Nat'l Ass'n for the Advancement of Multijurisdiction Practice, (NAAMJP) v. Howell, 16-5020

• Decision Date: 14 March 2017
• Docket Number: No. 16-5020,16-5020
• Citation: 851 F.3d 12
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF MULTIJURISDICTION PRACTICE, (NAAMJP), et al., Appellants Jose Juhuda Garcia and Herbert Howard Detrick, II, Appellees v. Beryl A. HOWELL, Chief Judge, U.S. District Court for the District of Columbia, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

851 F.3d 12

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF MULTIJURISDICTION PRACTICE, (NAAMJP), et al., AppellantsJose Juhuda Garcia and Herbert Howard Detrick, II, Appellees

v.Beryl A. HOWELL, Chief Judge, U.S. District Court for the District of Columbia, et al., Appellees

No. 16-5020

United States Court of Appeals, District of Columbia Circuit.

Argued January 9, 2017

Decided March 14, 2017

Joseph Robert Giannini argued the cause and filed the briefs for appellants. Raymond Carignan, Ellicott City, MD, entered an appearance.

Brian P. Hudak, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.

Before: Brown and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

Brown, Circuit Judge:

The National Association for the Advancement of Multijurisdiction Practice ("NAAMJP") has conducted a thirty-year campaign to overturn local rules of practice limiting those who may appear before a particular state or federal court. See NAAMJP v. Simandle , 658 Fed.Appx. 127, 130 (3d Cir. 2016) (noting NAAMJP has "crisscrossed the United States, challenging local bar admission rules"); Blye v. California Supreme Court , No. 11-cv-5046, 2014 WL 229830, at *2 n.3 (N.D. Cal. Jan. 21, 2014) (collecting cases dating back to 1987). We now join the chorus of judicial opinions rejecting these futile challenges. See, e. g. , Simandle , 658 Fed.Appx. 127 ; NAAMJP v. Lynch , 826 F.3d 191 (4th Cir. 2016) ; Giannini v. Real , 911 F.2d 354 (9th Cir. 1990).

In the present case, NAAMJP and two of its members allege bar admission conditions for the United States District Court for the District of Columbia, established in the identical text of Local Civil Rule 83.8 and Local Criminal Rule 57.21 (collectively, the "Local Rule"), violate statutory and constitutional legal standards. Specifically, the Local Rule provides:

Admission to and continuing membership in the Bar of this Court are limited to: (1) attorneys who are active members in good standing in the District of Columbia Bar; or (2) attorneys who are active members in good standing of the Bar of any state in which they maintain their principal law office; or (3) in-house attorneys who are active members in good standing of the Bar of any state and who are authorized to provide legal advice in the state in which they are employed by their organization client.

D.D.C. LOCAL CIV. R.83.8(a) ; D.D.C. LOCAL CRIM. R. 57.21(a). NAAMJP focuses its challenge on the second option, the Primary Office Provision.

Defendants—Judges of the United States District Court for the District of Columbia (the "District Court") and former Attorney General Loretta Lynch—moved to dismiss NAAMJP's complaint; the district court granted the motion in a thorough and thoughtful opinion.¹ Nonetheless, NAAMJP argues on appeal that the Local Rule (1) violates the Rules Enabling Act, 28 U.S.C. §§ 2071 and 2072 ; (2) runs afoul of the Supreme Court's decision in Frazier v. Heebe , 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) ; (3) improperly applies rational basis review; and (4) violates 28 U.S.C. § 1738, admission requirements of other federal courts and administrative agencies, and the First Amendment to the U.S. Constitution. Because each of these arguments lacks merit, we affirm.

I.

As an initial matter, the district court properly concluded it lacked subject-matter jurisdiction to adjudicate (1) all claims brought by Patent Lawyer Doe ("Doe") and (2) all claims asserted against the Attorney General.

Both the Amended Complaint and Doe's Declaration fail to articulate any actual and imminent injury, which is necessary to establish Article III standing in this case. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 562–64, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Indeed, Doe does not describe where he practices law or otherwise suggest the Local Rule's Principal Office Provision has inhibited his legal practice. Conclusory assertions of harm, or reference to Doe's practice at a "Big Law firm in San Diego" in briefing on appeal, see NAAMJP Br. 7, do not remedy this deficiency.

Additionally, NAAMJP has failed to identify any role whatsoever of the Attorney General—or any member of the executive branch, for that matter—in promulgating or enforcing the District Court's local rules. Accordingly, the district court properly dismissed Doe and the Attorney General.

II.

