Opposition Brief — Maynard v. United States District Court

Supreme Court, U.S.

_S : FILED

Se UN 6

No. 90-1555 aN 1991

————— eee OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1990

MARGARET DANEHY MAYNARD, PETITIONER

Vv.

UNITED STATES DisTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

(EXCEPT JUDGE A. WALLACE TASHIMA)

IN OPPOSITION

Ko NNETH W. STARR -”

Solicitor General

STUART M. GERSON

Assistant Attorney General

DOUGLAS N. LETTER

D. BRUCE LA PIERRE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

24

QUESTION PRESENTED

Whether Local Rule 2.2.1 of the United States Dis-

trict Court for the Central District of California,

which requires attorneys seeking admission to prac-

tice before that court to be members in good standing

of the California state bar, is constitutional as ap-

plied to petitioner.

(1)

TABLE OF CONTENTS

Page

SEE ESSE SEU CLARO St OE 1

TE ee oath eral a 2

Statement .......... Dy SOULS, attan aN ee CO 2

i aT es spanontocinenieduhedabiaccercen 6

SS EE TS Ec a OA OR 9

a cnasmennaneuaieiseisisienions la

TABLE OF AUTHORITIES

Cases: .

Barnard Vv. Thorstenn, 489 U.S. 546 (1989) ............ .{

Frazier Vv. Heebe, 482 U.S. 641 (1987) .................... 6, 8,9

Giannini V. Real, 911 F.2d 354 (9th Cir.), cert.

denied, 111 S. Ct. 680 (1900) ............................. 5,6, 7,9

Leis Vv. Flynt, 489 U.S. 438 (1979) .... .....0.0...0.0000..... 7

Lupert Vv. California State Bar, 761 F.2d 1325 (9th

Cir.), cert. denied, 474 U.S. 916 (1985) _............ 7

Roberts, In re, 682 F.2d 105 (3d Cir. 1987) _........ 7,9

Supreme Court v. Friedman, 487 U.S. 59 (1988)... 8

Supreme Court v. Piper, 470 U.S. 274 (1985)........ 8

Zambrano V. City of Tustin, 885 F.2d 1473 (9th

SATE a ee eA re 6, 7

Constitution, statutes, and rules:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) .............. 3,4

Art. IV, § 2, Cl. 1 (Privileges and Immunities

i Meat AE SEE ce ne 3,8

TSS a a a EN 4

nee Process Cieuse ...................-.......... 3, 4, 5, 6, 7

Amend. XIV (Equal Protection Clause) ........ 4

Neen ascniionien ee ee 3

SS 3

28 U.S.C. 688 ............ Ne attcdcbnaits 3

5 Eee va ya EI 5

Ee 5

IV

Rules—Continued : Page

I csicaitbaniaian tan 2, 3, 5, 6, 7, 8, 9

SR Ts I ts ID saisiiccscsinemacncccesccmassccussebioniummnie 3

Bt I ET I ccc caccncenennesicinncnsncneseacssalivnss 3

CE a Be OT YS ene 3

ER RICA I EN OE ele ee 6

I a a eeioaneneniioamisiin 8,9

In the Supreme Cont of the United States

OCTOBER TERM, 1990

No. 90-1555

MARGARET DANEHY MAYNARD, PETITIONER

Vv.

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

(EXCEPT JUDGE A. WALLACE TASHIMA)

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

4-6) is unreported, but the decision is noted at 915

F.2d 1581 (Table). The opinion of the court of ap-

peals on rehearing (Pet. App. 7-8) is unreported.

The opinion of the district court (Pet. App. 1-3) is

unreported. The initial opinion of the district court

aismissing petitioner’s action with leave to amend is

reported at 701 F. Supp. 738.’

1 The appendix to the petition does not include the district

court’s initial opinion. We have accordingly included it as an

appendix to this brief.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on October 3, 1990. The order of the court of appeals

granting in part and denying in part a petition for

rehearing was entered on January 9, 1991. Pet. App.

