Ronwin sued the Arizona State Bar (“Bar”) and the individual members (and their spouses) of the Committee on Examinations and Admissions of the Arizona Supreme Court (“Committee”), alleging that they had violated federal antitrust laws in grading the 1974 Arizona bar examination that Ronwin failed. The district court denied Ronwin’s motion for recusal and dismissed the action for failure to state a claim, lack of jurisdiction, and lack of standing. We affirm the denial of the recusal motion, but reverse the dismissal decision as to the individual committee members 1 and remand for further proceedings.
I
FACTS
Ronwin took the Arizona bar examination in February, 1974. He was notified two months later that he had failed the examination. The Arizona Supreme Court refused to review his exam, and the United States Supreme Court denied certiorari. See Ronwin v. Committee on Examination and Admissions, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974).2
At the time Ronwin took the bar exam, the Committee was authorized to determine whether bar applicants possessed the “necessary qualifications and . . . fulfilled] the requirements prescribed by the [Bar] board of governors as approved by [the Arizona Supreme Court] .. . . ” Ariz.Sup.Ct. Rule 28(a) (1978) (amended in 1975 to create two separate committees). The Committee consists of seven active members of the State Bar who, upon the recommendation of the Bar’s Board of Governors, are appointed by the Arizona Supreme Court. Id. As Ron-win noted in paragraph II of his complaint, the State Bar is a private entity to which all Arizona lawyers belong, and the individual defendants were members of “the Committee . . . and, as such, presided over and conducted the process by which applicants for membership in [the] Bar were examined. ...”
II
DISMISSAL OF RONWIN’S ACTION
The district court gave three reasons for dismissing the action: (1) the complaint failed to state a claim upon which relief could be granted; (2) the court lacked jurisdiction over the subject matter; and (3) Ronwin lacked standing to seek the relief requested. These reasons will be discussed seriatim.
A. Failure to State a Claim — State-Action Immunity
The district court’s ruling that Ronwin had failed to state a claim was apparently based on its acceptance of defendants’ argument that bar grading procedures are immune from federal antitrust laws. Relying primarily on Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the defendants argue that, even assuming, arguendo, the grading formula was anticompetitive, the Committee’s status as a state agent renders its actions absolutely immune from antitrust liability. We disagree.
In Bates, the Supreme Court held that a disciplinary rule adopted by the Arizona Supreme Court and enforced by the Arizona state bar, which prohibited lawyers from advertising, did not violate the federal antitrust laws under the state-action exemption first announced in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). 433 U.S. at 359-61, 97 S.Ct. at 2696-97. The Court stressed that the real party in interest was the Arizona Supreme Court because it had adopted the challenged restraint. Because the challenged restraint had been specifically adopted by the state acting, through the State Supreme Court, as sovereign, it therefore reflected a clear and affirmative articulation of state policy. Id. at 361-62, 97 S.Ct. at 2697-98. In the present case, by contrast, the challenged restraint was not adopted or directly authorized by the Arizona Supreme Court.
In a more analogous case, the Supreme Court held that the activities of a county and a state bar association in publishing and enforcing a minimum-fee schedule were not shielded by the state-action exemption. Goldfarb v. Virginia State Bar,
The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Parker v. Brown, 317 U.S. at 350-352 [63 S.Ct. at 313-14]; Continental Co. v. Union Carbide, 370 U.S. 690, 706-07 [82 S.Ct. 1404, 1414-15, 8 L.Ed.2d 777] (1962). Here we need not inquire further into the state-action question because it cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent. Respondents have pointed to no Virginia statute requiring their activities; state law simply does not refer to fees, leaving regulation of the profession to the Virginia Supreme Court; although the Supreme Court’s ethical codes mention advisory fee schedules they do not direct either respondent to supply them, or require the type of price floor which arose from respondents’ activities.... It is not enough that, as the County Bar puts it, anticompetitive conduct is “prompted” by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.
Id. at 790-91, 95 S.Ct. at 2014-15.
Subsequent Supreme Court decisions underscore the distinction between Bates and Goidfarb. The Court has repeatedly emphasized in these more recent decisions that for the state-action exemption to apply the challenged restraint must be clearly articulated and affirmatively expressed as state policy and be actively supervised by the state itself. See, e.g., City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410-13, 98 S.Ct. 1123, 1135-36, 55 L.Ed.2d 364 (1978); New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411, 58 L.Ed.2d 361 (1978); California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980); Community Communications Co. v. City of Boulder, 455 U.S. 40, 48-51, 102 S.Ct. 835, 839-41, 70 L.Ed.2d 810 (1982). The failure to meet either requirement precludes application of the antitrust immunity. Midcal, 445 U.S. at 105, 100 S.Ct. at 943.
