Appendix — Leclerc v. Webb (No. 06-11)

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Karen Leclerc; Guillaume Jarry;

Beatrice Boulord; Maureen D. Affleck,

Plaintiffs - Appellants - Cross Appellees,

Vv.

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;

Jeffrey 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.

Docket No. 03-30752

Caroline Wallace; Emily Maw,

Plaintiffs - Appellees,

Vv.

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

Docket No. 03-31009

July 29, 2005

Appeals 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 discriminates

against the plaintiffs in violation of the Equal Protection

Clause. Because the level of constitutional protection af-

forded 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) (“Section

3(B)”) requires that “[e]very applicant for admission to the

' 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.

Bar of this state shall . . . [bJe 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 “for-

eign national[] lawfully within the United States” in

re Appert, 444 So. 2d 1208 (La. 1984). In 2002, the Lowrs-

ana 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.” /*

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

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

plaintiffs — nonimmigrant aliens’ who are “not entitled to

live and work in the United States permanently” — from s#-

ting for the Louisiana Bar. Bourke, 819 So. 2d at 1022

Il. The LeClerc Plaintiffs

The LeClerc plaintiffs, Karen LeClerc, Guillame Jarry,

Beatrice Boulord, and Maureen Affleck, are nonumeragrant

aliens who hold degrees from foreign law schools and seck

leave to sit for the Louisiana Bar. LeClere and Jarry are

French citizens admitted to the United States on J-! student

visas.’ Boulord, also a French citizen, was initially admitted

> The Immigration and Nationality Act distingwishes between

immigrant and nonimmigrant ahens, negatively defirang an mum

grant alien as “every alien except an ahen who is within one of the

' following classes of nonimmigrant aliens.” 8 U.S.C. § 1 10)(a 15)

[IMMI.S PSD INA § 101]. An alien falling into one of fifteen ox.

clusionary categories is a nonimumugrant alien. a class generally

delimited by a lack of intention to abandon hus foreign country re

sidence and entry into the United States for specific and temporary

purposes.

> Title 8 U.S.C. § 1101(aX15J) [IMMLS PSD INA § 10!) ad

mits a nonimmugrant alien who

having a residence in a foreign country which he has so mtentien

of abandoning who ts a bona fide student COfunRg tempo

rarily to the United States as a participant im 4 program for

the purpose of . . . studying

to the United States on a J-1 student visa, but currently re-

mains in the United States on a H-1B temporary worker

visa.’ Affleck is a Canadian citizen initially admitted to the

United 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 ap-

ply for an equivalency determination pursuant to Louisiana

Supreme Court Rule XVII, § 6 (“Section 6”).° Before the

commencement of the LeClerc suit, Affleck applied for, and

Title 8 U.S.C. § 1101(a)(15)(H)G)(>) [IMMLS PSD INA

§ 101], admits a nonimmigrant alien who:

is coming temporarily to the United States to perform services

. In a 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. . . in a training pro-

gram that is not designed primarily to provide productive em-

ployment ....

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

quired to maintain “a temporary residence abroad which he or she

has no intention of abanduning.” Stee! on Immigration, §3:13, 3-

35. Nor is such a visa holder subject to the presumption of immi-

grant 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 ad-

mission plus three years extension) notwithstanding, inter alia, a

change in status. Steel, at 3:13, 3-73-74.

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

rivatively 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 terntories must submit an ap-

plication for the Committee for an equivalency determination

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”).’

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” and Vice-Chairman’® of

the Louisiana Committee on Bar Admissions (collectively

“defendants”) in their official capacities. The plaintiffs chal-

lenged the enforcement of Section 3(B) and sought declara-

tory 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

meetings, processes, and opinions. The defendants moved to

quash the plaintiffs’ discovery requests, asserting judicial and

legislative immunity. Finding the defendants judicially im-

mune, 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, judi-

cial and legislative immunity, and abstention grounds.

’ 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.

* Pascal F. Calogero, Jr., Jeffrey P. Victory, Jeanette T. Knoll,

Chet D. Traylor, Catherine D. Kimball, John L. Weimer, and Ber-

nette J. Johnson. The LeClerc plaintiffs did not name the Honor-

able Pascal F. Calogero, Jr., the lone dissenter in Bourke.

Daniel A. Webb.

'° Harry J. Phillips.

The district court partially granted the defendants’ motion

to dismiss, denied the plaintiffs’ motion for summary judg-

ment, and denied as moot the plaintiffs’ appeal of the magis-

trate judge’s discovery ruling.'' While rejecting the

defendants’ junsdictional arguments, the court held on the

merits that: (1) Section 3(B) is not preempted by federal

immigration for trade policy; (2) Affleck lacked standing to

assert a claim under NAFTA;"* (3) the plaintiffs failed to

state a claim for 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’ mo-

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

noticed their appeals and cross-appeals.

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

Court reviews for abuse of discretion. /n re Grand Jury Proceed-

ings, 115 F.3d 1240, 1243 (Sth Cir. 1997). Because the plaintiffs’

discovery requests border on the absurd, we find no such abuse.

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 benefici-

ary of the treaty, Affleck has no private right of action thereunder.

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.i/.R., 68 F.3d 868, 879 (Sth 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 (Sth Cir. 2004). A motion for reconsidera-

tion may not be used to rehash rejected arguments or introduce

new arguments. Westbrook, 68 F.3d at 879. In their motion, not

only did plaintiffs improperly re-argue the merits of their case,

they also impermissibly asserted, for the first time, arguments un-

der the General Agreement on Trade and Services (“GATS”), the

Dormant Commerce Clause, and the nght to travel. As such, we

find no abuse of discretion in the court's denial on the basis of

Ill. The Wallace Plaintiffs

The Wallace plaintiffs’ suit landed before a different fed-

eral 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 tempo-

rary visas. Wallace holds an H-1B temporary worker visa

and is licensed as an attorney in England and Wales. Wal-

lace is currently employed doing non-attorney legal work.

Maw was admitted to the United States pursuant to an F-]

student visa'* and remains on 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 para-

legal.

Before filing suit, Wallace applied for an equivalency ce-

termination, 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 de-

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.

'* Title 8 U.S.C. § 1101(a)(15)(F) [IMMLS PSD INA § 101], ad-

mits 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 States temporar-

ily and solely for the purpose of pursuing such a course of study

At oral argument, counsel represented that Maw is now an

H-1B visa holder.

nied her application for lack of Section 3(B) qualification.'®

Neither plaintiff appealed her denial to the Louisiana Su-

preme Court pursuant to Rule 9.

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

fendants, which is parallel in all relevant respects to the Le-

Clerc 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 dif-

ferent 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 Section 3(B) is not the least re-

strictive means to achieve the state’s asserted compelling in-

terests, 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 oth-

erwise noted, the LeClerc and Wallace plaintiffs.

STANDARD OF REVIEW

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

tion 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 sum-

mary judgment) dispositions, applying the same standards as

'® Sometime after this suit commenced, Maw took and passed the

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

the outcome of this case.

the district court. Bombardier Aerospace v. Ferrer, Poirot &

Wansbrough, P.C., 354 F.3d 348, 352 (Sth 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 pur-

Suant to precedent and the Federal Courts Improvement Act

of 1996 (“FCIA”), 42 U.S.C. § 1983."

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 suf-

fered 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 pur-

suing an action to dispute it. Ellison v. Connor, 153 F.3d

247, 254-55 (Sth 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.3d 1222 (Sth Cir. 1993)). The ripeness doctrine coun-

sels against “premature” adjudication by distinguishing mat-

ters 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

7 ee a ee ;

'’ Because federal jurisdiction cannot be waived or assumed,

Rohm & Hass Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d

205, 207 (Sth Cir. 1994), we address the defendants’ jurisdictional

arguments briefly even though they appeared to abandon these ju-

risdictional contentions at oral argument. See United Transp. Un-

ion v. Foster, 205 F.3d 851, 857 (Sth Cir. 2000) (discussing the

Court’s obligation to independently examine its jurisdiction de-

spite party concessions).

10a

of an actual “case” or “controversy.” /d. A pre-enforcement

action “is generally ‘pe if any remaining questions are

purely legal. . . [andj further factual development” is not re-

quired for effective judicial review. Jd.

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 mpe-

ness doctrine would have required each plaintiff to file a Sec-

tion 9 appeal of his or her equivalency denial or rejection

prior to filing suit. All but two plaintiffs, Affleck and Wal-

lace, 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 admission of non-

immigrant 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 ex-

perienced different outcomes. The non-conforming plain-

tiffs’ submission would have been a futility for standing

purposes.'* Likewise, the plaintiffs’ failure to avail them-

selves of Section 9 is excused because the aforementioned

facts undermine the utility of further factual development,

leaving only pure legal questions for adjudication. The plain-

tiffs 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

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

the Louisiana Bar - complicates this issue, the totality of the plain-

tiffs’ experiences weigh in favor of a futility finding.

lla

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. Con-

sumers 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 in-

junctive relief for suits against a judicial defendant acting in

his “judicial capacity.”'” Thus, to the extent that the plain-

tiffs seek declaratory and injunctive relief against the en-

forcement of Section 3(B) 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 Amend-

ment,’” 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 Jn re Griffiths,’' nonimmigrant aliens are a

'' 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 re-

lief 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 If] § 309(c), 110 Stat. 3853).

2° Only the LeClerc plaintiffs assert a Due Process violation on

appeal.

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

12a

suspect class and state laws affecting them are subject to

strict scrutiny; (2) in the alternative, nonimmigrant aliens are

a quasi-suspect class and states laws affecting them are sub-

ject to imtermediate 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 these three tests.

Despite some ambiguity in Supreme Court precedent, we

conclude that because Section 3(B) affects only nonimmi-

grant aliens, it is subject to rational basis review.

To begin, nonimmigrant aliens are not a suspect class un-

der Griffiths. The plaintiff in Griffiths was a permanent resi-

dent alien, who, but for a Connecticut law that conditioned

bar admission on United States citizenship, would have been

eligible to sit for the Connecticut bar exam. 413 U.S. at 718,

93 S. Ct. at 2853. The instant plaintiffs, however, are non-

immigrant aliens. The distinction, far from being a “consti-

tutional irrelevancy,”~ is paramount.” Section 3(B) only

affects nonimmigrant aliens who are “not entitled to hve 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, 93 S. Ct. at 2853. It

2 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 uwrelevancy,’ and therefore declined to review

with strict scrutiny classifications affecting undocumented

aliens”).

* See generally, David A. Martin, Graduated Application of Con-

stitutiona! Protections for Aliens: The Real Meaning of Zadvydas

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

107 (“. .. I believe that the categorical approach still holds up and

justifies a major distinction between LPRs [lawful permanent resi-

dents] and other aliens for constitutional purposes.”).

13a

was this “wholesale ban” of aliens from the Connecticut Bar

that the Supreme Court found constitutionally infirm. /d. at

725 93 U.S. 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 Cowrt has reviewed with strict

scrutiny only state laws affecting permanent resident aliens.

As the highest level of Equal Protection analysis, strict scru-

tiny is employed when a governmental body creates a classi-

fication that burdens a fundamental right’* or targets a

suspect class. Regents of University of 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 limita-

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

291, 294, 98 S. Ct. 1067, 1070 (1978) (internal citation omit-

ted).

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, 1951 (1971)

(applying “strict judicial scrutiny” and striking state laws that

denied “resident aliens” disability benefits).”” The Court has

** The practice of law is not a fundamental right assert able by the

plaintiffs, discussed infra.

See also Griffiths, supra (applying “close judicial! scrutiny”);

Exam. Bd. Eng'rs v. De Otero, 426 U.S. 572, 602, 96S. Ct. 2264,

2281 (applying “strict judicial scrutiny” and striking a law of

Puerto Rico that prevented “resident aliens” from obtaining engi-

neering licenses); Nyquist v. Mauclet, 432 U.S. 1, 7, 97 S. Ct.

2120, 2124 (1977) (applying “close judicial scrutiny” and striking

l4a

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 analy-

sis, see Toll v. Moreno, 458 U.S. 1, 102 S. Ct. 2977 (1982)

(non immigrant G-4 aliens); DeCanas v. Bica, 424 U.S. 351,

96 S. Ct. 933 (1976) (illegal aliens),”° or has applied a modi-

fied rational basis review, see Plyler v. Doe, 457 U.S. 202,

102 S. Ct. 2382 (1982) (children of illegal aliens). In the lat-

ter case, Plyler, the Court employed 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 sub-

a state law that prevented “permanent resident aliens” from receiv-

ing state financial assistance for higher education). These cases,

especially Graham, follow from the Court’s 1948 decision in Ta-

kahashi 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 fish-

ing licenses as inconsistent with Congressional determination to

admit such aliens without burden or restriction. 334 U.S. 410, 419,

68 S. Ct. 1138, 1142 (1948).

*° 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 Jol/ 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 em-

ploy Equal Protection analysis.

15a

stantial 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 af-

fected class of aliens precluded use of either intermediate or

strict scrutiny review.**

The development of this jurisprudence is consistent with

the Court’s fundamental rationale for applying strict scrutiny

review exclusively to resident aliens: “{T]he state laws at

issue in Graham, Nyquist, de Otero, and Griffiths warranted

close judicial scrutiny because they took position[s] seem-

ingly 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

” 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”).

8 In determining that proper .evel of review to apply in that case,

the Court stated:

Undocumented aliens cannot be treated as a suspect class be-

cause their presence in this country in violation of federal law is

not a “constitutional irrelevancy.” Nor is education a fundamen-

tal right; a State need not justify by compelling necessity every

variation in the manner in which education 1s provided to its

population.

