Petition for Writ of Certiorari — Pennsylvania, et al., Petitioners v. Jose Montanez, et al.

Supreme Court briefMar 9, 2026

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No. __________

In the Supreme Court of the United States

COMMONWEALTH OF PENNSYLVANIA, ET AL.

Petitioners,

JOSE MONTANEZ, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID W. SUNDAY, JR.

Attorney General

Commonwealth of Pennsylvania

DANIEL B. MULLEN

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Counsel of Record

JACOB FRASCH

Senior Deputy Attorney General

Office of Attorney General

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

(412) 235-9067

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

The Third Circuit held that the Commonwealth of

Pennsylvania is vicariously liable for violations of Title

II of the Americans with Disabilities Act and Section

504 of the Rehabilitation Act committed by third-party

contractors providing medical services to inmates in

state prisons. That holding deepened an acknowledged

circuit split, and is inconsistent with this Court’s precedents. But no party raised the issue of derivative liability at any point during this litigation. Instead, one

week before argument, the Third Circuit sua sponte

identified that unraised issue and inserted it into the

case by requiring the parties to address it. That egregious violation of the party presentation principle warrants summary reversal under United States v.

Sineneng-Smith, 590 U.S. 371 (2020), and Clark v.

Sweeney, 607 U.S. 7 (2025) (per curiam).

The questions presented are:

1. Did the Court of Appeals violate the party presentation principle by sua sponte inserting the derivative

liability issue into the case?

2. Are public entities and recipients of federal funding vicariously liable for Title II and Section 504 violations committed by third-party contractors?

PARTIES TO THE PROCEEDING

Petitioners are the Commonwealth of Pennsylvania, Paula Price, Nurse Mel, Richard Ellers, Mary Patton, C. Wakefield, N. Davis, and John Rivello. Petitioners were Defendants-Appellees below.

Respondents are Jose Montanez (who was PlaintiffAppellant below), and Rajinder Mahli, Gabrielle Nalley, Dr. Vernon Preston, Dr. David Edwards, and Wellpath Care (who were co-Defendants-Appellees below).

RELATED PROCEEDINGS

United States District Court for the Middle District of

Pennsylvania:

Montanez v. Price, No. 3:22-cv-1267 (final judgment

entered August 23, 2023)

United States Court of Appeals for the Third Circuit:

Montanez v. Price, No. 23-2669 (judgment entered

October 30, 2025)

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ............................. ii

RELATED PROCEEDINGS ........................................ ii

TABLE OF CONTENTS ............................................. iii

TABLE OF APPENDICES ......................................... iv

TABLE OF AUTHORITIES .........................................v

INTRODUCTION .........................................................1

OPINIONS BELOW......................................................4

STATEMENT OF JURISDICTION .............................4

STATUTORY PROVISIONS INVOLVED ...................4

STATEMENT OF THE CASE ......................................5

REASONS FOR GRANTING THE PETITION ...........9

I. THE THIRD CIRCUIT VIOLATED THE PARTYPRESENTATION PRINCIPLE BY SUA SPONTE

RAISING THE VICARIOUS-LIABILITY ISSUE .................9

II. IMPOSING VICARIOUS LIABILITY ON THE

COMMONWEALTH DEEPENED A CIRCUIT SPLIT ........15

III.IMPOSING VICARIOUS LIABILITY ON THE

COMMONWEALTH IS INCONSISTENT WITH THIS

COURT’S PRECEDENTS .............................................19

IV. THE VICARIOUS LIABILITY QUESTION IS

IMPORTANT ..............................................................23

CONCLUSION ............................................................26

TABLE OF APPENDICES

Appendix A. Court of Appeals opinion

(Oct. 8, 2025) ...........................................................1a

Appendix B. Court of Appeals order directing

supplemental briefing (Oct. 17, 2024) ..................35a

Appendix C. Court of Appeals letter

(Sept. 19, 2024)......................................................37a

Appendix D. District Court opinion

(Aug. 23, 2023) ......................................................39a

Appendix E. District Court order

(Aug. 23, 2024) ......................................................65a

Appendix F. District Court order

(Feb. 14, 2023) .......................................................66a

Appendix G. Court of Appeals order in

Vogt v. Wetzel, 18-2622 (Feb. 11, 2020) ................69a

Appendix H. Court of Appeals order in

Korb v. Haystings, 19-2826 (Sept. 23, 2020) ........71a

Appendix I. Court of Appeals letter in

Peifer v. Pa. Bd. of Prob. & Parole, 23-1081

(Jan. 12, 2024) .......................................................74a

Appendix J. Court of Appeals order in

Talley v. Moore, 22-1307 (Sept. 3, 2025) ..............76a

TABLE OF AUTHORITIES

Cases

A.J.T. by & through A.T. v. Osseo Area Schs.,

Indep. Sch. Dist. No. 279,

605 U.S. 335 (2025) ..................................................22

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................20, 21

Armstrong v. Schwarzenegger,

622 F.3d 1058 (9th Cir. 2010) ............................18, 20

Bagot v. Ashcroft,

398 F.3d 252 (3d Cir. 2005) .....................................13

Barnes v. Gorman,

536 U.S. 181 (2002) ...................................... 15, 20, 21

Cadena v. El Paso County,

946 F.3d 717 (5th Cir. 2020) ....................................24

Cent. Bank of Denver, N.A. v. First Interstate Bank

of Denver, N.A.,

511 U.S. 164 (1994) ............................................20, 21

Children’s Health Def., Inc. v. Rutgers, the State

Univ. of New Jersey,

93 F.4th 66 (3d Cir. 2024),

cert. denied, 144 S. Ct. 2688 (2024) .........................14

City & Cnty. of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) ..................................................19

