National Association for the A v. Jerome Simandle , 658 F. App'x 127 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3356
_____________
NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF MULTIJURISDICTION PRACTICE, (NAAMJP);
ROBERT VEREB; BENJAMIN JOSEF DOSCHER,
Appellants
v.
JEROME B. SIMANDLE, Chief Judge,
United States District Court for the District of New Jersey;
MARY L. COOPER; JOEL A. PISANO; PETER G. SHERIDAN;
MICHAEL SHIPP; ANNE E. THOMPSON; FREDA L. WOLFSON;
RENEE MARIE BUMB; NOEL L. HILLMAN; JOSEPH E. IRENAS;
ROBERT B. KUGLER; JOSEPH H. RODRIGUEZ; KAREN M. WILLIAMS;
DENNIS M. CAVANAUGH; CLAIRE C. CECCHI; STANLEY R. CHESLER;
DICKINSON R. DEBEVOISE; MICHAEL A. HAMMER; KATHARINE S. HAYDEN;
FAITH S. HOCHBERG; JOSE L. LINARES; WILLIAM J. MARTINI;
KEVIN MCNULTY; ESTHER SALAS; WILLIAM H. WALLS; SUSAN D.
WIGENTON;
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-14-cv-3678)
District Judge: Hon. Gerald A. McHugh
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 11, 2016
Before: SMITH, JORDAN, and RENDELL, Circuit Judges.
(Opinion Filed: July 14, 2016)
_______________
OPINION
_______________
JORDAN, Circuit Judge.
By its own description, the National Association for the Advancement of
Multijurisdiction Practice (“NAAMJP”) advocates “throughout the United States for the
purpose of improving the legal profession, by petitioning for admission on motion in the
dwindling minority of jurisdictions that have not yet adopted … reciprocal admission for
all lawyers.” (JA164.) In other words, the NAAMJP endeavors to reduce the barriers to
entry to legal practice in the various state and federal courts across the country. Its view,
which should tug at the heartstrings of any attorney, is that “one bar exam is more than
enough.” (Opening Br. at 19.) With that end in mind, the NAAMJP has crisscrossed the
United States, challenging local bar admission rules. See, e.g., NAAMJP v. Lynch, No.
15-1982, 2016 WL 3361558 (4th Cir. June 17, 2016); NAAMJP v. Berch, 773 F.3d 1037
(9th Cir. 2014), cert. denied, 135 S. Ct. 2374 (2015); see also Blye v. California Supreme
Court, CV 11-5046, 2014 WL 229830, at *2 n.3 (N.D. Cal. Jan. 21, 2014) (collecting
similar challenges involving plaintiffs’ counsel dating back to 1987).1 It does not appear

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
Eventually, plaintiffs’ counsel filed so many “legally frivolous” claims regarding
California attorney admission rules in the United States District Court for the Northern
District of California that he was enjoined “from filing any further actions, either as an
attorney or a party, in the United States District Court for the Northern District of
California, regarding admission to and the regulation of the practice of law in the State of
California without first obtaining leave of the Chief Judge of th[at] court.” Paciulan v.
2
that the NAAMJP or its counsel has ever succeeded in any of its efforts. Its challenges
have twice reached this Court and twice been rejected. See NAAMJP v. Castille, 799
F.3d 216 (3d Cir.), cert. denied, 136 S. Ct. 558 (2015); NAAMJP v. Gonzales, 211 F.
App’x 91 (3d Cir. 2006).2 This time is the same.
In the present case, the NAAMJP and two of its members challenge the conditions
placed on admission to the bar of the United States District Court for the District of New
Jersey (the “District Court”). They allege that the District Court’s local rules, which
generally incorporate New Jersey state admission rules by limiting federal admission to
those licensed to practice by the Supreme Court of New Jersey, violate federal statutory
and constitutional standards. The defendants – judges of the District Court and former
Attorney General Eric Holder – moved to dismiss the NAAMJP’s complaint.3 In a
thorough and thoughtful opinion, the District Court granted the motion to dismiss. We
agree with the reasoning of the District Court in all respects, and will affirm.
