                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 4, 2013
                                      PUBLISH                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 AURARIA STUDENT HOUSING AT
 THE REGENCY, LLC, a Colorado
 limited liability company,

              Plaintiff - Appellee,
       v.                                                No. 11-1569
 CAMPUS VILLAGE APARTMENTS,                (D.C. No. 1:10-CV-02516-WJM-KLM)
 LLC, a Delaware limited liability                      (D. Colorado)
 company,

           Defendant - Appellant.
 _______________________

 UNITED STATES OF AMERICA;
 FEDERAL TRADE COMMISSION,

              Amici Curiae.


                                      ORDER


Before HARTZ, MURPHY, and HOLMES, Circuit Judges.




I.    Introduction

      Defendant-Appellant Campus Village Apartments, LLC (“Campus

Village”) appeals the denial of its motion to dismiss the complaint of Plaintiff-

Appellee Auraria Student Housing at the Regency, LLC (“Regency”). Regency’s
complaint alleges Campus Village conspired with the University of Colorado,

Denver (the “University”) to monopolize the provision of student housing in

violation of Section 2 of the Sherman Act. See 15 U.S.C. § 2. Regency moved to

dismiss Campus Village’s appeal, arguing this court lacks subject matter

jurisdiction because the district court’s denial of Campus Village’s motion to

dismiss is not a final order under 28 U.S.C. § 1291. Campus Village argues in

response that this court has jurisdiction under the collateral order doctrine set

forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Having

considered the parties’ briefing and argument on this issue, this court grants the

motion to dismiss.

II.   Background

      Regency operates an apartment complex approximately two miles from the

University’s downtown Denver campus. Campus Village is a Delaware limited

liability company which operates an apartment complex (“Campus Village

Apartments”) located approximately one-half mile from the University’s campus.

Pursuant to an agreement between the University and Campus Village, most full-

time students are required to reside in the Campus Village Apartments for their

first two semesters of enrollment. Regency brought suit against Campus Village,

alleging the residency restriction amounted to an illegal conspiracy to monopolize

in violation of Section 2 of the Sherman Act. Campus Village moved to dismiss

under Federal Rule of Civil Procedure 12(b)(6), arguing the agreement creating

                                         -2-
the residency restriction was authorized by a clearly articulated and affirmatively

expressed state policy to displace competition with regulation, and therefore was

not subject to the Sherman Act. See Town of Hallie v. City of Eu Claire, 471 U.S.

34, 38–40 (1985); Parker v. Brown, 317 U.S. 341, 350–51 (1943).

      In Parker, the Supreme Court held the Sherman Act did not reach

anticompetitive activities conducted by a state or its officers or agents. 317 U.S.

at 350–51 (“We find nothing in the language of the Sherman Act or in its history

which suggests that its purpose was to restrain a state or its officers or agents

from activities directed by its legislature.”). The doctrine, later termed “Parker

immunity” or “state action immunity,” is also available to private parties in

certain circumstances. See Town of Hallie, 471 U.S. at 38–40; Cal. Retail Liquor

Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980); Zimomra v.

Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1498–1500 (10th Cir. 1997). This court

recently held that for anticompetitive conduct to be shielded from antitrust

liability by Parker immunity, the conduct must be “at least a foreseeable (if not

explicit) result of state legislation.” Kay Elec. Co-op v. City of Newkirk, 647 F.3d

1039, 1043 (10th Cir. 2011). The district court, applying Kay, concluded the

Colorado legislation Campus Village relied upon did not make the agreement

sufficiently foreseeable for Campus Village to be protected. It therefore denied

the motion to dismiss. This appeal followed.




                                          -3-
III.   Discussion

       This court’s jurisdiction is limited to appeals “from all final decisions of

the district courts of the United States.” 28 U.S.C. § 1291. “[A]n order denying

a motion to dismiss is not a final appealable order if it ensures that litigation will

continue in the District Court.” Yousef v. Reno, 254 F.3d 1214, 1217 (10th Cir.

2001) (quotation omitted). The Supreme Court, however, has identified a “small

class” of interlocutory orders that are subject to immediate review under § 1291.

Cohen, 337 U.S. at 546. Under this collateral order doctrine, for a non-final order

to be immediately appealable, it 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.”

Will v. Hallock, 546 U.S. 345, 349 (2006) (quotations omitted). 1 The Court has

clarified that the third condition is not satisfied merely by demonstrating

interlocutory review is necessary to avoid trial: “Those seeking immediate appeal

. . . naturally argue that any order denying a claim of right to prevail without trial

satisfies the third condition. But this generalization is too easy to be sound and,

if accepted, would leave the final order requirement of § 1291 in tatters.” Id. at

351. Thus, when determining whether an order is “effectively unreviewable”

       1
       The Supreme Court has repeatedly emphasized the “modest scope” of the
doctrine, thus far acknowledging only four types of orders which fall within its
purview: orders rejecting absolute immunity, qualified immunity, Eleventh
Amendment immunity, and double jeopardy claims. Will v. Hallock, 546 U.S.
345, 350 (2006).

