# Petition for Writ of Certiorari — Jung v. Association of American Medical Colleges (No. 06-567) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1645%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text reme Court, U.S. Sup FILED l) 06-567 0CT 23 2006 No. Jn the Supreme Court of the United States PAUL JUNG, M.D., ET AL. Petitioners, v. ASSOCIATION OF AMERICAN MEDICAL COLLEGES, £7 AL. Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PETITION FOR A WRIT OF CERTIORARI SHERMAN MAREK MICHAEL FREED* Attorney at Law JEAN JANES 1055 W. Bryn Mawr Ave. Much Shelist Freed Chicago, IL 60660 Denenberg Ament & (312) 805-0244 Rubenstein, P.C. 19] N. Wacker Dr., Ste. 1800 C. BARRY MONTGOMERY Chicago, IL 60606 DEBORAH H. BORNSTEIN (312) 521-2000 Williams Montgomery & John, Lid. 20 N. Wacker Dr., Ste. 2100 Chicago, IL 60606 (312) 443-3200 * Counsel of Record Counsel for Petitioners QUESTIONS PRESENTED Whether the D.C. Circuit’s decision in this case conflicts with this Court’s precedents on important federal questions of statutory interpretation and separation of powers by holding that the qualified antitrust exemption recently enacted in Section 207(b) of the Pension Funding Equity Act of 2004, 15 U.S.C. § 37b, extinguishes the petitioners’ claim that employers of medical residents conspire to fix, depress, standardize and stabilize wages nationwide in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1? Whether all federal district and circuit courts should apply the same standard for dismissing complaints with prejudice, specifically the standard established by this Court in Foman v. Davis, 371 U.S. 178, 182 (1962), or whether courts in the D.C. and Ninth Circuits may apply a conflicting standard that permits rejecting amended complaints that would be allowed in all other circuits? - — Whether all federal district and circuit courts should apply the same standard for post-judgment leave to amend a complaint ‘where it has been-dismissed on the pleadings, specifically the standard established by this Court in Foman, 317 U.S. at 182, or whether courts in the D.C., Seventh, Eighth, and Ninth Circuits may apply a conflicting standard that permits rejecting amended complaints that would be allowed in all other circuits? LIST OF PARTIES Petitioners Paul Jung, M.D.; Denise Greene, M.D.; and Luis Llerena, M.D. were the plaintiffs in the district court and the appellants in the Court of Appeals. Respondents were defendants in the district court and the appellees in the Court of Appeals, and consist of Association of American Medical Colleges; National Resident Matching Program; American Medical Association; Accreditation Council for Graduate Medical Education; Medstar-Georgetown Hospital; The George Washington University; Medstar Health, Inc.; Administrators of the Tulane Educational Fund; Barnes-Jewish Hospital; Baylor College of Medicine; Beth Israel Deaconess Medical Center, Inc.; Beth Israel Medical Center; Boston Medical Center Corp.; Cedars-Sinai Medical Center; The Cleveland Clinic Foundation; Duke University Health System, Inc.; Emory University; Henry Ford Health System; The Massachusetts General Hospital; The McGaw Medical Center of Northwestern University, The Mount Sinai School of Medicine of the City University of New York; The New York and Presbyterian Hospital; Rhode Island Hospital; Rush-Presbyterian-St. Luke’s Medical Center; St. Louis University; Stanford Hospital and Clinics; Strong Memorial Hospital of the University of Rochester, Thomas Jefferson University Hospital, Inc.; University Hospitals of Cleveland, Inc.; William Beaumont Hospital; and Yale-New Haven Hospital, Inc. iil TABLE OF CONTENTS QUESTIONS PRESENTED...cecscsssccsceccsscsessccsenessesnssceseenee EUT OF PARTIR co i TABLE OF AUTHORITIES ccc ieee v PETITION FOR WRIT OF CERTIORARI oossecscsscscsesoe COMMONS SHOW re WURIONCTION ad STATUTORY PROVISIONS INVOLVED. ..escccocssscocesseee STATEMENT OF THE CASE.0cscssssssssssssscsssssssseseeeseee 2 REASONS FOR GRANTING THE PETITION ...sccsscsooseee 7 A. The D.C. Circuit’s Decision Conflicts With This Court’s Decisions On Important Questions Of Statutory Interpretation And SSPAPatIGN OT POWEES .oieccccccaconcsssenrestovsescoseosorses 7 1. The Lower Court Decisions Here Conflict With This Court’s Precedents On Statutory Interpretation..................... 9 2. The Lower Court Decisions Here Conflict With This Court’s Precedents On Separation Of Powers .................00+- 10 B. The Lower Courts’ Decisions Demonstrate A Conflict Among The Circuits Regarding The Proper Standard For Dismissal With PINGS isis eae esiiaileaieied 13 C. The Lower Courts’ Decisions Demonstrate A Conflict Among The Circuits Regarding The Proper Standard For Post-Judgment Leave To Amend After Dismissal On The TABLE OF AUTHORITIES CASES Acito v. IMCERA Group, Inc., STE SOST GEC TOFS) sissscvisnsiscscasisvsssoncivsvivcestincs Adamson v. Lockheed Martin Idaho Technologies Co., 20 Fed. Appx. 715 (9th Cir. 2001)...........eeseseeeeees United States ex rel. Adrian v. Regents of University of California, RE ee OO LOU CAE: ZOOAD sesisicsensornceccsssovssisesesass Alston v. Parker, 963 0.38 20 Gh Ce 90068. American Tobacco Co. v. United States, SUG HG ea Andrx Pharmaceuticals, Inc. v. Biovail Corp., Int'l., ZOE SO TIF (OE, Cw ZOO Pais costccricsouscostesslesjunicov Anixter v. Home-Stake Prod. Co.., OFT P28 1535 COR Ca: NISL) civivsiessivics Wisicinveseas Asher v. Harrington, AGL P28 WOOT" Cis: 1979) oo iihsccisescecnss Axel Johnson, Ine. v. Arthur Andersen & Co., OF 3d 76 (6 Ca: 1999) Barry Aviation Inc. v. Land O'Lakes Municipal Airport Comm'n, FFL Pte OOk CPE GAL. LOIS): crsvsicsstbarepoanctovesegsesisirns Bauchman for Bauchman v. West High Sch., SET Oe PAE COE Gale FGI vperetsiccntistnessarsrpesincnaees Belizan v. Hershon, i Fe FT es GAEs I Rcrtsiretsctavnniesvevcvesecivecinvets 18 Bonanno v. Thomas, S09. F.20 320: (9 Cir. 1962) ......0scciecerssovsesacseseseees 16, 18 Bradley v. Chiron Corp., BGP .SG USAT COG: Coe DIGG) ivcicescncevecsevisseomssevsscters 16 Bressner v. Ambroziak, BIE ATO CTE he DIED was eniciasinrtictcovernerestaseesereie 24 Bridgeport Music, Inc. v. Dimension Films, QED FIG TIE LOE Gh FOODS ses vesteevistaeiers sreseseincessnsan’ 15 Burgess v. Sailors’ Union of Pacific, 63 Fed. Appx. 337 (9th Cir. 2003)............cscsseseeeeseees 24 Capitol Indemnity Corp. v. Russellville Steel Co., Inc., Ee OF Cee BO iis scivincovicdosdconncenoentetvnvionss 21 Chem v. New York Life Ins. Co., 168 F.3d 498, 1999 WL 97289 (9th Cir. Feb. 25, SS crtccritcsieiseantudciniciedbaeaicitinviena nabs becees 17 Circuit City Stores, Inc. v. Mantor, EF FS FO CE GAs RAE perceiving sacerewesicnteeenions 21 Clark v. Arizona, Fe es et A igs cncvacacbcovicsosiipichoedaiicscstecstannicsieisio’ 9 Coliseum Square Ass'n, Inc. v. Jackson, __F.3d__, 2006 WL 2664455 (Sth Cir. Sept. 18, Cupit v. U.S., ~ 964 F. Supp. 1104 (W.D. La. 1997)..................cccceeseee 19 Vii Cureton v. National Collegiate Athletic Ass'n, AIRE PE WEF Le Cie BOON Pricinecnsseresensnisasennsnccbenbcnigies 23 Czosek v. O’Mara, DET Nia Bt CEO PING iain sssncsschidscaceuan caseecenitenbohamicdeihbinans 14 Doe v. Cassel, SOS F.Se FOG (BG Cit. ZOOS) oie sesscccinecseecsessconsescossnsvis 15 Dolan v. U.S. Postal Service, PEO ALE FOr Csi cess tatshecctneleacatianee 9 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, Me A eke Ee CE iss sinicecedictign thcova shia conastscicamceasneoods 10 Ingle ex rel. Estate of Ingle v. Yelton, ASD FSG TFS CO Car ZOU GD oo vvicccsnsonicinciantuecerveessomontes 20 Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996)..........cccccscrseceoes 15, 18, 23 Foman v. Davis, Ee RN FE 1 AIA Vicsvwneivudesvnclnisiceunaeoshebeosbaseiasies Passim Geier v. American Honda Motor Co., Inc., SE te oii cincsro ada n capcisicetoiscashecabaaale 9 Government Computer Sales Inc., v. Dell Mktg., No. 05-35936, 2006 WL 2467913, Slip. Op. (9th ; Ce. DEE ZB, DOOR ivnwicvivtncccictimateiennpcvcinheore eeveee 16-17 Green v. Peters, No. 71 C 1403, 1997 WL 769458 (N.D. Ill., Dec. Si RON siercaccc a caussaseactel eubivanteesiipeaeinlatco need 11 Greenidge v. Allstate Ins. Co., GAGE SG SSG C26 Cie. FOG) nna icsccvscccscvtnscovesopnesnees ins 25 Vili Grogan v. Health. .* :er of County of Riverside, 221 F.3d 1348, 2000 WL 674735 (9th Cir. May Tes AHPPEE Ginceskcskitteiisss Unsrisiulatiaiebsdorinvchanenivicituaneenn 16 Hanna v. Plumer, SOO Wich Ge Es scckniSacicriccinceedckarsunrecadoosegtivateei 13, 26 Heisen v. Pacific Coast Bldg. Prod., Inc., 26 F.3d 130, 1994 WL 250036 (9th Cir. June 9, Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)......... one verpniseesshstatucsdnostavetabertsis 2,9 Intera Corp. v. Henderson, 425 F356 GOS COs Cir. 2005S) os vcciccccnsssscoscsscnosonsoontesadis 20 Interbank Funding Corp. ‘Sec. Litig., 432 FSO. 26 SUID, ZOO) csssvesesnscconnipssnsnsvesees 18 Jarrell v. U.S. Postal Serv., TOS. Fae TOO A Ci BIR i vscksevtesnciccccctecingins 18 Judge v. City of Lowell, fig me Er get fm aL. 5 Speeemctemeprenapr rey erun 23 Jung v. Association of Am. Med. Colleges, No. 04-7023, 2006 WL 1582667 (D.C. Cir. Pane 1, FOG CO fic eek ec ideas Passim Jung v. Association of Am. Med. Colleges, 300 F. Supp. 2d 199 (D.D.C. 2004) ("Jung I").... Passim Jung v. Association of Am. Med. Colleges, 339 F. Supp. 2d 26 (D.D.C. 2004) ("Jung II").....1, 5, 10 Jung v. Association of Am. Med. Colleges, 226 F.R.D. 7 (D.D.C. 2005) ("Jung ITI") ............ eee 1,6 ix Kapelanski v. Johnson, FO Fe SEO CIE Colle DUIS) ciccscctsccnscncsscocavovenonessoovenss 21 In re Kellogg, POE Fake EE VOLE CAT. 1999) ossceseceeivsecesccecsvonesseoyeees 21 Laber v. Harvey, 438 F.3d 404 (4th-Cir. 2006) .0........ceeseeceseeesseeseeeeeeee 22 Lebron-Rios v. U.S. Marshal Service, EMA WAT CIB CAE, BOWS) snstetesdccosascesesevscestassarsonveseovers 15 Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, Ee Ee CE CAE, FPO irvckaccsvevereeievsrosersovnsvesevocssvs 21 Marks 3 Zet-Ernst Marks GmBh & Co. KG v. - Prestek, Inc., OF CAME OPE, CI) vsiveriveccsnindsascpseovesersaccesvassesess 20 Messina v. Krakower, DE WP FOP CPR COM, DOOD) ccnevessecencscerevaveccesteseseceres 20 Miller v. French, - DIO NIMs SIT (OIG) oxesecnvoscnenciesesssvesceeseosees 11, 14, 20-21 Minter v. Prime Equipment Co., 5} F390 F196 CLOG Cir, 2006)... cesccecssvsseescoseseccosserees 25 Morse v. McWhorter, | BOF e LONG AT. 2OUE) cncvvciovesssicvesasvecesscesevasseeses 22 Munafo v. Metropolitan Transp. Auth., ee ie BN Dane civcecaccontocnsucevecdsvecsecensseseees 20 Murray v. Albany County Bd. of County Comm’rs, 211 F.3d 1278, 2000 WL 472842 (10th Cir. Apr. a ids i tess’ : lay catabaniskgekesieesvinissseicsusecncengnoesoetses 19 New v. Armour Pharmaceutical Co., GFF SE TH re Ca, FE tii sistiaannn 17 In re Office Prod. Co. Sec. Litig., 251 F. Sage. 28 SE CD... 20GB) cicssccseseresnrsesssenecsoss 18 Ostrzenski v. Seigel, OT FP Ce CANCE, TIFF) evcsesnscscensavosongestsinisiincnesse 15 Parnes v. Gateway 2000, Inc., B22 FD Sao CO CE DOG FF iccevcrscsmrtovesceckvornsisonesceiees 24 Plaut v. Spendthrift Farm, Inc., SEG BaF Cee Biases cicsscnseienestevansishanovinoeseababibietnees 11 Rae v. Union Bank, TED EAE COE, 1 FGD cciccesicscnierssivintcersensipencens 16 Reddy v. Litton Indus., Inc., FEZ E20 ZOE Cae, BGG) ncecicscecsrsnnicsccigueinccienstes 16 Roberts v. Mayor and Burgesses of London Borough of Brent, TO Fed. Apon..Gi5 (56 Car. 2003)... -.cccnicsesecsisciecsesseseses 19 Robertson v. Seattle Audubon Soc., SS LEB AO IGE is cacinscidcccseenecdiccinibeientacnnin 10-11 Rosenzweig v. Azurix Corp., 32 PNM Oe OD) ... 22 Sanders v. Clemco Indus., SES FO 2 Ce RAN. FED iicatcntssenssetncpasvaccacinttocsoines 24 Schiavo ex rel. Schindler v. Schiavo, MG F 3d 4270 CE Cir. BOOS) assis soon 11 Schlup v. Delo, $43 US, JOR Ie a cn ce ce 19 XI Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393 (9th Cir. 1986) ..ccecccccccesccsssseessecesseesseen 15 Servants of Paraclete v. Does, : 204 F.3d 1005 (10th Cir. 2000) .............ccccccccsssessecceeres 21 Sheldon v. Vermonty, : Be BG EEE ESO CE: ZOE D vvssvriniivernccsncincccacossscosncies 15 Spanish Broadcasting System of Fla., Inc. v. Clear Channel Communications, Inc., FIG ESO FOS CEE CAE, 2OOF) oo ccvsscscrccscscsovcssescese 15, 22 Surowitz v. Hilton Hotels Corp., Re ee Pe ee avitch sinsncsnisecteonrevslontvieckowiaiceneiaceatia 14 In re Taxable Municipal Bond Sec. Litig., 796 F. Supp. 954 (E.D. La. 1992) ............ccccssecsosseooses 12 Twombly v. Bell Atlantic Corp., MT PU Pe Ae Me Pi ccospatcieboasaierckeisvsncibelesdiegeatthbooneneitl 4 Union Labor Life Ins. Co. v. Pireno; BAIT AED CFI oi vccscrs ks ossnsssipccensnskescectageincssrcovomandiont United States v. F. & M. Schaefer Brewing Co., FOOT ais Me EPO ites i tentviacspepinemiveseinsveiudecstatonns 13, 26 United States v. Klein, 80 U.S. 128 (1871).............. itaeidiguedasahecss losis 11-13 United States v. University of San Francisco, No. C 04-03440, 2006 WL 335316 (N.D. Cal. I A, ID waitaeitnan tadnicesce Keicanjestincininhc betamensaipteannataes 17 _Van Buskirk v. The New York Times Co., Fad OE ae ils Da isc sistsvicirscticapivvtaecarvnsitivedioes 15 xii Weeks v. Bayer, ~ BAT SO 525 CO Cie OOD DY scsesssoscescssrcocesiivincenssssnsees 24 STATUTES Bee Re Bi ccsinceaseisantjusussisusossbidenoleleipeenssisensianiantoey Passim FD Rates A FTA cisskiuipealeacdupiants tabeeckotubsbacnsunsacenvacmvedsuecees ie es Ak eR ROY sca svisccesshadanieistifadanasseaeaviausiolisnsinsitiadimipion 1 RULES sui : BN, Was RAMs Fs WI) assist aoensscdeshaardigiciarstoessnssenieeseomovscwss 16 FO as GA Fe Fa otieitercintrnccnotrsscoesvndaventone 14, 22-23 Fed. R. Civ. P. 15... .sessessssssesssncserenssssssssessesesenceeresee Passim Ps Fe RAG Fic OP sich ipciest chtitdepeiscnccvrcrevecnannesabeectanbs Passim Fed. R. Civ. P. 60.......