These cases mark the continuing efforts of two lawyers to surmount the single legal barrier to practice of their chosen profession in the District of Columbia. The obstacle they face is posed by Rule 46 I(b) of the District of Columbia Court of Appeals, which specifies that only graduates of law schools accredited by the American Bar Association (ABA), and graduates of other law schools who have taken supplementary courses at an ABA-approved institution, may sit for the District of Columbia bar examination.1

Appellants, Edward J. Hickey and Marc Feldman, when intercepted by this proscription, petitioned the District of Columbia Court of Appeals2 to waive it in their behalf. When the court declined to do so, they brought separate actions in the District Court assailing the validity of Rule 46 I(b) under the Constitution and the federal antitrust laws. In each instance the District Court dismissed the constitutional counts, as well as Feldman's antitrust attack, on the ground that it lacked jurisdiction to entertain them, reasoning that the Court of Appeals' rulings on the applications for waivers were judicial in nature, and as such were reviewable only in the Supreme Court of the United States. Hickey's antitrust suit was dismissed as frivolous.

Careful review of the antitrust arguments advanced by appellants satisfies us that they are insubstantial, and we affirm their dismissal on this basis. Intensive study of the jurisdictional problem, however, constrains us to conclude that the waiver proceedings were not judicial in the federal sense, and thus did not foreclose litigation of the constitutional contentions in the District Court. We accordingly reverse the dismissals of the constitutional claims and remand them for consideration on the merits.3

Prior to the last decade, the District Court supervised admission to the District of Columbia bar.4 In 1970, Congress enacted the District of Columbia Court Reform and Criminal Procedure Act,5 by which that function was transferred to the District of Columbia Court of Appeals, together with authority to promulgate regulations governing bar membership.6 The Court of Appeals subsequently adopted, as part of its general rules, the challenged provision limiting entry to the bar. This contested directive is embodied in Rule 46 I(b), which in pertinent part provides:

(3) Proof of Legal Education. An applicant who has graduated from a law school that at the time of graduation was approved by the American Bar Association or who shall be eligible to be graduated from an approved law school within 60 days of the date of the examination will be permitted to take the bar examination. Under no circumstances shall an applicant be admitted to the bar without having first submitted to the Secretary to the Committee (on Admissions) a certificate verifying that he has graduated from an approved law school.

(4) Law Study in a Law School NOT Approved by the ABA. An applicant who graduated from a law school not approved by the American Bar Association may be permitted admission to an examination only after receiving credit for 24 semester hours of study in a law school that at the time of study was approved by the American Bar Association and with Committee approval.7

This rule blocks both appellants, as presently circumstanced, from essaying to pass the District of Columbia bar examination.8

Following a career in the United States Navy, Hickey entered the Potomac School of Law in March, 1975.9 He was aware that Potomac was not then accredited by ABA,10 but hoped subsequently to transfer to an approved law school.11 Shortly after he matriculated, however, the Court of Appeals waived Rule 46 I(b)(3)12 in favor of the 1975 graduates of the International School of Law another recently established, unaccredited institution in order to permit them to sit for the bar examination without completing any additional courses.13 Similar dispensations were later accorded to International's 1976 and 1977 graduating classes.14

In light of the indulgence thus extended to International's alumni, Hickey anticipated that upon completion of his studies at Potomac he too would be allowed to take the bar examination.15 Contrary to his expectations, however, the Court of Appeals, in November of 1977, denied Potomac's petition for a temporary waiver of the rule on behalf of its graduates. Although students who had been graduated from International prior to August, 1977, would be permitted to sit for the bar examination, the court announced its resolve to discontinue exemptions.16

On April 18, 1978, Hickey, through his counsel, filed a petition in the Court of Appeals seeking personal exception from the rule.17 Hickey set forth his academic achievements18 and attached affidavits from members of the District of Columbia bar attesting to his competence.19 He urged that application of the newly-stated nonwaiver policy against him would be unfair, explaining that he had not anticipated it and that its enforcement would work particular hardship because he was then unemployed and the sole support of his wife and children.20 Hickey's petition also alleged, on information and belief, that ABA policies precluded him from gaining admission to an accredited law school in order to qualify under the provisions of Rule 46 I(b)(4).21 On June 12, 1978, the Court of Appeals denied Hickey's petition in what was styled as a per curiam order.22 The court stated that ABA standards "permit enrollment of persons in petitioner's category"23 in accredited law schools, but did not respond to any of the other grounds advanced by Hickey in support of his waiver request.

Hickey then brought his action in the District Court. There he alleged that the Court of Appeals acted arbitrarily and capriciously in refusing him a waiver;24 that Rule 46 I(b) contravenes both the equal protection and due process components of the Fifth Amendment;25 and that appellees have unreasonably restricted entry into the legal profession, united in a combination in restraint of trade, attempted to monopolize and actually monopolized the practice of law in the District of Columbia, in violation of Sections 1 and 2 of the Sherman Act26 and caused appellants to sustain injury to business or property within the meaning of Section 4 of the Clayton Act.27 An affidavit accompanying the complaint avowed that every ABA-accredited law school in the District of Columbia had been contacted, and that each denied admission to individuals in his situation as a matter of policy, thus making it impossible for him to comply with Rule 46 I(b).28

The District Court dismissed the complaint for an asserted lack of jurisdiction.29 The court held that the Court of Appeals' disposition of Hickey's waiver petition was judicial in character and therefore reviewable only in the Supreme Court.30 The court further ruled that the antitrust laws did not apply to the type of action under attack.31 Hickey's appeal followed.

