Petition for Writ of Certiorari — Lal v. Nix

Supreme Court, U.S.

FILED

97 618 OCT - 3 1997

No.

OFFICE OF THE CLewk

IN THE

Supreme Court Of The United States

October Term, 1997

AMRIT LAL,

Petitioner

VS.

ROBERT N.C.NIX, Jr., et. al, and

THE PENNSYLVANIA BOARD OF LAW EXAMINERS

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Amrit Lal

338 Joy Lane

West Chester, Pa. 19380

(610) 692 6344

Petitioner, pro se

QUESTIONS PRESENTED

Did the Third Circuit Court of Appeals abuse

its discretion in failing to grant even one request for

enlargement of time to file a pro se appellant’s Bnef

in support of a timely filed Notice of Appeal, and

thereby denied petitioner equal protection and equal

treatment required by the Fourteenth Amendment.

0

Is the policy of Third Circuit with regard to

enlargement of time so restrictive that it violates the

essence of Rule 26 (b) Federal Rules of Appellate

Procedure which is similar to the Federal Rules of

Civil Procedure # 6(b).

PARTIES

Robert N. C. Nix, Jr. together with all other Justices

of the Pennsylvania Supreme Court, and Patrick Tassos,

Executive Director of the Pa. Board of Law Examiners,

together with all the Members of that Board are respondents

jointly and individually.

TABLE OF CONTENTS

OPINION BELOW 2

JURISDICTION 2

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT 3

CONCLUSION 5

Note: Table of Case Authorities cited has been omitted

because the text of the petition is five (5) or less pages.

INDEX TO APPENDICES

APPENDIX

A. Third Circuit

I. Order dated Dec. 31, 1996 6

Il. Order dated March 10, 1997 7

Ill. Order dated May 6, 1997 8

B. U.S. Dist. Court 9-21

(E.D. PA)

Opinion dated July 25, 1997

C. Amendment XIV to the United States 22

Constitution

ili

No.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

AMRIT LAL, Petitioner

vs.

ROBERT N. C. NIX, Jr. et al and

PATRICK TASSOS and

THE PENNSYLVANIA BOARD OF LAW

EXAMINERS

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner Amrit Lal respectfully prays that a writ of

certiorari issue to vacate the Orders of the Third Circuit

Court of Appeals denying petitioner enlargement of time to

file appellant’s Brief in support of a timely filed Notice of

appeal. Petitioner further prays that said Court be directed to

modify its local rule with regard to enlargement of time so

that it is in conformity with the Federal Rule of Appellate

Procedure 26 (b). and Federal Rules of Civil Procedure No.

6(b).

ORDERS AND OPINIONS BELOW

The Orders of the Third Circuit Court of Appeals and

Opinions of the United States District Court (E.D. Pa.)

appear in Appendix to this Petition. The Third Circuit did

not issue an opinion or explanation. The official opinion of

the District Court appears in 935 F.Supp.578. (Also see the

related case,935 F.Supp.570 for the related case which

appears to have caused the confusion in the Third Circuit).

JURISDICTION

The jurisdiction of this Court is invoked under title 28

U.S.C. #1254. The jurisdiction of the District Court was

invoked under 28 U.S.C. #1331, 42 U.S.C. # 1983, Art. [TV #

2, Art. I # 8 and Amendment XIV of the United States

Constitution. Jurisdiction of the District Court was also

invoked under Title 28 U.S.C. # 2201, 2202 seeking

injunctive relief and declaratory judgment challenging the

constitutionality of certain specific Rules of the Pennsylvania

Bar Admission policies, customs and practices.

STATEMENT OF THE CASE

Petitioner filed a timely Notice of Appeal. On

September 13, 1996, the clerk of the Third Circuit set

briefing schedule. Petitioner sought extension of time prior

to the deadline in order to coordinate with a related case

(Third Circuit Docket # 96-1772, Dist. Ct. No. 95-7938)

which had been disposed of simultaneously on July 25, 1996

by the District Court. One of those cases (96-1772) involved

the Borough of Kennett Square which had impacted the

outcome of the Bar Admission Case (96-1816) directly. This

unique circumstance required adjustment in Briefing Schedule

especially when the Third Circuit Clerk created a third docket

No.96-1988 for post judgment orders arising from

Dist.Ct.Docket No.95-7938. (See 935 F.Supp.570).

