419 F.3d 405 (5th Cir. 2005), 03-30752, LeClerc v. Webb

Docket Nº:03-30752, 03-31009.
Citation:419 F.3d 405
Party Name:Karen LeCLERC; Guillaume Jarry; Beatrice Boulord; Maureen D. Affleck, Plaintiffs-Appellants-Cross Appellees, v. Daniel E. WEBB, et al., Defendants, Daniel E. Webb; Harry J. Phillips, In Their Respective Official Capacities as Chairman and Vice-Chairman of the Louisiana Committee on Bar Admissions; Jeffery P. Victory; Jeannette Theriot Knoll; Chet D
Case Date:July 29, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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419 F.3d 405 (5th Cir. 2005)

Karen LeCLERC; Guillaume Jarry; Beatrice Boulord; Maureen D. Affleck, Plaintiffs-Appellants-Cross Appellees,

v.

Daniel E. WEBB, et al., Defendants,

Daniel E. Webb; Harry J. Phillips, In Their Respective Official Capacities as Chairman and Vice-Chairman of the Louisiana Committee on Bar Admissions; Jeffery P. Victory; Jeannette Theriot Knoll; Chet D. Traylor; Catherine D. Kimball, a/k/a Kitty Kimball; John L. Weimer; Bernette Joshua Johnson, In Their Official Capacities as Justices of the Louisiana Supreme Court, Defendants-Appellees-Cross Appellants.

Caroline Wallace; Emily Maw, Plaintiffs-Appellees,

v.

Pascal F. Calogero Jr., in his official capacity as Chief Justice of the Louisiana Supreme Court; Jeffrey P. Victory; Jeannette Theriot Knoll; Chet D. Traylor; Catherine D. Kimball; John L. Weimer; Bernette J. Johnson, in their official capacities as Justices of the Louisiana Supreme Court; Daniel E. Webb; Harry J. Phillips, Jr., in their respective official capacities as Chairman and Vice-Chairman of the Louisiana Committee on Bar Admissions, Defendants-Appellants.

Nos. 03-30752, 03-31009.

United States Court of Appeals, Fifth Circuit.

July 29, 2005

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Louis R. Koerner, Jr., Law Offices of Louis R. Koerner, New Orleans, LA, for Plaintiffs in No. 03-30752.

Maureen D. Affleck (argued), New Orleans, LA, pro se.

Harry A. Rosenberg, Christopher Kent Ralston, Phelps Dunbar, New Orleans, LA, for all Defendants.

Vincent James Booth, Booth & Booth, New Orleans, LA, Schuyler W. Livingston (argued), Benjamin C. Block, Covington &

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Burling , Washington, DC, for Plaintiffs in No. 03-31009.

Bruce Victor Schewe (argued), Phelps Dunbar, New Orlens, LA, for Defendants in No. 03-31009.

Appeals from the United States District Court for the Eastern District of Louisiana

Before JONES, SMITH, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal arises from two consolidated actions filed by nonimmigrant aliens whose status, according to Louisiana Supreme Court Rule XVII, § 3 (B), renders them ineligible to sit for the Louisiana Bar. 1 The district courts disagreed whether the Louisiana rule impermissibly discriminates against the plaintiffs in violation of the Equal Protection Clause. Because the level of constitutional protection afforded nonimmigrant aliens is different from that possessed by permanent resident aliens, we hold that the Louisiana rule survives rational basis review.

BACKGROUND

I. Louisiana Bar Rule

Louisiana Supreme Court Rule XVII, § 3(B) ("Section 3(B)") requires that "[e]very applicant for admission to the Bar of this state shall . . . [b]e a citizen of the United States or a resident alien thereof." Prior to the adoption of Section 3(B), Louisiana precedent defined "resident alien" as a "foreign national[] lawfully within the United States." In re Appert, 444 So.2d 1208, 1208 (La. 1984). In 2002, the Louisiana Supreme Court overturned Appert, and held that the term "resident alien . . appl[ies] only to those aliens who have attained permanent resident status in the United States." In re Bourke, 819 So.2d 1020, 1022 (La. 2002). As interpreted in Bourke, Section 3 (B) effectively prohibits the instant plaintiffs – nonimmigrant aliens 2 who are "not entitled to live and work in the United States permanently" – from sitting for the Louisiana Bar. Bourke, 819 So.2d at 1022.

II. The LeClerc Plaintiffs

The LeClerc plaintiffs, Karen LeClerc, Guillame Jarry, Beatrice Boulord, and Maureen Affleck, are nonimmigrant aliens who hold degrees from foreign law schools and seek leave to sit for the Louisiana Bar. LeClerc and Jarry are French citizens admitted to the United States on J-1 student visas. 3 Boulourd, also a French citizen, was initially admitted to the United States on a J-1 student visa, but currently remains in the United States on an H-1B

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temporary worker visa. 4 Affleck is a Canadian citizen initially admitted to the United States on an L-2 spousal visa, 5 but currently remains in the United States on an H-1B temporary worker visa.

