You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision in SolarCity Corp. v. Salt River Project

Boston College Law Review, Jun 2018

On June 12, 2017, the United States Court of Appeals for the Ninth Circuit held in SolarCity Corp. v. Salt River Project Agricultural Improvement and Power District that the doctrine of state action immunity confers immunity from liability, and therefore a court ruling granting or denying state action immunity may not be immediately appealed. In concluding this, the Ninth Circuit joined the Fourth and Sixth Circuits in opposition to the Fifth and Eleventh Circuits, which held that state action immunity confers immunity from suit and may be immediately appealed. The interpretation of state action immunity thus directly affects whether a party may immediately appeal a court’s ruling on state action immunity. This Comment argues that state action immunity only grants immunity from liability and thus is not immediately appealable, following the decision of the Ninth Circuit.

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You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision in SolarCity Corp. v. Salt River Project

You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision in SolarCity Corp. v. Salt River Project Hunter Malasky 0 1 2 0 This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Hunter Malasky, You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision in SolarCity Corp. v. Salt River Project , 59 B.C.L. Rev. E. Supp. 149, 2018 2 Boston College Law School Part of the Antitrust and Trade Regulation Commons; Energy and Utilities Law Commons; and the State and Local Government Law Commons - Article 9 1 See PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION § 103 (4th ed. 2017) (providing insight into the creation of the Sherman Act as a means to combat monopolies and rising prices);DOUGLAS BRODER, U.S. ANTITRUST LAW AND ENFORCEMENT: A PRACTICE INTRODUCTION 6 (3d ed. 2016) (identifying the Sherman Act as the first piece of antitrust legislation that paved the way for antitrust regulations in the United States); see also Sherman Antitrust Act , ENCYCLOPEDIA BRITANNICA,http://www.britannica. com/event/Sherman-Antitrust-Act [http://perma.cc/8PPE-Q3TU]. The Sherman Act gives rise to the subject of this Comment, state action immunity. See infra notes 3–113 and accompanying text. As such, the topic of this Comment is not substantively about the Sherman Act, but background knowledge of the Sherman Act is necessary to properly view and understand state action immunity. See infra notes 2–8 and accompanying text. 2 See United States v. Am. Tobacco Co., 221 U.S. 106, 188 (1911) (finding American Tobacco Co. violated the Sherman Act by controlling the tobacco market through monopolistic contracts in restraint of trade); Standard Oil Co. v. United States, 221 U.S. 1, 75 (1911) (finding that Standard Oil Co. violated the Sherman Act by consolidating stocks in an attempt to create a monopoly over the oil industry, resulting in unfair competition and restraint of trade). For an overview of antitrust history to private actors, the text of the statute has been interpreted to exclude government actors, creating state action immunity. 3 This Comment discusses the interpretation of state action immunity and the resultant United States circuit court split.4 With the Ninth Circuit’s decision in SolarCity Corp. v. Salt River Project Agricultural Improvement and Power Distric,t the circuits are split with three circuits finding that state action immunity grants immunity from liability, and two circuits concluding that it grants immunity from sui.t5 An appeal to the United State Supreme Court to review the decision in SolarCity Corp. and resolve the discrepancy amongst the circuits was granted in December 2017. 6 Part I of this Comment provides a brief history of the Sherman A ntitrust Act and state action immunity. 7 Part II provides the legal history of state action immunity and examines the various interpretations of state action immunity that creat ed a Circuit split regarding the ability to immediately appeal a state action immunity order. 8 Finally, Part III argues that the Ninth Circuit d ecision in SolarCity Corp. was correct in interpreting state action immunity and the subsequent effect on appealing lower court decisions of immunity.9 I. THE SHERMAN ANTITRUST ACT AND STATE ACTION IMMUNITY Originally enacted in 1890, the Sherman Antitrust Act 15 U.S.C. § 1 (“Sherman Act”) makes it illegal to contract or conspire in restraint of trade among the States.10 The Supreme Court of the United States has interpreted that the Sherman Act applies to private businesses and persons, but not to state governments or state actors. 11 This inapplicability of the Sherman Act to state governments and actors has since been termed state action immunity.12 Although it is well established that state actors have immunity from the Sherman Act, it is not immediately clear whether the immunity grants an immunity from lawsuits or an immunity from legal liability.13 The subsequent use of state a c11 See FTC v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 224 (2013()implying that the Sherman Act applies to private persons, and the Act is not intended to apply to state actors); Parker 317 U.S. at 350 (finding that the Sherman Act may be violated if contraction or conspiracy occurs amongst private persons, but the Sherman Act does not apply to States acting as sovereigns); see also John P. Ludington, Valid Governmental Action as Conferring Immunity or Exemption from Private Liability Under Federal Antitrust Laws, 12 A.L.R. FED. 329 (2017) (stating that government action cannot be found to violate the Sherman Act). The Sherman Act does not include any direct language indicating a State is subject to antitrust regulations, and federal courts have expressly declined to a pply the Sherman Act to state governments. See Phoebe Putney Health Sys., 568 U.S. at 224; Parker, 317 U.S. at 350–51. Because the U.S. Congress has the authority to directly impose restrictions on state economies using the commerce power granted by the U.S. Constitution, courts are historically hesitant to interpret the Sherman Act as imposing a restriction without a further act from Congress. See U.S. CONST. art. I, § 8, cl. 3; Parker, 317 U.S. at 350 (stating that Congress could exercise autho rity over a state’s economic power by asserting the federal government’s commerce power, but without a more explicit law, the Sherman Act does not apply to States); see also Phoebe Putney Health Sys., 568 U.S. at 224. Moreover, courts have referred to the Senate Committee Report in considering the intended scope of the Sherman Act, which highlights that the intent of the Sherman Act is to restrict businesses and corporations. See Parker, 317 U.S. at 351 (citing the congressional record as evidence that the Sherman Act only applies to businesses); 21 CONG. REC. 2562 (1890). 12 See Martin, 86 F.3d at 1394 (using state action immunity to describe the defendant’s claim of immunity from antitrust claims as a state actor). “State action immunity” has become a term-of-art with respect to antitrust claims, referring to the principle that state actors are immune from antitrust claims. See id. Although state action immunity as used herein refers specifically to immunity from antitrust claims, it is not to be confused with the state action doctrine.See infra notes 13–113 and accompanying text. In a simplified sense, the state action doctrine describes the principle that the Fourteenth Amendment of the U.S. Constitution applies to states, not private entities, however the Fourteenth Amendment may apply to aprivate actor when such actor acts on behalf of the state through sufficient entanglement or by providing a “public function” to such an extent that the private actor may be fairly deemed as acting as the State. See U.S. CONST. amend. XIV, § 2; Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961) (finding state action where a coffee shop located in a building operated by public funds violated the Fourteenth Amendment); Marsh v. Alabama, 326 U.S. 501, 506 (1946) (finding state action because a privately owned town served a public function). For an extensive review of the state action doctrine, see G. SidneyBuchanan, AConceptualHistory of the State Action Doctrine: The Search for Governmental Responsibility, 34 OHUS. L. REV. 333 (1997). 