Reply Brief — Salt River Project Agric. Improvement & Power Dist. v. Tesla Energy Operations, Inc., 138 S. Ct. 1276 (2018) (No. 17-368)

No. 17-368

IN THE

Supreme Court of the United States

SALT RIVER PROJECT AGRICULTURAL

IMPROVEMENT AND POWER DISTRICT,

Petitioner,

.

TESLA ENERGY OPERATIONS, IN.,

F/K/A SOLARCITY CORPORATION

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

CHRISTOPHER E. BABBITT MOLLY S. BOAsT

DANIEL S. VOLCHOK Counsel of Recurd

DAVID M. LEHN WILMER CUTLER PICKERING

DAVID GRINGER HALE AND DORR LLP

DANIEL WINIK 7 World Trade Center

ARPIT K. GARG 250 Greenwich St.

WILMER CUTLER PICKERING New York, NY 10007

HALE AND DORR LLP (212) 230-8800

1875 Pennsylvania Ave. NW molly.boast@wilmerhale.com

Washington, DC 20006

(202) 663-6000 CHRISTOPHER T. CASAMASSIMA

WILMER CUTLER PICKERING

HALE AND DORR LLP

350 S. Grand Ave.

Los Angeles, CA 90071

(213) 443-5300

TABLE OF CONTENTS

Page

e ˙— ii

ARGUMENT ———ů— a

. — — 1

— 4

C. Effective Unreviewability 11

1. The proper standard 11

2. Applying the standard 18

D. Alternative Appeal Mechanisms. 24

ee ee 25

(i)

il

TABLE OF AUTHORITIES

CASES

Page(s)

Alden v. Maine, 527 U.S. 706 (1999). . 20

Ashcroft v. Iqbal, 556 U.S. 662 (2009). 20, 23

Atlantic Richfield Co. v. USA Petroleum Co.,

495 U.S. 328 (1990) 8 6

Behrens v. Pelletier, 516 U.S. 299 (1996) 10

California Retail Liquor Dealers Ass’n v.

Midcal Aluminum, Inc., 445 U.S. 97 (1980) ............ 6

Cantor v. Detroit Edison Co., 428 U.S. 579

(1976) ; 6

City of Columbia v. Omni Outdoor Advertis-

ing, Inc., 499 U.S. 365 (1991). . . 23

Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949) 12

Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978) 3, 6, 7

Cunningham v. Hamilton County, 527 U.S.

198 (1999)

Cutter v. Wilkinson, 544 U.S. 709 (2005)

Digital Equipment Corp. v. Desktop Direct,

Inc., 511 U.S. 863 (1994) 3, 13

Filarsky v. Delia, 566 U.S. 377 (2012) 18

FTC vy. Phoebe Putney Health System, Inc.,

568 U.S. 216 (2013) 2, 18, 19

iii

TABLE OF AUTHORITIES—Continued

Page(s)

FTC vy. Ticor Title Insurance Co., 504 U.S. 621

CIEE) ocsccccrssceecenscossnsenssesensevesvensensesnsecensenesseanescsoooocesneses 19

General Oil Co. v. Crain, 209 U.S. 211 (1908) 20

Gulfstream Aerospace Corp. v. Mayacamas

e 3

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 23

Hartman v. Moore, 547 U.S. 250 (2006) 11

Hutto v. South Carolina Retirement System,

773 F.3d 536 (4th Cir. 2014) n

Imbler v. Pachtman, 424 U.S. 409 (1976) 17

Johnson v. Jones, 515 U.S. 304 (1995). 3, 6, 7, 10, 11, 22

Mitchell v. Forsyth, 472 U.S. 511 (1985). 2, 8, 9, 17, 20

Mohawk Industries, Inc. v. Carpenter, 558 U.S.

100 (2009) 3, 12, 15, 16

Mount Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977) 18

NCAA v. Board of Regents of University of

Oklahoma, 468 U.S. 85 (1984) . 8

Nizon v. Fitzgerald, 457 U.S. 731 (1982) 17

North Carolina State Board of Dental Exam-

iners v. FTC, 135 S. Ct. 1101 (2015) 1, 8, 21

Osborn v. Haley, 549 U.S. 225 (2007) ; 14

Owen v. City of Independence, 445 U.S. 622

(1980) me |

Parker v. Brown, 317 U.S. 341 (1943). 6, 17, 18

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) 11,14

Puerto Rico Aqueduct & Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1998)........ 10, 11

Quern v. Jordan, 440 U.S. 332 (1979) . . . 19

Richardson v. McKnight, 521 U.S. 399 (1997) . 6

Richardson-Merrell, Inc. v. Koller, 472 US.

4 ů ůjç—ð— ̃ ͤ7 7 — — 3

Sell v. United States, 539 U.S. 166 (2003) . . 15

Seminole Tribe v. Florida, 517 U.S. 44 (1996) 20

Southern Motor Carriers Rate Conference, Inc.

v. United States, 471 U.S. 48 (1985). * 22

Stack v. Boyle, 342 U.S. 1 (1951) 14

Stump v. Sparkman, 435 U.S. 349 (1978) wy

Swint v. Chambers County Commission, 514

U.S. 35 (1995) 3, 21

United States ex rel. Lesinski v. South Florida

Water Management District, 739 F.3d 598

(11th Cir. 2014) 11

United States v. Williams, 504 U.S. 36 (1992) 18

Van Cauwenberghe v. Biard, 486 U.S. 517

(1988) — 7

Will v. Hallock, 546 U.S. 345 (2006) 13, 14, 15

*

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Z 19

Z e 24

ce 21

OTHER AUTHORITIES

Areeda, Phillip E. & Herbert Hovenkamp,

Fundamentals of Antitrust Law (4th ed. &

1 —j— — 2, 6

IN THE

Supreme Court of the Anited States

SALT RIVER PROJECT AGRICULTURAL

IMPROVEMENT AND POWER DISTRICT,

Petitioner,

v.