Petitioner was asked to pay additional filing fees, and then

was not allowed to file a Brief in that docket because in the

other related case (96-1772), petitioner was being

represented by Attorney Michael Yulsman. In the Bar

Admission Case, your petitioner was pro se. Petitioner made

application for enlargement of time by a letter to the Clerk of

the Third Circuit before the scheduled date for filing the

Brief, but no positive response was received. Petitioner then

wrote a second letter on November 25, 1996 requesting

adjustment in scheduling of Briefs to be filed by your pro se

petitioner. No reply came forth. Petitioner was surprised to

find that on December 31, 1996, the clerk issued an Order

dismissing the appeal. See Appendix A to this Petition.

Petitioner’s request for reconsideration was denied on March

10, 1997, and a request or suggestion for hearing en banc

was denied on May 6, 1997. Your Honorable Court allowed

this petition to be filed by October 3, 1997.

REASONS FOR GRANTING THE WRIT

AND/OR VACATING ORDERS

OF THE THIRD CIRCUIT

First, the Third Circuit abused its discretion to

overlook the plain language of Federal Rules of Appellate

Procedure # 26(b): “The court for good cause shown may

upon motion enlarge the time prescribed by these rules or by

its order for doing any act, or may permit an act to be done

after the expiration of such time...”. Petitioner did show the

unique circumstance by formal motions which contained the

good cause, that is the need to coordinate three briefs so

that all issues are properly argued and dealt with. There was

no objection filed by the respondents so the question of any

prejudice or harm did not arise since such extensions are

routinely granted. . The arguments in the related case No. 96-

1772 were scheduled for July 21,1997 so that the granting of

enlargement to file appellant’s brief in the case at bar would

not have disturbed the case management or judicial

administration of the Court.

Second, the requested adjustment in the schedule for

filing appellant’s brief was not at all jurisdictional so that it

was not necessary for the Third Circuit to be overly strict

beyond belief. Not even one extension had been granted.

Thus the denial of enlargment was arbitrary and an abuse of

discretion.

Third, case authorities from various jurisdictions

demonstrate that it was an error and abuse of discretion for

the Court not to make adjustment in related cases for briefing

schedules for the sake of covering all the issues. See Losacco

v. City of Middletown, 71 F.3d 88, 92 (2nd Cir.1995) and

Lujan v. National Wildlife Fed’n, 497 U.S. 871, 895, 110

S.Ct.3177,3192, 111 L.Ed. 695 (1990).

In Re Harlow Fay Inc., where the District Court had

granted three extensions and the 8th Circuit affirmed, 951

F.2d 175, this Court vacated and remanded. 507 U.S. 1015,

113 S.Ct. 1809, 123 L.Ed.2d 441 (1993) in the light of

Pioneer Inv.Serv. Inc. v. Brunswick Assocs., 507 U.S. 380,

113 S.Ct.1489, 123 L.Ed.2d 74 (1993) [excusable neglect is

an elastic concept, an equitable one, taking account of all

relevant circumstances surrounding the party’s omission].

113 S.Ct.at 1498.

Fourthly, the Third Circuit overlooked the standard of

liberal construction for a pro se appellant. It would appear

that the strict policy of briefing deadlines or adjusting same

where appellant is required to file two briefs in related cases

is not only offensive to the plain language of the F.R.A.P. 26

(b), which is similar to the F.R.C.P. # 6(b), but in this case,

petitioner was denied equal protection and equal treatment

expected by the XIV Amendment to the United States

Constitution.

CONCLUSION

For the foregoing reasons and case authorities,

petitioner respectfully prays that the writ of certiorari be

granted, the Orders of the Third Circuit be vacated and the

matter remanded to allow petitioner to file his brief and

further that it be considered on merits.

