NAAMJP v. Loretta Lynch

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-02110-RJC. [999857396]. [15-1982]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1982

NATIONAL
ASSOCIATION
FOR
THE
ADVANCEMENT
OF
MULTIJURISDICTION PRACTICE (NAAMJP); MARINNA L. CALLAWAY;
JOSE JEHUDA GARCIA; DALE E. WORKMAN; W. PEYTON GEORGE,
Plaintiffs - Appellants,
v.
LORETTA E. LYNCH, Attorney General; DEBORAH K. CHASANOW,
Chief Judge; RICHARD D. BENNETT, United States District
Court for the District of Maryland; CATHERINE C. BLAKE,
United States District Court for the District of Maryland;
JAMES K. BREDAR, United States District Court for the
District of Maryland; THEODORE D. CHUANG, United States
District Court for the District of Maryland; MARVIN J.
GARBIS, United States District Court for the District of
Maryland; PAUL W. GRIMM, United States District Court for
the District of Maryland; GEORGE J. HAZEL, United States
District Court for the District of Maryland; ELLEN L.
HOLLANDER, United States District Court for the District of
Maryland; PETER J. MESSITTE, United States District Court
for the District of Maryland; FREDERICK J. MOTZ, United
States District Court for the District of Maryland; WILLIAM
M. NICKERSON, United States District Court for the District
of Maryland; WILLIAM D. QUARLES, JR., United States District
Court for the District of Maryland; GEORGE L. RUSSELL, III,
United States District Court for the District of Maryland;
ROGER W. TITUS, United States District Court for the
District of Maryland,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Robert J. Conrad, Jr., United States
District Judge for the Western District of North Carolina,
sitting by designation. (1:14-cv-02110-RJC)

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Argued:

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May 10, 2016

Decided:

June 17, 2016

Before FLOYD and THACKER, Circuit Judges, and John A. GIBNEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by published opinion. Judge Gibney wrote the opinion,
in which Judge Floyd and Judge Thacker joined.

ARGUED: Joseph Robert Giannini, Los Angeles, California, for
Appellants.
Brian Paul Hudak, OFFICE OF THE UNITED STATES
ATTORNEY, Washington, D.C., for Appellees.
ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Alan
Burch, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Washington, D.C., for Appellees.

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GIBNEY, District Judge:
“‘Membership
conditions.’”
(quoting
(1917)).

In

in

the

bar

is

a

privilege

burdened

with

Theard v. United States, 354 U.S. 278, 281 (1957)
re

The

Rouss,

221

National

Multijurisdictional

N.Y.

81,

Association

Practice

and

84,
for

four

116
the

N.E.

782,

Advancement

attorneys

783
of

(together,

“NAAMJP”) challenge the conditions placed on the privilege of
admission to the Bar of the United States District Court for the
District of Maryland (the “District” or the “District Court”) in
Local Rule 701 (“Rule 701” or the “Rule”). 1

Because Rule 701

violates neither the Constitution nor federal law, we affirm the
district court’s decision.
I. BACKGROUND
Rule

701

governs

District Court. 2

attorney

admission

to

practice

in

the

The Rule contains requirements based on the

state of licensure and, in some instances, the location of the

1

The four attorneys do not qualify for admission to the
District Court under Rule 701.
The district court held that
these
attorneys
have
standing,
as
does
NAAMJP
as
an
organization. We agree.
2

This case focuses on the requirements for general
admission to the District Court Bar, as opposed to admission pro
hac vice (i.e., for a particular case). See Rule 101(1)(b). In
addition, Rule 701 has separate provisions allowing federal
government attorneys to practice in the District.
See Rule
701(1)(b).

3

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attorney’s

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office. 3

law

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The

Rule

allows

for

attorneys licensed in the State of Maryland.

admission

of

The Rule also

allows for admission of non-Maryland attorneys if the applying
attorney maintains his or her principal law office in the state
in which he or she is licensed to practice law, as long as the
relevant federal district court in the state of licensure does
not

deny

admission

to

Maryland

attorneys.

