Brown v. Board of Bar Examiners of State of Nev.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT and POOLE; POOLE
Citation623 F.2d 605
Decision Date18 July 1980
PartiesAnna Lee BROWN, Plaintiff-Appellee, v. BOARD OF BAR EXAMINERS OF the STATE OF NEVADA and Board of Governors of the State Bar of Nevada et al., Defendants-Appellants. CA 79-4529.

Page 605

623 F.2d 605
Anna Lee BROWN, Plaintiff-Appellee,
v.
BOARD OF BAR EXAMINERS OF the STATE OF NEVADA and Board of
Governors of the State Bar of Nevada et al.,
Defendants-Appellants.
CA 79-4529.
United States Court of Appeals,
Ninth Circuit.
July 18, 1980.

Page 606

Eleissa C. Lavelle, Las Vegas, Nev., argued, for defendants-appellants.

Robert J. Angres, Incline Village, Nev., argued, Robert J. Angres, Incline Village, Nev., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT and POOLE, Circuit Judges, and CRAIG, * District Judge.

POOLE, Circuit Judge.

The Board of Bar Examiners of the State of Nevada and the Board of Governors of the State Bar of Nevada appeal from the issuance of a preliminary injunction compelling them to administer the 1979 bar examination to appellee Anna Lee Brown. In February 1979, Brown applied for admission

Page 607

to the State Bar of Nevada, 1 but her application was rejected because, as a graduate of a correspondence law school not accredited by the American Bar Association, she failed to comply with Nevada Supreme Court Rule 51(3). 2 In May, Brown submitted a petition and supporting documents to the Nevada Supreme Court requesting a waiver of its Rule 51(3); her petition was denied without elaboration on June 7, 1979.

Brown thereupon filed suit against the two appellants herein and the Nevada Supreme Court in United States District Court, alleging that they had applied Rule 51(3) arbitrarily, capriciously and unequally. By way of relief the complainant prayed that she be allowed to sit for the 1979 Nevada bar examination; that her application be processed in like manner as all other applications; and that she be awarded monetary damages and attorney fees. Jurisdiction was predicated upon 28 U.S.C. § 1343, and 42 U.S.C. §§ 1981 and 1983. By separate motion filed June 27, 1979, plaintiff sought a preliminary injunction prohibiting defendants from refusing to allow her to take the scheduled July 25th examination. All three defendants moved to dismiss for lack of subject matter jurisdiction; appellants additionally moved for dismissal on the ground that they were not proper parties to the action.

On July 17, 1979, the district court issued findings of fact and conclusions of law and a written memorandum of decision, and also ordered entry of a preliminary injunction. 3 The court concluded that federal jurisdiction existed to entertain plaintiff's challenge to the Nevada Supreme Court's administration of its rule. It further found a violation of due process due to the fact that the Supreme Court had granted certain petitions for waiver and had denied others without "indicat(ing) a rational basis upon which it exercises its discretion in this regard . . .." 4 Citing this Court's opinion in Hackin v. Lockwood, 361 F.2d 499 (9th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305 (1966), the court dismissed the Board of Governors and the Board of Bar Examiners as improper parties because they performed only ministerial duties in administering Rule 51(3). The preliminary injunction enjoined "defendants," collectively, from preventing Brown from sitting for the bar examination which was to commence on July 25.

On July 24, appellants sought from this Court a writ of prohibition, which was denied on July 26 on the basis that appellants enjoyed an adequate remedy at law. Appellants then filed the instant appeal. Brown took the examination and received a passing score. 5

We conclude that the preliminary injunction was improperly granted because the district court was without jurisdiction to review a decision of the Nevada Supreme Court concerning an individual application for admission to the bar. Accordingly, we reverse.

Page 608

PROPER PARTY ON APPEAL

As an initial matter, we must determine whether the State Bar and the Board of Bar Examiners have standing to pursue this appeal. Brown urges that once dismissed from the action as improper parties under Hackin v. Lockwood, supra, 6 appellants were deprived of their standing to seek review of the injunction in this Court.

Although purporting to eliminate appellants from the suit, the district court nevertheless granted injunctive relief against them. The court ordered the "defendants" to allow Brown to sit for the bar examination, an order with which under Nevada practice only the appellants could physically comply. 7 The injunction was not explicitly directed toward the Nevada Supreme Court nor did it command any action by that body.