TESLA ENERGY OPERATIONS, INC.,

F/K/A SOLARCITY CORPORATION,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

ARGUMENT

A. Conclusiveness

1. Disagreeing with every circuit that has ad-

dressed the question, see Opening Br. (“O.B.”) 16, So-

larCity contends that denials of state-action immunity

on legal grounds are not conclusive. Its first rationale

(Br. 54) is that the immunity “depends on ... facts.”

The cases it cites, however, refute that claim; the anal-

ysis in each was legal. See North Carolina State Board

of Dental Examiners v. FTC, 135 S. Ct. 1101, 1110-1116

(2015) (reviewing cases, state statutes, and other legal

2

authorities); FTC v. Phoebe Putney Health System,

Inc., 568 U.S. 216, 227-236 (2013) (examining Georgia’s

hospital laws).

To be sure, denials of state-action immunity (like

qualified-immunity denials) can be fact-based, as in the

litigation SolarCity recounts (Br. 54-55). But usually

they are not. See Areeda & Hovenkamp, Fundamen-

tals of Antitrust Law 9222b (4th ed. & 2015 Supp.).

And specifically, they are not fact-based when (again,

as with qualified immunity) they rest on “purely legal”

grounds, Mitchell v. Forsyth, 472 U.S. 511, 528 n.9

(1985). Those denials—the class at issue here—are

conclusive under this Court’s precedent. O.B. 16.

SolarCity also notes (Br. 54) that state-action im-

munity is an affirmative defense. But the District al-

ready addressed that (O.B. 43), explaining that this

Court has allowed collateral-order appeals with some

affirmative defenses.

Finally, SolarCity never squarely addresses the

District’s central point: thet, “as with denials on legal

grounds of qualified immunity, a denial on such grounds

of state-action immunity .. conclusively determines

the defendant’s claim of right not to stand trial on the

plaintiffs allegations.” O.B. 16 (quoting Mitchell, 472

U.S. at 527). SolarCity’s response (Br. 56) is that state-

action immunity does not provide “any ‘right not to

stand trial.“ That misdirection fails. The District’s

point was that, just as Mitchell held that a qualified-

immunity denial on legal grounds “conclusively deter-

mines the defendant’s claim” to that immunity, so a de-

nial on such grounds of state-action immunity “conclu-

sively determines the defendant’s claim” to that im-

munity. O.B. 16. SolarCity ignores this, focusing on

Mitchell’s reference to standing trial in order to divert

3

attention toward arguments about effective unreview-

ability. That does not change Mitchell’s rejection of So-

larCity’s conclusiveness arguments.

2. SolarCity alternatively contends (Br. 56) that

even if denials of state-action immunity are “generally”

conclusive, the denial here was not. “This Court, how-

ever, has expressly rejected efforts to reduce the finali-

ty requirement ... to a case-by-case determination.“

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 439

(1985); accord Mohawk Industries, Inc. v. Carpenter,

558 U.S. 100, 107 (2009) (citing Coopers & Lybrand v.

Livesay, 437 U.S. 463, 473 (1978)); Gulfstream Aero-

space Corp. v. Mayacamas Corp., 485 U.S. 271, 277

(1988); Digital Equipment Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 868 (1994); Johnson v. Jones, 515

U.S. 304, 315 (1995). Indeed, Johnson v. Jones refutes

SolarCity’s claim (Br. 57) that collateral-order review is

available only if both the overall class of claims and the

specific order being challenged meet the requirements.

Johnson acknowledged that some purely legal quali-

fied-immunity denials might not meet the separateness

yet it made clear that even those orders

could be immediately appealed. See 515 U.S. at 319.

In any event, although the district court initially

“determined there were [relevant] ‘factual’ questions,”

SolarCity Br. 56, it later recognized that clear articula-

tion raises a legal question, Pet. App. 25a. And once it

held clear articulation lacking, no factual develop-

ment—on either state-action-immunity prong—could

change its immunity denial; its (purely legal) clear-

articulation ruling by itself dictated that denial.

This point also rebuts SolarCity’s claim (Br. 57)

that it he circumstances here parallel those ... in

Swint” v. Chambers County Commission, 514 U.S. 35

4

(1995). There, factual development could have affected

the court’s pretrial ruling, because the pertinent issue

there did turn on the facts. O.B. 17-18. Again, the

same is not true here. That is why SolarCity cites no

fact that could change the court’s denial.'

SolarCity also invokes (Br. 58) the district court’s

reference to factual development regarding the active-

supervision requirement. But even putting aside that

that requirement can itself present a legal question, see

O.B. 22-23, no such development, as explained, could

affect the immunity denial.

Lastly, SolarCity asserts (Br. 56, 58) that the denial

here is inconclusive because the district court declared

it so. Even if it were relevant that one particular denial

might realistically be reconsidered, however, the dis-

trict court here has concluded that there are “no sub-

stantial grounds for disagreement” with its clear-

articulation holding, Pet. App. 26a. More fundamental-

ly, SolarCity’s position would mean that any judge re-

jecting a claim of Eleventh Amendment immunity,

qualified immunity, and so on could thwart this Court’s

precedent (and insulate herself from immediate review)

simply by claiming she might revisit her denial. As

noted, this Court has repeatedly rejected that position.

