United States Court of Appeals 

for the Fifth Circuit 

No. 19-30796 

Louisiana Real Estate Appraisers Board, 

Plaintiff—Appellee, 

versus

United States Federal Trade Commission, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Middle District of Louisiana 

3:19-CV-214 

Before Jones, Elrod, and Higginson, Circuit Judges.

Edith H. Jones, Circuit Judge:

This is an appeal of a district court order staying administrative 

proceedings that were initiated by appellant the Federal Trade Commission1

against appellee the Louisiana Real Estate Appraisers Board (the “Board”) 

pursuant to the Federal Trade Commission Act. Because the district court 

1

 We refer to the FTC acting in its role as complaint counsel as the “FTC” and the 

FTC acting in its adjudicatory capacity as the “Commission.” 

United States Court of Appeals 

Fifth Circuit 

FILED 

October 2, 2020 

Lyle W. Cayce 

Clerk 

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2 

lacked jurisdiction, we vacate its stay order and remand with instructions to 

dismiss. 

I. BACKGROUND

The Board is a state agency tasked with licensing and regulating 

commercial and residential real estate appraisers and management 

companies in Louisiana. La. Stat. Ann. §§ 37:3395; 37:3415.21. Each of the 

Board’s ten members is appointed by the Governor and confirmed by the 

state senate, and members are removable by the Governor for cause. Id.

§ 37:3394. Of the ten members, eight must be “licensed as certified real 

estate appraisers.” Id. § 37:3394(B)(1)(c), (b). 

In 2010, Congress enacted the Dodd-Frank Wall Street Reform and 

Consumer Protection Act, which requires lenders to compensate fee 

appraisers “at a rate that is customary and reasonable for appraisal services 

performed in the market area of the property being appraised.” 

15 U.S.C. § 1639e(i)(1). In response, the Louisiana legislature amended its 

own law, the Appraisal Management Company Licensing and Regulation Act 

(the “AMC Act”), to require that appraisal rates be consistent with 

Section 1639e and its implementing regulations. See La. Stat. 

Ann. § 37:3415:15(A). The legislature also gave the Board the authority to 

“adopt any rules and regulations in accordance with the [Louisiana] 

Administrative Procedure Act necessary for the enforcement of [the AMC 

Act].” Id. § 37:3415.21. 

Accordingly, the Board adopted Rule 31101, requiring that licensees 

“compensate fee appraisers at a rate that is customary and reasonable for 

appraisal services performed in the market area of the property being 

appraised and as prescribed by La. Stat. Ann. § 34:3415.15(A).” La. Admin. 

Code tit. 46 § 31101. Unlike the federal regulations, which instruct that 

appraisal fees are “presumptively” customary and reasonable if they meet 

certain market conditions, Rule 31101 prescribed its own methods by which 

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3 

a licensed appraisal management company can establish that a rate is 

customary and reasonable. Compare id., with 12 C.F.R. § 226.42(f)(2), (3). 

In 2017, the FTC filed an administrative complaint against the Board, 

asserting the Board had engaged in “concerted action that unreasonably 

restrains trade” in violation of the FTC Act’s prohibition on unfair methods 

of competition. The complaint alleged Rule 31101 “unlawfully restrains 

competition on its face by prohibiting [appraisal management companies] 

from arriving at an appraisal fee through the operation of the free market.” 

The FTC also alleged that the Board’s enforcement of Rule 31101 unlawfully 

restrained price competition. In response, the Board denied the FTC’s 

allegations and argued that it was entitled to immunity from antitrust liability 

under the state action doctrine. 

Following the FTC’s initiation of proceedings against the Board, the 

Governor of Louisiana issued an executive order purporting to enhance state 

oversight of the Board. The Board also revised Rule 31101 in accordance with 

the Governor’s executive order. Based on those changes, the Board moved 

to dismiss the FTC’s complaint in the administrative proceedings, arguing 

that the executive order and revision of Rule 31101 mooted the FTC’s claims. 

The same day, the FTC cross-moved for summary judgment on the Board’s 

state action immunity defense. On April 10, 2018, the Commission denied 

the Board’s motion and granted the FTC’s, rejecting the Board’s assertion 

of state action immunity. 