George, 38 F. Supp. 2d 1128, 1146-47 (N.D. Cal. 1999), aff’d, 229 F.3d 1226 (9th Cir.
2000) (per curiam).
2
In Gonzales, the District Court not only dismissed the complaint, but also
enjoined the NAAMJP and its counsel “from filing any further papers with respect to the
constitutionality of any jurisdiction’s local rules of admission, practice, or procedure in
the Eastern District of Pennsylvania without prior leave of Court.” NAAMJP v. Bush, No.
05-cv-05081, slip op. at 9 (E.D. Pa. Mar. 23, 2006), aff’d sub nom. NAAMJP v. Gonzales,
211 F. App’x 91 (3d Cir. 2006).
3
The Honorable Gerald A. McHugh of the United States District Court for the
Eastern District of Pennsylvania sat by designation to avoid any potential conflict of
interest.
3
I. BACKGROUND
The District Court’s Local Civil Rule 101.1 governs admission to the bar of that
Court. The rule provides that “[a]ny attorney licensed to practice by the Supreme Court
of New Jersey may be admitted” to the bar of the District Court. L.Civ.R. 101.1(b). It
further provides that a New Jersey attorney who is deemed ineligible to practice in state
court under certain circumstances will also not be permitted to practice before the District
Court during the period of that ineligibility, and that an attorney who resigns from the
New Jersey State bar will be considered to have resigned from the bar of the District
Court. Id. In lieu of general admission to the bar of the District Court, attorneys not
licensed in New Jersey who are members in good standing of another state or federal bar
may apply for pro hac vice admission for each case in which they participate in the
District Court and pay a $150 fee upon each admission. L.Civ.R. 101.1(c).
The local rules also permit narrow categories of exceptions from the requirement
of membership in the New Jersey State bar. For example, the rules allow those admitted
to practice before the United States Patent and Trademark Office to be admitted to the
District Court bar so long as they have been members of the bar of any state or federal
court for five years and have been engaged in the practice of patent law in New Jersey,
with an office located in the state, for at least two years. L.Civ.R. 101.1(e). In addition,
attorneys representing the United States need not be admitted to practice in New Jersey in
order to appear in the District Court. See L.Civ.R. 101.1(f).4
4
Unsurprisingly, the Local Civil Rules “do[] not govern the appearance of
attorneys representing defendants in criminal cases.” L.Civ.R. 101.1(j).
4
On June 9, 2014, the NAAMJP and two of its members, Robert Vereb and
Benjamin Josef Doscher,5 sued the district and magistrate judges of the District Court, as
well as former Attorney General Eric Holder, claiming that the local rules wrongly
prevent certain of NAAMJP’s members from joining the bar of the Court. Both Vereb
and Doscher are admitted to practice in the state and federal courts of New York and
“will apply for admission to the U.S. District Court for the District of New Jersey bar if
its admission rule is changed.” (JA165-166.) The complaint includes four causes of
action, based on alleged violations of the following: (1) the Rules Enabling Act, 28
U.S.C. §§ 2071-2072; (2) the Supremacy Clause of the United States Constitution, U.S.
Const. art. VI, cl. 2; (3) the First Amendment; and (4) principles of equal protection.6 As
relief, the plaintiffs seek an order declaring the local rules unconstitutional and enjoining
their enforcement, and an order “declaring that District Court Local Rules shall provide
the opportunity for general bar admission privileges to all sister-state attorneys admitted
to the highest court of any state.” (JA199.)
The defendants moved to dismiss on two grounds. First, pursuant to Federal Rule
of Civil Procedure 12(b)(1), they challenged the standing of the individual plaintiffs and
5
The complaint also once refers to a plaintiff named “James A. Jackson” and lists
his address. (JA160.) He is not included in the complaint’s caption, however, nor is he
mentioned elsewhere in the rest of the complaint.
