time discussing two issues of first impression in this court whether others direct entity in vicarious entity liability under the driver's privacy protection act first we ask that you or did you raise vicarious liability to the district court in argue that to the it without really without discussion so but shouldn't there have been an argument made by you that vicarious liability is a reason not to dismiss the case i don't believe we don't we don't normally take those issues up for the first time on appeal t language of the d p a direct liability applies to cities and counties and there's no doubt that was briefed and rule on below and second we do ask the court find vicarious liability applies to cities and counties under federal law whereas here the conduct was made section twenty seven twenty four the access a person who violates the d p p a civil liable a person under the statute includes not only individuals but an organization or an entity when it explicitly excludes state agencies and states so congress knew how to write exceptions into the statute it did so for states and state agencies but it included no exception probably eleventh amendment issue don't you think oh i think it would be but they also specifically stated in the statute so rob about because of the eleventh amendment probably but there was nothing in there that expressly excluded cities and counties rather expression included them by reflecting organizations and entities i guess the question in my mind is whether the knowingly provision applies to both the action and knowing that it's not use for acceptable purposes sure well i don't you think you have to get to knowingly here your honor because we have to in the sense that did employees the law enforcement officers the officers as we said very specifically large knowingly accessed for an impermissible purpose so that it's it's but they both know only did the access and they knowingly had an impermissible purpose so the city is the city is made up of its people and so it also knowingly accessed and ignore the access for an impermissible purpose it's different than the commissioner liability issue because there there is a issues well they would be if the court does not accept our request for a modification reversal which we asked for but that issue is not firmly decided is the church opinion obviously i understand the circuit decided in the mcdonogh opinion and then  but for the claims that could come back i'm sorry you're just so i'm clear there are no remaining claims that are past the statute of limitations that occurred within the statute limitations based on mcdonnell that's correct or are ok i thought there were a couple that survived but no but there are for instance seventeen northfield accesses that have not been disposed of that would if there were a modification or reversal session imitations that would come in that's the former employer of michigan more so so but no there are enough so as we sit here today assuming mcdonagh is the law of the circuit there's a pretty easy case isn't there well  we asked for the modification reversely what do you mean by that modification in reverse on the i don't understand what you're talking well we we we ask that the court revisit and i understand the panel can't do it so i do understand that so blue cross this is a pretty simple  es just madonna statue as we sit here now unless the supreme court acts in the interim it's a pretty simple case right well i guess so but we're we would ask the court you know the court we could act in the interim of course if it just kidding we just don't know we just don't know how it's going to go in the makeup of the supreme court before yes i'm sure if i could go back to explaining i realize there are a lot of variables here but i could explain why i think direct liability does apply to the cities and counties in the time that i do have the language of the exception twenty seven twenty one b for b one allows a database to access a government agency or a law enforcement agency in carrying out its function or or an individual as well so if an agency may be exempted from liability an agency can also be liable when his access was not to carry on a law enforcement function so it's clear that the b you want to exemption intends to clarify a permi sure their private investigation see would not apply only to the individuals who work for those employers but also to those agencies or insurers themselves there's no doubt the insure the private investigat there are three avenues for vicarious liability first the macc that the misconduct could be done in the scope of employment second of employees misconduct was accomplished because of his role in relationship with his employer or the aided in agency relation of employment the officers used the government entity computers and access d b s the passwords and credentials that were available to them because of their positions as law enforcement officers in those cities and counties they were aiding the agency relationship and third law enforcement officers were given apparent authority to use the d v s database by their employers unlike other municipal employees who are not providing access i would like to reserve the rest of my time for by just briefly come back to my question about whether this issue  raised before in their motion to dismiss did they argue there is no direct liability i believe they argued there was no direct liability so i don't think vicarious liability was raised by the defendants ok but it was pled by the point i got it but assuming that's true wouldn't you have an obligation to say in response to the motion to dismiss that yes there's direct liability but there's also vicarious liability when she would have the responsibility of argue raising that first and foremost this case is about judicial restraint and stari decisis the bench the panel has caught on to the fact that there are really no controversy at issue in this case assuming that