*1 Response: FELDMAN, Appellant, Marc Plaintiff has no such which documents plan explosive the use of devices However, mention of Party or affiliates. GARDNER, William C. et al. such time to devices has been made from printed time in various articles HICKEY, Jr., Appellant, Edward J. newspaper. “Black Panther” 134-135). (App. response plaintiff has no DISTRICT OF COLUMBIA COURT OF complete is not answer to
such documents APPEALS, al. et question “identify all request or Nos. spokesman Each officer and documents.” required inquiry respond to United States Appeals, the informa- importance because of the District of Columbia Circuit. might have been tion and because well prepared documents the officers such Sept. 21, Argued place might an excel- first have July Decided thereof. lent recollection Interrogatory 103: As Sept. Amended discuss, Identify all documents which 27, 1981. Oct. to, plan, any way refer or mention hijacking Party or af- airplanes by Party
filiate members.
Response:
Plaintiff no which has such documents plan Party airplanes by the or hijacking However,
affiliates. of such ac- mention tivity which has been made articles appeared
have Panther” “Black newspaper. 135). (App. The comment made to Inter- rogatory equally applicable 102 is here.
Interrogatory 104: discuss,
Identify all documents which to, plan, any way refer or in mention gun police or ambushes or battles by Party other law enforcement officers Party affiliate members. Response: except
Plaintiff has no such documents for issues Panther” which of the “Black
report government police or other af-
agency against Party or activities filiates. (App. 135). Interroga- comment as to Same tory supra. *3 Sussman, C.,
Robert M. Washington, D. with Toupin, Washington, whom James A. C., brief, D. was on appellant for Marc Feldman. C., Henly, Washington,
Michael F. D. Fielding Ingrid whom Fred F. and M. Olson, C., brief, Washington, D. were on the appellant Hickey, Edward J. Jr. Rezneck, C., Washington, Daniel A. D. with whom H. Abe Krash and Charles Co- chran, C., brief, Washington, D. were on the appellees. ROBINSON, ROBB, Judge, Before Chief Judge, DAVIS,* Circuit Judge. and Opinion for the filed Chief ROBINSON, Judge SPOTTSWOOD W. III. Opinion concurring part dissenting part Judge filed ROBB. Circuit * Claims, sitting by theOf United States designation pursuant 293(a) to 28 § U.S.C. insubstantial, we affirm ROBINSON, III, they are W.
SPOTTSWOOD Intensive on this basis. Judge: their dismissal Chief jurisdictional problem, how study of the continuing efforts These cases mark ever, conclude that constrains us to single legal lawyers to surmount the of two judicial in the were not proceedings waiver profes chosen practice of their barrier sense, did not foreclose and thus federal The obsta sion in the District of Columbia. contentions litigation of the constitutional 1(b) of the posed by cle Rule 46 they face accordingly re We in the District Court. Appeals, District of Columbia .of the constitutional of law verse dismissals specifies only graduates which Bar As them for consideration by the American claims and remand schools accredited (ABA), graduates of other law sociation merits.3 on the supplementary schools who have taken institution, ABA-approved at an courses THE OF I. BACKGROUND *4 bar may sit for the District of Columbia LITIGATION examination.1 decade, the District Prior to the last Appellants, Hickey Edward J. and Marc District supervised admission Court Feldman, proscrip intercepted by when 1970, Congress In enact of Columbia bar.4 tion, petitioned the District of Columbia Reform Court ed the District of Columbia it in be Appeals2 Court of to waive their Act,5 by which that and Criminal Procedure so, half. When the to do court declined the District of was transferred to function they brought separate actions in the Dis together with Appeals, of Columbia Court validity trict of Rule 46 assailing gov promulgate regulations authority to 1(b) federal under the Constitution and the Ap membership.6 The of erning bar antitrust laws. In each instance the Dis adopted, part as peals subsequently trict Court the constitutional dismissed rules, challenged provision lim general counts, at as well as Feldman’s antitrust di iting entry to the bar. This contested tack, jurisdic ground on the that it lacked 1(b), which in is embodied in Rule 46 rective them, reasoning tion to entertain pertinent part provides: Appeals’ rulings applica on the nature, tions for waivers were in (3) ap- An Legal Education. Proof only and as such were reviewable from a law graduated who has plicant Supreme Court of the United Hick States. was graduation at the time of school that ey’s frivo antitrust suit was dismissed as American Bar Associa- approved by the lous. gradu- to be eligible or who shall be tion within law school approved ated from an argu- Careful review of the antitrust of the examination by appellants days satisfies us date ments advanced itself, Bar, 1(b) quoted, part, 1. Rule 46 in relevant in text District of Columbia Committee judges Appeals, each of infra of the Court of at note 7. See note 182 infra. and the capacity. whom is sued in his or her official 2. Hereinafter the District of Court of Columbia See note' 61 infra. Appeals frequently simply will be referred to as Appeals.” “the term “District Apr. 41 Stat. 561 4. See Act of ch. signifies Court” the United States District Court, U.S.App. (1920); Municipal Austin v. Court for the District of Columbia. (1956), cert. D.C. 235 F.2d denied, Although consoli- these cases have not been Laws, U.S.App.D.C. Brooks v. dated, 3(b), they nearly Fed.R.App.P. raise see (1953). F.2d legal argued sequen- identical and were issues tially day. Consequently, on the we deal same July Pub.L.No. 5. Act of single opinion. Appellees with them in in No. part at D.C.Code Stat. codified in relevant 79-1233 are the District Columbia Court 11-2501 § entity judges as of that an and the capacities. Appellees in court in their official codified § 84 Stat. No. 78-2235 and the secre- are the chairman part § relevant at D.C.Code tary of the Admissions of the Committee on will be permitted graduates take the bar exami- the 1975 of the International Under no shall nation. circumstances recently School of Law—another estab applicant be admitted to the bar without lished, unaccredited institution —in order to having first the Secretary submitted to permit them to sit for the bar examination the Committee a certifi- [on Admissions] completing any without additional courses.13 verifying graduated cate that he has dispensations Similar were later accorded to approved from an law school. International’s graduating 1976 and 1977 (4) Study Law a Law School NOT classes.14 Approved by the applicant ABA. An light the indulgence thus extended graduated from law who school not alumni, Hickey anticipa International’s approved by the American Bar Associa upon completion ted that of his studies at be permitted tion admission to an Potomac he too would allowed to take examination after receiving credit Contrary bar examination.15 to his ex for 24 semester study hours of in a law however, pectations, the Court of Appeals, study school that at time November pe denied Potomac’s approved by the American Bar Associa tion and tition for approval.7 temporary with Committee waiver rule on graduates. behalf of its Although students This rule appellants, blocks both present graduated who had been from International ly circumstanced, essaying pass from prior to August, be permitted would District of Columbia bar examination.8 *5 examination, to sit for bar the court Appellant Hickey A. exempt announced its resolve to discontinue Following a in career the United States ions.16 Navy, Hickey entered the Potomac School 18, 1978, April On Hickey, through his March, of Law in He 1975.9 was aware counsel, a petition filed in the Court of that Potomac was not then accredited Appeals seeking personal exception ABA, from hoped subsequently but to transfer Hickey the rule.17 set approved to an forth his academic Shortly law school.11 after matriculated, however, he Ap the Court of achievements18 and attached affidavits peals 1(b)(3)12 waived Rule 46 in favor of from members of of the District Columbia D.C.App.R. 1(b) (1978). 