[00:00:00] Speaker 03:
This honorable court will now resume its session.

[00:00:06] Speaker 04:
Please be seated.

[00:00:07] Speaker 04:
All right.

[00:00:08] Speaker 04:
We'll proceed to hear argument in what was supposed to be the first case on calendar for argument this morning, which is 24-7282 Carly Reinings versus Peace

[00:00:22] Speaker 04:
Health, Incorporated.

[00:00:25] Speaker 04:
We'll hear first from Mr. Jansen.

[00:00:28] Speaker 04:
But first, I'd like to hear your explanation for being late to court this morning.

[00:00:34] Speaker 04:
So you received a notice that we start at 9 o'clock.

[00:00:38] Speaker 04:
You're told in the notice to arrive early and report to the courtroom deputy clerk before then.

[00:00:43] Speaker 04:
I could have called your case at 9 o'clock, heard from the other side, and held you to have waived your argument.

[00:00:51] Speaker 04:
We did not do that because we had other cases on the calendar.

[00:00:54] Speaker 04:
I allowed it to trail.

[00:00:56] Speaker 04:
But I'd like to hear your explanation for why you did not show up on time in an argument in the United States Court of Appeals.

[00:01:06] Speaker 02:
Yes, Your Honor.

[00:01:07] Speaker 02:
I had a related case.

[00:01:08] Speaker 02:
I believe it was a practice case that we recently settled.

[00:01:11] Speaker 02:
And that was my first oral argument that I was going to be presenting.

[00:01:14] Speaker 02:
And that was starting at 10 AM.

[00:01:16] Speaker 02:
And I apologize.

[00:01:17] Speaker 02:
I confused that.

[00:01:18] Speaker 04:
Well, if you have a calendar conflict like that,

[00:01:21] Speaker 04:
you need to let the courtroom deputy know that, you need to let the other court know that you will be here and that we will take priority over anything else that you have in another court, unless it's the Supreme Court of the United States.

[00:01:37] Speaker 02:
the 10-minute start time with this start time.

[00:01:40] Speaker 02:
OK.

[00:01:41] Speaker 04:
Well, I hope you'll understand that you dodged a bullet, and I will allow you to have your argument.

[00:01:48] Speaker 04:
But something like this must never happen again.

[00:01:52] Speaker 02:
Yes, Your Honor.

[00:01:52] Speaker 04:
OK.

[00:01:53] Speaker 04:
All right.

[00:01:54] Speaker 04:
Then you may proceed with your argument.

[00:01:58] Speaker 02:
May it please the court.

[00:02:00] Speaker 02:
My name is Paul Janssen, representing the appellant Carly Ridings.

[00:02:04] Speaker 02:
I would like to reserve two minutes for rebuttal.

[00:02:11] Speaker 02:
This case presents a situation of clear error by the district court.

[00:02:18] Speaker 02:
My client had a religious exemption that had

[00:02:21] Speaker 02:
about five Bible verses is clear religious.

[00:02:26] Speaker 02:
The content of that exemption contains so much documentation of her religious convictions.

[00:02:32] Speaker 04:
So why wasn't any of this put into the complaint?

[00:02:35] Speaker 04:
I mean, you have the exemption.

[00:02:37] Speaker 04:
You put it into the opposition to the motion to dismiss, but it wasn't put into the complaint.

[00:02:44] Speaker 04:
Why not?

[00:02:46] Speaker 02:
Well, under the

[00:02:48] Speaker 02:
There's a case, a COHA versus OREX agent therapeutics.

[00:02:53] Speaker 02:
When you cite something, you can cite something and incorporate that document by reference.

[00:02:57] Speaker 02:
So the complaint cited her religious exemption.

[00:03:00] Speaker 02:
And so under Twonbley versus Iqbal, all that's required is basically a very simple statement of just sufficient to show entitlement to relief.

