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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-13543
STEVEN W. HERNANDEZ,
DAVID DRWENCKE,
On behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
versus
FLORIDA BOARD OF BAR EXAMINERS,
MICHELE A. GAVAGNI,
Executive Director of the Florida Board of Bar Examiners
in both her individual and official capacity as such,
Defendants-Appellees,
THE SUPREME COURT OF FLORIDA,
Defendant.
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:21-cv-00247-AW-MAF
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2 Opinion of the Court 24-13543
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
LUCK, Circuit Judge:
Two experienced attorneys, Steven Hernandez (a New Jersey-licensed practitioner) and David Drwencke (a Michigan-licensed practitioner), sought admission to the Florida Bar. Florida
has a rule that anyone who’s been licensed to practice law for more
than twelve months must pay more to apply for admission than
inexperienced applicants. Viewing the rule as an unconstitutional
facial and practical-effect burden on out-of-state applicants under
the dormant Commerce Clause, Hernandez and Drwencke sued to
enjoin the Florida Board of Bar Examiners and its executive director, Michele Gavagni, from enforcing the experienced-applicant
rule. The district court dismissed the facial claim and granted summary judgment for Gavagni on the practical-effect claim, so they
appealed.
We affirm. The board is an arm of the state of Florida, so
the Eleventh Amendment bars the claim against it. And the claim
against Gavagni fails on the merits. The experienced-applicant rule
draws no line based on where an applicant is from, so it doesn’t
facially discriminate. And the undisputed evidence showed that
the practical effect of the rule was to burden in-state and out-ofstate applicants the same, and that the board proposed—and the
Florida Supreme Court adopted—the rule for a valid purpose. The
district court correctly brought this suit to an end.
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24-13543 Opinion of the Court 3
I. FACTUAL BACKGROUND
AND PROCEDURAL HISTORY
Anyone seeking admission to the Florida Bar must pay a fee
to the Board of Bar Examiners. Fla. Bar Admission R. 2-23. Those
not admitted to any bar for more than twelve months pay $700 to
$1,000—$700 if they apply soon after starting law school, and more
the longer they wait. Id. R. 2-23.1–3. “Experienced applicants,”
who have been members of another bar for more than twelve
months, pay $1,600 to $3,000, the amount increasing with their
years of admission. Id. R. 2-23.4.
Hernandez and Drwencke have been admitted to the bars of
New Jersey and Michigan since 2004 and 2016, respectively. When
Hernandez applied to the Florida Bar in 2020, he paid the maximum fee of $3,000. He postponed sitting for the bar exam and,
instead, sued the board and Gavagni in her official and individual
capacities. Drwencke wanted to apply to the Florida Bar in 2021,
but balked when he learned that his fee would be $2,000. Unwilling
to pay the fee, Drwencke joined Hernandez’s lawsuit.
A. The Complaints
Hernandez and Drwencke’s first amended complaint alleged that the experienced-applicant rule violated the dormant
Commerce Clause “either facially or in practical effect.” Through
their single dormant Commerce Clause claim, they sought to enjoin the board and Gavagni from enforcing the rule. Hernandez
also sought damages—a refund. But the district court dismissed
the action. Hernandez v. Fla. Bd. of Bar Exam’rs, 640 F. Supp. 3d 1246,
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1249–52 (N.D. Fla. 2022). Drwencke lacked standing to seek an injunction against either defendant because he hadn’t alleged a definite plan to apply to the Florida Bar, and he lacked standing to seek
damages because he’d never paid the fee. Id. at 1249. Hernandez,
for his part, lacked standing to seek an injunction against either defendant because he’d already paid the fee. Id. at 1249–50. And although he had standing to seek damages, the board and Gavagni in
her official capacity had Eleventh Amendment immunity, while
Gavagni in her individual capacity had qualified immunity. Id. at
1250–52.
Hernandez and Drwencke moved for leave to file a second
amended complaint, with mixed success. Hernandez v. Fla. Bd. of
Bar Exam’rs, No. 4:21-cv-247, 2022 WL 20288237, at *1–2, *10 (N.D.
Fla. July 7, 2022). After reviewing the proposed second amended
complaint, the district court again concluded that Hernandez
didn’t have standing to seek an injunction against either defendant
and that his claim for damages was barred by sovereign and qualified immunity. Id. at *2–5. Drwencke, however, had adequately
pleaded his plan to apply to the bar, entitling him to seek prospective relief. Id. at *2. He still couldn’t obtain any relief against the
board, which was immune under the Eleventh Amendment. Id. at
*3–4. And, of course, he couldn’t obtain damages against Gavagni
in her individual capacity because he’d never paid the fee. Id. at *2.
Nevertheless, the district court ruled, if Drwencke’s dormant Commerce Clause claim succeeded—on either a facial or a practical-effect theory—then he could obtain an injunction against Gavagni in
her official capacity. See id. at *4–5 (first citing Pennhurst State Sch. USCA11 Case: 24-13543 Document: 43-1 Date Filed: 10/09/2026 Page: 5 of 30
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& Hosp. v. Halderman, 465 U.S. 89, 100–02 (1984); and then citing
Ex parte Young, 209 U.S. 123 (1908)).
