Good morning, Your Honours. This case is about the City of Norfolk's censorship of core political speech. The city ordered central radio to remove a banner protesting the unlawful taking of its property. The city did this despite having ignored the many other comparably sized signs throughout the city, despite the fact that it has not enforced its sign code against any other political sign in at least the last quarter century. It suddenly took this unprecedented step against central radio because the Old Dominion University Real Estate Foundation, the very entity that stood to acquire central radio's property from the illegal taking, complained about the banner. The city's enforcement in this case was unconstitutional for three reasons. First, sign code provisions that relied upon were content-based. Second, even if they're assumed to be content neutral, they cannot withstand intermediate scrutiny. And third, Your Honours, the enforcement against central radio in this case was unconstitutional selective enforcement. What kind of relief are you asking for here? Your Honours, we are asking that the judgment of the Court of Appeals be reversed and judgment entered in central radio's favor. Right. So what are you asking for? Your Honours, we are asking for a declaration and injunctive relief, both prospective and retrospective. So that you can put up the same sign? Your Honours, paragraph 103 of our complaint specifically alleges that central radio would like to and desires to put up similarly sized signs in the same location in the future. However, we've also specifically requested retrospective relief because the city prohibited from having this sign throughout the pendency of the condemnation proceeding. I guess what I need clarification on council is the fact that the eminent domain issue is over, right? Yes, Your Honour. Right. The Virginia Supreme Court took care of that. That's correct, Your Honour. Okay
. So now your request for relief from the sign ordinance is to be able to put up any signs essentially of any size because they selectively enforced it on one occasion in the past. That's not quite it, Your Honour. First of all, we've specifically requested for retrospective and prospective relief. Retrospective relief at a minimum, this particular application to central radio was unconstitutional and we're entitled to a declaration and a dollar in nominal damages for the city having and violated its rights in the past. A bit of a picture, I guess, is what I'm more interested in here. Exactly. What form is this relief going to take? Your Honour, we seek a declaration and injunction prohibiting the enforcement of the line code at all, both essentially and as applied to central radio. Your Honour, because the sign code provisions are first of all content based and as I mentioned can't survive even intermediate. Why would they content based? Your Honour, these provisions are content based under this court's jurisprudence because they are a clear instance of the government treating messages differently based solely on which message it deems more important. The city admitted as much. When asked why it creates exemptions for governmental flags, for example, it testified we believe that's the right thing to do. And when asked why it's okay for a property owner to have an enormous governmental flag on the side of his or her building, but not okay to have a similarly sized, non-governmental or non-religious flag, such as a sports flag, the city again testified we consider the importance of the American flag or a state flag to far exceed that of an enthusiastic sports flag. In other words, Your Honour, the governmental flag, the religious flag is permitted because the government thinks it's more important. And what this means in practice is that you can have an enormous city of Norfolk flag on the side of your building, but central radio's banner protesting the city of Norfolk policy is prohibited. Does that affect you could have the official flag of Syria, didn't you? You could, Your Honour. There's a government. Absolutely. United Nations, the people code of arms, you could have certainly not equate these things, but you're absolutely correct, Your Honour
. But a banner on the same size, same location, protesting city policy is prohibited. That is content based under any sense of the term. Moreover, central radio notes, in its brief, this Court's sister's circuits have struck down virtually identical exemptions on a number of occasions. But this circuit never had. This circuit has not had occasion to address those types of distinctions or honor. But certainly- Other cases that had similar code provisions. I don't believe there are any that have similar code provisions to this, Your Honour, where the government gives preference to certain speech based solely on the fact that it favors the message communicated by that speech. And now, Your Honour, the Supreme Court may well endorse the reasoning of the court's sister's circuits in Read vs. Gilbert, a case that very recently granted it served on. But the bottom line, however, is that even under this Court's current jurisprudence, these provisions are content based. In fact, these provisions cannot even withstand intermediate scrutiny assuming that they are content neutral. To survive intermediate scrutiny, the government has to prove the constitutionality of its regulations. And that requires evidence. As this Court held on Bonk in Davenport vs. City of Alexandria, intermediate scrutiny requires the government offer, quote, detailed proof and a strong factual justification for the regulation. As the Court more recently stated in Giovanni Garandola, it requires the government to produce evidence that a challenge regulation materially advances an important or substantial interest by redressing past harms or preventing future ones. Here the government has profited no evidence of the harm- supposed harms to be addressed. And in fact, it admits that central radio's banner presents no harm at all