[00:03:14] Speaker 02:
And under the UC versus Abercrombie decision, the Supreme Court held that that standard was very low.

[00:03:21] Speaker 02:
Even simply providing just someone walking into the room with a hijab was sufficient to put the defendant on notice that accommodation might be required.

[00:03:32] Speaker 02:
Here, not only does the complaint allege that she submitted a religious accommodation, it also alleges that the defendant's

[00:03:39] Speaker 02:
received that accommodation and accepted it and said, yes, we're going to accommodate you based on this religious exemption, and your accommodation is indefinite on paid leave.

[00:03:50] Speaker 03:
Your answer is a bit of a shift from Judge Collins' question.

[00:03:55] Speaker 03:
I think it starts really with the incorporation by reference doctrine.

[00:03:59] Speaker 03:
If we agree with you that the incorporation by reference doctrine applies in this case Don't you win win the case because you have much more in that document than the complaint Absolutely, okay, and you say that's that's something that we should consider and hold that the incorporation doctrine applies absolutely, okay, and

[00:04:23] Speaker 02:
Even if the incorporation by reference doctrine does not apply though, we still have sufficient basis to win here because, first of all, the EEOC versus Abercrombie substantially lowered the pleading standard to plead religious beliefs.

[00:04:42] Speaker 02:
They eliminated the explicit notice requirement.

[00:04:45] Speaker 02:
So any kind of actual constructive or inquiry notice is sufficient to put the defendant on notice of a person's religious conflict with an employer requirement.

[00:04:53] Speaker 03:
And are you taking Detweiler into account in making your argument?

[00:04:57] Speaker 03:
Yes.

[00:04:59] Speaker 02:
So Detweiler, first of all, Detweiler dealt with a specific situation where someone was

[00:05:09] Speaker 02:
Essentially, they had an objection based on carcinogenicity of a nasal swab test.

[00:05:18] Speaker 02:
And the court said that that was a secular preference.

[00:05:21] Speaker 02:
It wasn't a religious issue.

[00:05:25] Speaker 02:
But this is not a case like that.

[00:05:26] Speaker 02:
This is a case where my client

[00:05:30] Speaker 02:
stated that she had an objection based on the fact there was aborted fetal tissue used for constructing and manufacturing the vaccines.

[00:05:39] Speaker 02:
And so in almost every court in this district that has looked at exemptions like that, they have upheld those exemptions as valid.

[00:05:46] Speaker 01:
But those district court decisions are pre-Dettweiler, though?

[00:05:51] Speaker 02:
Yes.

[00:05:52] Speaker 02:
But Dettweiler

[00:05:55] Speaker 02:
Detweiler did not deal with fetal tissue, a fetal tissue exemption.

[00:06:00] Speaker 02:
Detweiler dealt with an exemption that was about, that was alleging body is my temple.

[00:06:06] Speaker 02:
The argument.

[00:06:06] Speaker 01:
But we wouldn't, if we don't consider the request, we wouldn't know the basis that's based on fetal cell objections, right?

[00:06:16] Speaker 02:
So if you don't consider that request, then we would have to consider whether the court erred in granting leave to amend to consider that.

[00:06:26] Speaker 02:
And I believe the court...

[00:06:29] Speaker 02:
basically looked at the religious exemption and said that amendment would be futile because the religious exemption was insufficient.

[00:06:39] Speaker 02:
And so that's certainly problematic that the court would grant the motion to dismiss and then not allow leave to amend and not allow the introduction of that.

[00:06:50] Speaker 04:
Do you specifically ask for leave to amend in your opposition?

[00:06:54] Speaker 02:
Yes, my understanding is we ask for that every time.

[00:06:59] Speaker 02:
But even if we hadn't specifically requested that, that would be something that the court should have allowed.

[00:07:06] Speaker 02:
And it would have been an abuse of discretion not to allow amendments, specifically because that highly detailed per-legis exemption was presented to the court in the process of the motion to dismiss pleadings.

