Kelly v. Nordberg

• Decision Date: 07 April 1994
• Docket Number: Civ. A. No. 92-11574-WGY.
• Citation: 848 F. Supp. 284
• Parties: Danny M. KELLY, Plaintiff, v. Nils L. NORDBERG, Commissioner of the Department of Employment and Training for the Commonwealth of Massachusetts, Defendant.
• Court: U.S. District Court — District of Massachusetts

848 F. Supp. 284

Danny M. KELLY, Plaintiff, v. Nils L. NORDBERG, Commissioner of the Department of Employment and Training for the Commonwealth of Massachusetts, Defendant.

Civ. A. No. 92-11574-WGY.

United States District Court, D. Massachusetts.

April 7, 1994.

Danny M. Kelly, pro se.

Steven K. Berenson, Office of Atty. Gen., Daniel W. Halston, Daniel W. Halston, Atty. General's Office, Government Bureau, Thomas M. Alpert, Office of Atty. Gen., Public Protection Bureau, Rosemary S. Gale, Asst. Atty. Gen., Crim. Bureau, Boston, MA, for Nils L. Nordberg.

MEMORANDUM AND ORDER

YOUNG, District Judge.

Daniel M. Kelly, pro se, brings this action against Nils L. Nordberg, the Commissioner of the Massachusetts Department of Employment and Training ("the Department"), alleging that the Department's policy requiring a recipient of unemployment benefits either be actively looking for work or remain in the area¹ violated his constitutional right to interstate travel.

The following facts are undisputed. On December 23, 1991, Mr. Kelly travelled to Chicago where he stayed until January 5, 1992 visiting family and friends. Mr. Kelly also attended a job interview on January 2, 1992. His application for unemployment benefits for that two-week period was denied because the Department determined that Mr. Kelly failed to meet the "available for work" requirement of Mass.Gen.L. ch. 151A, § 24(b) explicated in sections 1032(C) and (D) of the Service Representatives Handbook.

At a December 11, 1992 oral hearing, this Court, in a genuine but misguided attempt to resolve the matter, talked Department counsel into considering a further hearing on Mr. Kelly's claim, and dismissed his action for failure to exhaust administrative remedies. The Court of Appeals for the First Circuit vacated the dismissal, holding that Mr. Kelly had pled a cause of action under 42 U.S.C. § 1983, an action which does not require the exhaustion of administrative remedies. Kelly v. Nordberg, 1 F.3d 1231 (1st Cir.1993).

Back here once more, both parties filed cross motions for summary judgment. During an oral hearing on March 10, 1994, Mr. Kelly reaffirmed his claim for declaratory relief, but conceded that the Eleventh Amendment bars his claim for damages.

Although Mr. Kelly advances no supporting affidavits or memoranda, the following possible arguments arise from the record before the court: (1) by requiring Mr. Kelly to stay in the area and not travel, the Department is unconstitutionally burdening his right to travel; (2) by discontinuing Mr. Kelly's benefits during periods when he visits family and friends who live outside Massachusetts, while continuing to pay persons who visit family and friends living within the state, the Department impermissibly classifies Mr. Kelly; and (3) by enforcing the "no travel" policy, the Department is interfering with Kelly's right to relocate to Chicago.

Mr. Kelly first argues that he should be free to travel at will and still be considered "available for work." He contends that, in the age of information, with faxes, E-mail, modems, and the like, even when he is out of the area he is still "available for work" in every practical sense. This "modern world" argument goes to the wisdom of the Department's interpretation of a law of the Commonwealth. It is, therefore, more properly addressed to the Massachusetts legislature, as it raises policy issues beyond this Court's subject matter jurisdiction.² 28 U.S.C. § 1331.

Turning to the United States Constitution, the Court concludes the Mr. Kelly's first contention misconstrues the nature of the constitutional right to travel. While it is true that courts have long recognized citizens' right to travel between the several states, Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306 (1974); Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S.Ct. 1322, 1328-30, 22 L.Ed.2d 600 (1969); Cole v. Housing Auth. of Newport, 435 F.2d 807, 809 (1st Cir.1970), "both the nature and the source of that right have remained obscure." Zobel v. Williams, 457 U.S. 55, 60 n. 6, 102 S.Ct. 2309, 2312-13, 72 L.Ed.2d 672 (1982) (citations omitted). In general, it may be said that the constitutional right to travel implicates a person's ability to relocate or migrate from one state to another. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902-03, 106 S.Ct. 2317, 2320-21, 90 L.Ed.2d 899 (1986); Cole, 435 F.2d at 811; Strong v. Collatos, 450 F.Supp. 1356, 1360 (D.Mass.1978), aff'd, 593 F.2d 420 (1st Cir.1979). The constitutional right to travel, however, has not yet been extended by the Supreme Court to guarantee a person's right to go on a trip free of any state-imposed consequences on the person's right to state-created unemployment benefits. This Court declines to read such a right into the Constitution.

Mr. Kelly's second argument — that the Department's policy penalizes his out-of-state travel, yet allows others to travel instate—more closely fits the equal protection type of analysis under which the right to travel has often been interpreted. The match, however, is by no means perfect. Equal protection analysis of the right to travel generally concerns residency requirements. See, e.g., Hooper v. Bernalillo County Assessor, 472 U.S. 612, 622-23, 105 S.Ct. 2862, 2868-69, 86 L.Ed.2d 487 (1985) (preferential treatment of Vietnam veterans who resided in-state before a date certain); Zobel v. Williams, 457 U.S. at 65, 102 S.Ct. at 2315 (preferential treatment of long-time residents in receipt of dividends); Memorial Hosp. v. Maricopa...