UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50112
ACOUSTIC SYSTEMS INC,
Plaintiff - Appellee,
VERSUS
WENGER CORPORATION; STEVE BRIGHT,
Defendants - Appellants.
Appeal from the United States District Court
for the Western District of Texas
April 3, 2000
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Acoustic Systems, Inc. (“Acoustic”) brought this antitrust
suit, 15 U.S.C. § 1, et seq., against the defendants, Wenger
Corporation and its employee Steve Bright (collectively “Wenger”)
in district court. Wenger moved unsuccessfully for summary
judgment upon both the state action and the Noerr-Pennington
doctrines and appealed. We dismiss the appeal for lack of
appellate jurisdiction. The denial of a summary judgment motion
based upon the Noerr-Pennington doctrine is not a collateral order
within this court’s appellate jurisdiction. The denial of a
summary judgment motion premised upon the state action doctrine
asserted by a private defendant is not a collateral order within
this court’s appellate jurisdiction.
1
I. FACTS and PROCEDURAL HISTORY
Wenger and Acoustic competitively manufacture and sell modular
music practice rooms to schools, universities, and other entities.
Wenger at one time was the sole manufacturer of modular music
practice rooms. Acoustic is a relative newcomer to the market.
Acoustic alleges that Wenger has endeavored to protect its 90
percent share of the modular music practice room market by engaging
in anticompetitive conduct. Acoustic alleges that Wenger’s near
monopoly enables it to persuade architects and builders to use
specifications calling for the unique features of Wenger modular
practice rooms. Thus, the specification process is an extensive
barrier to Acoustic’s entry into the market. Acoustic also alleges
that Wenger interferes with Acoustic’s existing and prospective
contractual relations by false disparagement of Acoustic’s products
and false representations that Acoustic has infringed upon a Wenger
patent. Wenger allegedly focuses its anticompetitive conduct upon
public and private universities and public school districts, as
well as at private architects and general contractors in charge of
public school construction projects.
Acoustic filed suit in May 1997 alleging that Wenger had
engaged in unfair and anticompetitive business practices against
Acoustic including monopolization, predatory pricing and price
discrimination, per se tying and restraint of trade, use of
fraudulent patent, patent misuse, tortious interference with
contract, commercial defamation, and false description and unfair
2
competition.1
Pursuant to a Wenger motion to dismiss, the district court
dismissed two patent related claims (Counts IV and V), and they
form no part of this appeal. In August 1998 Wenger moved for
summary judgment dismissal of all 16 claims then pending: five
relating to antitrust under the Sherman and Clayton Acts, one for
false patent marking, one for violation of Texas public procurement
laws (Texas Education Code § 44.031 et seq.), and nine for business
torts.
The district court granted summary judgment in favor of Wenger
dismissing the state procurement law claim but denied Wenger’s
summary judgment motion as to the remaining 15 claims. On January
19, 1999, Wenger timely appealed from the partial denial of summary
judgment asserting the collateral order exception to the final
judgment rule on grounds that the summary judgment motion was based
on the state action and Noerr-Pennington doctrines. Acoustic
1
Acoustic’s amended complaint contained the following counts
of anticompetitive conduct and business torts: Count I (attempted
monopolization, 15 U.S.C. § 2 (Sherman Act)); Count II (predatory
pricing and price discrimination, 15 U.S.C. §§ 22(A) & 13(A)
(Clayton Act)); Count III (per se tying and restraint of trade, 15
U.S.C. § 1 (Sherman Act)); Count IV (declaratory judgment of patent
invalidity); Count V (patent misuse); Count VI (false patent
marking, 35 U.S.C. § 292); Count VII (attempted monopolization --
Walker Process antitrust, 15 U.S.C. § 2 (Sherman Act)); Count VIII
(attempted monopolization -- Kobe antitrust, 15 U.S.C. § 2 (Sherman
Act)); Count IX (tortious interference with contractual relations);
Count X (tortious interference with prospective business
relations); Count XI (commercial defamation); Count XII (per se
trade slander and libel); Count XIII (false description and unfair
competition, 15 U.S.C. § 1125); Count XIV (violation of Texas
Public School Contract Statute); Count XV (common law unfair
competition); Count XVI (injury to business reputation, Tex. Bus.
