La. Real Estate Appraisers Bd. v. Fed. Trade Comm'n

Decision Date28 February 2019
Docket NumberNo. 18-60291,18-60291
Citation917 F.3d 389
Parties LOUISIANA REAL ESTATE APPRAISERS BOARD, Petitioner v. FEDERAL TRADE COMMISSION, Respondent
CourtU.S. Court of Appeals — Fifth Circuit

Seth David Greenstein, Constantine Cannon, L.L.P., Washington, DC, for Petitioner.

Mark Stephen Hegedus, Michele Arington, Esq., Donald S. Clark, Lisa Beatrice Kopchik, Joel Robert Marcus, Federal Trade Commission, Washington, DC, for Respondent.

Crystal Utley, Esq., Acting Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Consumer Protection Division, Jackson, MS, for Amici Curiae STATE OF MISSISSIPPI, STATE OF IDAHO, STATE OF IOWA, STATE OF RHODE ISLAND and STATE OF UTAH.

Jack R. Bierig, Esq., Sidley Austin, L.L.P., Chicago, IL, for Amicus Curiae FEDERATION OF STATE MEDICAL BOARDS.

Before KING, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:

The Louisiana Real Estate Appraisers Board asks the court to review an order of the Federal Trade Commission, arguing that the Commission erred in concluding that the Board could not assert its state-action immunity defense in the underlying administrative proceeding. This appeal is premature. Accordingly, we DISMISS the petition for review for lack of jurisdiction.

I.

The Louisiana Real Estate Appraisers Board (the "Board") is a state agency tasked with licensing and regulating commercial and residential real estate appraisers and appraisal management companies. La. Stat. Ann. §§ 37:3395, 37:3415.21. Each of the Board’s ten members is appointed by the Governor and confirmed by the state senate, and members are removable by the Governor for cause. Id. § 37:3394. Of the ten members, four must be general appraisers, and two must be residential appraisers. § 37:3394(B)(2).

After Congress passed the Dodd–Frank Wall Street Reform and Consumer Protection Act ("Dodd–Frank"), requiring lenders to compensate fee appraisers "at a rate that is customary and reasonable for appraisal services performed in the market area of the property being appraised," 15 U.S.C. § 1639e(i)(1), the Louisiana legislature amended its own laws. Specifically, the Louisiana legislature amended its Appraisal Management Company Licensing and Regulation Act (the "AMC Act") to require that appraisal rates be consistent with § 1639e and its implementing regulations. La. Stat. Ann. § 37:3415.15(A). The legislature also gave the Board authority to "adopt any rules and regulations in accordance with the [Louisiana] Administrative Procedure Act necessary for the enforcement of [the AMC Act]." § 37:3415.21.

In the exercise of this power, the Board adopted Rule 31101, requiring that licensees "compensate fee appraisers at a rate that is customary and reasonable for appraisal services performed in the market area of the property being appraised and as prescribed by La. Stat. Ann. § 34:3415.15(A)." La. Admin. Code. tit. 46, § 31101. Unlike the federal regulations, which instruct that appraisal fees are "presumptively" customary and reasonable if they meet certain conditions, Rule 31101 prescribed three ways by which a licensed appraisal management company can establish that a rate is customary and reasonable. Compare id. , with 12 C.F.R. § 226.42(f)(2), (3).

The Board published Rule 31101 in the Louisiana Register, solicited comments from the public, and submitted the Rule to the Louisiana House and Senate Commerce Committees for review. Neither chamber conducted a hearing. Therefore, under Louisiana law at the time, the Rule took effect 45 days after submission to the legislature. The Governor did not exercise his authority to veto the Rule.

In May 2017, the Federal Trade Commission ("FTC") issued an administrative complaint against the Board, alleging that it had "unreasonably restrain[ed] competition by displacing a marketplace determination of appraisal fees." Because Rule 31101 established an exclusive list of ways by which appraisal management companies could determine compensation for appraisers, the FTC alleged that the Rule "prevents [appraisal management companies] and appraisers from arriving at appraisal fees through bona fide negotiation and through the operation of the free market." Additionally, the FTC alleged that the Board’s enforcement of the Rule unlawfully restrained price competition. In its answer, the Board argued, inter alia, that it was immune from federal antitrust liability.

