Hernandez v. Florida Board of Bar Examiners — Eleventh Circuit upholds higher bar-application fees for experienced attorneys

Case
Steven W. Hernandez and David Drwencke v. Florida Board of Bar Examiners and Michele A. Gavagni
Court
U.S. Court of Appeals for the Eleventh Circuit
Judge
JILL PRYOR (Barack Obama, 2014); Robert J. Luck (Donald Trump, 2019); Andrew L. Brasher (Donald Trump, 2020)
Date Decided
October 9, 2026
Docket No.
24-13543
Topics
Dormant Commerce Clause; Bar Admission; Sovereign Immunity
Source
Read the full opinion

Background

Florida charges higher bar-application fees to applicants who have been admitted to another bar for more than 12 months. Depending on their years of admission, these experienced applicants pay between $1,600 and $3,000, while less-experienced applicants pay between $700 and $1,000. Steven Hernandez, a New Jersey-licensed attorney, paid the $3,000 fee; David Drwencke, a Michigan-licensed attorney, declined to apply after learning that he would owe $2,000.

Hernandez and Drwencke sued the Florida Board of Bar Examiners and its executive director, Michele Gavagni, contending that the experienced-applicant rule discriminated against interstate commerce both on its face and in practical effect. After resolving standing and immunity issues, the district court dismissed the facial challenge and granted Gavagni summary judgment on Drwencke’s remaining practical-effect claim.

The Court’s Holding

The Eleventh Circuit affirmed. It first held that the Board is an arm of the State of Florida and therefore immune from suit under the Eleventh Amendment. Florida law defines the Board as an administrative agency and arm of the Florida Supreme Court, which controls the Board’s rulemaking, membership, budget, and fees.

The court also held that the fee rule does not violate the dormant Commerce Clause. It is not facially discriminatory because it applies to every attorney admitted elsewhere for more than 12 months, regardless of residence or the state issuing the prior license. Nor are state-specific law licenses comparable articles of commerce competing in a single national market. The practical-effect claim failed because undisputed evidence showed that the rule neither excluded out-of-state applicants nor imposed costs that similarly situated Florida applicants avoided. About 55% of experienced applicants had out-of-state addresses, and the record showed that the higher fees were intended to offset the additional work involved in investigating experienced lawyers, not to protect Florida attorneys from competition.

Key Takeaways

  • The Florida Board of Bar Examiners is an arm of the state entitled to Eleventh Amendment immunity.
  • A bar-admission fee based on an applicant’s years of prior licensure is not facially discriminatory when it applies without regard to residence or the licensing jurisdiction.
  • A neutral rule does not discriminate in practical effect merely because it applies more often to out-of-state applicants; the challengers must show a disproportionate burden, unequal costs, or a protectionist purpose.

Why It Matters

The decision confirms that states may charge experienced attorneys more for bar admission when the distinction is origin-neutral and supported by added investigative costs. It also underscores the substantial evidentiary showing required to convert a disparate statistical impact into a dormant Commerce Clause violation.

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