7. Hickey Complaint, supra We told App. that 10. H.H 33 states in addition the District of Columbia 9. limit admission to the bar in a similar fashion. Appellees 5; Brief for in No. 78-2235 at Brief 11. Id Appellees in No. 79-1233 at 6. 12. in text 7. Quoted seems, however, years 8. It that five after of law practice elsewhere, appellant apply each Hickey Complaint, supra App. 13. H. f for admission to the of District Columbia bar 9. without examination. See note 51 infra and accompanying text. Id Complaint, Hickey of District Columbia 7, App. 15. Id. H. Appeals, (D.D.C., Court of Civ. No. 78-1276 H July 1978) filed Hickey Complaint], cited as [hereinafter ¶ Appendix Joint No. in 79- App.]. 1233 at 8 [hereinafter cited as H. Be Hickey’s appeal cause us case is before from Special Petition of District of for Waiver grant dismiss, of a motion to we take as 1(b)(3) Appeals Columbia Court of Rule 46 well-pleaded allegations all true of the com Hickey Petition], App. [hereinafter cited as H. plaint, bearing “complaint in mind that a appears should not be dismissed unless it be yond plaintiff prove doubt that the can no set App. H. id. 17-18. See also support of facts in of his claim which would (law (Ex.) transcript), App. Exhibit A H. school Gibson, Conley entitle him to relief.” 41, 45-46, L.Ed.2d competence.19 legal profession, united in a combination in attesting bar to his He application newly-stated trade, monopolize urged attempted that restraint of policy against nonwaiver him would be un practice of actually monopolized fair, anticipated he not explaining Columbia, that had law in the District of in violation it and that would work its enforcement Act26 of the Sherman Sections particular hardship because he was then injury to sustain and caused unemployed support and the sole of his wife property meaning within the business Hickey’s petition and children.20 also al Clayton Act.27 An affida Section belief, leged, on information and that ABA accompanying complaint vit avowed policies precluded gaining him from admis law every ABA-accredited school sion to law contact-, an accredited school order to District Columbia had been qualify provisions under the of Rule 46 ed, and that each denied admission to indi 1(b)(4).21 On June poli as a viduals his situation matter Hickey’s petition denied in what cy, making impossible thus for him to styled per was as a curiam order.22 The comply 1(b).28 with Rule 46 court stated ABA “permit standards The District Court dismissed the com persons petitioner’s catego enrollment of jurisdiction.29 plaint for an asserted lack of ry” schools, in accredited law but not did Appeals’ The court held that respond grounds of the other ad disposition petition Hickey’s waiver by Hickey in support vanced of his waiver judicial in character and therefore reviewa request. ble Court.30 Hickey brought then his action in the further ruled that the antitrust laws did District alleged Court. There he apply type attack.31 action under arbitrarily acted and ca Hickey’s appeal followed. waiver;24 priciously in refusing him a Appellant B. Feldman 1(b) Rule 46 equal contravenes both the protection Feldman looked to a process components legal and due forward career Amendment;25 upon Fifth appellees graduation college, and that from but chose to have unreasonably entry restricted into the Virginia read for the bar32 rather than *6 B-E, App. Hickey Complaint, C, 19. Id 28. supra Exs. H. 25-33. n. Ex. H. App. 41-44. App. 20. H. 19-22. Hickey Ap 29. v. District of Columbia Court of (D.D.C. 1978) App. peals, 1(b) 21. Id. quoted at H. No. 78-1276 Dec. 22. Civ. Rule 46 is (memorandum order) cited as in text 3 [hereinafter at note 7. on, Hickey Order], App. Early 143. H. Hickey Complaint, B, 22. Hickey’s prelimi Ex. H. had denied motion for a court nary injunction mandating App. 35. his admission to Hickey July, bar examination. v. District 23. Id. Appeals, F.Supp. of Columbia Court of 24. (D.D.C.1978). Hickey ruling, appealed 1|11, App. Although Hickey but Id. H. 11-12. injunction pending appeal point Court, raised this this court refused an before the District he Hickey pursued appeal sponte. appeal; has not repeatedly and dismissed the sua it on indeed his brief Appeals, of No. challenge District of Columbia Court characterizes his suit as a (D.C.Cir. July 1978) (order). validity See, g., to the of Rule 46 I. e. Brief for Appellant Hickey at 24. See also note 200 Hickey Order, 30. n. App. at H. 142. infra. 31. App. Id. at H. relief, prayer App. Id. 11 & H. [[ rev.) (1978 provides: 32. Va.Code § 54-62 Preliminary proof required of education of applicant the certificate re- addition to 26. Id. 13, 14, Act, App. —In H. 13. See Sherman Ufl quired by every appli- §§ 54-60 and (1976). §§ 15 U.S.C. §§ Section 3 of taking any cant before examination under applies the Sherman Act the antitrust laws in furnish to the Board satisfac- this article shall tory the District of Columbia. 15 U.S.C. 3§ applicant has: evidence that such Hickey Complaint, (| App. (1) degree n. H. or certificate from a Received a Clayton Act, 13. See approved by § 15 U.S.C. school the American Bar § law Association, or, Board, or the law not a supervision graduate attend school.33 Under of an law accredited Examiners, of the state’s Board of he Bar school, and informed that only him began training his with a Charlottesville of Court had to make October, law firm in 1972. In the course exceptions requirement.41 to this studies, formally his ap Feldman audited 13,1977, petitioned June Feldman On proximately 18 credit hours classes at of Appeals to admit him to the bar School, University Virginia Law he or, alternative, without examination in the spent the final six his apprentice months of permit him to sit for the examination.42 as a ship law clerk to a judge district in support application, set his Feldman circuit.34 experience legal forth detail his Feldman sat for the Virginia bar exami training.43 passed After several months February, nation in and was admitted silence, counsel, his on March wrote Virginia to the bar in April year.35 of that Judge a letter the Chief January From March until attorney legal seeking peti he worked as a staff Appeals, prompt with a action on the Maryland, aid bureau in like Baltimore.36 tion. This Feld communication reiterated Columbia, limiting District of has rule qualifications sug man’s for admission and the bar graduates examination to of ABA- gested for the first time that institutions,37 approved but state’s barring practice of Mr. Feldman from the Board of Law Examiners waived the rule merely graduated law because he has not on Feldman’s behalf.38 He subsequently from an accredited raise law school would passed the examination Maryland and was important questions under United admitted to bar of that state.39 Constitution and the federal anti States applied Feldman then Committee questions trust that Mr. Feldman laws— on Admissions of the District of Columbia prepared pursue in the United States pursuant bar for admission to a then-exis necessary.44 District if allowing tent rule member a bar pages Counsel devoted the last three membership another to seek legal arguments, letter to an