Malla Pollack v. James C. Duff , 793 F.3d 34 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2015 Decided July 7, 2015
No. 13-5263
MALLA POLLACK,
APPELLANT
v.
JAMES C. DUFF, DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS - IN HIS OFFICIAL CAPACITY, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00866)
Malla Pollack, pro se, argued the cause and filed the
briefs for appellant.
John G. Interrante, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: TATEL, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: While residing in
Kentucky, Malla Pollack applied for a job in Washington,
D.C. with the Administrative Office of the United States
Courts (AO), an agency of the federal judiciary. The AO’s
job announcement said it would consider an application from
any present employee of the federal judiciary, nationwide, and
from any non-employee who lived in the Washington
metropolitan area, which includes the District of Columbia
and parts of Maryland and Virginia. The AO rejected
Pollack’s application because she was neither an employee of
the federal judiciary nor a resident of the Washington
metropolitan area. Pollack then filed this suit against three
officials of the AO, in their official capacities, claiming their
refusal to consider her application violated her right to travel
protected by the Constitution of the United States. The
district court entered summary judgment for the defendants,
which we now affirm.
I. Background
In 2009 the AO posted online an announcement that it
was seeking to hire an attorney-advisor to work in
Washington, D.C. The vacancy announcement describing the
position provided:
Who May Be Judiciary wide and All Sources —
Considered: Washington Metropolitan Area
In other words, the agency would consider an application
from any employee of the federal judiciary, regardless where
he or she lived, and from any person who lived in the
Washington metropolitan area. Pollack applied for the job
3
even though she lived in Kentucky and did not work for the
federal judiciary. The AO rejected her application because
she did not “live or work within the announced area o[f]
consideration” specified in the vacancy announcement.
Pollack sent a letter to the AO arguing the geographical
limitation violated her constitutional right to travel because it
discriminated against her based upon the state in which she
resided. In response, the agency defended the
constitutionality of the geographical limitation and advised
Pollack that a rejected applicant’s “only means of redress is to
file a Fair Employment Practices System complaint.” Pollack
duly submitted to the AO an “official complaint of
unconstitutional job discrimination,” only to be told by the
agency that it was “unable to accept [Pollack’s] complaint
because it d[id] not raise an issue that is covered by the AO’s
anti-discrimination policy,” which is limited to “allegations of
discrimination based upon race, color, religion, sex, national
origin, age (at least 40 years of age), disability or the denial of
a reasonable accommodation, or marital status.”
After having been played upon in this way, Pollack sued
three employees of the AO seeking a declaration that they had
violated her constitutional right to travel and an injunction
requiring them to consider her application and to refrain from
using a geographical limitation in the future. The defendants
filed a motion to dismiss the complaint on the ground it was
barred by sovereign immunity or, in the alternative, for
summary judgment. Pollack opposed the motion and asked
the district court to direct the defendants to respond to her
requests for discovery. The district court concluded the
defendants were shielded by sovereign immunity and
dismissed the complaint. Pollack v. Duff, 806 F. Supp. 2d 99,
103–05 (D.D.C. 2011). We reversed and remanded the case
to the district court because “‘suits for specific relief against
4
officers of the sovereign’ allegedly acting ‘beyond statutory
authority or unconstitutionally’ are not barred by sovereign
immunity.” Pollack v. Hogan, 703 F.3d 117, 120 (D.C. Cir.
2012) (quoting Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 689, 693 (1949)). We did not address
the defendants’ alternative arguments or the merits of
Pollack’s constitutional claim. See id. at 121.
On remand the district court considered the merits
arguments previously presented by the parties, denied
Pollack’s motion for discovery, and entered summary
judgment for the defendants on the ground that the
geographical limitation did not violate Pollack’s right to
travel. Pollack v. Duff, 958 F. Supp. 2d 280, 287–93 (D.D.C.
2013).
II. Analysis
Pollack contends the district court erred by concluding
the defendants did not violate her constitutional right to travel
and by entering summary judgment without first directing the
defendants to respond to her requests for discovery. Before
turning to the merits of Pollack’s claim, we must consider the
defendants’ argument that we lack jurisdiction. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
A. Judicial review
The defendants assert we lack jurisdiction because the
AO’s internal process for resolving disputes — its Fair
Employment Practices System (FEPS) — is the exclusive
means for deciding a claim that the AO unlawfully
discriminated against an applicant for employment. In 1990
the Congress instructed the AO to “promulgate regulations
providing procedures for resolving complaints of
5
discrimination by employees and applicants for employment.”