Piyer, 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).

l6a

virtual citizens; and (2) the similarity of resident aliens and

citizens.

Given the extent to which resident aliens are legally en-

trenched in American society, thew 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)).*° Characterizing resident aliens as a Carolene Prod-

ucts minority reconciles the breadth of rights and responsi-

bilities 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 per-

manent residence or ties here — need not be accorded the

extraordinary protection of strict scrutiny by virtue of their

*? See also Graham, 403 U.S. at 373, 91 S. Ct. at 1852; Griffiths,

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

S. 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 de-

ciding whether or not to add new types of classifications to the list

of ‘suspect’ categories or whether a particular classification sur-

vives close examination”).

* ‘In Foley, the Court stated that:

beginning with a case which involved the denial of welfare assis-

tance essential to life itself, the Court has treated certain restric-

tions on aliens with “heightened judicial solicitude,” Graham v.

Richardson, 403 U.S. 365, 372 91 S. Ct. 1847, 1852 (1971), a

treatment deemed necessary since aliens — pending their eligibil-

ity for citizenship — have no direct voice in the political proc-

esses. 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, 98 S. Ct. at 1070 (citation marks edited).

17a

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 thee

lack of legal capacity, unlike that of imeugrant ahens, « ted

to their temporary connection to this country. Moreover, the

numerous variations among nonimmugrant abens’ adeusmon

status make it inaccurate to describe them es « class that «

“discrete” or “insular.” Nonimmigrant aliens, im short, do

not warrant Carolene Products status.

The Court's treatment of resident aliens also rests upon

pragmatic recognition that resident abens are semelarly ote

ated to citizens in ther economuc, social and civic (a6 op

posed to political) conditions In Griffiths, the Court

observed:

*" Cf, Lea Brilmayer, Carolene, Conflict: and the Face of the “le

sider-Outsider.” 134 U. Pa. L. Rew. 129) (1986)

* See e.g. 8 U.S. C. § 1324(b) (prohibiting “unfair enemgrater-

related employment practice“)

* The Court makes this very point im Toll, stating that

We noted that as to some categones of soaummugrant alene [B.

F, and H visa holders), Congress had expressly conditioned a¢-

mussion . . . OM an intent not to abandon a foragn ceudence oF.

by implication, on an intent not to seek Gomucile @ Ge United

States .... With respect to G-4 sonwmrmgrant ahens. however,

we concluded that Congress had dehberately dechned tw empure

restrictions on imtent. thereby permutting them te adepr te

Unaed States as they dormerle

458 U.S. at 7. 2.8, 102 S. Ct at 2980, a 8 (eterna! marke aed ce

tions omutted)

* The Court has expressly dechned to extend pobmcally-crened

mghts and opportunities to ahens See Foley. 495 US 29). HS

Ct. 1067 (applying rational bass rewew and upholding + cate law

that conditioned employment as 4 tate Fooper on cicensinp be

18a

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 ap-

propriate that a State bear a heavy burden when it

deprives them of employment opportunities.

Griffiths, 413 at 722, 93 S. Ct. at 2855.” Like citizens, resi-

dent aliens may not be deported, are entitled to reside perma-

nently in the United States,*® may serve, voluntarily or by

cause the law implicated rights of governance); Cabell v. Chavez-

Salido, 454 U.S. 432, 444-47, 102 S. Ct. 735, 742-44 (1982) (ap-

plying “lower level scrutiny” and extending Foley to uphold a state

law conditioning employment as a probation officer on citizen-

ship).

** 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 pub-

lic interest’ in tax revenues to which aliens have contributed on an

equal basis with the residents of a state”); Mathews v. Diaz, 426

U.S. 67, 83, 96 S. Ct. 1883, 1893, 48 L.Ed.2d 478 (1976) (“‘citi-

zens 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 urfairness in allowing resident aliens an equal right to partici-

pate in programs to which they contribute on an equal basis.”).

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.

19a

conscription, in the military,’’ are entitied to state aid bene-

fits,’* 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 that they have “no intention of

abandoning” their countries of ongin and do not intend to

seek permanent residence in the United States.“ They are

admitted, remain, and must depart at the discretion of the At-

torney General.” Plaintiffs acknowledge that nonimmigrant

*” Title 10 U.S.C. § 3253 provides that:

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

ment 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).

* Graham, 493 U.S. at 371, 91 S. Ct. at 1851; Nyquist, 432 U.S.

at 12,97 S. Ct. at 2127.

? 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 (I1.R.S.).

“” 8 CF.R. § 214.2(f)(5)(1) provides that:

[dJuration of status is defined as the time during which an F-1

student is pursuing a full course of study at an educational in-

stitution. ...

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

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

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

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

who was admitted as a nommmigrant and who has failed to

maintain the nonimmigrant status in which the alien was ad-

mitted or to which it was changed under section 1258 of this

20a

aliens may not serve in the U.S. military,”’ are subject to

strict employment restrictions,” incur differential tax treat-

ment*° and may be denied federal welfare benefits.“° Finally,

title, or to comply with the conditions of any such status, 1s

deportable.

Pursuant to 8 C.F. R. § 243.1(a)(3):

At the time of admission or extension of stay, every nonimmi-

grant alien must also agree to depart the United States at the ex-

piration of his or her authorized period of admission or extension

of stay, or upon abandonment of his or her authorised nonimmi-

grant status.

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

torney General's discretion pertains to various nonimmigrant alien

categories).

” 10 U.S.C. § 3253.

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

in productive employment without authorization); 8 C.F.R.

§ 214.2(f) (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 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 resi-

dent aliens and citizens, “Nonresident aliens are tax only on their

income from sources within the United States and on certain in-

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

United States.” IRS PUB. 519, 2003 WL 23305933 (I.R.S.).

“ Mathews, 426 U.S. at 83, 96 S.Ct. at 1893. See 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

2la

the Supreme Court has yet expressly to bestow equal protec-

tion status on nonimmigrant aliens.

Based on the aggregate factual] and legal distinctions be-

tween 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 propo-

sition that nonimmigrant aliens are a suspect class entitled to

have state legislative classifications concerning them sub-

jected to strict scrutiny. We declined 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 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 sub-

ject to intermediate scrutiny. The decision in United States v.

Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996), which rein-

forced caselaw that treats gender as a “quasi-suspect classifi-

cation,” furnishes no authority for the application of

intermediate Equal Protection analysis to alienage classifica-

tions. 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 cvaluating state law classifica-

tions affecting nonimmigrant aliens. Here, caselaw has dis-

tinguished between traditional rational basis review and

FOR FISCAL YEAR 2005, PL 108-375, October 28, 2004, 118 STAT

1811).

*” Toll, 458 U.S. at 9-10, 102 S. Ct. at 2982 (refusing to reach

equa! protection argument). Plyler is not to the contrary, as it in-

volved the special class of alien children, who were not responsi-

ble for their immigration status, and the provision of education.

22a

heightened rational basis review. But, the latter standard ap-

pears solely in Plyler, which, as noted, is a far different case

from the case at bar. There, after declaring that undocu-

mented 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 ra-

tional basis review. Jd. Thus, the Court elevated the rational

basis tests and inquired whether the Texas law “furthered

some substantial goal of the state.” /d. 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 “differ-

ent” and what is “the same” resides in the legisla-

tures of the States. A legislature must have

substantial latitude to establish classifications that

roughly approximate the nature of the problem per-

ceived, 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 assur-

ance 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 — con-

servation of budget resources and deterrence of illega! immi-

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.

23a

gration — 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. Jd. at 220, 102 S. Ct. at 2396.”

These plaintiffs who would be Louisiana lawyers find no

support in Plyler. As nonimmigrant aliens, they entered this

country voluntarily and with an understanding of their lim-

ited, temporary status. They face no hurdle as debilitating as

denial of primary and secondary education. That, under Sec-

tion 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.

Under traditional! rational basis analysis, a state law clas-

sification that “neither burdens a fundamental! right nor tar-

gets 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 pol-

icy 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 classifi-

cation bears a rational relationship to legitimate state mterests

— Louisiana’ substantial interest in 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 con-

tinuity and accountability in legal representation. The Bar’s

*’ The Court’s invalidation of the Texas law further rested upon a

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

gressional policy. /d. at 224-25, 102 S. Ct. at 2399.

24a

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 determina-

tion 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 tran-

sience of nonimmigrant aliens, Section 3(B) irrationally fails

to dea! 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 jurisdic-

tion (and many actually do leave), such concerns are distinct

from the special quandary arising from the federally pre-

scribed transience of nonimmigrant aliens. The problem per-

ceived 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 immigrant alien practitioner who leaves Louisiana.

State reciprocity and interstate bar agreements would allow

the Louisiana Bar to pursue an attorney who relocates do-

mestically, but there is no doctrine of international reciproc-

ity 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 citi-

zens and immigrant aliens) may not establish domicile in the

United States and will usually have limited assets here, Lou-

isiana courts would have questionable ability to exercise ju-

risdiction 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 un-

25a

derinclusive 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) recog-

nizes that the inherent terms 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 func-

tions. As such, Section 3(B) is a proper exercise of Louisi-

ana’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 Lou-

isiana Bar, to extend their stays in this country. The plain-

tiffs’ 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.

*° tn concluding that the Bar Committee in Griffiths failed to es-

tablish 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, law-

yers 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 con-

cern that the temporary status of student and H-1B temporary

worker visa holders might frustrate its ability to carry out these

functions is legitimate.

26a

The plaintiffs also generally criticize Section 3(B) as

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

sored by an employer, who in a case of malfeasance, may be

ethically responsible for the attorney’s misdeeds) and impre-

cise 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 “[i}n the ordinary

case, a law will be sustained if it can be said to advance a le-

gitimate 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 unde-

sirable 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 legiti-

mate end. Romer, 517 U.S. at 632, 116 S. Ct. at 1627. Sec-

tion 3(B) is, at the least, “roughly 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 sur-

vives rational basis review.

2. Due Process

The LeClerc plaintiffs assert procedural due process chal-

lenges to Section 3(B). As aliens, they are “‘persons’ guar-

anteed due process of law by the Fifth and Fourteenth

Amendments.” Plyler, 457 U.S. at 210, 102 S. Ct. at 2391

(citations omitted).°' Procedural due process entitles a per-

son to a hearing before being deprived of an interest pro-

The Privileges and Immunities Clause protects only citizens.

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

27a

tected 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 appl[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 States Bd. of Tax Appeals, 270 U.S. 117, 123, 46 S.

Ct. 215, 218 (1926); See also Myrick v. City of Dallas, 810

F.2d 1382, 1388 (Sth 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 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 Immi-

gration 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 govern-

* The LeClerc plaintiffs further contend that NAFTA and GATS,

which they argue are intended to liberalize United States licensing

and certification requirements, evince congressional intent to pre-

empt restrictive state licensing schemes. The LeClerc plaintiffs’

arguments concerning NAFTA and GATS are, respectively, inap-

posite and unpreserved.

28a

ment, did not deprive the states of all power to legislate re-

garding aliens.°’ Jd. Nevertheless, ostensibly harmonious

State regulation may run afoul of the Supremacy Clause if it,

in effect, interferes with the goals of federal policy. /d. 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.” /d. at 356, 96 S. Ct. at 937 (internal citation

omitted).

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

. . . policy powers” to regulate employment within its bor-

ders. 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.” /d. at 356-57, 96 S. Ct. at

937.

Further, as a state regulation dealing with the employ-

ment of nonimmigrant aliens, Section 3(B) is not facially

preempted by the INA. The Supreme Court has acknowl-

® See Plyler, 457 US. 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, 96S. Ct. 933).

* Contrary to the plaintiffs’ contentions, the status of bar admis-

sion 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

edged that “there is no indication that Congress intended to

preclude state law in the area of [alien] employment regula-

tion.” Jd. at 358, 362, 96 S. Ct. at 937-38, 940. Thus, the

field of alien employment tolerates harmonious state regula-

tion.

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 Toll, 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 domi-

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

“state regulation not congressionally sanctioned that dis-

criminates against aliens lawfully admitted to the country is

impermissible if it imposes additional burdens not contem-

plated 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 12-13, 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 To// is distinguishable from the instant

case fur two reasons. First, Section 3(B) raises the situation

contemplated, but not addressed, in 7o// — 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 Sec-

tion 3(B) prevents.

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

nonimmigrant aliens is itself heterogeneous, and the distinc-

tions among them are relevant for preemption purposes. Toll

specifically distinguished between G-4 nonimmigrant aliens

30a

— upon whom Congress expressly declined to impose dom-

cile 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.

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

mity 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-! 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 matricula-

tion-related employment, e.g., internships and work-study

programs, requires their departure at the expiration of their

*S As the Court stated in Toll:

[T]he nonimmigrant classification is by no means homogenous

For example, Congress expressly conditioned admission

for some purposes on an intent not to abandon a foreign resi-

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

United States .... [A] nonimmigrant student is defined as “an

alien having a residence in a foreign country which he has no in-

tention of abandoning ... and who seeks to enter the United

States temporarily and solely for ... study ....” §

101(ayIS)(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 non-

immigrant class. In particular, no restrictions on a nonimm-

grant’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 . .

