NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF MULTIJURISDICTION PRACTICE et al v. JEROME B. SIMANDLE et al
MEMORANDUM. Signed by Judge Gerald A. McHugh (EDPA) on 9/1/15. (dd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NAAMJP, et al.,
JEROME V. SIMANDLE, Chief Judge,
United States District Court for the District
Of New Jersey, et al.,
SEPTEMBER 1, 2015
The National Association for the Advancement of Multijurisdiction Practice (NAAMJP)
continues its campaign for lawyers who are admitted to practice law in certain courts but cannot
gain admission to other courts without taking an additional bar exam. I am not aware of any
complete accounting of NAAMJP’s extensive litigation through the years, but the organization
has fought its campaign in courts across the United States. The Defendants counted fourteen
NAAMJP lawsuits challenging attorney admission rules. Even this Judge has had the
responsibility to preside over one such case. NAAMJP v. Castille, 66 F.Supp. 3d 633 (E.D. Pa.
Dec. 11, 2014), aff’d, 2015 WL 5024222 (3d Cir. Aug. 26, 2015). To my knowledge, in none of
these cases has NAAMJP been successful. I mention this history only to put this case in context,
and not in criticism of NAAMJP for pursuing its cause.
In the present action, NAAMJP and several of its members have filed a challenge against
the judges of the Federal District Court for the District of New Jersey. Plaintiffs allege that the
New Jersey District Court’s rule governing the admission of lawyers to the court’s bar violates
federal statutory and constitutional rules.
The rules governing attorney admissions are quickly evolving, and they are subject to a
great deal of public debate. I recognize the importance of admissions rules to many attorneys.
Nonetheless, for the reasons discussed below, I deny the legal relief that Plaintiffs seek.
Factual and Procedural Background
NAAMJP is an organization “engaged in interstate commerce and advocacy throughout
the United States for the purpose of improving the legal profession, by petitioning for admission
on motion in the dwindling minority of jurisdictions that have not yet adopted the AVA’s
recommendations for reciprocal admission for all lawyers.” Complaint at ¶ 6. The NAAMJP
claims it has members who are prevented from joining the bar of the District of New Jersey by
the rule Plaintiffs challenge. The individual Plaintiffs, Robert Vereb, and Benjamin Josef
Doscher, are two members of NAAMJP. Vereb is a lawyer admitted to practice in New York
State and federal courts in New York. Dosher is also a lawyer admitted in New York State. He
is admitted to the bars of several federal courts including the United States Supreme Court and
the Court of Appeals for the Federal Circuit. Both state that they “will apply for admission to the
U.S. District Court for the District of New Jersey bar if its admission rule is changed.”
Complaint at ¶¶ 7, 8.
The Defendants are judges of the District Court of New Jersey and former Attorney
General Eric Holder. According to Plaintiffs, these judges voted to approve the rule that
Plaintiffs challenge. The former Attorney General was named as a defendant because of the
federal government’s role in enforcing the federal statutes that allegedly conflict with the New
Jersey District Court’s bar admission rule.
Plaintiffs have focused their advocacy on provisions of Local Civil Rule 101.1.
Plaintiffs’ primary target is parts (b) and (c), which together provide that attorneys licensed to
practice by the Supreme Court of New Jersey may be admitted to practice in the District Court
on motion, but attorneys not licensed in New Jersey must apply for pro hac vice admission for
each case in which they participate in the District Court. Plaintiffs also challenge parts (e), (f),
and (j) which permit attorneys to appear in court who practice patent law, represent the United
States, or represent criminal defendants, respectively.
Plaintiffs’ Complaint alleges these rules violate federal statutory and constitutional law.
In Count I, Plaintiffs allege Local Rule 101.1 violates the Rules Enabling Act, 28 U.S.C. §§
2071–72 by impermissibly affecting substantive rights of lawyers and litigants. Count II alleges
the rule violates the Supremacy Clause of the Constitution. Count III asserts Local Rule 101.1
infringes the First Amendment rights to freedom of speech, association, and petition. Finally, in
Count IV, Plaintiffs claim Local Rule 101.1 violates the Fifth Amendment of the Constitution by
denying lawyers equal protection of the laws.
Defendants filed a Motion to Dismiss the Complaint in its entirety. Defendants attack
Plaintiffs’ standing to bring their claims as well as the substantive merits of each claim.
Plaintiffs opposed the Defendants’ Motion, and Plaintiffs also filed their own motion for
Summary Judgment, which Defendants have opposed in turn. I will grant Defendants’ Motion to
Dismiss, and I will therefore dismiss the Complaint along with Plaintiffs’ mooted motion for
a. Lack of Standing
Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants challenge the standing
of the individual Plaintiffs as well as the NAAMJP to bring their claims. According to
Defendants, Plaintiffs fail to allege they have suffered injury because of the New Jersey District
Court’s rule, and consequently this Court lacks jurisdiction over Plaintiffs’ claims. I conclude
that Plaintiffs have sufficiently alleged standing.
