Record and brief — Feldman v. District of Columbia Court of Appeals

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" FEB 16 1962

” Sa L. STEVAS,

IN THE

Supreme Court of the Cnited States

OcToOBER TERM, 198]

Marc FELDMAN

Cross-Petitioner,

We

Tue District oF COLUMBIA

Court OF APPEALS, ef al.

Respondents.

CROSS-PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

RoBerT M. SUSSMAN

James A. TOUPIN

CovinGTON & BURLING

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20044

(202) 662-6000

Attorneys for Cross-Petitioner

February 16, 1982

TET SIN TT

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Are the bar admission criteria established by the Dis-

trict of Columbia Court of Appeals exempt from scrutiny under

the federal antitrust laws where the Court is not a sovereign but

a subordinate governmental body created by act of Congress

and no clearly articulated and affirmatively expressed Congres-

sional policy exists regarding the standards for admission to the

District of Columbia bar?

2. Even if the D.C. Court of Appeals is an agent of the

sovereign, is there any basis for concluding that the Court’s

actions relating to bar admission are immune from scrutiny

under the antitrust laws where the Court has abdicated to the

American Bar Association, a private entity, its authority to

establish eligibility criteria for bar admission?

PARTIES TO THE PROCEEDING SOUGHT TO BE REVIEWED

This cross-petition seeks review of a decision of the U.S.

Court of Appeals for the D.C. Circuit in the case of Feldman v.

Gardner [D.C. Cir. No. 78-2235]. The parties to that appeal

were:

Plaintiff

Marc Feldman

Defendants

William C. Gardner

Chairman, Committee on Admissions

District of Columbia Court of Appeals

Anthony Nigro

Secretary, Committee on Admissions

District of Columbia Court of Appeals

Committee on Admissions

District of Columbia Court of Appeals

District of Columbia Court of Appeals

The Honorable Theodore R. Newman, Jr.,

Chief Judge, District of Columbia

Court of Appeals

The petition which this cross-petition accompanies also

seeks review of Hickey v. District of Columbia Court of

Appeals [D.C. Cir. No. 79-1233], which the court below tre-

ated as a companion case to Feldman v. Gardner but did not

consolidate with that case. The parties in Hickey who are not

also parties in Feldman are as follows:

Plaintiff

Edward J. Hickey, Jr.

Defendants

Catherine B. Kelly

John W. Kern, Ill

George R. Gallagher

Frank Q. Nebeker

Walter Yeagley

Stanley S. Harris

Julia C. Mack

John M. Ferren

iii

TABLE OF CONTENTS

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REASONS FOR ALLOWING THE WRIT ...........-20000e0005

I. The Bar Admission Criteria Established By The D.C.

Court Of Appeals Do Not Meet This Court’s Standards

For Implied Immunity From The Antitrust Laws ..... 6

II. Even If The D.C. Court Of Appeals Is Entitled To Anti-

trust Immunity When Exercising The Powers Of A

Sovereign, That Immunity Does Not Apply When The

Court Merely Acquiesces In The Decisions Of A Private

i ee oe cus ebesedacskibeubanes 10

ER SB Sree SRS Ee REI EOF ay eR MN RE ee PO PE 1s

iv

TABLE OF CASES

CASES: Page

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ...... 11

California Retail Liquor Dealers Ass'n, v. Midcal Aluminum

eg Me ET GUUED cvccccccvegeceseevavers 11, 12

City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389

A ee ee 6, 8, 12, 13

Community Communications Co. v. City of Boulder, No. 80-

i i ME oc cde ceeeuceueeaes 5, 6, 7, 8, 9,10

Eastern Railroad Presidents Conference v. Noerr Motor

Freight, inc., 365 U.S. 127 (1961) ..... cc ccccccees 6

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) .... 12, 13

Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C. Cir. 1971) 8

Parker v. Brown, 317 U.S. 341 (1943) ................. 5, 12

United States v. Philadelphia National Bank, 374 U.S. 321

A a te i a a ee a x

MISCELLANEOUS:

Clayton Act, Section 1, 15 U.S.C. § 12 (1976) .......... 8

Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473

EE Cdn kas Gane we a udcbe dedenes beeen ae

2

Be. Ge Ae. | TD-DER CITES) oc. cece scccsccscccves 2

D.C. Code Ann. § 11-2501(a) (1981) ............... 2,5,9

Sherman Act, Section 8, 15 U.S.C. § 7 (1976) .......... 8

ee IED oo vccccccecscccvesecvedene 2

Pe OED oc ncn tsedccsdesccceseetves 2

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1981

No.

