Leclerc v. Webb

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED AUGUST 18, 2005

July 29, 2005

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III

Clerk

_______________________

No. 03-30752

_______________________

KAREN LECLERC; GUILLAUME JARRY;

BEATRICE BOULORD; MAUREEN D. AFFLECK,

Plaintiffs - Appellants - Cross Appellees,

versus

DANIEL E. WEBB, ET AL.,

Defendants,

DANIEL E. WEBB; HARRY J. PHILLIPS, In Their Respective

Official Capacities as Chairman and Vice-Chairman of the

Louisiana Committee on Bar Admissions;

JEFFERY P. VICTORY; JEANNETTE THERIOT KNOLL;

CHET D. TRAYLOR; CATHERINE D. KIMBALL, a/k/a Kitty Kimball;

JOHN L. WEIMER; BERNETTE JOSHUA JOHNSON, In Their

Official Capacities as Justices of the Louisiana

Supreme Court,

Defendants - Appellees - Cross Appellants.

***************************************************************

_______________________

No. 03-31009

_______________________

CAROLINE WALLACE; EMILY MAW,

Plaintiffs - Appellees,

versus

PASCAL F. CALOGERO JR., in his official capacity as

Chief Justice of the Louisiana Supreme Court;

JEFFREY P. VICTORY; JEANNETTE THERIOT KNOLL;

CHET D. TRAYLOR; CATHERINE D. KIMBALL; JOHN L. WEIMER;

BERNETTE J. JOHNSON, in their official capacities as

Justices of the Louisiana Supreme Court;

DANIEL E. WEBB; HARRY J. PHILLIPS, JR., in their

respective official capacities as Chairman and

Vice-Chairman of the Louisiana Committee on Bar Admissions,

Defendants - Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana,

Before JONES, SMITH, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal arises from two consolidated actions filed by

nonimmigrant aliens whose status, according to Louisiana Supreme

Court Rule XVII, § 3(B), renders them ineligible to sit for the

Louisiana Bar.1 The district courts disagreed whether the

Louisiana rule impermissibly discriminates against the plaintiffs

in violation of the Equal Protection Clause. Because the level of

constitutional protection afforded nonimmigrant aliens is different

from that possessed by permanent resident aliens, we hold that the

Louisiana rule survives rational basis review.

BACKGROUND

I. Louisiana Bar Rule

Louisiana Supreme Court Rule XVII, § 3(B) (“Section

1

LeClerc, et al. v. Webb, et al., 270 F. Supp. 2d 779 (E.D. La. 2003),

and Wallace, et al. v. Calogero, et al., 286 F. Supp. 2d 748 (E.D. La. 2003).

We consolidated these cases for purposes of this appeal.

2

3(B)”) requires that “[e]very applicant for admission to the Bar of

this state shall . . . [b]e a citizen of the United States or a

resident alien thereof.” Prior to the adoption of Section 3(B),

Louisiana precedent defined “resident alien” as a “foreign

national[] lawfully within the United States.” In re Appert, 444

So. 2d 1208, 1208 (La. 1984). In 2002, the Louisiana Supreme Court

overturned Appert, and held that the term “resident alien . . .

appl[ies] only to those aliens who have attained permanent resident

status in the United States.” In re Bourke, 819 So. 2d 1020, 1022

(La. 2002). As interpreted in Bourke, Section 3(B) effectively

prohibits the instant plaintiffs — nonimmigrant aliens2 who are

“not entitled to live and work in the United States permanently” —

from sitting for the Louisiana Bar. Bourke, 819 So. 2d at 1022.

II. The LeClerc Plaintiffs

The LeClerc plaintiffs, Karen LeClerc, Guillame Jarry,

Beatrice Boulord, and Maureen Affleck, are nonimmigrant aliens who

hold degrees from foreign law schools and seek leave to sit for the

Louisiana Bar. LeClerc and Jarry are French citizens admitted to

the United States on J-1 student visas.3 Boulourd, also a French

2

The Immigration and Nationality Act distinguishes between immigrant

and nonimmigrant aliens, negatively defining an immigrant alien as “every alien

except an alien who is within one of the following classes of nonimmigrant

aliens.” 8 U.S.C. § 1101(a)(15) [IMMLS PSD INA § 101]. An alien falling into

one of fifteen exclusionary categories is a nonimmigrant alien, a class generally

delimited by a lack of intention to abandon his foreign country residence and

entry into the United States for specific and temporary purposes.

3

Title 8 U.S.C. § 1101(a)(15)(J) [IMMLS PSD INA § 101], admits a

nonimmigrant alien who:

3

citizen, was initially admitted to the United States on a J-1

student visa, but currently remains in the United States on an H-1B

temporary worker visa.4 Affleck is a Canadian citizen initially

admitted to the United States on an L-2 spousal visa,5 but

currently remains in the United States on an H-1B temporary worker

visa.

As graduates of foreign law schools seeking permission to

sit for the Louisiana Bar, each plaintiff was required to apply for

an equivalency determination pursuant to Louisiana Supreme Court

having a residence in a foreign country which he has no intention of

abandoning who is a bona fide student . . . is coming temporarily to

the United States as a participant in a program . . . for the

purpose of . . . studying . . . .

4

Title 8 U.S.C. § 1101(a)(15)(H)(i)(b) [IMMLS PSD INA § 101], admits

a nonimmigrant alien who:

is coming temporarily to the United States to perform services . . .

in a specialty occupation. . . . having residence in a foreign

country which he has no intention of abandoning who is coming

temporarily to the United States as a trainee . . . in a training

program that is not designed primarily to provide productive

employment . . . .

Pursuant to the 1990 Act, an H-1B visa holder is no longer required to maintain

“a temporary residence abroad which he or she has no intention of abandoning.”

Steel on Immigration, §3:13, 3-35. Nor is such a visa holder subject to the

presumption of immigrant status. 8 U.S.C. § 1184(b). However, the nature of an

H-1B visa holder’s status in the United States is still temporary, the visa

holder is still subject to a six-year admission cap (three years admission plus

three years extension) notwithstanding, inter alia, a change in status. Steel,

at 3:13, 3-73-74.

5

Title 8 U.S.C. § 1101(a)(15)(L) [IMMLS PSD INA § 101], derivatively

admits a nonimmigrant “alien spouse and minor child[] of [an L-1] alien.”

4

Rule XVII, § 6 (“Section 6").6 Before the commencement of the

LeClerc suit, Affleck applied for, and was denied an equivalency

determination because her status did not comply with Section 3(B).

The other plaintiffs filed for equivalency determinations after the

suit commenced and were similarly refused. None of the plaintiffs

appealed their equivalency denials as permitted by Louisiana

Supreme Court Rule XVII, § 9 (“Section 9").7

On March 6, 2003, the plaintiffs filed suit, pursuant to

42 U.S.C. § 1983 and 28 U.S.C. § 1367, against the Louisiana

Supreme Court8 and the Chairman9 and Vice-Chairman10 of the Louisiana

Committee on Bar Admissions (collectively “defendants”) in their

official capacities. The plaintiffs challenged the enforcement of

Section 3(B) and sought declaratory and injunctive relief and

attorneys’ fees. They requested expedited discovery related to the

6

LR XVII, § 6 provides that:

“An applicant who has graduated from a law school that is not

located in the United States or its territories must submit an

application for the Committee for an equivalency determination

. . . .”

7

LR XVII, § 9 provides that:

Upon notice . . . that applicant has failed to fulfill one or more

of the requirements of . . . Section 6, . . . , the applicant may

appeal by petition directly to the Court.

8

Pascal F. Calogero, Jr., Jeffrey P. Victory, Jeanette T. Knoll, Chet

D. Traylor, Catherine D. Kimball, John L. Weimer, and Bernette J. Johnson. The

LeClerc plaintiffs did not name the Honorable Pascal F. Calogero, Jr., the lone

dissenter in Bourke.

9

Daniel A. Webb.

10

Harry J. Phillips.

5

adoption of Section 3(B), including records of the Louisiana

Supreme Court’s official meetings, processes, and opinions. The

defendants moved to quash the plaintiffs’ discovery requests,

asserting judicial and legislative immunity. Finding the

defendants judicially immune, a magistrate judge granted the

motion. On April 17, 2003, the plaintiffs moved for summary

judgment, and the defendants countered with a motion to dismiss for

lack of subject matter jurisdiction and failure to state a claim

based, inter alia, on standing, ripeness, Eleventh Amendment,

judicial and legislative immunity, and abstention grounds.

The district court partially granted the defendants’

motion to dismiss, denied the plaintiffs’ motion for summary

judgment, and denied as moot the plaintiffs’ appeal of the

magistrate judge’s discovery ruling.11 While rejecting the

defendants’ jurisdictional arguments, the court held on the merits

that: (1) Section 3(B) is not preempted by federal immigration or

trade policy; (2) Affleck lacked standing to assert a claim under

the NAFTA;12 (3) the plaintiffs failed to state a claim for

violation of either procedural or substantive Due Process; and

11

The LeClerc plaintiffs appeal the discovery ruling, which this Court

reviews for abuse of discretion. In re Grand Jury Proceedings, 115 F.3d 1240,

1243 (5th Cir. 1997). Because the plaintiffs’ discovery requests border on the

absurd, we find no such abuse.