But the claim couldn’t succeed—at least not as pleaded. Id.
at *5–8. The experienced-applicant rule wasn’t facially discriminatory, the district court explained, because it made no distinction
“based on the geographic origin of [a] regulated activity (here, legal
services).” Id. at *6. “An applicant living in Florida with a Wyoming bar license,” for instance, “would have to pay the [higher]
fee[,] [b]ut an applicant living in Rhode Island with no prior bar
admissions would not[.]” Id. (citing Fla. Bar Admission R. 2-23.4)
(citation modified). And if the rule discriminated in practical effect,
the complaint didn’t sufficiently allege how. Id. (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Still, the district court
couldn’t say that “any” further amendment would be futile, so it
granted leave to amend and gave Hernandez and Drwencke “one
final opportunity . . . to state a dormant Commerce Clause claim.”
Id. at *8.
That final opportunity did the trick. The third amended
complaint pleaded “just barely” enough detail for Drwencke to
state a practical-effect dormant Commerce Clause claim for injunctive relief against Gavagni in her official capacity. Otherwise, the
district court’s previous rulings stood. Hernandez continued to
lack standing to seek injunctive relief because he’d already paid the
fee. He remained barred from seeking damages. And the facial
dormant Commerce Clause theory remained foreclosed.
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B. Summary Judgment
After discovery, Drwencke and Gavagni cross-moved for
summary judgment on the remaining practical-effect dormant
Commerce Clause claim. The district court denied Drwencke’s
motion and granted Gavagni’s motion, looking to the three factors
we set out in Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011). Hernandez v. Fla. Bd. of Bar Exam’rs (Hernandez IV), No. 4:21-cv-247, 2024
WL 2156499, at *4–5 (N.D. Fla. Apr. 5, 2024) (denying Drwencke’s
motion for summary judgment); Hernandez v. Fla. Bd. of Bar Exam’rs
(Hernandez V), 746 F. Supp. 3d 1310, 1314–18 (N.D. Fla. 2024)
(granting Gavagni’s motion for summary judgment).
The first two factors favored Gavagni, the court explained,
because the board’s undisputed data showed that between 2008
and 2022, around fifty-five percent of experienced applicants had
out-of-state mailing addresses. See Hernandez V, 746 F. Supp. 3d at
1314–15 (citing record evidence). It was clear, then, that the experienced-applicant rule neither “eliminated” out-of-state applicants
from the market—the first factor—nor “impose[d] costs” that they
alone had to bear—the second factor. Id. (quoting Locke, 634 F.3d
at 1193). Other undisputed evidence from the board showed that
the rule hadn’t been implemented to serve “protectionist purposes”—the third factor—but to offset the higher costs of investigating experienced applicants. Id. at 1315–16 (quoting Locke, 634
F.3d at 1193). Even drawing all inferences for Drwencke, the court
concluded, it was undisputed that the experienced-applicant rule
didn’t discriminate in practical effect. Hernandez V, 746 F. Supp. 3d
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at 1314–18; see also Hernandez IV, 2024 WL 2156499, at *4–5 (denying Drwencke’s summary-judgment motion for the same reasons).
C. The Final Amended Complaint
With Drwencke’s practical-effect claim disposed of, the district court directed the parties to prepare for trial on any remaining
claims. Hernandez and Drwencke instead amended their complaint one last time to “disavow” any claims not already adjudicated, clearing the way for the district court to enter final judgment
for the defendants.
They then appealed. They contend that the experienced-applicant rule violates the dormant Commerce Clause both facially
and in practical effect. Accordingly, they urge us to reverse the dismissal of their facial claim and reverse the summary judgment on
their practical-effect claim.
II. STANDARD OF REVIEW
We review de novo a dismissal on Eleventh Amendment
immunity grounds and for failure to state a claim. Nichols v. Ala.
State Bar, 815 F.3d 726, 732 n.4 (11th Cir. 2016); Hopper v. Solvay
Pharms., Inc., 588 F.3d 1318, 1324 (11th Cir. 2009). We also review
de novo a summary judgment, drawing all inferences for the nonmovant. Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1168 (11th
Cir. 2023).
III. DISCUSSION
Hernandez and Drwencke’s dormant Commerce Clause
claim can’t proceed against the board and fails against Gavagni.
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8 Opinion of the Court 24-13543
The board, an arm of the state of Florida, is immune from suit entirely. And Gavagni faces no liability in either her official or individual capacity because the experienced-applicant rule doesn’t discriminate facially or in practical effect.
A. The Board’s Eleventh Amendment Immunity
The district court correctly concluded that Hernandez and
Drwencke’s claim against the board was barred by the Eleventh
Amendment. The Eleventh Amendment bars federal suits against
an “arm of the [s]tate,” including the state’s “agents and instrumentalities[.]” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en
banc) (first quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280 (1977); and then citing Regents of the Univ. of Cal.
v. Doe, 519 U.S. 425, 429–30 (1997)). “[W]hether an entity is an ‘arm
of the [s]tate’ for Eleventh Amendment purposes is ultimately a
question of federal law” to be “answered . . . [by] considering provisions of state law.” Id. at 1309. Our analysis is “function specific,”
looking to the “particular function in which the defendant was engaged” when it allegedly wronged the plaintiff. Freyre v. Chronister,
910 F.3d 1371, 1380 (11th Cir. 2018) (quoting Manders, 338 F.3d at
1308).
