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Case number 16-5020, National Association for the Advancement of Multi-Jurisdictional Addiction Practice, NAA, MJP at L, Appellants v. Jose, Jehuda, Garcia at L, v. Barrow, Harrell, Chief Judge, U.S.

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District Court for the District of Columbia at L. Mr. Gianni for the Appellants, Mr. Hudak for the Apple Leafs.

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May it please the court, good morning, I'm Joseph DeMoney.

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There's three prongs to our arguments.

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First prong is that we argue that the poll clause is unlawful because it violates the Supreme Court's decision in Fraser versus Healy, and it's inconsistent with this court's decision in Edwards versus the District Court of Columbia, or the District of Columbia.

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Second, we argue the principal office location disqualification provisions are an abuse of discretion because they are in excess of the rulemaking standards set forth in 28 U.S.C.

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2071 and 72.

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They violate numerous acts of Congress, and they abridge, modify, and enlarge a plethora of substantive rights.

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Third, we argue that the decisions in the Third, Fourth, and Ninth Circuit are wrong and that this Court should not follow them.

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The overarching issue in this case is invidious, class-based discrimination, one group of citizens against another.

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This is the same discrimination that we've seen in what everyone acknowledges are the worst decisions in the history of the Supreme Court.

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They are Plessy versus Ferguson, Dred Scott versus, I forget,

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and the United States versus Coromantza.

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Each of these cases is based on a stereotype of prejudice against the outer state of a certain class of citizens.

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We have the same invidious class-based discrimination in the poll clauses.

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First of all, they're not imposed on Washington District of Columbia attorneys.

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They're not imposed

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on the government attorneys, and they're not imposed on corporate counsel.

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They're imposed on a certain discrete class of citizens and attorneys who cannot help the class that they're a part of, because 40 states presently provide reciprocal admission for all attorneys, and 10 states are still segregationists.

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So my client, Marina Callaway, is an African-American, UCLA and DePaul University Law School graduate, a military veteran.

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And she was denied admission in this District Court of Columbia because of the basis of her office location.

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In Fraser v. Heavey, the Supreme Court,

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encountered that very question, and it held that discrimination on the basis of office location has nothing whatsoever to do with competence.

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It doesn't matter where the attorney lives.

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There's an increasing need for specialized legal services, regardless of state boundaries.

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And this office location provision is not necessary.

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The Supreme Court further held

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that PROHAC VHA is not an adequate certificate.

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The challenge rule is identical.

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It's identical.

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You have the same disparate treatment based on office location.

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There's no difference in the whole clauses here.

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In this case,

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than what the Supreme Court held in Fraser v. Hebe when it said, federal discrimination is difficult to justify.

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Today, this is 30 years later, we have iPhones.

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We're connected to everybody.

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Competence is not related to office location.

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This whole clause is also inconsistent with this court's decision in Edwards versus the District of Columbia, the tour guide case.

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As in that case, there's no evidence justifying this discrimination.

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I'm here today, Your Honor, as a tour guide.

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for my clients who are also tour guides.

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And we are asking this court to winnow through 200 years of constitutional law and to allow us to perform our professional responsibility to vindicate federal rights and champion locally unpopular claims in the District of Columbia Court, which we are denying.

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This class of discrimination also injures all of us.

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As we submitted in Dr. Page's declaration, all of us together are better than any of us individually.

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Diversity is a good thing.

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Diversity has been recommended by the Obama administration, streamlining reciprocal admission,

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the ABA, the Conference of Justices, the Uniform Bargain Commission.

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Essentially, Your Honor, I'm here challenging and us against them, culture of discrimination, when the them that they're discriminating against is us.

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We're all Americans.

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The second prong of my argument

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is that the poll clauses are inconsistent with the Rules Enabling Act, which were amended in 1988.

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The Federal Rules of Civil Procedure were amended in 1995.

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FRCP 83 was amended.

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FRAP 47 were amended.

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Both of these amended specify that district court and courts of appeals are authorized to make local rules, but those local rules have to be consistent with acts of Congress, and they have to not abridge, enlarge, or modify any substantive rights.

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This is essentially based on the conclusion that district judges

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discretion in enacting local rules is carefully cabin.

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Judges aren't legislators.

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They don't have a roving policy condition doing anything they want.

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And where do you get the limitation that they that the local rules cannot a bridge in large or modify a substantive right?

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Well, I get that your honor.

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From the fact that when Congress amended the Rules Enabling Act,

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It concluded that the local rules were inconsistent with the national rules and they violated numerous acts of Congress.