RESPECTFULLY SUBMITTED,

AMRIT LAL

Petitioner, pro se.

iii |

APPENDIX A

I. Order dated December 31, 1996

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

NO.96-1816

Amrit Lal

VS.

Robert N.C Nix, Jr., et al.

Amrit Lal, Appellant

(Eastern District of Pennsylvania Civil No. 94-cv-07773)

ORDER

Pursuant to Rule 3(a) of the Federal Rules of Appellate

Procedure and Third Circuit LAR Misc. 107.2,

It is OR DERE D that the above-entitled

case is hearby dismissed for failure to to timely

prosecute;

It is FURTHER O R DER E D thata certified

copy of this order be issued forthwith as the mandate.

For the Court,

DOUGLAS SISK

Clerk

Date: December 31, 1996

II. Order dated March 10, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

C.A. NO. 96-1816

AMRIT LAL

vs.

ROBERT N.C NIX, JR. ET AL.

(E.D. PA. CIV. NO. 94-CV-07773)

Present: BECKER, ALITO and MCKEE,

CIRCUIT JUDGES

Submitted is appellant's "Petition to Vacate Order

and Reinstate Appeal," which the court may wish to

treat asa motion to reopenin the above-captioned case.

Respectfully

DOUGLAS SISK

Clerk

ORDER

Appellant's motion to reopen is denied.

By the Court,

EDWARD R. BECKER

CIRCUIT JUDGE

Dated: MARCH 10, 1997

Ill. Order dated May 6, 1997

UNITED STATES COURTS OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-1816

AMRIT LAL,

APPELLANT

V.

ROBERT N.C. NIX, JR, ET AL

(E.D. PA CIV. NO. 94-CV-07773)

Present: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREENBERG, SCIRICA,

COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE,

Circuit Judges.

SUR PETITION FOR PANEL REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

The ‘petition for rehearing filed by appellant

having been submitted to the judges who participated in

the decision of this Court, and to all the other available

circuit judges in active services, and no judge who

concurred in the decision having asked for rehearing, and

a majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the

court in banc, the petition for rehearing is DENIED.

BY THE COURT:

EDWARD R. BECKER

CIRCUIT JUDGE

DATED: MAY 6, 1997

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 94-7773

AMRIT LAL

Vv

HONORABLE ROBERT N.C. NIX JR, et, al

MEMORANDUM

DITTER, J. JULY, 25, 1996

This case arises out of the defendants’ refusal to admit

the plaintiff, Amrit Lal, to the Pennsylvania bar. Lal, who is a

naturalized United States citizen born in India, alleges in his

pro se amended complaint that the defendants, the justices of

the Pennsylvania Supreme Court and the Pennsylvania Board

of law examiners and its members, executive director, and

counselor, denied his admission to the Pennsylvania bar

because of his race, national origin, ethnicity, and age. Lal

was 60 years old when applied for admission to the bar.

Before me is the defendants’ motion to dismiss or for

summary judgment. I conclude that I do not have subject

matter jurisdiction over Lal's claims, and must dismiss the

amended complaint with prejudice. I dismiss with prejudice

because amending the complaint would be futile.

I FACTS

Because I dismiss for lack of subject matter

jurisdiction, I have taken as true all of the allegations in Lal's

complaint and drawn all reasonable inference in his favor. I

have also considered the transcript of Lal's hearing before the

board and the state supreme court docket sheet showing the

court's order denying his admission. cf. Oshiver v. Levin.

Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.5(3d Cir.

1994) (court may consider public records when deciding

motion to dismiss under Fed.R.Civ.P. 12 (b) (6). The parties

extensively refer to each document in papers filed in this

matter and do not dispute the accuracy or authenticity.

Lal applied for and took the July, 1992

Pennsylvania bar examination. Following his completion of ,

the examination, the board learned that he had been )

convicted, fined, and jailed for several housing code

violations relating to his ownership of an apartment complex

in Chester county, Pennsylvania, and that he has failed to pay

many of those fines. Based on that information, the board

notified Lal that he did not appear to meet the Pennsylvania

Bar Admission Rules' requirement that an applicant

demonstrate an absence of prior conduct inconsistent with

that expected of members of the bar. See Pa. B.A.R.

