USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 1 of 37
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`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 19-12227
`________________________
`
`D.C. Docket No. 1:18-cv-02328
`
`
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`SMILEDIRECTCLUB, LLC,
`
`
` versus
`
`TANJA D. BATTLE,
`in her official capacity as Executive Director of
`the Georgia Board of Dentistry,
`et al.,
`
` Plaintiff—Appellee,
`
`
`
`
`
`Defendants—Appellants.
`
`________________________
`
`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
`
`(July 20, 2021)
`
`Before WILLIAM PRYOR, Chief Judge, and WILSON, MARTIN, JORDAN,
`ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
`
`
`
`
`
`

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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 2 of 37
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`BRASHER, and TJOFLAT, Circuit Judges.*
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`JORDAN, Circuit Judge, delivered the opinion of the Court, in which WILLIAM
`PRYOR, Chief Judge, and WILSON, MARTIN, ROSENBAUM, JILL PRYOR,
`NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, and TJOFLAT,
`Circuit Judges, joined.
`
`JORDAN, Circuit Judge:
`
`Sitting as a full court, we hold that interlocutory appeals may not be taken
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`under the collateral order doctrine from the denials of so-called “state-action
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`immunity” under Parker v. Brown, 317 U.S. 341, 350-52 (1943), and its progeny.
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`We therefore dismiss this appeal by the members of the Georgia Board of Dentistry
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`for lack of appellate jurisdiction.
`
`I
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`SmileDirectClub, LLC, offers orthodontic treatments, including teeth
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`alignment, at steep discounts. Its business model is described in detail in the panel
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`opinion, see SmileDirectClub, LLC v. Battle, 969 F.3d 1134, 1136-37 (11th Cir.
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`2020), and we briefly summarize it here.
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`Patients visit a SmileDirect location, where a technician takes a digital scan
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`of their teeth. The scans are sent to SmileDirect’s lab to create a model. They are
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`also sent to a Georgia-licensed dentist or orthodontist, who determines whether any
`
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`* Judge Gerald Bard Tjoflat took senior status on November 19, 2019 and elected to participate in
`this decision pursuant to 28 U.S.C. § 46(c)(2).
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`
`
`2
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`

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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 3 of 37
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`oral conditions warrant further investigation or prevent the patient from being a
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`candidate for SmileDirect’s alignment treatment. If there are no issues or problems,
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`the dentist or orthodontist creates a patient-specific plan that results in a prescription
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`for SmileDirect’s clear aligners. The patient then receives the aligners by mail from
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`SmileDirect.
`
`In 2018, the Georgia Board of Dentistry—a state-organized entity mostly
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`comprised of practicing dentists—voted to amend its Rule 150-9-.02, which relates
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`to the expanded duties of dental assistants. As explained in the panel opinion, the
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`“practical effect of the proposed amendment w[as] . . . to require that digital scans,
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`like the ones [performed] by SmileDirect at [its locations,] only take place when a
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`licensed dentist is physically in the building where the scans are taking place, and to
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`prohibit them otherwise.” Id. at 1137. Georgia Governor Nathan Deal approved the
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`amendment of Rule 150-9-.02 through a “Certification of Active Supervision.” See
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`id. (internal quotation marks omitted).
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`SmileDirect then sued a number of defendants, including the Board members
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`in their individual capacities. As relevant here, SmileDirect alleged that the Board’s
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`amendment of Rule 150-9-.02 violated the Sherman Act, 15 U.S.C. § 1, which
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`prohibits “[e]very contract, combination in the form of trust or otherwise, or
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`conspiracy, in restraint of trade or [interstate] commerce.” The Board members
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`moved to dismiss the antitrust claims against them in their individual capacities.
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`3
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`

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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 4 of 37
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`They argued that they were entitled to dismissal based on so-called “state action
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`immunity” under Parker because they acted on behalf of Georgia in amending Rule
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`150-9-.02. The district court denied the motion, and the Board members filed an
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`interlocutory appeal as permitted by our precedent. See, e.g., Commuter Transp.
`
`Sys., Inc. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286, 1289-90 (11th Cir.
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`1986); Praxair, Inc. v. Fla. Power & Light Co., 64 F.3d 609, 611 (11th Cir. 1995).
