two of that river for a bottle of possible write it just watch the clock thank you may please the court the state action immunity is a limited and disfavor doctrine and it has a singular purpose to preserve the balance of federal the courts to reverse first because the pelleas cannot show that they were acting pursuant to a clearly articulated state policy to displace competition is that the question whether seventeen ninety seven point two  ploys to cities is that the most of the matter i think it is your honor but but a state policy is more than just a particular statute it's the entire state regulatory policy  speaking of federal federalism which court system should decide  cities is a federal because if it does you lose if it doesn't you win so which court system decides that issue this court your honor tell us why because this is about the state act immunity and about whether or not there is a clearly articulated state policy to displace competition only federal courts can decide whether or not there's a state policy to displace competition the federal courts decide the reach of the any trust laws t not whether or not but what we don't decide is whether the state the cities in this case may just how these are in compliance with that law a state court can make that decision right a state court might decide whether or not they're eligible but i don't think it's a matter of clearly had the zoning power the question was whether or not in exercising that power whether that it did it in the right way whether across the the the t's and dotting the i's here the question is whether or not the cities were allowed to and i think you're speaking to the first not to whether or not the cities were in compliance with the with the policy adopted by the california legislature is that correct correct ok you have to look at the entire regulatory structure here it's not just whether or not the cities complied with section two hundred one it's whether or not they comply with the state policy in the state policy concludes not only section two hundred one but also the other provisions of the s act the court decisions regarding those those i believe really looking to see whether or not the california legislature has expressed this policy clearly that it is that ended ted for cities to have the ability to engage in this kind of activity in the market isn't that our mission that is your honor ok that is and the state has clearly said that they do not the state is here today to tell you that the city's did not have the power to not let the state speak to for itself i read the state's brief to tell me that they think that the cities aren't in compliance that some of them haven't been aren't entitled to be grandfathered in and those are all the matters that it seems to me that on me says are going to be resolved and ought to be resolved in state court because as judge hawkins as alluded to there is that there's a real concern about federalism here but what will be helpful to me is if you could explain why you think the california legislature hasn't clearly expressed a policy that will allow the cities to operate in this way so that the difference between army and this case is the let me back up section two hundred one does not say that all cities can do you can just place competition it says that cities that meet that meet these specific qualifications can displace competition the city to the facts of the complaint establish that none of the cities in this case meet those standards so they don't qualify it would it would be this and that and why can't that issue why not that  because we're talking about federal supremacy here federal supremacy of the any trust laws yields only when the state when the state actually meeting the sest is met and it's up for federal courts to decide whether that's the case now if we were if we were to wait for state courts to decide whether or not the city was allowed to do something that undermines the federal interest now i think i think you're properly here in federal court but i just think that the issue in federal court is whether the california legislature has clearly articulated its intent that the municipalities if they are in compliance ought to be allowed to engage in this anti competitive behavior and that's what i'm trying to get to focus on right this court decides whether or not california has already expressed that intent yes they really and why anyway why do you think that the california legislature has not done so that's my question what it is what the california legislature has done has said that we're going to we're going to scrap this whole minute municipal system and we're going to go to a system where there the planning is done at the county level it's approved at the state level the stable oversee everything and why have this minor exception where certain municipalities that meet these requirements can continue to in san bernardino for example that nothing in this reference to section two and suggest that cities are fire districts are to be allowed to expand their services or to create their own  only county law you haven't even tried to ask for courts of california for there to a one extends to cities no no your honor because we don't think that that's necessary in california case was already clear that cities even if they are eligible for to a one do not have the authority to displace competition and we've also alleged our complain that the cities are not eligible under section two a one and we're at the most a motion to can be exclusive or non exclusive the default is non exclusive that's the default policy in california the only time that can be exclusive are the very specific requirements under section two to four but all that does is prevents the county from coming in insane ok city a here we're going to deem this exclusive and we're going to open it up to competitive bidding and we're going to award it to ambulance company b a couple city a qualifies for two a one is got the right to continue to provide services if the county were to do that it would be infringing on the on the city's right to provide services and there a california cases that that have address that particular issue including san  held a couple months ago in chamber versus seattle that a provision