. It admitted in its interrogatory responses that there are no problems with the read—I'm sorry—that it was unaware of any safety problems with central radio's song. They talk about distracted drivers and honking their horns when they saw the sign. And the District Court, Your Honor, considered it to be evidence supporting the regulation that certain drivers when they saw the sign honk and approval. That's not evidence of distraction, Your Honor. That's evidence of agreement with the message on the sign. Why does that, as people would be inferred as a distraction, if your attention is converted when you agree or disagree? Your Honor, this case is much—I do not believe that's a case, Your Honor. In this case is much different from this Court's— The law is a lot wide on. Your Honor, in the one case where this Court has found honk and approval— Go back to common sense. You see big signs, whatever it says. You disagree with it. You're distracted because you've seen the sign. If you agree with it, you're distracted because you've seen the sign. What's wrong? What was that incorrect? Your Honor, it's incorrect because the city itself has acknowledged there is no evidence of a traffic safety problem. By that reasoning, Your Honor, anytime someone responds to a sign, be it a stop sign, they're distracted. Be it a slow children at play sign, they are distracted. Be it a sign protesting governmental abuse, they're distracted. Your Honor, it's not evidence of distraction, it's evidence of agreement. This Court in Brown did find that specific evidence of honking to a sign where the sign distracted, not only motorist, but a police officer, because of its bright fluorescent lettering, was evidence of distraction
. But that was distraction because of the physical characteristic of the sign, the fluorescent large orange lettering. Here, the honking was evidence of agreement. The Supreme Court has held in RAV versus the City of St. Paul. The government cannot regulate speech because of the persuasiveness of that speech. That's precisely what the district court reasoned here. Because the sign was effective, because people agreed with it and acknowledged that agreement, that was somehow evidence of distraction. That is not the case, Your Honor, it's evidence of agreement. Now, Your Honor, the, again, even assuming the case that the sign code is subject to intermediate scrutiny, it cannot survive also because the regulations do not leave open adequate alternatives for central radio. The Supreme Court has repeatedly held that location is often a critical component of the message of a sign, particularly a protest sign on private property. That's uniquely true here, where central radio's banner protesting an unlawful taking was on the very property that the government was trying to unlawfully take. In other words, it was a protest of governmental abuse at the very site of that abuse. No other sign in no other location would have been an adequate alternative to this one. And for these reasons, because the City lacks evidence, and because there are no alternative, the court cannot even survive intermediate scrutiny. And finally, Your Honor, the City acted unconstitutional here because it's selectively enforced the sign code against central radio. To prevail on a claim for selective enforcement, claim to fast to show discriminatory effect by the enforcement and discriminatory purpose central radio has shown both. There's no question there was discriminatory effect. The fact is the City has not enforced its sign code against any other political sign in at least a quarter century
. Not only has it not enforced the sign code against political signs, City officials have directed staff to ignore code violations with political signs. What other than not all this? Your Honor, the illegal abortion protest signs, staff were directed to ignore the illegal anti-Obama sign. Staff was directed to ignore the oversized giant flashing not not a kiss sign. Staff was directed to ignore despite the fact that the City believes flashing signs are uniquely problematic for traffic safety. But not all this is down there at the harbor and nobody's driving. I mean, isn't that a different situation where you have that museum right on the water? Your Honor, the it's not a different situation and the fact of the matter is the City manager directed staff to ignore the sign despite acknowledging it did not comply with the water. You're not seeing the traffic there is affected or I don't know maybe I've got the name of the road wrong but you're saying that that sign ordinance or that sign poses a distraction to a passing motorist. Your Honor, what we're arguing is that code does not come that sign does not comply with the sign code. The City acknowledges that it does not comply with the sign code and the City manager directed staff not to enforce it. In each instance, the message was the same. Don't enforce, don't enforce, don't enforce until the Old Dominion University Real Estate Foundation picked up the phone and complained. And that brings us to discriminatory purpose, Your Honor's. The reason the City suddenly enforced after a quarter century, again, Central Radio, was at the Real Estate Foundation. The very entity that stood to acquire Central Radio's property from this illegal taking took issue with the banners message and complained. For 25 years, the city had not forced against any political sign a quarter century, but with Central Radio's banner criticizing the City and threatening to jeopardize ODEU's acquiring of Central Radio's property. The City suddenly decided to enforce up to that point, the City had exercised what the district court called appropriate caution with respect to political signs. But when the ODEU Real Estate Foundation called up, they threw appropriate caution to the wind and went out and cited Central Radio. As this court's decision in the United States versus Crowthers, as well as a third circuit's more recent decision in a ten-of-lie-air-ove association versus Bureau of Penifly Make-Lear, sudden enforcement after a pattern of non-enforcement, again, similarly situated speakers, is sufficiently suggestive of discriminatory purpose
