661 F.2d 1295 (D.C. Cir. 1981), 78-2235, Feldman v. Gardner

Docket Nº:78-2235, 79-1233.
Citation:661 F.2d 1295
Party Name:Marc FELDMAN, Appellant, v. William C. GARDNER, et al. Edward J. HICKEY, Jr., Appellant, v. DISTRICT OF COLUMBIA COURT OF APPEALS, et al.
Case Date:July 23, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1295

661 F.2d 1295 (D.C. Cir. 1981)

Marc FELDMAN, Appellant,

v.

William C. GARDNER, et al.

Edward J. HICKEY, Jr., Appellant,

v.

DISTRICT OF COLUMBIA COURT OF APPEALS, et al.

Nos. 78-2235, 79-1233.

United States Court of Appeals, District of Columbia Circuit

July 23, 1981

Argued Sept. 21, 1979.

As Amended Sept. 28, 1981.

Page 1296

[Copyrighted Material Omitted]

Page 1297

Appeals from the United States District Court for the District of Columbia (D.C. Civil Actions Nos. 78-0957, 78-1276).

Robert M. Sussman, Washington, D. C., with whom James A. Toupin, Washington, D. C., was on the brief, for appellant Marc Feldman.

Michael F. Henly, Washington, D. C., with whom Fred F. Fielding and Ingrid M. Olson, Washington, D. C., were on the brief, for appellant Edward J. Hickey, Jr.

Daniel A. Rezneck, Washington, D. C., with whom Abe Krash and Charles H. Cochran, Washington, D. C., were on the brief, for appellees.

Before ROBINSON, Chief Judge, ROBB, Circuit Judge, and DAVIS, Judge. [*]

Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.

Opinion concurring in part and dissenting in part filed by Circuit Judge ROBB.

Page 1298

SPOTTSWOOD W. ROBINSON, III, Chief Judge:

These cases mark the continuing efforts of two lawyers to surmount the single legal barrier to practice of their chosen profession in the District of Columbia. The obstacle they face is posed by Rule 46 I(b) of the District of Columbia Court of Appeals, which specifies that only graduates of law schools accredited by the American Bar Association (ABA), and graduates of other law schools who have taken supplementary courses at an ABA-approved institution, may sit for the District of Columbia bar examination. 1

Appellants, Edward J. Hickey and Marc Feldman, when intercepted by this proscription, petitioned the District of Columbia Court of Appeals 2 to waive it in their behalf. When the court declined to do so, they brought separate actions in the District Court assailing the validity of Rule 46 I(b) under the Constitution and the federal antitrust laws. In each instance the District Court dismissed the constitutional counts, as well as Feldman's antitrust attack, on the ground that it lacked jurisdiction to entertain them, reasoning that the Court of Appeals' rulings on the applications for waivers were judicial in nature, and as such were reviewable only in the Supreme Court of the United States. Hickey's antitrust suit was dismissed as frivolous.

Careful review of the antitrust arguments advanced by appellants satisfies us that they are insubstantial, and we affirm their dismissal on this basis. Intensive study of the jurisdictional problem, however, constrains us to conclude that the waiver proceedings were not judicial in the federal sense, and thus did not foreclose litigation of the constitutional contentions in the District Court. We accordingly reverse the dismissals of the constitutional claims and remand them for consideration on the merits. 3

I. BACKGROUND OF THE LITIGATION

Prior to the last decade, the District Court supervised admission to the District of Columbia bar. 4 In 1970, Congress enacted the District of Columbia Court Reform and Criminal Procedure Act, 5 by which that function was transferred to the District of Columbia Court of Appeals, together with authority to promulgate regulations governing bar membership. 6 The Court of Appeals subsequently adopted, as part of its general rules, the challenged provision limiting entry to the bar. This contested directive is embodied in Rule 46 I(b), which in pertinent part provides:

(3) Proof of Legal Education. An applicant who has graduated from a law school that at the time of graduation was approved by the American Bar Association or who shall be eligible to be graduated from an approved law school within 60 days of the date of the examination

Page 1299

will be permitted to take the bar examination. Under no circumstances shall an applicant be admitted to the bar without having first submitted to the Secretary to the Committee (on Admissions) a certificate verifying that he has graduated from an approved law school.