12

We affirm this ruling. As conceded in oral argument, Affleck,

although a Canadian citizen, is not a beneficiary of NAFTA. Moreover, NAFTA

limits enforcement to the Secretary of State and the United States Attorney

General. Thus, even if a beneficiary of the treaty, Affleck has no private right

of action thereunder.

6

(4) applying rational basis review, Section 3(B) is rationally

related to legitimate state interests, and, thus, constitutional.

The district court denied plaintiffs’ motion to reconsider on

July 30, 2003.13 Both parties timely noticed their appeals and

cross-appeals.

III. The Wallace Plaintiffs

The Wallace plaintiffs’ suit landed before a different

federal district judge in New Orleans. Caroline Wallace and Emily

Maw are nonimmigrant aliens who seek leave to sit for the Louisiana

bar exam. Both are citizens of the United Kingdom who were

admitted to the United States on temporary visas. Wallace holds an

H-1B temporary worker visa and is licensed as an attorney in

England and Wales. Wallace is currently employed doing non-

attorney legal work. Maw was admitted to the United States

pursuant to an F-1 student visa14 and remains on an H-1B temporary

13

The plaintiffs appeal this ruling. We AFFIRM. We review a district

court’s denial of a motion for reconsideration for abuse of discretion.

Westbrook v. C.I.R., 68 F.3d 868, 879 (5th Cir. 1995). “Reconsideration of a

judgment after its entry is an extraordinary remedy that should be used

sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). A

motion for reconsideration may not be used to rehash rejected arguments or

introduce new arguments. Westbrook, 68 F.3d at 879. In their motion, not only

did the plaintiffs improperly re-argue the merits of their case, they also

impermissibly asserted, for the first time, arguments under the General Agreement

on Trade and Services (“GATS”), the Dormant Commerce Clause, and the right to

travel. As such, we find no abuse of discretion in the court’s denial on the

basis of these errors. Moreover, having been improperly raised below, we will

not consider on appeal the GATS, Dormant Commerce Clause, or right to travel

arguments advanced by the plaintiffs.

14

Title 8 U.S.C. § 1101(a)(15)(F) [IMMLS PSD INA § 101], admits a

nonimmigrant alien who:

ha[s] a residence in a foreign country which he has no intention of

abandoning, is a bona fide student qualified to pursue a full course

of study and [] seeks to enter the United States temporarily and

7

worker visa.15 Maw holds a law degree from Tulane University Law

School in New Orleans and is currently employed as a paralegal.

Before filing suit, Wallace applied for an equivalency

determination, and avers that after she was initially granted

permission to sit for the Bar, permission was revoked for her

noncompliance with Section 3(B). Although the record is unclear,

Maw either applied to sit for the Bar exam or moved for admission

by reciprocity. Either way, the defendants denied her application

for lack of Section 3(B) qualification.16 Neither plaintiff

appealed her denial to the Louisiana Supreme Court pursuant to

Rule 9.

On May 2, 2003, the plaintiffs filed a suit against the

defendants, which is parallel in all relevant respects to the

LeClerc action. However, their motion to consolidate their action

with the LeClerc suit was inexplicably denied. Cross-motions for

judgment followed as in LeClerc, but with different results.

The Wallace district court denied the defendants’ motion

to dismiss and partially denied the plaintiffs’ motion for summary

judgment. Like the LeClerc court, the Wallace court rejected the

defendants’ jurisdictional arguments. The court dismissed the

solely for the purpose of pursuing such a course of study . . . .

15

At oral argument, counsel represented that Maw is now an H-1B visa

holder.

16

Sometime after this suit commended, Maw took and passed the Louisiana

Bar exam. Her admission to the Bar is stayed pending the outcome of this case.

8

plaintiffs’ preemption claim, but denied their Due Process claim as

moot. On the plaintiffs’ Equal Protection claim, however, the

court applied strict scrutiny review and held that because Section

3(B) is not the least restrictive means to achieve the state’s

asserted compelling interests, it is unconstitutional. Defendants

timely noticed their appeal.

The two cases are consolidated on appeal in this court.

Because the issues raised are nearly identical, any references to

plaintiffs in the following discussion include, unless otherwise

noted, the LeClerc and Wallace plaintiffs.

STANDARD OF REVIEW

We review de novo a district court’s Rule 12(b)(1)

(motion to dismiss for lack of subject matter jurisdiction),

Rule 12(b)(6) (motion to dismiss for failure to state a claim upon

which relief can be granted), and Rule 56 (motion for summary

judgment) dispositions, applying the same standards as the district

court. Bombardier Aerospace v. Ferrer, Poirot & Wansbrough, P.C.,

354 F.3d 348, 352 (5th Cir. 2003).

DISCUSSION

A. Federal Jurisdiction

The defendants maintain that the plaintiffs lack standing

and present unripe claims. They further assert judicial and

legislative immunity from the LeClerc and Wallace suits pursuant to

precedent and the Federal Courts Improvement Act of 1996 (“FCIA”),

9

42 U.S.C. § 1983.17

Standing and ripeness are two doctrines of justiciability

that assure federal courts will only decide Article III cases or

controversies. To achieve standing, a plaintiff must have suffered

an injury in fact, see Elk Grove Unified Sch. Dist. v. Newdow, 124

S. Ct. 2301, 2308, 159 L.Ed.2d 98 (2004), and generally, “must

submit to the challenged policy” before pursuing an action to

dispute it. Ellison v. Connor, 153 F.3d 247, 254-55 (5th Cir.

1998). However, strict adherence to the standing doctrine may be

excused when a policy’s flat prohibition would render submission

futile. Ellison, 153 F.3d at 255 (citing Moore v. United States

Dept. of Agric., 993 F.2d 1222 (5th Cir. 1993)). The ripeness

doctrine counsels against “premature” adjudication by

distinguishing matters that are “hypothetical” or “speculative”

from those that are poised for judicial review. United Trans.

Union, 205 F.3d at 857. Even actions for declaratory relief, which

by design permit pre-enforcement review, require the presence of an

actual “case” or “controversy.” Id. A pre-enforcement action “is

generally ripe if any remaining questions are purely legal . . .

[and] further factual development” is not required for effective

judicial review. Id.

17

Because federal jurisdiction cannot be waived or assumed, Rohm & Hass

Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 207 (5th Cir. 1994),

we address the defendants’ jurisdictional arguments briefly even though they

appeared to abandon these jurisdictional contentions at oral argument. See

United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000) (discussing the

Court’s obligation to independently examine its jurisdiction despite party

concessions).

10

Both the futility exception to the standing doctrine and

the pre-enforcement variance to the ripeness doctrine apply here.

Strict compliance with the standing doctrine would have required

each plaintiff (except Maw) to apply for an equivalency

determination under Section 6 of the Louisiana Bar Rules before

filing suit. Strict compliance with the ripeness doctrine would

have required each plaintiff to file a Section 9 appeal of his or

her equivalency denial or rejection prior to filing suit. All but

two plaintiffs, Affleck and Wallace, failed to comply with

Section 6, and none complied with Section 9.

Nevertheless, given Affleck’s equivalency denial after

her timely application, Wallace’s equivalency revocation, and

Section 3(B)’s prohibition against the admission of nonimmigrant

aliens, as interpreted in Bourke, there is no reason to believe

that the plaintiffs who failed to submit to Section 3(B) by filing

timely Section 6 applications would have experienced different

outcomes. The non-conforming plaintiffs’ submission would have

been a futility for standing purposes.18 Likewise, the plaintiffs’

failure to avail themselves of Section 9 is excused because the

aforementioned facts undermine the utility of further factual

development, leaving only pure legal questions for adjudication.

The plaintiffs thus have standing and have asserted claims that are

18

Although Maw’s current status — having been permitted to take the

Louisiana Bar — complicates this issue, the totality of the plaintiffs’

experiences weigh in favor of a futility finding.

11

ripe for adjudication.

Next, rejecting the defendants’ immunity defenses, we

find that they are amenable to the instant suits. When acting in

its enforcement capacity, the Louisiana Supreme Court, and its

members, are not immune from suits for declaratory or injunctive

relief. See Supreme Court of Virginia v. Consumers Union of the

U.S., 446 U.S. 719, 100 S. Ct. 1967 (1980) (holding that the

Virginia Supreme Court and its chief justice may be sued for acts

committed in their enforcement capacities). Moreover, the FCIA of

1996 only precludes injunctive relief for suits against a judicial

defendant acting in his “judicial capacity.”19 Thus, to the extent

that the plaintiffs seek declaratory and injunctive relief against

the enforcement of Section 3(B) only, the court and its individual

members are subject to the instant suits.

B. Merits

Plaintiffs contend that Section 3(B) violates their

rights under the Equal Protection Clause of the Fourteenth Amend-

ment, the Due Process Clause of the Fifth Amendment,20 and the

Supremacy Clause of Art. VI, cl. 2. Each contention will be

19

Title 42 U.S.C. § 1983 provides that:

[I]n any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity, injunctive

relief shall not be granted unless a declaratory decree was violated

or declaratory relief was unavailable.

(emphasis added) (amended Oct. 19, 1996 by PUB. L. 104-317, TITLE III, § 309(c),

110 STAT. 3853).

20

Only the LeClerc plaintiffs assert a Due Process violation on appeal.

12

discussed in turn.