. Are these similarly situated speakers? I mean, not all of us isn't the similarly situated speaker to somebody protesting eminent domain. Your Honor, someone protesting President Obama, your Honor, someone protesting abortion? Okay, so you agree it doesn't work with not all of us. Not all of us really is really the outlier here, isn't it? I do not agree, Your Honor, because according to the City, the City's theory is that signs, large signs, present traffic safety and aesthetic problems. If that's the case, then that should be equally true. That's right there on the harbor. It's not the same as being on a main traffic route. Your Honor, I'm not sufficiently familiar with the road layout of that particular sign to know if that's the case. But what I do know is the City asserts that traffic safety and aesthetics justify provisions, yet the City Manager directed staff not to enforce against that particular sign. So, Your Honor, in every instance, the message was the same. Don't enforce, don't enforce, don't enforce until central radio spoke out. For these reasons, the content-based nature of the sign code provisions, because they can't even understand intermediate scrutiny if they're assumed to be content- or neutral, and because the code was selectively enforced to send, again, central radio, this code reverse a district court judgment and enter judgment for central radio. I'd like to reserve my remaining five and a half minutes, Your Honor, for a rebuttal. Thank you. Thank you, Your Honor. Mr. Alita. Alita. May it please the court
. My name is Adam Alita, and I represent the City of Norfolk in this matter. I'd like to take the first part of my time to respond to the first amendment issues, and then address some of the issues that we raised on cross appeal regarding the use of neglect toward the end of my presentation. It is a little fishy. You know, it's a little curious that the city doesn't enforce these signs. And then all of a sudden, you know, that they're involved in this imminent domain case. I mean, I understand the city's interest in traffic safety and no distraction, and the burdens of being a municipal government. There are a lot of things you got to balance. But the timing is really curious here, and why isn't that something that should concern us? Well, Central Rady has done an effective job of suggesting that there is something fishy going on here. First of all, whether or not it's fishy does not constitute a First Amendment violation. And second of all, a close inspection of the record indicates that each of those representations really is not borne out by the facts. So to respond to the allegations about selective enforcement. After looking extensively into the city's record, well, I say looking extensively, actually, they mention that there are 25 years worth of no citations. But in fact, the discovery only sought written records of signed violations in the past five years. The city of Norfolk consistent with the rules or the standards set forth by the Library of Virginia only keeps written records of violations for three years. We produce those records. And in fact, the testimony from the one inspector who's assigned to signs exclusively says, I do almost all of my citations verbally. That's how I start. I start with a verbal and almost everybody complies
. So very rarely will you find a written citation, but those are really the only citations that Central Radio asked for. So they missed a whole panoply of oral citations and all citations that were older than three years old. Second of all, after all of that fishing, they find three cases. The nauticus sign, which is your owner located on water side drive. And then two other signs, a sign that was apparently in the right of way, not on any zone property, not subject to any regulations in the sign code that protested abortion. And so it was the correct advice to say leave that sign alone. It doesn't violate the sign code. The regulations in the sign code that applied to zoning districts don't cover a sign in the right of way. And then the third sign is the Obama sign or stop Obama or some protest sign regarding the president. And the facts as they came out were that the sign was not a violation of the sign code. There actually isn't in the record anything indicating the dimension, but we do have the conclusion from the enforcement staff that it didn't constitute a violation of any of the regulations of the zoning district. We don't know why they made that came to that conclusion. We don't know why they came to that conclusion. We only know that there was no finding that it was in violation. So for Central Radio to use it as evidence of a sign that violated the code but was left alone, it doesn't meet that standard. But there's a lot of that's why the fishiness because it was say why I don't we know why was exempt or not covered. We don't know. That's right