Clark v. Sweeney,

607 U.S. 7 (2025) ............................................ 3, 10, 12

Delano-Pyle v. Victoria County,

302 F.3d 567 (5th Cir. 2002) ....................................17

Duvall v. County of Kitsap,

260 F.3d 1124 (9th Cir. 2001) ..................................17

Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) .................................. 3, 16, 19, 22

Guardians Ass’n v. Civ. Serv. Comm’n of City of

New York,

463 U.S. 582 (1983) ..................................................21

Hall v. Higgins,

77 F.4th 1171 (8th Cir. 2023) ..................................24

Hargrove v. Sleepy’s LLC,

974 F.3d 467 (3d Cir. 2020) .....................................14

Harrison v. Klein Ind. Sch. Dist.,

856 F. App’x 480 (5th Cir. 2021) .............................17

Henrietta D. v. Bloomberg,

331 F.3d 261 (2d Cir. 2003) ...............................18, 20

Ingram v. Kubik,

30 F.4th 1241 (11th Cir. 2022) ................ 3, 15, 16, 17

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) ..................................................21

Jones v. City of Detroit, Michigan,

20 F.4th 1117 (6th Cir. 2021) .................. 3, 15, 16, 17

Marks v. Colo. Dep’t of Corr.,

976 F.3d 1087 (10th Cir. 2020) ..........................18, 20

Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658 (1978) ..............................................8, 25

Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) ..............................................8, 18

Plains Cap. Bank v. Keller Ind. Sch. Dist.,

746 F. App’x 355 (5th Cir. 2018) .............................17

vii

Rodgers v. Smith,

842 F. App’x 929 (5th Cir. 2021) .............................19

Rosen v. Montgomery Cnty.,

121 F.3d 154 (4th Cir. 1997) ....................................17

Tennessee v. Lane,

541 U.S. 509 (2004) ..................................................24

Tolan v. Cotton,

572 U.S. 650 (2014) ..................................................13

United States v. Burke,

504 U.S. 229 (1992) ..................................................12

United States v. Cnty. of Maricopa, Arizona,

889 F.3d 648 (9th Cir. 2018) ....................................19

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ........ 1, 2, 3, 10, 11, 12, 13, 14, 25

Wood v. Milyard,

566 U.S. 463 (2012) ..................................................12

Statutes

28 U.S.C. § 1254 ............................................................4

29 U.S.C. § 794 .............................................. 5, 6, 15, 23

42 U.S.C. § 12131 ........................................................23

42 U.S.C. § 12132 ................................................4, 6, 23

42 U.S.C. § 12133 ........................................................15

49 U.S.C. § 24102 ........................................................23

Regulations

28 C.F.R. § 35.130 .......................................................20

28 C.F.R. § 42.503 .......................................................20

viii

Other Authorities

The Federalist, No. 78 (Hamilton) ..............................14

INTRODUCTION

In our legal system, courts “are essentially passive

instruments of government.” United States v.

Sineneng-Smith, 590 U.S. 371, 376 (2020) (cleaned up).

“They do not, or should not, sally forth each day looking

for wrongs to right.” Ibid. Instead, courts must “wait

for cases to come to them,” and then “decide only the

questions presented by the parties.” Ibid. This principle of party presentation should be simple enough. But

the Third Circuit failed to observe it here.

Jose Montanez is an allegedly disabled inmate in a

Pennsylvania prison. He brought claims under Title II

of the Americans with Disabilities Act (“Title II”) and

Section 504 of the Rehabilitation Act (“Section 504”)

against the Commonwealth of Pennsylvania, various

Commonwealth employees, and separately-represented individuals employed by a third-party contractor. His operative pleading alleges that his disability

was not accommodated, and thus he was excluded from

various prison programs, services, and activities. The

District Court determined that Montanez had not plausibly alleged such exclusion and dismissed all his

claims.

On appeal, Montanez disputed the District Court’s

conclusion and argued that he stated Title II and Section 504 claims against numerous specifically identified individual defendants. When pressed, he conceded

that his claims against these defendants in their individual capacities were legally impermissible. But he

clarified that he was also suing these individuals in

their official capacities. And—perhaps as an aside—he

noted that naming the Commonwealth itself as a defendant was actually “redundant” because the official-

capacity claims should have been treated as claims

against the Commonwealth.

Less than a week before oral argument, the Third

Circuit ordered the parties to be prepared to address

whether the Commonwealth could be derivatively liable for the Title II and Section 504 violations allegedly

committed by the employees of the third-party contractor. And after oral argument, the Third Circuit ordered

supplemental briefing on this issue.

At oral argument and in its supplemental briefing,

the Commonwealth noted that Montanez had never argued that the Commonwealth should be derivatively liable for such violations, and that sua sponte introducing the derivative-liability issue into the case would violate the party-presentation principle elucidated in

Sineneng-Smith.

The Third Circuit ignored the Commonwealth’s protestations. By inserting a never-before-raised issue

into these proceedings a week before oral argument,

the Third Circuit exhibited the very “paternalistic

bent” that this Court rebuked in Sineneng-Smith. 590

U.S. at 376 n.3. As will be explained infra, this case is

not an outlier in the Third Circuit, where the court regularly runs afoul of the party-presentation principle by

taking over cases and hand-picking issues.

The Third Circuit also ignored the Commonwealth’s

specific argument that it could not be vicariously liable

for any Title II or Section 504 violations committed by

employees of the third-party contractor. Instead, the

Third Circuit issued a lengthy, precedential opinion

holding that the Commonwealth had an “obligation to

ensure compliance” with Title II and Section 504,

App. 27a, and is thus vicariously liable for those violations.

