good morning ladies and gentlemen our first case for argument this morning is running against  ryan's complaint and denied her leave to file a proposed amended complaint which laid out that the girl scouts are primarily a social and educational institution which receives federal funding which thereby submit them under the jurisdiction of the a i'd like to begin with just a couple relevant facts is running twelve years old time the complaint was filed today she's fourteen she has always been a girl scout for five years the girl scouts provide interpreter services for those communicate of services allow her to fully participate in all the girl scouts activities and become a functioning member of the community summarily the girl scouts change their policy and said no more interpreter services that's what brought meghan running into this court she filed initial complaint in which she raised issues about the girl scouts in this treatment under section five zero four the rehabilitation act the district court granted a motion to dismiss which the issue of do the girl scouts receive federal funding as a whole that was the issue framed in the motion to dismiss in their reply brief a motion to dismiss for the first time they raised issues with respect to an educational or social the district court granted us leave to file the server reply to address those and then to miss the case you've taken judicial notice that the girl scouts are about cookie sales and that cookie sales in of themselves are certainly not a social service the district court for also found that there was a private as a private organization the girl scouts were not subject to the a t f i just want to let me ask you a couple of procedural questions if i could and maybe it's just my confusion about this but after that decision you filed a rule fifty nine emotion that's correct and i know the piece of paper that the district court entered was called to judgment but it certainly wasn't a final judgment and i'm wondering why you didn't just file the fifteen a to motion to him hand because based on our reading of that judgment and the word judgment there and as we looked at apple case law we believe that will fifty nine was the appropriate way for us proceed we didn't you didn't think that you had an appealable judgment that you do what we we thought that we had the choice of either appealing up to this co or seeking to a matter that was the way we understood interpreted the judgment that was entered by the district court i mean we're talking about the october twenty sixth two thousand and twelve first ruling on the most chefs correct or off you know i'm not sure why a separate piece of paper was an issue there because that was not a judgment that confusion either i'm confused or there's a lot of other folks confused in this  resonating with for example the district judges later application of the more stringent rule fifty nine he stands for your efforts to correct those problems that's correct which i don't think apply at all i think it's a fifteen problem let me ask you do any of the issues in this appeal as far as you can tell involve subject matter jurisdiction they don't however coincided rather closely with the ball which only adds to the potential hazards here but why didn't you try to just before pure complaint so in response to the motion to dismiss well first of all the original motion to dismiss simply raise the issue of funding as a whole it didn't raise the other issues until the reply very well it all you had said in your initial complaint was simply there are federally find there federally funded not have had to i am just curious as to why you chose to wait we believe that the allocation they received federal funding was sufficient because at that point that triggers jurisdiction under the yet that it became a that the original complaint was deficient to plead coverage under the rehabilitation act we believe that by pleading that they receive federal funding we fall within the rehabilitation act the district court disagreed which is why we sought leave to amend the judgment under rule fifty nine as opposed to real quick and i'm asking you your position on appeal you're not defending the original complaint i didn't see that anywhere around here we're not ok so it was incumbent upon you once you were on notice that the allegations in your original complaint were deficient either amend within that twenty one day window that the amended rule fifteen provides or defend against the motion to dismiss but then you kind of take your chances that you're going to be outside the window for an automatic amendment if you lose what with the issue that we're now addressing in terms of the automatic amendment wasn't the reply brief was filed twenty three days that doesn't matter the rule is what it is and it's your responsibility to comply with it right and i believe we did comply with the rule we chose to defend the complaint before judge line of whatever until march seventh twenty fourteen but it's called the judgment spoke with yes it was called the judgment and that's correct we chose to define the complaint before judge line of work and the rules don't say that you if you choose to defend a complaint you automatically don't have a right to a man i mean yes that is act exactly what the rule now says well you know i would you have twenty one days from the filing of a motion to dismiss to automatically amend if you don't do it within that window your automatic right to amend expires and you have to seek leave of courts and yes that's liberally granted and so forth but you didn't do that until your were fifty nine emotion and you're not contending as far as i understand that that judgment wasn't a judgment even though it may not have been but you know you don't take that position and i would not take a position the judgement wasn't a judgment however we weren't on notice with respect to the motion of a pleading problem until twenty three days after the motion she filed which is outside that doesn't matter if you've got twenty one days you know regardless of whether you've been put on notice as to all every single deficiency in your complaint once that motion is filed by the defense you've got twenty one days to amend otherwise you lose the automatic rights and you're in the permissive belief that we are in the permissive sphere and you're not only in a permissive sphere because you combine the motion for leave to amend with the rule fifty nine t motion and you don't challenge that were in the domain of rule fifty nine leaning now apparently  you're under a much