Marc FELDMAN

Cross-Petitioner,

Vv.

Tue District oF COLUMBIA

Court OF APPEALS, et al.

Respondents.

CROSS-PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Marc Feldman, respondent in No. 81-1335, respectfully

cross-petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the District of Columbia

Circuit.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals of which review is

sought is reproduced in the Appendix to the Petition for Cer-

tiorari filed on behalf of the District of Columbia Court of

Appeals (“Pet. App.”) at la-60a. The two decisions of the

district court that were reviewed by the U.S. Court of Appeals

appear at Pet. App. 6la-73a.

2

STATEMENT OF JURISDICTION

The panel of the U.S. Court of Appeals for the District of

Columbia Circuit filed its Opinion in this case on July 23, 1981.

The U.S. Court of Appeals denied the petitions for reconsidera-

tion and suggestions for rehearing en banc on October 27,

1981.

Counsel for Marc Feldman received the petition for certiorari

filed in this case on January 15, 1982. In accordance with Rule

19.5 of the Rules of the Supreme Court, this cross-petition is

filed not more than 30 days after receipt of the petition for

certiorari. This Court has jurisdiction pursuant to 28 U.S.C.

§§ 1254(1) and 2101(c) (1976).

STATUTES INVOLVED

The principal statute involved in this case is D.C. Code Ann.

§ 11-102, a provision of the Court Reform and Criminal Proce-

dure Act of 1970, 84 Stat. 473 et seq. (1970). It states as

follows:

“The District of Columbia Court of Appeals shall make

such rules as it deems proper respeciing the examination,

qualification, and admission of persons to membership in

its bar, and their censure, suspension, and expulsion.”

D.C. Code Ann. § 11-2501(a) (1981).

The case also involves Rule 46 I(b)(3) of the General Rules of

the D.C. Court of Appeals, which provides:

“An applicant who has graduated from a law school that

at the time of graduation was approved by the American

Bar Association or who shall be eligible to be graduated

from an approved law school within 60 days of the date of

the examination will be permitted to take the bar examina-

tion. Under no circumstances shall an applicant be admit-

ted to the bar without having first submitted to the Secret-

ary to the Committee a certificate verifying that he has

graduated from an approved law school.”

3

STATEMENT OF THE CASE

The background and history of this case are described fully in

Mr. Feldman’s brief in opposition to the petition for certiorari

filed in No. 81-1335. The facts which are relevant to this

cross-petition are presented briefly below.

Marc Feldman obtained his legal education by pursuing a

program of law office study authorized by the Virginia Code.

After completing his apprenticeship, Mr. Feldman took and

passed the Virginia bar examination and was admitted to the

Virginia Bar. He then took and passed the Maryland bar ex-

amination, subsequent!y becoming a member of the Maryland

Bar as well. Pet. App. 8a-9a.

Mr. Feldman thereafter became associated with an attorney

practicing in the District of Columbia and applied for admission

to the District of Columbia Bar. On May 11, 1977, however,

the Committee on Admissions advised him that his application

for admission had been rejected on the basis of Rule 46 I of the

D.C. Court of Appeals. Pet. App. 10a. This Rule requires

applicants fer bar admission to be graduates of a law school

accredited by the American Bar Association (“ABA’).

On June 13, 1977, Mr. Feldman petitioned the D.C. Court of

Appeals for a waiver of Rule 46 I that would allow him either to

be admitted to the Bar directly or to take the bar examination.

After consulting with the ABA (Pet. App. 39a, n. 166), the

D.C. Court of Appeals on March 30, 1978, issued an order

stating that “the petition of Marc Feldman to waive the provi-

sions of Rule 46” had been considered and denied. Pet. App.

76a. Accompanying the Court’s order was a letter, dated March

29, 1978, from Chief Judge Newman to respondent’s counsel.

That letter acknowledged that Mr. Feldman “has had an excep-

tional opportunity for training and is a personable, impressive

and outstanding individual.” However, the letter then stated

4

that “the court has concluded that its rules should not be

waived.” Pet. App. I la.

