                           PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 15-1982


NATIONAL    ASSOCIATION     FOR    THE     ADVANCEMENT OF
MULTIJURISDICTION PRACTICE (NAAMJP); MARINNA L. CALLAWAY;
JOSE JEHUDA GARCIA; DALE E. WORKMAN; W. PEYTON GEORGE,

              Plaintiffs - Appellants,

         v.

LORETTA E. LYNCH, Attorney General; DEBORAH K. CHASANOW,
Chief Judge; RICHARD D. BENNETT, United States District
Court for the District of Maryland; CATHERINE C. BLAKE,
United States District Court for the District of Maryland;
JAMES K. BREDAR, United States District Court for the
District of Maryland; THEODORE D. CHUANG, United States
District Court for the District of Maryland; MARVIN J.
GARBIS, United States District Court for the District of
Maryland; PAUL W. GRIMM, United States District Court for
the District of Maryland; GEORGE J. HAZEL, United States
District Court for the District of Maryland; ELLEN L.
HOLLANDER, United States District Court for the District of
Maryland; PETER J. MESSITTE, United States District Court
for the District of Maryland; FREDERICK J. MOTZ, United
States District Court for the District of Maryland; WILLIAM
M. NICKERSON, United States District Court for the District
of Maryland; WILLIAM D. QUARLES, JR., United States District
Court for the District of Maryland; GEORGE L. RUSSELL, III,
United States District Court for the District of Maryland;
ROGER W. TITUS, United States District Court for the
District of Maryland,

              Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   Robert J. Conrad, Jr., United States
District Judge for the Western District of North Carolina,
sitting by designation. (1:14-cv-02110-RJC)
Argued:   May 10, 2016                  Decided:   June 17, 2016


Before FLOYD and THACKER, Circuit Judges, and John A. GIBNEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion. Judge Gibney wrote the opinion,
in which Judge Floyd and Judge Thacker joined.


ARGUED: Joseph Robert Giannini, Los Angeles, California, for
Appellants.    Brian Paul Hudak, OFFICE OF THE UNITED STATES
ATTORNEY, Washington, D.C., for Appellees.     ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Alan
Burch, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Washington, D.C., for Appellees.




                               2
GIBNEY, District Judge:

     “‘Membership         in     the    bar    is    a    privilege      burdened       with

conditions.’”          Theard v. United States, 354 U.S. 278, 281 (1957)

(quoting    In    re     Rouss,    221     N.Y.     81,   84,    116     N.E.    782,   783

(1917)).         The    National       Association        for    the    Advancement       of

Multijurisdictional            Practice       and    four       attorneys       (together,

“NAAMJP”) challenge the conditions placed on the privilege of

admission to the Bar of the United States District Court for the

District of Maryland (the “District” or the “District Court”) in

Local Rule 701 (“Rule 701” or the “Rule”). 1                           Because Rule 701

violates neither the Constitution nor federal law, we affirm the

district court’s decision.

                                       I. BACKGROUND

     Rule   701        governs    attorney        admission      to    practice    in    the

District Court. 2         The Rule contains requirements based on the

state of licensure and, in some instances, the location of the




     1 The four attorneys do not qualify for admission to the
District Court under Rule 701.    The district court held that
these   attorneys  have  standing,   as  does   NAAMJP  as  an
organization. We agree.
     2  This case focuses on the requirements for general
admission to the District Court Bar, as opposed to admission pro
hac vice (i.e., for a particular case). See Rule 101(1)(b). In
addition, Rule 701 has separate provisions allowing federal
government attorneys to practice in the District.      See Rule
701(1)(b).



                                              3
attorney’s       law    office. 3        The       Rule    allows       for    admission      of

attorneys licensed in the State of Maryland.                                  The Rule also

allows for admission of non-Maryland attorneys if the applying

attorney maintains his or her principal law office in the state

in which he or she is licensed to practice law, as long as the

relevant federal district court in the state of licensure does

not   deny   admission         to     Maryland      attorneys.           In    other    words,

admission to non-Maryland attorneys extends only to attorneys in

states     whose       district       courts       observe      reciprocity          with    the

District     Court.            Regardless          of     reciprocity,        however,       the

District will not admit a non-Maryland attorney if that attorney

maintains a law office in Maryland.