Administrative Office of the United States Courts Personnel
Act, Pub. L. No. 101-474 § 3(a)(9), 104 Stat. 1097, 1098,
codified at 28 U.S.C. § 602, Note. The AO accordingly
created the FEPS, which “applies to all employees [and]
applicants for employment.” The accompanying manual
provides “[e]mployees who believe they have been
discriminated against on [a prohibited ground] … may seek
resolution of such claims through the procedures of this
System.” Those procedures culminate in a decision by the
Director of the AO, which “is final and may not be appealed
or reviewed.”
We need not consider whether we are precluded from
reviewing a decision by the Director of the AO because — as
the AO itself maintains — the FEPS does not apply to
Pollack’s claim the AO discriminated against her on the basis
that she did not reside in the Washington, D.C. area. The
FEPS applies only to claims of discrimination on the basis of
specific invidious criteria. Indeed, when Pollack attempted to
file a complaint based upon the denial of her constitutional
right to travel, the agency informed her it was “unable to
accept” her “official complaint of unconstitutional job
discrimination” because “it d[id] not raise an issue that is
covered by the AO’s anti-discrimination policy.” Although
the FEPS provides that a decision by the Director of the AO
may not be “appealed or reviewed,” it does not purport to
preclude judicial review of a claim that is not subject to the
FEPS.
B. Constitutional right to travel
Satisfied that we have jurisdiction over this suit, we turn
to Pollack’s claim the AO violated her constitutional right to
travel by rejecting her application because she did not live in
6
the Washington metropolitan area. Pollack acknowledges that
the AO may require its employees to live near its office,
which is in Washington, but she argues the Constitution
prohibits the agency from rejecting an applicant because she
does not live in a particular area at the time she submits her
application.
As Pollack points out, the constitutional right to travel is
“multifaceted” — and perhaps “misleadingly named” —
because it protects several distinct interests. Appellant’s Br.
at 7. In its most recent explanation of the scope of the right,
the Supreme Court observed that “[t]he ‘right to travel’
discussed in [its] cases embraces at least three different
components” located in different provisions of the
Constitution. Saenz v. Roe, 526 U.S. 489, 500 (1999). ∗
Identifying the relevant source of the right as it is invoked in a
particular case is essential because the Court has developed
different doctrines to analyze the constitutionality of
governmental action under each of the various provisions of
the Constitution that protect the right to travel.
Neither the Supreme Court nor this court has previously
considered whether the right to travel is implicated when a
federal agency seeking to hire an employee limits the
applicant pool to residents of a particular area. We will
therefore address both the constitutional provisions invoked
by Pollack, viz., the Privileges and Immunities Clause of
Article IV and the equal protection component of the Due
Process Clause of the Fifth Amendment, as well as her claim
of a right inherent in the structure of the Constitution.
∗
Indeed “[v]arious Justices at various times have suggested no
fewer than seven different sources” of the right to travel in the text
and structure of the Constitution. Lutz v. City of York, 899 F.2d
255, 260 (3d Cir. 1990).
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1. Privileges and immunities
Pollack first argues the AO’s geographical limitation
violates the right to travel protected by Article IV, § 2, clause
1 of the Constitution, which provides: “The Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States.” This clause “was designed to
insure to a citizen of State A who ventures into State B the
same privileges which the citizens of State B enjoy” there.
Toomer v. Witsell, 334 U.S. 385, 395 (1948). The Supreme
Court has accordingly relied upon the Privileges and
Immunities Clause to invalidate state laws that favor residents
over nonresidents. In Toomer, for example, the Court held
unconstitutional a South Carolina statute that required a non-
resident to pay 100 times as much as a resident for a license to
harvest shrimp in the waters of that state. Id. at 389, 395–403.
Applying the same logic, the Court invalidated an Alaska law
that required oil and gas companies operating in the state to
give residents a preference in hiring. See Hicklin v. Orbeck,
437 U.S. 518, 520, 523–31 (1978). The Court has also held a
state violates the clause when it refuses to admit a nonresident
attorney to the bar upon the same terms as it would an
attorney who resides in the state. See Supreme Court of Va. v.
Friedman, 487 U.S. 59, 62, 64–70 (1988); Supreme Court of
N.H. v. Piper, 470 U.S. 274, 276, 279–87 (1985).