The Commission has not issued a final cease and desist order, but the 

Board has twice challenged the April 10, 2018 order in federal court to claim 

immunity. First, in late April, the Board petitioned this court directly for 

review of the Commission’s order. In a published opinion, this court 

dismissed the petition for lack of jurisdiction. La. Real Estate Appraisers Bd. 

v. F.T.C., 917 F.3d 389, 393 (5th Cir. 2019) (LREAB I). Second, and relevant 

here, the day after this court denied the Board’s petition for en banc

rehearing, the Board sued the FTC in a federal district court, alleging the 

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Commission’s April 10, 2018 order violated the Administrative Procedure 

Act. The Board also moved to stay the ongoing Commission proceedings. 

The district court granted the Board’s motion and stayed the Commission 

proceedings pending the resolution of the Board’s APA claim. On appeal, 

the FTC principally contends that the district court lacked jurisdiction. 

II. DISCUSSION

We review questions of jurisdiction de novo, with the “burden of 

establishing federal jurisdiction rest[ing] on the party seeking the federal 

forum.” Gonzalez v. Limon, 926 F.3d 186, 188 (5th Cir. 2019).

The FTC contends the district court lacked jurisdiction over the 

Board’s lawsuit because the FTC Act vests exclusive jurisdiction to review 

challenges to Commission proceedings in the courts of appeals. 

15 U.S.C. § 45(d) (“Upon the filing of the record with it the jurisdiction of 

the court of appeals of the Unites States to affirm, enforce, modify, or set 

aside orders of the Commission shall be exclusive.”). The Board counters 

that the district court had jurisdiction pursuant to the APA’s default review 

provision, 5 U.S.C. § 704, regardless of the FTC Act’s judicial review 

scheme. We agree with the FTC that the district court lacked jurisdiction 

but for a different reason: Even if the FTC Act does not preclude Section 704 

review—an issue we need not address—the Board fails to meet Section 704’s 

jurisdictional prerequisites.2

Section 704 of the APA permits non-statutory judicial review of 

certain “final agency action.” 5 U.S.C. § 704 (“Agency action made 

reviewable by statute and final agency action for which there is no other 

2

 The Board also argues we lack jurisdiction over the merits of the FTC’s appeal, 

but because the district court lacked jurisdiction, we do not address the merits. See 

Arizonians for Official English v. Arizona, 520 U.S. 43, 73, 117 S. Ct. 1055, 1072 (1997) 

(recognizing that when a district court “lack[s] jurisdiction, we have jurisdiction on appeal, 

not of the merits but merely for the purpose of correcting the error of the lower court in 

entertaining the [matter]”). 

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adequate remedy in a court are subject to judicial review.”). Absent a 

showing of finality, a district court lacks jurisdiction to review APA 

challenges to administrative proceedings. Am. Airlines, Inc. v. Herman, 

176 F.3d 283, 287 (5th Cir. 1999). Here, the Board relies on the collateral 

order doctrine as an expansion of the finality requirement of Section 704. 

Because the April 10, 2018 order meets the doctrine’s predicates, the Board 

contends, the order should be treated as final and subject to challenge under 

the APA. The FTC disagrees with this approach, and so do we. 

The collateral order doctrine is a judicially created exception to the 

“final decision” requirement of 28 U.S.C. § 1291, which governs appellate 

jurisdiction over appeals of final district court decisions. See Exxon Chemicals 

Am. v. Chao, 298 F.3d 464, 469 (5th Cir. 2002). The doctrine provides that 

an interlocutory decision is immediately appealable “as a final decision under 

§ 1291 if it (1) conclusively determines the disputed question; (2) resolves an 

important issue completely separate from the merits of the action; and (3) is 

effectively unreviewable on appeal from a final judgment.” Acoustic Sys., Inc. 

v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000). This court has 

recognized that “the requirement of ‘final agency action’ in [Section 704]” 

is analogous “to the final judgment requirement of 28 U.S.C. § 1291.” Am. 

Airlines, 176 F.3d at 288; see also LREAB I, 917 F.3d at 392 (“[C]ourts have 

recognized that the [APA’s] ‘final agency action’ requirement is analogous 

to § 1291’s ‘final decision’ requirement.”).3 We assume arguendo that 

equating finality under Sections 1291 and 704 imports the collateral order 

3

 Other circuits concur. See, e.g., Chehazeh v. Attorney Gen., 666 F.3d 118, 135 (3d 

Cir. 2012) (“A provision analogous to Section 704’s ‘final agency action’ requirement is 

found in 28 U.S.C. § 1291, which permits appellate review only of ‘final decisions’ of a 

district court.”); DRG Funding Corp. v. Sec’y of Hous. & Urban Dev., 76 F.3d 1212, 1220 

(D.C. Cir. 1996) (Ginsburg, J., concurring) (“Our analysis of the finality requirement 

imposed by the APA is properly informed by our analysis of that requirement in § 1291.”). 