1. Equal Protection

The plaintiffs first advance arguments based on every

conceivable level of Equal Protection analysis, contending that:

(1) under In re Griffiths,21 nonimmigrant aliens are a suspect class

and state laws affecting them are subject to strict scrutiny;

(2) in the alternative, nonimmigrant aliens are a quasi-suspect

class and state laws affecting them are subject to intermediate

scrutiny; and (3) in the alternative, if nonimmigrant aliens are

not a suspect class at all, state laws affecting them are subject

to rational basis review. Plaintiffs maintain that Section 3(B)

fails under any of the three tests. Despite some ambiguity in

Supreme Court precedent, we conclude that because Section 3(B)

affects only nonimmigrant aliens, it is subject to rational basis

review.

To begin, nonimmigrant aliens are not a suspect class

under Griffiths. The plaintiff in Griffiths was a permanent

resident alien, who, but for a Connecticut law that conditioned bar

admission on United States citizenship, would have been eligible to

sit for the Connecticut bar exam. 413 U.S. at 718, 93 S. Ct. at

2853. The instant plaintiffs, however, are nonimmigrant aliens.

21

413 U.S. 717, 93 S. Ct. 2851 (1973).

13

The distinction, far from being a “constitutional irrelevancy,”22

is paramount.23 Section 3(B) only affects nonimmigrant aliens who

are “not entitled to live and work in the United States

permanently.” Bourke, 819 So. 2d at 1022. In contrast, the rule

at issue in Griffiths effected a “total exclusion [of all] aliens

from the practice of law” in Connecticut. Griffiths, 413 U.S. at

719, 93 S. Ct. at 2853. It was this “wholesale ban” of aliens from

the Connecticut Bar that the Supreme Court found constitutionally

infirm. Id. at 725, 93 S. Ct. at 2856. Moreover, as elaborated

below, the Court took pains to categorize the ways in which

resident aliens share essential benefits and burdens of

citizenship, see id. at 722, 93 S. Ct. at 2855, in a way that

aliens with lesser legal status do not.

Thus far, the Supreme Court has reviewed with strict

scrutiny only state laws affecting permanent resident aliens. As

the highest level of Equal Protection analysis, strict scrutiny is

employed when a governmental body creates a classification that

22

See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

469, 105 S. Ct. 3249, 3269 (1985) (stating that “Plyler, for example, held that

the status of being an undocumented alien is not a ‘constitutional irrelevancy,’

and therefore declined to review with strict scrutiny classifications affecting

undocumented aliens”).

23

See generally, David A. Martin, Graduated Application of

Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis,

2001 Supreme Court Review 47, esp. at 48, 86-87, 92-97, 107 (“. . . I believe

that the categorical approach still holds up and justifies a major distinction

between LPRs [lawful permanent residents] and other aliens for constitutional

purposes.”).

14

burdens a fundamental right24 or targets a suspect class. Regents

of University of California v. Bakke, 438 U.S. 265, 357, 98 S. Ct.

2733, 2782 (1978). Although classifications based on alienage are

inherently suspect and subject to close judicial scrutiny as a

general matter, the Court’s decisions have “never suggested that

such legislation is inherently invalid, nor [has the Court] held

that all limitations on aliens are suspect.” See Foley v.

Connelie, 435 U.S. 291, 294, 98 S. Ct. 1067, 1070 (1978) (internal

citation omitted).

Beginning in 1971, the Court has applied some variation

of strict scrutiny to invalidate state laws affecting “resident

aliens” or “permanent resident aliens.” See Graham v. Richardson,

403 U.S. 365, 371, 91 S. Ct. 1848, 1851 (1971) (applying “strict

judicial scrutiny” and striking state laws that denied “resident

aliens” disability benefits).25 The Court has never applied strict

scrutiny review to a state law affecting any other alienage

classifications, e.g., illegal aliens, the children of illegal

24

The practice of law is not a fundamental right assertable by the

plaintiffs, discussed infra.

25

See also Griffiths, supra (applying “close judicial scrutiny”); Exam.

Bd. Eng’rs v. De Otero, 426 U.S. 572, 602, 96 S. Ct. 2264, 2281 (applying “strict

judicial scrutiny” and striking a law of Puerto Rico that prevented “resident

aliens” from obtaining engineering licenses); Nyquist v. Mauclet, 432 U.S. 1, 7,

97 S. Ct. 2120, 2124 (1977) (applying "close judicial scrutiny" and striking a

state law that prevented “permanent resident aliens” from receiving state

financial assistance for higher education). These cases, especially Graham,

follow from the Court’s 1948 decision in Takahashi v. Fish and Game Comm’n,

wherein the Court invalidated, on Supremacy Clause grounds, a California law that

prevented resident aliens ineligible for citizenship from obtaining state fishing

licences as inconsistent with Congressional determination to admit such aliens

without burden or restriction. 334 U.S. 410, 419, 68 S. Ct. 1138, 1142 (1948).

15

aliens, or nonimmigrant aliens. In such cases, the Court has

either foregone Equal Protection analysis, see Toll v. Moreno, 458

U.S. 1, 102 S. Ct. 2977 (1982) (nonimmigrant G-4 aliens); DeCanas

v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976) (illegal aliens),26 or

has applied a modified rational basis review, see Plyler v. Doe,

457 U.S. 202, 102 S. Ct. 2382 (1982) (children of illegal aliens).

In the latter case, Plyler, the Court employed a heightened level

of rational basis review to invalidate a Texas law that denied

primary public education to children of illegal aliens. See

Plyler, 457 U.S. at 224, 102 S. Ct. at 2398 (“[the Texas law] can

hardly be considered rational unless it furthers some substantial

goal of the State.”) (emphasis added).27 Yet, while adopting a sui

generis level of rational basis review, the Court acknowledged that

the immigration status of the affected class of aliens precluded

26

Toll involved a University of Maryland policy that denied in-state

tuition fees to domiciled G-4 nonimmigrant aliens and their dependents. The

Court invalidated the policy on Supremacy Clause grounds, discussed infra, and

expressly declined to reach the nonimmigrants’ Due Process and Equal Protection

claims. Toll, 458 U.S. at 9-10, 102 S. Ct. at 2982. In DeCanas, the Court

reviewed a California law that prohibited the knowing employment of illegal

aliens where such would adversely affect resident alien workers. The Court

upheld the state law on Supremacy Clause grounds, discussed infra. DeCanas, 424

U.S. at 354-363, 96 S. Ct. at 936-940. In both Toll and DeCanas, the Court

addressed state laws that not only affected but also drew distinctions among

aliens in formulating state policies, yet in neither case did the Court employ

Equal Protection analysis.

27

The compromised level of rational basis review is recognized in the

concurring opinion of Justice Powell, id. at 238, 102 S.Ct at 2406 (approving the

heightened rational basis analysis in the “unique circumstances” of this case),

and the dissenting opinion of Justice Burger, id. at 244, 102 S. Ct. at 2409,

(disagreeing that the unfortunate circumstance of illegal alien children entitles

them to “special solicitude under the Equal Protection Clause”).

16

use of either intermediate or strict scrutiny review.28

The development of this jurisprudence is consistent with

the Court’s fundamental rationale for applying strict scrutiny

review exclusively to resident aliens: “[T]he state laws at issue

in Graham, Nyquist, DeOtero, and Griffiths warranted close judicial

scrutiny because they took position[s] seemingly inconsistent with

the congressional determination to admit the alien to permanent

residence.” See Foley, 435 U.S. at 295, 98 S. Ct. at 1070

(emphasis added). The Court has uniformly focused on two

conditions particular to resident alien status in justifying strict

scrutiny review of state laws affecting resident aliens: (1) the

inability of resident aliens to exert political power in their own

interest given their status as virtual citizens; and (2) the

similarity of resident aliens and citizens.

Given the extent to which resident aliens are legally

entrenched in American society, their inability to participate in

the political process qualifies them as “a prime example of a

discrete and insular minority for whom [] heightened judicial

solicitude is appropriate.” See Griffiths, 413 U.S. at 721, 93

28

In determining that proper level of review to apply in that case, the

Court stated:

Undocumented aliens cannot be treated as a suspect class because

their presence in this country in violation of federal law is not a

“constitutional irrelevancy.” Nor is education a fundamental right;

a State need not justify by compelling necessity every variation in

the manner in which education is provided to its population.

Plyler, 457 U.S. at 223, 102 S. Ct. at 2398. See id. at 218, n.16, 102 S. Ct.

at 2395, n.16 (discussing but not applying intermediate scrutiny review).

17

S. Ct. at 2854-55 (citing United States v. Carolene Prods. Co., 304

U.S. 144, 152-53, n.4, 58 S. Ct. 778, 783-84, n.4 (1938)).29

Characterizing resident aliens as a Carolene Products minority

reconciles the breadth of rights and responsibilities they enjoy

with their lack of political capacity.30 Contrary to the

plaintiffs’ contention, nonimmigrant aliens — who ordinarily

stipulate before entry to this country that they have no intention

of abandoning their native citizenship, and who enter with no

enforceable claim to establishing permanent residence or ties here

— need not be accorded the extraordinary protection of strict

scrutiny by virtue of their alien status alone.31 Nonimmigrant

aliens may, of course, qualify for anti-discrimination protection

based upon race, sex, national origin and religious adherence, just

29

See also Graham, 403 U.S. at 373, 91 S. Ct. at 1852; Griffiths, 413

U.S. at 721, 93 S. Ct. at 2854-55; Nyquist, 432 U.S. at 17, 97 S. Ct. at 2129.