On May 26, 1978, Mr. Feldman filed a complaint in the

United States District Court for the District of Columbia, seek-

ing a judicial determination that Rule 46 I was invalid both on

its face and as applied to him. The complaint invoked both the

Fifth Amendment to the United States Constitution and the

federal antitrust laws. By creating an irrebutable presumption

that only graduates of an ABA-accredited law school are qual-

ified to practice law, the complaint alleged, defendants had

unreasonably restricted entry to the legal profession. As a

result, Mr. Feldman asserted, defendants had entered into a

combination in restraint of trade, thereby violating Section | of

the Sherman Act, and had sought to create a monopoly over the

practice of law, thereby violating Section 2 of that Act. '

On October 24, 1978, District Judge June Green entered an

order dismissing the complaint on the ground that the district

court lacked subject-matter jurisdiction. Pet. App. 6la-66a. On

July 23, 1981, the United States Court of Appeals for the D.C.

Circuit reversed the district court’s decision. The D.C. Circuit

held that the D.C. Court of Appeals’ order denying respon-

dent’s petition was an exercise of that Court’s administrative

power over bar admissions and, hence, that the district court

had jurisdiction to entertain a challenge to the constitutionality

of the eligibility requirements contained in the Court’s rules.

Pet. App. 27a-49a.

The D.C. Circuit also held, however, that Mr. Feldman’s

antitrust claim should have been dismissed as frivolous. In

reaching this conclusion, the court of appeals acknowledged

that the District of Columbia and its government do not have the

Status of states and, hence, are not exempt from the antitrust

'Mr. Feldman’s complaint is reprinted on pages 3-34 of the Joint Appen-

dix (“JA”) filed in the court of appeals.

5

laws by virtue of Parker v. Brown, 317 U.S. 341 (1943). Pet.

App. 22a. It held, nevertheless, that the D.C. Court of Appeals

may not be sued for violations of the federal antitrust laws

because Congress authorized it “to make such rules as it decins

proper respecting the . . . admission of persons to membership

initsbar. . .” D.C. Code Ann. § 11-2501(a). According to the

court of appeals, this grant of power carried with it an implied

immunity from antitrust scrutiny in setting and enforcing

criteria for bar admission. App. 25a-26a.

REASONS FOR ALLOWING THE WRIT

In two basic respects, the opinion of the court below is in

conflict with prior decisions of this Court which define when

the actions of a governmental body are immune from scrutiny

under the antitrust laws.

First, as a quasi-independent governmental entity created by

Congress, the District of Columbia lacks the sovereignty pos-

sessed by the federal government and the states. Accordingly,

the actions of the D.C. Court of Appeals are not automatically

immune from the antitrust laws; rather, any immunity the Court

enjoys must be implied from acts of Congress. Recently, this

Court held that municipalities are exempt from antitrust liability

only where their actions are authorized by a “clearly articulated

and affirmatively expressed state policy.” Community Com-

munications Co. v. City of Boulder, No. 80-1350 (Jan. 13,

1982). The same principle should be applicable to federally-

created entities like the District of Columbia. Under this

approach, the D.C. Court of Appeals could not qualify for

antitrust immunity because Congress has never adopted a

“clearly articulated and affirmatively expressed” policy regard-

ing admission to the District of Columbia bar.

Second, the Court’s decisions demonstrate that, even where

antitrust claims are directed against an agent of the sovereign,

no antitrust immunity is available if the governmental body in

6

question has merely acquiesced in the results of private

decision-making without any independent effort to define or

apply governmental policy. This is precisely what happened

here. The D.C. Court of Appeals has abdicated its responsibil-

ity to define admission standards to a private entity, the ABA,

which makes accredidation decisions without the review or

supervision of the Court itself. The antitrust laws would be

thwarted if such official acquiescence in private conduct could

serve to insulate that conduct from meaningful antitrust review.

I. The Bar Admission Criteria Established By The D.C. Court Of

Appeals Do Not Meet This Court’s Standards For Implied

Immunity From The Antitrust Laws.

In City of Lafayette v. Louisiana Power & Light Co., 435

U.S. 389, 399 (1978), this Court established a “presumption

against repeal [of the antitrust laws] by implication [which]

reflects the understanding that the antitrust laws establish over-

arching and fundamental policies, a principle which argues

with equal force against implied exclusions.” As the Court

emphasized, “[t}wo policies have been held sufficiently weigh-

ty to override the presumption against implied exclusions from

the coverage of the antitrust laws.” /d. Those policies are, first,

“the threat to the constitutionally protected right of petition”

recognized in Eastern Railroad Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (id.) and,

second, the “ ‘dual system of government in which, under the

Constitution, the states are sovereign. . .” ” /d. at 400 (quoting

Parker v. Brown, 317 U.S. 341, 351).

