Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-21-2006
Natl Assn v. Gonzales
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2420
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2420
____________
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF MULTIJURISDICTION PRACTICE;
JOHN F. O’ROURKE; ALAN ELLIS; DONALD HARRIS,
Appellants
v.
ALBERTO R. GONZALES, HON. JOHN W. BISSELL,
Chief Judge for the United States District Court for the District of New Jersey;
DENNIS M. CAVANAUGH; JOSEPH A. GREENAWAY, JR.;
KATHERINE S. HAYDEN; FAITH S. HOCHBERG;
JOSE L. LINARES; WILLIAM J. MARTINI;
JOEL A. PISANO; ALFRED M. WOLIN;
HON. CONSUELO B. MARSHALL, Chief Judge for the United States
District Court for the Central District of California;
PERCY ANDERSON; *HON. MARY M. SCHROEDER, Chief Judge
for the Ninth Judicial Circuit; *ARTHUR L. ALARACON; *ALEX KOZINSKI;
*KIM McLANE WARDLAW; *MARSHA S. BERZON;
*ANDREW J. KLEINFELD; *LYNN WINMILL; *STEPHEN M. McNAMEE;
TERRY J. HATTER, JR.; *CHARLES R. BRYER; *ROGER G. STRAND;
RONALD S.W. LEW; NORA M. MANELLA; HOWARD A. MATZ;
JAMES S. OTERO; DEAN D. PREGERSON; GEORGE P. SCHIAVELLI;
CHRISTINA A. SNYDER; JOHN F. WALTER;
ANTHONY J. SCIRICA, Chief Judge of the Third Circuit Judicial Council;
DOLORES K. SLOVITER; JANE R. ROTH; THEODORE A. McKEE;
MARJORIE O. RENDELL; JAMES T. GILES; THOMAS VANASKIE;
SUE L. ROBINSON; DONETTA W. AMBROSE; GARRETT E. BROWN, JR.;
DOUGLAS B. GINSBURG, Chief Judge of the District of Columbia Judicial Council;
DAVID B. SENTELLE; KAREN LECRAFT HENDERSON;
A. RAYMOND RANDOLPH; JUDITH W. ROGERS; DAVID S. TATEL;
MERRICK B. GARLAND; THOMAS F. HOGAN; EMMET G. SULLIVAN;
JAMES ROBERTSON; RICHARD W. ROBERTS;
ELLEN SEGAL HUVELLE; REGGIE B. WALTON
*(Amended per the Clerk’s Order dated 5/12/06)
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-05081)
District Judge: Honorable Thomas N. O’Neill, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2006
Before: FISHER, CHAGARES and GREENBERG, Circuit Judges.
(Filed: December 21, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
The appellants, the National Association for the Advancement of Multijurisdiction
Practice (“NAAMJP”) and several of its members, appeal a decision by the District Court
dismissing their complaint for lack of personal jurisdiction and failure to state a claim.
Fed. R. Civ. P. 12(b)(2), (6). For the reasons set forth below, we will affirm the District
Court’s dismissal.
I.
The NAAMJP, a non-profit organization incorporated in California, and three of
its members, John O’Rourke, Alan Ellis, and Donald Harris, brought suit in the Eastern
District of Pennsylvania alleging that the local rules of approximately fifty-five federal
district courts violate numerous provisions of the United States Constitution, the Rules
2
Enabling Act, and the Federal Rules of Evidence, among others. The appellants allege
that the local rules, which require that attorneys appearing in federal district courts either
be licensed by the state in which the district court sits or meet some other criteria of
eligibility, are inconsistent with each other and discriminate against out-of-state attorneys.
For example, they challenge the rule in the Eastern District of Pennsylvania requiring that
an out-of-state attorney be admitted to the Pennsylvania bar and permitting admission on
motion to those lawyers who are licensed in states with reciprocal privileges. This kind
of rule, the appellants argue, violates twelve constitutional principles, including the
“constitutional norm of comity,” four federal statutes, several federal rules of civil
procedure, and two federal rules of evidence.