The Court has developed a “two-step inquiry” to
determine whether “a citizenship or residency classification”
violates the Privileges and Immunities Clause. Friedman, 487
U.S. at 64. First, the classification must burden an activity
that is “sufficiently basic to the livelihood of the Nation”
because “[o]nly with respect to those ‘privileges’ and
‘immunities’ bearing upon the vitality of the Nation as a
single entity must the State treat all citizens, resident and
nonresident, equally.” Baldwin v. Fish & Game Comm’n of
8
Mont., 436 U.S. 371, 388, 383 (1978). Second, “if the
challenged restriction deprives nonresidents of a protected
privilege,” then the Court will invalidate the restriction if it
“is not closely related to the advancement of a substantial
state interest.” Friedman, 487 U.S. at 65.
Pollack urges us to apply this two-part test to the
geographical limitation used by the AO. The test is self-
evidently inapplicable, however, because Pollack challenges
the action of an agency of the federal government, not that of
a state. As the defendants point out, neither the Supreme
Court nor this court has ever held an action taken by any
branch of the federal government is subject to scrutiny under
the Privileges and Immunities Clause of Article IV. To the
contrary, we have thrice stated broadly that the Privileges and
Immunities Clause of Article IV “is a limitation upon the
powers of the states.” Duehay v. Acacia Mutual Life Ins. Co.,
105 F.2d 768, 775 (D.C. Cir. 1939); see also Banner v. United
States, 428 F.3d 303, 308 (D.C. Cir. 2005); Neild v. District of
Columbia, 110 F.2d 246, 249 n.3 (D.C. Cir. 1940). This case
admittedly differs from Banner, Neild, and Duehay in two
arguably important respects. First, Pollack challenges a hiring
practice adopted by an agency of the federal judiciary,
whereas those cases concerned acts of the Congress. Second,
the geographical limitation here at issue adversely affects
residents of the states, whereas the laws at issue in our earlier
cases adversely affected residents of the District of Columbia,
over which the Congress has plenary authority. See U.S.
Const. art. I, § 8, cl. 1. These differences are immaterial,
however, because we conclude the Privileges and Immunities
Clause of Article IV does not constrain the powers of the
federal government at all.
The Supreme Court has consistently explained the clause
restricts the authority of the states without ever so much as
9
implying it might also apply to the federal government. See,
e.g., Baldwin, 436 U.S. at 383 (observing the clause “has been
interpreted to prevent a State from imposing unreasonable
burdens on citizens of other States”); Hicklin, 437 U.S. at523–24 (explaining the clause “‘establishes a norm of comity’
that is to prevail among the States with respect to their
treatment of each other’s residents” (quoting Austin, 420 U.S.
at 660)).
Other circuits have held expressly that the clause does not
apply to the federal government under a range of
circumstances. See Nehme v. INS, 252 F.3d 415, 430 n.18
(5th Cir. 2001) (“[T]he Privileges and Immunities Clause [of
Article IV] protects citizens of one state from abuses by other
states, and does not address powers, such as the granting of
citizenship, of the federal government”); Cramer v. Skinner,
931 F.2d 1020, 1029 n.7 (5th Cir. 1991) (“While we have
held that state legislation may violate the privileges and
immunities clause of article IV if it unjustifiably denies the
right to travel, that clause applies only to state legislation and
does not govern federal statutes”); Nevada v. Watkins, 914
F.2d 1545, 1555 (9th Cir. 1990) (“[T]he Privileges and
Immunities Clause [of Article IV] has been construed as a
limitation on the powers of the States, not on the powers of
the federal government”); Hawes v. Club Ecuestre El
Comandante, 535 F.3d 140, 145 (1st Cir. 1976) (“Article IV,
§ 2 is a limitation on powers of states and in no way affects
the powers of a federal district court”).
Pollack argues the courts’ contemporary understanding of
Article IV, § 2 is inconsistent with the original meaning of
that provision. She cites a statement by James Iredell, a
Federalist delegate to the first of the two ratifying conventions
held in North Carolina, as evidence that the founding
generation read the clause as a limitation upon the powers of
10
the federal government. The passage referenced by Pollack
appears in a pamphlet Iredell wrote in response to objections
raised by George Mason, a Virginia delegate to the
Constitutional Convention who refused to sign the
Constitution. Mason was concerned that “the Congress may
grant monopolies in trade and commerce,” to which Iredell
replied:
Upon examining the constitution I find it expressly
provided, “That no preference shall be given to the
ports of one State over those of another;” and that
“citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.”
