 South Carolina State Board of Dentistry v. Brown, 317 U.S. 341 1943 . After the FTC refused to grant that protection, the Board…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 SOUTH CAROLINA STATE BOARD OF
DENTISTRY,
Petitioner,
No. 04-2006 v.
FEDERAL TRADE COMMISSION,
Respondent. 
On Petition for Review of an Order
of the Federal Trade Commission.
(D9311)
Argued: March 15, 2006
Decided: May 1, 2006
Before MOTZ and TRAXLER, Circuit Judges, and
James P. JONES, Chief United States District Judge
for the Western District of Virginia, sitting by designation.
Dismissed by published opinion. Judge Motz wrote the opinion, in
which Judge Jones joined. Judge Traxler wrote an opinion concurring
in part and concurring in the judgment.
COUNSEL
ARGUED: Kenneth Paul Woodington, DAVIDSON, MORRISON &
LINDEMANN, P.A., Columbia, South Carolina, for Petitioner.
Michael Daniel Bergman, FEDERAL TRADE COMMISSION,
Washington, D.C., for Respondent. ON BRIEF: Lynne W. Rogers,

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General Counsel, SOUTH CAROLINA DEPARTMENT OF
LABOR, LICENSING & REGULATION, Columbia, South Carolina;
William H. Davidson, II, Andrew F. Lindemann, DAVIDSON, MOR-
RISON & LINDEMANN, P.A., Columbia, South Carolina, for Peti-
tioner. Jeffrey Schmidt, Director, Jeffrey Brennan, Associate Director,
Bureau of Competition, William Blumenthal, General Counsel, John
F. Daly, Deputy General Counsel for Litigation, FEDERAL TRADE
COMMISSION, Washington, D.C., for Respondent.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
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 emer-
gency regulation that prevented oral hygienists from performing cer-
tain 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 anti-
trust 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.
I.
In 2000, South Carolina amended its Dental Practice Act. The leg-
islature, concerned that many school children in low-income areas
were receiving inadequate dental care because of the scarcity of pro-
viders, relaxed the restrictions on oral hygienists performing oral pro-
phylaxis1 and applying sealants in schools. Prior to the 2000
1The statute defines oral prophylaxis as "the removal of any and all
hard and soft deposits, accretions, toxins, and stain from any natural or
restored surfaces of teeth or prosthetic devices by scaling and polishing
as a preventive measure for the control of local irritational factors." S.C.
Code Ann. § 40-15-85(3) (West Supp. 2003).
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amendments, hygienists could only perform those services in schools
if a dentist had personally examined the patient within the preceding
45 days and had authorized such treatment. See S.C. Code Ann. § 40-
15-80(C) (West Supp. 1999). After the 2000 amendments, however,
hygienists could perform those services so long as they were under
the "general supervision" of a dentist. Id. § 40-15-80 (West Supp.
2003). "General supervision," in turn, "means that a licensed dentist
. . . has authorized the procedures to be performed but does not
require that a dentist be present when the procedures are performed."
Id. § 40-15-85(2) (West Supp. 2003) (emphasis added). The amended
statute did not define the term "authorized."
In January 2001, Health Promotion Services ("HPS"), a private
dental services firm, began sending hygienists to schools in South
Carolina to provide preventative dental care. HPS’s hygienists per-
formed oral prophylaxis and applied sealants on students that had not
been pre-examined by dentists. In early July of that year, the Board
received reports of "substandard patient care" by those hygienists.
On July 27, 2001, in order to prevent any future harm, the Board
enacted an emergency regulation pursuant to its rulemaking authority
under S.C. Code Ann. § 40-15-40 (West 2001). That regulation rein-
serted the preexamination requirement into § 40-15-85(B) by defining
the term "authorized" to mean:
the supervising dentist must have clinically examined the
patient and actually determined the need for any specific
treatment. Before treatment may be performed by a dental
hygienist, the supervising dentist must provide a written
work order for the procedure(s) to be performed by the den-
tal hygienist. A clinical examination must be conducted by
the supervising dentist for each patient not more than forty-
five (45) days prior to the date the dental hygienist is to per-
form the procedure for the patient.