203 (a) (3). Lal requested a hearing, which the board held in

January, 1993. At the hearing, Lal did not deny that he had

been convicted, fined, and jailed, and that many of the fines

were outstanding, but instead testified that those prosecutions

were instituted by racist municipal officers.

Following the hearing, the board refused Lal's

application. Pursuant to Pennsylvania Bar Admission Rule

222, Lal sought review of this refusal in the Pennsylvania

Supreme Court and in July, 1993, filed a brief arguing his

position. In a per curiam ordered dated October 28, 1993,

the supreme court affirmed the board's decision. Lal did not

seek review of the state court's decision in the United States

Supreme Court.

In a previous opinion and order dated November 13, ,

1995, I dismissed the bulk of Lal's original complaint on v

Rooker-Feldman grounds, because it requested that I review

the Pennsylvania Supreme Court's and board's decisions

refusing his admission to the bar. See Dist. of Columbia

10

court of Appeals v. Feldman, 460U.S. 462, 476 (1993);

Rooker v. Fidelity Trust, 263 U.S. 413, 415-16 (1923).'

In addition to Lal's request for review of state Supreme

Court's and board's decisions, the original complaint

contained two references to "disparate treatment and racial

discrimination.”

On June 10, 1996, I ordered Lal to respond to the defendants’

motions by June 20, 1996. The defendants had filed their

motion in December 1995, giving Lal almost six months to

respond. Lal filed a response on June 20, 1996. Despite

having more than sufficient time to respond, on June 20,

1996—-eight days after the deadline set in my order--Lal filed

a supplemental memorandum in response to the defendants’

motions. For completeness’ sake, I have not dismissed the

memorandum as untimely and will consider the argument

raised in it.

ll. THE AMENDED COMPLAINT

Lal filed an amended complaint which contained two

counts. The first, numbered "count 20," was filed pursuant to

42 U.S.C. 1983 and alleged the defendants refused his

admission to the bar because of his race, national origin, or

ethnicity in violation of his federal constitutional rights to due

process and equal protection. (See Amend. Comp. 20). The

other, numbered "count 21," alleged that Lal was denied

admission based on his age in violation of the age

1. In his response to the defendants’ motion to dismiss, Lal argues that

the state supreme court's decision not to admit him to the bar was

“administrative” and not a “judicial decision" within the meaning of the

Booker-Feldman doctrine. I definitively and explicitly rejected the

argument in November 13, 1995, opinion and again in my May 9, 1996,

order reconsidering that opinion. Because I have previously rejected

Lal's argument twice before, the issue is not now before me.

1]

discrimination in Employment Act, 29 U.S.C. 621, et. seq..

("ADEA"), and the Pennsylvania Human Relations Act, 43

Pa. C.S. 951, et.seq. ("PHRA") (Amend. Comp. 28).

Lal based his race, national origin, and ethnicity claim

on the following averments. In July, 1992, according to Lal,

Defendants Patrick Tassos, the board's executive director,

and Rebecca Sturchio, Esquire, the board’s counsel, asked

him "to go back to India” if he wished to practice law and

attempted to discourage him from becoming a member of the |

Pennsylvania bar. (Amend. Comp. 5). Shortly thereafter, Lal

alleges Sturchio required him to submit a certified copy of an

Indian law degree, proof of United States citizenship, and a

copy of an Indian statute prohibiting American citizens from

practicing law there. (Amend. Comp. 4,7). When Lal

complied with all of these requirements, he claims the

defendants then subjected him to "secret,"" unwritten,”

"vague," and “unconstitutional” good character standards. In

applying these standards, he contends the board relied on

"hearsay" allegations of his arrests, fines, and convictions,

failed to provide him written notice of the board's good

character requirements at his January, 1993, administrative

hearing, and generally conducted that hearing unfairly.

