearing is just like any other case where you say may i have leave to amend but the tenth circuit requires a written motion be filed otherwise you wait your chance the only other thing i would say is according to congress timetable we were within congress timetable we had exercised our amendment as a right simply to correct  that we could have amended immediately before they hear thank you thank you