917 F.3d 389
5th Cir.2019Background
- The Louisiana Real Estate Appraisers Board (Board) adopted Rule 31101 requiring appraisal management companies to compensate fee appraisers at rates deemed "customary and reasonable," aligning with Dodd–Frank and Louisiana law.
- The FTC filed an administrative complaint alleging the Rule unlawfully restrained price competition by displacing market-rate negotiation; the Board asserted state-action (antitrust) immunity as a defense.
- After the FTC sued, the Louisiana Governor issued an executive order increasing state oversight; the Board repromulgated a revised Rule 31101 and argued the complaint was moot and that active supervision cured any immunity issues.
- The FTC moved for partial summary decision rejecting the Board’s state-action defenses; the Commission denied the Board’s motion to dismiss and granted the FTC’s partial summary decision, but issued no final cease-and-desist order.
- The Board petitioned the Fifth Circuit for review, arguing the Commission’s interlocutory rulings foreclosed its state-action defense and were immediately appealable under the collateral-order doctrine.
- The Fifth Circuit concluded it lacked jurisdiction and dismissed the petition because the FTCA authorizes appellate review only of Commission cease-and-desist orders, not interlocutory administrative rulings.
Issues
| Issue | Board's Argument | FTC/Commission's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction under the FTCA to review the Commission’s denial of the Board’s motion to dismiss and grant of FTC’s motion for partial summary decision (an interlocutory administrative ruling) | FTCA review should include collateral orders; collateral-order doctrine permits immediate appeal of conclusive, separable, and effectively unreviewable rulings | FTCA text limits review to Commission cease-and-desist orders; no statute authorizes direct appellate review at this stage | No jurisdiction: FTCA permits appeals only from cease-and-desist orders; interlocutory administrative orders are not reviewable here |
| Whether the collateral-order doctrine applies to the FTCA to permit immediate appellate review of administrative rulings | Collateral-order doctrine applies to administrative proceedings generally; other circuits have permitted such review in analogous statutes | Cohen’s practical-construction reasoning cannot override FTCA’s narrower text; collateral-order doctrine does not expand statutorily limited appellate jurisdiction | Collateral-order doctrine does not expand the FTCA’s textually limited grant of jurisdiction; the Fifth Circuit will not apply it to permit review here |
Key Cases Cited
- Texaco, Inc. v. FTC, 301 F.2d 662 (5th Cir.) (FTC appellate jurisdiction arises only from cease-and-desist orders)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (articulating collateral-order doctrine for immediate appeals)
- Will v. Hallock, 546 U.S. 345 (2006) (three-part test for collateral-order review)
- Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (discussing practical construction of final-decision rule)
- Meredith v. Fed. Mine Safety & Health Review Comm’n, 177 F.3d 1042 (D.C. Cir.) (applying collateral-order reasoning to administrative-review statute)
- Rhode Island v. EPA, 378 F.3d 19 (1st Cir. 2004) (First Circuit exercised collateral-order review for administrative decision under a restrictive statutory text)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (federal courts have limited jurisdiction and cannot expand it)
- Martin v. Mem’l Hosp. at Gulfport, 86 F.3d 1391 (5th Cir.) (previous Fifth Circuit decision treating rejection of state-action defense as collateral order)