13 See SolarCity Corp., 859 F.3d at 726 (interpreting state action immunity as immunity from liability); S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436, 445 (4th Cir. 2006) (finding that state action immunity provides only immunity from liability); Huron Valley Hos p. Inc., v. City of Pontiac, 792 F.2d 563, 567 (6th. Cir. 1986) (interpreting state action immunity to mean immunity from liabi lity). But see Martin, 86 F.3d at 1396 (finding that state action immunityprovides immunity from suit); Commuter Transp. Sys., Inc., v. Hillsborough Cty. Aviation Auth., 801 F.2d 1286, 1287 (11th Cir. 1986) (finding that state action immunity provides immunity from suit). Immunity from suit completely protects a party from the “burdens of trial” whereas immunity from liability only relieves the party from assuming liability for injuries caused. See SolarCity Corp., 859 F.3d at 726 (stating that immunity from liability in a Sherman Act claim limits the extent to which a party may be found liable tion immunity has since caused a U.S. Circuit split1.4 Section A of this Part introduces state action immunity and the circuit split that has resulted because of the differing interpretations of state action immunity. 15 Section B discusses immunity from suit and the benefits it confers. 16 SectionC discussesimmunity from liability and the difference between it and immunity from suit. 17 Section D addresses the ability to immediately appeal a decision of state action mimunity pursuant to the collateral order doctrine.18 A. Interpreting State Action Immunity: A Circuit Split Although the general concept of state action immunity with respect to the Sherman Act is understood to provide some sort of immunity to a state or even a private actor via the state action doctrine, the specific type of immunity co nferred is the subject of a circuit split.19 The Fifth and Eleventh Circuit courts have interpreted state action immunity to confer immunity from suit. 20 In contrast, the Fourth, Sixth, and now Ninth Circuit courts have defined state action immunity to grant immunity from liability, meaning that although the party claiming immunity must go to trial, the party cannot be liable for any civil damages resulting from the antitrust claim. 21 The primary difference between the types of immunity is that immunity from suit completely protects the party from trial, whereas immunity from liability requires the party to assertmimunity as an affirmative defense and argue the case on the merits. 22 Both types of immunity, however, may be raised as defenses at the outset of a trial and consequently, a judge may issue an interlocutory order affirming or denying immunity.23 The type of immunity asserted directly affects whether or not the under the law); Huron, 792 F.2d at 56 6–67 (stating that immunityfromsuitrelievesthepartyfromthe burdens of trial, but it is not a defense to liability). 14 See supra note 13 and accompanying text. 15 See infra notes 19–25 and accompanying text. 16 See infra notes 26–32 and accompanying text. 17 See infra notes 33–36 and accompanying text. 18 See infra notes 37–50 and accompanying text. 19 See supra notes 11–13 and accompanying text. 20 Seesupra notes 11–13 and accompanying text. Immunityfromsuit andimmunityfromliability are categorical terms used to describe a specific type of immunity. See Immunity to Suit or from Liability, 72 AM. JUR. 2d STATES, ETC. § 103 (2017) (using immunity from suit and immunity from liability as categories to describe sovereign immunity). For example, absolute immunity, qualified immunity, and sovereign immunity are all types of immunity from suit.See infra notes 26–32 and accompanying text. The differences between these immunities stems largely from the party asserting the immunity, which is further discussed in Part I section B. See infra notes 26–32 and accompanying text. 21 See infra notes 62–94 and accompanying text. 22 See infra notes 26–36 and accompanying text. 23 The Federal Rules of Civil Procedure provide that an affirmative defense, such as immunity, may be asserted in a responsive pleading. FED. R. CIV. P. 8(c). The Federal Rules of Civil Procedure also provides that certain defenses may be asserted prior to a responsive pleading, such as Rule interlocutory order is appealable under the collateral order doctrine, and that in turn depends on the circuit in which the case is heard. 24 Consequently, it is important to understand the type of immunity granted by state action immunity in order to determine how a party may proceed at trial.25 B. Immunity from Suit: You Can’t Touch Me Immunity from suit prevents a party from being sued, and it can take the form of absolute immunity, qualified immunity, or sovereign immunity. 26 Im12(b)(6), failure to state a claim upon which relief can be granted, which may reasonably include an assertion of immunity. F ED. R. CIV. P. 12(b)(6). Black’sLawDictionary defines interlocutoryorder as “an order that relates to some intermediate matter in the case; any order other than a final order.” Interlocutory Order, BLACK’S LAW DICTIONARY (10th ed. 2014). As such, a party may seek an interlocutory appeal to settle an intermediate matter relating to a case. See SolarCity Corp., 859 F.3d at 723 (illustrating an appellant seeking an interlocutory appeal to settle the intermediate issue of the type of immunity conferred by state action immunity). 24 See id. at 726 (finding that state action immunity grants immunityfromliabilityand thereforeit cannot be immediately appealed); Board of Dentistry, 455 F.3d at 445 (finding that because state action immunity grants immunity from liability, orders concerning state action immunity may not be immediately appealed); Martin, 86 F.3d at 1396 (finding that state action immunityconfers immunity from suit, so orders concerning state action immunity can be immediately appealedC);ommuter Transp., 801 F.2d at 1287 (finding that state action immunity grants immunity from suit and therefore orders on state action immunity can be immediately appealed); Huron, 792 F.2d at 567 (interpreting state action immunity as an immunity from liability, and therefore orders on state action immunity may not be immediately appealed). The collateral order doctrine was first fully defined in Cohen v. Beneficial Indus. Loan Corp., where the Court described “that small class [of issues] which finally determine claims of right separable, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require appellate consideration be deferred until the whole case is adjudic ated.” 337 U.S. 541, 546 (1948); see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (stating that the collateral order doctrine provides a limited exception to the general rule that issues determined by lower courts are reviewable only after final judgment). Since its first use, the collateral order doctrine has been consistently applied in order to determine whether interlocutory orders of lower courts are immediately reviewable, i.e. ripe for an interlocutory appeal. See SolarCity Corp. , 859 F.3d at 724 (using the collateral order doctrine to determine whether immunity from liability may be immediatelyappealed); CommuterTransp.,801 F.3d at 1289 (applying the collateral order doctrine to determine whether the lower court decision of state action immunity is immediately appealable); Huron, 792 F.3d at 566 (using the collateral order doctrine in reviewing whether the order concerning of state action immunity in thelower court is immed iately appealable); Board of Dentistry, 455 F.3d at 440 (using the collateral order doctrine to explain when an interlocutory order may be immediately appealed); Martin, 86 F.3d at 1396 (applying the collateral order doctrine to determine that because state action immunity confers immunity from suit, a lower court order concerning state action immunity is immediately appealable). 