and the court will move on to the next argument dr blayney leads and smile direct versus dolphins jackson and other  dr lee this issue in this case your honour's is very simple but it's very important for our federal system and it's this how much must a sovereign state really do to provide realistic assurance to this court that one of its agencies which as a matter of law in this circuit is an arm of the state of alabama may go ahead and regulate the health and safety and welfare of its citizens without being hauled into court and assistant we audited by a private company to defend the allegedly anti competitive effects of a facially neutral regulation especially when that private company failed to avail itself of one of the review mechanisms that alabama put in place precisely to ensure that the state followed the supreme court's guidance in north carolina dental that's the issue that this court must decide today doesn't get to audit the state of alabama and neither does the f t c and both of their arguments in support of their position fail st they argument that they argue that we are allowed to appeal now that they are entitled this kind of searching discovery but they're wrong second they argue that we haven't adequately shown active supervision under mit cal and north carolina dental and so therefore they need some more discovery to show that we haven't been actively supervised i want to address both of those issues in turn st i want to talk about timing there are three reasons why this appeal satisfies the collateral order doctor and here in the  the summary judgment phase was immediately appealable under the collateral order doc and it did because it said that parker immunity is a minute he from suit not just liability then in two thousand and then just last year less than a year ago in august this court decided its diverse power decision and it held in that case and i quote we happen to think commuter transportation was decided correctly and it went on to say it went on to directly say that we think it's clear that state action immunity is a form of immunity from suit not merely from liability and denials of immunity from suit like denials of sovereign and qualified immunity are immediately appealable under the collateral order doctrine and quite milder act says that these cases don't apply for two reasons st they say even if it's good law they don't really compel the court to allow this appeal but i would submit that there is nothing more compelling than three controlling cases in the circuit and the nd argument they make is that the district court's provisional ruling somehow makes the order from which we appealed non final but but here's why that's wrong those three cases one of which was banner which was decided on of us into this mess held uniformly that parker immunity is immunity from suit so a self styled provisional ruling in this case the district courts disclaimer that it would definitively rule at a later date still definitively denies the board the immunity to which they are entitled right now under those three cases this court has jurisdiction to hear this appeal right now after the merits sm direct nd argument that they are entitled to more discovery because the board hasn't yet satisfied the active supervision requirement they're wrong on that too and it's for two primary reasons one the board doesn't have to show active supervision at all it is an arm of the state as a matter of law under this starkest jurisprudence and pursue glia which is a two thousand and twelve k so they are relieved from that requirement smiled direct argues that well this is a different kind of immunity and and so the board can be an arm of the state for purposes of making an employment decision but not for performing its essential function but to accept supreme court's opinion in california retail versus might call your honor we would not i mean i'm trying to figure out trying to figure out if there are enough facts in the record to determine the nd prong of them i'd call because this is really a hoover case not a mid callen incidental case but to the extent that that this court has concerns that there's not enough facts and the record to determine active supervision we simply disagree  what we believe are our pieces of factual evidence that were central to the claims of the plaintiff and which provide that realistic assurance now and to me that that goes in line with what commuter transportation and all three of the cases i previously mentioned held which is that it is a munity from suit and that the immunity question should in fact this is just pouring in the attachment went to the recent amendment to the regulations right that's what you were talking about in your in your taxman's right yes your honor and i guess my question was aren't we really talking about a broader inquiry in this case and and to focus on just an amendment to the regulation seems like you might not be looking exactly at the right place at least that's that was my concern what's your response to that that's a good concern your honor and what i would say is that the court's review here is really of the statutory scheme itself and that is  alabama set up an antitrust review and i statutory scheme which this court can review deneuve and it is right in there in the alabama code in which the alabama legislature explicitly stated it intended to provide immunity to its state agencies to the board of dental exams examiners and explicitly cited north carolina dentals to answer your question you don't even really have to look at the transmission that the board sent to us by the services agency to show that the procedures that were in place were followed and that they those procedures themselves provide realistic assurance that the state of alabama intended to insulate this board from immunity and follow the procedures that it set up and so the transmission in the memo is sort of the conclusion of that procedure and but it's not it's not necessarily dispositive but but we attached it there because want to begin with the fact that this court lacks appellate jurisdiction over this appeal this court in myka suki tribes that the criteria that the supreme court has set forth for application of the collateral order doctrine to an appeal has to be stringently applied in every case and one of those criterion is was there a conclusive determination made then the jester could scor and i read your arguments and i saw you put a lot of effort into them and then i read footnote one in diverse power and i'm just having a hard time understanding how you can be making parker immunity judge there is no question that the th circuit in the line of cases culminating in diverse power says it is possible to have a collateral or doctrine of appeal but what this court has never held is that any and every ruling on a park or immunity question is automatically eligible for a park or for a collateral