dissenting:
In concluding that HHMC is entitled to state action immunity from antitrust liability, the majority commits two independent and distinct errors. First, the majority errs in entertaining the immunity defense. In Bolt II, the en banc court unequivocally held that the appellee hospitals, including HHMC, had waived “any claim that they were immune from antitrust liability under the state action exemption.” 874 F.2d at 756. This panel is without authority to disregard the en banc court’s mandate by now entertaining this very same immunity defense. Second, assuming the panel is authorized to reach the merits of the immunity defense (which it is not), the majority erroneously concludes that the state action doctrine is applicable here. HHMC is not entitled to state action immunity because it cannot demonstrate that its anticompetitive activities, if they were such, “were authorized by the State ‘pursuant to state policy to displace competition with regulation or monopoly public service.’ ” Town of Hallie, 471 U.S. at 39, 105 S.Ct. at 1716 (citation omitted). Accordingly, I dissent.
Waiver of the State Action Immunity Defense
The en banc court’s waiver determination in Bolt II is unequivocal: “Thus, whether or not the defendants are entitled to immunity under Parker’s state action exemption, they now have clearly waived that immunity in this case.” 874 F.2d at 756. The en banc court could not have more clearly mandated that state action immunity is no longer an issue in this case. Nevertheless, the panel majority attempts to circumvent the en banc court’s holding by asserting that HHMC’s present position, that it is a municipality entitled to state action, immunity under Parker, is distinguishable from the argument waived by the defendants before the en banc court, that they were private parties entitled to such immunity. Even setting aside for a moment the unequivocal language of the en banc court’s mandate, the history of this litigation demonstrates that the panel majority’s position is illogical and totally devoid of factual support. HHMC has never during the entire course of this lengthy *1390litigation taken the position that it is a private party entitled to state action immunity; rather, HHMC has at all times asserted that it is either a state agency or a municipality entitled to such immunity. As the state agency and municipality arguments are the only state immunity arguments that HHMC has ever made, it is necessarily these arguments that HHMC waived before the en banc court.
Back in 1984, the district court granted the defendants’ motion for directed verdict on Dr. Bolt’s Sherman Act claims. The district court’s decision was based not on state action immunity, but on Bolt’s failure to introduce evidence of an unlawful contract, combination, or conspiracy. When Dr. Bolt appealed, none of the defendants so much as mentioned state action immunity in their appellate briefs. Rather, the state immunity issue was raised sua sponte by the panel in Bolt I. After all appellate briefs had been filed, the panel sent a letter to all parties requesting that they address the following issue: “Does the state action doctrine exempt the defendants in this case from federal antitrust liability?” In response to the panel’s sua sponte inquiry, HHMC responded:
Thus, the first test under the state action doctrine is whether it is the state itself which is acting. If so, under Parker, that is the end of the inquiry because the state and its agencies can never be subject to the antitrust laws. There does exist another possibility— that the entity accused of violating the antitrust laws is a county or municipality, in which case it is still outside the scope of the antitrust laws so long as its allegedly anti-competitive action is authorized by the state. Town of Hallie v. City of Eau Claire, 471 U.S. 34 [105 S.Ct. 1713, 85 L.Ed.2d 24] (1985)....
The state action doctrine would protect [HHMC] under either analysis. If [HHMC] is considered to be an arm of the State of Florida, as was the raisin district in Parker v. Brown [footnote omitted], then, without further analysis, the antitrust laws do not apply to [HHMC]. If, on the other hand, [HHMC] is considered to be equivalent to a municipality, rather than a state agency, the result would not change. Under Town of Hallie, [HHMC] was clearly authorized to engage in the activity Dr. Bolt has challenged here.
HHMC’s letter to the court of April 7, 1988, at 3. Thus, HHMC argued that it was entitled to state action immunity either as a state agency or as a municipality; HHMC made no mention of the private party argument. In its opinion, the panel in Bolt I specifically noted HHMC’s position:
HHMC is not a private hospital like DCH; rather, it is a “special district” created by the Florida legislature. See 1979 Fla.Laws 577. As such, HHMC may be more akin to a municipality than a private person for purposes of state action exemption analysis. In Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985), the Supreme Court held that it is sufficient for a municipality to establish that it acted pursuant to a clearly articulated state policy; unlike a private person, a municipality need not also establish active state supervision. Id. at 46-47, 105 S.Ct. at 1720. Because we conclude that both clear articulation and active state supervision are present in this case, we do not decide whether HHMC should be treated as a municipality rather than a private person. [Citation omitted.]