6
Because they challenge a federal rule, the plaintiffs brought their equal protection
claim under the Fifth Amendment’s Due Process Clause. “Although the fifth amendment
contains no equal protection clause, the Due Process Clause forbids discrimination in a
similar manner as the fourteenth amendment, and analysis of equal protection claims is
often the same under both.” In re Roberts, 682 F.2d 105, 108 (3d Cir. 1982) (per
curiam).
5
the NAAMJP. They argued that the plaintiffs had failed to allege that they suffered any
injury by operation of the District Court’s bar admission rules because “[t]hey have not
alleged … that they have taken steps to gain admission to the District of New Jersey,” nor
have they alleged “that they have clients that they wish to represent in the District of New
Jersey” or “even that they would attempt to develop a practice in the District of New
Jersey if admitted.” (Answering Br. at 10.) Second, the defendants argued that, even if
the plaintiffs could establish standing to challenge the local rules, the four causes of
action are without merit and should be dismissed under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted.
The District Court granted the motion to dismiss under Rule 12(b)(6), concluding
that the plaintiffs had standing to initiate their lawsuit against the judicial defendants –
though not against former Attorney General Holder – but that each of their four
substantive claims failed on the merits. The plaintiffs then filed this timely appeal.
II. DISCUSSION7
A. Standard of Review
We exercise plenary review over the District Court’s standing determination and
its dismissal of the complaint on the merits. See United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (review of jurisdictional
determination under Rule 12(b)(1) is plenary); Howard Hess Dental Labs. Inc. v.
Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010) (review of Rule 12(b)(6) dismissal
7
The District Court had jurisdiction under 28 U.S.C. § 1331, though we address
the plaintiffs’ standing later in this opinion. We exercise jurisdiction pursuant to 28
U.S.C. § 1291.
6
is plenary). “A motion to dismiss for want of standing is ... properly brought pursuant to
Rule 12(b)(1), because standing is a jurisdictional matter.”8 Ballentine v. United States,
486 F.3d 806, 810 (3d Cir. 2007). In evaluating whether a complaint adequately alleges
the elements of standing, courts must apply the same analysis applicable to an assessment
of the merits of a claim under Rule 12(b)(6): “Court[s] must accept as true all material
allegations set forth in the complaint, and must construe those facts in favor of the
nonmoving party.” Id. In evaluating a motion to dismiss under Rule 12(b)(6), we
disregard legal conclusions and recitals of the elements of a cause of action supported by
mere conclusory statements. Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.
2010) (citation omitted).
B. Standing Analysis
On appeal, the defendants continue to challenge the plaintiffs’ standing to pursue
their claims against the District Court’s admission rules. They argue that the allegations
of the complaint are insufficient to establish the standing of the individual plaintiffs or the
standing of the NAAMJP to sue on behalf of its members.
As we recently reiterated, “[s]tanding is a jurisdictional matter.” Davis v. Wells
Fargo, No. 15-2658, 2016 WL 3033938, at *8 (3d Cir. May 27, 2016).
8
A challenge to subject matter jurisdiction may be regarded as either a “facial” or
a “factual” attack. As the modifiers suggest, a facial attack challenges subject matter
jurisdiction on the face of the complaint, without disputing the facts alleged therein.
Davis v. Wells Fargo, No. 15-2658, 2016 WL 3033938, at *8 (3d Cir. May 27, 2016). A
factual attack disputes the accuracy of the facts in the complaint and includes a
submission of competing facts that might call subject matter jurisdiction into question.
Id. This case presents a facial attack, as the defendants have not challenged any of the
factual allegations of the complaint.