      According         to     the     District,          the    Rule     encourages          bar

membership       in    Maryland        for   attorneys          intending       to    practice

there,    and,     with      its     reciprocity        provision,       encourages         other

jurisdictions to adopt liberal licensing standards.                                   Further,

the District contends that the principal law office requirement

ensures effective local supervision of the conduct of attorneys.

In response to these points, NAAMJP spews a slew of bad words to

describe     Rule       701,       including        discriminatory,            monopolistic,

balkanizing, and unconstitutional.

      3Rule 701 also imposes a handful of standard requirements,
such as “[being] of good private and professional character” and
having familiarity with relevant local and federal rules.



                                               4
     NAAMJP sued the Attorney General and each of the judges of

the District Court, challenging the validity of Rule 701.                   The

defendants    moved    to   dismiss,     and     NAAMJP   moved   for   summary

judgment.     The district court 4 granted the motion to dismiss and

denied     NAAMJP’s   motion    for    summary     judgment. 5     NAAMJP    has

appealed.

                                II. ANALYSIS

     This    Court    reviews   de    novo   a   district   court’s     decision

granting a motion to dismiss.           Sucampo Pharm., Inc. v. Astellas

Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006).                  To survive a

Rule 12(b)(6) motion to dismiss, a complaint must state facts

that, when accepted as true, “state a claim to relief that is

plausible on its face.”         Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).     NAAMJP challenges the validity of Rule 701 under the

First Amendment, the Equal Protection Clause, the Rules Enabling

Act, and the Supremacy Clause.         We address each in turn. 6



     4 The Honorable Robert J. Conrad, Jr., of the Western
District of North Carolina, sat by designation to avoid any
potential conflict of interest.
     5 NAAMJP has not challenged the district court’s denial of
its challenge under the Due Process Clause.
     6 Although NAAMJP cites the Supreme Court’s decision in
Frazier v. Heebe, it does not ask us to strike down Rule 701
based on appellate courts’ supervisory authority over district
courts. 482 U.S. 641, 651 (1987) (Rehnquist, C.J., dissenting).
(Continued)
                                        5
                                A. The First Amendment

      The First Amendment prevents the government from “abridging

the   freedom      of    speech    .     .    .        or    the     right    of    the     people

peaceably     to    assemble,      and       to       petition     the   Government         for   a

redress of grievances.”                U.S. Const. amend. I.                   Nevertheless,

the    professional        speech        doctrine           allows     the    government          to

“license and regulate those who would provide services to their

clients     for    compensation        without          running       afoul    of    the     First

Amendment.”        Moore-King v. Cnty. of Chesterfield, 708 F.3d 560,

569 (4th Cir. 2013).

      Under       the    professional              speech      doctrine,           courts     must

determine     the       point     at     which         “a    measure     is    no     longer      a

regulation of a profession but a regulation of speech.”                                    Lowe v.

S.E.C., 472 U.S. 181, 230 (1985) (White, J., concurring in the

judgment).        The government may regulate professionals providing

“personalized advice in a private setting to a paying client.”

Moore-King, 708 F.3d at 569; see Lowe, 472 U.S. at 232.                                    In this

context, “the professional’s speech is incidental to the conduct

of    the   profession,”          id.,       and       regulation        “raises      no     First




Even if NAAMJP had made this request, and                            even if we had that
power, we would not indulge the request,                             as Rule 701 clearly
passes constitutional muster and is clearly                          distinguishable from
the local rule struck down in Frazier. See                           id. at 643 (majority
opinion).



                                                  6
Amendment      problem      where       it    amounts        to    ‘generally         applicable

licensing        provisions’           affecting        those        who        practice       the

profession,” Moore-King, 708 F.3d at 569 (quoting Lowe, 472 U.S.

at 232).       In other words, the First Amendment does not come into

play.

     The First Amendment does come into play, however, when the

government       tries      to     control          public        discourse      through       the

regulation       of    a   profession.          This     occurs          when    a    regulation

limits     the        speech      of     professionals             engaging          “in    public

discussion and commentary,” id., and not “exercising judgment on

behalf    of    any     particular       individual          with    whose      circumstances

[they are] directly acquainted,” Lowe, 472 U.S. at 232.                                    In this

case, regulation “must survive the level of scrutiny demanded by

the First Amendment.”             Id. at 230.