& Com. Code § 16.29); Count XVII (unfair practices, Tex. Bus. &
Com. Code § 15.05); and Count XVIII (conspiracy).
3
contends that we lack appellate jurisdiction to consider this
appeal because, in the context of this case involving a private
defendant, neither the state action doctrine nor the Noerr-
Pennington doctrine operates to confer immediate appealability on
the interlocutory order issued by the district court.
II. ANALYSIS
Before proceeding further, we must determine whether we have
appellate jurisdiction. See Simmons v. Willcox, 911 F.2d 1077,
1080 (5th Cir. 1990) (citing Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987)). As the appellant, Wenger bears the burden of
establishing this court’s appellate jurisdiction over its appeal.
Prewitt v. City of Greenville, 161 F.3d 296, 298 (5th Cir.
1998)(citing Gonzales v. Texas Employment Comm’n, 563 F.2d 776, 777
(5th Cir. 1977)).
Title 28 U.S.C. § 1291 provides for appeal from “final
decisions of the district courts.” Under that provision, an appeal
may not be taken “‘from any decision which is tentative, informal,
or incomplete,’ as well as from any ‘fully consummated decisions,
where they are but steps towards final judgment in which they will
merge.’” Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 142-43 (1993)(quoting Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546 (1949)). Because the
denial of a summary judgment motion is not a final decision of the
district court, the order presently under review by this court is
interlocutory. See In re Corrugated Container Antitrust
Litigation, 694 F.2d 1041, 1042 (5th Cir. 1983); 10A Charles Alan
4
Wright et al., Federal Practice and Procedure § 2715 (3rd ed. 1998).
Under the collateral order doctrine, however, an interlocutory
district court 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. See Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978). If the order at
issue fails to satisfy any one of these requirements, it is not an
appealable collateral order. See Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 276 (1988).
Wenger asserts that an order denying a summary judgment motion
premised upon either the state action or the Noerr-Pennington
doctrine is immediately appealable under the collateral order
doctrine. We conclude, however, that, while both doctrines afford
a defense to liability, the state action doctrine does not provide
an immunity to suit to a private party, and the Noerr-Pennington
doctrine does not provide anyone a right not to stand trial.
Consequently, the district court’s denial of Wenger’s motion for
summary judgment is not an appealable collateral order.2
2
Because we conclude that the district court’s order denying
summary judgment is not an immediately appealable collateral order,
it is neither necessary nor appropriate to decide whether exclusive
appellate jurisdiction would otherwise lie in the Federal Circuit
under 28 U.S.C. § 1295 due to Acoustic’s Walker Process, Kobe
antitrust, and false patent marking claims. See Scherbatskoy v.
Halliburton Co., 125 F.3d 288, 290-91 (5th Cir. 1997)(under § 1295
the Federal Circuit has exclusive jurisdiction to review a district
court’s final decision if that court’s jurisdiction was based in
whole or in part on 28 U.S.C. 1338(a), i.e., where the complaint
includes allegations that federal patent law creates the cause of
5
1. State Action Doctrine
In Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391 (5th
Cir. 1996), this court recognized that an appeal by a municipal-
state subdivision hospital on the issue of whether it acted
pursuant to a clearly articulated and affirmatively expressed
policy can be taken immediately under the collateral order
doctrine. See 86 F.3d at 1394; see also TEC Cogeneration Inc. v.