                                          -4-
absent interlocutory review, “it is not mere avoidance of a trial, but avoidance of

a trial that would imperil a substantial public interest, that counts.” Id. at 353.

      The circuits are split on the question whether the denial of Parker

immunity is effectively unreviewable on appeal from a final judgment. The

Fourth and Sixth Circuits have held it is not. See S.C. State Bd. of Dentistry v.

FTC, 455 F.3d 436, 444 (4th Cir. 2006); Huron Valley Hosp., Inc. v. City of

Pontiac, 792 F.2d 563, 567 (6th Cir. 1986). The Fifth and Eleventh Circuits have

held that it is. See Martin v. Mem’l Hosp., 86 F.3d 1391, 1397 (5th Cir. 1996);

Commuter Transp. Sys., Inc. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286,

1289–90 (11th Cir. 1986). Those courts holding the denial of Parker immunity is

not immediately appealable have observed that, while denominated an

“immunity,” the doctrine is actually akin to a defense to a cause of action rather

than an entitlement to avoid suit altogether. Huron Valley, 792 F.2d at 567; see

also Kay, 647 F.3d at 1042 (“[T]he term ‘immunity’ may be a bit strong since the

Court held only that Congress hadn’t covered state action, not that it couldn’t.”).

As a result, no rights are irrevocably lost by delaying review until a final

judgment has been entered. Huron Valley, 792 F.2d at 567. Additionally, the

Fourth Circuit has suggested the interests vindicated by Parker immunity do not

fall within the narrow class of interests described in Will for which interlocutory

review is appropriate. S.C. State Bd. of Dentistry, 455 F.3d at 444 (“Simply put,

Parker construed a statute. It did not identify or articulate a constitutional or

                                          -5-
common law ‘right not to be tried.’ Parker, therefore, recognizes a ‘defense’

qualitatively different from the immunities described in Will, which focus on the

harms attendant to litigation itself.”).

      By contrast, the Fifth and Eleventh Circuits have held Parker immunity is

more than a mere defense to liability and its denial is therefore subject to

immediate review. Martin, 86 F.3d at 1395–96; Commuter Transp. Sys., 801 F.2d

at 1289–90. These circuits have concluded Parker immunity protects important

dignitary and public interests which would be lost if a suit proceeded to trial. For

example, in Martin, the Fifth Circuit analogized Parker immunity to Eleventh

Amendment immunity insofar as each is designed “to prevent the indignity of

subjecting a State to the coercive process of judicial tribunals at the instance of

private parties, and to ensure that the States’ dignitary interests can be fully

vindicated.” Martin, 86 F.3d at 1295–96. (quotations, alteration, and citation

omitted). Additionally, the court noted Parker immunity, like qualified

immunity, allows public officials to perform their duties without fear of legal

consequences, including not only liability for money damages but also the

disruptions which are often attendant to civil litigation, such as pretrial discovery.

Id. at 1396; see also Phillip E. Areeda & Herbert Hovenkamp, Fundamentals of

Antitrust Law, § 2.04b, at 2-48 (4th ed. 2011) (“The Parker doctrine is designed

to be an immunity, not merely a defense that can be offered at trial.”)




                                           -6-
      It is unnecessary to weigh in on the circuit split because this appeal

presents a different question: whether the denial of Parker immunity is

immediately appealable by private parties. On this question, the circuit split is

much less pronounced. Even the Fifth Circuit, which otherwise extends

interlocutory review to denials of Parker immunity, does not do so in cases

involving private parties. See Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287,

292 (5th Cir. 2000). Stressing the Supreme Court’s repeated admonitions that the

collateral order doctrine applies only to a narrow class of cases, the court in

Acoustic Systems concluded the justifications for affording immediate review of

the denial of Parker immunity to governmental entities are inapplicable to private

parties. Id. at 291–93. The court also noted that in the context of qualified

immunity, immediate appeal is available to governmental defendants but not

private parties. Id. at 294 (citing authority from the First, Seventh, and Eighth

Circuits); see also Weise v. Casper, 507 F.3d 1260, 1264 (10th Cir. 2007)

(holding court lacked jurisdiction to hear interlocutory appeal of denial of motion

to dismiss based on qualified immunity by defendants who were not public

officials). The Fifth Circuit indicated it was unaware of any decision extending

the collateral order doctrine to appeals by a private party claiming Parker

immunity. Acoustic Sys., 207 F.3d at 291.

      Citing Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609, 611 (11th

Cir. 1995), Campus Village notes at least one other circuit has allowed

                                          -7-
interlocutory review in cases in which a private party asserts Parker immunity.