Federal courts lack the power to consider a claim if the plaintiff lacks standing to bring it.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of standing is
an essential and unchanging part of the case-or-controversy requirement of Article III”).
Standing has three requirements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be “fairly ... trace[able] to the challenged action of the defendant, and not … th[e]
result [of] the independent action of some third party not before the court.” Third,
it must be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.”
Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 360 (3d Cir. 2014) (citing
Lujan, 504 U.S. at 560–61).
When considering a motion to dismiss based on lack of subject matter jurisdiction under
Rule 12(b)(1), if the movant challenges the facial sufficiency of the complaint, the court should
accept the plaintiffs’ allegations in support of standing as true and then decide whether the
plaintiff has alleged facts that support jurisdiction. McCann v. Newman Irrevocable Trust, 458
F.3d 281, 290 (3d Cir. 2006) (when deciding a Rule 12(b)(1) motion, “[i]f a defendant does not
challenge the facts alleged in the plaintiff's pleadings, a court may rule on the motion by
accepting these allegations as true.”).
i. Standing of Individual Plaintiffs
Defendants argue individual Plaintiffs Vereb and Doscher lack standing for several
reasons. First, Defendants point out that Vereb and Doscher do not explicitly state they are not
members of the New Jersey bar. Since Vereb and Doscher might be members of the New Jersey
bar, they might be eligible to apply for membership in the bar of the New Jersey District Court.
If they are eligible to apply to the District Court’s bar, they are not injured by Local Civil Rule
101.1, and they have no standing to challenge it.
I am not persuaded by this argument. When deciding a motion to dismiss, a court must
“draw all reasonable inferences in the plaintiff’s favor.” West Penn Allegheny Health System,
Inc. v. UPMC, 627 F.3d 85, 91 (3d Cir. 2010). It is clear that based on the text of the Complaint,
it is more than reasonable to infer that the individual plaintiffs are not members of the New
Jersey bar. If this case were to proceed, Defendants would have the opportunity to conduct
discovery and raise a factual challenge to Plaintiffs’ standing if they uncovered evidence that
Plaintiffs are in fact members of the New Jersey bar.
Second, Defendants argue that Plaintiffs lack standing because even if Plaintiffs are
ineligible to join the District Court’s bar, they do not claim they have applied to join the bar and
have been denied. Plaintiffs have therefore not yet actually suffered any injury. Defendants rely
on cases that include NAAMJP v. Gonzales, 211 Fed. App’x. 91, 95 (3d Cir. 2006). In Gonzales,
the Third Circuit found individual plaintiffs lacked standing to challenge bar admissions rules
because they failed to show they “personally … suffered some actual or threatened injury.” Id.
The plaintiffs in that case, the court explained, “made no showing that they were denied the
ability to practice in any of those states [whose rules the NAAMJP challenged].” The court also
noted the plaintiffs did not claim “that they would seek to practice [in states with challenged
rules] but-for the local court rules.” Id. Here Plaintiffs have alleged facts missing in Gonzales.
Both Plaintiffs claim they will apply for admission if the rules change, and there is no doubt their
applications would be denied. In Sammon v. New Jersey Bd. of Medical Examiners, the Third
Circuit found aspiring midwives had standing to challenge a rule even though they had not
applied and been rejected because “there is no indication that the aspiring midwives possibly
could obtain a license” under the challenged rule. 66 F.3d 639, 642 (3d Cir. 1995) (“the aspiring
midwives allege both a present desire to become midwives and that the New Jersey statutory
scheme … is the only thing that prevents them from reaching that goal.”).
I am not persuaded by Defendants’ arguments against standing. Applying each of the
three requirements of standing, I find that Plaintiffs Vereb and Doscher have alleged they have
standing to pursue their claims, with one limitation. Plaintiffs have standing against the judicial
defendants, but they do not have standing against former Attorney General Eric Holder.
First, Plaintiffs’ injuries are sufficiently concrete. As discussed above, Plaintiffs’
ineligibility for admission to the District Court’s bar is a concrete injury that is not “conjectural
or hypothetical.” Lujan, 504 U.S. at 560. Second, the causal connection between the injury and
the alleged actions of the judicial defendants is clear—defendants adopted Local Civil Rule
101.1. In contrast, the causal connection to the Attorney General is missing. 1 Plaintiffs’ claims
do not allege that federal law, which the Attorney General enforces, violates Plaintiffs’ rights.
Rather they allege that Local Civil Rule 101.1 conflicts with federal law. Therefore, Plaintiffs’
injury under the weight of Rule 101.1 is not “fairly traceable” to any action of the Attorney
Defendants do not raise the issue of Plaintiffs’ standing with respect to the Attorney General, but “federal courts
are under an obligation to examine their own jurisdiction.” United States v. Hays, 515 U.S. 737, 742 (1995). I must
independently evaluate each aspect of Plaintiffs’ standing.
