Zimomra v. Alamo Rent-A-Car, Inc.

eral statute of applies limitations along to actions rulings its on Plaintiffs’ first three Act). under the points Administrative Procedures of appeal.

We therefore hold that the district court’s AFFIRMED. dismissal of protection Plaintiffs’ maximum claim under the Administrative Procedures proper

Act was because it failed to challenge agency

a reviewable order.

Plaintiffs’ reliance on Anderson v. U.S.

Department Housing and Develop- Urban ment, (10th Cir.1983), 701 F.2d 112 argue Army’s alternative incinera- ZIMOMRA, David operations

tion Charles on behalf constitute agency “informal of himself similarly and all others action” reviewable under the Administrative situated, Plaintiff-Appellant, Procedures Act misplaced. Although court Anderson characterized a decision v. by the Department Housing Urban RENT-A-CAR, INC.; ALAMO Avis, Inc.; Development action,” agency “informal id. Budget Rent A Corporation; Car Dollar it did not Department’s hold that the Systems, Inc.; Rent-A-Car Corpo- Hertz decision was something therefore other than ration; National System, Car Rental “agency action” as defined the Adminis- Inc.; Thrifty Systems, Inc.; Rent-A-Car trative Act. contrary, Procedures To the Rent-A-Car, Inc.; Value Enterprise accept decision not to a mortgage assignment Leasing Denver; Co. of National Car easily could be construed as a disposi- “final Rental, Rental, named as National Car matter,” tion ... in a thereby qualifying as Inc.; Rent-A-Car, Inc.; Resort Steam- agency an order under the Administrative Springs boat Leasing, Inc.; Rental and Procedures Act. Inc.; Trynd, Inc., Tiara Enterprises, De- fendants-Appellees. Operational

Plaintiffs’ Verification Testing claim under the Administrative Pro Nos. 96-1203. equally cedures Act is without merit because United States Appeals, Court of they explain fail to Army’s opera how the Tenth Circuit. testing tional at Johnston Atoll constitutes a “rule, order, license, sanction, relief, or the April 1997. equivalent thereof, or denial or failure to 551(13). act.” See 5 U.S.C. fail to also

comprehend Army’s how the completion of

operational testing qualify can agen as final

cy action under the Administrative Proce

dures Construing Act. the agency action

challenged Secretary as the of Defense’s cer Congress

tification to testing was com

plete is similarly unhelpful. See American

Trucking States, Assoc. v. United 755 F.2d Cir.1985) (agency reports do

not “agency constitute action” under Admin

istrative Procedures Act they because do not change policy); law or Safety Industrial Ass’n,

Equip. Inc. Environmental Protec (D.C.Cir. Agency,

tion 1988) (same). We therefore affirm the dis

trict court’s dismissal of both claims asserted

under the Administrative Procedures Boies, Mclnnis, Fairfax,

David of Boies & (Steven Virginia Feder, Bader, M. Villa- Feder, Denver, CO, nueva & him on the brief), appellant. for (Stanley Terence C. Gill L. Garnett and brief), Stephen D. him Gurr with on the Strickland, P.C., Hyatt Brownstein Farber & CO, Denver, appellees. for SEYMOUR, Judge, Before Chief HENRY BRISCOE, Judges. Circuit BRISCOE, Judge. Circuit appeals Plaintiff David C. Zimomra district court’s dismissal his consolidated complaints alleging class action federal anti- claims, trust as well as various state law claims, against fourteen ear rental operating Stapleton Airport International (Stapleton) Airport and Denver International (DIA). We affirm.

I. 8,1993, On November of Denver enacted Denver Bond Ordinance help No. 863 to fund construction of car rental facilities at DIA. Pursuant to the ordi- nance, special issued facilities revenue bonds in the amount of $65,579,000to fund construction. To ensure repayment (repayment period bonds action days experienced by the Companies 2000), runs from 1993 through Ordinance one or previous more years for the requires all car rental companies awarded rental of motor subject vehicles rights operate DIA, payment all of (or entered whom of Concession compara- Fees special into ground facilities and ble leases for Stapleton information at International facilities, their respective Airport), to charge and col- the number of days transaction “usage lect fees” from their Spe- by estimated customers. [the car rental companies] for 3.4(a) cifically, period Section of the such pro- for ordinance the rental of motor vehicles subject vides that payment of Concession Fees, an estimate of the number of a Usage charged fee shall be and collected origination and destination passengers by at Company each person from the enter- [DIA] for period. such ing into each motor vehicle agree- rental ment Company Appellant’s with the Stapleton append, In- at 82-83. Airport ternational [predecessor to DIA] By July year, 1 of each the Independent