As far as we can tell, this is at least the fifth case that the NAAMJP or one of its
members has filed challenging court rules that limit the ability of attorneys who have not
passed the state bar examination to appear in court.1 Four suits have been filed in
California challenging the California Bar Association, the California Supreme Court, and
the United States District Courts for the Central, Southern and Northern Districts of
California. All four cases were dismissed with prejudice and the District Court for the
Northern District of California imposed Rule 11 sanctions. The Ninth Circuit affirmed.
After losing all four cases in California, the appellants filed suit in the Eastern
District of Pennsylvania naming as defendants President George W. Bush, Attorney
1
Several of the initial suits were brought by Joseph Giannini, the appellants’
counsel, as the named plaintiff.
3
General Alberto R. Gonzales, the Third Circuit Judicial Counsel, the Ninth Circuit
Judicial Counsel, the District of Columbia Judicial Counsel, the Department of Justice,
various judges of the District Court of New Jersey and individually each judge that is a
member of the named judicial councils. The appellants do not allege that they applied for
admission in accordance with the local rules and were barred from practicing before a
particular district court. Rather, they allege that all federal district courts should have
general admission privileges for non-forum state attorneys. In fact, Alan Ellis and John
O’Rourke are both admitted in the Commonwealth of Pennsylvania, and Donald Harris is
admitted in the state of Ohio, a state that has a reciprocal agreement with Pennsylvania.
Therefore, any of the three attorneys is statutorily eligible to practice in front of the
Eastern District of Pennsylvania.2
After a motion by the United States, the District Court dismissed the complaint for
lack of personal jurisdiction, failure to comply with the “short and plain statement”
requirement, Fed. R. Civ. P. 8, and failure to comply with the District Court’s order
directing the plaintiffs to address whether the District Court had jurisdiction. The District
Court also found that each of the appellants’ thirteen causes of action were substantively
meritless, stating that it could dismiss the complaint on those grounds as well. After
granting the motion to dismiss, it enjoined the NAAMJP from filing any further papers
2
In fact, a cursory search on Westlaw reveals that both Mr. Ellis and Mr. O’Rourke
have appeared on numerous occasions in front of the District Court for the Eastern
District of Pennsylvania.
4
regarding the constitutionality of local rules without leave of the District Court. The
appellants timely filed this appeal, challenging only the District Court’s determination
regarding the substance of the complaint. They fail to address personal jurisdiction,
failure to offer a “short and plain statement” as required by Rule 8, and dismissal as a
result of their failure to comply with the District Court’s order.
II.
Before we can address the substance of the appellants’ claims, we must satisfy
ourselves that we have jurisdiction. A review of the record and the parties’ briefs informs
us that we do not.
As an initial matter, the appellants failed to show the District Court and, on appeal,
have failed to show us, how the District Court exercised personal jurisdiction over the
out-of-state defendants. A party that fails to raise an issue in its initial brief before this
Court is deemed to have waived that issue. In re Pressman-Gutman Co., Inc., 459 F.3d
383, 402 (3d Cir. 2006) (quoting United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005)) (“‘It is well settled that an appellant's failure to identify or argue an issue in his
opening brief constitutes waiver of that issue on appeal.’”). In the face of a waiver, we
may only reverse a district court when it commits plain error. Walden v. Georgia-Pacific
Corp., 126 F.3d 506, 517 (3d Cir. 1997). Because we see, and the appellants have
offered, no evidence suggesting the out-of-state defendants have established sufficient
contacts with the forum state, it was not plain error for the District Court to dismiss for
lack of personal jurisdiction.
5
Even if the appellants could establish that the District Court had personal
jurisdiction over the out-of-state defendants, we lack jurisdiction over the entire case as
they have not presented a legally redressable injury. It is a fundamental principle of
American jurisprudence that before a party may bring a case before a court, he must have
standing to do so. The Supreme Court has established that “the irreducible constitutional
minimum of standing contains three elements[,]” injury in fact, causation and
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The party
invoking federal jurisdiction bears the burden of proving standing, id. at 561, and we
exercise plenary review over such questions. Miller v. Nissan Motor Acceptance Corp.,
362 F.3d 209, 220 n.15 (3d Cir. 2004).3
To establish an injury in fact, a party must demonstrate the “invasion of a legally
protected interest which is (a) concrete and particularized; and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and
citations omitted). “In other words, ‘the plaintiff must show that he [or she] personally
has suffered some actual or threatened injury as a result of the putatively illegal conduct
of the defendant [and][t]he injury must be concrete and capable of being redressed by the
court should the plaintiff prevail on the merits.’” Taliaferro v. Darby Twp. Zoning Bd.,
3
Neither party addresses standing in its brief, but, as they are jurisdictional in
nature, we are required to raise issues of standing sua sponte if they exist. Addiction
Specialists, Inc. v. Twp of Hampton, 411 F.3d 399, 405 (3d Cir. 2005).