Feldman looked forward to a legal career upon graduation from college, but chose to read for the Virginia bar32 rather than attend law school.33 Under the supervision of the state's Board of Bar Examiners, be began his training with a Charlottesville law firm in October, 1972. In the course of his studies, Feldman formally audited approximately 18 credit hours of classes at the University of Virginia Law School, and he spent the final six months of his apprenticeship as a law clerk to a district judge in this circuit.34

Feldman sat for the Virginia bar examination in February, 1976, and was admitted to the Virginia bar in April of that year.35 From March 1, 1976, until January 1, 1977, he worked as a staff attorney with a legal aid bureau in Baltimore.36 Maryland, like the District of Columbia, has a rule limiting the bar examination to graduates of ABA-approved institutions,37 but the state's Board of Law Examiners waived the rule on Feldman's behalf.38 He subsequently passed the Maryland examination and was admitted to the bar of that state.39

Feldman then applied to the Committee on Admissions of the District of Columbia bar for admission pursuant to a then-existent rule allowing a member of a bar of another jurisdiction to seek membership in the District bar without examination.40 The Committee responded that Feldman's request could not be accepted because he was not a graduate of an accredited law school, and informed him that only the Court of Appeals had authority to make exceptions to this requirement.41

On June 13, 1977, Feldman petitioned the Court of Appeals to admit him to the bar without examination or, in the alternative, to permit him to sit for the examination.42 In support of his application, Feldman set forth in detail his legal experience and training.43 After several months passed in silence, his counsel, on March 6, 1978, wrote a letter to the Chief Judge of the Court of Appeals, seeking prompt action on the petition. This communication reiterated Feldman's qualifications for admission and suggested for the first time that

barring Mr. Feldman from the practice of law merely because he has not graduated from an accredited law school would raise important questions under the United States Constitution and the federal antitrust laws questions that Mr. Feldman is prepared to pursue in the United States District Court if necessary.44

Counsel devoted the last three pages of the letter to an outline of legal arguments, advising the Court of Appeals that these grounds would be raised in federal court should the threatened lawsuit come to pass.45

By letter shortly thereafter, the Chief Judge responded.46 This communication stated that the Court of Appeals had referred Feldman's application to its Committee on Admissions for review;47 that the Committee felt that Feldman "has had an exceptional opportunity for training and is a personable, impressive, and outstanding individual," but nevertheless had recommended unanimously that the court deny the petition;48 and that the court had decided to accept the recommendation.49 The Chief Judge explained:

(T)he purpose of the rule ... is to prevent the Committee and the Court from assuming the practically impossible task of making separate subjective evaluations of each applicant's training and education; hence, an objective and reasonable standard as prescribed by the rule must be utilized.50

"Mr. Feldman, of course," the message concluded, "will be eligible to make an application for admission to the bar after he has completed five years of practice."51 On the day following, the Court of Appeals once again in a self-styled per curiam order52 denied Feldman's request for a waiver without additional comment.53

Feldman filed suit in the District Court about two months later. Like Hickey, he alleged violation of both the Fifth Amendment and the federal antitrust laws.54 The court concluded that Feldman sought essentially a review of a judicial order which, because of counsel's letter to the Chief Judge, "fully encompassed the constitutional and statutory issues raised."55 The court accordingly ruled that it lacked jurisdiction and dismissed the action.56 Feldman then appealed.

Appellees press two broad objections to the District Court's jurisdiction in these cases. First, they urge that the antitrust claims advanced by appellants are frivolous, and therefore were properly dismissed for failure to raise any substantial federal question.57 Second, appellees contend that what appellants actually seek is review of judgments of the highest court of the District of Columbia, and thus are defeated by the express congressional reservation of that authority to the Supreme Court of the United States.58 Alternatively with respect to appellant Feldman, it is suggested that even if the District Court had jurisdiction, the doctrine of res judicata barred that court's consideration of the issues he raised therein because, it is said, the same questions were previously put to the Court of Appeals by the letter written by his counsel.59 We consider each of these arguments in turn.II. THE ANTITRUST CLAIMS

Jurisdiction to entertain federal antitrust lawsuits is vested solely in the federal courts.60 So, whatever the nature of the proceedings in the District of Columbia Court of Appeals on appellants' waiver petitions, they unquestionably have the right to present their antitrust claims in a federal forum. The issue at the core of the antitrust charges, then, is whether appellants stated any cognizable cause of action,61 and thus should not have suffered dismissal.

Mere proffer of a problem implicating the antitrust laws does not necessarily suffice, however; subject-matter jurisdiction of the federal courts is dependent upon a suit "arising under" such laws.62 That does not occur when the "issue tendered by the complaint (is) either frivolous or so insubstantial as to be beyond the jurisdiction of the District Court."63 In light of this principle, appellees invite us to affirm the dismissal of appellants' Sherman64 and Clayton Act65 claims, insisting that they are "obviously without merit."66 The opposing contentions advanced by appellants boil the essential inquiry down to but one: May the District of Columbia Court of Appeals be sued67 for alleged antitrust violations by reason of its adoption of a rule limiting admission to the bar examination to candidates who have completed a prescribed minimum of education in an ABAaccredited law school? We hold that it may not.

