richard riley on behalf of the appellant dr cathleen your neck my client is a public university professor who has been walled off from broad swaths of the show faculty members only because she declines to join an expressive association as a result my client is categorically forbidden from her to supporting on a host of official committees that determine everything from whether an expelled student will be readmitted to whether a study abroad program will be funded ritek spare funds to whether a proposed crickey change will be approved to whether a candidate for an executive role in the university or in the system will be hired and you're going to whether a given parking ticket will be deemed wrongly issued and so much more these committees are government jobs committee members receive employment credit for their work and compensation and these committees do the government's work there could be no serious question that i cloud state university and all these various tasks through positions traditional employment label like parking appeal officer or change officer it would have still conditions clear i think we can start with paragraph four in the complaint which my friends on the other side to climb to even mention and that's at appendix twelve dollars thirteen which describes that that the defendants have quote negotiated special preferences for union members including preferences that tilt the scales in union members favor in such matters as tenure and promotion decisions this system unlawfully allocate state granted benefits and state imposed burdens on the basis of political association that is a substance of unconstitutional conditions and my friends on the other side simply argue that because the words unconstitutional conditions do not appear in the complaint that it's not there that's exactly the position that the supreme court summarily reversed in the johnson versus city of shelby mississippi case where the a reference to section nine hundred and eighty three can complain and the court reiterated the rule which has been recognized in this court in many many many times and in cases throughout the judiciary and there is no theory of cleaning requirement under the federal rules of civil procedure that's a field code requirement that's been gone since before nine hundred and thirty eight in the under the federal rules of civil procedure the question is the factual on tent of the complaint and whether that so let me answer that two ways st i want to give you the paragraph where that is and then nd i want to emphasize that we have a very odd posture here where that's not actually an issue but let me speak to your question st paragraphs twenty seven to thirty eight describe the the committee's where where they originate from where in the collective bargaining agreement that the parties the defendants have agreed to permit the union to  they decide which candidate will make it to the final round in the administration is required to choose from those candidates let's engrafted into the government so all of those facts are there and then we have  accounts at the end paragraphs sixty one through sixty four and we have a multiple points in our prayer for relief asking to end the discrimination but i think there's a nd point that's really important here which is that the defendants have forfeited any type of twamley and all challenge to the sufficiency of the allegations because they moved for summary judgment and at that stage my client is absolutely entitled to respond with evidence and so it's not unusual at all that the evidence would outpace the pleadings in the case we put on substantial amount of evidence demonstrating that these committees do the government's work they're not simply speech forms as in the ny case their employment forms as in the ohare truck services case and there's no evidence on the other side my friends on the other side presented no evidence about the uniform curriculum committee which makes the curriculum choices about the parking appeal committee about the search committees and so on and so forth and yet they insist that my client the no moving party is restricted to her to her complaint and they get to rely on nine declarations that the union filed which largely had information pertaining to count one has very little information on  court is the summary judgment record which includes the evidence that we have put on if i may unless the court has further questions about the procedure and we do have other procedural arguments that i don't think the court needs to read them including about amendment that doesn't need to reach them seasoning including about amendment but i would like to turn to the merits unless the court has further questions on procedure the ohare truck services case and the will bonzi county commissioners case make eminently clear that the state law label all of a position is not what's relevant the question is whether a position does the government's work the state can call it an independent contractor can as in this case use the label meet and confer which is the relevant under the state employment relations act called and that's not what the federal court looks at in determining st amendment rights the question before the court is whether these committees do the government's work whether it's a formal employment relationship or not is relevant and i think there's two parts to that test the st question is whether there is government work at issue or whether it's private work and the nd question is whether the committees perform the government's work or whether they simply provide a forum to talk about the government's work done by others and that's the distinction between this case and the one case here we put forth substantial evidence at the summary judgment phase before discovery establishing that the answer to both questions here is in the affirmative as to whether it's the government's work there can be no serious question that the decision of what curriculum to use or who to hire for positions or whether to readmit and expel a student or entertain a gr appeal or award an honorary doctorate and so forth springs from a rises from the government's war in operating a public university just like in the us don't count so i do i do have a question and i understand your wanting to get to the merits of what i understand to be your count to correct that that's right your honor and it seems to me that the person that the procedure sort of overwhelms this if you know if you're arguing your summ judgment motion really to us at this point because of the way the district court handled it and really determined that you had not raised that i understand that there's been a motion to reconsider a ruling is that is that what you're getting at or are you getting at his summary alternative holding in our own where are you targeting this merits argument well i think we have four places we're targeting it i think we get to the same place on the merits all the same the st is that summary judgment the court has