. That's right. And so I understand that Central Radio is a grandizing what are either inconsistent or inconclusive facts to turn it into a first amendment violation. But the trial court was correct to find that really the noticass sign is the only sign that there was actual evidence that the city directed that even though it's a violation that it be left alone. But still what's missing with regard to the noticass sign is any analysis of what the content was. And so to make the leap that it was left alone because the city favored the message on the noticass sign. Whereas the Central Radio sign was not left alone because the city dislike the Central Radio sign is just a leap of it. What is city makes money from the noticass exhibit? I honestly. Is it admission play? There is admission but I think you don't think the city I think you lose the money on it every year, frankly. But there is a financial connection between the city and the museum. Yes, there it is. The city actually funds the museum and their appropriations to find that. And then take a leap there to find your interest to be quite different. And although it's not part of the record, the court should know that that's not that the sign could has since been amended that that sign is legal today. Or you change it so it's legal now. We did one of the privileges of being the governing. There go again the fish in this. So whatever the reason for leaving it alone, it does not appear to be based on on the message. Essentially what Central Radio is asking this court to do is to establish a new rule
. To overrule by more dogs, town of Kerry versus brown and come up with with this court is previously called a restrictive sort of Euclidian approach to the First Amendment, which requires that a regulatory scheme where the government examines the content of the message conveyed is content based no matter the state. And the other reason is that the court does the analysis of the motivating purpose that the analysis that this court does currently into what the reasons for whether the reasons for the regulation are related to the message or not. Be jettisoned and we go with. We go with a requirement that merely contemplates whether or not the inspector looks at the sign to determine what kind of sign it is to apply the regulations. And if they have to look at the sign, then it's content based. The reason for the sign code were what distraction and aesthetic. In summary correct in summary. Then why do you have the flag exemption for government flag? Well, first of all, having a regulatory scheme that covers forms of visual expression doesn't require that you cover everything. So there can be some exemptions. The exemptions central radio complains of that they believe invalidates North sign code are not only flags, but also works of art and Europe. So what does government do to furthering this interest of the governor? So a determination was made by the legislative body that's that flags are don't necessarily fall into that category of the types of things that people see that affects aesthetics or distract people. And so there's a blanket exception for all flags of all nations. There's no favoring any particular message that goes along with that. You favor a message of patriotism. Well, I don't I would not. For example, you know, you're a football fan. You got a big flag. You don't know that can't do that. But if you have a big American flag, you can fly, right? You can. Well, what difference is that making terms of distraction? The government. Now, what does the government add to that at all? Like council said, into media, I don't I'm sure you can you can apply with any kind of standard of scrutiny that what is it? Tell me. Well, I reject the implication that implications the direct question tell me what? Allowing government flag to be flown and any size adds to the stated interest of the government in the code restriction. That particular example may not and that's that's merely one example of all the other forms of visual speech that also may be allowed and are not regulated by the sign code, but may impact aesthetics or may impact distraction. This case goes to the ultimate of American rights. It's the fifth amendment. Now, we know next year we're going to celebrate the Magna Cotta 800 years, but the king could not invade the barren's castle and just come in taking your land. This goes to the core of constitutional questions. I can't think of anything more political. It only have to be very careful when we now allow. What if you find the colors of a government is okay, but if you're just flying what your heart beats and a portrayal, whatever football team, then we restricted based on distraction. It has no connection. You have yet to answer my question. Give me one. I'm not going to answer your own. I am abiding by what this court and other courts have, including the Supreme Court has deemed an appropriate. I'm going to get a restraining the appropriate regulations of the First Amendment sign code restriction to not have to cover every form of visual speech that exists that there can be some exemptions
. But if you have a big American flag, you can fly, right? You can. Well, what difference is that making terms of distraction? The government. Now, what does the government add to that at all? Like council said, into media, I don't I'm sure you can you can apply with any kind of standard of scrutiny that what is it? Tell me. Well, I reject the implication that implications the direct question tell me what? Allowing government flag to be flown and any size adds to the stated interest of the government in the code restriction. That particular example may not and that's that's merely one example of all the other forms of visual speech that also may be allowed and are not regulated by the sign code, but may impact aesthetics or may impact distraction. This case goes to the ultimate of American rights. It's the fifth amendment. Now, we know next year we're going to celebrate the Magna Cotta 800 years, but the king could not invade the barren's castle and just come in taking your land. This goes to the core of constitutional questions. I can't think of anything more political. It only have to be very careful when we now allow. What if you find the colors of a government is okay, but if you're just flying what your heart beats and a portrayal, whatever football team, then we restricted based on distraction. It has no connection. You have yet to answer my question. Give me one. I'm not going to answer your own. I am abiding by what this court and other courts have, including the Supreme Court has deemed an appropriate. I'm going