the united states supreme court does not reverse that itches decision that this panel issued last year on that and it's noteworthy that the mcdonough decision which was the first decision to decide the appropriate statute of limitations under the d p p was also petitioned and search was denied the supreme court decided not to readdress the statute of limitations issue is or circuit split on the issue no judge there is not in fact there is consistency in other circuits have adopted this court's holding there would be four issues that would possibly be at issue below but today this court should find that there is no live controversy because shambles claims are moot due to the fact that she dismissed the only timely claim that remained as we sit here today with mcdonough being the law of the circuit and to just be in a lot of the circuit there is no timely d p p a claim to return to the district court to decide following dismiss of the complaint for failure to state a claim there were two claims one against race county and want to get to the city of northfield that the judge had determined were possible instead of prosecuting those claims they were settled they were dismissed they were fully resolved and settled and dismissed with prejudice plaintiff then asked the court to enter a judgment in the case as dense oblique to file this appeal so the first issue is whether or not this claim is moo and i think this court we believe the court to exercise additional restraint and find that you know if we're discussing those timely claims against and for the defendants they're no longer part of this case there is nothing for this court to decide you know it's well established that this c imply we didn't have jurisdiction but yes your honor untel until i heard the argument prior to my end this morning it was still unclear in my mind whether or not the issue was direct and vicarious liability related to the timely claim r the it did become moot at one point let me clarify it became moot because there were two timely accesses there were two timely access is following the district court yes your honor ok so in order to respond to the issues that were argued by my opposing counsel we would take the position that if whatever happens with the supreme court in whatever action court takes while it waits for a decision from washington that the standard for vicarious liability that is being forwarded by the plaintiffs is not the appropriate standard and we would ask that this court instead look to the restatement third as the statement of the general principles of agency law that should apply so i would briefly address that argument the apparent authority theory was disgusted by the supreme court in a case called american society of mechanical engineers versus high level and that first of all the d p a does not specifically address vicarious liability at all it's not in statute the united states supreme court has not applied vicarious liability to the statute and this court has not applied vicarious liability to the statute there's no binding law district courts no circuit court in the united states has applied it as squarely addressed as a matter of fact however district courts in this address that decision and the court found that under the facts of that case what it would mean is that the apparent authority theory of vicarious liability that was being argued would result essential in strict liability for the employer and i think that's exactly the reason why judge montgomery was correct to be hesitant to impose vicarious liability that's exactly what the plaintiffs have argued in this case in their reply brief on page thirteen they say the employees at issue received passwords to access the d v s database from their employers to perform regular and expected activities of the officers at issue and automatically had apparent authority to do so if the courts were to impose an apparent authority fieri it would result in strict liability it wouldn't be a question there's another reason that this statement demonstrates why apparent authority is not the correct standard and that was set forth by the supreme court in the burlington industries case in one thousand nine hundred eight in that case the court  general rule apparent authority is relevant where the agent purports to exercise power which he or she does not have as distinct from or the agent threatens to misuse actual power the claims in this case involve an al alleg misuse of the authority to use the system it is not apparent already this is a case where the application of vicarious liability should come through the scope of employment tast there are other cases where courts have applied the apparent authority for example there's the sheriff's versus city of brookfield case now that case is distinguishable from the case at bar because unlike in minnesota where officers are given their own password and they're able to access the information they're given the express to access the information themself in that case the police officer from wisconsin made a phone call to the d m v in arizona represented himself as a wisconsin police officer and requested a record on that case he was holding out having the authority to get it authority was relied upon and that in that case the apparent authority theory is more fitting whereas under the supreme court's ruling in the burlington industries you don't apply apparent authority when there is actual authority and in this case we have actual authority the supreme court has also recognized that the aided in agency theory that plaintiffs has forwarded was expressly abandoned in the restatement third in the case of vance vers ball state university twenty thirteen so it's one thirty three supreme court two four three four and i horton i ask you as well if any of this aired out before the district court on the vicarious liability no judge the issue of vicarious liability was not brought at all we did oppose on the basis of direct