These provisions appear to me to be calculated for the
very purpose Mr. Mason wishes to secure. Can they
be consistent with any monopoly in trade and
commerce? … [The Anti-Federalists of Virginia] fear,
that a majority of the States may establish regulations
of commerce which will give great advantage to the
carrying trade of America, and be a means of
encouraging New England vessels rather than Old
England. Be it so. No regulations can give such
advantage to New England vessels, which will not be
enjoyed by all other American vessels, and many
States can build as well as New England, though not at
present perhaps in equal proportion.
James Iredell, Answers to Mr. Mason’s Objections to the New
Constitution, Recommended By the Late Convention (1788),
reprinted in Pamphlets on the Constitution of the United
States 333, 356–58 (Paul Leicester Ford ed., 1968). Pollack
reads Iredell’s statement as positing that the Privileges and
Immunities Clause forbids the federal government from
favoring the residents of some states over the residents of
others. It seems equally or more likely, however, that Iredell
11
referred to the Privileges and Immunities Clause for the
proposition that a state may not deprive nonresidents of the
“advantages” it extends to its own residents. Before quoting
the Privileges and Immunities Clause, Iredell quoted the Port
Preference Clause, which limits the powers of the federal
government. See Kansas v. United States, 16 F.3d 436, 439
(D.C. Cir. 1994). Iredell seems first to have cited the Port
Preference Clause to show the Constitution would prohibit the
federal government from enacting laws favoring the shipping
interests of one state over those of another and then cited the
Privileges and Immunities Clause to show the Constitution
also would prohibit the states from enacting such laws.
To be sure, it is also possible, as Pollack argues, to read
Iredell’s statement as a claim that the Privileges and
Immunities Clause limits the powers of the federal
government. To the extent Iredell’s pamphlet reflects this
view, it is relevant evidence of how a reasonable person might
have understood the clause when the Constitution was
ratified. Or, as the defendants put it, Pollack’s pamphlet is “a
guide to understanding the original meaning” of the
Constitution, but not a source of “rights not explicitly found
in the text.” Appellees’ Br. at 27; see Noel Canning v. NLRB,
705 F.3d 490, 500 (D.C. Cir. 2013), aff’d on other grounds,
134 S. Ct. 2550 (2014) (“When interpreting a constitutional
provision, we must look to the natural meaning of the text as
it would have been understood at the time of the ratification
of the Constitution”).
The defendants also caution that Iredell’s statement is
subject to the caveat that the views expressed by either a
proponent or an opponent of ratification are not necessarily
indicative of how a reasonable person would have understood
the text of the document. As the defendants point out, some
essays authored by both Federalists and Anti-Federalists were
12
designed to bring skeptics around to the author’s position and
do not necessarily reflect the common understanding of the
meaning of the text of the Constitution. See John F. Manning,
Textualism and the Role of The Federalist in Constitutional
Adjudication, 66 Geo. Wash. L. Rev. 1337, 1358–61 (1998).
The defendants’ point is well taken. We note, for example,
that in 1788, when Iredell authored the pamphlet Pollack
quotes, he also published notes from the ratifying convention
in North Carolina. The historical record shows “[v]arious
Federalist speakers tinkered with” the notes from that
convention before Iredell published them, so they would
“serve as Federalist campaign literature,” not as an accurate
account of the views expressed at the convention. James H.
Huston, The Creation of the Constitution: The Integrity of the
Documentary Record, 65 Tex. L. Rev. 1, 24 (1986).
Looking beyond Iredell’s statement, we find that neither
the Founders nor the commentators of the period left many
clues about how Article IV, § 2 was understood. See Stewart
Jay, Origins of the Privileges and Immunities of State
Citizenship under Article IV, 45 Loy. U. Chi. L.J. 1, 15 (2013)
(“There was almost no recorded debate about the Privileges
and Immunities Clause at the Convention”); Kurt T. Lash,
The Origins of the Privileges or Immunities Clause, Part I:
“Privileges and Immunities” as an Antebellum Term of Art,
98 Geo. L.J. 1241, 1259 n.97 (2010) (“James Madison
described the Article as simply clearing up some of the
ambiguous language of the Articles of Confederation. In the
first constitutional treatise, St. George Tucker had little to say
about the clause ….” (citation omitted)). Charles Pinckney,
who drafted the clause, reported it was “formed exactly upon
the principles of the 4th article” of the Articles of
Confederation, which had provided:
13
The better to secure and perpetuate mutual friendship
and intercourse among the people of the different
States in this Union, the free inhabitants of each of
these States, paupers, vagabonds and fugitives from
justice excepted, shall be entitled to all privileges and
immunities of free citizens in the several States; and
the people of each State shall have free ingress and
regress to and from any other State, and shall enjoy
therein all the privileges of trade and commerce,
subject to the same duties, impositions and restrictions
as the inhabitants thereof respectively.
