and Submitted November 18, 2016 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 2:15-cv-00374-DLR Douglas L. Rayes, District
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
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,
Oakland, California; Roopali H. Desai and Keith Beauchamp,
Coppersmith Brockelman PLC, Phoenix, Arizona; for
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.
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.
Before: Alex Kozinski, Ronald Lee Gilman, [*] and Michelle T. Friedland,
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
FRIEDLAND, Circuit Judge
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).
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. 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.
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.
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.
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 it had attempted to
maintain a monopoly over the supply of electrical power in
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 ...