The en banc court vacated Bolt I and ordered that the case be reheard en banc. 861 F.2d 1233. In its en banc brief, HHMC again took the position that it was entitled to state action immunity either as a state agency or as a municipality. In fact, HHMC specifically disclaimed the argument that it was entitled to state action immunity as a private party: “Thus, the issues of clear articulation and state supervision which arise in the context of claims against private parties and upon which Dr. Bolt focuses his argument do not apply at all to [HHMC].” Appellee HHMC’s en banc brief at 25. Then, at oral argument before the en banc court, all of the hospitals, including HHMC, waived the state *1391immunity defense, states: The en banc opinion
In oral argument before the en banc court, the appellee hospitals and their medical staffs formally withdrew any claim that they were immune from antitrust liability under the state action exemption. Thus, whether or not the defendants are entitled to immunity under Parker’s state action exemption, they now have clearly waived that immunity in this case. Since we granted rehearing solely to consider this issue, further consideration of the case by the en banc court is unnecessary.
The court therefore reinstates the panel opinion, see Bolt v. Halifax Hospital Medical Center, 851 F.2d 1273 (11th Cir.1988), with the exception of the opinion’s discussion of the state action exemption, see id. at 1279-84, which remains vacated and without precedential value. The case is thus remanded to the panel, which shall reconsider its decision in light of the hospitals’ and medical staffs’ waiver of immunity and the parties’ outstanding petition for rehearing.
874 F.2d at 756. The en banc court unequivocally held that HHMC clearly waived its state action immunity defense.
HHMC apparently regretted its decision to waive state action immunity. Approximately two weeks after the en banc court issued its opinion, HHMC filed a motion for clarification of this opinion. The motion states:
[HHMC] did not abandon its claim that it is entitled to immunity from antitrust liability, under the state action doctrine, as the only defendant which is a public hospital_ Accordingly, [HHMC] respectfully submits that this Court should clarify its Order to recognize that [HHMC] has not waived its state action immunity defense based upon its own legislation organizing and authorizing its public taxing hospital district, and may continue to rely upon that defense.
Motion for Clarification filed May 31, 1989. This court denied the motion for clarification by order dated June 26, 1989.
Notwithstanding the en banc court’s holding and the court’s subsequent denial of HHMC’s motion for clarification, the panel in Bolt III addressed the merits of HHMC’s state action immunity defense. In an attempt to rationalize this contravention of the en banc court’s holding, the panel noted:
This argument [that HHMC is entitled to state action immunity as a state agency] should be distinguished from the state-action argument abandoned by all of the defendants at oral argument before the en banc court. This panel had previously concluded that, as private parties, the DCH and HHMC defendants were protected by Parker because peer review decisions in Florida were sanctioned by a clearly articulated state policy and were actively supervised by Florida state courts. [Citation omitted.] Having abandoned its Parker defense as a private party HHMC now argues that it is entitled to Parker protection simply because it is a state agency. We agree with HHMC that when a state agency’s actions are at issue, we need not address the questions of active supervision and clear articulation, [citation omitted]. We therefore address HHMC’s new state-action argument.
891 F.2d at 823 n. 22. The facts just recited establish that HHMC’s state action argument was not new. The panel majority in this appeal now follows this erroneous rationalization, asserting that HHMC’s present state action position is “new” and distinguishable from the private party position waived at en banc oral argument. Maj.Op. at 709 n. 3. The flaws in this rationalization are patently obvious. HHMC could not have “abandoned its Parker defense as a private party” because it never asserted a Parker defense as a private party; indeed, it specifically disclaimed any reliance upon the defense as a private party. HHMC’s present state immunity argument is the same as it has always been: that it is entitled to such immunity as a state agency or a municipality. This argument is not, then, HHMC’s “new" state immunity argument; it is HHMC’s only state immunity argument, *1392and it was waived before the en banc court. Thus, the panel majority’s decision to reach the merits of HHMC’s state immunity defense rests on erroneous factual conclusions and directly contravenes the unequivocal holding of the en banc court.