7-8. The petition for a writ of certiorari was filed on

April 9, 1991. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is an attorney and a California resi-

dent, maintaining a law office within the jurisdiction

of the United States District Court for the Central

District of California. She is a member of the Indi-

ana bar, and is admitted to practice before the

United States District Courts for the Northern and

Southern Districts of Indiana. Petitioner is also ad-

mitted to practice before the United States District

Court for the Northern District of California. Pet.

App. 5; App., infra, 2a.

In July 1987, petitioner applied for admission to

the Bar of the Central District of California. The

United States Magistrate denied petitioner’s applica-

tion on the ground that she was not licensed to prac-

tice law in California, as required by Local Rule

2.2.1 of the United States District Court for the Cen-

tral District of California. App., infra, 2a. Rule

2.2.1 provides that

[a]dmission to and continuing membership in

the Bar of this Court is limited to persons of

good moral character who are active members in

good standing of the State Bar of California.

C.D. Cal Local R. 2.2.1.?

*The Local Rules of the United States District Courts for

the Southern and Eastern Districts of California also require

2. In November 1987, petitioner filed a federal

court action against the federal respondents, namely,

the United States District Court for the Central Dis-

trict of California and the judges of that court.®

Petitioner challenged the constitutionality of Local

Rule 2.2.1, which limits bar membership to active

members of the California state bar. Petitioner al-

leged that the local rule violates the Privileges and

Immunities Clause, the Commerce Clause, the “Equal

Protection Clauses of the Fifth and Fourteenth

Amendments,” and the Due Process Clause. App.,

infra, 2a.*

In September 1988, the district court dismissed

each of petitioner’s claims, with leave to amend her

complaint. The court rejected the claim that the local

rule violates the Privileges and Immunities Clause,

because that rule ‘“‘is a matter of federal law legiti-

mately administered by a federal entity.” App.,

infra, 4a. Petitioner’s claim, the court held, “is thus

membership in the California state bar as a prerequisite to

admission to practice. S.D. Cal. Local R. 110-3(a) (1); E.D.

Cal. Local R. 180(a). By contrast, Local Rule 110-1 of the

United States District Court for the Northern District of

California does not require membership in the California

state bar for admission to practice before that court.

8’ Respondent Judge A. Wallace Tashima is separately rep-

resented by private counsel.

4As petitioner is a private attorney, this case does not

involve the effect of the statutory authority of the Attorney

General to direct attorneys under the supervision of the De-

partment of of Justice to appear before federal courts. See 28

U.S.C. 509, 515-519, 533. For that reason, petitioner’s refer-

ences to federal government attorneys (Pet. 14-15) are beside

the point.

4

deficient as a matter of law, as State discrimination

is, by definition, not possible.” Jbid.* The court sira-

ilarly dismissed petitioner’s Commerce Clause chal-

lenge, since the local rule “‘is clearly based on federal

law,” id. at 6a and petitioner conceded that “the

Federal Government cannot violate the Commerce

Clause,” id. at 5a.

Turning to petitioner’s challenge based on the

equal protection component of the Fifth Amendment,

the court determined that “the proper standard of

review is the rational! basis test.” App., infra, 8a.

Applying that standard, the court held that respond-

ents “have made a sufficient showing of a legitimate

government interest which bears a reasonable and

nonarbitrary relation to the challenged rule.” Jd. at

9a. The court recognized, for example, that “mem-

bership in the State Bar of California is a reasonable

method of ensuring that certain ethical standards are

met and maintained,” and that the requirement “en-

sures that attorneys practicing in the Central Dis-

trict are knowledgeable in California substantive

law.” Ibid.

Finally, the court rejected petitioner’s claim under

the Due Process Clause. The court pointed out that

petitioner “‘does not cite any rule, statute, or under-

standing that would support her claim of denial of a

property right to practice law in the district court.”

App., infra, lla. Moreover, the court concluded that

5 For that reason as well, the court rejected petitioner’s

claim based on the Equal Protection Clause of the Fourteenth

Amendment. As the court recognized, “‘[b]ecause [petitioner]

challenges a federal district court’s rule, no state action is

implicated, and any reliance on the Fourteenth Amendment

is misplaced.” App., infra, 6a.

