Nat'l Assoc. for the Advancement of Multijurisdiction Practice v. Beryl A Howell ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2017 Decided March 14, 2017
No. 16-5020
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
MULTIJURISDICTION PRACTICE, (NAAMJP), ET AL.,
APPELLANTS
JOSE JUHUDA GARCIA AND HERBERT HOWARD DETRICK, II,
APPELLEES
v.
BERYL A. HOWELL, CHIEF JUDGE, U.S. DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01963)
Joseph Robert Giannini argued the cause and filed the
briefs for appellants. Raymond Carignan entered an
appearance.
Brian P. Hudak, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
2
Before: BROWN and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by BROWN, Circuit Judge.
BROWN, Circuit Judge: The National Association for the
Advancement of Multijurisdiction Practice (“NAAMJP”) has
conducted a thirty-year campaign to overturn local rules of
practice limiting those who may appear before a particular
state or federal court. See NAAMJP v. Simandle, 658 F.
App’x 127, 130 (3d Cir. 2016) (noting NAAMJP has
“crisscrossed the United States, challenging local bar
admission rules”); Blye v. California Supreme Court, No. 11-
cv-5046, 2014 WL 229830, at *2 n.3 (N.D. Cal. Jan. 21,
2014) (collecting cases dating back to 1987). We now join
the chorus of judicial opinions rejecting these futile
challenges. See, e.g., Simandle, 658 F. App’x 127; NAAMJP
v. Lynch, 826 F.3d 191 (4th Cir. 2016); Giannini v. Real, 911
F.2d 354 (9th Cir. 1990).
In the present case, NAAMJP and two of its members
allege bar admission conditions for the United States District
Court for the District of Columbia, established in the identical
text of Local Civil Rule 83.8 and Local Criminal Rule 57.21
(collectively, the “Local Rule”), violate statutory and
constitutional legal standards. Specifically, the Local Rule
provides:
Admission to and continuing membership in the Bar
of this Court are limited to: (1) attorneys who are
active members in good standing in the District of
Columbia Bar; or (2) attorneys who are active
members in good standing of the Bar of any state in
which they maintain their principal law office; or (3)
in-house attorneys who are active members in good
3
standing of the Bar of any state and who are
authorized to provide legal advice in the state in
which they are employed by their organization client.
D.D.C. LOCAL CIV. R. 83.8(a); D.D.C. LOCAL CRIM. R.
57.21(a). NAAMJP focuses its challenge on the second
option, the Primary Office Provision.
Defendants—Judges of the United States District Court
for the District of Columbia (the “District Court”) and former
Attorney General Loretta Lynch—moved to dismiss
NAAMJP’s complaint; the district court granted the motion in
a thorough and thoughtful opinion. 1 Nonetheless, NAAMJP
argues on appeal that the Local Rule (1) violates the Rules
Enabling Act, 28 U.S.C. §§ 2071 and 2072; (2) runs afoul of
the Supreme Court’s decision in Frazier v. Heebe, 482 U.S.
641 (1987); (3) improperly applies rational basis review; and
(4) violates 28 U.S.C. § 1738, admission requirements of
other federal courts and administrative agencies, and the First
Amendment to the U.S. Constitution. Because each of these
arguments lacks merit, we affirm.
I.
As an initial matter, the district court properly concluded
it lacked subject-matter jurisdiction to adjudicate (1) all
claims brought by Patent Lawyer Doe (“Doe”) and (2) all
claims asserted against the Attorney General.
Both the Amended Complaint and Doe’s Declaration fail
to articulate any actual and imminent injury, which is
necessary to establish Article III standing in this case. See
1
The Honorable Nathaniel M. Gorton of the United States District
Court for the District of Massachusetts, sitting by designation,
presided over this case below.
4
Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–64 (1992).
Indeed, Doe does not describe where he practices law or
otherwise suggest the Local Rule’s Principal Office Provision
has inhibited his legal practice. Conclusory assertions of
harm, or reference to Doe’s practice at a “Big Law firm in
San Diego” in briefing on appeal, see NAAMJP Br. 7, do not
remedy this deficiency.