(4) Law Study in a Law School NOT Approved by the ABA. An applicant who graduated from a law school not approved by the American Bar Association may be permitted admission to an examination only after receiving credit for 24 semester hours of study in a law school that at the time of study was approved by the American Bar Association and with Committee approval. 7

This rule blocks both appellants, as presently circumstanced, from essaying to pass the District of Columbia bar examination. 8

  1. Appellant Hickey

    Following a career in the United States Navy, Hickey entered the Potomac School of Law in March, 1975. 9 He was aware that Potomac was not then accredited by ABA, 10 but hoped subsequently to transfer to an approved law school. 11 Shortly after he matriculated, however, the Court of Appeals waived Rule 46 I(b)(3) 12 in favor of the 1975 graduates of the International School of Law another recently established, unaccredited institution in order to permit them to sit for the bar examination without completing any additional courses. 13 Similar dispensations were later accorded to International's 1976 and 1977 graduating classes. 14

    In light of the indulgence thus extended to International's alumni, Hickey anticipated that upon completion of his studies at Potomac he too would be allowed to take the bar examination. 15 Contrary to his expectations, however, the Court of Appeals, in November of 1977, denied Potomac's petition for a temporary waiver of the rule on behalf of its graduates. Although students who had been graduated from International prior to August, 1977, would be permitted to sit for the bar examination, the court announced its resolve to discontinue exemptions. 16

    On April 18, 1978, Hickey, through his counsel, filed a petition in the Court of Appeals seeking personal exception from the rule. 17 Hickey set forth his academic achievements 18 and attached affidavits from members of the District of Columbia

    Page 1300

    bar attesting to his competence. 19 He urged that application of the newly-stated nonwaiver policy against him would be unfair, explaining that he had not anticipated it and that its enforcement would work particular hardship because he was then unemployed and the sole support of his wife and children. 20 Hickey's petition also alleged, on information and belief, that ABA policies precluded him from gaining admission to an accredited law school in order to qualify under the provisions of Rule 46 I(b)(4). 21 On June 12, 1978, the Court of Appeals denied Hickey's petition in what was styled as a per curiam order. 22 The court stated that ABA standards "permit enrollment of persons in petitioner's category" 23 in accredited law schools, but did not respond to any of the other grounds advanced by Hickey in support of his waiver request.

    Hickey then brought his action in the District Court. There he alleged that the Court of Appeals acted arbitrarily and capriciously in refusing him a waiver; 24 that Rule 46 I(b) contravenes both the equal protection and due process components of the Fifth Amendment; 25 and that appellees have unreasonably restricted entry into the legal profession, united in a combination in restraint of trade, attempted to monopolize and actually monopolized the practice of law in the District of Columbia, in violation of Sections 1 and 2 of the Sherman Act 26 and caused appellants to sustain injury to business or property within the meaning of Section 4 of the Clayton Act. 27 An affidavit accompanying the complaint avowed that every ABA-accredited law school in the District of Columbia had been contacted, and that each denied admission to individuals in his situation as a matter of policy, thus making it impossible for him to comply with Rule 46 I(b). 28

    The District Court dismissed the complaint for an asserted lack of jurisdiction. 29 The court held that the Court of Appeals' disposition of Hickey's waiver petition was judicial in character and therefore reviewable only in the Supreme Court. 30 The court further ruled that the antitrust laws did not apply to the type of action under attack. 31 Hickey's appeal followed.

  2. Appellant Feldman

    Feldman looked forward to a legal career upon graduation from college, but chose to read for the Virginia bar 32 rather than

    Page 1301

    attend law school. 33 Under the supervision of the state's Board of Bar Examiners, be began his training with a Charlottesville law firm in October, 1972. In the course of his studies, Feldman formally audited approximately 18 credit hours of classes at the University of Virginia Law School, and he spent the final six months of his apprenticeship as a law clerk to a district judge in this circuit. 34

    Feldman sat for the Virginia bar examination in February, 1976, and was admitted to the Virginia bar in April of that year. 35 From March 1, 1976, until January 1, 1977, he worked as a staff attorney with a legal aid bureau in Baltimore. 36 Maryland, like the District of Columbia, has a rule limiting the bar examination to graduates of ABA-approved institutions, 37 but the state's Board of Law Examiners waived the rule on Feldman's behalf. 38 He subsequently passed the Maryland examination and was admitted to the bar of that state. 39

    Feldman then applied to the Committee on Admissions of the District of Columbia bar for admission pursuant to a then-existent rule allowing a member of a bar of another jurisdiction to seek membership in the District bar without examination. 40 The Committee responded that Feldman's request could not be accepted because he was not a graduate of an accredited law school, and informed him that only the Court of Appeals had authority to make exceptions to this requirement. 41

    On June 13, 1977, Feldman petitioned the Court of...

