SolarCity Corp. v. Salt River Project AI&P Dist.

Filing

FILED OPINION (ALEX KOZINSKI, RONALD LEE GILMAN and MICHELLE T. FRIEDLAND) DISMISSED. Judge: MTF Authoring. FILED AND ENTERED JUDGMENT. [10467931]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOLARCITY CORPORATION,
Plaintiff-Appellee,
v.
SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT,
Defendant-Appellant.

No. 15-17302
D.C. No.
2:15-cv-00374DLR
OPINION

Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted November 18, 2016
San Francisco, California
Filed June 12, 2017
Before: Alex Kozinski, Ronald Lee Gilman, *
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland

*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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SUMMARY **
Collateral-Order Doctrine/State-Action Immunity

Dismissing for lack of jurisdiction an interlocutory
appeal from the district court’s order denying the Salt River
Project Agricultural Improvement and Power District’s
motion to dismiss SolarCity Corporation’s antitrust lawsuit
based on the state-action immunity doctrine, the panel held
that the collateral-order doctrine does not allow an
immediate appeal of an order denying a dismissal motion
based on state-action immunity.
COUNSEL
Daniel Volchok (argued), Thomas G. Sprankling, David
Gringer, and Christopher E. Babbitt, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Molly S.
Boast, Wilmer Cutler Pickering Hale and Dorr LLP, New
York, New York; Christopher T. Casamassima, Wilmer
Cutler Pickering Hale and Dorr LLP, Los Angeles,
California; Karl M. Tilleman and Paul K. Charlton, Steptoe
and Johnson LLP, Phoenix, Arizona; for DefendantAppellant.
Richard A. Feinstein (argued), Amy J. Mauser, Karen L.
Dunn, and William A. Isaacson, Boies Schiller & Flexner
LLP, Washington, D.C.; Sean P. Rodriguez, John F. Cove
Jr., and Steven C. Holtzman, Boies Schiller & Flexner LLP,
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

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Oakland, California; Roopali H. Desai and Keith
Beauchamp, Coppersmith Brockelman PLC, Phoenix,
Arizona; for Plaintiff-Appellee.
Chris L. Schmitter, Janine W. Kimble, Bethany D. Krueger,
and John M. Baker, Greene Espel PLLP, Minneapolis,
Minnesota, for Amici Curiae American Public Power
Association and Large Public Power Council.
Steven Mitz (argued), James J. Fredricks, and Kristen C.
Limarzi, Attorneys; Renata B. Hesse, Principal Deputy
Assistant Attorney General; Antitrust Division, United
States Department of Justice, Washington, D.C.; for Amicus
Curiae United States of America.
OPINION
FRIEDLAND, Circuit Judge:
Solar-panel supplier SolarCity Corporation filed a
federal antitrust lawsuit against the Salt River Project
Agricultural Improvement and Power District (the Power
District), alleging that the Power District had attempted to
entrench its monopoly by setting prices that disfavored solarpower providers. The Power District moved to dismiss the
complaint based on the state-action immunity doctrine. That
doctrine insulates states, and in some instances their
subdivisions, from federal antitrust liability when they
regulate prices in a local industry or otherwise limit
competition, as long as they are acting as states in doing so.
See, e.g., N.C. State Bd. of Dental Exam’rs v. FTC, 135
S. Ct. 1101, 1109 (2015); FTC v. Phoebe Putney Health Sys.,
Inc., 133 S. Ct. 1003, 1007 (2013); Parker v. Brown,
317 U.S. 341, 352 (1943).

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The district court denied the motion, and the Power
District appealed. We must decide whether we can consider
the appeal immediately under the collateral-order doctrine,
or whether any appeal based on state-action immunity must
await final judgment. 1 We join the Fourth and Sixth Circuits
in holding that the collateral-order doctrine does not allow
an immediate appeal of an order denying a dismissal motion
based on state-action immunity.
I
SolarCity sells and leases rooftop solar-energy panels.
These solar panels allow its customers to reduce but not
eliminate the amount of electricity they buy from other
sources.
Many SolarCity customers and prospective customers
live near Phoenix, Arizona, where the Power District is the
only supplier of traditional electrical power. Allegedly to
prevent SolarCity from installing more panels, the Power
District changed its rates. Under the new pricing structure,
any customer who obtains power from his own system must
pay a prohibitively large penalty. As a result, SolarCity
claims, solar panel retailers received ninety-six percent
fewer applications for new solar-panel systems in the Power
District’s territory after the new rates took effect.
SolarCity filed a complaint in federal district court in
Arizona. Among other claims, it alleged that the Power
District had violated the Sherman and Clayton Acts because