See supra p.3. SolarCity never addresses this disposi-

tive point.

B. Separateness

I. a. In denying that state-action immunity is sepa-

rate from the merits of an antitrust claim, SolarCity

' Swint is the only decision of this Court mentioned in the

treatise passage SolarCity cites (Br. 58). That passage thus does

not support SolarCity’s position.

5

first argues (Br. 40) that the “Parker doctrine is an in-

terpretation of the scope of the Sherman Act.“ State-

action immunity, that is, supposedly differs from im-

mediately appealable immunities because it is “inter-

nal” to antitrust statutes, rather than an “external”

doctrine based in the Constitution, another statute, or

common law. Consequently, SolarCity argues, state-

action immunity, unlike “external” immunities, pre-

vents the alleged conduct from being unlawful. This

logic—which to the District’s knowledge no court has

adopted—lacks merit.

To begin with, state-action immunity is not wholly

“internal.” It rests on external constitutional consider-

ations: federalism and state sovereignty. O.B. 32-35.

That aside, defining “merits” as anything internal to a

statute makes no sense. On that theory, there would be

no collateral-order appeal even if, for example, Con-

gress had expressly provided in the antitrust laws that

states and state officers acting in their official capacity

had absolute immunity against any claim under those

laws, or that no action could be maintained under those

laws against a defendant raising a meritorious quali-

fied-immunity defense. Those immunities would then

be “internal” and thus not separate from the merits—

even though this Court has held that they are separate.

If SolarCity’s response is that state-action immuni-

ty is not merely “internal” but specifically an interpre-

tation of the antitrust laws’ liability provisions (Br. 12,

21-22), that simply assumes the conclusion, i.e., assumes

(Br. 41) that if Parker applies, ... no antitrust law is

violated.” And that assumption is wrong. In address-

? The government echoes SolarCity’s arguments on separate-

ness (and on effective unreviewability and alternative appeal

mechanisms).

6

ing a challenge to a California wine-pricing system, the

Court stated that the system “plainly constitutes resale

price maintenance in violation of the Sherman Act....

Thus, we must consider whether the State’s involve-

ment .. establish[es] antitrust immunity under Parker

v. Brown, 317 U.S. 341 (1943).” California Retail Ligq-

uor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S.

97, 103 (1980). Parker itself, of course, shows that—as

the District argued (O.B. 22)—a court need not even

decide whether there would be a violation absent state-

action immunity; the Court there stated: “We may as-

sume ... that the California prorate program would vio-

late the Sherman Act if ... organized ... by ... private

persons.” 317 U.S. at 350.

State-action immunity therefore operates just like

“external” immunities that satisfy the separateness re-

quirement; it “frees one who enjoys it from a lawsuit

whether or not he acted wrongly,” Richardson v.

McKnight, 521 U.S. 399, 403 (1997); accord Cantor v.

Detroit Edison Co., 428 U.S. 579, 600 (1976) (plurality).

The leading treatise agrees, saying that state-action

immunity “shield[s] the challenged conduct even if such

conduct were ... otherwise offensive to the antitrust

laws.” Fundamentals of Antitrust Law 4224a.

b. SolarCity next asserts that separateness is

lacking even if “merits” means (as the District con-

tends) only the “factual and legal issues comprising the

plaintiffs cause of action,” Coopers & Lybrand, 437

U.S. at 469. In antitrust actions, those issues boil down

to whether the defendant engaged in injurious anti-

competitive conduct. H.., Atlantic Richfield Co. v.

USA Petroleum Co., 495 U.S. 328, 344 (1990). State-

action immunity is separate—i.e., “conceptually dis-

tinct” and “significantly different” Johnson, 515 U.S. at

314—from those issues. It turns not on whether the

7

defendant engaged in injurious anticompetitive conduct

but on whether it acted on a state’s behalf. O.B. 19-23.

Disputing this, SolarCity argues (Br. 42) that sepa-

rateness is lacking whenever resolving a claim “may

require” any consideration of the merits. In fact, sepa-

rateness is lacking only when a claim “generally in-

volves considerations ... enmeshed in the ... issues

comprising the” plaintiffs cause of action. Coopers &

Lybrand, 437 U.S. at 469 (emphases added); accord

Van Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988)

(no separateness because, “in the main, the issues that

arise in forum non conveniens determinations will sub-

stantially overlap” with the merits (emphases added));

Johnson, 515 U.S. at 314 (no separateness where “it

will often prove difficult to find any ‘separate’ ques-

tion”). SolarCity’s authority for a may-require stand-

ard is Cunningham v. Hamilton County, 527 U.S. 198

(1999). But the sentence in Cunningham immediately

before the one SolarCity cites explains that separate-

ness was lacking there because, much like the orders

... in Van Cauwenberghe and Coopers & Lybrand, a

Rule 37(a) sanctions order often will be inextricably in-

tertwined with the merits.” Id. at 205 (emphasis add-

ed). SolarCity’s suggestion that Cunningham never-

theless changed prior cases’ separateness standard—

even while citing those cases—is untenable, particular-

ly given that subsequent cases also reject a may-

require standard. Separateness would thus be lacking

here only if state-action immunity often or generally

overlapped substantially with the merits of an antitrust

claim.