7
The Supreme Court has recognized that “the irreducible constitutional
minimum of standing contains three elements,” which the party invoking
federal jurisdiction must establish. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). First, the plaintiff must show that he suffered an “injury
in fact,” meaning a concrete and particularized invasion of a legally
protected interest. Id. Second, the plaintiff must demonstrate a “causal
connection between the injury and the conduct complained of – the injury
has to be fairly traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not before the
court.” Id. (internal quotation and editorial marks omitted). “Third, it must
be likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” Id. at 561 (internal quotation marks omitted).
Id.
The defendants’ argument hinges on the first element; they contend that the
plaintiffs cannot establish standing because there is no adequate allegation that the
District Court’s local rule caused the plaintiffs any injury. The individual plaintiffs have
alleged that they “will apply for admission to the U.S. District Court for the District of
New Jersey bar if its admission rule is changed.” (JA165-166.) But the defendants say
that more is required to establish cognizable injury. In their view, the plaintiffs must
have alleged that they actually did apply to join the bar of the District Court and were
denied, or that they have clients that they would represent in the District Court, were they
admitted to its bar.9 In making that argument, the defendants chiefly rely upon our non-
precedential opinion in NAAMJP v. Gonzales, in which we dismissed an NAAMJP
9
The defendants also argue that “[n]either Vereb nor Doscher state whether they
are admitted to practice in New Jersey – a fact that, if true, would qualify them for
admission under Local Rule 101.1(b).” (Answering Br. at 15.) The District Court
properly rejected that argument out of hand. When deciding a motion to dismiss, we
must draw all reasonable inferences in the plaintiff’s favor. Foglia v. Renal Ventures
Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014). It is reasonable for us to infer that
Vereb and Doscher would not have participated in this challenge to the local rules if
those rules did not actually inhibit their admission to the bar of the District Court.
8
challenge to similar local rules for lack of injury because the plaintiffs “ha[d] made no
showing that they were denied the ability to practice in any of those states or that they
would seek to practice there but-for the local court rules.” 211 F. App’x 91, 95 (3d Cir.
2006).
Gonzales is indeed non-precedential, and, by our own Internal Operating
Procedures, we cannot rely on it as authority. 3d Cir. I.O.P. 5.7 (2015). Without regard
to Gonzales, though, both Vereb and Doscher have alleged that they would seek
admission to the District Court bar if the local rules were changed. They need not
actually have sought admission, as their applications would certainly have been denied.
See Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d 639, 643 (3d Cir. 1995) (“futile
gestures” are not required to establish standing). Vereb and Doscher are already engaged
in the legal profession, admitted to the bar of a neighboring state, and would apply to the
District Court bar if the rules were changed to permit their admission. Since denial of
their application was assured, the rules inflict the alleged injury regardless of whether
Vereb and Doscher actually undertook the futile application process. In its thorough
opinion, the District Court laid out the elements of standing, as to both the two individual
plaintiffs and the associational standing of NAAMJP as a group, and concluded that they
are met under the circumstances of this case. We agree with that well-supported
conclusion, and therefore proceed to the merits of the plaintiffs’ claims.10
10
In their brief, the plaintiffs do not appear to challenge the District Court’s
conclusion that they lacked standing to bring their claims against former Attorney
General Holder. Regardless, we agree with the District Court. The plaintiffs stated in
their complaint that they named Holder as a defendant “because federal law as set forth
9
C. Merits Analysis
The plaintiffs have raised four claims against the District Court’s local rules for
admission to its bar, relying on the Rules Enabling Act, the Supremacy Clause, the First
Amendment, and principles of equal protection. We address each below.
1. The Rules Enabling Act
The Rules Enabling Act, 28 U.S.C. § 2071, permits federal courts to “prescribe
rules for the conduct of their business,” though “[s]uch rules shall be consistent with Acts
of Congress and rules of practice and procedure prescribed under section 2072 of this
title.” The “rules of practice and procedure prescribed under section 2072 of this title”
are rules adopted by the Supreme Court of the United States. In other words, district
court local rules cannot contradict any federal law or rules promulgated under the
authority of the Supreme Court.