Any assertion that this panel is bound by Bolt III as the law of this case is meritless. This panel is not bound by Bolt III. Quite the contrary, the en banc opinion is the law of this case and can only be changed by the en banc court. When a panel opinion is inconsistent with a holding of the en banc court, we are obligated to follow the holding of the en banc court. See United States v. Clavis, 977 F.2d 538 (11th Cir.1992) (withdrawing references to an Eleventh Circuit panel opinion inconsistent with a former Fifth Circuit en banc opinion). Bolt III and the majority opinion here cannot be reconciled with the en banc court’s holding that HHMC waived the Parker state immunity exemption.
State Action Immunity Is Inapplicable
Even if the panel were authorized to reach the merits of HHMC’s state action immunity defense, which it is not, HHMC is not entitled to such immunity.1 Political subdivisions, such as municipalities, are entitled to state action immunity under Parker only if they can establish that the restriction of competition is “an authorized implementation of state policy.” City of Columbia, — U.S. at-, 111 S.Ct. at 1349. The state policy must be “ ‘clearly articulated and affirmatively expressed,’ ” and it must evidence the state legislature’s intent “ ‘to displace competition with regulation or monopoly public service.’ ” Town of Hallie, 471 U.S. at 39, 105 S.Ct. at 1716. As the Supreme Court recently said:
Besides authority to regulate, however, the Parker defense also requires authority to suppress competition — more specifically, “clear articulation of a state policy to authorize anticompetitive conduct” by the municipality in connection with its regulation. [Citation omitted.] We have rejected the contention that this requirement can be met only if the delegating statute explicitly permits the displacement of competition, [citation omitted]. It is enough, we have held, if suppression of competition is the “foreseeable- result” of what the statute authorizes, [citation omitted].
City of Columbia, — U.S. at-, 111 S.Ct. at 1350. In the Florida statutory scheme upon which HHMC relies, there is no “clear articulation of a state policy to authorize anticompetitive conduct”; neither is suppression of competition a “foreseeable result” of what the statutes authorize.2 HHMC is a special tax district created pursuant to 1979 Fla.Laws ch. 79-577. This chapter conveys upon HHMC “all the powers of a body corporate.” The chapter further provides that HHMC *1393The chapter also grants to HHMC the power of eminent domain, the power to borrow money, and the power to authorize the issuance of bonds. Notwithstanding the broad powers granted to HHMC by this chapter, nothing in the chapter purports to grant to HHMC the power to regulate the practice of medicine, and the chapter does not even mention medical staff. Thus, this chapter cannot possibly be said to evidence a clearly articulated state policy authorizing anticompetitive activity in the selection of medical staff. The Ninth Circuit reached a similar result in Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397 (9th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). Noting that “Town of Hallie does not require that we invariably conclude, regardless of the circumstances, that a broad mandate to act gives authority to prevent others from acting,” the Ninth Circuit rejected the hospitals’ argument that “their broad authority to provide hospital services in and of itself establishes authority to exclude others from providing hospital services.” Id. at 400-01. Relying in part on its finding that the state statutory scheme did not convey to the hospitals the power to regulate the hospital services market, the court concluded “that the state ... has not displaced competition with regulation in the provision of hospital services, and ... defendants are therefore not shielded by state-action immunity.” Id. at 402. See also Wicker v. Union County General Hospital, 673 F.Supp. 177 (N.D.Miss.1987) (statute designed to clarify and expand the power of the boards of trustees of community hospitals insufficient to show that state articulated a policy to displace competition with regulation).
*1392may establish, construct, operate, and maintain such hospitals, medical facilities clinics, and out-patient facilities and services as are necessary. The hospitals, medical facilities or clinics, and out-patient facilities and services shall be established, constructed, operated, and maintained by [HHMC] for the preservation of the public health, ‘for the public good and for the use of the public of the district; and maintenance of such hospitals, medical facilities, clinics, and outpatient facilities and services in the district are hereby found and declared to be a public purpose and necessary for the general welfare of the residents of the district.