In defending against appellants' arguments, appellees have relied upon the "state action" exemption from antitrust liability. Although this doctrine originated much earlier,68 its principal exposition came in Parker v. Brown,69 decided in 1943. The Supreme Court there upheld a California program designed to restrict competition among growers in order to maintain prices in the raisin market, reasoning that the state, as "a sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit."70 In two much more recent cases, Goldfarb v. Virginia State Bar71 and Bates v. State Bar of Arizona,72 the Court elaborated on the state action concept in the context of purported anticompetitive regulation of the legal profession.

In Goldfarb, the Court struck down a minimum fee schedule promulgated by a county bar association under the direction of the state bar of Virginia. The Court emphasized that the state itself had not directed the issuance of the fee schedule.73 Noting that the bar groups' "arguments, at most, constitute a contention that their activities complemented the objective of the (state's) ethical codes,"74 the Court declared that "(i)n our view that is not state action for Sherman Act purposes."75 Significantly for the instant cases, however, the Court stressed that "(i)n holding that certain anticompetitive conduct by lawyers is within the reach of the Sherman Act we intend no diminution of the authority of the state to regulate its professions."76 The Court described this authority as based on the states' "compelling interest in the practice of professions within their boundaries," which gives them "broad power to establish standards for licensing practitioners in regulating the practice of professions."77 The Court cogently observed that "(t)he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts.' "78

In Bates, the Court sustained against antitrust objection a rule of prohibiting advertising by lawyers. That rule, the Court found, was "the affirmative command of the Arizona Supreme Court, ... the ultimate body wielding the State's power over the practice of law."79 Contrasting the bar-created fee schedule successfully attacked in Goldfarb, the Court noted that the complaint in Bates was not anticompetitive behavior by lawyers but a "restraint ... 'compelled by direction of the State acting as a sovereign.' "80 Referring to its admonition in Goldfarb that no dilution of the states' authority to regulate their professions was intended, the Court pointed out that "(a)llowing the (Bates) Sherman Act challenge to the disciplinary rule would have precisely that undesired effect."81

In the cases before us, the parties have focused their arguments on the tests developed in Parker and its progeny for determining whether there is sufficient state action to immunize alleged anticompetitive practices. These tests require courts to ascertain whether there is a clear articulation of state policy accompanied by active supervision by the state.82 This inquiry becomes necessary when an act by a subordinate government agency is at stake, for it is well settled that not everything it does is an act of the state as a sovereign.83 There obviously is no need for any investigation of that sort when the action plainly is taken in a sovereign capacity. Thus in New Mexico v. American Petrofina,84 the Ninth Circuit held that "a state cannot be sued for alleged violations of Sections 1 and 2 of the Sherman Act,"85 explaining that cases like Parker v. Brown

involved suits against allegedly private defendants ... or a state created corporation intended to manage a monopoly in the public interest.

In either situation, it is necessary to determine whether the anti-competitive result actually is a goal of the state entitled to the state's immunity.... (C) ourts are understandably reluctant to apply the state's immunity to private parties without a clear indication by the state's legislature that the anti-competitive results have its sanction.

But there is no indication from those cases that the legislature must declare its intent to supplant competition in an industry when there is no question that the conduct is committed by the state.86

We agree. While activity of private parties prompted by purported state policies87 or pursuant to state regulatory schemes,88 or even acts of subordinate governmental agencies,89 are not always entitled to the shield of the state's antitrust exemption, acts of the state in its sovereign character are invulnerable. This view of governmental immunity is traceable back to the earliest days of federal antitrust lawmaking,90 and was reaffirmed by the Supreme Court as late as 1978. In City of Lafayette v. Louisiana Power & Light Co.,91 the Court warned that it is incorrect to characterize Parker as holding "that all governmental entities, whether state agencies or subdivisions of a State, are, simply by reason of their status as such, exempt from the antitrust laws."92 Proceeding with this analysis, the Court contrasted the presence of sovereign state action in Parker with its absence in Goldfarb,93 observing that "no Virginia statute referred to lawyers' fees and the Supreme Court of Virginia had taken no action requiring the use of and adherence to minimum-fee schedules" in that case.94 But while Goldfarb lacked an exertion of state sovereignty, that element was evident in Bates, where the Supreme Court of Arizona "the ultimate body wielding the State's power over the practice of law95 had clearly articulated and actively supervised the allegedly anticompetitive non-advertising rule there in issue.96

The degree of involvement of the governmental body possessing capacity to exercise a sovereign prerogative is thus crucial. In City of Lafayette, the Court applied this analysis to municipalities, concluding that while "states are sovereign, save only as Congress may constitutionally subtract from their authority,"97 municipalities are not themselves sovereign, nor do they receive "the federal deference of the States that create them"98 unless the anticompetitive activity in suit was undertaken by the municipality acting as the state's agent at the state's direction.99 But regulation by a state legislature of admission to the state's bar clearly would stand on an entirely different footing, as does that activity when conducted by a state court endowed with the "ultimate" authority to do so.100 In either case, the regulatory act brings to bear the sovereignty of the state, and immunity from federal antitrust liability attaches.