Additionally, NAAMJP has failed to identify any role
whatsoever of the Attorney General—or any member of the
executive branch, for that matter—in promulgating or
enforcing the District Court’s local rules. Accordingly, the
district court properly dismissed Doe and the Attorney
General.
II.
On the merits, NAAMJP argues the district court
improperly applied the Rules Enabling Act, which permits
judges to prescribe rules governing practice before their court.
Specifically, 28 U.S.C. § 2071 states,
The Supreme Court and all courts established by Act
of Congress may from time to time prescribe rules
for the conduct of their business. Such rules shall be
consistent with Acts of Congress and rules of
practice and procedure prescribed under section 2072
of this title.
28 U.S.C. § 2071(a). The “rules of practice and procedure
prescribed under section 2072 of this title” are rules adopted
by the Supreme Court of the United States:
The Supreme Court shall have the power to prescribe
general rules of practice and procedure and rules of
evidence for cases in the United States district courts
5
(including proceedings before magistrate judges
thereof) and courts of appeals. . . . Such rules shall
not abridge, enlarge or modify any substantive right.
28 U.S.C. § 2072(a)–(b).
The Local Rule at issue here is indisputably “for the
conduct of [the District Court’s] business,” id. § 2071(a); it
explains which attorneys may practice before the District
Court. Moreover, as explained below, the Principal Office
Provision does not contravene any Act of Congress or “rules
of practice and procedure” adopted by the Supreme Court.
See id. § 2072(a). As the Third Circuit recently remarked,
“The matter is no more complicated than that.” Simandle,
658 F. App’x at 134 (adopting the Fourth Circuit’s analysis in
Lynch, 826 F.3d at 197).
Nonetheless, NAAMJP argues Sections 2071 and 2072
interlock, contending rules promulgated pursuant to Section
2071 must comply with Section 2072’s mandate that “[s]uch
rules shall not abridge, enlarge or modify any substantive
right.” 28 U.S.C. § 2072(b). Several courts of appeals have
summarily rejected this argument. See Lynch, 826 F.3d at
197. Here, it suffices to note NAAMJP has failed to identify
any substantive right—whether constitutional, statutory, or
derived from national federal rules—that has been infringed
by the Local Rule. Accordingly, NAAMJP cannot sustain its
Rules Enabling Act challenge.
III.
NAAMJP relies heavily on the Supreme Court’s decision
in Frazier v. Heebe, claiming it directly invalidates the Local
Rule. But in Frazier, the Supreme Court exercised its own
unique supervisory authority to overturn a local rule regarding
bar admission in the Eastern District of Louisiana and, in so
6
doing, made no constitutional ruling. 482 U.S. at 645
(“Pursuant to our supervisory authority, we hold that the
District Court was not empowered to adopt its local Rules to
require members of the Louisiana Bar who apply for
admission to its bar to live in, or maintain an office in,
Louisiana where that court sits. We therefore need not
address the constitutional questions presented.”). No similar
authority vests in a single district court judge. Rather, “[a]
rule of a district court . . . remain[s] in effect unless modified
or abrogated by the judicial council of the relevant circuit.”
28 U.S.C. § 2071(c)(1) (emphasis added). The “judicial
council,” in turn, is a body comprised of “the chief judge of
the circuit” and “an equal number of circuit judges and district
judges of the circuit.” Id. § 332(a)(1). A single district court
judge or an appellate panel may not usurp that body’s
authority. 2 While this point may be “hyper-technical[],”
NAAMJP Reply Br. 7, it is the law.
IV.
Although NAAMJP does not identify the district court’s
equal protection holding as an issue under review, or
otherwise clearly argue the district court erred in dismissing
the Fifth Amendment claim, it nonetheless argues Judge
Gorton erroneously applied “rational basis review” to resolve
its claims.
