Joyce Matsuo v. United States ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOYCE K. MATSUO; SHARON 
WARREN; RONALD FRANKLIN; FRANK
HARDT; RUSSELL HOLLAND; ROY
MATSUO; MICHAEL MCCRARY; FRED
NOLKE; CHARLES ROBERTS; RONALD
SCHERLER; ROMAN BUYSON; PETER
No. 08-15553
NEWMAN; THOMAS WARREN; JOHN
J. KATO; MICHAEL C. SHEARER, on
behalf of themselves and others
 D.C. No.
05-CV-000398-PMP
similarly situated, OPINION
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; LINDA
M. SPRINGER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Philip M. Pro, District Judge, Presiding
Argued and Submitted
May 13, 2009—Honolulu, Hawaii
Filed November 12, 2009
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and
Consuelo M. Callahan, Circuit Judges.
Opinion by Chief Judge Kozinski
15223
MATSUO v. UNITED STATES 15225
COUNSEL
Briefed and argued by Gregory K. McGillivary, Woodley &
McGillivary, Washington, D.C., for the plaintiffs-appellants.
Argued by Michael Raab, Civil Appellate Division, U.S.
Department of Justice, Washington, D.C., who was joined on
the briefs by Gregory G. Katsas, Assistant Attorney General,
Washington, D.C.; Edward H. Kubo, Jr., United States Attor-
ney, Honolulu, Hawaii, and Mark R. Freeman, Civil Appel-
late Division, U.S. Department of Justice, Washington, D.C.,
for the defendants-appellees.
15226 MATSUO v. UNITED STATES
OPINION
KOZINSKI, Chief Judge:
We decide whether the Federal Employees Pay Compara-
bility Act of 1990, 5 U.S.C. § 5301 et seq., imposes an uncon-
stitutional burden on the right to travel.
Facts
The Federal Employees Pay Comparability Act (the Act)
provides certain federal employees in the contiguous 48 states
with what is known as locality pay—an amount they are paid
in addition to salary in order to equalize their compensation
with that of other employees in the same region. 5 U.S.C.
§§ 5301, 5304(f)(1)(A). The Office of Personnel Management
establishes the amount of locality pay based on the degree of
public-private pay disparity in each region. See 5 C.F.R.
§§ 531.601-611. For example, this year federal employees in
the New York City area will receive a locality adjustment
equal to 27.96% of their base salary, while those in Atlanta
will receive 18.55%. U.S. Office of Personnel Mgmt., 2009
General Schedule Locality Pay Tables, http://opm.gov/oca/
09tables/pdf/saltbl.pdf. Locality pay is included in the calcu-
lation of retirement benefits.
Roy Matsuo is a federal employee in Hawaii and is there-
fore ineligible for locality pay. 5 U.S.C. § 5304(f)(1)(A). Mat-
suo claims that, by denying him this benefit, the Act penalizes
him for working in Hawaii, and this unconstitutionally bur-
dens his right to travel.
Charles Roberts works in Maryland and, like most other
federal employees in the 48 contiguous states, receives local-
ity pay. He’d lose it if he returned to Hawaii, where he was
a federal employee for a number of years before moving to
Maryland. He claims that this unconstitutionally burdens his
right to travel.
MATSUO v. UNITED STATES 15227
The parties stipulated to the certification of two classes1—
one representing the Matsuos of the federal workforce, the
other representing the Robertses—after which they filed
cross-motions for summary judgment and the district court
denied plaintiffs relief. Plaintiffs appeal.
Analysis
We must determine whether the Act “actually deters . . .
travel” or “uses any classification which serves to penalize the
exercise of that right.” Attorney Gen. of N.Y. v. Soto-Lopez,
476 U.S. 898, 903 (1986) (plurality opinion) (internal quota-
tion marks and citations omitted).2
[1] 1. Plaintiffs contend that federal employees in Alaska
and Hawaii are compensated less than those on the mainland.
The Act gives most federal employees, but not those stationed
in Alaska and Hawaii, a minimum salary supplement of
13.86%; some get as much as 34.35%. U.S. Office of Person-
nel Mgmt., 2009 General Schedule Locality Pay Tables,
http://opm.gov/oca/09tables/pdf/saltbl.pdf. Employees outside
the 48 contiguous states get nothing under the Act.