5

[n]Jothing in Local Rule 2.2.1 implicates [pe-

titioner’s] good name, reputation, honor or in-

tegrity, or imposes any stigma or other disad-

vantage limiting [petitioner’s] employment op-

portunities, as would be required to support a

finding of deprivation of liberty under the Due

Process Clause.

Ibid.

3. Petitioner thereafter filed an amended com-

plaint, alleging that Local Rule 2.2.1 violated the Due

Process Clause, the Rules of Practice and Procedure

of this Court, 28 U.S.C. 2071,° and the Federal Rules

of Civil Procedure. Pet. App. 2.

In May 1989, after a hearing, the district court

dismissed petitioner’s claim. Pet. App. 1-3. The

court held that Loca! Rule 2.2.1

does not violate any constitutional right of [pe-

titioner], and is not inconsistent with the rules

of the United States Supreme Court regarding

admission of attorneys, nor is the rule otherwise

violative of 28 U.S.C. § 2071 or any Federal

Rule of Civil Procedure.

Pet. App. 2.

4. The court of appeals affirmed. Pet. App. 4-6.

It concluded that the “issues raised by [petitioner]

have been decisiwely resolved by this court in Gian-

nini v. Real, [911 F.2d 354 (9th Cir.), cert. denied,

111 S. Ct. 580 (1990)].” Pet. App. 4-5. In that case,

the Ninth Cireuit held (911 F.2d at 359-361) that

Local Rule 2.2.1 does not violate the Due Process

®* That statute grants rule-making power to this Court and

“all courts established by Act of Congress.” 28 U.S.C.

2071 (a).

6

Clause, this Court’s Rules of Practice and Procedure,

or the “principles of the right and justice standard

set forth in Frazier v. Heebe, 482 U.S. 641 (1987).”

Pet. App. 5.

5. In January 1991, the court of appeals granted

petitioner’s request for rehearing limited to consider-

ing her claim that the court’s summary disposition

denied her right to oral argument in violation of 9th

Cir. R. 34-4. Pet. App. 7. Treating the petition for

hearing as a “statement of reasons why oral argu-

ment should be heard,” ibid., the court rejected peti-

tioner’s contention that oral argument was needed to

show that the court in Giannini failed to consider

Zambrano vy. City of Tustin, 885 F.2d 1473 (9th Cir.

1989). The court concluded, contrary to petitioner’s

submission, that “Zambrano does not require the in-

validation of any rule that the district court could do

without.” Pet. App. 8.

ARGUMENT

Before this Court, petitioner renews her constitu-

tional challenge to Local Rule 2.2.1, which limits bar

membership to active members of the California state

bar. Earlier this Term, however, the Court denied

certiorari in a case raising an almost identical attack

on that Local Rule. Giannini v. Real, 111 S. Ct. 580

(1990). Nothing has occurred since this Court:

denied certiorari in that case that would make re-

view of this case appropriate.

1. Petitioner contends (Pet. 10-15) that Local

Rule 2.2.1 violates the Due Process Clause, because

the requirement of membership in the California state

bar is arbitrary and irrational. That contention is

without merit. For the reasons articulated by the

district court, and endorsed by the court of appeals,

7

see App., infra, 1la; Pet. App. 5, Local Rule 2.2.1

plainly bears a rational relationship to an attorney’s

fitness to practice before the federal respondents.

See In re Roberts, 682 F.2d 105, 108 (3d Cir. 1987).

Petitioner seeks to avoid this straightforward ap-

lication of settled law by suggesting that the Due

Process Clause imposes a more stringent standard of

review. That suggestion is wide of the mark. As

this Court has made plain, “the Copstitution does not

require that because a lawyer has been admitted to

the bar of one State, he or she must be allowed to

practice in another.” Leis v. Flynt, 439 U.S. 438, 443

(1979). And federal courts have rejected the proposi-

tion that there is a fundamental right—under the

Due Process Clause—to practice law. F.g., Lupert v.

California State Bar, 761 F.2d 1325, 1327-1328 (9th

Cir.), cert. denied, 474 U.S. 916 (1985). Accord-

ingly, the district court correctly held that “the

proper standard of review is the rational basis test.”

