Fourth Circuit Notes Split Re Whether Denial of "State Action Antitrust Immunity" Satisfies Collateral Order Requirements

Per South Carolina State Bd. of Dentistry v. Federal Trade Commission, 455 F.3d 436 (4th Cir. May 1, 2006):

The Federal Trade Commission ("FTC") brought this action against the South Carolina State Board of Dentistry ("Board"), alleging that the Board engaged in unfair competition by promulgating an emergency regulation that prevented oral hygienists from performing certain services in school settings unless a dentist had first examined a student and prescribed a course of treatment. The Board countered, inter alia, that it was immune from suit under the "state action antitrust immunity" doctrine of Parker v. Brown, 317 U.S. 341 (1943). After the FTC refused to grant that protection, the Board brought this interlocutory appeal, arguing that the denial of Parker protection falls within the narrow class of "collateral orders" that may be appealed notwithstanding their lack of finality. We disagree, and dismiss the appeal for lack of jurisdiction.

. . .

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 v. Hallock, --- U.S. ----, ----, 126 S.Ct. 952, 957 (2006). 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.


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