(Amend. Comp. 12-13). Apparently, the sole allegedly

discriminatory action taken by the Supreme Court justices

were issuing their order affirming the board's decision.

As relief, Lal seeks lost earnings and punitive and

compensatory damages, attorneys’ fees and costs,

and permanent and prospective injunctive relief

against all the individual defendants named

in the original complaint, enjoining them

forever (Sic) denying petitioner's permission

to sit for the Pa. Bar Exam without due

process and equal protection of the law as

guaranteed by the 14th amendment to the U_S.

Constitution and from violating plaintiffs

12

civil and constitutional rights in denying

certification and admission to the Bar of

Pennsylvania on account of his race, national

origin and age.

(Amend. Comp. at 5-6).

In count 21, Lal contends that the defendants knew

that he was 60 years old when they denied his application and

that the denial was because of his age. He requests damages

comprising "lost time and earnings” in the amount of

$225,000.’

Ill. DISCUSSION

In the present motion, the defendants argue that I

must dismiss the amended complaint as violative of the

Rooker-Feldman doctrine because in it Lal seeks a prohibited

federal district court review of the state supreme court's and

board's decisions denying his admission to the bar. The crux

of the defendants’ argument is that granting Lal the relief he

seeks would require me to conclude that the real reason the

state supreme court and board refused him admission to the

bar was not his unfit character, but his race, ethnicity,

national origin, or age.

Lal argues that in my November 13, 1995,

opinion I ruled that the Rooker-Feldman doctrine is not a bar

to the claims in the amended complaint. Lal misreads my

opinion. The averments in the Lal's original complaint

relating to "disparate treatment and racial discrimination"

2. Even if I did not dismiss Lal's federal age discrimination claim for

lack of subject matter jurisdiction, I would dismiss it as time barred

because he did not file suit within 300 days of the defendants’ alleged

discriminatory conduct. See 29 U.S.C. 626 (d) (2). Additionally, Lal's

claim is flawed because he does not allege that he ever filed a grievance

with the Equal Employment Opportunity Commission, which is a

prerequisite to bringing a federal civil action under the ADEA. See 29

U.S.C. 626 (d); Bihler v. Singer Co., 710 F. 2d 96, 97 (3rd Cir. 1983).

13

were so vague, skeletal, and patently insufficient, that anyone

reading the complaint would have no idea what he was

alleging. I could not possibly have ruled the Brooker-

Feldman doctrine inapplicable given such incoinprehensible

allegations. Indeed, one of the reasons I permitted him to

amend the complaint was to state those allegations in more

detail so that I could determine whether the Rooker-Feldman

doctrine barred his claims. (See November 13,

1995, op. at 2)

In Feldman, the United States Supreme Court held

that a federal district court does not have subject matter

jurisdiction to review a judicial decision of a state's highest

court. See also Atl. Coast Line R.R. Co. v. Bhd of

Locomotive Eng'rs, 398 U.S 281, 296 (1970) (lower federal

courts possess no power whatever to sit in direct review of

state court decisions”). The court also held that federal

district courts do not have subject matter jurisdiction to hear

constitutional claims not raised in the state court proceedings

but which are "inextricably intertwined with the state court's

denial in a judicial proceeding of a particular plaintiffs

application for admission to the state bar." A review of those

upraised and unmitigated constitutional claims is prohibited

because it would require the federal district court to "in

essence" review the state court's judicial decision. Feldman,

460 U.S. at 482 n.16. Only the United States Supreme Court

has subject matter jurisdiction to hear an appeal of a state

court's judicial decision or constitutional claims "inextricably

intertwined" with the state court judgment. See 28 U.S.C

1257 (a); See also Rooker, 263 U.S. at 416. The United

States Court of Appeals for the Third circuit has construed

the Rooker-Feldman doctrine to preclude federal district

court review of the lower state courts as well. See Port

Auth. Police Benevolent Ass'n, Inc. v. Port Auth. of New

York and New Jersey Police Dep't, 973 F.2d 169, 178 (3d

cir.1992). ?