App., infra, 8a; accord Giannini v. Real, 911 F.2d at

360; In re Roberts, 682 F.2d at 108 (3d Cir. 1982).

Petitioner’s reliance (Pet. 11-12) on this Court’s

decisions invalidating residency requirements for ad-

mission to state or district court bars is mistaken.

See Barnard v. Thorstenn, 489 U.S. 546 (1989);

7 For that reason, petitioner errs in contending that the

local rule survives scrutiny under the Due Process Clause only

if it is “absolutely necessary to the normal, routine and effec-

tive functioning of a United States District Court.” Pet. 16;

see id. at 16-21. Contrary to petitioner’s suggestion (Pet. 9,

16), the court of appeals in Zambrano Vv. City of Tustin, 885

F.2d 1473 (9th Cir. 1989), had no occasion to consider the

standard for reviewing the substantive validity of a local

court rule. See id. at 1483 n.10. That case involved the stand-

ard for imposition of sanctions for an attorney’s violation of

a local court rule. See id. at 1480.

8

Supreme Court v. Friedman, 487 U.S. 59 (1988) ;

Frazier vy. Heebe, 482 U.S. 641 (1987); Supreme

Court v. Piper, 470 U.S. 274 (1985). First, each of

those cases involved a residency requirement that dis-

criminated against out-of-state residents. This Court

held that such requirements were invalid under either

the Privileges and Immunities Clause or the Court’s

supervisory power over federal courts. Here, there

is no such discrimination because the petitioner is a

California resident; indeed, there is no residency re-

quirement for membership in the bar of the Central

District of California.

Second, in each of those cases, the non-resident at-

torney who challenged the residency requirement had

passed the state’s bar examination or was otherwise

eligible for admission to the bar. Barnard vy. Thor-

stenn, 489 U.S. at 549-550; Supreme Court v. Fried-

man, 487 U.S. at 61-62; Frazier v. Heebe, 482 U.S.

at 643, 646; Supreme Court v. Piper, 470 U.S. at 276.

As an alternative to residency requirements, this

Court relied on state bar examination and member-

ship requirements as means to ensure satisfaction of

the courts’ legitimate interests in the regulation of

the practice of law. Barnard v. Thorstenn, 489 U.S.

at 555-556; Supreme Court v. Friedman, 487 U.S. at

68; Frazier v. Heebe, 482 U.S. at 647-648; Supreme

Court v. Piper, 470 U.S. at 285, 287. Here, petitioner

has not sought admission to practice law in the State

of California (Pet. 6), and has not been admitted to

the California state bar. App., infra, 2a.

2. Petitioner also contends (Pet. 22-24) that Local

Rule 2.2.1 must be invalidated as inconsistent with

Rule 5.1 of the Rules of this Court, which pro-

vides that “Tilt shall he a requisite for admission to

the Bar of this Court that the applicant shall have

9

been admitted to practice in the highest court of a

State, Commonwealth, Territory or Possession, or of

the District of Columbia.” Sup. Ct. R. 5.1. That con-

tention is frivolous, since Rule 5.1 governs admission

to practice only before this Court. That rule, by its

terms, does not prescribe requirements to practice be-

fore United States District Courts. See Giannini v.

Real, 911 F.2d at 360; Jn re Roberts, 682 F.2d at

108-109.*

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

DOUGLAS N. LETTER

D. BRUCE LA PIERRE

Attorneys

JUNE 1991

*’ Accordingly, there is no sound reason for the Court to

accept petitioner’s invitation (Pet. 22-24) to invalidate Local

Rule 2.2.1 under its supervisory powers. See Frazier Vv.

Heebe, 482 U.S. at 645.

APPENDIX

UNITED STATES DISTRICT COURT

C.D. CALIFORNIA

MARGARET DANEHY MAYNARD, PLAINTIFF

Vv.

THE UNITED STATES DISTRICT COURT FOR THE CEN-

TRAL DISTRICT OF CALIFORNIA, ET AL., DEFENDANTS

Sept. 23, 1988

MEMORANDUM DECISION GRANTING

DEFENDANTS’ MOTION TO DISMISS

BREWSTER, District Judge.

