Appendix — Wallace v. Calogero (No. 05-1645)

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05 16 45 JUN 2 2 2006

OFFICE OF THE GLERK

IN THE

Supreme Court of the Anited States

CAROLINE WALLACE AND EMILY MAW,

Petitioners,

V.

PASCAL F. CALOGERO, JR., IN HIS OFFICIAL CAPACITY AS

CHIEF JUSTICE OF THE LOUISIANA SUPREME COURT,

ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

VINCENT J. BOOTH

BOOTH & BOOTH PLC

138 N. CORTEZ ST.

NEW ORLEANS, LA

70019

(504) 482-5292

June 23, 2006

S. William Livingston

Counsel of Record

Benjamin C. Block

COVINGTON & BURLING

1201 Pennsylvania Ave., NW

Washington, DC 20004-2401

(202) 662-6000

Counsel for Petitioners

TABLE OF CONTENTS

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FIFTH CIRCUIT OPINION

REVISED AUGUST 18, 2005

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30752

KAREN LECLERC; GUILLAUME JARRY;

BEATRICE BOULORD; MAUREEN D. AFFLECK,

Plaintiffs - Appellants - Cross Appellees,

versus

DANIEL E. WEBB, ET AL.,

Defendants,

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

Respective Official Capacities as Chairman and Vice-

Chairman of the Louisiana Committee on Bar

Admissions; JEFFERY P. VICTORY; JEANNETTE

THERIOT KNOLL; CHET D. TRAYLOR; CATHERINE

D. KIMBALL, a/k/a Kitty Kimball; JOHN L. WEIMER;

BERNETTE JOSHUA JOHNSON, In Their Official

Capacities as Justices of the Louisiana Supreme Court,

Defendants - Appellees - Cross Appellants.

KREKREKRREKKKEEEKERKE KE EKEREEREKREREKKREKRKEKKKKREKKKREKKK

No. 03-31009

CAROLINE WALLACE; EMILY MAW,

Plaintiffs - Appellees,

versus

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

Chief Justice of the Louisiana Supreme Court;

JEFFREY P. VICTORY; JEANNETTE THERIOT

KNOLL; CHET D. TRAYLOR; CATHERINE D.

KIMBALL; JOHN L. WEIMER; BERNETTE J.

JOHNSON, in their official capacities as Justices of the

Louisiana Supreme Court; DANIEL E. WEBB; HARRY J.

PHILLIPS, JR., in their respective official capacities as

Chairman and Vice-Chairman of the Louisiana

Committee on Bar Admissions,

Defendants - Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana,

Before JONES, SMITH, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal arises from two consolidated actions

filed by nonimmigrant aliens whose status, according to

Louisiana Supreme Court Rule XVII, § 3(B), renders them

ineligible to sit for the Louisiana Bar.! The district courts

disagreed whether the Louisiana rule impermissibly

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

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

2003). We consolidated these cases for purposes of this appeal.

a

discriminates against the plaintiffs in violation of the

Equal Protection Clause. Because the level of

constitutional protection afforded nonimmigrant aliens is

different from that possessed by permanent resident

aliens, we hold that the Louisiana rule survives rational

basis review.

BACKGROUND

I. Louisiana Bar Rule

Louisiana Supreme Court Rule XVII, § 3(B)

(“Section3(B)”) requires that “le]very applicant for

admission to the Bar of this state shall... [b]e a citizen of

the United States or a resident alien thereof.” Prior to the

adoption of Section 3(B), Louisiana precedent defined

“resident alien” as a “foreign national{] lawfully within

the United States.” In re Appert, 444 So. 2d 1208, 1208

(La. 1984). In 2002, the Louisiana Supreme Court

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

. appl{ies] only to those aliens who have attained

permanent resident status in the United States.” In re

Bourke, 819 So. 2d 1020, 1022 (La. 2002). As interpreted

in Bourke, Section 3(B) effectively prohibits the instant

plaintiffs — nonimmigrant aliens? who are “not entitled

to live and work in the United States permanently” —

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

1022.

The Immigration ane Nationality Act distinguishes between

immigrant and nonimmigrant aliens, negatively defining an

immigrant alien as “every alien except an alien who is within one of

the following classes of nonimmigrant aliens.” 8 U.S.C. § 1101(a)(15)

[IMMLS PSD INA § 101]. An alien falling into one of fifteen

exclusionary categories is a nonimmigrant alien, a class generally

delimited by a lack of intention to abandon his foreign country

residence and entry into the United States for specific and temporary

purposes.

~~

II. The LeClere Plaintiffs

The LeClerc plaintiffs, Karen LeClerc, Guillame

Jarry, Beatrice Boulord, and Maureen Affleck, are

nonimmigrant aliens who hold degrees from foreign law

schools and seek leave to sit for the Louisiana Bar.

LeClerc and Jarry are French citizens admitted to the

United States on J-1 student visas.* Boulourd, also a

French citizen, was initially admitted to the United

States on a J-1 student visa, but currently remains in the

United States on an H-1B temporary worker visa.* Affleck

is a Canadian citizen initially admitted to the United

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

nonimmigrant alien who:

having a residence in a foreign country which he has no

intention of abandoning who is a bona fide student . . . is

coming temporarily to the United States as a participant in a

program ... for the purpose of .. . studying... .

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

a nonimmigrant alien who:

is coming temporarily to the United States to perform services

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

country which he has no intention of abandoning who is

coming temporarily to the United States as a trainee ...ina

training program that is not designed primarily to provide

productive employment .. ..

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

maintain “a temporary residence abroad which he or she has no

intention of abandoning.” Steel on Immigration, §3:13, 3-35. Nor is

such a visa holder subject to the presumption of immigrant status. 8

U.S.C. § 1184(b). However, the nature of an H-1B visa holder’s status

in the United States is still temporary, the visa holder is still subject to

a six-year admission cap (three years admission plus three years

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

3:13, 3-73-74.

- 4a .

States on an L-2 spousal visa, but currently remains in

the United States on an H-1B temporary worker visa.°*

As graduates of foreign law schools seeking

permission to sit for the Louisiana Bar, each plaintiff was

required to apply for an equivalency determination

pursuant to Louisiana Supreme Court Rule XVII, § 6

(“Section 6").6 Before the commencement of the LeClerc

suit, Affleck applied for, and was denied an equivalency

determination because her status did not comply with

Section 3(B). The other plaintiffs filed for equivalency

determinations after the suit commenced and were

similarly refused. None of the plaintiffs appealed their

equivalency denials as permitted by Louisiana Supreme

Court Rule XVII, § 9 (“Section 9").7

On March 6, 2003, the plaintiffs filed suit,

pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1367,

against the Louisiana Supreme Court® and the Chairman?

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

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

alien.”

® LR XVII, § 6 provides that:

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

in the United States or its territories must submit an application for

the Committee for an equivalency determination ... .”

7 LR XVII, § 9 provides that:

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

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

petition directly to the Court.

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

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

Johnson. The LeClerc plaintiffs did not name the Honorable Pascal F.

Calogero, Jr., the lone dissenter in Bourke.

% Daniel A. Webb.

and Vice-Chairman!® of the Louisiana Committee on Bar

Admissions (collectively “defendants”) in their official

capacities. The plaintiffs challenged the enforcement of

Section 3(B) and sought declaratory and injunctive relief

and attorneys’ fees. They requested expedited discovery

related to the adoption of Section 3(B), including records

of the Louisiana Supreme Court’s official mectings,

processes, and opinions. The defendants moved to quash

the plaintiffs’ discovery requests, asserting judicial and

legislative immunity. Finding the defendants judicially

immune, a magistrate judge granted the motion. On April

17, 2003, the plaintiffs moved for summary judgment, and

the defendants countered with a motion to dismiss for

lack of subject matter jurisdiction and failure to state a

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

Amendment, judicial and legislative immunity, and

abstention grounds.

The district court partially granted the defendants’

motion to dismiss, denied the plaintiffs’ motion for

summary judgment, and denied as moot the plaintiffs’

appeal of the magistrate judge’s discovery ruling.'! While

rejecting the defendants’ jurisdictional arguments, the

court held on the merits that: (1) Section 3(B) is not

preempted by federal immigration or trade policy; (2)

Affleck lacked standing to assert a claim under the

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

‘0 Harry J. Phillips.

'! The LeClerc plaintiffs appeal the discovery ruling, which this Court

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

1240, 1243 (5th Cir. 1997). Because the plaintiffs’ discovery requests

border on the absurd, we find no such abuse.

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

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

NAFTA limits enforcement to the Secretary of State and the United

States Attorney General. Thus, even if a beneficiary of the treaty,

Affleck has no private right of action thereunder.

-6a- .

violation of either procedural or substantive Due Process;

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

rationally related to legitimate state interests, and, thus,

constitutional. The district court denied plaintiffs’ motion

to reconsider on July 30, 2003.'° Both parties timely

noticed their appeals and cross-appeals.

Ill. The Wallace Plaintiffs

The Wallace plaintiffs’ suit landed before a

different federal district judge in New Orleans. Caroline

Wallace and Emily Maw are nonimmigrant aliens who

seek leave to sit for the Louisiana bar exam. Both are

citizens of the United Kingdom who were admitted to the

United States on temporary visas. Wallace holds an H-1B

temporary worker visa and is licensed as an attorney in

England and Wales. Wallace is currently employed doing

nonattorney legal work. Maw was admitted to the United

States pursuant to an F-1 student visa'4 and remains on

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

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

Westbrook v. C.LR., 68 F.3d 868, 879 (5th Cir. 1995). “Reconsideration

of a judgment after its entry is an extraordinary remedy that should be

used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th

Cir. 2004). A motion for reconsideration may not be used to rehash

rejected arguments or introduce new arguments. Westbrook, 68 F.3d

at 879. In their motion, not only did the plaintiffs improperly re-argue

the merits of their case, they also impermissibly asserted, for the first

time, arguments under the General Agreement on Trade and Services

(“GATS”), the Dormant Commerce Clause, and the right to travel. As

such, we find no abuse of discretion in the court’s denial on the basis of

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

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

to travel arguments advanced by the plaintiffs.

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

nonimmigrant alien who:

ha{s] a residence in a foreign country which he has no

intention of abandoning, is a bona fide student qualified to

pursue a full course of study and [] seeks to enter the United

(...continued)

- ja ~

an H-1B temporary worker visa.!° Maw holds a law

degree from Tulane University Law School in New

Orleans and is currently employed as a paralegal.

Before filing suit, Wallace applied for an

equivalency determination, and avers that after she was

initially granted permission to sit for the Bar, permission

was revoked for her noncompliance with Section 3(B).

Although the record is unclear, Maw either applied to sit

for the Bar exam or moved for admission by reciprocity.

Either way, the defendants denied her application for lack

of Section 3(B) qualification.'® Neither plaintiff appealed

her denial to the Louisiana Supreme Court pursuant to

Rule 9.

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

the defendants, which is parallel in all relevant respects

to the LeClerc action. However, their motion to

consolidate their action with the LeClerc suit was

inexplicably denied. Cross-motions for judgment followed

as in LeClerc, but with different results.

The Wallace district court denied the defendants’

motion to dismiss and partially denied the plaintiffs’

motion for summary judgment. Like the LeClerc court,

the Wallace court rejected the defendants’ jurisdictional

arguments. The court dismissed the plaintiffs’ preemption

claim, but denied their Due Process claim as moot. On the

plaintiffs’ Equal Protection claim, however, the court

applied strict scrutiny review and held that because

States temporarily and solely for the purpose of pursuing such

a course of study ....

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

visa holder.

'6 Sometime after this suit commended, Maw took and passed the

Louisiana Bar exam. Her admission to the Bar is stayed pending the

outcome of this case.

Section 3(B) is not the least restrictive means to achieve

the state’s asserted compelling interests, it is

unconstitutional. Defendants timely noticed their appeal.

The two cases are consolidated on appeal in this

court. Because the issues raised are nearly identical, any

references to plaintiffs in the following discussion include,

unless otherwise noted, the LeClerc and Wallace

plaintiffs.

STANDARD OF REVIEW

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

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

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

claim upon which relief can be granted), and Rule 56

(motion for summary judgment) dispositions, applying the

same standards as the district court. Bombardier

Aerospace v. Ferrer, Poirot & Wansbrough, P.C., 354 F.3d

348, 352 (5th Cir. 2003).

DISCUSSION

A. Federal Jurisdiction

The defendants maintain that the plaintiffs lack

standing and present unripe claims. They further assert

judicial and legislative immunity from the LeClerc and

Wallace suits pursuant to precedent and the Federal

Courts Improvement Act of 1996 (“FCIA”), 42 U.S.C. §

1983.17

'7 Because federal jurisdiction cannot be waived or assumed, Rohm &

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

Cir. 1994), we address the defendants’ jurisdictional arguments briefly

even though they appeared to abandon these jurisdictional contentions

at oral argument. See United Transp. Union v. Foster, 205 F.3d 851,

857 (5th Cir. 2000) (discussing the Court's obligation to independently

examine its jurisdiction despite party concessions).

- Ga.

Standing and ripeness are two doctrines of

justiciability that assure federal courts will only decide

Article III cases or controversies. To achieve standing, a

plaintiff must have suffered an injury in fact, see Elk

Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301,

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

to the challenged policy” before pursuing an action to

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

Cir. 1998). However, strict adherence to the standing

doctrine may be excused when a policy’s flat prohibition

would render submission futile. Ellison, 153 F.3d at 255

(citing Moore v. United States Dept. of Agric., 993 F.2d

1222 (5th Cir. 1993)). The ripeness doctrine counsels

against “premature” adjudication by distinguishing

matters that are “hypothetical” or “speculative” from

those that are poised for judicial review. United Trans.

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

relief, which by design permit pre-enforcement review,

require the presence of an actual “case” or “controversy.”

Id. A pre-enforcement action “is generally ripe if any

remaining questions are purely legal . . . [and] further

faciual development” is not required for effective judicial

review. Id.

Both the futility exception to the standing doctrine

and the pre-enforcement variance to the ripeness doctrine

apply here. Strict compliance with the standing doctrine

would have required each plaintiff (except Maw) to apply

for an equivalency determination under Section 6 of the

Louisiana Bar Rules before filing suit. Strict compliance

with the ripeness doctrine would have required each

plaintiff to file a Section 9 appeal of his or her equivalency

denial or rejection prior to filing suit. All but two

plaintiffs, Affleck and Wallace, failed to comply with

Section 6, and none complied with Section 9.

Nevertheless, given Affleck’s equivalency denial

after her timely application, Wallace’s equivalency

revocation, and Section 3(B)’s prohibition against the

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admission of nonimmigrant aliens, as interpreted in

Bourke, there is no reason to believe that the plaintiffs

who failed to submit to Section 3(B) by filing timely

Section 6 applications would have experienced different

outcomes. The non-conforming plaintiffs’ submission

would have been a futility for standing purposes.'*

Likewise, the plaintiffs’ failure to avail themselves of

Section 9 is excused because the aforementioned facts

undermine the utility of further factual development,

leaving only pure legal questions for adjudication. The

plaintiffs thus have standing and have asserted claims

that are ripe for adjudication.

