potential the fence that might lie under the north pennington doctrine there's no question that in this case the defendant had a potential offense under nor pennington the question is where is the appropriate time to resolve that defense and whether or not the burden was on the plaintiff to plead facts around that defense or after this court's decision in galbraith and the supreme court's decision in crawford the height including standard was not a couple district court relied almost exclusively on a case called oregon natural resources versus more than one thousand nine hundred one case that imposed the heightened pleading requirement on the what we allege and what we believe to be the facts of this case and others that preceded is a pattern and practice of the city and county of san francisco delegating actual decision making authority with respect to residential this coverage would have been able to bring out facts that showed actual delegation of decision making authority to mr shaw that he in fact the decision maker on these matters to these very limited matters and if in fact he's the decision there has to be a constitutional court here it can't be that government can give can delegate can give its powers to private citizens to benefit their own interests whether on their own personal political agenda or any or any other interest and your  and and again i think the key point is well doesn't it though because i think there are allegations on almost every study that somebody enjoys a preferred status and zoning preferred status is one thing actually being the one making the  but the argument would be the same wouldn't because there's no there's no delegation and expressed fashion on this case and so what we have is as you say a pattern of practice and silence and that the same issues that can be raised  every every zoning decision again we were here on twelve b six we tried to lay out in our complaint a number of examples where we think in the past we can establish how the actual decision making authority has been delegated and not just influence or political or for political influence or extraordinary political power clearly that would be protected we can see that the question for this case given where we are on twelve six  whether or not should have been titled to go forward with the government taking the deposition of example the zoning administrator and he had admitted that yeah any time mr shaw comes to me these issues are important enough and with respect to the need for affordable housing in san francisco that i know that he makes a decision and he tells me to do it that's that's how it's done because this because i agree with i basically agree with him if that if that were would happen then we believe that is actually what happens in these types of cases if there is there  high standard very high bar we don't believe it was in that in this case and even if the court were to affirm the underlying water will be six we think she's or over the record reflect what the status of  thanks good morning your honor steve coll you're appearing on behalf of defendant and happily randall straw all conduct alleged by shaw in this second amended complaint which is the second complaint that other zoning determination requests advocating the city to enforce the zoning laws in other contexts drafting proposed legislation and demands that permits be revoked every single act of defendant shaw is there a heightened pleading standard in such a case or not i don't think you need to read to reach that issue i think because they have played themselves out of court hiding pleading standard that's not excuse me the  order disguised order they put that throughout their brief it's not in the complaint that they don't allege in their complaints that shaw made the determination and told that bag or what to do that's not in the comics do they have to plead this is ruling this is it's not i mean now you're coming back to lighten pleading standards well no i think the reason you have to allege some sort of facts is because you've alleged facts that result in the first amendment defense on the face of the pleading so you can't just a resigning requests and that the two of them agreed that it would be in the best interest of the setting to rule in favor of truong so that so that the property would be devalued and police would be forced to sell the newly remodeled hotel of the deep discount to the clinic and i refer you to two case then i believe they privately agreed that the city's desire need for affordable rental housing outweighed point of private property interest and bonier agreed to reach a conclusion of abandonment notwithstanding the fact that plane is so diverse that right this private communications between a citizen and a government official to get a certain result in and ministry to process is protected first amendment activity i refer you to the boone case and the by you fleet case both of them cited in our opposition briefs the motive of the petitioner is irrelevant it's still protected first amendment conduct those  al communications are protected first amendment conduct so you're saying taking those as true they still haven't stated the case that could have happened correct and they don't say so wrote the decision gave it to there and he just put it on his two letterhead and sent it out they don't say it was a disguised order they don't allege any of that and you know i don't know all consistent with rule eleven and how they can because they told you in their brief they have no evidence to support that  but then you say that paragraph fifteen but the actionable statement that it's in there what is going on here is unlawful delegation that's just very bones conclusion how can a divorced paragraph shaw with delegated authority by mr bader to make this particular decision mr straw made that decision soledad know what to do and agger without exercising any of his own authority did that but the reason i mean how would they be able to know that without doing discovery right why isn't this giving the city enough notice as to the nature of the claim and why they're making the claim and why isn't there enough for them t permitted to take the next step to determine the evidentiary support to close the gap that you're saying they must close to get around nor pennington as opposed to having depleted on the face of a complaint how would they know without conducting discovery precisely what other the they're able to allege by external circumstances i think i think they could they shouldn't follow lost unless they have a lead a factual basis portion of the district court apply a heightened pleading standard by her own statement in the record so that it doesn't generally apply but you do have to plead with more specificity because of more panicked so i'm not sure she was applying our our case line to stand but i looks like it was the rule nine type of analysis as opposed to the rule eight type of analysis and that's what it concerns basis before you bring a lawsuit to return to judge which was first question you asked whether or not you thought in a heightened pleading standard should be applied your answer was you don't need to reach that am i to take it that you're not defending the district court's application of the heightened pleading scanner now we do in our brief with you we do believe that the first amendment is not irrelevant at the pleading stage as was stated by just because instantly in his opinion the the e i think that when on the face of the complaint first amendment first and then meant protected conduct is alleged then i think it is not there's nothing in ru that requires this court to not require some factual basis to counter that defense that appears on the face of the complaint that they have must have some factual basis for doing that for the questions i have very little time left just throwing up comments this case was not brought lightly and was brought after several years of observation with respect to specific conduct by mr shaw on these issues those are  point there this is not an isolated instance where an individual was engaging in the position in conduct with the government and got sued ford for some very specific instances that were played there's actually no reason that this feminine couldn't have proceeded with a motion for summary judgment of the case is baseless as he claims it was and and that probably would have been the proper procedure under the circuits current pleading standards from the questions i think the court clearly understands the issue there's that there's a sort of start positions here our position is that under these circumstances a claim has to lie that the government at a governmental actor governmental fishel cannot on specific issues simply give up his power his authority to decide government to make government decisions even on zoning points and and that's what we believe happened here but is i think the secondary question on your i'm awful delegation did and we had to make good decisions along the way for economic and other reasons and ultimately the case was dismissed against the city but where we are today is looking at whether or not when the case was clad and when the matter was dismissed by the district court just report follow this cour