General. See Duquesne Light Co. v. United States Environmental Protection Agency, 166 F.3d
609, 613 (3d Cir. 1999) (finding plaintiff’s injury was not fairly traceable to the EPA action
plaintiff challenged). Finally, assuming the truth of Plaintiffs’ statements that they will apply for
admission if the rule is changed, a change to the rule that permits them to successfully apply will
redress their injury.
ii. NAAMJP’s Standing 2
Plaintiffs claim NAAMJP has standing under two theories. First, they claim that
NAAMJP has associational standing to bring claims on its members’ behalf. Plaintiffs’
Opposition to Motion to Dismiss 19 (citing Summers v. Earth Island Inst., 555 U.S. 488, 494
(2009)). Complaint at ¶ 6. Second, NAAMJP asserts third party standing to sue on behalf of
members who wish to remain anonymous. Id.
An association can bring suit on its own behalf and as a representative of its members.
Blunt v. Lower Merion School Dist., 767 F.3d 247, 279 (3d Cir. 2014). An association may sue
as a representative of its members when:
(1) the organization's members must have standing to sue on their own; (2) the
interests the organization seeks to protect are germane to its purpose, and (3)
neither the claim asserted nor the relief requested requires individual participation
by its members.
Blunt, 767 F.3d at 279. Here I have concluded that the individual Plaintiffs have standing.
Those individuals also aver they are members of NAAMJP. Accordingly, the first requirement is
satisfied for NAAMJP’s representational standing. The second element is satisfied because
NAAMJP exists to challenge rules like Rule 101.1. Third, the injunctive relief Plaintiffs request
Having found that the individuals have standing, I need not consider whether NAAMJP also has standing.
Shumacher v. Nix, 965 F.2d 1262, 1264 n.1 (1992) (“Because Schumacher has standing to maintain this
action, and Schumacher and Hodge present identical challenges to Rule 203(a)(2)(ii), we need not consider
whether Hodge would have standing to bring this action individually. See Bowsher v. Synar, 478 U.S. 714,
721, 106 S.Ct. 3181, 3185, 92 L.Ed.2d 583 (1986).”). However, in the interests of completeness, I will
consider NAAMJP’s standing as well.
does not require individual participation by NAAMJP’s members. This case differs from, for
example, Blunt, in which individual plaintiffs and purported members of an association sought
monetary relief. 767 F.3d at 290. Here, the individual Plaintiffs and NAAMJP seek exactly the
same relief—an injunction against Rule 101.1. See Pennsylvania Psychiatric Soc. v. Green
Spring Health Servs. Inc., 280 F.3d 278, 284 (3d Cir. 2002) (“Because claims for monetary relief
usually require individual participation, courts have held associations cannot generally raise
these claims on behalf of their members.”).
Having found that Plaintiffs do have standing to bring their claims against the judges of
the District Court of New Jersey, I now turn to Defendants’ arguments for dismissing each of
Plaintiffs’ substantive claims. Because these issues are before me on a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), I “must accept all of the complaint’s wellpleaded facts as true,” and “determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a ‘plausible claim for relief.’ ” Fowler v. UPMC Shadyside, 578 F.3d
203, 210–11 (3d Cir. 2009).
b. Rules Enabling Act
Plaintiffs’ first substantive claim alleges Local Rule 101.1 violates the Rules Enabling
Act, 28 U.S.C. §§ 2071–72. The Rules Enabling Act permits district courts to “adopt local rules
that are necessary to carry out the conduct of [their] business.” Frazier v. Heebe, 482 U.S. 641,
645 (1987). Courts’ discretion to craft local rules is not unlimited. 28 U.S.C. § 2071 requires
that local rules “shall be consistent with Acts of Congress and rules of practice and procedure
prescribed under [28 U.S.C. § 2072].” 28 U.S.C. § 2071(a). Section 2072 authorizes the
Supreme Court to “prescribe general rules of practice and procedure and rules of evidence for
cases in the United States district courts,” and the section requires that “such rules shall not
abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(a)–(b).
Plaintiffs contend that Local Rule 101.1 violates the Rules Enabling Act because it
modifies substantive rights. They argue the Rule modifies lawyers’ rights to practice law by
making it more difficult for lawyers not licensed to practice in New Jersey to practice in New
Jersey District Court. Plaintiffs also argue the Rule modifies non-lawyers’ right to counsel by
preventing clients with cases in New Jersey District Court from relying on lawyers who are
neither licensed in New Jersey nor willing to seek pro hac vice admission.
I find Plaintiffs’ allegations of a violation are without merit. Defendants correctly point
out that Plaintiffs are misinterpreting the Rules Enabling Act. Section 2072’s prohibition of
rules that “abridge, enlarge or modify any substantive right” in paragraph (b), clearly refers to
those rules paragraph (a) authorizes the Supreme Court to create. District court rules
promulgated under Section 2071 must be “consistent with Acts of Congress” and the rules the
Supreme Court creates pursuant to Section 2072, but the prohibition in Section 2072, paragraph
(b) simply does not apply to the local rules district courts are authorized to make under Section
District courts’ discretion to draft local rules certainly has limits. In Frazier v. Heebe, the
Supreme Court exercised its supervisory authority over district court local rules to end a local
rule in the Eastern District of Louisiana. 482 U.S.at 646. The rule had a geographical focus,
limiting general bar admission to attorneys who lived in or maintained an office in Louisiana.