[00:07:20] Speaker 03:
And do you feel you've preserved the argument about leave to amend in your briefing on appeal?

[00:07:25] Speaker 02:
Yes.

[00:07:26] Speaker 02:
So there's some specific case law on this that on bulker versus commissioner, 760 F2D 1039, Ninth Circuit 1985, where, for example, if there's issues that are purely legal, whether

[00:07:47] Speaker 02:
For example, whether the exemption letter may be considered or whether the complaint states a possible claim or whether amendments should be allowed, then those issues can be brought in a reply brief.

[00:08:00] Speaker 02:
Also, they respond to the issues raised in the answering brief.

[00:08:07] Speaker 02:
So the defendants in their answering brief stated that the exemption letter should be ignored,

[00:08:15] Speaker 02:
They said that the state complaint lacks factual detail and die while it requires dismissal.

[00:08:21] Speaker 02:
So the response and the statements in the reply brief were responding to that.

[00:08:29] Speaker 02:
And finally, the case law that they were talking about is distinguishable here because whether or not an amendment

[00:08:41] Speaker 02:
a judge should have granted leave to amend rather than just simply dismissing a case with prejudice.

[00:08:48] Speaker 02:
That is inextricably tied to the fundamental merits arguments of that motion to dismiss.

[00:08:56] Speaker 02:
And so the case law they were citing was involving, you know, bringing brand new arguments about totally different claims or legal reasoning.

[00:09:08] Speaker 02:
And so that case is distinguishable.

[00:09:12] Speaker 02:
And finally, the Ninth Circuit does favor striking arguments absent prejudice.

[00:09:19] Speaker 02:
So, United States versus ULA 976 F2D 509, page 514, Ninth Circuit 1992.

[00:09:31] Speaker 02:
So, the court should be reticent to do so.

[00:09:41] Speaker 02:
Finally, looking at Dietweiler, the procedural posture with Dietweiler currently is that there's a petition for en banc review pending with Dietweiler.

[00:09:52] Speaker 02:
And I would encourage the court to review that, but also I want to point out that

[00:09:59] Speaker 02:
First of all, it talks about body as my temple exemptions, not fetal tissue exemptions.

[00:10:06] Speaker 02:
And there's about, basically, 50% of the exemptions in these types of cases, which we've litigated a lot, were body as my temple exemptions, where the person is saying, look, I believe my body is the temple of the Holy Spirit, and I believe there's, that the vaccine is going to harm me, and so therefore I can't take the vaccine.

[00:10:26] Speaker 02:
The other 50% of those exemptions were,

[00:10:29] Speaker 02:
I think the vaccines have more manufactured or contain fetal tissue and so I don't want to take the vaccine for that reason.

[00:10:40] Speaker 04:
Okay.

[00:10:40] Speaker 04:
Do you want to save time for rebuttal because you have under two minutes left?

[00:10:44] Speaker 02:
Oh, yeah.

[00:10:45] Speaker 02:
Okay.

[00:10:45] Speaker 02:
I apologize.

[00:10:46] Speaker 02:
I do want to do that.

[00:10:47] Speaker 02:
I just want to make sure I do a couple more arguments here and then wrap it up.

[00:10:53] Speaker 04:
That's your rebuttal time.

[00:10:55] Speaker 02:
Okay.

[00:10:57] Speaker 04:
I suggest you save the rest of your time if you want it.

[00:11:00] Speaker 02:
Okay, yeah, I just want to address one thing with that wire and I think I want to raise the issue that it's under Larsen versus Volante.

[00:11:11] Speaker 02:
and Edwards Bartolo, Kurt versus Florida Gulf Coast Building and Construction Trades Council.

[00:11:21] Speaker 02:
These issues regarding the scrutinizing the content of a person's religious exemption raises First Amendment problems with the establishment clause, the free exercise clause, and the free speech clause because we're looking at rejecting someone's religious beliefs based on their content and their viewpoint.

