USCA11 Case: 19-11502 Date Filed: 07/29/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11502
________________________
D.C. Docket No. 2:18-cv-01679-RDP
D. BLAINE LEEDS,
SMILEDIRECTCLUB, LLC,
Plaintiffs - Appellees,
versus
BOARD OF DENTAL EXAMINERS OF ALABAMA,
ADOLPHUS M. JACKSON DMD,
T. GERALD WALKER DMD,
DOUGLAS BECKHAM DMD,
STEPHEN R. STRICKLIN DMD,
MARK R. MCILWAIN DMD MD,
KEVIN M. SIMS DMD MS,
SHERRY S. CAMPBELL RDH CDHC,
individually and in their official capacities as
Members of the Board of Dental Examiners of Alabama,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_____________________
(July 29, 2021)
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Before WILSON and JILL PRYOR Circuit Judges, and CORRIGAN,* District
Judge
PER CURIAM:
Bound by a recent en banc case, we dismiss this interlocutory appeal for lack
of appellate jurisdiction. See SmileDirectClub, LLC v. Battle, No. 19-12227,
___F. 4th ___
2021 WL 3045358 (11th Cir. July 20, 2021) (en banc).
I.
SmileDirectClub, LLC is an orthodontics provider that seeks to reduce
treatment costs by using technology to obviate the need for customers to meet in
person with dentists and orthodontists. See SmileDirectClub, LLC v. Battle,
969 F.3d 1134, 1136 (11th Cir. 2020) (describing SmileDirect’s business model).
Alabama’s Board of Dental Examiners (the “Board”), a creation of Alabama’s
legislature, sent SmileDirect a cease-and-desist letter asserting that SmileDirect
was engaged in the unlawful practice of dentistry under Alabama law. In response,
SmileDirect filed this lawsuit against the Board and its seven members, alleging
violations of the Sherman Act,
15 U.S.C. § 1, against the Board members and
violations of the United States Constitution and Alabama’s state constitution
against the Board.1 For the Sherman Act claims, SmileDirect alleged that the
*
Honorable Timothy J. Corrigan, United States District Judge for the Middle District of
Florida, sitting by designation.
1
Although Dr. Leeds, a SmileDirect-affiliated dentist, is also a plaintiff, we refer to the
2
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Board members’ attempt to regulate SmileDirect was a contract, combination, or
conspiracy in restraint of trade that lacked procompetitive justifications and had the
purpose and effect of unreasonably restraining trade in Alabama’s dental services
market.
The Board members moved to dismiss the complaint. As relevant here, they
argued that the Parker doctrine shields them from Sherman Act liability. See
Parker v. Brown,
317 U.S. 341, 350–52 (1943) (holding that the Sherman Act does
not reach state action); see also FTC v. Ticor Title Ins. Co.,
504 U.S. 621, 633
(1992) (explaining that Parker protection has been extended to private persons
who are sufficiently cloaked in the state’s authority).
The district court disagreed, concluding that the Board members had not
shown that the Parker doctrine required dismissal of the Sherman Act claim
because they had failed to establish that the Board “received active state
supervision” when it exerted regulatory authority over SmileDirect. Doc. 57 at
34–35; see also N.C. State Bd. of Dental Exam’rs v. FTC,
574 U.S. 494, 503–04
(2015) (explaining that the dentistry board enjoyed Parker protection only if the
challenged conduct was “actively supervised by the state” (internal quotation
marks omitted)).2
plaintiff as SmileDirect for simplicity.
2
“Doc.” numbers refer to the district court’s docket entries.
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The Board members filed a notice of appeal and moved the district court to
stay the proceedings pending appeal. In its motion, the Board members argued that
the district court’s rejection of the Parker defense was immediately appealable
under this Court’s precedent and that a stay was warranted to prevent the case from
moving forward while the Board members sought review of the district court’s
ruling. The district court granted the motion, staying the proceedings pending
resolution of this appeal.
SmileDirect filed a motion in this Court to dismiss the appeal. It argued that
we lack appellate jurisdiction because the case was neither final nor a member of
the small class of decisions entitled to interlocutory review under the collateral
order doctrine. See Coopers & Lybrand v. Livesay,
437 U.S. 463, 468–69 (1978)
(explaining that the collateral order doctrine applies only where the order
“conclusively determine[s] the disputed question, resolve[s] an important issue
completely separate from the merits of the action, and [is] effectively unreviewable
on appeal from a final judgment”). Specifically, it argued that because the district
court did not conclusively determine the Parker question, the district court’s ruling
was not appealable under the collateral order doctrine.
In response, the Board members argued that the district court’s ruling was
immediately appealable based on our caselaw holding that a Parker denial at any
stage of the litigation is immediately appealable. See Commuter Transp. Sys., Inc.
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v Hillsborough Cnty. Aviation Auth.,
801 F.2d 1286, 1289–90 (11th Cir. 1986)
(holding that denial of Parker protection at summary judgment was entitled to
interlocutory appeal); Danner Constr. Co. v. Hillsborough Cnty.,
608 F.3d 809,
812 n.1 (11th Cir. 2010) (exercising appellate jurisdiction to review denial of
Parker protection at the motion to dismiss stage). We reserved judgment on
SmileDirect’s motion until after oral argument on the appeal.
II.
We lack appellate jurisdiction over, and therefore grant SmileDirect’s
motion to dismiss, this interlocutory appeal. Ordinarily, a litigant has a right to
appeal only the “final decisions of the district courts.”
28 U.S.C. § 1291. This
statutory limit on our appellate jurisdiction has been construed to permit appeals as
of right when nonfinal orders fall within the collateral order doctrine. See Digit.
Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 867 (1994).
Responding to SmileDirect’s motion to dismiss this appeal, the Board
members argued that we have appellate jurisdiction because the district court’s
order denying Parker protection was an appealable collateral order. This argument
is foreclosed by binding precedent. After the Board members filed their response
to SmileDirect’s motion, this Court, sitting en banc, overruled the cases the Board
members had relied upon, squarely holding that district court orders denying
Parker protection are not immediately appealable collateral orders.
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SmileDirectClub,
2021 WL 3045358, at *3–7 (holding that because Parker creates
a defense to liability rather than an immunity from suit, a district court order
denying Parker protection falls outside the collateral order doctrine). The Board
members failed to argue in response to the motion to dismiss that there is any basis
for appellate jurisdiction other than the collateral order doctrine, so SmileDirect’s
motion to dismiss this appeal for lack of appellate jurisdiction is GRANTED.
APPEAL DISMISSED.
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