questions to you because i'm concerned about what the whether or not your errors are preserved or really in a way when are here's how i see this case and i speak for myself what the what the district judge did here was that the plaintiff in system was to transform a procedural blue process right into a subs due process right such that the sheriff had a duty in effect to arrange a hearing and when he did not do that  which was the damages action which went before the court to determine whether or not there was enough to have a hearing the supreme court  is not that there's a sub the due process right which the effect picks up incorporates the common law defamation now i don't know whether or not if honor we phrase it a little bit differently throughout the case we took the position that the measure of damages in this case the theory pursued by the plaintiff was inaccurate in that they were essentially trying to constitutional as a claim of defamation against the sheriff a claim for which he has absolute privilege under florida law and when our view the case is about damages for the denial of the hearing not to whitewash what's already out there if you will by the statements in the press release issued by the sheriff's office you get a hearing to rebut that in the normal course of action for a hearing is held you're not going to end up with any result any finding the internet's not going to delete any new sensationalized news articles we raise that in our rule fifty motion as to whether or not there are actual damages to support the jury's verdict the court that there's liability trust the entity at issue has not given one despite a demand for what is the constitutional remedy for that now what do you think  re you could have nominal damages you can prove that there are compensatory damages motional distress that sort of thing that attendant to the denial of the hearing why not why not  case i just quoted to you the recipe for that constitutional violation is a name clearing hearing and i'm concerned that you may have gone along with this damages idea i find that you told the court that that the remedy in this case was and injunction to have a hearing and maybe maybe nominal damages as justice brennan said in that same preserved if you know our actual damages argument rule fifty but the reason that it doesn't stand out more in the trial is because this is the nd time this case has been up on appeal to this court in the st matter and the the entire issue was the issue of whether or not a remedy of a she could have sought a state remedy to get the hearing she wants and avoid i'm not talking about the state revenue i'm talking about a federal district judge which she the defendants were not framing the issues that they're seeking or the relief they're seeking we do point out and it comes into play on the cross appeal it tourney series if they did not seek that injunctive right they could have they did not do it in this case what we wait we were left to defend the claim as it wasn't a claim was they were pursuing compensatory damages we raised that as an issue in our rule fifty motion that they did not prove actual damages to the extent that there are damage available and section one thousand and three dollars claim we certainly don't concede that they are and we do not concede that they have anything to do with back pay available to her she could receive that they put on an expert not regard or that has anything to do with white washing the internet which is what her her that's the only damages evidence they put on and we oppose that you know rule fifty we said you haven't proven actual damages that's where we preserved it thank you let me turn to another issue which records you which is the least the issue you lead off with in your brief which is the assuming you are right that there isn't one l component to the name leader in hearing the claim why isn't this case just harmless error i mean the sheriff is the county he is the policy maker he's the one that did not hear it in this particular context what else under mon l was this johnson supposed to prove yes  honor that the response to that question i think is twofold st the court decided this issue the trial so we were not allowed to make that argument we were not a put on our evidence we could have put on some evidence to just to really delve into what involvement in the sheriff have as the final policy maker versus what was done by subordinates the overwhelming bulk of what happened here was done by his subordinate employees down to the level sergeant we're talking about a seven hundred person agency now in terms of denial of the hearing he didn't fire mr johnston he didn't make the bulk of the statements when is the right perfected when she was terminated by major long is not the sheriff who's not a policymaker he's number three in command at that point her claim had not even been perfected because no statement had been released let alone a false or stigmatizing one her statement if anything if i'm going to thank you statement her claim gets perfected down the line and at that point in time share borders is not even in the picture and maybe this court you know the only way to hold it sheriff borders is responsible that he should have been but when we're looking at the actual facts of who did it in this case you know what he did it nobody did it in this particular case then yes it sure is that if the sheriff as you said is ultimately responsible for doing it and there are no subordinates to take any action to do it how can the sheriff not be the final policy maker for what el purpose yes the final policy maker for under the law he's not in the facts of this case he didn't make a decision so you would be that inaction doesn't amount to a policy if we had a track record of doing it if she had requested it and he had denied it or directed subordinates tonight clearly