25 See supra note 13. 26 See supra note 20; see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (finding that qual ified immunity grants the same immunity as absolute immunity, that is, immunity from suit). Sovereign immunity comes from the Eleventh Amendment to the United States Constitution, which does not allow a citizen of one state to sue another State, thereby granting each State sovereign immunity i.e. immunity from suit. U.S. CONST. amend. XI; see also Hans v. Louisiana, 134 U.S. 1, 20 (1890) (finding that States also cannot be sued by citizens of that State unless the State consents to suit, expanding sovereign immunity). Although immunity from suit most often takes the form of absolute immunity, qualified immunity, or sovereign immunity, this is not an exhaustive list of the types of munity from suit relieves the party from the “burdens of trial.” 27 Absolute immunity is immunity from suit granted to high-ranking public officers by the Constitution or by courts as a matter of public policy .28 Qualified immunity is reserved for lower-level executive officials, such as governors, as a means to protect such officials in their use of discretionary power. 29 The primary diffe rence between absolute immunity and qualified immunity is that absolute immunity is assumed, whereas qualified immunity requires proof that the actor did not intend to violate a law and the actor acted reasonably under the circumstances.30 Similarly, sovereign immunity granted to the United States through the Eleventh Amendment generally provides states with immunity from suit. 31 Courts reason that immunity from suit is important not only to curb any potential disruption of the government, but also to protect the general public by pr eventing needless waste of public resources.32 immunity from suit. See Abney v. United States, 431 U.S. 651, 660 –61 (1977) (stating that the Fifth Amendment Double Jeopardy Clause guarantees that an individual willnotbetriedtwiceforthesame crime, effectively granting immunity from suit); see also Mitchell, 472 U.S. at 525 (finding that the Double Jeopardy Clause provides immunity from suit to the extent that an individual cannot betrieda second time for the same crime). 27 See supra note 13. 28 See Nixon v. Fitzgerald, 457 U.S. 731, 744 (1982) (recognizing that immunity from suiits important as a matter of public policy to executive officials who may hesitate to exercise discretion without immunity from suit); Spalding v. Vilas, 161 U.S. 483, 498 ( 1896) (statingthatimmunityfrom suit provides an important public function by allowing executive officials to make discretionarydecisions without fear of negative consequences). High- ranking officials who typically receive absolute immunity include the President of the United States and other executive officials. SeeNixon,457 U.S. at 744. In Nixon, the court noted that a president’s absolute immunity largely stems from the separ ation of powers that exists in the Constitution of the United States. See 457 U.S. at 752. Compare U.S. CONST. art. I ( vesting specific powers to the legislative branch of federal government ), with id. art. II (granting specific and separate powers to the executive branch of the federal government ), andid.art. III (granting distinct powers to the judicial branch of the federal government). 29 See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (finding that qualified immunity rather than absolute immunity is granted to executive officials suchas governors, whorequireless prote ction than those who face more complex problems such as the President of the United States). 30 See id. at 815 (asserting that evidence must establish that the actor did not have a subjective intent to violate a law in order to assert qualified immunity). But see Nixon, 457 U.S. at 744 –45 (implying that absolute immunity is automatically conferred to certain officials such as the President of the United States as a matter of public policy). Absolute immunity is assumed because of the highlevel position of the actor. See id. (finding that the president may automatically invoke absolute i mmunity). 31 See supra note 26. 32 See Harlow, 457 U.S. at 814 (stating immunity from suit helps reduce the social costs of burdening government and public expenditure for a costly litigation);Commuter Transp., 801 F.2d at 1289 (finding that immunity from suit prevents the waste of public time and money). The Supreme Court, however, has noted that avoidance of trial alone is not the reason for granting immunity from suit, rather immunity from suit is granted to avoid trial s that would cause a substantial impact on the public and greatly jeopardize the public interest. See Will v. Hallock, 546 U.S. 345, 346 (2006) (sta ting that avoidance of trial alone is not sufficient justification for granting immunity from suit). C. Immunity from Liability: You Still Can’t Touch Me In contrast, immunity from liability is most often created by statute and imposes limitations on liability, such as relieving a party from paying dama ges.33 Most importantly, immunity from liability will not stop the proceedings of a trial.34 Rather, although a party may not be liable for civil damages, the party must still go to trial on the merits and subsequently assert immunity as an affirmative defense. 35 Because immunity from liability and immunity from suit confer different protections, the ability to appeal an interlocutory order on i mmunity differs based on the requirements of the collateral order doctrine.36 D. State Action Immunity and the Collateral Order Doctrine Generally, interlocutory orders are not appealable until a final judgment on the merits of a case has been entered. 37 United States appellate courts, how33 See Nunag-Tanedo v. E. Baton Rouge Parish Sch. Bd., 711 F.3d 1136, 1140 (9th Cir. 2013) (stating that immunity from liability is not immunity from trial). Immunity from liability is often cr eated bystatute, for example Hawaii’s “Good Samaritan” statute,whichcreatesastatutoryexceptionto liability. HAW. REV. STAT. § 663-1.5 (2009). As an illustration of immunity from liability, the Good Samaritan statute provides protection from civil damages to individuals who provide emergencycare in good faith to a person in need of such aid in the event the individual giving aid makes a mistake causing injury to the person in need. Id. Although the individual rendering aid will have to stand trial, the statute provides immunity from liability, allowing the defendant to assert immunityas anaffirm ative defense and thus be immune from civil damages. Id. 34 See Nunag-Tanedo, 711 F.3d at 1140 (finding that immunity from liability does not stop a trial). Although immunity from liability does not stop trial proceedings, immunityfromliabilityis still a powerful defense that can grant significant protection by relieving the party of any civil damages that may result from the trial. See Mitchell, 472 U.S. at 517 (stating that qualifiedimmunityprevents a partyfrom paying civil damages); Harlow, 457 U.S. at 818 (finding that qualifiedimmunityprotects a party from paying civil damages). 