In Community Communications Co. v. City of Boulder, the

Court addressed the circumstances under which local gov-

ernmental bodies share in the antitrust immunity of the states.

The Court first stressed that

“. .. all sovereign authority ‘within the geographical

limits of the United States’ resides either with

7

‘the Government of the United States, or [with] the

States of the Union. There exist within the broad domain

of sovereignty but these two. There may be cities, coun-

ties, and other organized bodies with limited legislative

functions, but they are all derived from, or exist, in

subordination to one or the other of these.’ United States

v. Kagama, 118 U.S. 375, 379 (1886) (emphasis

added).”

Slip Op. at 12. The Court then reiterated that, under its prior

decisions, “ ‘municipalities are not themselves sovereign’ ”

and, hence, that any antitrust immunity they enjoyed had to be

implied from state legislation defining their responsibilities.

Such implied immunity, the Court held, would be available

“only to the extent that they acted pursuant to a clearly articu-

lated and affirmatively expressed state policy.” Id. at 12-13.

City of Boulder does not directly address the antitrust status

of governmental entities, like the District of Columbia, that are

created not by the states but by Congress. Nevertheless, the

principles adopted by the Court are clearly applicable by analo-

gy. In City of Boulder, the Court stressed “Congress’ intention

to limit the state action exemption” to clear exercises of “state

sovereignty.” Slip Op. at 12. Congress undoubtedly wanted a

comparable doctrine to operate in the federal sphere, and thus

intended to exempt federal instrumentalities from antitrust scru-

tiny only where they are exercising the sovereign powers of the

United States.

The governmental organs of the District of Columbia do not

possess this status. As the court below recognized, the District

of Columbia is a “semi-autonomous governmental unit” created

by federal law and, as such, “lack[s] the sovereignty inherent in

statehood.” Pet. App. 22a-23a. On prior occasions, the D.C.

Circuit has held that governmental entities in the District lack

the attributes of the federal sovereign and, thus, are immune

from the antitrust laws only if Congress has clearly intended to

confer such immunity. * Indeed, the provisions of the antitrust

laws directly support this conclusion. Those laws provide that

antitrust liability may be imposed on “persons,” ’ a term specifi-

cally defined “to include corporations or associations existing

under or authorized by the laws of . . . the United States. . .”*

The District of Columbia government falls squarely within this

definition. *

In view of the “presumption against . . . implied exclusions”

from the antitrust laws ° and the “indispensable role of antitrust

policy in the maintenance of a free economy,”’ it would be

irrational to treat governmental entities created by Congress any

differently from municipalities created by the states. Thus, the

antitrust immunity of the D.C. Court of Appeals should be

governed by the principles established in City of Boulder; the

controlling question should be whether the Court’s actions

derive from a “clearly articulated and affirmatively expressed”

policy of Congress.

? See Hecht v. Pro-Football, inc. ,444 F.2d 931 (D.C. Cir. 1971), holding

that the District of Columbia Armory Board, established by Congress to

operate an athletic stadium in the District, was not immune from antitrust

liability. Significantly, the D.C. Circuit relied heavily on decisions of this

Court which define the circumstances in which a federal regulatory statute

will be deemed to confer antitrust immunity on private entities subject to

control by federal agencies. 444 F.2d at 942-944.

’ As the Court noted in City of Lafayette v. Louisiana Power & Light Co.:

“The antitrust laws impose liability on. . . a ‘person’ or ‘persons’ as defined

in those Acts.” 435 U.S. at 394-95.

* Sherman Act, Section 8, 15 U.S.C. § 7 (1976); Clayton Act, Section 1,

15 U.S.C. § 12 (1976).

‘In the legislation establishing “home rule” for the District, Congress

created a “body-corporate for municipal purposes” to discharge governmen-

tal functions in the District of Columbia. Section 101(a) of the Reorganiza-

tion Plan No. 3 of 1967.

*City of Lafayette v. Louisiana Power & Light Co., 435 U.S. at 399.

’ United States v. Philadelphia National Bank, 374 U.S. 321, 348 (1964).

9

In City of Boulder, the Court made it clear that such a policy

cannot be inferred merely from a general grant of governmental

authority:

“[P]lainly the requirement of ‘clear articulation and

affirmative expression’ is not satisfied when the State’s

position is one of mere neutrality respecting the municipal

actions challenged as anticompetitive. A State that allows

its municipalities to do as they please can hardly be said to

have ‘contemplated’ the specific anticompetitive actions

for which municipal liability is sought. Nor can those

actions be truly described as ‘comprehended within the

powers granted,’ since the term, ‘granted,’ necessarily

implies an affirmative addressing of the subject by the

State . . . Acceptance of such a proposition - that the

general grant of power to enact ordinances necessarily

implies state authorization to enact specific anticompeti-

tive ordinances - would wholly eviscerate the concepts of

‘clear articulation and affirmative expression that our pre-

cedents require.”

