MARGARET DANEHY MAYNARD, PETITIONER V. UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA, ET AL.

   No. 90-1555

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The Federal Respondents (Except Judge A. Wallace Tashima)
In Opposition

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 4-6) is unreported,
but the decision is noted at 915 F.2d 1581 (Table).  The opinion of
the court of appeals on rehearing (Pet. App. 7-8) is unreported.  The
opinion of the district court (Pet. App. 1-3) is unreported.  The
initial opinion of the district court dismissing petitioner's action
with leave to amend is reported at 701 F. Supp. 738.  /1/

                             JURISDICTION

   The judgment of the court of appeals was entered on October 3,
1990.  The order of the court of appeals granting in part and denying
in part a petition for rehearing was entered on January 9, 1991.  Pet.
App. 7-8.  The petition for a writ of certiorari was filed on April 9,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether Local Rule 2.2.1 of the United States District Court for
the Central District of California, which requires attorneys seeking
admission to practice before that court to be members in good standing
of the California state bar, is constitutional as applied to
petitioner.

                               STATEMENT

   1. Petitioner is an attorney and a California resident, maintaining
a law office within the jurisdiction of the United States District
Court for the Central District of California.  She is a member of the
Indiana bar, and is admitted to practice before the United States
District Courts for the Northern and Southern Districts of Indiana.
Petitioner is also admitted to practice before the United States
District Court for the Northern District of California.  Pet. App. 5;
App., infra, 2a.

   In July 1987, petitioner applied for admission to the Bar of the
Central District of California.  The United States Magistrate denied
petitioner's application on the ground that she was not licensed to
practice law in California, as required by Local Rule 2.2.1 of the
United States District Court for the Central District of California.
App., infra, 2a.  Rule 2.2.1 provides that

         (a)dmission to and continuing membership in the Bar of this
      Court is limited to persons of good moral character who are
      active members in good standing of the State Bar of California.

C.D. Cal Local R. 2.2.1.  /2/

   2. In November 1987, petitioner filed a federal court action
against the federal respondents, namely, the United States District
Court for the Central District of California and the judges of that
court.  /3/ Petitioner challenged the constitutionality of Local Rule
2.2.1, which limits bar membership to active members of the California
state bar.  Petitioner alleged that the local rule violates the
Privileges and Immunities Clause, the Commerce Clause, the "Equal
Protection Clauses of the Fifth and Fourteenth Amendments," and the
Due Process Clause.  App., infra, 2a.  /4/

   In September 1988, the district court dismissed each of
petitioner's claims, with leave to amend her complaint.  The court
rejected the claim that the local rule violates the Privileges and
Immunities Clause, because that rule "is a matter of federal law
legitimately administered by a federal entity." App., infra, 4a.
Petitioner's claim, the court held, "is thus deficient as a matter of
law, as State discrimination is, by definition, not possible." Ibid.
/5/ The court similarly dismissed petitioner's Commerce Clause
challenge, since the local rule "is clearly based on federal law," id.
at 6a and petitioner conceded that "the Federal Government cannot
violate the Commerce Clause," id. at 5a.

   Turning to petitioner's challenge based on the equal protection
component of the Fifth Amendment, the court determined that "the
proper standard of review is the rational basis test." App., infra,
8a.  Applying that standard, the court held that respondents "have
made a sufficient showing of a legitimate government interest which
bears a reasonable and nonarbitrary relation to the challenged rule."
Id. at 9a.  The court recognized, for example, that "membership in the
State Bar of California is a reasonable method of ensuring that
certain ethical standards are met and maintained," and that the
requirement "ensures that attorneys practicing in the Central District
are knowledgeable in California substantive law." Ibid.

   Finally, the court rejected petitioner's claim under the Due
Process Clause.  The court pointed out that petitioner "does not cite
any rule, statute, or understanding that would support her claim of
denial of a property right to practice law in the district court."
App., infra, 11a.  Moreover, the court concluded that

         (n)othing in Local Rule 2.2.1 implicates (petitioner's) good
      name, reputation, honor or integrity, or imposes any stigma or
      other disadvantage limiting (petitioner's) employment
      opportunities, as would be required to support a finding of
      deprivation of liberty under the Due Process Clause.

Ibid.