The Court held the rule “arbitrarily discriminate[d] against out-of-state attorneys who have
passed the Louisiana bar examination and are willing to pay the necessary fees and dues in order
to be admitted to the Eastern District Bar.” Id.
In Baylson v. Disciplinary Bd. of Supreme Court of Pennsylvania, the Third Circuit held
that a local rule relating to prosecutors and grand jury subpoenas was “invalid because its
adoption as federal law falls outside the local rule-making authority of the federal district
courts.” 975 F.2d 102, 106 (3d Cir. 1992). The court explained that while the Rules Enabling
Act permits district courts to adopt local rules, such rules must be “consistent with the rules of
practice and procedure promulgated by the Supreme Court under section 2702.” Id. at 107. The
Federal Rules of Criminal Procedure are among the rules promulgated by the Supreme Court
under section 2702. Id. Because the Third Circuit found the local rule conflicted with Federal
Rule of Criminal Procedure 57, it fell outside the district courts’ discretion. Id.
Multiple factors distinguish Frazier and Baylson from this case. Unlike the Supreme
Court in Frazier, I do not have supervisory authority over the New Jersey District Court’s Local
Rules. Additionally, the Frazier Court noted that bar examination requirements, like those in
force in the District of New Jersey, would be a more effective means of ensuring lawyers’
competence to practice. 482 U.S. at 648. Frazier did not strip courts of their power to regulate
admission to their bars; it only required the adoption of criteria less arbitrary than the physical
location of lawyers’ residences and offices. Unlike in Baylson, Plaintiffs here do not allege Rule
101.1 conflicts with rules established by the Supreme Court under 28 U.S.C. § 2072.
Plaintiffs seem to argue that Rule 101.1 is inconsistent with Acts of Congress because
“Congress has also enacted thousands of laws that provide equal treatment for all citizens,
including attorneys, and attorney fees” and because “Congress does not enact local laws.”
Plaintiffs’ Memorandum of Points & Authorities Opposing Dismissal at 27. Plaintiffs suggest
Congress’s purpose with enacting Sections 2071–72 was “to promote uniform equal treatment in
the Federal District Courts.” Id. at 28. However there is nothing in the text of Sections 2071–72
that supports Plaintiffs’ reading. Plaintiffs have not identified any specific Acts of Congress that
conflict with Local Rule 101.1, and arguing that Local Rule 101.1 is inconsistent with Acts of
Congress because it simply is not the kind of thing Congress does is not sufficient to state
To summarize, even if the Rules Enabling Act permits Plaintiffs to challenge local
district court rules, Plaintiffs have not plausibly alleged Local Rule 101.1 is an impermissible
exercise of district courts’ rule-making discretion.
c. Supremacy Clause
Plaintiffs claim Local Rule 101.1 violates the Supremacy Clause because it permits New
Jersey state law to control the rules of the Federal Courts. According to Plaintiffs, because Local
Rule 101.1 ties general bar admission in federal court to a lawyer’s state court admission, it
“give[s] the State’s licensing board a virtual power of review over the federal determination that
a person or agency is qualified and entitled to perform certain functions.” Plaintiffs’ Motion for
Summary Judgment at 29.
In support of this argument, Plaintiffs rely on Sperry v. State of Fla. ex rel. Florida Bar.
373 U.S. 379, 385 (1963). There, the Supreme Court overturned a Florida court’s injunction
barring a patent agent from continuing his patent practice. The Florida Supreme Court had
decided that prosecuting patent applications constituted the practice of law. The patent agent
was not a licensed member of the state’s legal bar, and therefore the Florida court enjoined the
patent agent from providing his patent services. The Supreme Court ultimately concluded that
federal patent law, which permits anyone who complies with certain requirements from the
Patent Office to prosecute patent applications, preempted Florida’s state law against the
unauthorized practice of law. Id. at 404 (“the order enjoining petitioner must be vacated since it
prohibits him from performing tasks which are incident to the preparation and prosecution of
patent applications before the Patent Office.”). Plaintiffs contend that just as Florida violated the
Supremacy Clause when it attempted to regulate federal patent practice in Sperry, New Jersey is
impermissibly regulating the federal district court’s bar.
Plaintiffs’ reasoning on this point mischaracterizes the effect of Rule 101.1. Through this
rule, New Jersey’s District Court has decided to adopt state rules; the State of New Jersey is not
imposing any rules on the District of New Jersey. The District Court is free to change these rules
at any time, subject to the procedural and substantive limitations of the Rules Enabling Act. If
the State of New Jersey were to adopt a rule that conflicted with, for example, a Federal Rule of
Criminal Procedure, the District Court could modify its own rules to depart from the state rule.