[00:11:40] Speaker 02:
And that's a very serious concern in these types of cases that needs to be analyzed and considered by the court.

[00:11:47] Speaker 02:
Thank you.

[00:11:48] Speaker 02:
I'll reserve the last 15 seconds for rebuttal.

[00:11:51] Speaker 04:
All right.

[00:11:52] Speaker 04:
Then we will hear now from Mr. Gourault.

[00:11:57] Speaker 05:
May it please the court, counsel?

[00:12:00] Speaker 05:
Plaintiff's complaint contains only a threadbare and unadorned conclusion that her religion

[00:12:07] Speaker 05:
prevented her from taking the COVID-19 vaccine.

[00:12:10] Speaker 04:
Well, but the plaintiff filed an opposition in which the plaintiff also submitted a declaration that it attached the request.

[00:12:23] Speaker 04:
And it's extensively quoted in there.

[00:12:26] Speaker 04:
And then the opposition points out that you can't grant this rule 12 motion

[00:12:37] Speaker 04:
unless there's no chance it could be cured by amendment.

[00:12:42] Speaker 04:
And then the district court does this very odd thing, which is it's dismissed without prejudice and the clerk is directed to enter judgment, which is just bizarre.

[00:12:53] Speaker 04:
If the complaint is being dismissed without prejudice under ICBAL, it's almost a for sure on a first motion that you have to grant lead to amend.

[00:13:08] Speaker 04:
And I can't fathom what the district court did.

[00:13:11] Speaker 04:
Why was judgment entered to be directed without prejudice?

[00:13:16] Speaker 05:
Your Honor, I can't read the district court's mind on that one either, but I would say this.

[00:13:22] Speaker 05:
It seems on its face reversible error.

[00:13:25] Speaker 05:
It was never assigned as error in the opening brief.

[00:13:29] Speaker 05:
And we have a motion to strike that is pending before this court, Your Honor, or before this panel.

[00:13:35] Speaker 05:
with regards to this issue that he should have been granted leave to amend because the issue of whether the complaint should have been dismissed in its unadorned form where it has one sentence, conclusory sentence about religion is different from the issue as to whether he should be granted leave to replete.

[00:13:55] Speaker 05:
And one would think that in your opening brief, if you're complaining about being denied leave to replete that you would

[00:14:03] Speaker 05:
identify that as an independent issue, which it is a separate issue, Your Honor.

[00:14:08] Speaker 04:
But it's not jurisdictional, and we have discretion to notice what is an obvious, on the face of the district court, error.

[00:14:18] Speaker 04:
You cannot dismiss a case without prejudice for failure to satisfy ICBAL, without granting leave to a bend, particularly when it's in the

[00:14:30] Speaker 04:
Opposition I it just I've I don't think I've ever seen a Iqbal Grant of a motion to dismiss and then order the clerk to enter judgment without prejudice and say nothing about leave to amend that I I can't unsee it Well your honor the plaintiff had options to try to remedy that situation for instance he could have

[00:14:55] Speaker 05:
filed a motion under FRCP 60.

[00:14:59] Speaker 04:
He could have, but he could also, given that the district court stuck him with a judgment, he can appeal it to us.

[00:15:08] Speaker 05:
He can, your honor.

[00:15:09] Speaker 05:
That's true.

[00:15:10] Speaker 05:
But I don't think he's preserved that error.

[00:15:12] Speaker 05:
And I think in any event, even with the letter that was not, by the way, incorporated by reference in the complaint... But suppose we're not

[00:15:22] Speaker 04:
just hypothetically suppose we don't agree with you on that and we're going to say that the district court should have considered

[00:15:31] Speaker 04:
letter essentially as a proffer of what the complaint could say if it's amended, which is a very rational way to read this, that if I put a letter in with my opposition, that's what I could say in the complaint if afforded leave to amend.