I. BACKGROUND

Plaintiff, Margaret Danehy Maynard, filed this suit

against defendants, the United States District Court

for the Central District of California (‘Central Dis-

trict’’) and all of the Central District judges. Plain-

tiff has asserted numerous constitutional challenges

to the enforceability of Local Rule 2.2.1 of the Central

District (‘Local Rule 2.2.1”). Local Rule 2.2.1 pro-

vides, in relevant part, that admission to the Bar of

the Central District is “limited to persons of good

moral character who are active members in good

standing of the State Bar of California.”

(la)

2a

Plaintiff is an attorney licensed in the State of

Indiana and admitted to practice before the United

States District Courts for the Northern and Southern

Districts of Indiana. Plaintiff is a resident of Cali-

fornia and maintains a law office within the jurisdic-

tion of the Central District. Plaintiff seeks admission

to the Bar of the Central District despite the fact

that she is not a member of the State Bar of Cali-

fornia.

On July 20, 1987, the Honorable George H. King,

Magistrate of the Central District, denied the plain-

tiff’s application for admission to the Bar of the

Central District, based on the fact that she is not

licensed to practice law in the State of California as

mandated by Local Rule 2.2.1. Plaintiff seeks a de-

claratory judgment that Local Rule 2.2.1 is violative

of the United States Constitution, and that she be

admitted forthwith to general practice before the

Central District.

Specifically, plaintiff avers that the requirement

that she be licensed to practice law in the State of

California as a condition to her admission before the

Central District violates her rights under Article I,

Section 8, Clause 3, and Article IV, Section 2, Clause

1 of the United States Constitution. In addition,

plaintiff asserts that denial of her application for

admission to the Bar of the Central District violates

the Due Process and Equal Protection Clauses of the

Fifth and Fourteenth Amendments.

On August. 1, 1988, the court heard defendants’

Motion to Dismiss this action under Fed.R.Civ.P.

12(b) (6).

8a

II. ANALYSIS

A. Failure to Exhaust Administrative Remedies

Defendants argue that the court should stay or dis-

miss this action pending exhaustion by plaintiff of

her administrative remedies. The defendants contend

that such a result would prevent the court from un-

necessarily reaching constitutional issues and would

provide the Rules Committee of the Central District

with an opportunity to amend Local Rule 2.2.1.

Tne court deems Maynard’s correspondence with

Chief Judge Manuel Real and Judge Harry Hupp,

Chairman of the Rules Committee, to be an exhaus-

tion of her administrative remedies. Maynard wrote

to these judges requesting that Local Rule 2.2.1 be

amended to permit resident attorneys licensed out-

of-state to join the Bar of the Central District. The

Rules Committee failed to take any action in response

to Maynard’s letters. The court treats this as a

denial of her request. Plaintiff’s next recourse was

the filing of an action in federal court. Thus, plain-

tiff exhausted her administrative remedies.

B. Privileges and Immunities Clause of Article IV

Maynard avers that denial of her petition for ad-

mission to the bar of the Central District constitutes

an abridgement of her rights under Article IV, Sec-

tion 2, Clause 1 of the United States Constitution.

Specifically, Maynard alleges that Local Rule 2.2.1

unlawfully precludes her from practicing law, which

she asserts is a “federally protected [sic] privilege

and immunity... .” (Complaint IX).

Article IV, Section 2 of the Constitution provides

that the “[c]itizens of each State shall be entitled to

all Privileges and Immunities of Citizens in the sev-

4a

eral States.”” The Privileges and immunities Clause

prevents “a state from discriminating against citi-

zens of other states in favor of its own.” Hague v.

C.I.0., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423

(1939). Thus, the Privileges and Immunities Clause

has been construed as a limitation on powers of the

states and not on powers of the Federal Government.

Hawes v. Club Ecuestre El Comandante, Etc., 535

F.2d 140, 145 (1st Cir. 1976).