to get a restraining the appropriate regulations of the First Amendment sign code restriction to not have to cover every form of visual speech that exists that there can be some exemptions. And the fact that those exemptions take a certain format is not constitutionally in firm. So in this particular case, Mr. formats that are the content neutral correct. Correct. But once you say government, it is no longer content neutral because it has to embrace a government. Well, I disagree. In the fact that this case, Mr. Mr. the principle of central radio, Mr. Wilson testified that he included an American flag logo on this particular sign in order to demonstrate their connection to the state of the state. And so I don't know that that says anything about patriotism. I don't know what message that is, but most people don't put a flag in their front yard to indicate a connection to the defense industry. So the idea that a flag necessarily has a certain messages is I think, obviated by the facts of this case in specific way. Turning to the art. You put no definition on art at all. That's correct. And we have done essentially what town of Kerry did, which was create an exemption for art. And the sign code as with all regulations contemplates that that law didn't have a definition
. And the fact that those exemptions take a certain format is not constitutionally in firm. So in this particular case, Mr. formats that are the content neutral correct. Correct. But once you say government, it is no longer content neutral because it has to embrace a government. Well, I disagree. In the fact that this case, Mr. Mr. the principle of central radio, Mr. Wilson testified that he included an American flag logo on this particular sign in order to demonstrate their connection to the state of the state. And so I don't know that that says anything about patriotism. I don't know what message that is, but most people don't put a flag in their front yard to indicate a connection to the defense industry. So the idea that a flag necessarily has a certain messages is I think, obviated by the facts of this case in specific way. Turning to the art. You put no definition on art at all. That's correct. And we have done essentially what town of Kerry did, which was create an exemption for art. And the sign code as with all regulations contemplates that that law didn't have a definition. There was a definition. There was some guidelines as to what art was. There was a definition, a definition that was represented to be vague. Ultimately, it was not vague. I know the court upheld it, but you don't have any. You have no restrictive language as to art. I mean, you talk with something distracting. Oh my goodness. Art can be the ultimate distract me. You can have someone with dragons coming out of their head and legs off and people be. I mean crashing into, but it's art. I understand it is your honor. It's not part of central radios as applied challenge here. There's no indication that there's any art out there that the city has permitted. That that that exemption that that exists in Norfolk and that that exemption somehow implicates the unconstitutionality of what the sign code does with regard to the types of signs, the written signs that they do want to display. On the question of the. The excusable neglect. We believe that here to central radio wants to make new law
. There was a definition. There was some guidelines as to what art was. There was a definition, a definition that was represented to be vague. Ultimately, it was not vague. I know the court upheld it, but you don't have any. You have no restrictive language as to art. I mean, you talk with something distracting. Oh my goodness. Art can be the ultimate distract me. You can have someone with dragons coming out of their head and legs off and people be. I mean crashing into, but it's art. I understand it is your honor. It's not part of central radios as applied challenge here. There's no indication that there's any art out there that the city has permitted. That that that exemption that that exists in Norfolk and that that exemption somehow implicates the unconstitutionality of what the sign code does with regard to the types of signs, the written signs that they do want to display. On the question of the. The excusable neglect. We believe that here to central radio wants to make new law. We have identified the two part test that a finding of excusable neglect requires. First of all, the four elements of the pioneer investment services case. And then second of all, a finding an analysis that injustice would otherwise result if the extension to file is not granted. The error that the district court made with regard to the applying the pioneer test is that it treated the pioneer test as if it's a balancing test. And so passing some of the tests while failing other of the tests was treated as a counterweight. And the jurisprudence of this court repeatedly has found that even the failure of one element of the pioneer test is sufficient to deny a finding that the neglect is excusable. Both the symbionics case and the Thompson case are situations where the failure of that one test, the most important test. I believe that's correct. I understand that. It's an instance where the rule was applied where the failure of the most important test was sufficient to find that the neglect was not excusable. And so what central radio needs the rule to be changed to in order to support what the district court did in this case is to require only evidence of an attempt, a bona fide attempt to file on time. And we believe that's not the standard. If that were the standard, Thompson would need to be reversed and symbionics would have come out differently. So we asked this court. We take judicial notice that this pay.gov may have the name wrong site that was in use at that time created all sorts of problems or some period of time, similar to what the plaintiff found in this case. It was very hard to tell from the when you were online accessing that and paying the money for the filing of the notice appeal or some other process. Exactly what had happened