more stringent standard of us or review for our purposes and and a much more stringent standard for the district courts exercise of discretion we may be under more stringent standard review but we meet that standard of review and other opinions with respect to that issue i mean here we can time the judge lining whatever area and not considering the full aspects of the proposed amended complaint again whether we look at it under rule fifteen eight two or  fifty nine we still meet that minimum standard because the court required to take a look at the clays i mean the court decided it would be futile for us to a man but in doing so he didn't consider the panoply of evidence that we presented including from program for girl scouts seems implausible but but you see a lot of implausible pleading but it goes by the way the girl scouts to find themselves and that's what the issue here the girl scouts have never denied that they provide educational social services and that's why we can get to the merits of any of this now because we've got a civil procedure question here that precludes it or it seems to me it probably precludes it because we're evaluating the sufficiency of original complaint will fifty nine emotion for relief from the judgment dismissing that complaint and you don't r q that your original complaint was sufficient but i don't believe that we need to make that argument now because under rule fifty nine a the court should take you have to you have to show a manifest error of law our newly discovered facts and you didn't meet that standard that's what the court helped write and were contending that the court and not permitting us to file the proposed amended complaint and that was afterward but but but it's important to look at the court's opinion on that because the court allowed us to file an amended complaint but the court restricted it to the issue of on the whole and you're not challenging no we're partial matter of complaint and not allowing the full month complied that's the issue that we've put before this court so and look at that way it is squarely before the court and it was an issue that we raised by law and that and again  district court's opinion and which he allows is there some reason why your brief doesn't challenge the district court's initial ruling that the complaint was deficient now because we're trying to simply focus on the court denial on the court's denial of us leave if you were challenging that ruling on of judges sykes's problems would be working with them they might not here are there but there are lots of ways to win this case you seem to have chosen the hardest and perhaps they the ones that don't work well again maybe you view that as a great intellectual exercise but not we were looking for intellectual gymnastics or mental gymnastics or to make it occasional exercise even to social services exercise what we're looking to do is find a way for meghan running to have a day in court and work with quit for quality national social issues from national association for the deaf we identified this is the way to do it opinion you put your eggs in the basket where you provide that provided the most elaborate factual aberration concerning the educational and social aspects of the girl scouts well let me ask with respect to this if some of the tactical questions here the legal questions on the merits are questions of if not first then maybe so second or third impression we're not talking about well worn the rehabilitation act is applied to two private organizations like this and i'm i'm i'm wondering whether it might not have been perfectly reasonable to say well let's wait and see what the district court has to say about how much is necessary here  and learn some things as opposed to just it's not like fixing a an obvious error which which can be done and should be done very quickly that's the comment more than a question you know my time about mr blatter we've run you through your time so we'll give you a minute for rebuttal and thank you when that time comes  because the initial complaint was woefully inadequate and why was it inadequate i don't worry what my problem is the district court's view seems to have been that the united states federal courts have a system of code pleading in which every complaint has to set out each legal element of the claim and then plead some facts corresponding to that legal element is not a fair statement given i don't believe so your honor because if you look at the two allegations that tried to establish that the girl scouts were under the or subject to sex to file for the rehabilitation there was one factual allegation defend its major donors include the state of illinois department of human service the complaints did wedge what the district court caught to be a legal element that is there or they be an educational or social service etc organization or they were the reason i'm asking my question is is that in one nine hundred ninety one this  expressly rejected that approach to pleading the cases market way against rush hour eighty which nobody cited and two months ago the supreme court of the united states in a nine to nothing decision away and they reversed the fifth circuit which had held their complaint was properly dismissed for failing to plead each element and then put a statement of facts opposite the element that seems to be a pretty big problem with the district courts approach it's been deep sixed by the supreme court of the united states your honor this complaint if you look at the complaint the factual allegations only  girl scouts to section five a four is that defendants major donors include the state of illinois department human services the united states department jasmine's and the city of chicago through a committee but what branch then there is a legal conclusion that defendant is a and have not changed that rule they have not required code pleading in which you have to plead every element and put a statement of facts opposite that element and i agree with you they don't but if you acknowledge that you agree with the supreme court th question the question is why that doesn't require a reversal of the district court's decision because it does not well number one it wasn't challenged it as a challenge in this court case that they've waited that's the first  everybody's been working on of under a fair amount of procedural confusion here but keep going in the second thing is i do not believe under any of the precedents that this one fa statement is sufficient they don't say that look play what one of the supreme court has held is that