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`The panel affirmed the district court’s denial of the Board members’ motion to
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`dismiss, see SmileDirectClub, 969 F.3d at 1143-46, and we took the case en banc to
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`consider whether denials of Parker “state action immunity” can be appealed prior to
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`final judgment.1
`
`II
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`Whether an interlocutory appeal can be taken from the denial of Parker “state
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`action immunity” presents a question of law subject to plenary review. See Pinson
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`v. JPMorgan Chase Bank, N.A., 942 F.3d 1200, 1206 (11th Cir. 2019). The answer
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`to that question involves consideration of two matters—the scope of the collateral
`
`
`1 The district court ruled that SmileDirect’s Sherman Act claim, as pled, was “sufficient to survive
`a Rule 12(b)(6) motion to dismiss on Parker immunity grounds.” D.E. 51 at 13. Like the panel,
`we conclude that the district court’s denial of the Parker defense was conclusive at this stage of
`the litigation. See SmileDirectClub, 969 F.3d at 1138 n.4. The district court did not definitively
`reject the Parker defense because the facts as pled might not be the facts at summary judgment or
`trial. But this does not mean that the district court’s Rule 12(b)(6) ruling was tentative. Cf.
`Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (explaining that a motion to dismiss on qualified
`immunity grounds takes the defendant’s conduct as alleged in the complaint, while a motion for
`summary judgment on qualified immunity grounds considers the evidence in the light most
`favorable to the plaintiff).
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`
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`4
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`

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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 5 of 37
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`order doctrine and the nature of Parker “state action immunity”—so we begin with
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`some background.
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`A
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`As a circuit court, we generally only have jurisdiction over appeals from “final
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`decisions of the district courts.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
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`103 (2009) (quoting 28 U.S.C. § 1291). There are a handful of exceptions to this
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`final-judgment rule, among them the collateral order doctrine. First recognized in
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`Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546 (1949), the
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`doctrine allows for immediate appeals of a “small class” of non-final orders.
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`The collateral order doctrine is sometimes called an “exception” to the final-
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`judgment rule, but the doctrine “is best understood not as an exception to the ‘final
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`decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of
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`it.” Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (citing
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`Cohen, 337 U.S. at 546). In other words, “[§ 1291] entitles a party to appeal not
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`only from a district court decision that ends the litigation on the merits and leaves
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`nothing more for the court to do but execute the judgment, but also from a narrow
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`class of decisions that do not terminate the litigation, but must, in the interest of
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`achieving a healthy legal system, nonetheless be treated as final.” Id. (internal
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`quotation marks and citations omitted). Accord 19 Moore’s Federal Practice
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`§ 202.07[1] (3d ed. 2021).
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`
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`5
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 6 of 37
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`The Supreme Court has described the collateral order doctrine as “narrow.”
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`Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). And it has
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`remarked that the doctrine is only available in a “limited category of cases.”
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`Flanagan v. United States, 465 U.S. 259, 265 (1984) (internal quotation marks and
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`citations omitted). In its more recent decisions regarding the doctrine, the Court has
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`repeatedly “emphasiz[ed] its modest scope.” Will v. Hallock, 546 U.S. 345, 350
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`(2006). “[A]lthough the Court has been asked many times to expand the ‘small
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`class’ of collaterally appealable orders, [it] ha[s] instead kept it narrow and selective
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`in its membership.” Id. See also Digit. Equip. Corp., 511 U.S. at 868 (“[W]e have
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`also repeatedly stressed that the ‘narrow’ exception should stay that way and never
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`be allowed to swallow the general rule that a party is entitled to a single appeal, to
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`be deferred until final judgment has been entered[.]”) (citation omitted); 15A Charles
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`Alan Wright et al., Federal Practice and Procedure, § 3911 (2d ed. 1992 & April
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`2021 update) (“The common admonition that this doctrine is a narrow ‘exception’
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`to the final-judgment doctrine may be revised to warn that it is a very narrow
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`exception.”).
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`In order to fall within the collateral order doctrine and be immediately
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`appealable, a non-final order must satisfy three conditions. The “order must [1]
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`conclusively determine the disputed question, [2] resolve an important issue
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`completely separate from the merits of the action, and [3] be effectively
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`6
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`

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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 7 of 37
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`unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437
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`U.S. 463, 468 (1978) (citing Cohen, 337 U.S. at 546). This formulaic approach
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`“serves as a reminder that collateral order theory does not justify an ad hoc balancing
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`of the arguments for and against immediate appeal on a case-by-case basis.” Wright
`
`et al., 15A Federal Practice and Procedure, at § 3911.2
`
`B
`
`In Parker, 317 U.S. at 350-52, the Supreme Court held as a statutory matter
`
`that the Sherman Act does not reach state action. “[N]othing in the language of the
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`Sherman Act or in its history,” the Court wrote, “suggests that its purpose was to
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`restrain a state or its officers or agents from activities directed by its legislature.” Id.