to take our side of things not their side of things so that's really rule number one and that alone i think because remember we the court converted it and i'm not asking the court to rule on summary judgment that was the district court's decision to convert the case to summary judgment that's how this comes package to this court so that's point one dollar is that we've we also presented the material a a basis for indicating that an amendment to the complaint wouldn't be futile and we said to the court that it had a problem with our complaint because we recognize we had a lot more information largely due the o your where we developed facts with the other side in an effort to stipulate to to arrive at summary judgment without discovery so we had more facts to present and we told the court this information can be put into the complaint through an amendment and we said that before judgment now my friends on the other side says tell you that that doesn't count but there are over reading their cases dramatically minneapolis firefighters case the clayton case and the nova starr financial securit case also say that it's not appropriate to simply say in a brief we could amend without providing the content of it and then but we did provide the content of an amendment so this case is really like versus missouri department of corrections where this court reversed the district court's failure to entertain that information that was provided in response to a motion to dismiss the other side is not even cited that case in their briefing so we're more like that we provide the content i'm told the district court before a judgment that this information could be added to the complaint if there's a concern about the complaints because remember we're also fighting a motion to dismiss so we're trying to fight this case o the the next point that i want to make course is that we did renew the request after the judgment to rule fifty nine dollars which the supreme court's decision and foam and the davis says is an appropriate vehicle to implicate the rules of the standards of rule fifteen and that was another flaw in the clayton case in the minneapolis firefighters case and then over starr financial securities case there was a failure to do that and the court emphasized that failure we didn't fail in that way we provided it we provided the ame so our position there is that it was an abuse of discretion not to consider at least at that point but again you don't have to get there we can win on point number one for this court to reach the merits of our climb good morning please the court time brennan cummins representing appellee enter faculty organization dr an explorer here really isn't with judge magnus's decision below is with the supreme court's holding d in night the supreme court held the night that exclusion of nonunion faculty for meeting confer committees under the minnesota pella does not violate the st amendment that holding is precisely on point and requires  condition in one the majority opinion rejected the unconstitutional conditions theory which was squarely presented to the court in a supreme court briefing in the district court opinion and in justice brennan's dissenting opinion now that the theory is premised on the argument that meeting confer committees are supposedly a an essential job condition a government benefit or even a government job because of their significant influence and the central role they play in university affairs therefore the exclusion of nonunion faculty supposedly creates pressure to join the union but knights majority opinion rejected this theory stating and i quote it is obvious and have no legal consequence that the meeting confer process is the only significant forum for the faculty to resolve hurtfully every issue outside the scope of mandatory bargaining it's resulting in virtually every issue outside the scope mandatory barring that's the core of appellants complaint here that's a core fact that was found by the district court in night and it's the essence of the unconstitutional conditions argument supposedly making this a government job now the courts and this is of no legal consequence for three different reasons st exclusion from teller's mean convert process places no restriction on the right of nonunion faculty to speak out communicate directly to the university administration in the very same subjects as meeting confer committees and associate or non associate with whomever they please including the exclusive  representative nd the supreme court recognized that the union's meet and convert play a union representative role they act on behalf of the majority representative to express the official collective position of the faculty in the court's words they are not doing government jobs  public it makes no sense to have someone who's opposed to the majority representative speak on its behalf rd the supreme court acknowledged the pressure that nonunion fact he may feel to join the union but found that the pressure was inherent in a democratic system like colorado that recognizes a majority representative the court explained and i quote the pressure is no different from the pressure to join a majority party that persons in the minority always feel such pressure is inherent in our system of government it does not create an unconstitutional inhibition on association of freedom democracy does not violate the st amendment now turning to the procedural issue of whether appellant pled in unconstitutional conditions conferred committees and alleges that quote these rights discriminate against the plaintiff and others who declined to associate with the union now saying these rights discriminate is not the same thing as saying that tell replaces an unconstitutional condition on government employment or government benefit now paragraph four that appellant has cited to refers to negotiating special preferences that's part of the me to negotiate process this complaint challenges to procedures expose representation and meet negotiate process in the meet and confer process and negotiating special preferences has nothing to do with the meeting confer committees and the right under poa to appoint union members to meet and convert committees that paragraph four does not state in unconstitutional conditions claim this complaint is lead as a challenge to exclusive representation in the meeting confer and negotiate process and a series of harms that allegedly flow from exclusive finely your understanding of the difference between counts one and counts two based on a reading of the complaint sure that's a very good question so those counts are almost identical  it focuses on exclusive representation and in the meeting confer process only and suggest that these rights discriminate what that means i think can be inferred that it refers to exclusion from the meet and confer process is discriminatory that's really the essence of it exposing for the process is discriminatory and i don't i don't think the complaint does a good job  of