   3. Petitioner thereafter filed an amended complaint, alleging that
Local Rule 2.2.1 violated the Due Process Clause, the Rules of
Practice and Procedure of this Court, 28 U.S.C. 2071, /6/ and the
Federal Rules of Civil Procedure.  Pet. App. 2.

   In May 1989, after a hearing, the district court dismissed
petitioner's claim.  Pet. App. 1-3.  The court held that Local Rule
2.2.1

      does not violate any constitutional right of (petitioner), and
      is not inconsistent with the rules of the United States Supreme
      Court regarding admission of attorneys, nor is the rule
      otherwise violative of 28 U.S.C. Section 2071 or any Federal
      Rule of Civil Procedure.

Pet. App. 2.

   4. The court of appeals affirmed.  Pet. App. 4-6.  It concluded
that the "issues raised by (petitioner) have been decisively resolved
by this court in Giannini v. Real, (911 F.2d 354 (9th Cir.), cert.
denied, 111 S. Ct. 580 (1990))." Pet. App. 4-5.  In that case, the
Ninth Circuit held (911 F.2d at 359-361) that Local Rule 2.2.1 does
not violate the Due Process Clause, this Court's Rules of Practice and
Procedure, or the "principles of the right and justice standard set
forth in Frazier v. Heebe, 482 U.S. 641 (1987)." Pet. App. 5.

   5. In January 1991, the court of appeals granted petitioner's
request for rehearing limited to considering her claim that the
court's summary disposition denied her right to oral argument in
violation of 9th Cir. R. 34-4.  Pet. App. 7.  Treating the petition
for hearing as a "statement of reasons why oral argument should be
heard," ibid., the court rejected petitioner's contention that oral
argument was needed to show that the court in Giannini failed to
consider Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989).
The court concluded, contrary to petitioner's submission, that
"Zambrano does not require the invalidation of any rule that the
district court could do without." Pet. App. 8.

                               ARGUMENT

   Before this Court, petitioner renews her constitutional challenge
to Local Rule 2.2.1, which limits bar membership to active members of
the California state bar.  Earlier this Term, however, the Court
denied certiorari in a case raising an almost identical attack on that
Local Rule.  Giannini v. Real, 111 S. Ct. 580 (1990).  Nothing has
occurred since this Court denied certiorari in that case that would
make review of this case appropriate.

   1. Petitioner contends (Pet. 10-15) that Local Rule 2.2.1 violates
the Due Process Clause, because the requirement of membership in the
California state bar is arbitrary and irrational.  That contention is
without merit.  For the reasons articulated by the district court, and
endorsed by the court of appeals, see App., infra, 11a;  Pet. App. 5,
Local Rule 2.2.1 plainly bears a rational relationship to an
attorney's fitness to practice before the federal respondents.  See In
re Roberts, 682 F.2d 105, 108 (3d Cir. 1987).

   Petitioner seeks to avoid this straightforward application of
settled law by suggesting that the Due Process Clause imposes a more
stringent standard of review.  That suggestion is wide of the mark.
As this Court has made plain, "the Constitution does not require that
because a lawyer has been admitted to the bar of one State, he or she
must be allowed to practice in another." Leis v. Flynt, 439 U.S. 438,
443 (1979).  And federal courts have rejected the proposition that
there is a fundamental right -- under the Due Process Clause -- to
practice law.  E.g., Lupert v. California State Bar, 761 F.2d 1325,
1327-1328 (9th Cir.), cert. denied, 474 U.S. 916 (1985).  Accordingly,
the district court correctly held that "the proper standard of review
is the rational basis test." App., infra, 8a;  accord Giannini v.
Real, 911 F.2d at 360;  In re Roberts, 682 F.2d at 108 (3d Cir. 1982).
 /7/

   Petitioner's reliance (Pet. 11-12) on this Court's decisions
invalidating residency requirements for admission to state or district
court bars is mistaken.  See Barnard v. Thorstenn, 489 U.S. 546
(1989);  Supreme Court v. Friedman, 487 U.S. 59 (1988);  Frazier v.
Heebe, 482 U.S. 641 (1987);  Supreme Court v. Piper, 470 U.S. 274
(1985).  First, each of those cases involved a residency requirement
that discriminated against out-of-state residents.  This Court held
that such requirements were invalid under either the Privileges and
Immunities Clause or the Court's supervisory power over federal
courts.  Here, there is no such discrimination because the petitioner
is a California resident;  indeed, there is no residency requirement
for membership in the bar of the Central District of California.