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`at 350-51. The Court explained that “[i]n a dual system of government in which,
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`under the Constitution, the States are sovereign, . . . an unexpressed purpose to
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`nullify a state’s control over its officers and agents is not lightly to be attributed to
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`Congress.” Id. at 351. That intuition shaped the Court’s interpretation of the
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`Sherman Act. Although California had imposed a “restraint” on trade, that restraint
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`resulted from “an act of government which the Sherman Act did not undertake to
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`prohibit.” Id. at 352.
`
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`2 As explained later, we conclude that the Board members cannot meet the third condition of
`effective unreviewability, and therefore do not discuss the first and second conditions.
`7
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 8 of 37
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`The Court later extended Parker to private parties and municipalities in
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`certain circumstances. See Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum,
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`Inc., 445 U.S. 97, 104-06 (1980) (private parties); Town of Hallie v. City of Eau
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`Claire, 471 U.S. 34, 38 (1985) (municipalities and other political subdivisions).
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`Private parties, like the Board members in this case, must satisfy the “clear
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`articulation” and “active supervision” standards set out in Midcal, 445 U.S. at 105,
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`and its progeny in order to receive the benefit of Parker.
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`III
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`We held in Commuter Transportation Systems, 801 F.2d at 1289-90—a case
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`involving antitrust claims against a state airport authority—that a non-final order
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`denying a Parker-based summary judgment motion is immediately appealable under
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`the collateral order doctrine. With respect to the unreviewability condition, we
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`characterized Parker as providing immunity from suit, and not just a defense from
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`liability. See id. at 1289. And because the denial of a claim of immunity from suit
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`falls within the collateral order doctrine, see, e.g., Mitchell v. Forsyth, 472 U.S. 511,
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`525, 529-30 & n.10 (1985) (holding that denials of absolute and qualified immunity
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`are immediately appealable under the doctrine), we reasoned that the denial of a
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`8
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 9 of 37
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`Parker-based motion is effectively unreviewable after final judgment. See
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`Commuter Transp. Sys., 801 F.2d at 1289.3
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`There is some support for this aspect of Commuter Transportation Systems.
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`See Martin v. Mem’l Hosp. at Gulfport, 86 F.3d 1391, 1395-97 (5th Cir. 1996); 1A
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`Phillip Areeda & Herbert Hovenkamp, Antitrust Law § 222b (4th ed. 2013). For
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`example, in Martin the Fifth Circuit also treated Parker as providing “an entitlement
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`not to stand trial under certain circumstances.” 86 F.3d at 1395 (internal quotation
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`marks and citation omitted). Yet just four years later, the full Fifth Circuit—in a
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`unanimous opinion—retreated from this facet of Martin in Surgical Care Center of
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`Hammond, L.C. v. Hospital Service District No. 1 of Tangipahoa Parish, 171 F.3d
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`231, 234 (5th Cir. 1999) (en banc): “While thus a convenient shorthand, ‘Parker
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`immunity’ is more accurately a strict standard for locating the reach of the Sherman
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`Act than the judicial creation of a defense to liability for its violation.”
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`
`
`
`
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`3 We later extended the jurisdictional ruling in Commuter Transportation Systems to private
`parties, but without explaining why they too are entitled to an immediate appeal when their Parker
`arguments are rejected before trial. See Praxair, 64 F.3d at 611. As things stand, we are the only
`circuit to allow private parties like the Board members to take an interlocutory appeal from the
`denial of a Parker-based motion to dismiss or motion for summary judgment. The other circuits
`to address the issue have held that private parties cannot use the collateral order doctrine to appeal
`a non-final order rejecting the application of Parker. See Auraria Student Hous. v. Campus Village
`Apartments, LLC, 703 F.3d 1147, 1151 (10th Cir. 2013); Acoustic Sys., Inc. v. Wenger Corp., 207
`F.3d 287, 292-94 (5th Cir. 2000); We, Inc. v. City of Philadelphia, 174 F.3d 322, 329 (3d Cir.