35 See Nunag-Tanedo, 711 F.3d at 1140 (finding that although immunity from liability does not stop a trial, it may protect a party from liability). An assertion of immunity such as state action immunity is usually accompanied by a motion to dismiss under the Federal Rules of Civil Procedure 12(b)(6), which if granted would end the trial. See FED. R. CIV. P. 12(b)(6); SolarCity, 859 F.3d at 726 (stating that an assertion of state action immunity as a means to dismiss a caseis nodifferent from other 12(b)(6) motions to dismiss). Thus an assertion of immunity from liability can quickly end a trial if the court rules in favor of the motion to dismiss. See SolarCity, 859 F.3d at 726 (stating that if the court cannot reasonably find liability, then a motion to dismiss based on immunity should be granted). Although the benefits of immunity from suit and immunity from liability thus seem very similar, the Supreme Court has stated the crucial difference is immunity from suit is a right not to be tried, whereas immunity from liability is a right that allows charges to be dismissed. See UnitedStates v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 269 (1982) (finding that the right conferred by i mmunity from suit is expressly distinct from the right conferred by immunity from liability). 36 See infra notes 43–47 and accompanying text. 37 See 28 U.S.C. § 1291 (stating that appellate courts have jurisdiction over final decisions made by district courts). Interlocutory orders are reviewable on appeal from district courts in accordance with standard appeal practice as defined by 28 U.S.C. § 1291. See id. (stating that final decisions of district courts are appealable); BLACK’S LAW DICTIONARY, supra note 23 (defining interlocutory order). ever, have jurisdiction to hear interlocutory appeals under the collateral order doctrine, which stems from 28 U.S.C. § 1291 and 28 U.S.C. § 1292. 38 In order to immediately appeal, the collateral order doctrine requires that an interlocutory (1) be conclusive, (2) address a question that is separate from the merits of the underlying case, and (3) raise an issue of particular value that evades effe ctive review if not considered immediately. 39 Given the rigor of the test, it is no surprise that only a limited number of questions are appealable under the doctrine.40 Moreover in recent years, the Supreme Court has interpreted the colla teral order doctrine very narrowly, finding that an immediate appeal is appr opriate only when rights would be “irretrievably lost” without such an appeal. 41 Thus, only a small number of interlocutory orders are immediately appealable prior to a final judgment on the merits.42 Courts have held that immunity from suit is immediately appealable, but immunity from liability is n ot.43 The collateral order doctrine allows an imm ediate appeal of immunity from suit because a district court order granting immunity from suit conclusively determines the case outcome, presents a question separate from the merits of the case, and cannot be effectively reviewed following a final judgment of the case. 44 Immunity from suit cannot be prope r38 28 U.S.C. §§ 1291–1292. 28 U.S.C. § 1291 grants appellate courts jurisdiction to hea r appeals from lower courts. 28 U.S.C. § 1292 grants courts of appeals jurisdiction to hear appeals of interlocutory orders made by district courts. 39 See supra note 24. 40 See supra note 38. 41 See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985) (finding that the collateral order doctrine allows for an immediate appeal only when rights would be denied without an immediate appeal); Risjord, 449 U.S. at 374 (stating that there is a limited class of claims which may be i mmediately appealed under the collateral order doctrine). See generally AdamN. Steinman, Reinventing Appellate Jurisdiction, 48 B.C. L. R EV. 1237 (2007) (providing an extensive overview of the collateral order doctrine including the statutory history of the doctrine as well as its limits and implications for interlocutory orders). 42 See supra note 38 and accompanying text. 43 See Commuter Transp. , 801 F.3d at 1289 (finding that immunity from suit is immediat ely appealable pursuant to the collateral order doctrine); Martin, 86 F.3d at 1395 (finding that an interloc utory order denying qualified immunity, which confers immunity from suit, is immediately appealable under the collateral order doctrine); see also SolarCity Corp., 859 F.3d at 724 (stating that immunity from liability is not immediately appealable ). But see Board of Dentistry , 455 F.3d at 444 (implying that immunity from liability cannot be immediately appealedpursuanttothe collateralorderdoctrin e); Huron, 792 F.2d at 567 (finding that immunity from liability is not immediately appealable under the collateral order doctrine, unlike immunity from suit). Although both immunityfromsuit and immun ity from liability will ultimately render a party not liable for any civil damages, immunity from suit provides an additional advantage because the party need not shoulder the burdens of trial. See Huron, 792 F.2d at 566–67 (recognizing that immunity from suit relieves a party from the burdens of trial, which affords a stronger protection than immunity from liability); SolarCity Corp., 859 F.3d at 728 (stating that one reason for granting immunity from suit is to protect a party from the burdens of trial) . 44 See Mitchell, 472 U.S. at 512 (reasoning that interlocutory orders of immunity from suit are immediately appealable because immunity from suit is conclusive in a trial); Board of Dentistry, 455 F.3d at 440 (stating that orders of immunity from suit must be immediately appealable in order to conserve the right afforded); see also SolarCity Corp., 859 F.3d at 724; Huron, 792 F.3d at 566. ly reviewed following final judgment because the immunity relieves the party from the burdens of trial, so if the party must wait until trial is over to appeal, the party is effectively denied the right conferred.45 In contrast, immunity from liability is not immediately appealable under the collateral order doctrine. 46 A judgment on immunity from liability is conclusive and separate from the merits of the c ase, however the third requirement is not satisfied: immunity from liability is effectively reviewable on appeal from final judgment. 47 Immunity from liability does not prevent a party from going to trial on the merits; it only acts as an affirmative defenes removing liability for the party asserting immunity.48 As such, no rights are denied by waiting to appeal from a final judgment. 49 Because of these differences, inte rlocutory orders on immunity from suit are immediately appealable; however, orders on immunity from liability are not.50 II. CIRCUIT SPLIT AND THE NINTH CIRCUIT’S INTERPRETATION OF STATE ACTION IMMUNITY Given that immunity from suit can be immediately appealed but immun ity from liability cannot, a court’s interpretation of state action immunityas either immunity from suit or liability directly affects the rights of a party.51 As federal courts have faced the question of interpreting state action immunity, a circuit split has developedbetween the Fifth and Eleventh Circuit Court,s which interpreted state action immunity as immunity from suit, and the Fourth, Sixth, and Ninth Circuits, which interpreted it as immunity from liability.52 A. State Action Immunity as Immunity from Suit: The Fifth and Eleventh Circuits In 1986, in Commuter Transport Systems, Inc., v. Hillsborough County Aviation Authority , the United States Court of Appeals for the Eleventh Circuit held that state action immunity is substantially similar to qualified immunity, and therefore grants immunity from suit. 53 The court reasoned that state action immunity is intended to protect officials exercising discretionary power who otherwise might hesitate to exercise that power for fear of litigation.54 For example, in Hillsborough, the Florida legislature created the Aviation Authority for Hillsborough County (the “Authority”), which was permitted to regulate traffic at the county airport. 