See also Bakke, 438 U.S. at 290, 98 S. Ct. at 2748 (stating that Carolene

Products insularity “may be relevant in deciding whether or not to add new types

of classifications to the list of ‘suspect’ categories or whether a particular

classification survives close examination”).

30

In Foley, the Court stated that:

beginning with a case which involved the denial of welfare

assistance essential to life itself, the Court has treated certain

restrictions on aliens with ‘heightened judicial solicitude,’ Graham

v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 1852 (1971), a

treatment deemed necessary since aliens – pending their eligibility

for citizenship – have no direct voice in the political processes.

See United States v. Carolene Prods. Co., 304 U.S. 144, 152-153, 58

S. Ct. 778, 783-784 (1938).

435 U.S. at 294, 98 S. Ct. at 1070 (citation marks edited).

31

Cf., Lea Brilmayer, Carolene, Conflicts, and the Fate of the

“Insider-Outsider,” 134 U. Pa. L. Rev. 1291 (1986).

18

as they may otherwise enjoy the benefits of American law.32 But

their lack of legal capacity, unlike that of immigrant aliens, is

tied to their temporary connection to this country. Moreover, the

numerous variations among nonimmigrant aliens’ admission status

make it inaccurate to describe them as a class that is “discrete”

or “insular.”33 Nonimmigrant aliens, in short, do not warrant

Carolene Products status.

The Court’s treatment of resident aliens also rests upon

pragmatic recognition that resident aliens are similarly situated

to citizens in their economic, social, and civic (as opposed to

political)34 conditions. In Griffiths, the Court observed:

Resident aliens, like citizens, pay taxes, support the

economy, serve in the armed forces, and contribute in a

myriad of other ways to our society. It is appropriate

that a State bear a heavy burden when it deprives them of

32

See e.g., 8 U.S.C. § 1324(b) (prohibiting “unfair immigration-related

employment practices”).

33

The Court makes this very point in Toll, stating that:

We noted that as to some categories of nonimmigrant aliens [B, F,

and H visa holders], Congress had expressly conditioned admission

... on an intent not to abandon a foreign residence or, by

implication, on an intent not to seek domicile in the United States

. . . . With respect to G-4 nonimmigrant aliens, however, we

concluded that Congress had deliberately declined to impose

restrictions on intent, thereby permitting them to adopt the United

States as their domicile.

458 U.S. at 7, n.8, 102 S. Ct. at 2980, n.8 (internal marks and citations

omitted).

34

The Court has expressly declined to extend politically-oriented

rights and opportunities to aliens. See Foley, 435 U.S. 291, 98 S. Ct. 1067

(applying rational basis review and upholding a state law that conditioned

employment as a state trooper on citizenship because the law implicated rights

of governance); Cabell v. Cajvez-Salido, 454 U.S. 432, 444-47, 102 S. Ct. 735,

742-44 (1982) (applying “lower level scrutiny” and extending Foley to uphold a

state law conditioning employment as a probation officer on citizenship).

19

employment opportunities.

Griffiths, 413 U.S. at 722, 93 S. Ct. at 2855.35 Like citizens,

resident aliens may not be deported, are entitled to reside

permanently in the United States,36 may serve, voluntarily or by

conscription, in the military,37 are entitled to state aid

benefits,38 and pay taxes on the same bases as citizens.39

Nonimmigrant aliens’ status is far more constricted than

that of resident aliens. Nonimmigrant aliens are admitted to the

35

See also Graham, 403 U.S. at 376, 91 S. Ct. at 1854 (“Aliens like

citizens pay taxes and may be called into the armed forces. Unlike the short-

term residents in Shapiro, aliens may live within the United States for many

years, work in the State and contribute to the economic growth of the State.

There can be no ‘special public interest’ in tax revenues to which aliens have

contributed on an equal basis with the residents of a state”); Matthews v. Diaz,

426 U.S. 67, 83, 96 S. Ct. 1883, 1893, 48 L.Ed.2d 478 (1976) (“citizens and those

who are most like citizens qualify. Those who are less like citizens do not.”);

Nyquist, 432 U.S. at 12, 97 S. Ct. at 2126-27 (“Resident aliens are obligated to

pay their full share of the taxes that support the assistance programs. There

thus is no real unfairness in allowing resident aliens an equal right to

participate in programs to which they contribute on an equal basis.”).

36

Title 8 U.S.C. § 1101(a)(20) provides that:

The term “lawfully admitted for permanent residence” means the

status of having been lawfully accorded the privilege of residing

permanently in the United States as an immigrant in accordance with

the immigration laws, such status not having changed.

37

Title 10 U.S.C. § 3253 provides that:

In time of peace, no person may be accepted for original enlistment

in the Army unless he is a citizen of the United States or has been

lawfully admitted to the United States for permanent residence under

the applicable provisions of the Immigration and Nationality Act (8

U.S.C. 1101 et seq.).

See also 10 U.S.C. § 8253 (same).

38

Graham, 403 U.S. at 371, 91 S. Ct. at 1851; Nyquist, 432 U.S. at 12,

97 S. Ct. at 2127.

39

Pursuant to the U.S. Tax Guide for Aliens “Resident aliens generally

are taxed on their worldwide income, the same as U.S. citizens.” IRS Pub. 519,

2003 WL 23305933 (I.R.S.).

20

United States only for the duration of their status,40 and on the

express condition they have “no intention of abandoning” their

countries of origin and do not intend to seek permanent residence

in the United States.41 They are admitted, remain, and must depart

at the discretion of the Attorney General.42 Plaintiffs acknowledge

that nonimmigrant aliens may not serve in the U.S. military,43 are

subject to strict employment restrictions,44 incur differential tax

40

8 C.F.R. § 214.2(f)(5)(I) provides that:

[d]uration of status is defined as the time during which an F-1

student is pursuing a full course of study at an educational

institution . . . .

41

8 U.S.C. §§ 1101(a)(15(F), (H), (J); Steel, at §3:11, 3-35.

42

Title 8 U.S.C. § 1227(a)(1)(C) provides that:

Any alien . . . in and admitted to the United States shall, upon

the order of the Attorney General, be removed if . . . alien who was

admitted as a nonimmigrant and who has failed to maintain the

nonimmigrant status in which the alien was admitted or to which it

was changed under section 1258 of this title, or to comply with the

conditions of any such status, is deportable.

Pursuant to 8 C.F.R. § 241.1(a)(3):

At the time of admission or extension of stay, every nonimmigrant

alien must also agree to depart the United States at the expiration

of his or her authorized period of admission or extension of stay,

or upon abandonment of his or her authorised nonimmigrant status.

See also 8 U.S.C. § 1184 (explaining the manner in which the Attorney General’s

discretion pertains to various nonimmigrant alien categories).

43

10 U.S.C. § 3253.

44

See 8 C.F.R. § 214.1(e) (nonimmigrant aliens may not engage in

productive employment without authorization); 8 C.F.R. § 214.2(f) (prohibiting

F-1 visa holders from obtaining gainful employment, not including work-study and

internship programs); 8 C.F.R. § 214.2(h) (permitting temporary employment of H-

1B nonimmigrants); 8 C.F.R. § 214.2(l)(prohibiting L-2 spouses from obtaining

employment without prior authorization). The penalty for unauthorized employment

is a determination of “failure to maintain status.” 8 C.F.R. § 214.1(e). The

gainful employment ban may also be excepted in other cases of financial hardship.

Steel, at 3-40-42.

21

treatment,45 and may be denied federal welfare benefits.46 Finally,

the Supreme Court has yet expressly to bestow equal protection

status on nonimmigrant aliens.47

Based on the aggregate factual and legal distinctions

between resident aliens and nonimmigrant aliens, we conclude that

although aliens are a suspect class in general, they are not

homogeneous and precedent does not support the proposition that

nonimmigrant aliens are a suspect class entitled to have state

legislative classifications concerning them subjected to strict

scrutiny. We decline to extend the Supreme Court’s decisions

concerning resident aliens to different alien categories when the

Court itself has shied away from such expansion. We thus turn to

the plaintiffs’ alternative Equal Protection arguments.

Contrary to the plaintiffs’ contention, there is no

precedential basis for the proposition that nonimmigrant aliens are

a quasi-suspect class or that state laws affecting them are subject

to intermediate scrutiny. The decision in United States v.

45

Pursuant to the U.S. Tax Guide for Aliens, as compared to resident

aliens and citizens, “Nonresident aliens are taxed only on their income from

sources within the United States and on certain income connected with the conduct

of a trade or business in the United States.” IRS PUB. 519, 2003 WL 23305933

(I.R.S.).

46

Matthews, 426 U.S. at 83, 96 S. Ct. at 1893. See also 26 U.S.C.

§ 3306(c)(8) (amended by the AMERICAN JOBS CREATION ACT OF 2004, PL 108-357,

October 22, 2004, 118 STAT 1418 and the RONALD W. REAGAN NATIONAL DEFENSE AUTHORIZATION

ACT FOR FISCAL YEAR 2005, PL 108-375, October 28, 2004, 118 STAT 1811).

47

Toll, 458 U.S. at 9-10, 102 S. Ct. at 2982 (refusing to reach equal

protection argument). Plyler is not to the contrary, as it involved the special

class of alien children, who were not responsible for their immigration status,

and the provision of education.