Slip Op. at 13-14 (emphasis in original).

Here, the only arguable authorization for the conduct chal-

lenged by Mr. Feldman is Congress’ declaration that the D.C.

Court of Appeals should regulate entry to legal practice by

promulgating “such rules as it deems proper. . .” D.C. Code

Ann. § 11-2501 (1981). This statutory provision is at best an

expression of “mere neutrality” respecting the Court of

Appeals’ criteria for admission to the District bar. It provides no

basis for concluding that Congress specifically envisioned and

approved any particular set of bar admissions criteria — much

less an admissions process which assigned conclusive weight to

the accredidation decisions of a private entity like the ABA.

Thus, while Congress may have allowed the D.C. Court of

Appeals “to do as [it] please[d]” in the area of bar admissions, it

clearly cannot “be said to have ‘contemplated’ the specific

10

anticompetitive actions” that Mr. Feldman has challenged in

this case. *

For these reasons, the lower court’s holding that the D.C.

Court of Appeals is immune from antitrust scrutiny represents a

clear departure from City of Boulder and other decisions of this

Court. The Court should grant certiorari both to clarify the

status under the antitrust laws of independent governmental

entities created by Congress and to assure that Mr. Feldman’s

antitrust claims are considered on their merits.

Il. Even If The D.C. Court Of Appeals Is Entitled To Antitrust

Immunity When Exercising The Powers Of A Sovereign, That

Immunity Does Not Apply When The Court Merely Acquiesces

In The Decisions Of A Private Entity Like The ABA.

The decisions of this Court also demonstrate that, even when

antitrust claims are directed against an agent of the sovereign,

antitrust immunity is available only where the conduct chal-

§ The lower court expressed concern about holding that the D.C. Court of

Appeals “could become exposed to antitrust liability when it exercises” its

authority over admission to the bar. Pet. App. 25a-26a. The answer to that

concern, however, is the same answer that the Court gave in City of Boulder

when similar fears were expressed about imposing antitrust liability on

municipalities:

“[T}his argument is simply an attack upon the wisdom of the long-

standing congressional commitment to the policy of free markets and

competition embodied in the antitrust laws . . . Moreover, judi-

cial enforcement of Congress’ will . . . ‘means only that when the State

itself has not itself directed or authorized an anticompetitive practice,

the State’s subdivisions in exercising their delegated power must obey

the antitrust laws.’ ”

Slip Op. at 14-15 (citation omitted). It should be stressed that a holding that

the D.C. Court of Appeals is not entitled to antitrust immunity is not

tantamount to a finding of antitrust liability; that issue would remain to be

decided by the lower courts. Moreover, like City of Boulder (see Slip Op. at

n.20), this case involves merely the availability of injunctive relief; Mr.

Feldman has not sought monetary damages from the D.C. Court of Appeals

or its judges.

lenged as anticompetitive has received active and affirmative

supervision by the sovereign itself. This principle provides an

additional reason why the court below erred in according anti-

trust immunity to the D.C. Court of Appeals.

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the

Court was presented with an antitrust challenge to disciplinary

rules adopted by the Arizona Supreme Court. While the Court

held that the rules were exempt from antitrust scrutiny, its

reasoning illustrates why no such exemption should be afforded

here. The Court began its analysis by recognizing that the

claims were directed against the state because the Arizona

Supreme Court was the real party in interest, and that “regula-

tion of the activities of the bar is at the core of the State’s power

to protect the public.” /d. at 36) . This did not, however, end the

Court’s inquiry. The Court went on to emphasize that the

Arizona Supreme Court was actively supervising the State Bar:

“Although the State Bar plays a part in the enforcement of

the rules, its role is completely defined by the court; the

appellee [State Bar] acts as the agent of the Court under its

continuous supervision . . .

. . . The disciplinary rules reflect a clear articulation of the

State’s policy with regard to professional behavior.

Moreover, as the instant case shows, the rules are subject

to pointed re-examination by the policy maker — the

Arizona Supreme Court — in enforcement proceedings.