“[F]our factors . . . determine whether an entity is an ‘arm
of the [s]tate’ in carrying out a particular function: (1) how state
law defines the entity; (2) what degree of control the [s]tate maintains over the entity; (3) where the entity derives its funds; and
(4) who is responsible for judgments against the entity.” Manders,
338 F.3d at 1309 (citing Miccosukee Tribe of Indians of Fla. v. Fla. State USCA11 Case: 24-13543 Document: 43-1 Date Filed: 10/09/2026 Page: 9 of 30
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Athletic Comm’n, 226 F.3d 1226, 1231–34 (11th Cir. 2000)). The first
and fourth factors are the “most important,” Monroe v. Fort Valley
State Univ., 93 F.4th 1269, 1279 (11th Cir. 2024), but the fourth factor
“is certainly not necessary for a finding of immunity” when the
other three favor it, Austin v. Glynn Cnty., 80 F.4th 1342, 1350 (11th
Cir. 2023) (citation modified).
Hernandez and Drwencke contend that they can sue the
board because it wasn’t acting as an “arm of the state” when it proposed the experienced-applicant rule, but they’re mistaken. The
Manders factors amply support the board’s immunity.
First, Florida law defines the board as an arm of the state for
all purposes, including proposing the experienced-applicant rule.
The board is part of the Florida Supreme Court, which is a “department of the State of Florida” entitled to Eleventh Amendment immunity. Uberoi v. Sup. Ct. of Fla., 819 F.3d 1311, 1313–14 (11th Cir.
2016). The Court possesses “exclusive jurisdiction to regulate the
admission of persons to the practice of law and the discipline of
persons admitted.” Fla. Const. Art. V, § 15. It exercises that jurisdiction through the Florida Bar and the board. Because the bar is
“an official arm of the [C]ourt,” R. Regulating Fla. Bar pmbl., and
the Court is an arm of the state, Uberoi, 819 F.3d at 1313–14, we’ve
held that the bar is entitled to the same immunity as the Court,
Kaimowitz v. Fla. Bar, 996 F.2d 1151, 1155 (11th Cir. 1993).
The same logic applies to the board: it’s an “administrative
agency of the Supreme Court of Florida created by the court to
implement the rules relating to bar admission.” Fla. Bar Admission
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R. 1-13. According to the Florida Supreme Court, the board is “an
attach[é]” and “an arm of th[e] Court . . . answerable solely to [the
Court].” In re Fla. Bd. of Bar Exam’rs, 353 So. 2d 98, 100 (Fla. 1977).
Since the board is an arm of the Court, and the Court is an arm of
the state, the board is entitled to Eleventh Amendment immunity
just like the bar. The “most important” first factor favors the board.
See Monroe, 93 F.4th at 1279.
Second, in proposing the experienced-applicant rule—the
“particular function” Hernandez and Drwencke attack—the board
is almost completely controlled by the Florida Supreme Court. As
the text of the rule states, “[a]ll fees are set by order of the Supreme
Court of Florida and are subject to change by published order of
the court.” Fla. Bar Admission R. 2-23; id. R. 1-51.1 (“Subject to the
approval of the court, the board may classify applicants and registrants, and fix the charges, fees, and expenses that will be paid by
each.”). If the Court declines to approve a fee proposed by the
board, the board has no recourse. Cf. id. R. 2-23; id. R. 1-51.1 (fees
“[s]ubject to the approval of the court”).
Moreover, the structure of the board makes clear that it’s
controlled by the Florida Supreme Court no matter what function
it fulfills. The board exists only because the Court’s bar-admission
rules say it does—rules that the Court “review[s], approve[s], and
promulgate[s]” itself. Fla. Bar Admission R. 1-12. Those same rules
determine the scope of the board’s single duty: to implement the
bar-admission rules. Id. R. 1-13. And the board is “answerable
solely to [the Court]” by virtue of “th[e] Court’s constitutionally
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endowed power[.]” In re Fla. Bd. of Bar Exam’rs, 353 So. 2d at 100.
The Court appoints all the board’s members, Fla. Bar Admission
R. 1-20, approves the board’s budget, id. R. 1-51, and reviews the
results of the board’s annual audit, id. R. 1-52. At every constitutional and regulatory turn, the board answers to the state.
Third, the board effectively derives its funds from the state.
It’s true, of course, that applicant fees are the immediate source of
the board’s funds. Id. R. 1-51.1. But that doesn’t “tip the balance
against immunity” because the board’s authority to collect those
fees—and its duty to pay its own expenses—come from the state.
See Ross v. Jefferson Cnty. Dep’t of Health, 701 F.3d 655, 660 (11th Cir.
2012) (citation modified); see also id. (“[That the] [c]ounty
fund[s] . . . the [defendant] does not ‘tip the balance’ against immunity because . . . state law requires it to do so.”). Even an entity
that “raises its own funds to pay its expenses” is an “arm of the state
[when] the state controls its fiscal life.” Miccosukee Tribe, 226 F.3d at
1233.
Critically, the indicia of the state’s control over an entity’s
fiscal life include whether the state reviews and approves the entity’s budget. Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., 421
F.3d 1190, 1194 (11th Cir. 2005) (“Although [the defendant community college] is not exclusively funded by the state, state approval
of institutional budgets evidences state control.”); Harden v. Adams,
760 F.2d 1158, 1163 (11th Cir. 1985) (“Where the budget of an entity
is submitted to the state for approval, this suggests that the entity
is an agency of the state[.]”). In Fouche, for example, we held that
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a self-funding and self-sufficient park authority was an “arm of the
state” because the authority had to submit its budget to the state
legislature and its financial records to the state auditor. Fouche v.