Elkins v. Moreno, 435 U.S. 647, 665, 98 S. Ct. 1338, 1349 (em-

phasis added). See also Joll, 458 U.S. at 7, n.8, 102 S. Ct. at 2980,

n. 8 (citing Elkins, 435 at 665, 98 S. Ct. at 1349 and 8 U.S.C

§§ 1101(a)15)(B), (F), (H)).

Sle

Status. and protubes them fom extabhaiung domes @ Me

Unaed States.

Nor does Section 4B). contrary to plamef contentions,

prevent them fom complyng with H-18 semememgrant vice

requrements H-!B status requees the semememgrant appl

cam to qualify for a temporary worker wae by presenting

documentation of a state profexssona! heense. « Secheler ¢

or hugher. degree m the profesmos. am equivalent Senge de

gree; or equivalent foregn experence § CFR § 214 2D

H-1B's four comphance measures are Gapanetive. te: pretee

sional hcensmg option « permuaeve. set mandatory Wihie

Section B) permuts one of these alternatives, © Gees aur

prevent an H-1B waa holder whe eatinfies at uct one of He

other comphance method: fom citamng employment

within the broad field encompassed by the pracher of lew

Morcover, Section WA) « commatent wah an HIB vue pee

vision that contemplate: som-leened employment ™ Ac

demonstrated, Sechon (B) « @ accord, scatter an conflien,

wth federal regulanon of shen employment

The plamtsff: finally argue that the [NA unpihedly pre

empts Section WB) because © “Wtande ac af obstacle @ Me

acompinAment asd evecuter of the fall purpexe ane oes

tives of Congresa.” DvCanas. 44 US @ 6). 8S Ch @

940. We diagree As the Court made clear @ DeCanae, Ge

wmteriection of state and federal law does ger seceraer ly

* SCER § 214 20h) prowedes hae

Dunes without Demure Gt cara eC Up AROS when gener

aly reqeee heemsere, @ Cate may lew of ee ©

fall) prachee (he ccc uPROEN UNUET Ne mperemon of leeneeed

semeor GF tapervinery perenne! @ Gat Geugetiem Tf quel

carer he Dreetor val) oermne he aerare of Ge Dumee and

the leve! at whet dey ere performed [Foote feete dbememernee

that te aber under caper yen could Ball) perform Be Aeneas

of *Re Oe Cupamon, Pts laeeicanen apy Se ghened.

32a

quire 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 fed-

eral law. Jd. at 361, 96 S. Ct. at 939. Similarly, while Sec-

tion 3(B) prohibits Bar admission of nonimmigrant aliens

even though the INA permits H-1B visa holders to seek pro-

fessional licensing, the provision is “peripheral” to intersect-

ing federal law which does not itself mandate domestic

professional licensing.

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

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 pro-

tect Louisiana residents seeking legal representation and af-

fects a class of persons whom Congress has expressly

prohibited from living or working permanently in the United

States. See id. a. 363, 96 S. Ct. at 940 (explaining that al-

though federal law predominates in the field of immigration,

there is minimal federal interest in state laws crafted to ad-

dress 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 v.

Webb, 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.

33a

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 pre-

empted by federal immigration or trade policy; (2) the defen-

dants’ 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, | respectfully

dissent from the majority’s conclusion that the plaintiffs’

Equal Protection claim should be dismissed.

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 v. Richardson held that “classifi-

cations based on alienage, like those based on nationality or

race, are inherently suspect and subject to close judicial scru-

tiny. Aliens as a class are a prime example of a ‘discrete and

insular’ minority for whom such heightened judicial solici-

tude 1s appropniate.” 403 U.S. 365, 372 (1971) (internal cita-

tion omitted); see also Applications of Griffiths, 413 US.

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 re-

garding matters related to the democratic process. /d. (“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 gov-

ernment. Since decisions in these matters may implicate our

34a

relations with foreign powers . . . such decisions are fre-

quently of a character more appropriate to either the Legisla-

ture or the Executive branches than to the Judiciary.”). In all

other circumstances, the Supreme Court has applied strict

scrutiny to classifications based on alienage. Alienage is de-

fined 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 sus-

pect class in the absence of a black letter holding by the U.S.

Supreme Court to that effect. I disagree with the majority’s

reservations because the Supreme Court’s statement that

“alienage is a suspect class” by definition includes nonimmi-

grant 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 ex-

clusion [of all] aliens from the practice of law’ in Connecti-

cut.” Proposed Op. at 415. 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. /d. Section 3(B)

only allows citizens and resident aliens to apply for admis-

sion to the Louisiana state bar. Jn 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 al] 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 inter-

changeably. The majority uses the term resident aliens in

referring to the suspect class first created in Graham v.

35a

Richardson. \n 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, ef

seq. 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, IM-

MIGRATION LAW AND PROCEDURES § 5-1 — 6-1 (4th ed.

1998). These two broad categories are each further divided

into specific types of visas. /d. In INA, there is no definition

of resident alien, only a definition of residence as referring

“only to the place of general abode without regard to mten-

tion.”’ See 8 U.S.C. § 1101(a)(33). Thus, residence and

immigration status should be understood as two separate dis-

tinctions; 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 catego-

ries 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 I the Su-

preme Court’s jurisprudence, as simply indicating that the

' 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 grecn card test,

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

you are a resident under tax law. /d. at § 7701(b)(1)(A,(i). The

other is the substantial presence test. Under the substantial pres-

ence test you will be considered a U.S. resident if you were physi-

cally 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 in-

cludes the current year and two previous years immediately before

it. Jd. at § 7701(b)(3). Considering H-1B visa holders, for exam-

ple, 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

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 au-

thor of the majority opinion in Graham, used the term “non-

resident alien” to refer to plaintiff Ernst Mandel, a Belgian

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

The Court has not distinguished between immigrant

aliens or nonimmigrants when discussing the alienage sus-

pect class even though the Court has had before it cases

which involved extensive review of the Immigration and

Naturalization Act and its various classifications for admitted

aliens; the Court was not ignorant of the terminology associ-

ated 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 wonresident

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 com-

muters qualify as immigrant aliens rather than as nonimmi-

grant 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 @lpintiffs who were permanent resident aliens.”

Howev /) not persuaded that based on this fact alone,

the Cewr strict scrutiny analysis should be restricted to

laws tw eriminate against permanent resident aliens.

Again, . \upreme Court has not explicitly emphasized the

alien plaintiffs’ permanent resident status in discussing the

It should be noted that in some of the Supreme Court’s opin-

ions, the exact nature of the plaintiff's immigration status is un-

clear or not discussed. See e.g., Takahashi v. Fish & Game

Comm'n, 334 U.S. 410 (1948).

37a

alien suspect class. As the majority opinion observes, non-

immigrant 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 De Canas 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 ra-

tional basis review to the aliens in Plyler, as the majority

notes, Plyler “is a far different case from the case at bar.”

Proposed Op. at 420. Plyler involved illegal aliens. In refus-

ing to grant suspect classification to illegal aliens, the Court

focused on their undocumented and unlawful status. Plyler,

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

trast, are lawfully admitted aliens. The Court’s opinions

have applied strict scrutiny review when the plaintiffs at is-

sue 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

contribute in myriad other ways to our society. It is appro-

priate that a State bear a heavy burden when it deprives them

of employment opportunities.” 413 U.S. at 722. Nonimmi-

grant aliens do pay taxes, support the economy and contrib-

ute m other ways to ow society. See n.l, supra.

Nonetheless, I am not persuaded that an alien’s ability to

serve in the Armed Forces or pay taxes is the primary ration-

ale for affording suspect class designation to aliens; after all

aliens were afforded suspect class designation before Grif-

fiths. See Graham, 403 U.S. 365. Instead, the basis for

aliens’ class designation seems to be premised on aliens’ in-

ability to vote, and thus their impotence im the political proc-

ess, and the long history of invidious discrimination against

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

38a

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

TIONAL 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 “tran-

sient” status of nonimmigrant aliens. However, the majority

is unable to avoid the Supreme Court’s ruling in Toll v. Mo-

reno, 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 vigor-

ously asserts that G-4 nonimmigrant aliens are distinct from

the nonimmigrant aliens here because the aliens here are

“transient nonimmigrant aliens,” a new alienage classifica-

tion crafted by the majoriiy’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 nonimmi-

grant 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 argu-

ment as a whole must fail.

The majority states that “nonimmigrant aliens — who or-

dinarily stipulated before entry to this country that they have

no intention of abandoning their citizenship, and who enter

with no enforceable claim to establishing permanent resi-

dence or ties here — need not be accorded the extraordinary

protection of strict scrutiny by virtue of their alien status

alone.” Proposed Op. at 417. But, not all nonimmigrant

aliens are required to keep a permanent residence abroad and

are not all wed to intend to stay in the United States. Be-

sides, G-4 nonimmigrant aliens, the Immigration Act of 1990

states that H-] 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

39a

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 nonimmi-

grant aliens who are required to keep a permanent residence

in their foreign country to both express a short term intent to

remain in the United States temporarily (so as to not contra-

vene the requirements of the visa under which they entered)

and a long term intent to remain in the United States perma-

nently (so that they may apply for adjustment of status).

Matter of Hosseinpour, 15 1&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 na-

tionals 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 op-

posite. | 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 classifi-

cation.

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 de-

fendants must show that nonimmigrant aliens pose some spe-

cial 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 re-

tarded 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

40a

city in a way that other permitted uses such as boarding

houses and hospitals would not. Because in our view the re-

cord does not reveal any rational basis for believing that the

Featherston home would pose any special threat to 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 es-

sence 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 defen-

dants assert that unlike citizens and immigrant aliens, non-

immigrant 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 nonim-

migrant aliens are not able to establish domicile and, there-

fore, 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 consti-

tutional right to travel. Califano v. Gautier Torres, 435 U.S.

1 (1978). Although the Louisiana state bar may have recip-

rocity with other states, citizens could leave the country and

establish residency abroad, and as the majority states, Louisi-

ana 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 Lomisiana clients because non-

immigrant 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 re-

quirement that bar applicants, or bar members, be Louisiana

4la

residents or spend any time in 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. More-

over, it may be possible for nonimmigrant aliens to be domi-

ciled 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 ad-

mitted 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 rep-

resentation to clients from virtually anywhere. Lou-

isiana 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 di-

rectly. 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. On the

contrary, it might be an advantage. Plaintiffs will be

able to plan in advance for their departure and make

the necessary arrangements to protect the interests

of their clients.

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

In my view, the Louisiana rule does not pass constitu-

tional muster under even the exceedingly permissive rational

basis standard of review. The Rule at issue is purported to be

42a

a prophylactic remedy to insulate potential clients from law-

yers 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

Sstate’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

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

Karen Leclerc, et al.

vv.

Daniel A. Webb, et al.

Docket No. Civ. A. 03-664

July 2, 2003

ORDER AND REASONS

ZAINEY, District Judge.

Before the Court are Defendants’ Motion to Dismiss

filed by Justices Jeffrey P. Victory, Jeannette Theriot Knoll,

Chet D. Traylor, Catherine D. “Kitty” Kimball, John L.

Weimer, Bernette Joshua Johnson, in their official capacities

as Justices as of the Supreme Court of Louisiana and Daniel

A. Webb and Harry J. Phillips, Jr., in their official capacities

as Chairman and Vice-Chairman of the Louisiana Committee

on Bar Admissions, Plaintiffs’ Appeal of the Order of the

Magistrate Judge Granting a Protective Order and Staying

All Discovery and Plaintiffs’ Motion for Summary Judg-

ment filed by Karen Leclerc, Guillaume Jarry, Beatrice Bou-

lord, and Maureen Affleck.

Plaintiffs are non-immigrant aliens’ residing in the

United States pursuant to temporary visas. Plaintiffs have

brought this suit challenging Louisiana Supreme Court Rule

The terms non-resident alien and non-immigrant alien are used

interchangeably throughout this opinion. Likewise, the terms resi-

dent alien and immigrant alien are also used interchangeably.

d4a

XVII, Section 3(B) which requires that every applicant to the

Louisiana bar be a citizen or resident alien of the United

States. They allege that Rule XVII, as currently imterpreted

by the Louisiana Supreme Court, is unconstitutional and/or

preempted by federal law. Plaintiffs seek declaratory and

injunctive relief as well as an award of costs and attorney's

fees. Defendants have moved to dismiss all claims arguing

inter alia that the suit is barred by the Eleventh Amendment

as well as the doctrine of judicial and legislative immunity.

Defendants also argue that Plaintiffs fai] to state a claim for

relief under federal law.

I. Factual Background

Plaintiffs currently reside in the United States under tem-

porary visas which provide a date certain when they must

leave the United States. Leclerc, Jarry and Boulord are

French citizens admitted to the United States pursuant to J-!

visas. Affleck is a Canadian citizen admitted to the United

States pursuant to an L-2 visa. All plaintiffs are graduates of

foreign law schools. Plaintiffs desire to submit applications

to sit for the July 2003 bar examination and believe them-

selves to be qualified but for their status as non-resident

aliens.

Supreme Court Rule XVII Section 3(B) requires that every ap-

plicant for admission to the Louisiana Bar “[bje a citizen of the

United States or a resident alien thereof.” La S.Ct R. XVII.