25-7 S.C. Reg. 79-80 (July 27, 2001). Under South Carolina law, this
emergency regulation expired after 180 days, in January 2002. See
S.C. Code Ann. § 1-23-130(C) (West 2005).2
2Normally, emergency regulations are only valid for 90 days. Because
the legislature was out of session both when the regulation was filed and
when the 90-day period expired, this regulation was extended for an
additional 90 days.
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On September 12, 2003 — twenty months after the emergency reg-
ulation had expired and three months after the South Carolina legisla-
ture had enacted compromise legislation supported by both the Board
and hygienists3 — the FTC instituted this action against the Board.
Under 15 U.S.C.A. § 45(b) (West 1997), such actions are adjudicated
in an administrative hearing before the FTC. If the FTC issues a
cease-and-desist order, the defendant may appeal directly to this
court. See id. § 45(c).
The Board asserted two defenses during the FTC proceeding. First,
it claimed the action was moot in light of the 2003 amendments to the
Dental Practice Act. Second, it argued that it was entitled to "state
action antitrust immunity" under Parker v. Brown, 317 U.S. 341
(1943), in which the Supreme Court held that the Sherman Act should
not be presumed to apply to states. On July 28, 2004, the FTC denied
the Board’s request for Parker protection but determined that it could
not resolve the mootness issue without additional discovery into
whether the challenged conduct was likely to recur. It therefore
referred the case to an ALJ for limited discovery on that question.4
The Board then filed this interlocutory appeal of the FTC’s rejection
of the state action antitrust exemption.
II.
The central question in this case is whether the Board may pres-
ently appeal the FTC’s determination that it is not entitled to Parker
protection. 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 also 28 U.S.C.A. § 1291 (West 1993) ("The courts of
3See 2003 S.C. Acts 210-15. Those amendments eliminated the preex-
amination requirement for patients being treated in the "public health"
setting (i.e., by hygienists working under the control of the Department
of Health and Environmental Control State Dental Coordinator), while
maintaining the preexamination requirement for hygienists working in
private dental offices. See S.C. Code Ann. §§ 40-15-102, -110 (West
Supp. 2003).
4On August 17, 2004, the FTC stayed that discovery pending the out-
come of this appeal.
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appeals . . . shall have jurisdiction of appeals from all final decisions
of the district courts of the United States . . . .").5 The Supreme Court
has, however, allowed interlocutory appeals in a "small class" of
cases that "finally determine claims of right separable from, and col-
lateral to, rights asserted in the action." Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949).
Although the collateral order doctrine has never been expansive,
the Court’s recent pronouncements on the subject stress that only a
very few types of interlocutory orders can qualify as immediately
appealable collateral orders, lest the doctrine "overpower the substan-
tial finality interests § 1291 is meant to further." Will v. Hallock, 126
S. Ct. 952, 957 (2006); see also id. at 958 ("[W]e have not mentioned
applying the collateral order doctrine recently without emphasizing its
modest scope."); Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 868 (1994) ("[T]he ‘narrow’ exception should stay that way
. . . .") (citation omitted)).
The Court has thus 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 com-
pletely 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
5We note that the Federal Trade Commission Act does not use the
same "final judgment" language as § 1291; instead, it conditions appel-
late jurisdiction on "an order of the Commission to cease and desist from
using any method of competition or practice." 15 U.S.C.A. § 45(c) (West
1997). Given this distinction, an argument could be made that the collat-
eral order doctrine, which represents a "practical construction" of
§ 1291’s final judgment rule, see Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 867 (1994), does not apply. The FTC does not
advance this argument, however. Moreover, the Supreme Court seems to
have rejected this contention. See Fed. Trade Comm’n v. Standard Oil
Co. of Cal., 449 U.S. 232, 246 (1980) (applying collateral order analysis
to determine whether FTC’s non-final decision to issue an administrative
complaint was immediately appealable). Therefore, for the purposes of
this case, we assume that the collateral order analysis applies to the
FTC’s decision.
