Gallo v. U.S. Dist. Court for Dist. of Arizona

• Citation: 349 F.3d 1169
• Decision Date: 19 November 2003
• Docket Number: No. 01-17332.,01-17332.
• Parties: David J. GALLO, Movant-Appellant, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, Real Party in Interest-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

349 F.3d 1169

David J. GALLO, Movant-Appellant, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, Real Party in Interest-Appellee.

No. 01-17332.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2002.

Submission Vacated December 9, 2003.

Resubmitted November 19, 2003.

Filed November 19, 2003.

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David J. Gallo, Del Mar, California, movant-appellant.

Daniel J. McAuliffe, Andrew M. Jacobs, Snell & Wilmer, LLP, Phoenix, Arizona, for the real party in interest.

Ernest Calderon, Lindsay E. Jones, Jennings, Strouss & Salmon, PLC, Phoenix, Arizona, for amicus curiae State Bar of Arizona.

On Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding. D.C. No. CIV 00-852-PHX-SMM.

Before: Melvin Brunetti and A. Wallace Tashima, Circuit Judges, and David Alan Ezra,^* District Judge.

OPINION

EZRA, District Judge.

Movant-Appellant David J. Gallo ("Gallo") appeals from the District Court's order that pursuant to an amendment to Rule 1.5 of the Local Rules of the United States District Court for the District of Arizona ("Rule 1.5"), Gallo no longer may appear before the District of Arizona without successful completion of a pro hac vice application.¹ In his appeal, he argues that the rule is unconstitutional and that the District Court erred in concluding that Gallo had received sufficient notice of the applicability of the amendment to him and that the Ninth Circuit should exercise its supervisory power to direct the District Court to apply Rule 1.5(a) prospectively.

BACKGROUND

Gallo was admitted to the Bar of the United States District Court for the District of Arizona (the "District Court") on July 28, 1995, under Local Rule 1.5, which allowed non-resident attorneys to gain admission based on their admission to the bar of any United States District Court. In September 1999, the District Court amended Local Rule 1.5 to state: "Admission to and continuing membership in the bar of this Court is limited to attorneys who are active members in good standing of the State Bar of Arizona." United States District Court For the District of Arizona, Local Rules 1.5(a) (2003).

On May 8, 2000, Gallo participated in the filing of Bartlett v. Arthur Andersen, CIV 00-852-PHX-SMM, in the District Court of Arizona and served as Plaintiffs' co-counsel of record. On September 1, 2000, Gallo received a letter, dated August 30, 2000, from the Attorney Admissions Clerk of the District Court in which he was informed that he was no longer admitted to appear generally before the District Court of Arizona. Specifically, the letter stated: "Your name has appeared on pleadings filed with this court; however a review of our files indicates that you have not been admitted to practice in this Court." The letter gave Gallo until September 29, 2000, to apply for admission pro hac vice to avoid being removed as counsel of record.

On September 25, 2000, Gallo filed an Ex Parte Application for Order Clarifying Status of Counsel, or, Alternatively, for Order Nunc Pro Tunc Granting Admission Pro Hac Vice ("Ex Parte Application"). On October 2, 2000, the District Court filed an Order in which it denied Gallo's Ex Parte Application and allowed Gallo to appear in the District Court pro hac vice. See Order, filed October 2, 2000 ("October 2, 2000 Order"). Gallo paid the twenty-five dollar fee and was admitted to appear in the action pro hac vice. Final judgment in the Bartlett case was entered on September 17, 2001, and on October 12, 2001, Gallo filed his Notice of Appeal.² We vacated and deferred submission so that we could receive briefing from the District Court, the Real Party in Interest-Appellee. The State Bar of Arizona also submitted an Amicus Brief.

JURISDICTION

1. Appellate Jurisdiction Under 28 U.S.C. § 1291

Gallo's case is currently before us despite the fact that Gallo did not commence an official action in the District Court regarding the effect of the new Local Rules on his ability to appear before the District Court. Rather, as part of the proceedings involved in his representation of the Plaintiffs in Bartlett, Gallo requested the District Court to review the August 30, 2000 letter informing him that he was not admitted to practice in the District Court. In his Ex Parte Application, he sought the District Court's reconsideration of the decision to apply the amended Local Rules to him.