That holding deepened an acknowledged circuit

split on the issue of vicarious liability under Title II

and Section 504. See Jones v. City of Detroit, Michigan,

20 F.4th 1117, 1121–22 (6th Cir. 2021) (Sutton, C.J.)

(acknowledging disagreement with the Fourth, Fifth,

and Ninth Circuits); Ingram v. Kubik, 30 F.4th 1241,

1257 (11th Cir. 2022) (Pryor, C.J.) (noting that “the

courts of appeals are divided” on the availability of vicarious liability). That is, while the Second, Third,

Fourth, Fifth, Ninth, and Tenth Circuits have held that

Title II and Section 504 impose vicarious liability, the

Sixth and Eleventh Circuits have expressly held that

vicarious liability is unavailable under those statutes.

As will be explained infra, the minority view—adopted

by the Sixth and Eleventh Circuits—is the correct one,

as it is consistent with this Court’s decisions regarding

the remedies available for violations of various civilrights statutes. See, e.g., Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274 (1998).

These circumstances would ordinarily make this

case an ideal vehicle to grant certiorari, order full briefing and oral argument, and issue an opinion clarifying

the remedies available under Title II and Section 504.

But the Third Circuit’s violation of the party-presentation principle offers a much simpler option: Summary

reversal and remand, so that the Third Circuit can reconsider this case “shorn of the [derivative-liability] inquiry interjected by the appellate panel and bearing a

fair resemblance to the case shaped by the parties.”

Sineneng-Smith, 590 U.S. at 380; cf. Clark v. Sweeney,

607 U.S. 7 (2025) (per curiam) (summarily reversing

the Fourth Circuit for violating the party-presentation

principle).

OPINIONS BELOW

The opinion of the Third Circuit is reported at

154 F.4th 127 (3d Cir. 2025). The opinion of the District

Court is not reported but is available at

2023 WL 5435616.

STATEMENT OF JURISDICTION

The Third Circuit entered its judgment on October

8, 2025. On December 12, 2025, Justice Alito extended

the time to file a petition for a writ of certiorari to and

including February 5, 2026. On January 30, 2026, Justice Alito further extended the time to March 7, 2026. 1

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Title II of the Americans with Disabilities Act of

1990 provides in relevant part:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied

the benefits of the services, programs, or

activities of a public entity, or be subjected

to discrimination by any such entity.

42 U.S.C. § 12132.

1 Because March 7, 2026, is a Saturday, this petition is due by

Monday, March 9, 2026. See Sup. Ct. R. 30.1.

Section 504 of the Rehabilitation Act of 1973

provides in relevant part:

No otherwise qualified individual with a

disability in the United States, as defined

in section 705(20) of this title, shall, solely

by reason of her or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by

any Executive agency or by the United

States Postal Service.

29 U.S.C. § 794(a).

STATEMENT OF THE CASE

1. Montanez allegedly suffered a medical episode

while incarcerated in a Pennsylvania prison and, as a

result, allegedly became disabled. App. 3a–5a. He later

filed a pro se lawsuit, naming as defendants the Commonwealth of Pennsylvania and several Commonwealth employees (collectively, with the Commonwealth, the “Commonwealth Defendants”). App. 5a–6a.

Montanez also named a private company engaged by

the Commonwealth to provide medical care to inmates,

and several employees of that private company (collectively, with the private company, the “Medical Contractor Defendants”). 2 App. 5a–6a. Among other things, the

2 Both here and in other cases, the Medical Contractor Defend-

ants are separately represented through private counsel. They are

not represented by the Pennsylvania Attorney General.

operative pleading alleged that the defendants failed to

accommodate Montanez’s alleged disability, which in

turn caused him to be excluded from some of the

prison’s programs, services, or activities in violation of

Title II of the Americans with Disabilities Act (“Title

II”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794. App. 7a–

8a.

The District Court dismissed the operative pleading

in its entirety for failing to state a claim upon which

relief could be granted. App. 7a–8a; App. 63a–64. Montanez appealed and subsequently obtained counsel.

App. 8a.

2. In his opening brief before the Third Circuit,

Montanez (through counsel) argued that dismissal was

improper because the operative pleading plausibly alleged that he was excluded from participating in some

of the prison’s programs, services, or activities. C.A.

Dkt. 30 at 11–18. Montanez also argued that the operative pleading plausibly alleged that several specifically identified individual defendants were deliberately

indifferent to that exclusion, thus entitling him to compensatory damages. Id. at 18–21.

The Commonwealth Defendants disputed Montanez’s arguments. C.A. Dkt. 34 at 23–26. The Commonwealth Defendants also argued that Title II and

Section 504 claims against the Commonwealth employees in their individual capacities were prohibited as a

matter of law. Id. at 25.

In reply, Montanez conceded that the individual-capacity claims were properly dismissed. C.A. Dkt. 46 at

1. He noted, however, that the Commonwealth employees could be sued in their official capacities under Title

II and Section 504, as such official-capacity claims are

legally equivalent to claims against the Commonwealth itself. Id. at 2. In fact, Montanez argued,

“[n]aming [both] the Commonwealth and the prison officials in their official capacities was redundant.” Ibid.

3. After briefing was complete, the Third Circuit set

the matter down for oral argument. But five days before that argument was set to occur, the Third Circuit

issued a letter stating that, “[a]t oral argument in this

matter, the parties should be prepared to discuss ***

[t]he extent to which the Commonwealth remains liable under Title II [and Section 504] for the actions of

private contractors providing medical services to inmates within state prisons.” App. 37a–38a.

At this point in the litigation, Montanez had never

argued that the Commonwealth could or should be derivatively liable for Title II and Section 504 violations

allegedly committed by the Medical Contractor Defendants. But—undoubtedly reading the tea leaves in the

Third Circuit’s cup—Montanez’s counsel latched onto

this new theory of liability within the first few seconds

of her oral argument. C.A. Dkt. 74 at 4 (“[F]or [Montanez’s Title II and Section 504] claims for the failure

to accommodate his disability, he correctly and sufficiently proceeds against the State of Pennsylvania.”

(emphasis added)).

