we have this is an issue of first impression the issue is in pieman tell and i would also argue the real party and interest case that were a part interest test in pm until the supreme court said that  it the this satisfies the collateral order doctrine because if you look at in the context of a rule nineteen motion of rule ninety motion it is a matter that is procedural not on the merits claims of the sovereign are not frivolous dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign now whether that is eligible for interlocutory pill under the collateral order doctrine that is an issue of first impression that in this court but it satisfies as i noted in my conditional in my conditional motion all three elements of the collateral order doctrine are satisfied in that because the entire reason why be raised in the first in the case is still pending in the district court right why shouldn't this motion be raised first in the district court and then if denied to be on the subject to a jurisdiction but why we have an obligation to do it now because of the nature of its just like us as a sovereign entity can raise sovereign immunity for the first time on appeal so case is i apologize if davis versus united states i cite that in my brief it's one ninety two federal federal third nine five one page one sixty two at note thirteen and  says the courts may also consider this matter for the first time sue a spontaneous again this this court in the wilkinson case two shields v wilkinson case said the entire purpose of rule nineteen is to make sure that a play  corporation has immunity but because this suit will implicate and called to question to be court decisions ability to control its docket its personnel will be subject to discovery this is exactly why the real party in interest test was enacted it's like  him in an individual capacity but rather than saying well he can just look at that on the merits it said it's obvious they're trying to go after the government and this is particularly the case with injunctive relief they are specifically asking the municipal court to reform its judicial and quayside judicial actions they cannot obtain that relief without the municipal court division being joined as a formal as a formal party and what we can well the judge won't be with if the case proceeds until it is a judgment because under rule nineteen you can you cannot ruling thousand doesn't say you can just proceed against the the non sovereign party the entire case has to be dismissed because you can't have yes yes john not all of the allegations relate to the court there are allegations that are specific to the city the and the leafs sought specific to the city the only allegations we'll see this is will your honor but then see that's big in the question one of the things we have to do under rule nineteen is to look at whether in that the absence of the alleged suffered you can obtain full relief and the supreme court and tell explicitly said that requires you to the exam of the merits just like in the qualified immunity case in question acting are they acting on behalf of the city or on behalf of the state and while they do allege that like jail wardens jail officials said or revoke bond the only legal authority they have to do that is via the court they're acting on behalf of the state you take that out there is nothing left you literally can not litigate this without bringing the municipal court division into this and the eleventh circuit recognized recognized compel assigned assigned to be put up an advertising site but the name defense had no authority to do that they said ok because they don't have authority you have to join the other defendant that so so you're saying if the case proceeded with oh the state as a party yes what would happen at the end of the case in the district court well the judge could maybe say well here's the no i can't grant any relief because the only way to help give the relief that's requested is to do something against the state and that and they're not a party the judge that could do that they could do that but another possibility or are is that the judge could say well since you've defined the municipal corporation to include the inability to pay fines associated with traffic tickets and other minor municipal violations for that failure to pay the city jail them over and over and for indeterminate amount of time and that the challenge conduct in the complaint was driven by the policies and the practices of ferguson executed through agents of ferguson like the city clerk of the city police department and city attorney all acting under the authority and direction of the city council this appeal is from the denial of ferguson's third motion to dismiss i'd like to start with talking about the merits of the case and then about rule does not permit immediate appeal from based on a defense on the merits of the collateral the collateral order doctrine is a narrow exception to the final judgment call and it only applies to a very narrow class of decisions and crucially those decisions have to decide an issue that is entirely separate from the merits of the case and if you consider ferguson's arguments that here they go to the heart of the merits of the middle class so first consider the argument that the all of the conduct in the complaint is municipal court conduct that's just a different way of saying the plaintiffs sued the wrong party and that that the party that got sued the defendant is not responsible for any of the action whether or not the city did what we said it did is precise is one of the core elements of the claim that as a minute support which is the arm of the state so the minimal bar that we think is required for a collateral appeal was met there was a difference between moving in the capacity of as opposed to on behalf of yes your honor or more the way we would phrase it is if you want the appeal court of appeal to decide your immunity your immunity from seat you have to say that you are new and be able to make a colorable argument so even if you have a losing argument if it's a claim of immunity then there's a culture stiction point maybe not not not quite your honor go ahead then i mean the city there was arguing that it had immunity that's right although we did abandon that argument later and and separated itself from a court but i think the  and the fact that that panel press corps of the fact that that panel exercised jurisdiction without deciding the question i don't think binds us ever to find jurisdiction do you i would if you agree with your honor that it doesn't this panel but i also do think that having the benefit of the maplewood decision before you having the benefit of that panel saying that this is the merits defense resolved the question because america