Viewing the present case at this stage of the proceedings in light of the Court’s state-action requirements, we conclude that the challenged grading procedure fails to qualify for antitrust immunity. It has not been established that the alleged restraint was “clearly articulated and affirmatively expressed as state policy,” Midcal’s first requirement. Id. Like the defendants in Goidfarb, the defendants here have no statute or Supreme Court Rule to point to as directly requiring the challenged grading procedure.4 See 421 U.S. at 790-91, 95 S.Ct. at 2014-15.
The fact that the Arizona Supreme Court has delegated to the Committee the general authority to examine applicants to determine if they are qualified to practice law and reviews the Committee’s recommendations regarding admission does not alone clothe the. Committee’s unilateral grading policies with blanket immunity from the antitrust laws. “The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement” over actions of the Committee that were not affirmatively expressed as state policy by the Arizona court. Midcal, 445 U.S. at 106, 100 S.Ct. at 943. As the Court emphasized in Goidfarb, “[i]t is not enough that, as the . .. Bar puts it, anticompetitive conduct is ‘prompted’ by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.” 421 U.S. at 791, 95 S.Ct. at 2015. Accord, Phonetele, Inc. v. American Telephone and Telegraph Co., 664 F.2d 716, 736 (9th Cir. 1981).
The question remains whether the challenged restraint allegedly fashioned by the Committee was sufficiently “articulated” and “supervised” by the Arizona Supreme Court. Standing alone, the fact that the court established the Committee and selected its members does not affect the reasoning underlying our conclusion that the challenged grading procedure was not clearly articulated and affirmatively expressed as state policy, Midcal’s first requirement.
Effective January 15, 1974, 45 days before the examination Ronwin failed, the Arizona Supreme Court adopted Rule 28(c)(VII)(B) which requires the Committee to file its proposed grading formula with the Supreme Court at least 30 days before each examination. This review procedure was not brought to the attention of the district court either in the pleadings or in the papers pertaining to the motion to dismiss; nor did the parties mention it in their briefs or arguments to this court.
Defendants contend for the first time on rehearing that the Committee’s grading formula “was submitted to the Court, reviewed by the Court, and accepted by the Court.” In response, Ronwin has tendered to this court what purports to be the letter the Committee filed with the Supreme Court on February 8, 1974 pursuant to Rule 28(c)(VII)(B). If, as Ronwin alleges, the Committee scored the examination to admit a pre-determined number of applicants, the letter does not so advise the court. Accordingly, if the letter presented to us constitutes the submission to the Supreme Court, it cannot be the basis for a clearly articulated and affirmatively expressed state policy. Although dismissal might have been proper if the facts were as defendants now argue for the first time on rehearing, those facts were never brought to the district court’s attention. Dismissal was therefore improper on the basis of the information before the district court.
Our resolution of the state-action issue is not inconsistent with this court’s pri- or decisions in Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966); Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968); and Brown v. Board of Bar Examiners, 623 F.2d 605 (9th Cir. 1980). Those decisions do not support the contention that bar grading procedures are always shielded by state-action immunity, that such procedures may be challenged only on constitutional grounds, or that the
The national policy in favor of competition, Midcal, 445 U.S. at 106, 100 S.Ct. at 943, should not be thwarted absent a clear articulation by the Arizona Supreme Court that it had adopted the alleged grading policy. Absent such a declaration, Ron-win should not have been denied the opportunity to prove that the grading policy was designed to limit competition among Arizona attorneys, as opposed to being designed to ensure that attorneys had the necessary qualifications. Thus, Ronwin’s action should not have been dismissed on the ground that the defendants enjoy absolute state-action immunity.
B. Subject Matter Jurisdiction — Interstate Commerce
The Sherman Act’s requirement of interstate commerce, 15 U.S.C. § 1, is jurisdictional. See Western Waste Service Systems v. Universal Waste Control, 616 F.2d 1094, 1097 (9th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 205, 66 L.Ed.2d 88 (1980); see generally McLain v. Real Estate Board, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980). The district court evidently found that the alleged restraint did not affect interstate commerce so as to invoke jurisdiction under the Sherman Act. Defendants contend that the jurisdictional requirement of the Sherman Act was not satisfied by Ronwin’s complaint because bar admission is a purely local matter. Ronwin responds that the services of Arizona lawyers are required by people living outside Arizona. The price paid by these out-of-state clients for legal services performed by Arizona lawyers is, according to Ronwin, higher than it would be if the number of Arizona lawyers had not been artificially restricted.