*1393HHMC also relies on the licensing and regulation statutes applicable to all hospitals, Fla.Stat. ch. 395. Only one part of this chapter, as in effect in 1981,3 makes reference to medical staff. This part reads:
395.065 Hospital disciplinary power.—
(1) The medical staff of any hospital licensed pursuant to this chapter is authorized to suspend, deny, revoke, or curtail the staff privileges of any staff member for good cause, which shall include, but not be limited to:
(a) Incompetence.
(b) Negligence.
(c) Being found an habitual user of intoxicants or drugs to the extent that the physician is deemed dangerous to himself or others.
(d) Being found liable by a court of competent jurisdiction for medical malpractice.
However, the procedures for such actions shall comply with the standards outlined by the Joint Commission of Accreditation of Hospitals and the Principles of Participation in the Federal Health Insurance Program for the Aged.
(2) There shall be no liability on the part of, and no cause of action of any nature shall arise against, any hospital, hospital medical staff, or hospital disciplinary body or its agents or employees for any action taken in good faith and without malice in carrying out the provisions of this section. [Emphasis added.]
395.0653 Use of hospital and staff.—
(2) Nothing herein shall restrict in any way the authority of the medical staff of the hospital to review for approval or disapproval all applications for appointment and annual reappointment to all categories of staff and make recommendations on each to the governing authority, including delineation of privileges to be granted in each case. In making such recommendations and in delineation of privileges, each applicant shall be considered on an individual basis pursuant to criteria applied equally to all other disciplines.
(3) Within 180 days after July 1, 1979, the governing body of every hospital shall set standards and procedures to be applied by the hospital and its medical *1394staff in considering and acting upon applications for staff membership or professional privileges. These standards and procedures shall be available for public inspection.
These statutes permit the governing body and the medical staff of a hospital to make decisions regarding staff membership and professional privileges. This decisionmak-ing power is obviously necessary to the proper functioning of any hospital. These statutes cannot possibly be read as articulating a state policy to authorize anticom-petitive conduct in the selection of medical staff. Other courts reviewing statutory schemes similar to the Florida scheme have reached the same conclusion. For example, in Quinn v. Kent General Hospital, Inc., 617 F.Supp. 1226 (D.Del.1985), the hospital argued that its action in failing to admit the plaintiff doctor to active staff privileges was immune from antitrust liability by virtue of the state action doctrine. The hospital relied on a statutory medical peer review procedure that provided immunity from all liability to members of the peer review committees for good faith actions taken in pursuit of their duties. In rejecting the hospital’s argument and holding that the peer review statute was not intended to displace competition, the court stated:
[T]here is not even a hint in the Delaware statute that the peer review process will be promoted by conferring a monopoly upon those physicians with entrenched positions on hospital staffs. Nor is there any reason that promotion of the peer review process should require any additional restriction of competition. To be sure, this competition must occur within the boundaries of standards established by the medical profession and the state, and within the limits set by the capacity of the available hospital facilities, but there is no reason that the peer review process should be used to place additional restraints on competition among physicians. Indeed, the peer review process is arguably procompetitive, for by monitoring the qualifications and performance of physicians it may compensate for the relative lack of information about these matters by consumers. [Footnote omitted.]
Id. at 1239. Similarly, in Posner v. Lankenau Hospital, 645 F.Supp. 1102 (E.D.Pa.1986), the court held that the state regulatory scheme, which provided that medical staffs must define the requirements for admission to staff membership, “does not reveal an intention to replace competition in the market for hospital medical staff positions among physicians with a regulatory structure.” Id. at 1117. See also Ratino v. Medical Service of District of Columbia (Blue Shield), 718 F.2d 1260, 1268 (4th Cir.1983) (statute that contemplates that defendant would be investigating complaints against doctors and making recommendations regarding discipline did not provide a shield for any anticompetitive activities).