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Therefore, they put the burden of proof on the judicial councils to periodically review the local rules

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to make sure that they were in conformity with 2072.

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I get 2072, that standard, from 2071, which specifically states that the rules shall be consistent with 2072.

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And if we look at the section 2072b, it squarely says, shall not abridge, modify, or enlarge any substance of rights.

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And they do.

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But that's talking about the federal rules themselves.

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Certainly, certainly.

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But why would Congress, in trying to tighten up the local rules, say to the judges, district judges, you're not half to comply with this 2072B standard, but the Supreme Court does?

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It's a slippery slope.

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It makes no sense.

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It's inconsistent with the entire purpose of these amendments.

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And your best argument that this local rule enlarges, abridges, or modifies a substantive right is your single best argument.

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What's the substantive right that it enlarges, abridges, or modifies?

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The petition clause.

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The petition clause.

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It's a substantive right.

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It basically says that Congress shall not abridge, enlarge, or modify any substantive right.

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or I'm sorry, yeah, it says, Congress shall not abridge the constitutional right to petition the court for the redress of grievances.

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The poll clause abridges that substance of right because it proposes a classification scheme against these citizens.

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These citizens who are attorneys are not allowed to petition, and citizens and corporations who want to choose that attorney

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are prohibited from choosing him unless, in some circumstances, they can get pro-hac-biche and pay for two attorneys.

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And in some circumstances, they can't even get pro-hac-biche.

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So the whole purpose of, if Congress can't abridge the right to petition, then neither can local rules.

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Are there, I mean, is there anything in the record about inability to get pro-hac-biche?

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Is there anything in the record about an inability to appear pro-hac-biche?

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It's all over the place, you know.

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In fact, for example, in California, if you have an office or residence in the state and you are not admitted in the state, you're ineligible for pro-hac-biche in the state and in the federal court.

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Next door in Maryland, you have the same situation.

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If you're a District of Columbia licensed lawyer, and you practice in the Patent and Trademarks Office, and you work there and learn your trade, and leave, you cannot practice in the District of Columbia, I'm sorry, in the Maryland District Court, if you have an office in the state,

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For both general and pro-HACBHA admission, you're disqualified because you're disqualified on the basis of having any office, not a principal office, any office.

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This is not the only substantive right.

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So if you belong to a firm that's headquartered in D.C., but also has a Maryland branch, and you're in the D.C.

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office, and you're barred in D.C.

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and Massachusetts, and you want to go pro-hac-miche in Maryland, you're telling me you can't do that?

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Because your firm has an office in Maryland?

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I'm not following your question, Your Honor.

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I'm just trying to observe the information you just gave us.

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You said if you have an office in Maryland,

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The only way you can practice in Maryland is if you are barred there.

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You can't come in pro-hockey, you can't otherwise appear.

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And I was just applying that to a situation which you're a member of a law firm that has headquarters in DC but a branch office in Maryland.

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And if you're barred in DC and

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You can't.

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Well, the law firm could have an attorney and or an appearance, but you could not be the lawyer.

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Either product be chair or not eligible.

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Your blanket bar ineligible based on having any office.

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In this in the state of Maryland.

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So it also bridges and larges and modifies the right, the substantive right to full faith and credit, the statute.

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Federal statute says in the federal court, we're going to treat state judgments as if they were rendered in that state.

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All my clients have been admitted via judgment of the court that they're admitted in.

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The local rule basically says we're not going to uphold, we're not going to provide them full faith and credit.

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We're going to give them no faith and credit.

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So essentially there's enlarging the full faith and credit statute for local attorneys and government attorneys and corporate counsel, but not a specific class of attorneys based on office location.

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Now the whole

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Discrimination based on office location really has nothing, nothing whatsoever to do with competence.

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I better move quickly.

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The third circuit case, essentially I think I asked the court not to follow, it's not precedent.

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The Ninth Circuit case, I ask the court to not fall, because it holds district judges are immune of sovereign and judicial immunity, which is clearly inconsistent with Fraser v. Heavey and the 28 U.S.C.

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332-D-4, which imposes on the Judicial Council a mandatory duty to review the local rules periodically and make sure that they're consistent with 3072.

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And in the Fourth Circuit, they similarly have a principal office location disqualification provision.

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The Fourth Circuit opinion holds.

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It distinguishes Fraser versus Hebe, and it says, we're not discriminating on the basis of residents.

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ignoring the fact that Fraser v. Heapy squarely says you can't discriminate on the basis of office location.

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They completely ignore that fact.