a legislative provision that purports to immunize municipalities under the n h s laws can never provide a clearly the other problem with that argument is that medicare versus arion ambulance this port addressed an issue where the defendant attempted to monopolize not only the dispatch market but also the ambulance service market the court held that simply because the state allows you to do it in in one market doesn't mean that you get to do it in every market  here in any trust law there are always two dimensions to any market there's the product or service market such as dispatch versus ambulance services and then there's the geographic dimension of the market as well here the state of california has already determined which geographic markets competition can be displaced at good morning your honors may please the court carlie eisenberg on behalf of the california emergency medical services authority your honor the state is here today because the district court's interpretation that section two a one is a legislative grant of immunity  impacts it on ensuring emergency medical services additionally the district court's interpretation runs contrary to the plain language of the statute and the legislative intent your honor judge christian is absolutely right it is a bifurcated two part analysis  and i apologize if there was any unclear statements in the state's brief the state is primarily concerned with the proper interpretation of section two zero one and with the e m s act as a whole here the district court's analysis with regard to legislative immunity hinges on section two zero one however it's very clear that section two and one does not provide that immunity the legislature set out a carefully crafted to tear review of emergency medical services one of the county level and one of the state level and here the city's interpretation in the district court's interpretation effectively makes a third tier whereby the city's going to affect of we operate outside the overview of the state energies because they're seeking not only to retain the services that they have under section two hundred one but to retain those services to the exclusion of all others council under omni i read you loudly and clearly to say they are not in compliance with the scheme that the california legislature intended in other  words this is big condition proceed n't i'm going to say this kind of loosely but that the california legislature conditioned this munity on compliance with this scheme right why can't that be vindicated by the state attorney general in state wretch that there is this state court availability however what the police are requesting is court do is confuse section two to four in section two hundred one the legislature granted him you only county is they could obtain that exclusive video that they're asking for and avoid parker immunity so should we certify the question to the california supreme court certainly your honor that is an available remedy that were an alternative and services but to retain the services to the exclusion of all others i'm just trying to see why that isn't a question about this the city's not being compliance with the scheme that the legislature intended in which case they're not going to be entitled to immunity and that's a that's an issue that will be decided in state court right so that's the outstanding question that's never been resolved by the state court and why in the world with the state attorney general want a federal court to answer that question rather than a court correct which is why it to judge hawkins question certifying that she would allow the state court in the first instance to answer that question but in order for this court to apply immunity this court would have to determine that the california legislature deemed reasonably for saw immunity would be a political to cities and counties however under section six of the m s act which is the legislative branch of immunity it clearly says that it isn't acting that legislative grant of immunity and sections two to four in section eighty five to grant immunity to the lamb says the local emergency medical services agency and then within that a much as been made of the subsequent statement that talks about local government entities however that is meant to be cities who contract with counties under section two to four such that they have exclusive operating agreements how would we be asking the california supreme court to determine law or facts law or both it would be law your honor purely law down and they be interpreted in a statutory scheme to indicate which entities under what circumstances are entitled to basically the parker immunity isn't that right no your honor they would just be determining what rights cities and local fire districts have under section two or one and act wrecked and that determination on the state law issue it would easily resolve the federal issue because the state law issue that is outstanding is whether to one allows the citizen envies not only to retain services but to exclude other primaries and the state attorney general hasn't initiated litigation in state court to press this point and get the ruling that it means no your honor it ha been sued twice in federal know what no i'm asking was there some reason the state attorney general has initiated suit in state court to get this ruling that you're seeking about the correct interpretation of california for us to hear a state ask the federal court to make this kind of a termination usually it's quite the contrary and they were being asked to stay out of the right is there anything further well over your time thank you your hon defects number one each was who fails to allege a possible and i trust injury and number two each lawsuit is barred by the state action doctrine which is not at issue in this case is whether the m s a or local agencies may exercise medical control over the cities to assure that their medical quality standards are met what is at issue in this case is a challenge to rights that go back under zero one that go back almost forty years ago and yet in the last four decades it's already been to observed either the m s a or anybody including american air has bothered to challenge that assertion of rights and state court instead