Such an eventuality would mirror the situation in Baylson. There, after Pennsylvania’s Supreme
Court adopted a rule that conflicted with a Federal Rule of Criminal Procedure, “all three federal
district courts in Pennsylvania purported to revise their local rules to state that Rule 3.10 had no
application in their respective jurisdictions.” Baylson, 975 F.2d at 105. 3
Plaintiffs’ reliance upon Augustine v. Dept. of Veterans Affairs is equally unpersuasive.
429 F.3d 1334 (Fed. Cir. 2005). In Augustine, the Federal Circuit ruled that federal law did not
require attorneys practicing before a federal administrative agency to be licensed to practice law
in the state where the administrative proceeding took place. Id. at 1336. The court explained
that while “federal law may adopt or incorporate state law standards as its own. … it is to be
assumed when Congress enacts a statute that it does not intend to make its application dependent
on state law.” Id. at 1340 (citing NLRB v. Natural Gas Utility Dist. of Hawkins County, Tenn.,
402 U.S. 600, 603 (1971). Here, it is true that Congress did not explicitly direct district courts to
Admittedly, the district courts did not follow the procedures required in 28 U.S.C. § 2071, and litigation became
necessary to clarify the enforceability of the state’s new rule in federal court.
condition bar membership on membership in the local state’s bar. But Congress explicitly
authorized courts to develop their own local rules. 28 U.S.C. § 2071. The New Jersey District
Court did so, and it chose to adopt a rule that explicitly conditions membership in the court’s bar
on membership in New Jersey’s state bar. This is markedly different from the per se rule
criticized and rejected by the Federal Circuit in Augustine.
Plaintiffs have failed to allege facts showing Local Rule 101.1 violates the Supremacy
Clause, and therefore this claim shall be dismissed.
d. First Amendment
Plaintiffs challenge New Jersey’s Rule 101.1 with several theories based on the First
Amendment. Plaintiffs claim the rule is unconstitutionally overbroad, discriminates based on
the content and viewpoint of speech, is an illegal prior restraint on expression, violates the
freedom of association, and infringes the right to petition government for redress of grievances.
I find that each of these arguments fails to support Plaintiffs’ challenge to Local Rule 101.1.
Plaintiffs have failed to sufficiently allege facts showing Local Rule 101.1 parts (b) and
(e) are unconstitutionally overbroad. Plaintiffs contend Rule 101.1 parts (b) and (e) are
overbroad because they prevent lawyers admitted in states other than New Jersey from joining
the New Jersey District Court’s bar. Being denied permission to join the District Court’s bar
without first needing to join New Jersey’s state bar prevents these lawyers, Plaintiffs assert, from
engaging in a substantial amount of protected expression.
“[A] law may be invalidated as overbroad only if ‘a substantial number of its applications
are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” Free Speech
Coalition, Inc. v. Attorney General of the United States, 677 F.3d 519, 537 (3d Cir. 2012). The
Third Circuit has articulated four factors for courts to consider when evaluating overbreadth
challenges to statutes:
(1) “the number of valid applications” of the statute; (2) “the historic or likely
frequency of conceivably impermissible applications”; (3) “the nature of the
activity or conduct sought to be regulated”; and (4) “the nature of the state interest
underlying the regulation.”
Id. at 537–38 (citing Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215, 226
(3d Cir. 2004)).
Plaintiffs have not asserted a claim that can satisfy this test. The First Amendment does
not protect a person’s right to be admitted to a particular court’s bar just because the person is
admitted to some other court’s bar. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (“A
lawyer’s procurement of remunerative employment is a subject only marginally affected with
First Amendment concerns. It falls within the State’s proper sphere of economic and
professional regulation.”). Regulations that restrict what a lawyer, or any other licensed
professional, may or may not say are subject to constitutional scrutiny. See King v. Governor of
the State of New Jersey, 767 F.3d 216, 224–25 (3d Cir. 2014). But courts have long recognized
states may require professionals, including lawyers, to meet local licensing requirements, even
though requiring a person to get a license to practice a profession inevitably impacts speech she
may engage in. Leis v. Flynt, 439 U.S. 438, 442 (1979) (“Since the founding of the Republic, the
licensing and regulation of lawyers has been left exclusively to the States and the District of
Columbia within their respective jurisdictions.”); Paciulan v. George, 229 F.3d 1226, 1230 (9th
Cir. 2000) (“states traditionally have enjoyed the sole discretion to determine qualifications for
bar membership.”); National Ass’n for the Advancement of Psychoanalysis v. California Bd. of
Psychology, 228 F.3d 1043, 1053–55 (9th Cir. 2000) (upholding state psychoanalysis regulations
against First Amendment challenge, even though psychoanalysis is practiced through speech).
Accordingly, Plaintiffs have not shown that it is invalid for the New Jersey District Court
to apply Rule 101.1 to require state court bar admission or to permit patent attorneys to practice
patent law without state court bar admission. Because Plaintiffs have not alleged there are a
substantial number of unconstitutional applications of Local Rule 101.1, this claim must be
ii. Content and Viewpoint Discrimination
I also find Plaintiffs have not sufficiently alleged Local Rule parts 101.1(b) and (e)
unconstitutionally discriminate on the basis of the content or viewpoint of attorneys’ speech.