prior to the opening date of Denver Inter- Consultant required to furnish a report to Airport national for commercial business the County Denver, the car rent- by City, established the and after such al companies, and the banks involved in fund- opening date. ing special the bonds, revenue setting forth the amount of proposed the Appellant’s daily append, usage at 81. fee for the “which, next 12-month period in the daily The usage initially was fee set at opinion of Independent the Consultant, was to $2.98 and remain at that amount until necessary produce to required Usage October 1994. Subsequent daily usage ..., receipts Fee together explana- with an fees are to be through established the inter- tion of the basis for determining such action of a “Managing Committee,” which is Appellant’s (Section amount.” append, at 83 composed representative of a from each car 3.4(c)). Any recipient report of the is then rental company “Independent and an Consul- allowed period a two-week in which to com- appointed tant” by Managing Committee upon ment proposed daily usage and, fee approval Manager of the of Public if objection, there is no the fee becomes Works of the of Denver or effective on year. October of that If there 3.4(b) designee. his Section of the ordinance objection, is an Independent Consultant provides: objection evaluates the and decides whether Usage Fee each for peri- 12-month proposed recalculate the daily usage fee. od commencing 1,1994 October shall be an The car companies rental deposit their col- amount determined the Independent usage lected fees in a Special “Car Rental Consultant produce sufficient to rev- Facilities monthly Revenue Fund” on a basis. which, together enues with available Re- (Section Appellant’s 3.4(a)). append, at 82 In serve Balances in respective Company turn, the Special Car Rental Facilities Reve- Revenue Accounts in the Spe- Car Rental nue Fund pay. used to the principal and cial Facilities Revenue equal, Fund in the bonds, interest on the as well as associated aggregate, to 115% of the sum prin- of the expenses. Any remaining amounts after the cipal of and coming Bonds (in 2000) bonds are year retired go to will due in period such plus 12-month the rea- of Denver will sonably expected Expenses Administrative gross constitute airport sys- revenues for such 12-month period, deficiencies then Appellant’s (Sec- tem. append, at existing Special City Fund, Reserve 3.13). tions 3.1 and payments provi- under [the sions of Ordinance period. 863] Fairfax, Plaintiff ais resident of Virginia. In determining the amount of Usage unspecified On dates he any period Fee for Independent allegedly Con- Stapleton rented cars at and was sultant shall evaluate such charged factors as it daily usage $2.98 fee in addition shall necessary include, deem agreed-upon daily July rates. rental On among things, 11, 1994, the number of trans- plaintiff complaint filed a in the Court for the Eastern for the same reasons as its District United States February on be- Virginia purporting sue 1996 order. District of in the persons half of “all United States defendant at

who cars have rented II. Airport charged and were Stapleton Denver’s State action day charge during period per $2.98 including present.” Appel- from and Plaintiff contends the district court erred supp. append, lees’ at 6. Named as defen- concluding defendants were immune from eight ear complaint dants in the were rental federal antitrust claims under the state ac- doing Stapleton. business particular, tion doctrine. he Plaintiff asserted claims under Section upon contends Ordinance which defen- 4 Antitrust Act and Sections relied, the Sherman dants and the court was not enacted Clayton as as law and 6 of the well state clearly pursuant to a articulated and affirma- deceit, unjust fraud and enrich- tively claims of expressed displace state directive ment, misrepresentation. negligent He price competition in the car rental market. alleged companies Further, the defendant car rental if he contends even the ordinance by jointly violated federal and state law pursuant policy, was enacted such state charge a uni- agreeing airport customers defendants’ not conduct is immune from anti- daily usage form fee addition to their County $2.98 trust laws because the of quoted prices. rental actively supervise Denver does not the set- ting daily usage or modification of the fee.