     In    this       case,      Rule    701    is     simply        a    regulation         of   a

profession.           The Rule does not compel attorneys to speak or

regulate speech based on its content.                              Neither does the Rule

restrict attorneys from speaking.                       To the extent it regulates

speech    at     all,      Rule    701       sets    conditions          for    professionals

providing “personalized advice in a private setting to a paying

client.”       Moore-King, 708 F.3d at 569.                   Applying the appropriate

test, Rule 701 qualifies as a generally applicable licensing

provision.        It prescribes which attorneys may practice in the

District Court based on their state of licensure in relation to

                                                7
the   location       of    their   principal       law   office.          Any       separate

provisions   for      specific     situations—such         as       federal    government

attorneys—do not change the fact that Rule 701 is a generally

applicable licensing provision.                  Accordingly, Rule 701 does not

violate the First Amendment. 7

                          B. The Equal Protection Clause

      The Equal Protection Clause prohibits the government from

“deny[ing]      to   any     person   within       its   jurisdiction          the    equal

protection   of      the    laws.”        U.S.    Const.       amend   XIV,     §    1;   see

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995)

(noting that equal protection analysis is the same under the

Fifth Amendment as it is under the Fourteenth Amendment).                                 In

evaluating an equal protection challenge to a rule, courts must

first determine the standard of review to apply.                           If the rule

neither   infringes         a   fundamental        right       nor     disadvantages       a

suspect class, courts apply rational basis review.                        FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993).                       Under rational basis

review,   the    challenged        rule    “comes    .     .    .    bearing    a    strong

presumption of validity, and those attacking the rationality of



      7NAAMJP does not challenge the district court’s holdings
that Rule 701 is neither substantially overbroad nor a prior
restraint on speech, so we will not disturb them. We reject all
other    arguments    raised    by    NAAMJP—including    speaker
discrimination and violation of the right to free association
and petition—as meritless and utterly inapplicable to Rule 701.



                                            8
the [rule] have the burden to negative every conceivable basis

which   might    support     it.”         Id.     at    314–15       (internal         citations

omitted).        In    other     words,         “[w]here           there       are    ‘plausible

reasons’ for [the rule], ‘our inquiry is at an end.’”                                    Id. at

313–14 (quoting U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166,

179 (1980)).

      Rule     701    does     not        infringe       a     fundamental            right   or

disadvantage a suspect class.                   Applying rational basis review,

Rule 701 clearly passes constitutional muster.                                 The rationales

given    by    the    District       to     justify          the     Rule       are    certainly

plausible, and NAAMJP does not bear its burden in negating them.

Both this and other circuits have upheld these rationales as

reasonable.     See Goldfarb v. Supreme Court of Va., 766 F.2d 859,

865 (4th Cir. 1985); Hawkins v. Moss, 503 F.2d 1171, 1177–78

(4th Cir. 1974); see also Nat’l Ass’n for the Advancement of

Multijurisdictional Practice v. Castille, 799 F.3d 216, 219–20

(3d     Cir.    2015);       Nat’l         Ass’n        for        the      Advancement       of

Multijurisdictional Practice v. Berch, 773 F.3d 1037, 1045 (9th

Cir. 2014).      Accordingly, Rule 701 does not violate the Equal

Protection Clause.

      Astonishingly,         NAAMJP        does        not     cite        a    single     equal

protection case in its argument that Rule 701 violates the Equal

Protection Clause.       See Appellant’s Br. 33–39.                        In fact, each of

the cases cited by NAAMJP refers to equal protection—if at all—

                                             9
only to note that the Court did not reach the equal protection

argument.    See Supreme Court of Va. v. Friedman, 487 U.S. 59, 63

n.* (1988); Frazier v. Heebe, 482 U.S. 641, 645 (1987); Supreme

Court of N.H. v. Piper, 470 U.S. 274, 277 n.3 (1985).                    These

cases provide little to no guidance here, as the bar admission

rules they considered involved residency requirements—which Rule

701 does not—and applied a heightened level of scrutiny—which we

need not.