-scsscsccsesnssssorersesessessssnsesssosesssesesscancess 20 OTHER AUTHORITIES Amy D. Ronner, Judicial Self-Demise: the Test of When Congress Impermissibly Intrudes on Judicial Power, 35 Ariz. L. Rev. 1037, 1048 Ce hcist ca isieas ss natvaskgnedinind nxamaeccebuaiiMieinestiows 12 C. Wright & A. Miller, Federal Practice & Procedure § 1357 (36 68, ZOO) occcvvccesccsccecocbesssesesesnce 14 PETITION FOR WRIT OF CERTIORARI — Petitioners Paul Jung, M.D.; Denise Greene, M.D.; and Luis Llerena, M.D. (“Resident Physicians” or Residents”), respectfully request a writ of certiorari. OPINIONS BELOW Petitioners request review of the D.C. Circuit’s decision entered on June 1, 2006 ( “Order”, Appendix 1-8), unpublished but reported at 2006 WL 1582667 and 2006-1 Trade Cases 9 75,275. . The Order affirms decisions of the District Court for the District of Columbia entered on August 12, 2004 (App. 9-43, “Jung IP’) and January 25, 2005 (App. 44-49, “Jung IIT’), which are reported at 226 F.R.D. 7 and 338 F. Supp. 2d 26. A prior and inconsistent decision by the district court was entered on February 11, 2004 (App. 50- 155, “Jung I’), and is reported at 300 F. Supp. 2d 119. JURISDICTION The Resident Physicians timely filed petitions for rehearing or rehearing en banc on June 30, 2006. Those petitions were denied on July 25, 2006 (App. 156-58). This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED Section 1 of the Sherman Act (“Section 1”), 15 U.S.C. § 1, provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared illegal.” Section 207(b) of the Pension Funding Equity Act of 2004 (“Match legislation”), 15 U.S.C. § 37b, enacted subsequent to the filing of this action, provides in pertinent part: “(2) Confirmation of Antitrust Status—It shall_not be unlawful under the antitrust laws to sponsor, conduct or participate in a graduate medical education residency matching program, or to agree to sponsor, conduct or participate in such a program [(“substantive provision”)]. Evidence of any of the conduct described in the preceding sentence shall not be admissible in Federal court to support any claim or action alleging a violation of the antitrust laws [(“evidentiary provision”)]. (3) Applicability—-Nothing in this section shall be construed to exempt from the antitrust laws any agreement on the part of 2 or more graduate medical education programs to fix the amount of the stipend or other benefits received by students ite las in such programs [(“savings clause’’)}-” STATEMENT OF THE CASE The D.C. Circuit affirmed dismissal of the Residents’ single-count antitrust complaint based on the Match legislation, but that decision conflicts with this Court’s precedents on important federal questions of statutory interpretation and separation of powers. “(T]he statute [is] the only sure expression of the will of Congress,” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 267 (2004) (Scalia, J., concurring), and the statute reflects an intent to preserve, not extinguish, the precise claim asserted here alleging an agreement to fix resident physicians’ wages. The courts below may have believed that Congress took aim at this lawsuit but missed, and needed extra help in hitting its target. But as expressed in the statute, the will of Congress is to protect the practice by which employers collectively assign potential residents to a single job and refuse to compete for that resident (“Match”) only so long as it does not further an agreement to fix wages, a matter that cannot be decided at the pleadings stage. For the time being it must be accepted as true, as the Residents allege, that the Match helps demonstrate wage-fixing-and thus their claim falls within the scope of the savings clause. This interpretation is not unreasonable and does not make the Match legislation pointless. Congress considers the Match important enough to warrant relief from less serious antitrust claims that would apply, such as_ horizontal market division and monopolization, but not important enough to warrant relief from the ultimate and most egregious antitrust violation of price-fixing. Setting aside whether the Residents’ complaint should have been dismissed on the basis of the Match legislation, it certainly should not have\been dismissed with prejudice because the Residents can clearly plead an alternative claim with no reference to the Match whatsoever. See proposed Amended Complaint (App, 164-237). Indeed, the Residents’ complaint would not have been dismissed with prejudice in any circuit other than the D.C. or Ninth circuits because an amended complaint would have satisfied Federal Rule of Civil Procedure (“Rule”) 15(a). This Court and the majority of Circuits hold that it is an abuse of discretion to dismiss with prejudice where an amended claim would meet the Rule 15(a) standard. The D.C. and Ninth Circuits, however, hold that regardless of Rule 15(a) issues it is not an abuse of discretion to dismiss with prejudice where any amended factual allegations would be “inconsistent” with those originally pleaded. Here, the Residents’ original complaint alleged that employers unlawfully agree to fix wages, and that this agreement may be inferred from economic evidence of parallel wages and conduct, and evidence of “plus factors” tending to exclude the possibility of independent action. Those plus factors include, but far exceed, participation in the Match. The Residents’ proposed amended complaint alleged the same unlawful agreement based on all of the plus factors originally alleged except the Match. Even if this Court soon rules that it is necessary to plead details regarding evidence from which a Section 1 agreement may be inferred, see Twombly v. Bell Atlantic Corp., 425 F.3d 99 (2d Cir.), cert. granted 126 S. Ct. 2965 (2005), the Residents’ proposed amended complaint here pleaded such detail. But for the D.C. Circuit this was not enough; it affirmed dismissal with prejudice on the sole basis that any amended complaint omitting the Match plus factor would be improperly “inconsistent” with the original complaint. It declined to review Rule 15(a) issues at all. Requiring “consistency” in amended pleadings conflicts with the view of this Court and with the majority of Circuit Courts, warranting certiorari. A similar split of authority among the Circuits exists on another frequently-arising and often-dispositive procedural issue: the standard for post-judgment leave to replead the complaint where it was dismissed on the pleadings. The standard established by this Court and followed in the majority of Circuits is that it is an abuse of discretion to deny leave where a new complaint would satisfy Rule 15(a). The D.C., Seventh, Eighth and Ninth Circuits, however, hold that the pleader must first satisfy the “more stringent standard” of Rule 59(e). That ignores, however, that the Rule 59(e) policies of protecting finality of judgment and termination of proceedings do not apply with equal force to judgments on the pleadings. Here, the D.C. Circuit did not reach the Rule 15(a) issues that would have been determinative in other Circuits and in this Court. Instead, it ruled that the high standard of Rule 59(e) was not - met because the Residents’ post-judgment motion to amend could have been filed pre-judgment. The Residents filed suit in May 2002 alleging that their subsistence-level wages and dangerously long work hours result from an unlawful agreement among employers and trade associations to depress, standardize and stabilize wages and working conditions in violation of Section 1 of the Sherman Act. As plus factors, the Residents alleged in detail the parallel nature of wages and historic wage patterns, participation by employers in wage information exchanges, compliance by employers with certain anticompetitive residency program accreditation standards and activities, and participation in the Match. In February 2004, the district. court largely denied defendants’ broadside of motions to dismiss, leaving intact the complaint as to thirty defendants. See Jung J, App. 50-155, particularly 133-39 and 142-46. The defendant employers and associations responded by lobbying Congress for a special antitrust exemption for the Match. They argued that the Match is essential to medical training and has no impact on wages (which they still maintain publicly today). Accepting-the idea of immunity for lesser antitrust violations, but not immunity for any role in wage-fixing, Congress enacted compromise legislation: the Match would be protected from antitrust claims short of wage-fixing (such as horizontal market division and monopolization, both of which are supported by underlying facts but not pleaded here by the Residents), but the employers and associations would be held to their word: the exemption would not apply if it were shown that the Match furthered wage-fixing. Importantly, the Match legislation did not address anything other than the Match, and had no bearing on allegations in the Residents’ complaint regarding parallel wages, the information exchanges, or suspect accreditation activities. The defendants moved to dismiss the complaint and for judgment on the pleadings shortly after the Match legislation was enacted, and the district court granted their motion almost immediately after the parties completed briefing. See Jung II, App. 9-43. The court rejected the Residents’ arguments that the complaint adequately pleaded a Section 1 claim even without its Match allegations because of its extensive allegations of plus factors beyond the Match (App. 23-26); that the savings clause preserved wage-fixing claims such as that asserted here (App. 26-27); and that the statute would be unconstitutional in several respects if applied as the defendants urged (App. 27-39). Moreover, without explanation the district court entered final judgment immediately (App. 43), effectively dismissing the Residents’ complaint and entire action with prejudice. Complying with the rules of the D.C. Circuit, the Residents timely moved under Rule 59(e) to alter or amend judgment and under Rule 15(a) for leave to file an amended complaint. The Residents attached a proposed Amended Complaint that clearly stated a wage-fixing claim without any reliance on the Match. App. 164-237. The district court denied the motions shortly after the parties completed briefing. See Jung I/I, App. 44-49. It stated that the stringent standard of Rule 59(e) was not met on the sole basis that the Residents had waited until after dismissal to move to amend. App. 46-47. In dicta, it commented that it would deny the Rule 15(a) motion anyway for futility because Jung J relied in part on Match allegations and the amended complaint omitted those allegations. App. 47-49. The district court did not explain why it considered the Match plus factor essential to stating a Section 1 claim, nor why the Residents failed to state such a claim based on the allegations within the four-corners of their proposed Amended Complaint. The district court also did not explain why a simple motion to dismiss put the Residents between the Scylla and Charybdis of either conceding the motion to dismiss and amending without any test of the new statute, or opposing the motion at the risk of losing their entire action and any ability-to assert an amended, non-Match claim. The D.C. Circuit affirmed the district court’s rulings in a short decision (App. 1-8), and then denied the Residents’ request for rehearing and rehearing en banc (App. 156-58). The D.C. Circuit’s decision conflicts with this Court’s precedents on important federal questions of statutory interpretation and separation of powers, applies a standard for dismissal with prejudice that is contrary to that of this Court and all Circuit Courts other than the Ninth Circuit, and applies a standard for post-judgment leave to amend after dismissal on the pleadings that is contrary to that of this Court and all Circuit Courts other than the Seventh, Eighth and Ninth Circuits. REASONS FOR GRANTING THE PETITION A. The D.C. Circuit’s Decision Conflicts With This Court’s Decisions On Important Questions Of Statutory Interpretation And Separation Of Powers. _ The only fair reading of the Match legislation’s savings clause, 15 U.S.C. § 37b(b)(3), is that it preserves claims alleging unlawful agreements to fix wages: Nothing in this section shall be construed to exempt from the antitrust laws any agreement on the part of 2 or more graduate medical education programs to fix the amount of the stipend or other benefits received by students participating in such programs. Likewise, the only fair reading of the Residents’ complaint is that it alleges precisely such a claim. As the district court itself concluded at the end of its lengthy ue analysis in Jung J, App. 50-155 at 150-51: - Finally, the Court finds that plaintiffs adequately ‘have alleged a common agreement to displace competition in the recruitment, hiring, employment and compensation of residents physicians and to impose a scheme of restraints that has the purpose and effect of fixing; artificially depressing, standardizing and stabilizing resident physician compensation and other terms of employment... . The gravamen of the Residents’ complaint is not that the Match standing alone violates antitrust law, but that employers agree to fix the Residents’ wages. The Match allegations, like those regarding other mechanisms identified in the complaint, are plus factors supporting an inference of that agreement and tending to exclude the possibility of - independent conduct. Two plus two equals four, and the savings clause applies to preserve the Residents’ complaint here. Any contrary conclusion misinterprets the statute or the complaint, and both occurred here. It distorts the statute to view it as barring Match evidence to support “any” antitrust claim, including wage-fixing claims falling within the scope of the savings clause. Order, App. 4. This view ignores the plain language of the savings clause that “Nothing in this section” shall insulate wage-fixing claims. It also renders the savings clause a nullity, because any claim potentially saved would be eviscerated by the evidentiary provision. Additionally, it distorts the complaint to say that it “does not allege a price-fixing conspiracy,” id. at 4; to say that the Match is “the basis” and “the centerpiece” of the complaint, id. at 3, 4, and to say that “the central premise of plaintiffs’ complaint and its theory of liability turn entirely on the Matching Program.” /d. at 5. The proposed amended complaint (App. 164-237) and the district court’s earlier reading of the original complaint in Jung J (at App. 133-39, 142-46) show that these statements are all inaccurate. I. The Lower Court Decisions Here Conflict With This Court’s Precedents On Statutory Interpretation. A court may be tempted to gloss over a statute to reath the result that it believes Congress intended, but the obvious problem is that “the statute [is] the only sure expression of the will of Congress.” Intel Corp. v. Advanced Micro Devices, Inc:, 542 U.S. 241, 267 (2004) (Scalia, J., coneurring). The sure expression of Congress in the Match legislation’s savings clause is that the normal protections of the Sherman Act apply where, as here, a claim alleges an agreement to fix wages. This is especially true because “the Sherman Act does express a longstanding congressional commitment to the policy of free markets and open competition . . . our precedents consistently hold that exemptions from the antitrust laws must be construed narrowly.” Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 126 (1982) (emphasis added). Congress is presumed not to include superfluous language in a statute, and a court’s construction must “givie] effect, if possible, to every clause and word of a statute.” Clark v. Arizona, 126 S. Ct. 2709, 2723 n.24 (2006). Here, relying on the evidentiary provision’s term that it applies to “any” claim, App. 4, including the Residents’ wage-fixing claim, gives no office to the savings clause and ignores the express predominance of the savings clause (“nothing in this section shall be construed” to extinguish wage-fixing claims). Moreover, “(t]he definition of words in isolation . . . Is not necessarily controlling in statutory construction” where there are contrary considerations. Dolan v. U.S. Postal Service, 126 S. Ct. 1252, 1257 (2006). Indeed, where considering application of a savings clause, the only relevant factors are the scope of the clause and the type of claim; not even the scope of the overall exemption is important at the outset because it will be trumped anyway. Géeier v. American Honda Motor Co., Inc., 529 U.S. 861, 867-68 10 (2000). Here, the district and Circuit courts were misguided in focusing on the substantive and evidentiary provisions and in looking for language that might conflict with the savings clause. By logic and by its own terms, the savings clause predominates. Furthermore, statutes should not be interpreted to raise serious questions as to their constitutional validity. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Here, interpreting the Match legislation to preserve the Residents’ claim through the savings clause avoids the serious separation of powers question raised by the evidentiary provision. pas The Lower Court Decisions Here Conflict With This Court's Precedents On Separation Of Powers. The district court correctly ruled that even if Match activities are now lawful, “that alone is insufficient” to change substantive antitrust law to bar the Residents’ complaint because “if lawful acts are used as the means to effectuate an antitrust conspiracy, the conspiracy itself is still unlawful.” Jung II, App. 21, citing Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707 (1962); American Tobacco Co. v. United States, 328 U.S. 781, 809 (1946). Leaving substantive law unchanged as to the Residents’ complaint is precisely what dooms the lower courts’ interpretation of the evidentiary provision as unconstitutional. New law may only “replace[] the [original] legal standards . . . without directing particular applications under either the old or the new standards.” Robertson v. Seattle Audubon Soc., 503 U.S. 429, 437 (1992). More specifically, new law may not “compel[] ... findings or results under old law,” nor “direct any particular findings of 11 fact or applications of law, old or new, to fact.” Jd. at 438. It is not a change in substantive law to “tell judges when, how, or what to do.” Miller v. French, 530 U.S. 327, 346 (2000). Congress may not prescribe the outcome of a case by “directing what particular steps shall be taken in the progress of a judicial inquiry.” Plaut v. Spendthrifi Farm, Inc., 514 U.S. 211, 225 (1995). One impermissible form of directing what particular steps shall be taken is “forbid[ding a court] to give the effect to evidence which, in its own judgment, such evidence should have ....” United States v. Klein, 80 U.S. 128 (1871). When Congress attempts to dictate such details to the judiciary, it “pass[es] the limit which separates the legislative from the judicial power.” /d. at 133. The outer | boundaries of Klein may be unclear, Order, App. 5, but whatever they are, Klein is consistently recognized for the proposition relevant here: that Congress may not interfere with the Judiciary’s proper fact-finding. See Schiavo ex rel. Schindler v. Schiavo, 404 F.3d 1270, 1274 (11" Cir. 2005) (Birch, J., concurring) (stating that under Klein, legislation may not “direct a federal court in an area traditionally left to the federal court to decide” nor “rob{] federal courts of judicial doctrines long-established for the conduct of prudential decision making”). See also Axel Johnson, Inc. v. Arthur Andersen & Co., 6 F.3d 78, 82 (2d Cir. 1993)(“unlike the provision at issue in Klein,” the statute “does not directly interfere with judicial fact finding”); Anixter v. Home-Stake Prod. Co., 977. F.2d 1533, 1545 n6 (10th Cir. 1992)(“Notably absent from section 27A, unlike the statute held unconstitutional in Klein, is a specific directive as to what evidence a court may consider in determining the timeliness of the suit’s filing or the case’s merits”); Green v. Peters, No. 71 C 1403, 1997 WL 769458, at *10 (N.D. Ill, Dec. 5, 1997) (“Section 3626(b)(2) is plainly distinguishable from KX/ein in that it does not unduly constrain a federal court’s ability either to evaluate evidence or to draw its own 12 conclusions with regard to certain evidence”); Jn re Taxable Municipal Bond Sec. Litig., 796 F. Supp. 954, 960 (E.D. La. 1992) (“the legislation in Klein dictated how the Court must find the facts without changing the legal rules that prescribe the rights and conduct of the parties”). The D.C. Circuit attempts to distinguish Klein on the basis that Congress may amend substantive law, App. 5, but Klein expressly recognizes that principle and holds that it is not a mere change in underlying law where “the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have... .” Klein, 80 U.S. at 147. While Congress may “create new circumstances” by changing a legal standard, it may not “prescribe [a] rul[e] of decision to the Judicial Department of the government in cases pending before it” because “the court [must be] left to apply its ordinary rules to the new circumstances.” Jd. at 146-147. Accordingly, “it is extremely important that the 1870 Act [invalidated in Klein] directed the decision in a pending case through the infiltration of a domain that has been viewed as a traditionally judicial one — namely, that of determining an evidentiary matter.” Amy D. Ronner, Judicial Self-Demise: the Test of When Congress Impermissibly Intrudes on Judicial Power, 35 Ariz. L. Rev. 1037, 1048 (1993) (emphasis added). Moreover, the evidentiary provision as interpreted by the lower courts here, just as in Klein, would improperly predetermine the outcome of litigation by allowing evidence on one side of the scale but not the other. “Evidence of any of the conduct described in the preceding sentence shall not be admissible in Federal court to support any claim or action alleging a violation of the antitrust laws,” Section 207(b)(2), emphasis added. Congress may limit the admissibility of evidence, but not in a one-way manner intended to dictate a result and to prevent courts from “giv[ing] the effect to evidence which, in its own judgment, such evidence should 13 have....” Klein, 80 U.S. at 147. The evidentiary provision as here interpreted improperly ties one hand behind a court’s back, requiring it to allow Match evidence to refute an antitrust claim but not to support one. That interference with a court’s integrity is prohibited by the separation of powers doctrine. B. The Lower Courts’ Decisions Demonstrate A Conflict Among The Circuits Regarding The Proper Standard For Dismissal With Prejudice. - This Court established the standard for dismissal with prejudice in Foman v. Davis, 371 U.S. 178 (1962), a uniform standard ensuring consistency, predictability and fairness among all federal district and circuit courts. “One of the shaping purposes of the Federal Rules is to bring about————- uniformity in the federal courts ....” Hanna v. Plumer, 380 U.S. 460, 472 (1965). “Because of an asserted conflict among the circuits and the public importance of the proper interpretation and uniform application of the provisions of the Federal Rules . . . we granted certiorari.” United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 230-31 (1958). In Foman, 371 U.S. at 182, this Court established that dismissal with prejudice is an abuse of discretion: in the absence of any apparent or declared reason— such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment... . ‘ 14 The highest of all judicial principles, adjudication on the merits, is at stake here. “If rules-of procedure work as they should . . . they not only permit, but should as nearly as possible guarante2 that bona fide complaints be carried to an adjudication on the merits.” Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966). Dismissal with prejudice should be applied sparingly, because “{i]f the underlying facts or circumstances relied on by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182. “{P]laintiff at the very least should be given the opportunity to file supplemental pleadings unless it appears beyond doubt that he cannot state a good cause of action.” Czosek v. O'Mara, 397 U.S. 25, 27 (1970) (quotations omitted). The rationale is well explained in 5B C. Wright & A. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004) (“WRIGHT & MILLER,” footnotes omitted): As the numerous case citations in the note below make clear, dismissal under Rule 12(b)(6) generally is not immediately final or on the merits because the district court normally will give the plaintiff leave -to file an amended complaint to see if the shortcomings of the original document can be corrected. The federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that the plaintiff be given every opportunity to cure a formal defect in the pleading. This is true even when the district judge doubts that the plaintiff will be able to overcome the shortcomings in the initial pleading. Thus, the cases make it clear that leave to amend the complaint should be refused only if it appears to a certainty that the plaintiff cannot state a claim. 15 The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits follow these principles and follow the standard established by Foman. See, e.g., Doe v. Cassel, 403 F.3d 986, 991 (8th Cir. 2005); Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 805 (6th Cir. 2005); Barry Aviation Inc. v. Land O'Lakes Municipal Airport Comm'n, 377 F.3d 682, 687 (7th Cir. 2004); Spanish Broadcasting System of Fla., Inc. v. Clear Channel Communications, Inc., 376 F.3d 1065, 1077 (11th Cir. 2004); U.S. ex rel. Adrian v. Regents of University of California, 363 F.3d 398, 403 (Sth Cir. 2004); Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004); Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 15 (1st Cir. 2003); Van Buskirk v. The New York Times Co., 325 F.3d 87, 91 (2d Cir. 2003); Sheldon v. Vermonty, 269 F.3d 1202, 1207 n. 5 (10th Cir. 2001); Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999). In contrast, two circuit courts, the D.C. and Ninth Circuits, add a threshold requirement of “consistency” found nowhere in Foman or in the law of other circuits. “If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) (emphasis added). “A dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (emphasis added). The rationale for the “consistency standard” has never been adequately explained by either the D.C. or the Ninth Circuit, much less reconciled with contrary principles 16 in Foman and Rule 8(e)(2) (allowing allegations “regardless of consistency,” even in the same complaint). Indeed, the consistency standard materialized from thin air as off-hand dicta in Bonanno v, Thomas, 309 F.2d 320, 322 (9th Cir. 1962), a decision predating Foman by a few months. It came alive as law in the Ninth Circuit in Rae v. Union Bank, 725 F.2d 478, 480 (9th Cir. 1984) (citing Bonanno), where the court held that dismissal without leave to amend was proper because the complaint alleged no factual allegations supporting an unlawful tying claim and any amended complaint would need to “inconsistently” plead them. - Since Rae, the consistency standard has become well- entrenched law in the Ninth Circuit and has been repeated in more than 15 appellate decisions applying Ninth Circuit law. See, e.g., Bradley v. Chiron Corp., 136 F.3d 1317, 1324-26 (Fed. Cir. 1998) (applying Ninth Circuit law to affirm California district court’s dismissal with prejudice based on “discrepancies” in an amended and superseded complaint - that “exceeded permissible adjustment of factual allegations”); Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990) (affirming dismissal with prejudice where complaint alleged injury due to wrongful termination and any amended complaint would have to allege RICO injury, because “{a]lthough leave to amend should be liberally granted, the amended complaint may only allege — other facts consistent with the challenged pleading,” (quotations omitted)); Heisen v. Pacific Coast Bldg. Prod., Inc., 26 F.3d 130, 1994 WL 250036, at *2 (9th Cir. June 9, 1994) (unpublished) (affirming dismissal without leave to amend where complaint alleged intent to harm plaintiff in particular and any amended complaint would have to allege intent to harm competition generally). See also Government Computer Sales Inc., v. Dell Mktg., No. 05-35936, 2006 WL 2467913, Slip. Op., at *3 (9th Cir. August 28, 2006) (unpublished); Grogan v. Health Officer of County of Riverside, 221 F.3d 1348, 2000 WL 674735, at *2 (9th Cir. 17 May 22, 2000) (unpublished); Chem v. New York Life Ins. Co., 168 F.3d 498, 1999 WL 97289, at *2 (9th Cir. Feb. 25, 1999) (unpublished); New v. Armour Pharmaceutical Co., 67 F.3d 716, 722 (9th Cir. 1995). _The consistency standard also continues to gain momentum among the large number of district courts in the Ninth Circuit, having been cited or applied in nearly fifty decisions so far this year. See, e.g., Temple v. Adams, No. CV-F-04-6716, 2006 WL 2454275, slip. op., at *10 (E.D. Cal. Aug. 23, 2006) (dismissing with prejudice where complaint alleged facts showing untimeliness of claim and consistent allegations could not cure); Wheeler v. City of Oakland, No. C 05-0647, 2006 WL 1140992, slip. op., at *8 (N.D. Cal. Apr. 28, 2006) (dismissing with prejudice where complaint alleged facts suggesting that city did not have policy of indifference to civil rights and any amended claim would have to plead inconsistent facts that it did); U.S. v. University of San Francisco, No. C 04-03440, 2006 WL 335316, at *3 (N.D. Cal. Feb. 14, 2006) (dismissing with prejudice where complaint alleged fact that termination was effective in May and any\amended claim would have to “plead inconsistent fact of August}-— Indeed, in decisions dismissing without prejudice, some Ninth Circuit district courts now instruct plaintiffs not to replead any allegations’ inconsistent with the dismissed complaint or claim. See, e.g., Rejects Skate Magazine, Inc. v. Acutrack, Inc., No. C 06-2590, 2006 WL 2458759, Slip Op., at *7 (N.D. Cal. Aug. 22, 2006) (plaintiffs may amend their complaint “if they can, truthfully and without contradicting the original complaint . . .”); McDaniels v. Hospice of Napa Valley, No. C 06-2558, 2006 WL 2038276, Slip. Op., at *9 (N.D. Cal. Jul. 19, 2006) (“Plaintiff is granted leave to amend to allege, if she can do so truthfully and without contradicting the original complaint”). 