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Solarcity Corp. v. Salt River Project Agricultural Improvement and Power District

United States Court of Appeals, Ninth Circuit

June 12, 2017

SolarCity Corporation, Plaintiff-Appellee,
v.
Salt River Project Agricultural Improvement and Power District, Defendant-Appellant.

          Argued and Submitted November 18, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Arizona D.C. No. 2:15-cv-00374-DLR Douglas L. Rayes, District Judge, Presiding

          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, 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.

          Before: Alex Kozinski, Ronald Lee Gilman, [*] and Michelle T. Friedland, Circuit Judges.

         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.

          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).

         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 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 ...


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