it's done through the back door of the federal and i trust lawsuit and that door has to be close by those two fatal defects take very briefly the and i trust injury problem and requested to be put on you know ambulance service status it did not explain that it was sending us to twelve cities did not explain how it would be able to provide service for all twelve cities at the same time  not explain in that little over one page request form letter requests what personnel and equipment would be provided what insurance would be there what indications we offered what response times we involved none of that was there and no city could have been in a position to grant this request that is the entire basis in every of one of these complaints were there in a trance injury and a lax possibility not the twelve cities would not be in a position to accept that so so called request no city in the state of california could have it would have known what they have agreed to and under the standards of possibility here and it's not possible here now getting to the state action issue the courts have universally rejected extending federal antitrust immunity federal antitrust liability to governmental missile functions that's what was done in the ami case where the supreme court found that the authorization of zoning clearly articulated a policy displace competition that's even more so in this instance in the case of ambulance services we have a network of statutes here it's just not the n s a there's also government code three eight seven nine four for example that has not been modified by the a mouse act is still there in th court found no springs amulek case that that would allow for extensively for cities and providing services or can contract it from lots of services there are other various statutes that are side in our brief if you take them separately or you take them collectively they clearly articulate and permanently express a state policy displace competition and a field where it's already known private competition will not work in this field first under our media and the versus we did on a case that this court has decided it doesn't matter that is not a foundation for for the for a federal and i trust lawsuit second response yes we are in compliance and i'll get to each one of those if you're not going to ask us to enter a ruling that your are in compliance with state law absolutely not really ruin my day you know absolutely not i think but but but i do want to make it whether this is an appropriate case for this court to consider and i would point out to the boom versus redevelopment agency of the city of san jose case i think it's uk clearly on point in that case the this court s defeating state action immunity the rimini was pointed out by this court was to go into state court and that's what they have not done and we have not had any rational explanation from either one as to why they haven't done that the army case halley case the whole series of case law establishes that it's not the job of a federal judge to under the guise of an and i trust lawsuit to arbitrate these disputes that has already been a said time and again and that is what is being asked by by american area and now apparently by the n s a again without any explanation as to why they haven't gone the normal course has indicated that it's not true in mercy peninsula case but fit you know federal just record brown that there could be as an exclusive server provider agreement under the act and it was protected by state immunity why is that important it's important because to do for didn't exist at the time it hadn't been passed it hadn't been enacted wasn't effective and yet the court found in that instance that there could be  providers under the act as it existed at that time and this court affirmed that decision and this court in doing that said virtually any anti competitive act including exclusive service provider agreements ca contemplated under the act that federal district court decision by the way was also was also cited by the california supreme court in the county of santa ravine ok's with approval for some making the statement that the m s ac displaces competition in the field and if it does displace competition in the field as like any of the trade that case that's enough we're acting in within the field this is not a situation where somehow this should be transformed into what is a state dispute where it's a law dispute into a federal antitrust claim i'm going to justify a few more points your honor in addition to that that have been raised in the briefing as far as the market participant exception has not been discussed or raised five by five if in the oral argument but it does raise and what we face here in this case is what that proposed exception means and it also raises a very serious question about what in this instance where you where the idea of having a lawsuit counsel mr got has indicated that you can use the definition of the of the function geographically and product wise in order to create a cause of action under the sherman act that's terrifying a specific activity but then does not extend that same immunity to its chosen contractor to carry out that specific activity under either the parker doctrine or the nor pennington doctrine care is entitle to munity in fact care is entitle to community separately under the nor pennington doctored regardless of whether or not the cities are entitled the park or community in this case and they are i will revisit the parker doctrine but before i do i just wanted to quickly address why the nor pennington doctor an application to care in this case is straightforward in care is entitled to immunity under the nor pennington doctrine regardless of what the say this court in kabul the northwest kidney centers which is a decision that's cited in our brief p ten fifty nine of that decision says quote the nor pennington doctrine sweeps broadly and it applies the petitioning that is directed toward any government entity the supreme court in or and pennington has confirmed that petitioning even for an anti competitive outcome is entitled to first amendment protection and this court and circuit courts from all across the country uniformally hold that private parties are protected from anti