Next, rejecting the defendants’ immunity defenses,

we find that they are amenable to the instant suits. When

acting in its enforcement capacity, the Louisiana Supreme

Court, and its members, are not immune from suits for

declaratory or injunctive relief. See Supreme Court of

Virginia v. Consumers Union of the U.S., 446 U.S. 719,

100 S. Ct. 1967 (1980) (holding that the Virginia Supreme

Court and its chief justice may be sued for acts committed

in their enforcement capacities). Moreover, the FCIA of

1996 only precludes injunctive relief for suits against a

judicial defendant acting in his “judicial capacity.”!9 Thus,

to the extent that the plaintiffs seek declaratory and

injunctive relief against the enforcement of Section 3(B)

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

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

experiences weigh in favor of a futility finding.

'9 Title 42 U.S.C. § 1983 provides that:

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

omission taken in such officer's judicial capacity, injunctive

relief shall not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

{emphasis added) (amended Oct. 19, 1996 by PUB. L. 104-317, TITLE

ITI. § 309(c), 110 STAT. 3853).

-lla-

only, the court and its individual members are subject to

the instant suits.

B. Merits

Plaintiffs contend that Section 3(B) violates their

rights under the Equal Protection Clause of the

Fourteenth Amendment, the Due Process Clause of the

Fifth Amendment,”° and the Supremacy Clause of Art. VI,

cl. 2. Each contention will be discussed in turn.

1. Equal Protection

The plaintiffs first advance arguments based on

every conceivable level of Equal Protection analysis,

contending that: (1) under In re Griffiths,?) nonimmigrant

aliens are a suspect class and state laws affecting them

are subject to strict scrutiny; (2) in the alternative,

nonimmigrant aliens are a quasi-suspect class and state

laws affecting them are subject to intermediate scrutiny;

and (3) in the alternative, if nonimmigrant aliens are not

a suspect class at all, state laws affecting them are

subject to rational basis review. Plaintiffs maintain that

Section 3(B) fails under any of the three tests. Despite

some ambiguity in Supreme Court precedent, we conclude

that because Section 3(B) affects only nonimmigrant

aliens, it is subject to rational basis review.

To begin, nonimmigrant aliens are not a suspect

class under Griffiths. The plaintiff in Griffiths was a

permanent resident alien, who, but for a Connecticut law

that conditioned bar admission on United States

citizenship, would have been eligible to sit for the

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

21 413 U.S. 717, 93 S. Ct. 2851 (1973).

- 12a-

Connecticut bar exam. 413 U.S. at 718, 93 S. Ct. at 2853.

The instant plaintiffs, however, are nonimmigrant aliens.

The distinction, far from being a “constitutional

irrelevancy,’’*? is paramount.”’ Section 3(B) only affects

nonimmigrant aliens who are “not entitled to live and

work in the United States permanently.” Bourke, 819 So.

2d at 1022. In contrast, the rule at issue in Griffiths

effected a “total exclusion [of all] aliens from the practice

of law” in Connecticut. Griffiths, 413 U.S. at 719, 93S. Ct.

at 2853. It was this “wholesale ban” of aliens from the

Connecticut Bar that the Supreme Court found

constitutionally infirm. Id. at 725, 93 S. Ct. at 2856.

Moreover, as elaborated below, the Court took pains to

categorize the ways in which resident aliens share

essential benefits and burdens of citizenship, see id. at

722, 93 S. Ct. at 2855, in a way that aliens with lesser

legal status do not.

Thus far, the Supreme Court has reviewed with

strict scrutiny only state laws affecting permanent

resident aliens. As the highest level of Equal Protection

analysis, strict scrutiny is employed when a governmental

body creates a classification that burdens a fundamental

right?4 or targets a suspect class. Regents of University of

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

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

held that the status of being an undocumented alien is not a

‘constitutional irrelevancy,’ and therefore declined to review with strict

scrutiny classifications affecting undocumented aliens”).

23. See generally, David A. Martin, Graduated Application of

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

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

.. | believe that the categorical approach still holds up and justifies a

major distinction between LPRs [lawful permanent residents] and

other aliens for constitutional purposes.”).

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

plaintiffs, discussed infra.

(...continued)

- 13a -

California v. Bakke, 438 U.S. 265, 357, 98 S. Ct. 2733,

2782 (1978). Although classifications based on alienage

are inherently suspect and subject to close judicial

scrutiny as a general matter, the Court’s decisions have

“never suggested that such legislation is inherently

invalid, nor {has the Court] held that all limitations on

aliens are suspect.” See Foley v. Connelie, 435 U.S. 291,

294, 98 S. Ct. 1067, 1070 (1978) (internal citation

omitted).

Beginning in 1971, the Court has applied some

variation of strict scrutiny to invalidate state laws

affecting “resident aliens” or “permanent resident aliens.”

See Graham v. Richardson, 403 U.S. 365, 371, 91 S. Ct.

1848, 1851 (1971) (applying “strict judicial scrutiny” and

striking state laws that denied “resident aliens” disability

benefits).2° The Court has never applied strict scrutiny

review to a state law affecting any other alienage

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

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

has either foregone Equal Protection analysis, see Toll v.

Moreno, 458 U.S. 1, 102 S. Ct. 2977 (1982) (nonimmigrant

G-4 aliens); DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933

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

Bd. Eng’rs_v. De Otero, 426 U.S. 572, 602, 96 S. Ct. 2264, 2281

(applying “strict judicial scrutiny” and striking a law of Puerto Rico

that prevented “resident aliens” from obtaining engineering licenses);

Nyquist v. Mauclet, 432 U.S. 1, 7, 97 S. Ct. 2120, 2124 (1977) (applying

"close judicial scrutiny” and striking a state law that prevented

“permanent resident aliens” from receiving state financial assistance

for higher education). These cases, especially Graham, follow from the

Court’s 1948 decision in Takahashi v. Fish and Game Comm'n,

wherein the Court invalidated, on Supremacy Clause grounds, a

California law that prevented resident aliens ineligible for citizenship

from obtaining state fishing licences as _ inconsistent with

Congressional determination to admit such aliens without burden or

restriction. 334 U.S. 410, 419, 68 S. Ct. 1138, 1142 (1948).

- 14a -

(1976) (illegal aliens),?° or has applied a modified rational

basis review, see Plyler v. Doe, 457 U.S. 202, 102 S. Ct.

2382 (1982) (children of illegal aliens). In the latter case,

Plyler, the Court empioyed a heightened level of rational

basis review to invalidate. a Texas law that denied

primary public education to children of illegal aliens. See

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

law] can hardly be considered rational unless it furthers

some substantial goal of the State.”) (emphasis added).”’

Yet, while adopting a sui generis level of rational basis

review, the Court acknowledged that the immigration

status of the affected class of aliens precluded use of

either intermediate or strict scrutiny review.8

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

tuition fees to domiciled G-4 nonimmigrant aliens and their

dependents. The Court invalidated the policy on Supremacy Clause

grounds, discussed infra, and expressly declined to reach the

nonimmigrants’ Due Process and Equal Protection claims. Toll, 458

U.S. at 9-10, 102 S. Ct. at 2982. In DeCanas, the Court reviewed a

California law that prohibited the knowing employment of illegal

aliens where such would adversely affect resident alien workers. The

Court upheld the state law on Supremacy Clause grounds, discussed

infra. DeCanas, 424 U.S. at 354-363, 96 S. Ct. at 936-940. In both Toll

and DeCanas, the Court addressed state laws that not only affected

but also drew distinctions among aliens in formulating state policies,

yet in neither case did the Court employ Equal Protection analysis.

27 The compromised level of rational basis review is recognized in the

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

(approving the heightened rational basis analysis in the “unique

circumstances” of this case), and the dissenting opinion of Justice

Burger, id. at 244, 102 S. Ct. at 2409, (disagreeing that the

unfortunate circumstance of illegal alien children entitles them to

“special solicitude under the Equal Protection Clause”).

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

Court stated:

Undocumented aliens cannot be treated as a suspect class

because their presence in this country in violation of federal

law is not a “constitutional irrelevancy.” Nor is education a

(...continued)

- 15a -

The development of this jurisprudence is

consistent with the Court’s fundamental rationale for

applying strict scrutiny review exclusiv-)’ to resident

aliens: “(T]he state laws at issue in Graham, Nyquist,

DeOtero, and Griffiths warranted close judicial scrutiny

because they took position[s] seemingly inconsistent with

the congressional determination to admit the alien to

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

Ct. at 1070 (emphasis added). The Court has uniformly

focused on two conditions particular to resident alien

status in justifying strict scrutiny review of state laws

affecting resident aliens: (1) the inability of resident

aliens to exert political power in their own interest given

their status as virtual citizens; and (2) the similarity of

resident aliens and citizens.

Given the extent to which resident aliens are

legally entrenched in American society, their inability to

participate in the political process qualifies them as “a

prime example of a discrete and insular minority for

whom [] heightened judicial solicitude is appropriate.” See

Griffiths, 413 U.S. at 721, 93 S. Ct. at 2854-55 (citing

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

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

resident aliens as a Carolene Products minority reconciles

fundamental right; a State need not justify by compelling

necessity every variation in the manner in which education is

provided to its population.

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

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

review).

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

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

2129. See also Bakke, 438 U.S. at 290, 98 S. Ct. at 2748 (stating that

Carolene Products insularity “may be relevant in deciding whether or

not to add new types of classifications to the list of ‘suspect’ categories

or whether a particular classification survives close examination”).

- 16a -

the breadth of rights and responsibilities they enjoy with

their lack of political capacity.“° Contrary to the plaintiffs’

contention, nonimmigrant aliens -— who ordinarily

stipulate before entry to this country that they have no

intention of abandoning their native citizenship, and who

enter with no enforceable claim to establishing

permanent residence or ties here — need not be accorded

the extraordinary protection of strict scrutiny by virtue of

their alien status alone.*' Nonimmigrant aliens may, of

course, qualify for anti-discrimination protection based

upon race, sex, national origin and religious adherence,

just as they may otherwise enjoy the benefits of American

law.*? But their lack of legal capacity, unlike that of

immigrant aliens, is tied to their temporary connection to

this country. Moreover, the numerous variations among

nonimmigrant aliens’ admission status make it

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

“insular.”®? Nonimmigrant aliens, in short, do not warrant

Carolene Products status.

80 In Foley, the Court stated that:

beginning with a case which involved the denial of welfare

assistance essential to life itself, the Court has treated certain

restrictions on aliens with ‘heightened judicial solicitude,

Graham vy. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 1852

(1971), a treatment deemed necessary since aliens — pending

their eligibility for citizenship — have no direct voice in the

political processes. See United States v. Carolene Prods. Co.,

304 U.S. 144, 152-153, 58 S. Ct. 778, 783-784 (1938).

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

3t Cf, Lea Brilmayer, Carolene, Conflicts, and the Fate of the “Insider-

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

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

employment practices’).

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

(...continued)

-l7a-

The Court’s treatment of resident aliens also rests

upon pragmatic recognition that resident aliens are

similarly situated to citizens in their economic, social, and

civic (as opposed to political)“ conditions. In Griffiths, the

Court observed:

Resident aliens, like citizens, pay taxes, support

the economy, serve in the armed forces, and

contribute in a myriad of other ways to our society.

It is appropriate that a State bear a heavy burden

when it deprives them of employment

opportunities.

Griffiths, 413 U.S. at 722, 93 S. Ct. at 2855.%° Like

citizens, resident aliens may not be deported, are entitled

We noted that as to some categories of nonimmigrant aliens

[B, F, and H visa holders], Congress had expressly conditioned

admission ... on an intent not to abandon a foreign residence

or, by implication, on an intent not to seek domicile in the

United States .... With respect to G-4 nonimmigrant aliens,

however, we concluded that Congress had deliberately.

declined to impose restrictions on intent, thereby permitting

them to adopt the United States as their domicile.

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

omitted).

34 The Court has expressly declined to extend politically-oriented

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

1067 (applying rational basis review and upholding a state law that

conditioned employment as a state trooper on citizenship because the

law implicated rights of governance); Cabell v. Cajvez-Salido, 454 U.S.

432, 444-47, 102 S. Ct. 735, 742-44 (1982) (applying “lower level

scrutiny’ and extending Foley to uphold a state law conditioning

employment as a probation officer on citizenship).

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

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

short term residents in Shapiro, aliens may live within the United

States for many years, work in the State and contribute to the

economic growth of the State. There can be no ‘special public interest’

in tax revenues to which aliens have contributed on an equal basis

with the residents of a state”); Matthews v. Diaz, 426 U.S. 67, 83, 96S.

(...continued)

- 18a-

to reside permanently in the United States,*® may serve,

voluntarily or by conscription, in the military,®’ are

entitled to state aid benefits,** and pay taxes on the same

bases as citizens.”

Nonimmigrant aliens’ status is far more

constricted than that of resident aliens. Nonimmigrant

aliens are admitted to the United States only for the

duration of their status,#° and on the express condition

Ct. 1883, 1893, 48 L.Ed.2d 478 (1976) (“citizens and those who are

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

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

obligated to pay their full share of the taxes that support the

assistance programs. There thus is no real unfairness in allowing

resident aliens an equal right to participate in programs to which they

contribute on an equal basis.”).

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

The term “lawfully admitted for permanent residence” means

the status of having been lawfully accorded the privilege of

residing permanently in the United States as an immigrant in

accordance with the immigration laws, such status not having

changed.

7 Title 10 U.S.C. § 3253 provides that:

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

enlistment in the Army unless he is a citizen of the United

States or has been lawfully admitted to the United States for

permanent residence under the applicable provisions of the

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

See also 10 U.S.C. § 8253 (same).

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

97S. Ct. at 2127.

3° Pursuant to the U.S. Tax Guide for Aliens “Resident aliens generally

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

Pub. 519; 2003 WL 23305933 (I.R.S.).

498 C.F.R. § 214.2(f)(5)(1) provides that:

(...continued)

- 19a -

they have “no intention of abandoning” their countries of

origin and do not intend to seek permanent residence in

the United States.4! They are admitted, remain, and must

depart at the discretion of the Attorney General.

Plaintiffs acknowledge that nonimmigrant aliens may not

serve in the U.S. military, are subject to strict

employment restrictions,*# incur’ differential tax

[djuration of status is defined as the time during which an F-}

student is pursuing a full course of study at an educational

institution ....

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

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

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

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

was admitted as a nonimmigrant and who has failed to

maintain the nonimmigrant status in which the alien was

admitted or to which it was changed under section 1258 of

this title, or to comply with the conditions of any such status,

is deportable.

Pursuant to 8 C.F.R. § 241.1(a)(3):

At the time of admission or extension of stay, every

nonimmigrant alien must also agree to depart the United

States at the expiration of his or her authorized period of

admission or extension of stay, or upon abandonment of his or

her authorised nonimmigrant status.

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

General's discretion pertains to various nonimmigrant alien

categories).

4310 U.S.C. § 3253.

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

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

(prohibiting F-1 visa holders from obtaining gainful employment, not

including work-study and internship programs); 8 C.F.R. § 214.2(h)

(permitting temporary employment of H-1B nonimmigrants); 8 C.F.R.

