SMILEDIRECTCLUB, LLC v. Tanja D. Battle

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USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 1 of 37 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-12227 ________________________ D.C. Docket No. 1:18-cv-02328 SMILEDIRECTCLUB, LLC, Plaintiff—Appellee, versus TANJA D. BATTLE, in her official capacity as Executive Director of the Georgia Board of Dentistry, et al., Defendants—Appellants. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (July 20, 2021) Before WILLIAM PRYOR, Chief Judge, and WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 2 of 37 BRASHER, and TJOFLAT, Circuit Judges. * JORDAN, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, and WILSON, MARTIN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, and TJOFLAT, Circuit Judges, joined. JORDAN, Circuit Judge: Sitting as a full court, we hold that interlocutory appeals may not be taken under the collateral order doctrine from the denials of so-called “state-action immunity” under Parker v. Brown, 317 U.S. 341, 350-52 (1943), and its progeny. We therefore dismiss this appeal by the members of the Georgia Board of Dentistry for lack of appellate jurisdiction. I SmileDirectClub, LLC, offers orthodontic treatments, including teeth alignment, at steep discounts. Its business model is described in detail in the panel opinion, see SmileDirectClub, LLC v. Battle, 969 F.3d 1134, 1136-37 (11th Cir. 2020), and we briefly summarize it here. Patients visit a SmileDirect location, where a technician takes a digital scan of their teeth. The scans are sent to SmileDirect’s lab to create a model. They are also sent to a Georgia-licensed dentist or orthodontist, who determines whether any * Judge Gerald Bard Tjoflat took senior status on November 19, 2019 and elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(2). 2 USCA11 Case: 19-12227 Date Filed: 07/20/2021 Page: 3 of 37 oral conditions warrant further investigation or prevent the patient from being a candidate for SmileDirect’s alignment treatment. If there are no issues or problems, the dentist or orthodontist creates a patient-specific plan that results in a prescription for SmileDirect’s clear aligners. The patient then receives the aligners by mail from SmileDirect. In 2018, the Georgia Board of Dentistry—a state-organized entity mostly comprised of practicing dentists—voted to amend its Rule 150-9-.02, which relates to the expanded duties of dental assistants. As explained in the panel opinion, the “practical effect of the proposed amendment w[as] . . . to require that digital scans, like the ones [performed] by SmileDirect at [its locations,] only take place when a licensed dentist is physically in the building where the scans are taking place, and to prohibit them otherwise.” Id. at 1137. Georgia Governor Nathan Deal approved the amendment of Rule 150-9-.02 through a “Certification of Active Supervision.” See id. (internal quotation marks omitted). SmileDirect then sued a number of defendants, including the Board members in their individual capacities. As relevant here, SmileDirect alleged that the Board’s amendment of Rule 150-9-.02 violated the …

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