SmileDirectClub, LLC v. Battle, 19-12227

Decision Date20 July 2021
Docket NumberNo. 19-12227,19-12227
Citation4 F.4th 1274
Parties SMILEDIRECTCLUB, LLC, Plaintiff—Appellee, v. Tanja D. BATTLE, in her official capacity as Executive Director of the Georgia Board of Dentistry, et al., Defendants—Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Jeffrey S. Cashdan, Stephen B. Devereaux, Madison Kitchens, Adam Reinke, King & Spalding, LLP, Atlanta, GA, for Plaintiff - Appellee.

Andrew Alan Pinson, Christopher Michael Carr, Roger A. Chalmers, Bryan A. Thernes, Drew Waldbeser, Attorney General's Office, Atlanta, GA, Michael A. Caplan, James William Cobb, Caplan Cobb, LLP, Atlanta, GA, for Defendants - Appellants.

Steven Mintz, Robert Nicholson, U.S. Department of Justice, Antitrust Division - Appellate Staff, Washington, DC, for Amicus Curiae United States of America.

Mark S. Hegedus, Federal Trade Commission, Office of the General Counsel, Washington, DC, for Amicus Curiae Federal Trade Commission.

Sarah Keeton Campbell, Office of Attorney General, Nashville, TN, for Amici Curiae State of Tennessee, State of Alaska, State of Connecticut, State of Florida, State of Idaho, State of Kansas, State of Kentucky, State of Louisiana, State of Maine, State of Minnesota, State of Nebraska, State of New Jersey, State of Ohio, State of South Carolina, State of Texas, State of Utah, State of Wisconsin

Jodi Avila, Baker McKenzie, LLP, Miami, FL, for Amicus Curiae Jessica Julien


JORDAN, Circuit Judge:

Sitting as a full court, we hold that interlocutory appeals may not be taken under the collateral order doctrine from the denials of so-called "state-action immunity" under Parker v. Brown , 317 U.S. 341, 350-52, 63 S.Ct. 307, 87 L.Ed. 315 (1943), and its progeny. We therefore dismiss this appeal by the members of the Georgia Board of Dentistry for lack of appellate jurisdiction.


SmileDirectClub, LLC, offers orthodontic treatments, including teeth alignment, at steep discounts. Its business model is described in detail in the panel opinion, see SmileDirectClub, LLC v. Battle , 969 F.3d 1134, 1136-37 (11th Cir. 2020), and we briefly summarize it here.

Patients visit a SmileDirect location, where a technician takes a digital scan of their teeth. The scans are sent to SmileDirect's lab to create a model. They are also sent to a Georgia-licensed dentist or orthodontist, who determines whether any oral conditions warrant further investigation or prevent the patient from being a candidate for SmileDirect's alignment treatment. If there are no issues or problems, the dentist or orthodontist creates a patient-specific plan that results in a prescription for SmileDirect's clear aligners. The patient then receives the aligners by mail from SmileDirect.

In 2018, the Georgia Board of Dentistry—a state-organized entity mostly comprised of practicing dentists—voted to amend its Rule 150-9-.02, which relates to the expanded duties of dental assistants. As explained in the panel opinion, the "practical effect of the proposed amendment w[as] ... to require that digital scans, like the ones [performed] by SmileDirect at [its locations,] only take place when a licensed dentist is physically in the building where the scans are taking place, and to prohibit them otherwise." Id. at 1137. Georgia Governor Nathan Deal approved the amendment of Rule 150-9-.02 through a "Certification of Active Supervision." See id. (internal quotation marks omitted).