We address two other issues in an unpublished memorandum filed
with this opinion.
1

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it had attempted to maintain a monopoly over the supply of
electrical power in its territory.
The Power District is not only a supplier of power; it is
also a political subdivision of Arizona. See Ariz. Rev. Stat.
§ 48-2302; accord, e.g., City of Mesa v. Salt River Project
Agric. Improv. & Power Dist., 416 P.2d 187, 188–89 (Ariz.
1966) (summarizing the Power District’s history and status);
Salt River Project Agric. Improv. & Power Dist. v. City of
Phoenix, 631 P.2d 553, 555 (Ariz. Ct. App. 1981) (same). It
moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), arguing, among other things, that it has authority
to set prices under Arizona law and so is immune from
federal antitrust lawsuits. The district court denied the
motion, citing uncertainties about the specifics of the Power
District’s state-law authority and business. The district court
also decided not to certify an interlocutory appeal, but the
Power District appealed nonetheless.
II
Federal circuit courts have jurisdiction over appeals from
“final decisions” of district courts. Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 103 (2009) (quoting 28 U.S.C.
§ 1291). “A ‘final decision’ is typically one ‘by which a
district court disassociates itself from a case.’” Id. at 106
(alteration omitted) (quoting Swint v. Chambers Cty.
Comm’n, 514 U.S. 35, 42 (1995)). If non-final decisions
were generally appealable, cases could be interrupted and
trials postponed indefinitely as enterprising appellants
bounced matters between the district and appellate courts.
Bank of Columbia v. Sweeny, 26 U.S. (1. Pet.) 567, 569
(1828); Alaska v. United States, 64 F.3d 1352, 1357–58 &
n.9 (9th Cir. 1995). Costs would be inflated by such a
multiplication of proceedings, Firestone Tire & Rubber Co.
v. Risjord, 449 U.S. 368, 374 (1981), and district courts

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would be inhibited in their ability to manage litigation
efficiently, Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,
436 (1985).
Moreover, “piecemeal appeals would
undermine the independence of the district judge.”
Firestone, 449 U.S. at 374.
In limited circumstances, however, appeals may be
allowed before a final judgment. For example, a district
court may certify an order for an immediate appeal. See
28 U.S.C. § 1292(b). Alternately, some statutes and rules
allow an early appeal of decisions on certain specific issues. 2
Relief from a court order may also be obtained in
extraordinary circumstances through a writ of mandamus.
See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81
(2004). Or, as the Power District argues is true here, a piece
of the case may become effectively “final” under the
collateral-order doctrine, even though the case as a whole
has not ended. See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949).
The collateral-order doctrine has three requirements.
First, an interlocutory order can be appealed only if it is
“conclusive.” See Mohawk Indus., 558 U.S. at 106 (quoting
Swint, 514 U.S. at 42). Second, the order must address a
See, e.g., 28 U.S.C. § 1292(a) (giving circuit courts jurisdiction to
hear appeals from interlocutory orders “granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions”; “appointing receivers, or refusing orders to wind up
receiverships or to take steps to accomplish the purposes thereof, such as
directing sales or other disposals of property”; and “determining the
rights and liabilities of the parties to admiralty cases in which appeals
from final decrees are allowed”); id. § 2072(c) (giving the Supreme
Court power to prescribe rules defining “when a ruling of a district court
is final”); Fed. R. Civ. P. 23(f) (permitting courts of appeals to hear
appeals from orders granting or denying class certification).
2