making clear the differences but i think that theory of discrimination is really the difference and that is directly addressed in night it's was in the supreme court briefing we put that in our grief and the court rejects that argument this court's explained that post dismissal motions to amend or particularly disfavored when the plaintiff was put on notice of the need to change the pleadings before the complaint was dismissed but fail to do so the plaintiff recognized the shortcomings in her complaint here and the risk she ran in proceeding without amending her complaint to the point where she declared to the court and her opposition to the dispositive motions that she quote elected to litigate these motions rather than amend at the outset she elected to litigate rather than a men this was a deliberate that's or responsibility not to do a test run with the court and get advice re opinion about whether or not the complaint should be dismissed and then amend afterwards helen says likely that unjustifiably delay because case is in it in any event the district court properly exercised its discretion to deny the motion to amend because it would be futile nice directly on point whether i apologise is allowed to characterize your claim is unconditional unconstitutional conditions or not i  it rejected the unconstitutional conditions theory the bottom line is knight controls this case same case separated only by a few decades accordingly this court should affirm the district court's campion thank your honor may it please the court my name is jacob campion i'm an assistant attorney general for the state of minnesota and i'm here on behalf of st called state university and the board of trustees for the minnesota state system i'll be quick as you've seen in the briefing arguments substantially overlap with the i have photos one point that i emphasize is something that this court said in your men this court said if you give not a fair reading you'll see that there is no meaningful distinction between this cait case and night and the same thing is true here with respect to count two county who says that they are challenging meeting can for rights under minnesota law that's in paragraph sixty one dollars and that they're challenging the  just legal theory in paragraph sixty two to sixty four is that these rights discriminate against those who declined to associate with the union we showed you where in the brief the challengers and i used that exact same language and they also repeat their argument from count one that it attributes the union speech in petitioning to nonmembers and restricts plaintiffs speech and petitioning and that's the same as count one and fails the same reasons articulated in nights when they address claim and beermann when they addressed this claim as to this unconstitutional conditions claim it wasn't plowed it's just not there what they're trying to argue now about compensation our work time and the district court has considerable discretion to deny this type of gamesmanship and it's clear that it was gamesmanship it's right in the twenty six f report that this was the plan all along to oppose the motion to dismiss and if they fail isn't isn't that sort of what what she's saying is that the meek confer leads to the committees which is a valuable position within the university if she was still saying meet and confer then that's completely bound by night but what she's saying now is that these committees aren't even meeting conferred which directionally contradicts what her complaint says says no we're not challenging mean confer we're challenging committees and that just wasn't planned in the court has considerable discretion to deny that but even if the court were to consider it it's still futile again based on a fair reading a night that the essence of the claim is the same we have the same types of committees that sweep across all issues of governance they reached many issues integral to the fresh function of professor and that the professors considered it essential that was all in night the cover budget curriculum new courses organization facilities accreditation student affairs fiscal planning administrative review and hiring those that was all in night and that they have the same function that the pla about now it's clear from the district court decision and the u s supreme court decision that those committees didn't just discuss issues but also resolve them and that is what is her principal complaint is now and they made the same argument we've shown you where in the district court tried to reason that this was precisely excluding nonunion members was quote precisely an impermissible condition of employment and it's also in the challengers brief in night talking about conditioning condition of those individuals receipt of government benefits this is all covered by night and if you give night a fair reading as you did in behrman it's clear that there is no meaningful distinction to be thank you your honor i want to make two points beginning with night it is absolutely clear that in the night the media intern for challenge there were forms for union speech every single argument including the argument at footnote twelve that mr commons read was met by the argument that there is no constitutional right for an audience with the government there is no statement of fact that my friends on the other side can point to that says that there is actually a government power being exercised here in all of the me and prefer committees there was only speech there is a material dispute of fact in this case as to what the meet and confer committees challenge here do or at least some of them i'm sure there are some committees at the university and in the system  are forms for speech we are not challenging confer our position is that the label is not relevant just as the supreme court tells us in the trucking case and many other president the court has to look to the substance of what some of these committees are doing and what they're doing is giving a vote to an actual piece of the the power of the university and in some cases like the faculty association committees there's not even administrator there there's not speech to the administrator because the only people on the committee are faculty members they're voting on it they're deciding it and in many cases there's not even an appeal right that is result in that committee there is no evidence on the other side of that question and even if there were that fact question has to be resolved in our favor on summary judgment i want to address briefly the complaint my friends on the other side are just not reading at paragraph sixty one explains that the committees as a practical matter exercised substantial influence over the affairs at the house that university and the agreement violates the plaintiff rights that's referring back to paragraph twenty seven another paragraph that my friends on the other side refused to read that addresses where in the agreement the right not just to meet and p