good morning your honor may please the court they know when it for the federal trade commission i'd like to reserve five minutes for a bottle this court has held three times but a party to administrative proceedings before the commission cannot sidestep the statutory review process and challenge those proceedings in district court the board can obtain a judicial resolution of that state action defense by following the statutory process and petitioning for review in this court if the commission ultimately ent cease and desist order the reason were before this court for the nd time before the conclusion of administrative proceedings is that the board determines to obtain an immediate review of its state action defense rather than waiting until the end of the commission proceedings and following the statutory process that process exists to prevent exactly this sort of inefficient review the district court lacked stiction over the board's challenge for two independent reason and even if the district court had jurisdiction it was wrong to enter a state because the board hasn't shown a likely that success on the merits i'm just briefly summarize the two jurisdictional problems with the district courts ruling st is this court explained in coca cola the f t c act quote contemplates judicial review only of an order of the commission to cease and desist and then only in the court of appeals of the united states that whole thing is clear and binding and it's consistent with the broader framework supreme court has articulated in thunder basin and elgin which requires that even constitutional challenges be pursued through the ordinary judicial review scheme it precludes the board from challenging an  commission and it precludes the board from challenging any ruling of the commission in a district court nd and independently the district court lectors diction because the commission's ruling was not final he can see action the ruling doesn't satisfy the typical than a private plaintiff and because the board is effectively a private entity for state action purposes and again even if the commission's ruling were a collateral order under martin the collateral order doctrine addresses only the timing of review by  common scenario for four defendants response to administrative proceedings like defendants to judicial proceedings telnet the burdens of litigation and those those burdens are real we're not we're not diminishing them but they will if anality exist for a reason which is that even in the context  injection of the judicial branch into the into the workings of the executive branch so you know litigation burdens are real but the state has the power to protect board members from the ultimate in position of liability  by providing a clear articulation of its reasons to support allegedly attacked and attacks and by providing active supervision of what the board does there is no rule that any time a responded to administrative proceedings would rather and sooner contain immediate review of that and so we think the concerns raised by amicus can largely be dealt with by providing the sort of clear articulation and active supervision that's necessary to provide protect the board members and the board itself from ultimate liability mr winnick judge higginson of course i was on the panel before it really looks like what the district court did here was just read the final footnote in our opinion and say seventy three coca cola decision which i read to be somewhat qualify when the special review procedure might be a limited in its scope that's i'm referring to the supreme court's decision fifteen years later and b and therefore it would seem to your alternate basis might be the better way to decide this case which is to assume there are it wasn't meant to preclude all a p a review and district courts but we would just go through the usual is the and in any way you know we couldn't consider this to be an a p action because any such action would have to be brought in the district court it didn't go on to suggest that such an action would be viable it didn't consider the issues but wouldn't we be the circus to actually say that precisely i would be very consequential for us to to to therefore say no a b a review in any district court is one thing to say they've been very clear you can't leapfrog to us you know that was the earlier decision but through a lot of the seventy's the my last question i'll stop asking so many was didn't the supreme court step back a little bit fifteen years later i don't think so your honor i think what this court would be saying is it's frankly fairly commonplace and it follows directly not just from this court's decisions in the seventy's but from thunder basin and elgin and everything else which is that where congress has provided for a comprehensive detailed process for traditional review of agency actions that you know parties before the agency have to follow that process and they can't go running to district court no plaintiff here has suggested that the process under the f t c act is different from the one in the mine act under oath under basin because it's less comprehensive it only addresses order but the proceedings were moving you know at a at a reasonable pace and you know and in fact the commission has talked spoken here about the importance of it to the public interest of allowing any trust law to be enforced in a timely fashion and what is would it have been historical context that's correct and this court could equally well resolve this case on either of the two threshold jurisdictional or it could decide that there was no finally to see action here just the supreme court standard oil asked and certainly i will be open to questions after a few minutes of opening presentation so the louisiana legislature delegated to the louisiana real estate appraiser scored the authority on the responsibility to enforce state and federal regulation mandates over residential mortgage appraisals given that clear articulation in the law and the legislative and executive branch supervision over the board's rules and conduct the state and powered the board to regulate market competition under state action immunity from both antitrust trial and antitrust liability that was a state's intention before the f t c issued its complaint and the state as we enforce this political accountability over the board by its official actions since that time the board filed  complaint to preserve that assertion of state action immunity because the commission's april th order dismissed the the board's immunity in capital letters and bold print in its entirety and with fin forbid particular actions but they do so for different purposes a stay operates on the judicial proceeding itself it preserves the status quo coming review which is what the district court to hear while an injunction grants all or some of the substantive relief being sought by the plank a stay order here does not grant any of the substantive immunity being sought by the board it simply gives the district court time to decide whether the board as such an entity before that immunity is a retrievable lost a p a section court cases have found orders affecting other courts to begin junctions only where those affected proceedings are separate and distinct from the case under review and for example in christan home vs jackson marine the order order of the parties not to different from this court state and the prior case louisiana board one under federal rule of appellate procedure a day if that was not an injunction that was not an abuse of discretion and the same is true for the district court state order here on the  nd point district court had federal question jurisdiction and authority to issue the stay order under the a p a the april th order does meet the requirements for review under section seven hundred and four its final agency action for two reasons st under benefits of believe it was pressed judge l russ point this is in fact the final agency action because the only ability of the board to renew its motion for  constitutes irreparable harm and of course is harm to the boards and the state's dignitary interests the distraction of state