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question that is “separate from the merits” of the underlying
case. Id. Third, the separate question must raise “some
particular value of a high order” and evade effective review
if not considered immediately. Will v. Hallock, 546 U.S.
345, 351–53 (2006); see also Dig. Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 878–79 (1994). All three
requirements must be satisfied for the ruling to be
immediately appealable. McElmurry v. U.S. Bank Nat’l
Ass’n, 495 F.3d 1136, 1140 (9th Cir. 2007).
The Supreme Court has repeatedly emphasized that these
requirements are stringent and that the collateral-order
doctrine must remain a narrow exception. See, e.g., Mohawk
Indus., 558 U.S. at 106; Will, 546 U.S. at 349–50; Dig.
Equip., 511 U.S. at 868. In addition, the Court has held that
in evaluating these three requirements, we must consider
“the entire category to which a claim belongs.” Dig. Equip.,
511 U.S. at 868. “As long as the class of claims, taken as a
whole, can be adequately vindicated by other means, ‘the
chance that the litigation at hand might be speeded, or a
particular injustice averted,’ does not provide a basis for
jurisdiction under § 1291.” Mohawk Indus., 558 U.S. at 107
(alterations omitted) (quoting Dig. Equip., 511 U.S. at 868).
III
The Power District argues that an interlocutory order
denying state-action immunity is immediately appealable
under the collateral-order doctrine. We begin our analysis
by summarizing the state-action immunity doctrine, so as to
provide context for our evaluation of the Power District’s
argument.
State-action immunity was first recognized in Parker v.
Brown, 317 U.S. 341 (1943). In Parker, a California raisin
producer alleged that a state commission that set supra-

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competitive raisin prices had violated federal antitrust law.
Id. at 346–49. The Supreme Court assumed the state’s price
program would violate federal antitrust law if it were
privately operated. Id. at 350. It also assumed that Congress
could have prohibited California from setting such prices.
Id. But because the commission “derived its authority . . .
from the legislative command of the state” and “nothing in
the language of the Sherman Act or in its history . . .
suggest[ed] that its purpose was to restrain a state . . . from
activities directed by its legislature,” the Court held that the
commission’s price-setting did not violate antitrust law. Id.
at 350–51. As the Court explained, “In a dual system of
government in which, under the Constitution, the states are
sovereign, save only as Congress may constitutionally
subtract from their authority, an unexpressed purpose to
nullify a state’s control over its officers and agents is not
lightly to be attributed to Congress.” Id. at 351.
The Supreme Court’s more recent state-action immunity
cases likewise emphasize that the doctrine protects “the
States’ coordinate role in government,” which “counsels
against reading the federal antitrust laws to restrict the
States’ sovereign capacity to regulate their economies and
provide services to their citizens.” FTC v. Phoebe Putney
Health Sys., Inc., 133 S. Ct. 1003, 1016 (2013). The doctrine
also protects local governmental entities if they act “pursuant
to a clearly articulated and affirmatively expressed state
policy to displace competition.” Id. at 1007.
IV
We have not previously addressed whether an
interlocutory order denying state-action immunity is
immediately appealable under the collateral-order doctrine,
nor has the Supreme Court. We now take on this question,
mindful of the Supreme Court’s admonition that the

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collateral-order doctrine is a “narrow exception,” Firestone,
449 U.S. at 374, that must be “strictly applied,” RichardsonMerrell, Inc. v. Koller, 472 U.S. 424, 431 (1985).
A
The collateral-order doctrine allows interlocutory
appeals in only a “limited category of cases.” Flanagan v.
United States, 465 U.S. 259, 265 (1984) (quoting United
States v. Hollywood Motor Car Co., 458 U.S. 263, 265
(1982) (per curiam)). That category includes interlocutory
denials of certain particularly important immunities from
suit. The Supreme Court has allowed immediate appeals
from denials of Eleventh Amendment immunity, P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144 (1993), absolute immunity, Nixon v. Fitzgerald,
457 U.S. 731, 742 (1982), and qualified immunity, Mitchell
v. Forsyth, 472 U.S. 511, 526–27 (1985). We have also
permitted such appeals from denials of foreign sovereign
immunity, Terenkian v. Republic of Iraq, 694 F.3d 1122,
1130 (9th Cir. 2012), and tribal sovereign immunity,
Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085,
1089–91 (9th Cir. 2007).
The Power District argues that the state-action doctrine
is akin to those immunities and thus that the rejection of such
a defense should also be immediately appealable. But those
immunities are immunities from suit, which differ from mere
immunities from liability. See Nunag-Tanedo v. E. Baton
Rouge Par. Sch. Bd., 711 F.3d 1136, 1139–40 (9th Cir.
2013); see also United States v. Hollywood Motor Car Co.,
458 U.S. 263, 269 (1982) (explaining the “crucial distinction
between a right not to be tried and a right whose remedy
requires the dismissal of charges”). Unlike immunity from
suit, immunity from liability can be protected by a postjudgment appeal. Nunag-Tanedo, 711 F.3d at 1139–40.