The action was transferred to federal dis- 9,1994. September trict on immunity” court Colorado origi The “state action doctrine complaint Brown, Plaintiff in Colorado 341, filed second nated Parker v. 317 U.S. 63 “ 9, 1994, 307, (1943), federal district court on November ‘exempts S.Ct. 87 L.Ed. 315 naming companies ear rental six additional qualifying government regula state local allegations antitrust, defendants. The of the second regu tion from federal even if the complaint substantially similar to were those compels lation at issue an otherwise clear ” complaint. in the first violation of the federal antitrust laws.’ Management Washington Cost Services v. Defendants moved to dismiss both com- Co., (9th 937, Natural Gas 99 F.3d 941 Cir. plaints. Although defendants acknowl- 1996) (quoting Hovenkamp, Federal Anti edged imposing daily usage fee on $2.98 Policy: Competition trust The Law customers, they they airport contended (West 1994)). 20.2, its Practice at 673 Al required by were to do so Ordinance 863. though protecting the doctrine was aimed at Accordingly, sought defendants dismissal of legislatures supreme and state courts plaintiffs antitrust claims on state action acting in legislative capacities, their it can immunity grounds. consolidating After provide protection to other or individuals en actions, both the district court issued an acting pursuant tities to state authorization. 23, 1996, February granting order on Ronwin, 558, 568, 104 See Hoover v. 466 U.S. pending dispositive dismissing motions and (1984). 1989, 1995, S.Ct. 80 L.Ed.2d 590 In plaintiffs against claims all but one of the situations, however, analysis “closer is (Tiara Enterprises, named defendants required” to determine whether antitrust im Inc.). 'doing, In the district court so con- Id.; munity appropriate. Testing Porter plaintiffs against cluded antitrust claims Laboratory Regents, v. Board by defendants were barred the state action 768, Cir.), denied, 770 cert. 510 U.S. immunity Having doctrine. concluded de- 932, 344, (1993). 114 S.Ct. 126 L.Ed.2d 309 plaintiffs fendants were immune anti- claims, trust the court declined to Liquor exercise In Retail Dealers Ass’n California supplemental jurisdiction Aluminum, over v. Midcal 445 U.S. 100 S.Ct. supplemental (1980), April state law claims. On Supreme defendant, remaining two-part Tiara Court established a test to deter- Inc., Enterprises, alleged filed a motion to anticompetitive dismiss mine whether con- granted April and the court part private party the motion on duct on the of a is im- under the state issue, munized vate actor argue defendants appeal First, challenged doctrine. “the restraint that the Town Hattie test is appropriate must clearly ‘one articulated and affirma challenged because the usage fee is the result ” tively expressed policy.’ as state Id. at of action on part i.e., a municipality, (quoting S.Ct. at City Lafay spe- Denver. More Co., ette v. Light Louisiana Power & 435 cifically, argue defendants anticompeti- “the 389, 410, 1123, 1135, conduct, any, tive if occurred when [the (1978)). Second, L.Ed.2d 364 policy “the of] Denver set the amount of the ‘actively supervised’ must be by the State Usage Fee in the Bond Ordinance and re- Application itself.” Id. “rigorous” of this quired its collection from each car rental ensures that applied Parker customer, not way car only “private party’s where the anticompeti- companies’ rental compliance with the law.” promotes conduct policy, tive rather Appellees’ Further, br. at 26. defendants merely than party’s individual interests.” contend the Town Hattie test appropri- Burget, 94, 101, 108 Patrick v. 486 U.S. S.Ct. ate because Ordinance permit 863 “does not 1658, 1663, 100 (1988). part discretion on the of the car rental assessing Claire, Town Hattie v. determining Eau 34, 46-47, amount of Usage Fee.” Id. (1985), Supreme L.Ed.2d the Court modi agree with defendants that state fied the Midcal involving test cases mu action immunity in this properly case is de nicipalities, specifically holding municipalities according termined to the Town Hattie satisfy need not the Midcal active state su Patrick, test. the Supreme Court noted pervision requirement because “there is little supervision the active prong of the Midcal danger or no municipality] [a is involved “requires test that state officials have and private in a price-fixing arrangement.” Id. power exercise to review particular anticom- is that municipality result can obtain petitive private acts of parties and disap exemption under the state immunity action prove those that fail to accord with state by satisfying only doctrine the prong first policy.” 486 U.S. at 108 S.Ct. at 1663. test, i.e., by Midcal demonstrating it Such active clearly state review necessary pursuant acted “clearly articulated and where empowered defendants are affirmatively expressed” policy. Id. with some type discretionary authority in Here, the applied district court the two- connection anticompetitive with the (e.g., acts part Midcal test and concluded the defen structures). price determine Here, or rate dant car rental were entitled to however, the named defendants have no such immunity action from federal authority. Rather, discretionary the provi antitrust claims. In reviewing the district sions of Ordinance 863 make clear that the decision, court’s apply we a de novo standard. City of Denver is the “effective See Hospital F.T.C. v. Bd. Directors Lee decision respect maker” with to both the (11th County, Cir.1994) 38 F.3d daily amount of usage imposition fee and (application of immunity state action doctrine City of the fee. City Communications Buckley question is a novo); of law reviewed de Detroit, (E.D.Mich.1987), F.Supp. 934-35 nst. v. Shawnee Civic & Cultural De Co 'd, (6th Cir.1989). 