Jekyll Island-State Park Auth., 713 F.2d 1518, 1520–22 (11th Cir. 1983).
Here, as we’ve explained, the Florida Supreme Court—an
arm of the state—reviews and approves the board’s budget and the
fees the board uses to generate income. Fla. Bar Admission R. 1-51.
If the Court so desired, it could refuse to approve board budgets
that do or don’t include funding for certain projects or employees,
force the board to set all its fees to zero, and so on. See id. This is
ample evidence that the state controls the board’s fiscal life.
Because the first three factors favor the board’s Eleventh
Amendment immunity, it’s “certainly not necessary” to reach the
fourth. See Austin, 80 F.4th at 1350. That’s because actual liability
for the state “is not determinative of whether a governmental entity should enjoy Eleventh Amendment immunity,” Ross, 701 F.3d
at 660, and the Supreme Court has “[n]ever” required it as a condition, Lake v. Skelton, 840 F.3d 1334, 1344 (11th Cir. 2016) (quoting
Manders, 338 F.3d at 1327–28 & n.51). So, we won’t belabor the
point: the board is an “arm of the state” and therefore enjoys Eleventh Amendment immunity from Hernandez and Drwencke’s
suit.
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B. The Commerce Clause
With the board shielded, Hernandez and Drwencke’s
dormant Commerce Clause claim lies against Gavagni only.1 It
fails.
The Commerce Clause empowers Congress to regulate
commerce among the several states. U.S. Const. Art. I, § 8, cl. 3.
But the clause also restrains the states even when Congress hasn’t
acted, imposing “an implicit or ‘dormant’ limitation” on the states’
power to regulate interstate commerce. Healy v. Beer Inst., Inc., 491
U.S. 324, 326 n.1 (1989). “[M]odern” dormant Commerce Clause
doctrine is principally “concern[ed] about economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” Dep’t of
Revenue of Ky. v. Davis, 553 U.S. 328, 337–38 (2008) (citation modified). The doctrine polices that concern by asking whether a law
“regulates evenhandedly with only ‘incidental’ effects on interstate
commerce, or discriminates against interstate commerce.”
Or. Waste Sys., Inc. v. Dep’t of Env’t Quality of Or., 511 U.S. 93, 99
1 Unlike a suit against the board, a suit against Gavagni in her official capacity
for an injunction or in her individual capacity for damages isn’t barred by the
Eleventh Amendment. See Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,
1336 (11th Cir. 1999) (explaining that Ex parte Young creates “a long and wellrecognized exception” to Eleventh Amendment immunity “for suits against
state officers seeking prospective equitable relief to end continuing violations of
federal law” (citing Ex parte Young, 209 U.S. 123 (1908))); Hobbs v. Roberts, 999
F.2d 1526, 1528 (11th Cir. 1993) (“The Eleventh Amendment protects no personal assets in ‘individual’ or ‘personal’ capacity suits in federal court.” (citing
Hafer v. Melo, 502 U.S. 21, 25 (1991))).
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(1994) (citation modified). Discrimination “simply means differential treatment of in-state and out-of-state economic interests that
benefits the former and burdens the latter.” Id.
Dormant Commerce Clause challenges fall into two “tiers.”
Bainbridge v. Turner, 311 F.3d 1104, 1108 (11th Cir. 2002) (citing
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573,
578–79 (1986)). If a challenged law discriminates facially or in practical effect, we usually deem it unconstitutional without “further
inquiry.” Id. at 1109 (quoting Brown-Forman Distillers Corp., 476
U.S. at 579). A law discriminates facially when it “discriminates
against interstate commerce” by its plain text, e.g., Fla. Transp.
Servs., Inc. v. Miami-Dade Cnty., 703 F.3d 1230, 1243 (11th Cir. 2012),
irrespective of its purpose or justification, Or. Waste Sys., Inc., 511
U.S. at 100. It discriminates in practical effect when, despite neutral
text, it still operates to favor in-state interests over out-of-state
ones. Locke, 634 F.3d at 1192–93. If, however, the law “advances a
legitimate local interest” and only indirectly burdens interstate
commerce, then we move from the first tier to the second. Fla.
Transp. Servs., Inc., 703 F.3d at 1244. At the second tier, the challenged law is constitutional unless the burden it imposes “clearly
exceeds the local benefits.” Id. (quoting Island Silver & Spice, Inc. v.
Islamorada, 542 F.3d 844, 846 (11th Cir. 2008)); see generally Pike v.
Bruce Church, Inc., 397 U.S. 137 (1970).
Because the dormant Commerce Clause “is not so rigid as
to be controlled by the form by which a [s]tate erects barriers to
commerce,” West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 201
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(1994), “‘no clear line’ separat[es] discriminatory from non-discriminatory state regulations,” Fla. Transp. Servs., Inc., 703 F.3d at 1244
(quoting Brown-Forman Distillers Corp., 476 U.S. at 579). For each
challenged law, we perform a “sensitive, case-by-case analysis[.]”
West Lynn Creamery, Inc., 512 U.S. at 201. Generally, though, a discriminatory law acts against either out-of-state actors or out-ofstate articles of commerce.
By actors, we mean the businesses that wish to compete in
an in-state market. See, e.g., Lewis v. BT Inv. Managers, Inc., 447 U.S.