you could have that but in this particular case you could have it's the same thing with any other section twenty three claim you could have st amendment a policy you can't retaliate against somebody for protected speech same thing you actually have to take action to deprive her of her liberty in this case the sheriff didn't do anything certain and the only thing he did joint lation indicated there is no one element it's not good on summary judgment the appellant's argued the elements of this claim not with mono this court in its prior appeal set out the elements of this claim and did not mean the fact that we didn't list it out specifically in boston i mean i don't know we have to rewrite barrel courts case but that's the other i just understand i understand the point your honor certainly if if there is a negligence claim and someone leaves out duty the argument be you can say duty doesn't exist understood however the issue becomes one of prejudice that there's no money issue that's raised through the years of the litigation is johnson has not put in the position where they're going to raise that sheriff borders land then three months before trial after german structures were originally submitted before summary judgment after the ruling on this appeal from this core previously now they come in when yellow is an element we're every there is prejudice at that point well where ultimately doesn't become an issue as this the court as counsel points out the district or did rule on this pre trial and it is for as we cite you in our papers it is for the district court under this court's opinion in dover school board of broward county for the district court to determine final policy making authority is an issue of state was decided by the district court not the jury the district court probably made that decision pre land so this has been met he stands by that he is charged with advising of a name clearing hearing right this court found in the prior appeal that sheriff orders did not do that and he was required to as well it it sheriff orders sure force testifies he stands by the decision by major longo to terminate miss johnston again he's the final authority is well because it's an issue of state law as we know it in our brief section thirty fifty three of four to statutes provides that ask you a sheriff sheriff has independence on numerous grounds selection of personnel hiring and most important in this case i ring so the district court properly found mon el is not an issue i he he is asked that he understands that he is charged with giving the he charged with informing mr johnston of the right to a name clearing hearing because of this court's ruling reversing summary judgment and he  acknowledges that he is in fact the person who is charged with that obligation he knowledge of that during trial because as he has he been informed that is the basis of what was the prior appeal so the answer is yes i  case throughout summary judgment through the appeal was that sheriff orders had no obligation to inform of the right to a name clearing hearing that was their steadfast position we did not have to tell her it took this court to reverse and indicate in fact you do have that obligation that was made clear in buxton many years ago so there was no basis by which the sheriff was going to do anything other than stand by the position they took of i did not have to inform his johnston of the right to a name clearing hearing now they want to come back and take the position well we didn't tell her but it wasn't a policy if your position is we do not have an obligation to tell her you have a stablished a policy the policy is you do not inform your government employees  the right to a name calling here and that's what they make clear sheriff borders testifies to trial he did not even know what a name clearing hearing was until this case for years that's the policy as this court has found out to policy that effectively the argument as it could have because this is the only instance this court found in cooper versus dylan single decision by a policymaker can constitute you know civil policy and that's certainly one in fact that occurred here applies they argue because they say it applies to every section one thousand nine hundred and three claim well when it comes to damages now the position is well there but that that doesn't apply when it's a section one thousand and three claim as to damages that functionally does not work the supreme their own initiative and therefore they denied her a subs a right which is measured by this the damage she suffered t concept there was any stick so there was no need for a hearing however yawner the apple e is not limited to a remedy of a name clearing hearing because once that is denied and the suffer the damages and the longer the period before i go to trial the better so if it takes for five years i've flora five years of defamation to get money is that right your honor not your honor because what they did is win as we know from the record in the part of this as to the false statements that were made we know that within two hours of her terminations a press releases put out the false information within the next four days several newspaper articles mitigated the loss of the future then it occurred i have been hearing your honor but she's denied the right to an inquiring hearing so in effect this court would be rewarding the sheriff's office i use injunction but your honor she's not limited to that remedy ultimately and to your point of whether this is waived i'd like to address a jurisdictional issue which i think resolves a lot of what is the matters on appeal he did not seek the remedy the supreme court said she would probably filed b the original judgment is amended to include prejudgment interest that is it there was an agreement as to amount this was simply a rule fifty nine dollars motion