During his turn at the lectern, counsel for the Commonwealth Defendants repeatedly noted that Montanez had not raised this argument himself, and so it

was not properly before the court. But the Third Circuit

ignored the Commonwealth Defendants’ protestations.

4. Following argument, the Court of Appeals issued

an order requesting supplemental briefs on the derivative-liability issue, as well as “[t]he relevance, if any, of

federal regulations for determining the extent of [that]

derivative liability ***.” App. 35a.

In their supplemental brief, the Commonwealth Defendants again argued that the derivative-liability issue was not independently raised by the parties and

thus was not properly before the court. C.A. Dkt. 81 at

1–3. In the alternative, the Commonwealth Defendants

argued that, under this Court’s precedent (and as recognized by other Circuits), the Commonwealth could,

at a minimum, not be vicariously liable for the acts of

its medical contractors. Id. at 3–4. The Commonwealth

Defendants also argued that federal regulations cannot

expand the scope of the Commonwealth’s derivative liability. Id. at 5.

5. The Third Circuit again ignored the Commonwealth Defendants’ protestations. In a lengthy, precedential opinion, it held not just that the Commonwealth could be derivatively liable for the Title II and

Section 504 violations allegedly committed by the Medical Contractor Defendants, but that the Commonwealth had an “obligation to ensure compliance with

Title II and Section 504” by those defendants. App. 27a.

In substance, this holding imposes vicarious liability

on the Commonwealth for those alleged violations. Cf.

Pembaur v. City of Cincinnati, 475 U.S. 469, 470 (1986)

(discussing Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658 (1978)) (obliging a party “to control

the conduct of others” imposes “vicarious liability” on

that party) (emphasis in original)).

REASONS FOR GRANTING THE PETITION

THE THIRD CIRCUIT VIOLATED THE PARTYPRESENTATION PRINCIPLE BY SUA SPONTE

RAISING THE VICARIOUS-LIABILITY ISSUE

As explained below, the Third Circuit’s holding that

the Commonwealth is vicariously liable under Title II

and Section 504 exacerbates a pre-existing Circuit

split, is inconsistent with this Court’s precedents, and

is legally unsound. But the Third Circuit should not

have resolved that issue in the first place, because

Montanez’s briefing before the Third Circuit did not argue that the Commonwealth should or could be derivatively liable in any manner for the Title II and Section

504 violations allegedly committed by the Medical Contractor Defendants. 3 To the contrary, Montanez’s briefing affirmatively asserted that naming the Commonwealth as a defendant was “redundant.” C.A. Dkt. 46

at 2.

Apparently dissatisfied with the arguments that

Montanez’s counsel chose to raise, the Third Circuit

took over. Adopting an advisory role, that court carved

out Montanez’s eventual path to victory against the

To be clear, Montanez never raised this argument in the

District Court either. The District Court dismissed the Commonwealth from this action shortly after Montanez filed his Amended

Complaint (the operative pleading), because the District Court believed Montanez was not suing the Commonwealth under Title II

or Section 504. App. 67a. Montanez then informed the District

Court that he was, in fact, suing the Commonwealth under those

statutes. App. 42a. But, like his Third Circuit briefing, his papers

before the District Court did not argue that the Commonwealth

could or should be derivatively (let alone vicariously) liable for the

Medical Contractor Defendants’ alleged violations. See D. Ct. Dkt.

37 & 38.

Commonwealth by forcing the parties to address the

derivative-liability issue and then, unsurprisingly, resolving it in such a way as to impose maximum (i.e.,

vicarious) liability on the Commonwealth. This Court

has repeatedly admonished precisely the type of “interject[ion]” of issues that the Third Circuit executed here.

Sineneng-Smith, 590 U.S. at 380. And it has very recently expressed its willingness to summarily reverse

when such a violation of the party-presentation principle occurs. See Clark, 607 U.S. at 10. It should do so

here, too.

In Sineneng-Smith, a criminal defendant raised a

constitutional challenge to a federal criminal statute.

590 U.S. at 374. In the Ninth Circuit, the defendant

argued that her own conduct was protected by the First

Amendment. Ibid. But she “did [not] so much as hint

that the statute [was] infirm *** because it trenches on

the First Amendment sheltered expression of others.”

Id. at 377.

Like the Third Circuit here, the Ninth Circuit was

apparently unsatisfied with the defendant’s arguments. So, after oral argument, “[i]nstead of adjudicating the case presented by the parties,” it asked for additional briefing and then additional oral argument on

several issues, including whether the statute was invalid because it infringed others’ First Amendment

rights. Sineneng-Smith, 590 U.S. at 374–75. “[I]n the

redone appeal,” the defendant “adopted” and “rode

with” the overbreadth argument “suggested by the”

Ninth Circuit. Id. at 379. Unsurprisingly, the Ninth

Circuit found its own argument persuasive, held that

the statute was unconstitutionally overbroad, and vacated the defendant’s conviction under it. Id. at 375.

This Court found that the defendant’s sudden embrace of the Ninth Circuit’s “suggest[ion]” was not only

understandable, but inevitable. Sineneng-Smith, 590

U.S. at 379. After all, how could the defendant have

done “otherwise” once it became clear that her “own arguments *** did not mesh with the panel’s overbreadth

theory of the case[?]” Ibid.

This Court found that the Ninth Circuit’s sua sponte

“interject[ion]” of the overbreadth issue into the case

was improper. Sineneng-Smith, 590 U.S. at 380. And it

held that the Ninth Circuit’s conduct “departed so drastically from the principle of party presentation as to

constitute an abuse of discretion.” Id. at 375. It therefore vacated the Ninth Circuit’s judgment and “remand[ed] the case for reconsideration shorn of the

overbreadth inquiry *** and bearing a fair resemblance to the case shaped by the parties.” Id. at 380.