That is not the case—certainly not with purely le-

gal denials, the class at issue here. SolarCity asserts

(Br. 43-44) that the clear-articulation inquiry “requires

examination of the [alleged] conduct ... to determine

8

whether ... anticompetitive consequences were” fore-

seeable. But that level of overlap, i.e., consideration of

the factual allegations, is what Mitchell held insuffi-

cient to defeat separateness. O.B. 21-22 (citing 472 U.S.

at 528-529). SolarCity ignores this, perhaps because

such consideration was the limit of the overlap with the

merits in Phoebe Putney, on which SolarCity relies; the

analysis there mostly involved a review of Georgia’s

(separate) hospital laws. See O.B. 19-20. SolarCity also

ignores the other three state-action-immunity decisions

the District cited (O.B. 20) similarly illustrating the

lack of overlap between the merits and the clear-

articulation inquiry.

The foregoing points likewise answer SolarCity’s

arguments (Br. 44-45) about separateness and the ac-

tive-supervision requirement. To decide whether that

requirement applies, a court examines state laws ad-

dressing the defendant’s nature and composition, in-

cluding the nature of its electoral system, if any. See

North Carolina State Board, 135 S. Ct. at 1110-1116

(conducting such an examination). That inquiry does

not generally or substantially overlap with the merits

of an antitrust claim, which turn not on the defendant’s

composition and nature but on the “impact on competi-

tion” of the alleged “restraint on trade,” NCAA v.

Board of Regents of University of Oklahoma, 468 U.S.

85, 104 (1984). Finally, SolarCity’s argument that sepa-

rateness is absent when the question is whether there

actually was active supervision (Br. 45) is also wrong.

When such denials are purely legal, they involve only

looking at whether state law provided adequate mech-

anisms for active supervision. See O.B. 22-23.

2. SolarCity’s fallback separateness argument is

that the relevant class of orders is all denials of state-

9

action immunity to public entities, not denials on purely

legal grounds. That is meritless.

To begin with, SolarCity contends (Br. 45-46) that

the District has shifted positions from its petition,

which purportedly embraced SolarCity’s all-denials

definition. To the contrary, the petition argued that

“orders denying state-action immunity to public enti-

ties on legal grounds” are immediately appealable.

Pet. 35 (emphasis added); accord Pet. 31 (header), 34;

Cert. Reply 7-8, 10. SolarCity points to the wording of

the question presented, but that would help SolarCity

only if this Court had to answer questions presented

either “yes” or “no.” In fact, the Court’s answer could

parallel its answer in the qualified-immunity context:

yes, if the denial is on “purely legal” grounds, Mitchell,

472 U.S. at 528 n.9.

SolarCity also argues (Br. 52-53) that even purely

legal denials overlap with the merits. That simply re-

states SolarCity’s core separateness contention (which

fails for the reasons given earlier); it is irrelevant to the

proper class definition. Likewise immaterial is SolarCi-

ty’s argument (Br. 46-48) that this case does not involve

a purely legal denial. Whether a particular denial falls

inside or outside the relevant class has nothing to do

with the class’s proper definition. In any event, the de-

nial here was purely legal; again, once the district court

recognized that clear articulation is a legal question,

and deemed such articulation lacking, the immunity

claim was defeated. Were there doubt about that, the

proper course would be to answer the question pre-

sented in the way suggested above and then—because

this is “a court of review, not of first view,” Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005)—allow the low-

er courts to resolve SolarCity’s never-addressed case-

specific arguments “on remand,” Puerto Rico Aqueduct

10

& Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S.

139, 147 (1993).

SolarCity’s lone pertinent contention regarding

how to define the class (Br. 48-52) is that the District’s

definition is “unworkable.” But this Court rejected the

same contention—that this definition “will prove un-

workable”—in Johnson, 515 U.S. at 318. Johnson ex-

plained that “where purely legal matters are at issue,”

(1) appellate judges enjoy “comparative expertise,”

such that interlocutory appeals are more “likely to

bring important error-correcting benefits”; (2) appeals

generally do not “require reading a vast pretrial rec-

ord,” minimizing the “delay” from interlocutory appeal;

and (3) there is “less risk” of courts “wast[ing] time in

duplicating investigations of the same facts on succes-

sive appeals.” Id. at 316-317. In short, “considerations

of delay, comparative expertise of trial and appellate

courts, and wise use of appellate resources” favor im-

mediate appealability of orders involving “abstract is-

sues of law.” Id. at 317. This reasoning applies equally

here.

SolarCity’s effort to distinguish denials of qualified

immunity, which Johnson addressed, from denials of

state-action immunity is unavailing. First, SolarCity

points (Br. 49) to the possibility of multiple interlocuto-

ry appeals. But that exists in qualified-immunity cases

as well. See Behrens v. Pelletier, 516 U.S. 299 (1996).

Second, SolarCity asserts (Br. 51) that “qualified im-

munity generally turns on a single legal question.” The

case it cites, Johnson, does not say that; Johnson says

immediate appeal is available when the immunity claim

raises a legal question, see 515 U.S. at 313-314. The

same should be true in this context. Third, SolarCity

argues (Br. 50) that appellate courts, to confirm their

jurisdiction, may have to make threshold decisions

11

about whether a state- action-· immunity denial (or the

appealed component) is purely legal. That too is true

with qualified immunity. See Johnson, 515 U.S. at 319

(contemplating courts “separat{ing] an appealed order’s

reviewable determination ... from its unreviewable de-

termination”). For example, in Plumhoff v. Rickard,

134 S. Ct. 2012 (2014), this Court, to conclude that the

Sixth Circuit “properly exercised jurisdiction,” had to

hold that the qualified-immunity denial there “raise{d)

legal issues ... different from any purely factual issues

that the trial court might confront if the case were

tried,” id. at 2019-2020; see also Hartman v. Moore, 547

U.S. 250, 257 n.5 (2006).