18 The consistency standard followed a_ similar progression from unexamined roots to repeated dicta to law _in the D.C. Circuit. The standard migrated to the D.C. Circuit from the Ninth Circuit when Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985), quoted Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962). It - gained momentum, although still dictum, when repeated in several circuit and district court decisions, namely Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996); Andrx Pharmaceuticals, Inc. v. Biovail Corp., Int’l., 256 F.3d 799, 807 (D.C. Cir. 2001); In re Office Prod. Co. Sec. Litig., 251 F. Supp. 2d 58, 75 (D.D.C. 2003); Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006); and Interbank Funding Corp. Sec. Litig., 432 F. Supp. 2d 51, 54 (D.D.C. 2006). In this case, the D.C. Circuit’s ruling transformed the ~ consistency standard from dictum to law for the first time. “D]ismissal with prejudice is warranted only when a district court determines that ‘allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’” Order, App. 5-6 (emphasis added, quoting Firestone v. Firestone, 76 F.3d at 1209). “The central premise of plaintiffs’ complaint and its theory of liability turn entirely on the Matching Program” and “[a] proposed amendment advancing price-fixing claims absent the Matching Program . . . would not be ‘consistent with the challenged pleading.’” Jd. Setting aside the clear inaccuracy of these statements, the threshold consistency question ended the D.C. Circuit’s inquiry here, and it never reached the Foman factors to determine whether the Residents’ proposed Amended Complaint pleaded a Section 1 claim (“we need not reach the Rule 15(a) issue,” Order, App. 7). The D.C. Circuit thus declined to endorse the district court’s dictum that any amendment would be futile, and in fact implied that it would not be. “Nothing in the District Court’s disposition or in ours precludes future plaintiffs from pursuing price- 19 fixing claims against those defendants or related individuals or entities that are unrelated to the Matching Program.” /d. If “future plaintiffs” may pursue the claim contained in the Amended Complaint, why are the Residents here being prevented from doing so? Unless reviewed now by this Court, the consistency standard is likely to proliferate further and continue to gain momentum, having now taken root in two of the most cited Circuits in the country. Additionally, seeds of the consistency standard already lay waiting in the Third, Fifth, Seventh and Tenth Circuits, where decisions have recognized the concept. See Roberts v. Mayor and Burgesses of London Borough of Brent, 70 Fed. Appx. 615, 619 (3d Cir. 2003) (unpublished); Murray v. Albany County Bd. of County Comm'rs, 211 F.3d 1278, 2000 WL 472842, at *2 (10th Cir. Apr. 20, 2000) (unpublished); Asher v. Harrington, 461 F.2d 890, 895 (7" Cir. 1972); Cupit v. U.S., 964 F. Supp. 1104, 1109 (W.D. La. 1997). The inescapable consequence of conflicting procedural standards is conflicting substantive results. Here, the D.C. Circuit treated the “inconsistency” issue as dispositive -- and fatal -- even though consistency between an amended and superseded complaint would be completely irrelevant in any other circuit except the Ninth. Similarly, the D.C. Circuit expressly held that it “need not reach the Rule 15(a) issue,” App. 7, even though the Rule 15(a) issue would be the dispositive issue under Foman and the law of all circuits other than the Ninth. “[T]o say that a district judge may not abuse his discretion is merely to say that the action in question . . . may not be done without considering relevant factors and giving a ‘justifying reason.’” Schlup v. Delo, 513 U.S. 298, 348 (1995) (Scalia, J., dissenting, quoting Foman, 371 U.S. at 182). That did not happen here, and regularly fails to happen in the D.C. and Ninth Circuits: This conflict among the circuits and with this Court as to the 20 proper standard for dismissal with prejudice should be resolved. C. The Lower Courts’ Decisions Demonstrate A Conflict Among The Circuits Regarding The Proper Standard For Post-Judgment Leave To Amend After Dismissal On The- Pleadings. . A similar split of authority among the Circuit Courts exists with respect to another important, frequently-arising and dispositive procedural issue: the proper standard for post-judgment leave to amend the complaint after dismissal. Such motions involve tension between two Federal Rules of Civil Procedure: Rule 15(a), which governs amendments and - allows them generously, and Rule 59(e), which governs post- judgment proceedings and allows them only sparingly. “Most courts faced with the problem have held that once a judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60.” 6 WRIGHT & MILLER § 1489. This Court has never articulated a general standard for altering or amending judgment under Rule 59(e). Proper grounds vary among the Circuit Courts and consist of some combination of an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. See Messina v. Krakower, 439 F.3d 755, 758-59 (D.C. Cir. 2006); Marks 3 Zet-Ernst Marks GmBh & Co. KG v. Prestek, Inc., 455 F.3d 7, 15 (ist Cir. 2006); Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006); Coliseum Square Ass'n, Inc. v. Jackson, _ F.3d __, 2006 WL 2664455 (Sth Cir. Sept. 18, 2006); Munafo v. Metropolitan Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004); Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005), cert. denied, 126 S. Ct. 1782 21 (2006); Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1064 n.1 (9th Cir. 2005); Kapelanski v. Johnson, 390 F.3d 525, 532 (7th Cir. 2004); Capitol Indemnity Corp. v. Russellville Steel Co., Inc., 367 F.3d 831, 834 (8th Cir. 2004); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). All of these Rule 59(e) standards are considerably higher than the liberal Rule 15(a) standard for leave to amend that this Court established in Foman v. Davis, 371 U.S. 178, 182 (1962): If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by, amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be “freely given.” Because in summary judgment or post-trial situations the lower standard of Rule 15(a) is not reached unless the higher standard of Rule 59(e) is met as a threshold requirement, many amendments are barred post-judgment that would be permitted pre-judgment. “This approach appears sound. To hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation.” 6 WRIGHT & MILLER § 1489. 22 But a majority of Circuit Courts, and indeed this Court, hold that this approach is not sound where judgment is on the pleadings because the policies underlying Rule 59(e) are largely applicable only to more substantive judgments, like summary judgment and judgment at trial. This Court applies the lower Rule 15(a) standard to post- judgment motions to amend the complaint after judgment on the pleadings, and applies the higher Rule 59(e) standard only as to more substantive judgments. In Foman, the district court dismissed the plaintiff's complaint under Rule 12(b)(6) and entered judgment, subsequently denying a motion to vacate and amend (which were treated by this Court as a Rule 59(e) motion). 371 U.S. at 180. The Court of Appeals affirmed. Jd. at 181. This Court reversed, ruling that denial of the plaintiff's Rule 59(e) motion was an abuse of discretion where she met the repleading standard of Rule 15(a). Id. at 182. Not surprisingly, the First, Second, Third, Fourth, Fifth, Sixth, Tenth and Eleventh Circuits have adopted the sensible (and, for that matter, binding) approach of this Court. See Laber v. Harvey, 438 F.3d 404, 427-28 (4th Cir. 2006) (“A conclusion that the district court abused its discretion in denying a motion to amend, however, is sufficient grounds on which to reverse the district court’s denial of a Rule 59(e) motion”); Spanish Broadcasting System of Fla., Inc. v. Clear Channel Communications, Inc., 376 F.3d 1065 (11th Cir. 2004) (“the[] same [Rule 15(a)] standards apply when a plaintiff seeks to amend after a judgment of dismissal has been entered by asking the district court to vacate its order of dismissal pursuant to [Rule ~ $9(e).”); Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5 Cir. 2003) (‘the disposition of the plaintiffs motion to vacate under rule 59(e) should be governed by the same considerations controlling the exercise of discretion under tule 15(a)’’”); Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002) (“Where a timely motion to amend judgment is 23 filed under Rule 59(e), the Rule 15 and Rule 59 inquiries turn on the same [Rule 15] factors”); Cureton v. National Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001) (“Where a timely motion to amend judgment is filed under Rule 59(e), the Rule 15 and 59 inquiries turn on the same [Rule 15] factors”); Judge v. City of Lowell, 160 F.3d 67, 79 (ist Cir. 1998) (applying Rule 15(a) standard to motion to amend following Rule 12(b)(6) dismissal and judgment); Acito v. IMCERA Group, Inc., 47 F.3d 47, 54-55 (2d Cir. 1995) (applying Rule 15(a) standard to Rule 59(e) motion after dismissal and judgment on the pleadings); Bauchman for Bauchman v. West High Sch., 132 F.3d 542, 559 (10th Cir. 1997) (“To safeguard a plaintiffs’ opportunity to test her claims on the merits, Rule 15(a) .. . provides that leave of the court to amend the pleadings should be freely given when justice requires.”’) The D.C. Circuit disagrees, and “applies the higher Rule 59(e) standard to judgments on the pleadings in addition to more substantive judgments. As stated here (Order, App. 6): After a district court has dismissed a complaint with prejudice, a party can amend that complaint under Rule 15(a) only by first prevailing on a Rule 59(e) motion to alter of amend the judgment. Firestone [v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)]. Although Rule 15(a)’s liberal standard for granting leave to amend governs once the court has vacated the judgment, a party must first satisfy Rule 59(e)’s more stringent standard. Only the Seventh, Eighth and Ninth Circuits join the D.C. Circuit in applying the higher Rule 59(e) standard and failing to distinguish between judgments on the pleadings and more substantive judgments. As described by the Ninth 24 Circuit, “(t]he issue is not leave to amend .... The question is whether the court, when it dismissed the case, committed some clear error that required it to reopen that judgment.” Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir. 2001) (rejecting Rule 15(a) standard and applying the Rule 59(e) standard to a motion to amend following judgment on the pleadings). See also Burgess v. Sailors’ Union of Pacific, 63 Fed. Appx. 337, 339 (9th Cir. 2003) (unpublished) (applying the Rule 59(e) standard and rejecting that of Rule 15(a) because “(t]he rationale requiring courts to liberally grant leave to amend is inapposite after the entry of judgment”); Adamson v. Lockheed Martin Idaho Technologies Co., 20 Fed. Appx. 715, 718 (9th Cir. 2001) (unpublished) (applying Rule 59(e) standard). The Seventh Circuit holds that while Rule 15(a) presumes liberal leave to amend, “this presumption is reversed in cases, such as here, where a plaintiff seeks to amend a complaint after judgment has been entered and a case has been dismissed.” Bressner v. Ambroziak, 379 F.3d 478, 484 (7th Cir. 2004) (declining to apply the Rule 15(a) standard to a motion to amend following judgment on the pleadings, citing several Seventh Circuit cases). Similarly, the Eighth Circuit holds that “although a motion to amend a complaint should be freely given under [Rule] 15(a), different considerations apply to motions filed after dismissal” on the pleadings, requiring a “valid reason” for failure to amend earlier. Parnes v. Gateway 2000, Inc., 122 F.3d 539, 550 (8th Cir. 1997) (quotations omitted). Cf Sanders v. Clemco Indus., 823 F.2d 214, 216-17 (8th Cir. 1987) (applying Rule 15(a) standard to post-judgment motion to amend). In its Order, the D.C. Circuit ruled that the high standard of Rule 59(e) was not met in this case because there was no change of intervening law, no new evidence, no clear error below, and no manifest injustice. App. 7. Its only explanation was that “plaintiffs forfeited any claim of an abuse of discretion” because the Match legislation was 25 enacted in April 2004 and plaintiffs “had both the time and opportunity to request leave to amend their complaint prior to the entry of judgment [in August 2004], but chose not to.” Id. The Residents did not move to amend during that period, of course, because they did not concede that the new statute was fatal to their claim and they were entitled to a court ruling on that issue. Setting aside the number of Circuit Courts that strictly apply the Rule 59(e) standard to post-judgment motions to amend the complaint after dismissal on the pleadings, the D.C. Circuit appears to stand entirely alone in holding that the Rule 59(e) standard is not met where the post-judgment motion to amend could have been made pre- judgment. Order, App. 7. If that is a legitimate basis to deny Rule 59(e) relief, then a district court’s discretion has virtually no bounds at all because post-judgment motions are almost always made precisely because they were not made pre-judgment. The D.C. Circuit broke new ground in adopting a concept that has so far been applied only where no Rule 59(e) motion was made—that dismissal with prejudice