In

other

words,

admission to non-Maryland attorneys extends only to attorneys in
states

whose

District

district

Court.

courts

observe

Regardless

of

reciprocity

the

however,

reciprocity,

with

the

District will not admit a non-Maryland attorney if that attorney
maintains a law office in Maryland.
According
membership
there,

in

and,

to

the

District,

Maryland

with

its

for

the

attorneys

reciprocity

Rule

encourages

intending

provision,

to

practice

encourages

jurisdictions to adopt liberal licensing standards.

bar

other

Further,

the District contends that the principal law office requirement
ensures effective local supervision of the conduct of attorneys.
In response to these points, NAAMJP spews a slew of bad words to
describe

Rule

701,

including

discriminatory,

monopolistic,

balkanizing, and unconstitutional.
3

Rule 701 also imposes a handful of standard requirements,
such as “[being] of good private and professional character” and
having familiarity with relevant local and federal rules.

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NAAMJP sued the Attorney General and each of the judges of
the District Court, challenging the validity of Rule 701.
defendants
judgment.
denied

moved

to

dismiss,

and

NAAMJP

moved

for

The

summary

The district court 4 granted the motion to dismiss and

NAAMJP’s

motion

for

judgment. 5

summary

NAAMJP

has

appealed.
II. ANALYSIS
This

Court

reviews

de

granting a motion to dismiss.

novo

a

district

court’s

decision

Sucampo Pharm., Inc. v. Astellas

Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006).

To survive a

Rule 12(b)(6) motion to dismiss, a complaint must state facts
that, when accepted as true, “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

NAAMJP challenges the validity of Rule 701 under the

First Amendment, the Equal Protection Clause, the Rules Enabling
Act, and the Supremacy Clause.

We address each in turn. 6

4

The Honorable Robert J. Conrad, Jr., of the Western
District of North Carolina, sat by designation to avoid any
potential conflict of interest.
5

NAAMJP has not challenged the district court’s denial of
its challenge under the Due Process Clause.
6

Although NAAMJP cites the Supreme Court’s decision in
Frazier v. Heebe, it does not ask us to strike down Rule 701
based on appellate courts’ supervisory authority over district
courts. 482 U.S. 641, 651 (1987) (Rehnquist, C.J., dissenting).
(Continued)
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A. The First Amendment
The First Amendment prevents the government from “abridging
the

freedom

peaceably

of

to

speech

.

assemble,

and

redress of grievances.”
the

professional

.

.

or

to

the

petition

right
the

doctrine

allows

the

people

Government

U.S. Const. amend. I.

speech

of

the

for

a

Nevertheless,
government

to

“license and regulate those who would provide services to their
clients

for

Amendment.”

compensation

without

running

afoul

of

the

First

Moore-King v. Cnty. of Chesterfield, 708 F.3d 560,

569 (4th Cir. 2013).
Under
determine

the
the

professional
point

at

speech

which

“a

doctrine,
measure

is

courts
no

must

longer

regulation of a profession but a regulation of speech.”

a

Lowe v.

S.E.C., 472 U.S. 181, 230 (1985) (White, J., concurring in the
judgment).

The government may regulate professionals providing

“personalized advice in a private setting to a paying client.”
Moore-King, 708 F.3d at 569; see Lowe, 472 U.S. at 232.

In this

context, “the professional’s speech is incidental to the conduct
of

the

profession,”

id.,

and

regulation

Even if NAAMJP had made this request, and
power, we would not indulge the request,
passes constitutional muster and is clearly
the local rule struck down in Frazier. See
opinion).

6

“raises

no

First

even if we had that
as Rule 701 clearly
distinguishable from
id. at 643 (majority

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Amendment

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problem

licensing

where

provisions’

it

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amounts

affecting

to

‘generally

those

who

applicable

practice

the

profession,” Moore-King, 708 F.3d at 569 (quoting Lowe, 472 U.S.
at 232).

In other words, the First Amendment does not come into

play.
The First Amendment does come into play, however, when the
government

tries

regulation

of

limits

the

a

to

control

profession.

speech

of

public
This

discourse

occurs

professionals

when

engaging

through
a

the

regulation
“in

public

discussion and commentary,” id., and not “exercising judgment on
behalf

of

any

particular

individual

with

whose

circumstances

[they are] directly acquainted,” Lowe, 472 U.S. at 232.