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Denials of immunity from liability therefore do not meet the
requirements for immediate appeal under the collateralorder doctrine. Id. Accordingly, we must consider whether
the state-action immunity doctrine provides immunity from
suit or immunity from liability.
The Supreme Court has cautioned against broad
assertions of immunity from suit and has instructed us to
“view claims of a right not to be tried with skepticism, if not
a jaundiced eye.” Dig. Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 873 (1994) (internal quotation marks omitted).
Reading Parker with appropriate skepticism toward the
Power District’s claim of immunity from suit shows that the
state-action doctrine is a defense to liability, not immunity
from suit. The Supreme Court assumed in Parker that
Congress could have blocked the challenged California price
regulation, but the Court found no evidence in the Sherman
Act that Congress actually intended to block the regulation
or other similar state laws. Parker v. Brown, 317 U.S. 341,
350–51 (1943). Parker thus recognizes a limit on liability
under the Sherman Act rather than a safeguard of state
sovereign immunity. Consistent with that reading of Parker,
we and the Supreme Court have described state-action
immunity as an immunity from liability. Patrick v. Burget,
486 U.S. 94, 95 (1988) (“The question presented in this case
is whether the state-action doctrine . . . protects physicians
in the State of Oregon from federal antitrust liability.”);
Snake River Valley Elec. Ass’n v. PacifiCorp, 357 F.3d 1042,
1044 (9th Cir. 2004) (“[W]e again assess the scope of state
action immunity from liability under federal antitrust law.”).
A denial of a motion to dismiss based on state-action
immunity is thus no different from other denials of dismissal
under Federal Rule of Civil Procedure 12(b)(6). When a
defendant is sued under a statute that he believes was never

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meant to apply to him, he may move to dismiss for failure to
state a claim on which relief can be granted. His motion
would then be granted if the court could not reasonably infer
his liability under that statute. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Orders denying motions to
dismiss on such grounds cannot ordinarily be appealed
immediately. See, e.g., Alaska v. United States, 64 F.3d
1352, 1357 (9th Cir. 1995) (explaining why an interlocutory
appeal is not justified to ascertain “whether the plaintiff’s
claim falls within the language of a statute or common law
cause of action”). We are not persuaded that a motion based
on state-action immunity should be treated differently.
In this sense, state-action immunity is analogous to socalled “Noerr–Pennington immunity.” Grounded in the
First Amendment, that doctrine insulates defendants from
antitrust liability for petitioning the government. See, e.g.,
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.
Ct. 1749, 1757 (2014); see also Nunag-Tanedo, 711 F.3d at
1138–40. We have held that Noerr–Pennington immunity is
not an immunity from suit but rather an immunity from
liability. Nunag-Tanedo, 711 F.3d at 1140. It is a “principle
of statutory interpretation” and “no more a protection from
litigation itself than is any other ordinary defense.” Id.
Accordingly, we have held that decisions about Noerr–
Pennington immunity are not immediately appealable. Id. at
1141.
Similar reasoning has led us to hold that defendants
cannot immediately appeal an order rejecting their reliance
on statutory preemption. See Miranda B. v. Kitzhaber,
328 F.3d 1181, 1189–90 (9th Cir. 2003) (per curiam). In
Miranda B., the defendants had unsuccessfully moved to
dismiss a 42 U.S.C. § 1983 suit, arguing that a § 1983
remedy was precluded by other statutory remedies. See id.