fans is not eligible for immediate review on appeal but perhaps the answer should have been no jurisdiction as opposed to a decision on the merits i would agree with that maple which should have been dismissed as well but if this panel wanted to i think you maplewood the city was arguing immunity i mean they were going serve a real party in interest combined with immunity but anyway he proceed that's so that's right your honor in this case the only arguments the city makes are merits arguments in support of immunity and it never argues for its own immunity from suit here and it never argued for its own immunity from suit below and as a consequence there's really no immunity question for the court to decide so with that oh so you think we have jurisdiction to decide this rule nineteen issue no your honor and that's because the condition for  the city's request that you decide that motion should not be triggered specifically the city says should this court agree with the plaintiffs and reject ferguson's primary arguments by concluding that miss record division is not the real party in interest than the court she defied the rule one thousand motion we don't think that the court should agree or disagree whether on the question of whether the minnesota court is the real party in interest we think that that's a key merits question that ought to be decided below the question of whether or not the city did what we say they did and so the condition as it should not spring to consider the ruling thousand motion does that answer your question question all right so you're not i'd like to address one of the main arguments that the city has been making which is that the the judgment against the city here would necessarily municipal court and that is why the entire species and your honor i just want to say that we sued the city for what the city did and we don't get to define the judge of them in a civil court would have been surprised to find out that he is entirely responsible for that ordinance that is an ordinance that was passed by the city council with no one gotten from the court and similarly after the consent decree that section of the code was amended entirely by the city council vote signed by the mayor and by him and attested by the clerk that's the kind of action the we're aiming at the entire the rule of the city in creating the environment the lead to the harms that we are alleging in constraining the minister for court in ways that that increased the revenue flowing up to the city so it's just it's really just false and also the matter of public record that the plaintiffs are aiming at purely judicial and quasi judicial conduct suing the city for what the for what the city did or chose not to do another give another example is another amendment to the municipal code that the city undertook after the consent decree to section thirteen sixty eight and that and that section now requires that the municipal judge shall consider the ability to pay of defendants before assessing fines if you and so the city stands up here and sa we have no control over procedures in the court and any relief against us doesn't either doesn't apply to the court because it's entirely distinct or binds an entirely  if the city could undertake an ordinance that the directs a judge to consider ability to pay then the city could have done that earlier those actions were entirely within the control of the city and that city because really the city is the driving force behind all of the violations and all the conduct in the complaint cites that all of those cases are cases in against officials in their official capacity in so you have to look behind them to see whether or not they're just a rogue tortfeasor is or whether they represent the policy of the city here we're not going after the chief of police for his conduct or trying to sue the judge because those were just individuals executing the policy of the city from above we're going straight plaintiff you are going straight thank you for your time very well thank you very argument mr reeves who here community several things your honor is first i would say that if this court decides not to adjudicate the the conditional relied too matter first can decide this because this is a purely legal issue it is not an issue of state because who has the authority to under an unlawful policy or custom as a matter of state law second going to the issue of what my friend this here says about assessment of the merits of the case because you can't determine whether complete relief can be afforded in that in the absence of the party without looking at the merits and having done that and i apologize should've said this earlier the in the up on a billboard but the id they sued had no legal authority to put that advertisement up so injunctive relief against them would have been ineffective and the eleventh circuit read yes that's right so they have to be joined but where where is doing there was no problem there because that was a private entity here it is and despite my from a serious protest to the contrary the fact is that they are asking for injunctive relief against the issuance of bonds the issuance of arrest warrants and  that's missouri law only vested municipal court division with the authority to to undertake municipal corporations have no legal authority to do that because of that that makes them a required party under this because they cannot get the relief that they need but the fact is that the municipal court division cannot be joined because it has sovereign immunity and if it cannot be joined because of that according to peep intel the case has to be dismissed and having said that i ask this court first thank you this come remind me again the condition was why if this court rejects the real party and interest claim although i would argue have to look at the forestall case from one nine hundred forty three the practical difference between the real party interest kate argument in the rule nineteen argument is a distinction without a difference because in both cases they're a rule nineteen as opposed to the ok so that's not an innocuous tory peel that's a motion yes it that's how i phrased it and it can be raised for the first time on appeal and that was my view sneek we have jurisdiction to take up a motion that would order the case dismissed on appeal because of the rule named yes your honor b r yes your honor because it's my view that the rule nineteen argument if you look at the p mintel case the concerns about what direction why would we have to give the dischord directions you can file the motion to time direction by that already yet the directions that consider this before allowing the case to proceed any further on the merits and allowing the case to proceed on the merits were absent