We are therefore confident that were the District of Columbia a state for purposes of the federal antitrust laws, its Court of Appeals would be amply shielded. But "the District of Columbia is constitutionally distinct from the States,"101 and we do not believe that in the antitrust context it can be likened to a state. In addressing state-action problems in the antitrust field, the Supreme Court has repeatedly emphasized that fundamental considerations of federalism underlie the exemption doctrine.102 Inherent in our system of government is the concept of dual sovereignty; each state is sovereign, except to the extent that its sovereignty is curtailed by the Constitution or validly restricted by Congress.103 It is for this reason that "an unexpressed purpose (in the antitrust laws) to nullify a state's control over its officers and agents is not lightly to be attributed to Congress."104 These basic concerns do not arise, however, with respect to the District of Columbia; despite the recent enactment of legislation giving the District greater autonomy,105 it remains a federal enclave lacking the sovereignty inherent in statehood.

In the same breath, we reject any notion that the District of Columbia Court of Appeals is merely a municipal unit for purposes of the antitrust question posed in this litigation. It is a creature, not of the District of Columbia Government, but of Congress itself;106 it is "(t)he highest court of the District of Columbia," whose "(f)inal judgments and decrees ... are reviewable by the Supreme Court of the United States,"107 as are those of the state courts of last resort.108 As such, the Court of Appeals is the final arbiter of local law,109 and is specifically vested by Congress with the power to regulate admissions to the District of Columbia bar.110 Authority of this type and scope is not enjoyed by courts of municipalities.

In short, the District of Columbia cannot be characterized as a state in relation to the federal antitrust laws. It is, rather, a semi-autonomous governmental unit, an entity unique in our governmental structure. But whatever the status of the District's legislative and executive branches in the hierarchy of antitrust exemption, the Court of Appeals is plainly a federal instrumentality armed with the supreme judicial power over nonfederal subject matter in the District. We are mindful that on a prior occasion we held that the District of Columbia Armory Board, set up by Congress expressly to provide a stadium for District of Columbia sports teams, was not immune from antitrust liability.111 The Armory Board, however, was commissioned to operate that facility as a private venture,112 a mission entirely different from that of the Court of Appeals. The court was established by Congress to head the local judiciary in an indispensable function of government,113 and was invested with powers virtually identical to those of the highest courts of the states.114 The Court of Appeals is not a governmental entity simply substituting for private enterprise, nor one seeking refuge merely in the fact that it is a governmental instrumentality.115

Without a doubt, the Court of Appeals has the same compelling interest as a state supreme court in regulating the bar of its jurisdiction. While we would not lightly attribute to Congress a desire to counter the important objectives of the federal antitrust policies, we have great difficulty in imagining an intent to disturb the traditional authority of courts to meet one of their most vital needs determining who will be admitted to practice before them as court officers.116 Here Congress issued a clear legislative mandate:

The District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.117

Responding to the directive of this legislation, the court, by conditioning admission to the bar examination upon educational attainment in an ABA-approved law school, acts no differently than the vast majority of states in the constant effort to assure the public that members of the bar are qualified lawyers.118 And "(s)ince the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions."119 It would fly in the face of congressional intent in conferring this broad and essential regulatory authority upon the court to rule that it could become exposed to antitrust liability when it exercises it.

We hold that the Court of Appeals as "the ultimate body wielding (governmental) power over the practice of law" in the District of Columbia120 acts in a sovereign governmental capacity as sovereign as an exertion of judicial power can ever be when it sets and enforces educational prerequisites for admission to the bar examination. It may be that appellants could have sued ABA, if indeed that organization engages in anticompetitive behavior and thereby inflicts injury upon them.121 They cannot, however, subject the Court of Appeals to a charge of antitrust violation. We affirm the dismissal of appellants' antitrust claims.III. THE CONSTITUTIONAL CLAIMS

More than a century ago the Supreme Court, in Ex Parte Secombe,122 recognized as even then "well-settled" the principle that a court has exclusive authority "to determine who is qualified to become one of its officers, as an attorney and counsellor...."123 Never over the many years since Secombe has this thesis been seriously challenged, nor has the related proposition that admission to a state's bar normally is a nonfederal matter. Yet the litigation before us is not disposed of merely by invocation of this broad regulatory power. Its exercise, like any other exertion of governmental authority, is subject to the commands of the Constitution, and redress for infringements of rights the Constitution guarantees ordinarily may be sought in the federal courts.124 The propriety of resort to those courts after an earlier proceeding in a nonfederal court must be considered in light of established criteria, and this is the second task that the instant appeals summon us to perform.

The problem before us whether the District Court was empowered to entertain the claims appellants founded on the Constitution is multifaceted, and thus calls for step-by-step treatment. To begin with, while "(i)t is a principle of first importance that the federal courts are courts of limited jurisdiction,"125 there can be no doubt that with respect to those claims appellants met the minimum requirements for federal-question jurisdiction.126 The threshold requirements with regard to subject matter are satisfied when 'the right of the (plaintiff) to recover under (the) complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another."127 That indisputably was the situation here. The amount in controversy prescribed by statute was established by appellants' good-faith valuation of the rights they assert, for definitely it did not "appear( ) to a legal certainty that the claims (were) really for less than the jurisdictional amount ...."128 Moreover, the jurisdictional amount is no longer a prerequisite to suits in which a "federal question" is at issue.129 As appellees urge, however, in some instances prospective plaintiffs must clear additional jurisdictional obstacles if they are to bring suit in a federal district court,130 and such a barrier confronts appellants here.