is not an abuse of discretion where no pre- judgment motion for leave to amend was made, thus improperly raising the amendment issue for the first time on appeal. See, e.g., Greenidge v. Allstate Ins. Co., 446 F.3d 356 (2d Cir. 2006) (plaintiffs may move to amend pre-or post-judgment, and where they do neither “a district court does not abuse its discretion when it fails to grant leave to amend a complaint without being asked to do so.”) The D.C. Circuit’s bright line hints at the Rule 15(a) consideration of “undue delay” (although it expressly declined to reach Rule 15(a) issues, App. 7), but the circuits are split on the proper standard there, too, and a simple pre- and post-judgment distinction follows neither. See Minter v. Prime Equipment Co., 451 F.3d 1196, 1205-06, n.15 (10th Cir. 2006) (noting that the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and D.C. Circuits require prejudice, bad faith, futility or a 26 substantial burden on the court to find undue delay, while the First, Third, Tenth and Eleventh Circuits focus on whether the delay is justified in light of all circumstances.) On this second procedural issue of amending the _ complaint after judgment on the pleadings, like the first issue of dismissal with prejudice, the D.C. Circuit applied a standard contrary to the standard endorsed by this Court and contrary to. the standard applied by a majority of Circuit Courts. Once again, the issues that were dispositive here -- Rule 59(e) considerations and the Residents’ failure to amend pre-judgment -- would have been irrelevant in the First, Second, Third, Fourth, Fifth, Sixth, Tenth and Eleventh circuits. By the same token, the issue that would have been dispositive in those Circuits under the standard endorsed by this Court -- Rule 15(a) -- was not even reached here. Nothing in the D.C. Circuit’s decision found or even insinuated that the Residents’ Amended Complaint failed to satisfy Rule 15(a). This conflict among the circuits and with this Court as to the proper standard for post-judgment _ repleading of a complaint should be resolved. See Hanna v. Plumer, 380 U.S. 460, 472 (1965) (emphasizing the importance of uniformity in application of federal procedural rules); United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 230-31 (1958) (granting certiorari to ensure uniformity in application of federal procedural rules). CONCLUSION For the foregoing reasons, petitioners Paul Jung, M.D.; Denise Greene, M.D.; and Luis Llerena, M.D.; respectfully request a writ of certiorari to review the June 1, 2006 decision of the Court of Appeals for the District of Columbia Circuit in this case. 27 Respectfully submitted, Michael J. Freed (Counsel of Record) Jean Janes MUCH, SHELIST, FREED, DENENBERG, AMENT & RUBENSTEIN, P.C. 191 N. Wacker Drive, Suite 1800 Chicago, IL 60606 (312) 521-2000 Sherman Marek LAW OFFICE OF SHERMAN MAREK 1055 W. Bryn Mawr Ave., #F-100 Chicago, IL 60660 (312) 805-0244 C. Barry Montgomery Deborah H. Bornstein WILLIAMS, MONTGOMERY: & JOHN, LTD. 20 North Wacker Drive, Suite 2100 Chicago, IL 60606 (312) 443-3200 October 23, 2006 App. 1 United States Court of Appeals For the District of Columbia Circuit. No. 04-7023 Paul Jung, M.D., et al., Appellees Vv. ASSOCIATION OF AMERICAN MEDICAL COLLEGES, et al., Appellees National Resident Matching Program, Appellant. Consolidated with 04-7138. Appeals from the United States District Court | for the District of Columbia (No. 02cv00873) Before: RANDOLPH and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge. JUDGMENT (Filed Jun. 1, 2006) This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of the parties. It is ORDERED and ADJUDGED that the District Court’s August 12, 2004 order and judgment be affirmed. App. 2 The District Court did not err in dismissing the complaint with prejudice pursuant to Rules 12(b)\(6) and 12(c) of the Federal Rules of Civil Procedure on the grounds that plaintiffs could “prove no set of facts in support of [their] claim which would entitle [them] to relief.” Conley uv. Gibson, 355 U.S. 41, 45-46 (1957); see Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). We review the dismissal of a complaint de novo, “view[ing] the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the non- moving party.” Peters v. Natl R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (quotation marks omit- ted). Paul Jung, M.D., Denise Green, M.D., and Luis Llerena, M.D., (“plaintiffs”) brought suit in May 2002 against a number of teaching hospitals, medical schools, and non-profit associations (collectively, “defendants”) involved in graduate medical education, challenging the way medical students are assigned to residency programs by one of the defendants, the National Resident Matching Program (“Matching Program”). The single-count com- plaint alleged that defendants participated in a conspiracy, in violation of the Sherman Act, 15 U.S.C. § 1, to “illegally restrain competition in the market for resident physician services” by “(a) stabilizing wages below competitive levels by exchanging competitively sensitive information regard- ing resident physician compensation and other terms of employment; (b) eliminating competition in the recruit- ment and employment of resident physicians by assigning prospective resident physician employees to positions through the National Resident Matching Program ... ; and (c) establishing and complying with anticompetitive App. 3 and accreditation standards and requirements.” Compl. in 02-0873 at 5-6. On April 10, 2004, the Pension Funding Equity Act of 2004, Pub. L. No: 108-218, 118 Stat. 596 (2004) (the “Act”), became law. Section 207 of the Act, 15 U.S.C. § 37b, not only exempts “graduate medical education residency matching program|s]” from antitrust laws, but it also bars evidence of any participation in such programs in support of a claim in federal court that antitrust laws have been violated, id. § 37b(b)(2). A savings clause provides that Section 207 does not exempt from antitrust laws “any agreement on the part of 2 or more graduate medical education programs to fix the amount of the stipend or other benefits received by students participating in such programs,” id. § 37b(b)(3). By its express terms, Section 207 applies to suits pending when it became law. 7d. § 37b(c). Within days of enactment, defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c). On August 12, 2004, the District Court granted the motion and dismissed the complaint with prejudice, holding that plaintiffs’ claim relied entirely upon the Matching Program and was, therefore, barred by Section 207. We affirm the District Court. The Matching Program is the basis for plaintiffs’ complaint, and it falls squarely within both the exemption and bar of Section 207. The Act defines the term “graduate medical education resident matching program” by reference to the very program at ‘3sue in the complaint: “the National Resident Matching Program.” 15 U.S.C. § 37b(b)(1)(C). It is hard to imagine a more precise fit between the language of a statute and a App. 4 lawsuit. Plaintiffs attempt to recast the allegations of the complaint as a price-fixing scheme independent of the Matching Program so that they can claim the protection of the savings clause, id. § 37b(b)(3). They argue that the savings clause permits the use of evidence of participation in the Matching Program in a price-fixing case. We agree with the District Court that the complaint’s allegations are inextricably intertwined with the Matching Program and thus prohibited by Section 207. “The complaint does not allege a price-fixing conspiracy, but a single overriding integrated antitrust conspiracy with the Match as its centerpiece.” Op. in 02-0873 at 15. Plaintiffs fail “to demonstrate that absent the Match allegations, the Court in fact would have come to the same conclusion that ‘a conspiracy existed.’” Jd. at 16. We also agree that Section 207’s evidentiary bar, which applies to “any claim or action alleging a violation of the antitrust laws,” 15 U.S.C. § 37b(b)(2) (emphasis added), applies to plaintiffs’ claim because the bar “forbids invocation of the Match program as evidence in any antitrust suit, including one involving allegations of price-fixing.” Op. in 02-0873 at 18. Plaintiffs’ constitutional argument is likewise unavail- ing. They argue that Section 207 violates the separation of powers because “Congress has attempted to place a thumb on the scales in pending litigation.” Pl.’s Br. in 04-7138 at 31. But Congress has done nothing more here than amend the antitrust laws by carving out a safe harbor for partici- pation in “graduate medical education residency matching program|s].” Congress may amend substantive laws, even when doing so affects pending litigation. See Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 438 (1992) (uphold- ing a statute enacted in response to pending environ- mental litigation because it did not “direct any particular App. 5 findings of fact or applications of law, old or new,” but rather amended the governing substantive law). Congress may also change laws governing how evidence may be used. See Tot v. United States, 319 U.S. 463, 467 (1943) (“Congress has power to prescribe what evidence is to be received in the courts of the United States.”). Plaintiffs rely upon United States v. Klein, 80 U.S. 128 (1871), a case in which the Supreme Court struck down a statute that limited the scope of the President’s pardon power in an effort to change on appeal the result of cases that had already been decided. “Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress ‘amend|(s] applicable law.’” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, (1995) (quoting Seattle Audubon, 504 US. at 441); see also National Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001) (declining to find separation of powers violation under Klein when Congress made amendment to substantive law that affected pending litigation). Plaintiffs argue in the alternative that dismissal of their complaint should have been without prejudice. We review a dismissal with prejudice for abuse of discretion, see United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1259 (D.C. Cir. 2004); Confederate Memorial Ass’n v. Hines, 995 F.2d 295, 298-99 (D.C. Cir. 1993), and find none here. In Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996), we held that dismissal with prejudice is warranted only when a district court determines that “allegation of other facts consistent with the challenged pleading could not possibly cure the defi- ciency.” The central premise of plaintiffs’ complaint and its theory of liability turn entirely on the Matching Program. App. 6 A proposed amendment advancing price-fixing claims absent the Matching Program that would survive Section 207’s exemption and bar would not be “consistent with the challenged pleading.” See Firestone, 76 F.3d at 1209. Any allegation of other facts “consistent with the challenged pleading” would necessarily involve the Matching Program and “could not possibly cure the deficiency of the com- plaint.” See id. We affirm the District Court’s dismissal with prejudice. FURTHER ORDERED that the District Court’s January 25, 2005 order denying plaintiffs’ Rule 59(e) motion to alter or amend the judgment and their Rule 15(a) motion for leave to file an amended complaint be affirmed. We review denial of a Rule 59(e) motion for abuse of discretion. See Firestone, 76 F.3d at 1208. We find no abuse of discretion. After their complaint was dismissed with prejudice, plaintiffs filed a Rule 59(e) motion seeking to modify the judgment and a Rule 15(a) motion to allow the filing of an amended complaint. The District Court denied plaintiffs’ motions and held that the high standard for relief under Rule 59(e) had not been met. After a district court has dismissed a complaint with prejudice, a party can amend that complaint under Rule 15(a) only by first prevailing on a Rule 59(e) motion to alter or amend the judgment. Firestone, 76 F.3d at 1208. Although “Rule 15(a)’s liberal standard for granting leave to amend governs once the court has vacated the judgment,” Fire- stone, 76 F.3d at 1208, a party “must first satisfy Rule 59(e)’s more stringent standard.” Jd. “A Rule 59(e) motion ‘is discretionary’ and need not be granted unless the district court finds that there is an ‘intervening change of controlling law, the availability of new evidence, or the App. 7 need to correct a clear error or prevent manifest injus- tice.’” Id. (citation omitted). Here, there was no change of intervening law (Section 207 was enacted several months before the complaint was dismissed), no new evidence had become available, and the District Court’s ruling contains no “clear error” and _ threatens no “manifest injustice.” Dismissal of the com- plaint was warranted because it clearly falls within the range of suits Congress preempted by Section 207. As the District Court noted, “[p]laintiffs had both the time and opportunity to request leave to amend their complaint prior to the entry of judgment, but chose not to.” Mem. Op. . in 02-0873 at 3. “By failing to advise the court in a timely fashion — i.e., before the court ruled on the motion to dismiss” — that they were willing to amend their Com- plaint in light of Section 207, plaintiffs “forfeited any claim of an abuse of discretion.” See Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004). Nothing in the District Court’s disposition or in ours precludes future plaintiffs from pursuing price-fixing claims against those defendants or related individuals or entities that are unrelated to the Matching Program. Because we affirm the District Court’s refusal to grant the Rule 59(e) motion, we need not reach the Rule 15(a) issue. In addition, because we affirm the dismissal of the complaint, we do not reach the question of whether the District Court abused its discretion in denying the motion of the National Resident Matching Program to compel arbitration of plaintiffs’ claim. Pursuant to D.C. Circuit Rule 36, this-disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of App. 8 = any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: Michael C. McGrail Michael C. McGrail Deputy Clerk App. 9 339 F. Supp. 2d 26 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PAUL JUNG, M.D., et al., ) Plaintiffs, v. ASSOCIATION OF AMERICAN MEDICAL . COLLEGES, et al., Defendants. Civil Action No. 02-0873 (PLF) de PINION (Filed Aug. 12, 2004) This matter