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24 practice notes
  • 910 F.2d 201 (5th Cir. 1990), 89-2491, Scott v. Flowers
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 20 Agosto 1990
    ...remanded on the ground that the waiver proceedings at issue were not judicial, but rather administrative, in nature. Feldman v. Gardner, 661 F.2d 1295, 1315-19 On review, the Supreme Court concluded that the waiver proceedings were in fact judicial, since their purpose was to "investig......
  • 613 F.Supp. 381 (D.Guam 1983), Civ. 82-0009, Sakamoto v. Duty Free Shoppers, Ltd.
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 7 Diciembre 1983
    ...Railroad, 659 F.2d 243, 244 (D.C.Cir., 1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982); Feldman v. Gardner, 661 F.2d 1295 (D.C.Cir., 1981) cert. granted, District of Columbia Court of Appeals v. Feldman, 458 U.S. 1105, 102 S.Ct. 3481, 73 L.Ed.2d 1365 Page 387 and va......
  • 641 F.Supp. 767 (D.N.J. 1986), Civ. 86-562, Randolph v. Lipscher
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 25 Agosto 1986
    ...cognizable by an Article III court and, thus, was not appealable to the Supreme Court of the United States." Feldman v. Gardner, 661 F.2d 1295, 1318 (D.C.Cir.1981) (Footnotes The United States Supreme Court vacated the decision of the District of Columbia Circuit, and remanded to the D......
  • The Rooker-Feldman doctrine: toward a workable role.
    • United States
    • University of Pennsylvania Law Review Vol. 149 Nbr. 5, May 2001
    • 1 Mayo 2001
    ...460 U.S. at 464. (53) Id. at 466. (54) Id. at 466-67 (quoting Feldman's counsel's letter). (55) Id. at 468. (56) Feldman v. Gardner, 661 F.2d 1295, 1298 (D.C. Cir. 1981), vacated sub nom. D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). (57) Id. at 1298, 1308. (58) Id. at 1298, 1310, ......
  • Free signup to view additional results
23 cases
  • 910 F.2d 201 (5th Cir. 1990), 89-2491, Scott v. Flowers
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 20 Agosto 1990
    ...remanded on the ground that the waiver proceedings at issue were not judicial, but rather administrative, in nature. Feldman v. Gardner, 661 F.2d 1295, 1315-19 On review, the Supreme Court concluded that the waiver proceedings were in fact judicial, since their purpose was to "investig......
  • 613 F.Supp. 381 (D.Guam 1983), Civ. 82-0009, Sakamoto v. Duty Free Shoppers, Ltd.
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 7 Diciembre 1983
    ...Railroad, 659 F.2d 243, 244 (D.C.Cir., 1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982); Feldman v. Gardner, 661 F.2d 1295 (D.C.Cir., 1981) cert. granted, District of Columbia Court of Appeals v. Feldman, 458 U.S. 1105, 102 S.Ct. 3481, 73 L.Ed.2d 1365 Page 387 and va......
  • 641 F.Supp. 767 (D.N.J. 1986), Civ. 86-562, Randolph v. Lipscher
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 25 Agosto 1986
    ...cognizable by an Article III court and, thus, was not appealable to the Supreme Court of the United States." Feldman v. Gardner, 661 F.2d 1295, 1318 (D.C.Cir.1981) (Footnotes The United States Supreme Court vacated the decision of the District of Columbia Circuit, and remanded to the D......
  • Steinberg v. Supreme Court of Pennsylvania, 061009 PAWDC, 09-86
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • 10 Junio 2009
    ...Appeals affirmed the District Court's dismissal of the antitrust claims on the ground that they were insubstantial. Feldman v. Gardner, 661 F.2d 1295, 1298 (D.C.Cir. 1981). Nevertheless, it reversed the dismissal of the Fifth Amendment claims on the ground that the District of Columbia Cour......
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1 books & journal articles
  • The Rooker-Feldman doctrine: toward a workable role.
    • United States
    • University of Pennsylvania Law Review Vol. 149 Nbr. 5, May 2001
    • 1 Mayo 2001
    ...460 U.S. at 464. (53) Id. at 466. (54) Id. at 466-67 (quoting Feldman's counsel's letter). (55) Id. at 468. (56) Feldman v. Gardner, 661 F.2d 1295, 1298 (D.C. Cir. 1981), vacated sub nom. D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). (57) Id. at 1298, 1308. (58) Id. at 1298, 1310, ......