outline of the District bar without examination.40 advising these responded The Committee that Feldman’s request accepted grounds could not be because he would raised federal (2)(i) Completed three-year App. aca- least Id. F. H (ii) college demic an course of accredited years, studied law for at least three Id. State, attorney practicing office in this practice whose full law, time devoted 18, App. F. H years or studied law least for at three *7 partly by approved in a law school the Amer- 19, App. Id. 40. F. 8. H partly ican Bar Association or Board the and practicing attorney’s in said office. The at- 20-22, App. Id. 41. F. The 8-9. Committee UH torney applicant in whose office the intends initially exceptions advised Feldman that no study approved to shall be the Board hearing, were authorized. After informal it an prescribe which shall reasonable conditions Appeals told Feldman that Court of study. toas such course of waive infra. could the rule. See notes Complaint, Gardner, 33. Feldman v. No. Civ. (D.D.C., May 1978) filed 9 [here- for to K Joint 42. Petition of Marc Feldman Admission Complaint], Ap- inafter cited as Feldman Bar of the District of Columbia Without pendix in No. 78-2235 at 6 cited as [hereinafter cited as Feldman Pe- Examination [hereinafter case, App.]. Hickey’s F. As in true take as tition], App. F. 17. well-pleaded complaint. the facts in Feldman’s supra. See note 9 1-7, App. 43. Id. F. 17-19. UH 10, 12-14, App. 34. Id. F. 6-7. DU Letter, Theo- 44. Robert M. Sussman Hon. 15, App. Newman, Jr., 1, App. 35. Id. 7. F. R. at F. dore Mar. H 23. 16, App. 36. Id. F. 7. H Amend alleged come to violation both the Fifth threatened lawsuit should the The ment and the federal antitrust laws.54 pass.45 sought that Feldman essen court concluded thereafter, By shortly the Chief letter which, tially of a order a review Judge responded.46 This communication because of counsel’s letter Chief stated that had re Judge, “fully encompassed the constitution to its Commit application ferred Feldman’s statutory raised.” The court al and issues review; tee on that Admissions for accordingly ruled that it lacked Committee felt that Feldman “has had an then and dismissed the action.56 Feldman exceptional opportunity training and is appealed. personable, impressive, outstanding individual,” but had recom nevertheless C. Issues deny unanimously mended the court objections to Appellees press two broad petition;48 and that the court had de jurisdiction in these the District Court’s accept cided to the recommendation.49 The First, urge cases. the antitrust Judge explained: Chief frivolous, by appellants are claims advanced purpose pre the rule ... is to [T]he properly and therefore were dismissed vent Committee the Court from any substantial federal failure to raise assuming practically impossible task Second, question57 appellees contend that making subjective separate evaluations actually review of what seek is applicant’s each training and educa judgments highest court of the Dis tion; hence, objective and reasonable Columbia, trict of thus are defeated prescribed by standard as the rule must express congressional reservation of utilized.50 Feldman, course,” “Mr. message con respect Alternatively United States.58 cluded, eligible “will be to make an applica Feldman, it appellant suggested tion for admission to the bar after he has jurisdiction, if the even District Court had completed years practice.”51 five theOn judicata the doctrine of res barred that day following, —once he raised court’s consideration of the issues again per in a self-styled curiam order52 because, said, ques therein same —denied request Feldman’s for a waiver previously put tions were to the Court without additional comment.53 Appeals by written his couns letter Feldman filed suit in the District arguments el.59 We consider each of these about Hickey, two months later. Like he in turn. 5-7, App. Gardner,
45. Id at F. 55. Feldman v. Civ. No. 78-0957 (D.D.C. 1978) (memorandum opinion) Oct. Letter, Jr.; Newman, 46. Hon. Theodore R. Order], cited as Feldman F. [hereinafter Sussman, 29, 1978, App. Robert M. Mar. F. App. 50. Id Id. in Part II Discussed infra. Id Discussed Part III infra. Id It is also con- 59. Discussed in Part IV infra. principles comity tended that and federalism *8 Regu- counsel restraint in these cases. D.C.App.R. I(c)(3)(i) (1978). Id. See 46 The sure, legal profession, lation of the to be longer express rule no requirement contains an education largely province the Columbia, of the states and the Dis- reciprocity for admission. trict of but the federal courts never- responsibility when a theless have a to listen 52. See text at note 22. litigant charges or federal statu- constitutional tory observed, violations. As the Court has 33, E, Complaint, 53. Feldman Ex. F. App. 33. [wjhen wholly power a State exercises within 28, 30-32, interest, App. F. insulated the domain of state it is UU
1303 “arising a THE ANTITRUST CLAIMS suit under” such laws.62 That II. by does not occur the “issue tendered when Jurisdiction to entertain federal complaint or so the either frivolous in solely [is] is vested in the antitrust lawsuits beyond So, jurisdiction substantial as to the nature federal courts.60 whatever the of District of of proceedings light the in the Colum of the District Court.”63 In appellants’ of Appeals bia Court on waiver principle, appellees invite us to affirm the petitions, they unquestionably have appellants’ dismissal of Sherman64 right present in a their antitrust claims claims, Clayton Act65 insisting that of federal forum. The issue at the core “obviously op without merit.”66 The then, appel charges, antitrust is whether posing by appellants contentions advanced lants of act any cognizable stated cause inquiry boil the essential down to but one: ion,61 and thus not have suffered should May Ap District of Columbia Court dismissal. alleged peals be sued67 antitrust viola by adoption a tions reason of rule proffer problem
Mere
a
implicat
limiting admission to the bar examination
ing
necessarily
the antitrust
does not
laws
however;
pre
a
suffice,
completed
to candidates who have
subject-matter
jurisdic
dependent upon
tion of the federal courts is
minimum
education in an ABA-
scribed
erroneous,
from federal
review. But
insu-
such
believe this
to be
both be-
rationale
power
adjudication
is not
when
lation
carried over
state
cause there was no
on the merits
circumventing
by
Appeals,
as an
used
instrument for
a
of that claim the Court of
see Part
federally protected right.
infra,
III
and because
District Court has
Reynolds
Sims,
533, 566,
377 U.S.
original jurisdiction
84 S.Ct.
exclusive
over
anti-
federal
1384,
1362,
506,
(foot-
(1964)
530
supra.
trust actions. See note 60
We affirm
omitted), quoting
Lightfoot,
Gomillion v.
analysis
the dismissal on
basis of
set
339, 347,
125, 130,
364 U.S.
81
L.Ed.2d
5
supra.
in text.
201
forth
See note
110,
(1960).
117
See also note 200 infra.
although
noteWe
further that
Feldman di-
against
complaint
rected his
Committee
60. General Investment
v. Lake Shore & M.
Co.
against
secretary
as
Admissions and its
as well
261, 287,
117,
Ry.,
106,
So.
260 U.S.
43 S.Ct.
67
members,
Appeals
and its
see note
244,
(1922).
generally,
See
J.
L.Ed.
260
von
supra,
perceive
context
3
antitrust
no
Kalinowski,
Reg-
14
Laws and
Anti-trust
Trade
against
basis for a claim
challenged
the Committee. The
104.01,
(1980).
§§
ulations
15
104.02
See
promulgated by
rule was
the Court
(1976),
U.S.C.
25
28
§§
§
U.S.C. 1337
Appeals,
and the Court of
has the
as amended Act of
Pub.L.No.
Oct.
responsibility
ultimate
its enforcement.
1633;
9(a),
§
92
Act
Stat.
of Oct.
limited;
The Committee’s functions are
it acts
1980, Pub.L.No.96-417,
(1980).