27, 42 (1980) (striking down a Florida statute that barred out-ofstate bank holding and trust companies from the in-state investment-advisory market). And by articles of commerce, we mean
the goods and services for which that in-state market exists. See,
e.g., City of Philadelphia v. New Jersey, 437 U.S. 617, 626–27 (1978)
(holding that a state may not discriminate against out-of-state articles of commerce based on their origin); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 573–74, 577
n.10 (1997) (holding that services can be articles of commerce).
Whatever form the alleged discrimination takes, we wield
our power to enforce the dormant Commerce Clause with “extreme caution[.]” Nat’l Pork Producers Council v. Ross, 598 U.S. 356,
390 (2023) (citation modified). It isn’t a “roving license for federal
courts to decide what activities are appropriate for state and local
government to undertake[.]” United Haulers Ass’n, Inc. v. OneidaHerkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 343 (2007). Accordingly, we’ll hold a law unconstitutional “only ‘where the infraction
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is clear.’” Nat’l Pork Producers Council, 598 U.S. at 390 (quoting Conway v. Taylor’s Executor, 66 U.S. (1 Black) 603, 634 (1862)). A law
isn’t necessarily nondiscriminatory simply because it “applies alike
to the people of all the [s]tates,” but neither is it discriminatory
simply because it has “incidental negative effects on some . . . outof-state market participants[.]” Fla. Transp. Servs., Inc., 703 F.3d at
1244, 1247 (citation modified).
Hernandez and Drwencke argue that the experienced-applicant rule discriminates both facially and in practical effect against
out-of-state actors and articles alike. But, as the district court ruled,
they didn’t state a facial claim and didn’t create a dispute of material
fact on their practical-effect claim.
1. The Facial Claim
According to Hernandez and Drwencke, the experiencedapplicant rule facially discriminates by targeting either out-of-state
experienced applicants—an actor theory—or out-of-state law licenses—as they’d have it, an article-of-commerce theory. In most
of their briefing to the district court, they argued only the former
theory; now, they argue only the latter. Parties may not raise “entirely new categor[ies] of law” or a “wholly different legal framework” for the first time on appeal, Gould v. Interface, Inc., 153 F.4th
1346, 1357 (11th Cir. 2025), but both theories fail anyway.
a. The Actor Theory
As the district court explained, Hernandez and Drwencke’s
facial actor theory didn’t succeed because the text of the experiUSCA11 Case: 24-13543 Document: 43-1 Date Filed: 10/09/2026 Page: 17 of 30
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enced-applicant rule doesn’t distinguish between experienced applicants based on their state of origin. Hernandez, 2022 WL
20288237, at *6. Whether a law facially discriminates against outof-state actors depends on whether it specifies different treatment
for out-of-state actors.
For example, Florida’s old regulatory scheme prohibiting
out-of-state but not in-state wineries from delivering alcohol directly to consumers was facially discriminatory. Bainbridge, 311
F.3d at 1109. But a Florida statute “expressly regulat[ing] all and
only ‘business[es] operating in [Florida]’—both local and out-ofstate”—wasn’t. Norwegian Cruise Line Holdings Ltd v. State Surgeon
Gen., Fla. Dep’t of Health, 50 F.4th 1126, 1142 (11th Cir. 2022); see
Fresenius Med. Care Holdings, Inc. v. Tucker, 704 F.3d 935, 942–43
(11th Cir. 2013) (same). Likewise, in Locke, we held that Florida’s
“interior design license requirement” didn’t facially discriminate
because “[t]he statutory text provide[d] that both Florida and outof-state interior designers need a Florida license to practice [interior
design].” 634 F.3d at 1192.
The experienced-applicant rule works the same way as the
statutes in Norwegian Cruise Line Holdings and Locke. By its terms,
the rule demands a higher fee of all “[a]pplicants who have been
admitted to the bar in any jurisdiction for a period in excess of
[twelve] months”—in other words, all experienced applicants. Fla.
Bar Admission R. 2-23.4. The rule doesn’t make exceptions for Floridians. See generally Fla. Bar Admission R. 2-23. A Floridian barred
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for two years in Wyoming would pay the higher fee; a new applicant from Rhode Island wouldn’t. Hernandez, 2022 WL 20288237,
at *6. The experienced-applicant rule therefore doesn’t facially discriminate against out-of-state actors. See Norwegian Cruise Line
Holdings Ltd, 50 F.4th at 1142; Locke, 634 F.3d at 1192.
For the same reason, other circuits have rejected facial
claims against analogous attorney-licensing rules. The Third Circuit, for instance, rejected a facial challenge to a Pennsylvania rule
limiting admission by motion solely to attorneys barred in reciprocal states. Nat’l Ass’n for the Advancement of Multijurisdiction Prac. v.
Castille, 799 F.3d 216, 218–19, 225 (3d Cir. 2015). Two attorneys
admitted in non-reciprocal states alleged that the rule facially violated the dormant Commerce Clause by excluding residents from
those states. Id. That challenge failed, the Third Circuit explained,
because the rule “does not classify attorneys based on residency,
but rather, their state of bar admission[.]” Id. at 219, 225; see also
Heffner v. Murphy, 745 F.3d 56, 73–74 (3d Cir. 2014) (holding that,
since “[a]ny individual or entity [could] obtain the required license
to operate a funeral home” without needing to satisfy any requirement of “state residency or citizenship,” a state statute imposing
restrictions on funeral director licenses wasn’t facially discriminatory). The Ninth Circuit reached the same conclusion with respect
to a near-identical Arizona reciprocity rule:
If a citizen of Arizona is admitted to the bar in a state
that does not share reciprocity with Arizona, then the
attorney is not eligible to be admitted to the Arizona
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Bar on motion, irrespective of the attorney’s residency or citizenship status.