The standards imposed by federal courts for ad-

mission of attorneys are matters of federal law. Jn

re Snyder. 472 U.S. 634, 645 n. 6, 105 S.Ct. 2874,

2881 n. 6, 86 L.Ed.2d 504 (1985); Matter of Roberts,

682 F.2d 105, 107 n. 21 (3rd Cir. 1982). District

Courts possess inherent authority to govern the ad-

mission of attorneys who seek to practice before

them. See e.g., Frazier v. Heebe, 482 U.S. 641, 107

S.Ct. 2607, 2611, 96 L.Ed.2d 557 (1987); In re

Snyder, 472 U.S. at 645 n. 6, 105 S.Ct. at n. 6.

In addition to this inherent power, federal courts

are vested with express statutory authority to prom-

ulgate rules governing the admission of attorneys.

28 U.S.C. §§ 1654, 2071. 28 U.S.C. § 2071 provides

in relevant part: “The Supreme Court and all courts

established by Act of Congress may from time to time

prescribe rules for the conduct of their business.”

Maynard cannot state a claim for violation of the

Privileges and Immunities Clause, as Local Rule

2.2.1 is a matter of federal law legitimately admin-

istered by a federal entity. Plaintiff’s Privileges and

Immunities Clause claim is thus deficient as a matter

of law, as State discrimination is, by definition, not

possible.

Plaintiff cites a number of cases in which courts

have struck down attorney admission requirements

under the Privileges and Immunities Clause, to sub-

5a

stantiate her argument that the Local Rules must

similarly fall. See Supreme Court of the State of New

Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 84

L.Ed.2d 205 (1985). However, in each of these cases,

the courts were dealing with state laws which dis-

criminated against non-residents. In the case at bar

there is no state action. Furthermore, the Local Rule

at issue does not discriminate on the basis of resi-

dency. Therefore, Maynard’s challenge based upon

the Privileges and Immunities Clause fails to state a

claim upon which relief can be granted.

C. Commerce Clause

Maynard asserts that Local Rule 2.2.1 violates her

rights under the Commerce Clause of the United

States Constitution in that it unlawfully prevents

her from practicing “federal law” before the Cen-

tral District “which does touch and concern” inter-

state commerce. (Complaint VIII). Whether or not

plaintiff states a claim for violation of. the Commerce

Clause ultimately turns upon whether Local Rule

2.2.1 is derived from state or federal law.

Maynard concedes that the Federal Government

cannot violate the Commerce Clause. Jn re Snyder,

472 U.S. 634, 645 n. 5, 105 S.Ct. 2874, 2881, n. 5, 86

L.Ed.2d 504 (1985); Maynard’s Points and Authori-

ties in Opposition to Motion to Dismiss at p. 22. The

Commerce Clause merely restricts actions by the

states which unduly burden interstate commerce or

otherwise encroach upon legitimate federal authority.

White v. Massachusetts Council of Construction Em-

ployers, 460 U.S. 204, 213, 103 S.Ct. 1042, 1047, 75

L.Ed.2d 1 (1983). Courts construing the Commerce

Clause cannot invalidate federal legislation, even

when it burdens interstate commerce. Morgan v.

6a

Commonwealth of Virginia, 328 U.S. 373, 380, 66

S.Ct. 1050, 1054, 90 L.Ed. 1317 (1946); Intake

Water Co. v. Yellowstone River Compact Commission,

769 F.2d 568, 569-70 (9th Cir.1985), cert. denied,

‘476 U.S. 1163, 106 S.Ct. 2288, 90 L.Ed.2d 729

(1986). Because Rule 2.2.1 is clearly based on fed-

eral law, Maynard’s Commerce Clause challenge fails

to state a claim upon which relief can be granted.

D. Equal Protection Clause

Maynard alleges that Local Rule 2.2.1 denies her

constitutional rights under the Fifth and Fourteenth

Amendments, “‘in that the District Court is using a

discriminatory classification of the State of Califor-

nia to exclude attorneys licensed in other states, with-

out sufficient federal justification for relying on such

state classification.” (Complaint XI).