Finally, SolarCity observes (Br. 48-49) that this

Court has not applied the purely-legal definition be-

yond the qualified-immunity context. But that defini-

tion was apparently raised in this Court in only one

other context, Eleventh Amendment immunity. See

Puerto Rico Aqueduct, 506 U.S. at 147. And whether

an action is barred by the Eleventh Amendment is a

question of law.” Hutto v. South Carolina Retirement

Systems, 773 F.3d 536, 542 (4th Cir. 2014); accord, e. g.

United States ex rel. Lesinski v. South Florida Water

Management District, 739 F.3d 598, 602 (11th Cir.

2014). By contrast, orders denying state-action immun-

ity are not always legal—making the distinction appro-

priate for purposes of assessing immediate appealabil-

ity.

C. Effective Unreviewability

1. The proper standard

SolarCity’s arguments regarding the standard for

effective unreviewability (Br. 17-29) mischaracterize

12

the District’s position and misunderstand relevant

precedent.

a. SolarCity claims (Br. 25-26) that the District

espouses a novell ' standard under which “any order

involving an ‘important interest” qualifies. In reality,

the District’s position is that “[a)n order is effectively

unreviewable if delaying an appeal would imperil a suf-

ficiently important interest.” O.B. 28 (header); accord

O. B. 3, 30. Importance alone is therefore insufficient;

the assorted interests must be jeopardized by deferred

review.

Far from being novel, that standard comes directly

from this Court’s cases. Mohawk, for example, stated

that in assessing effective unreviewability, “the deci-

sive consideration is whether delaying review until the

entry of final judgment ‘would imperil a substantial

public interest’ or ‘some particular value of a high or-

der.“ 558 U.S. at 107; see also id. at 108 (similar state-

ment in describing the “crucial question”). Indeed, the

Court’s seminal collateral-order decision referred to

rights that are “too important to be denied [immediate]

review.” Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 546 (1949).

b. Undaunted, SolarCity offers two proposals re-

garding the effective-unreviewability standard. First,

it argues (e. g., Br. 2, 12, 29) that an immunity from suit

is required (and that state-action immunity does not

qualify, instead providing only immunity from liability).

Second, it contends that importance is a prerequisite on

> This argument is not an abandonſ ment] (SolarCity Br. 24-

25) of the District’s position below. Compare, e g., Pet. C. A. Br. 41

with O.B. 3 (each quoting the same language from Mohawk about

the effective-unreviewability standard).

13

top of an immunity from suit, i.e., that effective unre-

viewability exists only if “an immunity from suit ... a/-

so meets a certain threshold ‘level of importance” (Br.

26). Both arguments fail.

i. In analyzing effective unreviewability, some

older collateral-order cases (on which SolarCity relies

in making this argument (¢.g., Br. 19-20)) employed the

shorthand of “immunity from suit” and “immunity from

liability.” See O.B. 28. But as litigants attempted to

characterize more and more threshold grounds for dis-

missal as immunities from suit, the Court clarified that

having the effective-unreviewability analysis actually

turn on that label “is too easy to be sound and, if ac-

cepted, would leave the final order requirement ... in

tatters.” Will v. Hallock, 546 U.S. 345, 351 (2006); see

O. B. 29-30. That is because It here is no single, ‘obvi-

ously correct way to characterize’ an asserted right”;

“virtually every right that could be enforced appropri-

ately by pretrial dismissal might loosely be described

as conferring a ‘right not to stand trial.” Digital

Equipment, 511 U.S. at 873. If that sufficed, “almost

every [interlocutory] order might be called ‘effectively

unreviewable.” Will, 546 U.S. at 351.

Will therefore “combed” the Court’s cases “for

some further characteristic that merits [immediate]

appealability,” id.—a characteristic beyond the fact

that a particular right would entitle the defendant to a

threshold dismissal. And it determined that, “as Digi-

tal Equipment explained, that something further boils

down to ‘a judgment about the value of the interests

that would be lost through rigorous application of a fi-

nal judgment requirement.” Id. at 351-352. Thus, “it 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’

14

unreviewable if review is to be left until later.” Id. at

353. That, again, is the standard the District espouses

here.

SolarCity insists (Br. 25-26) that this recitation

“misreads this Court’s decisions,” both because the

Court has not overruled older collateral-order cases

and because some recent cases (Plumhoff and Osborn

v. Haley, 549 U.S. 225 (2007)) refer to immunity from

suit. But no overruling was necessary; as Will’s review

of precedent showed, the Court had been using Wil/’s

standard all along, see 546 U.S. at 352, albeit with “im-

munity from suit” as a shorthand—one that litigants

had come to abuse. Will, again, thus explained that

“immunity from suit” is at most a label used at the con-

clusion of the effective-unreviewability analysis, not (as

SolarCity contends) a premise of it.

As for recent cases, Plumhoff, in labeling qualified

immunity an immunity from suit, was repeating Mitch-

ell’s phrasing decades earlier, see 134 S. Ct. at 2019—

for which Will’s re-examination, as explained, already

accounted. And Osborn referred to immunity from suit

because that was what this Court held the Westfall Act

explicitly conferred. See 549 U.S. at 238-239. In that

situation, courts need not judge whether sufficiently

important interests are imperiled by delayed review;

Congress has already done so. See O. B. 30 n. S. But

that does nothing to support SolarCity’s argument

(which Will rejected) that those judgments can be

short-circuited via the label “immunity from suit” ab-

sent such a legislative (or constitutional) command.