94 Stat. 1743
adversary
primarily
capacity.
in an
See note
Court’s “affirmance”
Bates v. State
Consequently
infra.
our
41
note 193
Arizona,
Bar of
53
part
po-
in this
addresses
discussion
(1977)
L.Ed.2d
preme
Su-
decision of the
—of
liability
Appeals.
tential
lawyer
Court Arizona
its ban on
advertising did not violate federal antitrust
28 U.S.C.
as amended
§
See
recognition
law—should not be
as a
mistaken
20, 1978,
9(a),
Pub.L.No.
§
Act Oct.
of state-court
to entertain federal
1633;
10, 1980,
Oct.
92 Stat.
96-417,
Act of
Pub.L.No.
plaintiffs
antitrust suits. The Bates
raised an
V, 505,
tit.
94 Stat. 1743.
§
argument
high
antitrust
before
Arizona
proceeding
court
disciplinary
a defense in
to enforce
Lavine,
Hagans
rule,
and that court dealt
1372, 1380,
(1974).
L.Ed.2d
argument for what it was—a defensive chal-
Hood,
Bell v.
U.S.
also
rule,
lenge
validity
original
not an
(1946).
L.Ed.
Bates,
antitrust action. See Matter of
394,
113 Ariz.
(1976).
P.2d
For more
Act,
§§
§§
64. Sherman
U.S.C.
Bates,
complete discussion
see text
infra
(1976).
notes 79-81.
Act,
Clayton
15§
U.S.C.
§
61. The District
fed-
Court dismissed Feldman’s
ground
eral antitrust claim on a different
—that
parte Poresky, 290
Ex
had been resolved
the District of Colum-
bia
and thus
be re-
could
only by
viewed
Feld-
Court. See
Order,
App.
supra.
*9
man
We
at
F.
50.
67. See note 3
Goldfarb,
In
accredited law school? We hold that
Court struck down
promulgated by
a minimum fee schedule
not.
county bar association under the direction
Virginia.
of the state bar
The Court
A. The State Action Doctrine
emphasized that
itself had not
state
defending against
appellants’
argu
In
schedule.73
directed the issuance of the fee
“arguments, at
ments,
Noting
groups’
that
the bar
upon
appellees have relied
the “state
most,
their ac
constitute
contention
exemption
action”
from antitrust
liability.
objective of the
complemented
tivities
Although
originated
much
doctrine
earl
codes,”74
ethical
the Court declared
[state’s]
ier,68
came in Par
principal exposition
its
our view that
is not state action
“[i]n
Brown,69
ker v.
in 1943. The Su
decided
purposes.”75 Significant
Act
Sherman
preme
upheld
pro
Court there
a California
cases, however,
ly
instant
gram designed
competition
to restrict
certain
holding
stressed that
anti-
“[i]n
among
growers
prices
order to maintain
competitive
by lawyers
conduct
is within
market,
reasoning
in the raisin
the reach of the Sherman Act we intend no
state,
sovereign, imposed
as “a
the restraint
authority
of the state to
diminution
government
as an act of
which the Sherman
regulate
professions.”76
its
The Court de
Act
prohibit.”70
did not undertake to
scribed this
as based on the
cases,
Goldfarb
two much
more recent
“compelling
practice
states’
interest
Virginia
State Bar71
Bates v. State Bar
boundaries,”
professions
within their
Arizona,72
on the
Court elaborated
gives
which
them
to establish
power
“broad
concept
pur
state action
in the context of
licensing practitioners
reg
standards for
ported anticompetitive regulation of the le
ulating
professions.”77
practice of
gal profession.
cogently
observed that
interest
“[t]he
68.
In Eastern R.R.
v. Noerr Motor
Conference
73.
1305
stake,
regulating lawyers
espe
government agency
is
subordinate
is at
of the States
lawyers
cially great since
to
are essential
it
everything
for
is well settled that not
it
governmental
primary
the
function of ad
is
sovereign.83
does
an act of the state as a
justice,
ministering
historically
and have
obviously
There
is no need for
investi
”78
‘officers of
been
the courts.’
gation
plainly
that sort when the action
Bates,
against
In
the Court sustained
an
capacity.
is taken in a
Thus in
sovereign
prohibiting
a rule
adver
objection
titrust
Petrofina,84
v.
New Mexico American
the
rule,
tising
lawyers.
the
by
That
Court Ninth Circuit held that “a state
cannot
found,
was “the affirmative command
alleged
sued
violations of Sections
Court,
the Arizona
...
ulti
Act,”85
2 of
explaining
Sherman
body wielding
power
mate
over
the State’s
cases like Parker v. Brown
practice
Contrasting
of law.”79
against allegedly private
involved suits
fee
successfully
bar-created
schedule
at
defendants
... or a state
corpo-
created
Goldfarb,
tacked in
the Court noted that
manage monopoly
ration intended to
a
complaint in
anticompeti
Bates was not
public
interest.
by
a
lawyers
tive behavior
but
“restraint
situation,
to
‘compelled by
necessary
either
.. .
direction of the State
”80
acting as
sovereign.’
Referring
anti-competitive
a
its
determine whether
to
admonition in
Goldfarb
no dilution
actually is goal
result
a
of the state enti-
regulate
the states’
to
their pro
tled
to
immunity....
state’s
intended,
pointed
fessions
understandably
to
reluctant
[C]ourts
“[allowing
out that
Sherman
[Bates]
apply
private
immunity
par-
the state’s
to
challenge
disciplinary
Act
rule would
by
ties
without
clear indication
precisely
have
that undesired effect.”81
legislature
anti-competi-
state’s
us,
tive results have its sanction.
parties
In the cases before
arguments
have
their
focused
the tests
But there is no indication from those
developed in Parker and
progeny
its
legislature
that the
cases
must declare
determining whether
there is sufficient
supplant competition
intent
to
in an in
to
alleged
state action
immunize
anticom
dustry
question
no
when there is
that the
petitive practices. These
require
tests
conduct is committed
the state.86
courts
ascertain whether
there
a clear
activity
private
agree.
We
While
policy accompanied by
articulation of state
supervision
parties prompted by purported
poli
state
active
the state.82
in
This
quiry
necessary
becomes
an act
pursuant
regulatory
when
state
cies
3118-3119,
Id
78.
49 L.Ed.2d
1150-1151
Schwegmann
Corp.,
Bros. v. Calvert Distillers
79.
state-action
in the antitrust
final
arbiter of local
empha
repeatedly
Court has
specifically
and is
Congress
vested
sized that
fundamental considerations
power
regulate
admissions to the
exemption
federalism
doct
underlie
Authority
District of Columbia bar.110
rine.102 Inherent in our
system govern
type
scope
enjoyed by
is not
courts
concept
ment
is the
sovereignty;
of dual
municipalities.
sovereign, except
each state is
to the extent
that its sovereignty
is curtailed
the Con
short,
the District of Columbia
Cong
validly
stitution or
restricted
*12
cannot be
as a
in rela
characterized
state
It is for this reason that “an unex
ress.103
is,
to
It
tion
the federal antitrust
laws.
pressed purpose
the antitrust
to
[in
laws]
rather,
governmental
a semi-autonomous
nullify a state’s control over its
and
officers
unit,
entity unique
governmental
an
in our
agents is
lightly
not
to be attributed to
structure. But
of the
whatever
status
Congress.”104 These basic concerns do not
legislative
District’s
executive
and
branches
arise, however,
respect
with
to the District
hierarchy
in the
exemption,
antitrust
Columbia; despite
the recent enactment
Appeals
plainly
Court of
is
a federal instru
legislation
giving the District greater
mentality
supreme
with
armed
autonomy,105 it remains a federal enclave
power
subject
over
in
nonfederal
matter
lacking the sovereignty
in
inherent
state
are
prior
District. We
mindful that
aon
hood.
occasion we held that the District of Colum
breath,
reject
In the
same
notion
Board,
Armory
up by
bia
Congress
set
ex
Ap
the District of Columbia Court of
pressly
provide
to
a stadium for District of
peals merely
pur
municipal
a
unit for
teams,
sports
Columbia
immune
poses of the
question posed
antitrust
in this
Armory
from antitrust
liability.111
litigation.
creature,
It is
not of
a
the Dis
Board, however,
oper
was commissioned
Government,
trict of Columbia
but of Con
venture,112
facility
private
ate
as a
a
itself;106
gress
highest
“[t]he
entirely
mission
different from that
Columbia,”
the District of
whose “[f]inal
of Appeals.