§ 3(B) (emphasis added). The Louisiana Supreme Court had pre-

viously interpreted the term “resident alren™ to include foreign na-

tionals lawfully living within the United States. See eg. Jn re

Appert, 444 So.2d 1208 (La. 1984), overruled by Jn re Bowrke, 819

So.2d 1020 (La. 2002). However, in 2002, the court held that the

term “resident alien” applies to aliens who have been granted per-

manent resident status in the United States as opposed to those

who are merely residing im the country on a temporary bass

Bourke, 819 So.2d at 1022. The court expressly overruled any

prior decisions to the contrary. /d

equivalency determunation would aor be forthe omg Swe mune

Affleck was sether ¢ US Citwen sor coectent alem ee

Doc § Extubt @ Affleck Gi set penton Ge Loweune te

preme Court for a rewew of that deme garment © Seohen ?

of Rule XVIL* Whew the aut wae Gled Leolers, Bere and

Rouloed had aoe vet apphed for spay sieme | deterrmanateer

Aldough unre) under the Ll oumsene sales | oe ler lar +

and Bowlord sutrutted egurveieney apie saben: ster Cetin

' Lenaename ¢ Bar adinuesion eae growsiter

As apphcant whe Res graced Pom + aw alee) fet © or oe

sated mm he Comte Sase@e oF be er mtUR eS mac! aufero sgl

i a ec

APRG rion cfaal! Beem sededbioeon Gail onthe serie etter mgpeerome

By thus male

La SCe R RVE § GA)

"The pertnene cones of Sermon ? of Baie EV © keeteed o sete”

fra

hart) Dd sttempt co gehnon he Lomas Tapreme mee te

Permecen wo aes he Ber eee Baewevar fe thd a: wrtlienee

complemen amy of he come cape oc apply Te sditnemen

Cough he | ommarattoe he mart theratiers eyed tes peti tteoee,

ae premetuce fe oe Myon Ob Se HET hg BD)

(La leere Dae) aud Benalered slime thet fey arene eve seen

“attiase Boyar Veromune Wirt amd atin Wigan Boye

Vary and Vio gnen cape ead le cor ele sar catiine —— dberrriremes cee

Sut fer spphcanenm wv ot fe the ter vars dened Me o fie

corey y ctatae Rayer Wirt ate Wonguer cnmglit write fe

tated Seares Caprerme ont hat tee Bie etic wee ceebternel

After the cut wan Gied and Defeneientc seme fe gen ~stte

ee ee ee |

meorme Sor gh etre +

46a

dants argued (in their motion to dismiss) that Plaintiffs

lacked standing to bring this suit.°

On March 6, 2003, Plaintiffs Leclerc, Jarry, and Boulord

filed their original complaint seeking declaratory relief and

injunctive relief against Defendants as well as costs and at-

torney’s fees. Plaintiffs named as defendants six of the seven

Louisiana Supreme Court Justices — Jeffrey P. Victory,

Jeanette Theriot Knoll, Chet D. Traylor, Catherine D. “Kitty”

Kimball, John L. Weimer, and Bernette Joshua Johnson (“the

Justices”), Daniel A. Webb, Chairman of the Louisiana

Committee on Bar Admissions, and Harry J. Phillips, Jr.,

Vice-Chairman of the Louisiana Committee on Bar Admis-

sions (“the Bar Admissions Officials”) (collectively “Defen-

dants”). All Defendants were sued in their official capacities

only.

The Court held a status conference on March 20, 2003,

and set deadlines for briefing on cross motions for summary

judgment: Rec. Doc. 7. Plaintiff Affleck joined this suit via

amended ccmplaint on March 27, 2003. Defendants moved

to stay all discovery pending a determination on their immu-

nity defenses and on May 1, 2003, the magistrate judge

granted a stay. Rec. Doc. 17. Plaintiffs’ appeal of that order

is currently before the Court and is inextricably intertwined

with the arguments raised in Defendants’ motion to dismiss.

Pursuant to the Court's scheduling order, Plaintiffs filed

their fully-briefed motion in support of declaratory relief’ and

Louisiana’s bar admission rules require that equivalency appli-

cations for those applicants wishing to take the July 2003 bar exam

were due no later than December |, 2002. La. S.Ct. R. XVII,

§ 6(A).

After Defendants questioned whether the Federal Couris Im-

provement Act of 1996, 110 Stat. 3847, 2853 (1966) (amending 42

U.S.C. § 1983), would permit injunctive relief against the state’s

judicial officers, Plaintiffs moved to amend their complaint to drop

the request for injunctive relief. Rec. Doc. 27. The Court denied

47a

Defendants filed their fully-briefed motion to dismiss. Both

motions were set for hearing on May 21, 2003. On May 21,

2003, the Court held a status conference at Plaintiffs’ request

and at Plaintiffs’ urging the motions were continued for hear-

ing on June 4, 2003. The Court ordered supplemental brief-

ing on Plaintiffs’ immigration status, and on June 25, 2003,

the Court heard oral argument.

In their motion for summary judgment Plaintiffs pray for

a judgment:

1. Declaring the unconstitutionally of Section 3(B) of

Rule XVII of the Rules of the Louisiana Supreme Court

as imterpreted by that Court to deny bar admission to

“non-resident aliens”;

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

of the Louisiana Supreme Court as interpreted by that

Court is preempted by the plenary power of the Federal

Government to set immigration policy;

3. Declaring that the Louisiana Supreme Court and the

Louisiana Committee on Bar Admissions may not consti-

tutionally deny plaintiffs the opportunity to sit for the

Louisiana state bar examination solely on account of the

fact that they are not citizens or resident aliens and to

permit them to submit an application package, including

that for equivalency determination if one has not already

been submitted, so as to permit them to sit for the Louisi-

ana state bar examination in July 2003, provided that they

meet all other requirements of Rule XVII, as reasonably

interpreted;

4. Awarding Plaintiffs reasonable costs and attorney’s

fees under 42 U.S.C. § 1998.

the motion to amend for reasons unrelated to the request for in-

junctive relief.

48a

Defendants assert that Plaintiffs fail to present a justicia-

ble case or controversy because their claims are not mpe for

adjudication and because Plaintiff lack standing. Defendants

further argue that Plaintiffs’ claims are barred by the Elev-

enth Amendment and the doctrines of judicial immunity

and/or legislative immunity. Finally, Defendants argue that

Plaintiffs’ complaint fails to state a claim upon which relief

can be granted. Alternatively, Defendants urge the Court to

abstain from this matter. The Court addresses each argument

in turn.

Il. Defendants Motion to Dismiss

A. Legal Standards

A litigant may object to a court’s lack of jurisdiction

through a motion to dismiss under Rule 12(b)(1) of the Fed-

eral Rules of Civil Procedure. Jurisdictional defects include

immunity of the defendants in an action and the court’s con-

sequent lack of subject matter jurisdiction. Bank One Texas

v. United States, 157 F.3d 397, 403 & n. 12 (Sth Cir. 1998).

Under Rule 12(b)(6), a court must dismiss a complaint that

fails to state a claim upon which relief can be granted. When

considering a Rule 12(b)(6) motion to dismiss, the court

views al] material allegations in plaintiff's complaint as true.

See In re Mastercard, Int'l, Inc., 313 F.3d 257, 261 (Sth Cir.

2000). Conclusory allegations or legal conclusions masquer-

ading as factual conclusions will not suffice to defeat a mo-

tion to dismiss. /d.

B. Case or Controversy

Defendants assert that Plaintiffs rest their claim on factual

assumptions and conjecture that do not present a “case” or

“controversy” under Article III of the United States Constitu-

tion. Thus, Defendants assert that Plaintiffs’ claims are not

ripe for adjudication and that Plaintiffs lack standing to pur-

sue their asserted claims.

49a

Defendants point out that Leclerc, Jarry and Boulord

have taken none of the required steps in order to sit for the

Louisiana bar exam. Thus, Leclerc, Jarry and Boulord have

not been subject to any adverse action by Defendants on any

basis including their alienage. Defendants point out that Le-

Clerc, Jarry and Boulord must obtain equivalency determina-

tions for their foreign law school educations, and that an

adverse determination on equivalency would moot any issue

as to their residency status. Because Leclerc, Jarry, and Bou-

lord have been subject to no adverse action, Defendants ar-

gue that they also lack standing to bring this suit because

they seek redress for an injury that has not and may never

Occur.

Defendants concede that Affleck submitted a timely ap-

plication for an equivalency determination and that her appli-

cation was not considered due to her status as a non-resident

alien. However, Defendants contend that Affleck has also a

ripeness/standing problem because she did not avail herself

of the review procedures provided in Supreme Court Rule

XVII, Section 9.5 Defendants contend that at the conclusion

* Rule XVII, Section 9, Denial of Eligibility; Appeals, provides:

Upon notice to the applicant by the Committee that an appli-

cant has failed to fulfill one or more of the requirements of

Sections 3 or 5, or upon notice to the applicant from the Com-

mittee that the equivalency panel has found that applicant's le-

gal education is not equivalent to that received by a graduate

of a law school approved by the American Bar Association as

required by Section 6, and that the Committee concurs in such

finding, the applicant may appeal by petition directly to the

Court.

(B) Procedure in Supreme Court. The Court may, in its discre-

tion, without taking further evidence, affirm or reverse the

Committee’s recommendation, remand to the Committee for

further action as the Court instructs, or appoint a Commission

to take evidence.

La. S.Ct. R. XVII, § 9.

50a

of that appeal process, which all Plaintiffs would be required

to complete, the Rook-Feldman doctrine would then have

deprived this Court of jurisdiction to consider Plaintiffs’

claims.”

Although she did not avail herself of the review proce-

dures provided in the Supreme Court rules, Affleck asserts

that federal law does not require exhaustion of state remedies

prior to bringing a claim alleging violations of federal law.

Moreover, she asserts that any appeal would have been futile

anyway. Given then that the bar committee has cited Af-

fleck’s alienage as the basis for refusing to consider her

equivalency application, Affleck asserts that she has a justi-

ciable claim.

Leclerc, Jarry, and Boulord argue that Affleck’s situation

demonstrates the futility of submitting an equivalency appli-

cation, and therefore, excuses their failure to seek equiva-

* The Rooker-Feldman doctrine directs that federa! district courts

lack jurisdiction to entertain collateral attacks on state court

judgments. Liedtke v. State Bar of Texas, 18 F.3d 315, 317 (Sth

Cir. 1994) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413;

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462.

Constitutional questions arising in state proceedings are to be re-

solved by the state courts. /d. Any alleged constitutional error

in the state court judgment is to be reviewed and corrected by the

appropriate state appellate court. /d. Thereafter, recourse at the

federal level is limited solely to an application for a writ of cer-

tiorari to the United States Supreme Court. Jd. The casting of a

complaint in the form of a civil mghts action cannot circumvent

this rule, as absent a specific delegation “federa! district court(s],

as court{s} of original jurisdiction, lack{ ] appellate jurisdiction

to review, modify, or nullify final order[s] of state court[s].” /d.

(quoting Kimball v. Florida Bar, 632 F.2d 1283, 1284 (Sth Cir.

1980)).

S5la

lency determinations.'° Leclerc, Jarry, Boulord argue that

concrete injury is surely imminent.''

In reply, Defendants clarify that they are not arguing that

any type of administrative exhaustion applies to Plaintiffs’

constitutional claims.'? Rather, Defendants argue that Plain-

tiffs must receive a definitive adverse action before they may

complain of a constitutional violation. Until Plaintiffs pursue

their applications through the review and appeal procedures

provided for in the Louisiana Supreme Court rules, no plain-

tiff has received a definitive adverse action for purposes of

standing and ripeness.

Article III of the United States Constitution limits federa!

courts to the decision of “cases” and “controversies.” Shields

v. Norton, 289 F.3d 832, 834-35 (Sth Cir. 2002). Ripeness

and standing are two “justiciability doctrines” developed by

federal courts to give meaning to the case or controversy re-

quirement. United Transportation Union v. Foster, 205 F.3d

851, 857 (Sth Cir. 2000). Thus, rmpeness and standing are

both constitutional prerequisites to the exercise of jurisdic-

tion.

Ripeness

A matter is ripe only where an “actual controversy” ex-

ists. Shields, 289 F.3d at 835 (citing 28 U.S.C. § 2201(a)).

Ripeness separates those matters that are premature because

the injury is speculative and may never occur from those that

'° As discussed at note 3 supra, Jarry submitted a procedurally

improper petition to the Louisiana Supreme Court.

'' Plaintiffs’ counsel informed the Court at the April 17, 2003,

status conference that Leclerc, Jarry and Boulord had submitted

equivalency applications after they filed suit.

Indeed, it is well-established that administrative exhaustion

does not apply to civil rights claims unless specifically mandated

by Compress. Porter v. Nussle, 534 U.S. 516, 523; Turner v.

Houma Municipal Fire, 2002 WL 1467876 (E.D. La. Jul. 8, 2002).

52a

are appropriate for judicial] review. United Transportation,

205 F.3d at 857 (citing Abbott Labs. v. Gardner, 387 U.S.

136, 148-49, overruled on other grounds, Califano v. Sand-

ers, 430 U.S. 99. A case is generally rpe if any remaining

questions are purely legal ones. Jd. (quoting New Orleans

Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583,

586-87 (Sth Cir. 1987).). Conversely, a case is not ripe if

further factual developrnent is required. Jd. When challeng-

ing a statute or rule, ripeness may require that the rule be

evaluated in light of a particular situation rather than a hypo-

thetical one. See Texas v. United States, 523 U.S. 296, 301.

- The Court is not persuaded that Plaintiffs’ claims are not

ripe for adjudicat.on. Both parties agree that no further fac-

tual development is necessary in this litigation. The only is-

sues now before the Court are strictly legal ones. Clearly, an

actual controversy exists between the parties.