                         C. The Rules Enabling Act

      The Rules Enabling Act authorizes the judiciary to make

rules.     Specifically, 28 U.S.C. § 2071 permits federal courts to

“prescribe rules for the conduct of their business,” with the

stipulation that “[s]uch rules shall be consistent with Acts of

Congress and rules of practice and procedure prescribed under

section    2072   of    this   title.”      The   “rules     of   practice   and

procedure prescribed under section 2072 of this title” are rules

adopted by the Supreme Court of the United States, including,

for   example,    the   Federal     Rules   of    Civil   Procedure    and   the

Federal Rules of Evidence.

      In enacting Rule 701, the District Court prescribed a rule

“for the conduct of [its] business,” denoting which attorneys

may practice before it.           The Rule does not violate any Acts of

Congress    or    any   federal    “rules   of    practice    and   procedure”



                                       10
adopted by the Supreme Court pursuant to § 2072.                     Thus, Rule 701

does not violate the Rules Enabling Act.

     NAAMJP       argues    that    §    2071       “expressly    incorporates       the

standard    set    forth     in    [§]   2072,”      Appellant’s     Br.   41,   which

mandates that “[s]uch rules shall not abridge, enlarge or modify

any substantive right,” 28 U.S.C. § 2072(b).                     The plain language

of the statute, however, belies NAAMJP’s argument.                         The phrase

“[s]uch rules” in § 2072(b) clearly refers to the “general rules

of practice and procedure and rules of evidence” that § 2072(a)

permits    the    Supreme     Court      to    prescribe.        Moreover,    § 2071’s

reference to § 2072 clearly refers to the “rules of practice and

procedure” that come out of the § 2072 rule-making standard, not

to § 2072’s rule-making standard itself.                      In other words, the

Rules Enabling Act tells district courts that they cannot use

local     rules    to      contradict         the   Supreme      Court’s     rules   of

procedure.       Consequently, this NAAMJP argument fails. 8

                            D. The Supremacy Clause

     Finally, the Supremacy Clause commands:

            This Constitution, and the                   Laws of the
            United States   which shall                  be  made in

     8  NAAMJP argues that Rule 701 violates Rule 83(a) of the
Federal    Rules  of   Civil   Procedure   because    Rule 83(a)
“incorporates the 28 U.S.C. § 2072 standard,” Appellant’s Br.
42, restricting rules that “abridge, enlarge or modify any
substantive right,” 28 U.S.C. § 2072.    This argument fails for
the same reason that the argument under § 2072 fails.



                                              11
            Pursuance thereof . . . shall be the supreme
            Law of the Land; and the Judges in every
            State shall be bound thereby, any Thing in
            the Constitution or Laws of any State to the
            Contrary notwithstanding.

U.S. Const. art. VI, cl. 2.            In other words, if federal law and

state law conflict, federal law wins.                     See, e.g., Sperry v.

Florida,    373   U.S.    379,    384–85       (1963)    (resolving      a   conflict

between Florida law and federal law in favor of federal law).

     NAAMJP makes the bold—if not borderline frivolous—move to

challenge Rule 701, a federal rule adopted pursuant to a federal

statute.      Accordingly,       the   Supremacy        Clause   has    no   bearing.

NAAMJP focuses on the fact that Rule 701 incorporates Maryland

state licensing requirements, but ignores the fact that nothing

prohibits federal law from incorporating state standards.                          See

Augustine    v.   Dep’t   of     Veterans      Affairs,    429   F.3d    1334,     1340

(Fed. Cir. 2005) (citing NLRB v. Natural Gas Util. Dist. Of

Hawkins Cnty., 402 U.S. 600, 603 (1971)).                        Rule 701 clearly

incorporates      state   licensing        requirements      for       attorneys    in

Maryland and beyond.           Rule 701’s use of these state standards,

however, does not transform Rule 701 into a state law.                       Rule 701

remains a federal rule prescribed pursuant to a federal statute.

Thus, Rule 701 in no way violates the Supremacy Clause.

                                 III. CONCLUSION

     To     summarize,     Rule     701     does    not     violate      the     First

Amendment, the Equal Protection Clause, the Rules Enabling Act,

                                          12
or the Supremacy Clause.   Consequently, we affirm the decision

of the district court in granting the motion to dismiss.

                                                           AFFIRMED




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