[...]
[T]he . . . [r]ule does not discriminate against out-ofstate interests and favor in-state interests. Arizona requires the same of its citizens as it does citizens of
other states.
Nat’l Ass’n for the Advancement of Multijurisdiction Prac. v. Berch, 773
F.3d 1037, 1046, 1049 (9th Cir. 2014).
Hernandez and Drwencke argue that the Pennsylvania and
Arizona reciprocity rules “simply classify applicants by virtue of
where they obtained their law license,” whereas the experiencedapplicant rule “taxes” them. But that’s a distinction without a difference. Practically speaking, any state-created barrier to interstate
commerce surmountable by payment is a surcharge or “tax.” A
rule requiring an out-of-state attorney to either bar himself in a reciprocal state or retake the bar in the target state would certainly
seem to “tax” that attorney. Yet that didn’t deter the Third and
Ninth Circuits from concluding, as we do here, that an attorneylicensing rule doesn’t facially discriminate against out-of-state attorneys when the rule is, by its text, residency- and origin-neutral.
Floridian or out-of-stater, every experienced applicant pays
the higher fee. The district court correctly determined that the actor theory can’t sustain Hernandez and Drwencke’s facial-discrimination claim.
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b. The Article-of-Commerce Theory
On appeal, Hernandez and Drwencke recast the experienced-applicant rule as a surcharge on an article of commerce: the
out-of-state law license itself. “Law licenses (and legal services provided pursuant to them),” they claim, “are quintessential ‘economic interests.’” Ostensibly, when experienced applicants seek to
“bring” their out-of-state law licenses into Florida, they pay more
under the experienced-applicant rule. So, Hernandez and
Drwencke contend, the experienced-applicant rule unconstitutionally discriminates against those interests just like any law that
“tax[es] a transaction or incident more heavily when it crosses state
lines than when it occurs entirely within the [s]tate.” Or. Waste
Sys., Inc., 511 U.S. at 99 (quoting Chem. Waste Mgmt., Inc. v. Hunt,
504 U.S. 334, 342 (1992)).
The facial article-of-commerce theory fails to sustain a
dormant Commerce Clause claim for two reasons. First, facial-discrimination theories depend on the plain text of the law. E.g., Fla.
Transp. Servs., Inc., 703 F.3d at 1243. A facial article-of-commerce
theory, then, hinges on whether the plain text picks out an article
to favor or disfavor based on origin. In Oregon Waste, for instance,
Oregon imposed a surcharge on the disposal of solid waste in its
landfills. 511 U.S. at 99. That surcharge was “almost three times
greater” per ton of out-of-state waste than per ton of in-state waste.
Id. “The statutory determinant for which fee applie[d]” was
“whether or not the waste was ‘generated out-of-state.’” Id. (quoting Or. Rev. Stat. § 459.297(1) (1991)).
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Indeed, it appears that the Supreme Court has never held
that a law facially discriminates against an article of commerce unless the law’s plain text made it possible to identify the article favored (or disfavored) by origin. See, e.g., Chem. Waste Mgmt., Inc.,
504 U.S. at 342 (holding that Alabama’s surcharge on the disposal
of “hazardous waste generated in [s]tates other than Alabama” was
facially discriminatory); Wyoming v. Oklahoma, 502 U.S. 437, 455
(1992) (holding that an Oklahoma coal-supply law “on its
face . . . discriminate[d] against interstate commerce” where “the
[a]ct expressly reserve[d] a segment of the Oklahoma coal market
for Oklahoma-mined coal, to the exclusion of coal mined in other
[s]tates”). In all these cases, the challenged law named the article—
waste, coal, and the like—and drew a line through it by origin, sparing the in-state article and burdening the out-of-state one.
The experienced-applicant rule doesn’t mark any article for
worse treatment based on its origin. It’s triggered only when an
experienced applicant asks Florida for something his out-of-state license never conferred: authorization to practice in Florida’s legal
market. That an experienced applicant pays more for that authorization is a consequence of his experience, not the origin of his existing license. A lawyer barred in Michigan for eleven months
wouldn’t pay the higher fee. See Fla. Bar Admission R. 2-23.4. He’d
have to be barred for over another month for the higher fee to kick
in. Id.
Nor does an out-of-state license lose its value once it crosses
into Florida. Instead, an experienced applicant can keep using his
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22 Opinion of the Court 24-13543
out-of-state license to practice his licensing state’s law—so long as
he doesn’t practice Florida law. Fla. Bar re Advisory Op.–Out-of-State
Att’y Working Remotely from Fla. Home, 318 So. 3d 538, 542 (Fla.
2021) (approving proposed advisory opinion). Neither the experienced-applicant rule nor any other Florida law requires the experienced applicant to pay the higher fee—or any fee—simply to have
and use his out-of-state license within Florida. See id.
To get around these facts, Hernandez and Drwencke conflate out-of-state law licenses with out-of-state “law practice[s]” and
“established business interests” writ large. The experienced-applicant rule, they complain, effectively taxes experienced applicants
when they try to move their out-of-state “practices” or “business[es]” into Florida, facially discriminating against those things
based on their origin. Hernandez and Drwencke were entitled to
plead that the experienced-applicant rule has some downstream
consequence, but that’s not a facial attack; the text of the rule
doesn’t mention “practices” or “businesses.” That’s simply an attack on the practical effect of the rule, and must be treated as such.