[00:15:46] Speaker 04:
So then if we take that into account and we measure it against an Iqbal, tell me why you think it still falls short of Iqbal, if you believe that.

[00:15:57] Speaker 05:
I do believe that, Your Honor, and for several reasons.

[00:16:00] Speaker 05:
Number one, if you read the letter carefully, it begins with four bullet points, which can be found at ER 51.

[00:16:08] Speaker 05:
Those four bullet points contain a statement of secular safety concerns about the effects of the vaccine on pregnant women based upon plaintiff's views on the newness of the vaccine, lack of clinical trials for pregnant women, and the possibility of adverse reactions.

[00:16:25] Speaker 05:
in essence, the first page of the letter.

[00:16:28] Speaker 05:
Plain offense states that because of these safety concerns that were expressed in those first four bullet points, she cannot take the vaccine because of her religious belief that her body is a temple.

[00:16:40] Speaker 00:
Well, can you address the second to last bullet point says, though the border cells used to create vaccinations in 70s, 80s,

[00:16:48] Speaker 00:
may be far removed from today's vaccine.

[00:16:50] Speaker 00:
They still originate from those aborted children.

[00:16:52] Speaker 00:
The practice of using an aborted child's body for science against his will violates my religious conscience.

[00:16:57] Speaker 00:
And then contrast that with footnote two in Detweiler, where we say that's enough.

[00:17:02] Speaker 05:
Right.

[00:17:03] Speaker 05:
Well, Your Honor, first, I will get to that.

[00:17:09] Speaker 05:
But the body as a temple thing is kind of foreclosed by Detweiler.

[00:17:12] Speaker 05:
So going to your question,

[00:17:16] Speaker 05:
First, she never says in the letter that she has a religious objection to abortion.

[00:17:22] Speaker 00:
Second, she references- Says violates my religious conscience and cites Jeremiah 1-5.

[00:17:28] Speaker 00:
I'm not sure how that's not based on her religious beliefs.

[00:17:32] Speaker 05:
She references, Your Honor, aborted fetal cell lines being used to create vaccines in the 1970s and 1980s and never states that these

[00:17:44] Speaker 05:
lines were used to create the COVID-19 vaccine.

[00:17:47] Speaker 05:
Third, she admits that these older vaccines are far removed from today's vaccine.

[00:17:52] Speaker 04:
We have to read.

[00:17:54] Speaker 04:
If we're to treat this as something that's in the Iqbal hopper that we have to consider, then we have to read the allegations in the light most favorable to the plaintiff.

[00:18:05] Speaker 04:
And under Iqbal itself, we draw reasonable inferences from them.

[00:18:09] Speaker 04:
It's certainly a reasonable inference from this.

[00:18:12] Speaker 04:
that she's asserting that the COVID vaccines were derived from these, because she's, why else has she managed?

[00:18:19] Speaker 04:
Oh, let me just mention some irrelevant fact about, you know, aborted lines.

[00:18:25] Speaker 04:
Of course, the reasonable reading of this is that these were used in the COVID vaccines.

[00:18:30] Speaker 04:
You may disagree with that, but that's the reasonable reading of the assertion, and that she has a religious objection based on,

[00:18:40] Speaker 04:
opposition to abortion to using a medication derived from aborted fetuses.

[00:18:46] Speaker 04:
Why isn't that a reasonable reading of this bullet point?

[00:18:48] Speaker 05:
Well, Iqbal, your honor, sets forth a plausibility standard as opposed to a possibility standard.

[00:18:55] Speaker 05:
And I agree that reading that language, it's possible that that's what she was referring to.

[00:19:00] Speaker 05:
But if you read the actual language of what's in her letter, she's talking about fetal cell lines in the 1970s and 80s

[00:19:07] Speaker 05:
In the context of the entire letter, the gist of the entire letter is that she was concerned about the effect of the vaccine on her unborn child and, you know, and on herself due to her pregnancy.