§ 214.2(])(prohibiting L-2 spouses from obtaining employment without

prior authorization). The penalty for unauthorized employment is a

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

(...continued)

- 20a -

. treatment,* and may be denied federal welfare benefits.*®

Finally, the Supreme Court has yet expressly to bestow

equal protection status on nonimmigrant aliens.*’

Based on the aggregate factual and legal

distinctions between resident aliens and nonimmigrant

aliens, we conclude that although aliens are a suspect

class in general, they are not homogeneous and precedent

does not support the proposition that nonimmigrant

aliens are a suspect class entitled to have state legislative

classifications concerning them _ subjected to strict

scrutiny. We decline to extend the Supreme Court’s

decisions concerning resident aliens to different alien

categories when the Court itself has shied away from such

expansion. We thus turn to the plaintiffs’ alternative

Equal Protection arguments.

Contrary to the plaintiffs’ contention, there is no

precedential basis for the proposition that nonimmigrant

aliens are a quasi-suspect class or that state laws

affecting them are subject to intermediate scrutiny. The

decision in United States v. Virginia, 518 U.S. 515, 116 S.

gainful employment ban may also be excepted in other cases of

financial hardship. Steel, at 3-40-42.

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

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

from sources within the United States and on certain income

connected with the conduct of a trade or business in the United

States.” IRS PUB. 519, 2003 WL 23305933 (L.R.S «.

* Matthews, 426 U.S. at 83, 96S. Ct. at 1893. Se» also 26 U.S.C. §

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

108-357, October 22, 2004, 118 STAT 1418 and the RONALD W. REAGAN

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005, PL 108-

375, October 28, 2004, 118 STaT 1811).

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

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

special class of alien children, who were not responsible for their

immigration status, and the provision of education.

-2la-

Ct. 2264 (1996), which reinforced caselaw that treats

gender | as a “quasi-suspect classification,” furnishes no

authority for the application of intermediate Equal

Protection analysis to alienage classifications. Virginia,

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

to move where the Supreme Court has not gone.

By process of elimination, rational basis review

must be the appropriate standard for evaluating state law

classifications affecting nonimmigrant aliens. Here,

caselaw has. distinguished between traditional rational

basis review and heightened rational basis review. But,

the latter standard appears solely in Plyler, which, as

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

after declaring that undocumented aliens are not a

suspect class*® and that education is not a fundamental

right, see id., 457 U.S. at 223, 102 S. Ct. at 2398, the

Court found the children of illegal aliens, having no

culpability for or control over their condition, are worthy

of “special judicial solicitude” in the form of heightened

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

rational basis test and inquired whether the Texas law

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

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

modified rational basis review in Plyler, the Texas law

would have survived. As articulated by the Court,

traditional rational basis analysis provides that:

The initial discretion to determine what is

“different” and what is “the same” resides in the

legislatures of the States. A legislature must have

substantial latitude to establish classifications

48 Under the plaintiffs’ rationale — that lack of political capacity alone

should render an alien group worthy of heightened judicial solicitude

and strict scrutiny review — undocumented aliens would be the most

insular and deserving of Carolene Products minority status. Yet, the

Court specifically denied them suspect status.

- 22a -

that roughly approximate the nature of the

problem perceived, that accommodate competing

concerns both public and private, and that account

for limitations on the practical ability of the State

to remedy every ill. In applying the Equal

Protection Clause to most forms of state action, we

thus seek only the assurance that the classification

at issue bears some _ fair relationship to a

legitimate public purpose.

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

Under the traditional test, Texas’s legitimate interests —

conservation of budget resources and deterrence of illegal

immigration — probably would have been sufficient to

justify the state’s decision to deny state benefits to illegal

entrants and their children. But in this unique instance,

the Court was moved by the consequences and unfairness

of enforcing such a regulation against children. Id. at 220,

102 S. Ct. at 2396.49

These plaintiffs who wculd be Louisiana lawyers

find no support in Plyler. As nonimmigrant aliens, they

entered this country voluntarily and with an

understanding of their limited, temporary status. They

face no hurdle as debilitating as denial of primary and

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

denied the ability to engage in a specific type of legal

work — that requiring a license — is simply not .

analogous to the plight of illegal alien children. Nothing

in Plyler compels the determination that nonimmigrant

alien law students and temporary workers are similarly

situated to the children of illegal aliens, and, thus,

entitled to similar heightened rational basis review.

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

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

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

- 23a -

Under traditional rational basis analysis, a state

law classification that “neither burdens a fundamental

right nor targets a suspect class” will be upheld “so long

as it bears a rational relation to some legitimate end.”

Vacco v. Quill, 521 U.S. 793, 799, 117 S. Ct. 2293, 2297

(1997) (emphasis added). The key principle is the

deference to legislative policy decisions embodied in

courts’ reluctance to judge the wisdom, fairness, logic or

desirability of those choices. Viewed through this

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

rational relationship to legitimate state interests —

Louisiana’s substantial interest tn regulating the practice

of those it admits to its bar. Section 3(B) aims to assure

clients that attorneys licensed by the Louisiana Bar will

provide continuity and _ accountability in legal

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

and, when necessary, discipline and sanction members of

the Bar requires that it be able to locate lawyers under its

jurisdiction. The State’s determination that the easily

terminable status of nonimmigrant aliens would impair

these interests and their enforcement capacity is not

irrational.

The plaintiffs argue that in focusing on the alleged

transience of nonimmigrant aliens, Section 3(B)

irrationally fails to deal with other causes of lawyer

nonfeasance. While it is true that any attorney,

regardless of citizenship status, could fall ill, become

unavailable to clients, or leave the jurisdiction (and many

actually do leave), such cuncerns are distinct from the

special quandary arising from the federally prescribed

transience of nonimmigrant aliens. The problem

perceived by the defendants is that if a nonimmigrant

practitioner leaves the country (voluntarily or by

compulsion) to the detriment of Louisiana clients, such an

attorney would be utterly beyond the reach of the

Louisiana Bar. Contrary to the plaintiffs’ contentions, the

international transience of nonimmigrant alien

practitioners is not analogous to that of a citizen or

- 24a -

immigrant alien practitioner who leaves Louisiana. State

reciprocity and interstate bar agreements would allow the

Louisiana Bar to pursue an attorney who relocates

domestically, but there is no doctrine of international

reciprocity enabling the Louisiana Bar to reach a

malfeasant or nonfeasant nonimmigrant attorney who

has fled the United States. Even if the Bar tracked down

such an attorney in a foreign country, because

nonimmigrants (in contrast to citizens and immigrant

aliens) may not establish domicile in the United States

and will usually have limited assets here, Louisiana

courts would have questionable ability to exercise

jurisdiction over such a person. The state would be

impotent to remedy unethical or incompetent conduct,

and a Louisiana client’s ability to seek redress would be

frustrated. Section 3(B) is underinclusive with respect to

all possible foreseeable types of attorney abandonment,

but it is not irrationally underinclusive with respect to

this particularly troublesome situation.”

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

admission to persons able to live and work permanently

in the United States, is rationally related to the state’s

interest in assuring continuity and accountability in legal

representation. Section 3(B) does not make the mistake,

remedied in Griffiths, of denigrating aliens in general.

Instead, Section 3(B) recognizes that the inherent terms

‘© [In concluding that the Bar Committee in Griffiths failed to establish

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

to vindicate its undoubted interest in high professional standards{,]”

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

continuing scrutiny by the organized bar and the courts... . the range

of postadmission sanctions extends from judgments for contempt to

criminal prosecutions and disbarment.” 413 U.S. at 727, 93 S. Ct. at

2857-58. The Louisiana Bar's concern that the temporary status of

student and H-1B temporary worker visa holders might frustrate its

ability to carry out these functions is legitimate.

- 25a -

and conditions of nonimmigrant status all but assure a

lack of continuity and impairment of the Bar’s ability to

carry out its regulatory and police functions. As such,

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

powers in pursuit of these interests.

Plaintiffs also complain that Section 3(B) is

irrationally overinclusive because it assumes that

nonimmigrant alien practitioners will be transient, when

in fact they are just as likely, having gone to the trouble

to be admitted to the Louisiana Bar, to extend their stays

in this country. The plaintiffs’ argument is plausible, but

no more so than the state’s contrary hypothesis.

Moreover, unlike American citizens who seek admission

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

of nonimmigrant transience is substantially different —

nonimmigrant aliens cannot unilaterally change their

transient or noncitizen status.

The plaintiffs also generally criticize Section 3(B)

as overbroad (e.g., because H-1B nonimmigrants must be

sponsored by an employer, who in a case of malfeasance,

may be ethically responsible for the attorney’s misdeeds)

and imprecise in achieving its desired ends. Even if it is

flawed, the provision cannot be legitimately characterized

as arbitrary or irrational. A court’s inquiry is not for

legislative precision, acuity, or acumen. See Romer v.

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

(stating that “[iJn the ordinary case, a law will be

sustained if it can be said to advance a legitimate

government interest, even if the law seems unwise or

works to the disadvantage of a particular group, or if the

rationale for it seems tenuous’). Section 3(B) may be

undesirable in an increasingly globalized commercial

climate, but our perception of the wisdom of the measure

fails to render it constitutionally infirm under traditional

rational basis review. Section 3(B) need only be rationally

related to some legitimate end. Romer, 517 U.S. at 632,

116 S. Ct. at 1627. Section 3(B) is, at the least, “roughly

- 26a -

approximate” to the concerns identified by Louisiana,

given “limitations on the practical ability of the state to

remedy every ill.” Plyler, 457 U.S. at 216, 102 S. Ct. at

2394.

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

there is no basis for applying a heightened level of

scrutiny, it survives rational basis review.

2. Due Process

The LeClerc plaintiffs assert procedural due

process challenges to Section 3(B). As aliens, they are

“persons guaranteed due process of law by the Fifth and

Fourteenth Amendments.” Plyler, 457 U.S. at 210, 102 S.

Ct. at 2391 (citations omitted).5! Procedural due process

entitles a person to a hearing before being deprived of an

interest protected by the Fourteenth Amendment. Bd. of

Regents v. Roth, 408 U.S. 564, 570, 92 S. Ct. 2701, 2705

(1972). As relevant here, “the existence of . . . eligibility

rules” gives a party seeking admission to practice his

chosen profession “an interest and claim to practice . . . to

which procedural due process requirements appll[y].”

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

(internal citation omitted). However, procedural due

process rights do not vest in a party who has failed to

seek a hearing before filing suit. Goldsmith v. United

State Bd. of Tax Appeals, 270 U.S. 117, 123, 46S. Ct. 215,

218 (1926); See also Myrick v. City of Dallas, 810 F.2d

1382, 1388 (5th Cir. 1987) (holding that a complainant

“cannot skip an available state remedy and then argue

that the deprivation by the state was the inadequacy or

lack of the skipped remedy”). Although Louisiana’s Bar

admission rules gave the plaintiffs an interest to which

51 The Privileges and Immunities Clause protects only citizens.

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

procedural due process rights attached, the plaintiffs

cannot state a claim for a procedural due process violation

because they opted not to appeal under Section 9.

3. Supremacy Clause and Preemption

The plaintiffs maintain that Section 3(B) is

preempted by the comprehensive statutory scheme

embodied in the Immigration and Nationality Act (“INA”)

and conflicts with some of its specific provisions.®? Despite

the federal government’s primacy over the regulation of

immigration, not “every state enactment which in any

way deals with aliens is a regulation of immigration and

thus per-se preempted .. . .” DeCanas, 424 U.S. at 355, 96

S. Ct. at 936. The Constitution, by committing regulation

of immigration to the federal government, did not deprive

the states of all power to legislate regarding aliens.*® Id.

Nevertheless, ostensibly harmonious state regulation may

run afoul of the Supremacy Clause if it, in effect,

interferes with the goals of federal policy. Id. Yet, even in

this context, “[flederal regulation . . . should not be

deemed preemptive in the absence of persuasive reasons

— either that the nature of the regulated subject matter

permits no other conclusion, or that the Congress has

unmistakably so ordained.” Id. at 356, 96 S. Ct. at 937

(internal citation omitted).

52 The LeClere plaintiffs further contend that NAFTA and GATS,

which they argue are intended to liberalize United States licensing

and certification requirements, evince congressional intent to preempt

restrictive state licensing schemes. The LeClerc plaintiffs’ arguments

concerning NAFTA and GATS are, respectively, inapposite and

unpreserved.

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

Federal Government has by uniform rule prescribed what it believes to

be appropriate standards for the treatment of an alien subclass, the

States may, of course, follow the federal direction”) (citing DeCanas,

424 U.S. 351, 96 S. Ct. 933).

Section 3(B) is unquestionably a_ permissible

exercise of Louisiana’s broad police powers to regulate

employment within its jurisdiction for the protection of its

residents. See id. at 356, 96 S. Ct. at 937 (explaining that

a state has “broad .. . police powers” to regulate

- employment within its borders). The Louisiana Supreme

Court was rationally entitled to conclude that the

temporary status of nonimmigrant aliens could impede

the Bar’s regulatory and disciplinary efforts.** Conditions

that frustrate the administration of Louisiana’s licensing

scheme are “certainly within the mainstream of such

police power regulation.” Id. at 356-57, 96S. Ct. at 937.

Further, as a state regulation dealing with the

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

facially preempted by the INA. The Supreme Court has

acknowledged that “there is no indication thet Congress

intended to preclude state law in the area of [alien]

employment regulation.” Id. at 358, 362, 96 S. Ct. at 937-

38, 940. Thus, the field of alien employment tolerates

harmonious state regulation.

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

some aliens and not to others conflicts neither with the

INA nor with the Supreme Court’s disposition in Toll. In

Toli, the Court invalidated a University of Maryland

policy denying in-state tuition status to G-4

nonimmigrant aliens _— who are_ permitted by

congressional directive to establish domicile in the United

States — as inconsistent with federal policy that

prevented these student aliens from establishing state

domicile. Toll, 458 U.S. at 11, 102 S. Ct. at 2983. Toll held

that, “state regulation not congressionally sanctioned that -

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

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

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

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

- 29a -

discriminates against aliens lawfully admitted to the

country is impermissible if it imposes additional burdens

not contemplated by Congress.” However, the Court

added a caveat:

To be sure, when Congress has done nothing more

than permit a class of aliens to enter the country

temporarily, the proper application of the principle

is likely to be a matter of some dispute.

Toll 458 U.S. at 12-138, 102 S. Ct. at 2983 (quoting, in

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

The substantive holding in Toll is distinguishable from

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

the situation contemplated, but not addressed, in Toll —

the validity of state laws affecting transient

nonimmigrant aliens. Second, there is no incongruity

between what Congress permits of student and temporary

worker nonimmigrants and what Section 3(B) prevents.

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

class of nonimmigrant aliens is itself heterogenous, and

the distinctions among them are relevant for preemption

purposes. Toll specifically distinguished between G-4

nonimmigrant aliens — upon whom Congress expressly

declined to impose domicile restrictions — and the F-1

student and H-1B temporary worker nonimmigrant aliens

at issue in this case — upon whom Congress has clearly

imposed domicile restrictions.®° Section 3(B) affects only

the latter group.

55 As the Court stated in Toll:

[T]he nonimmigrant classification is by no means

homogeneous . . . . For example, Congress expressly

conditioned admission for some purposes on an intent notto

abandon a foreign residence or, by implication, on an intent

not to seek domicile in the United States ... . [A]

nonimmigrant student is defined as “an alien having a

(...continued)

- 30a -

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

infirmity of proscribing by state law what Congress

expressly permits by federal statute. Section 3(B) does not

prevent the legal matriculation of nonimmigrant alien

students admitted to the United States on F-1 or J-1

visas. Section 3(B) is, in fact, consistent with provisions

that prohibit student visa holders from obtaining gainful

employment, require them to obtain specific authorization

for certain types of matriculation-related employment,

e.g., internships and work-study programs, requires their

departure at the expiration of their status, and prohibits

them from establishing domicile in the United States.