Plaintiffs aver that the rule permits speech by attorneys licensed in New Jersey or who practice
patent law and limits speech of attorneys not licensed in New Jersey or who do not practice
patent law. Plaintiffs, citing to Citizens United v. Federal Elections Commission, argue this
constitutes unlawful content and speaker discrimination, and therefore must be subject to strict
scrutiny. Plaintiffs’ Memorandum of Points & Authorities Opposing Dismissal at 35; Citizens
United, 558 U.S. 310, 340 (2010) (“Quite apart from the purpose or effect of regulating content,
moreover, the Government may commit a constitutional wrong when by law it identifies certain
The Third Circuit recently held that a similar bar admission rule, Pennsylvania’s Rule
204 governing reciprocal admissions of out-of-state attorneys, was not a restriction on
professional speech at all. Nat’l Ass’n for the Advancement of Multijurisdictional Practice v.
Castille, No. 15-1481, 2015 WL 5024222 at *4 (3d Cir. Aug. 26, 2015) (“Rule 204 is not a
prohibition or other restriction on professional speech, but rather, a content-neutral licensing
requirement for the practice of law…”). The rule, the court explained, was subject only to
scrutiny that inquired whether “it had a rational connection with the applicant’s fitness or
capacity to practice the profession.” Id.
Local Rule 101.1 does not discriminate on the basis of the viewpoint or content of
speech or the identity of the speaker in a manner that triggers strict scrutiny. Parts (b) and (e)
make no reference to the content of attorneys’ speech. Nor do the rules constitute speaker
discrimination that must receive strict scrutiny. Id. at *5 (“Speaker-partial laws trigger
heightened scrutiny only ‘when they reflect the Government’s preference for the substance of
what the favored speakers have to say (or aversion to what the disfavored speakers have to
say).’ ”) (citing Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 658 (1994)); Time Warner
Cable Inc. v. F.C.C., 729 F.3d 137, 159 (2d Cir. 2013) (finding sections of the Cable Act were
not invalid although they distinguished among speakers because the distinctions were not “based
on the content of programming each group offers.”). 4 See also NAAMJP v. Gonzales, 211 Fed.
App’x at 95 (“We find that the challenged local rules clearly do not violate the First
Amendment”); NAAMJP v. Berch, 773 F.3d 1037, 1047 (9th Cir. 2014), petition for cert. filed,
(U.S. March 24, 2015) (No. 14-1165) (“We consider bar admission restrictions to be time, place,
and manner restrictions on speech.”).
Local Rule 101.1 parts (b) and (e) are reasonable regulations of attorney admissions to
the federal court’s bar. The rules serve the court’s significant interest in regulating the
membership of its bar. They are narrowly tailored regulations that restrict only general
admission to the court’s bar, leaving lawyers not admitted in New Jersey free to seek admission
to the court through the pro hac vice process or through admission to the state bar. They are also
The Second Circuit rejected the argument that Citizens United overturned Turner Broad. Sys., Inc. and
categorically requires strict scrutiny for all distinctions among speakers in any context. The Second Circuit
explained that Citizens United “reached [its] conclusion in the particular context of political speech.” Time Warner
Cable, 729 F.3d at 159–60.
free to speak in court as litigants. Rule 101.1 does not “regulate when, where, or how attorneys
speak, nor does it prohibit a category of professional speech like the state at issue in King.”
Castille, 2015 WL 5024222 at *4. Rule 101.1 here, like the rule at issue in Castille, plainly has
such a rational basis.
For these reasons, Plaintiffs’ claim that Rule 101.1 parts (b) and (e) are content or
viewpoint restrictions that violate the First Amendment must be dismissed.
iii. Prior Restraint
Plaintiffs have not shown Rule 101.1 is a prior restraint. As Plaintiffs recognize, a law or
regulation may be an unconstitutional prior restraint when the rule places “unbridled discretion
in the hands of a government official or agency” to grant or withhold permission to engage in
expression. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755 (1988) (finding an
ordinance allowing the mayor to grant or withhold permission to place news-racks was an
unconstitutional prior restraint); Complaint at ¶ 60. Such discretion to permit or restrict speech
may invite the licensor to censor speech, and the possibility of censorship can even “intimidate
parties into censoring their own speech, even if the discretion and power are never actually
abused.” Id. at 757. Plaintiffs claim Rule 101.1 “is analogous to requiring blacks to take a
literacy test in order to vote,” and that “[i]t is equivalent in this 21st Century to the licensing of
printing presses in the 16th and 17th Centuries.” Complaint at ¶ 60. Hyperbole aside, Plaintiffs’
claims do not offer any basis for finding Local Rule 101.1 gives “unbridled discretion” to the
District Court of New Jersey. The rule sets out clear conditions for admission to the federal
court’s bar. Plaintiffs have not shown anything in the rule to suggest it permits the court to
censor speech or leads speakers to censor themselves. See also Castille, 2015 WL 5024222 at *6
(holding Pennsylvania’s Rule 204 was not a prior restraint on speech).
iv. Compelled Association
Plaintiffs claim Local Rule 101.1 violates the First Amendment’s protections for the
freedom of association because it “imposes penalties and withholds privileges based solely on
Plaintiffs’ licensing in disfavored states.” Memorandum of Points and Authorities Opposing
Dismissal at 42.