The court was estab
judgments and
decrees . ..
re viewable
judici
Congress
lished
to head
local
Court of
the United
107
States,”
indispensable
governm
as
ary
are those of the state courts
function
such,
ent,113
of last resort.108 As
powers
and was
vir-
invested
102. See cases cited
Scientology
Foley,
82.
205
Church
v.
n.63,
U.S.App.D.C.
372
640 F.2d
denied, -
City
Lafayette
(dissenting
opinion),
v. Louisiana Power &
1343 n.63
cert.
Co.,
Light
-,
The Ap District of Columbia Court of pre when it sets and enforces educational peals shall make such rules deems requisites to the bar for admission examina proper examination, respecting quali tion. It be could have appellants that fication, persons and admission of ABA, organization sued if en indeed that bar, membership censure, in its and their gages anticompetitive in behavior suspension, and expulsion.117 thereby upon They inflicts them.121 injury cannot, however, subject Ap Responding to the directive of this legisla- peals tion, charge to a of antitrust violation. We court, by conditioning admission to appellants’ affirm the antitrust the bar dismissal of upon examination educational at- claims. school, tainment ABA-approved law ly systems Inc., 111, Pro-Football, chose to establish the two of courts Hecht v. U.S.App.D.C. note 144 District, States, in the v. 444 Palmore United at F.2d at 942-944. 101,
note
III. THE
CONSTITUTIONAL CLAIMS
tain
claims
founded on the
multifaceted,
Constitution —is
and thus
A.
Jurisdictional Considerations
calls for step-by-step
begin
treatment. To
with,
ago
principle
impor
More than a
while
is a
century
first
“[i]t
Court,
Secombe,122recognized
in Ex Parte
tance
the federal courts are courts of
as even then
principle
“well-settled” the
jurisdiction,”125
limited
there can be no
that a court has exclusive
“to
respect
ap
doubt
with
to those claims
who qualified
determine
is
one of
become
pellants
requirements
met the minimum
officers,
attorney
as an
and counsel
federal-question jurisdiction.126 The thresh
years
lor”
Never over the many
requirements
regard
subject
old
since
thesis
seriously
Secombe has this
been
right
matter are
when
satisfied
‘the
of the
challenged, nor
proposition
has the related
[plaintiff]
complaint
under
recover
[the]
normally
admission to a state’s bar
is a will be
if
sustained
the Constitution and
litigation
nonfederal matter. Yet the
be
given
laws
United States are
one
disposed
fore us
merely by
invoca
construction
be
and will
defeated if
tion of
regulatory power.
this broad
Its
given
another.”127 That
indisputably
exercise,
like
other exertion of govern
situation here. The amount
authority,
subject
mental
to the com
controversy prescribed by statute was es
Constitution,
mands of the
and redress for
tablished
appellants’ good-faith valua
infringements of
rights
Constitution
assert,
of the rights they
tion
definitely
guarantees ordinarily may
sought
“appear[
it did not
to a legal certainty
]
federal courts.124
propriety
of resort to
really
claims
for less than
[were]
proceeding
those courts after an earlier
in a
jurisdictional
. . . .”128 More
amount
*14
light
nonfederal court must be considered in
over,
jurisdictional
longer
amount is no
criteria,
of established
this is
the second
a
prerequisite
a
to suits which
“federal
task that the
appeals
instant
summon us to
question”
appellees urge,
is at
As
issue.129
perform.
however,
prospective
in some instances
plaintiffs
jurisdiction
must clear additional
problem
The
before us—whether
if
suit in
empowered
bring
the District Court
enter
al obstacles
to
a
was
to
9,
(19 How.)
(1857).
1441, 1444,
605,
(1963);
122. 60 U.S.
vested
emphasized
a
determination
judicial
whether a
acted in a
Congress
tribunal has
United States.131 In
extend
pro
capacity turns on the character of the
ed
of the new
exclusivity
judgments
this
outcome,
ceeding
of its
rath
and the nature
of Columbia
ly-reconstituted District
er than on the circumstance that
the deci
Appeals.132 Accordingly,
we are in com
moment,
“at
sionmaking body
another
was
appellees
plete agreement with
a
principal
aspect,
or in its
dominant
...
powerless
District Court
to reexamine
And,
see,
court
as we shall
....”136
now
of Appeals
determinations
the Court
Prentis
is also
instructive on other
highly
whether,
judicial
But
proceedings.133
aspects of the
before us.
core issue
purposes
jurisdiction
ascertaining
Prentis involved
constitutional
assault
court,
a federal
be
particular proceeding
in a
federal circuit
an order of the
judicial
truly
fore another tribunal
is a
Corporation
Virginia
State
Commission
law, calling
question
federal
for close
which, under
the state’s constitution
inspection of its features.134 We conclude
statutes,
judi
legislative,
was “clothed with
instant
within
actions fell
the Dis
powers,”137
cial and executive
and thus
because,
find,
jurisdiction
trict Court’s
part
functioned at
least
of the time as
Appeals’ dispositions
of appel
Virginia
body.138 The
constitution
waiver petitions
pro
lants’
emanated from
provided
ratemaking
from a
appeal
that an
ceedings
that were
order of the
could be taken
Commission
court,
sense.
highest
to the state’s
which was
power merely
130. “Constitutional
first
The District of
Court Reform and
Columbia
Act, Pub.L.No.91-358,
hurdle that must be
..
overcome..
For the
Criminal Procedure
172(a)(1),
of the federal courts is limited not
§
Stat.
added at the
only by
provisions
Art. Ill of the
quoted supra
Consti-
end of 28
§
U.S.C.
tution,
Congress.”
Equip.
but Acts of
Owen
following language:
purposes
“For the
Kroger,
Erection
&
Co. v.
section,
‘highest
the term
court of a State’
*15
372,
2402,
at
U.S.
98
57
S.Ct. at
L.Ed.2d at 281.