In this

case, regulation “must survive the level of scrutiny demanded by
the First Amendment.”
In

this

profession.

case,

Id. at 230.
Rule

701

is

simply

restrict attorneys from speaking.
at

regulation

of

a

The Rule does not compel attorneys to speak or

regulate speech based on its content.

speech

a

all,

Rule

701

sets

Neither does the Rule

To the extent it regulates
conditions

for

professionals

providing “personalized advice in a private setting to a paying
client.”

Moore-King, 708 F.3d at 569.

Applying the appropriate

test, Rule 701 qualifies as a generally applicable licensing
provision.

It prescribes which attorneys may practice in the

District Court based on their state of licensure in relation to
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the

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location

provisions

of

for

their

specific

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principal

law

office.

situations—such

as

Any

federal

separate

government

attorneys—do not change the fact that Rule 701 is a generally
applicable licensing provision.

Accordingly, Rule 701 does not

violate the First Amendment. 7
B. The Equal Protection Clause
The Equal Protection Clause prohibits the government from
“deny[ing]

to

any

person

within

protection

of

the

laws.”

U.S.

its

jurisdiction

Const.

amend

the

XIV,

§

equal
1;

see

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995)
(noting that equal protection analysis is the same under the
Fifth Amendment as it is under the Fourteenth Amendment).

In

evaluating an equal protection challenge to a rule, courts must
first determine the standard of review to apply.
neither

infringes

a

fundamental

right

nor

If the rule

disadvantages

suspect class, courts apply rational basis review.

a

FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993).

Under rational basis

review,

.

the

challenged

rule

“comes

.

.

bearing

a

strong

presumption of validity, and those attacking the rationality of

7

NAAMJP does not challenge the district court’s holdings
that Rule 701 is neither substantially overbroad nor a prior
restraint on speech, so we will not disturb them. We reject all
other
arguments
raised
by
NAAMJP—including
speaker
discrimination and violation of the right to free association
and petition—as meritless and utterly inapplicable to Rule 701.

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the [rule] have the burden to negative every conceivable basis
which

might

omitted).

support
In

it.”

other

Id.

words,

at

314–15

“[w]here

(internal

there

are

citations
‘plausible

reasons’ for [the rule], ‘our inquiry is at an end.’”

Id. at

313–14 (quoting U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166,
179 (1980)).
Rule

701

does

not

infringe

disadvantage a suspect class.

a

fundamental

right

or

Applying rational basis review,

Rule 701 clearly passes constitutional muster.

The rationales

given

are

by

the

District

to

justify

the

Rule

certainly

plausible, and NAAMJP does not bear its burden in negating them.
Both this and other circuits have upheld these rationales as
reasonable.

See Goldfarb v. Supreme Court of Va., 766 F.2d 859,

865 (4th Cir. 1985); Hawkins v. Moss, 503 F.2d 1171, 1177–78
(4th Cir. 1974); see also Nat’l Ass’n for the Advancement of
Multijurisdictional Practice v. Castille, 799 F.3d 216, 219–20
(3d

Cir.

2015);

Nat’l

Ass’n

for

the

Advancement

of

Multijurisdictional Practice v. Berch, 773 F.3d 1037, 1045 (9th
Cir. 2014).

Accordingly, Rule 701 does not violate the Equal

Protection Clause.
Astonishingly,

NAAMJP

does

not

cite

a

single

equal

protection case in its argument that Rule 701 violates the Equal
Protection Clause.

See Appellant’s Br. 33–39.

In fact, each of

the cases cited by NAAMJP refers to equal protection—if at all—
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only to note that the Court did not reach the equal protection
argument.

See Supreme Court of Va. v. Friedman, 487 U.S. 59, 63

n.* (1988); Frazier v. Heebe, 482 U.S. 641, 645 (1987); Supreme
Court of N.H. v. Piper, 470 U.S. 274, 277 n.3 (1985).

These

cases provide little to no guidance here, as the bar admission
rules they considered involved residency requirements—which Rule
701 does not—and applied a heightened level of scrutiny—which we
need not.
C. The Rules Enabling Act
The Rules Enabling Act authorizes the judiciary to make
rules.