Local Civil Rule 101.1 does not conflict with any Acts of Congress or any rules
adopted by the Supreme Court.11 As a result, those local rules do not violate the Rules
by the Supreme Court in interpreting the Constitution, and by Congress in enacting the
Rules Enabling Act mandating federal Local Rule uniformity is not being uniformly
followed or enforced.” (JA167 (emphasis omitted).) Even if that highly questionable
premise for naming the Attorney General were sound, the Attorney General plays no role
in the adoption of the local rules of any federal district court, so the plaintiffs’ alleged
injury is not fairly traceable to any conduct undertaken by Holder.
11
The plaintiffs cite a number of allegedly-conflicting laws in passing, which we
likewise address here only briefly. First, they say that Local Civil Rule 101.1 violates 28
U.S.C. § 1738 by denying full faith and credit to the judgments of the states in which they
are admitted to the bar. Of course, New York’s judgment that an individual should be
admitted to its own bar establishes only that fact (i.e., admission to the state bar of New
York), and does not even purport to require nationwide bar membership. See Giannini v.
Real, 911 F.2d 354, 360 (9th Cir. 1990) (rejecting full faith and credit argument).
10
Enabling Act. The matter is no more complicated than that. The District Court’s opinion
ably addresses and rejects the plaintiffs’ argument, and the United States Court of
Appeals for the Fourth Circuit recently rejected the same argument advanced by the very
same plaintiff and counsel. See Lynch, 2016 WL 3361558, at *3. We agree with their
reasoning and conclusions.
2. The Supremacy Clause
The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2. The Clause ensures that, if federal and state law conflict,
federal law controls.
Fortunately, there is no conflict between state and federal law in this case. The
plaintiffs suggest – in a “borderline frivolous” argument, Lynch, 2016 WL 3361558, at *4
– that the District Court’s local rule somehow allows New Jersey state law to control
federal courts because it incorporates the state’s attorney admission rules. But that is far
Second, they claim that Local Civil Rule 101.1 violates “[t]he national rules for bar
admission,” citing Supreme Court Rule 5, Federal Rule of Appellate Procedure 46, and 5
U.S.C. § 500(b). (Opening Br. at 28.) But Supreme Court Rule 5 governs only
admission to the bar of that Court; Federal Rule of Appellate Procedure 46 governs
admission to the bars of the United States Courts of Appeals; and § 500(b) governs
representation before federal administrative agencies. Local Civil Rule 101.1 conflicts
with none of them. See In re Roberts, 682 F.2d 105, 108-09 (3d Cir. 1982) (per curiam).
Finally, the plaintiffs vaguely suggest that Local Civil Rule 101.1 violates
“[c]ongressionally enacted laws for patent and patent attorneys” and undermines the
purposes of the Federal Rules of Civil Procedure. (Opening Br. at 28-29.) Neither
contention has merit, and they warrant no further discussion.
11
from so. Local Civil Rule 101.1 adopts the state standard for attorney admission; it does
not allow New Jersey to somehow impose its will on the federal court sitting in that state.
See United States v. Klubock, 832 F.2d 649, 651 (1st Cir. 1987) (recognizing that when a
federal rule incorporates state law, the rule in question “can no longer be considered to be
a state law, because by its incorporation into the [federal] local rules, [it] has become
federal law” (original emphasis)), vacated on other grounds, 832 F.2d 664 (1st Cir. 1987)
(en banc), aff’g by equally divided court, 639 F. Supp. 117 (D. Mass. 1986); see also
United States ex rel. O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1257 n.4 (8th
Cir. 1998) (noting that “Supremacy Clause considerations do not come into play” in
challenges to local rules of a United States District Court (internal quotation marks
omitted)). As the District Court here rightly pointed out, it “is free to change [its] rules at
any time, subject to the procedural and substantive limitations of the Rules Enabling
Act.” (JA014.) The Court properly rejected the plaintiffs’ Supremacy Clause argument.