888 F.2d 1081 aff velopment Authority, 933 F.2d Although plaintiff claims defendants in have Cir.1991). put into the daily amount of usage fee test apply Which provisions of the ordinance inquiry Our initial is whether this case make it clear ultimate control over analyzed should be under the two-prong amount of the fee rests with the City and test, Midcal which typically applies pri- County of Denver. Specifically, the amount actors, vate or the single-prong years Town of the fee for those equal must “115% ofHal- test, lie which applies to municipalities. Al- of principal the sum of the of and though the applied district court the Midcal coming Bonds due in such 12-month discussing without municipality/pri- period plus reasonably expected Adminis- (1985), period, Expenses trative for such 12-month City Supreme specifically emphasized existing Special then in the Court deficiencies Fund, success of an action payments City “[t]he antitrust should Reserve depend upon activity the nature of the chal- provisions of Ordinance [the 863].” under lenged, identity rather than on the view, Appellant’s append, ap- at 82. In our implication holding, defendant.” The of this supervision prong plication of the active is of believe, that in cases such as the one at little value under these be- circumstances bar, private parties acting where under challenged cause the conduct is mandated compulsion municipality or other of. strictly controlled and Coun- subdivision, political the same test should ty Denver via 863. dif- Ordinance Stated apply to determine state action ferently, we see no need for the state to regardless of who the named defendants are. (and supervise conduct defendants’ no need test) prong for the second of the Midcal circumstances, In somewhat similar sever little, any, if because there is risk of defen- al circuit and district courts have held that doing anything complying (or dants other than municipality governmental once unit) County’s with the mandate. is determined to be immune anti liability, trust should be ex plaintiff We further note that could have private parties acting tended to include un named the as a Denver municipality. der the direction of the Cine (or defendant) defendant even sole Corp. Street Theater v. Nederlander 42nd so, action. Had he done it is clear we would (2d Organization, Cir. applied single-pronged have Town of 1986) (holding private party opera theater doublepronged Hallie test rather than the acting tors develop concert with urban Midcal test to determine whether the corporation acquired ment and leased County of Denver was entitled to state redevelopment project theaters for urban en immunity. Allright See Colorado v. joyed corporation’s immunity state action Denver, City County and 937 F.2d 1502 of liability; from antitrust court did not conduct (10th Cir.) (City County and of Denver separate analysis private par state action for defendant; applied named as court Town of ties); Charley’s Dispatch Corp. Taxi Radio immunity), Hallie test to determine cert. de Hawaii, v. SIDA 878 nied, 116 Cir.1987) (association of individual taxi own (1991). We therefore find it er-operators could not be held liable under inconsistent, the same conduct is when possessing Sherman Act for exclusive fran (i.e., imposition fee), daily usage issue of the provide chise to taxi service from Oahu air apply City County to one test to the and port department transporta where state (the test), apply Denver Town Hallie and granted tion immunity had been state action (the different, stringent more test Midcal franchise); grant Communications, to test), private defendants. Were we to (“once F.Supp. at 935 it is determined tests, apply different the result could be that municipality immunity the is entitled to County the and of Denver would be laws, private parties from the antitrust immunity to entitled but the defen regulated by are municipality who dants specifically, would not. More immunity also entitled to long as the Denver, County entity and that enact ‘effective decision municipality maker’ is the imposed daily usage ed the ordinance and private parties”). “Recogniz rather than the fee, could be from antitrust dam immune ing that protects state action doctrine ages, companies, car while the rental all of action, actors, state not state these courts compelled comply whom were to with the against private reason to allow suits DIA, space ordinance in order to lease parties for actions immunized as to munici plaintiff could be liable to for antitrust dam palities plaintiffs would allow to circumvent ages. illogical Such a result would be and challenge pro the state action doctrine and Supreme inconsistent with precedent. Court municipal through tected decisions artful In Southern Motor Rate pleading.” Carriers Hennepin County, Bloom v. Confer States, 48, 58-59, 105 (D.Minn.1992) ence v. United F.Supp. (extending (1996) governmen- provides § C.R.S. 41—4-106 that coun- Admittedly, private party). “power juris- there ties in Colorado have tal unit to and diction,” erection, in is a difference between above-cited cases connection with the maintenance, operation any airport, and the instant case and and County of Denver has not been named as a regulate receipt, deposit, and remov- Nevertheless, defendant in this case. al passengers and the embarkation of or pleading” “artful conclude should property airports; to or from such to exact apply in not control which test we determin- fees, require charges, tolls, and to- ing challenged for antitrust gether pay- lien to enforce their conduct. ment; assign operation to lease or for such area, space appurtenances, or appliances, Applying Hattie the Town or necessary other conveniences or useful therewith; analyzing whether the State Colorado connection ... provide policy regulations governing articulated clear and affirmative rules and the use of here, airport the conduct at issue the district allow and facilities and the use of property court looked to Articles 3 and 4 of Title 41 of other and means of transporta- Statutes, airport. the Colorado Revised tion within or over said Municipality Development Reve- (1996) § C.R.S. 41—L-112 any authorizes seq. § nue Bond C.R.S. 29-8-101 et county in Colorado proceed to review these same statutes. any to rent or ... lease lands or acquired by county lands pur- for the Article 3 of Title 41 of the Colorado Re- poses part set forth in this person, vised Statutes is known as the Air- “Public association, partnership, corporation, or ei- Authority cities, port provides Act” and public private, commercial, ther or in- towns, and counties in Colorado with the dustrial, purposes, peri- for such right “airport to create authorities” for the years upon ods of such terms and “purpose acquiring air- improving conditions as are deemed the best inter- ports, and related facilities.” C.R.S. county by county ests of the the board of (1996). provides 41-3-102 The Act further commissioners. airport pow- authorities in Colorado with the money general er to “borrow and ... issue bonds The second statute cited payable in in part whole or from the income district court Municipali- was the (Bond authority ty Development otherwise secured Revenue Bond Act Act), permitted by § § § seq. extent law.” C.R.S. 41-3- C.R.S. 29-3-101 et 29- C.R.S. 106(e) (1996). 