Further, this case does not involve the speculative and

hypothetical type of injury at issue in those cases where

plaintiff's challenge to a statute has been rejected as prema-

ture. For instance Defendants cite National Park Hospitality

Association v. Department of the Interior, 538 U.S. 803, in

support of their ripeness argument. In National Park, plain-

tiffs made a facial challenge to a federal law whose scope

was unclear. Plaintiffs argued that the uncertainty as to the

Statute’s application was causing them injury in that they

could not adequately prepare bids for certain government

contracts. The Court rejected that contention and concluded

that judicial resolution of the statute’s application should

await a concrete dispute about a particular contract. 123

S.Ct. at 2032-33.

In contrast, the Louisiana Supreme Court has already ap-

plied Rule XVII in at least one particular instance in this liti-

gation, i.e., Affleck’s application. Her application for

equivalency was denied solely due to her residency status.

Based on the Louisiana Supreme Court’s decision in Jn re

———_

53a

Bourke, 819 So.2d 1020 (La. 2002), and in Jn re Schnyder,

824 So.2d 1135 (La. 2002), as well as the experiences of

Royot, Marty, and Moguen, there is no reason to think that

the Supreme Court would have granted Affleck relief had she

pursued the appeal process. Likewise, there is no reason to

believe that Leclerc, Jarry and Boulord would have been any

more successful than Affleck, Bourke and Schnyder. Ac-

cordingly, Plaintiffs’ claims are ripe for adjudication.

Standing

To satisfy the standing requirement, the plaintiff must

have suffered an injury in fact. Southern Christian Leader-

ship Conf. v. Supreme Court of the State of Louisiana, 252

F.3d 781, 787 (Sth Cir. 2001). An “injury in fact” is an inva-

sion of a legally protected interest which is both (a) concrete

and particularized, and (b) actual or imminent and not con-

jectural or hypothetical.’ Jd. (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555. Plaintiff cannot establish standing by

relying on an undifferentiated interest in the proper applica-

tion of the law. Sierra Club v. Glickman, 156 F.3d 606, 613

(Sth Cir. 1998).

To establish standing to challenge an aliegedly unconsti-

tutional policy, as a general matter “a plaintiff must submit to

the challenged policy.” Ellison v. Connor, 153 F.3d 247,

254-55, (Sth Cir. 1998) (quoting Jackson-Bey v. Hanslmaier,

115 F.3d 1091, 1096 (2d Cir. 1997)). In other words, a plain-

tiff “may not seek redress for injuries done to others.” Jd.

(quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163). How-

ever, in the Fifth Circuit, this threshold requirement for

standing may be excused where the plaintiff makes a “sub-

stantial showing that application for the benefit . . . would

have been futile.” Jd. (citing Jackson-Bey, 115 F.3d at 1096).

'’ The injury must also be traceable to the defendant, and the in-

jury must be redressible. Southern Christian Leadership Conf. v.

Supreme Court of the State of Louisiana, 252 F.3d at 787. Those

aspects of standing are not at issue in this case.

54a

In Ellison, the Fifth Circuit applied this “futility excep-

tion” to plaintiff landowners who sought to challenge the

constitutionality of a Corps of Engineers permitting decision.

Defendants argued that plaintiffs lacked standing because

they had not actually applied for, and been refused, a permit.

However, the Corps had previously advised plaintiffs via let-

ter that it would not allow construction on plaintiffs’ land.

The Fifth Circuit reversed the district court’s finding of no

standing. 153 F.3d at 254-55. The court concluded that it

would be futile to require the plaintiffs to ask the Corps for a

permit when the Corps had already made a determination that

no permit would issue. /d. at 255.

Based on the foregoing, the Court has no doubt that Af-

fleck has standing to challenge Rule XVII. The Bar Commit-

tee informed Affleck that her equivalency application would

not be considered due to her residency status. The therefore

suffered a concrete injury as a result of Rule XVII. Based

upon the prior decisions of the Louisiana Supreme Court de-

nying the petitions of other non-immigrant aliens the Court

concludes that any petition to the Louisiana Supreme Court

would have been futile.

Leclerc, Jarry, and Boulord present a far more difficult

question because they took no steps in furtherance of submit-

ting an application to sit for the bar exam prior to filing this

lawsuit. Although they submitted equivalency applications

after they filed this lawsuit, those applications appear to be

untimely and therefore may be rejected by Defendants on

grounds wholly unrelated to their residency status. However,

without a doubt Defendants wil! eventually reject Leclerc,

Jarry, and Boulord’s applications due to their residency status

given the Supreme Court’s unequivocal position on the issue.

The fact that Leclerc, Jarry, and Boulord will suffer injury

due io Rule XVII is not conjectural or hypothetical. It just

has yet to happen. Because their injury is certain to occur

SSa

and imminent, the Court concludes that they too have stand-

ing to challenge Rule XVII.'*

In sum, Defendants’ motion to dismiss based on Plain-

tiffs’ failure to establish a case or controversy is DENIED.

C. Eleventh Amendment Immunity

Defendants argue that the Eleventh Amendment bars

Plaintiffs’ claims. Because all defendants are state officials

sued in their official capacities, the state 1s the real party in

interest. Therefore, Defendants argue, the Eleventh Amend-

ment bars suit regardless of the relief sought.

Plaintiffs do not dispute that the Eleventh Amendment

applies to the Justices as well as to the Bar Admission Offi-

cials. Plaintiffs assert, however, that sovereign immunity

does not bar the prospective declaratory relief Plaintiffs seek.

Plaintiffs argue that any assertion that the Eleventh Amend-

ment bars suit regardless of the type of relief sought is con-

trary to established United States Supreme Court

jurisprudence.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be con-

strued 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 For-

cign State.

U.S. Const. amend. XI.

The Eleventh Amendment generally divests federal

courts of jurisdiction to entertain suits directed against states.

Green v. State Bar of Texas, 27 F.3d 1083, 1087 (Sth Cir.

1994) (citing Port Auth. Trans-Hudson Corp. v. Feeney, 495

'* The Court’s resolution of the standing issue naturally has no

relevance whatsoever as to whether Defendants will ultimately

grant Plaintiffs’ equivalency applications on the merits.

56a

U.S. 299, 304, 110 S.Ct. 1868, 1871, 109 L.Ed.2d 264

(1990)). Although by its terms the Amendment applies only

to suits against a state by citizens of another state, the Su-

preme Court interprets the Amendment as barring suits in

federal court by citizens against their own states as well. See

Cox v. City of Dallas, 256 F.3d 281, 307 (Sth Cir. 2001) (cit-

ing Board of Trustees v. Garrett, 531 U.S. 356, 121 S.Ct.

955, 962, 148 L.Ed.2d 866 (2001)).

The Eleventh Amendment may not be evaded by suing

state officers in their official capacities because such an indi-

rect pleading device remains in essence a claim against the

state. /d. (citing Stem v. Ahearn, 908 F.2d 1, 3 (Sth Cr.

1990)). Eleventh Amendment relief is available to both the

Louisiana Supreme Court and the Louisiana State Bar Asso-

ciation. Southern Christian Leadership v. Supreme Court of

State of Louisiana, 61 F.Supp.2d 499, 505 (E.D. La. 1999)

(citing Lewis v. Louisiana State Bar Ass'n, 792 F.2d 493, 497

(Sth Cir. 1986)).

However, where state officials are sued in their official

capacities, the doctrine of Ex parte Young may operate as an

exception to the Eleventh Amendment. Cox, 256 F.3d at 307

(citing Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441,

52 L.Ed. 714 (1908)). Under Ex parte Young, the Eleventh

Amendment does not bar a suit against a state official alleged

to be acting in violation of federal law. /d. The Ex parte

Young doctrine is grounded on the concept that the state can-

not authorize its officials to violate the Constitution and laws

of the United States. /d. (citing Ex parte Young, 209 U.S. at

160, 28 S.Ct. 441, 52 L.Ed. 714). Ex parte Young only per-

mits an award of declaratory or prospective injunctive relief,

i.e., to enjoin the future enforcement of an unconstitutional

rule, regulation, or law. See id.; Thiel v. State Bar of Wis-

consin, 94 F.3d 399, 400 (7th Cir. 1996). Retrospective re-

lief in the form of a money judgment in compensation for

past wrongs — no matter how small — is barred. Brennan v.

Stewart, 834 F.2d 1248, 1252 (Sth Cir. 1988). The Ex parte

S7a

Young exception does not apply to state law claims. See

Pennhurst v. Halderman, 465 U.S. 89, 105, 104 S.Ct. 900,

911, 79 L.Ed.2d 67 (1984) (noting that Ex parte Young is in-

applicable where violations of state law are at issue).

In this case Plaintiffs’ federa! claims fall squarely within

the Ex parte Young exception to Eleventh Amendment im-

munity. Plaintiffs have sued all defendants in their official

Capacities and seek only declaratory and prospective injunc-

tive relief. Plaintiffs are not seeking monetary compensation

for past wrongs. Therefore, Defendants are not entitled to

dismissal of Plaintiffs’ federal claims based upon Eleventh

Amendment immunity. However, to the extent Plaintiffs are

attempting to assert any type of state law claim, those state

law claims are dismissed for lack of subject matter jurisdic-

tion.

In sum, Defendants’ motion to dismiss based on Eleventh

Amendment immunity is GRANTED IN PART AND DE-

NIED IN PART. The motion is GRANTED insofar as Plain-

tiffs are attempting to assert state law claims. The motion is

DENIED as to Plaintiffs’ federa] claims.

'S Without citation of authority or explanation, Defendants con-

cede that Plaintiffs Fourteenth Amendment claims are not barred

by the Eleventh Amendment. Defendants’ Motion to Dismiss at

13 n.6. For the reasons explained above, Defendants are correct.

However, Fourteenth Amendment claims generally are subject to

the Eleventh Amendment except where Congress expressly abro-

gates the state’s immunity when legislating pursuant to its en-

forcement powers under the Fourteenth Amendment. See Kimel v

Florida Bd. of Regents, 528 U.S. 62, 72, 120 S.Ct. 631, 640, 145

L.Ed.2d 522 (2000); Santiago v. New York Dep't of Correct

Servs., 945 F.2d 25, 28 (2d Cir. 1991).

D. Absolute Immunity

1. Judicial Immunity

Defendants argue that judges are absolutely enmune fom

suits based upon actions taken m thee officeal pudicsa! ca-

pactics. Further, Defendants pomt out that Congress

enlarged judicial immunity via the Federal Courts Improve-

ment Act of 1996 (“the FCIA™) which specifically amended

42 U.S.C. § 1983.

Plaintiffs dispute whether the actions complamed of were

taken in Defendants’ swdicia! capacems Plamesffs pomt out

that thew claims arue out of the way Defendants are enfiore-

ing an allegedly unconstitutional rule and therefore Defer

dants’ actions have been taken @ thee onforcement

capacities. Plamtiffs assert that the FCIA was sot meended to

erase the distinction prewiously made between actions taken

in a yudicwl officer's pedicia! capacity verses those hee @

enforcement and admunuiranve capacte: Plame ao

assert that judicial mmmuny docs not apply to the decdare-

tory rehef Plamtffs sock

Plamtiffs dutmgunh thee case Gom those upholding je

dv! immundty by pomtmg out thet thee case @ one Ques

toning the comittutionalty of a ber adeuanems rule

generally as opposed to an aggreved mdivwdeal § Pisum:

rermund the Court that ther challenge to Rule XVTl «& @ Ge!

one so that they are sot challenging the adpedicanon of an

individual application i ¢ actor taken @ the officer's padb

cul capacty As such Plamesfft argue that ew clams we

not barred by pod xa) enemy

Three United Scaces Supreme ( curt cane form an appre:

Prwte wartime powt for commderation of Dertiemaiente pehu uel

wmemunty defeme In Sepreme Comet of Virgwene + Commem

ers Union, 446 US 719, 73%, 100 SCh 1667, 1077.

L.Ed2d 64) (1980), the Supreme Court bold ae mic!

wnerenty Gud mot bat myamctive eehet agement Ge Vague

2. ae Sch OO, RD, we 6 take ee OG, ee De

teehee ae

tats # Furnes Ome Mee S Fm Me Dey

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erties 6) anIRerY -aegennening 9 aelheomt -_-

60a

for purposes of determining whether judicial immunity ap-

plies. In that case the Court found judicial immunity inapp!i-

cable where a state judge had been sued for sexual

discrimination in employment-related matters. Jd. at 229,

108 S.Ct. at 545. The Court noted that there is no immunity

for “acts that simply happen to have been done by judges”

when those acts are not judicial acts. /d. at 227, 108 S.Ct. at

544. Rather, the “immunity ts justified and defined by the

functions it protects and serves, not by the person to whom it

attaches.” /d. Although the Supreme Court had never articu-

lated a precise and general definition of the class of acts enti-

tled to immunity, the Court recognized the “intelligible

distinction between judicial acts and the administrative, legis-

lative, or executive functions that judges may on occasion be

assigned by law to perform.” /d. at 227, 108 S.Ct. at 544.

Consumers Union, Pulliam, and Forrester demonstrate

that the question of judicial immunity in any given situation

can only be answered with reference to the relief sought and

the capacity in which the judge had acted. It is also clear that

the Supreme Court in crafting judicial immunity over the

years did not consider every act taken by a judge to be in his

judicial capacity merely by virtue of the officer’s status as a

judge.