Our concern that federal policy is being unnecessarily and

inappropriately subordinated to state policy is reduced in

such a situation; we deem it significant that the state policy

is so clearly and affirmatively expressed and that the

State’s supervision is so active.”

Id. at 361-62 (emphasis added).

In California Retail Liquor Dealers Ass'n v. Midcal Alumi-

num, Inc., 445 U.S. 97 (1980), the Court again recognized that,

for antitrust immunity to attach, the “challenged restraint must

be ‘one clearly articulated and affirmatively expressed as state

12

policy’ [and] . . . the policy must be ‘actively supervised’ by

the State itself.” Jd. at 105 (citation omitted). The Court held

that the first element was met since the legislative policy was

forthrightly stated, but then determined that the challenged state

action did not “meet the second requirement for Parker immun-

ity” because the state had failed to actively supervise the prog-

ram. Id. at 105. The Court elaborated:

“The State simply authorizes price-setting and enforces

the prices established by private parties. The State neither

establishes prices nor reviews the reasonableness of the

price schedules; nor does it regulate the terms of fair trade

contracts. The State does not monitor market conditions or

engage in any pointed reexamination of the program.”

Id. at 105-106. The Court distinguished the program challenged

in Parker v. Brown, supra (in which a number of state officials

were defendants), on the ground that Parker held the Sherman

Act inapplicable because of extensive state oversight; as the

Court cautioned, “[|w]ithout such oversight, the [Parker] result

could have been different.” /d. at 104.

Indeed, Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)

expressly holds that the mere fact that a governmental body

possesses the powers of the sovereign will not give rise to

antitrust immunity if its acticns do not reflect the active supervi-

sion of the sovereign itself. In that case, a minimum fee sche-

dule adopted and enforced by the Virginia State Bar was chal-

lenged as a violation of the Sherman Act. It was undisputed that

the Bar was “a state agency by law” (421 U.S. at 790) and that it

had been “acting in its official capacity” in adopting the fee

schedule at issue.’ Nevertheless, no state statute specifically

referred to lawyers’ fees and the Virginia Supreme Court had

never reviewed and approved the fee schedule’s adoption.

Under these circumstances, the Court held that the State Bar,

though exercising its powers as an organ of the sovereign, had

* City of Lafayette v. Louisiana Power & Light Co. , 435 U.S. at411n.41.

13

“voluntarily joined in what is essentially a private anticompeti-

tive activity” and thereby lost its immunity from antitrust liabil-

ity. /d at 792.

Since Goldfarb, the Court has reiterated that, for purposes of

antitrust immunity, “not every act of a state agency is that of the

State as sovereign.” City of Lafayette v. Louisiana Power &

Light Co., 435 U.S. at 410. The wisdom of this rule is self-

evident. If antitrust immunity were automatically accorded to

all agents of the sovereign, the fact of governmental action

would always shield anticompetitive conduct from antitrust

scrutiny. Thus, anticompetitive arrangements conceived and

implemented by private entities would be beyond antitrust

challenge wherever they had reccived the acquiesence of gov-

ernmental bodies. '° It would make no difference whether the

governmental body had evaluated and actively supervised these

private arrangements or had simply ratified them indiscrimi-

nately without an independent inquiry of its own.

These concerns are vividly illustrated by the present case.

Rule 46 I of the D.C. Court of Appeals establishes a conclusive

presumption that only graduates of a law school accredited by

the ABA — a private entity — are eligible to practice law in the

District of Columbia. If an applicant for bar admission has not

graduated from such a school, he will be summarily rejected

without any opportunity to demonstrate the adequacy of his

"In its opinion, the lower court suggested that Mr. Feldman’s remedy

might be to file suit against the ABA. Pet. App. 26a. However, the equitable

relief that Mr. Feldman seeks — admission to the bar — can only be obtained

by a court order directed at the Court of Appeals itself. There is no reason

why an arm of the sovereign that has acquiesced in the results of private

decision-making should be beyond the reach of a court-imposed remedy

where it is the sovereign’s failure to define and apply government policy that

has exposed the plaintiff to injury under the antitrust laws and where the

resulting antitrust violation can only be effectively rectified by an order

directed against a governmental body.

14

qualifications to the D.C. Court of Appeals. Yet there is no

evidence in the record that the Court has independently evalu-

ated the general accreditation process of the ABA and satisfied

itself that this process provides a sound basis for determining

eligibility to practice law; indeed, there is no evidence that the

Court even knows what the ABA-accreditation criteria are. "'

Under these circumstances, the Court of Appeals has effective-

ly abdicated to the ABA its authority to set standards for bar

admission. '? Thus, the factors determining eligibility to prac-

tice law in the District of Columbia have never been “affirma-

tively expressed” or “actively supervised” by the Court itself,

but have been committed to private control.