3-102(1) (1996) provides it was the intent of Assembly the Colorado General “to authorize Article of Title of the Colorado Re- finance, municipalities counties and to ac- (which title) gov- vised Statutes has no short own, lease, quire, improve, dispose and of airports in erns the State of Colorado. properties to the end that such counties and (1996) § provides: C.R.S. 41—4—101 municipalities may promote to be able indus- acquisition any pur- try The of for develop lands and trade or other economic 29-3-102(3) pose establishing airports activity.” Similarly, § of or other air C.R.S. facilities; navigation acquisition provides of air- it was the intent of the General port protection privileges; acquisition, Assembly to vest Colorado counties and mu- establishment, construction, enlargement, nicipalities powers “with all be nec- maintenance, improvement, equipment, essary accomplish to enable them to such operation airports and of purposes, powers respects and other air shall in all facilities; navigation and the exercise of be exercised for the benefit of the inhabitants health, any powers granted part promotion of this state for the of their [of welfare, convenience, any county, city county, safety, prosperity.” to Act] and and (c) 29-3-104(l)(a), (b), city, public governmental Finally, or ... town are C.R.S. (1996) functions, public purpose, specifically grants exercised for a Colorado counties public necessity. municipalities variety general and matters of and with a of gives also “improve improve airports. The statute power to and including the powers, authority to “enter into to establish a means en- projects, to equip,” to “finance” City repayment with others for the sure of those bonds. financing agreements pay County to enacted the Denver providing revenues of Denver purpose of and Act, by” and to pursuant the Bond to state authori- authorized Bond Ordinance bonds purpose part for the of de- of ty, bonds the first “issue revenue therefore refinancing, ac- financing, fraying the cost test is met. action equipping pro- quiring, improving, and Air- argues Plaintiff that the Colorado and ject, payment principal including the specifically to car port Act does not refer on such bonds.” true, this is rental activities. While action immuni- Allright, In we found state Airport Act Court notes that the Colorado ty section of Title C.R.S. in an identical specifically not refer to shuttle bus does F.2d at 1506-11. The § 41^-106. Nevertheless, the Tenth services either. operators off-airport plaintiffs Allright, Airport Circuit found that the Colorado services, suit parking filed shuttle bus authority necessary provided Act City County con- against the and of Denver at hand displace competition. The case tending regulations governing shuttle bus “related activities” as referred to involves Stapleton violated federal anti- services at Allright City and Colorado. The Coun- trust laws. The district court dismissed clearly authority ty of Denver had the claims, concluding were plaintiffs’ defendants facili- issue bonds to finance new car rental immunity. appeal, On entitled to state County City and ties at DIA. Once the affirmed the district court’s decision. DIA Denver issued bonds to finance the 41-4-101, doing, §§ 41-4- so we cited C.R.S. facilities, it was within the best interest specifically and noted that 41— the inhabitants of the State Colorado upon counties a broad “confer[red] 41-4—106 County and the of Denver activities, in- authority regulate airport Therefore, repaid. those bonds be under power regulate receipt, cluding the ‘to authority Airport of the Colorado Act deposit, and removal and the embarkation of County Municipality Develop- and the property air- passengers or to or from such reasonably it is ment Revenue Bond fees, ports; require charges, exact and County foreseeable that ...; assign operation or and tolls lease legis- anticompetitive Denver would enact space necessary ... useful in or area or purpose ensuring prin- lation for the therewith; provide connection rules cipal airport and interest of the bonds be governing regulations the use of such paid. airport of other and facilities and the use (internal Appellant’s append, at 31-32 cita- property transportation within and means omitted). agree. tions The above-cited airport.’” at 1508. over said gave statutes of Denver of Den- We concluded authority to construct car rental facilities at ver, regulating bus services at the shuttle DIA, to issue bonds to cover the costs of airport, precisely had done what was allowed construction, to and to lease facilities defen- Moreover, by 41-4-106. we concluded dis- Further, although spe- dants. Ordinance 863 placement competition provision of of the cifically only to the Bond it is refers shuttle bus services was a foreseeable result City County clear the and of Denver had City County and of Denver’s broad 4-106, authority, pursuant to C.R.S. 41— authority regulate. require impose daily usage defendants to the Here, citing above-quoted the stat on their ear rental customers. As fee relying heavily upon Allright, utes and the Allright, gives City 41-4AL06 noted the district held: court County authority regulate and of Denver “to only receipt, deposit, specifically do state statutes au- and removal and the