3 The Records of the Federal Convention of 1787 112 (Max
Farrand ed., 1966). Like the corresponding clause in the
Constitution, the Fourth Article of Confederation did not
expressly state whether it limited the powers of the federal
government as well as those of the states. In Austin the
Supreme Court explained the Fourth Article of Confederation
was intended to curb “the practice of some States denying to
outlanders the treatment that its citizens demanded for
themselves,” which suggests it was viewed as a limitation
upon the states alone. 420 U.S. at 660.
We find more definitive guidance in cases decided by the
state and federal courts soon after ratification of the
Constitution. See Noel Canning, 705 F.3d at 501 (“The
interpretation of the Clause in the years immediately
following the Constitution’s ratification is the most instructive
historical analysis in discerning the original meaning …
because it reflects the ‘public understanding’ of the text”
(quoting District of Columbia v. Heller, 554 U.S. 570, 605
(2008))). Several interpretations of the clause are evident in
the early cases and commentary. See Lash, 98 Geo. L.J. at
1259–60. As Pollack points out, at least two state courts held
it prevented the federal government from discriminating on
14
the basis of state citizenship. See Douglass v. Stephens, 1
Del. Ch. 465, 477 (1821) (holding the Privileges and
Immunities Clause was “designed to restrict the powers of
Congress as to legislation, so that no privilege or immunity
should be granted by it to one citizen of the United States, but
such as might be common to all”); Kincaid v. Francis, 3
Tenn. 49, 53 (1812) (White, J. concurring) (“It seems to us
most probable that [the Privileges and Immunities Clause]
was intended to compel the general government to extend the
same privileges and immunities to the citizens of every State,
and not to permit that government to grant privileges or
immunities to citizens of some of the States and withhold
them from those of others”).
The view advanced by these courts was not widely
shared, however. The “vast majority of cases decided in this
early period of the Republic” concluded the clause limits the
extent to which a state may discriminate against nonresidents
but it does not apply to the federal government. Lash, 98
Geo. L.J. at 1262 n.108; see, e.g, Livingston v. Van Ingen, 9
Johns. 507, 577 (N.Y. 1812) (Chancellor Kent, concurring)
(“The provision that the citizens of each state shall be entitled
to all privileges and immunities of citizens in the several
states … means only that citizens of other states shall have
equal rights with our own citizens …. This is a very clear
proposition, and the provision itself was taken from the
articles of the confederation.”); Campbell v. Morris, 3 H. &
McH. 535, 548 (Md. 1797) (“When the new constitution was
formed … there was reason to fear that particular states might
not allow the citizens of other states the same privileges
enjoyed by their own citizens; and had a provision securing
them been omitted in the constitution, they might have been
deprived of them”). The interpretation of the Privileges and
Immunities Clause that “came to dominate case law and
scholarly commentary from the Founding until
15
Reconstruction” — and that is still evident in the Supreme
Court’s more recent jurisprudence — provides the clause
merely “require[s] states to grant visiting citizens some of the
same privileges and immunities that the state conferred upon
its own citizens.” Lash, 98 Geo. L.J. at 1260.
Finally, the location of the Privileges and Immunities
Clause in § 2 of Article IV supports the conclusion that it is
directed at the states and not at the national government.
Article IV is the “so-called States’ Relations Article.”
Baldwin, 436 U.S. at 379. Section 2 of Article IV, in addition
to the Privileges and Immunities Clause, included the
Interstate Rendition Clause and the Fugitive Slave Clause,
both of which were concerned with comity among the states.
See California v. Superior Court of Cal., San Bernardino
Cnty., 482 U.S. 400, 405 (1987) (describing the Interstate
Rendition Clause as one example of a “limit[] on the
sovereign powers of the States” that was “part of the Framers’
conception of national identity and Union”). If the Privileges
and Immunities Clause applied to the federal government,
then we might expect to find it in Article I, § 9, alongside
other limitations upon the powers of the Congress to
discriminate against residents of certain states, such as the
Export Taxation Clause and the Port Preference Clause; in
any case, it would not be in Article IV.