A panel of this court recently reviewed Alabama’s hospital regulatory scheme and concluded that the defendant hospital was entitled to state action immunity. Todorov v. DCH Healthcare Authority, 921 F.2d 1438 (11th Cir.1991). The Alabama scheme at issue in Todorov, however, is quite different from the Florida scheme at issue here. Indeed, the panel in Todorov noted: “[UJnlike Town of Hallie and Bolt [referring to Bolt III], this case involves a statute that expressly authorizes anticompeti-tive conduct.” Id. at 1462. As the panel acknowledged, the Florida scheme contains absolutely no express authorization of anti-competitive conduct.4
The Florida scheme is also distinguishable from the Indiana scheme at issue in Marrese v. Interqual, Inc., 748 F.2d 373 (7th Cir.1984), cert. denied, 472 U.S. 1027, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985). In Marrese, the Seventh Circuit held that the defendants were entitled to state action immunity because they were all acting *1395within the state mandated, “comprehensive statutory scheme of medical peer review.” Id. at 387. Such a comprehensive statutory scheme of medical peer review is conspicuously absent from the Florida statutes quoted above.5 Finally, the Florida scheme is distinguishable from the North Carolina statute at issue in Coastal Neuro-Psychiatric Associates, P.A. v. Onslow Memorial Hospital, 795 F.2d 340 (4th Cir.1986). The North Carolina statute authorized hospitals to determine which physicians would have privileges based upon, among other things, “appropriate utilization of hospital facilities.” There is no analogous provision in the Florida statutory scheme. See Wicker, 673 F.Supp. at 185 (distinguishing the Mississippi statute on the same grounds).
The Florida statutory scheme applicable to this case contains no “clear articulation of a state policy to authorize anticompeti-tive conduct” in the disposition of medical staff privileges. The grant of power to a hospital to review the qualifications of its medical staff is hardly analogous to the grant of power to a municipality to regulate billboards, as in City of Columbia, or to construct sewage systems, as in Town of Hallie. The suppression of competition simply is not a “foreseeable result” of empowering a hospital to ensure that its staff is qualified. At most, the Florida legislation at issue here establishes that the State is neutral toward competition limiting actions. As a panel of this court recently said:
“[T]he requirement of ‘clear articulation and affirmative expression’ is not satisfied when the State’s position is one of mere neutrality respecting the municipal actions challenged as anticompeti-tive.”
McCallum v. City of Athens, 976 F.2d 649, 653 n. 6 (11th Cir.1992) (quoting Community Communications Co. v. City of Boulder, 455 U.S. 40, 55, 102 S.Ct. 835, 843, 70 L.Ed.2d 810 (1982)).
Conclusion
The majority has been misled to its erroneous conclusion in this case because of errors made by the panel in Bolt III. Our en banc court in Bolt II unequivocally held that the defendants had waived the Parker state immunity defense; the panel in Bolt III erred by holding that the en banc court had limited the application of this waiver determination to private parties only. Nothing could be further from the truth, as has been amply demonstrated by reference to the en banc opinion, the history of the positions and defenses pled by the parties prior to the en banc decision, and the motion for clarification of that decision by the appellant here, HHMC, which motion was denied. The history of the case forever puts to rest the breadth of the waiver by the defendants and the preclusiveness of the en banc. opinion.
Even if the issue had survived, Florida law applicable to this case did not authorize hospitals to suppress competition nor was suppression of competition a foreseeable result of the state’s statutes governing hospitals.
For these reasons, I respectfully dissent.
. In reaching the opposite conclusion, the majority relies on the panel’s decision in Bolt III. As noted above, I acknowledge that one can assert that Bolt III is the law of this case. The law of the case doctrine does not apply to preclude reconsideration of an issue previously decided if the previous decision "was clearly erroneous and would work a manifest injustice.” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir.1984). The panel’s determination in Bolt III that “the Florida legislature clearly articulated a policy to displace competition” is clearly erroneous and works a manifest injustice.
. The state statutes relevant to this inquiry are those in effect when HHMC engaged in the challenged conduct. Bolt I, 851 F.2d at 1281 n. 12; Tambone v. Memorial Hospital for McHenry County, Inc., 825 F.2d 1132, 1134-35 (7th Cir.1987).
. See note 2.
. The Florida statute now provides that "[i]t is the intent of the Legislature that good-faith participants in the process of investigating and disciplining physicians ... be protected from federal antitrust suits_” Fla.Stat. ch. 395.-0115(1) (1991). This provision is irrelevant to this case as it was enacted after 1981. See note 2.
. The Florida statute now provides that each hospital must "provide for peer review of physicians.” Fla.Stat. ch. 395.0115(2) (1991). This provision is irrelevant to this case as it was enacted after 1981. See note 2.