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

contentions, prevent them from complying with H-1B

nonimmigrant visa requirements. H-1B status requires

the nonimmigrant applicant to qualify for a temporary

worker visa by presenting documentation of: a state

professional license; a bachelor’s, or higher, degree in the

profession; an equivalent foreign degree; or equivalent

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

compliance measures are disjunctive; its professional

licensing option is permissive, not mandatory. While

Section 3(B) permits one of these alternatives, it does not

residence in a foreign country which he has no intention of

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

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

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

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

... But Congress did not restrict every nonimmigrant class. In

particular, no restrictions on a nonimmigrant’s intent were

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

by the regulations . . . which provide that G-4 aliens are

admitted for an indefinite period... .

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

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

665, 98 S. Ct. at 1349 and 8 U.S.C. §§ 1101(a)(15)(B), (F), (H)).

-3la-

prevent an H-1B visa holder who satisfies at least one of

the other compliance methods from obtaining employment

within the broad field encompassed by the practice of law.

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

provision that contemplates non-licensed employment."

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

conflict, with federal regulation of alien employment.

The plaintiffs finally argue that the INA impliedly

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

the accomplishment and execution of the full purpose and

objectives of Congress.” DeCanas, 424 U.S. at 363, 96 S.

Ct. at 940. We disagree. As the Court made clear in

DeCanas, the intersection of state and federal law does

not necessarily require or effect preemption. Upholding a

California law criminalizing the employment of illegal

aliens, DeCanas held that the overlap of state and federal

law did not equate to “withdrawal from the States of

power to regulate where the activity regulated was a

mere peripheral concern” to the federal law. Id. at 361, 96

S. Ct. at 939. Similarly, while Section 3(B) prohibits Bar

admission of nonimmigrant aliens even though the INA

permits H-1B visa holders to seek professional licensing,

the provision is “peripheral” to intersecting federal law

which does not itself mandate domestic professional

licensing.

56 8 C.F.R. § 214.2(h) provides that:

Duties without licensure. In certain occupations which

generally require licensure, a state may allow an individual to

fully practice the occupation under the supervision of licensed

senior or supervisory personnel in that occupation. In such

cases, the director shall examine the nature of the duties and

the level at which they are performed. If the facts

demonstrate that the alien under supervision could fully

perform the duties of the occupation, H classification may be

granted.

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

local problems arising from the transitory status of ©

nonimmigrant aliens who, by the terms and conditions of

their federal status, possess fewer ties to the United

States than any other group (besides illegal] aliens).

Section 3(B) attempts to protect Louisiana residents

seeking legal representation and affects a class of persons

whom Congress has expressly prohibited from living or

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

96 S. Ct. at 940 (explaining that although federal law

predominates in the field of immigration, there is

minimal federal interest in state laws crafted to address

local problems and affecting local entities in a manner

consistent with federal declarations). Rather than

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

consistent with the federal policy embodied in the INA.

CONCLUSION

For the reasons stated herein,‘ the judgment in

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

La. 2003) is AFFIRMED. The judgment in Wallace, et.

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

is REVERSED.

CARL E. STEWART, Circuit Judge, concurring in part

and dissenting in part:

I concur in the panel’s majority decision affirming

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

preempted by federal immigration or trade policy; (2) the

defendants’ jurisdiction arguments should be denied; (3)

the plaintiffs’ due process arguments should be dismissed,

(4) plaintiff Affleck lacked standing to assert a claim

under the NAFTA, and (5) the Leclerc plaintiffs’ motion to

reconsider should be denied. For the following reasons, I

respectfully dissent from the majority’s conclusion that

the plaintiffs’ Equal Protection claim should be dismissed.

- 33a-

First, I disagree with the majority’s conclusion

that strict scrutiny review should not apply to the issue

before us. The Supreme Court in Graham vy. Richardson

held that "classifications based on alienage, like those

based on nationality or race, are inherently suspect and

subject to close judicial scrutiny. Aliens as a class are a

prime example of a ‘discrete and insular’ minority for

whom such heightened judicial solicitude is appropriate."

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

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

should be noted that not all limitations on aliens are

suspect. See Foley v. Connelie, 435 U.S. 291, 294 (1978).

Although the general rule is that classifications of aliens

are suspect and strict scrutiny should apply, the Court

has also held that less than strict scrutiny is warranted

where a state law discriminates based on alienage

classification regarding matters related to the democratic

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

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

regulate immigration, federal statutes and presidential

orders that discriminate against aliens are also reviewed

with something less than strict scrutiny. Mathews v.

Diaz, 426 U.S. 67, 81 (1976) ("the relationship between

the U.S. and our alien visitors has been committed to the

political branches of the federal government. Since

decisions in these matters may implicate our relations

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

character more appropriate to either the Legislature or

the Executive branches than to the Judiciary."). In all

other circumstances, the Supreme Court has applied

strict serutiny to classifications based on alienage.

Alienage is defined as the state or condition of being an

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

alien is “any person not a citizen or national of the United

States.” 8 U.S.C. § 1101(a)(3). The majority is wary about

"expanding" strict scrutiny review to nonimmigrant aliens

as a distinctive suspect class in the absence of a black

letter holding by the U.S. Supreme Court to that effect. |

- 34a -

disagree with the majority’s reservations because the

Supreme Court's statement that "alienage is a suspect

class" by definition includes nonimmigrant aliens as part

of that class.

The majority emphasizes that, as opposed to the

Rule at issue here, “the rule at issue in Griffiths effected a

‘total exclusion [of all] aliens from the practice of law’ in

Connecticut.” Proposed Op. at 15. However, the Supreme

Court has stated that "[t]he fact that the [challenged]

statute is not an absolute bar [against all aliens] does not

mean that it does not discriminate against the class."

Nyquist _v. Mauclet, 432 U.S. 1, 9 (1977). It is only

important that the Rule is directed at aliens and only

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

citizens and resident aliens to apply for admission to the

Louisiana state bar. In re Bourke, 819 So.2d 1020, 1021

(La. 2002). Because the Louisiana Supreme Court has

defined resident aliens as “aliens who have been granted

permanent resident status in the United States,” id., the

Rule discriminates against all nonimmigrant aliens. The

Rule does discriminate against the class because it is

directed at aliens and only aliens are harmed by it.

In discussing the alien suspect class, the Supreme

Court has referred to resident aliens, aliens and non-

citizens interchangably. The majority uses the term

resident aliens in referring to the suspect class first

created in Graham vy. Richardson. In order to properly

understand the semantics in this case, it is necessary to

explore the definitions used in the Immigration and

Nationality Act (INA), 8 U.S.C. § 1101, et seg. All aliens

legally admitted in the U.S. fall into one of two categories:

immigrant (persons who want to become permanent

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

limited period of time). DAVID WEISSBRODT, IMMIGRATION

LAW AND PROCEDURE § 5-1 - 6-1(4th ed. 1998). These two

broad categories are each further divided into specific

types of visas. Id. In the INA, there is no definition of

- 35a -

resident alien, only a definition of residence as referring

"only to the place of general abode without regard to

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

and immigration status should be understood as two

separate distinctions; one does not necessarily have to do

with the other. As the district court noted in Wallace v.

Calogero, “the term ‘resident alien’ is broader than the

Act’s immigration categories and includes both immigrant

and nonimmigrant aliens lawfully residing in the United

States.” 286 F. Supp. 2d 748, 762 (E.D. La. 2003). In other

words, a nonimmigrant alien who lives in the United

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

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

jurisprudence, as simply indicating that the alien resides

in the United States. This point is further made clear by

Justice Blackmun’s majority opinion in Kleindienst_v.

Mandel, 408 U.S. 753 (1972). Justice Blackmun, the

author of the majority opinion in Graham, used the term

“nonresident alien” to refer to plaintiff Ernest Mandel, a

Belgian citizen who resided in Brussels. 408 U.S. at 762.

The Court has not distinguished between

immigrant aliens or nonimmigrants aliens when

discussing the alienage suspect class even though the

Court has had before it cases which involved extensive

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

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

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

have a green card, and therefore are a permanent resident, you are a

resident under tax law. Id. at § 7701(b)(1)(A)(Qi). The other is the

substantial presence test. Under the substantial presence test you will

be considered a U.S. resident if you were physically present in the U.S.

for at least 31 calendar days during the course of the year and 183

days during the 3 year period that includes the current year and two

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

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

years, it is possible for an alien to be both a non-immigrant and pay

taxes as a resident alien.

- 36a -

review of the Immigration and Naturalization Act and its

various classifications for admitted aliens; the Court was

not ignorant of the terminology associated with the INA’s

alien classifications nor presumably of the distinctions

between these classifications. See e.g., Kleindienst, 408

U.S. at 753, 757 n.4 (holding that a Belgian citizen living

in Brussels, “as an unadmitted and nonresident alien,

had no constitutional right of entry to this country as a

nonimmigrant or otherwise”); see also Saxbe v. Bustos,

419 U.S. 65 (1974) (holding that daily and seasonal alien

commuters qualify as immigrant aliens rather than as

nonimmigrant aliens). Despite the Court’s familiarity

with the distinction between immigrant and

nonimmigrant aliens, the Court has still spoken of a

general “alien” suspect class.

The defendants and the majority rely heavily on

the fact that the Court’s cases that employ strict scrutiny

analysis all involved plaintiffs who were permanent

resident aliens.*® However, I am not persuaded that based

on this fact alone, the Court’s strict scrutiny analysis

should be restricted to laws that discriminate against

permanent resident aliens. Again, the Supreme Court has

not explicitly emphasized the alien plaintiffs’ permanent

resident status in discussing the alien suspect class. As

the majority opinion observes, nonimmigrant aliens have

come before the Court asserting Equal Protection claims.

Twice the Court found it unnecessary to reach the Equal

Protection issue, see Toll v. Moreno, 458 U.S. 1 (1982) and

Decanas v. Bica, 424 U.S. 351 (1976), and once the Court

applied rational basis review, see Plyler v. Doe, 457 U.S.

202 (1982). Although the Court applied rationai basis

5§ It should be noted that in some of the Supreme Court's opinions, the

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

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

(1948).

- 37a -

review to the aliens ia Plyler, as the majority notes, Plyler

“is a far different case from the case at bar.” Proposed Op.

at 24. Plyler involved illegal aliens. In refusing to grant

suspect classification to illegal aliens, the Court focused

on their undocumented and unlawfully status. Plyer, 457

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

contrast, are lawfully admitted aliens. The Court's

opinions have applied strict scrutiny review when the

plaintiffs at issue are lawfully admitted aliens who reside

in the United States, like the plaintiffs here. See e.g.,

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

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

The majority also relies heavily on the Supreme

Court's statement in Griffiths that "[rjesident aliens, like

citizens, pay taxes, support the economy, serve in the

Armed Forces, and centribute in myriad other ways to our

society. It is appropriate that a State bear a heavy burden

when it deprives them of employment opportunities." 413

U.S. at 722. Nonimmigrant aliens do pay taxes, support

the economy and contribute in other ways to our society.

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

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

the primary rationale for affording suspect class

designation to aliens; after all aliens were afforded

suspect class designation before Griffiths. See Graham,

403 U.S. 365. Instead, the basis for aliens’ class

designation seems to be premised on aliens’ inability to

vote, and thus their impotence in the political process,

and the long history of invidious discrimination against

them. See Plyer, 457 U.S. at 218 n.14 (citing Graham, 403

U.S. at 372); see also ERWIN CHEMERINSKY,

CONSTITUTIONAL LAW 618-19 (1997). See generally

Takahashi, 334 U.S. 410.

In order to distance nonimmigrant aliens from the

class of "aliens" that the Supreme Court has recognized as

inherently suspect, the majority emphasizes’ the

temporary and “transient” status of nonimmigrant aliens.

- 38a -

However, the majority is unable to avoid the Supreme

Court's ruling in Toll _v. Moreno, which recognized that

nonimmigrant aliens who hold a G-4 visa are aliens with

permanent status similar to citizens and immigrant

aliens. 458 U.S. 1 (1983); see also Elkins v. Moreno, 435

U.S. 647, 663-64 (1978). The majority vigorously asserts

that G-4 nonimmigrant aliens are distinct from the

nonimmigrant aliens here because the aliens here are

“transient nonimmigrant aliens,” a new alienage

classification crafted by the majority’s opinion only.

However, the constitutional challenge here is not an as

applied challenge to Section 3(b). The plaintiffs assert

that the rule discriminates against all nonimmigrant

aliens. Therefore, if one nonimmigrant alien group does

not fit within the opinion's analysis— that nonimmigrant

aliens are not a suspect class because they are not

"permanent" residents— then the majority’s argument as a

whole must fail.

The majority states that “nonimmigrant aliens—

who ordinarily stipulate before entry to this country that

they have no intention of abandoning their native

citizenship, and who enter with no enforceable claim to

establishing permanent residence or ties here—need not be

accorded the extraordinary protection of strict scrutiny by

virtue of their alien status alone.” Proposed Op. at 19.

But, not all nonimmigrant aliens are required to keep a

permanent residence abroad and are not allowed to

intend to stay in the United States. Besides, G-4

nonimmigrant aliens, the Immigration Act of 1990 states

that H-1 and L category visa holders (as some of the

plaintiffs are here) do not have to pledge an intention to

only stay in the United States temporarily, and can seek

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

41.11; 8 C.F.R. §§ 214.2 (h)(16), (1)(16); 68 No. 21

Interpreter Releases 681-84 (June 3, 1991). The BIA and

the State Department also recognize the doctrine of dual

intent, which allows nonimmigrant aliens who are

required to keep a permanent residence in their foreign

- 39a -

country to both express a short term intent to remain in

the United States temporarily (so as to not contravene the

requirements of the visa under which they ent: red) and a

long term intent to remain in the United States

permanently (so that they may apply for adjustment of

status). Matter of Hosseinpour, 15 I&N Dec. 191, 192

(BIA 1975); 70 No. 42 Interpreter Releases 1444, 1456-58

(No. 1, 1993).

I read the Supreme Court's jurisprudence to

provide that nonimmigrant aliens, as persons who are not

citizens nor nationals of this country, are part of the alien

suspect class and therefore, laws that discriminate

against them are inherently suspect and should be

subjected to strict scrutiny review. Because of the Court’s

opinions, the presumption should be that nonimmigrant

aliens are part of the alien suspect class and the

defendants should have the burden of proving the

opposite. | am not persuaded by the arguments put forth

by the defendants that the Supreme Court did not intend

to include nonimmigrant aliens as part of the alienage

suspect classification. Nevertheless, even assuming

arguendo that rational basis is the appropriate analysis to

be used in this case, I disagree with the majority's holding

that the Louisiana rule survives rational basis review. To

pass rational basis review, the defendants must show that

nonimmigrant aliens pose some special threat to the

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

bar applicants, citizens or immigrant aliens, do not. See

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

432, 447-50 (1985) (“it is true that the mentally retarded

as a group are indeed different . . . [bJut this difference is

largely irrelevant unless the [group home] and those who

would occupy it would threaten legitimate interests of the

city in a way that other permitted uses such as boarding

houses and hospitals would not. Because in our view the

record does not reveal any rational basis for believing that

the Featherston home would pose any special threat to

- 40a -

the city's legitimate interests, we affirm the judgment

below ”).