Although the historical record is not pellucid, we think
the weight of the evidence indicates the Privileges and
Immunities Clause was not originally understood as a
limitation upon the authority of the federal government. We
agree with the defendants, therefore, that the geographical
limitation in the AO’s hiring process is not subject to scrutiny
under that clause. Accordingly, we need not consider the
defendants’ further arguments that the opportunity to apply
for a job with the AO is not a “privilege” protected by the
16
clause and that the geographical limitation is “closely related
to the advancement of a substantial [government] interest.”
Friedman, 487 U.S. at 65.
2. Equal protection
Pollack next contends the defendants lack a rational basis
for discriminating against applicants who do not reside in the
Washington metropolitan area. This argument invokes a
separate line of cases, one that uses equal protection analysis
to evaluate laws that burden the right to travel. See, e.g.,
Zobel v. Williams, 457 U.S. 55, 60 n.6 (1982) (“In reality,
right to travel analysis refers to little more than a particular
application of equal protection analysis”). Unlike the
Privileges and Immunities Clause, the principle of equal
protection indisputably applies to the federal government as
well as to the states. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 217 (1995) (explaining the Court “treat[s] the
equal protection obligations imposed by the Fifth and the
Fourteenth Amendments as indistinguishable”); see also
Califano v. Torres, 435 U.S. 1, 2–3 (1978) (evaluating
whether a federal law that distinguished between residents of
a state and residents of Puerto Rico implicated the right to
travel); Shapiro v. Thompson, 394 U.S. 618, 623–25 (1969)
(holding a federal law that applied to residents of the District
of Columbia violated the right to travel).
The defendants argue we need not scrutinize the
geographical limitation under the equal protection principle
because it does not actually burden Pollack’s right to travel.
The Supreme Court has explained that a “law implicates the
right to travel when it actually deters such travel, when
impeding travel is its primary objective, or when it uses any
classification which serves to penalize the exercise of that
right.” Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898,
17
903 (1986) (plurality) (internal quotation marks and citations
omitted); see also Kansas v. United States, 16 F.3d at 441.
Pollack does not argue impeding travel is the “primary
objective” of the AO’s geographical limitation. We will
therefore limit our inquiry to whether the geographical
limitation either deterred Pollack from traveling or created a
classification that penalized her exercise of the right to travel.
First, Pollack asserts the geographical limitation deterred
her from traveling because, although she is “willing and able
to relocate” if she obtains a suitable job offer, moving to
Washington “before obtaining a promise of employment …
would be a major burden.” If the AO had reviewed her
application, then it might have offered her a job, which might
have prompted her to move to the Washington area. Thus,
Pollack might have been marginally more likely to travel to
the Washington area but for the geographical limitation she is
challenging. This effect upon Pollack’s willingness to travel,
i.e., to exercise her right to travel, is “negligible” and does not
warrant scrutiny under the Constitution. Kansas v. United
States, 16 F.3d at 442. In the cited case we rejected a
challenge to a federal law that prohibited certain interstate
flights from landing at Love Field in Dallas instead of the
nearby Dallas-Fort Worth International Airport. The
plaintiffs argued the law deterred interstate travel because
some travelers preferred flights that landed at Love Field. We
observed that there might be some “putative Dallas
passengers who forego interstate air travel” because they find
it more “burdensome” to arrive at Dallas-Fort Worth
International than at Love Field, but we concluded the
interference with the right to travel was “trivial.” Id. A law
does not “actually deter” travel merely because it makes it
somewhat less attractive for a person to travel interstate. See
Town of Southold v. Town of East Hampton, 477 F.3d 38, 54
(2d Cir. 2007) (“[M]inor restrictions on travel simply do not
18
amount to the denial of a fundamental right” (quotation marks
omitted)); Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.
1999); Cramer, 931 F.2d at 1031.
Second, Pollack contends the AO’s geographical
limitation on hiring creates a “classification which serves to
penalize the exercise of th[e] right” to travel. Soto-Lopez, 476
U.S. at 903. This is obviously not true. The geographical
limitation creates a classification that benefits individuals who
live in the Washington metropolitan area by allowing them to
apply for jobs that are not open to people who reside in other
states. That is not a distinction that implicates the right to
travel because it does not “penalize the exercise of that right.”