If Consumer's Union, Pulliam, and Forrester remain

good law then Defendants’ judicial immunity argument is

without merit.'° However, in 1996 Congress enacted the

Federal Courts Improvement Act of 1996. which 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 offi-

cer’s judicial capacity, injunctive relief shall not be granted

dealt with provisions of the Virginia bar’s code of ethics. Con-

sumer 's Union is applicable because it dealt with a facial challenge

to the code of ethics rather than the application of the code of eth-

ics to an individual attorney in disciplinary proceedings.

6la

unless a declaratory decree was violated or declaratory relief

was unavailable.” Pub. L. No. 104-317, 110 Stat. 3847 (Oct.

19, 1996) (emphasis added). The Senate report indicates that

the amendment “restores the doctrine of judicial immunity to

the status it occupied prior to [Pulliam]” because Pulliam had

departed from “400 years of common law tradition and

weakened judicial immunity protections.” S. Rep. 104-366,

at *36-*37, 1996 U.S.C.C.A.N. 4202, 4216-17.

Defendants can make no colorable argument that the

FCIA did anything to alter the landscape with respect to de-

claratory relief. Declaratory relief against judges acting in

their judicial capacities was well-established before the

FCIA. The FCIA amendments continue to contemplate de-

claratory relief by making express reference to it as a first

step before injunctive relief is permissible. Moreover, the

FCIA does not purport to eliminate the clear distinctions

among the various capacities in which judicial officers act.

The Supreme Court’s jurisprudence had long been unequivo-

cal in that the Court did not consider every act taken by a ju-

dicial officer to be a “judicial act” subject to judicial

immunity. Therefore, Congress’s decision to preclude in-

junctive relief when the judge acts specifically in his “judi-

cial capacity” can only mean that injunctive relief remains

available when the judicial officer acts in other capacities.

This Court cannot make law. Had Congress intended for the

amendment to apply regardless of which capacity t'e judge

was acting, Congress would have said su. Likewise, had

_Congress intended to erase the long accepted capacity dis-

tinctions recognized by the High Court it would have used

appropriate language.'’ Instead, Congress specifically refers

to acts taken in the judicial capacity. The Court is persuaded

'’ Interestingly, Defendants’ own invocation of legislative immu-

nity belies any assertion that they believe that the FCIA erased the

recognized distinctions between the various capacities in which

judges act. ,

62a

that the FCIA does not bar injunctive relief where a judicial

officer acts in other capacities such as enforcement capacity.

Defendants have argued strenuously that the FCIA pro-

tects them from injunctive relief because the acts of which

Plaintiffs complain were performed in Defendants’ judicial

capacities. The Court is not so persuaded given the unique

role that the Louisiana Supreme Court occupies under the

state constitution and given that Plaintiffs are making a facial

challenge to Supreme Court Rule XVII.

The Louisiana Constitution gives Defendants the exclu-

sive and plenary power to define and regulate all facets of the

practice of law, including the admission of attomeys to the

bar, the professional responsibility and conduct of lawyers,

the discipline, suspension and disbarment of lawyers, and the

client-attorney relationship. Succession of Wallace, 574

So.2d 348, 350 (La. 1991) (citing LSBA v. Edwins, 540

So.2d 294 (La. 1989); Saucier v. Hayes Dairy Products, Inc.,

373 So.2d 102, 109, 115 (La. 1979); LSBA v. Connolly, 201

La. 342, 9 So.2d 582 (1942); Ex Parte Steckler, 179 La. 410,

154 So. 41 (1934); Meunier v. Bernich, 170 So. 567 (La.App.

1936)). Consequently, the Louisiana Legislature cannot en-

act laws defining or regulating the practice of law in any as-

pect without Defendants’ consent. /d. (citing La. Const.

- 7974, Art. II). Nor is any officer of the executive branch

charged with enforcing bar rules. Thus, in conjunction with

attorney and bar matters, the Louisiana Supreme Court acts

in the role of all three branches of government. It acts as a

legislative branch when promulgating rules, as a judicial

branch when considering whether a particular applicant

should be granted admission, and as an executive branch

when it enforces or applies the very rules it makes. Clearly,

had Plaintiffs been mounting a facial challenge to an uncon-

stitutiona! statute passed by the legislature, the proper party

defendant would be the executive branch state officer

charged with enforcing that statute. In this case, due to the

unique role of the Louisiana Supreme Court, Defendants are

63a

those state officers. In sum, for the facial challenge Plaintiffs

bring today, Defendants are the proper party defendants be-

cause they are charged with enforcing the allegedly unconsti-

tutional rule. Thus, for a suit mounting a facial challenge

Defendants are by clear implication being sued in their en-

forcement capacities.

Moreover, this conclusion is not at odds with the well-

established principle that admission to a jurisdiction’s bar is

“peculiarly a judicial function.” McFarland v. Folsom, 854

F.Supp. 862, 874 (M.D. Ala. 1994). Because Plaintiffs are

mounting a facial challenge to Rule XVII and are not suing

Defendants for any individual culpability in conjunction with

Rule XVII, the “judicial function” aspects of judicial immu-

nity are not at issue here. Thus, the Court concludes that De-

fendants are not entitled to judicial immunity for Plaintiffs’

claims.'"*

In sum, Defendants’ motion to dismiss based on judicial

immunity is DENIED.

2. Legislative Immunity

Defendants assert that they are entitled to absolute legis-

lative immunity from any suit related to bar admissions mule-

making. When the Justices and Bar Admissions Officials

promulgate and implement bar admission rules they occupy

the position of legislators.

In addition to Plaintiffs’ arguments already recited re-

garding immunity, Plaintiffs assert that immunity does not

extend to protect rules that are unconstitutional. Thus, re-

'* Pulliam also held that Plaintiff could recover costs and attor-

ney’s fees in conjunction with obtaining injunctive relief against a

judicial officer for acts taken in her judicial capacity. The FCIA

amended 42 U.S.C. Section 1988(b) to reverse that aspect -of

Pulliam. Because the attorney's fee issue is wholly premature at

this time, the Court expresses no opinion as to whether Plaintiffs

could ultimately recover costs and attorney’s fees in this action.

64a

gardiess of the capacity in which Defendants are acting, a

person’s constitutional rights cannot be breached to prevent

him/her from practicing law.

When exercising its sovereign rule-making authority, a

state supreme court occupies the same position as that of the

state legislature. Lewis v. Louisiana State Bar Ass'n, 792

F.2d 493, 497 (Sth Cir. 1986) (citing Bates v. State Bar of

Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810

(1977)). Like legislators, the members of the state’s highest

court are entitled to absolute legislative immunity in conjunc-

tion with promulgating bar admission rules. Consumers Un-

ion, 446 U.S. at 730-34, 100 S.Ct. at 1974-75. Thus,

legislative immunity would foreclose any suit based upon the

issuance of, or failure to amend, a challenged bar admission

rule. /d. at 734, 100 S.Ct. at 1976. The same immunity ap-

plies to members of a state bar association whose role is

“completely defined by the court.” Lewis, 792 F.2d at 497

(quoting Bates, 433 U.S. at 361, 97 S.Ct. at 2697).

Plaintiffs are making a facial challenge to the constitu-

tionality of Rule XVII. They seek to enjoin its enforcement.

None of their claims are directed at Defendants’ role in hav-

ing promulgated Rule XVII. Accordingly, legislative immu-

nity is inapplicable. Defendants’ motion to dismiss based on

legislative immunity is DENIED.

E. Abstention

Defendants argue that the Court should exercise its dis-

cretion to abstain from this matter pursuant to Burford v. Sun

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

Defendants point out that this matter involves questions of

state law that are uniquely within the knowledge and exper-

tise of the Louisiana Supreme Court. Therefore, the Louisi-

ana Supreme Court, and not the federal judiciary, should

oversee and administer Louisiana’s bar admission rules.

65a

In opposition, Plaintiffs argue that Burford abstention is

inappropriate because no difficult questions of state law are

involved in this case. Rather, Plaintiffs challenge Section

3(B) of Rule XVII on inter alia federal constitutional

grounds. Thus, there is no justification for this Court to ab-

dicate its jurisdiction.

While federal courts have a strict duty to exercise juris-

diction that is conferred upon them by Congress, the duty is

not absolute. Quackenbush v. Alistate Insurance Co., 517

U.S. 706, 716, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Keep-

ing in mind that abstention is the exception and not the rule,

federal courts may decline to exercise their jurisdiction in

circumstances where denying a federal forum would clearly

serve important countervailing interests such as considera-

tions of proper constitutional adjudication, regard for federal-

state relations, or wise judicial administration. /d. In exer-

cising their discretion, federal court must “fit within the nar-

row and specific limits prescribed by the particular abstention

doctrine involved.” Webb v. B.C. Rogers Poultry Inc., 174

F.3d 697, 701 (Sth Cir. 1999) (quoting Clark v. Fitzgibbons,

105 F.3d 1049, 1051 (Sth Cir. 1997)). The Burford absten-

tion doctrine allows federal courts to dismiss a case only if it

presents

[D]ifficult questions of state law bearing on policy prob-

lems of substantial public import whose importance tran-

scends the result in the case then at bar or if its

adjudication in a federal forum would be disruptive of

state efforts to establish a coherent policy with respect to

a matter of substantial public concern.

Quackenbush, 517 U.S. at 707, 116 S.Ct. at 1716 (quoting

Colorado River, 424 US. at 814, 96 S.Ct. at 1244-45).

Without doubt this lawsuit involves questions of substan-

tial state concern. There is no question that bar admission is

distinctly a matter in which Louisiana has substantial inter-

ests. Unarguably, the Louisiana Supreme Court has unique

66a

knowledge and familiarity with the considerations at stake

when licensing lawyers.

Notwithstanding, Plaintiffs’ claims do not involve the

“difficult questions of state law” required for Burford absten-

tion. Plaintiffs’ claims are based solely on federal law. The

meaning of Supreme Court Rule XVII is not at issue in this

suit. The only issue is whether that rule is in conflict with

various federal laws. Thus, the threshold requirement for

Burford abstention is not present in this case.

Furthermore, Defendants’ abstention argument is less

persuasive given that many of Plaintiffs’ federal arguments

have already been presented to and rejected by the Louisiana

Supreme Court. See In re Bourke, 819 So.2d 1020 (2002).

At this time, there are no pending state court proceedings in

which this Court need fear of interfering.

For the foregoing reasons the Court declines to exercise

its discretion to abstain from this matter.

III. Plaintiffs’ Motion For Summary Judgment

Plaintiffs move for summary judgment on their claims for

declaratory relief. They assert that all facts are contained in

the pleadings and that none of the relevant facts are in dis-

pute. Plaintiffs point out that because this action results from

the unconstitutionality of Louisiana Supreme Court Rule

XVII, Section 3(B), and the Rule’s blanket application to

non-immigrant aliens, it is clear that no facts exist which

could be contentious or that might affect the result of the ac-

tion. Plaintiffs assert that the record indicates that the only

genuine issue is one of constitutionality, and therefore, the

case is ripe for summary adjudication.”

Defendants did not file a cross motion for summary judgment

but filed a motion to dismiss instead. Defendants’ arguments in

opposition are taken from their motion to dismiss which Defen-

67a

A. Legal Standards

In determining whether a party is entitled to summary

judgment, the court views the evidence in the light most fa-

vorable to the non-moving party. Littlefield v. Forney Indep.

School Dist., 268 F.3d 275, 282 (Sth Cir. 2001) (citing Smith

v. Brenoettsy, 158 F.3d 908, 911 (Sth Cir. 1998); Tolson v.

Avondale Indus., Inc., 141 F.3d 604, 608 (Sth Cir. 1998)).

Summary judgment is appropriate if the pleadings, deposi-

tions, answers to interrogatories, together with the affidavits,

if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law. /d. (citing Celotex Corp. v. Catrett, 477 U.S.

317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving

party bears the burden, as an initial matter, of showing the

district court that there is an absence of evidence to support

the nonmoving party’s case. /d. (citing Celotex, 477 U.S. at

325, 106 S.Ct. at 2548, 106 S.Ct. 2548). If the moving party

fails to meet this initial burden, the motion must be denied

regardless of the nonmoving party’s response. /d.

B. Constitutional Claims

Notwithstanding the plenary power of the state’s highest

court to regulate the practice of law, a state cannot exclude a

person from the practice of law for reasons that contravene

the Due Process or Equal Protection Clauses of the Four-

teenth Amendment. See Schware v. Board of Bar Examin-

ers, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796

(1957). Regardless of whether a state’s grant of permission

to practice law is a “right” or “privilege,” a person cannot be

prevented from practicing law except for valid reasons. /d.

n.5 (citing Ex parte Garland, 4 Wall. 333, 379, 18 L.Ed. 366

(1866)).

dants have also designated as their opposition to Plaintiffs’ motion

for summary judgment.

68a

1. Due Process Claims

Plaintiffs assert that they were entitled to a hearing, the

presentation of evidence to prove their allegations, and to the

disclosure of whatever information and recommendations

were presented to the Louisiana Supreme Court by the Lou-

isiana State Bar Association Committee on Admissions.

Plaintiffs assert that they were denied their due process rights

when the Louisiana Supreme Court overruled its prior juris-

prudence constante without giving Plaintiffs an opportunity

to be heard.

Defendants argue, that Plaintiffs do not state a claim for a

procedural due process violation nor a substantive due proc-

ess violation. Defendants point out that none of the Plaintiffs

availed themselves of the state review procedures and there-

fore can claim no due process violation. Defendants argue

that a substantive due process claim only protects “funda-

mental rights” and that there exists no fundamental or consti-

tutional right of a non-lawyer to practice law.