[2] Federal employees in Alaska and Hawaii do receive a
geographically determined pay supplement called a cost-of-
living allowance. 5 U.S.C. § 5941(a). This tax-free salary
adjustment, first provided in some form in 1948, is only avail-
able to employees stationed outside the 48 contiguous states,
and it’s intended to compensate for the higher costs associated
with living far from the mainland. See 13 Fed. Reg. 5453
(Sept. 16, 1948). This year employees in Alaska will receive
a tax-free supplement equal to 23-25% of their salary, and
1
The propriety of class certification is not before us, so we have no
occasion to pass on it.
2
Plaintiffs have provided no evidence that “impeding travel is [the
Act’s] primary objective,” so we won’t address that final prong of Soto-
Lopez. See 476 U.S. at 903.
15228 MATSUO v. UNITED STATES
those in Hawaii will receive 18-25%. U.S. Office of Personnel
Mgmt., Non-Foreign Area Cost-of-Living Allowances,
http://www.opm.gov/oca/cola/html/C-rates.asp.
[3] 2. In light of the above, federal employees (like Mat-
suo) who are now working in Alaska and Hawaii can’t make
the necessary threshold showing. The Act imposes no travel
penalty on them; if anything, it imposes a penalty for staying
put. In fact, the Act encourages these employees to travel by
providing superior pay in the 48 contiguous states.3 They
therefore lack standing to bring a right-to-travel claim. See
Int’l Org. of Masters, Mates & Pilots v. Andrews, 831 F.2d
843, 846 (9th Cir. 1987).
[4] The plaintiffs in Andrews were Washington residents
who worked on Alaska’s Marine Highway System and were
paid less than their counterparts in Alaska. Id. at 844-45. They
claimed that an Alaska statute was to blame for this disparity
and that it violated their right to travel. Id. at 846. We held
they had no standing to challenge the law because it didn’t
affect their “freedom to leave” Washington. Id. Similarly,
plaintiffs who’ve always worked in Alaska or Hawaii have no
standing to challenge the Act. They may be paid less than
their counterparts in the 48 contiguous states, but the Act
doesn’t affect their “freedom to leave” Alaska or Hawaii.
[5] 3. Plaintiffs (like Roberts) who work in the 48 contigu-
ous states are in a different position. They would lose locality
pay if they moved to Alaska or Hawaii and continued to work
for the federal government,4 so traveling would arguably trig-
3
Moving between Alaska and Hawaii or to any location other than the
mainland imposes no penalty. Federal employees in all of these places are
governed by the same compensation scheme. See p. 15227 supra.
4
Nothing prevents them from taking a locality-paying private-sector job.
And there is, of course, no constitutional right to federal employment
wherever one chooses to live. It’s therefore not clear that these plaintiffs
are suffering a cognizable injury at all.
MATSUO v. UNITED STATES 15229
ger a penalty.5 But not everything that deters travel burdens
the fundamental right to travel. States and the federal govern-
ment would otherwise find it quite hard to tax airports, hotels,
moving companies or anything else involved in interstate
movement. We turn to Saenz v. Roe, 526 U.S. 489 (1999), for
guidance about whether the Act’s putative deterrent to travel
burdens the constitutionally-protected right to travel.
[6] Saenz held that, unless a state can satisfy strict scrutiny,
the constitutional right to travel prohibits it from: (1) prevent-
ing citizens from entering or leaving; (2) treating temporarily-
present citizens of other states as “unfriendly aliens” rather
than as “welcome visitors”; or (3) discriminating against citi-
zens of other states who elect to become permanent residents.
Id. at 500. But the states have no role in determining the com-
pensation of federal employees. Neither can we say that the
Act was an effort by Congress to “authorize the States to vio-
late” one of these strictures. Id. at 507. The states aren’t
involved here at all, so the Act doesn’t violate the right to
travel as defined by Saenz.
Plaintiffs place heavy reliance on Saenz’s statement that
“[t]he ‘right to travel’ discussed in our cases embraces at least
three different components.” Id. at 500 (emphasis added).
While the right might have other components, being provided
with the same federal benefits after moving as before isn’t
among them. See Califano v. Torres, 435 U.S. 1 (1978) (per
curiam).
5
These employees would gain the benefit of the tax-free cost-of-living
allowance. See p. 15227 supra. But, as plaintiffs appear to see it, that is
compensation for the higher cost of living in Alaska and Hawaii rather
than on the mainland—something akin to a travel per diem—so it doesn’t
count for purposes of comparing salaries. If successful, plaintiffs don’t
merely intend to receive locality pay while keeping their cost-of-living
allowance. They also seek to have their cost-of-living allowance counted
towards retirement pay.