is before the Court for consideration of Defendants’ Motion for Judgment on the Pleadings. Plaintiffs in this putative class action are medical school graduates currently or formerly enrolled in resident physician “residency” programs. The defendants can be categorized into two groups: the organizational defendants (organizations and associations that participate in the administration of graduate medical education in the United States) and the institutional defendants (universi- ties, medical schools, foundations, hospitals, health sys- tems and medical centers that sponsor medical residency programs). Plaintiffs filed suit charging that the defen- dants have violated Section 1 of the Sherman Act, 15 U.S.C. § 1. Specifically, plaintiffs allege that the defen- dants have contracted, combined and conspired among themselves to “displace competition in the recruitment, hiring, employment and compensation of resident physi- cians, and to impose a scheme of restraints which have the App. 10 purpose and effect of fixing, artificially depressing, stan- dardizing and stabilizing resident physician compensation and other terms of employment.” Complaint (“Compl.”) q 2. On February 11, 2004, the Court issued an Opinion and Order addressing certain defendants’ motions to dismiss this action on various grounds. See Jung w. Asso- ciation of American Medical Colleges, 300 F. Supp. 2d 119 (D.D.C. 2004) (“February 11 Opinion and Order”). After the Court issued this Opinion and Order, Congress en- acted and President George W. Bush signed into law the Pension Funding Equity Act of 2004, Pub. L. No. 108-218, 118 Stat. 596 (2004), which includes a provision entitled “Confirmation of Antitrust Status of Graduate Medical Resident Matching Programs,” an amendment to the antitrust laws that has been codified as 15 U.S.C. § 37b. Certain defendants now move under Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings on the ground that the action must be dismissed in light of this new legislation which creates or confirms an antitrust exemption for graduate medical education residency matching programs. I. BACKGROUND A. Plaintiffs’ Allegations In their class action complaint in this case, plaintiffs assert that there are three intertwining prongs to the antitrust conspiracy they allege. The first prong of the alleged conspiracy concerns the annual assignment of fourth-year medical students to the institutional defen- dants’ residency programs by the National Resident Matching Program (“NRMP”). The NRMP, an Illinois App. 11 not-for-profit corporation, is managed and operated by defendant American Association of Medical Colleges (“AAMC”) from AAMC’s principal office in Washington, D.C. See Compl. J 15. The AAMC also is an Illinois not-for- profit corporation, whose membership includes all 125 accredited medical schools, including those medical schools named in the complaint, and approximately 375 major teaching hospitals and health systems, some of which also are named in the complaint. These hospitals and health systems are member hospitals of a subsection of the AAMC, the Council of Teaching Hospitals and Health Systems (“COTH”) Section. See id. J 17. Plaintiffs further allege that in order to effectuate the assignment, or the “Match,” as it is commonly called, prospective medical residents enter into contracts with and submit to the NRMP a ranked list of desired medical resident positions with various institutions (“Student Match Contract”). The institutions themselves also enter into contracts with the NRMP and submit ranked lists of the medical students whom they are interested in hiring (“Institutional Match Contract”). On a date certain, the NRMP through an algorithm “matches” the students’ lists against the institutions’ rankings, resulting in the assign- ment of each prospective medical resident to one residency program. See Compl. 9{ 15, 83-86. Plaintiffs allege that this system eliminates a free and competitive market and substitutes a centralized, anticompetitive allocation system that assigns prospective resident physicians to a single, specific and mandatory residency program. Plaintiffs further allege that the defendants designed and imple- mented this system and collectively agreed to comply with it in violation of the antitrust laws. See id. J 83. App. 12 Several specific features of this assignment system allegedly serve to impose anticompetitive restraints on medical residency hiring. Plaintiffs allege that a medical student is required to enter into the Match if he or she wishes to gain employment in a residency program accred- ited by defendant Accreditation Council for Graduate Medical Education (“ACGME”). See Compl. 771. An individual’s participation in an ACGME-accredited resi- dency program in turn allegedly is a prerequisite for specialty certification by a member board of defendant American Board of Medical Specialties (“ABMS”), an Illinois not-for-profit corporation consisting of 24 recog- nized medical specialty certification boards, upon comple- tion of the residency. See id. J] 20, 69. Plaintiffs allege that eventual specialty certification by an ABMS board is considered critical to prospective residents inasmuch as they desire to be “certified” to practice within a specialty following the completion of their residencies. The practical effect of this structure, plaintiffs charge, is that the vast majority of medical students are compelled to participate in the Match, which is a substitute for all aspects of competitive individual negotiations and requires appli- cants to commit contractually to any assigned position as a condition of enrolling in the Match Program. See id. J{ 69, 86. Furthermore, certain implementing policing mecha- nisms of the Match allegedly compel compliance with the foregoing restraints. These alleged mechanisms include the requirement that program participants immediately report suspected policy violations to the NRMP and advise the relevant organizational authorities of institution or resident physician violations. See id. | 86(c). In the second prong of the alleged conspiracy, plain- tiffs assert that certain aspects of the aforementioned App. 13 ACGME accreditation standards, with which the institu- tional defendants allegedly voluntarily comply, function to further restrict residency employment. Specifically, plain- tiffs allege that the ACGME (1) has the authority to regulate the number of employment positions in a resi- dency program; (2) imposes substantial obstacles to the ability of a resident to transfer employment frorn one employer to another during the period of a residency, thereby effectively making NRMP assignments permanent for the duration of a residency; (3) encourages and/or requires participation in the Match by an institution as a condition of accreditation; and (4) directly reviews com- pensation and other terms of employment with the pur- poses of fixing and depressing them. See Compl. 7 88. The third prong of the alleged conspiracy concerns the exchange by defendants of information on resident com- pensation and other terms of employment through surveys and databases that plaintiffs allege has the purpose and effect of standardizing and stabilizing compensation and other terms of employment. See Compl. {{ 73-82. This exchange allegedly occurs in two ways. First, the AAMC___ annually surveys members of its COTH Section seeking compensation levels for the employment year, aggregates the results into various categories and distributes its findings in an annual report (the “COTH Survey” or “Survey”). See id. {9 74-79. Second, hospitals and health systems access similar information through an electronic database known as the Fellowship and Residency Elec- tronic Interactive Database (“FREIDA”), which is main- tained by defendant American Medical Association (“AMA”). See id. 4 80. Plaintiffs allege that this exchange of information allows institutional defendants to fix App. 14 resident salaries and benefits each year at depressed, anticompetitive levels. Plaintiffs charge that the execution of the Match program, the enforcement of the ACGME-accreditation standards, and the coordinated collection and distribution of residency program compensation information together produce a significant depression of residents’ salaries and working conditions by removing residents’ ability to achieve enhanced salaries and working conditions through competition. See Compl. 7] 92-96. Plaintiffs allege that defendants have violated Section 1 of the Sherman Act by contracting, combining and conspiring to unreasonably restrain trade and commerce. Plaintiffs filed this antitrust action as a proposed class action and have moved to certify both plaintiff and defendant classes. See Motion for Class Certification, filed November 3, 2003. . B. The February 11 Opinion and Order In its February 11 Opinion and Order, the Court (1) denied certain institutional defendants’ motion to dismiss for lack of personal jurisdiction; (2) granted the motion to dismiss for lack of personal jurisdiction of defendants Washington University Medical Center, the American Board of Medical Specialties and the Council of Medical Specialty Societies; (3) denied defendant National Resi- dent Matching Program’s motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and its motion to compel arbitration, and denied the motion to compel arbitration filed by the American Medical Association; (4) denied the motions to dismiss for failure to state a claim upon which relief can be granted filed by the Association of American App. 15 Medical Colleges and the Accreditation Council for Gradu- ate Medical Education; and (5) granted the motions to dismiss for failure to state a claim filed by the American Hospital Association, the American Medical Association and Yeshiva University. Specifically, the Court first concluded that it had personal jurisdiction over certain institutional defendants under the “conspiracy theory” of personal jurisdiction. The Court found that plaintiffs adequately had alleged “a conspiracy to depress resident compensation between, inter alia, those institutional defendants that participated in the Match and the NRMP” and that certain acts in furtherance of the conspiracy had taken place in the District of Columbia. See Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 142. The Court further concluded that it did not have personal jurisdiction over those moving defendants that plaintiffs had not adequately alleged participated in the conspiracy. See id. at 143. Second, the Court denied defendant NRPM’s motion to compel arbitration of those elements of the conspiracy claim that concerned the Match, concluding that the Supreme Court’s decision in Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962), and its progeny manifested “a clear and compelling coun- tervailing interest in the comprehensive adjudication of conspiracy claims brought under the Sherman Act.” Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 156. The Court denied the motion of the American Medical Association to compel arbitration on similar grounds. See id. Third, the Court denied the motions to dismiss for failure to state a claim filed by the Association of American Medical Colleges and the Accreditation Council for Graduate App. 16 Medical Education, concluding that “plaintiffs adequately have alleged a common agreement to displace competition in the recruitment, hiring, employment and compensation of resident physicians and to impose a scheme of restraints that has the purpose and effect of fixing, artificially depressing, standardizing and stabilizing resident physi- cian compensation and other terms of employment among certain defendants” and that the moving defendants participated in that conspiracy. Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 173-74. In considering the Rule 12(b)(6) motions, the Court assessed the conspiracy allegations holistically rather then parsing out and considering those allegations that expressly related to the individual moving defendants. See id. at 160-61 (citing Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. at 699, and American Tobacco Co. v. United States, 328 U.S. 781, 809 (1946)).’ C. The New Legislation On April 10, 2004, President Bush signed into law the Pension Funding Equity Act of 2004, Pub. L. No. 108-218, 118 Stat. 596 (2004), which includes Section 207 entitled “Confirmation of Antitrust Status of Graduate Medical Resident Matching Programs,” now codified as 15 U.S.C. § 37b (“Section 207”). At its core, Section 207 provides that “{it]} shall not be unlawful under the antitrust laws to sponsor, conduct, or participate in a graduate medical education residency matching program, or to agree to * The Court concluded that plaintiffs failed to allege adequately that defendants AHA, AMA and Yeshiva University participated in the conspiracy. See Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 173-74. App. 17 sponsor, conduct, or participate in such a_program.” 15 U.S.C. § 37b(b)(2) (the “substantive” provision). In addi- tion, the statute provides that “[e]vidence of any of the conduct described in the preceding sentence shall not be admissible in Federal court to support any claim or action alleging a violation of the antitrust laws.” Jd. (the “eviden- tiary prohibition”). The stated purposes of the law are to “confirm that the antitrust laws do not prohibit sponsor- ing, conducting, or participating in a graduate medical education residency matching program, or agreeing to do so; and ... [to] ensure that those who sponsor, conduct or participate in such matching programs are not subjected to the burden and expense of defending against litigation that challenges such matching programs under the anti- trust laws.” 15 U.S.C. § 37b(a)(2XA)-(B). Section 207 creates a price-fixing exemption for a certain class of antitrust claims, providing that “[nJothing in this section shall be construed to exempt from the antitrust laws any agreement on the part of 2 or more graduate medical education programs to fix the amount of the stipend or other benefits received by students participating in such programs.” 15 U.S.C. § 37b(b)(3). Section 207 took effect on April 10, 2004, and applies “to conduct whether it occurs prior to, on, or after such date of enactment” and “to all judicial and administrative actions or other proceedings pending on such date of enactment.” 