order doctor an appeal and in diverse power the decision on the motion to dismiss was made on a legal point as a matter of law never has this circuit and i'm unaware never has any court held that asked the motion to dismiss stay if there is a factual dispute that prevents the court from making a conclusive determination and the court says it's going to revisit it but nonetheless the conclusive determination prong should be being satisfied that simply is not the law but the difference you know this happens in qualified immunity kind of all the time right you can get a denial of qualified immunity on a motion to dismiss and then facts are developed and then you can have brought up a summary judgment and it can be litigated again and what was the difference here between that analogy well i think this win versus chambers county commission case from the supreme court says that if a an issue a ruling is expressly tentative it's not a conclusive determination for collateral or doctrine purposes and we've cited cases from the st rd and th circuit side believe all of which have held that an immunity determination that a motion to dismiss that goes off on a factual issue does not trigger the automatic appeal for purposes of a collateral order doctrine issue so the bottom line is we don't see how there can be a conclusive determination having been made and frankly it would make little sense from a systemic perspective to presume that it's been satisfied because as judge wilson alluded to a few minutes ago this case case comes up on a twelve basic standard and that leads me into my next argument which is the district court was plainly correct in saying that the active supervision prong of the mid cal analysis was not satisfied here they the plaintiffs are rather the defendant is bringing a motion to dismiss under the motion to pleaded that the any review that occurred by the state of alabama here was perfunctory ministerial and non substantive and the district court correctly said well that's the end of the matter and while the  court assumed without deciding that it could consider the extreme extrinsic evidence to which to board members referred a minute ago as the district court concluded and we would know as we argued in the district court that was not properly authenticated and cannot be considered but the district court said even if i consider it it doesn't get them anywhere because it shows that in fact the process that had been set up by the state of alabama was not followed in that or it was not completed no substantive review occurred because of the inexplicable conclusion by the legislative services agency staff or that there had been there was no anti competitive effect to the rule of course our complaint alleges repeatedly that there was an anti competitive effect and so that had to be taken as true which means there had to be a substantive review that did not occur and of course the district court didn't even address reserve the question of whether the legislative service agency staffer did not have the right to veto or modify meant that that person's analysis alone could satisfy the active supervision requirement does the united states  court said the inquiry is whether state officials quote have and exercise power and quote to review the particular acts it issue this is the question whether there's  a think what mr pate is arguing is that the fact that interview process is that is sufficient and it seems to me that you're arguing about whether the review actually occurred what is the proper inquiry there the proper inquiry is spelled out by the supreme court in the north carolina dental board case is that the mere fact that review is available is not sufficient there actually has to be an exercise as the supreme court said  you have to possess and exercise i think was the exact language and so the question is did they exercise it and here as the district court found even if you consider st of all  not perform a substantive review but even if you consider the extrinsic evidence it shows that in fact they did not conduct the substantive review all they did was say there was no anti competitive effect which regulation isn't this a broader question of whether the board is acting anti competitive lee and there's there's statutory requirements there's other regulations or supervision regulations which predate the amendment so why is the focus just on this particular amendment to the regulation well i think the focus has has been on that because that was sufficient for the district court to decide the case but judge you're exactly right the question is whether the board's conduct at large was actively supervised and we we don't think it was we certainly alleged that the cease and desist order that they sent was done without any review by the state so it's a broader analysis but i think as the district court found you don't really have to get beyond the question of the actual amendment to the rule because they plainly did not conduct any  provision of not of that and frankly the essence of the board members argument is you should take the stated its word because it created these procedures and this goes to judge prior's point a moment ago because you c to procedures you should assume that the state followed them and that would turn the entire analysis as spelled out in the line of cases culminating in north carolina dental board on its head i'll say that the argument by the board members that they're not subject to the active supervision requirement flies squarely in the face of the supreme court's express holding that when you have a board composed of active market participants such as you unquestionably have in this case you must satisfy the active supervision requirement and as i noted a minute ago the active supervision requirement as the supreme court said the question is whether the state's review mechanisms provide realistic assurance that the non sovereign actors anti competitive conduct promote state policy rather than merely the party's individual interests and judge corgan that goes to your point it's the overall conduct one aspect of which in this case was the implementation of the anti competitive through that as we allege in the complaint was squarely designed to frustrate the market innovation being put forward by dr leeds and similar dennis and smile direct club lastly let me just briefly touch on the point of about that we failed to avail ourselves of the issue of a pre decision rulemaking apparent that fact is not in the record and so should not be considered and nd of all that fact goes to a pre decisional issue which has nothing to do with the north carolina dental board and mid cal requirements of active supervision of the actual conduct you know the bottom line is we don't think there was a conclusive determination because this came up on twelve b six there will be an opportunity to read there will be an