The procedural history of this case is virtually indistinguishable from Sineneng-Smith. Here, like there,

Montanez “did [not] so much as hint,” id. at 377, that

the Commonwealth could be derivatively liable in his

briefs before the Third Circuit. Here, like there, the

Third Circuit—“[i]nstead of adjudicating the case presented by the parties,” id. at 374—asked for additional

briefing and oral argument on the derivative-liability

issue. Here, like there, Montanez “adopted” and “rode

with” the derivative-liability argument “suggested” by

the Court of Appeals. Id. at 379. And here, like there,

the Third Circuit’s ultimate resolution of the case “departed so drastically from the principle of party presentation as to constitute an abuse of discretion.” Id. at

375.

Sineneng-Smith rested on a foundational principle:

Federal “courts are essentially passive instruments of

government” that “should not[] sally forth each day

looking for wrongs to right,” but should instead “wait

for cases to come to them” and then “decide only questions presented by the parties” in those cases. 590 U.S.

at 376. That principle “is designed around the premise

that parties represented by competent counsel know

what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” Id.

at 375; see also Wood v. Milyard, 566 U.S. 463, 473

(2012) (“For good reason, appellate courts ordinarily

abstain from entertaining issues that have not been

raised and preserved in the court of first instance. That

restraint is all the more appropriate when the appellate court itself spots an issue the parties did not air

below ***.”) (internal citation omitted); United States

v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring) (“The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of

cases, distinguishes our adversary system of justice

from the inquisitorial one.”).

This Court very recently relied on this foundational

principle in Clark v. Sweeney, after the Fourth Circuit

“transgressed the party-presentation principle by

granting relief on a claim [the petitioner] never asserted[.]” 607 U.S. at 9. This Court admonished that

courts “call balls and strikes; they don’t get a turn at

bat.” Ibid. (cleaned up). There, the Fourth Circuit’s

“radical transformation” of the case was so egregious

that this court granted certiorari and summarily reversed. Id. at 9–10 (quoting Sineneng-Smith, 590 U.S.

at 380). The Court should take the same course in this

case—i.e., grant this petition, summarily reverse the

Third Circuit’s precedential decision, and “remand the

case for reconsideration shorn of the [derivative-liability issue] *** and bearing a fair resemblance to the case

shaped by the parties.” Sineneng-Smith, 570 U.S. at

380.

True, it is not this Court’s function to “correct every

perceived error coming from the lower federal courts[.]”

Tolan v. Cotton, 572 U.S. 650, 659 (2014) (citation omitted). But this Court often summarily reverses where

the opinion below reflects “a clear misapprehension” of

this Court’s precedents and basic legal standards. Ibid.

That was the case in Clark, and that is certainly the

case here.

What’s more, the Third Circuit’s “clear misapprehension” of the party presentation principle is not

unique to this case. Rather, its misapprehension is

longstanding. See Bagot v. Ashcroft, 398 F.3d 252, 256

(3d Cir. 2005) (Becker, J.) (claiming the “discretionary

power to address issues that have been waived”). In

many cases in which the Pennsylvania Attorney General has been a party, the Third Circuit has effectively

hand-selected issues it seems eager to resolve, regardless of party presentation. See, e.g., App. 69a–77a. 4

4 In two of these cases, the Court of Appeals inserted new is-

sues into the case after an initial round of briefing in which the

parties had already decided which issues to raise. App. 69a–70a

(Vogt order); App. 74a–75a (Peifer letter). In both cases, the Office

of Attorney General specifically objected to the Third Circuit’s improper takeover of the case, citing Sineneng-Smith.

In the other two, the issues were raised by the Court of Appeals before briefing, in orders that simultaneously appointed

counsel. App. 71a–73a (Korb order); App. 76a–77a (Talley order).

But this slight variation in procedural posture is irrelevant. As

this Court noted in Sineneng-Smith, “our system is designed

around the premise that parties represented by competent counsel

The Third Circuit’s tendency to takeover cases has

not abated since Sineneng-Smith. Ibid. Indeed, since

that decision, some judges on the Third Circuit have

admonished their colleagues for this proclivity. See,

e.g., Hargrove v. Sleepy’s LLC, 974 F.3d 467, 483 (3d

Cir. 2020) (Hardiman, J., dissenting) (“Because the

Majority neglects [the party presentation] principle to

reach an issue Appellants failed to raise properly, I respectfully dissent.”) (citing Sineneng-Smith); Children’s Health Def., Inc. v. Rutgers, the State Univ. of

New Jersey, 93 F.4th 66, 93 (3d Cir. 2024), (Jordan, J.,

dissenting in part) (“My colleagues in the Majority

forge ahead *** and, without adversary briefing, choose

to answer a question that the District Court didn’t.”)

(citing Sineneng-Smith). 5

A court is supposed to resolve a case as the parties

present it, not treat it as vehicle for addressing issues

on the court’s agenda. A court is not supposed to have

an agenda. In our system, the courts “may truly be said

to have neither FORCE nor WILL but merely judgment[.]” The Federalist, No. 78 (Hamilton).

To curtail what has apparently become a common

practice in the Third Circuit, this Court should summarily reverse, reiterating its party presentation precedents.

know what is best for them, and are responsible for advancing the

facts and argument entitling them to relief.” 590 U.S. at 375–76.

5 Although this court denied certiorari in that case, see 144 S.

Ct. 2688 (2024), the petitioner did not raise the party presentation

issue in its petition.

II.

IMPOSING VICARIOUS LIABILITY ON THE

COMMONWEALTH DEEPENED A CIRCUIT SPLIT

The Third Circuit’s holding deepened a recognized

circuit split on the availability of vicarious liability under Title II and Section 504. The Eleventh and Sixth

Circuits have explicitly held that vicarious liability is

unavailable under those statutes. See Jones v. City of

Detroit, Michigan, 20 F.4th 1117, 1121–22 (6th Cir.