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at 1190. We determined that we had no jurisdiction over
their immediate appeal, because the defendants were merely
asserting a defense to liability, not an immunity from suit.
Id. (“The ‘essence’ of the [defendants’] argument is thus not
immunity from suit or a right not to stand trial, but a defense
to suit.”). The same is true here.
In sum, because the state-action doctrine is a defense to
liability and not an immunity from suit, 3 the collateral-order
doctrine does not give us jurisdiction here. 4 Nunag-Tanedo,
711 F.3d at 1139–40.
B
The Power District’s two primary counterarguments are
unavailing.
First, the Power District argues that the collateral-order
doctrine embraces interlocutory orders denying assertions of
state-action immunity because that immunity has
constitutional origins. To be sure, Parker depended on
Even if the state-action doctrine could be characterized as an
immunity from suit, interlocutory denials of that defense still might not
be immediately appealable under the collateral-order doctrine. See Will
v. Hallock, 546 U.S. 345, 353 (2006) (“[I]t is not mere avoidance of a
trial, but avoidance of a trial that would imperil a substantial public
interest, that counts when asking whether an order is ‘effectively’
unreviewable if review is to be left until later.”).
3

Because we hold that an interlocutory appeal is not necessary to
guarantee meaningful appellate review of an order denying state-action
immunity, we need not decide whether the district court’s order was
conclusive and collateral (the two other requirements for immediate
appealability under the collateral-order doctrine). See McElmurry v. U.S.
Bank Nat’l Ass’n, 495 F.3d 1136, 1140 (9th Cir. 2007) (“Because
collateral jurisdiction requires all three elements, we lack collateral order
jurisdiction if even one is not met.”).
4

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California’s constitutionally protected sovereign status. See
317 U.S. at 351 (emphasizing the “dual system of
government in which, under the Constitution, the states are
sovereign”). But a defense’s constitutional pedigree does
not necessarily confer the right to an immediate appeal. As
noted above, a claim of Noerr–Pennington immunity—a
defense derived from the First Amendment—does not entitle
one to an immediate appeal under the collateral-order
doctrine. Nunag-Tanedo, 711 F.3d at 1141. And a criminal
defendant is not entitled to an immediate appeal after his
attorney is removed, even though he has a constitutional
right to counsel of his choice. See Flanagan, 465 U.S. at
266–68. Constitutional provenance therefore does not
ensure the availability of an immediate appeal. See id. at
268–70; Nunag-Tanedo, 711 F.3d at 1140.
Second, the Power District argues that an immediate
appeal is necessary to avoid litigation that would distract
government officials. The Supreme Court rejected a similar
argument in Will v. Hallock, 546 U.S. 345 (2006). In Will,
the plaintiffs lost their business after customs agents
destroyed data stored in their computers. Id. at 348. They
sued the United States under the Federal Tort Claims Act
(FTCA) and in a separate complaint sued the individual
agents under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). The district court dismissed
the case against the United States under an exception in the
FTCA. See 546 U.S. at 348 (citing 28 U.S.C. § 2680(e)).
The agents then moved to dismiss the Bivens case, citing the
“judgment bar” in 28 U.S.C. § 2676, which essentially
prohibits unsuccessful FTCA plaintiffs from suing again for
the same events. The district court denied the agents’ motion
to dismiss the Bivens case, holding that its dismissal of the
action against the United States did not trigger the judgment
bar. Will, 546 U.S. at 348–49.

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The Supreme Court held that the agents could not appeal
immediately, rejecting the argument that immediate review
was necessary to prevent distraction to the government. See
id. at 353. The Court acknowledged “that if the Bivens
action goes to trial the efficiency of Government will be
compromised and the officials burdened and distracted, as in
. . . qualified immunity case[s].” Id. But despite this
similarity to qualified immunity cases, the Court reasoned
that “[q]ualified immunity is not the law simply to save
trouble for the Government and its employees.” Id. Rather,
state officials enjoy qualified immunity “because the burden
of trial is unjustified in the face of a colorable claim that the
law on point was not clear when the official took action, and
the action was reasonable in light of the law as it was.” Id.
The Court held that the same could not be said of the
judgment bar, which is simply designed to “avoid[] . . .
litigation for its own sake.” Id. If the avoidance of litigation
alone sufficed as justification for an interlocutory appeal,
then “28 U.S.C. § 1291 would fade out whenever the
Government or an official lost an early round that could have
stopped the fight.” Id. at 354. The collateral-order doctrine
thus did not confer jurisdiction over the agents’ appeal. See
id. at 355. Likewise, the possibility of mere distraction or
inconvenience to the Power District does not give us
jurisdiction here. 5
5
Of course, our holding here does not prevent states from taking
advantage of other avenues for immediate review. In appropriate
antitrust cases, states may assert Eleventh Amendment immunity,
individual officials may assert qualified immunity, or district courts may
grant early-case motions to dismiss or certify appeals under § 1292(b).
As a last resort, a defendant may petition for a writ of mandamus. Cf.
Cheney v. U.S. Dist. Court, 542 U.S. 367, 381-82 (2004) (explaining that
mandamus relief may be appropriate in a case that threatens the
separation of powers, intrudes “on a delicate area of federal-state