Praxair, however, is wholly devoid of any persuasive justification for its holding

in this regard. Instead, it summarily cites two Eleventh Circuit cases extending

Parker immunity to governmental entities without addressing whether the

reasoning in those cases also extends to private parties. See 64 F.3d at 611.

Since Acoustic Systems was decided, the Supreme Court has further emphasized

that the collateral order doctrine reaches only a narrow class of cases. Will, 546

U.S. at 350. This court is persuaded by the reasoning in Acoustic Systems and

declines to follow Praxair.

      In Will, the Supreme Court noted that in every case in which it held the

collateral order doctrine justified interlocutory review “some particular value of a

high order was marshaled in support of the interest in avoiding trial.” Id. at 352.

Campus Village asserts just such a “value of a high order” with three illustrations,

none of which are persuasive. First, Campus Village argues the underlying

premise of Regency’s action is offensive to the dignitary interests of the state of

Colorado. In support of this argument Campus Village points to the complaint’s

allegations that it entered into an illegal conspiracy with the University and that

the University’s housing policy has “nothing whatever to do with attempting to

further the educational, mental, physical, or social development” of the

University’s students. Campus Village cites no authority for the proposition that

the mere inclusion of disquieting allegations in a complaint implicates the

                                         -8-
dignitary interests of a sovereign state. To the contrary, the Supreme Court has

indicated a state’s dignitary interests are offended when it is forced to defend its

actions as a defendant in federal court. See Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (“The very object and purpose

of the 11th Amendment were to prevent the indignity of subjecting a State to the

coercive process of judicial tribunals at the instance of private parties.” (quotation

omitted)); see also id. at 146 n.5 (“The Eleventh Amendment is concerned not

only with the States’ ability to withstand suit, but with their privilege not to be

sued.”). Thus, the denial of Parker immunity to a private party is not inherently

offensive to a state’s dignitary interests.

      Second, Campus Village argues the real targets of Regency’s suit are the

University’s housing policy and the Colorado statutes, which it asserts constitute

an affirmative expression of state policy favoring the residency restriction. This

argument, however, presumes the correctness of Campus Village’s position on the

merits of its Parker immunity claim. But when determining whether a particular

claim satisfies the Cohen requirements,

      we do not engage in an individualized jurisdictional inquiry. Rather,
      our focus is on the entire category to which a claim belongs. As long
      as the class of claims, taken as a whole, can be adequately vindicated
      by other means, the chance that the litigation at hand might be
      speeded, or a particular injustice averted, does not provide a basis for
      jurisdiction under § 1291.




                                              -9-
Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605–06 (2009) (quotations,

alteration, and citation omitted). Campus Village’s second argument depends

upon precisely the kind of “individualized jurisdictional inquiry” specifically

deemed inappropriate in Mohawk Industries. It is therefore insufficient to justify

interlocutory review under the Cohen doctrine.

      Finally, Campus Village argues the action brought by Regency will entail

“broad-reaching discovery” of a kind that is “peculiarly disruptive of effective

government.” Martin, 86 F.3d at 1396 (quotations omitted). Supporting this

argument, Campus Village points to Regency’s proposed scheduling order, which

identifies as witnesses sixteen University officials, including the University’s

Chancellor, three of its Vice-Chancellors, and its Provost. Campus Village

suggests the disruption to governmental functions imposed by such discovery is

not diminished simply because the government deponents are not named as

defendants. Cf. Filarsky v. Delia, 132 S. Ct. 1657, 1665–66 (2012) (extending

qualified immunity to private individuals acting on behalf of the government and

describing disruptive effects of suits against private parties performing

governmental functions). This argument, too, is dependent upon the individual

circumstances of the suit and fails to demonstrate that suits against private parties

claiming Parker exemption from antitrust liability under Parker will categorically

be sufficiently disruptive of governmental functions to justify interlocutory




                                         -10-
review. 2 See Mohawk Indus., 130 S. Ct. at 605–06. It does not justify invocation

of the collateral order doctrine for immediate review.

      The Supreme Court has repeatedly cautioned against expansion of the

collateral order doctrine. See United States v. Wampler, 624 F.3d 1330, 1334

(10th Cir. 2010) (“In case after case in year after year, the Supreme Court has

issued increasingly emphatic instructions that the class of cases capable of

satisfying this ‘stringent’ test should be understood as ‘small,’ ‘modest,’ and

‘narrow.’”). Extending the collateral order doctrine to private parties contesting

an order denying Parker immunity does not serve a substantial public interest and

would constitute precisely the type of expansion the doctrine discourages. Will,

546 U.S. at 353.

IV.   Conclusion

      For the foregoing reasons, the order denying Campus Village’s motion to

dismiss is not an appealable final order under 28 U.S.C. § 1291. Campus

Village’s appeal is therefore dismissed.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




      2
       A protective order is a more appropriate, orderly, and efficient means to
mitigate disruptions to non-parties. See Fed. R. Civ. P. 26(c)(1).

                                        -11-