15 U.S.C. § 37b(c). Defendants argue that judgment must be entered on their behalf because Section 207 precludes plaintiffs from pursuing their claim in light of the Court’s conclusion in the February 11 Opinion and Order that plaintiffs allege a single overarching conspiracy with three interrelated prongs with the Match program at its center. Section 207 requires this conclusion, defendants App. 15 argue, both by expressly exempting the Match program and its participants from the antitrust laws and by forbid- ding the consideration of evidence related to any entities’ sponsorship, conduct, or participation in a graduate medical education residency matching program, or agree- ment to sponsor, conduct, or participate in such a program, in support of any antitrust claim. See Defendants’ Motion for Judgment on the Pleadings (“Defs.’ Mot.”) at 5-6. Defendants further argue that the legislation expressly applies to this action and that the “price-fixing” clause does not save plaintiffs’ claim. See id. at 6-7. II. DISCUSSION A. Procedural Posture of Defendants’ Motion Plaintiffs first argue that defendants’ motion for judgment on the pleadings is premature because fifteen of the moving defendants have not yet answered the com- plaint. See Plaintiffs’ Response Opposing Defendants’ Rule 12(c) Motion for Judgment on the Pleadings (“Pls.’ Opp.”) at 2-3. Rule 12(c) of the Federal Rules of Civil Procedure states that “[alfter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” FED. R. Civ. P. 12(c). This argument must fail, however, because if a party files a Rule 12(c) motion before its answer, the Court may treat it as a motion to dismiss under Rule 12(b)(6) for failure to state a claim. See Dale v. Executive Office of the President, 164 F. Supp. 2d 22, 24 (D.D.C. 2001) (citing Seber v. Unger, 881 F. Supp. 323, 325 n.2 (N.D. Ill. 1995)); Moran v. Peralta Community College Dist., 825 F. Supp. 891, 894 (N.D. Cal. 1993) (considering Rule 12(c) motion even though all defendants had not yet answered because App. 19 otherwise plaintiff could avoid Rule 12(c) motion simply by not serving one defendant). No prejudice to any party results from treating a Rule 12(c) motion as a Rule 12(b)(6) motion because the stan- dard of review for motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is essentially the same as that for motions to dismiss under Rule 12(b)(6). See Ramirez v. Dep’t of Corrections, 222 F.3d 1238, 1240-41 (10th Cir. 2000); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987); Transworld Products Co. v. Canteen Corp., 908 F. Supp. 1, 2 (D.D.C. 1995). On either motion, the Court may not rely on facts outside the pleadings and must construe the complaint in the light most favorable to the non-moving party. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Granting judgment on the pleadings pursuant to Rule 12(c) or a motion to dismiss for failure to state a claim under Rule 12(b)(6) is warranted only if it appears beyond doubt, based on the allegations contained in the complaint, that “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Alicke v. MCI Communications Corp., 111 F.3d 909, 912 (D.C. Cir. 1997). Fourteen of the moving defendants have filed an- swers. The remaining 15 movants have noi filed an answer or a motion to dismiss pursuant to Rule 12(b)(6). Although certain defendants in this latter group filed motions to dismiss for lack of personal jurisdiction under * Contrary to the allegations in plaintiffs’ brief, defendants ACGME and AAMC have filed answers to the complaint. App. 20 Rule 12(b)(2), such motions do not preclude them from later filing motions to dismiss for failure to state a claim. See Fep. R. Civ. P. 12(g) (“If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not there:.rter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.”) (emphasis added). Rule 12(h)(2) expressly mentions a motion to dismiss for failure to state a claim. Based on the foregoing authorities, the Court con- cludes that it is appropriate for it to proceed with consid- eration of defendants’ motion under Rule 12(c) for those defendants that have answered the complaint and under Rule 12(b)(6) for those defendants that have not. The motion is not premature as to any defendant. B. The Impact of Section 207 Defendants first argue that “Congress has now made clear through Section 207 that it is not unlawful under the antitrust laws to sponsor, conduct, or participate in the Match or to agree to sponsor, conduct or participate in the Match.” Defs.’ Mot. at 6. While that may be true, that alone is insufficient because plaintiffs do not allege in their complaint that the existence of and/or participation in the Match is a per se violation of the antitrust laws. Instead, plaintiffs argue that the Match, in combination with the dissemination of the COTH Survey and the en- forcement of the ACGME accreditation standards, functions to suppress competition in resident hiring and compensa- tion, resulting in depressed salaries and benefits. See Jung App. 21 uv. Association of American Medical Colleges, 300 F. Supp. 2d at 161-62, 167.’ This isa critical distinction, because, as the Court noted in its February 11 Opinion and Order, if lawful acts are used as the means to effectuate an anti- trust conspiracy, the conspiracy itself is still unlawful. See id. at 160-61. The Supreme Court has concluded that “[i]t is not of importance whether the means used to accom- plish the unlawful objective are in themselves lawful or unlawful. Acts done to give effect to the conspiracy may be in themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition.” American Tobacco Co. v. United States, 328 U.S. at 809. See also Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. at 707 (“acts which are in and of themselves legal lose that character when they become constituent elements of an unlawful scheme.”). Accord- ingly, congressional confirmation that the Match program or participation in the Match program does not constitute a per se violation of the antitrust laws in the substantive provision of Section 207 does not defeat plaintiffs’ anti- trust claim. The second sentence of Section 207(b)(2) goes on to provide, however, that “[e]vidence of any of the conduct described in the preceding sentence shall not be admissi- ble in Federal court to support any claim or action alleging a violation of the antitrust laws.” 15 U.S.C. § 37b(b)(3). * Interestingly, in an effort to make out long-arm jurisdiction, plaintiffs did attempt to suggest at oral argument on defendants’ - motion to dismiss that the tortious injury (if not the antitrust injury) to plaintiffs was the Match itself but, in view of plaintiffs’ complaint, the Court rejected the argument. See Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 136. App. 22 Defendants argue that this provision prohibits plaintiffs from “us{ing] allegations related to the Match to support any antitrust claim, price-fixing or otherwise. Because plaintiffs’ ‘single’ claim depends on evidence that defen- dant sponsored, conducted, or participated in the Match, Section 207 is fatal to their complaint, and it should be dismissed.” Defs.’ Mot. at 7. Plaintiffs respond to this charge in two ways. First, plaintiffs argue that “(the February 11 Order and Opinion] upheld plaintiffs’ price-fixing conspiracy claim without significant reliance on the allegations regarding the Match.” Pls.’ Opp. at 9-10. Accordingly, plaintiffs argue, the evidentiary prohibition does not defeat plaintiffs’ claim. In support of this assertion, plain- tiffs cite those portions of the February 11 Opinion in which the Court assessed the conspiracy claim as it relates to the AAMC and the ACGME and the allegations regard- ing the defendants’ wage information and exchange and accreditation activities. See id. at 9. They argue-that the Court focused not on the Match, but on the other prongs of the alleged conspirecy almost entirely. See id. at 9-10. In so arguing, however, plaintiffs fail to consider that the Court’s conspiracy analysis entailed two steps, the first of which relied greatly on allegations related to the Match. In considering the original Rule 12(b)(6) motions, the first question the Court asked was whether plaintiffs adequately had alleged that an antitrust conspiracy existed. In concluding that they had, the Court focused on the highly intertwined, three-pronged nature of the alleged conspiracy, and relied in large part on the primary role the Match allegations played in the conspiracy claim. See Jung v. Association of American Medical Colleges, 300 - F. Supp. 2d at 162 (concluding that “plaintiffs adequately App. 23 have alleged a common agreement ... among a number of the named organizational defendants and those institu- tional defendants that participated in the Match Program”) (emphasis added). In the second prong of the Rule 12(b)(6) analysis the Court assessed whether plaintiffs had alleged adequately that the individual defendants. participated in the conspiracy. While -the Court did then focus on the allegations of the individual defendant at issue — in the . case of the AAMC, the allegations concerning the COTH Survey; with respect to the ACGME, the allegations that related to that defendant’s accreditation standards — such “individualized” analysis does not change the fact that the Court first had concluded that piaintiffs had alleged an intertwining three-pronged conspiracy with the Match at its core. Plaintiffs’ assertion that the Court considered the claims of the AAMC and the ACGME without reference to the Match is simply incorrect. Second, plaintiffs argue that “[e]ven without the Match allegations” the complaint satisfies “the three elements of a properly pleaded claim under Section 1 of the Sherman Act,” Pls.’ Opp. at 10-11, and that even without the Match-related allegations, the complaint still alleges a price-fixing conspiracy. See id. at 11. This argu- ment is unsupported by the complaint that plaintiffs filed in this case, however. The complaint does not allege a price-fixing conspiracy but a single overarching integrated antitrust conspiracy with the Match as its centerpiece. See Compl. 7493 (alleging three-pronged conspiracy), 58 (defendant class is defined in part by “all NRMP Institu- tional Participants”), 83-86 (alleging anticompetitive function of Match). Even the allegations that pertain to the ACGME accreditation standards rely in part on Match-related allegations. See id. ] 88(c) (“the ACGME App. 24 encourages and/or requires participation in the NRMP as a condition of accreditation”). Plaintiffs’ argument also is inconsistent with the Court’s characterization of plaintiffs’ claim in the February 11 Opinion and Order. See Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 161-62; see id. at 166-67. In fact, plaintiff’s current position is inconsistent with plaintiffs’ own previous position as set forth in their earlier filings. In opposing NRMP’s motion to compel arbitration, for example, plain- tiffs asserted that they allege: i a single, overarching conspiracy and the gravamen of plaintiffs’ claim against NRMP is that it combined and conspired with others to displace competition in the market for resident services and to fix and stabilize residents’ wages. The conspiracy which plaintiffs allege involves conduct significantly beyond particular features of the operation of the match program. While plaintiffs refer to certain conduct related to the operation of the match and its effects as some evidence of how the defendants carry out their overarching conspiracy to depress residents’ wages, the complaint makes clear that the anti- competitive conduct related to the Match is not limited solely to the NRMP and that the anti- competitive conduct related to the match neces- sarily interrelates with the other anticompetitive conduct alleged... . Plaintiffs’ Consolidated Brief Opposing Defendants’ Motion to Dismiss and to Compel Arbitration at 5 (underscore in original, italics added). See also Plaintiffs’ Brief in Support of Their Motion for Certification of a Plaintiff Class and Certification of a Defendant Class at 2; 5. App. 25 Finally, while arguing with reference to the allega- tions related to the other two prongs of the alleged con- spiracy that the conspiracy claim is legally sufficient without consideration of the Match-related claims, plain- tiffs make no attempt to demonstrate that absent the Match allegations, the Court in fact would have come to the same conclusion that a conspiracy existed based solely on the remaining prongs. Moreover, the burden cannot be on the Court to effectively rewrite the complaint and consider it, as reconfigured, without the central Match- related allegations in order to evaluate plaintiffs’ argu- ment here.’ While there may be a “tree ... without the Match limb,” Pls.’ Opp. at 14-15, plaintiffs’ conclusory argument does not convince the Court that it is so.° The Court concludes that the allegations concerning the Match * Nor would such an endeavor by the Court be consistent with the February 11 Opinion and Order. See Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 155 (“conspiracy allegations in antitrust cases cannot be compartmentalized and considered in isolation ‘as if they were separate lawsuits, thereby overlooking the conspiracy claim itself’ ”) (quoting Jn re Fine Paper Antitrust Litigation, 685 F.2d 810, 822 (3d Cir. 1982)). * The Court’s dismissal of the AMA in the February 11 Opinion and Order is irrelevant. Plaintiffs argue that “the Order shows — indeed establishes as the law of this case — that legal failure of one component of defendants’ alleged conspiracy may lead to the dismissal of any defendant. only involved in that component, but does not lead to the dismissal of the defendants involved in the remaining components.” Pls.’ Opp. at 13 (emphasis in original). Plaintiffs base this argument on the Court’s conclusion that the single allegation regarding the FREIDA database, in the absence of any other allegations relating to AMA participation in the conspiracy, “[did] not lend support to an inference that the AMA participated in the alleged conspiracy.” See Jung v. Association of American Medical Colleges, 300 F. Supp. 2d at 169. The allegations concerning the Match program, by contrast, permeate the complaint and, as the Court concluded, serve as a cornerstone of the conspiracy. See id. at 162. App. 26 and the institutional defendants’ participation in the Match are so interdependent that the Court cannot sepa- rate them from the remaining allegations. Because Con- gress has prevented this or any other Federal court from considering evidence of Match-related conduct, the Court necessarily concludes that plaintiffs’ complaint must be dismissed under 15 U.S.C. § 37b(b)\(3). C. The “Savings” Clause Plaintiffs next argue that notwithstanding the “evi- dentiary” prohibition of Section 207, the clause exempting price-fixing claims preserves their complaint. Section 207 provides that “[njothing in this section shall be construed to exempt from the antitrust laws any agreement on the part of 2 or more graduate medical education programs to fix the amount of the stipend or other benefits received by students participating in such programs.” 