Thursday, May 18, 2006, 4:05 PM

Fourth Circuit: Denial of State Action Immunity Not Immediately Appealable

On May 1, 2006, the Fourth Circuit issued this decision in South Carolina State Board of Dentistry v. Federal Trade Commission. This administrative action was brought by the FTC against the SC Board of Dentistry alleging unfair competition by promulgating an emergency regulation that prevented oral hygentists from performing certain services in school settings unless a dentist had first examined a student and prescribed a course of treatment. The Board argued it was immune under the "state action" immunity doctrine of Parker v. Brown. After the FTC refused to grant the protection, the Board brought an interlocutory appeal, arguing that the denial of Parker immunity was a "collateral order" that may be appealed notwithstanding its lack of finality. The Fourth Circuit, however, disagreed and dismissed the appeal for lack of jurisdiction.

The court noted that the circuits are split on whether the denial of Parker protection is an immediately appealable collateral order. The Fifth and Eleventh Circuits have held that it was a collateral order, the Third and Seventh Circuits have suggested the same in dicta, but the Sixth Circuit has held that the denial of Parker protection fails to meet the collateral order requirements. The Fourth Circuit joined the Sixth Circuit, concluding "that the Parker analysis is neither 'completely separate from the merits' nor 'effectively unreviewable' after trial. The Fourth Circuit's decision further divides the existing split among the circuits on this issue.

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