Review of a final judgment of the highest judicial tribunal of a state is vested solely in the Supreme Court of the United States.131 In 1970, Congress extended this exclusivity to judgments of the newly-reconstituted District of Columbia Court of Appeals.132 Accordingly, we are in complete agreement with appellees that the District Court is powerless to reexamine determinations by the Court of Appeals in judicial proceedings.133 But whether, for purposes of ascertaining the jurisdiction of a federal court, a particular proceeding before another tribunal was truly judicial is a question of federal law, calling for close inspection of its features.134 We conclude that the instant actions fell within the District Court's jurisdiction because, we find, the Court of Appeals' dispositions of appellants' waiver petitions emanated from proceedings that were not judicial in that sense.

B. The Characteristics of Judicial Proceedings

Not every effort pursued in court is judicial in quality. Many years ago in Prentis v. Atlantic Coast Line Co.135 the Supreme Court emphasized that a determination of whether a tribunal has acted in a judicial capacity turns on the character of the proceeding and the nature of its outcome, rather than on the circumstance that the decisionmaking body was "at another moment, or in its principal or dominant aspect, ... a court ...."136 And, as we shall now see, Prentis is also highly instructive on other aspects of the core issue before us.

Prentis involved a constitutional assault in a federal circuit court on an order of the State Corporation Commission of Virginia which, under the state's constitution and statutes, was "clothed with legislative, judicial and executive powers,"137 and thus functioned at least part of the time as a judicial body.138 The Virginia constitution provided that an appeal from a ratemaking order of the Commission could be taken only to the state's highest court, which was empowered to substitute its own order if it found the challenge meritorious.139 The Prentis litigation arose when the Commission established rates deemed confiscatory by affected railroads.140

The railroads' suit was resisted on the theory that in promulgating the rates the Commission acted as a court of the state, and that its order thus was statutorily immune from a lower federal court's injunction.141 The Supreme Court disagreed, holding that the ratemaking proceeding before the Commission was legislative and not judicial.142 Sharply differentiating between the two, the Court explained:

A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind....

Proceedings legislative in nature are not proceedings in a court within the meaning of (the anti-injunction statute), no matter what may be the general or dominant character of the body in which they may take place.... That question depends not upon the character of the body but upon the character of the proceedings....143

Equally important to the cases before us, the Prentis Court made clear that a nonjudicial proceeding does not become judicial simply because it addresses the same questions that might have been developed in a judicial action involving the identical subject matter:

(I)t does not matter what inquiries may have been made as a preliminary to the legislative act.... (T)he effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up.... (S)o when the final act is legislative the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case.144

And the Court left no doubt that these principles apply not only to an administrative agency but also to a full-fledged court engaged in a nonjudicial proceeding:

(The state court's) action in (confirming the rate) would not have been judicial, although the questions debated by it might have been the same that might come before it as a court, and would have been discussed and passed upon by it in the same way that it would deal with them if they arose afterwards in a case properly so called.145

Since deciding Prentis, the Supreme Court has reaffirmed the distinction between judicial and nonjudicial actions, not only in the ratemaking context in which the problem originally arose146 but in other areas as well.147 For example, in Public Service Co. v. Corboy,148 faced with the question whether a federal district court could enjoin allegedly unconstitutional action of a state court engaged in construction contracting, the Supreme Court drew upon the Prentis rationale:

(A)lthough the Constitution did not limit the power of the States to create courts and to confer upon them such authority as might be deemed best for state purposes, that right could not, by its exertion, restrain or limit the power of the courts of the United States by bringing within the state judicial authority subjects which in their constitutional sense were non-judicial in character and therefore not within the implied or express limitation by which courts of the United States were restrained from staying judicial proceedings in state courts. To hold to the contrary would be in large measure to recognize that the exertion of the authority of the courts of the United States was dependent, not upon the nature and character of the subject-matter with which they are called upon to deal, but merely upon a state classification.149

Similarly, in Roudebush v. Hartke,150 the Supreme Court reversed a federal district court's refusal to enjoin implementation of a state court's decision to hold a recount in a federal election pursuant to a state statute purporting to make the new reckoning mandatory when certain prerequisites were met. The Court rejected the argument that the state body was a judicial entity against which no injunction could issue from a lower federal court, stating:

The exercise of these limited responsibilities does not constitute a court proceeding ... within the test of Prentis: ... The state courts' duties in connection with a recount may be characterized as ministerial, or perhaps administrative, but they clearly do not fall within this definition of a "judicial inquiry."151

These decisions make it evident that the waiver denials at issue in the cases at bar did not become judicial orders simply because the tribunal issuing them ordinarily functions as a court. Nor is the fact that the Court of Appeals' pronouncement on the waiver petitions were denominated per curiam orders dispositive; the teaching of Prentis is that the character of the proceedings is decisive. Thus, "(t)he nature of the final act," and not the nature of the issue, "determines the nature of the previous inquiry;" and only orders which declare or enforce rights and liabilities rise to the level of judicial action.152

