Veteran lawyers must keep paying up to $3,000 to sit for the Florida bar exam — more than four times the $700 lowest fee — after the U.S. Court of Appeals for the Eleventh Circuit ruled last Friday that the Florida Board of Bar Examiners is immune from the challenge.

Lawyers Steven Hernandez of New Jersey and David Drwencke of Michigan sued the board, arguing its fee schedule discriminates against out-of-state attorneys and violates the dormant Commerce Clause of the U.S. Constitution. The Eleventh Circuit disagreed on two independent grounds: state-arm immunity and the absence of discriminatory effect.

What did the court decide?

A three-judge panel held that the board, as an arm of the state of Florida, cannot be sued in federal court over the rule. The claims against the board's executive director failed on the merits.

Writing for the court, Judge Robert J. Luck found no facial discrimination and no disproportionate burden on nonresidents. He said:

"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-of-state applicants the same, and that the board proposed — and the Florida Supreme Court adopted — the rule for a valid purpose."

Bloomberg Law News reported the ruling.

How does the fee schedule work?

Florida's bar admission rules increase fees the longer an applicant waits after graduation to take the exam. According to the court:

• The lowest fee to sit for the exam is $700.
• Fees rise to as much as $3,000 based on years of experience.
• Hernandez and Drwencke claimed the structure penalizes experienced out-of-state attorneys seeking Florida admission.

The key statistic undermined that theory. Roughly 45% of the "experienced" applicants subject to the higher fees are already Florida residents, Luck wrote. A rule that burdens residents and nonresidents alike cannot support a dormant Commerce Clause claim premised on discrimination against interstate commerce.

Luck also emphasized the rule's provenance: the board proposed it, and the Florida Supreme Court adopted it — for a valid purpose. That procedural history reinforced the court's conclusion that the differential pricing reflects a legitimate regulatory choice rather than protectionism.

What does the ruling mean for practitioners?

For out-of-state attorneys weighing a move to Florida, the practical consequence is straightforward: the escalating fee schedule stands, and experienced practitioners budgeting a lateral entry to the Florida Bar should anticipate the higher end of the $700-to-$3,000 range. Structurally, the decision strengthens the hand of state bar examining boards nationwide. Because the Eleventh Circuit treated the Florida board as an arm of the state entitled to immunity, plaintiffs challenging admission rules in federal court will likely need to target individual officials — and even then, they must show that a rule disproportionately burdens nonresidents. A roughly even resident/nonresident split among affected applicants, as here, will make that showing difficult. Dormant Commerce Clause doctrine, once a seemingly available avenue for challenging bar admission economics, now looks largely closed in the Eleventh Circuit for suits against the boards themselves.

The court did not address the wisdom of the fee structure — only whether it violated the federal Constitution or could be challenged against the board at all.