. We have identified the two part test that a finding of excusable neglect requires. First of all, the four elements of the pioneer investment services case. And then second of all, a finding an analysis that injustice would otherwise result if the extension to file is not granted. The error that the district court made with regard to the applying the pioneer test is that it treated the pioneer test as if it's a balancing test. And so passing some of the tests while failing other of the tests was treated as a counterweight. And the jurisprudence of this court repeatedly has found that even the failure of one element of the pioneer test is sufficient to deny a finding that the neglect is excusable. Both the symbionics case and the Thompson case are situations where the failure of that one test, the most important test. I believe that's correct. I understand that. It's an instance where the rule was applied where the failure of the most important test was sufficient to find that the neglect was not excusable. And so what central radio needs the rule to be changed to in order to support what the district court did in this case is to require only evidence of an attempt, a bona fide attempt to file on time. And we believe that's not the standard. If that were the standard, Thompson would need to be reversed and symbionics would have come out differently. So we asked this court. We take judicial notice that this pay.gov may have the name wrong site that was in use at that time created all sorts of problems or some period of time, similar to what the plaintiff found in this case. It was very hard to tell from the when you were online accessing that and paying the money for the filing of the notice appeal or some other process. Exactly what had happened. Well, that may be the district would be reasonable. A person could have reasonably determined based on what they saw using that website at that time. They had indeed filed. I don't disagree that somebody could make that conclusion. As I said, I think that what they are the rule they were arguing for is that a bona fide attempt to file on time should be deemed excusable neglect. I think it's analogous to the Thompson case because in Thompson, the attorney put the notices of appeal in the mail three days before and had every reason to believe that the postal service would take it to the local district court. Had no idea it would take six days, but they're still a burden. They had a receipt back that said we took your money for filing this notice of appeal. Right. And what they seems to be fairly different from putting it in the mail and hoping it gets there. It might have been different, but for the fact that for the next three and a half days, no, any, F notice of electronic filing was sent to any of the three attorneys who were registered through the CME CF system to get the email confirming the filing that never occurred. And so what's recited in Thompson is the obligation of counsel to check and make sure the thing you file before the deadline you know is pending got there is what didn't happen in this case. You have three attorneys who didn't check on anything who basically took the word of somebody who admittedly may have genuinely been confused by the pay.gov website. But we don't think that's where the obligation to comply with filing ends. I think that Thompson says there's another step that's required. You have to check behind that to see if that information is consistent with the other stuff you're not getting, which is the NEF. An order for you to prevail on this particular point that we have to determine then that it was an abuse of discretion about the district judge as a matter of law to have determined that because the plaintiff got the right to be a lawyer
. Well, that may be the district would be reasonable. A person could have reasonably determined based on what they saw using that website at that time. They had indeed filed. I don't disagree that somebody could make that conclusion. As I said, I think that what they are the rule they were arguing for is that a bona fide attempt to file on time should be deemed excusable neglect. I think it's analogous to the Thompson case because in Thompson, the attorney put the notices of appeal in the mail three days before and had every reason to believe that the postal service would take it to the local district court. Had no idea it would take six days, but they're still a burden. They had a receipt back that said we took your money for filing this notice of appeal. Right. And what they seems to be fairly different from putting it in the mail and hoping it gets there. It might have been different, but for the fact that for the next three and a half days, no, any, F notice of electronic filing was sent to any of the three attorneys who were registered through the CME CF system to get the email confirming the filing that never occurred. And so what's recited in Thompson is the obligation of counsel to check and make sure the thing you file before the deadline you know is pending got there is what didn't happen in this case. You have three attorneys who didn't check on anything who basically took the word of somebody who admittedly may have genuinely been confused by the pay.gov website. But we don't think that's where the obligation to comply with filing ends. I think that Thompson says there's another step that's required. You have to check behind that to see if that information is consistent with the other stuff you're not getting, which is the NEF. An order for you to prevail on this particular point that we have to determine then that it was an abuse of discretion about the district judge as a matter of law to have determined that because the plaintiff got the right