3. First Amendment
The First Amendment prevents the government from “abridging the freedom of
speech ... or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. Const. amend. I. The plaintiffs raise
several theories as to how the District Court’s local rules violate the First Amendment.
They claim that the rules are overbroad, discriminate based upon the content and
viewpoint of their speech, constitute an illegal prior restraint on speech, violate their
freedom of association, and infringe upon their right to petition the government for a
redress of grievances. The District Court ably addressed each of those arguments and
12
rejected them. We agree with its analysis and conclusions and need not belabor the
subject here.
We do note, however, that we recently rejected a similar First Amendment
challenge to Pennsylvania’s bar admission rules (also brought by the NAAMJP) in
Castille. There, we held that Pennsylvania’s state admission rule – which admits to the
Commonwealth’s bar experienced attorneys admitted in reciprocal jurisdictions – was not
a limitation on speech at all, but was instead “an exercise of Pennsylvania’s ‘broad power
to establish standards for licensing practitioners and regulating the practice of
professions.’” Castille, 799 F.3d at 221 (quoting King v. Governor of the State of N.J.,
767 F.3d 216, 229 (3d Cir. 2014)); see also Ohralik v. Ohio State Bar Ass’n, 436 U.S.
447, 459 (1978) (“A lawyer’s procurement of remunerative employment is a subject only
marginally affected with First Amendment concerns. It falls within the State’s proper
sphere of economic and professional regulation.”). The Pennsylvania rule “does not
reward, punish, or even acknowledge the content or viewpoint of any attorney’s speech.”
Castille, 799 F.3d at 223. We also noted that the challengers were free to practice law in
Pennsylvania if they passed the bar exam or applied for pro hac vice admission, thus
limiting any impact on their expressive activities or freedom of association. Id. at 224.
In this case, the NAAMJP raises basically the same contentions that it
unsuccessfully argued in Castille. Local Civil Rule 101.1, like its Pennsylvania
counterpart, is nothing more than a standard regulation of the legal profession. It places
minimal limitations on expressive activities. Unlicensed attorneys are free to represent
themselves pro se, pass the New Jersey bar exam, or apply for admission pro hac vice on
13
a case-by-case basis. The District Court’s local rules do not target any speech based upon
its content or the viewpoint of the speaker.12 “[T]he broadly formulated First
Amendment argument here would, if successful, greatly undermine the power of states to
regulate bar membership, when this power has been repeatedly recognized and upheld by
the courts.” Russell v. Hug, 275 F.3d 812, 822 (9th Cir. 2002). If our own precedent
were not enough, both the Fourth Circuit and the United States District Court for the
District of Columbia recently rejected the NAAMJP’s First Amendment arguments.
Lynch, 2016 WL 3361558, at *2; NAAMJP v. Roberts, No. 13-01963, 2015 WL
10459071, at *8-12 (D.D.C. Dec. 31, 2015), appeal docketed, No. 16-5020 (D.C. Cir.
Jan. 31, 2016). We do so again.
4. Equal Protection
In an equal protection challenge, we generally begin by determining the standard
of scrutiny applicable to the challenged statute or rule. Donatelli v. Mitchell, 2 F.3d 508,
12
The plaintiffs argue that the Supreme Court’s recent opinion in Reed v. Town of
Gilbert, Ariz., 135 S. Ct. 2218 (2015), should change our conclusion regarding content
neutrality. In a recently-filed letter brief, the plaintiffs go on to say that the doctrinal
impact of Reed has been clarified by two of this Court’s recent decisions – Free Speech
Coalition, Inc. v. Att’y Gen., No. 13-3681, 2016 WL 3191474 (3d Cir. June 8, 2016) and
Bruni v. City of Pittsburgh, No. 15-1755, 2016 WL 3083776 (3d Cir. June 1, 2016). We
need not address that argument, however, since Reed predates our opinion in Castille, so
it cannot constitute the sort of intervening authority that would permit us to “reevaluate a
precedent.” Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996). In any event,
Reed does not help the plaintiffs. Local Civil Rule 101.1 does not differentiate between
attorneys based upon their viewpoints or the content of their speech. Like the
Pennsylvania bar admission rules at issue in Castille, it differentiates between them based
only upon their state of bar admission. We also note that the plaintiffs did not make their
Reed argument in their opening brief, but instead only advanced the point in their reply
brief and in a supplemental submission. See United States v. Pelullo, 399 F.3d 197, 222
(3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue an issue in
his opening brief constitutes waiver of that issue on appeal.”).