Lal argues that dismissal of his claims will leave him

unable to litigate them in federal court. The Feldman court

recognized that plaintiffs who did not raise their federal

constitutional causes of action in state court, and thus did not

preserve them for United States Supreme Court review,

would be without a forum to litigate them. That result is

appropriate, the court concluded, because state courts are

competent to properly decide federal constitutional claims.

The court further reasoned that precluding lower federal

court review of state court judgments also advances the

"desirable" policy of having a state court be the first to

construe the state statute or rule in light of federal

constitutional arguments, allowing it to give the rule of saving

construction in light of those arguments. In so holding in

Dasher v. Supreme Court of Texas, 658 F.2d 1045 (Sth Cir.

1981), that a federal district court has subject matter

jurisdiction to review constitutional claims that a litigant fails

to raise in the state court proceedings.

In a related argument included in his supplemental

memorandum, Lal claims that with a post-Feldman

amendment to 28 U.S.C. 1257, Congress invalidated or

limited the application of the Rooker-Feldman doctrine. In

1988, Congress amended section 1257 to eliminate the right

to appeal to the United States Supreme Court from a state

court judgment calling into question federal law. Thereafter,

parties to such cases could only request discretionary review

by writ of certiorari. Lal argues the court's acceptance of so

few cases on discretionary review effectively eliminates his

only avenue into federal court. He contends that Congress

3. Lower federal courts may review state court judgments only in limited

circumstances which do not exist here, such as on an application for a

writ of habeas corpus. See 28 U.S.C. 2254.

15

could not have intended this result. Thus, the argument goes,

Congress meant to eliminate the Rooker-Feldman doctrine

and grant federal district courts jurisdiction to review state

court judgments. Lal's argument is unique, but not

persuasive. There is no indication in the language of the

amendment or in its legislative history that Congress intended

to repeal or limit the application of the Rooker-Feldman

doctrine. Moreover, Lal's argument ignores the policy

justifications for the doctrine discussed in Feldman, which are

still furthered by the amended section 1257. Indeed, the

legislative history cites the state courts’ competence to decide

federal constitutional claims as a basis for passing the

amendment. See H.R. Rep. No. 100-660, 100th Cong. at 7,

1988 U.S.C.C.A.N. 776,772 (1988).

There is no indication that Lal raised his race,

ethnicity, national origin, or age discrimination claims either

before the board or the state court. Accordingly, resolution

of this case turns whether Lal's claims are "inextricably

intertwined” with the state supreme court's decision denying

his admission to the bar. If they are, I do not have subject

matter jurisdiction and must dismiss the amended complaint.

"A federal claim in inextricably intertwined with the state-

court judgment if the federal claim succeeds only to the

extent that the state court wrongly decided the issues before

it." Centifanti v. Nix, 865 F.2d 1422, 1430 (3d Cir. 1989) -

(quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987)

(Marshall, J. concurring)); See also FOCUS v. Allegheny

County Court of Common Pleas, 75 F. 3d 834 840 (3d Cir.

1996) (Rooker-Feldman doctrine prohibits federal action if

relief requested would render state court judgment

ineffectual).

I do not have subject matter jurisdiction over the

claims in Lal's amended complaint because they are

"inextricably intertwined" with the state supreme court's

16

judgment and board's decision in his bar admission

proceedings. As Feldman makes clear, Lal is not permitted to

make a particularized challenge in federal court to an

adjudication against him in state court. In the state

proceedings, the board found Lal not fit for admission to the

Pennsylvania bar because he engaged in conduct which

showed his character was incompatible with the standard

expected to be observed by members of the bar. See Pa.

B.A.R. 203 (a) (3). The state supreme court affirmed that

decision. In order to grant the relief requested in the

amended complaint, I would have to conclude that Lal's bad

character was not the real reason for the denial of his

application for admission to the bar but that the real reason

was his race, ethnicity, national origin, or age. Such a finding

would clearly void the judgment of the state court and violate

the Rooker-Feldman doctrine. *

The conclusion that my decision on the merits of Lal's

claims would require me to make a prohibited review of the

state court judgment in consistent with both Marks v.

