Malla Pollack v. Thomas Hogan
703 F.3d 117
D.C. Cir.2012Background
- Pollack, a Kentucky resident and attorney, applied online in April 2009 for an Attorney-Advisor job at the AO.
- The AO limited consideration to applicants living or working in the Washington, DC metropolitan area.
- In January 2010 Pollack received a rejection for not meeting the geographic requirement.
- Pollack argued the geographic limitation violated the Constitution; the AO responded with non-discriminatory and non-constitutional remediation steps.
- Pollack exhausted administrative remedies and filed suit seeking injunctive and declaratory relief against AO officials in their official capacities; district court dismissed for lack of subject matter jurisdiction under sovereign immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Larson–Dugan allows suit against AO officials despite sovereign immunity. | Pollack argues the exception applies to constitutional claims. | AO contends the exception is limited to beyond statutory authority. | Yes; Larson–Dugan applies and sovereign immunity does not bar this suit. |
| Whether Pollack states a viable constitutional claim (travel right) against the AO. | Pollack asserts a constitutional right to travel enforceable against the federal government. | AO argues there is no viable constitutional right at issue or it's not actionable here. | viability of the constitutional claim is a merits question to be addressed on remand. |
| Whether the district court properly dismissed for lack of subject-matter jurisdiction. | Pollack contends jurisdiction exists under Larson–Dugan. | AO maintains sovereign immunity bars the action and alternative preclusions apply. | Court reverses and remands; jurisdiction and merits to be considered on remand. |
Key Cases Cited
- Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (Supreme Court 1949) (establishes Larson–Dugan exception to sovereign immunity for unconstitutional acts or beyond authority)
- Dugan v. Rank, 372 U.S. 609 (Supreme Court 1963) (recognizes exceptions to immunity for unconstitutional actions within official powers)
- Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (sovereign immunity does not bar suits alleging unconstitutional or ultra vires officer actions)
- Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984) (sovereign immunity does not bar suits for specific relief against officials when actions are unconstitutional or beyond statutory authority)
- Bell v. Hood, 327 U.S. 678 (Supreme Court 1946) (dismissal for lack of jurisdiction may be warranted where claims are frivolous or insubstantial)