Florida Power & Light Co., 76 F.3d 1560, 1564 n.1 (11th Cir.),
modified, 86 F.3d 1028 (11th Cir. 1996)(denial of a motion for
summary judgment brought by a public utility under the state action
immunity doctrine is immediately appealable under the collateral
order doctrine); Askew v. DCH Regional Health Care Authority, 995
F.2d 1033, 1036 (11th Cir.), cert. denied, 510 U.S. 1012 (1993)
(same result where defendant moving for summary judgment is a
public hospital); Commuter Transp. Systems, Inc. v. Hillsborough
County Aviation Authority, 801 F.2d 1286, 1289 (11th Cir. 1986)(same
result where defendant is public airport authority); but see Huron
Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563, 567-68 (6th
Cir.), cert. denied, 479 U.S. 885 (1986) (denial of state action
antitrust exemption to state officials is not an appealable
action or federal patent law is a necessary element of the claim);
Natec, Inc. v. Deter Co., 28 F.3d 28 (5th Cir. 1994)(same). In
Scherbatskoy and Natec, Inc., we transferred to the Federal Circuit
appeals from such final decisions after concluding that the
district courts had exercised subject matter jurisdiction under §
1338(a). See 125 F.3d at 291; 28 F.3d at 29. In the instant case,
however, there is neither a final decision nor an immediately
appealable collateral order. Thus we do not enjoy even the
preliminary jurisdiction to determine whether the district court
operated under its grant of jurisdiction in § 1338(a), and,
therefore, we do not pass upon the applicability of § 1295.
6
collateral order because state action questions did not reflect an
entitlement to avoid the burdens of trial, could be preserved for
review on appeal from a final judgment, and were bound up with the
merits).
In Martin, a nephrologist brought an antitrust action against
a public hospital, owned and operated by a municipality and a state
subdivision hospital district, and against the hospital’s board of
trustees to enjoin the enforcement of the hospital’s contract with
the medical supervisor of its End Stage Renal Disease facility.
See 86 F.3d at 1392-93. We concluded that the public hospital’s
state action immunity claim entailed a right not to bear the burden
of the suit such that, regardless of the outcome, denial of the
right would be effectively unreviewable after trial. See id. at
1396. We also concluded that the interlocutory order in Martin
satisfied the remaining two criteria of the collateral order
doctrine: it conclusively determined the disputed question and that
question involved a claim of right separable from, and collateral
to, rights asserted in the action. See id. at 1396-97. The
express holding of Martin limited extension of the collateral order
doctrine to the denial of a claim of state action immunity “to the
extent that it turns on whether a municipality or subdivision acted
pursuant to a clearly articulated and affirmatively expressed state
policy.” Id. at 1397 (emphasis added).
Wenger argues that a private party seeking immunity from
antitrust suit and liability under the state action doctrine should
also be permitted to appeal immediately from a denial of summary
7
judgment on these issues within the collateral order exception.
Wenger has not cited, and we are not aware of, any decision to this
effect.
In determining whether to expand the collateral order
exception to include the present case, we are mindful of the
Supreme Court’s admonition that it is but “a narrow class of
collateral orders which do not meet this [traditional] definition
of finality, but which are nevertheless immediately appealable
under § 1291 . . . .” Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 712 (1996). Moreover, the Supreme Court has repeatedly
stressed that the “narrow” exception should stay that way and never
be allowed to swallow § 1291's general rule of finality. See
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994). Indeed, this court has stated that “the collateral order
doctrine is not to be applied liberally. Rather, the doctrine is
extraordinarily limited in its application.” Ozee v. American
Council on Gift Annuities, Inc., 110 F.3d 1082, 1091 (5th Cir.),
vacated on other grounds, 522 U.S. 1011 (1997); see also In re
Corrugated Container Antitrust Litigation, 694 F.2d at 1042-43
(citing and quoting North American Acceptance Corp. Securities
Cases v. Arnall, Golden & Gregory, 593 F.2d 642, 645 (5th Cir.),
cert. denied, 444 U.S. 956 (1979) (“This Court has repeatedly
stressed the extraordinarily limited nature of the ‘collateral
order’ doctrine: ‘Because of the problems of piecemeal review, and
because courts are burdened beyond measure, we must be parsimonious
in our analysis of appealability. . . . It should simply be a
8
strict application of Cohen. In the great majority of cases Cohen
will lead the court to correctly conclude that an interlocutory
order is not directly appealable.’”)).