The majority opinion’s discussion of the equal

protection claim is most problematic at this point because

it is in essence trying to “push a square peg into a round

hole.” The defendants assert that nonimmigrant aliens

pose a special threat to the integrity of the Louisiana bar

because they could be unexpectedly deported or they could

leave and go back to their home country, leaving litigants

in the lurch. The defendants assert that unlike citizens

and immigrant aliens, nonimmigrant aliens are more

susceptible to being "international transients." The

Louisiana Supreme Court would be unable to reach

malfeasant attorneys because the Louisiana bar does not

have reciprocity with other nations and _ because

nonimmigrant aliens are not able to establish domicile

and, therefore, the state courts could not assert

jurisdiction.

However true that may be, these concerns apply

equally to both citizens and immigrant aliens. Citizens

have a constitutional right to travel. Califano v. Gautier

Torres, 435 U.S. 1 (1978). Although the Louisiana state

bar may have reciprocity with other states, citizens could

leave the country and establish residency abroad, and as

the majority states, Louisiana does not have reciprocity

with other nations. Likewise, immigrant aliens may

travel abroad and not return, leaving clients behind.

Moreover, both nonimmigrant aliens and immigrant

aliens are subject to deportation; only citizens may not be

deported. The majority asserts that nonimmigrant aliens

pose a special threat to Louisiana clients because

nonimmigrant aliens may not establish domicile or have

assets in Louisiana and, therefore, the courts may be

precluded from asserting jurisdiction over nonimmigrant

attorneys should the need to reach them arise. But the

Louisiana bar has no requirement that bar applicants, or

bar members, be Louisiana residents or spend any time in

-4la-

Louisiana or in any way have a connection with the state.

Therefore, Louisiana courts may also be unable to assert

jurisdiction over members of the Louisiana bar who are

citizens or immigrant aliens. Moreover, it may be possible

for nonimmigrant aliens to be domiciled in Louisiana—as

the Supreme Court found that the nonimmigrant alien

plaintiffs were in Toll. See 458 U.S. at 17. As the district

court in Wallace averred:

The Rule does not restrict membership to the bar

to citizens and immigrant aliens who plan to

reside permanently in Louisiana. Nonimmigrant

aliens as a class are not necessarily more transient

than other groups. Citizens and immigrant aliens

may be admitted to the bar even if they have no

intention of residing in Louisiana. Louisiana

attorneys relocate to other states and maintain bar

membership in states where they do not reside.

Due to advances in technology, attorneys can

provide services and representation to clients from

virtually anywhere. Louisiana attorneys retire,

die, and leave the practice for a myriad of reasons.

If the Louisiana Supreme Court were concerned

with transience, the Rule would be calculated to

address that problem directly. However, the Rule

only excludes a fraction of persons who may have

temporary residence in the state. The fact that the

Plaintiffs must leave on a date certain does not

change the analysis. x the contrary, it might be

an advantage. Plainti@fs will be able to plan in

advance for their departure and make the

necessary arrangements te protect the interests of

their clients.

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

In my view, the Louisiana rule does not pass

constitutional muster under even the _ exceedingly

permissive rational basis standard of review. The Rule at

- 42a -

issue is purported to be a prophylactic remedy to insulate

potential clients from lawyers who are forced to leave the

country unexpectedly, or who leave the country

voluntarily, without an available means for the state

courts to assert jurisdiction to reach the malfeasant

attorneys. However, if the purpose of the Rule is to

protect court dockets from disruption and protect the

state’s citizens from lawyers who may leave suddenly, the

Rule is not the least restrictive way to do it nor, as the

district court in Wallace noted, is the Rule in fact

calculated to achieve this purpose.

For the foregoing reasons, I respectfully dissent

from the majority's dismissal of the plaintiffs’ Equal

Protection claim and the reversal of the district court’s

judgment in Wallace v. Calogero.

- 43a -

DISTRICT COURT OPINION

United States District Court,

E.D. Louisiana.

Caroline WALLACE, et al.

Pascal F. CALOGERO Jr. et al.

No. Civ.A. 03-1245.

Sept. 17, 2003.

ORDER AND REASONS

FALLON, District Judge.

Plaintiffs are nonimmigrant! aliens lawfully

residing? in New Orleans, Louisiana who claim they have

1 An alien is defined under the Immigration and Nationality Act as

"any person not a citizen or national of the United States." 8 U.S.C. §

1101(a)(3) (1999). A nonimmigrant alien is an alien who is granted

temporary residence in the United States for specific purposes as

outlined in the Immigration and Nationality Act. See id. § 1101(a)(15)

(outlining classes of aliens eligible for temporary residence in the

United States). An immigrant alien is an alien who is granted

permanent residence in the United States. See id. (providing that all

aliens are immigrant aliens unless they were granted admission to the

United States as a nonimmigrant alien).

Plaintiffs and Defendants use different terms to refer to the

immigration status of the Plaintiffs, such as ternporary resident alien

and non-resident alien. For the sake of precision, when discussing

immigration status, this Court uses the statutory language, immigrant

and nonimmigrant. When discuss ng issues related to residency, this

Court uses permanent resident alien and nonpermanent resident

alien.

2 Under the Immigration and Nationality Act, the term "residence"

means "the place of general abode; the place of general abode of a

(...continued)

- 44a -

been denied membership in the Louisiana Bar Association

because of their status. They have brought this suit

against the members of the Louisiana Supreme Court in

their official capacity and the Chairman and Vice-

Chairman of the Louisiana Committee on Bar Admissions

in their official capacity under 42 U.S.C. § 1983,

challenging Louisiana Supreme Court Rule XVII, Section

3(B), which restricts bar membership to citizens and

immigrant aliens. Plaintiffs seek declaratory and

injunctive relief, as well as attorney's fees and costs.

Before the Court are the following motions: (1)

Defendant's motion to dismiss (Rec.Doc. No. 15); and (2)

Plaintiffs motion for summary judgment (Rec.Doc. No.

12).

I. Factual and Procedural Background

Louisiana Supreme Court Rule XVII, Section 3(B)

requires every applicant for admission to the Louisiana

Bar to be a citizen or resident alien of the United States. *

Prior to 2002, the Louisiana Supreme Court interpreted

the phrase "resident alien" contained in the Rule to mean

an alien lawfully residing in the United States, including

both immigrant and nonimmigrant aliens.‘ In 2002, the

person means his principal, actual dwelling place in fact, without

regard to intent.” 8 U.S.C. § 1101(a)(33).

* The Rule provides in pertinent part, "Every applicant for admission

to the Bar of this state shall meet all of the following requirements ...

(B) Be a citizen of the United States or a resident alien thereof...." La.

S.Ct. R. XVII, § 3(B).

4 See In re Respondek, 442 So.2d 435, 435 (La.1983) (holding that the

phrase "resident alien” means an alien lawfully residing in the United

States) overruled by In re Bourke, 819 So.2d 1020, 1022 (1.a.2002); In

re Appert, 444 So.2d 1208, 1209 (La.1984) (stating that the Bar

Committee is directed to consider foreign nationals lawfully residing in

the United States as resident aliens) overruled by In re Bourke, 819

So.2d at 1022.

Louisiana Supreme Court overruled its prior rulings and

held that the term "resident alien” applies only to

immigrant aliens: that is, aliens permanently residing in

the United States pursuant to immigrant visas. In re

Bourke, 819 So.2d 1020, 1022 (La.2002).

Plaintiffs are citizens of the United Kingdom

currently residing in the United States under

nonimmigrant visas. Such nonimmigrant visas permit

aliens to reside in the United States and provide a date

certain on which they must leave the United States. 8

U.S.C. § 1101(26). Plaintiff Wallace received a diploma in

legal practice with distinction from the College of Law in

London in 1998. She is licensed to practice law in

England and Wales and was admitted to the roll of

solicitors in September, 2001. Plaintiff Wallace qualified

to work as a paralegal at the Capital Post Conviction

Project of Louisiana under an H-1B work visa.° Her visa

expires in October, 2004, and she plans to apply for a

three-year extension. She submitted an application to the

Louisiana Committee on Bar Admissions (“the

Committee") for an equivalency determination® in

5 An H-1B class alien is an alien “who is coming temporarily to the

United States to perform services ... in a speciality occupation.” 8

U.S.C. § 1101(a)(15)(H)(i)(b). To obtain an H-1B work visa, a U.S.

employer must file an 1-129 petition with the U.S.A. Immigration

Services. If approved, the potential alien employee must show that the

purpose of his trip is to enter the United States for business; that he

plans to remain for a specific limited period; and that he has a

residence outside of the U.S. as well as other binding ties which will

insure his return abroad at the end of his visit. If issued, an H-1B visa

expires at a date certain, up to three years from the date of issuance.

The worker may apply for an extension of up to three years, with the

total stay limited to six years maximesm. See

http: //www.usais.org /businesspleasurevisitors.htm (providing

information on nonimmigrant business and pleasure visas).

6 Graduates of foreign law schools who seek admission to the Louisiana

Bar must file an application for an equivalency determination to

(...continued)

- 46a -

December 2001 and was told in November 2002 that her

application was accepted. She was later told, however,

that she was ineligible to take the Louisiana Bar

Examination because she is not a permanent resident

alien or a citizen of the United States.

Plaintiff Maw attended Tulane University School

of Law under an F-1 student visa.’ [She graduated with a

juris doctor degree in May 2003. Her student visa

included an Optional Practical Training authorization

that expires in March, 2004, and she plans to apply for an

H-1B work visa. It is not clear from the record whether

Plaintiff Maw applied to take the Louisiana Bar

Examination. In her affidavit, she states that she applied

for admission to the Louisiana State Bar in 2001 based on

reciprocity.. (Maw Aff. {| 6). The Complaint states that

she applied to take the Louisiana Bar Examination.

(Compl.4| 19). In either case, she was told that she was

ineligible for admission to the bar because she is not a

permanent resident alien or citizen of the United States.

Neither Plaintiff petitioned the Louisiana Supreme Court

establish that the applicant's legal education is equivalent to that of a

U.S. law school accredited by the American Bar Association. La. S.Ct.

R. XVII, § 6.

’ An F-1 class alien is an alien "having a residence in a foreign country

which he has no intention of abandoning, who is a bona fide student

qualified to pursue a full course of study and who seeks to enter the

United States temporarily and solely for the purpose of pursuing such

a course of study....". 8 U.S.C. § 1101(a)(15)(F)(). The U.S.A.

Immigration Services issues visas to students attending U.S. schools in

two nonimmigrant categories: F visas are issued to students pursuing

academic studies, and M visas are issued to students pursuing

nonacademic or vocational] studies. See

http://www.usais.org/studentvisas.htm (providing information on

student visas).

8 La. S.Ct. R. XVII, § 11 provides the procedure for applying for

admission to the bar based on reciprocity.

- 47a -

for a review of the Committee's denial of their respective

applications.®

On May 2, 2003, Plaintiffs filed their original

complaint seeking declaratory and injunctive relief as

well as costs and attorney's fees. (Rec.Doc. No. 1).

Plaintiffs named as defendants all seven Louisiana

Supreme Court Justices-Pascal F. Calogero, Jr., Jeffrey P.

Victory, Jeannette Theriot Knoll, Chet D. Traylor,

Catherine D. Kimball, John L. Weimer, and Bernette J.

Johnson-and the Chairman and Vice-Chairman of the

Louisiana Committee on Bar Admissions-Daniel E. Webb

and Harry J. Philips, Jr., respectively (collectively

"Defendants"), All the Defendants were sued in their

official capacities only.

Plaintiffs initially moved to have their case

transferred to Judge Jay C. Zainey and consolidated with

Leclerc v. Webb, 270 F.Supp.2d 779 (E.D.La.2003), which

was then before him, arguing that the cases were

factually and legally similar. (Rec.Doc. No. 2). After

closely considering the matter, Judge Zainey denied

Plaintiffs' motion, noting that none of the Leclerc

plaintiffs graduated from an American Bar Association

accredited law school like Plaintiff Maw in the instant

matter. (Rec.Doc. No. 6). Based on this fact, Judge Zainey

concluded that the respective plaintiffs were not similarly

situated. Thus, the case remains with this Court.

Plaintiffs then filed a motion for summary

judgment and Defendants filed a motion to dismiss on

June 23, 2003, which were both heard with oral argument

on August 20, 2003.

In their motion for summary judgment, Plaintiffs

pray for a judgment:

® La. S.Ct. R. XVII, § 9 provides the procedure for appealing the

Committee's denial of eligibility for admission tc the bar.

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1. Declaring that Rule XVII Section 3(B) of the

Rules of the Louisiana Supreme Court violates the Equal

Protection Clause and Due Process Clause of the

Fourteenth Amendment to the United States Constitution

and the Supremacy Clause of Article VI of the United

States Constitution and is unenforceable to the extent

that it bars nonpermanent resident aliens from sitting for

the Louisiana Bar Examination and from becoming

members of the Louisiana State Bar;

2. Declaring that Defendants may not deny

nonpermanent' resident aliens, because of _ their

nonpermanent alien status, the opportunity to sit for the

Louisiana State Bar Examination and to be admitted to

the Louisiana State Bar;

3. Awarding Plaintiffs their costs and attorney's

fees as authorized by 42 U.S.C. § 1988 and granting such

other and further relief as this Court deems just and

proper.

Defendants assert that Plaintiffs fail to present a

justiciable case or controversy because their claims are not ripe

for adjudication and because Plaintiffs lack standing. Further,

Defendants argue that Plaintiffs’ claims are barred by the

Eleventh Amendment and the doctrines of judicial and

legislative immunity. Defendants additionally urge this Court

to abstain from this matter. Finally, Defendants argue that

Plaintiffs fail to state a claim upon which relief can be granted.

The Court considers each argument in turn.

Il. Defendants Motion to Dismiss

A. Legal! Standards

A party may seck dismissal of a complaint based

on lack of jurisdiction. Fed.R.Civ.P. 12(b)(1).

Jurisdictional defects that warrant dismissal include

immunity of the defendants in an action and the court's

consequent lack of subject matter jurisdiction. Bank One

Texas v. United States, 157 F.3d 397, 403 n. 12 (5th

- 49a -

Cir.1998). A party may also seek dismissal of a complaint

that fails to state a claim upon which relief can be

granted. Fed.R.Civ.P. 12(b)(6). When considering a

motion to dismiss under Rule 12(b)(6), a district court

should construe the complaint liberally in favor of the

plaintiff, assuming all factual allegations to be true.

Leleux v. United States, 178 F.3d 750, 754 (5th Cir.1999).

Rule 12(b)(6) motions are viewed with disfavor and are

rarely granted. /d. A complaint may not be dismissed

“unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief." Jd. (quoting Lowrey v. Texas A & M

Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997)).

B. Justiciable Claim or Controversy

Defendants claim that Plaintiffs fail to present an

actual case or controversy as required by Article III,

Section 2 of the United States Constitution. To interpret

the requirements of Article III, the courts have developed

a series of principles termed "“justiciability doctrines.”

United Transp. Union v. Foster, 205 F.3d 851, 857 (5th

Cir.2000). These principles include the doctrines of

ripeness and standing which the Defendants claim are

lacking in this case. /d.