15230 MATSUO v. UNITED STATES
The plaintiff in Torres received Supplemental Security
Income (SSI) payments while a resident of Connecticut.6 435
U.S. at 2-3. He moved to Puerto Rico and the Social Security
Administration terminated his benefits because residents of
Puerto Rico aren’t eligible for SSI. Like plaintiffs here, he
sued claiming that the SSI program violated his right to travel.
A three-judge district court granted relief, but the Supreme
Court reversed. It characterized the district court’s order as
holding that “a person who travels to Puerto Rico must be
given benefits superior to those enjoyed by other residents of
Puerto Rico if the newcomer enjoyed those benefits in the
State from which he came.” Id. at 4. This “altogether trans-
posed” the right to travel, which the Court held merely
requires that new residents of a state be given the same bene-
fits as other residents. Id.7
Torres teaches that the right to travel permits the federal
government to put new migrants to a state or territory on the
same footing as that of long-established citizens. That is all
that would occur should a plaintiff like Roberts move from
the 48 contiguous states to Alaska or Hawaii. He would be
denied locality pay because all federal employees in Alaska
and Hawaii are denied locality pay. Torres forecloses a right-
to-travel claim in such circumstances.
6
SSI is a federally funded program that’s directly administered by the
federal government. See Torres, 435 U.S. at 2. It is thus closely analogous
to the compensation program for federal employees.
7
Puerto Rico does have a “relationship to the United States that has no
parallel in our history.” Torres, 435 U.S. at 3 n.4 (internal quotation marks
omitted). That’s not, as plaintiffs urge, sufficient to distinguish Torres’s
discussion of the right to travel. The Court explained that “[f]or purposes
of this opinion we may assume that there is a virtually unqualified consti-
tutional right to travel between Puerto Rico and any of the 50 States of the
Union,” which is how the Court phrased the “right of interstate travel” ear-
lier in its opinion. Id. at 4 n.6. The Court only relied on Puerto Rico’s
unique status to dispose of an equal protection claim. See id. at 3 n.4. Such
a claim isn’t properly before us. See note 8 infra.
MATSUO v. UNITED STATES 15231
The Eighth Circuit rejected a very similar claim. In Minne-
sota Senior Fed’n v. United States, plaintiffs challenged the
geographical disparity in benefits under Medicare Part C. 273
F.3d 805, 810 (8th Cir. 2001). Addressing those plaintiffs’
right-to-travel claim, the court held: “In effect, appellants
argue that a federal program that fails to achieve nationwide
uniformity in the distribution of government benefits is sub-
ject to strict scrutiny because it will deter travel to unfavored
locales. Such a contention is clearly too broad.” Id. Other-
wise, choices Congress makes every day—where to build a
military base, how much to allocate a state in highway funds,
whether to provide a tax credit for this or that disaster area—
would trigger strict scrutiny. That searching standard of
review can’t be appropriate merely because a federal program
fails to provide geographically uniform benefits. Citizens of
every state don’t receive uniform benefits under many federal
programs. Subjecting all those choices to strict scrutiny would
undermine our constitutional scheme, which accords Con-
gress primacy in spending decisions.
[7] 4. Plaintiffs next contend that, even if the Act doesn’t
burden their fundamental right to travel, it must still be ratio-
nally related to a legitimate governmental interest. There is
not, however, a free-floating requirement that all congressio-
nal action be rational. Unless a law creates a classification
that plaintiffs complain denies them equal protection (and
plaintiffs here have abandoned such a claim8) or the law bur-
dens a liberty or property interest, Congress is free to act
without being second-guessed by the courts. Without a right
8
On appeal, plaintiffs don’t claim that the Act’s classification of
employees based on the state in which they work is itself a denial of equal
protection; they only claim this classification impermissibly burdens their
right to travel. A claim based on the right to travel is distinct from an equal
protection claim. See, e.g., Torres, 435 U.S. at 3 n.4. Briefing the former
doesn’t properly raise the latter. See, e.g., Andrews, 831 F.2d at 845 n.2.
Even if we were to construe plaintiffs’ brief as raising this claim, the Act
clearly satisfies rational-basis scrutiny for the reasons stated by the district
court.
15232 MATSUO v. UNITED STATES
to government employment in the first place, which plaintiffs
don’t argue exists, federal employees can have no judicially
enforceable interest in pay at a particular rate. “The whole
control of [federal employees’ pay] is within the domain of
congressional power.” Frisbie v. United States, 157 U.S. 160,
166 (1895).9
AFFIRMED.
9
Congress recently saw fit to exercise this power. Federal employees in
Alaska and Hawaii will, after a phase-in period, receive locality pay
instead of the cost-of-living allowance. See National Defense Authoriza-
tion Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1912, 123 Stat. 2190
(2009).