2021) (Sutton, C.J.); Ingram v. Kubik, 30 F.4th 1241,

1257 (11th Cir. 2022) (Pryor, C.J.). But the Second,

Fourth, Fifth, Ninth, Tenth—and now Third—Circuits

have held the opposite, either expressly or by implication. Some of these courts have even acknowledged the

divergence among themselves and have engaged with

each other’s reasoning. See, e.g., Jones, 20 F.4th 1121–

22 (criticizing the Fourth, Fifth, and Ninth Circuit’s

rulings); Ingram, 30 F.4th at 1257 (stating that “the

courts of appeals are divided” on the availability of vicarious liability). So if this Court does not summarily

reverse based on the Third Circuit’s violation of the

party-presentation principle—which it should—then

review is warranted to resolve this important and recuring question of federal law.

1. In Jones, the Sixth Circuit expressly held that vicarious liability is unavailable under Title II or Section

504. 20 F.4th at 1122. Chief Judge Sutton’s decision in

that case rested on a few simple, undisputed realities:

First, Congress had dictated that the “remedies, procedures, and rights” available under Title II and Section

504 are “coextensive” with those available under Title

VI of the Civil Rights Act of 1964. Id. at 1119 (citing 42

U.S.C. § 12133, 29 U.S.C. § 794(a), and Barnes v. Gorman, 536 U.S. 181, 185 (2002)). Second, Title IX of the

Education Amendments of 1972 (like Title II and Section 504) also mirror the remedies available under Title

VI. Jones, 20 F.4th at 1120. And third, this Court has

explicitly held that vicarious liability is unavailable

under Title IX. Ibid. (discussing Gebser v. Lago Vista

Ind. Schl. Dist., 524 U.S. 274 (1998)).

Because Title IX and Title VI share many important, relevant qualities—e.g., both were passed pursuant to Congress’s Spending Clause power—Chief

Judge Sutton reasoned that Gebser’s holding must apply equally to Title VI. Jones, 20 F.4th at 1121. And

“[b]ecause [Title II and Section 504] import Title VI’s

remedial regime, that ends the inquiry”; that is, “[i]f

Title VI does not allow vicarious liability, neither do

[Title II or Section 504].” Ibid.

2. Writing for the Eleventh Circuit in Ingram, Chief

Judge Pryor expressly adopted Chief Judge Sutton’s

reasoning. 30 F.4th 1257 (“We agree with the Sixth Circuit.”). Like the Sixth, the Eleventh Circuit highlighted

that Title II, Section 504, and Title IX all use Title VI’s

remedies. Id. at 1257–58. And because Gebser held that

vicarious liability is unavailable under Title IX, vicarious liability must likewise be unavailable under Title

II and Section 504. Id. at 1258–59. 6

The plaintiff in Ingram filed a petition for a writ of

certiorari highlighting the Circuit split on the question

of vicarious liability. See Ingram v. Kubik, et al., 216 Technically,

the Eleventh Circuit’s holding in Ingram applied only to Title II. See 30 F.4th at 1258. But that was because

the plaintiff there conceded that Gebser foreclosed vicarious liability under Section 504. Ibid. Chief Judge Pryor noted, however,

that “the same standards govern claims under both” statutes. Id.

at 1259.

1426 (U.S.). But the case was dismissed pursuant to

Supreme Court Rule 46 before this Court had the opportunity to consider that petition. Ibid.

3. In their opinions, Chief Judges Sutton and Pryor

both noted that the Fourth, Fifth, and Ninth Circuits

had reached the opposite conclusion—i.e., had expressly held that vicarious liability is available under

Title II and Section 504. See Jones, 20 F.4th at 1121–

22 (citing Delano-Pyle v. Victoria County, 302 F.3d 567

(5th Cir. 2002), Duvall v. County of Kitsap, 260 F.3d

1124 (9th Cir. 2001), and Rosen v. Montgomery Cnty.,

121 F.3d 154 (4th Cir. 1997)); Ingram, 30 F.4th at 1257

(same). But, as Chief Judge Sutton, noted, “time and

circumstances have not favored [these] decision[s].”

Jones, 20 F.4th at 1121. Regarding the Fourth Circuit’s

decision in Rosen, and the Ninth Circuit’s decision in

Duvall, Chief Judge Sutton noted that neither of these

cases addressed Gebser. 7 Jones, 20 F.4th at 1121–22.

And “the Fifth Circuit has acknowledged the possibility

that Delano-Pyle was wrong because it did not engage

with Gebser.” Ibid. (citing Harrison v. Klein Ind. Sch.

Dist., 856 F. App’x 480, 483 n.4 (5th Cir. 2021); Plains

Cap. Bank v. Keller Ind. Sch. Dist., 746 F. App’x 355,

361–62 (5th Cir. 2018)).

4. But decisions of the Fourth, Fifth, Sixth, Ninth,

and Eleventh Circuits do not reveal the truth depth of

the circuit split. In its opinion below, the Third Circuit

noted that it was joining the Second, Ninth, and Tenth

7 In fact, the Fourth Circuit’s decision in Rosen was “decided

before Gebser and thus had no reason to consider the relationship

between the Supreme Court's conclusions about Title IX and the

ADA.” Jones, 20 F.4th at 1121.

Circuits’ conclusions that Title II and Section 504 impose an “obligation” on public entities and federal-fund

recipients “to ensure compliance” with those statutes.

App. 27a & n.10 (citing Marks v. Colo. Dep’t of Corr.,

976 F.3d 1087 (10th Cir. 2020), Armstrong v.

Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010), and

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003)).

And although not made explicit, that conclusion imposes vicarious liability on public entities and federalfund recipients under Title II and Section 504. See

Pembaur, 475 U.S. at 470 (1986) (“oblig[ing a party] to

control the conduct of others” imposes “vicarious liability” on that party). 8

5. The Third Circuit’s decision, then, created a 6–2

split regarding the availability of vicarious liability under Title II and Section 504, with the Sixth and Eleventh Circuits expressly holding that vicarious liability

is unavailable, and the Second, Third, Fourth, Fifth,

Ninth, and Tenth Circuits holding (either expressly or

by implication) that it is available. The Court should

grant review to resolve this well-recognized, and everwidening split.

