TJOFLAT, Circuit Judge:
In 1941, the Georgia legislature enacted the Hospital Authorities Law, 1941 Ga. Laws 241 (codified as amended at O.C.G.A. § 31-7-70 et seq.). That statute creates a hospital authority, "a public body corporate and politic," for each city and county, O.C.G.A. § 31-7-72(a), or for multiple cities or counties combined, id. § 31-7-72(d). The hospital authority does not become operative, however, unless the governing body of the city or county determines that the authority is needed for the delivery of hospital services. Id. § 31-7-72(a). Once such need is determined, the governing body appoints between five and nine individuals to manage the authority. Id.
Each authority is given broad powers to meet the public health needs of its community. Among those specified by the statute are the powers to "operate projects," id. § 31-7-75(4), which include hospitals, clinics, nursing homes, and other public health facilities, id. § 31-7-71(5);
The statute also grants the authorities more general powers to "make plans for unmet needs of their respective communities," id. § 31-7-75(22), to "make and execute contracts and other instruments necessary to exercise the[ir] powers," id. § 31-7-75(3), and to "exercise any or all powers now or hereafter possessed by private corporations performing similar functions," id. § 31-7-75(21). And, the statute makes clear, these enumerated powers— broad as they are—are not exhaustive: each authority has "all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article." Id. § 31-7-75.
In 1941, the City of Albany and Dougherty County (in which the City is located) determined the need for a hospital authority in Dougherty County and established the Hospital Authority of Albany-Dougherty County (the "Authority"). After it was formed, the Authority acquired Phoebe Putney Memorial Hospital in Albany ("Memorial"). Until 1990, the Authority operated Memorial. That year, however, the Authority exercised its § 31-7-75(7) power to lease the facility for operation by others; to such end, it formed two nonprofit corporations, Phoebe Putney Health System, Inc. ("PPHS") and, as a PPHS subsidiary, Phoebe Putney Memorial Hospital, Inc. ("PPMH"), and leased Memorial to PPMH.
PPMH's lease gives it the right to set the prices for the services Memorial provides. In exercising such right, however, PPMH is subject to the Hospital Authorities Law's proscription against charging prices greater than necessary to cover the cost of the services and provide reasonable reserves. See id. § 31-7-77.
Memorial consists of 443 beds and offers, among other things, a full range of inpatient general acute-care services. Memorial's (and thus PPHS's and PPMH's) only real competitor is Palmyra Park Hospital, Inc. ("Palmyra"), a subsidiary of HCA, Inc. established in Albany in 1971.
In December 2010, PPHS presented the Authority with a plan to acquire Palmyra's assets, i.e., the Palmyra hospital facility, with funds provided by PPHS
On April 19, 2011, the Federal Trade Commission (the "Commission") initiated an administrative proceeding to determine whether the Authority's purchase of Palmyra and subsequent lease to PPHS, or a PPHS subsidiary, would substantially lessen competition or tend to create a monopoly in the inpatient general acute-care hospital services market in Dougherty County and surrounding areas (the "relevant market") in violation of section 7 of the Clayton Act, 15 U.S.C. § 18. See 15 U.S.C. § 21(a) (granting the Commission authority to enforce section 7 of the Clayton Act). Section 7 provides that "no person subject to the jurisdiction of the [Commission] shall acquire . . . the assets of another . . . where . . . the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S.C. § 18. According to the Commission, the proceeding was to be held in September 2011. If a section 7 violation were to be found, the Commission would issue a cease and desist order to prevent the Authority going forward with the plan to acquire the Palmyra hospital facility. The order would be subject to review in this court. 15 U.S.C. § 45(c) ("Any person, partnership, or corporation required by an order of the Commission to cease and desist . . . may obtain a review of such order in the [appropriate circuit] court of appeals of the United States.").
