Split Widened: Parker Antitrust Immunity and Interlocutory Appeals

 Per Auraria Student Housing v. Campus Village Apts., LLC (10th Cir. Jan. 4, 2013)

Per an agreement between UC-Denver and Campus Village, a private apartment complex located a half mile from school, most incoming freshmen are required to live at Campus Villiage.   Auraria, another apartment complex located two miles from the school, alleges that this agreement violated the Sherman Act.

Campus Village appeals the denial  of its motion to dismiss, asserting state action/Parker immunity from the antitrust laws.  Auraria, in turn, moves to dismiss the appeal for want of jurisdiction.

The CA10 notes a split over whether a denial of Parker immunity, like a denial of qualified immunity, is immediately appealable under the Cohen doctrine.  The CA4 and CA6 say no; the CA5 and CA11 (and apparently others, including the CA7) say yes.  (p.3.)

The CA10 claims not to have to resolve this split, because it is dealing with a private party appeal, which even the CA5 would not permit.  Appeal dismissed.  (The CA11 would permit the appeal, however, so at least one split is widened.  (p. 7.))

I dont buy it.  But it likely doesn't matter given the Supreme Court's docket.

I honestly dont know where I come down on the general question of interlocutory appeals by actual public entities/officials (such as municipal governments).  My best guess is that Parker was a statutory interpretation case driven by a 10th/11th Amendment immunity, given the time at which it was decided, and so appeals should be permitted.  This is the logic of the CA5.  On the other hand, post-Garcia v. SAMTA, Parker could be viewed as a statutory interpretation case driven by federalism, not immunity, concerns.  (Leaving aside my views of Garcia, that case would seem to remove any constititional bar to having the Sherman Act apply to the states.)  This is the logic of the CA4 and CA6.

Regardless, once interlocutory appeals are permitted under Parker at all, I see no viable distinction between municipalities and private entities.  If the private entity's claim of Parker immunity is correct, it--like a municipal entity--is, in effect, an agent of the state tasked with carrying out the state policy and clothed authority of the state, i.e., a public official.  The only potential difference between a private entity and a municipal entity is that, for Parker to apply to a private entity, there must be active state supervision.  California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).  But this distinction weighs in favor of, not against, interlocutory appeals.  Cf. Richardson v. McKnight, 521 U.S. 399, 413 (1997) (reserving question of whether qualified immunity would protect private prison guards if there had been active state supervision).

Nonetheless, I am not sure this discussion matters all that much.  First, if a state is actively supervising a private entity, and that private entity is sued, likely the state could appear as amicus to assert its own immunity.  The lack of intervention may give the lie to the claim of state authority.  Second, and more importantly, the Supreme Court recently heard argument in FTC v. Phoebe Putney Health Sys., Inc., and seemed inclined to impose a clear statement rule for state authorization of a private monopoly.