The First Amendment prohibits regulations that impose penalties or withhold benefits
from individuals because of their membership in a disfavored group. Roberts v. United States
Jaycees, 468 U.S. 609, 622 (1984). For example, in Healy v. James, the Supreme Court
overturned lower courts’ decisions ratifying a college president’s denial of official recognition
for a student group. 408 U.S. 169, 179–80 (1972). The Court wrote, “There can be no doubt
that denial of official recognition, without justification, to college organizations burdens or
abridges that [First Amendment] associational right.” Id. at 181.
Plaintiffs have not shown that Local Rule 101.1 impermissibly imposes penalties or
withholds benefits because of lawyers’ associations. Plaintiffs’ argument seems to be that Rule
101.1 withholds the benefit of general admission to the bar from lawyers who have failed to
“associate” with the state bar of New Jersey (or whose practice areas do not fall into other
exceptions in Rule 101.1). However, Plaintiffs have alleged no facts showing Rule 101.1, in not
permitting lawyers licensed elsewhere than New Jersey to join the federal bar, is treating lawyers
as a disfavored group. The rule simply puts non-New Jersey lawyers in the same position as
non-lawyers. All must join the New Jersey bar to gain general admission to the federal court’s
bar. Accordingly, this claim shall be dismissed.
v. Right to Petition
Plaintiffs’ final First Amendment claim alleges Rule 101.1 infringes the right to petition
government. This claim fails simply because Plaintiffs have not shown any support for the
argument that the right to petition protects an attorney’s right to litigate on behalf of a client in a
particular court. The right to petition “protects the right of individuals to appeal to courts and
other forums established by the government for resolution of legal disputes.” Borough of
Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2494 (2011). In other words, the right to petition
protects the right to litigate. But Plaintiffs have not shown any support for their position that it
protects the right to appear in court as someone else’s lawyer without complying with that
court’s attorney admissions rules. Plaintiffs’ arguments relating to sham petitions are irrelevant
as Rule 101.1 does not enjoin any plaintiffs from filing lawsuits; it only prescribes rules for
attorneys appearing in the New Jersey District Court. See Professional Real Estate Investors,
Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993) (discussing sham litigation in the
antitrust context). Accordingly this claim too shall be dismissed.
e. Fifth Amendment Due Process
The last count of the Complaint asserts Local Rule 101.1 violates equal protection under
the Fifth Amendment. Plaintiffs argue that Local Rule 101.1 treats attorneys differently based on
whether they are admitted to the state bar of New Jersey. Plaintiffs contend there is no rational
basis for this discriminatory treatment.
The Fifth Amendment prohibits the federal government from unfairly discriminating
among groups of individuals. In evaluating Fifth Amendment equal protection claims, courts
apply standards developed in the context of the Fourteenth Amendment’s Equal Protection
Clause. “Although the fifth amendment contains no equal protection clause, the Due Process
Clause forbids discrimination in a similar manner as the fourteenth amendment.” Matter of
Roberts, 682 F.2d 105, 108 (3d Cir. 1982) (capitalization as in original). Accordingly, under the
Fifth Amendment as under the Fourteenth Amendment, if a law makes distinctions between
groups of individuals but “neither burdens a fundamental right nor targets a suspect class,
[courts] will uphold it so long as it bears a rational relation to some legitimate end.” Connelly v.
Steel Valley School Dist., 706 F.3d 209, 212 (3d Cir. 2013) (internal citations omitted). If a law
either burdens a fundamental right or targets a suspect class, it must satisfy a much stricter
standard. Such a law “must be narrowly tailored to further a compelling government interest.”
Rational basis analysis plainly applies to Rule 101.1. The Third Circuit held rational
basis applied to a nearly identical rule in Roberts. 682 F.2d at 108. (“In the context of the
attorney admission qualifications in this case, since no impairment of a fundamental right or
classification based on a suspect criterion is involved, any requirement for admission will be
upheld that is rationally related to the applicant’s fitness to practice law in the court where he
seeks admission.”). Plaintiffs appear to argue that the practice of law is a fundamental right by
making references to decisions that post-date Roberts. I find their argument misapplies these
In Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985), the Supreme Court
recognized that the practice of law is a “fundamental right” for the purposes of the Privileges and
Immunities Clause of Article IV, Section 2. The Court struck down New Hampshire’s rule
limiting bar admission to state residents because the State lacked a “substantial reason” for
treating resident and nonresident bar applicants differently. Id. at 287. Similarly, in Supreme
Court of Virginia v. Friedman, the Supreme Court struck down a Virginia rule that limited bar
admission on motion to residents of Virginia. 487 U.S. 59, 61 (1988). The Court explained that
since Piper, lawyers possess “an interest in practicing law that is protected by the Privileges and
Immunities Clause.” Id. at 65. The state’s rule failed to treat resident and non-resident lawyers
with “substantial equality,” and therefore the rule violated the Privileges and Immunities Clause
of Article IV § 2. Id. at 66.