Ap-
includes the District
Columbia
States,
101,
See Palmore v. United
peals,”
position
by
previously
filled
401,
1678,
1311
judicial.142
empowered
Sharply
to
its own
if it
and not
differentiating
substitute
order
two,
explained;
between the
the Court
challenge
The
found
meritorious.139
litigation
Prentis
arose when the
Commis
inquiry investigates,
A
declares
confiscatory
sion
deemed
established rates
and enforces liabilities as
stand on
present
past
sup-
or
facts and under laws
by affected railroads.140
posed already
pur-
exist. That
to
The
suit
railroads’
was resisted
Legislation
pose
end.
on the other
theory
promulgating
on the
in
looks
changes
hand
to the future
rates the Commission acted as a court of
existing
new
by making
conditions
rule
state,
and that its order thus was statu
applied
be
to
thereafter
to all
some
torily
lower
immune from a
federal court’s
part
subject
power.
those
to its
The
injunction.141
The
disa
making
rate
of a
establishment of a
is the
greed, holding
ratemaking
future,
proceed
rule for the
is an
and therefore
ing
legislative
judicial,
before the Commission was
legislative,
act
not
in kind..
..
224-225,
68-69,
(3d
1975).
Litigation,
at
S.Ct.
Id.
29
at
53 L.Ed.
521 F.2d
779
Cir.
only proceedings
at 158.
the Act
But
immunizes
“in a
court,”
State
hence the need to ask whether in
223, 225,
68, 69,
at
Id.
Proceedings legislative in nature are been passed discussed and upon by it in proceedings in a not court within the way same it would deal with anti-injunction meaning statute], of [the them they if arose afterwards in a case may no general matter what be the or properly so called.145 body dominant character of the in which Prentis, deciding Since they may place.... question take That Court has reaffirmed the distinction be depends not upon the character of the judicial nonjudicial actions, tween not body upon but pro character of the only in ratemaking context in which the ceedings ....143 problem originally arose146 but in other ar Equally important us, to the cases before example, eas as well.147 For in Public Ser the Prentis nonju- Court made clear that a Corboy,148 ques vice v.Co. faced with the proceeding dicial judicial does not become tion whether a federal district court could simply because it ques- addresses the same enjoin allegedly unconstitutional action tions might developed have been in a judicial involving action state engaged identical sub- court in construction con ject matter: tracting, upon Court drew inquiries does not matter what
[I]t
Prentis rationale:
have been made
a preliminary
as
[Although the Constitution did not limit
legislative act....
effect of the
[T]he
the power of the States to create courts
inquiry,
it,
and of the decision upon
and to
upon
confer
them
authority
such
by
determined
the nature of the act to
might
be
pur
deemed best for state
which the inquiry and decision lead
poses,
not,
that right
could
its exer
up....
when the final act
legisla
[S]o
tion, restrain or limit the power of the
tive the decision which induces it cannot
courts of the
by bringing
United States
judicial
sense,
practical
although
within
the state
sub
questions
might
considered
be the
jects which in their constitutional sense
same that would arise in the trial of a
non-judicial
were
in character and there
case.144
fore not within
implied
express
And the Court
left no doubt
these
limitation
which courts of the United
principles apply
only to an
not
administra-
States were
staying judi
restrained from
tive agency but also to
full-fledged
cial proceedings in state courts. To hold
engaged
in a non
proceeding:
to the contrary
large
would be in
measure
state
[confirming
action in
[The
court’s]
to recognize that the exertion of the au
judicial,
would not have been
rate]
thority of the courts of the
although
questions
United States
debated
might
dependent,
have been the
might
upon
same that
the nature and
court,
come before it as a
and would have
character
subject-matter
143. 211
909;
U.S. at
29 S.Ct. at
Armstrong Maple
petition
pro
had not
a
then
in language only slightly dif
case
the Prentis test:
ceeding involving
controversy,
a
but
original,
ferent
from the
simply
application
was
an
signifi
for Summers’
“The form of
proceeding
the
is not
appointment
as an officer of the
cant.
It is the nature and effect which is
court.158
however,
Supreme
disagreed,
The
controlling.”
Court
The Court
that
the
found
and consented to review the
proceeding
Illinois court’s
before the Illinois court was an
though ultimately sustaining
adversary
it
sought
one because it
relief ex
decision,159
It
is
grant
on the
to this
against
pressly
assertedly
the
unconstitu
merits.160
certiorari,
and the
finding
concomitant
that
tional action of the character
committee.163
the proceeding in the Illinois court
The
was
Court
that
claim of a
concluded
“[a]
judicial,
point
that appellees
ground
present
right
as the
to the bar of a
admission
for their
that
the
contention
that
right
state and
denial of
contro
appellants’
Court can now hear
claims.
versy,”
and in Summers’
instance was
reviewable on writ
For rea
certiorari.165
began
The
analysis
sons now to be explained, we think Sum
Summers
by reiterating
case
“[a]
mers
here,
govern
not
does
the
arises, within
meaning
the
of the Constitu
attempt
judiciality
pro
attribute
tion,
any question respecting
when
the Con
ceedings-in the Court of
must fail.
stitution,
or laws
treaties
United
outset,
States has
‘such
assumed
very
form
At
suggestion
judicial power
capable
acting
products
on the
of Appeals’
orders were
”161
it.’
Amplifying this
point,
judicial
proceedings
seems
strange.166
158.
564-565,
at
really
auspices
Id.
S.Ct. at
89 L.Ed. at
considered
a court under the
authority.
1799.
judicial
entry
of its
No docket
was
made;
apparently
opportunity
there
was no
159. 565-569,
1310-1312,
65 S.Ct. at
evidence;
hearing
submission of
no formal
L.Ed. at 1799-1801.
held;
compiled;
no record was
there
were
opposing parties
no
Brief
classic sense.
160.
569-573,
1312-1314,
at
Id.
cial in nature
when it is utilized as the
The validity of these observations with
“investigatpng], declarpng]
medium for
and
respect
appellant Hickey
appar
is readily
enforcpng]
ques
The critical
liabilities.”167
ent;
him,
as did the Seventh Circuit for
tion is whether
presented the
Ktsanes,
easily
bar candidate
we can
Appeals
claim of a
“[a]
say
exactly
that “we have
the opposite set
present right
bar,”168
to admission to the
present
of circumstances”174 from those
without which the proceedings therein de
appellant
Summers. And while
Feldman’s
judicial.169
cidedly could not have been
We
clear,
situation is somewhat less
it calls for
plainly
think the answer
is that
did
a similar outcome.175
not, and that therein lies the most decisive
noted, Hickey
As earlier
conceded the
of the differences between these cases and
applicability
1(b)
of Rule 46
to him.176 He
Summers.170
Appeals
grant
entreated the Court of
.to
Proceedings
C. The Nature of the
Before
exemption because
his
quali
substantive
the District of
Columbia Court of
fications, unique background,
reasonable
appellants’ petitions
Examination of
expectations that he would be allowed to
for waivers of Rule 46
examination,
general equi
take the bar
and
1(b) discloses immediately that neither as
age,
table considerations based on his
ser
serted
sort of right to be admitted to
country,
family
vice to his
status.177
bar,
the District of Columbia
or even to
presented
legal arguments
He
no
whatsoev
Instead,
take
examination therefor.
er, nor did he demand admission to the
each
asked the
court
do no more
petition
legal
examination as a matter of
entitle
than except
petitioner
opera
from the
short,
ment.
In
he
merely asked
tion of
petitions
the rule. And while the
to exercise its administrative discretion to
were tendered to a court and concerned
permit him to take the test. The court was
bar,
admission to the
neither circumstance
thus
make a policy
solicited to
decision
judicial.
rendered them
v.