* * *
Hernandez and Drwencke’s facial article-of-commerce theory has a second problem. Law licenses aren’t articles of commerce because they’re insufficiently similar to each other. “[A]ny
notion of discrimination assumes a comparison of substantially
similar entities.” Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298 (1997).
“This is so for the simple reason that [a] difference in products may
mean that . . . different entities serve different markets, and would
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continue to do so even if the supposedly discriminatory burden
were removed.” Id. at 299. When there’s no competition between
the “supposedly favored and disfavored entities in a single market,”
there can be no discrimination. Id. at 300.
In the Supreme Court’s article-of-commerce cases, articles
of commerce are very often more than substantially similar.
They’re generally perfectly or near-perfectly fungible products and
services; there’s effectively a single nationwide market for them.
See, e.g., Or. Waste Sys., Inc., 511 U.S. at 101 n.5 (solid waste); C&A
Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 387 (1994) (solidwaste disposal services); Chem. Waste Mgmt., Inc., 504 U.S. at 342
(hazardous waste); Wyoming, 502 U.S. at 455 (coal). And that
makes sense, especially with respect to facial claims. When two
articles are materially different, there’s a “reason[] apart from
[their] origin” why state law can treat them differently, Or. Waste
Sys., Inc., 511 U.S. at 101 n.5, and they probably serve different markets, see Tracy, 519 U.S. at 299. Tracy, for example, held that natural
gas “bundled with . . . services and protections” was a different
product from “unbundled” natural gas because bundled gas served
the residential-consumer market and unbundled gas served the
large-volume industrial market. See id. at 293–98, 301–04. The
products were therefore insufficiently similar to ground a discrimination claim. See id.
The same is true of law licenses. Because “the licensing and
regulation of lawyers has been left exclusively to the
[s]tates . . . within their respective jurisdictions,” Leis v. Flynt,
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439 U.S. 438, 442 (1979), a law license is never anything more than
a state’s authorization to enter that state’s legal market. So, not
only are law licenses not fungible or nearly fungible, they’re not
tradable or transferable. Yes, lawyers themselves—actors, not articles of commerce—compete with each other in providing legal services. And a law license allows a lawyer to provide legal services
in a single state’s market. But a law license isn’t an article or transaction that enables lawyers to compete in what is effectively a single nationwide market for legal services. See Tracy, 519 U.S. at 299.
An out-of-state law license doesn’t allow a lawyer to compete in
Florida, and vice versa.
Hernandez and Drwencke’s facial article-of-commerce theory thus fails. Not only does the experienced-applicant rule not
draw lines between articles of commerce based on their origin, but
it doesn’t concern articles of commerce.
2. The Practical-Effect Claim
Of course, the failure of Hernandez and Drwencke’s facial
theories doesn’t alone doom their claim. A state law that doesn’t
facially discriminate might nevertheless discriminate in practical effect. The experienced-applicant rule, however, does not.
Even “neutrally-worded statutes are unconstitutional under
the [d]ormant Commerce Clause if they have a discriminatory
[practical] effect on out-of-state residents[.]” Locke, 634 F.3d at
1192–93. But “[t]he fact that the burden of a state regulation falls
on some interstate companies does not, by itself, establish a claim
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of discrimination against interstate commerce.” Exxon Corp. v. Governor of Md., 437 U.S. 117, 126 (1978). To “determin[e] whether a
neutrally-worded state law has a discriminatory impact,” we generally consider three factors: (1) whether the state law “disproportionately” “‘exclude[s] a class of predominantly out-of-state [residents]’ from a particular market”; (2) whether it “imposes costs on
out-of-state residents that in-state residents do not have to bear”;
and (3) whether it was “motivated by protectionist purposes[.]”
Locke, 634 F.3d at 1193–94 (first citing Exxon Corp., 437 U.S. at 137
(Blackmun, J., concurring in part and dissenting in part); then citing
Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 348–49, 351–
53 (1977); and then citing Granholm v. Heald, 544 U.S. 460, 472
(2005)). 2
None of the Locke factors favor Hernandez and Drwencke.
Start with exclusion. The experienced-applicant rule doesn’t sufficiently “exclude” out-of-state experienced applicants from applying
to the Florida Bar. Locke held that a law that “somewhat restrict[ed]
[nonresident] entry” but “d[id] not block entry altogether” didn’t
sufficiently exclude nonresidents. Id. at 1193. What this factor condemns is the “effective elimination” of out-of-state entrants to the
market. See Island Silver & Spice, Inc., 542 F.3d at 846–48. A law
that merely makes entry costlier for some out-of-state actors falls
well short. See Exxon Corp., 437 U.S. at 126.
2 Locke used both “disproportionately” and “predominantly,” but “disproportionately” was Locke’s own word and the decisional basis for that part of its
analysis. See Locke, 634 F.3d at 1192–94.