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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 enti-
tled 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, how-
ever, 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 require-
ments. 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 unre-
viewable" after trial, we join the Sixth Circuit in holding that the
denial of Parker protection is not an immediately appealable collat-
eral order.
III.
An order is only "collateral" to the merits of a case if it does not
"involve[ ] considerations that are ‘enmeshed in the factual and legal
issues compromising the plaintiff’s cause of action.’" Coopers & Ly-
brand v. Livesay, 437 U.S. 463, 469 (1978) (quoting Mercantile Nat’l
Bank v. Langdeau, 371 U.S. 555, 558 (1963)). The issues raised in an
interlocutory appeal need not be identical to those to be determined
on the merits to fail under this requirement; only a threat of substan-
tial duplication of judicial decision making is necessary.
Thus, time and again the Supreme Court has refused to find an
order to be "collateral" when entertaining an immediate appeal might
require it to consider issues intertwined with — though not identical
to — the ultimate merits inquiry. For example, in Cunningham v.
Hamilton County, 527 U.S. 198 (1999), the Court held a sanctions
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order not sufficiently "collateral" because an interlocutory appeal of
that order "may require the reviewing court to inquire into the impor-
tance of the information sought or the adequacy or truthfulness of a
response." Id. at 205. In Van Cauwenberghe v. Biard, 486 U.S. 517
(1988), the Court held an order refusing to dismiss on forum non con-
veniens grounds not "collateral" because its immediate consideration
could require a court to "scrutinize the substance of the dispute
between the parties to evaluate what proof is required." Id. at 528.
And in Coopers & Lybrand, the Court found an order denying class
certification not "collateral" because immediate appellate review of
that decision could require analysis of questions entangled with the
merits, such as the typicality and commonality of claims. 437 U.S. at
469 & n.12.
The kind of interlocutory order at issue here — one denying Par-
ker’s protection — is similarly not separable from the merits of the
underlying action. Explaining why this is so requires a brief examina-
tion of the three situations in which a party may invoke the Parker
doctrine. First, if that party is the "state itself" — i.e., the state legisla-
ture or the courts6 — its actions "ipso facto are exempt from the oper-
ation of antitrust laws." Hoover v. Ronwin, 466 U.S. 558, 567-68
6The Supreme Court has specifically reserved judgment on whether a
governor (and other executive branch officers) may invoke ipso facto
Parker immunity. See Hoover v. Ronwin, 466 U.S. 558, 568 n.17 (1984).
It has, however, suggested that the answer is no. See S. Motor Carriers
Rate Conference v. United States, 471 U.S. 48, 57 (1985) (stating that
"[t]he circumstances in which Parker immunity is available . . . to state
agencies or officials regulating the conduct of private parties" are gov-
erned by the "clear articulation" test set forth in California Liquor Deal-
ers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980)).
Nevertheless, several courts of appeals have extended the ipso facto Par-
ker exemption to executive officers and agencies. See, e.g., Neo Gen
Screening, Inc. v. New Eng. Newborn Screening Program, 187 F.3d 24,
29 (1st Cir. 1999) (state board of health); Charley’s Taxi Radio Dispatch
Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 875-76 (9th Cir. 1987)
(state director of transportation); Saenz v. Univ. Interscholastic League,
487 F.2d 1026, 1027-28 (5th Cir. 1973) (Extension Division of Univer-
sity of Texas at Austin). The Board urges us to follow suit and hold it
is entitled to ipso facto Parker immunity. Given that we lack jurisdiction
to consider this appeal, we do not reach this issue.
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(1984). Second, municipalities may invoke the state action doctrine
if they can "demonstrate that their anticompetitive activities were
authorized by the State pursuant to state policy to displace competi-
tion." Town of Hallie v. City of Eau Claire, 471 U.S. 34, 39 (1985)
(internal quotation marks omitted). Third, Parker may shield a private
party (1) that acts pursuant to a "clearly articulated and affirmatively
expressed" state policy to displace competition and (2) whose actions
are "actively supervised by the State itself." Cal. Retail Liquor Deal-
ers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980) (internal
quotation marks omitted).
