Malla Pollack v. James C. Duff
793 F.3d 34
D.C. Cir.2015Background
- Pollack, a Kentucky resident, applied for an attorney-advisor job with the AO in Washington, D.C., where the vacancy limited consideration to AO employees or residents of the Washington metropolitan area.
- Pollack was rejected because she neither resided in nor worked within the announced area of consideration.
- Pollack sued three AO officials in their official capacities claiming a right to travel violation; the district court dismissed, citing sovereign immunity.
- This Court previously reversed and remanded, holding suits against high-ranking officers challenging authority are not barred by sovereign immunity, but did not address FEPS or merits.
- On remand, the district court denied discovery and granted summary judgment for the AO, concluding the geographic limitation did not violate the right to travel.
- This court now affirms, holding the AO’s geographic limitation does not violate Pollack’s right to travel under Privileges and Immunities Clause, equal protection, or constitutional structure, and that discovery denial was not an abuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review | Pollack contends FEPS precludes judicial review. | AO argues FEPS bars review of the claim not subject to FEPS. | Court has jurisdiction; FEPS does not bar review. |
| Whether AO's geographic limitation violates Pollack's right to travel | Right to travel includes nonresident eligibility concerns under the Privileges and Immunities Clause and equal protection. | Limitation does not burden travel and is not unconstitutional. | AO's limitation does not violate travel rights under any theory. |
| Whether the equal protection theory applies to federal action | Geographic restriction penalizes Pollack’s travel rights. | Restriction not a travel penalty; no invalid classification. | No equal protection violation; travel right not implicated. |
| Whether the structure argument invalidates the policy | Crandall structure critique shows incompatibility with constitutional framework. | Crandall does not render such policies unconstitutional. | Policy not inconsistent with constitutional structure. |
| Whether district court abused discretion denying discovery | Discovery could reveal cost and rationale for restriction. | Facts sought are unnecessary to legal questions here. | No abuse; discovery denial affirmed. |
Key Cases Cited
- Saenz v. Roe, 526 U.S. 489 (1999) (recognizes multiple travel-right components under different constitutional provisions)
- Toomer v. Witsell, 334 U.S. 385 (1948) (privileges and immunities two-step framework for residency classifications)
- Friedman, 487 U.S. 59 (1988) (privileges and immunities test requires substantial justification for nonresidents)
- Soto-Lopez, 476 U.S. 898 (1986) (travel-right implications of classifications and penalties)
- Shapiro v. Thompson, 394 U.S. 618 (1969) (right to travel applied to welfare eligibility and residency burdens)
- Matsuo v. United States, 586 F.3d 1180 (9th Cir. 2009) (locality pay case illustrating incentives, not penalties, on travel)
- Crandall v. Nevada, 73 U.S. 35 (1867) (structural considerations of interstate travel; distinguish direct burdens from indirect ones)
- Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007) (minor travel restrictions not tantamount to denial of fundamental right)