Not passengers of to or municipalities thorize cities and to take embarkation from” DIA, authority they Stapleton and “to exact and airports, over but also allow both re- fees, tolls,” quire charges, pro- and and “to for the issuance of bonds to finance regulations vide rules and governing the use 1920, 1926, 123 S.Ct. (1993) (doc L.Ed.2d 611 airport of such and facilities ... and means encompasses trine private actions that “at transportation within or over airport.” said tempt persuade legislature or the ex Allright, As in precisely this is what the ecutive particular to take action with respect County of Denver did it when enacted to a law that produce would a restraint or a daily usage Further, fee. in Allright, as monopoly”). it reasonably implementa- foreseeable that tion of authority Although displace could district competi- court did not tion in argument, the area of car address rental services. we conclude the Noerr-Pennington doctrine exempts defen Because the Town Hallie test has been dants from antitrust liability to the satisfied, extent we conclude defendants are entitled plaintiff is challenging their efforts to con from plaintiffs anti- vince the of Denver to enact trust claims. Ordinance 863 and impose daily usage fee Noerr-Pennington doctrine requirement.1 argue Defendants Noerr-Pennington doctrine provides also them Findings contrary to allegations in of fact antitrust claims. The Noerr- plaintiff’s complaints? Pennington doctrine is based upon pro tections the First Amendment and ex Plaintiff contends the district court erred empts liability from antitrust any legitimate by making findings of fact which were con- political use process by private trary individ allegations in his two complaints, uals, if even their intent is to eliminate com and without permitting any discovery or petition. United Mine Workers v. Penning holding an evidentiary hearing. According ton, 657, 1585, U.S. 85 S.Ct. 14 L.Ed.2d plaintiff, the court obligated was to take all (1965); Eastern R.R. Presidents pled facts in the complaints true, Confer as well ence v. Noerr Freight, Motor 127, 81 365 U.S. as all inferences that could be reasonably 523, S.Ct. (1961); drawn Oberndorf v. therefrom. argues Plaintiff also Denver, and County court erred in concluding, solely based upon 1439-40 Cir.), denied, cert. provisions of Ordinance that the (1990). 112 L.Ed.2d 97 of Denver actively supervises the “Immunity under the Noerr-Pennington daily usage fee. More specifically, plaintiff doctrine designed to protect right argues that, in deciding whether the second petition and engage political activity.” prong of the Midcal satisfied, Oberndorf, 900 F.2d at particular, 1440. In inquiry court’s “is incomplete if it does not “protects doctrine rights of association include a close examination of what the mu- petition, would denied if groups nicipality actually did in furtherance its with common not, interests could without duty to supervise.” actively Appellant’s br. violating laws, the antitrust use the channels at 30 (underlining original). procedures government agencies to advocate their points causes and view re conclude it entirely was appro specting priate resolution their business eco the district court to judicial take nomic interests vis-a-vis their competitors.” notice of the provisions of Ordinance 863. (citing Id. Motor Transport v.Co. Federal Rule of California Evidence 201 authorizes a Trucking Unlimited, 92 federal judicial court to take adjudi notice of 609, 611-12, (1972)); see cative facts at stage of proceedings, Real Estate Investors v. Colum and in Professional request absence of a party. of a Industries, bia Pictures 49, 56, 508 U.S. 113 See Bohannon, Clemmons v. 858, 918 F.2d 1. original complaint Neither the nor the obtained, amend- ultimately city pur- ordinance ed complaint specifically identified whether porting ‘compel’ charge” daily them plaintiff challenging was defendants' successful fee, usage appellant’s 6, append, at we will as- efforts lobbying and Count of Denver purposes sume appeal plaintiff that pass However, Ordinance 863. because the challenging lobbying defendants’ activities. complaint alleges amended "sought, defendants

