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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1123%3A2

## Record

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

## Text

la

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

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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.

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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

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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

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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.

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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.

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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.

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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

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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

15

At oral argument, counsel represented that Maw is now an
H-1B visa holder.

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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.

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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).

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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

18

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.”).

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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.

25

--

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

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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.

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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.”).

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

The term “lawfully admitted for permanent residence” means the
status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance
with the immigration laws, such status not having changed.

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-

48

Under the plaintiffs’ rationale — that lack of political capacity
alone should render an alien group worthy of heightened judicial
solicitude and strict scrutiny review — undocumented aliens would
be the most insular and deserving of Carolene Products minority
status. Yet, the Court specifically denied them suspect status.

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-

5]

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
a
“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.

12

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).

SS

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

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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

'© Consumer's Union is not inapplicable merely because that case
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1123%3A2. Public record. Not legal advice.