Ktsanes
Und
equating
personal qualities
his
with ac
erwood,171
flatly
the Seventh Circuit held
education,
legal
adjudica
credited
not an
petition
that a
requesting a state court to
requiring
legal principles.178
tion
resort to
waive one of its rules on bar admission
Thus,
action,
Hickey’s
hardly be
sought
request can
“ministerial
de
termination,”
present right to
viewed as
claim of a
ensuing
that the
deni
“[a]
bar,”
petition
al of
“was made
the court
admission to the
or to the examina
acting capacity.”173
affording
an administrative
tion
the opportunity therefor.
167. Prentis v. Atlantic
172. Id. at 743.
Co., supra
Line
Coast
note
element was
as a
but we are
that
it
not
points up.
contrast
the
effort
changed
As
the essential nature of his
in
stated,
“petition set out that
the
writ
Appeals.
Summers’
the Court of
The letter was
the
sole reason for
Committee’s refusal was
period
ten after a
of almost nine months of
objec
that
was a
apparent
petit
conscientious
inactivity on the waiver
[Summers]
war,
ion,181
to
put
tor
and averred
such
did
the
possi
th$tt
reason
and
court on
of
notice
justify
the
legal
not
his exclusion because of
due
of
ble
in the rule and
Feld
infirmities
process
of
clause
the Fourteenth Amendm
to litigate
man’s intent
them in federal
hand,
ent.”180
the
On
other
Feldman’s
court
his
to
the bar
request
should
sit for
petition to
not
not
promptly granted.182
did
examination
be
request
claim that a refusal of his
any
waiver
to
in the
We
unable
discern
letter
Rather,
deny
would
him
at
right
all.
the
desire that
court consider Feldman’s
petition
merits,
the
invoked
legal
the administrative dis
of the
criticisms
rule on their
body, simply
cretion of that
that
asking
dealing
it
with
or hand down a decision
favor,
temper
in
unmistakably
rule
his
for personal
them.183 The letter made
legal
and not
litigat-
reasons.
clear that
these criticisms would be
argued
question
validity
App.R.
1(c) (1975)
1(c)
never
the
D.C.App.R.
of the
of
with
[highest
before the
[the rule]
court
the
We view both branches of Feldman’s
jurisdiction].
asking
petition
light,
He was
for ministerial
in the same
and the considera-
action,
judicial
not
equally
determination. The deni-
applicable
tions we elaborate are
to
petition
by
al of his
was made
the
respect
each. As with
prerequisite,
to the bar examination
acting
capacity.
in an administrative
See
pivotal
the
that
factors are first
Rights]
Law Students [Civil
Research Coun-
right
Feldman avowed no
entitle-
claim
or
Wadmond,
n.9,
cil v.
reciprocity
ment
provision,
under
to bar admission
the
n.9,]
S.Ct.
(1961)
n.9]
[724
[756
that,
acknowledging
and second
the
present
That
....
did
denial
him,
applicability
sought
rule’s
to
he
waiver of
controversy
by
case
cognizable
or
an Article
requirement
the educational
than an ad-
rather
court, and, thus,
III
appealable
was not
to
judication
admissibility
his
the bar.
to
the
Court of the United States.
ordinarily
While
bar
result
admission ventures
too,
noteworthy,
to hold that
in each
pro
instance the
ceedings
before the Court of
were
IV. THE RES JUDICATA CLAIMS
character,
nonjudicial
of a
and therefore did
Because we find that
the District
produce
judgment
in either a
reviewa
subject
had
over the
mat
ble
Court.199 It follows
lawsuits,
appel
ter of these
we must reach
appellants’
suits in the District Court
that,
argument
lees’ alternative
in the case
Feldman,
were jurisdictionally appropriate
appellant
for consid-
consideration of the
upon
(1957),
appellees chiefly
decisions
which
L.Ed.2d 810
th
rely
readily
e
expressly
granting
distinguishable.
precipi
are
noted that it was
Cases
cer
petitioner
by disciplinary proceedings against
repeatedly
because the
tated
yers,
law
tiorari
had
g., Grossgold
throughout
e.
of Illi
asserted his constitutional claims
nois,
(7th
1977);
hearings
his
F.2d 122
Cir.
Jones v.
before the state’s committee of bar
Hulse,
denied,
(8th Cir.),
again
F.2d 198
cert.
examiners and had stated them
in his
petition
legal
preliminary
issues that
have been made as a
to the
by principles
[nonjudicial]
District
was barred
act.”
we hold that
Court
Since
reject
We
this
proceeding
Appeals
res
contention.
in the
was
judicata.201
nature,
nonjudicial
its outcome cannot
essence,
Stripped
appellees’ position
judicata
judicial
res
in a subsequent
act
is that
from Feldman’s counsel to
letter
ion.207 Accordingly,
sustain
we cannot
incorporated
Appeals
the Court of
202..
dismissal
on this
of Feldman’s suit
alterna
same
arose in
questions
law that
his
ground.
tive
Court;'
action in the District
these
already
finally
questions had
been
decided
V. SUMMARY
Appeals;
the Court
there
Lest
interpreted
our decision be
too
relitigated
they
fore
not be
in Feld
could
broadly,
pause
precisely
we
to summarize
cases,
what
Undeniably,
appel-
man’s
we have said.
In these
the doctrine
lawsuit.203
lants petitioned the District of Columbia
judicata prohibits
of res
state court
liti
Appeals
Court of
only to waive on their
gant
judicial
in a
proceeding
defeated
from
behalf
requirements
one of its
for admission
seeking an encore in a federal
forum.204
They
bar.
did not seek review
attempt
But the
the doctrine of
apply
res
any
the decision of
judicata
proceeds
to Feldman’s case
from a
individual;
other
or
body
they did not re-
faulty premise;
the Court
assumes
rule;
quest
the court to invalidate
nor
of Appeals’ action in
his waiver
denying
did
for anything
ask
as a
matter
character,
request
was
and that
right.
Consequently,
the orders of
proposition
have already
As
rejected.205
denying
petitions
Prentis,
Court noted in
“[t]he
administrative,
were
judicial,
nature.
upon [nonjudicial questions]
decision
cannot
milieu,
given
appellants’
consti-
judicata
brought....
be res
when a suit is
insubstantial,
tutional claims are not
inquiries
And it does
not matter what
District Court had
over the sub-
administrative,”
than
id at
rather
J.,
(Breitenstein,
concurring
result),
Allen,
Brown v.
Appeals’
(1953);
Chenery
action in
characterization
L.Ed.
SEC v.
Moreover,
Corp.,
present
cases does not fit.
nei-
Union,
Hickey
ther
nor
now seek review of
L.Ed.
Feldman
International
proceedings
Appeals,
Right
Legal
UAW v.
the waiver
National
to Work
Defense
Foundation, Inc.,
U.S.App.D.C.
&
Educ.
the court’s decision on waiver. See note 24
Instead,
supra.
challenges
each
F.2d
antitrust
*24
grounds
and constitutional
the administration
202. See text
at notes 44-45.
1(b)
validity
of Rule 64
and the
of the rule itself.
uphold
203. Because we
the antitrust dismiss-
v.