In order to establish jurisdiction under the antitrust laws, a plaintiff must establish that the defendant’s activity either (1) is itself in commerce or (2) “has an effect on some other appreciable activity demonstrably in interstate commerce.” McLain, 444 U.S. at 242, 100 S.Ct. at 509 (emphasis added). Because of the past confusion surrounding these tests, we will consider Ronwin’s allegations of interstate commerce under both the “in commerce” and the “effect on commerce” tests. See Bain v. Henderson, 621 F.2d 959, 960 n.l (9th Cir. 1980).
(1) The “in commerce” test: The most applicable Supreme Court decision ap
Ronwin did not specifically plead which interstate transactions require legal services. See Bain, 621 F.2d at 961. Nor did he indicate how substantial an effect on interstate commerce results from restricting the number of lawyers practicing in Arizona. It is not inconceivable, however, that he could establish that legal services constitute an indispensable and inseparable component of certain interstate transactions. Therefore, the district court erred in dismissing the complaint for that reason at this stage of the proceedings. See McLain, 444 U.S. at 246, 100 S.Ct. at 511 (a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief).
(2) The “effect on commerce” test: In McLain, plaintiffs charged that various New Orleans-based real estate brokers were engaged in a price-fixing conspiracy. The Court held that plaintiffs had alleged facts sufficient to show that defendants’ conduct affected interstate commerce.7 McLain, 444 U.S. at 245, 100 S.Ct. at 510. Specifically, the Court noted indications in the record that: (1) “an appreciable amount of commerce [was] involved in the financing of residential property in the Greater New Orleans area” and the commerce involved various interstate institutions, id. at 245, 100 S.Ct. at 510; and (2) the activities of the real estate brokers, by affecting the terms and frequency of local real estate transactions, could have a “not insubstantial effect on interstate commerce.” Id. at 246, 100 S.Ct. at 511.
Ronwin did not allege either that there are an appreciable number of interstate transactions taking place in Arizona that require legal services or that limiting the number of lawyers has a not insubstantial effect on the number or size of these transactions. However, as is also true under the “in commerce” test, it is not inconceivable that Ronwin could establish jurisdiction under the “effect on commerce” test. See, e.g., McLain, 444 U.S. at 245-47, 100 S.Ct. at 510-11; Western Waste Service, 616 F.2d at 1097-99. Therefore, on remand, the district court should give Ronwin the opportunity to prove that his complaint meets the jurisdictional requirements under either of these tests.
C. Standing
In order to have standing to maintain a private antitrust action, a party must allege injury to the party’s business or property occurring by reason of the alleged antitrust violation. 15 U.S.C. § 15; Solinger v. A&M Records, Inc., 586 F.2d 1304,1309 (9th Cir. 1978), cert. denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979). Defendants contend that even if they committed an antitrust violation, the violation did not cause Ronwin injury because he was subsequently found mentally unfit to engage in the practice of law. Thus, according to defendants, even if Ronwin had passed the exam, he would not have been admitted to practice in Arizona.
The flaw in the defendants’ argument is that Ronwin was not found mentally unfit to practice law by the Arizona Supreme Court until July of 1976, twenty-seven months after Ronwin’s exam results were released,8 If Ronwin had passed the
III
THE RECUSAL QUESTION
Ronwin appeals the denial of his recusal motion. The district judge was also presiding at that time over other actions in which Ronwin was a party. Ronwin set forth, in various affidavits and motions, facts which he contends indicated that the judge was biased and prejudiced against him. He contends that the judge was therefore required to recuse himself pursuant to 28 U.S.C. §§ 144 and 455.10
The test for disqualification is the same under sections 144 and 455(b)(1). United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). That test is whether “a
Ronwin’s specific allegations of bias or prejudice involve judicial acts which the district judge either performed or failed to perform while presiding over the other actions in which Ronwin was a party. None of these actions involved extra-judicial acts which would indicate, on their face, prejudice or bias. Adverse rulings by themselves do not constitute the requisite bias or prejudice. Azhocar, 581 F.2d at 738-39. Ronwin also contends that the judge was prejudiced against him because the judge was a defendant in an action brought by Ronwin. However, “[a] judge is not disqualified merely because a litigant sues or threatens to sue him.” United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977), cert. denied, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). Such an easy method for obtaining disqualification should not be encouraged or allowed.