1. Ripeness

The ripeness doctrine "separates those cases that

are premature because the injury is speculative and may

never occur from those that are appropriate for judicial

review." United Transp., 205 F.3d at 857. Although

Plaintiffs seek declaratory relief which may typically be

sought before an injury-in-fact has occurred, /d. (citing

Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1298 (3d

Cir.1996)), they must still present an actual controversy

for resolution. Id. (citing Abbott Labs. v. Gardner, 387

U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967),

overruled on other grounds, Califano v. Sanders, 430 U.S.

99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). A case will be

- 50a -

dismissed for lack of ripeness when the case presents

hypothetical or abstract issues. New Orleans Pub. Serv.,

Inc. v. Council of New Orleans, 833 F.2d 583, 586-87 (5th

Cir.1987). To determine ripeness, courts consider the

fitness of the issues for judicial decision and the hardship

to the parties of withholding court consideration. /d.

Generally, a case is ripe if the only remaining issues are

legal ones and no further factual development is °

necessary. Id.

Defendants argue that Plaintiffs fail to present an

actual case or controversy as required under Article LII,

Section 2 of the Constitution. Defendants claim that the

matter is not ripe for adjudication. Defendants contend

that Plaintiffs must submit an application to take the bar

examination, be denied based solely on residency status,

and exhaust available administrative review procedures

before the matter would become ripe. As these steps have

not all occurred, according to the Defendants, factual

questions remain to be answered, and the Plaintiffs have

not suffered actual harm.

Plaintiffs argue that the issues in the case are

purely legal and, thus, fit for judicial determination. They

argue that the Rule as interpreted by the Louisiana

Supreme Court completely prohibits nonimmigrant aliens

from becoming members of the bar.'’ Both Plaintiffs have

been told by the Committee that their applications to take

the bar examination will be denied because -they are

nonimmigrant aliens. Therefore, Plaintiffs allege that no

10 See In re Bourke, 819 So.2d at 1022 (establishing that the term

"resident alien" in rule XVII applies only to permanent resident aliens

and overruling inconsistent prior holdings); Leclerc, at 797, 801

(finding that the Louisiana Supreme Court did not violate the

Fourteenth Amendment rights of the plaintiffs by prohibiting

nonpermanent resident aliens from being admitted to the Lovisiana

State Bar).

further factual development is required and that the

issues presented to the Court are purely legal.

Additionally, the Plaintiffs claim that they want to

become members of the Louisiana Bar, intend to do so if

permitted, and are suffering actual, not speculative,

hardship because they cannot proceed with their bar

applications.

On facts very similar to this case, Judge Zainey, in

a thorough and well-crafted opinion, recently found that

the Leclerc plaintiffs presented claims that were ripe for

judicial determination. Leclerc, at 788. The same

reasoning applies in this case. Plaintiff Wallace submitted

an application for an equivalency determination (the first

step in applying to the take the bar examination) and was

told by the Committee that she was ineligible to take the

examination because she is a nonpermanent resident

alien. Plaintiff Maw submitted either an application for

admission to the bar based on reciprocity or an

application to take the bar examination and was similarly

told that she was ineligible because she is a

nonpermanent resident alien. Thus, as in Leclerc, the

Committee enforced the prohibition contained in the Rule

against the Plaintiffs. There is no reason to believe that

the Louisiana Supreme Court would have accepted the

Plaintiffs' applications to take the bar examination. To do

so, it would have to contravene its own interpretation of

"resident alien" in Bourke. Therefore, the only remaining

issues in the case are legal and an actual controversy

exists between the parties. Accordingly, Plaintiffs’ claims

are ripe for adjudication.

2. Standing

The "constitutional minimum of standing" requires

three elements: (1) "injury in facta harm suffered by the

plaintiff that is concrete and actual or imminent, not

conjectural or hypothetical"; (2) "“causationa fairly

traceable connection between the plaintiff's injury and the

complained-of conduct of the defendant"; and (3)

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"redressability--a likelihood that the requested relief will

redress the alleged injury." Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 103, 118 S.Ct. 1003, 140

L.Ed.2d 210 (1998) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 559-560, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992)). A plaintiff generally may not seek redress for

injuries done to others, but must submit to the challenged

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

Cir.1998) (quoting Jackson-Bey v. Hanslmaier, 115 F.3d

1091, 1096 (2d Cir.1997)). The Fifth Circuit, however,

excuses this threshold requirement for standing where

the plaintiff shows that submission to the policy would

have been futile. Jd. (citing Jackson-Bey, 115 F.3d at

1096). '

Defendants argue that the Plaintiffs lack standing

to bring the suit because they seek redress for a purported

injury that has not occurred and that may never occur.

The Plaintiffs argue that the Rule is an absolute

prohibition and that there is no doubt that any further

effort to gain admission to the bar will be futile due to

their nonimmigrant status. Plaintiffs further claim that

the prohibition is causing them present, concrete injury

by not allowing them to become members of the bar.

Again applying and agreeing with the court's

opinion in Leclerc, this Court finds that the Plaintiffs

have standing to bring the suit. Plaintiffs have been told

that they are ineligible to take the bar examination. They

have no reason to believe that their respective

applications to take the bar examination would be

accepted. On the contrary, the Committee would, without

a doubt, reject their applications due to their

nonimmigrant status. Thus, the Plaintiffs' injury is

concrete, and they have standing.

In sum, Defendant's motion to dismiss based on

Plaintiffs failure to establish a justiciable case or

controversy is hereby DENIED.

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C. Abstention

Defendants argue that this Court should abstain

from hearing the matter pursuant to Burford v. Sun Oil

Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).!!

Defendants claim that an adequate state court review is

available and that the state law issues are a matter of

substantial public interest. Specifically, the public has an

interest in how the Louisiana Supreme Court regulates

lawyers and the practice of law. As the Louisiana

Supreme Court has particular knowledge, expertise, and

familiarities with the policies at issue, Defendants urge

the Court to abstain from hearing the matter.

Plaintiffs argue that abstention is not warranted

because the case does not present any disputed or difficult

questions of state law. According to Plaintiffs, the rule is

clear, and they are asking the Court to determine if the

Rule violates the Constitution.

As in Leclerc, the Court is not persuaded that

Plaintiffs present questions of difficult state law such that

abstention is warranted. While the suit involves questions

of substantial public interest, the claims are based solely

on federal law.

Accordingly, the Court declines to exercise its

discretion to abstain from this matter.

D. Eleventh Amendment Immunity

Defendants allege that all of the Plaintiffs’ claims,

excluding their equal protection claims,!* are barred by

‘1! The Burford doctrine provides that a federal court should not

exercise its jurisdiction when the case raises difficult questions of state

law. New Orleans Pub. Serv., Inc. v. Council of the City of New

Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989).

12 Defendants acknowledge that the Eleventh Amendment does not bar

the Plaintiff's equal protection claims.

the Eleventh Amendment.!® Defendants allege that the

Plaintiffs sued the Justices and Bar Admissions Officials

in their official capacities thereby making the state a

party in interest. Plaintiffs argue that their claims fit

squarely within the Ex Parte Young!‘ exception to

Eleventh Amendment immunity because they seek

prospective declaratory and injunctive relief against state

officials alleged to be acting in violation of the

Constitution.

The Court agrees with Plaintiffs and finds that the

Ex Parte Young exception is applicable in this case, and,

thus, Defendants are not entitled to immunity under the

Eleventh Amendment. Accordingly, the Defendants'

motion to dismiss based on Eleventh Amendment

immunity is DENIED.

E. Absolute Immunity

Defendants assert that they are absolutely

immune from the instant suit based on the doctrines of

judicial and legislative immunity. The Court will address

the applicability of each doctrine in turn.

1. Judicial Immunity

Defendants claim that they are absolutely immune

from suit pursuant to the doctrine of judicial immunity.'®

'3 The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.

14 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Ex Parte

Young doctrine allows declaratory or prospective injunctive relief

against state officials acting in violation of federal law. Cox v. City of

Dallas, 256 F.3d 281, 307 (5th Cir.2001).

'5 See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86

L.Ed.2d 411 (1985) (finding that public officials like judges and

(...continued)

- 55a -

Judicial immunity applies, according to Defendants,

because actions taken in regulating lawyers and the

practice of law are judicial in nature.'®

Plaintiffs argue that judicial immunity does not

apply. Specifically, Plaintiffs note that the Supreme Court

has found that the administration of bar matters requires

judges to act in three capacities: executive, legislative,

and judicial. Supreme Court of Virginia v. Consumers

Union, 446 U.S. 719, 736, 100 S.Ct. 1967, 64 L.Ed.2d 641

(1980).'7 According to Plaintiffs, the Defendants are

acting in their executive capacity because they are

prosecutors are absolutely immune from claims based on actions taken

in their official capacities); Stump v. Sparkman, 435 U.S. 349, 355, 98

S.Ct. 1099, 55 L.Ed.2d 331 (1978) (finding judicial] immunity to be "a

general principle of the highest importance to the _ proper

administration of justice").

Defendants claim that judicial immunity has been enlarged pursuant

to the Federal Courts Improvement Act of 1996. Defendants note

particularly that the FCLA amended 42 U.S.C. § 1983 to provide that

"in any action brought against a judicial officer for an act or omission

taken in such officer's judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or déclaratory relief

was unavailable.”

'6 Defendants argue that the doctrine applies to the Justices because,

in promulgating rules for lawyers, they are acting in their judicial

capacity. Moreover, Defendants claim that the doctrine applies to the

Bar Admissions officials because the immunity bars suits against

officials acting in quasi-judicial roles. Samuel v. Michaud, 980 F.Supp.

1381, 1415-16 (D.Idaho 1996) ("State bar association committee

members policing the lega! profession are entitled to absolute quasi-

judicial immunity for their actions.”).

17 First, judges act in a judicial capacity when determining the fitness

of individual applicants. Second, judges act in a legislative capacity

when promulgating ber rules. Third, judges act in an executive

capacity when er“arcing those rules. Consumers Union, 446 U.S. at

734, 100 S.Ct. 1967.

- 56a -

implementing and enforcing the Rule thereby

disqualifying them from judicial immunity.

As in Leclerc, the Court finds that Defendants act

in their executive capacity when they enforce bar rules.

Both the general doctrine of judicial immunity and the

Federal Courts Improvement Act of 1996 apply to actions

taken by judicial officers in their judicial capacity. Thus,

the FCIA is inapplicable here and the doctrine of judicial

immunity does not bar the Plaintiffs’ suit.

Accordingly, Defendants motion to dismiss based

on judicial immunity is DENIED.

2. Legislative Immunity

Defendants also claim that they are entitled to

absolute legislative immunity. Similar to judicial

immunity, officials enjoy absolute immunity from suit for

actions taken in their legislative capacity.'® Defendants

claim that legislative immunity applies because the

Plaintiffs ask them to modify the current rule and create

a different bar admission rule.'9

Plaintiffs re-assert that they are suing Defendants

in their executive capacity as enforcers of bar admission

rules.

Plaintiffs are making a facial challenge to the

constitutionality of the Rule. They seek to enjoin the

Defendants from enforcing the Rule. As such, the

18 See Consumers Union, 446 U.S. at 730-34, 100 S.Ct. 1967 (finding

that Justices of a state supreme court are protected by legislative

immunity from claims against them for their role in promulgating the

rules governing the practice of law).

19 See Lewis v. Louisiana State Bar Ass'n, 792 F.2d 493, 497 (5th

Cir.1986) (finding that the Louisiana Supreme Court "occupies the

same position as thet of the [Louisiana) legislature" when exercising

its rule-making aut ority over bar matters).

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Plaintiffs’ claims are not aimed at the authority of the

Defendants to promulgate rules pursuant to their

legislative capacity, but, rather, at their authority to

enforce the rules pursuant to their executive capacity.

Thus, legislative immunity is inapplicable, and the

Defendants motion to dismiss based on_ legislative

immunity is DENIED.

III. Plaintiffs Motion for Summary Judgment

Plaintiffs argue that they are entitled to summary

judgment on their claims for declaratory relief as a matter

of law. They claim that there are no genuine issues of

material fact in this case because they are attacking the

facial unconstitutionality of the Rule and its blanket

preclusion of all nonimmigrant aliens from admission to

the bar. Thus, Plaintiffs claim that there is no reasonable

basis for disputing the material facts as to the nature and

application of the Rule.”°

A. Legal Standards

In determining whether a party is entitled to

summary judgment, the court views the evidence in the

light most favorable to the non-moving party. Littlefield v.

Forney Indep. School Dist., 268 F.3d 275, 282 (5th

Cir.2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911

(5th Cir.2001)). Summary judgment will be granted only

if the pleadings, depositions, answers to interrogatories,

and admissions, together with affidavits show that there

is no genuine issue as to any material fact and that the

defendant is entitled to a judgment as a matter of law.

Fed. R. Civ.P. 56. If the moving party fails to meet its

initial burden of demonstrating the absence of a genuine

20 Defendants did not file a cross motion for summary judgment, but,

rather. a motion to dismiss. Thus, Defendant's arguments in opposition

are taken from their motion to dismiss. (Rec.Doc. No. 15).

- 58a -

issue of material fact, the motion for summary judgment

must be denied, regardless of the nonmovant's response.

Little v. Liquid Air Corp. 37 F.3d 1069, 1075 (5 th

Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, if

the party moving for summary judgment demonstrates

the absence of a genuine issue of material fact "the

nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for

trial." Willis v. Roche Biomedical Laboratories, Inc., 61

F.3d 313, 315 (5th Cir.1995). "[A] dispute about a

material fact is genuine if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party." Jd. If the evidence leads to only one reasonable

conclusion, summary judgment is proper. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986).

B. Constitutional Claims

The Louisiana Supreme Court has plenary power

to define and regulate all aspects of the practice of law,

including admission of attorneys to the bar. Dodson uv.

Spiliada Mar. Corp., 951 F.2d 40, 43 (5th Cir.1992).

States may properly exercise this power by imposing high

standards of qualification before they admit an applicant

to the bar. Schware v. Board of Bar Examiners of State of

New Mexico, 353 U.S. 232, 238-39, 77 S.Ct. 752, 1 L.Ed.2d

796 (1957). However, a state supreme court may not

exercise this power in a manner that contravenes the Due

Process or Equal Protection clauses of the Fourteenth

Amendment. Jd. Thus, any qualification for admission to

the bar must bear a rational relationship to the fitness

and capacity of the applicant to practice law. /d.

1. Federal Preemption Claim

Plaintiffs argue that Congress has established a

comprehensive statutory scheme to govern the treatment

of aliens in the United States and that the Rule is thereby

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preempted by federal immigration law. They note that

state law is preempted by federal law not only when there

is a direct conflict between the two laws, but also when

the state law "stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress." Hines v. Davidowitz, 312 U.S. 52,

67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The Supremacy

Clause prevents states from enacting regulations that

discriminate against lawfully admitted aliens by placing

burdens on them not permitted by Congress.?' Plaintiffs

allege that Defendants are placing an additional burden

on their rights that is in conflict with federal immigration

law. Specifically, Plaintiffs argue that Congress regulates

the employment opportunities of nonimmigrant aliens.??

Federal law allows a state to have licensing requirements

to practice certain professions, but contains no provision

permitting the states to bar an alien's opportunity to

practice his profession. Thus, Plaintiffs contend that it is

within Congress's power to determine whether

nonimmigrant aliens should be allowed to practice law.