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C
Our conclusion that an order denying state-action
immunity is not appealable under the collateral-order
doctrine comports with decisions of the Fourth and Sixth
Circuits.
In Huron Valley Hospital, Inc. v. City of Pontiac,
792 F.2d 563 (6th Cir. 1986), the Sixth Circuit held that
unsuccessful assertions of state-action immunity failed the
second and third parts of the collateral-order test. The court
concluded that questions of state-action immunity could not
be separated from the merits of the underlying antitrust claim
itself. Id. at 567. It also held that state-action immunity is
not an “‘entitlement’ of the same magnitude as qualified
immunity or absolute immunity, but rather is more akin to a
defense to the original claim.” Id. Because the Supreme
Court had allowed appeals from collateral orders “in very
few situations,” the Sixth Circuit declined to broaden the
right to an immediate appeal to encompass assertions of
state-action immunity. Id. at 568.
The Fourth Circuit agreed in South Carolina State Board
of Dentistry v. FTC, 455 F.3d 436 (4th Cir. 2006). It
similarly held that the second and third parts of the
collateral-order test were not satisfied. Id. at 441–47; see
also id. at 444 (“Parker construed a statute. It did not
relations,” or implicates an officer’s ability to perform constitutional
duties (quoting Will v. United States, 389 U.S. 90, 95 (1967))). Although
such appeals might be possible in some circumstances, jurisdiction under
the collateral-order doctrine does not turn on the existence of any subset
of exceptional cases; rather, the collateral-order doctrine is evaluated
with the “entire category” of orders in mind. Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009) (quoting Dig. Equip., 511 U.S. at
868).

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identify or articulate a constitutional or common law ‘right
not to be tried.’”).
The Fourth Circuit also persuasively identified three
specific incongruities between the state-action doctrine and
immunities from suit that the Supreme Court has held fall
within the collateral-order doctrine. See 455 F.3d at 446–47.
First, municipalities may invoke state-action immunity, but
they may not rely on qualified or Eleventh Amendment
immunity. Id. at 446 (citing, among other cases, City of
Lafayette v. La. Power & Light Co., 435 U.S. 389, 413
(1978), and Will v. Mich. Dep’t of State Police, 491 U.S. 58,
70 (1989)). Second, the state-action doctrine bars “all
antitrust actions, regardless of the relief sought,” but
qualified and sovereign immunities do not prevent suits for
certain prospective relief. Id. at 446–47 (citing, among other
cases, Am. Fire, Theft & Collision Managers, Inc. v.
Gillespie, 932 F.2d 816, 818 (9th Cir. 1991)). And third, an
antitrust defendant can invoke state-action immunity even in
a lawsuit by the United States. Id. at 447. See, e.g., N.C.
State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101 (2015)
(addressing state-action immunity in a suit by the Federal
Trade Commission); FTC v. Phoebe Putney Health Sys.,
Inc., 133 S. Ct. 1003 (2013) (same); FTC v. Ticor Title Ins.
Co., 504 U.S. 621 (1992) (same). By contrast, a state cannot
rely on sovereign immunity to defend against such a lawsuit.
S.C. State Bd., 455 F.3d at 447 (citing United States v.
Mississippi, 380 U.S. 128, 140–41 (1965)).
Those
discrepancies suggest that state-action immunity should not
be treated the same as absolute, qualified, or Eleventh
Amendment immunity.
We acknowledge that two circuits have reached the
opposite conclusion. First, in Commuter Transportation
Systems, Inc. v. Hillsborough County Aviation Authority,