15 U.S.C. § 37b(f). Plaintiffs interpret this clause to exclude from the antitrust exemption all claims that allege the price-fixing of resident wages, including their own. See Pls.’ Opp. at 23. Plaintiffs construe this exclusion too broadly. Section 207 does not exclude all price-fixing claims related to resident_ compensation; it only excludes price-fixing claims that allege agreements between two or more institutional defendants to fix resident stipends and other benefits. There is a difference, and plaintiffs’ complaint demonstrates that difference. Their pleading does not allege an agreement among residency programs to fix wages paid to residents. It alleges that an agreement exists between institutional defendants and numerous organizational defendants to suppress competition and depress compensation, and the allegations related to the organizational defendants — the Match Program, the AAMC dissemination of information, App. 27 and the ACGME accreditation standards — comprise the heart of plaintiffs’ claim. See Jung v. Association of Ameri- can Medical Colleges, 300 F. Supp. 2d at 161-62. In an attempt to save their claim, plaintiffs also maintain that the Court must conclude that the savings clause is exempt from the evidentiary prohibition of Section 207, arguing that the restrictions on the admissi- bility of certain evidence in subsection (b)(2) cannot apply to price-fixing suits provided for in subsection (b)(3) because the subsection states that “nothing” in Section 207 shall provide exemptions from price-fixing claims. See Pls.’ Opp. at 26. Again, plaintiffs misread the statute. Applica- tion of the evidentiary provision to the savings clause does not function to preclude the excepted price-fixing claims. Application of the provision merely forbids invocation of the Match program as evidence in any antitrust suit, including one involving allegations of price-fixing; but price-fixing claims unrelated to the Match as described in Section 207(b)\(3) are not affected. D. Constitutional Challenges to Section 207 Plaintiffs understandably are frustrated. They won a significant victory in court; Congress now has snatched it away. As a result, they have spent a significant portion of their brief discussing the “highly peculiar” legislative path Section 207 took before its passage. Pls’ Opp. at 17. They point out that there were no hearings, no testimony, no significant debate, and vigorous opposition from those few Senators and Representatives who cared enough or were importuned enough to focus on the Match legislation. See id. at 16-22. “By furtively attaching the Match Legislation as a rider to an unrelated bill on the eve of imminent App. 28 passage rather than introducing legislation through normal procedures, defendants were able to avoid public and Congressional awareness and avoid opposition to their scheme.” Jd. at 21. As Bismarck suggested, “the making of laws, like the making of sausage, is something from which the fastidious person would often be well advised to avert his or her gaze.” ACLU v. Capitol Square Review Advisory - Board, 243 F.3d 289, 309 n.21 (6th Cir. 2001); Community Nutrition Institute v. Block, 749 F.2d 50, 51 (D.C. Cir. 1984) (same). Absent a valid constitutional challenge to a law passed by Congress and signed by the President, however, the responsibility of the courts is to interpret and apply the statute, not to second-guess. See Mistretta v. United States, 488 U.S. 361, 384 (1989) (“When this Court is asked to invalidate a statutory provision that has been approved by both Houses of Congress and signed by the President, . .. it should only do so for the most compelling constitutional reasons.”) (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (Stevens, J., concurring)); Nuclear Energy Institute, Inc. v. EPA, No. 01-1258, 2004 U.S. App. LEXIS 14186, *144 (D.C. Cir. July 9, 2004) (“Congress has settled the matter, and we, no less than the parties, are bound by its decision.”). Plaintiffs challenge the constitutionality of Section 207 on several grounds. Upon consideration of the parties’ arguments, the Court concludes that none of plaintiffs’ arguments saves plaintiffs’ conspiracy claim. 1. Separation of Powers Plaintiffs charge that interpreting Section 207 to require disposition of this action in defendants’ favor would amount to “a legislative adjudication of this pending App. 29 case” in violation of “bedrock separation of powers princi- ples” because “Congress may not ... direct decisions in pending cases.” Pls.’ Opp. at 28. Plaintiffs rely primarily on the Supreme Court’s decision in United States v. Klein, 80 U.S. 128 (1871). Klein concerned a suit seeking pro- ceeds from cotton seized from a Confederate sympathizer and sold by the Union army during the Civil War. The petitioner filed the suit pursuant to a federal statute that allowed recovery of seized property by owners if they provided proof of loyalty to the Union, which loyalty, the Court previously had determined, could be proven by evidence of a presidential pardon of the owner for any support he offered to the Southern rebellion. See id. at 142-43. The owner of the cotton had received such a pardon. After petitioner had recovered in the Court of Claims, however, Congress passed another statute that precluded the use of any pardons given to those who participated in the rebellion to demonstrate proof of loyalty, and provided that acceptance of such a pardon in fact demonstrated disloyalty. Congress also directed that upon presentation of proof of such a pardon, the Court of Claims and the Supreme Court must dismiss the property claim for want of jurisdiction. See id. at 143-44. The Supreme Court found the statute unconstitu- tional in two respects. First, the Court determined that Congress is prohibited from “prescrib[ing] a rule for the decision of a cause in a particular way” in cases “pending before [the Judicial department of the government].” United States v. Klein, 80 U.S. at 146. As noted, the Court of Claims had already rendered judgment for the claimant, and an appeal had been taken to the Supreme Court. The Supreme Court found the statute at issue unconstitutional because it had the effect of forbidding the Supreme Court App. 30 (and for the future, the Court of Claims) from “giv[ing] effect to the evidence which, in [the Court’s] judgment, such evidence should have, and .. . direct[ing it] to give it an effect precisely [to] the contrary.” Jd. at 147. In so concluding, the Court distinguished those cases in which “new circumstances” are created under the statute that have the effect of determining the outcome of the case. Id. Second, the statute impaired the effect of the Presidential pardon and therefore infringed upon the constitutional power of the Executive. It was clear to the Supreme Court that “the legislature cannot change the effect of such a pardon any more than the executive can change a law ~ [passed by the legislature].” Jd. at 147-48." Plaintiffs argue that the evidentiary prohibition enacted by Congress with respect to the Match cannot stand under Klein because Congress “may not constitu- tionally assume the judicial function of determining the effect or weight to be given to evidence in a pending case” by altering the rules of decision such that the alteration directs disposition of the action in defendants’ favor. See Pls. Opp. at 32.’ As the D.C. Circuit has noted, “Klein’s * As later explained by the Supreme Court, the statute at issue in Klein was unconstitutional in two respects: First, “it prescribed a rule of decision in a case pending before the courts, and did so in a manner that required the courts to decide a controversy in the Government's favor.” Second, the statute infringed the constitutional power of the President to issue pardons. United States v. Sioux Nation of Indians, 448 U.S. 371, 404-05 (1980). ’ Plaintiffs also argue that interpreting the substantive provision of Section 207 to require the disposition of this lawsuit in defendants’ favor is unconstitutional. See Pls. Opp. at 30-31. In light of the Court’s conclusion that Section 207 by its own terms does not direct judgment for defendants, see Section II.B, supra, the Court does not reach this argument. App. 31 exact meaning is far from clear.” National Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001). One thing is certain, however, and that is that “[wlhatever the precise scope of Klein ... later decisions have made clear that its prohibition does not take hold when Congress ‘amend|[s] applicable law.’” Plaut v. Spend- thrift Farm, Inc., 514 U.S. 211, 218 (1995). When “a statute ‘compels changes in the law, not findings or results under old law,’ it merely amends the underlying law, and therefore is not subject to a Klein challenge.” Imprisoned Citizens Union v. Prasse, 169 U.S. 178, 187 (3d Cir. 1999) (quoting Robertson v. Seattle Audubon Society, 503 U.S. 429, 438 (1992)). See also Benjamin v. Jacobson, 124 F.3d 162, 174 (2d Cir. 1997) (“if legislation can be characterized as changing the underlying law rather than as prescribing a different outcome under pre-existing law, it will not violate the separation of powers principle formulated in Klein”). The Court concludes_that_by enacting the statute Congress changed the scope of permissible antitrust claims that may be resolved by the Federal courts. Con- gress exempted from antitrust-prosecution all claims that directly challenge the legality of the Match and participa- tion in the Match program by institutional defendants under the antitrust laws, and prohibited the use in anti- trust actions of evidence concerning the Match Program and its participants. The plain language of the statute add a new antitrust exemption to the antitrust laws and new procedural or evidentiary restrictions on the prosecution of certain antitrust actions. See 15 U.S.C. § 37b(b)(2).*° This ~ * Despite arguments to the contrary, the statute is not merely a confirmation of prior existing law, the titles of Section 207, “Confirmation (Continued on following page) App. 32 change in or amendment to applicable antitrust law does not, however, prescribe a different finding, conclusion or result in the outcome of this or any other particular antitrust case. It therefore does not run afoul of Klein. The line between a statute that provides the standard to which courts must adhere and a statute that compels a specific result in a pending action at times is difficult to draw. See Benjamin v. Jacobson, 124 F.3d at 174 (“The distinction may in some cases be hard to discern.”); Axel Johnson Inc. v. Arthur Andersen & Co., 6 F.3d 78, 81 (2d Cir. 1993) (“The conceptual line between a valid legislative change in law and an invalid act of adjudication is often difficult to draw.”). In this case, however, the line is clear, and the fact that Section 207 has application to actions beyond this lawsuit only bolsters the Court’s conclusion that the statute was amended. Section 207 precludes both claims challenging the antitrust status of the Match Program itself, and the consideration of evidence related to the Match Program in actions brought under the anti- trust laws. Accordingly, the Court concludes that plaintiffs can find no refuge in Klein and its articulation of the separation of powers doctrine. of Antitrust Status of Graduate Medical Resident Matching Programs,” and of subsection (b\2), “Confirmation of Antitrust Status,” and the articulated purpose of subsection (a)(2)A) notwithstanding. “The title of a statute ‘[is] of use only when [it] sheds light on some ambiguous word or phrase’ in the statute itself.” Carter v. United States, 530 U.S. 255, 267 (2000) (quoting Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (internal quotation omitted)) (brackets in original). Here, the statute is unambiguous. App. 33 2. Unconstitutional Taking Plaintiffs next argue that dismissal of their complaint under the evidentiary prohibition of Section 207 would constitute an unlawful taking in violation of the Fifth Amendment. Specifically, plaintiffs argue that with dis- missal they will lose their property interest in their future wages and working conditions. See Pls.’ Opp. at 36. These lost increased wages and bettered working conditions can only be considered “lost,” however, if plaintiffs succeed in this action and wages in fact are increased. Otherwise, there is no basis on which to assume that compensation would increase in the future. The court of appeals has made it clear that plaintiffs have no property interest in their pending claim. Causes of actions only become action- able property interests upon the entry of final judgment. Adams v. Hinchma~, 154 F.3d 420, 424 (D.C. Cir. 1998) (a cause of action “affords no definite or enforceable property right until reduced to a final judgment”); Grimesy v. Huff, 876 F.2d 738, 744 (9th Cir. 1989) (“a party’s property right in any cause of action does not rest until a final unreview- able judgment is obtained.”) (internal quotations and citation omitted) (emphasis in original). Similarly, to the extent that plaintiffs implicitly assert that dismissal of their complaint would constitute a taking in the form of past wage loss stemming from defendants’ anticompetitive behavior, those asserted lweses likewise are compeasable, if at all, only upon entry of a final judgment. 3. Additional Constitutional Arguments Plaintiffs also argue that dismissal of their antitrust claim through the evidentiary restriction of Section 207 would violate their right to due process, their right to access to the courts and their right to equal protection of App. 34 the laws. Plaintiffs first raise a due process claim under Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1645%3A1. Public record. Not legal advice.