Gallo argues that the District Court's October 2, 2000 Order denying his Ex Parte Application was an interlocutory order and that pursuant to the applicable case law in the Ninth Circuit, his present appeal of that order is properly before us. Specifically, Gallo argues that jurisdiction exists because the interlocutory order constituted a "collateral order" that was immediately appealable. In support of this proposition, he cites Estate of Bishop By and Through Bishop v. Bechtel Power Corporation, 905 F.2d 1272, 1274 (9th Cir. 1990) (finding that "[f]or the doctrine to apply, the challenged order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the underlying action; and (3) be effectively unreviewable from a final judgment").

In accordance with Bishop, Gallo argues that the October 2, 2000 Order provided a conclusive determination regarding his admission status, which was an issue unrelated to the Plaintiffs' claims in the underlying Bartlett action. Gallo also asserts that the Order was unreviewable from the final judgment in the Bartlett case. Id. (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)) (affirming that "the purpose of the finality requirement is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results") (internal quotation marks and citation omitted).

Finally, Gallo asserts that even though he did not appeal the "collateral order" immediately, we still have jurisdiction to review the District Court's decision because the Order merged into the final judgment in the underlying case, Bartlett, which was entered on September 17, 2001. City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 889 n. 1 (9th Cir.2001) (citing Hook v. Arizona Department of Corrections, 107 F.3d 1397, 1401 (9th Cir.1997)) (finding that if a party does not appeal an interlocutory order when it becomes immediately appealable, the party still has the right to appeal the interlocutory order after entry of the final judgment because the interlocutory order merges into the final judgment and may be challenged in an appeal from that judgment). Thus, Gallo contends that his Notice of Appeal was properly and timely filed on October 12, 2001, and that we have jurisdiction to review the District Court's decision.

The District Court responds by arguing that as a matter of law, the District Court's October 2, 2000 Order prohibiting Gallo from practicing generally before it cannot be reviewed upon appeal. In re Wasserman, 240 F.2d 213, 214 (9th Cir. 1956). The District Court argues that pursuant to Wasserman this court lacks jurisdiction to review an order denying a petition for admission to practice before a United States District Court. In Wasserman, we found that the Southern District of California's order barring Wasserman from appearing before it was not a final decision and therefore it was unappealable. Wasserman had never been admitted to the bar of the Southern District of California and thus the case focused on the laws governing applications for admission to the bar.

Gallo argues that his case is distinguishable because he had already obtained admission to practice before the District Court. He asserts that he is not requesting reconsideration of a denial of a motion for admission based on a "[f]ailure or refusal to act favorably upon such an application." Wasserman, 240 F.2d at 214 n. 1 (internal quotation marks and citations omitted). Rather, he claims he is seeking redress for an improper disbarment. In light of the fact that Gallo previously had been admitted to practice before the District Court, his situation may not qualify as a run of the mill application. And, as discussed below, there are constitutional dimensions to Gallo's situation.

As the District Court stated in its October 2, 2000 Order, however, under the Local Rules in effect at the time Gallo sought to practice before the District Court, he no longer met the eligibility requirements for "continuing membership," which required membership in the State Bar of Arizona. Moreover, unlike some other districts who have revised their respective local rules governing admission, these Local Rules do not include a grandfather clause. See, e.g., Local Rules of Practice for the United States District Court for the District of Hawai'i, Local Rule 83.1(b) (2002) ("After October 1, 1997, an applicant for admission to membership in the bar of this court must be an attorney who is a member in good standing of the bar of the State of Hawai'i."); Local Rules for the United States District Court for the Northern District of California, Local Rule 11-1(b) ("After the effective date of these rules [Jan. 1, 2001] an applicant for admission to membership in the bar of this Court must be an attorney who is an active member in good standing of the State Bar of California."). Thus, Gallo no longer met the requirements for membership in the bar of the District Court. As discussed below, even if Gallo had a property interest in his membership, the District Court had a legitimate reason for altering the local rules governing admission such that its amendment passes the rational basis test. Accordingly, under either analysis, his Ex Parte Application was necessarily an application for admission.

Consistent with its interpretation...