6
458 F.3d 181, 188-89 (3d Cir. 2006) (quoting Wheeler v. Travelers Ins. Co., 22 F.3d 534,
537-38 (3d Cir. 1994)). The appellants in this case have made no such showing.
In their complaint, the appellants stated that they have been “irreparably injured.”
However, while expounding in great detail on the foundations of our legal system,
including a discussion between George Washington and Thomas Jefferson in a comic
strip, they fail to expound in any manner upon the injuries they claim to have suffered.
The complaint states that an “out-of-state attorney [seeking to appear before a court in
New Jersey] is compelled to accept the markedly inferior pro hac vice admission . . .”4
and that “these lawyers are vicariously disqualified from general admission on motion in
the Eastern District of Pennsylvania, based on the State of Pennsylvania’s ‘horse-trading’
incorporated by the local rules . . . .” This is the entirety of the claimed injuries suffered
by the appellants.
While the appellants have challenged the local court rules in approximately fifty-
five district courts, they have made no showing that they were denied the ability to
practice in any of those states or that they would seek to practice there but-for the local
court rules. Further, two of the appellants, O’Rourke and Ellis, are admitted to practice in
Pennsylvania and Harris is admitted to practice in Ohio, a state that has reciprocity with
Pennsylvania. Therefore all three are eligible to practice in front of the Eastern District of
Pennsylvania, one of the primary courts they challenge.
4
The appellants state no basis on which we can conclude that an attorney appearing
pro hac vice is considered inferior to attorneys otherwise appearing in front of a court.
7
The unnamed attorneys referred to in the complaint that allegedly suffered injuries
because of the local rules cannot provide the appellants with standing either. Taliaferro,
458 F.3d at 189. A litigant may bring a case on behalf of a third party in only very
limited circumstances where: “(1) the litigant has suffered an injury in fact, giving him a
sufficiently concrete interest in the outcome of the issue; (2) the litigant has a close
relation to the third party; and (3) there exists some hindrance to the third party's ability to
protect his own interest.” Id. at 189 n.4. The appellants in this case have failed to meet
all three requirements, as they have not shown an injury, have provided no relationship to
these unnamed attorneys, and have failed to suggest how practicing attorneys are unable
to protect their own interests.
Because the appellants have not applied to practice in the federal district courts
and been denied or made any showing that they would choose to do so in the future, they
have failed to show how they are injured by the local court rules. See Gilles v. Davis, 427
F.3d 197, 208 (3d Cir. 2005) (stating plaintiffs lacked standing to challenge city permit
ordinance where they had not applied for and been denied a permit).5
The styling of the complaint as a class action does not salvage the appellants’ case
either. While the mooting of a plaintiff’s claim after he has moved for class certification
5
The appellants cannot claim standing under the First Amendment exception which
allows a plaintiff to challenge a statute which could, by its very existence, chill expression
even where he has not suffered a concrete injury. Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973). We find that the challenged local rules clearly do not violate the First
Amendment and, therefore, the appellants lack standing.
8
does not preclude him from representing the class, a plaintiff with no initial injury may
not choose to represent a class of which he is not part. “[A] plaintiff who lacks the
personalized, redressable injury required for standing to assert claims on his own behalf
would also lack standing to assert similar claims on behalf of a class.” Holmes v. Pension
Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3d Cir. 2000). The constitutional
standing requirement requires more than a cognizable injury to someone. The plaintiff
himself must be among the injured. Mariana v. Fisher, 338 F.3d 189, 206 (3d Cir. 2003).
III.
A review of the record reveals that the appellants’ fifth attempt to challenge local
rules must fail for lack of jurisdiction. For the reasons set forth above, we will affirm the
judgment of the District Court dismissing the appellants’ claims and prohibiting them
from filing further papers on this matter without leave of the District Court.
9