Plaintiffs’ argument seems to be that Rule 101.1 infringes a fundamental equal protection
right because bar admission rules based on residency infringe rights protected by the Privileges
and Immunities Clause of the Constitution. There are at least two important problems with this
argument. First, a fundamental right in Article IV, Section 2 is not necessarily a fundamental
right under the Equal Protection Clause. See Schumacher v. Nix, 965 F.2d 1262, 1268 n.9 (“We
note, however, that ‘the right to practice law is not a fundamental right for the purposes of …
equal protection analysis’ ”) (citing Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir. 1987)). The
Third Circuit has clearly stated, “the right to practice law is not a fundamental right for the
purposes of the Equal Protection Clause.” Tolchin v. Supreme Court of the State of New Jersey,
111 F.3d 1099, 1115 (3d Cir. 1997). Second, Plaintiffs conflate a lawyer’s state of residency
with her state of bar admission. Local Rule 101.1 is not based on an attorney’s residency; it is
based on whether an attorney is admitted to practice law in New Jersey. Consequently Local
Rule 101.1 does not interfere with the fundamental right to establish residency in any state.
Plaintiffs further assert that part (e) of Rule 101.1, which permits patent attorneys to
practice patent law in the district court without joining the state bar, is “plainly unlawful under
Frazier v. Heebe because it is based on the location of a lawyer’s office.” Plaintiffs’
Memorandum of Points and Authorities Opposing Dismissal at 45. However Frazier was
decided under the Court’s “supervisory authority” over district court rules, and the Court
expressly disclaimed resolving the constitutionality of the admissions rule in question. Frazier,
482 U.S. at 645. Moreover, in Frazier, the Supreme Court focused much of its concern on the
fact that Louisiana’s rule only required an in-state office for out-of-state residents. See
generally id. The Third Circuit noted the Court’s focus on residency discrimination in Tolchin v.
Supreme Court of the State of New Jersey, 111 F.3d at 1108–09. In Tolchin, the Third Circuit
upheld against a Fourteenth Amendment Equal Protection challenge New Jersey’s rule requiring
all attorneys licensed in the state to maintain a physical office there. The Third Circuit accepted
the argument that requiring all attorneys to maintain a physical in-state office did not
discriminate among attorneys based on their residence. Id. at 1113. Frazier, like Friedman and
Piper, does not show that Local Rule 101.1 interferes with the exercise of a fundamental right for
equal protection purposes.
Having decided to apply the “rational basis” test to Local Rule 101.1, I next find that
there is a legitimate rational basis for the New Jersey District Court’s rule. In Roberts, the court
had no difficulty finding a legitimate rational basis for New Jersey’s rule that restricted
admission on motion to attorneys admitted to the New Jersey state bar:
Because there is no federal procedure in the district court for determining an
applicant’s fitness to practice law before it, the court may properly rely on prior
admission to the bar of the supreme court of the state in which the district sits.
Roberts, 682 F.2d at 108. The court noted the frequency of issues in federal court that turn on
questions of state law from the district in which the court sits, as well as concerns about lawyers
choosing a federal forum over a state forum because of the admissions rules rather than the
interests of their clients. The court also found the rule’s special treatment for patent attorneys
and lawyers for the federal government were rational:
We believe that the exemptions extended to certain patent lawyers and lawyers
representing the United States and its agencies, but withheld from tax
practitioners, are based on reasonable distinctions related to the court’s interest in
ensuring the competence of counsel appearing before it.
As Plaintiffs point out, the practice of law has changed significantly since 1982 when the
Third Circuit decided Roberts. However, the justifications the court described in that case are
still rational. Nor is there any reason to find justifications are based in animosity towards an
unpopular group, Plaintiffs’ reference to United States v. Windsor, notwithstanding. 133 S.Ct.
2676 (2013). I do not find factual allegations in Plaintiffs’ Complaint to support Plaintiffs’
hyperbolic declaration that Rule 101.1,
similar to the laws targeting gays and lesbians, is obnoxious status-based rule
making enacted to target an unpopular group, otherwise qualified lawyers not
admitted in the Garden State. This is discrimination for the sake of
discrimination, and not a legitimate governmental interest.
Plaintiffs’ Memorandum of Points and Authorities Opposing Dismissal at 51–2.
Because I find that Local Rule 101.1 has a rational relationship to a legitimate state
interest, Plaintiffs Due Process Clause claim must be dismissed.
For the foregoing reasons, Defendants’ Motion to Dismiss shall be granted, and
Plaintiffs’ Complaint shall be dismissed. An appropriate order follows.
/s/ Gerald Austin McHugh
United States District Court Judge
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