officials from performance of their official duties and the deterring of qualified individuals from public service that none of the standards for finality under either seven o four or the collateral order doctrine and all of those issues could be meaningfully reviewed after conclusion of the hearing with no irreparable harm to those t five c and statutes like the miner act of the social security act which provides for review of any order or any final order and i would note that in all of the cases in which the supreme court has found implicit preclusion including funder because that law included to save because clause that nothing in the law should be construed to repeal or modify any provisions of the a p a congress would not have found it necessary to include that clause unless the a p a could also apply to twice articulated a strong showing standard and it found the board showing adequate to the task and the board showing was consistent with what is the touchstone of state action unity and it is as in north carolina dental parker's rationale is to ensure that the states accept political accountability for the anti competitive conduct that their laws permit and control and the state of louisiana here has accepted political accountability through its actions and its words over what the board has done so for example but no you're right is the way that i would interpret it is i think as is appropriate upon a state court or on a state order the court should not issue a final determination on the merits and i think that is what the board what the the court was saying here but he was saying that as far as the showing that's required for the purposes of the state ordered a strong showing of the likelihood of success that the board has shown here and i would point to the the court here to record one hundred and twelve to one hundred and sixteen that is a senate resolution unanimously adopted that says that the state legislature twice reviewed and approved the board's rules and that the adoption of the board's rules or the sovereign annex that the state of louisiana and its legislature that's a clear showing that the state intends the board under his executive orders and so i think that does constitute a strong showing of the likelihood of success to establish the existence of political accountability taken by the state over the actions of the board what do you do with the argument those statements by the state well the executive orders would be within the time because they were in fact part of the record before the before the district court but the subsequent senate resolution does not itself to stow state action  all the actions taken by the legislature previously had happened in two thousand and thirty and in october november of two thousand and seventeen before the board filed its motion what the standard resolution states is in response and legislature and the state of louisiana mr green thing you said you said three times in unity through trial citing martin and of course you know from the briefs that their response is that our court had not  compare and then judge dennis who authored martin author acoustics pulling back and saying it's not an immunity from trial it's a defense especially where it is a private citizen suing the public but the federal government regulating a quezada climate and to date if we interpret it could sticks to apply to your situation would you then agree that even if the end of the commission has made a final consummation on this issue you still have an adequate opportunity to challenge that after the cease and desist order if it comes comes to us your honor let me st of challenge the notion that the board is some have to be treated as a private entity at north carolina central didn't say that the board was that that board was anything other than a state agency are board a state agency all it said was that under those circumstances but the board also had to show that it had was actively supervised by the state there was no active supervision in that case he didn't get whatever he was doing i read acoustics it was saying you can have a pure public education but if you then delegate it instead to people who are active participants in the market was pure private entity claiming somehow to have a state action unity in that case it had none of the dignitary interest of the state at stake none of those interests would possibly be offended by any action of bringing the  the private party to trial here you have the opposite you have a state agency that has been and powered by the state of louisiana by its legislature to regulate the market for real estate appraisals and delegated certain responsibilities established under the office of the governor these individuals were appointed by think governor and they were confirmed by the senate they were removable for cause by the governor this is a state agency it is not merely a pure private entity and for that reason it also has the same dignitary interests of the state at stake here because when a trial is held state officials including the board members the executive director of the board who is an employee because that if we were in federal court to begin with on this we would say that case you don't dismiss for lack of jurisdiction because the case you go t this and this trisection and the th circuit under mark the denial of state action immunity to a governmental entity is subject to collateral review that does make this different from several other jurisdictions and the extent to state action immunity under martin it includes immunity from trial not just an immunity to liability and for that reason it is fairly proper for the board to have brought  an action up to the a p a to preserve its right of state action and unity and further to your point your honor this is and some respects a case of for shopping because the f t c could have brought its case against the board in federal district court in the middle district of blue easy and the st instance and if it had done so i think there would be no question whatsoever that the order of the district court denying state action of unity to the board would have been a only run i think that is the essence of the right of appeal provided under the administrative procedure act so when there is another final order of an agency it is immediately remediable particularly where as if there is no other apparent right to preserve ability d to preserve the rights in another court proceeding here i think it's clear that the board's right of immunity to trial would be  it has not risen and jurists in a circuit your honor where the circuit has explicitly said that the denial of state action and duty to a governmental entity is subject to collateral  review this case is unique in that respect helped an acoustic system that private defendants don't have the right to mediate the appeal the rejection of state action defense and even if it were otherwise a close call whether mark would apply in this context mark it should be read agency action where congress says otherwise channel exclusive interview with agency action to the court of appeal so for many reasons we think this is a case where the board as an adequate means of gaining traditional review of the state action efforts to secure premature judicial review those proceedings might have concluded by this point and the board could obtain in the ordinary course i'm happy to entertain further questions from the court had  everyday on page twenty eight think i'm quoting correctly you say immunity principles do not apply and he bought by the federal government that seems overbroad d is that consistent with north carolina dental parker  the level of amendment doesn't bar proceedings against the state by the federal government the board has noted that it can assert a state action defense even against any trust proceeding by the federal government at that point but the point is that the sort of the indignity the interest that have been set forth in the rule and thus the f t c asserts that the rule prohibits the operation of the fe market the complaint also asserts that in its operation in application by the board the rule has been applied to