“[W]hen we assess whether interlocutory review is appropriate,
‘[t]he critical question . . . is whether the essence of the
claimed right is a right not to stand trial.’” Shanks v.
AlliedSignal, Inc., 169 F.3d 988, 991-92 (5th Cir. 1999)(citing and
quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988)). The
Supreme Court has “acknowledged that virtually every right that
could be enforced appropriately by pretrial dismissal might loosely
be described as conferring a right not to stand trial.” Digital
Equip. Corp., 511 U.S. at 873. Therefore, “[section] 1291 requires
courts of appeals to view claims of a ‘right not to be tried’ with
skepticism, if not a jaundiced eye.” Id.
Applying the foregoing precepts, we conclude that the state
action doctrine does not immunize private defendants from suit and
that the collateral order doctrine does not confer appellate
jurisdiction over this appeal. The state action doctrine was first
espoused by the Supreme Court in Parker v. Brown, 317 U.S. 341
(1943), as an immunity for state regulatory programs from antitrust
claims.3 In Parker, the Court considered the legal effect of the
3
Though 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 which
does “not undertak[e] to prohibit a sovereign state from imposing
an anticompetitive restraint as an act of government.” Martin, 86
F.3d at 1395 (citing Parker v. Brown, 317 U.S. 341, 352 (1942));
see also Surgical Care Center of Hammond, L.C. v. Hospital Serv.
Dist. No. 1 Of Tangipahoa Parish, 171 F.3d 231, 234 (5th Cir.
1999)(en banc)(“‘Parker immunity’ is more accurately a strict
9
California Agricultural Prorate Act which authorized state
officials to issue regulations restricting competition among raisin
producers and setting prices in distribution to packers. See 317
U.S. at 346. The marketing program implemented under the Act
seriously restricted the freedom of raisin producers to sell their
crops in interstate commerce, and the program was challenged under
the Sherman Act. See id. at 350. The Supreme 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. at 350-51. The
Court concluded that under our federal system of government and out
of concerns for state sovereignty, state regulatory programs cannot
violate “[t]he 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.” Id.
at 351.
“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.” Martin, 86 F.3d
at 1397 (citing California Retail Liquor Dealers Ass’n v. Midcal
Aluminum, Inc., 445 U.S. 97 (1980)). To ensure that private
parties could claim state action immunity from antitrust liability
only when their anticompetitive acts were truly the product of
state regulation, the Supreme Court established a rigorous two-
standard for locating the reach of the Sherman Act than the
judicial creation of a defense to liability for its violation.”).
10
pronged test to determine whether the private party conduct should
be deemed state action and thus shielded from the antitrust laws:
“[f]irst, the challenged restraint must be one clearly articulated
and affirmatively expressed as state policy[; and s]econd, the
anticompetitive conduct must be actively supervised by the state
itself.” Patrick v. Burget, 486 U.S. 94, 100, reh’g denied, 487
U.S. 1243 (1988) (citing and quoting Midcal Aluminum, 445 U.S. at
105)(in turn quoting City of Lafayette v. Louisiana Power & Light
Co., 435 U.S. 389, 410 (1978)(internal quotation marks omitted)).
On the other hand, municipalities and other political
subdivisions, while they are not automatically immune under Parker
because they are not sovereign, see Town of Hallie v. City of Eau
Claire, 471 U.S. 34, 38 (1985), are entitled to immunity when they
act pursuant to a clearly articulated and affirmatively expressed
state policy displacing competition. See id. at 45-46.
Municipalities and other political subdivisions are not required to
meet the second Midcal prong of active state supervision applicable
to private parties seeking the shelter of state action immunity.
See id. at 46-47.