`1999); Segni v. Com. Off. of Spain, 816 F.2d 344, 346 (7th Cir. 1987).
`9
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 10 of 37
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`A
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`“[O]rders denying certain immunities are strong candidates for prompt appeal
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`under § 1291” by way of the collateral order doctrine. See Digit. Equip. Corp., 511
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`U.S. at 871. Yet there is a “crucial distinction between a right not to be tried and a
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`right whose remedy requires the dismissal of charges [or claims].” United States v.
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`Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). This is because “[t]he former
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`necessarily falls into the category of rights that can be enjoyed only if vindicated
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`prior to trial,” whereas “[t]he latter does not.” Id. “Those seeking immediate appeal
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`. . . naturally argue that any order denying a claim of right to prevail without trial
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`satisfies the third condition [of effective unreviewability]. But this generalization is
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`too easy to be sound and, if accepted, would leave the final order requirement of §
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`1291 in tatters.” Hallock, 546 U.S. at 351.
`
`We conclude
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`that Commuter Transportation Systems
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`incorrectly
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`characterized Parker as creating an immunity from trial. Though the Supreme Court
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`has used the shorthand term “Parker immunity,” see, e.g., City of Columbia v. Omni
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`Outdoor Advert., Inc., 499 U.S. 365, 370 (1991), it has also referred to Parker as a
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`“defense” to an antitrust claim, see, e.g., Town of Hallie, 471 U.S. at 39, so the
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`“immunity” phrasing is not conclusive. We must figure out what Parker really
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`represents in order to avoid what Justice Cardozo referred to as the “tyranny of
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`labels.” Snyder v. Massachusetts, 291 U.S. 97, 114 (1934). See also Surgical Care
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`
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`10
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 11 of 37
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`Ctr., 171 F.3d at 234 (addressing the “Parker immunity” shorthand: “The price of
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`the shorthand of using similar labels for distinct concepts is the risk of erroneous
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`migrations of principles.”).
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`The Supreme Court has told us that “Parker and its progeny are premised on
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`an understanding that respect for the States’ coordinate role in government counsels
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`against reading the federal antitrust laws to restrict the States’ sovereign capacity to
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`regulate their economies and provide services to their citizens.” FTC v. Phoebe
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`Putney Health Sys., Inc., 568 U.S. 216, 236 (2013). In our view, Parker and its
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`progeny address the scope of the Sherman Act, and stand only for the proposition
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`that the Act “does not reach state action, not that it cannot do so.” SmileDirectClub,
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`969 F.3d at 1147 (Jordan, J., concurring).
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`In reading Parker this way, we join the Fourth, Sixth, and Ninth Circuits. See
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`SolarCity Corp. v. Salt River Project Agric. Improvement & Power Dist., 859 F.3d
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`720, 726 (9th Cir. 2017) (“[T]he state[ ]action doctrine is a defense to liability, not
`
`immunity from suit.”); S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436, 444 (4th
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`Cir. 2006) (“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
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`within its borders or that Congress could not otherwise make states liable for
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`antitrust violations.”); Huron Valley Hosp., Inc. v. City of Pontiac, 792 F.2d 563,
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`567 (6th Cir. 1986) (“[T]he [Parker] exemption is not an ‘entitlement’ of the same
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`
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`11
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`

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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 12 of 37
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`magnitude as qualified immunity or absolute immunity, but rather is more akin to a
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`defense to the original claim.”). We also align ourselves with the Third, Fifth, and
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`Tenth Circuits, which have similarly read Parker in opinions not addressing the
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`collateral order doctrine. See Kay Elec. Coop v. City of Newkirk, 647 F.3d 1039,
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`1042 (10th Cir. 2011) (Gorsuch, J.) (noting that “the term ‘immunity’ may be a bit
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`strong since the Court [in Parker] held only that Congress hadn’t covered state
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`action, not that it couldn’t”); Surgical Care Ctr., 171 F.3d at 234 (“‘Parker
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`immunity’ is more accurately a strict standard for locating the reach of the Sherman
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`Act than the judicial creation of a defense to liability for its violation.”); Duke & Co.
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`v. Foerster, 521 F.2d 1277, 1279 n.5 (3d Cir. 1975) (“[T]he thrust of Parker is that
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`the Sherman Act is simply inapplicable to activity mandated by state authority.”),
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`overruled in part on other grounds by Omni Outdoor Advert., 499 U.S. at 382-83.