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doctrine into the Section 704 analysis.4 Nevertheless, the Board fails to show 

that the Commission’s interlocutory denial of state action immunity in this 

case meets the doctrine’s requirements. As to the first prong of the doctrine, 

there is no dispute that the Commission’s rejection of state action immunity 

was “conclusive.” Problems arise concerning the second prong, whether the 

issue of state action immunity is “completely separate from the merits” of 

the FTC’s antitrust action, and the third prong, whether the decision is 

“effectively unreviewable on appeal.” 

The parties square off in differing interpretations of our case law that 

has applied the collateral order doctrine to denials of claims of state action 

immunity. To begin our analysis, however, the background of the substantive 

issues must be briefly recapitulated. “The state action doctrine was first 

espoused by the Supreme Court in Parker v. Brown, 317 U.S. 341, 

63 S. Ct. 307 [] (1943) as an immunity for state regulatory programs from 

antitrust claims.” Acoustic Systems, 207 F.3d at 292. In Parker, the Court 

considered whether a state statute that authorized state officials to issue 

regulations restricting certain agricultural competition violated antitrust law. 

317 U.S. at 350–51, 63 S. Ct. at 313–14. The Court found “nothing in the 

language of the Sherman Act or in its history which suggests that its purpose 

was to restrain a state or its officers or agents from activities directed by its 

legislature.” Id. Accordingly, the Court concluded that state regulatory 

programs cannot violate the Sherman Act because the “Act makes no 

mention of the state as such, and gives no hint that it was intended to restrain 

state action or official action directed by a state.”5 Id. at 351. 

4

 Note that this is a significant theoretical stretch, as it (a) means the appeal to the 

district court of an interlocutory order under the APA, which normally requires “final” 

agency action, and (b) supersedes the FTC Act’s direction of appeals to the courts of 

appeals. 

5

 The state action analysis applies to FTC actions as well as to federal antitrust 

litigation. See F.T.C. v. Ticor Title Ins. Co., 504 U.S. 621, 635, 112 S. Ct. 2169, 2177 (1992) 

(applying the state action analysis in a case arising only under the FTC Act). We also note 

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“In subsequent cases, the Court extended the state action doctrine to 

cover, under certain circumstances, acts by private parties that stem from 

state power or authority . . . as well as acts by political subdivisions, cities, 

and counties.” Martin v. Memorial Hosp. at Gulfport, 86 F.3d 1391, 1397 (5th 

Cir. 1996) (citing Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 

445 U.S. 97, 100 S. Ct. 937 (1980); Town of Hallie v. City of Eau Claire, 

471 U.S. 34, 105 S. Ct. 1713 (1985)). But immunity for such actors is not 

automatic because they are not sovereign.6 Id. Rather, to invoke state action 

immunity, private parties must meet two requirements set forth in Midcal. 

First, “the challenged restraint must be one clearly articulated and 

affirmatively expressed as state policy.” Patrick v. Burget, 486 U.S. 94, 100, 

108 S. Ct. 1658, 1663 (1998) (quoting Midcal, 445 U.S. at 105, 

100 S. Ct. at 943). Second, “the anticompetitive conduct must be actively 

supervised by the state itself.” Id. Municipalities and other political 

subdivisions need only satisfy the first Midcal prong; they need not show 

active supervision. Town of Hallie, 471 U.S. at 45–46, 105 S. Ct. at 1720. 

Following this framework, this court has twice addressed whether the 

collateral order doctrine authorizes interlocutory appeals from a district 

court’s denial of state action immunity. In Martin v. Memorial Hospital at 

Gulfport, 86 F.3d 1391, 1396–97 (5th Cir. 1996), this court held that “the 

denial of a state or state entity’s motion for dismissal or summary judgment 

on the ground of state action immunity” is immediately appealable. The 

that, although “the state action doctrine is often labeled an immunity, that term is actually 

a misnomer because the doctrine is but a recognition of the limited reach of the Sherman 

Act . . . .” Acoustic Sys., 207 F.3d at 292 n.3. Consistent with our prior opinions, however, 

we continue to refer to the doctrine as one of immunity. See generally Veritext Corp. v. 

Bonin, 901 F.3d 287 (5th Cir 2018). 