In Martin, we concluded that the state action doctrine offered
the public hospital defendant an immunity from suit after comparing
it to claims by public officials to absolute and qualified immunity
and to claims by states to Eleventh Amendment immunity. See
Martin, 86 F.3d at 1395 (citing Nixon v. Fitzgerald, 457 U.S. 731
(1982)(absolute immunity); Mitchell v. Forsyth, 472 U.S. 511
(1985)(qualified immunity); and Puerto Rico Aqueduct and Sewer
11
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993)(Eleventh
Amendment immunity)). Common to Nixon, Mitchell, and Puerto Rico
Aqueduct were concerns that public defendants would be subjected to
the costs and general consequences associated with discovery and
trial. Specifically, those concerns included (1) the indignity of
subjecting a state to the coercive process of judicial tribunals at
the instance of private parties; (2) the adverse impact on the
public interest that would result when governmental officials fail
to perform their duties with independence and without fear of
consequences unless clearly established rights are implicated; and
(3) the general costs of subjecting officials to the risks of
trial, such as distraction from governmental duties, inhibition of
discretionary action, deterrence of able people from qualified
service, and the disruptive impact upon government posed by such
pretrial matters as discovery. See id. at 1395-96. Because of
these concerns, the Supreme Court in Harlow v. Fitzgerald, 457 U.S.
800 (1982), refashioned the qualified immunity doctrine “to permit
the resolution of many insubstantial claims on summary judgment and
to avoid subjecting government officials either to the costs of
trial or to the burdens of broad-reaching discovery in cases where
the legal norms the officials are alleged to have violated were not
clearly established at the time. The entitlement is an immunity
from suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is permitted to
go to trial.” Id. at 1396 (citing Mitchell, 472 U.S. at 527).
Because state action immunity was premised upon the Parker
12
Court’s finding that “nothing in the language of the Sherman Act or
in its history [ ] suggests that its purpose was to restrain a
state or its officers or agents from activities directed by its
legislature,” Parker, 317 U.S. at 350-51 (emphasis added), the
defendant’s status as a public entity in Martin gave rise to
similar concerns. We therefore concluded that the reasoning that
underlies the immediate appealability of an order denying absolute,
qualified or Eleventh Amendment immunity indicates that the denial
of state action immunity to a state, its officers, or its agents
should be similarly appealable: in each case, the district court’s
decision that the public defendant must go to trial is effectively
unreviewable on appeal from a final judgment. See Martin, 86 F.3d
at 1396.
Wenger’s status as a private defendant does not implicate
these concerns. The Parker v. Brown state action doctrine, like
the doctrine of qualified immunity, is “interpreted to create an
immunity from suit and not just from judgment -- to spare state
officials the burdens and uncertainties of the litigation itself as
well as the cost of an adverse judgment.” Segni v. Commercial
Office of Spain, 816 F.2d 344, 346 (7th Cir. 1987) (citing Commuter
Transp. Systems, Inc., 801 F.2d at 1289-90); see also 1 Phillip E.
Areeda and Herbert Hovenkamp, Antitrust Law ¶ 222b (Revised ed.
1997) (“The importance of Parker’s status as an immunity is
particularly strong when the defendant is a government agency,
subdivision, or government official carrying out duties. Such
entities and officials cannot be intimidated from carrying out
13
their regulatory obligations by threats of costly litigation, even
if they might ultimately win.”). These concerns are not raised by
a suit against a private party. Cf. Wyatt v. Cole, 504 U.S. 158,
167-68 (1992)(private defendants may not invoke qualified immunity
when charged with 42. U.S.C. § 1983 liability for invoking state
replevin, garnishment, or attachment statutes later determined to
be unconstitutional); Rambo v. Daley, 68 F.3d 203, 206 (7th Cir.
1995), cert. denied, 517 U.S. 1157 (1996)(“Mitchell permits
interlocutory appeals only where the defendant is a public official
asserting a defense of qualified immunity.”) (citing Johnson, 515
U.S. at 311); Crippa v. Dukakis, 905 F.2d 553, 556 (1st Cir. 1990)(a
qualified immunity claimant’s right to interlocutory appeal is
available only to government officials and conceivably their
functional equivalent); Lovell v. One Bancorp, 878 F.2d 10, 13 (1st
Cir. 1989)(private defendant may not immediately appeal the denial
of a motion to dismiss asserting qualified immunity); Youghiogheny
& Ohio Coal Co. v. Baker, 815 F.2d 422, 425 (6th Cir. 1987)(an
entitlement not to be sued under Mitchell v. Forsyth is not
available to private parties); Chicago & North Western Transp. Co.
v. Ulery, 787 F.2d 1239, 1240-41 (8th Cir. 1986)(the denial of a
private defendant’s motion for summary judgment asserting qualified
immunity in not an appealable collateral order).