The antitrust laws would be thwarted if the D.C. Court of

Appeals’ authority to grant or deny bar admission could be

invoked to insulate a private accreditation process from anti-

trust scrutiny. Accordingly, the Court should grant certiorari to

clarify that antitrust immunity is not available where a gov-

ernmental body has abdicated its statutory functions to a private

decision-maker without any effort to define or apply govern-

ment policy.

''Mr. Feldman sought discovery in the district court to determine the

degree to which the D.C. Court of Appeals was familiar with and had

specifically approved the accredidation process established by the ABA. JA

40. Defendants resisted Mr. Feldman’s discovery request, however, and the

issue became moot when the district court dismissed the complaint.

"2 Mr. Feldman does not contend that the ABA accredidation process

should play no role in the admissions decisions of the D.C. Court of

Appeals. Here, however, the Court has failed to make a reasoned and

informed judgment that the ABA’s accredidation criteria provide a sound

basis for determining eligibility to practice law. Moreover, the Court has so

totally deferred to the ABA's accredidation process that it will not even

considerthe qualifications and training of an applicant who has not attended

an approved law school.

15

CONCLUSION

The Court should grant Mr. Feldman’s cross-petition for a

writ of certiorari to review the portion of the lower court’s

decision upholding the dismissal of Mr. Feldman’s antitrust

claims as frivolous.

Respectfully submitted,

ROBERT M. SUSSMAN

JAMES A. TOUPIN

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20044

(202) 662-6000

Attorneys for Cross-Petitioner

February 16, 1982

—s— a ee ee ee ee

Nos. 81-1526 and 81-153”

Off ce - Supreme Court, U.S.

°D

IN THE L eae

Supreme Court of the United States

OCTOBER TERM, 198!

>

MARC FELDMAN and EDWARD J. HICKEY, JR.,

Cross-Petitioners,

—_—V.—

THE DISTRICT OF COLUMBIA

COURT OF APPEALS, ef ai.,

Cross-Respondents.

BRIEF OF CROSS-RESPONDENTS IN

OPPOSITION TO CROSS-PETITIONS

FOR CERTIORARI

DANIEL A. REZNECK

CHARLES H. COCHRAN

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 872-6700

Attorneys for Cross-Respondents

Of Counsel:

ARNOLD & PORTER

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

March 17, 1982

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TABLE OF AUTHORITIES

Cases PAGE

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) .... 2

Community Communications Co. v. City of Boulder, 50

ence, Gee Ge, Bs SOU vo cccccccccccceccces 2,3

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).... 2

Parker v. Brown, 317 U.S. 341 (1943) ...............

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

Nos. 81-1526 and 81-153"

>

MARC FELDMAN and EDWARD J. HICKEY, JR.,

Cross-Petitioners,

Pe

THE DISTRICT OF COLUMBIA

COURT OF APPEALS, ef ai.,

Cross-Respondents.

>

BRIEF OF CROSS-RESPONDENTS IN

OPPOSITION TO CROSS-PETITIONS

FOR CERTIORARI

This brief is filed on behalf of the cross-respondents—who

include the Judges of the District of Columbia Court of

Appeals and the Court itself—in opposition to the cross-peti-

tions for certiorari. The cross-petitions were filed on February

16, 1982, outside of the 90-day period allotted for seeking

certiorari. Accordingly, under Rule 20.5 of this Court’s Rules,

the cross-petitions may not be granted unless our petition for

certiorari in No. 81-1335 is also granted.

REASONS FOR DENYING

THE CROSS-PETITIONS

The cross-petitions seek review of the unanimous decision of

the U.S. Court of Appeals affirming the dismissal of cross-

petitioners’ antitrust claims. (Unlike the ruling on the issue of

jurisdiction over the constitutional claims which our petition

for certiorari tenders for review, every judge who heard the

issue of jurisdiction over the antitrust claims agreed that

jurisdiction was lacking.) The cross-petitioners had alleged that

the D.C. Court of Appeals’ Rule requiring graduation from or

attendance at an ABA approved law school as a prerequisite to

admission to the D.C. bar examination violated the Sherman

and Clayton antitrust acts. The U.S. Court of Appeals held

that the antitrust claims were so obviously without merit and

insubstantial as te provide no basis for federal jurisdiction.