Stinson, 19 F. 3d 873 (3d Cir. 1994), and FOCUS v.

Allegheny County Court of Common Pleas, 75 F. 3d 834 (3d

Cir. 1996). In both of those cases, the Third Circuit allowed

federal court actions to proceed despite orders in proceedings

in state court relating to the same claim.

4. Strictly speaking, Feldman only prohibits bringing ~

"inextricably intertwined” constitutional claims in a federal lawsuit.

However, my ruling on the merits of Lal's statutory claims under the

ADEA and PHRA would violate the Rooker-Feldman doctrine for the

same reasons as would a ruling on the merits of the constitutional claims

would: in order to grant him the relief he seeks, I would have to find

that the real reason for the denial of his application was his age and not

his unfit character. Such ruling would void the state court judgment.

17

In Marks, following the state court's ruling that it

lacks jurisdiction under state law to hear the plaintiffs’ claims,

the plaintiffs filed suit in federal court. The Third Circuit held

that the Rooker-Feldman doctrine would not bar the Marks’

plaintiffs’ federal lawsuit because the only issue decided by

the state court related to state law jurisdiction. Thus, the

federal court could still find that the plaintiffs’ federal claims

had merit without disturbing the state court ruling that it had

no jurisdiction under state law to hear plantiff’s claims.

Similarly, in FOCUS, the Third Circuit allowed a

federal lawsuit to proceed despite a state supreme court order

refusing to exercise discretionary authority to hear the

plaintiffs’ appeal. Following a state trial court's refusal to

accept the plaintiffs’ motion to intervene in a civil action, the

plaintiffs petitioned the state supreme court for exercise of its

extraordinary and discretionary " King's Bench" jurisdiction.

When the state supreme court refused, the plaintiffs filed suit

in federal district court. On appeal, the Third Circuit held

that the state court's refusal to exercise discretionary

jurisdiction did not preclude the federal lawsuit because by

specifically refusing to even review the case, the state court

did not adjudicate the merits of the claims before it. A federal

district court, therefore, could decide the plaintiffs’ claims

without voiding or otherwise disturbing the state court's

orders.

The instant case is distinguishable for one simple but

critical reason: in order to grant the relief Lal seeks, I would

have to vacate or reverse the Pennsylvania Supreme Court's

order. This is quite different then the situation in Marks and

FOCUS. In those cases, given the nature and bases of the

state court orders, one holding that the court has no

jurisdiction to hear a lawsuit, the other refusing to even

review the case, the federal courts could decide the merits of

the plaintiffs’ claims without affecting the state court orders.

18

If I allowed Lal to raise his claims now, after his

unsuccessful attempt to complete to state bar admission

process, I would be ignoring the Rooker-Feldman doctrine.

There is no question that the Pennsylvania Supreme Court

was competent to review Lal's claim that the board and its

procedures were discriminatory. See Feldman 460 U.S. at

482 n.16; Guarino V. Larsen, 11 F. 3d 1151, 1157 (3d Cir.

1993). Further, a decision by me on the merits of Lal's claims

would encourage other litigants to challenge state court

decisions in federal court improperly, depriving state courts

of the opportunity to give saving constructions to state rules

and statutes in light of federal constitutional arguments.”

Moreover, the history of Lal's bar admission

proceedings establishes that he had ample opportunity to raise

his discrimination claims before the state supreme court. He

was aware of virtually all the state officials’ allegedly

discriminatory conduct even before his January, 1993, board

hearing, let alone before he submitted his brief to the state

supreme court in July, 1993.

Lal argues that I should permit his claims to proceed

because he could not have raised them before the board and

supreme court. However, he points to no obstacle to his

raising the claims in the state supreme court. Indeed, the

Pennsylvania supreme court had previously considered the

constitutionality of the board's actions and bar admission

rules in several appeals by unsuccessful bar applicants.