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Additionally, they carve out an exception.

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for the poll clauses from 207 to B because they say we're reading the section incorrectly.

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It doesn't really say that.

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Well, that interpretation basically is inconsistent with what the purpose of the Rules Enabling Act and modifications were and inconsistent with the modifications to FRCP 83 and BRAP 47.

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It's not correct.

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Basically, it's a product of an us-against-them mindset.

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We're essentially saying we're not going to follow the law that Congress has enacted because we don't want to.

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We're going to paper over it.

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We're going to find a way out of it.

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We're going to perpetuate this discrimination, the same discrimination that's kept Merrick Garland from his hearing in the Supreme Court

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There's no reason other than it's party politics.

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It has nothing to do with his confidence.

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The poll floss has nothing whatsoever to do with my client's confidence or fitness.

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All right.

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Thank you, Mr. Giannini.

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May it please the Court, Brian Hudak from the U.S.

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Attorney's Office on behalf of the judges of the District Court and the Attorney General of the United States.

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We ask that the District Court's judgment in this case be affirmed.

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What a first answer, the question posed by the panel about Prohok Vijay to the District Court.

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Here, the situation, the judge

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Lord, you proposed wouldn't at all it infringed upon a attorney's eligibility to become a prohoc beach a member of the district court for a particular case.

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The only requirements, the only prohibitions on attorneys as if the attorney engages in the practice of law from an office located in the District of Columbia.

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So if an attorney was a member of a nationwide firm that happened to have offices here in the District of Columbia, whereas the attorney practiced out of their New York office, the district of the DDC's Prohoc Fiche rule would not prohibit that attorney from obtaining Prohoc admission.

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But in general here, the rule of the district court does not violate any constitutional provision, is not contrary to any act of Congress, and the Supreme Court's holding of Frazier in the exercise of his supervisory power is applicable here.

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As for Frazier, as both the Fourth and Ninth Circuits have held in rules that are far more strict than the district court's rule here, Frazier is distinguishable.

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The rule here in particular does not

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create any suspect classifications based upon where an attorney resides or even where the attorney's office is located.

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The attorney can have a law office anywhere in the United States as their principal law office.

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And as long as they're a member of either the DC bar or a member of the jurisdiction in which that office resides, they can have that office and practice and become a full-fledged member of the district court's bar.

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The Rules Enabling Act doesn't apply here.

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The limitation in 2072 is not engraved in 2071 based upon the text of the statute.

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But even if it were, the Supreme Court's holding in Shady Grove, orthopedics makes clear that the substantive rights that are

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at issue in the Rules Enabling Act are those that control decisions of law, how the substantive decision is going to be made as opposed to how the issues are presented to the court, the procedural law.

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And that's the distinction that the Supreme Court and Shady Grove reached when considering the Supreme Court's general applicable rules of procedure of practice.

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So are you resisting or agreeing with the proposition that the limitation on court rules to rules that don't abridge in large or modify a substantive right would apply also to local rules?

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No, and our primary argument is that the substantive right provision of 2072 is not a limitation on local rules.

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That seems rather odd, so that local rules can do, in effect, courts can do via local rule.

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substantive lawmaking even though the federal courts through the Rules Enabling Act process cannot?

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I would say it's not substantive lawmaking.

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I would say that the Congress perhaps found it wise not to have a restriction that may be viewed as over-broad in the maintenance of the judiciary in any particular jurisdiction.

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They cannot, in no way are we suggesting that the district court can pass and impair a substantive right that would be protected by the Constitution, not another act of Congress.

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What we are saying is that that's...

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Well, but common law, Your Honor, we can imagine hypotheticals here.

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There's not anyone posed that could.

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Right.

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I'm just curious.

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I agree there's not any pose.

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But you're asking us to make a ruling that could have implications in other cases.

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And I'm just surprised that you would see the need to take that position.

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I would think that's a strange position for the government to be taking.

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I understand, Your Honor.

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And I wonder what prerogatives you have in mind that you think you would be protecting by taking that position.

[00:21:07] Speaker 00:
Your Honor, we're simply taking the position that was adopted in the Fourth Circuit case that the Association brought, that indeed the limitations on these rules, because the general rules of practice can impinge on substantive rights, the rules of the District Court can impinge on those

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So why wouldn't it just be by operation of 2072 that local rules under 2071 also can't enlarge or branch or modify substantive rights?

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I don't see what you lose by seeing the logic of that.

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And it does seem peculiar to me that somehow through local rule, a district court could do substantive lawmaking where the federal courts generally cannot.