1504 exemption, in Parker v. action set forth (1990), grounds, vacated on n. 5 865 350-52, 307, Brown, 341, (1992); 63 S.Ct. Melton F.2d 1523 956 706, (1943), City, F.2d 724 Cir. 315 from national 879 87 L.Ed. Oklahoma 1989), grounds, generally 928 F.2d William H. on other law. See antitrust modified denied, Antitrust, (10th Cir.) (en banc), 502 Groups, cert. & State Page, Interest 920 296, 241 906, 116 L.Ed.2d 112 S.Ct. v. Brown in the Eco Regulation: Parker U.S. (1991). taking provi includes notice Theory Legislation, This 1987 Duke L.J. nomic Clemmons, municipal (1987) ordinances. 618, in (noting sions that “state economic 625 Melton, 5; 879 F.2d at at 865 n. see sharp conflict with regulation frequently (taking of Oklahoma Char 724 notice efficiency], largely of the because [economic ter). Where, here, party requests a seeking by groups”); problem of rent adjudicative judicial notice of to take Jr., court Wiley, Capture Theory Shepard A John with neces supplies the court facts and Federalism, 99 Harv. L.Rev. Antitrust 201(d) information, requires the sary Rule (1986). Garland, 713, B. But Merrick cf. Thus, request. comply court to Antitrust & State Action: Economic Effi court, having presented with been district Process, ciency 96 Yale L.J. & the Political defendants, by required was Ordinance (1987) approaches (critiquing of Law judicial provisions. To notice of its to take scholars). Though the state and Economics plaintiffs allegations conflict extent that exemption may “grounded prin ordinance, provisions of the ed with the federalism,” principle ciples of bedrock appropriately allegations were re system, certainly political it is also true our Al jected ignored. Fed.R.Evid. 201. See preservation of the free market “[t]he opportunity though plaintiff is entitled “to an system enterprise and of a of free without propriety taking heard as to the to be price fixing or cartels is essential to economic noticed,” of the matter notice and ténor Co., F.T.C. v. Ticor Title Ins. freedom.” 201(e), appeal has the instant Fed.R.Evid. 2169, 2176, 112 S.Ct. U.S. certainly opportunity. him Nota given (1992). nothing in brief that effec bly, there is his principles Where the of federalism and the tively question controverts or calls into collide, great free market caution is warrant- provisions of Ordinance 863. of the strike. As Justice ed the balance we have concluded the Town Because we of Kennedy majority observed for the in Ticor: test, test, is rather than the Midcal Hallie political assign re- Federalism serves here, unnecessary we find it applicable it. sponsibility, not to obscure Neither provi- plaintiffs argument that the address political responsibility is federalism nor alone, are sions of Ordinance considered by a rule that essential nation- well served satisfy supervi- the active state insufficient to regula- policies displaced al prong Midcal test. sion tions to achieve more limited intended court AF- judgment of the district ends. For which do choose to dis- States FIRMED. place regulation, the free market with our compliance with both insistence real HENRY, Judge, concurring. Circuit parts Liquor Retail [California decision, [Aluminum, majority writing I concur in the Dealers Ass’n v. ]Midcal only briefly though separately note (1980),] precedent compel the above re-