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`The Supreme Court has cautioned federal courts to “view claims of a right not
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`to be tried with skepticism, if not a jaundiced eye,” because “virtually every right
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`that could be enforced appropriately by pretrial dismissal might loosely be described
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`as conferring a right not to stand trial.” Digit. Equip. Corp., 511 U.S. at 873 (internal
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`quotation marks and citations omitted). Applying that skepticism here, we agree
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`with the Fourth, Sixth, and Ninth Circuits that Parker did not arise from any special
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`concerns that would result from having to go to trial, and that Parker protection is
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`not lost if an immediate appeal is denied. See SolarCity Corp., 859 F.3d at 726; S.C.
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`
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`12
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 13 of 37
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`State Bd. of Dentistry, 455 F.3d at 444; Huron Valley Hosp., 792 F.2d at 567. Cf.
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`Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (“[T]o ask what
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`conduct [a statute] reaches is to ask what conduct [it] prohibits, which is a merits
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`question.”).
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`The treatment of the Noerr-Pennington doctrine provides an apt analogy.
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`That doctrine provides, in the Supreme Court’s words, that “defendants are immune
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`from antitrust liability for engaging in conduct (including litigation) aimed at
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`influencing decisionmaking by the government.” Octane Fitness, LLC v. Icon
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`Health & Fitness, Inc., 572 U.S. 545, 556 (2014). Despite the “immunity” label
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`placed on the Noerr-Pennington doctrine, we have recognized that it “can be said to
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`spring directly from a construction of the Sherman Act” and from consideration of
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`First Amendment concerns. See McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552,
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`1559 (11th Cir. 1992). And several circuits have concluded that a “denial of
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`immunity under the Noerr-Pennington doctrine is not an appealable collateral order
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`. . . because it is effectively reviewable after final judgment.” 19 Moore’s Federal
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`Practice, at § 202.07[1] & n. 53.8 (citing Nunag-Tanedo v. E. Baton Rouge Par. Sch.
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`Bd., 711 F.3d 1136, 1138-41 (9th Cir. 2013); Hinshaw v. Smith, 436 F.3d 997, 1003
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`(8th Cir. 2006); Acoustic Sys., Inc., 207 F.3d at 295-96; We, Inc., 174 F.3d at 328-
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`30).
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`
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`13
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 14 of 37
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`What the Ninth Circuit said about Noerr-Pennington is just as true of Parker:
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`“As a principle of statutory interpretation, [Parker] is no more a protection from
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`litigation itself than is any other ordinary defense, affirmative or otherwise[,] and
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`constitutionally grounded or not.” Nunag-Tanedo, 711 F.3d at 1140. So, insofar as
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`the unreviewability condition of the collateral order doctrine is concerned,
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`Commuter Transportation Systems wrongly equated a Parker defense with an
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`immunity from suit. See generally McMahon v. Presidential Airways, Inc., 502 F.3d
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`1331, 1339 (11th Cir. 2007) (“A party is entitled to a collateral order appeal when it
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`has a substantial claim to a true immunity from suit: i.e., an immunity that not only
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`insulates the party from liability, but also prevents the party from being exposed to
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`discovery and/or trial.”).4
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`B
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`
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`We close with a final observation. The third condition of the collateral order
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`doctrine, which asks whether a right or claim can be vindicated adequately on appeal
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`following final judgment, “simply cannot be answered without a judgment about the
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`4 We acknowledge that some of the earlier Supreme Court cases applying the collateral order
`doctrine permitted appeals in scenarios not involving a claimed immunity from suit. See, e.g.,
`Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-72 (1974) (imposition of notice costs in a class
`action); Swift & Co. Packers v. Compania Colombiana del Caribe, 339 U.S. 684, 688-89 (1950)
`(attachment of a vessel in an admiralty proceeding). Those cases, however, are too far removed
`from the Parker defense asserted here to be of much help. We are also wary of applying those
`cases beyond their particular facts given the Supreme Court’s comment that “the collateral[ ]order
`doctrine may have expanded beyond the limits dictated by its internal logic and the strict
`application of the criteria set out in Cohen.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009).
`14
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 15 of 37
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`value of the interests that would be lost through rigorous application of a final
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`judgment requirement.” Mohawk Indus., 558 U.S. at 107 (quoting Digit. Equip.