liability just simply on the basis that statutory interpretation we could dot the entities could not have done what is necessary for a person to be liable under the act and my time is up i w me please the court my name is susan ten dollars i'm here on behalf of the city respondent including the city of nor field and i was prepared to address for the court today the direct liability claim which i understand along with my colleague mr sullivan that for the first time we are understanding that if all of the claims are barred by the statute of limitations which we certainly agree with this court's decisions  checked then there are no issues before the court the confusion came in in the briefing it was not clear that even though the abscess by rice county was dismissed and settled in the access liable under the act i understand that those claims are not before the court however i will address a few things that mr straw was brought before the court today just for clarification on the direct liability issue which was briefed before the district court below them let me go back just so i'm clear on the issue of what's before us if they've if the claims involving the ones that were within the statute of limitations have been settled or dismissed i assume there would be no liability against the city entities in any of that right that is certainly the position that we take we did not understand that that was a poem's position until today that they were claiming because actually the dismissal had to do with the in vigil users the individuals instead of the entities and whether they were saying that  not just a matter of that the case was barred by the statute of limitations sole frankly vance why the focus on the briefs was on direct and vicarious liability because respondents do believe there is no  i think that a decision on that petitions from two to two will be decided shortly just to clarify a few things on the direct liability in the remote possibility that that would be before the court at some point the argument that respondent is that it is essential that under the act the knowingly piece of it that the entities must know when we give access for an impermissible purpose and that actually comes from the plain reading of the statute as a grammatical matter and i'm looking at eighteen u seven a and the other sides argue argument and responses while the city can only act through its its agents and the agent we clearly played that the agents knowingly accessed it for an improper purpose what's your response to that i i respectfully disagree with that your honor entities cities and city councils county boards can act independently of their agents they can pass resolutions for example they could pass a resolution that would direct an employee to improperly act less so one more vehicle act out record for an improper purpose and that would be the entity themselves acting so i disagree with that and when you look at the complaint there's only conclusions regarding the entities and not allegations pacific regarding the entities and their knowledge about giving access to the database for an improper purpose certainly no indication that there was action on behalf of the county boards or the city council ratifying or passing a that is an important clarification with respect to direct liability because they if mr strauss argument was that they the entities could only act on behalf of employees the argument would be there would be no direct liability ever under the  but in fact there is circumstances where the entities could act as a whole and let the court pretty farfetched that seems highly unlikely that there's going to be a resolution saying please access this for an improper person purpose i agree it could be far fetched but it is a possibility and so the statement that in that entities only act through their employees is not true just so we have some certainty and we're on the same page i think we've conceded that that if mcdonough is correct there are no remaining claims that are outside the statute of limitations but i think we just had a little discussion that that at least at one point there were one or two that were within the statute of limitations that were settled or dismissed you're not arguing that those are still live against the city entities right  couple other points first of all the cities and the counties are asking the court to rewrite the statute they're saying that there should be no consequence for the entities involved here when congress clearly defined a person as an entity an organization if this were and i'm sure how else could  ensure act but through its employees they're basically saying that ensure should only be liable under the d p a if it's president or sea level employees or its board of director x rector's act there's nothing like that in the statute there's no reason to rewrite it in that way strict liability is also a hearing in this in these arguments under both direct or vicarious liability strict liability is a time when there is liability without fault here there has to be fault there has to be wrongdoing it has to be for in im permissible purpose there's no strict liability here if somebody access to it was permissible purpose and it was for permissible purpose and there's no liability so strict liability is a red herring and i went in quickly looked at the appendix while we limitations and so he dismissed when he grew he added that richard is the he didn't have to do that so i don't believe we ever had an opportunity to argue before before him and so this is the first opportunity to discuss vicarious liability for the order which you're now saying is you don't think they made an argument with respect to the city and county and he separately and i say the direct liability argument they didn't even know i don't believe even though that i believe they said they were not liable because today thank you very much for all the cases admitted we will take it under consideration