14
513 (3d Cir. 1993). If a law burdens a fundamental right or targets a suspect
classification of individuals, it must satisfy some level of heightened scrutiny. Hassan v.
City of New York, 804 F.3d 277, 298-99 (3d Cir. 2015). If not, we apply the lowest
standard of scrutiny, so-called “rational basis” review. FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993). Under that standard, the challenged rule “comes ... bearing a
strong presumption of validity, and those attacking the rationality of the [rule] have the
burden to negative every conceivable basis which might support it.” Id. at 314-15
(internal citations omitted). “[I]f there is any reasonably conceivable state of facts that
could provide a rational basis for the classification,” it must be upheld. Id. at 313. In
other words, “[w]here there are plausible reasons for [the rule], our inquiry is at an end.”
Id. at 313-14 (internal quotation marks omitted).
Local Civil Rule 101.1 is subject to rational basis review. The rule treats attorneys
differently based upon whether they are admitted to the state bar of New Jersey. It
neither burdens a fundamental right nor targets a suspect class of people. See
Schumacher v. Nix, 965 F.2d 1262, 1268 (3d Cir. 1992) (“The courts that have
considered equal protection challenges to state bar rules have uniformly applied rational
basis review.”); see also Castille, 799 F.3d at 220 (applying rational basis review to
NAAMJP’s challenge to Pennsylvania reciprocal bar admission rule). We have
previously upheld the central provision of Local Civil Rule 101.1 – that all attorneys
practicing generally before the District Court must be members of the New Jersey bar –
against an equal protection challenge applying rational basis review. See In re Roberts,
15
682 F.2d 105 (3d Cir. 1982) (per curiam). In that case, we identified the following
justifications for the District Court’s preference for state-barred attorneys:
Because there is no federal procedure in the district court for determining
an applicant’s fitness to practice law before it, the court may properly rely
on prior admission to the bar of the supreme court of the state in which the
district court sits. Counsel appointed to represent the district court points
out also that tying district court admission to state bar membership tends to
protect the interests of the public. For example, when a choice of either a
federal or a state forum is available in a particular case an attorney admitted
only to the federal court may choose that forum solely for that reason,
possibly disregarding the interests of his client.
Id. at 108. Other courts have also pointed out, quite rightly, that federal courts often sit in
diversity and apply state substantive law, so familiarity with state law is a rational basis
on which to admit attorneys to the federal bar of that same state. See Giannini v. Real,
911 F.2d 354, 360 (9th Cir. 1990) (justifying California federal bar admission rules by
acknowledging that “questions of California substantive law permeate the range of cases
over which the district courts have subject matter jurisdiction”).13
13
The exceptions for patent attorneys admitted to practice before the United States
Patent Office and attorneys representing the United States also have a rational basis. As
we recognized in Roberts:
We believe that the exemptions extended to certain patent lawyers and
lawyers representing the United States and its agencies … are based on
reasonable distinctions related to the court’s interest in ensuring the
competence of counsel appearing before it. Attorneys admitted to practice
before the patent office must pass a uniform, national examination. This
procedure serves as an adequate substitute for state examination for
determining fitness to practice in this limited area of federal law. … In the
case of counsel representing the United States, the court’s interest in
ensuring competence of lawyers appearing before it is satisfied by its
reliance on the government to exercise care in the selection and supervision
of its lawyers. [That exception] reasonably accommodates the
16
In response, the plaintiffs criticize the wisdom of the District Court’s attorney
admission rules. They say that “[t]he ABA has concluded [that] one bar exam for ABA
graduates is enough,” and they question whether the bar exam itself adequately ensures
attorney competence. (Opening Br. at 34-35.) They also point out that “[t]hirty-nine
states and the District of Columbia provide general admission on motion privileges to
out-of-state licensed attorneys.” (Id. at 35.) In other words, they argue that passing the
New Jersey bar exam does not, in any way, make an attorney better suited to the practice
of law in the District Court than passage of any of the other 50 bar exams offered across
the United States.14 Even if there were some empirical basis for that claim, it would not
government’s interest in representation without arbitrarily discriminating
against attorneys engaged in private practice.