Defendants state that the Rule is not in actual

conflict with federal immigration law. Additionally, they

note that a state provision enacted to protect the public

health and safety should be upheld unless there is

evidence of Congress's clear and manifest purpose of

displacing the state's exercise of its police power. New

York State Soc. of Orthopaedic Surgeons, Inc., v. Gould

796 F.Supp. 67, 72 (E.D.N.Y.1992). Defendants contend

2! See, Takahashi v. Fish and Game Commission, 334 U.S. 410, 416, 68

S.Ct. 1138, 92 L.Ed. 1478 (1948) (striking down state law prohibiting a

certain class of aliens from obtaining a commercial fishing license).

22 See 8 U.S.C. § 1101(a)(15) (describing various employment related

and other classifications under which aliens may be lawfully admitted

into the United States on a non-permanent basis).

- 60a -

that Plaintiffs fail to identify any federal statute that is in

conflict with the Rule.

This Court finds that the Rule is not preempted by

federal law. In Leclerc, the court correctly found that the

Rule does not intrude on Congress's power to control

immigration and admittance into the United States.

Leclerc, at 802. This Court finds that the reasoning

applied in Leclerc applies to the instant case as well.

Accordingly, Plaintiffs' motion for summary

judgment on the issue of federal preemption is hereby

DENIED.

2. Equal Protection Claim

Plaintiffs contend that the Rule unconstitutionally

discriminates between citizens and immigrant aliens on

the one hand, and nonimmigrant aliens on the other.

According to Plaintiffs, there is no meaningful distinction

between immigrant and nonimmigrant aliens who are

lawfully residing in the United States vis-avis their

respective abilities to practice law. Thus, Plaintiffs argue,

the exclusion of one class of resident aliens is arbitrary

and has nothing to do with the fitness and capacity of

such aliens to practice law.

As the classification is based on alienage, Plaintiffs

claim that the proper level of scrutiny for the Court to

apply in its analysis of the Rule is strict scrutiny.”

Plaintiffs urge the Court to follow In re Griffiths; 413 U.S.

717, 722, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), wherein

the Supreme Court applied strict scrutiny to a

Connecticut bar admissions rule permitting only United

23 The Supreme Court has held that classifications based on alienage

are inherently suspect and subject to strict scrutiny. Graham ov.

Richardson, 403 U.S. 365, 372-73, 91 S.Ct. 1848, 29 L.Ed.2d 534

(1971).

States citizens admission to the bar. The Griffiths Court

implied that the legal distinction between “resident

aliens" and citizens was largely semantic and in no way

justified a wholesale ban on the admission of noncitizen,

resident aliens to the bar. Though the Griffiths Plaintiff

was an immigrant alien,” Plaintiffs in this case,

nonimmigrant aliens, argue that Griffiths is controlling

because the Court did not suggest that the holding

applied only to immigrant aliens. Though Plaintiffs urge

the Court to apply strict scrutiny, they argue

alternatively that the Rule can not even withstand

scrutiny under the rational basis standard.

Defendants argue that Plaintiffs fail to state a

cognizable constitutional claim because there is no

fundamental right for a non-lawyer to practice law.2° As

such, Defendants claim that the Louisiana Supreme

Court is properly acting pursuant to its plenary power to

regulate the practice of law by excluding persons with

nonimmigrant visas from admission to the bar.

Though based on alienage, the Defendants allege

that the Rule should not be analyzed under strict scrutiny

because the Supreme Court has never held that

nonimmigrant resident aliens are a suspect class. Rather,

the Defendants urge the Court to analyze the Rule under

the rational basis standard. Defendants claim that there

24 The Plaintiff in Griffiths was a citizen of the Netherlands and

originally came to the United States in 1965 as a visitor. Griffiths, 413

U.S. at 718, 93 S.Ct. 2851. She thereafter married a United States

citizen, thereby qualifying for permanent residence. Jd. Though she

was eligible for naturalization, she chose not to renounce her Dutch

citizenship. Jd.

25 Though Defendants state this proposition correctly, the Court notes

that once a state establishes a bar and a bar examination, it must

permit admission 1% & manner consistent with the Fourteenth

Amendment.

- 62a -

is a meaningful difference between citizens and

immigrant aliens on the one hand and nonimmigrant

aliens on the other. This meaningful difference, according

to Defendants, is the temporary nature of Plaintiffs’

residence in the United States. Thus, the Defendants ask

this Court to distinguish the instant matter from the facts

in Griffiths based on the different type of immigration

status of the respective Plaintiffs. Defendants argue that

the state's decision not to admit nonimmigrant aliens to

the bar is a valid and legitimate exercise of the state's

public safety and police powers when analyzed under the

rational basis standard.

One need not dig deeply to discover the important

contributions immigrants have made to our nation.

Indeed, Louisiana, in no smal] part, owes its unique legal

history to the influence and contribution of foreign legal

systems and attorneys. Louisiana was claimed in the

name of King Louis XIV of France in 1682 and remained

under French rule until the territory was ceded to Spain

in the Treaty of Fontainebleau in 1762.76 Thereafter,

Louisiana became a “Spanish ultramarine province,"

subject to the same laws as other Spanish possessions.?’

Pursuant to the Treaty of Ildefonso, Louisiana was

returned to France in 1800 only to be sold to the United

States in what became known as the Louisiana Purchase

of 1803.2 Thus, Louisiana law has its roots in foreign

legal systems and codes such as las Sietes Partidas of

Spain and the Napoleonic Code of France.

“6 Alain A. Levasseur. The Major Periods of Louisiana Legal History,

41 Loy. L.Rev. 585, 585, 587 (1996).

27 Raphael J. Rabalais, The Influence of Spanish Laws and Treaties on

the Jurisprudence of Louisiana: 1762-1828, 42 La. L.Rev. 1485, 1487

(1982).

** Levasseur, supra note 25, at 593, 610-11.

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Additionally, many foreign jurists contributed to

the drafting and development of Louisiana's early legal

system. For example, the Spanish Governor of Louisiana,

Don Alexander O'Reilly, issued the Ordinance and

Instructions of November 25, 1769, instituting the rule of

Spanish law in the territory and influencing substantially

the development of the Louisiana Procedural system.?9

Louis Moreau-Lislet, a French émigré, was one of the

redactors of the Louisiana Digest of 1808 as well as the

Louisiana Civil Code of 1825.*° Judah P. Benjamin, born

in the British West Indies in 1811, was one of the four

founders of Tulane University School of Law and a United

States Senator from Louisiana.*! In addition to

contributing to the formation and development of

Louisiana's legal system, Louisiana jurists and scholars

continue to rely on foreign sources, such as Aubry and

Rau and Plianiol, to interpret, particularly, the civilian

aspects of our law. Thus, this Court is conscious of and

sensitive to the historical and continuing debt Louisiana

owes to foreign legal systems and members of foreign

bars.

Though America is a nation of immigrants, our

history is replete with discriminatory acts and policies

against aliens. "Whether it is founded on economic

protectionism, xenophobia, or other motivations, aliens

frequently have been denied benefits and privileges

accorded to citizens."** Despite the significant

29 A.N. Yiannopoulos, The Civil Codes of Louisiana, in La. Civ.Code

Ann. XXXVI (West 2003).

® Id. at XXXVUI-XLIIL.

31 Suman Naresh, Judah Philip Benjamin at the English Bar, 70 Tul.

L.Rev. 2487, 2487 (1996).

#2 Erwin Chermerinsky, Constitutional Law: Principles and Policies

614 (Aspen Law & Business 1997).

- 64a -

- contribution immigrants have made and continue to make

to our society, immigrants still experience prejudice and

discrimination in the United States. The Supreme Court

first addressed this discrimination in Yick Wo v. Hopkins,

118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886),

wherein the Court found that aliens are "persons"

guaranteed equal protection of the laws under the

Fourteenth Amendment. In 1971, the Supreme Court

found that state classifications based on alienage are

inherently suspect and subject to strict scrutiny review.

Graham, 403 U.S. at 371, 91 S.Ct. 1848. The Court so

found because aliens "as a class are a prime example of a

‘discrete and insular’ minority for whom such heightened

judicial solicitude is ‘appropriate." Jd. (citing U.S. vw.

Carolene Products Co., 304 U.S. 144, 152- 53 n. 4, 58 S.Ct.

778, 82 L.Ed. 1234 (1938)). Aliens cannot vote and thus

cannot protect themselves through the normal democratic

process.*4 Therefore, laws that create classifications based

on alienage are presumptively invalid, and _ the

classification will be found to be constitutional only if the

state can demonstrate that the law is the least restrictive

means to achieve a compelling state interest. In re

Griffiths, 413 U.S. at 721-22, 93 S.Ct. 2851. Laws subject

to strict scrutiny review rarely survive attack. Bernal v.

Fainter, 467 U.S. 216, 220 n. 6, 104 S.Ct. 2312, 81

L.Ed.2d 175 (1984).

Although strict scrutiny review is the general rule .

when states create classifications based on alienage, the

“3 Indeed, the Court has recognized that even undocumented or illegal

aliens are "persons" under the Fourteenth Amendment. See Plyler v.

Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

34 See Gerald M. Rosberg, The Protection of Aliens from Discriminatory

Treatment by the National Government, 1977 Sup.Ct. Rev. 275, 308-09

(arguing that classifications based on alienage should receive strict

scrutiny due to the political powerlessness of aliens).

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Supreme Court has created two important exceptions.”

First, the Supreme Court recognizes a self-government -

exception that applies when a state creates a law

excluding aliens from participation in its democratic

political institutions. Foley v. Connelie, 435 U.S. 291, 295-

96, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978). Only rational

basis review is used under this exception. Thus, the

Supreme Court has upheld state laws that deny aliens

the right to vote and the opportunities to run for elective

office, to sit on a jury, and to participate in other

nonelective positions that contribute to the formulation,

execution, or review of public policy. /d. (internal citations

omitted). The Supreme Court declined to apply this

exception to notaries public, however, explaining that the

exception is narrow and addresses only those who

"participate directly in the formulation, execution, or

review of broad public policy, and hence perform functions

that go to the heart of representative government."

Bernal, 467 U.S. at 222, 104 S.Ct. 2312.

Second, the Supreme Court has recognized an

exception to the application of strict scrutiny in one case

concerning undocumented or illegal aliens. In Plyler, the

Supreme Court declared unconstitutional a Texas Law

that provided free public education for children of citizens

and lawfully admitted aliens, but required undocumented

aliens to pay for schooling for their children. Plyler v. Doe,

457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The

Court held that strict scrutiny was inapplicable because

35 The Court also recognizes a third exception when the discrimination

is a result of federal law. Congress has plenary power to regulate

immigration and requires judicial deference under the separation of

powers doctrine. In such cases, the Court applies rational basis review.

See Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)

(upholding federal law denying Medicaid benefits to aliens unless they

have been admitted for permanent residence and resided for at least

five years in the United States).

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illegal aliens cannot be treated as a suspect class. Id. at

223, 102 S.Ct. 2382. However, the Court applied more

than rational basis review, emphasizing the innocence of

the children involved and the importance that such

children receive an education. /d. at 241, 102 S.Ct. 2382.

Defendants argue that this Court should recognize

another exception to the general rule that strict scrutiny

applies to state classifications based on alienage. Namely,

Defendants contend that nonpermanent resident aliens,

that is to say nonimmigrant aliens, are not a suspect class

because the Supreme Court has never expressly stated

that they are.** Defendants base their argument on the

fact that the cases applying strict scrutiny to alienage

classifications involve immigrant aliens. Thus, the first

issue this Court must face is the appropriate level of

scrutiny to apply to the Rule.

In Griffiths, the Court held that a Connecticut bar

admissions rule that allowed only citizens to be admitted

to the bar was unconstitutional. In re Griffiths, 413 U.S.

at 722-23, 93 S.Ct. 2851. The Court held that the rule

unconstitutionally discriminated against "resident

aliens." Jd. Defendants argue that since the Plaintiff in

Griffiths was an immigrant alien, i.e., a permanent

resident alien, that this Court should interpret the phrase

"resident alien" used by the Supreme Court. to mean only

a permanent resident alien. This Court is not persuaded

by Defendant's argument and finds that the Supreme

36~Fhe ‘Supreme Court has not spoken directly on the issue of the

appropriate level of scrutiny to apply to nonimmigrant, resident aliens.

Lower courts have held both ways. See Leclerc, at 799-800 (applying

rational basis review); Ahmed v. Univ. of Toledo, 664 F.Supp. 282

(N.D.Ohio 1986) (applying rational basis review); Tayyari v. New

Mexico State Univ., 495 F.Supp. 1365 (D.N.M.1980) (applying strict

scrutiny).

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Court did not limit its holding to immigrant aliens, that is

to say, permanent resident aliens.

To understand the significance of the term

_"resident alien" used by the Griffiths Court, one must

begin with the Immigration and Nationality Act ("the

Act"). 8 U.S.C. § 1101, et seq. For immigration purposes,

Congress created two broad categories of resident aliens:

immigrant and nonimmigrant. Simply stated, immigrant

aliens are aliens who are granted permanent residence in

the- United States. § 1101(a}(15). Nonimmigrant aliens

are aliens who are granted temporary residence in the

United States for a number of specific reasons including

business, pleasure, and educational. § 1101(a)(15)(A-S).

The Act defines "residence" to mean "the place of general

abode; the place of general abode of a person means his

principal, actual dwelling place in fact, without regard to

intent." § 1101(a)(33). Thus, Congress distinguished

between residence and immigration status. That is, an

alien who resides in the United States may be either an

immigrant or nonimmigrant alien. Had Congress

intended that only immigrant aliens could have a

residence in the United States, Congress would have so

stated.

Though Griffiths was an immigrant alien, the

Griffiths Court did not use the statutory term

"immigrant" in its holding. In fact, the Court only briefly

mentioned the Plaintiff's immigration status in its

recitation of the facts and in a footnote. In re Griffiths,

413 U.S. at 718, n. 1, 93 S.Ct. 2851. Rather, the Court

used the inclusive term "resident alien." Had the Court

intended to rest its holding on the immigration status of

the alien, the Court would have used the statutory

language. If the Court wished to restrict its holding to

immigrant aliens, i.e., permanent resident aliens, it could

have used the term "immigrant alien." The Court did not.

Rather, in the context of its Fourteenth Amendment

analysis, the Court focused on residence, using the term

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"resident alien," which .includes both immigrant and

nonimmigrant aliens. The Court reasoned that resident

aliens are a suspect class and subject to the protections

afforded by strict scrutiny review. The Court justified its

application of strict scrutiny by noting:

Resident aliens, like citizens, pay taxes, support

the economy, serve in the Armed Forces, and contribute

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

a State bear a heavy burden when it deprives them of

employment opportunities.