to alter to include that because the judgment drafted by the district court in not include prejudgment interest if it had the calculation would be a roll sixty motion they wouldn't if you had the ability to have filed this rule fifty nine motion join for that is why is it your jurisdictional arthur almost completely foreclosed by  versus local one hundred and thirty seven found to this very point when a judgment is amended timeliness of the rule fifty nine emotion is determined from the amended judgment only if the motion bears some relationship to the alteration of the st judgment we what it would allow if you open this up is that the apple aunt would the and miss johnson would have to decide do i want to add pre judgment interest or do i not because of i do i am opening the entirety of the judgment open to simply correct that prejudge minister pre judgment interest was not included by the district court it should not allow opening now when there is no dispute the will fifty nine emotion filed by the appellant was untimely no dispute about  you i haven't looked taken a deep dive to this record which is big did you ask for pre judgment interest before the initial judgment was entered i want to be sure i understand the question or argue we asked for it judgment on the verdict did you ask for pre judgment interest i do not believe that we did your honor but ultimately so there is this to the to the problem that you're alluding to miss johnson place in a difficult position of choosing whether to reopen the judgment or not this is an issue she could have avoided by asking the judge for pre judgment interest from the outset your honor i see my time is expired i have leave to answer the question yes of course ok answer is your honor that miss johnson is not required to have asked for it for a judgment which is prepared by the district court that if this is an error to be corrected she has an autonomy to prejudge an interest the district court either has to make a finding of a date of loss for the calculation to be done which is a ministerial act or as happened here and why this is waived by the appellant with their fifty nine emotion they agree to the amount of interest they greet to a date of loss they agreed to the amended final judgment it's not the disc was ultimately something corrected by the district court we agree to it so therefore we have that they waived it ultimately and filing their motion too late and this court cannot consider those those arguments as to the rule fifty nine emotion and it wasn't preserved as a rule fifty b motion ultimately which is required under a supreme court in this court's precedents to have preserved these arguments on the sufficiency of the evidence again most of this is simply waived that's the easiest course in resolving the appeal it's your honor on a couple of points raised by opposing counsel st is it accurate to say that throughout this case this sheriff position has been that she should not receive a name clearing hearing sheriff position at the time all of this happened was that we did not understand that the name clearing hearing was appropriate based on the circumstance we did not and still don't think that the evidence supports a false stigmatizing claimed now it is true page forty eight of docking number two hundred and fifty two the sheriff is asked about this and he says he personally doesn't isn't aware of the name clearing hearing this was part of the earlier procedure but when asked about a trial he understands of course at trial that this court said he should have the office should have allowed her or notified her of that had to be had it been known handed been a false stigmatizing statement so it's an extent opposing counsel is implying that there was some decision made therefore there is a policy that's inaccurate it was no policy was in action and maybe ignorance in our view that doesn't support final policy makers status for purposes a mon to judge joe flats question or i think you know to the point that they are pursuing they have pled the case as a procedural due process case but they have pursued damages as you point to subs and due process we preserve that by arguing that they did not show any damages which you can get assume st sake of argument that you can get something other than a hearing those damages are for the deprivation of your meaningful opportunity they presented to experts on damages neither whom addressed that point that is what we presented in rule fifty so the actual damage were not proven and ellen in the case mr mr gordon says part mr coach with regards to the that you never listed in the pretrial stipulation there never put there by never put anybody on notice that this motel issue was going to be litigated either through discovery or a trial and that you have therefore forfeited it or waited to use whatever terminology you want could you respond to that absolutely your honor we we obviously disagree with that what mr gordon is arguing for is a hypertechnical pleading the elements that are laid out which were in a joint pretrial statement which were in this court earlier specifically have an element that you have to show that the false stigmatizing publication was made by a governmental employer our view is that's what is in compassed under mono keep in mind we have shared borders individuate end in his official capacity this implies to the sheriff's office is official capacity so that element as it pertains to the sheriff in his official capacity encompasses mono they have not see my time is up me out now i have a half a minute to finish my thought yes they have not point to any case law says you have to identify and spell out these exact legal standard applied under each of the elements the elements is there has to be a publication by the government employee or we did not waive it thank you your honor right thank you both very much