Finally, Ronwin contends that the judge’s alleged participation in ex parte communications with defense counsel indicated the judge’s prejudice. Although a judge is generally required to accept the truth of the factual assertions in an Affidavit of Bias filed pursuant to 28 U.S.C. § 144, Azhocar, 581 F.2d at 739, Ronwin’s allegation of ex parte communications relates to facts that were peculiarly within the judge’s knowledge.11 Given the judge’s emphatic denial of Ronwin’s allegations, and Ronwin’s failure to show how such alleged communications indicated the judge’s prejudice, the judge did not abuse his discretion by denying Ronwin’s motion.
IV
CONCLUSION
We conclude that the district court did not abuse its discretion in denying the motion for recusal. We also conclude, however, that the court erred in dismissing the action as to the individual Committee members, and remand for further proceedings consistent with this opinion.12
AFFIRMED in part; REVERSED in part, and REMANDED.
1.
Although the Committee is appointed by the Arizona Supreme Court from a list of nominees chosen by the Bar’s Board of Governors, it is not, as such, a committee of the State Bar. Because no specific allegations of wrongdoing have been made against the Bar, the dismissal for failure to state a claim was proper as to the Bar. For the same reason, we affirm the dismissal as to the spouses of the individual committee members. 2. Ronwin applied to retake the bar examination in July, 1974, but was denied permission because the Committee declined to certify that he was “mentally and physically able to engage in active and continuous practice of law.” See Ariz.Sup.Ct.R. 28(c)(lV)(5). A special committee conducted a formal hearing regarding the allegations of mental unfitness under Ariz.Sup. Ct.R. 28(c)(XIl)(D). After holding a hearing, this special committee declined to find Ronwin mentally fit to practice law. The finding of *695unfitness was affirmed by the Arizona Supreme Court. Application of Ronwin, 113 Ariz. 357, 555 P.2d 315 (1976), cert. denied, 430 U.S. 907, 97 S.Ct. 1178, 51 L.Ed.2d 583 (1977).
3.
On remand, however, it may be necessary to determine the manner in which the 1974 examination was graded. Specifically, the court should determine whether the examination was graded as Ronwin alleges, or was graded on a different basis, such as a “scaled” formula, designed to equalize the difficulty of the exam over various years with the pass-fail determination being based on individual merit rather than numerical quota.
4.
The challenged policies in Benson v. Arizona State Board of Dental Examiners, 673 F.2d 272, 275-76 (9th Cir. 1982) (as amended), in contrast to this case, were explicitly mandated by statute.
5.
As in City of Boulder and City of Lafayette, “[t]his case’s preliminary posture makes it unnecessary for us to consider other issues regarding the applicability of the antitrust laws in the context of suits by private litigants against government defendants ... [or to] confront the issue of remedies appropriate against [public] officials.” City of Boulder, 455 U.S. at 56 n.20, 102 S.Ct. at 843 n.20. Accord, City of Lafayette, 435 U.S. at 401-02, 98 S.Ct. at 1130-31.
6.
The statement in Brown that “the only constraints on the states’ exclusive jurisdiction [over bar admission matters] are constitutional in nature ...623 F.2d at 609, refers to § 1343 actions like those at issue in Brown, Hackin, and Chaney because, as the Brown court notes in the very next sentence: “federal courts are granted jurisdiction under 28 U.S.C. § 1343 to vindicate [only] constitutional rights.” This jurisdictional limitation stems from the express language of § 1343, not from the fact that the plaintiff was challenging a bar admission policy. One need look no farther than Goldfarb, where the Court held that the minimum-fee schedule enforced by the state bar violated § 1 of the Sherman Act, to see that Ronwin’s complaint established subject-matter jurisdiction under federal antitrust laws.
Similarly, a careful reading of the three decisions reveals that they do not hold that a state supreme court is the only proper defendant in challenges to bar grading procedures. As the court explained in Brown, the state supreme court is the proper party when it has promulgated the specific challenged rule. 623 F.2d at 608 n.6.