To the extent Maynard’s discrimination allegations

are predicated upon the Fourteenth Amendment, her

constitutional challenge fails to state a claim upon

which relief can be granted. The Fourteenth Amend-

ment provides, in relevant part, that “[n]o state shall

.. . deprive any person of life, liberty or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV. The Fourteenth

Amendment, by its express terms, limits the actions

of states rather than the actions of federal govern-

ment. See e.g., Adams v. Howerton, 673 F.2d 1036,

1041 n. 3 (9th Cir.), cert. denied, 458 U.S. 1111, 102

S.Ct. 3494, 73 L.Ed.2d 1373 (1982). Because plain-

tiff challenges a federal district court’s rule, no state

action is implicated, and any reliance on the Four-

teenth Amendment is misplaced. Matter of Roberts,

682 F.2d at 105.

Ta

To the extent Maynard’s discrimination allega-

tions are predicated upon the Fifth Amendment, her

constitutional challenge still fails to state a claim

upon which relief can be granted. The Fifth Amend-

ment does not contain an equal protection clause

textually identical to that contained in the Fourteenth

Amendment. However, it is generally acknowledged

that the Due Process Clause of the Fifth Amend-

ment embodies an equal protection “component” sim-

ilar to that contained in the Fourteenth Amendment.

See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88,

100, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495 (1976).

In evaluating any discrimination claim, the court

must initially determine the appropriate level of

scrutiny applicable to the challenged rule or govern-

ment conduct. When a law disadvantages a suspect

class or impinges upon a “fundamental right,” the

court will examine the law by applying a strict scru-

tiny standard. In the absence of such circumstances,

the conduct or rule must be analyzed under a rational

basis test. Matter of Roberts, 682 F.2d 105, 108 n. 3;

Lupert v. California State Bar, 761 F.2d 1325, 1327

(9th Cir.), cert. denied, 474 U.S. 916, 106 S.Ct. 241,

88 L.Ed.2d 251 (1985).

Maynard has shown neither infringement of a

fundamental right nor discrimination against a sus-

pect class which would trigger strict scrutiny. May-

nard argues that the Supreme Court in Piper held

that the right to practice law is a “fundamental

right.”” However, Piper is distinguishable because it

involved only the Privileges and Immunities Clause,

not the Equal Protection Clause. See Lupert, 761

F.2d at 1327 n. 2. .

Furthermore, there is no legal support for May-

nard’s contention that federal practitioners should

8a

be deemed a “suspect class” for equal protection pur-

poses. Likewise, there is no legal support for the

contention that the discrimination at issue should be

tested under the “heightened scrutiny” analysis ap-

plied to issues of gender and illegitimacy discrimina-

tion claims. Cases striking down bar admissions re-

quirements under the Equal Protection Clause have

found that the state’s bar admission standards make

explicit use of a suspect classification. See, e.g., In

re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d

910 (1973). Certainly, it is difficult to see how the

discrimination at issue in this case bears any of the

earmarks of a “suspect class.”” One’s status as a resi-

dent attorney licensed in another state does not have

any of the immutable characteristics of alienage, na-

tionality, or race. Nor can one see a situation where

there has been widespread discrimination against a

discrete and insular minority.

In this case, therefore, the proper standard of re-

view is the rational basis test. In general, the court

has been especially deferential to legislative classifi-

cations in cases of challenges to the state regulation

of licensed professions. See, e.g., Watson v. Mary-

land, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed.- 987

(1910); Ohralik v. State Bar Assn., 436 U.S. 447, 98

S.Ct. 1912, 56 L.Ed.2d 444 (1978); In re Griffiths,

413 U.S. 717, 722-23, 93 S.Ct. 2851, 2855.

In applying the rational basis test, the court has

also stressed the heavy nrocedural burden placed upon

the plaintiff in proving her case. The plaintiff in a

challenge to a legislative classification, reviewed

under the rational basis standard, must prove that

the facts on which the legislature may have relied in

shaping the classification “could not reasonably be

conceived to be true by the governmental decision-

9a

maker.” Brandwein v. California Bd. of Osteopathic

Ex’rs, 708 F.2d 1466, 1471 (9th Cir.1983) (citing

Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 950,

59 L.Ed.2d 171). In reviewing the rationality of the

classification, a court may hypothesize legislative pur-

poses: “where there are plausible reasons for Con-

gress’ action, our inquiry is at an end. It is, of

course, ‘constitutionally irrelevant whether this rea-

soning in fact underlay the legislative decision.’ ”

Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct.