This framework demonstrates why Parker analysis is not separable
from the merits of the antitrust action. In two of the three circum-
stances in which Parker applies, a court must look to state law and
determine if the state has a clearly articulated policy to displace com-
petition. That inquiry is inherently "enmeshed" with the underlying
cause of action, which requires a determination of whether a defen-
dant has used "unfair methods of competition in or affecting com-
merce" or "unfair or deceptive acts or practices in or affecting
commerce." 15 U.S.C.A. § 45(a)(2) (West 1997). As the Sixth Circuit
put it, "[t]he analysis necessary to determine whether clearly articu-
lated or affirmatively expressed state policy is involved and whether
the state actively supervises the anticompetitive conduct . . . . [is] inti-
mately intertwined with the ultimate determination that anticompeti-
tive conduct has occurred." Huron Valley Hosp., 792 F.2d at 567.7
To be sure, the Parker analysis does not always require an inquiry
7Of course, Huron Valley, like Parker, involved a case under the Sher-
man Act. This case, by contrast, originated under the Federal Trade
Commission Act, 15 U.S.C.A. § 45 (West 1997). But this distinction
does not render Parker inapplicable. See Fed. Trade Comm’n v. Ticor
Title Ins. Co., 504 U.S. 621, 635 (1992) (applying Parker analysis in
case arising only under FTCA). Nor does this fact change our analysis
of the separability of the Parker claim from the merits action; while "un-
fair competition" may not be coterminous with "anticompetitive con-
duct," the two concepts are still intimately intertwined. Indeed,
anticompetitive conduct under the Sherman Act is a species of "unfair
competition" under 15 U.S.C.A. § 45. See Fed. Trade Comm’n v. Cement
Inst., 333 U.S. 683, 690-94 (1948).
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into whether the state acted to displace competition; the ipso facto
exemption turns only on the identity of the defendant. But the fact
that some Parker claims are separable cannot suffice to render them
all separable. The law is clear on this point. Most recently, in Van
Cauwenberghe, the Court recognized that although "in certain cases"
an interlocutory order "will not require significant inquiry into the
facts and legal issues presented by a case, and an immediate appeal
might result in substantial savings of time and expense for both the
litigants and the courts," a court should "look to categories of cases,
not to particular injustices" in fashioning a rule of appealability in col-
lateral order cases. 486 U.S. at 529; see also Cunningham, 527 U.S.
at 206 ("[W]e have consistently eschewed a case-by-case approach to
deciding whether an order is sufficiently collateral."); Carefirst, 305
F.3d at 261 ("The determination of whether an order satisfies the
requirements of the collateral order doctrine must be made by apply-
ing the requirements to the general category to which the disputed
order belongs, not on a case-by-case basis to every order sought to
be appealed." (emphasis added)).
Because the Parker analysis is not separable from the merits of this
action, the FTC’s refusal to extend Parker protection to the Board
cannot be a collateral order. See Carefirst, 305 F.3d at 261 (an order
must meet all three requirements to be appealable). But even if it were
separable from the merits, the order at issue still would not be imme-
diately appealable because, as explained below, it is not "effectively
unreviewable" after trial.
IV.
To be "effectively unreviewable," an order must protect an interest
that would be "essentially destroyed if its vindication must be post-
poned until trial is completed." Lauro Lines S.R.L. v. Chasser, 490
U.S. 495, 499 (1989) (emphasis added). The Supreme Court has spe-
cifically directed that courts not "play word games with the concept
of a ‘right not to be tried.’" Midland Asphalt Corp. v. United States,
489 U.S. 794, 801 (1989). "[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’ unreview-
able if review is to be left until later." Will, 126 S. Ct. at 959.
