                                                                        [DO NOT PUBLISH]



                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                        FEBRUARY 20, 2008
                                       No. 07-10274
                                                                         THOMAS K. KAHN
                                 ________________________
                                                                             CLERK

                             D. C. Docket No. 06-20046-CV-WBH

JEFF ALEXANDER,
JERRY FREDRICKSON,

                                                                 Plaintiffs-Appellants,

                                              versus

FLORIDA BAR,
                                                       Defendant-Appellee.
                                 ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                _________________________

                                      (February 20, 2008)

Before ANDERSON, Circuit Judge, and TRAGER,* District Judge.1

__________________
*Honorable David G. Trager, United States District Judge for the Eastern District of New York,
sitting by designation.


       1
                Judge Barkett recused herself in this case. This opinion is rendered by a quorum
of the panel.
PER CURIAM:



      After oral argument and careful consideration, we conclude that the

judgment of the district court is due to be affirmed. On appeal, the plaintiffs make

only two arguments: (1) that the district court erred in declining to permit plaintiffs

to amend their complaint to add new defendants in order to avoid Eleventh

Amendment immunity; and (2) that the district court erred in concluding that

plaintiffs’ due process claim was without merit.

      Plaintiffs do not challenge on appeal the district court’s holding that the

State Bar is an arm of the Supreme Court of Florida, and therefore is protected by

the Eleventh Amendment immunity. Rather, plaintiffs argue only that the district

court erred in declining to permit the plaintiffs to amend their complaint. We

cannot conclude that the district court erred. Plaintiffs never submitted a proposed

amendment to the district court. Rather, at the hearing on the Bar’s motion to

dismiss, the plaintiffs orally expressed the hope that the district court would grant

leave to amend in order to add appropriate individuals, if the court did not agree

with plaintiffs’ arguments with respect to the claim against the Bar. The district

court denied leave to amend for two reasons: First, the district court indicated that,

despite plaintiffs’ assertions to the contrary, nowhere in the complaint or during

                                           2
oral argument do the plaintiffs seek a form of relief that remotely resembles

prospective injunctive relief; second, the court concluded that any amendment

would be futile because plaintiffs’ due process claim was without merit.

      We cannot conclude that the district court erred with respect to its first

reason. In the plaintiffs’ oral request to amend, plaintiff requested only leave to

add new parties, not to amend the substance of the relief requested. We cannot

disagree with the district court that the relief requested in the district court did not

remotely resemble prospective injunctive relief. Rather, plaintiffs were challenging

the denial of their claims and seeking a court order to force the Bar to pay their

claims. At least at some points in their brief on appeal, plaintiffs purport to be

disavowing any effort to seek payment of their claims, but at other points plaintiffs

seem to continue to seek such retroactive payments. In any event, to the extent

plaintiffs do seek only prospective relief in the form of better procedures for the

processing of such claims by the Bar, we decline to entertain the claim, because it

is made clearly for the first time on appeal, and also because plaintiffs’ argument is

vague, failing to articulate the form such better procedures should take.

      As noted, the district court also rejected leave to amend, concluding that any




                                            3
such amendment would be futile. We agree.2 We agree with the district court that

the plaintiffs’ due process claim is without merit. The district court held that

plaintiffs have no property interest in payments from the Bar fund, and plaintiffs do

not challenge that holding on appeal. Rather, plaintiffs argue, citing Flemming v.

Nestor, 363 U.S. 603, 80 S.Ct. 1367 (1960), that the Bar’s procedures are so

arbitrary that its actions violate due process. We need not address whether the due

process clause protects against arbitrary and capricious governmental acts in the

absence of a property or liberty interest. Even if such a claim were possible,

plaintiffs here fail to articulate clearly in what manner the Bar’s procedures are

arbitrary. Apparently, plaintiffs argue that the procedures are arbitrary because the

rules provide that payment is a matter of grace, and not a matter of right. We know

of no case holding that the mere recitation that payment of benefits is a matter of

grace, and not a right, renders the procedures unconstitutionally arbitrary. This is

especially true in a case, such as this case, where there are written procedures and

criteria which are reasonable on their face. For example, the stated reason for the

Bar’s rejection of plaintiffs’ initial letter request for payment – namely the need to

exhaust other avenues for payment – is clearly reasonable.


       2
                 Plaintiffs do not challenge the district court’s holding that plaintiffs’ equal
protection claim is without merit. Accordingly, we address only plaintiffs’ argument that the
district court erred in concluding that its due process claim is without merit.

                                                  4
For the foregoing reasons, the judgment of the district court is

AFFIRMED.3




3
      Appellants’ motion to supplement the record on appeal is DENIED.

                                     5