55 In the interest of reducing traffic, the Authority granted a monopoly for passenger pickup permits to certain limousine comp anies by excluding others5.6 In the suit claiming the Authority violated the Sherman Act, the court concluded that state action immunity must grant immunity from suit.57 The court reasoned that without such a strong protection, the Authority would second -guess its decision to grant a monopoly and hesitate to take action it deemed necessary out of fear of litigation, paralleling the reasoning of qualified immunity.58 Similarly, in Martin v. Memorial Hospital at Gulfport, the United States Court of Appeals for the Fifth Circuit held that state action immunity grants immunity from suit. 59 In so holding, t he Fifth Circuit reasoned that state action immunity allows officials to use discretionary power without fear of litigation, protects officials carrying out governmental duties, and encourages individuals to run for public office by reducing potential liability for their actions.60 The court further implied that state action immunity must confer immunity from suit because the alternative, immunity from liability , will not sufficiently protect officials from the burdens of trial6.1 Consequently, because state action 54 Id. at 1289. 55 Id. at 1288. 56 Id. 57 Id. at 1290. 58 See id. at 1287–88. One of the rationales for granting qualified immunity is that executive off icials such as governors would hesitate to exercise their discretionary decision- making powerbecause of fear of costly litigation as well as the waste of public resources. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). In Commuter Transp., the Eleventh Circuit concluded that because the underlying purpose of qualified immunity is the same as state action immunity, both must confer the same type of immunity, that is absolute immunity. See 801 F.2d at 1289–90. 59 See 86 F.3d 1391, 1396–97 (5th Cir. 1996). In Martin, a state subdivision municipal hospital granted a contract to a specific doctor, allowing that doctor to treat and manage all patients with end stage renal disease. See id. at 1393. Plaintiff sued the hospital, claiming the hospital engaged in ant icompetitive conduct in violation of the Sherman Act. See id. In response, the hospital claimed state action immunity, which was denied by the trial court. See id. The Fifth Circuit reversed in part, finding that the hospital had a right to claim state action immunity to the Sherman Act. Id. at 1400. 60 Id. at 1396. 61 See id. The Fifth Circuit reasoned that the intended purpose of state action immunity is to pr otect officials from the burdens of trial, so state acti on immunity must confer immunity from suit. See id. The Fifth Circuit further relied on the reasoning in Parker v. Brown finding that the Sherman Act was not intended to obstruct or hinder aState’s ability to regulate its economy, and therefore the stronger protection of immunity from suit is the appropriate interpretation of state action immunity. See Parker v. Brown, 317 U.S. 341, 351 (1943) (finding that the Sherman Act does not apply to states); Martin, 86 F.3d at 1395 (stating that because Parker concluded that states are in no way restrained by the Sherman Act, state action immunity must grant immunity from suit). immunity is interpreted to confer immunity from suit, both the Fifth and Ele venth Circuits allow interlocutory appeals on the matter.62 B. State Action Immunity as Immunity from Liability: The Fourth and Sixth Circuits In contrast, the Fourth and Sixth Circuits have interpreted state action immunity to confer immunity from liability. 63 In South Carolina State Board of Dentistry v. FTC. , the Fourth Circuit Court of Appeals concluded that state a ction immunity to the Sherman Act grants immunity from liability, not a “right not to be tried.” 64 The court highlighted three distinct reasons why state action immunity is different from other immunities from suit, namely qualified immunity, absolute immunity, and sovereign immunity6.5 First, municipalities may assert state action immunity, but they may not assert qualified immunity because suits against municipalities do not impactstate officials, one of the major policy reasons behind qual ified immunity. 66 Because municipalities may invoke state action immunity but not qualified immunity, the protection affor ded by each must be distinct. 67 Second, state action immunity provides immunity from all antitrust claims, regardless of the type of rel ief sought. 68 In contrast, qualified immunity does not prevent lawsuits seeking injunctions or other equitable relief.69 Third, state action immunity can be invoked in lawsuits brought by the federal government, yet sovereign immunity cannot. 70 For the foregoing reasons, the Fourth Circuit held that state action immunity is distinct from the various types of immunity from suit, and thus state action immunity can only provide immunity from liability. 71 The Fourth Circuit therefore does not allow interlocutory appeals on state action immunity judgments.72 Similarly, in Huron Valley Hospital, Inc., v. City of Pontiac , the Sixth Ci rcuit Court of Appeals reasoned that state action immunity grants an exemption to liability, rather than an exemption from suit.73 Although the court did not explicitly define state action immunity as immunity from liability, the court implied that state action immunity cannot be used to avoid trial, but it may be used to escape liability.74 Consequently, the Sixth Circuit also does not allow interlocutory appeals on state action immunity.75 C. Tipping the Scale: The Ninth Circuit Joins the Fourth and Sixth Circuits Following the reasoning of the Fourth and Sixth Circuits, the Ninth Ci rcuit concluded that state action immunity confers immunity f rom liability. 76 In 2015, SolarCity Corporation filed suit in the United States District Court for the District of Arizona against Salt River Project Agricultural Improvement and Power District (“SRP”) alleging that SRP used monopolistic tactics in vi olation of the Sherman Act. 77 SolarCity, the U nited States’ largest seller and i nstaller of solar panels, claimed that SRP, a public water and power utility organization, intentionally charged consumers who installed solar panelsn-i creased rates in order to discourage the installation of solar pane7l8s.SRP moved to dismiss, claiming SRP is absolutely immune from antitrust suits in accordance with state action immunity. 79 The district court denied SRP’s m otion to dismiss, stating that whether SRP qualifie d for state action immunity is a factual matter and thus not appropriate for a 12(b)(6) motion. 80 SRPappealed to the Ninth Circuit and argued that if SRP is in fact immune from suit because of state action immunity , the district court’s decision is not effectively revie wable after a final decision on the merits of the case, and therefore the interloc utory appeal is appropriate. 81 The Ninth Circuit rejected SRP’s argument hol ding that state action immunity grants immunity from liability. 82 Concluding that state action immunity confers immunity from liability, the Ninth Circuit focused primarily on the Supreme Court’s decision in Parker.83 In Parker, the Supreme Court asserted that the Sherman Act was not i ntended to place any limit on a State’s ability to control its economy, but Congress could impose such a limit. 84 Because Congress can restrict a State’s ability to regulate antitrust matters, States must also be subject to lawsuits if a r estriction is violated, and therefore state action immunity can only grant immunity from liability.85 Following the decision that state action immunity grants immunity from liability, the Ninth Circuit concluded that the collateral order doctrine did not apply, and thus the Ninth Circuit did not have jurisdiction to hear the appeal.86 The Ninth Circuit also expressly distinguished state action immunity from qualified immunity, absolute immunity, and sovereign immunity, further su pporting its interpretation as immunity from liability. 