The Court has reviewed the authorities cited by Plaintiffs

in support of their contention that they were denied due proc-

ess of law and concludes that Plaintiffs fail to state a claim

for a due process violation. While Willner v. Committee on

Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d

224 (1963), does require that a denial of an application to

practice law must comport with principles of procedural due

process, the case does nothing to support the contention that

Leclerc, Jarry, Boulord, and Affleck have been denied proce-

dura! due process. Willner requires the state to mform an ap-

plicant of the reasons his application is being denied and to

permit a hearing thereafter. /d. at 105, 83 S.Ct. at 1181. Af-

fleck was given the specific reasons for Defendants’ refusal

to consider her equivalency application. The Supreme Court

rules expressly permitted her to petition the Louisiana Su-

preme Court and to request a hearing. Willner requires no

more. Affleck cannot claim a procedural due process viola-

69a

tion as a result of her own failure to pursue the state proce-

dural r dies available to her. Given that Leclerc, Jarry,

and Bc d made no attempt, prior to filing this law suit, to

submit an application to the Committee, they clearly have no

claim for a procedural due process violation.

Likewise, Schware v. Board of Bar Examiners, 353 U.S.

232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), does not persuade

the Court that Plaintiffs have stated a claim for a substantive

due process violation. In Schware, the United States Su-

preme Court held that the state had impermissibly applied its

moral fitness standards to exclude plaintiff from practicing

law. Id. at 247, 77 S.Ct. at 760. The Court held that the state

had deprived plaintiff of due process of law because the re-

cord was wholly insufficient to support the state’s finding of

bad moral character. /d.

In the instant case, Plaintiffs are mounting a facial chal-

lenge to Supreme Court Rule XVII. Schware does not pro-

vide Plaintiffs a cause of action for a substantive due process

violation in conjunction with a facial challenge. Instead

Schware would allow an applicant aggrieved of the state’s

bar admission process to mount a due process challenge

based upon his individual situation. If Plaintiffs had hoped to

make such a claim then their appropriate course of action

would have been to pursue the state procedures for appeal

and then to seek certiorar. in the United States Supreme

Court as Schware had done. tven if Plaintiffs had done so,

the Rooker-Feldman doctrine would have precluded such a

substantive due process claim brought as an original action in

this Court.

In sum, Plaintiffs’ complaint fails to state a claim for dep-

rivation of due process. Accordingly, Defendants’ motion to

70a:

dismiss is GRANTED with respect to Plaintiffs’ due process

claims.”°

2. Equal Protection Claim

Plaintiffs argue that Rule XVII, Section 3(B) violates the

equal protection clause. Plaintiffs assert that alienage is a

suspect classification which triggers strict scrutiny for pur-

poses of an equal protection challenge. Plaintiffs assert that

Defendants have given no justification for Rule XVII much

less one that could withstand strict scrutiny. Plaintiffs further

contend that even under a lower level of scrutiny, Rule XVII

cannot withstand attack. Plaintiffs assert that an individual’s

residency status is wholly unrelated to his or her character

and therefore is not a permissible criterion for bar admission

purposes. Plaintiffs assert that Jn re Griffiths, 413 U.S. 717,

due process because the Louisiana Supreme Court reversed its

prior stance on the residency issue without giving Plaintiffs an

adequate explanation and prior notice of the court’s intention.

This contention is absurd.

Further, Plaintiffs complaint that Defendants have never ex-

pressed publicly the reason for their change in policy regarding

non-resident aliens. Rec. Doc. 12 at 9. It is clear from Plaintiffs’

original complaint in this Court as well as the Royot, et al. petition

for certiorari filed with the United States Supreme Court that

Plaintiffs believe that the Louisiana Supreme Court’s sudden re-

versal on the alien issue was prompted by the participation of for-

eign lawyers in Louisiana death penalfy cases. Even though the

Court finds this allegation highly speculative and questionable, as

explained in Southern Christian Leadership Conference, unpopu-

lar motivations (even if substantiated) do not transform a chal-

lenged rule “into an unconstitutional state action.” 252 F.3d at

794-95.

Finally, the Court fails to comprehend the relevance of other

state bar admission rules to any of the legal issues in this case.

Tila

93 S.Ct. 2851, 37 L.Ed.2d 910, (1973), clearly supports their

claims.

Citing Southern Christian Leadership Conference v. Su-

preme Court of Louisiana, 252 F.3d 781, 786 (Sth Cir. 2001),

Defendants contend that Plaintiffs have failed to state a claim

for a constitutional violation because there is no fundamental

right for a non-lawyer to practice law. Simply said, Plaintiffs

have no constitutional right to sit for the Louisiana bar exam

and this circuit consistently recognizes the plenary power of

the Louisiana Supreme Court to regulate the practice of law.

Defendants argue that /n re Griffiths is legally and factu-

ally dissimilar from this case and therefore does not support

Plaintiffs’ claims. Defendants assert that Louisiana’s deci-

sion not to offer bar admission to those persons with truly

temporary status, and who are therefore transient, falls within

the valid and legitimate exercise of the State’s public safety

and police power.

While there may be no constitutional right for admission

to a state’s bar, admission policies and procedures cannot run

afoul of the Equal Protection Clause. See Schware v. Board

of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1

L.Ed.2d 796 (1957). The Equal Protection Clause of the

Fourteenth Amendment directs that “all persons similarly

circumstanced shall be treated alike.” Piyler v. Doe, 457

U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)

(quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412,

415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920)). However,

“{t}he Constitution does not require things which are differ-

ent in fact or opinion to be treated in law as if they were the

same.” /d. (alteration in original) (quoting Jigner v. Texas,

310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940)).

Aliens are “persons” guaranteed equal protection of the laws.

Id. at 210, 102 S.Ct. at 2391.

Well-established principles of constitutional law hold that

classifications upon a suspect class or classifications that af-

72a

fect fundamental rights are_subject to strict scrutiny review.

Hatten v. Rains, 854 F.2d 687, 690 (Sth Cir. 1988) (citing

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,

312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); San Anto-

nio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct.

1278, 1287, 36 L.Ed.2d 16 (1973)). Such laws are presump-

tively invalid unless the state can demonstrate that the law ts

the least restrictive means to achieve a compelling state in-

terest. See id.; In re Griffiths, 413 U.S. at 721, 93 S.Ct. at

2855. Rarely, if ever, will laws survive challenge at this

level of scrutiny. Bernal v. Fainter, 467 U.S. 216, 220 n.6.,

104 S.Ct. 2312, 2316, 81 L.Ed.2d 175 (1984) (“As one

commentator observed, strict-scrutiny review is ‘strict’ in

theory but usually ‘fatal’ in fact.”)

However, classifications which operate upon a quasi-

suspect class are accorded intermediate scrutiny, and must

bear a significant relationship to an important state end. /d.

(citing Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195,

67 L.Ed.2d 428 (1981)). All other classifications need only

bear a rational relationship or basis to a legitimate legislative

end. /d. (citing City of Cleburne v. Cleburne Living Center,

473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).

Hence, the threshold issue in any equal protection analy-

sis is the level of scrutiny to be applied. The applicable level

of scrutiny is of paramount importance to the parties because

the level of scrutiny applied often serves as the bellwether of

the statute’s validity. Naturally then, Plaintiffs herein are

arguing for strict scrutiny and Defendants, while not specifi-

cally addressing the appropriate level of scrutiny, have im-

plicitly argued for rational basis review.”'

Defendants assert Rule XVII “falls within the valid and legiti-

mate exercise of the State’s public safety and policy powers.” De-

fendants’ Motion to Dismiss at 17 n.10. Such a justification is

consistent with rational basis review. At oral argument, defense

73a

| Although the United States Supreme Court has repeatedly

used strict scrutiny to invalidate state laws applying classifi-

cations based upon alienage, none of those cases involveu

temporary, nonresident aliens such as Plaintiffs herein.”

Rather, in all cases where the Court applied strict scrutiny,

the affected aliens were permanent resident aliens. See, e.g.,

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

2316, 81 L.Ed.2d 175 (1984) (invalidating a state law pre-

cluding permanent resident aliens from becoming notaries);

In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910

(1973) (invalidating a state law precluding permanent resi-

dent aliens admission to the state bar). Although the equal

protection challenge in Toll v. Moreno, 458 U.S. 1, 102 S.Ct.

2977, 73 L.Ed.2d 563 (1982), involved a nonresident (non-

immigrant) alien, the Court expressly declined to consider

the case on equal protection prounds opting instead to strike

the law based on preemption.”

However, in his dissenting opinion, then Justice

Rehnquist discussed how the fundamental differences be-

counsel confirmed Defendants’ position that rational basis review

should apply.

* It is now widely accepted that federal laws creating classifica-

tions based upon alienage need only satisfy rational basis review.

Abreu v. Callahan, 971 F. Supp. 799, 810 (S.D.N.Y. 1997) (citing

Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478

(1976)). In other words, classifications among aliens that are

wholly permissible for Congress to make are for the most part off

limits to the states. See Takahashi, 334 U.S. at 418-19, 68 S.Ct. at

1142.

?3 One commentator has suggested that the Court’s choice of the

preemption analysis in Toll was a product of the Court's hesitation

to apply strict scrutiny to categories of non-resident aliens. Linda

S. Bosniak, Membership, Equality & the Difference That Alienage

Makes, 69 N.Y.U. L.Rev. 1047, 1149 n. 251 (1994). The district

court in Tol! had applied strict scrutiny.

74a

tween permanent resident aliens and non-resident aliens

should preclude the Court’s ever applying strict scrutiny

analysis where non-immigrants are involved. Toll, 458 U.S.

at 25, 102 S.Ct. at 2990 (Rehnquist, J., dissenting). The crux

of his argument was that resident aliens are so much like citi-

zens that distinctions among them should be carefully scruti-

nized.’ Jd. at 45, 102 S.Ct. at 3000. Non-immigrant aliens,

on the other hand, are sufficiently different from citizens and

immigrant aliens in relevant respects that distinctions be-

tween then should not call for heightened scrutiny. /d. Since

Toll, the Supreme Court has not yet decided the applicable

level of scrutiny applicable to non-resident aliens. Lower

court opinions have gone both ways without an in depth

analysis as to why strict scrutiny was or was not applied.

See, e.g., Ahmed vy. University of Toledo, 664 F.Supp. 282

(N.D. Ohio 1986) (applying rational basis review); Tayyari v.

New Mexico State Univ., 495 F.Supp. 1365 (D.N.M. 1980)

(applying strict scrutiny).

At oral argument, Plaintiffs’ counsel] argued that strict

scrutiny should be expanded to include temporary non-

resident aliens because there are no reasonable differences

between resident and non-resident aliens. Therefore, Plain-

tiffs argued, all lawful aliens should comprise a suspect class.

Perhaps all lawful aliens should comprise a suspect class.

However, the current state of the law is that the United States

Supreme Court has not yet treated non-immigrant aliens as a

suspect class. In Toll the Court had the opportunity but

chose, not to do so. Instead the Court decided the case on

much narrower grounds. Since the U.S. Supreme Court

* Even Justice Brennan, who authored the majority opinion in

Toll, noted that “when Congress has done nothing more than per-

mit a class of aliens to enter the country temporarily, the proper

application of [the principles applicable to resident aliens] is likely

to be a matter of some dispute.” Toll, 458 U.S. at 13, 102 S.Ct. at

2984.

75a

chose not to expand strict scrutiny status to non-immigrant

aliens, this Court finds no basis to do so. The Supreme Court

reluctantly creates new suspect classes because each new ex-

pansion involves the invalidation of virtually every classifi-

cation bearing upon the newly created suspect class. See

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,

318, 96 S.Ct. 2562, 2569, 49 L.Ed.2d 520 (1976) (Marshall,

J., dissenting).

Moreover, the Supreme Court’s rationale for applying

strict scrutiny to resident aliens was largely based on the

compelling similarities between permanent resident aliens

and citizens. See Griffiths, 413 U.S. at 722, 93 S.Ct. at 2855;

Nyquist v. Mauclet, 432 U.S. 1, 12, 97 S.Ct. 2120, 2126-27,

53 L.Ed.2d 63 (1977). Given the similarities between citi-

zens and resident aliens, state-based distinctions among them

merit strict scrutiny. However, non-immigrant aliens differ

from immigrant aliens and citizens in a fundamental respect

— they are admitted to this country on a temporary basis and

for limited purposes. Thus, this Court finds no strict scrutiny

to be inapplicable in this case.

The more difficult question is whether rational basis re-

view should apply or perhaps some intermediate or height-

ened level of scrutiny that falls somewhere along the strict

scrutiny/rational basis review extremes. The United States

Supreme Court or even the Fifth Circuit might very well

alight on some middle ground analysis given how solicitous

the Supreme Court has been of protecting resident aliens.

This Court, however, declines the invitation to create a new

quasi-suspect class or foray into the “intermediate scrutiny

thicket.” The Court therefore opts for rational basis review.

Defendants argue that Rule XVII, Section 3(B) passes ra-

tional basis review because the Louisiana Supreme Court has

a legitimate interest in insuring that litigants in the state’s

courts are represented not only by competent lawyers but by

lawyers who are not subject to having their residency re-

76a

voked on relatively short notice, or at best lawyers who are

only in this country temporarily. Defendants point out not

only the potential disruption to the courts’ dockets but also

the prejudice that clients could suffer if a lawyer is forced to

leave the country in the midst of litigation or perhaps even a

trial. Surely, both parties are aware that litigation can span

years and might often times last longer than the time Con-

gress would allow a temporary alien to remain in the United

States. A client’s representation is therefore subject to dis-

ruption for reasons completely beyond the lawyer’s control

— reasons of which the client might very well be unaware

when he retains counsel.