to be a lawyer. And he got back a verification that said we took your money for file and notice of appeal that that's an error as a matter of law. You do have to find that it's an abuse of discretion. But the way this court has defined an abuse of discretion is that if the district court misunderstands that there are judicially recognized constraints on its exercise of discretion. And here those restraints do exist. The district court is not in a position to make a determination on the excuse of neglect that's inconsistent with Thompson. And it's also not in a position to grant an extension of filing where it's done no analysis whatsoever on the question of whether or not injustice would otherwise result. This is an issue that the, if I may I have one moment to conclude this point, this is an issue that the district court acknowledged on page three of its order that this is part of the part of the test. The failure of the district court to do any analysis of what injustice would otherwise result was noted by the city in its brief on pages 1214 and a lengthy footnote footnote 9 on page 21. And central radio never addressed this element of the of the injustice test. There's nothing in their motion explaining what injustice would result if they don't get to appeal. And there's nothing in their response reply brief arguing against the city's position. And so to conclude and to follow up with with your point judge, Keenan, there it is an evident from the record in this case that any injustice would result here by all accounts. They won their eminent domain challenge. Their property rights as they say their property rights were vindicated by the Virginia Supreme Court. They are pursuing this appeal in order to vindicate their right to free speech. So what all the very constitution that we all love and care. Absolutely. And so there is a principle being fought for here
. And he got back a verification that said we took your money for file and notice of appeal that that's an error as a matter of law. You do have to find that it's an abuse of discretion. But the way this court has defined an abuse of discretion is that if the district court misunderstands that there are judicially recognized constraints on its exercise of discretion. And here those restraints do exist. The district court is not in a position to make a determination on the excuse of neglect that's inconsistent with Thompson. And it's also not in a position to grant an extension of filing where it's done no analysis whatsoever on the question of whether or not injustice would otherwise result. This is an issue that the, if I may I have one moment to conclude this point, this is an issue that the district court acknowledged on page three of its order that this is part of the part of the test. The failure of the district court to do any analysis of what injustice would otherwise result was noted by the city in its brief on pages 1214 and a lengthy footnote footnote 9 on page 21. And central radio never addressed this element of the of the injustice test. There's nothing in their motion explaining what injustice would result if they don't get to appeal. And there's nothing in their response reply brief arguing against the city's position. And so to conclude and to follow up with with your point judge, Keenan, there it is an evident from the record in this case that any injustice would result here by all accounts. They won their eminent domain challenge. Their property rights as they say their property rights were vindicated by the Virginia Supreme Court. They are pursuing this appeal in order to vindicate their right to free speech. So what all the very constitution that we all love and care. Absolutely. And so there is a principle being fought for here. What's not being fought for or what hasn't been explained is what injustice would happen in the event that the extension to appeal were not granted and they were not given this opportunity. So they were given an opportunity to explain what the injustice would be, but we have not seen it. Thank you, Mr. Melina. It's the bend. Yes. We have some reserved time. Thank you, Your Honor. There's just a few points I'd like to address. The first judge Keenan is the point you were making about the Nauticus Museum and the fact that it might not present the same traffic concerns that other signs could I would direct your honors attention to page 81 of the joint appendix, which includes a photograph of the Nauticus sign and shows very clearly a multi lane road running right in front of that sign. Your Honor, I apologize for not being familiar with that record site before, but I would direct your honors attention to that now with respect to the abortion protest signs that Mr. Melina addressed. He splits hairs when he says they didn't violate the sign code. The city acknowledges they violate the city code and the same zoning personnel who enforce the sign code and force the city code. Yet they were directed to ignore those signs again ignore ignore ignore until O.D.U calls up with respect to the and the Obama sign your honor. The city claims well, it's not quite clear whether it was illegal or not