5. Such a ruling by me would be especially unwise given the strong

State interest in regulating and licensing lawyers and would needlessly

entangle the federal courts in issues more aptly and efficiently handled

by the states. See Feldman, 460 U.S. at 482 n.16 ("[t} he interest of the

states in regulating lawyers is especially great since lawyers are essential

to the primary governmental function of administering justice, and have

historically been ‘officers of the court’) (quoting Goldfarb v. Virginia

State Bar, 421 U.S 773 (1975)).

19

In the Matter of Ferriman, 408 A.2d 844 (1979)

(constitutionality of rule requiring graduation from accredited

law school); Appeal of Murphy, 393 A. 2d 369 (1978)

(same), Cert. denied, 440 U.S 901 (1979); Appeal of Icardi,

260 A.2d 782, 784 (1970) (procedural due process claim);

Appeal of Christy, 67 A.2d 85, 87 (1949) (due process and

equal protection claims), Cert. denied, 338 U.S 869 (1949).

TV. CONCLUSION

In sum, because I do not have subject matter

jurisdiction over the amended complaint, I must dismiss it

with prejudice.°

An appropriate order follows.

6. Parts of Lal's amended complaint are plainly defective for other

reasons. First, his claim for money damages against the state supreme

court justices is barred by judicial immunity which protects the justices

from suits for damages for actions taken pursuant to their judicial

power. Mireles V. Waco, 502 U.S 9. 11 (1991). Accordingly, because

the justices have jurisdiction to regulate admission to the state bar, See

Pa. Const., Art. 5 10(c); 42 Pa. C.S 1722 (a) (1); Pa. B.A.R. 103, and

because their action were judicial, Lal cannot sue them for money

damages. Second, Lal's section 1983 claim for damages against the

individual defendants in their "official capacities” and the board must be

dismissed because a state official acting in his or her official capacity ©

and state agency are not “persons” within the meaning of 1983. Will V.

Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Finally, the

individual defendants acting in their official capacities and the board

have Eleventh Amendment immunity from suits for money damages in

federal court. Lal claims that the defendants waived these defenses or

that in my November 13, 1995, opinion I implicitly ruled the defenses

because they asserted them at every turn. Further, it is clear from

November 13, 1995, opinion that I never ruled on these defenses, either

explicitly or implicitly.

20

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 94 -7773

AMRIT LAL

V.

HONORABLE ROBERT N.C NIX JR_,et al.

ORDER

AND NOW, this 25th day of July, 1996, it is hereby

ORDERED that:

1. The defendants’ motion dismiss the amended

complaint for lack of subject matter jurisdiction is

GRANTED.

2. The amended complaint is DISMISSED with

prejudice.

3. The plaintiffs "Motion for reconsideration of

order dated May 9, entered 14" (document #35) is DENIED.

4. The plaintiff's motion to compel discovery

(document #32) is DENIED as moot.

5. The plaintiff's motion to grant discovery requests

(document #37) is DENIED at moot.

BY THE COURT:

J. WILLIAM DITTER,

J.

21

APPENDIX C

Amendment XIV to the United States Constitution

Section 1. All persons bom or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State 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.

22

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

AMRIT LAL, Petitioner

VS.

ROBERT N. C. NIX, JR et.al.

PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE THIRD CIRCUIT

PROOF OF SERVICE

I, Amrit Lal, do swear and declare that on this date, October

3, 1997, pursuant to the Supreme Court Rules 29.3 and 29.4,

I have served the attached PETITION FOR A WRIT OF

CERTIORARI on each party to the above proceeding, or that

party’s counsel, and on every other person required to be

served by depositing an envelope containing the above ~

documents in the United States mail properly addressed to

each of them and with first class postage prepaid.

The names and addresses of those served are as

follows:

Howard Holmes, Esq.

1515 Market Street

Suite #1414

Philadelphia, PA 19102

(Attorney for Respondents)

Amnt Lal, Affiant

Subscribed and Sworn to Before Me

this day of October 1997

Notary Public in and for the

County of Delaware and

Commonwealth of Pennsylvania

24