   Second, in each of those cases, the non-resident attorney who
challenged the residency requirement had passed the state's bar
examination or was otherwise eligible for admission to the bar.
Barnard v. Thorstenn, 489 U.S. at 549-550;  Supreme Court v. Friedman,
487 U.S. at 61-62;  Frazier v. Heebe, 482 U.S. at 643, 646;  Supreme
Court v. Piper, 470 U.S. at 276.  As an alternative to residency
requirements, this Court relied on state bar examination and
membership requirements as means to ensure satisfaction of the courts'
legitimate interests in the regulation of the practice of law.
Barnard v. Thorstenn, 489 U.S. at 555-556;  Supreme Court v. Friedman,
487 U.S. at 68;  Frazier v. Heebe, 482 U.S. at 647-648;  Supreme Court
v. Piper, 470 U.S. at 285, 287.  Here, petitioner has not sought
admission to practice law in the State of California (Pet. 6), and has
not been admitted to the California state bar.  App., infra, 2a.

   2. Petitioner also contends (Pet. 22-24) that Local Rule 2.2.1 must
be invalidated as inconsistent with Rule 5.1 of the Rules of this
Court, which provides that "(i)t shall be a requisite for admission to
the Bar of this Court that the applicant shall have been admitted to
practice in the highest court of a State, Commonwealth, Territory or
Possession, or of the District of Columbia." Sup. Ct. R. 5.1.  That
contention is frivolous, since Rule 5.1 governs admission to practice
only before this Court.  That rule, by its terms, does not prescribe
requirements to practice before United States District Courts.  See
Giannini v. Real, 911 F.2d at 360;  In re Roberts, 682 F.2d at
108-109.  /8/

                              CONCLUSION

   The petition for writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   DOUGLAS N. LETTER

   D. BRUCE LA PIERRE

      Attorneys

   JUNE 1991

   /1/ The appendix to the petition does not include the district
court's initial opinion.  We have accordingly included it as an
appendix to this brief.

   /2/ The Local Rules of the United States District Courts for the
Southern and Eastern Districts of California also require membership
in the California state bar as a prerequisite to admission to
practice.  S.D. Cal. Local R. 110-3(a)(1);  E.D. Cal. Local R. 180(a).
 By contrast, Local Rule 110-1 of the United States District Court for
the Northern District of California does not require membership in the
California state bar for admission to practice before that court.

   /3/ Respondent Judge A. Wallace Tashima is separately represented
by private counsel.

   /4/ As petitioner is a private attorney, this case does not involve
the effect of the statutory authority of the Attorney General to
direct attorneys under the supervision of the Department of Justice to
appear before federal courts.  See 28 U.S.C. 509, 515-519, 533.  For
that reason, petitioner's references to federal government attorneys
(Pet. 14-15) are beside the point.

   /5/ For that reason as well, the court rejected petitioner's claim
based on the Equal Protection Clause of the Fourteenth Amendment.  As
the court recognized, "(b)ecause (petitioner) challenges a federal
district court's rule, no state action is implicated, and any reliance
on the Fourteenth Amendment is misplaced." App., infra, 6a.

   /6/ That statute grants rule-making power to this Court and "all
courts established by Act of Congress." 28 U.S.C. 2071(a).

   /7/ For that reason, petitioner errs in contending that the local
rule survives scrutiny under the Due Process Clause only if it is
"absolutely necessary to the normal, routine and effective functioning
of a United States District Court." Pet. 16;  see id. at 16-21.
Contrary to petitioner's suggestion (Pet. 9, 16), the court of appeals
in Zambrano v. City of Tustin, 885 F.2d 1473 (9th Cir. 1989), had no
occasion to consider the standard for reviewing the substantive
validity of a local court rule.  See id. at 1483 n.10.  That case
involved the standard for imposition of sanctions for an attorney's
violation of a local court rule.  See id. at 1480.

   /8/ Accordingly, there is no sound reason for the Court to accept
petitioner's invitation (Pet. 22-24) to invalidate Local Rule 2.2.1
under its supervisory powers.  See Frazier v. Heebe, 482 U.S. at 645.

   APPENDIX