and the letter asked me to address why the court should hear this matter i guess is a concern about jurisdiction well in looking at glick's doing others quite a few differences first of all in this case well the county and the district court approved the complaint that's it don appeal to be considered as is the defendant as the county was the defendant of record is the proper defended and also the same holds true for the motion to dismiss the court construed the motion to dismiss is being filed by the county are we in a posture where both the plaintiff and the defendant are in agreement that the miami dade transit agency is not a separate legal entity but is own is some kind of arm of the county itself and that the parties are treating the suit against miami dade transit as a suit against the county and that's so because my me dade county codes says that any kind  of damages that are sought against the operations of transit are to be settled by the county so it's really directed by my medic county codes the reason that i listed the transit is because under the rehabilitation act you know you have to say that the transit received federal funding so i put them down as the defendant it was just my error but it wasn't just a mistake and actually this this complaint before you today is a refiled case of complaint i filed initially with miami dade county as the party so that's why the court and the county we all agreed to treat it as if the the county was a proper defendant in this case and if there's no more questions about that i'll talk about the issues are we ok is that right i think very simply the matter of sovereign immunity is in mr said to me you argue what you want and if we have questions about some else we'll ask you thank you your honor i think the matter of of eleventh amendment immunity for a county in federal court has been well documented there's supreme court precedent that goes back to one hundred thirty years undisturbed in a case called lincoln county v leunig and the case law is filled with cases where the county does not enjoy eleventh amendment immunity in federal court so i'm not going and the the department of justice as you i'm sure you know right so let's go to the claim for compensatory damages under title to section five zero four and if you and i think that's really the more interesting issue to talk about there's the first thing that needs to be talked about is the fact that the county has a title to public entity and the standard of liability when it comes a violation or an are a violation for title to public entity is vicarious liability and the court below applied the standard for when a title three private entity in particular the lease c v indian river hospital case just right away the fact that they cited that case they went astray from applying the correct standard of liability and so the ink ellis the england this court ruled under the a d a simply put public entities are vicariously liable for the discriminatory acts by any of its employees and that makes it different than a title three standard of liability moreover pursuant to ellis binding precedent obligates this court defined the standard for determining liability under the r n a is the same as under the a and vice versa so we already have precedent that a da claims are handled by carious under the standard of like serious liability and if their claims are handled the same as under the a da and they are a for a title t entity then therefore the the standard for determining liability would be the same and that would be vicarious liability under the are a claim so can i ask you a quick question i've got it in my notes and i recall specifically that that and i recognize of course that we hold pro se litigants to a lesser standard of pleading in practice but did you raise this lisi title to title three argument in your blue brief or only in the grand brief i've been i've been arguing this case as soon yes for sure there's no question about that and then i didn't see it in the blueberry the vicarious liability i did spend a whole lot of time on the sovereign immunity issue on my and more than i really needed to and i understand that but it was raised below where you recognize the unfairness those that even even as a pro se litigant the other side doesn't have an opportunity to respond to a vicarious liability in this court that isn't raised in  i do believe that in some of the filings by the county they do address the standard vicarious liability and i when i have some time i'll see what if i can locate that but i'm quite sure that that was addressed by the county so obviously it's if they had time to respond about it they were aware that the standard of liability was at issue  city of el paso the ninth circuit image of the tri county metropolitan transportation district in the district of columbia circuit court in burke harvey washington metropolitan area transit authority all concluded a public bus entity is vicariously liable for the discriminatory acts by a bus operators and also the court in lisi to judicial notice of the fact the second circuit in patton v dumps in the fourth circuit in rosen v mike armory county maryland the circuit in delano pi old the victoria county in the ninth circuit in duvall the county of kits out all found under either the ira or the a b a vicarious liability applies to suits bro against title two entities and i do want to emphasize because i'm sure the county will do what they've been doing all along which is conflating title two liability standard with title three liability standard so  lot then rides on this the waiver issue we've been discussing whether or not this lease last title three argument was raised in the blue brief because it sounds like if it if it's fairly before us then you've got a leg to stand on that my curious liability is good and bus drivers are fine but if instead if the lease the standard controls then they've got to be officials and now we're into some deeper water about whether bus drivers would be officials on that that's ok and hard for me first talk about whether bus drivers can be officials i mean they're the gatekeepers i code try to get on a bus they see me with my service animal they're right in you driving by right and you complain about it and reape taken against them because they're not following what the agency policies are which shows to me that they're not officials the bus operators yeah to go up the chain to the real official ok and then they show the visuals you establish what the policy is oh you're right mr stillman they are they're not doing what they're supposed to do we're going to we're going to fix that problem and they do something about it as is is as you've conceded direct correct doesn't that doesn't that on its face show that they're not officials of the agency the bus drivers i think they're the gate to the cake keepers but it but isn't it ever admit it i mean it the difficulty is that that proves too much right because every violator every alleged violator of the a or the r a is a gatekeeper with respect to the offense right so if every gate keeper isn't also an official then now whether we're entitled to our title three we're in like areas liability land and lisa has said as to title two now ok so you do have the persuasive precedent from the cases i mentioned that title to bus operators make the transit authority liable so there is there are those published several circuit court cases that say that the other thing is the law is in this was disestablished in ellis v england that should transit and i was speaking to somebody let's say paratransit is a private entity and they're in a contract with miami dade transit to provide transportation for those who are not mobile situation so to say that they wouldn't be vicariously liable for their own employees is a bizarre bizarre result and that's the eldest the england case  so and the the county is going to speak a lot about the state of a