8 In their supplemental brief, the Commonwealth Defendants

specifically and repeatedly argued that vicarious liability was unavailable under Title II and Section 504, and specifically cited and

discussed Gebser, Jones, and Ingram. C.A. Dkt. 81 at 3–4. But despite its eagerness to address arguments Montanez never raised,

the Third Circuit’s opinion failed to address this argument that

the Commonwealth did raise. Indeed, the words “vicarious liability” do not appear in the Third Circuit’s opinion, nor does any mention of Gebser, Jones, or Ingram. Instead, the Third Circuit—

pointing only to Marks, Armstrong, and Henrietta—boldly proclaimed that its “sister circuits have consistently” come to the

same conclusion on this issue. App. 27a.

III.

IMPOSING VICARIOUS LIABILITY ON THE

COMMONWEALTH IS INCONSISTENT WITH THIS

COURT’S PRECEDENTS

As the Sixth and Eleventh Circuits reasoned, this

Court’s decision in Gebser—which held that vicarious

liability is unavailable under Title IX—leads to the

conclusion that vicarious liability is unavailable under

Title VI, and thus unavailable under Title II and Section 504.

True, this Court has not formally extended Gebser’s

holding to Title VI. But that extension is inescapable.

After all, this Court in Gebser noted that Title IX and

Title VI “operate in the same manner[ by] conditioning

an offer of federal funding on a promise by the recipient

not to discriminate,” and that “Congress [did not] contemplate[] unlimited recovery in damages against a

funding recipient where the recipient is unaware of discrimination in its programs.” 524 U.S. at 285–86. So

Gebser necessarily forecloses vicarious liability under

Title VI. 9

This Court has not formally extended Gebser’s holding to Title II or Section 504, either. See City & Cnty.

of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 610

(2015). 10 But that extension, too, is inescapable. After

9 Indeed, even the Fifth and Ninth Circuits—which, as noted

above, held that vicarious liability is available under Title II and

Section 504—have recognized this. See, e.g., United States v. Cnty.

of Maricopa, Arizona, 889 F.3d 648, 652 (9th Cir. 2018); Rodgers

v. Smith, 842 F. App’x 929 (5th Cir. 2021).

10 Notably, in Sheehan, this Court “decline[d]” to resolve the

vicarious-liability question “in the absence of adversarial briefing.” 575 U.S. at 610.

all, Congress has clearly stated that the remedies under Title II and Section 504 mirror those available under Title VI. See Barnes, 536 U.S. at 185 (describing

the remedies under the three statutes as “coextensive”). Because Gebser forecloses vicarious liability under Title VI, it likewise forecloses vicarious liability under Title II and Section 504.

The Third Circuit’s holding to the contrary thus

cannot be reconciled with Gebser. But, in addition to

being inconsistent with Gebser, the Third Circuit’s

holding is also inconsistent with this Court’s precedent

dictating when private plaintiffs may recover for violations of federal regulations interpreting civil-rights

statutes.

Federal regulations forbid a public entity from violating Title II and Section 504 “through contractual, licensing, or other arrangement.” 28 C.F.R. § 35.130(b)

(Title II); 28 C.F.R. § 42.503(b) (Section 504). The Third

Circuit’s decision—and the Second, Ninth, and Tenth

Circuit decisions on which it relied—cited these regulations when holding that vicarious liability is available under Title II and Section 504. See App. 29a; Marks,

976 F.3d at 1096–97; Armstrong, 622 F.3d at 1065;

Henrietta D., 331 F.3d at 274. But Alexander v. Sandoval, 532 U.S. 275 (2001), makes it clear that such regulations cannot expand the scope of liability available

under Title II and Section 504. Thus, these Circuits’ reliance on them is impermissible.

In Sandoval, this Court explicitly held that private

plaintiffs have no right to enforce Title VI regulations

that attempt to outlaw anything other than intentional

discrimination. 532 U.S at 285, 293; cf. Cent. Bank of

Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164, 173 (1994) (“[A] private plaintiff may not

bring a [suit based on a regulation] for acts not prohibited by the text of the [statute itself].”). Now, unlike

Gebser, that decision did not turn on the fact that Title

VI was passed under Congress’s Spending Clause

power. Instead, it rested on this Court’s refusal to extend the bounds of Title VI’s judicially created cause of

action. See Sandoval, 532 U.S. at 287 (“Having sworn

off the habit of venturing beyond Congress’s intent, we

will not accept respondents’ invitation to have one last

drink.”); see also Guardians Ass’n v. Civ. Serv. Comm’n

of City of New York, 463 U.S. 582 (1983) (holding that,

because Title VI is enforceable only through a judicially

created cause of action, a plaintiff may recover compensatory damages only if he or she shows intentional discrimination). 11 But this Court has already held that

Sandoval’s reasoning applies to Title IX. See Jackson

v. Birmingham Bd. of Educ., 544 U.S. 167, 177–78 &

n.2 (2005) (“[P]laintiffs may not assert claims under Title IX for conduct not prohibited by that statute.”) (citing Cent. Bank of Denver, 511 U.S. at 173). And this

Court has also rejected the idea that any “analysis of

[the remedies available under] Title VI does not carry

over to [Title II] because the latter is not Spending

Clause regulation[.]” See Barnes, 536 U.S. at 189 n.3.

11 Although the decision in Guardians was fractured, Sando-

val acknowledged that “[i]n Guardians, the Court held that private individuals could not recover compensatory damages under

Title VI except for intentional discrimination.” Sandoval, 532 U.S.

at 282–83 (emphasis in original).