In Hackin, as the Brown court noted, the court emphasized that the admission rule at issue, barring graduates of unaccredited law schools from taking the bar exam, was directly promulgated and enforced by the state supreme court. 361 F.2d at 500-01. In Chaney, the court’s discussion clearly concerns finality and the nature of the plaintiff’s claim, and has no relevance to the issues of state action or proper parties. See 386 F.2d at 966-67. It should also be noted that the Chaney court discusses the plaintiffs restraint of trade contention (similar to Ronwin’s claim) at length, and rejects it on factual rather than jurisdictional grounds. Id. at 965. Thus, these decisions offer no support for the contention that there is a blanket rule making state supreme courts the only proper defendants in all bar admissions cases.
7.
The Court specifically stated that a party need only show that a defendant’s general business, as opposed to the alleged illegal conduct, affected interstate commerce in order to meet the jurisdictional requirement. McLain, 444 U.S. at 242, 100 S.Ct. at 509.
8.
Although the Committee on Examinations and Admissions declined to certify that Ronwin *700was “mentally fit” to practice law when he applied to retake the bar exam in July, 1974, and the special committee appointed by the Arizona Supreme Court upheld that determination on January 21, 1975, it was not until July, 1976 that the Arizona Supreme Court affirmed the finding. Application of Ronwin, 113 Ariz. 357, 555 P.2d 315 (1976), cert. denied, 430 U.S. 907, 97 S.Ct. 1178, 51 L.Ed.2d 583 (1977). Defendants do not contend either that Ronwin would have been denied admission in 1974 because of his alleged unfitness to practice had he passed the exam or that he would not have been allowed to practice law pending the Arizona court’s decision on the matter. It would be inappropriate for this court to speculate on the matter.
9.
Assuming that Ronwin is able to clear the various hurdles still before him, it may be necessary to determine whether he would have passed the bar examination if graded on a proper basis. If the 1974 bar exam may still be impartially regraded to ascertain whether Ron-win would have received a passing grade, but for the alleged improper method of restricting bar admission, the district court may so order and supervise such a procedure for the sole purpose of determining whether Ronwin has been damaged. If the court decides that such a remedy is no longer feasible under the circumstances of this case, it would be justified in presuming that he would have passed for the purpose of ascertaining damages, if any. The amount of damages would be limited to Ron-win’s loss of earnings, between April, 1974 when he would have been admitted to the Bar, and July, 1976, when the Arizona Supreme Court found him unfit to practice law. See Murphy Tugboat Co. v. Crowley, 658 F.2d 1256, 1260 (9th Cir. 1981) (special solicitude for proof of damages when defendant’s conduct has been a factor in speculative nature of damages), cert. denied, - U.S. -, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982).
10.
28 U.S.C. § 144 provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any cáse. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Under this section, the district judge must accept the truth of the factual assertions in the affidavit and determine only whether the affidavit is legally sufficient. See United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979).
28 U.S.C. § 455 provides, in part, that:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party ....
11.
Ronwin’s allegation of ex parte communication between the judge and defense counsel was based on the fact that the counsel, in setting a hearing date on defendants’ motion to dismiss, knew when the judge would be in Phoenix. According to Ronwin, counsel could only have obtained that knowledge through ex parte communications with the judge. Counsel explained, however, that he knew the judge would be in Phoenix on the day he suggested for a hearing because he had received an order from the court in another case assigned to the judge setting the same date for a hearing in the other case.
12.
We note that many of the remaining issues may be suitable for resolution by means of summary judgment.
2.
In Brown, a graduate of an unaccredited law school sued the Nevada Supreme Court, State Bar, and Board of Bar Examiners to allow her to sit for the bar. The district court dismissed the State Bar and the Board of Bar Examiners as improper parties under Hackin, yet issued an injunction against them. 623 F.2d at 608. In allowing the bar and the board to appeal, the court of appeals explained:
We see no logic in the district court’s novel rulings which currently dismissed appellants and yet granted specific relief against them. Whatever the rationale, however, appellants should not be denied appellate review of orders by which they are aggrieved.
Id. Clearly, the court allowed the two parties to appeal because they were aggrieved. In dictum, the court said that Hackin, involving a challenge to the validity of a state supreme court rule governing admission to the bar, did not apply to make the state bar and the board improper defendants, since these were the only parties who could “physically comply” with an injunction requiring the defendants to let the plaintiff sit for the bar. Id. at 608 & 608 n.6. Even assuming the correctness of that dictum, it has no application to this case. Ronwin complains not of the failure of the state bar to seat him for the exam — he failed it — but of the failure of the supreme court to admit him. Admission to the bar is within the province of the supreme court, not the state bar, nor the committee.