At oral argument, defense counsel pointed out the near

impossibility of tracking down client files, evidence, etc.

should a non-resident alien be forced to leave the United

States on unfavorable and sudden terms. Counsel posited

that the Louisiana Supreme Court would lack any type of

disciplinary recourse against an alien lawyer once deported

and outside of any state bar’s jurisdiction.

Unarguably, the Defendants’ proffered reasons do satisfy

rational basis review. Rule XVII, Section 3(B) 1s clearly re-

lated to Defendants’ legitimate interest in insuring that liti-

gants are represented by counsel who will be in this country

when those litigants finally have their day in court. Conse-

quently, Plaintiffs’ motion for summary judgment is DE-

NIED on the equal protection claim.

C. Federal Preemption

Plaintiffs argue that Rule XVII is invalid because only

the United States has the exclusive power to establish rules

governing immigration, foreign policy, and the rights of non-

citizens, and that this power is binding on the states by way

of the Supremacy Clause.

The authority to contro] immigration, that is to admit or

exclude aliens, is vested solely in the federal government.

77a

Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 416, 68

S.Ct. 1138, 1141, 92 L.Ed. 1478 (1948) (citing Fong Ye Ting

v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37

L.Ed. 905, 913). The Constitution grants the states no au-

thority over immigration matters. /d. at 419, 68 S.Ct. at

1142. Thus, state laws which impose “discriminatory bur-

dens” upon the entrance or residence of aliens lawfully

within the United States are in conflict with federal law and

are therefore invalid. /d. In such a situation, the Supremacy

Clause dictates that federal law must prevail. See Toll v. Mo-

reno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982);

U.S. Const. art. VI, cl. 2.

However, every state enactment which in any way deals

with aliens is not necessarily a regulation of immigration and

thus per se pre-empted by federal law. DeCanas v. Bica, 424

U.S. 351, 354, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976). In

other words, “standing alone, the fact that aliens are the sub-

ject of a state statute does not render it a regulation of immi-

gration.” /d. A regulation of immigration is essentially a

determination of who should or should not be admitted into

the country, and the conditions under which a legal entrant

may remain. /d. Ifthe regulation or statute does not regulate

immigration, then the court will determine whether the regu-

lation or statute conflicts with federal law. If no conflict ex-

ists, then there is no preemption. /d. at 356-58, 96 S.Ct. at

936-38. However, even where no direct conflict exists, state

laws will be preempted where they “stand[ ] as an obstacle to

the accomplishment and execution of the full purposes and

objectives of Congress in enacting the [immigration laws].”

Id. at 363, 96 S.Ct. at 940. Simply said, states have no power

to “add to nor take from the conditions lawfully imposed by

Congress upon admission, naturalization, and residence of

aliens in the United States.” DeCanas, 424 U.S. at 358 n.6,

96 S.Ct. at 938.

In Toll, the Supreme Court invalidated Maryland’s policy

of denying non-immigrant aliens the ability to obtain “in-

78a

state” status for purposes of reduced tuition and fees. 458

U.S. at 10, 102 S.Ct. at 2982. The state had argued that the

higher fees were an appropriate measure to make up the

Congressional tax breaks given to certain aliens. The court

concluded that Maryland’s practice of charging higher tuition

and fees to the non-immigrant aliens frustrated Congress’s

policy of giving state tax breaks to G-4 visa holders. /d. at

16, 102 S.Ct. at 2985-86. The Court was persuaded that a

state could not recoup indirectly from the non-immigrants

what the federal government had expressly barred the state

from collecting. /d. The crux of the 7ol/ holding is that a

state cannot regulate aliens in such a way so as to deprive

aliens of benefits and advantages that Congress specifically

intended for those aliens to have while residing in this coun-

try.

Supreme Court Rule XVII, Section 3(B) has no arguable

relevance or impact on who is admitted into the United

States. Plaintiffs argue that the Rule is nevertheless a regula-

tion of immigration because it regulates the conditions under

which a legal entrant may remain in this country. Plaintiffs’

argument is unpersuasive because it requires a far broader

interpretation of “conditions under which an [alien] may re-

main” that what the Supreme Court’s jurisprudence would

allow. Under Plaintiffs’ argument, any state law that affected

aliens would be a regulation of immigration. However, the

United States Supreme Court expressly rejected that sugges-

tion in DeCanas v. Bica, supra. A more likely reading of

“conditions under which an [alien] may remain” would be

one encompassing laws that affect an alien’s ability to remain

in a specific jurisdiction. For instance, no state could enact a

law requiring deportation based upon the alien’s conduct

within the state. Such a law would clearly be one setting

conditions under which an alien could remain in the jurisdic-

tion, and such a law would surely be invalid. Rule XVII

does not set conditions under which an alien may remain in

79a

this country or this state and it is therefore not a regulation of

immigration subject to per se preemption.

Further, Plaintiffs cite no specific conflicts between Rule

XVII and federal immigration law or Congressional policy.

Toll and DeCanas demonstrate that Congress has not pre-

empted the field of law applicable to aliens. Thus, absent a

law being a regulation of immigration, a true conflict must

exist between the challenged regulation and Congressional

policy. At the very least, the challenged regulation must in

some way frustrate Congress’s policy regarding aliens in or-

der for preemption to apply. Looking to the types of visas

pursuant to which Plaintiffs reside in the United States, the

Court can discern no such tension between Rule XVII and

federal immigration law.

Leclerc, Jarry, and Boulard entered and remain in the

United States pursuant to J-1] visas, also known as exchange

visas.

J-class aliens are those aliens having a residence in a

foreign country which he has no intention of aban-

doning who is a bona fide student, scholar, trainee,

teacher, professor, research assistant, specialist, or

leader in a field of specialized knowledge or skill, or

other person of similar description, who is coming

temporarily to the United States as a participant in a

program designated by the Director of the United

States Information Agency, for the purpose of teach-

ing, instructing or lecturing, studying, observing,

conducting research, consulting, demonstrating spe-

cial skills, or receiving training....

8 U.S.C. § 1101(a)(15)(J).

Affleck entered andr ins in the United States pursuant

to an L-2 visa. An L-2 vis. _ issued to the spouse of an L-1

visa holder. Affleck’s spouse is an L-! class alien which is

an alien

80a

who, within 3 years preceding the time of his appli-

cation for admission into the United States, has been

employed continuously for one year by a firm or

corporation . . . and who seeks to enter the United

States temporarily in order to continue to render his

services to the same employer . . . in a capacity that

is managerial, executive, or involves specialized

knowledge. . . .

8 U.S.C. § 1101(a15)(L).

J-visas and L-visas are therefore temporary by design. At

oral argument counsel informed the Court that J-visas usually

entail an eighteen month or so stay in the United States. Af-

fleck has a temporary Employment Authorization Document

(“EAD”) and has applied for a permanent one.

At oral argument, Plaintiffs argued that Rule XVII, Sec-

tion 3(B) is inconsistent with the advantages Congress be-

stowed on them by virtue of their respective immigration

visas. The Court disagrees given that the sole effect of Rule

XVII upon Plaintiffs is that they cannot obtain licenses to

practice law. Leclerc, Jarry, and Boulord can do everything

enumerated in the definition of J-class aliens without a li-

cense to practice law. Moreover, the practice of law as a li-

censed attomey lacks congruency with the other teaching and

research oriented aspects of J-classification. The inability to

obtain a law license simply does not pose an obstacle to

Plaintiffs’ ability to obtain any of the benefits and advantages

associated with having a J-visa. Consequently, a federal pre-

emption does not apply.

Affleck’s situation presents a wholly uncompelling ar-

gument given that she is in the United States pursuant to a

spousal L-2 visa. Again, preemption is not applicable.

Takahaski v. Fish & Game Commission, 334 U.S. 410,

68 S.Ct. 1138, 92 L.Ed. 1478 (1948), does not compel a dif-

ferent result. Takahashi invalidated on preemption grounds a

8la

provision of California law that banned the issuance of fish-

ing licenses to “any person ineligible to citizenship.” Taka-

hashi was a resident alien’? who had earned a living as a

fisherman for nearly thirty years when California sought to

exclude all aliens from obtaining fishing licenses. The Court

began its analysis by explaining the vast differences in the

ability of the federal and state governments to regulate alien

activities — a principle that is now well-established in the

law. See note 22 supra. In striking the California statute, the

Court concluded that the state’s attempt to prevent lawful

aliens from earning a living was tantamount to expelling

them because an alien cannot live where he cannot work.”°

Id. at 416-19, 68 S.Ct. at 1141-42 (quoting Truax v. Raich,

239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915)).

In contrast, Rule XVII does not affect aliens who perma-

nently reside in the United States. Rather, Rule XVII affects

temporary aliens who are not in this country to pursue long

term, life sustaining employment. Plaintiffs are permitted to

earn a living; however, they cannot represent litigants as li-

censed attorneys at law. The concerns at issue in Jakahashi

are simply not present in this case.

Accordingly, Plaintiffs motion for summary judgment is

DENIED on the preemption issues.

> At oral argument, Affleck asserted that Takahashi was a non-

immigrant alien. The case is silent as to Takahashi’s status but the

Supreme Court mentioned in the opinion that Takahashi became a

resident of California in 1907. The Takahashi decision was ren-

dered in 1948. The Court seriously doubts that Takahashi was a

non-immigrant alien.

Takahashi was also decided against the backdrop of racial dis-

crimination targeted at persons of Japanese ancestry during and

after World War II.

82a

D. Affleck’s NAFTA Claim

Affleck asserts that she is in a special category of non-

immigrant aliens in that she is a professional certified by a

member of the Northern American Free Trade Agreement

(“NAFTA”). Affleck asserts that Article 1202 of NAFTA

requires that “service providers” be treated in a manner “no

less favorable than the treatment of local service providers

“in the same circumstances.” She asserts that Defendants’

actions are a clear breach of that mandate. She argues that

the spirit of NAFTA clearly directs the destruction of barriers

to attorneys working in member states. Therefore, under the

Supremacy Clause, Louisiana cannot make laws contrary to

NAFTA.

In opposition, Defendants argue that Affleck’s NAFTA

claims are procedurally defective. NAFTA gives Affleck no

private right of action against Defendants to force compli-

ance with NAFTA. Defendants assert that NAFTA provides

for enforcement by the Secretary of State and the Attorney

General of the United States. Thus, Affleck lacks standing.

Further, Affleck offers no support for her implicit assertion

that NAFTA preempts the Eleventh Amendment or that

NAFTA was meant to preempt well-established state author-

ity over licensing of attorne ys.

On December 17, 1992, the leaders of the United States,

Mexico, and Canada completed and signed NAFTA. Made

in the USA Foundation v. United States of America, 242 F.3d

1300, 1302-03 (11th Cir. 2001). On December 8, 1993,

Congress passed the NAFTA Implementation Act which ap-

proved NAFTA and provided a series of domestic laws to

effectuate and enforce NAFTA’s provisions. See Pub.L. No.

103-182, 107 Stat.2057 (1993), codified at 19 U.S.C. §§

3301-3473.

Section 102 of the Implementation Act is entitled “Rela-

tionship of the Agreement to the United States and State

83a

Law.” Section 102(b) (“Relationship of the Agreement to

State law”), subpart (2) (“Legal Challenge”), provides:

No State law, or the application thereof, may be de-

clared invalid as to any person or circumstance on

the ground that the provision or application 1s incon-

sistent with the Agreement, except in an action

brought by the United States for the purpose of de-

claring such law or application invalid.

19 U.S.C. § 3312(b)(2) (emphasis added).

Furthermore, subsection (c) (“Effect of the Agreement

With Respect to Private Remedies”), provides:

No person other than the United States —

(1) shall have any cause of action or defense under

(A) the Agreement or by virtue of Congressional

approval thereof, or

*exe ee & *

(2) may challenge, in any action brought under any

provision of law, any action or inaction by . . . any

State . . . on the ground that such action or inaction

is inconsistent with the Agreement ....

19 U.S.C. § 3312(c) (emphasis added).

In light of the foregoing provisions of the NAFTA Im-

plementation Act, the Court concludes that Affleck lacks

standing to challenge Rule XVII based upon any purported

conflict with NAFTA. Affleck’s claim is an attempt to in-

validate a state law due to its inconsistency with NAFTA.

NAFTA’s enabling legislation expressly limits such a legal

challenge to the United States. The Enabling legislation

compels the conclusion that Affleck lacks standing to chal-

lenge Rule XVII based upon any purported conflict with

84a

NAFTA. Defendants’ motion to dismiss is GRANTED with

respect to Affleck’s NAFTA claim.

Accordingly;

IT IS ORDERED that Defendants Motion to Dismiss

(Rec. Doc. 18) should be and is hereby DENIED IN PART

AND GRANTED IN PART as detailed in this Order and

Reasons;

IT 1S FURTHER ORDERED THAT the Motion for

Summary Judgment (Rec.Doc. 12) filed by plaintiffs Karen

Leclerc, Guillaume Jarry, Beatrice Boulord, and Maureen

Affleck should be and is hereby DENIED and Plaintiffs’

complaint is DISMISSED WITH

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