. What's not being fought for or what hasn't been explained is what injustice would happen in the event that the extension to appeal were not granted and they were not given this opportunity. So they were given an opportunity to explain what the injustice would be, but we have not seen it. Thank you, Mr. Melina. It's the bend. Yes. We have some reserved time. Thank you, Your Honor. There's just a few points I'd like to address. The first judge Keenan is the point you were making about the Nauticus Museum and the fact that it might not present the same traffic concerns that other signs could I would direct your honors attention to page 81 of the joint appendix, which includes a photograph of the Nauticus sign and shows very clearly a multi lane road running right in front of that sign. Your Honor, I apologize for not being familiar with that record site before, but I would direct your honors attention to that now with respect to the abortion protest signs that Mr. Melina addressed. He splits hairs when he says they didn't violate the sign code. The city acknowledges they violate the city code and the same zoning personnel who enforce the sign code and force the city code. Yet they were directed to ignore those signs again ignore ignore ignore until O.D.U calls up with respect to the and the Obama sign your honor. The city claims well, it's not quite clear whether it was illegal or not. That's exactly the point on every occasion. The city exercised what the district court called appropriate caution with political signs except when it came to this sign. The city next tries to say well, they talk about 25 years, but really they only asked for records going back five years. Your Honor, the testimony one minute, Your Honor, please. I apologize for leaving my materials back there. Your Honor, the city's chief enforcement officer, Ms. Leslie Garrett, was asked about political signs in her deposition. She was asked have you ever cited or given a warning to a political sign but let me let me set back. Ms. Garrett has worked in the zoning department for at that point 25 years. Have you ever cited or given a warning to a political sign before answer no. Have you ever cited or given a warning to a protest sign before answer no. Okay, do you know of any circumstances where one of the inspectors that you supervise has done that? No. Do you know of any circumstances where a department of planning official cited a political or protest sign? No, I do not. That was a deposition. Yes, Your Honor. Was it a third of B6? That was not a 30 B6 deposition, Your Honor. The city did designate witnesses into other depositions, but that was not a 30 B6
. That's exactly the point on every occasion. The city exercised what the district court called appropriate caution with political signs except when it came to this sign. The city next tries to say well, they talk about 25 years, but really they only asked for records going back five years. Your Honor, the testimony one minute, Your Honor, please. I apologize for leaving my materials back there. Your Honor, the city's chief enforcement officer, Ms. Leslie Garrett, was asked about political signs in her deposition. She was asked have you ever cited or given a warning to a political sign but let me let me set back. Ms. Garrett has worked in the zoning department for at that point 25 years. Have you ever cited or given a warning to a political sign before answer no. Have you ever cited or given a warning to a protest sign before answer no. Okay, do you know of any circumstances where one of the inspectors that you supervise has done that? No. Do you know of any circumstances where a department of planning official cited a political or protest sign? No, I do not. That was a deposition. Yes, Your Honor. Was it a third of B6? That was not a 30 B6 deposition, Your Honor. The city did designate witnesses into other depositions, but that was not a 30 B6. Your Honor, with respect to your Honor's question about Judge Gregory, your Honor's question about the art exemption. That too is clearly content based and also violates the prior restraint doctrine unlike in the public art exemption in town of Carrie, where the definition of art was actually set forth where the court provide a clear example of the art exemption. Explain that it was set forth in terms of reasonable people could understand and where the definition was actually tied to aesthetics here, the city has no definition of art and in a 30 B6 deposition when the city's designated witness the chief planning department director was asked whether it would be permissible to drape a copy of the constitution across the entire side of a building. The city testified that that could well be considered art and therefore exempt from regulation. So you have a situation where you could drape the entire building with the constitution with central radio's banner protesting a violation of the constitution was prohibited. And finally, Your Honor, with respect to the notice of appeal, the district court did not abuse its discretion in finding that an extension was warranted. What the district court did was exactly what it was supposed to do. It weighed the facts, it assessed credibility, it applied the four pioneer factors to the facts of the case. And like every other case that has addressed the factual scenario like this one came to the conclusion that an extension was warranted. That is not an abuse of discretion, Your Honor. And finally, Your Honor is with respect to Judge A.G.'s question about the paid-out-gov system and some of the difficulties that attorneys had had using that system. Our director honors attention to the joint appendix page 1225 where central radio explains that it called the court's office after realizing that the notice had not been properly filed and was explained to her that the court quote only recently began to use the paid-out-gov system to collect office fees and that they were not completely familiar with how it interacted with the ECM ECF system. So Your Honor, there's evidence of the fact that there was not only confusion in this case, but there was an error. Mrs. Perez also testified that she was never returned back into the ECF system after uploading the notice of appeal, paying the docketing fee and receiving an email confirmation with Eastern District of Virginia's CM ECF in the subject line confirming receipt. Your Honor, in those circumstances, like every other case addressing the same circumstances that are laid out in our brief, the District Court correctly concluded that an extension was warranted
. That was not an abuse of discretion. Thank you, Your Honor. Thank you. We're going to come down, greet Council and then take a brief reset