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POWELL v. NIGRO

July 28, 1982

Evanna POWELL, Plaintiff,
v.
Anthony NIGRO, et al., Defendants



The opinion of the court was delivered by: SMITH, JR.

MEMORANDUM

 I

 The Committee on Admissions performs a judicial function on behalf of the District of Columbia Court of Appeals by administering the District of Columbia bar examination and judging the fitness of applicants to practice law. See Richardson v. McFadden, 563 F.2d 1130, 1132 (4th Cir. 1977) (Hall, J., concurring in the result), cert. denied, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978); Feldman v. State Board of Law Examiners, 438 F.2d 699, 704 (8th Cir. 1971); Keenan v. Board of Law Examiners, 317 F. Supp. 1350, 1355 n.5 (E.D.N.C.1970). The Committee on Admissions, however, "does not itself admit applicants to the bar, nor disbar attorneys, but merely makes recommendations the court may or may not elect to follow." Feldman v. State Board of Law Examiners, 438 F.2d at 702. Accord, Kennedy v. Educational Testing Service, Inc., 393 A.2d 523, 525 (D.C.App.1978). The Court of Appeals alone may make the final decision, whether express or implied, concerning whether to admit a particular applicant to the District of Columbia bar. D.C.Code § 11-2501 (1981); Kennedy v. Educational Testing Service, Inc., 393 A.2d at 525. See Richardson v. McFadden, 563 F.2d at 1132-33 (Hall, J., concurring in the result); Feldman v. State Board of Law Examiners, 438 F.2d at 702; Chaney v. State Bar of California, 386 F.2d 962, 966 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 88 S. Ct. 1262, 20 L. Ed. 2d 162 (1968).

 For applicants who do not pass the bar examination, the Committee on Admissions provides its Post Examination Review Procedure. Under the review procedure,

 
(e)ach unsuccessful applicant is notified of his score on each essay question, his "raw score" for each section of the (Multi-state Bar Examination), and his combined score. Upon request, the applicant may meet with the Secretary to the Committee for a review of his essay paper and the questions as framed by the examiners and the examiners' comments with respect to each question. An unsuccessful applicant may submit within a fixed time, without identifying himself, a petition for regrading to each examiner he wishes with supporting reasons. The Secretary must submit to each examiner so petitioned, the petition, the petitioner's examination book and the examiner's questions and comments with respect to such questions. The unsuccessful applicant is notified by the Secretary of the examiner's ultimate disposition of his petition for regrading and the applicant may obtain, upon request, finally a review of the regrading petition and the examiner's disposition thereof by two other members of the Committee.

 Harper v. District of Columbia Committee on Admissions, 375 A.2d 25, 26-27 (D.C.App.1977) (emphasis in the original).

 Although the District of Columbia has no statutorily established procedure for petitioning the Court of Appeals for review of a final determination of the Committee on Admissions denying certification that an applicant has passed the bar examination, the Court of Appeals nevertheless does accept and consider petitions for review. Kennedy v. Educational Testing Service, Inc., 393 A.2d at 525 (citing as an example Harper v. District of Columbia Committee on Admissions, 375 A.2d 25 (D.C.1977)). See Richardson v. McFadden, 563 F.2d at 1132 (Hall, J., concurring in the result); Feldman v. State Board of Law Examiners, 438 F.2d at 702-03.

 The decision of the Court of Appeals is subject to review by petitioning the Supreme Court of the United States for a writ of certiorari. Kennedy v. Educational Testing Service, Inc., 393 A.2d at 525. See Richardson v. McFadden, 563 F.2d at 1133 (Hall, J., concurring in the result); Doe v. Pringle, 550 F.2d 596, 597 (10th Cir. 1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2179, 53 L. Ed. 2d 227 (1977); Feldman v. State Board of Law Examiners, 438 F.2d at 704; Mac Kay v. Nesbett, 412 F.2d 846, 846-47 (9th Cir.), cert. denied, 396 U.S. 960, 90 S. Ct. 435, 24 L. Ed. 2d 425 (1969); Gately v. Sutton, 310 F.2d 107, 108 (10th Cir. 1962).

 II

 In this case, plaintiff does not allege that she petitioned the Court of Appeals for review of the Committee on Admission's determination denying certification that she had passed the bar examination. Indeed, plaintiff does not even allege that she requested reconsideration by the Committee on Admissions under its Post Examination Review Procedure. Under these circumstances, this action must be dismissed as premature. *fn1"

 This result has been explained by the United States Court of Appeals for the Ninth Circuit in a case involving facts similar to those in this case:

 
The significance of this is that under California law a refusal of certification is not a power of deprivation. Only if the Court expressly or impliedly approves the Committee's refusal to certify so as to make this the basis or allow it to have the effect of a denial of admission can the Committee's actions of examination and refusal to certify come to be a status and have the stature of a deprivation.
 
Thus the situation here is not a matter of exhausting state remedies in respect to an alleged federal right but of there being no basis for any alleged federal right to exist as to the Committee's actions until the California Supreme Court in the exercise of its original power over admissions has allowed these actions to serve as a deprivation. The holding of Monroe v. Pape, 365 U.S. 167, 183 (81 S. Ct. 473, 482, 5 L. Ed. 2d 492) ... ( (1961) ), and McNeese v. Board of Education, 373 U.S. 668, 671-72 (83 S. Ct. 1433, 1435, 10 L. Ed. 2d 622) ... ( (1963) ), that it is not necessary to exhaust state remedies before a suit can be instituted under the Civil Rights Act, is therefore without application. Whatever may be the scope of the right ...

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