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

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

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(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.

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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

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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.

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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.”).

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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.