with me today the heel here was taken and is now clarified as against the dismissal of the federal under color of state law and their individual capacities and as outrageous as this might sound and if we only had a chance to prove that by him between the police chief the port director  in the city of san the ways are very small with a fascinating history a beautiful town on a beautiful city at the vanguard of trouble in america as your facts relate this was getting off work july two thousand and two ten months after nine one one at a time when neither customs and border protection nobody had their act together mind we'll say that i hope that's not outside the record but i don't relying on state law says i find that there is probable cause that you committed the crime and we find that almost incredible and therefore she administrative counsel we've read the briefs and we understand the facts but we also understand what we have to decide here and the decision was made by the trial court the department of homeland security cannot be  been in afghanistan but we have a very narrow issue here having to do with whether or not the department of homeland security and then some of the agents can be brought into court can you help us with that yes if these agents in the department of homeland security trode are schwamm of the person who is going to testify at his criminal trial i your honor the soldiers and sailors act at once and at the beginning we allege in the complaint that one of the reasons motivating the federal and the vigils and the state individuals are in the city under the job as you phrase it so that doesn't sound like individual past it sounds like official and later in the pleadings and i i will not belabor my own argument but your honor i'm telling you later in the pleadings and it became clear that these persons were acting in their individual capacities that they were on the under aspirating under state law now whether a federal official acting me to be more of the subject i believe to amend and clean that up but the but the gravel none of the facts alleged jets please went to all kinds of individual actions on their own the we didn't get is a basic principle that the complaint may not be amended by briefs in opposition to a motion to dismiss nor can it be amended by briefs on appeal the plaintiff failed to amend his complaint and cannot now argue a case that was not presented to the district court that's a cite from a seventh circuit pena's in thomas and vs not true that's what we have that is being attempted here on brief there are allegations of racial discrimination the district court found there were no claims of racial discrimination in the the court has asked whether or not this was play out as an official capacity suit and the answer from the plaintiffs counsel is yes but perhaps an error and now the plaintiff had almost six months to amend his complaint after these issues were joined he did not and the the rule fifty four certification was not issued by the district co to the department of homeland security the customs service no waiver of sovereign immunity or constitutional claim the district court official capacity indeed if you look at the relief that's requested at page twenty seven of the complaint the only relief that's requested against federal defendants is against the department of homeland security the district court in its disposition of this case was quite correct the district court all correctly noted that the provisions of the civil service reform you wrote again on the issue in a case called blankenship vs mcdonald case involving a court reporter givens action against a federal district judge in the court of the court indeed you wrote are on a panel in the suspension letter that's attached to the complaint mr della tourist one of my clients was quite clear about the relief that was available to mr cuevas merit systems protection board union grievance procedures even filing in ito see if he thought there was any discrimination notwithstanding that relief that's available on the civil service route reform act he chose to bring this law i have found no ninth circuit case indicates that there is a waiver that you need a waiver for suit under one three three four there are cases from other circuits i think the be one in which we've taken that's correct ok thank you thank you thank you decision was made by appellant to appeal the decision of the court below with respect to the federal defendants that was the teach it decision at all times the city of san luis defendants  that adversely impacts those persons the allegations were pretty much the same and if they were an artful with respect to that city it seems to me that this record was disingenuous when in fact it said o