Indeed, immunity from suit has never been a pre-

requisite to collateral-order appeal. For example,

Stack v. Boyle, 342 U.S. 1 (1951), allowed immediate

appeal from orders denying bail, id. at 6, which involve

15

no such immunity. Similarly, the right asserted in Sell

v. United States, 539 U.S. 166 (2003), was not an im-

munity from suit; as the Court noted, defendants who

could not be involuntarily medicated in order to be

prosecuted could still be committed civilly, see id. at

180. SolarCity (Br. 18) puts Sell in a separate category:

cases involving an issue that “cannot be meaningfully

addressed following final judgment.” But that is just

another way of saying (as Sell did, see 539 U.S. at 176-

177) that the interests underlying the right would be

imperiled by delayed review. It does not reconcile Sell

(or Stack) with the notion that collateral-order review

requires an immunity from suit. If that were true, Mo-

hawk (and other cases) could have been resolved much

more quickly, given the undisputed absence of any such

immunity. Instead, Mohawk—which never even men-

tioned immunity from suit—undertook an extended

analysis of whether the underlying interests were suf-

ficiently important and would be lost by delayed appeal

(the standard the District embraces). See 558 U.S. at

108-113.

Put simply, SolarCity’s urging of a standard that

Will said “would leave the final order requirement ... in

tatters,” 546 U.S. at 351, should be rejected.

ii. Equally infirm is SolarCity’s argument (Br. 24-

29) that importance is a separate effective-

unreviewability requirement, stacked atop the pur-

ported immunity-from-suit requirement. As explained,

there is no freestanding immunity-from-suit require-

ment. Rather, to the extent “immunity from suit” sur-

* Cases like Sell also rebut SolarCity’s claim (Br. 19) that ab-

sent an “explicit statutory or constitutional guarantee that trial

will not occur,” denial of a right is effectively unreviewable only if

it is “well-grounded in ‘public law.“ This Court has never so held.

16

vives in the doctrine, as a label drawn from early deci-

sions, see supra p.14, importance—and in particular

whether delayed review would threaten a sufficiently

important interest—is the “decisive consideration” and

“crucial question” in deciding whether that label ap-

plies, Mohawk, 558 U.S. at 107, 108.

SolarCity’s authorities (Br. 26-29) do not support

its contrary claim. They refute only the strawman ar-

gument (Br. 26) that “any order involving an ‘important

interest” is effectively unreviewable. Knocking down

strawmen does not show that importance is a require-

ment in addition to, rather than in lieu of, an immunity

from suit—nor does anything else in SolarCity’s discus-

sion.

ce. SolarCity’s attempt to apply the immunity-

from-suit/immunity-from-liability dichotomy here con-

firms the Court’s wisdom in rejecting that dichotomy as

the actual standard. First, SolarCity declares, repeat-

edly (e.g., Br. 2, 21), that state-action immunity is not

an immunity from suit—the very kind of conclusory

declaration that led this Court to explain that such la-

bels are at most the conclusion, not the premise, of ef-

fective-unreviewability analysis. Second, SolarCity as-

serts (Br. 23) that state-action immunity is an immuni-

ty from liability because it “shield[s] state-regulated

activities,” whereas immunities from suit supposedly

protect “classes of government defendants.” That is

incorrect.

State-action immunity is both class- and activity-

based—just like other immunities that fall within the

lateral-order doctrine. Stat tion i ity covers

two classes: states and non-state entities acting on a

state’s behalf. It thus also requires looking at activi-

ties, to determine whether a non-state defendant is in

17

fact acting on a state’s behalf. Other immunities func-

tion the same way. Qualified immunity, for example,

protects a class (public officials), but only for conduct

that does not violate “clearly established law.” Mitch-

ell, 472 U.S. at 528. Speech-or-debate immunity simi-

larly depends on “whether the plaintiff seeks to hold a

Congressman liable for protected legislative actions or

for other, unprotected conduct.” Id. And absolute im-

munity likewise applies only if the defendant was en-

gaging in particular activities. See Nixon v. Fitzgerald,

457 U.S. 731, 749 (1982) (“official acts”); Stump v.

Sparkman, 435 U.S. 349, 356-357 (1978) (judicial acts);

Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecu-

torial conduct).

SolarCity claims (Br. 20) that support for its class-

activities distinction comes from Parker’s statement

that the Sherman Act is “a prohibition of individual and

not state action,” 317 U.S. at 352. That statement,

however, distinguishes between “individual ... action”

and “state action,” i.e., distinguishes based on the de-

fendant’s identity, not activity. In any event, state-

action immunity (like other immunities) is, as ex-

plained, about both classes and activities. Nothing in

Parker—or any other decision of this Court is incon-

sistent with denials of the immunity being immediately

appealable.

In sum, the effective-unreviewability standard is

(as SolarCity eventually acknowledges (Br. 29)) exactly

what this Court’s recent collateral-order cases have

said: whether denying immediate appeal would imperil

a sufficiently important interest.

18

2. Applying the standard

SolarCity offers various arguments (Br. 29-39) for

why effective unreviewability is absent here under the

correct standard. None has merit.

a. SolarCity claims (Br. 31-32) that although

state-action immunity rests on the same sovereignty

and governmental interests that “render qualified- and

sovereign-immunity claims effectively unreviewable,”

collateral-order review is unwarranted here because

state-action immunity “applies to defendants and rem-

edies to which neither qualified nor sovereign immuni-

ty extend{s].” Specifically, SolarCity notes (Br. 30-32)

that state-action immunity, unlike Eleventh Amend-

ment immunity, can be invoked by non-state entities.