To assess an equal protection claim, this Court begins by
determining the appropriate standard of review. If a rule does
not infringe a fundamental right or disadvantage a suspect
class, no more than rational basis review is required. FCC v.
2
NAAMJP argues Frazier created a standard of review requiring
district court rules to meet a two-pronged “rational” and
“necessary” test. NAAMJP Br. 17–18. The contention finds no
support in the Frazier majority opinion, and we easily reject it.
7
Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Such a 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. Accordingly, “[w]here there are plausible reasons
for [the challenged rule], our inquiry is at an end.” Id. at 313–
14.
Here, the Principal Office Provision is properly subject to
rational basis review. For purposes of the Equal Protection
Clause, it neither burdens a fundamental right nor targets a
suspect class. See Lynch, 826 F.3d at 196; Simandle, 658 F.
App’x at 137. It distinguishes among attorneys based on
whether they have been admitted to the bar of the state where
their principal law office is located, not on the basis of
residency or any protected characteristic. See NAAMJP
Reply Br. 5 (conceding the Local Rule discriminates “on the
basis of office location”). For the same reason, any claim of
heightened scrutiny under the Privileges and Immunities
Clause also fails. Cf. Barnard v. Thorstenn, 489 U.S. 546
(1989) (invalidating a rule requiring Virgin Islands bar
applicants to establish year-long residence and intent to
remain in the Virgin Islands under the Privileges and
Immunities Clause).
Here, the Principal Office Provision ensures attorneys
who practice before the District Court—but who avoid
supervision by the District of Columbia Bar—are subject to
supervision by the state to which their practice is most
geographically proximate. The Principal Office Provision
embodies a reasonable assumption: local licensing control is
better positioned to facilitate training sessions, conduct
monitoring programs, and field complaints from the public—
all rational bases for the Local Rule. Indeed, much more
restrictive district court rules have passed rational basis
8
review in other circuits. See, e.g., Simandle, 658 F. App’x at
130 (District of New Jersey admits only New Jersey bar
members); Lynch, 826 F.3d at 194–95, 197 (District of
Maryland’s principal office provision is limited to those
jurisdictions with reciprocity for District of Maryland bar
members). 3
V.
NAAMJP raises a number of additional claims under the
Constitution and federal statutes. Each fails for the reasons
discussed below.
First, NAAMJP asks this Court to declare the Local Rule
invalid because it abridges the full faith and credit owed to
State actions under 28 U.S.C. § 1738. But NAAMJP does not
identify any state action that should compel the D.C. District
Court to allow attorneys admitted in other jurisdictions to
handle cases in that court. Indeed, there is none, and
NAAMJP’s Section 1738 claim must fail. See, e.g., Real, 911
F.2d at 360 (“Giannini’s claim lacks merit because no act,
record or judicial proceeding, in New Jersey or Pennsylvania,
states that Giannini is entitled to practice law in California.”);
Simandle, 658 F. App’x at 134 n.11 (“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.”).
3
NAAMJP also claims this case involves structural error. But structural
error does not refer to a heightened standard of review. Arizona v.
Fulminante, 499 U.S. 279, 309–10 (1991) (discussing structural error,
which “def[ies] analysis by harmless error standards” because it “affec[ts]
the framework within which the trial proceeds” and is not “simply an error
in the trial process itself”). Accordingly, the claim lacks merit.
9
Second, NAAMJP alleges the Local Rule violates
admission requirements of other courts and governmental
bodies, including Supreme Court Rule 5, setting forth rules
for admission to the Supreme Court Bar; Federal Rule of
Appellate Procedure 46, establishing general procedures for
admission to the bars of the U.S. Courts of Appeals; and rules
governing practice before federal administrative agencies. By
their plain text, these rules apply only to the bodies that
promulgated them, and they do not control the admission
requirements of federal district courts. See, e.g., Real, 911
F.2d at 360 (“The Supreme Court’s Rule only concerns
admission to practice before that court. It does not prescribe
the requirements to practice before federal district courts. The
district court admission rules differ from the Supreme Court
admission rules but are not inconsistent in that they each deal
with separate courts. Local District Court Rules are not
required to mirror Supreme Court Rules.”). NAAMJP fails to
identify a single rule that reaches beyond its promulgating
tribunal to apply to the District Court.