87 While qualified immunity is granted to government officials in part to reduce potential distraction of public officers and decrease the amount of wasted public resources, a government official must also show that they acted reasonably under the circumstances in order to properly assert qualified immunity .88 Consequently, SRP’s contention that denying immediate appellate review of state action immunity will waste resources by dragging out litigation was not sufficient to equate state action immunity to qualified immunity.89 The Ninth Circuit thus found that state action immunity is distinct from qualified immunity.90 Additionally, the Ninth Circuit expressly declined to adopt the arguments of the Fifth and Eleventh Circuits, holding that state action immunity confers immunity from sui t.91 Rather, the Ninth Circuit cited the Supreme Court’s na rrowing interpretation of the collateral order doctrine to support its conclusion that state action immunity grants immunity from liability. 92 Because the collateral order doctrine has been interpret ed so narrowly, the Ninth Circuit reasoned that any given claim will most probably not be immediately appealable under 87 See id. at 729 (analyzing the differences between state action immunity and types of immunity from suit). In its analysis, the court compares and contrasts state action immunity to the various types of immunity form suit in order to draw inferences as to whether stateaction immunityconfers immu nity form suit or immunity from liability. See id. at 728–30 (identifying the differences between state action immunity from absolute immunity, qualified immunity, and sovereign immunity). The court ultimately concluded that there are numerous differences between state action immunity and the types of immunity from suit, thus reasoning that state action immunity must grant immunity from liability. See id. 88 See id., 859 F.3d at 728 (asserting that government distraction and inconvenience alone does not invoke the collateral order doctrine, and thus it cannot be the sole grounds for an interlocutory appeal); supra note 33 and accompanying text. The court reasons that if qualified immunity were granted solely as a means for a government official to get out of a trial, then § 1291 reserving appeals to issues of final decisions would be rendered useless as government officials would always beable to immediately appeal any issue in which they are involved. See 28 U.S.C. § 1291 (2012); Will v. Hallock,546 U .S. 345, 346 (2006) (finding that § 1291 would be rendered obsolete in any case involving a government official if qualified immunity allowed immediate appeal solely for the reason of avoi ding trial); SolarCity Corp., 859 F.3d at 728 (echoing the reasoning that qualified immunity allows an immediate appeal for reasons beyond simply avoiding trial). 89 See supra note 88. 90 See SolarCity Corp. , 859 F. 3d at 728 (stating that an assertion of qualified immunityrequires a showing that the official asserting immunity acted reasonably under the circumstances, not just that the trial distracts the government). 91 See id. at 730. 92 See id. The Supreme Court has consistently concluded that the collateral order doctrine provides a narrow exception to appealing issues because a broad interpretation would result in multiple appeals and would do away with the force of § 1291. See 28 U.S.C. § 1291; Mohawk Indus. v. Carpenter, 558 U.S. 100, 106 (2009) (stating that the collateral order doctrine must reflect the values of the final-judgment rule in limiting the ability to appeal issues prior to final judgment); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981) (emphasizing that the collateral order doctrine is only available for a limited class of claims); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1948) (finding that the collateral order doctrine only applies to a smallclass of claims, which must be immediately appealed in order to be effectively reviewed). the collateral order doctrine. 93 Therefore, interpreting state action immunity as immunity from liability was consistent with the narrow s cope of the collateral order doctrine.94 III. ANALYSIS AND CONSEQUENCES OF SOLARCITY CORP. Given the current law surrounding state action immunity and the colla teral order doctrine, the Ninth Circuit was correct in concluding that state action immunity grants immunity from liability, joining the Fourth and Sixth Cr-i cuits.95 Although the Sherman Act does provide for state action immunity to antitrust claims, it is clear that Congress could institute regulations blocking a State’s decision to regulate its economy.96 Because Congress can impose limits on states in this manner, it follows that states can never be absolutely immune from antitrust claims, whether a current statute such as the Sherman Act exists 93 See SolarCity Corp. , 859 F.3d at 730 (implying that the Supreme Court’s consistently narrow interpretation of the collateral order doctrine bolsters a finding that state action immunity grants i mmunity from liability and therefore is not immediately appealable). 94 See id. 95 See SolarCity Corp., v. Salt River Project Agric. Improvement & Power Dist., 859 F.3d 720, 730 (9th Cir. 2017) (holding that state action immunity confers immunity from liabilityand cannot be immediately appealed pursuant to the collateral order doctrine); see also S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436, 445 (4th Cir. 2006) (reasoning that state action immunityprovides immunityfrom liability); Huron Valley Hosp. Inc., v. City of Pontiac, 792 F.2d 563, 567 (6th. Cir. 1986) (finding that state action immunity confers immunity from liability, not immunity from suit). 96 See The Sherman Antitrust Act, 15 U.S.C. § 1 (2012) (creating state action immunity by not implicating states in the law); FTC v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 224 (2013) (clarifying that the Sherman Act does not apply to state regulatory actions where the action is clearly made on behalf of the state); Parker v. Brown, 317 U.S. 341, 351 (1943) (interpreting the Sherman Act to apply to states exercising its regulatory powers given the history and text of the statute, expressly recognizing state action immunity); 21 C ONG. REC. 2562 (1890) (explaining that the purpose of the Sherman Act is to prohibit businesses and corporations from engaging in anticompetitive contracts and unfair competition). Congress may regulate a state’s economy by exercising its commerce power, granted by Article I, § 8 of the U.S. Constitution. See U.S. CONST. art. I, § 8, cl. 3. Whereas the Commerce Clause only grants power to regulate interstate and foreign commerce, it is reasonable to conclude that a state- created monopoly would fall under this prescription because of the relatively broad interpretation of interstate commerce. See McLain v. Real Estate Bd., Inc., 444 U.S. 232, 246 (1980) (finding that a claim against a private corporation based upon the Sherman Act need onlyshow that the alleged violation affects interstate commer ce); Parker, 317 U.S. at 350 (concluding, but not deciding, that the federal government could regulate a state monopoly under the commerce clause); John J. Dvorske et al.,State Regulation of Intrastate Commerce, 12B TEX. JUR. 3d CONST. LAW, § 116 (2017) (stating that Congress may pass regulations restricting intrastate commerce where the regulation is necessary to protect interstate commerce); see also CHARLES R. GEISST, MONOPOLIES IN AMERICA: EMPIRE BUILDERS AND THEIR ENEMIES FROM JAY GOULD TO BILL GATES 44 (2000)(i mplying that monopolies affect interstate commerce by making it difficult for any competitor to enter a market controlled by a monopoly); M.A. UTTON, MARKET DOMINANCE AND ANTITRUST POLICY 9 (2d ed. 2003) (finding that monopolies necessarily lockout external competitors). or not.97 Thus, any immunity afforded by a statute with respect to antitrust claims can only plausibly provide immunity from liability. 98 Moreover, the Fourth and Ninth Circuits are persuasive in identifying the differences between state action immunity and immunities from suit. 99 For example, municipalities may assert state action immunity but may not claim qualified immunity. 