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Well, I mean, I think what Congress may have had in mind is the way that claims are brought to a district court.

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A district court is able to set filing fees, able to set fees for Prohok Vichay admission, able to command that if a response is not filed within 14 days, that the matter can be deemed conceded.

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And I believe Congress was careful in using its words to

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to limit the amount of controversies there are over local rules by saying specifically that they just need to be consistent with federal rules of practice.

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All we're doing is asking this court to apply the statutory text.

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If there are specific scenarios where a district court is engaged in substantive lawmaking, then we can address those on the space.

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But here, we're simply asking the court to apply the statute as Congress wrote and as the Fourth Circuit has adopted that interpretation as well.

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I understand, Your Honor, there may be a particular set of circumstances where it may be troubling to apply that rule in a vacuum.

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But here, we don't see how this rule at all impinges on any substantive rights, even if the limitations of 2072 do apply.

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As to the First Amendment, this is a general licensing requirement that has been held as such by

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by the other courts who have considered this issue, namely the third and the fourth.

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And we don't, and the association's other constitutional challenges simply lack merit.

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Unless the court has other questions for us, the judges and the attorney general would ask that the district court's judgment be affirmed.

[00:23:29] Speaker 00:
Thank you.

[00:23:31] Speaker 03:
Thank you.

[00:23:34] Speaker 03:
Mr. Giannone, you had no time left.

[00:23:37] Speaker 03:
We will give you one minute for rebuttal.

[00:23:40] Speaker 02:
Thank you.

[00:23:40] Speaker 02:
Thank you.

[00:23:42] Speaker 02:
Just a few points.

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First, we'd ask the Court to consider and take judicial notice of the amicus brief that was filed by the Association of Professional Responsibility Lawyers in the Supreme Court because it addresses this principal office location issue in depth.

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It's neutral, it's well-written, and it's persuasive.

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The second point I'd like to make, Your Honor, is that in the Shady Grove Supreme Court decision, it didn't really consider the Rules Enabling Act.

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But what it does say is that when a rule alters the rules of decision, then it's subject to a different category of classification.

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issue of who is allowed to present an argument and petition and express their client's right on matters of public concern in the United States District Court clearly encompasses the issue of

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a procedural rule that alters the decision-making process, which is very clear as a result of Mr. Merrick Arlen's refusal to be provided a hearing.

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He wasn't provided a hearing because they didn't want him on the Supreme Court because of the decisions that he would make.

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And with the poll clauses, certain class of attorneys were disqualified

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And they're disqualified without any evidence.

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Even under the intermediate standard of review for neutral provisions, the government still has the burden of proof, and they haven't submitted any evidence.

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Which brings me to my final point.

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The government has a battalion of excellent attorneys.

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They have not submitted any evidence justifying this.

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No declarations, no statistical evidence, no evidence rebutting the ABA's conclusions or the Conference of Chief Justice's conclusions or the Uniform Bar Exam Commission's conclusions.

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I doubt that my adversary

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has spoken to any of the district judges.

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And I don't believe that he's representing their views on the issue.

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He is paid.

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He's a defense attorney.

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The government is willing to defend anyone for essentially anything.

[00:26:25] Speaker 02:
And what they're basically arguing is inconsistent with a lot of the pronouncements that Eric Holder has made.

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and pronouncements that the Department of Defense and the Department of Justice and the Obama administration have recommended for streamlining occupational licensing across state lives.

[00:26:45] Speaker 02:
Additionally, this really, because the government is involved, presents an almost insurmountable burden because we want to believe the government.

[00:27:02] Speaker 02:
My client is not the government.

[00:27:04] Speaker 02:
He's not the United States of America.

[00:27:06] Speaker 02:
He's not speaking on behalf of the district judges coming in here and testifying or submitting memorandums of opinion.

[00:27:15] Speaker 02:
I doubt they even care about the result of this case.

[00:27:19] Speaker 02:
They have an inventory of 500 cases on their docket.

[00:27:23] Speaker 02:
And as a question of importance, this issue is probably 501st.

[00:27:29] Speaker 02:
It's irrelevant.

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It's not going to hurt them one way or the other.

[00:27:34] Speaker 02:
It's going to improve access to justice and diversity and essentially provide us with what our founding fathers described in the Constitution of forming a more perfect union and protecting the right to petition the United States government with a redress of grievances.

[00:28:00] Speaker 02:
Thank you.

[00:28:00] Speaker 03:
All right.

[00:28:01] Speaker 03:
Thank you, Mr. Giannini.