That holding was based upon the state action doctrine of

Parker v. Brown, 317 U.S. 341 (1943), as specifically applied

to regulation of the bar in Bates v. State Bar of Arizona, 433

U.S. 350 (1977), and Goldfarb v. Virginia State Bar, 421 U.S.

773 (1975). As the U.S. Court of Appeals said:

“We hold that the [D.C.] Court of Appeals—as ‘the

ultimate body wielding [governmental] power over the

practice of law’ in the District of Columbia—acts in a

sovereign governmental capacity—as sovereign as an exer-

tion of judicial power can ever be—when it sets and

enforces educational prerequisites for admission to the

bar examination. It may be that appellants could have

sued ABA, if indeed that organization engages in anti-

competitive behavior and thereby inflicts injury upon

them. They cannot, however, subject the [D.C.] Court of

Appeals to a charge of antitrust violation. We affirm the

dismissal of appellants’ antitrust claims.” App. at 26a

(footnotes omitted) (emphasis supplied).

The cross-petitions raise nothing that could possibly provide

a basis for overturning, or even reconsidering, this conclusion.

3

The cross-petitions rely heavily on this Court’s recent decision

in Community Communications Co. v. City of Boulder, 50

U.S.L.W. 4144 (Jan. 13, 1982), which counsel obviously have

seized upon at the last minute in their continuing, but so far

futile, effort to develop a colorable antitrust theory.

On the basis of that case, the cross-petitions make an

argument—never before raised—to the effect that the D.C.

Court of Appeals is somehow to be considered as a municipal-

ity for purposes of the federal antitrust laws. That argument

finds no support either in the City of Boulder case or in these

cases. The simple fact is that the D.C. Court of Appeais is not

a municipality, nor is it even analogous to a municipality.

The status of the D.C. Court of Appeals was accurately

described as follows in the decision below:

“[W]hatever the status of the District’s legislative and

executive branches in the hierarchy of antitrust exemp-

tion, the Court of Appeals is plainly a federal instrumen-

tality armed with the supreme judicial power over

nonfederal subject matter in the District. . . . The court

was established by Congress to head the local judiciary in

an indispensable function of government, and was in-

vested with powers virtually identical to those of the

highest courts of the states. The Court of Appeals is not a

governmental entity simply substituting for private en-

terprise, nor one seeking refuge merely in the fact that it is

a governmental instrumentality.

“Without a doubt, the Court of Appeals has the same

compelling interest as a state supreme court in regulating

the bar of its jurisdiction. While we would not lightly

attribute to Congress a desire to counter the important

objectives of the federal antitrust policies, we have great

difficulty in imagining an intent to disturb the traditional

authority of courts to meet one of their most vital needs—

determining who will be admitted to practice before them

as court officers. Here Congress issued a clear legislative

mandate:

4

The District of Columbia Court of Appeals shall

make such rules as it deems proper respecting the

examination, qualification, and admission of persons

to membership in its bar, and their censure, suspension,

and expulsion.

Responding to the directive of this legislation, the court,

by conditioning admission to the bar examination upon

educational attainment in an ABA-approved law school,

acts no differently than the vast majority of states in the

constant effort to assure the public that members of the

bar are qualified lawyers. And ‘[s]ince the founding of the

Republic, the licensing and regulation of lawyers has been

left exclusively to the States and the District of Columbia

within their respective jurisdictions.’ It would fly in the

face of congressional intent in conferring this broad and

essential regulatory authority upon the court to rule that

it could become exposed to antitrust liability when it

exercises it.” App. at 23a-26a (footnotes omitted).

CONCLUSION

The decision below as to cross-petitioners’ antitrust claims is

clearly correct. No review of that decision is warranted. The

cross-petitions for certiorari, accordingly, should be denied.

Respectfully submitted,

DANIEL A. REZNECK

CHARLES H. COCHRAN

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 872-6700

Attorneys for Cross-Respondents

Of Counsel:

ARNOLD & PORTER

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing Brief of

Cross-Respondents in Opposition to Cross-Petitions for Cer-

tiorari were sent by first-class mail, postage prepaid, to each of

the following persons on this 17th day of March, 1982:

Robert M. Sussman, Esquire

James A. Toupin, Esquire

Covington & Burling

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

Michael F. Healy, Esquire

Morgan, Lewis & Bockius

1800 M Street, N.W.

Washington, D.C. 20036

Allen R. Snyder

Elliot M. Mincberg

Hogan & Hartson

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

Charles H. Cochran