But state-action immunity—just like state-sovereign

immunity does not apply ... directly” to non-state

entities, Phoebe Putney, 568 U.S. at 225. It applies if

they function as the state’s “agent[],” carrying out “ac-

tivities directed by its legislature.” Parker, 317 U.S. at

350-351; cf. Mount Healthy City School District Board

of Education v. Doyle, 429 U.S. 274, 280 (1977) (political

subdivision “partak[es] of the State’s Eleventh

Amendment immunity” if it is “an arm of the State”);

Filarsky v. Delia, 566 U.S. 377, 387 (2012) (qualified

immunity extends to “private individuals engaged in

public service”). When state-action immunity applies,

In making these arguments, SolarCity reprises (Br. 32) its

petition-stage contention that the District’s “public status is pure-

ly ‘nominal.” That is wrong, but regardless it concerns the Dis-

trict’s entitlement to state-action immunity, not whether denials

are immediately appealable. See O.B. 25 n.7. It thus provides no

basis to affirm—nor any basis to dismiss the writ as improvidently

granted, given that the issue was raised at the petition stage, see

United States v. Williams, 504 US. 36, 40 (1992).

19

therefore, it is precisely out of respect for “the sover-

eign capacity of the States to regulate their economies.”

Phoebe Putney, 568 U.S. at 224; accord id. at 226 (state-

action immunity preserves states’ “freedom ... to use

their municipalities to administer state regulatory pol-

icies” (emphasis added)); FTC v. Ticor Title Insurance

Co., 504 U.S. 621, 633 (1992) (“Immunity is conferred

[on private actors] out of respect for ongoing regulation

by the State. “).

Indeed, although the opening brief highlighted (at

33-34) the state-sovereignty interests jeopardized by

delayed review of state- action immunity denials—

interests underscored by the amicus briefs supporting

the District (including one from 24 states)—SolarCity

ignores those interests, focusing on the defendants that

are sued for carrying out states’ economic policies. But

it is the states themselves that choose how to regulate

their economies. SolarCity’s position would subject

states to the indignity of having their policy choices in-

hibited via years of litigation initiated by disgruntled

private actors against those effectuating the states’ pol-

icies.

SolarCity also argues (Br. 30) that Eleventh

Amendment and qualified immunities bar “only ...

damages suits.” In fact, the Eleventh Amendment bars

“any suit in ... equity,” U.S. Const. amend. XI, and

hence precludes injunctions against states as well as

retrospective equitable relief against their agents, e. g.,

Quern v. Jordan, 440 U.S. 332, 337 (1979). Contrary to

SolarCity’s argument, moreover, this Court has ex-

plained that injunctions against states and their agents

implicate essentially the same interests as damages ac-

tions:

20

The relief sought ... is irrelevant to ... wheth-

er the suit is barred by the Eleventh Amend-

ment.... The Eleventh Amendment does not

exist solely ... to “prevent federal-court judg-

ments that must be paid out of a State’s treas-

ury”; it also serves to avoid “the indignity of

subjecting a State to the coercive process of

judicial tribunals at the instance of private par-

ties.”

Seminole Tribe v. Florida, 517 U.S. 44, 58 (1996)

(brackets and citations omitted).

Qualified immunity is likewise concerned with not

only “liability for money damages,” but also “the gen-

eral costs of subjecting officials to [both] the risks of

trial” and “such pretrial matters as discovery,” because

those too cause “distraction of officials from their gov-

ernmental duties, inhibition of discretionary action, and

deterrence of able people from public service.” Mitch-

ell, 472 U.S. at 526; accord Ashcroft v. Iqbal, 556 U.S.

662, 685 (2009). These costs are imposed by injunctive

suits as well as damages actions.

To be sure, qualified and Eleventh Amendment

immunities do not bar prospective equitable relief

against state officials. But that is because their under-

lying interests, although present in cases requesting

such relief, are outweighed by the need to provide ade-

quate remedies for constitutional violations. As this

Court put it, “certain suits for declaratory or injunctive

relief against state officers must ... be permitted if the

Constitution is to remain the supreme law of the land.”

Alden v. Maine, 527 U.S. 706, 747 (1999) (citing General

Oil Co. v. Crain, 209 U.S. 211, 226-227 (1908)). In the

state-action-immunity context, however, there is no

constitutional imperative to provide remedies for anti-

21

competitive state policies, so the immunity’s scope re-

flects the full range of situations where the underlying

interests are at stake. See States Br. 23-31; National

Governors Association Br. 8-18; American Public Pow-

er Association Br. 21-24. That the countervailing inter-

ests are weaker with state-action immunity than with

other immunities provides no basis to deny collateral-

order appeal here.

For similar reasons, SolarCity errs in invoking (Br.

31) Swint’s refusal to permit collateral-order appeal

from orders denying a municipality’s claim of immunity

from damages under 42 U.S.C. §1983. See 514 U.S. at

4143. That refusal flowed from the Court’s earlier re-

jection of qualified immunity for municipalities under

$1983, a rejection based partly on the fact that confer-

ring qualified immunity on municipalities would un-

dermine §1983’s “central aim” of “provid[ing] protec-

tion to those persons wronged by the misuse of [gov-

ernment] power.” Owen v. City of Independence, 445

U.S. 622, 650 (1980) (brackets and quotation marks

omitted); accord id. at 656. Again, then, this Court

deemed the governmental interests underlying quali-

fied immunity outweighed by other interests. By con-

trast, the entire rationale of state-action immunity is

that when the immunity applies, the balance tips the

other way, i.e., the underlying sovereignty, federalism,

and other governmental interests outweigh the inter-

ests underlying the antitrust laws. See, eg., North

Carolina State Board, 135 S. Ct. at 1109-1110. In those

circumstances, immediate appeal is indeed warranted—

just as when those same interests outweigh other in-

terests in the context of Eleventh Amendment or quali-

fied immunity.