After the FTC filed its complaint, the Governor of Louisiana issued an executive order adding oversight to the Board. Pursuant to the order, the Board must now submit any new customary-and-reasonable-fee regulation to the Louisiana Commissioner of Administration or the Commissioner’s designee for approval, rejection, or modification. In addition, the Division of Administrative Law must preapprove certain Board enforcement activities. The Board thereafter re-issued a revised Rule 31101, following the same procedures it had undertaken in 2013 as well as the new procedures outlined in the Governor’s executive order.

After the Board repromulgated its revised Rule 31101, it moved to dismiss the FTC’s complaint. The Board argued that its postcomplaint measures eliminated the prior effects of the old Rule and provided for active supervision going forward. Thus, it argued, the complaint was moot. The same day, the FTC moved for partial summary decision on the Board’s state-action defenses, arguing that the Board is controlled by active market participants and the state’s supervision was still inadequate.

The Commission1 denied the motion to dismiss and granted the FTC’s motion. The Commission has not issued a final cease-and-desist order. The Board petitions us for review, arguing that it is immune from the administrative action pursuant to the state-action doctrine.

II.

Although the Board urges us to reach the merits of its appeal, we must first "assure ourselves of our own federal subject matter jurisdiction." Keyes v. Gunn , 890 F.3d 232, 235 n.4 (5th Cir. 2018). "Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Texas v. Travis Cty., Tex. , 910 F.3d 809, 811 (5th Cir. 2018) (quoting Stockman v. FEC , 138 F.3d 144, 151 (5th Cir. 1998) ). Therefore, to adjudicate this appeal, there must be a statute allowing us to review the Commission’s order on a motion to dismiss or motion for partial summary decision.

The Board seemingly concedes that the Federal Trade Commission Act ("FTCA") does not expressly authorize us to hear this appeal. Title 15 of the United States Code, Section 45 provides: "Any person, partnership, or corporation required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States ...." Accordingly, we have noted that "[t]he jurisdiction of this Court to review an order of the Federal Trade Commission .... arises only from a cease and desist order entered by the Commission." Texaco, Inc. v. FTC , 301 F.2d 662, 663 (5th Cir. 1962) (emphasis added). Therefore, because the Commission’s order denying the Board’s motion to dismiss and granting the FTC’s motion for partial summary decision is not a cease-and-desist order, the statute does not expressly authorize us to exercise jurisdiction here.

Nonetheless, the Board argues that we have jurisdiction under the collateral-order doctrine. The collateral-order doctrine first emerged in Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in which the Supreme Court considered the application of 28 U.S.C. § 1291. Section 1291 instructs that the courts of appeals "shall have jurisdiction of appeals from all final decisions from the district courts." § 1291 (emphasis added). The Court rejected the argument that the statute only allows appeals from final judgments. See Cohen , 337 U.S. at 545-46, 69 S.Ct. 1221. Instead, the Court held that there is a "small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546-47, 69 S.Ct. 1221. Thus, a district court’s order is reviewable if it "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment." Will v. Hallock , 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ).2

In concluding that some intermediate orders are immediately appealable, the Cohen Court reasoned that "[t]he effect of [ § 1291 ] is to disallow appeal from any decision which is tentative, informal or incomplete." 337 U.S. at 546, 69 S.Ct. 1221. Therefore, when a district court’s decision is final, a court of appeals may undertake review of that decision, even if that decision does not end the litigation. Id. But the Court emphasized that § 1291 only permits review of final decisions; when a district court’s decision is "but steps towards final judgment," the statute does not permit an appeal. Id. In subsequent cases, the Court has explained that the collateral-order doctrine is "best understood not as an exception to the ‘final decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of it." Dig. Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting Cohen , 337 U.S. at 546, 69 S.Ct. 1221 ).

But Cohen does not resolve this case. Cohen only holds that § 1291 permits collateral review of district court decisions. Here, we must determine whether the FTCA permits collateral review of the Commission’s decisions. As an initial...

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