[00:19:19] Speaker 05:
That's kind of the gist of it.

[00:19:20] Speaker 05:
This, in our minds, is kind of, under Detweiler, is more or less a broad invocation.

[00:19:29] Speaker 05:
It's not a specific objection based upon her religious objection to abortion.

[00:19:36] Speaker 05:
that she has a religious objection to abortion, and she never specifically says that the COVID-19 vaccines were derived from fetal line cells that were derived from aborted fetuses.

[00:19:46] Speaker 05:
So yeah, you're reading between the lines, and I would submit that it is not a reasonable inference.

[00:19:53] Speaker 05:
There is a possibility that's what she meant, but that is not what she says in the letter.

[00:20:00] Speaker 05:
And Your Honor, I still think that the,

[00:20:04] Speaker 05:
You know, we have to look at preservation here.

[00:20:07] Speaker 05:
I mean, the whole issue of whether that letter was incorporated by reference, I think, was never raised in the brief, the opening brief.

[00:20:16] Speaker 05:
And by the way, several of the cases cited by counsel today in his opening argument are not found in any of the briefs.

[00:20:23] Speaker 05:
They're not found in any 28F letter submitted to this court, so we don't have the benefit of having, you know, read his argument about those particular

[00:20:33] Speaker 05:
cases.

[00:20:35] Speaker 05:
And then, of course, we have the issue of him never raising, the issue of being given leave to replede in his brief.

[00:20:43] Speaker 05:
So the whole purpose of appellate advocacy is to have issue-driven advocacy, where you file a brief, you set forth your arguments, and you give the opposing side an opportunity to weigh in on those arguments.

[00:20:56] Speaker 05:
And here, that wasn't done.

[00:20:58] Speaker 05:
When we filed a motion to strike, I was under the impression that Mr.

[00:21:03] Speaker 05:
Jansen was okay with striking the portion of the brief about leave to replete, but it certainly isn't in his brief.

[00:21:15] Speaker 05:
And so we would ask the court to strike that, to hold counsel to the type of issue-driven advocacy that federal rule of procedure 28 requires, that you lay out your arguments in your brief.

[00:21:30] Speaker 05:
And there is no argument in that brief.

[00:21:32] Speaker 05:
There's one reference to the incorporation by reference doctrine in a footnote, and that's it.

[00:21:38] Speaker 05:
So it's our position, Your Honor, that you should not consider the letter, and you should not consider any argument that he should be given a chance to replete, because it's not put forth in his brief, and it's waived.

[00:21:52] Speaker 05:
And I grant the court has discretion to do these things, but these rules mean something, these rules of

[00:22:00] Speaker 04:
advocacy and proper appellate procedure do mean something and when you just... This isn't an issue with great surprise where somebody raises an entirely unrelated line of argument.

[00:22:12] Speaker 04:
I mean, you know, this is Iqbal where he's already trying in the opposition to get the letter in and he asked for leave to amend.

[00:22:23] Speaker 04:
It's obvious

[00:22:24] Speaker 04:
And you know that that's in the mix of issues.

[00:22:27] Speaker 04:
So you were not surprised by the fact that you have to address the letter.

[00:22:32] Speaker 05:
But again, Your Honor, I guess the way you're framing the question, I guess I'd come back to it's harmless error in the sense that we still don't think the letter.

[00:22:43] Speaker 04:
That I understand.

[00:22:44] Speaker 04:
That's agreed.

[00:22:45] Speaker 04:
But when we would exercise discretion on whether to overlook a forfeiture,

[00:22:52] Speaker 04:
One of the big issues is prejudice.

[00:22:55] Speaker 04:
Is there genuine surprise?

[00:22:56] Speaker 04:
Like, oh my goodness, I didn't know you were going to raise that.

[00:23:00] Speaker 04:
This isn't in that ballpark, because this is in the opposition below.