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The experienced-applicant rule doesn’t “block [nonresident]
entry altogether.” Locke, 634 F.3d at 1193. The evidence adduced
at summary judgment showed that, since the board began tracking
experienced applicants’ mailing addresses in 2008, over 7,600 experienced applicants have sought admission. Hernandez IV, 2024 WL
2156499, at *3 (collecting evidence). Fifty-five percent of them had
out-of-state addresses. Id. The number of out-of-state applicants
has even increased in recent years. Id. On this evidence, it’s clear
that experienced applicants—irrespective of origin—aren’t excluded from applying. And since out-of-staters and Floridians
make up nearly equal proportions of experienced applicants, the
experienced-applicant rule doesn’t even “disproportionately” impact out-of-state applicants. Locke, 634 F.3d at 1194.
Hernandez and Drwencke answer that Locke overstated the
standard: complete exclusion isn’t required. In support, they cite
Chemical Waste Management, in which out-of-state hazardous waste
was subjected to a higher fee but not excluded entirely from Alabama’s disposal market, 504 U.S. at 342, and Hunt, in which the
Court struck down a North Carolina law that prohibited all apple
sellers from labeling apples with state-specific grades, even though
that prohibition hurt but didn’t fully exclude Washington apple
sellers, 432 U.S. at 335. But they misread both cases. In Chemical
Waste Management, Alabama applied the challenged surcharge to
all—and only—out-of-state hazardous waste. 504 U.S. at 342.
Since all out-of-state waste but no in-state waste was affected, it
was necessarily true that the surcharge affected out-of-state waste
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“disproportionately.” See id. Similarly, in Hunt, the label rule affected all Washington-based apple sellers, while North Carolinabased sellers were “unaffected.” 432 U.S. at 351. That’s another
“disproportionate” impact on out-of-state economic interests. See
id.
Next, the experienced-applicant rule doesn’t impose costs
on out-of-state residents that Florida residents don’t have to bear.
If slightly over half of experienced applicants were from out of
state, then slightly under half were from Florida. So, from the
proper perspective, the rule not only burdens in-state applicants,
but it burdens them to roughly the same extent as out-of-staters.
See Locke, 634 F.3d at 1193 (“Any cost imposed on out-of-state residents is one that Florida residents must also bear, because they too
must obtain a license to practice interior design[.]”); Fresenius, 704
F.3d at 942–43 (“[B]ecause the law operates to burden in-state and
out-of-state [market participants] alike, [a]ppellants fail to convince
us that the [challenged law] has the practical effect of discriminating against interstate commerce.”).
In response, Hernandez and Drwencke ask us to scrutinize
“the discrepancy between” the percentage of out-of-state experienced applicants (again, around fifty-five percent) and the percentage of in-state new applicants (around eighty-seven percent). “Because over [fifty-five] percent of experienced-attorney applicants—
but just [thirteen] percent of new attorney applicants—live outside
Florida,” they argue, the experienced-applicant rule “burdens more
than four times as many non-Florida residents as it benefits.” Yet
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that’s just the argument that “the statute is discriminatory because
it will apply most often to out-of-state entities,” a sally that “avails
[them] little” in substantiating a practical-effect claim. CTS Corp. v.
Dynamics Corp. of Am., 481 U.S. 69, 88 (1987) (rebuffing this argument and holding that “[b]ecause nothing in the [challenged law]
imposes a greater burden on out-of-state offerors than it does on
similarly situated [in-state] offerors, we reject the contention that
the [law] discriminates against interstate commerce”).
Finally, the third factor tips against Hernandez and
Drwencke too. The third factor asks whether the experienced-applicant rule “was motivated by protectionist purposes.” Locke, 634
F.3d at 1193 (citing Granholm, 544 U.S. at 472). Protectionism,
again, is regulation designed to benefit in-state economic interests
by burdening out-of-state competitors. Nat’l Pork Producers Council,
598 U.S. at 369; Davis, 553 U.S. at 337–38.
Measured against that standard, the record discloses no protectionist motive. The summary-judgment evidence showed that
the board proposed the rule, and later a fee increase, as part of an
“ongoing effort to pass on costs to the specific applicants whose
applications incur costs beyond the ordinary costs involved in the
routine processing of a bar application.” Hernandez V, 746
F. Supp. 3d at 1316. There’s just more to investigate for experienced applicants than there is for new ones. The board must “obtain[] and review[] applications submitted in other jurisdictions and
investigat[e] discrepancies, which may in turn require investigative
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hearings,” on top of “investigating prior bar discipline and grievances, malpractice claims, and court sanctions.” Id.
Hernandez and Drwencke say that motive is pretextual.
The fee brings in far more than the investigations cost, they point
out, and the board uses the surplus to discount the fees of law students and new lawyers, who are mostly Floridians. But as we just
explained, a rule that “will apply most often to out-of-state entities”
isn’t discriminatory for that reason. CTS Corp., 481 U.S. at 88. Neither is a discount that goes to every new applicant, resident or not.
See Fla. Bar Admission R. 2-23.1–3. Nor does the experienced-applicant rule shield Florida lawyers from competition. After all, the
experienced applicants pay the fee so that they can enter the Florida
market for legal services.
* * *
In short, there’s no dispute of material fact on any of the
Locke factors. Applying the law to the undisputed evidence, the
district court properly granted summary judgment on the practicaleffect dormant Commerce Clause claim. Because the facial claim
was likewise correctly dismissed, no part of the dormant Commerce Clause claim survives against Gavagni.
IV. CONCLUSION
Hernandez and Drwencke are barred by sovereign immunity from suing the board. And their dormant Commerce Clause
claim against Gavagni fails on its merits. Accordingly, we affirm
the judgment of the district court and deny all motions as moot.
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AFFIRMED.