Third, and finally, NAAMJP mounts a First Amendment
challenge to the Local Rule, arguing it violates both speech
and petition rights. See U.S. CONST. amend. I.
Contrary to NAAMJP’s suggestion, the Local Rule is not
an unconstitutional content-based restriction on speech.
Generally, the government may “license and regulate those
who would provide services to their clients for compensation
without running afoul of the First Amendment.” Moore-King
v. Cty. of Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013); 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.”).
10
Accordingly, “[i]f the government enacts generally applicable
licensing provisions limiting the class of persons who may
practice the profession, it cannot be said to have enacted a
limitation on freedom of speech or the press subject to First
Amendment scrutiny.” Lowe v. SEC, 472 U.S. 181, 232
(1985) (White, J., concurring in the result). “Regulations on
entry into a profession, as a general matter, are constitutional
if they ‘have a rational connection with the applicant’s fitness
or capacity to practice’ the profession.” Id. at 228 (quoting
Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 239 (1957)).
Indeed, our sister circuits have rejected NAAMJP’s First
Amendment challenges to local rules in other district courts
for this very reason, finding “the First Amendment does not
come into play” when considering restrictions on admission
similar to the Principal Office Provision. Lynch, 826 F.3d at
196; see also, e.g., NAAMJP v. Castille, 799 F.3d 216, 220–
21 (3d Cir. 2015). Here, the Local Rule “does not
discriminate on the basis of the subject matter or viewpoint of
any bar applicant’s speech, the area of law an applicant would
practice, or the clients an applicant would represent.”
Castille, 799 F.3d at 220. Nor does it “regulate when, where,
or how attorneys speak, [or] prohibit a category of
professional speech.” Id. at 221. The Principal Office
Provision merely regulates the profession in a manner that, as
described above, passes rational basis review.
Further, as the district court noted, “[t]he Petition Clause
of the First Amendment [as it is invoked here] protects the
rights of individuals to access the courts for the resolution of
legal disputes.” NAAMJP v. Roberts, 180 F. Supp. 3d 46, 63
(D.D.C. 2015); see Borough of Duryea v. Guarnieri, 564 U.S.
379, 387 (2011). But the Local Rule affects only attorneys
wishing to appear before the District Court. And NAAMJP
has not established that the Principal Office Provision has
11
prevented private litigants from accessing courts. See Lynch,
826 F.3d at 196 n.7 (dismissing NAAMJP’s challenge to the
rule at issue as “meritless and utterly inapplicable”).
Accordingly, NAAMJP’s First Amendment arguments fail. 4
VI.
The Court does not doubt the sincerity of NAAMJP’s
convictions or its eagerness to reduce barriers to legal practice
in the various state and federal courts across the country.
Indeed, there may be good policy reasons for the outcomes
NAAMJP urges. But, as has been amply demonstrated in
dozens of legal opinions penned by judges across the country,
NAAMJP has identified no legal basis upon which to compel
federal or state courts to adopt the rules it desires.
Accordingly, the judgment of the district court is
Affirmed.
4
While NAAMJP raises the district court’s determination with
respect to the right to free association, it does not develop this
argument in its opening brief. Accordingly, the claim is forfeited.
See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C.
Cir. 2001) (“A litigant does not properly raise an issue by
addressing it in a cursory fashion with only bare-bones
arguments.”). In any event, as Judge Gorton clearly held, these
claims are baseless. See Lynch, 826 F.3d at 196 n.7. NAAMJP’s
members are free to associate with D.C. District Court Bar
members—but they must follow one of the multiple paths set forth
in the District Court’s rules in order to do so.