Pollack v. Duff

• Decision Date: 07 July 2015
• Docket Number: No. 13–5263.,13–5263.
• Citation: 793 F.3d 34
• Parties: Malla POLLACK, Appellant v. James C. DUFF, Director of the Administrative Office of the United States Courts-in his Official Capacity, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

793 F.3d 34

Malla POLLACK, Appellant

v.James C. DUFF, Director of the Administrative Office of the United States Courts-in his Official Capacity, et al., Appellees.

No. 13–5263.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 9, 2015.

Decided July 7, 2015.

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.

Opinion

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 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 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, 69 S.Ct. 1457, 93 L.Ed. 1628 (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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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 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 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, 119 S.Ct. 1518, 143 L.Ed.2d 689 (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.

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, 68 S.Ct. 1156, 92 L.Ed. 1460 (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, 68 S.Ct. 1156....