statute test will serve to make clear that sult, judges, per- responsible price fixing several scholars and the State is for the Smith, haps ghost of Adam seem to even it has and undertaken to con- sanctioned policy warn that behind our laws trol. local, by appropriate re-examined

need to be Indeed, Id at 112 S.Ct. at 2178. state, legislative and national bodies. Ticor, 36 states filed amici curiae briefs urging application of by Law and Economics that broad the doctrine Recent studies in- the states best interests. Id. questioned have the wisdom of would not serve scholars 635, 112 marketplace under the S.Ct. at 2178. terfering with the

1505 Certainly the has market been tinkered v. City Claire, 34, 471 U.S. 105 S.Ct. of Eau provide with before in order to 1713, such vital 85 (1985), L.Ed.2d 24 the Court noted: public airports. services But one wonders Midcal, we stated that the active state why the car-renting consumer should have to supervision requirement was necessary to pay for the facilities of those less efficient car prevent a State from circumventing the companies rental who cannot compete with Sherman Act’s proscriptions “by casting companies that can rent both facilities and a gauzy cloak of state involvement competitively. Indeed, automobiles over what is essentially private a price small-desk car rental might as fixing arrangement.” U.S., 445 at 106 [100 well a big have desk as as the companies that S.Ct. at private 943][sic]. Where a party trying hapless harder since tourist is is engaging in the anticompetitive activity, going to pay have to anyway. for it The is there a danger real that he acting litigation-spawning capabilities of state-sanc- further interest, his own rather than tioned, anticompetitive bargains have been governmental interests the State. prophesied questioned. See Frank E. Where the actor is a municipality, there is Easterbrook, Foreword: The & Court danger little no it that is involved in a System, Economic 98 4, Harv. L.Rev. private 18 price-fixing arrangement. (1984) (“[A]ntieompetitive bargains only danger embed- real is that it will seek to in legislation ded state will targets become further purely parochial public interests at challenge under laws; the antitrust expense of more overriding goals. deference due toward a statute danger This minimal, corrects however, because ‘market failures’ is not due requirement toward a statute the municipality them.”). that creates pursuant act clearly to a articulated state policy. Once it is clear state authori- As majority opinion dear, makes exists, zation there is no need to require state action immunity doctrine suggest once supervise the State to actively the munici- ed safeguards two before allowing disruption pality’s execution of what is a properly First, city market. or state must delegated function. clearly have and affirmatively articulated ex 46-47, Id. at 105 S.Ct. (emphasis at 1720 pressed the state policy supplant competi original). tion this area. See Lafayette v. Given that Hallie away does Co., the ac Louisiana Light 389, Power & 435 U.S. supervision tive prong for 410, municipalities, 1123, 1135, 98 S.Ct. 55 L.Ed.2d 364 are left with an interference with (1978); competition Parker, 350-52, U.S. 63 S.Ct. based on the lobbying ability of those few 313-14. respect With requirement, who benefit from it. Cirace, John See An private where individuals or municipalities Analysis Economic the “State-Municipal pursuant acted authorization, “[e]los Cases, Action” Antitrust 61 Tex. L.Rev. analysis er required.” [wa]s v. Hoover Ron (1982) (“The ‘clearly articulated and affir win, 558, 568, 466 U.S. S.Ct. matively expressed’ criterion involves the (1984); 80 L.Ed.2d 590 Testing Porter Lab. Court in the legislative morass of intent and Regents, Board the applicability makes of federal antitrust Cir.1993). (Here, a not so analysis close turn on proponents whether statute’s had city’s reveals that the criterion seems to have the ‘skill [or] influence to generate proper clearly included a agreement articulated ”) legislative history.’ (quoting Cantor v. De part of the rental companies to hold the Co., troit 579, 610, Edison city harmless the event of finding (1976) (Black- 49 anticompetitive activity. Aplt’s Reply Br. at mun, J., concurring)); see also Fisher v. City 1-2.) Second, policy had to “actively Berkeley, 260, 269, 106 supervised” by Midcal, the state itself. (1986) (“There 105, 100 U.S. at S.Ct. at 943. be cases in which appears what to be a state- This Midcal remains the test for ac- or municipality-administered price stabiliza states, tions taken but Town Hallie tion really scheme price-fixing ‘gauzy cloak of concealed under conspiracy, might THOMAS, Plaintiff-Appellant, This occur even involvement.’ K. Ronald ostensibly under the abso prices are

where officials.”) (quot government lute control of 943). 106, 100 Midcal, at at S.Ct. ing corporation, DENNY’S, INC., a California Wiley suggests the state action Defendant-Appellee. Professor replaced a doctrine that doctrine be No. 95-5146. “cap- the market has been examines whether players to the detriment of a few tured” Appeals, United States Court Harv. L.Rev. at 743. competition. Tenth Circuit. Scalia, skeptical “I am Though, like Justice Brown,” Ticor, 504 Parker v. [ ] about April 1997. (Scalia, J., concur- at 2180 S.Ct. rending of the

ring), I the veil believe require adoption not

gauzy cloak Rather, Wiley’s intriguing

Professor model. articula- could insist that Midcal’s “clear clear, very that even in the case

tion” be super- municipalities, that there be active than we (hopefully

vision a bit more active here), finally, require, we could

have Hoover, analysis

a la close where im- acting under state action

individuals

munity. country’s well-placed fealty

Noting our market, persuasive criticism of

the free judges, scholars and and even state-

noted that “state-action

ments like Ticor disfavored, repeals much as are

by implication,” 504 U.S. at amazing staying has an doctrine

power. staying today I am with it because it observed, Judge

is the law. As Easterbrook agents politi-

“Judges must be honest They they carry out decisions

cal branches. at 60. The

do not make.” 98 Harv. L.Rev. properly

ultimate resolution of this issue is Court, Supreme

left to either the which could great-

overrule Hallie and return to test localities, scrutiny,

er or to the States and reject could these blandishments in hand, Congress, or to

honor of the invisible

which could fine-tune the Sherman Act. The

obligation panel of this resolve the it, majority

dispute opinion before which the

correctly accomplished. judges But also opportunity obligation if not the

have the

call attention to anomalous results. This one.

seems

Case Details

Case Name: Zimomra v. Alamo Rent-A-Car, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 22, 1997

Citation: 111 F.3d 1495

Docket Number: 96-1120, 96-1203

Court Abbreviation: 10th Cir.