Sandoval’s reasoning must also apply to Title II and

Section 504 as well. 12 Again, Congress has clearly

stated that the remedies under Title II and Section

mirror those available under Title VI. And because private plaintiffs cannot recover compensatory damages

for unintentional discrimination under Title VI, private plaintiffs cannot recover compensatory damages

for unintentional discrimination under Title II or Section 504, either. Cf. A.J.T. by & through A.T. v. Osseo

Area Schs., Indep. Sch. Dist. No. 279, 605 U.S. 335,

344–45 & n.4 (2025) (noting that “courts of appeals generally agree that a private plaintiff must show intentional discrimination”—i.e., “deliberate indifference”—

to recover compensatory damages under Title II and

Section 504 (citing Gebser, 524 U.S. at 290)).

But that is precisely what the Third Circuit’s holding imposing vicarious liability on the Commonwealth

will allow—i.e., automatic recovery against the Commonwealth for Title II and Section 504 violations committed by third-party contractors, even if the Commonwealth was completely ignorant of such violations. Because that holding rests on an interpretation of federal

regulations that expand the scope of liability available

under Title II and Section 504, it simply cannot be reconciled with Sandoval or Jackson. Cf. also Gebser, 524

U.S. at 285 (noting that “it would ‘frustrate the purposes’ of Title IX to permit a damages recovery . . .

based on principles of respondeat superior, i.e., without

actual notice”).

12 Again, the Commonwealth Defendants raised this argument in their supplement brief. C.A. Dkt. 81 at 5 (citing Sandoval). But, again, the Third Circuit failed to address it or even

acknowledge the existence of Sandoval.

Consequently, the Third Circuit’s decision cannot

be squared with a host of decisions from this Court, including Guardians, Gebser, Sandoval, and Jackson.

IV.

THE VICARIOUS

IMPORTANT

LIABILITY

QUESTION

With the stroke of a proverbial pen, the Third Circuit rendered the Commonwealth on the hook for each

and every Title II and Section 504 violation committed

by the employees and agents of every third party with

whom it contracts to provide medical services within

Commonwealth prisons. That erroneous decision will

vastly expand the scope of liability under Title II and

Section 504 for state and local governments and recipients of federal funding.

Importantly, the Third Circuit’s holding is not limited to the Commonwealth as an entity. Title II, of

course, applies to all state and local governments, and

all instrumentalities of all state and local governments.

See 42 U.S.C. § 12132 (noting that Title II applies to all

“public entit[ies]”); 42 U.S.C. § 12131(1)(A) & (B) (defining “public entity”). 13 And Section 504 applies to all

recipients of federal funding, which includes numerous

private entities like hospitals, universities, and nursing homes. See 29 U.S.C. § 794(a).

Further, while this case involved a third-party contractor providing medical care to inmates in state prisons, nothing about the Third Circuit’s decision limits

Title II also applies to the National Railroad Passenger

Corporation, and any “State, local, or regional entity established

to provide, or make a contract providing for, commuter rail passenger transportation.” See 42 U.S.C. § 12131(1)(C); 49 U.S.C.

§ 24102.

its application to that specific context. To the contrary,

the Third Circuit made it clear that Title II and Section

504 permit vicarious liability for all violations committed by all contractors providing any programs, services,

and activities. App. 28a (concluding that “Congress

wanted to give people with disabilities an affirmative

right to access all covered programs and services no

matter how or through whom the government or federally funded entity elects to deliver them”) (emphasis in

original).

The consequences of this ruling cannot be overstated. Under it, a municipal court may be suddenly on

the hook for money damages if a maintenance contractor neglects to sufficiently clear snow or ice off a wheelchair ramp. Cf. Tennessee v. Lane, 541 U.S. 509 (2004)

(Title II guarantees access to courts). A university on

the hook if its food-services contractor underestimates

the demand for its gluten-free options. See Cadena v.

El Paso County, 946 F.3d 717, 725 (5th Cir. 2020) (Title

II and Section 504 guarantee access to “food”). And a

nursing home on the hook if a laundry-services contractor inadvertently gives a patient the wrong pillow. See

Hall v. Higgins, 77 F.4th 1171, 1181 (8th Cir. 2023) (Title II guarantees access to “beds”).

Additionally, this ruling may vastly expand the

scope of liability for violations of the United States

Constitution. As noted above, under the Third Circuit’s

holding (and the holdings of Second, Ninth, and Tenth

Circuits), public entities and federal-fund recipients

have an “obligation” to ensure compliance with Title II

and Section 504. Such entities and recipients thus have

an incentive to direct, and create policies governing,

the conduct of third-party contractors. But—at least for

municipal entities—doing so creates the risk of increased liability under Section 1983. See Monell, 436

U.S. at 690; Pembaur, 475 U.S. at 481. At a minimum,

it forces municipal entities to query whether the benefits of increased oversight under Title II and Section

504 outweigh the risks of increased liability under Section 1983.

The correct interpretation of these federal statutes,

then, is of significant, nationwide importance.

The Third Circuit’s holding deepened a circuit split

regarding the availability of vicarious liability under

Title II and Section 504. It is also inconsistent with numerous decisions of this Court, including Guardians,

Gebser, Sandoval, and Jackson. But because this error

was unforced—i.e., a result of the Third Circuit’s violation of the party-presentation principle—the solution is

simple: A summary reversal of the Third Circuit’s decision, and an order “remand[ing] the case for reconsideration shorn of the [derivative-liability issue] *** and

bearing a fair resemblance to the case shaped by the

parties.” Sineneng-Smith, 570 U.S. at 380.

CONCLUSION

The Court should grant this petition for a writ of

certiorari and summarily reverse the judgment of the

court of appeals on the first question presented. Alternatively, it should grant the petition, exercise plenary

review, and resolve the second question presented.

Respectfully submitted,