As graduates of foreign law schools seeking permission to sit for the Louisiana Bar, each plaintiff was required to apply for an equivalency determination pursuant to Louisiana Supreme Court Rule XVII, § 6 ("Section 6"). 6 Before the commencement of the LeClerc suit, Affleck applied for, and was denied an equivalency determination because her status did not comply with Section 3(B). The other plaintiffs filed for equivalency determinations after the suit commenced and were similarly refused. None of the plaintiffs appealed their equivalency denials as permitted by Louisiana Supreme Court Rule XVII, § 9 ("Section 9"). 7

On March 6, 2003, the plaintiffs filed suit, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1367, against the Louisiana Supreme Court 8 and the Chairman 9 and Vice-Chairman 10 of the Louisiana Committee on Bar Admissions (collectively "defendants") in their official capacities. The plaintiffs challenged the enforcement of Section 3 (B) and sought declaratory and injunctive relief and attorneys' fees. They requested expedited discovery related to the adoption of Section 3(B), including records of the Louisiana Supreme Court's official meetings, processes, and opinions. The defendants moved to quash the plaintiffs' discovery requests, asserting judicial and legislative immunity. Finding the defendants judicially immune, a magistrate judge granted the motion. On April 17, 2003, the plaintiffs moved for summary judgment, and the defendants countered with a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim based, inter alia, on standing, ripeness, Eleventh Amendment, judicial and legislative immunity, and abstention grounds.

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The district court partially granted the defendants' motion to dismiss, denied the plaintiffs' motion for summary judgment, and denied as moot the plaintiffs' appeal of the magistrate judge's discovery ruling. 11 While rejecting the defendants' jurisdictional arguments, the court held on the merits that: (1) Section 3(B) is not preempted by federal immigration or trade policy; (2) Affleck lacked standing to assert a claim under the NAFTA; 12 (3) the plaintiffs failed to state a claim for violation of either procedural or substantive Due Process; and (4) applying rational basis review, Section 3 (B) is rationally related to legitimate state interests, and, thus, constitutional. The district court denied plaintiffs' motion to reconsider on July 30, 2003. 13 Both parties timely noticed their appeals and cross-appeals.

III. The Wallace Plaintiffs

The Wallace plaintiffs'suit landed before a different federal district judge in New Orleans. Caroline Wallace and Emily Maw are nonimmigrant aliens who seek leave to sit for the Louisiana bar exam. Both are citizens of the United Kingdom who were admitted to the United States on temporary visas. Wallace holds an H-1B temporary worker visa and is licensed as an attorney in England and Wales. Wallace is currently employed doing non-attorney legal work. Maw was admitted to the United States pursuant to an F-1 student visa 14 and remains on an H-1B temporary worker visa. 15 Maw holds a law degree from Tulane University Law School in New Orleans and is currently employed as a paralegal.

Before filing suit, Wallace applied for an equivalency determination, and avers that after she was initially granted permission to sit for the Bar, permission was revoked for her noncompliance with Section 3(B). Although the record is unclear, Maw either applied to sit for the Bar exam or moved for admission by reciprocity. Either way,

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the defendants denied her application for lack of Section 3 (B) qualification. 16 Neither plaintiff appealed her denial to the Louisiana Supreme Court pursuant to Rule 9.

On May 2, 2003, the plaintiffs filed a suit against the defendants, which is parallel in all relevant respects to the LeClerc action. However, their motion to consolidate their action with the LeClerc suit was inexplicably denied. Cross-motions for judgment followed as in LeClerc, but with different results.

The Wallace district court denied the defendants' motion to dismiss and partially denied the plaintiffs' motion for summary judgment. Like the LeClerc court, the Wallace court rejected the defendants' jurisdictional arguments. The court dismissed the plaintiffs' preemption claim, but denied their Due Process claim as moot. On the plaintiffs' Equal Protection claim, however, the court applied strict scrutiny review and held that because Section 3 (B) is not the least restrictive means to achieve the state's asserted compelling interests, it is unconstitutional. Defendants timely noticed their appeal.

The two cases are consolidated on appeal in this court. Because the issues raised are nearly identical, any references to plaintiffs in the following discussion include, unless otherwise noted, the LeClerc and Wallace plaintiffs.

STANDARD OF REVIEW

We review de novo a district court's Rule 12 (b) (1) (motion to dismiss for lack of subject matter jurisdiction), Rule 12(b)(6) (motion to dismiss for failure to state a claim upon which relief can be granted), and Rule 56 (motion for summary judgment) dispositions, applying the same standards as the district court. Bombardier Aerospace v. Ferrer, Poirot & Wansbrough, P.C., 354 F.3d 348, 352 (5th Cir. 2003).

DISCUSSION

A. Federal Jurisdiction

The defendants maintain that the plaintiffs lack standing and present unripe claims. They further...

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