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`Corp., 511 U.S. at 878-79). The “decisive consideration is whether delaying review
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`until the entry of final judgment ‘would imperil a substantial public interest’ or
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`‘some particular value of a high order.’” Id. (quoting Hallock, 546 U.S. at 352-53).
`
`In determining the answer to this question, the focus is not on the specific case under
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`consideration, but rather “on ‘the entire category to which a claim belongs.’” Id.
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`(quoting Digit. Equip. Corp., 511 U.S. at 868). “The crucial question . . . is not
`
`whether an interest is important in the abstract; it is whether deferring review until
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`final judgment so imperils the interest as to justify the cost of allowing immediate
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`appeal of the entire class of relevant orders.” Id. at 108.
`
`
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`Though its reading of the Sherman Act was partly rooted in federalism, Parker
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`does not reflect a value of sufficiently high order to satisfy the third condition of the
`
`collateral order doctrine. This is admittedly a normative judgment, but the Supreme
`
`Court’s 2006 decision in Hallock leads us to our conclusion.
`
`In Hallock, the plaintiff and her company filed suit against the United States
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`under the Federal Tort Claims Act, 28 U.S.C. § 2674. They alleged that federal
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`agents had damaged property seized pursuant to a search warrant, leading to the loss
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`of the business. See Hallock, 546 U.S. at 347-48. The district court dismissed the
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`suit without reaching the merits, ruling that the agents’ conduct fell within 28 U.S.C.
`
`
`
`15
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 16 of 37
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`§ 2680(e), an exception to the FTCA’s waiver of sovereign immunity. See id. at
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`348. When the plaintiff filed a suit against the agents for constitutional deprivations
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`under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
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`U.S. 388 (1971), the agents sought dismissal under 28 U.S.C. § 2676, the so-called
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`“judgment bar” of the FTCA. They argued that the judgment in the FTCA action
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`barred the Bivens suit. The district court denied the motion to dismiss, and the agents
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`sought to appeal under the collateral order doctrine. See id. at 348-49. The Second
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`Circuit ruled that the agents could take an immediate appeal, but the Supreme Court,
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`in a unanimous opinion, vacated for lack of jurisdiction. See id. at 355.
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`The Court pointed to non-final denials of immunity—e.g., qualified
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`immunity, absolute immunity, and Eleventh Amendment immunity—and to the
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`denial of a double jeopardy claim as the sort of cases that warrant interlocutory
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`appeal under the collateral order doctrine. See id. at 350. Then, explaining that not
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`every right to dismissal can be considered a right not to stand trial, the Court
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`confirmed that it is “some particular value of a high order,” i.e., “avoidance of trial
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`that would imperil a substantial public interest, that counts when asking whether an
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`order is ‘effectively’ unreviewable if review is to be left until later.” Id. at 352-53.
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`Turning to § 2676’s judgment bar, the Court concluded that no such public interest
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`was at stake notwithstanding the sovereign immunity overtones:
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`It is not the preservation of initiative but the avoidance of
`litigation for its own sake that supports the judgment bar,
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`16
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 17 of 37
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`and if simply abbreviating litigation troublesome to
`Government employees were important enough for Cohen
`treatment, collateral order appeal would be a matter of
`right whenever the Government lost a motion to dismiss
`under the [FTCA], or a federal officer lost one on a Bivens
`action, or a state official was in that position in a case
`under 42 U.S.C. § 1983, or Ex Parte Young, 209 U.S. 123
`[ ] (1908).
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`Id. at 353-54. The Court finished its opinion by analogizing to a res judicata/claim
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`preclusion defense, a denial of which would not merit an immediate appeal under
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`the collateral order doctrine. See id. at 355 (“The judgment bar at issue in this case
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`has no claim to greater importance than the typical defense of claim preclusion[.]”).
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`Given what Hallock held, and what it said, we are unpersuaded by the Board
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`members’ arguments that Parker reflects a value of sufficiently high order because
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`its reading of the Sherman Act is based in part on federalism concerns. If the Board
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`members were correct, then the collateral order doctrine would potentially permit an
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`immediate appeal of any pretrial order rejecting a claim by a state or its officials (or
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`private parties acting in concert with a state) that a statute does not cover their
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`conduct. The Supreme Court has never hinted at such an expansive view of the
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`collateral order doctrine, and we decline to sanction it here. Effective review
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`remains available after final judgment because “[a]ppellate courts can remedy the
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`[erroneous denial of Parker protection] . . . by vacating an adverse judgment.”