[00:23:05] Speaker 04:
It's in the guise of incorporation by reference.

[00:23:08] Speaker 04:
So the substance of this is something you've already met in the district court.

[00:23:11] Speaker 04:
You're meeting here.

[00:23:13] Speaker 04:
And so you're not prejudiced in the way that

[00:23:16] Speaker 04:
that you would normally look at.

[00:23:18] Speaker 05:
I guess I would quarrel a little bit with that, because if it was raised distinctly in the opening brief, there is a lot of case law about incorporation by reference.

[00:23:28] Speaker 05:
And the case that counsel cited, I think, says that the doctrine is easy to state, but can be very hard to apply.

[00:23:38] Speaker 05:
And there is a lot of cases from the Ninth Circuit where the court wrestles with whether a document was properly incorporated by reference.

[00:23:46] Speaker 05:
If it had been raised, I think we would have had a more robust opportunity to plead it, or excuse me, to brief it in our response brief.

[00:23:55] Speaker 05:
But I guess I would leave the court with this.

[00:23:59] Speaker 05:
We don't think that the allegation with regards to the fetal cell lines rises to the level of plausibility under Iqbal and its mere possibility.

[00:24:09] Speaker 05:
And so even if they were allowed a chance to replete and add that, we still think that

[00:24:15] Speaker 04:
uh... motion to dismiss should have been granted thank you your honor thank you counsel all right we'll hear rebuttal uh... although you did not save time even though i was trying to uh... warn you about that we did take your opposing counsel over so we gave him more time so i will give you the two minutes you had requested thank you your honor

[00:24:41] Speaker 02:
Our position is that we provide a defendant in this case with substantial evidence of our intent to assert arguments about failure to amend.

[00:24:55] Speaker 02:
And I believe we requested an amendment in our opposition to the motion to dismiss.

[00:25:02] Speaker 04:
But his argument is you didn't put it in the opening brief.

[00:25:05] Speaker 04:
I checked.

[00:25:06] Speaker 04:
It's in the opposition.

[00:25:07] Speaker 04:
You do cite the Rule 15 standard and the rule that you can't

[00:25:11] Speaker 04:
dismiss the case without giving me lead to re-plead unless it's impossible.

[00:25:15] Speaker 04:
But where is that in the opening?

[00:25:16] Speaker 04:
But that's his point.

[00:25:18] Speaker 02:
Yes, so the opening brief does have that footnote about incorporation by reference.

[00:25:23] Speaker 04:
No, but this isn't incorporation.

[00:25:24] Speaker 04:
This is amend.

[00:25:28] Speaker 04:
If you don't buy my incorporation, incorporation by reference is it's already in the complaint.

[00:25:33] Speaker 04:
Not that it needs to be amended.

[00:25:34] Speaker 04:
It's really already there.

[00:25:36] Speaker 04:
But did you argue in the opening brief

[00:25:40] Speaker 04:
I should have been granted leave to replede, to add in additional allegations to meet the Iqbal test.

[00:25:46] Speaker 02:
No, we didn't specifically argue that in the opening brief.

[00:25:49] Speaker 02:
But what I believe is reasonable here, Your Honor, is that that is expected, basically, if we're arguing that the judge was wrong in dismissing the case, and we're arguing it was wrong by failing to consider the religious exemption, then

[00:26:09] Speaker 02:
By implication, the judge was wrong by failing to give leave to amend.

[00:26:13] Speaker 02:
And so this is not an argument that is something that defendant didn't have notice of or didn't have an opportunity or was surprised about us raising in the reply brief.

[00:26:26] Speaker 02:
And it's definitely something that they got the opportunity to argue today and to respond to today during oral argument.

[00:26:33] Speaker 02:
So I don't think there's prejudice there for us to be able to continue to raise that.

[00:26:38] Speaker 04:
All right, thank you, council.

[00:26:39] Speaker 04:
The case just argued will be submitted.