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Only a limited number of interests fall into the class of rights "ef-
fectively unreviewable" after trial. Recently, the Court identified just
four categories of appeals in which the values at stake created a right
not to be tried: claims to (1) absolute immunity, Nixon v. Fitzgerald,
457 U.S. 731, 742 (1982); (2) qualified immunity, Mitchell v. For-
syth, 472 U.S. 511, 530 (1985); (3) Eleventh Amendment sovereign
immunity, Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144-145 (1993); and (4) the protections of the
Double Jeopardy Clause, Abney v. United States, 431 U.S. 651, 660
(1977). See Will, 126 S. Ct. at 958. In each of these cases, "some par-
ticular value of a high order was marshaled in support of the interest
in avoiding trial: honoring the separation of powers, preserving the
efficiency of government and the initiative of its officials, respecting
a State’s dignitary interest, and mitigating the government’s advan-
tage over the individual." Id. at 959. See also id. ("[I]t is not mere
avoidance of a trial, but avoidance of a trial that would imperil a sub-
stantial public interest, that counts when asking whether an order is
‘effectively’ unreviewable if review is to be left until later.").
Given these principles, we cannot conclude that Parker creates an
immunity from suit. The Parker doctrine did not arise from any con-
cern about special harms that would result from trial. Instead, Parker
speaks only about the proper interpretation of the Sherman Act:
We find nothing in the language of the Sherman Act or in
its history which suggests that its purpose was to restrain a
state or its officers or agents from activities directed by its
legislature. In a dual system of government in which, under
the Constitution, the states are sovereign, save only as Con-
gress may constitutionally subtract from their authority, an
unexpressed purpose to nullify a state’s control over its offi-
cers and agents is not lightly to be attributed to Congress.
Parker, 317 U.S. at 350-51. The Supreme Court did not say in Parker
that states and their agencies are immune from federal restrictions
placed upon a state’s regulation of commerce within its borders or
that Congress could not otherwise make states liable for antitrust vio-
lations. On the contrary, the Parker Court assumed that Congress,
pursuant to its Commerce Clause powers, could prohibit a state from
engaging in acts that would otherwise be prohibited under the Sher-
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man Act, but found "nothing in the language of the Sherman Act or
in its history" that suggested that Congress had taken that presumably
permissible step. Id. Simply put, Parker construed a statute. It did not
identify or articulate a constitutional or common law "right not to be
tried." Parker, therefore, recognizes a "defense" qualitatively different
from the immunities described in Will, which focus on the harms
attendant to litigation itself. Even the Fifth Circuit, on whose reason-
ing the Board relies, agrees with this assessment. See Surgical Care
Ctr. of Hammond, L.C. v. Hosp. Serv. Dist. No. 1, 171 F.3d 231, 234
(5th Cir. 1999) (en banc) ("Parker immunity is an inapt description,
for its parentage differs from the qualified and absolute immunities of
public officials . . . . While thus a convenient shorthand, ‘Parker
immunity’ is more accurately a strict standard for locating the reach
of the Sherman Act than the judicial creation of a defense to liability
for its violation.").
Hence we cannot conclude that the Supreme Court fashioned the
Parker state action doctrine to protect against any harm other than a
misinterpretation of federal antitrust laws. Although it is undoubtedly
less convenient for a party — in this case the Board — to have to wait
until after trial to press its legal arguments, no protection afforded by
Parker will be lost in the delay. A party denied Parker protection, like
the Board, is in much the same position as a defendant arguing that
his conduct falls outside the scope of a criminal statute. See, e.g.,
United States v. Gilbert, 430 F.3d 215 (4th Cir. 2005) (defendant
maintained that his "innocent possession" of narcotics was beyond the
reach of 18 U.S.C. § 922(g)(1)). Just as that defendant must endure
a trial before appealing the merits of his unsuccessful pre-trial motion,
so too must the Board await a single consolidated appeal (if, indeed,
it is found to have engaged in unfair competition). If we held other-
wise, the important interests protected by the final judgement rule
"would fade out whenever the government or an official lost an early
round that could have stopped the fight." Will, 126 S. Ct. at 960.
V.
The Board’s contrary arguments utterly fail to grapple with the text
of Parker and its progeny. Instead, the Board argues around the mar-
gins of the issue, advancing one contention based on terminology and
another based on analogy to the values protected by other collateral
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orders. Neither of these arguments transforms an order denying Par-
ker protection into an immediately appealable collateral order.
