Solarcity Corp. v. Salt River Project Ai&p Dist.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOLARCITY CORPORATION, No. 15-17302

Plaintiff-Appellee,

D.C. No.

v. 2:15-cv-00374-

DLR

SALT RIVER PROJECT AGRICULTURAL

IMPROVEMENT AND POWER DISTRICT,

Defendant-Appellant. 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.

2 SOLARCITY V. SALT RIVER PROJECT

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 Defendant-

Appellant.

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.

SOLARCITY V. SALT RIVER PROJECT 3

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 solar-

power 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).

4 SOLARCITY V. SALT RIVER PROJECT

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

1

We address two other issues in an unpublished memorandum filed

with this opinion.

SOLARCITY V. SALT RIVER PROJECT 5

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

6 SOLARCITY V. SALT RIVER PROJECT

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

2

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).

SOLARCITY V. SALT RIVER PROJECT 7

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-

8 SOLARCITY V. SALT RIVER PROJECT

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

SOLARCITY V. SALT RIVER PROJECT 9

collateral-order doctrine is a “narrow exception,” Firestone,

449 U.S. at 374, that must be “strictly applied,” Richardson-

Merrell, 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 post-

judgment appeal. Nunag-Tanedo, 711 F.3d at 1139–40.

10 SOLARCITY V. SALT RIVER PROJECT

Denials of immunity from liability therefore do not meet the

requirements for immediate appeal under the collateral-

order 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

SOLARCITY V. SALT RIVER PROJECT 11

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 so-

called “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.

12 SOLARCITY V. SALT RIVER PROJECT

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

3

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.”).

4

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.”).

SOLARCITY V. SALT RIVER PROJECT 13

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.

14 SOLARCITY V. SALT RIVER PROJECT

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

SOLARCITY V. SALT RIVER PROJECT 15

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).

16 SOLARCITY V. SALT RIVER PROJECT

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,

SOLARCITY V. SALT RIVER PROJECT 17

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

6

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).

18 SOLARCITY V. SALT RIVER PROJECT

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.

SOLARCITY V. SALT RIVER PROJECT 19

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.