In an effort to bolster the proposition that appellants should have gone from the Court of Appeals to the Supreme Court rather than to the District Court, appellees place heavy reliance on the Supreme Court's decision in In re Summers,153 the only case in which the Court has addressed the mutual exclusivity of its direct-review authority and district-court jurisdiction over action in the bar-admission context.154 Summers, an applicant for admission to the Illinois bar, was denied a certificate of fitness by the character committee of the state's highest court because he had been a conscientious objector during World War II.155 Summers then asked the court to overturn the committee's decision, protesting the ruling as transgressing on the First and Fourteenth Amendments.156 The court declined to do so, whereupon Summers sought a writ of certiorari from the Supreme Court.157

The justices of the Illinois high court opposed the writ, arguing that Summers' petition had not inaugurated a judicial proceeding involving a case or controversy, but was simply an application for Summers' appointment as an officer of the court.158 The Supreme Court disagreed, however, and consented to review the Illinois court's decision,159 though ultimately sustaining it on the merits.160 It is to this grant of certiorari, and the concomitant finding that the proceeding in the Illinois court was judicial, that appellees point as the ground for their contention that only the Supreme Court can now hear appellants' claims.

The Supreme Court began its analysis in Summers by reiterating that "(a) case arises, within the meaning of the Constitution, when any question respecting the Constitution, treaties or laws of the United States has assumed 'such a form that the judicial power is capable of acting on it.' "161 Amplifying this point, the Court then restated, in language only slightly different from the original, the Prentis test: "The form of the proceeding is not significant. It is the nature and effect which is controlling."162 The Court found that the proceeding before the Illinois court was an adversary one because it sought relief expressly against the assertedly unconstitutional action of the character committee.163 The Court concluded that "(a) claim of a present right to admission to the bar of a state and a denial of that right is a controversy,"164 and in Summers' instance was reviewable on writ of certiorari.165 For reasons now to be explained, we think Summers does not govern here, and that the attempt to attribute judiciality to the proceedings in the Court of Appeals must fail.

At the very outset, the suggestion that the Court of Appeals' orders were products of judicial proceedings seems strange.166 More seriously, it runs directly counter to Prentis' admonition that an inquiry is judicial in nature only when it is utilized as the medium for "investigat(ing), declar(ing) and enforc(ing) liabilities."167 The critical question is whether appellants presented the Court of Appeals with "(a) claim of a present right to admission to the bar,"168 without which the proceedings therein decidedly could not have been judicial.169 We think the answer plainly is that they did not, and that therein lies the most decisive of the differences between these cases and Summers.170

C. The Nature of the Proceedings Before the District of Columbia Court of Appeals

Examination of appellants' petitions to the Court of Appeals for waivers of Rule 46 I(b) discloses immediately that neither asserted any sort of right to be admitted to the District of Columbia bar, or even to take the examination therefor. Instead, each petition asked the court to do no more than except the petitioner from the operation of the rule. And while the petitions were tendered to a court and concerned admission to the bar, neither circumstance rendered them judicial. In Ktsanes v. Underwood,171 the Seventh Circuit held flatly that a petition requesting a state court to waive one of its rules on bar admission sought "ministerial action, not judicial determination,"172 and that the ensuing denial of the petition "was made by the court acting in an administrative capacity."173 We are satisfied that the same conclusion follows here.

The validity of these observations with respect to appellant Hickey is readily apparent; for him, as did the Seventh Circuit for the bar candidate in Ktsanes, we can easily say that "we have exactly the opposite set of circumstances"174 from those present in Summers. And while appellant Feldman's situation is somewhat less clear, it calls for a similar outcome.175

As earlier noted, Hickey conceded the applicability of Rule 46 I(b) to him.176 He entreated the Court of Appeals to grant an exemption because of his substantive qualifications, unique background, reasonable expectations that he would be allowed to take the bar examination, and general equitable considerations based on his age, service to his country, and family status.177 He presented no legal arguments whatsoever, nor did he demand admission to the examination as a matter of legal entitlement. In short, he merely asked the court to exercise its administrative discretion to permit him to take the test. The court was thus solicited to make a policy decision equating his personal qualities with accredited legal education, not an adjudication requiring resort to legal principles.178 Thus, Hickey's request can hardly be viewed as "(a) claim of a present right to admission to the bar,"179 or to the examination affording the opportunity therefor.

Although at first glance appellant Feldman's case appears more difficult, we are no less convinced that the claim-of-right element was likewise lacking, as a single contrast points up. As the Supreme Court stated, Summers' "petition set out that the sole reason for the Committee's refusal was that (Summers) was a conscientious objector to war, and averred that such reason did not justify his exclusion because of the due process clause of the Fourteenth Amendment."180 On the other hand, Feldman's petition to the Court of Appeals did not claim that a refusal of his waiver request would deny him any right at all. Rather, the petition invoked the administrative discretion of that body, simply asking that it temper its rule in his favor, for personal and not legal reasons.

