La. Real Estate Appraisers Bd. v. Fed. Trade Comm'n
Opinion
*390 The Louisiana Real Estate Appraisers Board asks the court to review an order of the Federal Trade Commission, arguing that the Commission erred in concluding that the Board could not assert its state-action immunity defense in the underlying administrative proceeding. This appeal is premature. Accordingly, we DISMISS the petition for review for lack of jurisdiction.
I.
The Louisiana Real Estate Appraisers Board (the "Board") is a state agency tasked with licensing and regulating commercial and residential real estate appraisers and appraisal management companies.
After Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), requiring 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), the Louisiana legislature amended its own laws. Specifically, the Louisiana legislature amended its Appraisal Management Company Licensing and Regulation Act (the "AMC Act") to require that appraisal rates be consistent with § 1639e and its implementing regulations.
In the exercise of this power, 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
The Board published Rule 31101 in the Louisiana Register, solicited comments from the public, and submitted the Rule to the Louisiana House and Senate Commerce Committees for review. Neither chamber conducted a hearing. Therefore, under Louisiana law at the time, the Rule took effect 45 days after submission to the legislature. The Governor did not exercise his authority to veto the Rule.
In May 2017, the Federal Trade Commission ("FTC") issued an administrative complaint against the Board, alleging that it had "unreasonably restrain[ed] competition by displacing a marketplace determination of appraisal fees." Because Rule 31101 established an exclusive list of ways by which appraisal management companies could determine compensation for appraisers, the FTC alleged that the Rule "prevents [appraisal management companies] and appraisers from arriving at appraisal fees through bona fide negotiation and through the operation of the free market." Additionally, the FTC alleged that the Board's enforcement of the Rule unlawfully restrained price competition. In its answer, the Board argued, inter alia, that it *391 was immune from federal antitrust liability.
After the FTC filed its complaint, the Governor of Louisiana issued an executive order adding oversight to the Board. Pursuant to the order, the Board must now submit any new customary-and-reasonable-fee regulation to the Louisiana Commissioner of Administration or the Commissioner's designee for approval, rejection, or modification. In addition, the Division of Administrative Law must preapprove certain Board enforcement activities. The Board thereafter re-issued a revised Rule 31101, following the same procedures it had undertaken in 2013 as well as the new procedures outlined in the Governor's executive order.
After the Board repromulgated its revised Rule 31101, it moved to dismiss the FTC's complaint. The Board argued that its postcomplaint measures eliminated the prior effects of the old Rule and provided for active supervision going forward. Thus, it argued, the complaint was moot. The same day, the FTC moved for partial summary decision on the Board's state-action defenses, arguing that the Board is controlled by active market participants and the state's supervision was still inadequate.
The Commission 1 denied the motion to dismiss and granted the FTC's motion. The Commission has not issued a final cease-and-desist order. The Board petitions us for review, arguing that it is immune from the administrative action pursuant to the state-action doctrine.
II.
Although the Board urges us to reach the merits of its appeal, we must first "assure ourselves of our own federal subject matter jurisdiction."
Keyes v. Gunn
,
The Board seemingly concedes that the Federal Trade Commission Act ("FTCA") does not expressly authorize us to hear this appeal. Title 15 of the United States Code, Section 45 provides: "Any person, partnership, or corporation required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States ...." Accordingly, we have noted that "[t]he jurisdiction of this Court to review an order of the Federal Trade Commission .... arises
only
from a cease and desist order entered by the Commission."
Texaco, Inc. v. FTC
,
Nonetheless, the Board argues that we have jurisdiction under the collateral-order doctrine. The collateral-order doctrine first emerged in
Cohen v. Beneficial Industrial Loan Corp.
,
In concluding that some intermediate orders are immediately appealable, the
Cohen
Court reasoned that "[t]he effect of [ § 1291 ] is to disallow appeal from any decision which is tentative, informal or incomplete."
But
Cohen
does not resolve this case.
Cohen
only holds that § 1291 permits collateral review of
district court
decisions. Here, we must determine whether the FTCA permits collateral review of the Commission's decisions. As an initial matter, we note that
Cohen
's rationale can be applied to administrative decisions, and courts have applied
Cohen
's "practical construction" reasoning to other statutes with similar language. For example, courts have recognized that the Administrative Procedure Act's ("APA") "final agency action" requirement is analogous to § 1291 's "final decision" requirement.
See
Chehazeh v. Attorney Gen.
,
*393
Meredith v. Fed. Mine Safety & Health Review Comm'n
,
We thus consider whether the language of the FTCA can be interpreted to allow appellate review of collateral orders. The FTCA's language is narrower than the above examples, only authorizing the courts of appeals to review "cease and desist" orders.
Admittedly, other circuits have taken a different approach when considering whether the collateral-order doctrine applies to similarly restrictive statutes. For example, in
Rhode Island v. EPA
,
We decline to adopt the First Circuit's reasoning. We agree that the collateral-order doctrine may apply to judicial review of some administrative decisions, as illustrated above in our discussion of the APA and the Mine Act. But we disagree that courts of appeals may intervene in administrative proceedings as a general matter. This approach conflicts with Cohen , which relied on a "practical construction" of § 1291 's statutory language; we must look to the text of the statute at hand to determine whether Congress has authorized us to review the agency's decision.
Thus, the argument that "every circuit" has applied the collateral-order doctrine to administrative determinations is overly broad. Although courts of appeals have found the collateral-order doctrine to apply to
some
administrative proceedings, the cases do not prove that the collateral-order doctrine will necessarily apply to every administrative proceeding. As the First Circuit pointed out, most circuits have applied the collateral-order doctrine in the administrative context with "little or no analysis."
Rhode Island
,
Although the First Circuit, the Board, and amici writing in support of the Board identify practical reasons for permitting collateral-order review in the administrative context, these arguments do not resolve our lack of jurisdiction. Even when faced with compelling reasons to intervene, we cannot act without authority from Congress or the Constitution.
Kokkonen v. Guardian Life Ins. Co. of Am.
,
In sum, Cohen held that § 1291 's use of "final decision" could be "practically construed" to give a court of appeals authority to hear an appeal from a district court's final decision on an issue, even if the decision did not resolve the entire case. But Cohen 's reasoning cannot be used to stretch the limitations of the FTCA, in which Congress authorized us to hear appeals only from the Commission's cease-and-desist orders. The Board does not argue that we have jurisdiction under another statute, and we are aware of no statute that allows direct appeal to the court of appeals at this stage of the case. 3 Therefore, we are without jurisdiction to hear this appeal.
III.
For the foregoing reasons, the petition is DISMISSED for lack of jurisdiction.
We refer to the FTC acting in its role as complaint counsel as "the FTC" and the FTC acting in its adjudicatory role as the "Commission."
The Board notes that we have held that a district court's rejection of a state-action defense is a collateral order.
See
Martin v. Mem'l Hosp. at Gulfport
,
The Board does not argue that it seeks review under the APA, nor could it; it brought this appeal directly in this court, bypassing the district court.
See
Reference
- Full Case Name
- LOUISIANA REAL ESTATE APPRAISERS BOARD, Petitioner v. FEDERAL TRADE COMMISSION, Respondent
- Cited By
- 17 cases
- Status
- Published