Nat'l Ass'n for the Advancement of Multijurisdiction Practice v. Lynch

826 F.3d 191

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.

No. 15–1982

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2016

Decided: June 17, 2016

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.

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.

GIBNEY, District Judge:

“ ‘Membership in the bar is a privilege burdened with conditions.’ ” Theard v. United States , 354 U.S. 278, 281, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) (quoting In re Rouss , 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917) ). The National Association for the Advancement of Multijurisdictional Practice and four attorneys (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 attorney admission to practice in the District Court.² The Rule contains requirements based on the state of licensure and, in some instances, the location of the attorney's law office.³ The Rule allows for admission of attorneys licensed in the State of Maryland. 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 courts observe reciprocity with the District Court. Regardless of reciprocity, however, the District will not admit a non-Maryland attorney if that attorney maintains a law office in Maryland.

According to the District, the Rule encourages bar membership in Maryland for attorneys intending to practice there, and, with its reciprocity provision, encourages other jurisdictions to adopt liberal licensing standards. 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.

NAAMJP sued the Attorney General and each of the judges of the District Court, challenging the validity of Rule 701. The defendants moved to dismiss, and NAAMJP moved for summary judgment. The district court⁴ granted the motion to dismiss and denied NAAMJP's motion for summary judgment.⁵ NAAMJP has appealed.

II. ANALYSIS

This Court reviews de novo a district court's decision granting a motion to dismiss. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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

A. The First Amendment

The First Amendment prevents the government from “abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. Nevertheless, the professional speech doctrine allows the government to “license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment.” Moore–King v. Cnty. of Chesterfield , 708 F.3d 560, 569 (4th Cir. 2013).

Under the professional speech doctrine, courts must determine the point at which “a measure is no longer a regulation of a profession but a regulation of speech.” Lowe v. S.E.C. , 472 U.S. 181, 230, 105 S.Ct. 2557, 86 L.Ed.2d 130 (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, 105 S.Ct. 2557. In this context, “the professional's speech is incidental to the conduct of the profession,” id. and regulation “raises no First Amendment problem where it amounts to ‘generally applicable licensing provisions' affecting those who practice the profession,” Moore–King , 708 F.3d at 569 (quoting Lowe , 472 U.S. at 232, 105 S.Ct. 2557 ). In other words, the First Amendment does not come into play.

The First Amendment does come into play, however, when the government tries to control public discourse through the regulation of a profession. This occurs when a regulation limits the speech of professionals engaging “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, 105 S.Ct. 2557. In this case, regulation “must survive the level of scrutiny demanded by the First Amendment.” Id. at 230, 105 S.Ct. 2557.

In this case, Rule 701 is simply a regulation of a profession. The Rule does not compel attorneys to speak or regulate speech based on its content. Neither does the Rule restrict attorneys from speaking. To the extent it regulates speech at all, Rule 701 sets 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 the location of their principal law office. Any separate provisions for specific situations—such as federal 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 its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1 ; see Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (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. If the rule neither infringes a fundamental right nor disadvantages a suspect class, courts apply rational basis review. FCC v. Beach Commc'ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Under rational basis review, the challenged 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 (internal citations omitted). In other words, “[w]here there are ‘plausible reasons' for [the rule], ‘our inquiry is at an end.’ ” Id. at 313–14, 113 S.Ct. 2096 (quoting U.S. R.R. Retirement Bd. v. Fritz , 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) ).

Rule 701 does not infringe a fundamental right or disadvantage a suspect class. Applying rational basis review, Rule 701 clearly passes constitutional muster.

The rationales given by the District to justify the Rule are 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...