We are mindful that the letter subsequently written by Feldman's counsel discussed his constitutional and antitrust positions, but we are not persuaded that it changed the essential nature of his effort in the Court of Appeals. The letter was written after a period of almost nine months of apparent inactivity on the waiver petition,181 and put the court on notice of possible legal infirmities in the rule and of Feldman's intent to litigate them in federal court should his request to sit for the bar examination not be promptly granted.182 We are unable to discern in the letter any desire that the court consider Feldman's legal criticisms of the rule on their merits, or hand down a decision dealing with them.183 The letter made unmistakably clear that these criticisms would be litigated, if at all, in the District Court;184 and surely for the antitrust problems highlighted in the letter there was no alternative, since exclusive jurisdiction to consider them is vested in the federal courts.185

Hence, we would encounter no difficulty even were we to credit appellees' contention that the letter, in purpose and practical effect, advanced new arguments in aid of Feldman's earlier petition for the waiver. It would seem unreasonable, and indeed counterproductive, to hold that those situated comparably to appellants could never point out what they believe to be legal flaws in bar-admission rules from which they seek waivers on grounds of policy. On the contrary, it is in keeping with the respect and deference due the judiciary that would-be litigants be encouraged to take all problems concerning bar admission first to the courts having responsibility for that function.186 This is perhaps even more desirable when a regulation affecting membership in a state or local bar threatens to precipitate a lawsuit in a federal court.

Nor do we see any reason why a party seeking merely an exemption from a court-imposed rule of that kind need bifurcate policy and legal arguments helpful to his request therefrom. It has been settled since Prentis that one vieing for a tribunal's nonjudicial resolution of a matter may assert his full views thereon without transforming the nature of the proceeding from nonjudicial to judicial.187 Prentis teaches that nonjudicial action even of a court "would not have been judicial, although the questions debated by it might have been the same that might come before it as a court, and would have been discussed and passed upon by it in the same way that it would deal with them if they arose afterwards in a case properly so called."188 For, Prentis explains, "the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up,"189 and "when the final act is (nonjudicial), the decision which induces it cannot be judicial in the practical sense, although the questions considered might be the same that would arise in the trial of a case."190

Feldman confined his effort in the Court of Appeals to a request for a waiver not adjudication of the validity of the rule requiring legal education in ABA-approved schools, and the court's order did not go beyond the limited scope of that request. The order, we have said, was distinctly nonjudicial in character,191 and it matters not that the court may have considered as presumably it did whatever reflections Feldman's constitutional and antitrust stance cast upon the waiver question.

Thus we view Feldman's petition, even as augmented by his counsel's letter, as solely "one for exemption from the rule, not a challenge of it."192 The Court of Appeals was not requested to review the decision of any other body indeed, no other entity had the power to grant an exemption193 or to originate a decision of its own. To be sure, Feldman argued vigorously that he should be relieved of the requirement of Rule 46 I(b), and predicated part of his reasoning on a perception that the rule was unjust in its application to him and possibly was unlawful. But it made sense to communicate those views for whatever value they had on the matter of waiver, and in any event that sort of communication did not alter the fundamental nature of his endeavor. The vital point is that Feldman did not seek, nor did the court make, any determination respecting the validity of the rule; he merely asked the Court of Appeals to relieve him from it, and expressly reserved his legal claims for possible adjudication on another day in another forum.194

Moreover, the proceedings before the Court of Appeals can hardly be said to have cast the constitutional and antitrust questions in "such a form that the judicial power (was) capable of acting on (these issues)."195 Appellants, we repeat, did not challenge the validity of the rule, but, as in Ktsanes, "ask(ed) for ministerial action, not judicial determination."196 We thus conclude congruently with Ktsanes that "(t)he denial of (their) petition(s) was made by the court acting in an administrative capacity,"197 for the court was not in position to act in any other way. And we further agree that "that denial did not present a case or controversy cognizable by an Article III court and, thus, was not appealable to the Supreme Court of the United States."198

In sum, our analysis of these cases in light of the relevant precedent constrains us to hold that in each instance the prior proceedings before the Court of Appeals were of a nonjudicial character, and therefore did not produce in either a judgment reviewable by the Supreme Court.199 It follows that appellants' suits in the District Court were jurisdictionally appropriate for consideration and disposition of their constitutional claims.200

Because we find that the District Court had jurisdiction over the subject matter of these lawsuits, we must reach appellees' alternative argument that, in the case of appellant Feldman, consideration of the legal issues that he sought to raise in the District Court was barred by principles of res judicata.201 We reject this contention.

Stripped to its essence, appellees' position is that the letter from Feldman's counsel to the Court of Appeals202 incorporated the same questions of law that arose in his action in the District Court; that these questions had already been finally decided by the Court of Appeals; and that therefore they could not be relitigated in Feldman's lawsuit.203 Undeniably, the doctrine of res judicata prohibits a state court litigant defeated in a judicial proceeding from seeking an encore in a federal forum.204 But the attempt to apply the doctrine of res judicata to Feldman's case proceeds from a faulty premise; it assumes that the Court of Appeals' action in denying his waiver request was judicial in character, and that proposition we have already rejected.205 As the Supreme Court noted in Prentis, "(t)he decision upon (nonjudicial questions) cannot be res judicata when a suit is brought.... And it does not matter what inquiries may have been made as a preliminary to the (nonjudicial) act."206 Since we hold that the proceeding in the Court of Appeals was nonjudicial in nature, its outcome cannot be res judicata in a subsequent judicial action.207 Accordingly, we cannot sustain the dismissal of Feldman's suit on this alternative ground.