b. SolarCity’s contention (Br. 33-34) that “other

doctrines” protect “the interests [the District] invokes”

22

is belied by the preceding discussion, and by the proce-

dural history here. The litigation has continued despite

partial dismissal under the Local Government Anti-

trust Act, and as SolarCity says (Br. 34), the District

cannot assert Eleventh Amendment or qualified im-

munity. Furthermore, SolarCity does not explain why

the potential availability of one defense renders the de-

nial of another effectively reviewable after final judg-

ment. At bottom, this argument (like much of SolarCi-

ty’s brief) is really an attack on state-action immunity

itself. Given the “over [7]0 years of congressional ac-

quiescence” in the doctrine, that attack should be re-

jected. Southern Motor Carriers Rate Conference, Inc.

v. United States, 471 U.S. 48, 55 n.18 (1985).

ce. SolarCity frets (Br. 3, 11, 34-38) that allowing

collateral review here would require allowing it with

many other types of orders. That concern is misplaced.

As an initial matter, SolarCity cites nothing sug-

gesting that the consequences it darkly forecasts have

materialized in either of the two circuits where collat-

eral-order review from denials of state-action immunity

has been allowed for decades. That severely undercuts

SolarCity’s predictions. See Johnson, 515 U.S. at 319.

In any event, although SolarCity contends (Br. 34-

35) that reversal here would allow private entities to

immediately appeal denials of state-action immunity,

courts of appeals have distinguished such denials from

denials to public entities—just as in the qualified-

immunity context. Pet. 16 n.4. SolarCity does not

acknowledge this, let alone explain why it fails to allay

the professed concern.

Also baseless is SolarCity’s argument (Br. 35-36)

that if collateral-order review is available here, it would

be available from any ruling “rejecting a defendant’s

23

argument that a state law survives federal preemp-

tion.” But while various types of litigants can argue

against preemption, state-action immunity can be as-

serted—and thus its denial immediately appealed—

only by a state or its agent. See City of Columbia v.

Omni Outdoor Advertising, Inc., 499 U.S. 365, 379-380,

382-383 (1991) (city defendant successfully asserted

state-action immunity but private co-conspirator had to

rely on other defenses). Most preemption cases, more-

over, would not also involve the interests underlying

qualified immunity, as state-action immunity does.

Finally, SolarCity contends (Br. 36) that if the “ef-

ficiency interests” the District identifies sufficed, then

interlocutory appeal would be available “whenever” a

public entity’s motion to dismiss was denied, because

those interests “are present in all suits involving public

entities.” State-action immunity, however—like quali-

fied immunity—promotes efficiency not for its own

sake but to encourage government initiative in policy-

making. O.B. 36-39. Immediate appeal is therefore

available only when an asserted right is designed to

protect those interests, see Iqbal, 556 U.S. at 685, quot-

ed in SolarCity Br. 38, not anytime a defense asserted

by a governmental actor is rejected. SolarCity’s cita-

tions to Swint and Will (Br. 36-37) are unavailing for

the same reason: As SolarCity recognizes (Br. 37), no

such right was asserted there, see O.B. 42. Similarly, it

is irrelevant that qualified immunity applies only when

the law was not clearly established (SolarCity Br. 37),

because that limitation does not exist to promote initia-

tive. It instead reflects a “balancing of competing val-

ues”—avoiding the “costs” of litigation while prevent-

ing and remedying unlawful actions, Harlow v. Fitzger-

ald, 457 U.S. 800, 816 (1982).

24

D. Alternative Appeal Mechanisms

SolarCity argues (Br. 1, 59) that collateral-order

appeal is unnecessary here because defendants who are

denied state-action immunity can seek mandamus or

certification under 28 U.S.C. §1292(b). That argument

fails.

Unlike collateral-order appeal, mandamus and (as

this case illustrates) §1292(b) appeal are discretionary;

an appeal proceeds only if the court finds certain pre-

conditions met. They are thus not a substitute for col-

lateral-order appeal of right. Precedent confirms this:

As the District explained (O.B. 44), mandamus and

§1292(b) appeal are available for other orders this

Court has held immediately appealable. Yet the Court

did not regard those alternatives as a reason to deny

collateral-order appeal. SolarCity offers no response.

SolarCity’s final argument (Br. 60-61) is that this

Court should affirm because it has rulemaking authori-

ty to permit collateral-order appeals. But the District

addressed that too (O.B. 44-45), explaining that since

Congress granted that authority, the Court has contin-

ued to use adjudication to approve immediate appeal

for certain orders—an approach consistent with the

relevant statutory text, which nowhere makes the

rulemaking authority exclusive. Here too, SolarCity

ignores that point.

25

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

CHRISTOPHER E. BABBITT MOLLY S. BOAST

DANIEL S. VOLCHOK Counsel of Record

DAVID M. LEHN WILMER CUTLER PICKERING

DAVID GRINGER HALE AND DORR LLP

DANIEL WINIK 7 World Trade Center

ARPIT K. GARG 250 Greenwich St.

WILMER CUTLER PICKERING New York, NY 10007

HALE AND DORR LLP (212) 230-8800

1875 Pennsylvania Ave. NW molly. boastw,wilmerhalè. com

Washington, DC 20006

(202) 663-6000 CHRISTOPHER T. CASAMASSIMA

WILMER CUTLER PICKERING

HALE AND DORR LLP

350 S. Grand Ave.

Los Angeles, CA 90071

(213) 443-5300

MARCH 2018