682 F.2d at 108.
14
The plaintiffs make other assertions that, while they do not merit discussion,
should be put forward for public consideration. They say, for example, that, “[i]f it is
self-evident that all American citizens are created equal, then it follows that all American
lawyers are created equal.” (Opening Br. at 4.) They next argue that, “[i]f gays and
lesbians have a constitutional right to have their state-licensed marriage recognized by the
District Court, then it follows that attorneys and their clients have a substantive right to
have their attorney-client relationship recognized by the District Court.” (Id. at 4-5.) The
plaintiffs also compare the District Court’s local rules “to the literacy tests Blacks were
required to pass in order to vote.” (Id. at 13; see also Reply Br. at 3.) Payments by out-
of-state attorneys admitted pro hac vice are, they say, “much like a poll tax on the right to
vote.” (Id. at 22.) They argue that “[t]he decision below, to be candid, much like cancer
cells that have metalized [sic] and refuse to turn off because of a DNA coding error, is
trapped with malfunctioning DNA.” (Id. at 39.) They twice describe certain of the
District Court’s conclusions as a “fairy tale.” (Id. at 41, 45.) And, in their supplemental
submission, they cite Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992) to argue the inadequacy of pro hac vice admission, stating: “If a woman
does not need to get her husband’s permission to get an abortion, a woman lawyer does
not need to get another attorney’s permission to file a federal lawsuit.” (Plaintiffs’
17
negate the rationales advanced for the District Court’s attorney admission rule. “The
assumptions underlying these rationales may be erroneous, but the very fact that they are
arguable is sufficient, on rational-basis review, to immuniz[e] the [rule] from
constitutional challenge.” Beach Commc’ns, 508 U.S. at 320 (internal quotation marks
omitted). For the reasons we identified in Roberts, limiting District Court bar admission
to New Jersey attorneys is permissible under rational basis review.15
III. CONCLUSION
“[A] federal court has the power to control admission to its bar … .” Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991). Here, the District Court’s local rules for attorney
admission are neither unique nor particularly restrictive. “[F]ederal courts have
traditionally used admission to the bar of a state court as a standard for initial admission
to their bars … .” Surrick v. Killion, 449 F.3d 520, 529 (3d Cir. 2006). “To be sure,
federal courts have uniformly rejected challenges to the requirement that admission to
practice before individual federal district courts be limited to attorneys admitted to the
bar of the forum state.” Priestley v. Astrue, 651 F.3d 410, 422 n.5 (4th Cir. 2011) (Davis,
Supplemental Submission filed June 1, 2016 at 7.) These arguments, such as they are, do
not help the plaintiffs’ contention that admission standards should be less rigorous.
15
The plaintiffs also argue in their brief that the local rules violate federal antitrust
laws by “providing New Jersey lawyers with a monopoly on access to the federal court
… .” (Opening Br. at 55.) They did not advance this claim in their complaint, however,
nor did they make the argument below. Accordingly, we will not consider that claim or
argument on appeal. Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994) (“This
court has consistently held that it will not consider issues that are raised for the first time
on appeal.”).
18
J., concurring in part and in judgment). We do the same here, and will therefore affirm
the order of the District Court.
19