To prevent the consummation of the plan prior to the completion of the administrative proceeding, FTC v. Univ. Health, Inc., 938 F.2d 1206, 1217 n. 23 (11th Cir. 1991) ("[O]nce an anticompetitive acquisition is consummated, it is difficult to `unscramble the egg.'"), the Commission brought this action, on April 20, 2011, to obtain a preliminary injunction against the Authority, PPHS, PPMH, HCA, Inc., and Palmyra (collectively "Appellees"). See 15 U.S.C. § 53(b) ("Whenever the Commission has reason to believe (1) that any person, partnership, or corporation is violating, or is about to violate [section 7] . . . the Commission . . . may bring suit in a district court of the United States to enjoin any such act."). In order to demonstrate its likelihood of prevailing on the merits,
The Appellees, in response, moved the district court to dismiss the Commission's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. They did not contest the Commission's claim that the acquisition of Palmyra and effective merger of Palmyra and Memorial would tend to create, if not actually create, a monopoly in the relevant market. Instead, they asserted that the "state-action doctrine" immunized the Authority and its operation of the two hospitals under the planned arrangement with PPHS from antitrust liability. The district court agreed that the Authority, PPHS, and PPMH were entitled to such immunity and dismissed
We review de novo a district court's order dismissing a complaint under Rule 12(b)(6). Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.2010). We "accept[] the factual allegations in the complaint as true and construe[] them in the light most favorable to the plaintiff," id.; we are not, however, "bound to accept as true a legal conclusion couched as a factual allegation," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986)).
We agree with the Commission that, on the facts alleged, the joint operation of Memorial and Palmyra would substantially lessen competition or tend to create, if not create, a monopoly. The question, then, is whether this anticompetitive conduct is immunized by the state-action doctrine.
The doctrine of state-action immunity protects the states from liability under the federal antitrust laws. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court held that the Sherman Act did not subject the states to liability for anticompetitive conduct within their jurisdiction. Id. at 352, 63 S.Ct. at 314. Relying on principles of federalism, the Court refused to find in the antitrust laws "an unexpressed purpose to nullify a state's control over its officers and agents." Id. at 351, 63 S.Ct. at 313.
The same protection does not, however, extend automatically to municipalities or political subdivisions of the states. Political subdivisions, as the Supreme Court has explained, "are not themselves sovereign; they do not receive all the federal deference of the States that create them." City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 412, 98 S.Ct. 1123, 1136, 55 L.Ed.2d 364 (1978) (plurality opinion). But because political subdivisions are "instrumentalities of the State," id. at 413, 98 S.Ct. at 1137 (quoting Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 287, 3 S.Ct. 211, 213, 27 L.Ed. 936 (1883)), they may under some circumstances be entitled to state-action immunity. Thus, a political subdivision, like the Authority,
The requirement of a clearly articulated state policy, as the Supreme Court explained in Town of Hallie, does not require the state legislature to "expressly state in a statute or its legislative history that the legislature intends for the delegated action to have anticompetitive effects." 471 U.S. at 43, 105 S.Ct. at 1719. Instead, it is enough that such anticompetitive conduct is a "foreseeable result" of the legislation. Id. at 42, 105 S.Ct. at 1718. And, as we explained in Lee County, a "foreseeable anticompetitive effect" need not be "one that ordinarily occurs,
The Authority's immunity therefore turns on whether the state has authorized the Authority's acquisition
The Hospital Authorities Law, O.C.G.A. § 31-7-70 et seq., evidently contemplates anticompetitive effects, including just the sort of anticompetitive conduct challenged here. Through that law, the Georgia legislature granted powers of impressive breadth to the hospital authorities. Those powers include the powers to "operate projects," id. § 31-7-75(4), which include hospitals, id. § 31-7-71(5); to "construct, reconstruct, improve, alter, and repair projects," id. § 31-7-75(5); to "establish rates and charges for the services and use of the facilities of the authority," id. § 31-7-75(10); to "sue and be sued," id. § 31-7-75(1); to "exchange, transfer, assign, pledge, mortgage, or dispose of any real or personal property or interest therein," id. § 31-7-75(14); and to "borrow money for any corporate purpose," id. § 31-7-75(17).