22

Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996), which reinforced

caselaw that treats gender as a “quasi-suspect classification,”

furnishes no authority for the application of intermediate Equal

Protection analysis to alienage classifications. Virginia, 518

U.S. at 532-33, 116 S. Ct. at 2275. Again, we decline to move

where the Supreme Court has not gone.

By process of elimination, rational basis review must be

the appropriate standard for evaluating state law classifications

affecting nonimmigrant aliens. Here, caselaw has distinguished

between traditional rational basis review and heightened rational

basis review. But, the latter standard appears solely in Plyler,

which, as noted, is a far different case from the case at bar.

There, after declaring that undocumented aliens are not a suspect

class48 and that education is not a fundamental right, see id., 457

U.S. at 223, 102 S. Ct. at 2398, the Court found the children of

illegal aliens, having no culpability for or control over their

condition, are worthy of “special judicial solicitude” in the form

of heightened rational basis review. Id. Thus, the Court elevated

the rational basis test and inquired whether the Texas law

“furthered some substantial goal of the state.” Id. at 224, 102

S. Ct. at 2398 (emphasis added). Had the Court not modified

48

Under the plaintiffs’ rationale — that lack of political capacity

alone should render an alien group worthy of heightened judicial solicitude and

strict scrutiny review — undocumented aliens would be the most insular and

deserving of Carolene Products minority status. Yet, the Court specifically

denied them suspect status.

23

rational basis review in Plyler, the Texas law would have survived.

As articulated by the Court, traditional rational basis analysis

provides that:

The initial discretion to determine what is “different”

and what is “the same” resides in the legislatures of the

States. A legislature must have substantial latitude to

establish classifications that roughly approximate the

nature of the problem perceived, that accommodate

competing concerns both public and private, and that

account for limitations on the practical ability of the

State to remedy every ill. In applying the Equal

Protection Clause to most forms of state action, we thus

seek only the assurance that the classification at issue

bears some fair relationship to a legitimate public

purpose.

Id. 457 U.S. at 216, 102 S. Ct. at 2394 (emphasis added). Under

the traditional test, Texas’s legitimate interests — conservation

of budget resources and deterrence of illegal immigration —

probably would have been sufficient to justify the state’s decision

to deny state benefits to illegal entrants and their children. But

in this unique instance, the Court was moved by the consequences

and unfairness of enforcing such a regulation against children.

Id. at 220, 102 S. Ct. at 2396.49

These plaintiffs who would be Louisiana lawyers find no

support in Plyler. As nonimmigrant aliens, they entered this

country voluntarily and with an understanding of their limited,

temporary status. They face no hurdle as debilitating as denial of

primary and secondary education. That, under Section 3(B), they

49

The Court’s invalidation of the Texas law further rested upon a

determination that the state’s action was not in accord with congressional

policy. Id. at 224-25, 102 S. Ct. at 2399.

24

are denied the ability to engage in a specific type of legal work

— that requiring a license — is simply not analogous to the plight

of illegal alien children. Nothing in Plyler compels the

determination that nonimmigrant alien law students and temporary

workers are similarly situated to the children of illegal aliens,

and, thus, entitled to similar heightened rational basis review.

Under traditional rational basis analysis, a state law

classification that “neither burdens a fundamental right nor

targets a suspect class” will be upheld “so long as it bears a

rational relation to some legitimate end.” Vacco v. Quill, 521

U.S. 793, 799, 117 S. Ct. 2293, 2297 (1997) (emphasis added). The

key principle is the deference to legislative policy decisions

embodied in courts’ reluctance to judge the wisdom, fairness, logic

or desirability of those choices. Viewed through this deferential

lens, Section 3(B)’s classification bears a rational relationship

to legitimate state interests — Louisiana’s substantial interest in

regulating the practice of those it admits to its bar.

Section 3(B) aims to assure clients that attorneys licensed by the

Louisiana Bar will provide continuity and accountability in legal

representation. The Bar’s ability to monitor, regulate, and, when

necessary, discipline and sanction members of the Bar requires that

it be able to locate lawyers under its jurisdiction. The State’s

determination that the easily terminable status of nonimmigrant

aliens would impair these interests and their enforcement capacity

is not irrational.

25

The plaintiffs argue that in focusing on the alleged

transience of nonimmigrant aliens, Section 3(B) irrationally fails

to deal with other causes of lawyer nonfeasance. While it is true

that any attorney, regardless of citizenship status, could fall

ill, become unavailable to clients, or leave the jurisdiction (and

many actually do leave), such concerns are distinct from the

special quandary arising from the federally prescribed transience

of nonimmigrant aliens. The problem perceived by the defendants is

that if a nonimmigrant practitioner leaves the country (voluntarily

or by compulsion) to the detriment of Louisiana clients, such an

attorney would be utterly beyond the reach of the Louisiana Bar.

Contrary to the plaintiffs’ contentions, the international trans-

ience of nonimmigrant alien practitioners is not analogous to that

of a citizen or immigrant alien practitioner who leaves Louisiana.

State reciprocity and interstate bar agreements would allow the

Louisiana Bar to pursue an attorney who relocates domestically, but

there is no doctrine of international reciprocity enabling the

Louisiana Bar to reach a malfeasant or nonfeasant nonimmigrant

attorney who has fled the United States. Even if the Bar tracked

down such an attorney in a foreign country, because nonimmigrants

(in contrast to citizens and immigrant aliens) may not establish

domicile in the United States and will usually have limited assets

here, Louisiana courts would have questionable ability to exercise

jurisdiction over such a person. The state would be impotent to

remedy unethical or incompetent conduct, and a Louisiana client’s

26

ability to seek redress would be frustrated. Section 3(B) is

underinclusive with respect to all possible foreseeable types of

attorney abandonment, but it is not irrationally underinclusive

with respect to this particularly troublesome situation.50

In these ways, Section 3(B), which limits Bar admission

to persons able to live and work permanently in the United States,

is rationally related to the state’s interest in assuring

continuity and accountability in legal representation. Section

3(B) does not make the mistake, remedied in Griffiths, of

denigrating aliens in general. Instead, Section 3(B) recognizes

that the inherent terms and conditions of nonimmigrant status all

but assure a lack of continuity and impairment of the Bar’s ability

to carry out its regulatory and police functions. As such,

Section 3(B) is a proper exercise of Louisiana’s police powers in

pursuit of these interests.

Plaintiffs also complain that Section 3(B) is

irrationally overinclusive because it assumes that nonimmigrant

alien practitioners will be transient, when in fact they are just

as likely, having gone to the trouble to be admitted to the

Louisiana Bar, to extend their stays in this country. The

50

In concluding that the Bar Committee in Griffiths failed to establish

the necessity of excluding “all aliens from the practice of law in order to

vindicate its undoubted interest in high professional standards[,]” the Court

noted that “once admitted to the bar, lawyers are subject to continuing scrutiny

by the organized bar and the courts . . . . the range of postadmission sanctions

extends from judgments for contempt to criminal prosecutions and disbarment.”

413 U.S. at 727, 93 S. Ct. at 2857-58. The Louisiana Bar’s concern that the

temporary status of student and H-1B temporary worker visa holders might

frustrate its ability to carry out these functions is legitimate.

27

plaintiffs’ argument is plausible, but no more so than the state’s

contrary hypothesis. Moreover, unlike American citizens who seek

admission to the bar in a state where they do not reside, the

nature of nonimmigrant transience is substantially different —

nonimmigrant aliens cannot unilaterally change their transient or

noncitizen status.

The plaintiffs also generally criticize Section 3(B) as

overbroad (e.g., because H-1B nonimmigrants must be sponsored by an

employer, who in a case of malfeasance, may be ethically

responsible for the attorney’s misdeeds) and imprecise in achieving

its desired ends. Even if it is flawed, the provision cannot be

legitimately characterized as arbitrary or irrational. A court’s

inquiry is not for legislative precision, acuity, or acumen. See

Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 1627 (1996)

(stating that “[i]n the ordinary case, a law will be sustained if

it can be said to advance a legitimate government interest, even if

the law seems unwise or works to the disadvantage of a particular

group, or if the rationale for it seems tenuous”). Section 3(B)

may be undesirable in an increasingly globalized commercial

climate, but our perception of the wisdom of the measure fails to

render it constitutionally infirm under traditional rational basis

review. Section 3(B) need only be rationally related to some

legitimate end. Romer, 517 U.S. at 632, 116 S. Ct. at 1627.

Section 3(B) is, at the least, “roughly approximate” to the

concerns identified by Louisiana, given “limitations on the

28

practical ability of the state to remedy every ill.” Plyler, 457

U.S. at 216, 102 S. Ct. at 2394.

Because Section 3(B) serves a legitimate end, and there

is no basis for applying a heightened level of scrutiny, it

survives rational basis review.

2. Due Process

The LeClerc plaintiffs assert procedural due process

challenges to Section 3(B). As aliens, they are “‘persons’

guaranteed due process of law by the Fifth and Fourteenth

Amendments.” Plyler, 457 U.S. at 210, 102 S. Ct. at 2391

(citations omitted).51 Procedural due process entitles a person to

a hearing before being deprived of an interest protected by the

Fourteenth Amendment. Bd. of Regents v. Roth, 408 U.S. 564, 570,

92 S. Ct. 2701, 2705 (1972). As relevant here, “the existence of

. . . eligibility rules” gives a party seeking admission to

practice his chosen profession “an interest and claim to practice

. . . to which procedural due process requirements appl[y].”