Id. Many of the cases that examine whether a state law
penalizes the exercise of the right to travel involve a challenge
to a durational residence requirement that provides a person
must live in a state for a particular period of time before being
eligible to receive a certain benefit from the state. In Shapiro,
for example, the Court invalidated laws adopted by several
states that required an individual to live in the state for at least
one year before receiving welfare benefits. 394 U.S. at 627.
The Court has also held unconstitutional laws requiring a
person to live in a state for at least one year before registering
to vote, Dunn v. Blumstein, 405 U.S. 330, 334–43 (1972), and
before receiving free nonemergency medical care, Memorial
Hospital v. Maricopa Cnty., 415 U.S. 238, 254–62 (1974).
Although a durational residence requirement does not directly
regulate travel, it does penalize the exercise of that right by
prohibiting a person who has recently traveled to the state
from receiving a benefit available to a longer-term resident of
that state.
The AO’s geographical limitation is quite different,
however, because it would not penalize Pollack if she decided
to travel from Kentucky to the Washington area. To the
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contrary, the geographical limitation gives Pollack an
incentive to travel to Washington in order to apply for a job
with the AO that is open only to residents of the area. In
other words, the geographical limitation burdens only
Pollack’s decision not to travel interstate.
The Ninth Circuit addressed a similar scenario in Matsuo
v. United States, 586 F.3d 1180 (2009). There, the plaintiffs
— individuals who worked for the federal government in
Alaska and Hawaii — challenged a law providing that only
employees of the federal government who work in the
contiguous 48 states were entitled to “locality pay,” an
increase based upon the local cost of living. They argued the
law violated their right to travel because, unlike their
colleagues in the other 48 states, they did not receive locality
pay. The court concluded the statute “imposes no travel
penalty on them; if anything, it imposes a penalty for staying
put. In fact, the [statute] encourages these employees to travel
by providing superior pay in the 48 contiguous states.” Id. at
1183. For the same reason, we think the AO’s geographical
limitation does not “penalize the exercise” of Pollack’s right
to travel interstate. Soto-Lopez, 476 U.S. at 903. ∗∗
We conclude the geographical limitation does not
implicate the component of Pollack’s right to travel that is
∗∗
Pollack does not argue the geographical limitation denies equal
protection to a Washington area resident, who would be precluded
from applying for a job with the AO if she decided to leave the
area. Nor would Pollack have standing to raise that argument on
behalf of a person who lives in the Washington area. We therefore
need not consider the extent to which a federal law may create a
classification that discourages a plaintiff from relocating to a state
where she will receive a less generous benefit. See, e.g., Torres,
435 U.S. at 1–4; Matsuo, 586 F.3d at 1183–85; Minn. Senior Fed’n
v. United States, 273 F.3d 805, 807–10 (8th Cir. 2001).
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protected by the equal protection principle of the Due Process
Clause of the Fifth Amendment. We therefore need not
consider the parties’ arguments regarding the level of scrutiny
applicable to the classification created by the geographical
limitation or whether there is a rational basis for the AO’s
decision to impose the geographical limitation.
3. Structure of the Constitution
Finally, Pollack argues the AO’s geographical limitation
is inconsistent with the structure of the Constitution,
particularly as it is described in Crandall v. Nevada, 73 U.S.
35 (1867). There, the Court declared unconstitutional a law
enacted by Nevada that imposed a tax of one dollar upon
every person leaving the state. Instead of relying upon a
specific provision of the Constitution, the Court declared the
tax incompatible with the principles underlying the
Constitution generally. Id. at 43–44. The Court recognized
both the right of the federal government to call upon its
citizens to travel from one state to another and the correlative
right of a citizen to travel interstate of her own accord.
Pollack contends the Court expressly recognized the right she
seeks to vindicate here in stating that a citizen “has the right
to come to the seat of government … to share its offices, to
engage in administering its functions.” Id. at 44.
Pollack’s reliance upon Crandall is misplaced. The
Court there was concerned with a law that “actually deterred”
interstate travel by taxing it. Soto-Lopez, 476 U.S. at 903; see
Kansas v. United States, 16 F.3d at 441 (describing Crandall
as a case where a law “directly burden[s] interstate travel”).