6

 “For purposes of Parker, a nonsovereign actor is one whose conduct does not 

automatically qualify as that of the sovereign State itself.” N.C. St. Bd. of Dental Examiners 

v. F.T.C., 574 U.S. 494, 505, 135 S. Ct. 1101, 1111 (2015). Pardon the circularity of this 

direct quotation. 

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defendant was a municipal hospital, which this court ultimately held immune 

under the state action doctrine. Drawing an analogy with principles that 

animate interlocutory appeals of government officials’ claims of absolute or 

qualified immunity, or the Eleventh Amendment, this court reasoned that 

making a “state or state entity” go to trial to claim immunity renders the 

defense effectively unreviewable on appeal. Id. at 1396–97. 

In Acoustic Systems, however, we clarified that Martin’s extension of 

the collateral order doctrine was limited “to the denial of a claim of state 

action immunity ‘to the extent that it turns on whether a municipality or 

subdivision [of the state] acted pursuant to a clearly articulated and 

affirmatively expressed state policy.’” Acoustic Systems, Inc. v. Wenger, 

207 F.3d 287, 291 (5th Cir. 2000) (quoting Martin, 86 F.3d at 1397). The 

defendant in Acoustic Systems was a private party whose status did not 

implicate the concerns underlying other immunity doctrines. Therefore, 

although the defendant could invoke the state action doctrine as a defense to 

liability, it could not obtain interlocutory review of the issue to avoid suit. Id.

at 293–94. Likewise, because a defense to liability is effectively reviewable 

on direct appeal, the denial of state action immunity to a private party “is not 

an immediately reviewable collateral order.” Id. 

Neither Martin nor Acoustic Systems fits this case. In neither of those 

cases was the collateral order doctrine being invoked as an appendage to APA 

Section 704, thus neither case involved interlocutory interference with an 

ongoing federal regulatory proceeding. Further, in each case, applying the 

Supreme Court’s test for state action immunity was relatively 

straightforward: Martin rested on Town of Hallie, 471 U.S. at 45-46, 

105 S. Ct. at 1720 (holding that municipal entities, though not sovereign, may 

avail themselves of the immunity if their actions spring from governing state 

authority); Wenger, the Acoustic Systems defendant, could only rely on 

private party immunity pursuant to Midcal’s two-part test. 

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Here, the jurisdictional issue is more complex, as it concerns both an 

action by the FTC rather than private litigation, and it involves the Supreme 

Court’s comparatively recent decision in North Carolina State Board of 

Dental Examiners v. F.T.C., 574 U.S. 494, 135 S. Ct. 1101 (2015). 

Taking the Supreme Court case first, apprehension over placing 

private practitioners in regulatory agencies constituted like this Board 

animated Dental Examiner’s application of the Midcal test. The Court 

explained that “[l]imits on state-action immunity are most essential when the 

State seeks to delegate its regulatory power to active market participants, for 

established ethical standards may blend with private anticompetitive motives 

in a way difficult even for market participants to discern.” Id. at 504. Hence, 

it was necessary to apply Midcal’s active supervision prong, which “demands 

‘realistic assurance that a private party’s anticompetitive conduct promotes 

state policy, rather than merely the party’s individual interests.’” Id. at 507 

(quoting Patrick, 486 U.S. at 101, 108 S. Ct. at 1663). 

The Board nevertheless argues that it is entitled to immunity from suit 

as a state agency, not a “purely private part[y].” But the Court has rejected 

such a “purely formalistic inquiry.” See Town of Hallie, 471 U.S. at 39, 

105 S. Ct. at 1716. Instead, in Dental Examiners, the Court distinguished 

“specialized boards dominated by active market participants” from 

“prototypical state agencies” because of the private incentives inherent in 

their structure. Id. at 511. Such “agencies controlled by market participants 

are more similar to private trade associations vested by States with regulatory 

authority . . . .” Id. Thus, while the Board may rightly defend its entitlement 

to state action immunity, it invokes the state action doctrine as a private 

party. See also S.C. St. Bd. of Dentistry v. F.T.C., 455 F.3d 436, 439 (4th Cir. 

2006); SmileDirectClub, LLC v. Battle, No. 19-12227, 2020 WL 4590098, at 

*11 (11th Cir. 2020) (Jordan, J., concurring) (“Even if we assume that a state 

is able to immediately appeal the denial of Parker immunity, an interlocutory 

appeal should not be available to private parties like the members of the 

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Georgia Board of Dentistry, whose status does not implicate sovereignty 

concerns.”). 