Roth, 408 U.S. at 577, n.15, 92 S. Ct. at 2709, n.15 (internal

citation omitted). However, procedural due process rights do not

vest in a party who has failed to seek a hearing before filing

suit. Goldsmith v. United State Bd. of Tax Appeals, 270 U.S. 117,

123, 46 S. Ct. 215, 218 (1926); See also Myrick v. City of Dallas,

810 F.2d 1382, 1388 (5th Cir. 1987) (holding that a complainant

51

The Privileges and Immunities Clause protects only citizens. Compare

Frazier v. Heebe, 482 U.S. 641, 107 S. Ct. 2607 (1987).

29

“cannot skip an available state remedy and then argue that the

deprivation by the state was the inadequacy or lack of the skipped

remedy”). Although Louisiana’s Bar admission rules gave the

plaintiffs an interest to which procedural due process rights

attached, the plaintiffs cannot state a claim for a procedural due

process violation because they opted not to appeal under Section 9.

3. Supremacy Clause and Preemption

The plaintiffs maintain that Section 3(B) is preempted by

the comprehensive statutory scheme embodied in the Immigration and

Nationality Act (“INA”) and conflicts with some of its specific

provisions.52 Despite the federal government’s primacy over the

regulation of immigration, not “every state enactment which in any

way deals with aliens is a regulation of immigration and thus per-

se preempted . . . .” DeCanas, 424 U.S. at 355, 96 S. Ct. at 936.

The Constitution, by committing regulation of immigration to the

federal government, did not deprive the states of all power to

legislate regarding aliens.53 Id. Nevertheless, ostensibly har-

monious state regulation may run afoul of the Supremacy Clause if

it, in effect, interferes with the goals of federal policy. Id.

52

The LeClerc plaintiffs further contend that NAFTA and GATS, which

they argue are intended to liberalize United States licensing and certification

requirements, evince congressional intent to preempt restrictive state licensing

schemes. The LeClerc plaintiffs’ arguments concerning NAFTA and GATS are,

respectively, inapposite and unpreserved.

53

See Plyler, 457 U.S. at 229, n.19, 102 S.Ct at 2396, n.19 (“If the

Federal Government has by uniform rule prescribed what it believes to be

appropriate standards for the treatment of an alien subclass, the States may, of

course, follow the federal direction”) (citing DeCanas, 424 U.S. 351, 96 S. Ct.

933).

30

Yet, even in this context, “[f]ederal regulation . . . should not

be deemed preemptive in the absence of persuasive reasons — either

that the nature of the regulated subject matter permits no other

conclusion, or that the Congress has unmistakably so ordained.”

Id. at 356, 96 S. Ct. at 937 (internal citation omitted).

Section 3(B) is unquestionably a permissible exercise of

Louisiana’s broad police powers to regulate employment within its

jurisdiction for the protection of its residents. See id. at 356,

96 S. Ct. at 937 (explaining that a state has “broad . . . police

powers” to regulate employment within its borders). The Louisiana

Supreme Court was rationally entitled to conclude that the

temporary status of nonimmigrant aliens could impede the Bar’s

regulatory and disciplinary efforts.54 Conditions that frustrate

the administration of Louisiana’s licensing scheme are “certainly

within the mainstream of such police power regulation.” Id. at

356-57, 96 S. Ct. at 937.

Further, as a state regulation dealing with the

employment of nonimmigrant aliens, Section 3(B) is not facially

preempted by the INA. The Supreme Court has acknowledged that

“there is no indication that Congress intended to preclude state

law in the area of [alien] employment regulation.” Id. at 358,

362, 96 S. Ct. at 937-38, 940. Thus, the field of alien employment

54

Contrary to the plaintiffs’ contentions, the status of bar admission

rules in other states is neither controlling nor persuasive. A situation

discerned as problematic by the state need not be viewed as pervasive or

universal in order to justify the state’s attempt to address it.

31

tolerates harmonious state regulation.

The fact that Section 3(B) denies Bar admission to some

aliens and not to others conflicts neither with the INA nor with

the Supreme Court’s disposition in Toll. In Toll, the Court

invalidated a University of Maryland policy denying in-state

tuition status to G-4 nonimmigrant aliens — who are permitted by

congressional directive to establish domicile in the United States

— as inconsistent with federal policy that prevented these student

aliens from establishing state domicile. Toll, 458 U.S. at 11, 102

S. Ct. at 2983. Toll held that, “state regulation not

congressionally sanctioned that discriminates against aliens

lawfully admitted to the country is impermissible if it imposes

additional burdens not contemplated by Congress.” However, the

Court added a caveat:

To be sure, when Congress has done nothing more than

permit a class of aliens to enter the country

temporarily, the proper application of the principle is

likely to be a matter of some dispute.

Toll 458 U.S. at 12-13, 102 S. Ct. at 2983 (quoting, in part,

DeCanas, 424 U.S. at 358, n.6, 96 S. Ct. at 938, n.6). The

substantive holding in Toll is distinguishable from the instant

case for two reasons. First, Section 3(B) raises the situation

contemplated, but not addressed, in Toll — the validity of state

laws affecting transient nonimmigrant aliens. Second, there is no

incongruity between what Congress permits of student and temporary

worker nonimmigrants and what Section 3(B) prevents.

32

First, as with the alien class in general, the sub-class

of nonimmigrant aliens is itself heterogenous, and the distinctions

among them are relevant for preemption purposes. Toll specifically

distinguished between G-4 nonimmigrant aliens — upon whom Congress

expressly declined to impose domicile restrictions — and the F-1

student and H-1B temporary worker nonimmigrant aliens at issue in

this case — upon whom Congress has clearly imposed domicile

restrictions.55 Section 3(B) affects only the latter group.

Second, Section 3(B) does not succumb to the Toll infir-

mity of proscribing by state law what Congress expressly permits by

federal statute. Section 3(B) does not prevent the legal

matriculation of nonimmigrant alien students admitted to the United

States on F-1 or J-1 visas. Section 3(B) is, in fact, consistent

with provisions that prohibit student visa holders from obtaining

gainful employment, require them to obtain specific authorization

55

As the Court stated in Toll:

[T]he nonimmigrant classification is by no means homogeneous . . . .

For example, Congress expressly conditioned admission for some

purposes on an intent notto abandon a foreign residence or, by

implication, on an intent not to seek domicile in the United States

. . . . [A] nonimmigrant student is defined as “an alien having a

residence in a foreign country which he has no intention of

abandoning . . . and who seeks to enter the United States

temporarily and solely for . . . study . . . .” § 101(a)(15)(F).

See also . . . § 101(a)(15)(H) (temporary worker having residence in

foreign country “which he has no intention of abandoning"). . . .

But Congress did not restrict every nonimmigrant class. In

particular, no restrictions on a nonimmigrant’s intent were placed

on [G-4] aliens . . . [T]his was deliberate . . . confirmed by the

regulations . . . which provide that G-4 aliens are admitted for an

indefinite period . . . .

Toll, 435 U.S. 647, 665, 98 S. Ct. 1338, 1349 (emphasis added). See also Toll

II, 458 U.S. at 7, n.8, 102 S. Ct. at 2980, n.8 (citing Toll, 435 at 665, 98

S. Ct. at 1349 and 8 U.S.C. §§ 1101(a)(15)(B), (F), (H)).

33

for certain types of matriculation-related employment, e.g.,

internships and work-study programs, requires their departure at

the expiration of their status, and prohibits them from

establishing domicile in the United States.

Nor does Section 3(B), contrary to plaintiffs’

contentions, prevent them from complying with H-1B nonimmigrant

visa requirements. H-1B status requires the nonimmigrant applicant

to qualify for a temporary worker visa by presenting documentation

of: a state professional license; a bachelor’s, or higher, degree

in the profession; an equivalent foreign degree; or equivalent

foreign experience. 8 C.F.R. § 214.2(h). H-1B’s four compliance

measures are disjunctive; its professional licensing option is

permissive, not mandatory. While Section 3(B) permits one of these

alternatives, it does not prevent an H-1B visa holder who satisfies

at least one of the other compliance methods from obtaining

employment within the broad field encompassed by the practice of

law. Moreover, Section 3(B) is consistent with an H-1B visa

provision that contemplates non-licensed employment.56 As

demonstrated, Section 3(B) is in accord, rather than conflict, with

56

8 C.F.R. § 214.2(h) provides that:

Duties without licensure. In certain occupations which generally

require licensure, a state may allow an individual to fully practice

the occupation under the supervision of licensed senior or

supervisory personnel in that occupation. In such cases, the

director shall examine the nature of the duties and the level at

which they are performed. If the facts demonstrate that the alien

under supervision could fully perform the duties of the occupation,

H classification may be granted.

34

federal regulation of alien employment.

The plaintiffs finally argue that the INA impliedly

preempts Section 3(B) because it “stands as an obstacle to the

accomplishment and execution of the full purpose and objectives of

Congress.” DeCanas, 424 U.S. at 363, 96 S. Ct. at 940. We

disagree. As the Court made clear in DeCanas, the intersection of

state and federal law does not necessarily require or effect

preemption. Upholding a California law criminalizing the employ-

ment of illegal aliens, DeCanas held that the overlap of state and

federal law did not equate to “withdrawal from the States of power

to regulate where the activity regulated was a mere peripheral

concern” to the federal law. Id. at 361, 96 S. Ct. at 939.