sorry of the miami dade county that is their only case involving a title two entity and that's the only case i believe that really warrants any kind of attention and in that case it's unpublished case and it's directly in conflict with the published cases coming out of the circuit so i don't really think it carries much weight and the principal reason that it arrived at its decision was because it relied on a title three entity needs to be title two and i appreciate you know your concern about not being raised enough i believe it has been i really do mr sober men mean i'm confused what's our situation here so as mr silverman summarized we did not oppose the substitution on the district court level amendment of the pleading to properly name miami dade county and not a department of the county miami dade transit ok mr so for purposes of this it is this should we treat this as an action against the county so we did not you don't object to that  didn't object to it in your break in your read brief right oh so we didn't even brief it because i didn't oppose his motion to substitute in the appeal having read glick seen in light of clicks i'm not sure that federal procedure forty three allows the substitution right given and i just recognize i think that's a sleeper frustrating about this is that you know it just seems would be a complete waste of time to to vacate in remand so th the substitution could be granted then it could come back again and we could decide the issues that are before us now i would agree with that your honor i'm obviously reluctant to say that the parties can rewrite a rule of procedure by agreement i think that does control but i would like to touch on the merits very briefly since we're here and that's really this is a case where the narrowness of plaintiff sought relief is dispositive he has made abundantly clear in his pleading in his filings at the district court level and in his briefing here that he's really only seeking liability in damages he's seeking compensatory damages and the argument the thrust of the argument is that under the rehabilitation act bus drivers should be considered officials for liability in damages so what about his would help me with my confusion about whether the vicarious liability argument has been raised or not because it seems like well i mean a lot hinges on that because your official line argument sort of sounds like applies if we're an injunction that just sounds odd to me maybe it's because i come from commercial litigation background but that just seems odd to me i mean i think that we could foresee a world where you have employees rank and file employees perhaps discriminating and but the question is whether there's a violation i carry a sly ability as a theory about whether there has been a wrong right i mean to made the damages versus injunctive relief distinction is a proper defendant for affording you the relief once a violation has been established you want to make sure that it's a redress of bull  matter that you know you're going to enjoin someone who can actually read dress the violation but vicarious liability to me goes to whether there has been a violation i hear that the concern really is i think that this is actually a question of whether the pleading has stated a claim for relief plausibly and when the relief sought is so narrow when the pleading on its face for closes the only relief sought than we do have the question of the violation but it's inextricably tied to the relief being sought and that relief is liability in damages monetary relief and an organization's liability in damages is really comes from the actions of someone who can be said to speak for the organization this is sort of like well no municipal liability  hundred three where it's like not pure vicarious liability you've got to show customer policy and to do that you've got to show sort of that it's sort of analogous it's a policy maker it's an official whatever you call it it's kind of like elephant farragher in title seven you've got to show that they're a supervisor somehow you're saying you've got to kind of work your way up the org chart far enough to say that this is fairly attributable to the organization and there's a there's some analogy there i do think just because i'm somewhat familiar with menow claims as well that the policy maker requirement in mono it's a little higher i think that the official requirement or for liability damage in damages is a little lower but the gaps are case kind of has a really the line about it's the supreme court and it's quoting a different case saying you know when it accepted federal funds the organization agreed not to discriminate it didn't agree to suffer liability whenever one of its employees discriminates and that's really what we're talking about is moving the needle whether a bus driver can be an official for purposes of liability in damages and you say no i say no why because i think it's clear that bus drivers are really rank and file employees they have absolutely no supervisory authority and i think that reading it any other way would render the official requirement meaningless right which is something that the eleventh circuit opinion  least i'm sorry i'm not really sure how to pronounce that recognized as you know that interpretation renders it meaningless and because we can't have that i would posit that even at the pleading stage strivers cannot be considered officials given the narrowness of his art relief given that he's only saved three minutes can i jump in here with a question from the get go but why did you not amend your complaint in the district court by march twenty ninth two thousand and seventeen because i felt that the issues of sovereign immunity would still be present because the sovereign immunity was the motion of the district court order that's here on appeal so that the county had sovereign immunity so even if i did and i named the county then we would still be here on the sovereign immunity issue that's why so  was conditional on making allegations that fit the standard of liability under lisi which is the whole argument we're here about so i could not say that anybody but the bus operators discriminated against me i can't say that i can say the bus operators discriminate discriminated to me i can provide you with case law that that's all it takes do you not going to find any case law that says a title to entity bus operator is not does doesn't make the transit agency responsible you want but you will find case law that says bus operators discriminatory actions by the bus operators do make the transit agency vicariously liable i will say even as an alternative argument which i'm quite sure is in the brief is that to determine and i think this goes back to your original question judge prior about the bus operators you know what responsibilities they have what authority do they have and that pursuant to law is all very fact intensive you need to know what their manual say you need to know how they were trained without saying that bus operators aren't officials you have to know what they were what they can do and what they can't do so it has to it's the law as it has to be a fact intensive inquiry to determine if an individual is the an official of the of transit but that's an alternative argument and that was raised so i'm going to say about the eighty eight because e t a was dismissed just because of immunity so this court finds that that was wrong which i'm sure we all agree it was hasn't been argued in the court to then i'll go back on to the district court with my ag a claim only they can't prevail on both a da an r a and also and then i will that depends on whether we can affirm on a different ground supported by the record with which was that you failed to state a claim on on day a claim which was an argument that the county made in the district court and has preserved on appeal that i didn't because of the liability standard you understood