As a private party, the policy imperatives behind relieving the Board 

from suit as well as liability do not apply. See Acoustic Systems, 207 F.3d at 

292–94. To summarize, the collateral order doctrine must be deployed 

narrowly and “with skepticism,” and state action immunity, in particular, 

though it may extend to private parties, exists principally to secure the full 

scope of political activity for state actors. Id. Dental Examiners has intensified 

our skepticism of allowing an interlocutory appeal. This court aptly stated, 

in reference to the state action “immunity” doctrine, that “[t]he price of the 

shorthand of using similar labels for distinct concepts is the risk of erroneous 

migrations of principles.” Surgical Care Center of Hammond, LC v. Hospital 

Serv. Dist., 171 F.3d 231, 234 (5th Cir. 1999) (en banc). 

Another reason for rejecting the Board’s quest for collateral review is 

that this regulatory case was initiated by the FTC. Even if the Board were a 

sovereign actor, it is paradigmatic that “[s]tates retain no sovereign 

immunity as against the Federal Government.” West Virginia v. United 

States, 479 U.S. 305, 312 n.4, 107 S. Ct. 702, 707 n.4 (1987); see also Bd. of 

Dentistry, 455 F.3d at 447 (rejecting collateral order appeal of a Parker

immunity claim in a suit brought by the federal government; “because such 

suits do not offend the dignity of a state, sovereign immunity is no defense to 

such an action”). 

In sum, case law does not support jurisdiction based on the collateral 

order doctrine as applied through Section 704 of the APA. Specifically, the 

second and third prongs of the doctrine are not satisfied here. Parker 

immunity concerns the boundaries of federal antitrust law set against the 

principles of federalism and the states’ authority over their economies. This 

court explained, “[w]hile thus a convenient shorthand, ‘Parker immunity’ is 

more accurately a strict standard for locating the reach of the Sherman Act 

than the judicial creation of a defense to liability for its violation.” Surgical 

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Care Center, 171 F.3d at 234. In this case, where the FTC challenges aspects 

of rate setting by the Board as restraining price competition, and the FTC 

rejects the sufficiency of overarching governmental supervision, an 

interlocutory ruling on state action immunity by this court would inevitably 

affect the question of liability. The issues relevant to immunity in this case 

pertain to the reach of the Sherman Act, consequently, a judicial decision at 

this point would not resolve an issue “completely separate from the merits 

of the action,” as required by the second prong of the collateral order 

doctrine. Acoustic Systems, 207 F.3d at 290. Nor, obviously, is the state action 

immunity issue “effectively unreviewable on appeal from a final judgment.” 

Id.;

7 see N.C. State Bd. of Dental Exam’rs, 717 F.3d 359, 366 (4th Cir. 2013) 

(considering the applicability of state action immunity in a petition for 

review), aff’d, 574 U.S. 494 (2015). 

For the foregoing reasons, the April 10, 2018 order does not constitute 

final agency action under Section 704, and the collateral order doctrine does 

not apply. Consequently, the district court lacked jurisdiction over the 

Board’s lawsuit.

7

 The Board relies perfunctorily on a finality test articulated in Bennett v. Spear, 

520 U.S. 154, 117 S. Ct. 1154 (1997). Bennett pronounced two conditions that “must be 

satisfied for an agency action to be ‘final’”: (1) the action must “mark the consummation 

of the agency’s decision making process,” and (2) the action must be that “by which rights 

or obligations have been determined or from which legal consequences will flow.” 

520 U.S. at 177–78, 117 S. Ct. at 1168. The Board argues that the April 10, 2018 order is 

“independently reviewable as a ‘final’ order under the test articulated in Bennett” because 

the order “reflects a consummation of the decision making process” from which “legal 

consequences will flow, including [the Board’s] legal right to immunity from trial.” This 

is incorrect. Not only is the Board not entitled to immunity from suit, but the 

Commission’s denial of state action immunity will affect the Board adversely only if the 

Commission ultimately finds the Board liable for antitrust violations. Put differently, the 

April 10, 2018 order “does not itself adversely affect [the Board] but only affects [its] rights 

adversely on the contingency of future administrative action.” Am. Airlines, 176 F.3d at 

288 (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130, 59 S. Ct. 754, 757 

(1939)). The April 10, 2018 order does not constitute final agency action under Bennett. 

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III. CONCLUSION

 We VACATE the district court’s stay order and REMAND with 

instructions to DISMISS the Board’s lawsuit for lack of jurisdiction.

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