A.
Initially, the Board maintains that Parker must shield parties from
litigation because "[t]he Supreme Court has long referred to the state
action defense created by Parker as ‘Parker immunity.’" Reply Brief
of Appellants at 8. This argument is unpersuasive.
First, the Supreme Court did not characterize the state action anti-
trust doctrine as an "immunity" in the Parker decision itself. Indeed,
although Parker issued in 1943, it was not until 1978 — thirty-five
years later — that the Court first used the term "Parker immunity."
See City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 415
(1978). Nor have the Supreme Court’s later precedents consistently
referred to the doctrine as an "immunity." Rather, the Court has alter-
nated between calling the Parker protection an "immunity" and an
"exemption." Compare City of Columbia v. Omni Outdoor Advertis-
ing, Inc., 499 U.S. 365, 370, 373-74 (1991) (using phrase "Parker
immunity"); Town of Hallie, 471 U.S. at 38 (same); S. Motor Carri-
ers, 471 U.S. at 53-63 (same); Midcal Aluminum, 445 U.S. at 105
(same); City of Lafayette, 435 U.S. at 415 (same), with Fisher v. City
of Berkeley, 475 U.S. 260, 280-81 (1986) (Brennan, J., dissenting)
(using phrase "Parker exemption"); Cmty. Commc’ns Co., Inc. v. City
of Boulder, 455 U.S. 40, 47-48, 50, 53-54, 56 (1982) (same); City of
Lafayette, 435 U.S. at 398, 407 n.33, 410, 415-16 (same); Bates v.
State Bar, 433 U.S. 350, 359 (1977) (same). Thus, we cannot con-
clude that the Court’s occasional after-the-fact use of the term "Par-
ker immunity" created an immunity from suit.
Furthermore, even if the Court had consistently used the "immu-
nity" label, this would not mandate that Parker created a right not to
be tried. As Judge Posner has observed, "[w]ords like ‘immunity’ . . .
are often used interchangeably with ‘privilege,’ without meaning to
resolve issues of appealability . . . . [T]he description of a defense as
an ‘immunity’ rather than a privilege or affirmative defense (and it
could be all three things, of course) does not resolve the issue whether
denial of the immunity is a collateral order." Segni, 816 F.2d at 346
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(citation omitted). For all these reasons, the Board’s terminology
argument fails.
B.
The Board’s only other argument is that the state action antitrust
doctrine must provide an immunity from suit because it serves the
same ends as immunities whose denials are immediately appealable.
Specifically, the Board contends that, like qualified immunity, Par-
ker protects "the full exercise by state actors of their discretion, unde-
terred by the possibility of protracted antitrust litigation." Reply Brief
at 6; see also Commuter Transp. Sys., 801 F.2d at 1289 ("Absent state
immunity local officials will avoid decisions involving antitrust laws
which would expose such officials to costly litigation and conclusory
allegations."). Additionally, we note that, although the Board does not
press the argument, the Fifth Circuit case upon which it relies simi-
larly analogizes Parker to sovereign immunity, assertedly because
"[o]ne of the primary justifications of state action immunity is the
same as that of Eleventh Amendment immunity — to prevent the
indignity of subjecting a State to the coercive process of judicial tri-
bunals at the insistence of private parties." Martin, 86 F.3d at 1395-
96 (internal quotation marks omitted). We reject both of these analo-
gies.
As noted above, a court must look at the entire class of Parker
orders to determine if their denial should be immediately appealable.
See Van Cauwenberghe, 486 U.S. at 529; Cunningham, 527 U.S. at
205; Carefirst, 305 F.3d at 261. Hence, in order for these analogies
to have purchase, the "high order" values that gave rise to qualified
and sovereign immunity — the threat to officers’ initiative and states’
dignity — must be present in all Parker cases, as they are, respec-
tively, in all qualified and sovereign immunity cases. But these values
are not present in all Parker cases; in this way the Parker exemption
critically differs from both qualified and sovereign immunity.