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`Mohawk Indus., 558 U.S. at 109. A denial of a Parker defense, therefore, does not
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`satisfy the unreviewability condition of Cohen. Cf. Digit. Equip. Corp., 511 U.S. at
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`17
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 18 of 37
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`878 (a right to be free from trial “by [private] agreement does not rise to the level of
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`importance needed for recognition under § 1291”).
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`This does not mean that the denial of a dispositive motion grounded in Parker
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`can never be reviewed prior to final judgment. For example, 28 U.S.C. § 1292(b)
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`gives a circuit court the discretion to hear an interlocutory appeal if the district court
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`concludes that the matter involves “a controlling question of law as to which there
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`is substantial ground for difference of opinion” and that “an immediate appeal from
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`the order may materially advance the ultimate termination of the litigation.” This
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`avenue, we think, gives those who seek dismissal of antitrust claims based on Parker
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`an avenue to obtain interlocutory review. See Mohawk Indus., 558 U.S. at 110-11.
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`There is also the rulemaking process. If states, municipalities, and private parties
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`believe that there should be immediate review of a rejected Parker defense, they can
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`propose a rule of appellate procedure that so provides. See id. at 114.5
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`IV
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`Non-final denials of Parker protection do not fall within the collateral order
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`doctrine. The appeal by the members of the Georgia Board of Dentistry is therefore
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`dismissed for lack of jurisdiction.
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`
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`APPEAL DISMISSED.
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`5 We decided Commuter Transportation Systems in 1986, four years before Congress amended 28
`U.S.C. § 2072(c), a provision of the Rules Enabling Act, to authorize the Supreme Court to adopt
`more nuanced finality requirements through rulemaking. See Mohawk Indus., 558 U.S. at 113-14.
`18
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 19 of 37
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`WILLIAM PRYOR, Chief Judge, joined by BRASHER, Circuit Judge, concurring:
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`I join Judge Jordan’s opinion for the Court in full. I write separately to
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`explain why the Court is right to overrule the line of precedent beginning with
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`Commuter Transportation Systems, Inc. v. Hillsborough County Aviation
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`Authority, 801 F.2d 1286 (11th Cir. 1986). This appeal presents the rare case in
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`which overruling a circuit precedent is appropriate.
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`
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`Overruling circuit precedent is and should be a “rare step.” McCarthan v.
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`Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1096 (11th Cir. 2017) (en
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`banc). “Stability and predictability are essential factors in the proper operation of
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`the rule of law[.]” Id. (alteration rejected) (internal quotation marks omitted). So
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`we “should not lightly overrule past decisions.” Id. (quoting Moragne v. States
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`Marine Lines, Inc., 398 U.S. 375, 403 (1970)). Our caution is especially important
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`when we revisit decisions based on statutes “because Congress remains free to
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`alter what we have done.” Id. (internal quotation marks omitted).
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`
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`But stare decisis is not an “inexorable command.” Payne v. Tennessee, 501
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`U.S. 808, 828 (1991). We may overrule a precedent if a “special justification”
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`exists to do so. Allen v. Cooper, 140 S. Ct. 994, 1003 (2020) (internal quotation
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`marks omitted). For example, we may overrule a precedent when it is “plainly and
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`palpably wrong” and overruling would not “result in more harm than continuing to
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`follow the erroneous decision.” McCarthan, 851 F.3d at 1096 (quoting Bryan A.
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`19
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`USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 20 of 37
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`Garner et al., The Law of Judicial Precedent § 46, at 388 (2016)). And we may
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`overrule a precedent if its “statutory and doctrinal underpinnings have eroded and
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`there has not been significant reliance on the precedent.” Id. (citing Kimble v.
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`Marvel Entm’t, LLC, 576 U.S. 446, 458 (2015)).
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`
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`Before we overrule a precedent, we weigh three considerations: the
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`wrongness of the precedent, its negative consequences, and the extent to which it
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`has generated reliance interests. Ramos v. Louisiana, 140 S. Ct. 1390, 1414–15
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`(2020) (Kavanaugh, J., concurring in part). In this appeal, each consideration
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`counsels in favor of overruling Commuter Transportation Systems