Id. at 722, 93 S.Ct. 2851. Nothing in the Act or the

Court's opinion suggests that "resident alien" is limited to

an immigrant alien. On the contrary, the term "resident

alien" is broader than the Act's immigration categories

and includes both immigrant and nonimmigrant aliens

lawfully residing in the United States.*’ Additionally, the

justification for applying strict scrutiny to immigrant

resident aliens applies as forcefully to nonimmigrant

resident aliens. Like immigrant aliens, nonimmigrant

aliens “pay taxes, support the economy, serve in the

Armed Forces, and contribute in myriad other ways to our.

society." [d. This Court finds that Griffiths is controlling

and, thus, strict scrutiny is applicable. Nonimmigrant

resident aliens as a class are a "prime example of a

‘discrete and insular’ minority for whom such heightened

37 This Court acknowledges that its application of strict scrutiny in this

case is in conflict with the level of scrutiny applied in Leclerc. In

Leclerc, Judge Zainey applied rational basis review because he found

that the Supreme Court had not yet treated nonimmigrant aliens as a

suspect class. 270 F.Supp.2d at 799, 800. In his opinion, Judge Zainey

stated that the Supreme Court declined the opportunity to do so in Toll

v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982). The Toll

majority, however, decided the case on preemption grounds and did not

reach the equal protection question. Moreover, the facts surrounding

the plaintiffs' immigration status in Leclerc were different from the

present case.

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judicial solicitude is appropriate." Jd. (citing Carolene

Products, 304 U.S. at 152-53 n. 4, 58 S.Ct. 778).

Therefore, similar to Griffiths, the Defendants bear a

heavy burden when they deprive nonimmigrant resident

aliens the opportunity to be admitted to the Louisiana

bar.

To satisfy strict scrutiny review in this case,

Defendants must show that the Rule is the least

restrictive means to meet a compelling state interest.

Defendants argue that the Louisiana Supreme Court

properly promulgated and enforced the Rule pursuant to

its legitimate and appropriate interests in protecting the

public and policing attorneys. Defendants argue that a

sufficient state interest is served by excluding

nonimmigrant aliens due to the temporary and transient

nature of their residency in Louisiana. According to

Defendants, Plaintiffs' temporary residence could

potentially prejudice clients and the courts in Louisiana

because they could leave the country before completion of

a matter. The Court finds that the Rule is not calculated

to achieve this purpose. |

The Rule does not restrict membership to the bar

to citizens and immigrant aliens who plan to reside

permanently in Louisiana. Nonimmigrant aliens as a

class are not necessarily more transient than other

groups. Citizens and immigrant aliens may be admitted

to the bar even if they have no intention of residing in

Louisiana. Louisiana attorneys relocate to other states

and maintain bar membership in states where they do not

reside. Due to advances in technology, attorneys can

provide services and representation to clients from

virtually anywhere. Louisiana attorneys retire, die, and

leave the practice for a myriad of reasons. If the

Louisiana Supreme Court were concerned’ with

transience, the Rule would be calculated to address that

problem directly. However, the Rule only excludes a

fraction of persons who may have temporary residence in

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the state. The fact that the Plaintiffs must leave on a date

certain does not change the analysis. On the contrary, it

might be an advantage. Plaintiffs will be able to plan in

advance for their departure and make the necessary

arrangements to protect the interests of their chents.

The Defendants have not provided a compelling

reason for the absolute prohibition of nonimmigrant

aliens from the bar. As such, this Court finds that the

Rule as enforced by the Louisiana Supreme C_ art violates

the Equal Protection Clause of the Fourteenth

Amendment by arbitrarily discriminating against

nonimmigrant aliens who lawfully reside in the United

States.

All applicants to the bar, including nonimmigrant

aliens, must meet rigorous standards for admission.

Particularly, all applicants are screened to ensure that

they meet the requirements of good moral character and

fitness. The screening process provides adequate

protection to the public against potentially unscrupulous

and unqualified attorneys. Barring nonimmigrant aliens

does not enhance this protection. On the contrary, such a

bar could result in depriving the public of excellent legal

representation.

Thus, Plaintiffs' motion for summary judgment

declaring Louisiana Supreme Court Rule XVII, Section

3(B) in violation of the Equal Protection Clause of the

Fourteenth Amendment is GRANTED, and the Rule is

unenforceable to the extent that it bars. these

nonpermanent resident aliens from sitting for the

Louisiana Bar Examination and from membership to the

Louisiana Bar Association.**

3® Plaintiffs have also asked for an injunction as well as for attorney's

fees and costs. These matters should be dealt with in subsequent

motions and may require an evidentiary hearing before the Court.

Plaintiffs claim that the Rule also violates the Due

Process Clause of the Fourteenth Amendment. It is well

established that courts should avoid addressing

constitutional questions when possible, even those

questions that are raised by the parties. United States v.

Lipscomb, 299 F.3d 303, 359 (5th Cir.2002). As the Court

resolves Plaintiffs' claims on equal protection grounds,

the Court need not reach the Plaintiffs' due process

challenge.

The Plaintiffs' motion for summary judgment on

the due process issue is hereby DENIED AS MOOT.

Accordingly:

IT IS ORDERED that Defendants' Motion to

Dismiss should be and is hereby DENIED.

IT IS FURTHER ORDERED that Plaintiffs'

Motion for Summary Judgment is DENIED IN PART,

GRANTED IN PART, AND DENIED AS MOOT IN PART

as detailed in this Order and Reasons.

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FIFTH CIRCUIT DENIAL

OF PETITION FOR REHEARING EN BANC

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30752

KAREN LECLERC; GUILLAUME JARRY;

BEATRICE BOULORD; MAUREEN D. AFFLECK,

Plaintiffs - Appellants - Cross Appellees,

versus

DANIEL E. WEBB, ET AL..,

Defendants,

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

Respective Officia! Capacities as Chairman and Vice-

Chairman of the Louisiana Committee on Bar

Admissions; JEFFERY P. VICTORY; JEANNETTE

THERIOT KNOLL; CHET D. TRAYLOR; CATHERINE

D. KIMBALL, a/k/a Kitty Kimball; JOHN L. WEIMER;

BERNETTE JOSHUA JOHNSON, In Their Official

Capacities as Justices of the Louisiana Supreme Court,

Defendants - Appellees - Cross Appellants.

KKEKKKEKKEKEREKRKEKEKKRREEREEREREKEK KEK KEKE REE KEEEE

No. 03-31009

CAROLINE WALLACE; EMILY MAW,

Plaintiffs - Appellees,

versus

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

Chief Justice of the Louisiana Supreme Court; JEFFREY

P. VICTORY; JEANNETTE THERIOT KNOLL; CHET D.

TRAYLOR; CATHERINE D. KIMBALL; JOHN L.

WEIMER; BERNETTE J. JOHNSON, in their official

capacities as Justices of the Louisiana Supreme Court;

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

respective official capacities as Chairman and Vice-

Chairman of the Louisiana Committee on Bar

Admissions,

Defendants - Appellants.

Appeal from the United States District Court for the

Eastern District of Louisiana,

ON PETITION FOR REHEARING EN BANC

(Opinion 8/18/05, 5th Cir. 419 F.3d 405)

Before JONES, Chief Judge, and SMITH, and STEWART,

Circuit Judges.

PER CURIAM:

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Treating the Petition for Rehearing En Banc as a

Petition for Panel ~ hearing, the Petition for Panel

Rehearing is DENIE ~ ‘he court having been polled at

the request of one ot the members of the court and a

majority of the judges who are in regular active service

and who are not disqualified not having voted in favor

(FED.R. APP. P. and 5TH CIR. R. 35), the petition for

rehearing en banc is DENIED.

Patrick E. Higginbotham, Circuit Judge, joined by

KING, DAVIS, WIENER, BENAVIDES, STEWART, and

DENNIS, Circuit Judges, dissenting from the denial of

rehearing en banc.

I respectfully dissent from the Court’s refusal to

consider en banc the important issues in this case. The

panel majority rejects strict scrutiny on the basis that

these “nonimmigrant aliens,” whatever that means, are

not as “discrete and insular” as the “permanent resident

aliens” afforded suspect classification by the Supreme

Court. It reaches that result by judicially crafting a subset

of aliens, scaled by how it perceives the aliens’ proximity

to citizenship. This is a bold step not sanctioned by

Supreme Court precedent.

For decades, many have argued that it is the

classification of aliens as an insular minority that is

suspect. The criticism comes in two forms. To some, the .

unique federal interest in regulating aliens offers a

superior rationale for strict scrutiny than the aliens’

insular status. As the Supreme Court has recognized, “the

responsibility for regulating the relationship between the

United States and our alien visitors has been committed

to the political branches of the Federal government.”*?

39 Mathews v. Diaz. 426 U.S. 67, 81 (1976); Toll v. Moreno, 458 U.S. 1,

10 (1982) (holding that the Supreme Court has “long recognized the

(...continued)

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To others, the insular status of aliens exists only

as a consequence of valid federal law, making strict

scrutiny of alienage classifications never appropriate.

This contention strikes twice. First, it contends that the

alien’s limited political role cannot support their

treatment as an insular minority. This, because the very

admission of the alien is by legislation that defines his

role in the political community, subject only to

constitutional constraints upon the exercise of that

federal power. Second and relatedly, given the supreme

federal regulatory power over matters of immigration, the

status of persons admitted in conformity with federal law

is by definition not immutable. To the point, this criticism

is leveled at the claimed insular minority status of all

aliens lawfully in the country. It draws no distinction

between a particular alien’s connection to citizenship or

subsets of lawfully admitted persons. Rather, it rejects

strict scrutiny without regard to the aliens’ proximity to

citizenship, the relevant factor for discrete and insular

minority status under Carolene Products.

Resting strict scrutiny on the insular minority

status of legally admitted aliens has its weaknesses. But

none support the panel opinion and, in any event, each

has been rejected by the Supreme Court. As for the

trumping constitutional power of the federal government

in controlling the nation’s borders, including matters of

immigration and naturalization, an allocation that the

Supreme Court has pointed to as itself demanding strict

scrutiny of state regulations of persons whose presence in

the country is lawful under federal law, the panel

majority is silent—a silence made the more puzzling by

its rationale that this “category” of alien has such a

preeminent role of the Federal Government with respect to the

regulation of aliens within our borders” and collecting cases to that

effect).

limited tenure in the United States under the conditions

of federal law admitting them that their state regulation

should not be subjected to strict scrutiny. This is exactly

backwards. As the federal constraints are increased, the

regulatory field for states is decreased.*® As the federal

judiciary draws distinctions between different classes of

aliens, applying strict scrutiny to some and rational-basis

review to others, it shifts responsibility over aliens from

the Congress to the States. This is perverse. The panel

majority relaxes scrutiny of state regulation of aliens as

the federal regulation of them is increased. This is too

ambitious for me.

CARL E. STEWART, Circuit Judge, with whom

KING, HIGGINBOTHAM, WIENER, and DENNIS,

Circuit Judges, join dissenting from the denial of

rehearing en banc.

I dissent from the court’s denial of rehearing en

banc in this case involving the rights of alien law school

graduates to be admitted to practice law in the State of

Louisiana. For the reasons more fully detailed in my

dissenting opinion from the panel majority’s holding,*! I

reject the panel majority’s creation of a new classification

of “nonimmigrant aliens,” a distinction the Supreme

49 Mathews, 426 U.S. at 81; see also Graham v. Richardson, 403 U.S.

365, 378 (1971) (“[States] . . . can neither add to nor take from the

conditions lawfully imposed by Congress upon admission,

naturalization and residence of aliens in the United States .. . - State

laws which impose discriminatory burdens upon the entrance or

residence of aliens lawfully within the United States conflict with this

eonstitutionally derived federal power to regulate immigration, and

have accordingly been held invalid.” (quoting Takahashi v. Fish &

Game Comm’n, 334 U.S. 410, 417 (1948))).

4! LeClere v. Webb, 419 F.3d 405, 426-31 (Stewart, J., concurring in

part and dissenting in part).

- 77a -

Court has never drawn when discussing the alien suspect

class, and its application of rational basis review to laws

targeting this class. The matter at issue is clearly

enbancworthy because of the far reaching consequences of

the panel’s holding. I continue to maintain that the

plaintiffs in this case, who are lawfully admitted aliens

residing in the United States, are part of the alien suspect

class and that, therefore, laws that discriminate against.

them are inherently suspect and should be subjected to

strict scrutiny. Accordingly, I dissent from the full court’s

failure to vacate the panel opinion and hear the case

anew. Moreover, I fully concur in the persuasive opinion

dissenting from the denial of rehearing en banc penned by

Judge Higginbotham.

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PERTINENT CONSTITUTIONAL

AND STATUTORY PROVISIONS

U.S. Const. art. VI: This Constitution and the

Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall

be made, under the Authority of the United States, shall

be the Supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the

Constitution or the Laws of any State to the Contrary

notwithstanding.

U.S. Const. amend. XIV: No State shall ... deny

to any person within its jurisdiction the equal protection

of the laws.

8 U.S.C. § 1101(a)(3): The term “alien” means

any person not a citizen or national of the United States.

8 U.S.C. § 1101(a)(15): The term “immigrant”

means every alien except an alien who is within one of

the following classes of nonimmigrant aliens—(F)(i) an

alien having a residence in a foreign country which he

has no intention of abandoning, who is a bona fide

student qualified to pursue a full course of study and w..o

seeks to enter the United States temporarily and solely

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

an established college, university, seminary,

conservatory, academic high school, elementary school, or

other academic institution or in a language training

program in the United States ....

(H) an alien ... (i)(b) subject to section 1182(j)(2) of this

title, who is coming temporarily to the United States to

perform services ... in a specialty occupation described in

section 1184(i)(1) of this title ... who meets the

requirements for the occupation specified in section

1184(i)(2) of this title ... and with respect to whom the

Secretary of Labor determines and certifies to the

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Attorney General that the intending employer has filed

with the Secretary an application under section

1182(n)(1) of this title;

8 U.S.C. § 1101(a)(32): The term “profession”

shall include but not be limited to architects, engineers,

lawyers, physicians, surgeons, and _ teachers’. in

elementary or secondary schools, colleges, academies, or

seminaries.

8 U.S.C. § 1101(a)(33): The term “residence”

means the place of general abode; the place of general

abode of a person means his principal, actual dwelling

place in fact, without regard to intent.

8 U.S.C. § 1184(b): Every alien ... other than a

nonimmigrant described in any provision of section

1101(a)(15)(H)(i) of this title except subclause (b1) of such

section) shall be presumed to be an immigrant until he

establishes to the satisfaction of the consular officer, at

the time of application for a visa, and the immigration

officers, at the time of application for admission, that he

is entitled to a nonimmigrant status under section

1101(a)(15) of this title.

8 U.S.C. § 1184(i): (1) ... [Flor purposes of section

1101(a)(15)(H)(i)(b) of this title ... the term “specialty

occupation” means an occupation that requires-- (A)

theoretical and practical application of a body of highly

specialized knowledge, and (B) attainment of a bachelor's

or higher degree in the specific specialty (or its

equivalent) as a minimum for entry into the occupation

in the United States.

(2) For purposes of section 1101(a)(15)(H)(i)(b) of this

title, the requirements of this paragraph, with respect to

a specialty occupation, are—(A) full state licensure to

- 80a -

practice in the occupation, if such licensure is required to

practice in the occupation, (B) completion of the degree

described in paragraph (1)(B) for the occupation, or (C)(i)

experience in the specialty equivalent to the completion

of such degree, and (ii) recognition of expertise in the

specialty through progressively responsible positions

relating to the specialty ....

8 C.F.R. § 214.2(h)(4)(ii): Specialty occupation

means an occupation which requires theoretical and

practical application of a body of highly specialized

knowledge in fields of human endeavor including, but not

limited to ... law ... and which requires the attainment of

a bachelor's degree or higher in a specific specialty, or its

equivalent, as a minimum for entry into the occupation

in the United States.

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