                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2007

Onyiuke v. NJ Supreme Court
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3494




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3494
                                   ________________

                                 DAVID C. ONYIUKE,

                                             Appellant

                                              v.

                     NEW JERSEY STATE SUPREME COURT;
                    NEW JERSEY BOARD OF BAR EXAMINERS

                      ____________________________________

                    On Appeal From the United States District Court
                            For the District of New Jersey
                              (D.C. Civ. No.05-cv-05404)
                       District Judge: Honorable Joel A. Pisano
                    _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 24, 2007

                    Before: Barry, Chagares and Roth, Circuit Judges.

                                  (Filed: June 19, 2007)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Appellant David C. Onyiuke, proceeding pro se, appeals from the District Court’s

dismissal of, and denial of his motion for leave to amend, his first amended complaint.
For the reasons that follow, we will affirm in part and vacate in part.

       Onyiuke is a United States citizen who received a Bachelor of Law degree from

the University of Calabar, Nigeria, and a certification as a Barrister of Law from the

Nigerian National Law School. He passed the New York State Bar examination in 2001

and was admitted to practice law in New York in 2002. In November 2004, Onyiuke

applied to sit for the February 2005 New Jersey State Bar examination. In support of his

application, Onyiuke submitted a complete transcript of law courses he had taken at the

University of Calabar. His application was rejected on the ground that he had not

matriculated from an ABA-accredited law school, as required by New Jersey Supreme

Court Rule 1:24-2(b).1 Onyiuke alleges that he wrote to the New Jersey Board of Bar

Examiners (“the Board”) requesting a more detailed explanation for the rejection of his

application but did not receive one. In April 2005, Onyiuke applied to sit for the July

2005 Bar examination, but again his application was rejected.

       Onyiuke then filed the instant lawsuit pursuant to 42 U.S.C. §1983, alleging that


   1
   New Jersey Supreme Court Rule 1:24-2, entitled “Qualification for Admission to
Examination,” provides:

       No person shall be admitted to the bar examination without first presenting
       to the Board, in the manner prescribed by its rules:
       (a) Satisfactory evidence that the applicant is more than 18 years of age;
       (b) Certification by a duly authorized officer of the applicant’s law school
       that it is approved by the American Bar Association and that it has awarded
       the applicant a Juris Doctor degree or its equivalent.
       (c) Satisfactory evidence that the applicant is a member of the bar in good
       standing in every other jurisdiction which has ever admitted the applicant to
       practice.

                                              2
by applying Rule 1:24-2 to his application, the Board violated his right to due process and

equal protection under the Fourteenth Amendment to the United States Constitution2 and

impinged on his right to engage in lawful economic subsistence as guaranteed by the

Ninth Amendment to the United States Constitution.3 Onyiuke further alleged several

violations of New Jersey state law. He sought declaratory and injunctive relief,

reasonable monetary damages, “all un-earned income as a New Jersey Attorney,”

attorney’s fees and costs. Onyiuke then filed a first amended complaint, in which he

purported to correct his citations to Rule 1:24-2(b).

       In response, Appellees the New Jersey Supreme Court and the New Jersey Board

of Bar Examiners moved to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1), and in the alternative, 12(b)(6), arguing that the action was barred by sovereign

immunity, that Appellees were not “persons” within the meaning of § 1983, and that

Appellant failed to state a claim upon which relief could be granted, because Rule 1:24-2

does not violate the federal or state constitutions. While Appellees’ motion to dismiss

was pending, Onyiuke sought leave to amend his first amended complaint to name the

Honorable Deborah T. Poritz, Chief Judge of the New Jersey Supreme Court, and


   2
    Section 1 of the Fourteenth Amendment provides in relevant part: “No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”
   3
    The Ninth Amendment provides: “The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.”

                                              3
Stephen W. Townsend, Secretary of the New Jersey Board of Bar Examiners, as

defendants.

       In an opinion and order dated June 27, 2006, the United States District Court for

the District of New Jersey granted Appellees’ motion to dismiss and denied Appellant’s

motion for leave to amend. With respect to the motion to dismiss, the District Court held

that Appellant’s claims against the Supreme Court and the Board were barred by the

Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 663 (1974); MCI

Telecomm. Corp. v. Bell Atlantic Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). While

the Court noted the existence of an exception to the application of Eleventh Amendment

immunity for suits against individual state officials for prospective relief to remedy an

ongoing violation of federal law, see Ex Parte Young, 209 U.S. 123 (1908), it observed

that the first amended complaint, as pleaded, named only State agencies, not individuals,

and therefore this exception did not apply. The Court further held that any federal claims

raised under 42 U.S.C. § 1983 must be dismissed because the parties named as defendants

did not constitute “persons” within the meaning of the statute. See Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 70-71 (1989). Finally, the Court held that it would

decline to exercise supplemental jurisdiction over appellant’s remaining state law claims.

See 28 U.S.C. § 1367(c). Accordingly, the Court granted Appellees’ motion to dismiss.

       With respect to Appellant’s motion for leave to amend his amended complaint to

add Chief Justice Poritz and Secretary Townsend as defendants, the Court held that any

amendment would be futile because the second amended complaint would not be able to

                                             4
withstand a motion to dismiss. See Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir.