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801 F.2d 1286 (11th Cir. 1986), the Eleventh Circuit held
that state-action immunity was comparable to qualified
immunity because both doctrines protected officials from
“costly litigation and conclusory allegations.” Id. at 1289;
see also, e.g., Danner Constr. Co. v. Hillsborough County,
608 F.3d 809, 812 n.1 (11th Cir. 2010); Askew v. DCH Reg’l
Health Care Auth., 995 F.2d 1033, 1036–37 (11th Cir.
1993).
Second, in Martin v. Memorial Hospital at Gulfport,
86 F.3d 1391 (5th Cir. 1996), the Fifth Circuit held that
“state action immunity shares the essential element of
absolute, qualified and Eleventh Amendment immunities—
‘an entitlement not to stand trial under certain
circumstances.’” Id. at 1395 (quoting Mitchell, 472 U.S. at
525). The Fifth Circuit opined that state-action immunity
protects states from the indignity of private lawsuits and
spares state officials the threat and distraction of discovery
and trials. Id. at 1395–96. It held that those interests—like
the parallel protections afforded by qualified and absolute
immunities—could be vindicated only if evaluated before
trial. 6 Id.
In our view, the Fourth and Sixth Circuits’ decisions are
more persuasively and thoroughly reasoned. Neither Martin
Two other circuits have cited Martin and Commuter
Transportation Systems without endorsing their conclusions. See
Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments,
LLC, 703 F.3d 1147, 1150-51 (10th Cir. 2013) (noting circuit split on
immediate appealability of Parker immunity claims but deciding the
case without reaching the issue); Segni v. Commercial Office of Spain,
816 F.2d 344, 346 (7th Cir. 1987) (citing Commuter Transportation
Systems); see also We, Inc. v. City of Philadelphia, 174 F.3d 322, 329
(3d Cir. 1999) (citing Segni’s discussion of Commuter Transportation
Systems).
6

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nor Commuter Transportation Systems meaningfully
grappled with the Supreme Court’s persistent emphasis that
the collateral-order doctrine must remain narrow. See
Firestone, 449 U.S. at 374; Richardson-Merrell, 472 U.S. at
431; Flanagan, 465 U.S. at 265–66; Hollywood Motor Car
Co., 458 U.S. at 265).
Our conclusion that the Fourth and Sixth Circuits have
the better view is further bolstered by the Supreme Court’s
more recent decisions. If anything, the Supreme Court’s
emphasis on the narrowness of the collateral-order doctrine
has grown stronger since Martin and Commuter
Transportation Systems were decided. See, e.g., Mohawk
Indus., 558 U.S. at 106 (stressing the doctrine must “never
be allowed to swallow the general rule” (quoting Dig.
Equip., 511 U.S. at 868)); Will, 546 U.S. at 349–50
(“emphasizing its modest scope”); Cunningham v. Hamilton
County, 527 U.S. 198, 204 (1999) (referring to the “small
category” of appealable non-final orders (quoting Swint v.
Chambers Cty. Comm’n, 514 U.S. 35, 42 (1995))); Dig.
Equip., 511 U.S. at 868 (labeling the doctrine’s requirements
“stringent”); P.R. Aqueduct, 506 U.S. at 143 (describing a
“small class” of orders (quoting Cohen, 337 U.S. at 546));
Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988)
(referring to the “narrow circumstances” in which the rule
applies).
Moreover, in both Martin and Commuter
Transportation Systems, an early appeal was deemed
necessary to avoid the distraction of state officials. See
Martin, 86 F.3d at 1396; Commuter Transp., 801 F.2d at
1289. But, as explained above, the Supreme Court’s more
recent decision in Will held that governmental defendants
may not rely solely on the distraction or indignity of a
lawsuit to justify immediate appealability. See 546 U.S. at
353–55.

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We therefore join the Fourth and Sixth Circuits in
holding that defendants cannot invoke the collateral-order
doctrine to immediately appeal the rejection of a state-action
immunity defense.
V
For the foregoing reasons, the appeal is DISMISSED for
lack of jurisdiction.