On the merits, NAAMJP argues the district court improperly applied the Rules Enabling Act, which permits judges to prescribe rules governing practice before their court. Specifically, 28 U.S.C. § 2071 states,

The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title.

28 U.S.C. § 2071(a). The "rules of practice and procedure prescribed under section 2072 of this title" are rules adopted by the Supreme Court of the United States:

The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.... Such rules shall not abridge, enlarge or modify any substantive right.

28 U.S.C. § 2072(a) –(b).

The Local Rule at issue here is indisputably "for the conduct of [the District Court's] business," id. § 2071(a); it explains which attorneys may practice before the District Court. Moreover, as explained below, the Principal Office Provision does not contravene any Act of Congress or "rules of practice and procedure" adopted by the Supreme Court. See id. § 2072(a). As the Third Circuit recently remarked, "The matter is no more complicated than that." Simandle , 658 Fed.Appx. at 134 (adopting the Fourth Circuit's analysis in Lynch , 826 F.3d at 197 ).

Nonetheless, NAAMJP argues Sections 2071 and 2072 interlock, contending rules promulgated pursuant to Section 2071 must comply with Section 2072's mandate that "[s]uch rules shall not abridge, enlarge or modify any substantive right." 28 U.S.C. § 2072(b). Several courts of appeals have summarily rejected this argument. See Lynch , 826 F.3d at 197. Here, it suffices to note NAAMJP has failed to identify any substantive right—whether constitutional, statutory, or derived from national federal rules—that has been infringed by the Local Rule. Accordingly, NAAMJP cannot sustain its Rules Enabling Act challenge.

III.

NAAMJP relies heavily on the Supreme Court's decision in Frazier v. Heebe , claiming it directly invalidates the Local Rule. But in Frazier , the Supreme Court exercised its own unique supervisory authority to overturn a local rule regarding bar admission in the Eastern District of Louisiana and, in so doing, made no constitutional ruling. 482 U.S. at 645, 107 S.Ct. 2607 ("Pursuant to our supervisory authority, we hold that the District Court was not empowered to adopt its local Rules to require members of the Louisiana Bar who apply for admission to its bar to live in, or maintain an office in, Louisiana where that court sits. We therefore need not address the constitutional questions presented."). No similar authority vests in a single district court judge. Rather, "[a] rule of a district court ... remain[s] in effect unless modified or abrogated by the judicial council of the relevant circuit ." 28 U.S.C. § 2071(c)(1) (emphasis added). The "judicial council," in turn, is a body comprised of "the chief judge of the circuit" and "an equal number of circuit judges and district judges of the circuit." Id. § 332(a)(1). A single district court judge or an appellate panel may not usurp that body's authority.² While this point may be "hyper-technical[ ]," NAAMJP Reply Br. 7, it is the law.

IV.

Although NAAMJP does not identify the district court's equal protection holding as an issue under review, or otherwise clearly argue the district court erred in dismissing the Fifth Amendment claim, it nonetheless argues Judge Gorton erroneously applied "rational basis review" to resolve its claims.

To assess an equal protection claim, this Court begins by determining the appropriate standard of review. If a rule does not infringe a fundamental right or disadvantage a suspect class, no more than rational basis review is required. FCC v. Beach Commc'ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Such a rule "comes ... bearing a strong presumption of validity, and those attacking the rationality of the [rule] have the burden to negative every conceivable basis which might support it." Id . at 314–15, 113 S.Ct. 2096. Accordingly, "[w]here there are plausible reasons for [the challenged rule], our inquiry is at an end." Id . at 313–14, 113 S.Ct. 2096.

Here, the Principal Office Provision is properly subject to rational basis review. For purposes of the Equal Protection Clause, it neither burdens a fundamental right nor targets a suspect class. See Lynch , 826 F.3d at 196 ; Simandle , 658 Fed.Appx. at 137. It distinguishes among attorneys based on whether they have been admitted to the bar of the state where their principal law office is located, not on the basis of residency or any protected characteristic. See NAAMJP Reply Br. 5 (conceding the Local Rule discriminates "on the basis of office location"). For the same reason, any claim of heightened scrutiny under the Privileges and Immunities Clause also fails. Cf. Barnard v. Thorstenn , 489 U.S. 546, 109 S.Ct. 1294, 103 L.Ed.2d 559 (1989) (invalidating a rule requiring Virgin Islands bar applicants to establish year-long residence and intent to remain in the Virgin Islands under the Privileges and Immunities Clause).

Here, the Principal Office Provision ensures attorneys who practice before the District Court—but who avoid supervision by the District of Columbia Bar—are subject to supervision by the state to which their...