1367, 1373, 4 L.Ed.2d 1435 (1960).

Maynard contends that there is no rational rela-

tionship between membership in the State Bar of

California and fitness to practice federal law in the

district court. However, defendants provide a myriad

of legitimate public policy objectives for the Bar

exam requirement. First, defendants suggest that

the Bar exam is a reasonable gauge for determining

an applicant’s fitness to practice law. Second, mem-

bership in the State Bar of California is a reasonable

method of ensuring that certain ethical standards are

met and maintained. Third, the Bar exam require-

ment ensures that attorneys practicing in the Central

District are knowledgeable in California substantive

law. Fourth, tying District Court admission to State

Bar membership protects the public by ensuring that

attorneys will make choice of forum decisions solely

with their clients’ best interest in mind.

Under the rationai basis test, defendants have

made a sufficient showing of a legitimate government

interest which bears a reasonable and nonarbitrary

relation to the challenged rule. C.F. Matter of Rob-

erts, 682 F.2d 105 (8rd Cir.1982). The Supreme

Court requires nothing more than this showing. Al-

though Maynard suggests that other district court

10a

rules are move reasonably related to the Central Dis-

trict’s articulated interests, the court need not make

such a determination when applying a rational basis

test. Perhaps the issue of admission to the district

courts should be uniform across the United States, as

plaintiff suggests. However, the appropriate forum

to address such uniform admissions standards must

be either Congress, the United States Supreme Court,

or the District Court themselves through the United

States Judicial Conference.

E. Due Process Clause

Maynard’s final challenge to Local Rule 2.2.1 is

that the Local Rule denies her substantive due

process in that it prevents “substancially [sic] or

equally well qualified attorneys from other states

from becerning full members of the bar in defendant

District Court, merely because they do not have a

license to practice law in the State of California.”

(Complaint X).

Initially, the court must dismiss under Rule 12

(b)(6) any claim plaintiff makes under the Due

Process Clause of the Fourteenth Amendment. As

indicated above, the decision whether to admit an

attorney to practice before a federal district court is

a matter of federal law. Matter of Roberts, 682 F.2d

at 107 n. 2. Since the Fourteenth Amendment only

implicates state action, the plaintiff’s reliance on the

Fourteenth Amendment is misplaced.

Under the Fifth Amendment’s Due Process Clause,

plaintiff must first establish the property or liberty

interests she asserts are subject to the protection af-

forded by the Due Process Clause. Board of Regents

v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705,

33 L.Ed.2d 548 (1972).

lla

The Due Process Clause affords protection to those

property interests which are created and defined by

independent sources, such as statutes, legal rules, or

mutually explicit understandings. Jd. at 577, 92 S.Ct.

at 2709. Maynard does not cite any rule, statute, or

understanding that would support her claim of denial

of a property right to practice law in the district

court. Furthermore, courts have held that the right

to practice law is not a property right protected by

the Due Process Clause. See Matter of Roberts, 682

F.2d at 107; Cf. Leis v. Flynt, 439 U.S. 438, 443, 99

S.Ct. 698, 701, 58 L.Ed.2d 717 (1978).

Nothing in Local Rule 2.2.1 implicates plaintiff’s

good name, reputation, honor, or integrity, or im-

poses any stigma or other disadvantage limiting

plaintiff’s employment opportunities, as would be re-

quired to support a finding of deprivation of liberty

under the Due Process Clause. See Roth, 408 U.S. at

573-74, 92 S.Ct. at 2707.

Thus, the court should dismiss Maynard’s cause of

action for violation of the Due Process Clauses of the

Fifth and Fourteenth Amendments for failure to

state a claim upon which relief can be granted.

F. Conclusion

For the above-mentioned reasons, defendants’ Mo-

tion to Dismiss is hereby granted with leave to

amend. Plaintiff shall have thirty days leave to

amend her complaint.

IT IS SO ORDERED.

W U.S. GOVERNMENT PRINTING orrice; 199) 28206! 20571