Wenger’s invocation of the state action doctrine, if
meritorious, provides only a defense against liability.
Accordingly, the denial of the summary judgment motion based on the
state action doctrine is effectively reviewable after trial and is
14
not an immediately reviewable collateral order. We therefore do
not have appellate jurisdiction to review this aspect of the
district court’s order.
2. Noerr-Pennington Doctrine
We are no more persuaded by Wenger’s contention that the
district court’s denial of its summary judgment asserting a defense
based on the Noerr-Pennington doctrine should be immediately
reviewable on appeal under the collateral order doctrine. That
defense against antitrust liability was established by the Supreme
Court in the Noerr-Pennington cases, holding that, as a general
rule, lobbying and other efforts to obtain legislative or executive
action do not violate the antitrust laws, even when those efforts
are intended to eliminate competition or otherwise restrain trade.
See Eastern R.R. Presidents Conference v. Noerr Motor Freight,
Inc., 365 U.S. 127, reh’g denied, 365 U.S. 875 (1961); United Mine
Workers of Am. v. Pennington, 381 U.S. 657 (1965); see also 3
Julian O. von Kalinowski et al., Antitrust Laws and Trade
Regulation § 50.01 (2nd ed. 1999). The doctrine was subsequently
extended to efforts to obtain judicial and quasi-judicial actions.
See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S.
508 (1972).
The courts have based the Noerr-Pennington protection for
petitioning governmental entities on the First Amendment right of
citizens to petition the government and to participate in the
legitimate processes of government. See, e.g., Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983)(“[T]he right of
15
access to the courts is an aspect of the First Amendment right to
petition the Government for redress of grievances.”); City of
Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 399
(1978)(two correlative principles led the Noerr Court to hold that
one’s concerted efforts to influence lawmakers to enact legislation
beneficial to himself or detrimental to his competitors was not
within the scope of the antitrust laws: “The first is that a
contrary construction would impede open communication between the
polity and the lawmakers which is vital to the functioning of a
representative democracy. Second, ‘and of at least equal
significance’ is the threat to the constitutionally protected right
of petition which a contrary construction would entail.”) (quoting
Noerr Motor Freight, Inc., 365 U.S. at 137-38); Continental Ore Co.
v. Union Carbide & Carbon Corp., 370 U.S. 690, 707 (1962)(“imputing
to the Sherman Act a purpose to regulate political activity . . .
would have encountered serious constitutional barriers”); Barton’s
Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1435-36 (5th
Cir. 1989)(“The . . . doctrine recognizes that, under the First
Amendment, business entities have the right to advocate policies to
federal, state and local government bodies that may destroy
competitors.”); see also von Kalinowski, supra.
Correspondingly, the Noerr-Pennington doctrine also reflects
the view that Congress did not intend the Sherman Act to reach
governmental action or the political process. See Noerr Motor
Freight Inc., 365 U.S. at 139 (“A construction of the Sherman Act
that could disqualify people from taking a public position on
16
matters in which they are financially interested would thus deprive
the government of a valuable source of information and . . .
deprive the people of their right to petition in the very instances
in which that right may be of the most importance to them.”); City
of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380
(1991)(the Noerr-Pennington “doctrine, like Parker, rests
ultimately upon a recognition that the antitrust laws, ‘tailored as
they are for the business world, are not at all appropriate for
application in the political arena.’”)(quoting Noerr Motor Freight,
Inc., 365 U.S. at 141); Coastal States Mktg., Inc. v. Hunt, 694
F.2d 1358, 1363-64 and n.16 (5th Cir.1983)(the Sherman Act does not
reach conduct designed to foster the adoption of legislation
injurious to competitors).