Similarly, while Section 3(B) prohibits Bar admission of

nonimmigrant aliens even though the INA permits H-1B visa holders

to seek professional licensing, the provision is “peripheral” to

intersecting federal law which does not itself mandate domestic

professional licensing.

Section 3(B) is a state Bar rule designed to address

local problems arising from the transitory status of nonimmigrant

aliens who, by the terms and conditions of their federal status,

possess fewer ties to the United States than any other group

(besides illegal aliens). Section 3(B) attempts to protect

Louisiana residents seeking legal representation and affects a

class of persons whom Congress has expressly prohibited from living

or working permanently in the United States. See id. at 363, 96

35

S. Ct. at 940 (explaining that although federal law predominates in

the field of immigration, there is minimal federal interest in

state laws crafted to address local problems and affecting local

entities in a manner consistent with federal declarations). Rather

than standing as an obstacle to federal law, Section 3(B) is

consistent with the federal policy embodied in the INA.

CONCLUSION

For the reasons stated herein, the judgment in LeClerc,

et al. v. Webb, et al., 270 F. Supp. 2d 779 (E.D. La. 2003) is

AFFIRMED. The judgment in Wallace, et. al. v. Calogero, et al.,

286 F. Supp. 2d 748 (E.D. La. 2003) is REVERSED.

36

CARL E. STEWART, Circuit Judge, concurring in part and dissenting

in part:

I concur in the panel’s majority decision affirming the

district courts’ rulings that: (1) Section 3(B) is not preempted by

federal immigration or trade policy; (2) the defendants’

jurisdiction arguments should be denied; (3) the plaintiffs’ due

process arguments should be dismissed, (4) plaintiff Affleck lacked

standing to assert a claim under the NAFTA, and (5) the Leclerc

plaintiffs’ motion to reconsider should be denied. For the

following reasons, I respectfully dissent from the majority’s

conclusion that the plaintiffs’ Equal Protection claim should be

dismissed.

First, I disagree with the majority’s conclusion that strict

scrutiny review should not apply to the issue before us. The

Supreme Court in Graham v. Richardson held that "classifications

based on alienage, like those based on nationality or race, are

inherently suspect and subject to close judicial scrutiny. Aliens

as a class are a prime example of a ‘discrete and insular' minority

for whom such heightened judicial solicitude is appropriate." 403

U.S. 365, 372 (1971)(internal citation omitted); see also

Applications of Griffiths, 413 U.S. 717, 721 (1973). It should be

noted that not all limitations on aliens are suspect. See Foley v.

Connelie, 435 U.S. 291, 294 (1978). Although the general rule is

that classifications of aliens are suspect and strict scrutiny

should apply, the Court has also held that less than strict

scrutiny is warranted where a state law discriminates based on

alienage classification regarding matters related to the democratic

process. Id. ("a democratic society can be ruled by its own

people"). Also, because Congress has plenary power to regulate

immigration, federal statutes and presidential orders that

discriminate against aliens are also reviewed with something less

than strict scrutiny. Mathews v. Diaz, 426 U.S. 67, 81 (1976)

("the relationship between the U.S. and our alien visitors has been

committed to the political branches of the federal government.

Since decisions in these matters may implicate our relations with

foreign powers . . . such decisions are frequently of a character

more appropriate to either the Legislature or the Executive

branches than to the Judiciary."). In all other circumstances, the

Supreme Court has applied strict scrutiny to classifications based

on alienage. Alienage is defined as the state or condition of

being an alien. BLACK’S LAW DICTIONARY 79 (8th ed. 1999). An alien

is “any person not a citizen or national of the United States.” 8

U.S.C. § 1101(a)(3). The majority is wary about "expanding" strict

scrutiny review to nonimmigrant aliens as a distinctive suspect

class in the absence of a black letter holding by the U.S. Supreme

Court to that effect. I disagree with the majority’s reservations

because the Supreme Court's statement that "alienage is a suspect

class" by definition includes nonimmigrant aliens as part of that

class.

38

The majority emphasizes that, as opposed to the Rule at issue

here, “the rule at issue in Griffiths effected a ‘total exclusion

[of all] aliens from the practice of law’ in Connecticut.”

Proposed Op. at 15. However, the Supreme Court has stated that

"[t]he fact that the [challenged] statute is not an absolute bar

[against all aliens] does not mean that it does not discriminate

against the class." Nyquist v. Mauclet, 432 U.S. 1, 9 (1977). It

is only important that the Rule is directed at aliens and only

aliens are harmed by it. Id. Section 3(b) only allows citizens

and resident aliens to apply for admission to the Louisiana state

bar. In re Bourke, 819 So.2d 1020, 1021 (La. 2002). Because the

Louisiana Supreme Court has defined resident aliens as “aliens who

have been granted permanent resident status in the United States,”

id., the Rule discriminates against all nonimmigrant aliens. The

Rule does discriminate against the class because it is directed at

aliens and only aliens are harmed by it.

In discussing the alien suspect class, the Supreme Court has

referred to resident aliens, aliens and non-citizens

interchangably. The majority uses the term resident aliens in

referring to the suspect class first created in Graham v.

Richardson. In order to properly understand the semantics in this

case, it is necessary to explore the definitions used in the

Immigration and Nationality Act (INA), 8 U.S.C. § 1101, et seq.

All aliens legally admitted in the U.S. fall into one of two

39

categories: immigrant (persons who want to become permanent

residents) and non-immigrant (persons granted stay for a limited

period of time). DAVID WEISSBRODT, IMMIGRATION LAW AND PROCEDURE § 5-1 -

6-1(4th ed. 1998). These two broad categories are each further

divided into specific types of visas. Id. In the INA, there is

no definition of resident alien, only a definition of residence as

referring "only to the place of general abode without regard to

intention."57 See 8 U.S.C. § 1101(a)(33). Thus, residence and

immigration status should be understood as two separate

distinctions; one does not necessarily have to do with the other.

As the district court noted in Wallace v. Calogero, “the term

‘resident alien’ is broader than the Act’s immigration categories

and includes both immigrant and nonimmigrant aliens lawfully

residing in the United States.” 286 F. Supp. 2d 748, 762 (E.D. La.

2003). In other words, a nonimmigrant alien who lives in the

United States is but one class of resident alien. I read the term

“resident alien,” as it is used in the Supreme Court’s

jurisprudence, as simply indicating that the alien resides in the

57

Resident alien is essentially a tax distinction. See 26 U.S.C. §

7701(b). There are primarily two ways to determine whether one is a resident

alien for tax purposes. The first is the green card test, if you have a green

card, and therefore are a permanent resident, you are a resident under tax law.

Id. at § 7701(b)(1)(A)(i). The other is the substantial presence test. Under

the substantial presence test you will be considered a U.S. resident if you were

physically present in the U.S. for at least 31 calendar days during the course

of the year and 183 days during the 3 year period that includes the current year

and two previous years immediately before it. Id. at § 7701(b)(3). Considering

H-1B visa holders, for example, can stay in the country for up to 6 years, it is

possible for an alien to be both a non-immigrant and pay taxes as a resident

alien.

40

United States. This point is further made clear by Justice

Blackmun’s majority opinion in Kleindienst v. Mandel, 408 U.S. 753

(1972). Justice Blackmun, the author of the majority opinion in

Graham, used the term “nonresident alien” to refer to plaintiff

Ernest Mandel, a Belgian citizen who resided in Brussels. 408 U.S.

at 762.

The Court has not distinguished between immigrant aliens or

nonimmigrants aliens when discussing the alienage suspect class

even though the Court has had before it cases which involved

extensive review of the Immigration and Naturalization Act and its

various classifications for admitted aliens; the Court was not

ignorant of the terminology associated with the INA’s alien

classifications nor presumably of the distinctions between these

classifications. See e.g., Kleindienst, 408 U.S. at 753, 757 n.4

(holding that a Belgian citizen living in Brussels, “as an

unadmitted and nonresident alien, had no constitutional right of

entry to this country as a nonimmigrant or otherwise”); see also

Saxbe v. Bustos, 419 U.S. 65 (1974) (holding that daily and

seasonal alien commuters qualify as immigrant aliens rather than as

nonimmigrant aliens). Despite the Court’s familiarity with the

distinction between immigrant and nonimmigrant aliens, the Court

has still spoken of a general “alien” suspect class.

The defendants and the majority rely heavily on the fact that

the Court’s cases that employ strict scrutiny analysis all involved

41

plaintiffs who were permanent resident aliens.58 However, I am not

persuaded that based on this fact alone, the Court’s strict

scrutiny analysis should be restricted to laws that discriminate

against permanent resident aliens. Again, the Supreme Court has

not explicitly emphasized the alien plaintiffs’ permanent resident

status in discussing the alien suspect class. As the majority

opinion observes, nonimmigrant aliens have come before the Court

asserting Equal Protection claims. Twice the Court found it

unnecessary to reach the Equal Protection issue, see Toll v.

Moreno, 458 U.S. 1 (1982) and Decanas v. Bica, 424 U.S. 351

(1976), and once the Court applied rational basis review, see

Plyler v. Doe, 457 U.S. 202 (1982). Although the Court applied

rational basis review to the aliens in Plyler, as the majority

notes, Plyler “is a far different case from the case at bar.”