SmileDirect then sued a number of defendants, including the Board members in their individual capacities. As relevant here, SmileDirect alleged that the Board's amendment of Rule 150-9-.02 violated the Sherman Act, 15 U.S.C. § 1, which prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or [interstate] commerce." The Board members moved to dismiss the antitrust claims against them in their individual capacities. They argued that they were entitled to dismissal based on so-called "state action immunity" under Parker because they acted on behalf of Georgia in amending Rule 150-9-.02. The district court denied the motion, and the Board members filed an 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. 1986) ; Praxair, Inc. v. Fla. Power & Light Co. , 64 F.3d 609, 611 (11th Cir. 1995). The panel affirmed the district court's denial of the Board members’ motion to dismiss, see SmileDirectClub , 969 F.3d at 1143-46, and we took the case en banc to consider whether denials of Parker "state action immunity" can be appealed prior to final judgment.1


Whether an interlocutory appeal can be taken from the denial of Parker "state action immunity" presents a question of law subject to plenary review. See Pinson v. JPMorgan Chase Bank, N.A. , 942 F.3d 1200, 1206 (11th Cir. 2019). The answer to that question involves consideration of two matters—the scope of the collateral order doctrine and the nature of Parker "state action immunity"—so we begin with some background.


As a circuit court, we generally only have jurisdiction over appeals from "final decisions of the district courts." Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 103, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting 28 U.S.C. § 1291 ). There are a handful of exceptions to this final-judgment rule, among them the collateral order doctrine. First recognized in Cohen v. Beneficial Industrial Loan Corporation , 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the doctrine allows for immediate appeals of a "small class" of non-final orders.

The collateral order doctrine is sometimes called an "exception" to the final-judgment rule, but the 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." Digit. Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (citing Cohen , 337 U.S. at 546, 69 S.Ct. 1221 ). In other words, "[ § 1291 ] entitles a party to appeal not only from a district court decision that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment, but also from a narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final." Id . (internal quotation marks and citations omitted). Accord 19 Moore's Federal Practice § 202.07[1] (3d ed. 2021).

The Supreme Court has described the collateral order doctrine as "narrow." Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). And it has remarked that the doctrine is only available in a "limited category of cases." Flanagan v. United States , 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (internal quotation marks and citations omitted). In its more recent decisions regarding the doctrine, the Court has repeatedly "emphasiz[ed] its modest scope." Will v. Hallock , 546 U.S. 345, 350, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). "[A]lthough the Court has been asked many times to expand the ‘small class’ of collaterally appealable orders, [it] ha[s] instead kept it narrow and selective in its membership." Id. See also Digit. Equip. Corp. , 511 U.S. at 868, 114 S.Ct. 1992 ("[W]e have also repeatedly stressed that the ‘narrow’ exception should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered[.]") (citation omitted); 15A Charles Alan Wright et al., Federal Practice and Procedure, § 3911 (2d ed. 1992 & April 2021 update) ("The common admonition that this doctrine is a narrow ‘exception’ to the final-judgment doctrine may be revised to warn that it is a very narrow exception.").

In order to fall within the collateral order doctrine and be immediately appealable, a non-final order must satisfy three conditions. The "order must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay , 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (citing Cohen , 337 U.S. at 546, 69 S.Ct. 1221 ). This formulaic approach "serves as a reminder that collateral order theory does not justify an ad hoc balancing 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


In Parker , 317 U.S. at 350-52, 63 S.Ct. 307, the Supreme Court held as a statutory matter that the Sherman Act does not reach state action. "[N]othing in the language of the Sherman Act or in its history," the Court wrote, "suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature." Id . at 350-51, 63 S.Ct. 307. The Court explained that "[i]n a dual system of government in which, under the Constitution, the States are sovereign, ... an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress."

Id . at 351, 63 S.Ct. 307. That intuition shaped the Court's interpretation of the Sherman Act. Although California had imposed a "restraint" on trade, that restraint resulted from "an act of government which the Sherman Act did not undertake to prohibit." Id. at 352, 63 S.Ct. 307.

The Court later extended Parker to private parties and municipalities in certain circumstances. See Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc. , 445 U.S. 97, 104-06, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980) (private parties); Town of Hallie v. City of Eau Claire , 471 U.S. 34, 38, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985) (...

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