Although the Noerr-Pennington doctrine is frequently referred
to as an “antitrust immunity,” it provides only a defense to
liability, not an immunity from suit. See We, Inc. v. City of
Philadelphia, 174 F.3d 322, 326 (3d Cir. 1999); accord Segni v.
Commercial Office of Spain, 816 F.2d 344, 345-46 (7th Cir. 1987).
First, the Supreme Court in McDonald v. Smith, 472 U.S. 479,
485 (1985), held that the Petition Clause of the First Amendment
does not provide absolute immunity to a defendant charged with
expressing libelous and damaging falsehoods in petitions to
government officials. The Court observed that the right to
petition “is cut from the same cloth as the other guarantees of
that Amendment, and is an assurance of a particular freedom of
17
expression,” but that it does not follow that the Framers of the
First Amendment believed that the Petition Clause provided absolute
immunity from damages for libel. McDonald, 472 U.S. at 482-83
(citing Unites States v. Cruikshank, 92 U.S. 542, 552 (1876) and
James Madison in congressional debates, 1 Annals of Cong. 738
(1789)). The Court noted that in White v. Nicholls, 44 U.S. 266,
291 (1845), after reviewing the common law, it had concluded that
the plaintiff could bring a libel action based on letters written
by the defendant urging the President to remove the plaintiff from
office as a customs inspector, if the defendant’s petition was
prompted by falsehood and the absence of probable cause. See
McDonald, 472 U.S. at 484. The Court also stated that its
decisions interpreting the Petition Clause in other contexts
indicated that the right to petition does not include absolute
immunity. See id. (citing Bill Johnson’s Restaurants, Inc., 461
U.S. at 743 (filing a complaint in court is a form of petitioning
activity, but “baseless litigation is not immunized by the First
Amendment right to petition”); Garrison v. Louisiana, 379 U.S. 64,
75 (1964)(“petitions to the President that contain intentional and
reckless falsehoods ‘do not enjoy constitutional protection’”)).
Thus, the McDonald Court concluded, “there is no sound basis for
granting greater constitutional protection to statements made in a
petition to the President than other First Amendment expressions.”
Id. at 485. After the Supreme Court’s rejection of the notion that
the protection conferred by the petition clause is absolute, “no
possible ground remains for thinking that a defense based on that
18
clause is any different -- so far as is relevant to the issue of
appealability under the collateral order doctrine -- from any other
affirmative defense.” Segni, 816 F.2d at 346; accord We, Inc., 174
F.3d at 328-29.
Second, the courts which have recognized that the denial of a
defense based on the state action doctrine of Parker v. Brown, 317
U.S. 341 (1943), may be immediately appealable by the state, its
officers, or its agents as a collateral order, have been careful
“to point out that the doctrine had been interpreted to create an
immunity from suit and not just from judgment -- to spare state
officials the burdens and uncertainties of the litigation itself as
well as the cost of an adverse judgment.” Segni, 816 F.2d at 346
(citing Commuter Transp. Systems, Inc., 801 F.2d at 1289-90 (state
action doctrine); Freeman v. Kohl & Vick Mach. Works, Inc., 673
F.2d 196 (7th Cir. 1982)(conflict of laws determination embodied in
order denying summary judgment); Chicago & North Western Transp.
Co. v. Ulery, 787 F.2d 1239 (8th Cir. 1986)(denial of qualified
immunity for private defendant in 42 U.S.C. § 1983 civil rights
case)). The possibility that the burdens of suit might deter
public officials from vigorous execution of their offices is a
consideration missing in the case of Noerr-Pennington’s protection
of private defendants from antitrust liability. See We, Inc., 174
F.3d at 329.
Accordingly, we find the reasoning of the Third and Seventh
Circuits convincing and conclude that, because the Noerr-Pennington
doctrine provides only an affirmative defense against liability,
19
not a right not to stand trial, a district court judgment denying
summary judgment asserting the Noerr-Pennington defense is not an
appealable collateral order.
III. CONCLUSION
For lack of appellate jurisdiction, we dismiss Wenger’s
appeal from the district court’s order denying summary judgment.
20