Specifically, 28 U.S.C. § 2071 permits federal courts to

“prescribe rules for the conduct of their business,” with the
stipulation that “[s]uch rules shall be consistent with Acts of
Congress and rules of practice and procedure prescribed under
section

2072

of

this

title.”

The

“rules

of

practice

and

procedure prescribed under section 2072 of this title” are rules
adopted by the Supreme Court of the United States, including,
for

example,

the

Federal

Rules

of

Civil

Procedure

and

the

Federal Rules of Evidence.
In enacting Rule 701, the District Court prescribed a rule
“for the conduct of [its] business,” denoting which attorneys
may practice before it.
Congress

or

any

federal

The Rule does not violate any Acts of
“rules

10

of

practice

and

procedure”

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adopted by the Supreme Court pursuant to § 2072.

Thus, Rule 701

does not violate the Rules Enabling Act.
NAAMJP
standard

argues

set

that

forth

in

§

2071

[§]

2072,”

“expressly

incorporates

Appellant’s

Br.

41,

the
which

mandates that “[s]uch rules shall not abridge, enlarge or modify
any substantive right,” 28 U.S.C. § 2072(b).

The plain language

of the statute, however, belies NAAMJP’s argument.

The phrase

“[s]uch rules” in § 2072(b) clearly refers to the “general rules
of practice and procedure and rules of evidence” that § 2072(a)
permits

the

Supreme

Court

to

prescribe.

Moreover,

§ 2071’s

reference to § 2072 clearly refers to the “rules of practice and
procedure” that come out of the § 2072 rule-making standard, not
to § 2072’s rule-making standard itself.

In other words, the

Rules Enabling Act tells district courts that they cannot use
local

rules

procedure.

to

contradict

the

Supreme

Court’s

rules

of

Consequently, this NAAMJP argument fails. 8
D. The Supremacy Clause

Finally, the Supremacy Clause commands:
This Constitution, and the
United
States
which
shall
8

Laws of the
be
made
in

NAAMJP argues that Rule 701 violates Rule 83(a) of the
Federal
Rules
of
Civil
Procedure
because
Rule
83(a)
“incorporates the 28 U.S.C. § 2072 standard,” Appellant’s Br.
42, restricting rules that “abridge, enlarge or modify any
substantive right,” 28 U.S.C. § 2072.
This argument fails for
the same reason that the argument under § 2072 fails.

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Pursuance thereof . . . shall be the supreme
Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the
Contrary notwithstanding.
U.S. Const. art. VI, cl. 2.

In other words, if federal law and

state law conflict, federal law wins.
Florida,

373

U.S.

379,

384–85

(1963)

See, e.g., Sperry v.
(resolving

a

conflict

between Florida law and federal law in favor of federal law).
NAAMJP makes the bold—if not borderline frivolous—move to
challenge Rule 701, a federal rule adopted pursuant to a federal
statute.

Accordingly,

the

Supremacy

Clause

has

no

bearing.

NAAMJP focuses on the fact that Rule 701 incorporates Maryland
state licensing requirements, but ignores the fact that nothing
prohibits federal law from incorporating state standards.
Augustine

v.

Dep’t

of

Veterans

Affairs,

429

F.3d

See

1334,

1340

(Fed. Cir. 2005) (citing NLRB v. Natural Gas Util. Dist. Of
Hawkins Cnty., 402 U.S. 600, 603 (1971)).
incorporates

state

Maryland and beyond.

licensing

requirements

Rule 701 clearly
for

attorneys

in

Rule 701’s use of these state standards,

however, does not transform Rule 701 into a state law.

Rule 701

remains a federal rule prescribed pursuant to a federal statute.
Thus, Rule 701 in no way violates the Supremacy Clause.
III. CONCLUSION
To

summarize,

Rule

701

does

not

violate

the

First

Amendment, the Equal Protection Clause, the Rules Enabling Act,
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or the Supremacy Clause.

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Consequently, we affirm the decision

of the district court in granting the motion to dismiss.
AFFIRMED

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