you have to plead your claim in a way the defendant can understand you don't have to plead facts the prove each legal element the claim here is perfectly comprehensible that the plaintiff wants to be in the girl scouts and wants a sign language interpreter that's the understandable claim that wasn't even necessary bartha way and johnson to mention the rehabilitation act you don't have to say and here's the legal theory under which we win or you have to do is plead your claim was there any doubt in the girl scouts mind what this is contrary to the law this circuit and more important contrary to the last album by the supreme court you have to plead facts that put you under that law you know you don't that's the holding of barclay and johnson ok well and you're you know the way this case set up in this appeal i would say no because as an article three court ok this court has the ability to your determine whether you're whether this is falls under the rehabilitation act in hindsight was probably in there with casey suppose the proposed amended complaint had been the original complaint in your view would there have been any pleading deficiencies with it it's a much closer case and based on  serve judge easter books are i'm asking you in terms of your theory your understanding of it is a pretty clear it is i mean the pleading standard is fairly low and so i would say would probably have met the of based on futility there ok then i guess on the on the amendment question my concern is that your position seems to undermine the instruction in ru fifteen a to we all agree i think that there was no automatic right to a man and after the twenty one day period passed from your motion whatever theories were raised it but we've also got fifteen  to give leave freely when justice requires and it sounds like justice would require it if you in the district judge thought the original complaint was insufficient but the amend proposed upon and i was looking through the at least the appendix but there is another piece of paper out there that evidently didn't get in here that did say final judgment and it said case closed and the docket she says case closed believe it or not that's what it says but we haven't been provided i don't it doesn't appear to be as i was looking through as it were at during the mr blinders argument judgment was entered in october was then superseded that's not the way forward ok so so then the final judgment would have only been in march but there was a judgment entered at the time has given us that that's that's correct one of the things i wanted to address was mr blonder comment that he wasn't put on notice in our memorandum in support of a motion to dismiss he said because the did not allege and her complaint that the girl scouts fits into any of the other categories set forth in section five zero four be nor could she as courts have recognized that the girl scouts and similar organizations are private club then in her opposition brief not her so reply she sets played up has alleged and can establish that the defendant qualifies as a private organization which is principally engaged in the business of providing education social services defend it as a programmer activity receiving federal financial systems because it is a private organization which is principally engaged in the business of providing education social services defend it qualifies as a programmer activity as it is a private organization subject to twenty nine u s c seventy nine four of the three that is principal engage in the business of providing education health care housing social services or parks and recreation defendant meets the requirements of a program or activity as defined in twenty nine u s c seventy nine seven ninety four b three a roman at two because the organization is principally engaged in the business of providing education for services as a result defendant falls within the statutory definition of a program or to vittie because it is principally gage in the business of providing education social services to its members this was in their opposition brief they knew exactly what they were going to do what they needed to do and they did not do it this case if they are contesting whether the girl scouts are actually primarily engaged in education health social services and recreation progress what do they do they are a private organization that that exists for the benefit of its members to build girls of courage confidence and character you scouting isn't education there are educational components or social service components there's all sorts of other components are held meetings there's cookies sales there's lots of stuff lots of stuff so why aren't you close kind of right down the middle of the strike least yes sure i mean our our position is is that the purpose of this inclusion and the amendments to five o four were to we don't start with the purpose of something then recreation because they are not going to be fishing to do all those things and be very proud of it for you running from it while not running from it but the language is principally engaged in the business and they are not principally engaged in the business any one of are principally engaged in for the benefit of their members which girls pay a fee so it's not necessarily open to the public and it's only girls that to build girls of courage confidence and character that's education that's partly education but it's partly other things as well they are church meetings they do merit badges they do and i'm this is an educational experience you can make anything an educational experience know i don't think so not neiman marcus well maybe not i guess unless you're trying to budget right not the not the the sale of cookies even through other life i mean i understand what you're saying and why you're saying it but what do we make of the way the girl scouts describe themselves for purposes of the united way in the combined federal campaign and for federal tax want to go back to question judge sykes asked and i went back and looked in the record as we were going through in our motion that was filed on november twenty first two thousand and twelve which we are which we contend the district court fundamentally arrogant granting we asked for i don't know i can't answer that if that's true then i'm really confused but then we've just got a simple bausch premature grant of final judgment in response to the first lead so that's  to that at least makes it a little easier to understand but then i don't understand why it's not there but i'll let it go so for now i know that my