Lest our decision be interpreted too broadly, we pause to summarize precisely what we have said. In these cases, appellants petitioned the District of Columbia Court of Appeals only to waive on their behalf one of its requirements for admission to the bar. They did not seek review by the Court of Appeals of the decision of any other body or individual; they did not request the court to invalidate any rule; nor did they ask for anything as a matter of right. Consequently, the orders of the Court of Appeals denying the petitions were administrative, not judicial, in nature. In this milieu, given that appellants' constitutional claims are not insubstantial, the District Court had jurisdiction over the subject matter of both actions, and the doctrine of res judicata interposes no bar to the continued prosecution of either. Of course, we intimate no view on the ultimate disposition of these issues on the merits. Appellants' antitrust contentions, however, are without merit and were properly dismissed.

The judgments appealed from are reversed, and the cases are remanded for further proceedings consistent with this opinion.

So ordered.

ROBB, Circuit Judge, concurring in part, dissenting in part:

I agree that the antitrust claims must be dismissed. They are frivolous. The Supreme Court has held that the antitrust statutes do not apply to a restraint imposed by the state acting as sovereign. Parker v. Brown, 317 U.S. 341, 352, 63 S. Ct. 307, 314, 87 L. Ed. 315 (1943); Bates v. State Bar of Arizona, 433 U.S. 350, 363, 97 S. Ct. 2691, 2698, 53 L. Ed. 2d 810 (1977). In this case the District of Columbia Court of Appeals acting en banc entered orders denying Hickey's and Feldman's petitions to waive provisions of the court's rules. (Hickey J.A. 35; Feldman J.A. 33) Any restraint imposed by the rules was therefore compelled by direction of the state. I am not impressed by the appellants' argument that the Court of Appeals has simply adopted rules recommended by the American Bar Association and thus authorized the Bar Association's competitive activity. The rules are those of the court, and they are enforced by the court, not by the Bar Association. That the court has adopted a standard of the Bar Association as a convenient measure of an applicant's qualifications does not mean that the court has abdicated its authority in favor of the Bar Association.

In my opinion the District Court had no jurisdiction to review the order of the District of Columbia Court of Appeals.

The District of Columbia Code Title 11, § 102 provides:

The highest court of the District of Columbia is the District of Columbia Court of Appeals. Final judgments and decrees of the District of Columbia Court of Appeals are reviewable by the Supreme Court of the United States in accordance with section 1257 of title 28, United States Code. (July 29, 1970, Pub.L. 91-358 § 111, title I, 84 Stat. 475)

The Court of Appeals thus has the status of a state supreme court. Key v. Doyle, 434 U.S. 59, 64, 98 S. Ct. 280, 283, 54 L. Ed. 2d 238 (1977). The adverse decisions in the appellants' cases were reviewable in the Supreme Court of the United States. Although the appellants cast their petitions to the Court of Appeals in terms of requests for waivers, the petitions in essence were demands that the court declare the petitioners qualified to sit for the bar examination. Those demands were denied by en banc orders of the Court of Appeals. The denials were judicial acts and as such were reviewable on writ of certiorari to the Supreme Court. They were not reviewable in the District Court. In Re Summers, 325 U.S. 561, 568-69, 65 S. Ct. 1307, 1311-12, 89 L. Ed. 1795 (1945); Grossgold v. Supreme Court of Illinois, 557 F.2d 122, 125 (7th Cir. 1977); Doe v. Pringle, 550 F.2d 596, 599 (10th Cir. 1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2179, 53 L. Ed. 2d 227 (1977); Mackay v. Nesbett, 285 F. Supp. 498, 502 (D.Alaska 1968); aff'd, 412 F.2d 846 (9th Cir.), cert. denied, 396 U.S. 960, 90 S. Ct. 435, 24 L. Ed. 2d 425 (1969).

In the Summers case the Supreme Court held, 325 U.S. 568-69, 65 S. Ct. 1311-12:

A claim of a present right to admission to the bar of a state and a denial of that right is a controversy. When the claim is made in a state court and a denial of the right is made by judicial order, it is a case which may be reviewed under Article III of the Constitution when federal questions are raised and proper steps taken to that end, in this Court. (Footnote omitted)

I can see no difference in principle, so far as review in the Supreme Court is concerned, between denial of a claim of present right to admission to the bar, on the one hand, and denial of a claim that the appellants are presently qualified to take the bar examination.

By the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473, Congress established " 'a Federal-State court system in the District of Columbia analagous to court systems in the several States.' " H.R.Rep.No.91-907, p. 35 (1970), quoted in Key v. Doyle, supra, 434 U.S. at 64, 98 S. Ct. at 283. As part of this scheme Congress provided, 84 Stat. 521, D.C.Code § 11-2501(a):

The District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.

The decision of the majority sanctions an intrusion by the federal courts into what Congress plainly intended to be the prerogative of the District of Columbia court. I think this is unfortunate. It is especially unfortunate in cases such as these in which candidates for admission to the bar are challenging the judgment of the District of Columbia Court of Appeals that they are not qualified to take the bar examination. In my opinion that kind of controversy should not be the business of the United States District Court.1

I would affirm both judgments.