opportunity revisit it and as we scaring good morning your auditors and please the court i make a dollar a month behalf of the united states and the federal trade commission i'd like to address with your permission a few points on active supervision and active super vision is required here because the complaint challenges an allegedly at a competitive rule adopted and forced by a professional board that is controlled by market participants and the board has invoked the state actually to the district board our view is correctly applied the supreme court's decision in north carolina board of dental examiners by requiring both the clear articulation and active supervision process the alabama boards the board members and their argument that their rule should be treated as equivalent to state legislation and does not subject to either of those requirements is wrong if every day for a rule is swallow we believe impermissibly the supreme court's direction and dental examiners and here the board's argument is inconsistent with the supreme court's direction and at least two ways st it ignores the  the way this litigation and others like it set up your your countenancing and un warranted intrusion into state sovereignty that you're making the state provide justification to private parties for it's it's law making and it's regulatory making it's not require what do what about the federalism issue with respect to this scenario judge corrigan the that issue has been addressed repeatedly within the supreme court and the two parties have this out and most recently revisited a dental examiner broader supreme court directive all the c of competition and here we believe that it isn't intrusive and fact there is a  policy with respect to boards that are controlled by active participants who might act in their own self interest rather than acting to advance and implement a state articulated policy to displace that competition and therefore the is critical in order to determine whether or not when a state has delegated such regulatory powers to active participants they are implementing such a policy which allows for this type of a defense to an otherwise anti competitive conduct and that's why this needs to be followed and it has not been by the actions of the alabama board this is judge clark again again i don't mean to take too much time but i just before you get away with your five minutes i wanted to ask you about your you're the d o j is also involved in a appeal in a similar case before the th circuit there was argued in may direct versus battle and i read the opinion of judge wright below and i know that was just argued in may there's not been a decision but do you do you view those two cases as similar or that they should come out the same or that the reasoning should be the same as there overlap between those two cases or not well we even a more illustration of the lack of the active supervision test here the legislature did not at all and the legislative services agency did not and could not perform the substantive review practice and here as it gets according to play there's a loophole in the alabama review statute that allows the board rule to take effect without any supervision at all if the l s a merely find that there is no significant effect of competition and that's just the wrong focus notion that sending deposition notices and subpoenas to lawmakers and legislative services staff is not intrusive and is not essentially trying to peek under the hood of state sovereignty is just wrong and that is why the court in n c dental said the standard was realistic assurance and not real compliance right what what needs to happen here and what the state of alabama has in its statutory scheme is provide the realistic assurance to this court and to the district court that we are going to immunize our boards and at the same time make sure that they are actively supervised and that goes the point you're making before which is why are we focused so much on the singular transmission we're not we're focused on this court review of the statutory scheme and the transmission is merely proof that it happened and looking at the transmission which m just talked about and saying well it's obvious that it was not followed this that the other the only thing that i agree with mr lemke on is that the processes that the state of alabama put in place were not followed but they were followed by the board they weren't followed by a smile direct now mr lemke says that that is a fact that is outside the record and that is not true that is the judicially noticeable fact involving the publicly available minutes of the board of dental examiners smiler act was about to roll out a one billion dollars i p o and it couldn't be bothered to show up at one of the number one review mechanism put in place by the alabama legislature to tell the board that hey this might affect our business model well what they're what they're asking is for the court to just assume that not the court that the board should have just somehow known that that this  regulation would have expected its business model and that can't be the case the review mechanism that was put in place by the state of alabama with sufficient it provides realistic assurance to this court and smile failed to avail itself of the very rapid review mechanism that the state of alabama put in place and now it wants to come in through the back door and say but the board didn't say that there was any anticompetitive that you know why because they didn't show up to say that there was an anti competitive effect so i just find the notion that they now get to intrude on state sovereignty and depose people in the legislative services agency to be completely antithetical to the realistic a certain standard that we both agree should apply under north carolina dental because to do so would be to completely bend the whole notion that states should in fact be taken at their word when they pass an anti trust review scheme provided that they that was a case in which they were talking about you know bull munity undermine now but that court talked about that type of unity being a mere defense to liability not liability from and so that is completely different than parker immunity which this court has held in diverse power and other cases is immunity from suit and that's why we are here and that's why we have appealed from the motion to dismiss telling this court that there really isn't more factual discovery that needs to happen despite the impassioned pleas of learned counsel on the other side because it is a review of the statutory scheme it is a decision that realistic assessment has been provided and the bottom be reversed for its decision not to grant proper immunity to the board at this stage and if there is any other questions from the court i'm happy to answer them otherwise i would yield the balance of my time all right i think we have your