Fourth Circuit Weighs in on Split Re Status of Denial of Parker Protection under Collateral Order Doctrine

Per South Carolina State Bd. of Dentistry v. F.T.C., --- F.3d ----, 2006 WL 1134136 (4th Cir. May 01, 2006):

The central question in this case is whether the Board may presently appeal the FTC's determination that it is not entitled to [“state action antitrust immunity” under Parker v. Brown, 317 U .S. 341 (1943)]. Generally, a party may only appeal from an order that “ends litigation on the merits and leaves nothing for the court to do but execute the judgment.” Caitlin v. United States, 324 U.S. 229, 233 (1945). See also28 U.S.C.A. § 1291 (West 1993) (“The courts of appeals ··· shall have jurisdiction of appeals from all final decisions of the district courts of the United States····”). The Supreme Court has, however, allowed interlocutory appeals in a “small class” of cases that “finally determine claims of right separable from, and collateral to, rights asserted in the action.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

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The Court has [] reserved “collateral order” status only for orders that meet three “stringent” conditions: an order must “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Will, 126 S.Ct. at 957. See also Digital Equip. Corp., 511 U.S. at 867. “If the order fails to satisfy any one of these requirements, it is not an immediately appealable collateral order.” Carefirst of Md., Inc. v. Carefirst Urgent Care Ctr., 305 F.3d 253, 258 (4th Cir.2002).

There is no dispute that the denial of Parker protection satisfies the first collateral order requirement; a decision that the Board is not entitled to such protection “conclusively determines” the question of whether the Board is subject to the Federal Trade Commission Act restrictions on anticompetitive conduct. The circuits are divided, however, as to whether the denial of Parker protection satisfies the final two requirements. Two circuits have said that it does. See Martin v. Memorial Hosp., 86 F.3d 1391, 1394-97 (5th Cir.1996); Commuter Transp. Sys. v. Hillsborough Cty. Aviation Auth., 801 F.2d 1286, 1289 (11th Cir.1986). Two others have suggested the same in dicta. See We, Inc. v. City of Philadelphia, 174 F.3d 322, 329 (3rd Cir.1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 346 (7th Cir.1987). The Sixth Circuit, however, has held that the denial of Parker protection fails to meet either of the final two collateral order requirements. See Huron Valley Hosp., Inc. v. City of Pontiac, 792 F.2d 563, 567 (6th Cir.1986). Because we too conclude that the Parker analysis is neither “completely separate from the merits” nor “effectively unreviewable” after trial, we join the Sixth Circuit in holding that the denial of Parker protection is not an immediately appealable collateral order.