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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1087%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

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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

- 10a-

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)).

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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

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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.

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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

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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

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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)

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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.

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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).

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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).

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1087%3A02. Public record. Not legal advice.