For example, municipalities can invoke Parker’s protection. See
City of Lafayette, 435 U.S. at 413. But because suits against munici-
palities threaten neither officers’ initiative or states’ dignity, cities
may not assert either a qualified or sovereign immunity defense. See
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Owen v. City of Independence, 445 U.S. 622, 638 (1980) (municipali-
ties not entitled to qualified immunity); Will v. Mich. Dept. of State
Police, 491 U.S. 58, 70 (1989) ("States are protected by the Eleventh
Amendment while municipalities are not . . . ."). Moreover, Parker
bars all antitrust actions, regardless of the relief sought. But, because
"it is unlikely that the possibility of injunctions will deter officials
from the decisive exercise of their duties," American Fire, Theft &
Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir.
1991), and because suits for injunctions against state officials do not
offend a state’s dignity,8 neither qualified nor sovereign immunity
operates in cases seeking purely equitable relief. See Rowley v.
McMillan, 502 F.2d 1326, 1331 (4th Cir. 1974) (qualified immunity
"has no application to a suit for declaratory or injunctive relief");
Wessel v. Glendening, 306 F.3d 203, 207 n.4 (4th Cir. 2002) ("The
protection of the Eleventh Amendment does not extend to suits seek-
ing injunctive relief from state officials pursuant to Ex Parte
Young."), overruled on other grounds by Tennessee v. Lane, 541 U.S.
509 (2004). Additionally, Parker applies in suits — like this one —
brought by the federal government. But because such suits do not
offend the dignity of a state, sovereign immunity is no defense to such
an action. See United States v. Mississippi, 380 U.S. 128, 140-41
(1965) (states are not immune from suits brought by the United
States).
These incongruities fatally undermine the Board’s claim that a
denial of Parker protection, like a denial of qualified or sovereign
immunity, should be immediately appealable. We simply cannot
countenance the results that would accrue if we were to make all Par-
ker denials appealable because, in some but not all cases, the underly-
ing suit would threaten the harms against which qualified and
8The Eleventh Amendment technically bars a person from suing a state
or its agency to seek injunctive relief. Cory v. White, 457 U.S. 85, 91
(1982) ("Thus, the Eleventh Amendment by its terms clearly applies to
a suit seeking an injunction, a remedy available only from equity."). But
a plaintiff may bring the suit against a state officer in his official capacity
seeking prospective injunctive relief, thereby effecting the same result.
Seminole Tribe v. Florida, 517 U.S. 44, 71 n.14 (1996) ("[A]n individual
can bring suit against a state officer in order to ensure that the officer’s
conduct is in compliance with federal law.").
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sovereign immunity protect. Such a holding would allow an officer
to appeal the denial of Parker protection in a suit for purely injunctive
relief because the threat of a different suit — one for damages —
might chill his initiative. Similarly, this holding would allow a city,
or even a private party, to appeal all denials of Parker protection
because a different defendant — the state — would arguably suffer
an indignity if sued by a private party for damages.
The Board’s argument attempts to pry qualified and sovereign
immunity loose from their moorings. But there is no reason to do so
simply because an action asserts violations of antitrust law. We
believe the more prudent course is to allow states’ dignity and offi-
cers’ initiative to be protected the way they always have been:
through claims for sovereign and qualified immunity. Nothing stops
states or public officials from asserting those defenses in addition to
claiming Parker protection. Indeed, that is why the Board’s analogy
argument must fail; the only time that a party must rely on Parker to
justify immediate appeal is when, like the Board, it can not assert a
sovereign or qualified immunity defense.
VI.
Because we lack jurisdiction, this appeal is
DISMISSED.
TRAXLER, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in my colleague’s fine opinion except with respect to the
holding in Part III. In my view, the question of whether the actor rep-
resents the state is separate and severable from the question of
whether the action taken is unlawful. Nevertheless, because the dis-
trict court order is not "effectively unreviewable" after trial, as
pointed out by Judge Motz, I agree the order is not immediately
appealable and the appeal should be dismissed for lack of jurisdiction.
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