Ordinarily, as parties specifically bound under the terms of a preliminary injunction, appellants could avail themselves of interlocutory appellate review pursuant to 28 U.S.C. § 1292(a)(1). We see no logic in the district court's novel rulings which concurrently dismissed appellants and yet granted specific relief against them. Whatever the rationale, however, appellants should not be denied appellate review of orders by which they were aggrieved. To hold otherwise would be to compel them to risk contempt. Whether appellants could challenge the district court's jurisdiction on appeal of a contempt citation is doubtful. See Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). In any event, the jurisdictional issue should be settled directly by the orderly process of review, not tangentially by disobedience. Carroll v. President and Commissioners of Princess Anne, et al., 393 U.S. 175, 179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968); Bethlehem Mines Corp. v. United Mine Workers, 476 F.2d 860, 863 (3rd Cir. 1973).

We conclude that appellants are appropriate parties to appeal an injunction by which they are specifically bound.

MOOTNESS

Brown argues that, since the bar examination has already been conducted and the object of the injunction thus has been effected, this appeal is moot. Her successful performance on the examination is indeed an accomplished fact which cannot be undone, but the appeal can be entertained nonetheless.

A potential applicant for admission to the bar would not become aware of the Nevada Supreme Court's denial of a waiver petition and consequently could not seek relief in court earlier than a few weeks before the examination. As a result, appellate review of any court order purporting to require that an applicant be permitted to take the examination could in most instances not practically be obtained until after the examination had been administered. The effect would thus be orders "capable of repetition, yet evading review." 8 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). In similar situations, the Supreme Court has held that such cases are not moot, despite the fact that the need for specific relief may have been obviated. E. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

More importantly, the underlying dispute over the district court's jurisdiction still survives.

Page 609

We do not here have a situation in which one party has...

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48 practice notes
  • U.S. v. Chagra, Nos. 82-1263
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 14, 1983
    ...F.2d 600, 602-03 (9th Cir.1978); West v. Radio-Keith-Orpheum Corp., 70 F.2d 621, 623-24 (2d Cir.1934). 9 Brown v. Board of Bar Examiners, 623 F.2d 605, 608 (9th Cir.1980); Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir.1972). 10 Union of Professional Airmen v. ......
  • Hoxworth v. Blinder, Robinson & Co., Inc., Nos. 89-1437
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1990
    ...468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (summarizing standing requirements); Brown v. Board of Bar Examiners, 623 F.2d 605, 608 (9th Cir.1980) (dismissed party has standing to appeal injunction by which it is specifically 13 Appellants assert further that whatever fin......
  • Beller v. Middendorf, Nos. 77-1354
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 23, 1980
    ...to justify our conclusion that a live case or controversy exists in all three appeals. 7 See also Brown v. Board of Bar Examiners, 623 F.2d 605, 607-608 (9th Cir. 1980) (appellate review of order requiring that applicant be permitted to take bar examination cannot practically be obtained be......
  • Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., No. 87-6146
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 1990
    ...(10th Cir.1972); see Page 1547 Zenith Radio Corp., 395 U.S. at 110, 89 S.Ct. at 1569; Brown v. Board of Bar Examiners of State of Nevada, 623 F.2d 605, 608 (9th Cir.1980). If the record discloses that the district court lacked jurisdiction over the party, the appellate court has jurisdictio......
  • Request a trial to view additional results
48 cases
  • U.S. v. Chagra, Nos. 82-1263
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 14, 1983
    ...F.2d 600, 602-03 (9th Cir.1978); West v. Radio-Keith-Orpheum Corp., 70 F.2d 621, 623-24 (2d Cir.1934). 9 Brown v. Board of Bar Examiners, 623 F.2d 605, 608 (9th Cir.1980); Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (10th Cir.1972). 10 Union of Professional Airmen v. ......
  • Hoxworth v. Blinder, Robinson & Co., Inc., Nos. 89-1437
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1990
    ...468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (summarizing standing requirements); Brown v. Board of Bar Examiners, 623 F.2d 605, 608 (9th Cir.1980) (dismissed party has standing to appeal injunction by which it is specifically 13 Appellants assert further that whatever fin......
  • Beller v. Middendorf, Nos. 77-1354
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 23, 1980
    ...to justify our conclusion that a live case or controversy exists in all three appeals. 7 See also Brown v. Board of Bar Examiners, 623 F.2d 605, 607-608 (9th Cir. 1980) (appellate review of order requiring that applicant be permitted to take bar examination cannot practically be obtained be......
  • Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., No. 87-6146
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 22, 1990
    ...(10th Cir.1972); see Page 1547 Zenith Radio Corp., 395 U.S. at 110, 89 S.Ct. at 1569; Brown v. Board of Bar Examiners of State of Nevada, 623 F.2d 605, 608 (9th Cir.1980). If the record discloses that the district court lacked jurisdiction over the party, the appellate court has jurisdictio......
  • Request a trial to view additional results

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