Proposed Op. at 24. Plyler involved illegal aliens. In refusing

to grant suspect classification to illegal aliens, the Court

focused on their undocumented and unlawfully status. Plyer, 457

U.S. at 219 n.19. The nonimmigrant aliens here, by contrast, are

lawfully admitted aliens. The Court’s opinions have applied strict

scrutiny review when the plaintiffs at issue are lawfully admitted

aliens who reside in the United States, like the plaintiffs here.

See e.g., Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420

58

It should be noted that in some of the Supreme Court’s opinions, the

exact nature of the plaintiff's immigration status is unclear or not discussed.

See e.g., Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948).

42

(1948); Graham, 403 U.S. at 371.

The majority also relies heavily on the Supreme Court's

statement in Griffiths that "[r]esident aliens, like citizens, pay

taxes, support the economy, serve in the Armed Forces, and

contribute in myriad other ways to our society. It is appropriate

that a State bear a heavy burden when it deprives them of

employment opportunities." 413 U.S. at 722. Nonimmigrant aliens

do pay taxes, support the economy and contribute in other ways to

our society. See n.1, supra. Nonetheless, I am not persuaded that

an aliens' ability to serve in the Armed Forces or pay taxes is the

primary rationale for affording suspect class designation to

aliens; after all aliens were afforded suspect class designation

before Griffiths. See Graham, 403 U.S. 365. Instead, the basis for

aliens' class designation seems to be premised on aliens' inability

to vote, and thus their impotence in the political process, and the

long history of invidious discrimination against them. See Plyer,

457 U.S. at 218 n.14 (citing Graham, 403 U.S. at 372); see also

ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 618-19 (1997). See generally

Takahashi, 334 U.S. 410.

In order to distance nonimmigrant aliens from the class of

"aliens" that the Supreme Court has recognized as inherently

suspect, the majority emphasizes the temporary and “transient”

status of nonimmigrant aliens. However, the majority is unable to

avoid the Supreme Court's ruling in Toll v. Moreno, which

43

recognized that nonimmigrant aliens who hold a G-4 visa are aliens

with permanent status similar to citizens and immigrant aliens.

458 U.S. 1 (1983); see also Elkins v. Moreno, 435 U.S. 647, 663-64

(1978). The majority vigorously asserts that G-4 nonimmigrant

aliens are distinct from the nonimmigrant aliens here because the

aliens here are “transient nonimmigrant aliens,” a new alienage

classification crafted by the majority’s opinion only. However,

the constitutional challenge here is not an as applied challenge to

Section 3(b). The plaintiffs assert that the rule discriminates

against all nonimmigrant aliens. Therefore, if one nonimmigrant

alien group does not fit within the opinion's analysis– that

nonimmigrant aliens are not a suspect class because they are not

"permanent" residents– then the majority’s argument as a whole must

fail.

The majority states that “nonimmigrant aliens–who ordinarily

stipulate before entry to this country that they have no intention

of abandoning their native citizenship, and who enter with no

enforceable claim to establishing permanent residence or ties

here–need not be accorded the extraordinary protection of strict

scrutiny by virtue of their alien status alone.” Proposed Op. at

19. But, not all nonimmigrant aliens are required to keep a

permanent residence abroad and are not allowed to intend to stay in

the United States. Besides, G-4 nonimmigrant aliens, the

Immigration Act of 1990 states that H-1 and L category visa holders

44

(as some of the plaintiffs are here) do not have to pledge an

intention to only stay in the United States temporarily, and can

seek permanent residence in the United States. 22 C.F.R. § 41.11;

8 C.F.R. §§ 214.2 (h)(16), (1)(16); 68 No. 21 Interpreter Releases

681-84 (June 3, 1991). The BIA and the State Department also

recognize the doctrine of dual intent, which allows nonimmigrant

aliens who are required to keep a permanent residence in their

foreign country to both express a short term intent to remain in

the United States temporarily (so as to not contravene the

requirements of the visa under which they entered) and a long term

intent to remain in the United States permanently (so that they may

apply for adjustment of status). Matter of Hosseinpour, 15 I&N

Dec. 191, 192 (BIA 1975); 70 No. 42 Interpreter Releases 1444,

1456-58 (No. 1, 1993).

I read the Supreme Court's jurisprudence to provide that

nonimmigrant aliens, as persons who are not citizens nor nationals

of this country, are part of the alien suspect class and therefore,

laws that discriminate against them are inherently suspect and

should be subjected to strict scrutiny review. Because of the

Court’s opinions, the presumption should be that nonimmigrant

aliens are part of the alien suspect class and the defendants

should have the burden of proving the opposite. I am not persuaded

by the arguments put forth by the defendants that the Supreme Court

did not intend to include nonimmigrant aliens as part of the

45

alienage suspect classification.

Nevertheless, even assuming arguendo that rational basis is

the appropriate analysis to be used in this case, I disagree with

the majority’s holding that the Louisiana rule survives rational

basis review. To pass rational basis review, the defendants must

show that nonimmigrant aliens pose some special threat to the

State's legitimate interests, in a way that other permitted bar

applicants, citizens or immigrant aliens, do not. See City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447-50 (1985)

(“it is true that the mentally retarded as a group are indeed

different . . . [b]ut this difference is largely irrelevant unless

the [group home] and those who would occupy it would threaten

legitimate interests of the city in a way that other permitted uses

such as boarding houses and hospitals would not. Because in our

view the record does not reveal any rational basis for believing

that the Featherston home would pose any special threat to the

city's legitimate interests, we affirm the judgment below ”).

The majority opinion’s discussion of the equal protection

claim is most problematic at this point because it is in essence

trying to “push a square peg into a round hole.” The defendants

assert that nonimmigrant aliens pose a special threat to the

integrity of the Louisiana bar because they could be unexpectedly

deported or they could leave and go back to their home country,

leaving litigants in the lurch. The defendants assert that unlike

46

citizens and immigrant aliens, nonimmigrant aliens are more

susceptible to being "international transients." The Louisiana

Supreme Court would be unable to reach malfeasant attorneys because

the Louisiana bar does not have reciprocity with other nations and

because nonimmigrant aliens are not able to establish domicile and,

therefore, the state courts could not assert jurisdiction.

However true that may be, these concerns apply equally to both

citizens and immigrant aliens. Citizens have a constitutional

right to travel. Califano v. Gautier Torres, 435 U.S. 1 (1978).

Although the Louisiana state bar may have reciprocity with other

states, citizens could leave the country and establish residency

abroad, and as the majority states, Louisiana does not have

reciprocity with other nations. Likewise, immigrant aliens may

travel abroad and not return, leaving clients behind. Moreover,

both nonimmigrant aliens and immigrant aliens are subject to

deportation; only citizens may not be deported. The majority

asserts that nonimmigrant aliens pose a special threat to Louisiana

clients because nonimmigrant aliens may not establish domicile or

have assets in Louisiana and, therefore, the courts may be

precluded from asserting jurisdiction over nonimmigrant attorneys

should the need to reach them arise. But the Louisiana bar has no

requirement that bar applicants, or bar members, be Louisiana

residents or spend any time in Louisiana or in any way have a

connection with the state. Therefore, Louisiana courts may also be

47

unable to assert jurisdiction over members of the Louisiana bar who

are citizens or immigrant aliens. Moreover, it may be possible for

nonimmigrant aliens to be domiciled in Louisiana–as the Supreme

Court found that the nonimmigrant alien plaintiffs were in Toll.

See 458 U.S. at 17. As the district court in Wallace averred:

The Rule does not restrict membership to the bar to

citizens and immigrant aliens who plan to reside

permanently in Louisiana. Nonimmigrant aliens as a class

are not necessarily more transient than other groups.

Citizens and immigrant aliens may be admitted to the bar

even if they have no intention of residing in Louisiana.

Louisiana attorneys relocate to other states and maintain

bar membership in states where they do not reside. Due to

advances in technology, attorneys can provide services

and representation to clients from virtually anywhere.

Louisiana attorneys retire, die, and leave the practice

for a myriad of reasons. If the Louisiana Supreme Court

were concerned with transience, the Rule would be

calculated to address that problem directly. However, the

Rule only excludes a fraction of persons who may have

temporary residence in the state. The fact that the

Plaintiffs must leave on a date certain does not change

the analysis. On the contrary, it might be an advantage.

Plaintiffs will be able to plan in advance for their

48

departure and make the necessary arrangements to protect

the interests of their clients.

Wallace, 286 F. Supp.2d at 763.

In my view, the Louisiana rule does not pass constitutional

muster under even the exceedingly permissive rational basis

standard of review. The Rule at issue is purported to be a

prophylactic remedy to insulate potential clients from lawyers who

are forced to leave the country unexpectedly, or who leave the

country voluntarily, without an available means for the state

courts to assert jurisdiction to reach the malfeasant attorneys.

However, if the purpose of the Rule is to protect court dockets

from disruption and protect the state’s citizens from lawyers who

may leave suddenly, the Rule is not the least restrictive way to do

it nor, as the district court in Wallace noted, is the Rule in fact

calculated to achieve this purpose.

For the foregoing reasons, I respectfully dissent from the

majority's dismissal of the plaintiffs’ Equal Protection claim and

the reversal of the district court’s judgment in Wallace v.

Calogero.

49