These cases thus differ from Brown Board of
als, we have no occasion to address the more
Nevada,
Bar
of the
Examiners
State of
623 F.2d
question
difficult
whether the fact that federal
(9th
1980),
605
the
Cir.
which held
district
district
jurisdiction
courts have exclusive
over
jurisdiction
court to be without
to entertain a
Sherman Act claims means that a state court’s
challenge
a state
decision
court’s
not
decision in a suit under
Act
cannot be res
waive a
at issue
rule similar
the rule
in the
judicata
subsequent
in a
proper
action in the
Although acknowledging
instant case.
federal
Chrys-
forum. Cf. DeWitt Motor Co. v.
jurisdiction
“federal district courts
assert
Corp.,
(6th
1968)
ler Motors
1321
actions,
highest
The
the District of
ject matter of both
court of
doctrine
judicata
res
interposes
no bar to the
Columbia is the District
Columbia
prosecution
course,
either.
judgments
continued
Of
Appeals.
Court of
Final
intimate
dispo-
no view on the ultimate
decrees of the
of Columbia Court
District
Appel-
sition of these issues on the merits.
by the
Appeals
are reviewable
Su-
contentions, however,
antitrust
lants’
are
preme Court of the United States
ac-
without merit and
properly
weré
dismissed.
28,
cordance with
1257 of title
section
(July
United States Code.
judgments
The
appealed from are re-
I,
111,
475)
84
Pub.L. 91-358
title
Stat.
versed,
§
and the cases
for
are remanded
fur-
proceedings
ther
opin-
consistent
Appeals
has the status of
The
thus
ion.
Doyle,
v.
supreme
Key
state
court.
434
283,
U.S.
By the District of Columbia Court Re- Act of Procedure form and Criminal “ ‘a Congress established Fed- 84 Stat. system in the District of court eral-State analagous systems Columbia ” H.R.Rep.No.91-907, several p. States.’ (1970), quoted Key Doyle, supra, 434 part 98 S.Ct. 283. As Congress provided,
scheme 84 Stat. ll-2501(a): D.C.Code § The District of Ap- Columbia Court of peals shall make such rules as it deems
proper respecting examination, quali-
fication, persons and admission of bar,
membership censure, in its and their suspension, expulsion. majority decision of the sanctions an intrusion the federal courts into what Congress plainly prerog- intended to be the
ative of the District of Columbia court. I
think this is unfortunate. It especially
unfortunate in cases such as these in which candidates for admission to the are bar
challenging
judgment
of the District of
Columbia
Court of
qualified
to take the bar examination.
my
opinion that kind of controversy
Although
Jersey
Court,
Supreme
I think
F.Supp.
we should not
New
reach the
claims,
plaintiffs’
(D.N.J.1975);
Urie,
merits of
Application
be noted
TORRE, Appellant,
Alfonso J. BARRY, Jr., Individually
Marion and as Mayor Columbia, District et al.
No. 80-1400. United Appeals, States Court of District of Columbia Circuit. Argued Feb.
Decided
Aug.
usage”
year method,
involved in use
the base
maj. op.
opposite
is true—
at 1342. Quite
year
already
place
the base
allocations
pipeline
plans
individual
curtailment
and would
generally
remain
static whereas the administra-
complications
keeping up
tive
with constant-
ly fluctuating
expanding
require-
“current
truly
staggering.
ments” are
mind
notes
211 U.S. at
L.Ed. at 158. See text
at notes 143-144.
Summers, supra
In re
325 U.S. at
Supra
note 134. Several decisions
fed-
at
89 L.Ed. at
invoked,
appeals
eral courts of
are also
but all
appear
inapposite.
to us to be
See note 200
infra.
156. Id. at
1309, L.Ed. at
at
petition set out that the sole rea-
1798. “The
us,
Contrary
arguments
made to
was that [Sum-
son
the Committee’s refusal
Court has never held that
and all
war,
objector was a conscientious
mers]
types
regarding
of state-court action
admission
justify his
averred that such reason did not
automatically
to the bar are
char-
of a
process clause of
exclusion because of the due
only by
acter and therefore
preme
the Su-
reviewable
the Fourteenth Amendment.”
Garland,
parte
Court.
on Ex
Reliance
S.Ct. at
Notes
notes
nying text.
170. See note 200 infra.
179. text
at note 164. As the Seventh
171. Ktsanes v.
Underwood,
(7th
emphasized
analogous
notes of an A.B.A. law accredited school.... Un- der Section 11-2501 of the District of Colum- While, 182. See text at note 45. in an Code, plenary power bia the Court has simplicity, effort toward we discuss the cases regulate licensing attorneys the Dis- Hickey of both requests Feldman and of their terms power plainly trict. This includes the discre- permission for the sit District of requirements tion to 46 in a waive of Rule examination, Columbia bar it should re- deserving Clearly, case. un- Mr. Feldman’s petition called that Feldman’s usually qualifications pro- high for admission Appeals sought waiver of the educational re- vide an ideal occasion for the exercise of quirements purposes reciprocity admis- such discretion. sion as well. text at notes 40-53. Letter, Robert M. Sussman to R. Hon. Theodore (c) provid- Subsection of Rule 46 I at that time Jr., Newman, F.App. at ed for admission of members of state bars Petition, See Feldman five-year practice requirement without the that F.App. 21. ordinarily mandatory. Compare is not D.C. nonjudicial ed, all, if in the District and Prentis teaches judicial.187 Court;184 non of a surely action —even court— problems highlight for the antitrust judicial, although “would not have been alternative, no ed letter there was might have been questions debated exclusive to consider them since court, might it as a same come before is vested in the federal courts.185 passed would have and and been discussed Hence, difficulty no would encounter way it in the same it would upon were we to contention appellees’ even credit them if arose afterwards in deal letter, practical purpose For, properly case Prentis so called.”188 effect, arguments advanced in aid of new explains, inquiry, “the effect of for the waiver. petition Feldman’s earlier it, upon decision determined unreasonable, and It would seem indeed inquiry nature act to which
187. notes applicability regulation on the a state case, in his raising he is not barred from thereafter supra See at 145. text objections his in a constitutional federal court, though already even he has raised them See at text court, in the state did so before when he state tribunal the statute “so that be at note text light construed ‘in claims.” Id. at those Note, citing L.Ed.2d See text at note Consequences Court, of Abstention a Federal 73 Harv.L.Rev. Underwood, Ktsanes v. contrary, Court, citing theOn Government at 743. F.2d Employees Organizing Civic & Comm. v. Wind- Moreover, entity proceedings before any body indeed, other had other no — power grant exemption 193-—or to be have hardly can said to sure, originate a decision its own. To be ques antitrust cast the constitutional argued vigorously that he should Feldman judicial pow “such tions in a form that requirement of Rule 46 relieved er on is capable acting [these [was] 1(b), predicated part reasoning of his repeat, not Appellants, we did sues].” unjust perception that rule rule, but, validity as in challenge the of the application possibly was unlaw him Ktsanes, action, not for ministerial “ask[ed] ful. But made sense to communicate We con determination.”196 thus those views for whatever value had on with Ktsanes congruently clude “[t]he waiver, any the matter of and in event that petitions] denial was made of [their] sort not of communication did alter capaci acting court in an administrative endeavor. The fundamental nature his ty,” position court was not seek, point vital is that Feldman not nor did act way. other And we further make, any did the re court determination agree present “that denial did rule; validity specting merely he controversy cognizable by case or an Article asked the Court of to relieve him thus, and, appealable III was not it, legal from and expressly reserved his the United adjudication possible claims for on another