As we have discussed, the AO’s geographical limitation did
not “actually deter” Pollack from traveling interstate; it
provided an incentive to do so. In any event, Crandall does
not hold every law that indirectly burdens interstate travel or
21
makes it marginally less likely a person will travel interstate
implicates the Constitution. Indeed not even every tax on
interstate travel violates the Constitution. See Evansville-
Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405
U.S. 707, 712 (holding Crandall does not prevent a state from
imposing upon commercial airline passengers a fee to fund
airport construction and maintenance).
Nor is there any support for Pollack’s broader contention
that the AO’s geographical limitation is incompatible with the
right to travel embedded in the structure of the Constitution.
A law that “directly impair[s] the exercise of the right to free
interstate movement” — such as the tax at issue in Crandall
— may be deemed incompatible with the framework of the
Constitution. Saenz, 526 U.S. at 501 (“The right of free
ingress and regress to and from neighboring States, which was
expressly mentioned in the text of the Articles of
Confederation, may simply have been conceived from the
beginning to be a necessary concomitant of the stronger
Union the Constitution created” (internal quotation marks and
footnote omitted)). In Saenz the Court invalidated a
durational residence requirement enacted by California that
discouraged people from relocating to that state in order to
receive welfare benefits. The Court nevertheless agreed with
the state that its law did not impinge upon the component of
the right to travel protected by the structure of the
Constitution because it “imposed no obstacle to … entry into
California” and therefore did “not directly impair the exercise
of the right to free interstate movement.” Id. Just so here:
The AO’s geographical limitation does not “directly impair”
Pollack’s “right to go from one place to another” or “to cross
state borders while en route.” Id. at 500. We therefore
conclude the AO’s policy of limiting its applicant pool to
residents of a particular area is not inconsistent with the
structure of the Constitution.
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C. Request for discovery
Pollack also argues the district court erred by entering
summary judgment for the defendants without first directing
them to respond to her requests for discovery. Pollack sought
to discover, among other things, the AO’s reasons for using
the geographical limitation, how often it uses the limitation,
the cost of reviewing applications, and whether it is more
expensive to review an application submitted by a person who
does not reside in the Washington area.
A party seeking discovery under FED. R. CIV. P. 56(d) has
“the burden to state with sufficient particularity to the district
court — or, for that matter, to this court — why discovery
was necessary.” Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045
(D.C. Cir. 2008) (internal quotation marks omitted). To carry
this burden, he must “outline the particular facts he intends to
discover and describe why those facts are necessary to the
litigation.” Convertino v. Dep’t of Justice, 684 F.3d 93, 99
(D.C. Cir. 2012). We review for an abuse of discretion a
district court’s decision to deny a motion for discovery. Id.The district court did not abuse its discretion by denying
Pollack’s motion because she has not shown why the facts she
intended to discover “are necessary to the litigation.” Id.Pollack sought to discover facts showing whether it would be
more burdensome for the AO to consider applicants from
every state than to limit its applicant pool to residents of the
Washington metropolitan area. Those facts might be
necessary if the court were required to determine whether the
geographical limitation is “closely related to the advancement
of a substantial [government] interest” under the Privileges
and Immunities Clause of Article IV, Friedman, 487 U.S. at
65, or whether it would survive scrutiny under the equal
protection component of the Due Process Clause. As we have
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explained, however, there was no need for the district court to
reach those issues because the AO’s geographical limitation
does not implicate Pollack’s right to travel under either
clause. Because this case turns upon pure questions of law,
the facts identified in Pollack’s request for discovery are not
necessary to the litigation.
III. Conclusion
We agree with Pollack that it is difficult to comprehend
why the AO refused to consider applicants who did not live in
the Washington area but were willing to move there if they
received an offer of employment. The AO points out that it
receives applications from many qualified attorneys and it
must limit the total number of applicants for certain positions
so that it may focus upon those it is most interested in hiring.
It is unclear, however, why the agency would use a
geographical limitation to control the size of its applicant pool
rather than criteria that are likely to be more closely correlated
with job performance.
Be that as it may, we hold the AO’s decision to limit its
applicant pool to employees of the federal judiciary and
individuals who lived in the Washington metropolitan area
did not violate Pollack’s right to travel, whether that right is
considered under the Privileges and Immunities Clause of
Article IV, the equal protection component of the Due Process
Clause of the Fifth Amendment, or the essential structure of
the Constitution. We further conclude the district court did
not abuse its discretion by denying Pollack’s request for
discovery before entering summary judgment for the
defendants. The judgment of the district court is, therefore,
Affirmed.