trust liability under the nor pennington doctrine in relation to their ex government agreements including the anti competitive outcomes of those agreements in any situation of pellets insurmountable burden with respect to the nor pennington doctrine is that there isn't a single case anywhere in the country that imposes liability on a private party in relation to its exclusive government contract or the anti competitive outcome of that contract in fact this court in sanders v brown which is another decision cited in our papers how that you can't plead around their pennington by focusing only on the anti competitive outcome of an agreement in that case the plaintiff didn't even complain about the agreement itself but only the fact that the private cigarette company defendants in that case were as a result of the agreement able to collude in order to set higher cigarette prices and this court held that nor pennington nevertheless applies to immunize the private party defendants in that case this court and sessions take liners which is another decision cited in our brief hold that the more pennington doctrine applies despite the fact that doesn't apply to the city defendants in that case the court didn't even address whether or not the city defendants or the government defendants in that case were entitled to parker immunity in the first place unless the panel has any questions on their pennington will then move on to parker in relation to the parker doctrine we agree with the cities that the intent to displace competition could not have been more clearly expressed nor pennington applies to your current we don't even need to look at purgatory that would be correct with respect to suspenders i'll just take a few minutes and touch on a couple of points that no one else touched on if that's the emergency medical service is a surface association of california recently in a federal court filing  acknowledged that the use of the chairman local government entities under seven hundred ninety seven point six was meant to include the city's we've attached a copy of their brief to our motion for judicial notice and we agree i mean seven hundred ninety seven point six couldn't need an express statement regarding the intent to displace competition but that's actually what we have in this case moving on to whether or not the second prong of the parker immunity test applies the mid cow supreme court test for parker immunity has problem one clear articulation of intent to displace competition which clearly exists then as prone to state supervision appellant cannot cite a single case that applies the second prong to a municipality or to an exclusive government contractor the fundamental difference between the cases that apply both mcalpin in our case is that all of the cases that apply both that help mikhail prongs involve situations where there is a state policy that authorizes private parties the collude in order to exercise market power that was the situation in the mid calif supreme court case itself in north carolina dental and in the chambers of congress the seattle case that was cited in the appellants supplemental authorities there is just no precedent for imposing the second prong on either a municipality or its exclusive contract or in fact this court held in charlie's taxi radio and circuit courts from across the country have resoundingly concluded that the explosive contractor of an already immune government entity does not need to demonstrate the second prong of the parker matel test in order to be entitled to state action immunity so we are entitled to both nor pennington immunity and parker immunity even assuming that state supervision was required even assuming that second prong was required here we have municipal supervision and this court held in tom hudson that municipal supervision is by itself sufficient and even assuming that municipal supervision was by itself not sufficient we have an additional layer of state supervision in this acknowledged by the amicus brief that was filed by the emergency medical services administrators association of california and support of the appellant that's an association which actually represents the local m s e agencies to one city's have been part of the california landscape for the last forty years and continue to be and although the local m s a agencies have no say in who those two one providers are they do nevertheless supervise virtually every aspect of what those two one providers do in fact in this case the county of orange in conjunction with the local e m a c agency the words county emergency medical services association has an active ordinances that we've attached to our supplemental excerpts of records at pages seventy three ninety which competition and under two one it's clear that they did not and the fact sorry under two zero one and the facts of the complaint it is clear that they were not eligible to displace competition under the state regulatory scheme it is the job of the federal courts to enforce the sherman act which is the supreme law of the land the state action immunity is a limited and disfavored affirmative defense it's actually an exemption not an immunity that's only designed to accommodate the state's residual power to regulate so it's not about whether america can defeat the state action munity it's whether or not the defendant can meet their heavy burden to show that they have that they are acting pursuant to clearly articulated policy to displace competition they cannot do that in terms of whether the active supervision requirement applies counsel said that there is in no case that applies that  that requirement to mean this polities but this court just decided in chamber versus yatom there where private parties are involved in implementing the it's a competitive scheme state supervision is required in that case the court also said that a substate entity is not sovereign and it is not a substitute for the state it cannot provide that supervision only the state itself can provide the supervision in this case that would be in the legislature  into the next case on the calendar which is seventeen dash five five six four two lamps first says i don't know how to pronounce this one either science that maybe you can correct me when when you get