100 Other differences include that fact that state action i mmunity provides immunity from all antitrust claims and not just claims seeking equitable relief, and state action immunity may be invoked in lawsuits brought by the federal government.101 The identified distinctions illustrate important differences between types of immunity from suit and state action immunity, suggesting that state action immunity is separate and distinct from immunity from suit.102 Following the interpretation of state action immunity as immunity from liability, the collateral order doctrine should not apply to interlocutory orders on state action immunity. 103 The collateral order doctrine only grants jurisdi ction for immediate appeals when the interlocutory order is conclusive, the o rder addresses a question that is separate from the merits of the underlying case, and the order evades effective review if not considered immediately1.04 Im2018] munity from liability can be effectively reviewed following final judgment on the merits and as such, no rights are denied if not reviewed immediately1.05 The collateral order doctrine thus does not grant an appellate court jurisdiction over an interlocutory order concerning state action immunity as was decided by the Fourth, Sixth, and Ninth Circuits.106 As a consequence of the Ninth Circuit’s interpretation of state action i mmunity as immunity from liability, there is a shift in the circuit split with three circuits holding that state action immunity grants immunity from liability and two circuits holding that it grants immunity from suit. 107 Because ofthe circuit split, there is currently unequal treatment under the law with respect to state action immunity. 108 Although a state actor invoking stat e action immunity will ultimately not be liable for civil damages, immunity from suit granted in the 105 See supra note 13. 106 See SolarCity Corp., 859 F.3d at 730 (finding that stat e action immunity cannot beimmediat ely appealed under collateral order doctrine);Board of Dentistry, 455 F.3d at 447 (finding that the appellate court does not have jurisdiction to hear an immediate appeal concerning state actionmi munity in accordance with the collateral order doctrine);Huron, 792 F.2d at 568 (finding that the appellate court did not have jurisdiction to hear an immediate appeal concerning state action immun ity). 107 See SolarCity Corp., 859 F.3d at 726 (interpreting state action immunity as immunity from liability); Board of Dentistry, 455 F.3d at 445 (finding that state action immunity provides only immunity from liability); Huron, 792 F.2d at 567 (interpreting state action immunity to mean immunity from liability). But see Martin v. Me m’l Hosp., 86 F.3d 1391, 1396 (5th Cir. 1996) (finding that state action immunity provides immunity from suit); Commuter Transp. Sys., Inc., v. Hillsborough Cty. Aviation Auth., 801 F.2d 1286, 1287 (11th Cir. 1986) (finding that state action immunity provdies immunity from suit). 108 See SolarCity Corp. , 859 F.3d at 726 (finding that state action immunity may not be immediately appealed under the collateral order doctrine); Board of Dentistry, 455 F.3d at 445 (concluding that state action immunity cannot be appealed prior to final judgment); Huron, 792 F.2d at 567 (finding that orders denying state action immunity do not meet the requirements of the collateral order doctrine). But see Martin, 86 F.3d at 1397 (finding that state action immunity orders satisfy the requirements of the collateral order doctrine); Commuter Transp., 801 F.2d at 1287 (finding that orders denying state action immunity can be immediately appealed prior to final judgment). The direct consequence of the circuit split is that the benefits afforded to actors asserting state action immunity are different, granting either immunity from liability or immunity from suit. See supra note 13 and accompanying text. The impact of this difference not only affects the type of immunity conferred, but also whether the party may file an interlocutory appeal.See supra notes 41–49 and accompanying text. Note also that the Ninth Circuit in SolarCity Corp. noted in footnote six that the Tenth Circuit and Seventh Circuit have cited the opinions of the Fifth and Eleventh Circuit, but neither circuit has affirmatively ruled on the state action immunity issue, leaving open the possibility of a further Circuit split. See SolarCity Corp., 859 F.3d at 729 n.6 (citing Tenth and Seventh Circuit cases that allude to the question of appealing a state action immunity order) ; Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, 703 F.3d 1147, 1151 (10th Cir. 2013) (acknowledging the circuit split concerning state action immunity, but not reaching a conclusion on the issueas it was found to be outside the scope of the case before the court); Segni v. Commercial Office of Spain, 816 F.2d 344, 346 (1987) (citing the Fifth Circuit decision in Commuter Transp. but not addressing the question of state action immunity as it is outside the scope of the case before the court); Commuter Transp., 801 F.2d at 1287. Fifth and Eleventh Circuits provides a significantly stronger protection than immunity from liability granted by the Fourth, Sixth, and Ninth Circuits.109 The presence of the Circuit split particularly impacts state actors seeking to enforce regulations over State economies because the jurisdiction in which the state actor operates will determine whetherfederal law grants the actor immunity from suit or immunity from liability.110 State actors are thus being treated differently under federal law solely on the basis of the appellate Circuit in which the state actor operates.111 This is particularly worrisome as many States are beginning to restrict certain services as technology advances, such as restricting Uber’s ability to pick -up passengers at an airport, thereby granting a de facto monopoly to taxi cabs.112 Given the Ninth Circuit’s decision joining the Fourth and Sixth Circuits and the persuasive reasoning provided therein, other jurisdictions should follow the Ninth Circuit and hold that state action immunity confers immunity from liability and thus is not subject to an interlocutory appeal.113 CONCLUSION State action immunity to antitrust claims is an important protection for state actors, granting states the freedom to regulate state economies. Although state actors are provided immunity from antitrust claims, the immunity conferred is currently the subject of a circuit split, creating unequal protection under federal law. The Fifth and Eleventh Circuits have interpreted state action immunity to grant immunity from suit, relieving the state actor from the bu rdens of trial as well as allowing an immediate appeal of a district court decision of immunity under the collateral order doctrine. In contrast, the Fourth, Sixth, and Ninth Circuits have interpreted state action immunity to grant immunity from liability by highlighting the numerous differences between state action immunity and types of immunities from suit. Given these differences, state action immunity can only plausibly confer immunity from liability. Con109 See supra note 32 and accompanying text. 110 See supra note 13 and accompanying text. 111 See supra note 107. This issue is particularly important for states seeking to exercise their authority to regulate their state economy. See THE FEDERALIST NO. 45 (James Madison) (noting that under the Constitution, state governments are meant to have the power to regulateordinaryaffairsand internal state matters). If state actors, especially in the circuits that have yet to weigh in on the issue, do not know whether they will be granted immunity from suit or immunity from liability, the state actors may be more likely to hesitate in exercising their power to regulate their economy. See supra notes 13, 107. 