2005). The Court held that while it was unclear in what capacity Appellant intended to

sue Poritz and Townsend, to the extent he sought to sue them in their official capacities

for prospective injunctive relief, his proposed second amended complaint failed to state a

claim upon which relief could be granted.

       With respect to Appellant’s equal protection claims, the Court held that because no

fundamental right or suspect classification is implicated by Rule 1:24-2(b), it need only

survive rational basis review, which it clearly does. See Schumacher v. Nix, 965 F.2d

1262, 1269 (3d Cir. 1992). The Court then rejected Appellant’s due process arguments,

relying on two prior cases from the District of New Jersey which had rejected similar due

process arguments as applied to analogous rules. See Potter v. New Jersey Supreme

Court, 403 F. Supp. 1036, 1038 (D.N.J. 1975), aff’d, 546 F.2d 418 (3d Cir. 1976) (Table)

(upholding rule requiring graduation from an ABA-accredited law school); Ostroff v.

New Jersey Supreme Court, 415 F. Supp. 326, 329 (D.N.J. 1976) (upholding rule

requiring graduation from an accredited college). Finally, the Court held that the Ninth

Amendment does not provide an independent basis for asserting a civil rights claim;

rather, a section 1983 claim must be premised on a specific constitutional guarantee. See

Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Zeller v. Donegal Sch. Dist. Bd. of

Ed., 517 F.2d 600, 605 n.26 (3d Cir. 1975). As such, the Court denied Appellant’s

motion for leave to amend his first amended complaint as futile. See Hill, 411 F.3d at

134.

                                             5
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s grant of Appellees’ motion to dismiss de novo, see Alston v. Parker,

363 F.3d 229, 232-33 (3d Cir. 2004), and its denial of Appellant’s motion for leave to

amend his first amended complaint for abuse of discretion. See Hill, 411 F.3d at 125.

       After careful review of the record and the appellate briefs, we will affirm in part

the judgment of the District Court for essentially the reasons set forth in its thorough

opinion. We agree with the District Court that it lacked subject matter jurisdiction over

Appellant’s first amended complaint and conclude that the District Court did not abuse its

discretion in denying Appellant’s motion for leave to amend. We will briefly address a

few of the issues raised by Appellant in his appellate brief.

       First, Appellant claims that Rule 1:24-2 sets up an unconstitutional irrebuttable

presumption that he is unqualified to sit for the bar exam which is so overinclusive as to

violate his right to due process. The District of New Jersey explicitly rejected this

argument in Potter, holding that such a requirement does not constitute an

unconstitutional presumption, but rather a “‘substantive standard which operates as a

condition precedent to the acceptance of every . . . application.’” 403 F. Supp. at 1039

(quoting Rossiter v. Law Comm’n, Civ. No. C-4767 (D. Colo. Aug. 26, 1975) (three-

judge court)). As the court continued: “‘Were we to label these requirements as

unconstitutional “presumptions” we would strip the . . . Supreme Court and the Board of

Law Examiners of all authority to establish requirements for admission to the bar and

abolish all semblance of objective criteria.’” See id.

                                              6
       Appellant further argues that he “has never questioned the rationalization of

adopting ABA’s standard,” but instead has maintained that his right to due process was

violated by the failure of the Board to provide him with an individualized review or to

adopt a comparable academic standard for those applicants matriculating from schools

which have not been evaluated by the ABA (i.e., schools outside of the United States).

As the courts have repeatedly held, states are accorded great deference in establishing

standards for licensing professionals within their borders. See Schware v. Bd. of Bar

Exam’rs, 353 U.S. 232, 239 (1957); Schumacher, 965 F.2d at 1269. Because the rule in

question does not infringe on a fundamental right, it need only have a rational basis,

which we agree that it does.

       Finally, Appellant contests the District Court’s dismissal of his first amended

complaint with prejudice, arguing that the dismissal would bar him from raising the same

claims in state court under the principles of res judicata. We have held that a dismissal of

an action for lack of subject matter jurisdiction is not a decision on the merits; therefore

such a dismissal should be without prejudice. See In re Orthopedic “Bone Screw” Prods.

Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997) (citing Winslow v. Walters, 815 F.2d 1114,

1116 (7th Cir.1987) (holding that “a ruling granting a motion to dismiss for lack of

subject matter jurisdiction is not on the merits; its res judicata effect is limited to the

question of jurisdiction.”); Verret v. Elliot Equip. Corp., 734 F.2d 235, 238 (5th Cir.1984)

(“it would be inappropriate to enter any judgment on the merits when the dismissal is

based on lack of subject matter jurisdiction”)). To prevent the application of res judicata

                                                7
in a state court action to the dismissal of the claims presented in the first amended

complaint, we will remand to the District Court to amend its order so as to dismiss the

first amended complaint without prejudice.

       Accordingly, we will affirm the judgment of the District Court to the extent it

dismissed the first amended complaint for lack of subject matter jurisdiction and denied

Appellant leave to amend the first amended complaint. We will vacate the judgment to

the extent that it dismisses the first amended complaint with prejudice and remand for

further proceedings consistent with this opinion.




                                              8