The statute, indeed, goes further. It also authorizes the authorities more generally to "make and execute contracts and other instruments necessary to exercise the[ir] powers," id. § 31-7-75(3), and to "exercise any or all powers now or hereafter possessed by private corporations performing similar functions," id. § 31-7-75(21). To fulfill its mission to promote public health, the Authority can in effect deploy any power a private corporation could in its stead. And it enjoys powers that private corporations do not. It may "acquire by the exercise of the right of eminent domain any property essential to
Most important in this case, however, is the Georgia legislature's grant of the power to "acquire by purchase, lease, or otherwise. . . projects," id. § 31-7-75(4), which, again, include hospitals, id. § 31-7-71(5), and the power to "lease . . . for operation by others any project," id. § 31-7-75(7). This grant makes clear that the Authority is authorized to acquire and lease Palmyra. Moreover, in granting the power to acquire hospitals, the legislature must have anticipated that such acquisitions would produce anticompetitive effects. Foreseeably, acquisitions could consolidate ownership of competing hospitals, eliminating competition between them. This case, therefore, is not materially different from Lee County, where we held that the Florida legislature must have anticipated that granting the power to acquire hospitals to a county hospital board of directors would likely diminish competition. 38 F.3d at 1191-92.
The Commission argues that Lee County is distinguishable because the Florida statute in that case concerned the hospital board of only one county. See id. at 1186. For that reason, the Commission insists, the Florida legislature likely acted on detailed knowledge of the competitive conditions in that specific county. Here, by contrast, the Hospital Authorities Law applies statewide. We thus have no reason, according to the Commission, to believe that when the Georgia legislature enacted that statute, it was similarly familiar with competitive conditions in the geographic area affected by the Authority's acquisition of Palmyra.
Nevertheless, the Georgia legislature must have anticipated anticompetitive harm when it authorized hospital acquisitions by the authorities. It defies imagination to suppose the legislature could have believed that every geographic market in Georgia was so replete with hospitals that authorizing acquisitions by the authorities could have no serious anticompetitive consequences. The legislature could hardly have thought that Georgia's more rural markets could support so many hospitals that acquisitions by an authority would not harm competition. We therefore conclude that, through the Hospital Authorities Law, the Georgia legislature clearly articulated a policy authorizing the displacement of competition.
The Commission also points to a 1993 amendment to the Hospital Authorities Law. See Act of Apr. 13, 1993, sec. 1, § 31-7-72.1, 1993 Ga. Laws 1020, 1020-22 (codified at O.C.G.A. § 31-7-72.1). That amendment allows mergers between two hospital authorities when they exist within a single, high-population county, O.C.G.A. §§ 31-7-72.1(a), 31-7-73(a), and declares that, in undertaking such mergers, "hospital authorities are acting pursuant to state policy and shall be immune from antitrust liability to the same degree and extent as enjoyed by the State of Georgia," id. § 31-7-72.1(e). According to the Commission, this amendment suggests that in 1993—more than fifty years after the original Hospital Authorities Law, 1941 Ga. Laws 241 (codified as amended at O.C.G.A. § 31-7-70 et seq.), was enacted—the Georgia legislature concluded that other provisions of the law, including those that authorize the authorities to acquire hospitals, did not clearly articulate a policy to displace competition. And, the Commission suggests, the legislature chose—again, in 1993—not to change that state of affairs.
What matters, though, is whether anticompetitive effects were anticipated "at
For the reasons stated in part III, supra, the judgment of the district court is
AFFIRMED.
The Supreme Court's decision in City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991), forbids us to accept the Commission's argument. We may not "look behind" governmental actions for "`perceived conspiracies to restrain trade.'" Id. at 379, 111 S.Ct. at 1353 (quoting Hoover v. Ronwin, 466 U.S. 558, 580, 104 S.Ct. 1989, 2001, 80 L.Ed.2d 590 (1984)). We may not "deconstruct[]. . . the governmental process" or "prob[e] . . . the official `intent'" to determine whether the government's decision-making process has been usurped by private parties. Id. at 377, 111 S.Ct. at 1352. We therefore must reject the Commission's argument that because the plan at issue was formulated by PPHS and HCA, Inc. and presented by PPHS to the Authority, the plan's execution would constitute only private action.