112 See Kerry Close, Why You Can’t Take an Uber Home from the Airport , TIME, Feb. 1, 2018, http://time.com/money/4396248/uber-lyft-ban-airport/[ http://perma.cc/9A35-8N8A]. Moreover, as States seek to enforce such regulations, State actors will not know how a litigationalleginga Sherman Act violation will proceed unless the State is in a jurisdiction that has weighed in on the Circuit Split. See supra notes 85–95 and accompanying text. 113 See SolarCity Corp., 859 F.3d at 726; supra notes 85–95 and accompanying text. sequently, state action immunity does not fall within the purview of the colla teral order doctrine meaning that interlocutory orders on state action immunity cannot be appealed until after final judgment. Until the Supreme Court holds otherwise, other circuits should follow the Ninth Circuit’s persuasive reasoning and conclude that state action immunity confers immunity from liability and thus cannot be immediately appealed under the collateral order doctrine. 62 See supra note 38 and accompanying text. 63 See 455 F.3d 436 , 445 ( 4th Cir . 2006 ) (finding that stateaction immunity grants immunityfrom liability); Huron Valley Hosp . Inc., v. City of Pontiac , 792 F.2d 563 , 566 (6th. C ir. 1986 ) (holding that state action immunity grants immunity from liability). 64 Board of Dentistry, 455 F.3d at 445. 65 See id . at 446-47. 66 See Owen v. City of Independence , 445 U.S. 622 , 638 ( 1980 ) (finding that muni cipalities may not assert qualified immunity). Municipalities, commonly referred to as cities or towns, are local a dministrative units of a State, whose powers are granted by a State and consequently are subordinateto the State. Municipality, BLACK'S LAW DICTIONARY (10th ed. 2014 ). Because a lawsuit against a municipality is not a lawsuit a gainst the State, State- level officials are not involved in the suit nor is a State itself a party to the suit . See Owen , 445 U.S. at 638; see also Harlow, 457 U.S. at 814 ( reasoning that qualified immunity, and consequently immunity from suit, protects States andstateofficials from the burdens of trial ); Board of Dentistry, 455 F.3d at 446. 67 See Board of Dentistry, 455 F.3d at 445. 68 See id. 69 Id.; see also Am. Fire, Theft & Collision Managers , Inc., v. Gillespie , 932 F.2d 816 , 818 ( 9th Cir . 1991 ) (stating that qualified immunity does not prevent suits seeking declaratory or equitable relief); Rowley v . McMillan , 502 F.2d 1326 , 1331 ( 4th Cir . 1974 ) (finding that the doctrine of sovereign immunity does not prevent suits for declaratory or injunctive relief). 70 See United States v . Mississ ippi , 380 U.S. 128 , 140 - 41 ( findingno constitutional limit preven ting the federal government from suing a state, particularly because doing so would diminish thepo wer of the courts to protect citizens against abusive and discriminatory state actions). The fact that a State may assert state action immunity in a lawsuit brought by the federal g overnment provides reason 79 See FED. R. CIV . P. 12 ( b)(6). 80 See FED. R. CIV . P. 12 ( b)(6); SolarCity Corp. , NO. CV-25-00374-PHX-DLR , 2015 WL 6503429 at *13. A 12(b)(6) motion seeks to dismiss a case for failure to state a claim . F ED. R. C IV. P. 12 ( b)(6). In order to survive the motion, the opposing party, usually plaintiff, must show that their pleading identifies a legal theory upon which a court can grant relief. See Motion for Dismissal for Failure to State a Claim, Generally, 27A FED . PROC., L. ED. § 62 : 455 ( 2017 ). 81 See SolarCity Corp., 859 F.3d at 724. Immunity from suit is not effectively reviewable after a final decision because the party seeking immunity would have to shoulder the burdens of trial, thus denying the right conferred by immunity from suit . See supra note 24 and accompanying text. 82 See SolarCity Corp., 859 F.3d at 730. 83 See Parker , 317 U.S. at 350-51 ( finding that the Sherman Act does not restrict state legislatures, but Congress may pass legislation that does restrict state legislatures);SolarCity Corp ., 859 F. 3d at 726 (relying on Parker to reason that the Sherman Act does not grant immunity from suit because Congress may restrict a state legislature thus preserving the possibility of a lawsuit). 84 See supra note 12 and accompanying text. 85 See Parker , 317 U.S. at 350 ( stating that the Congress could impose antitrust regulations on a State). If Congress could not impose restrictions on a state, then the Ninth Circuit plausibly would have concluded that state action immunity grants immunity from suit . See SolarCity Corp. , 859 F.3d at 726 . Because Congress in theory can impose antitrust regulations on States, States cannot be co mpletely immune to antitrust claims as compared to sover eign immunity, whichdoesprovideimmunity from suit . See U.S. CONST. amend. XI; SolarCity Corp., 859 F.3d at 726 . The idea that there is a pr eserved right to sue suggests that if Congress decided to enact legislation holding states liable for ant itrust violations, such legislation would overrule the state action immunity exception . See Parker ,317 U.S. at 351 ( noting that Congress may impose limits on states in accordance with Constitution) . 86 SolarCity Corp ., 859 F.3d at 726; see supra note 64. 97 See supra note 96 and accompanying text. 98 See supra notes 95-96 and accompanying text. 99 See Board of Dentistry , 455 F. 3d at 445 (finding that state action immunity provides immunity from liability); Huron, 792 F.2d at 567 (concluding that state action immunityconfers immunityfrom liability, not immunity from suit). 100 See Owen v. City of Independence , 445 U.S. 622 , 638 ( 1980 ) (finding that municipalities may not assert qualified immunity) . Recall that qualified immunityconfers immunityfromsuit,thereforeif state action immunity can be invoked but qualified immunity cannot, then that suggests a significant difference between the two types of immunity . See supra notes 27-33 and accompanying text. 101 See Am. Fire , Theft & Collision Managers , Inc., v. Gillespie , 932 F.2d 816 , 818 ( 9th Cir . 1991 ) (finding that qualified immunity does not provide immunity in suits seeking declaratory or equitable relief); Rowley v . McMillan , 502 F.2d 1326 , 1331 ( 4th Cir . 1974 ) (finding that the doctrine of sovereign immunity does not prevent suits for declaratory or injunctive relief) . Recall that both qualified immunity and sovereign immunity grant immunity from suit . See supra notes 27-33 and accompanying text. 102 See SolarCity Corp. , 859 F. 3d at 729 (identifying differences between state action immunity and types of immunities from suit); Board of Dentistry, 455 F.3d at 446 -47 (reasoning that state action immunity does not confer immunity from suit because of the numerous differences betweenstate action immunity and types of immunity from suit). If state action immunity does not provide immun ity from suit, then it must provide immunity from liability . Seesupra notes 66-69 , 88 andaccompanying text. 103 SeeSolarCity Corp . , 859 F. 3d at 730 (finding that state actionimmunitycannot beimmediat ely appealed); DC Comics v . Pac. Pictures Corp., 706 F.3d 1009 , 1015 ( 9th Cir . 2013 ) (stating that immunity from liability is different in kind from immunity from suit, nad consequently immunity from liability is not subject to the collateral order doctrine); Board of Dentistry, 455F.3dat447(fin ding that the collateral order doctrine cannot be applied to state action immunity); Huron, 792 F.2d at 568 (reasoning that because state action immunity confers immunity from liability, it cannot be immediately appealed under the collateral order doctrine). 104 See supra note 13 . Preferred cite: Hunter Malasky, Comment, You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision inSolarcity Corp . v. Salt River Project , 59B. C. L. REV . E. SUPP. 149 ( 2018 ), http://lawdigitalcommons.bc.edu/bclr/vol59/ iss6/149.


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Hunter Malasky. You Might Just Have to Wait: Interpreting State Action Immunity and the Ability to Appeal Following the Ninth Circuit's Decision in SolarCity Corp. v. Salt River Project, Boston College Law Review, 2018,