Pollack v. Duff, 958 F. Supp. 2d 280

Background

Plaintiff Malla Pollack, a Kentucky resident, applied for an AO attorney vacancy (announcement 10-OFS-300782) but was deemed ineligible because the posting limited non‑judiciary applicants to the Washington, D.C. metropolitan area.
The AO’s Merit Recruitment Plan permits selecting officials to define a geographic “area of consideration” to limit applicant pools; current judiciary employees nationwide remained eligible for the position.
Pollack sued alleging the geographic limitation violated her constitutional right to travel, the Article IV Privileges and Immunities Clause, the Fifth and Fourteenth Amendments, and broader constitutional structure.
Defendants moved to dismiss (sovereign immunity and other jurisdictional defenses) and alternatively for judgment on the merits; the D.C. Circuit held AO was not immune and remanded for disposition on the merits.
The district court concluded the AO’s geographic limitation did not implicate or penalize the right to travel and upheld the limitation under rational‑basis review, granting summary judgment for defendants.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the AO’s geographic limitation violated the constitutional right to travel	Pollack: the right to travel includes equal consideration for federal employment in locales to which she wishes to relocate	AO: the rule does not deter, burden, or penalize travel and is a personnel-management tool to limit applicant volume	Court: limitation did not implicate the right to travel; no deterrence or penalty; rational‑basis review applies
Whether the Article IV Privileges and Immunities Clause applies and was violated	Pollack: clause protects rights to come to the seat of government and to seek federal employment	AO: clause constrains states, not the federal government; even if applicable, the job posting does not implicate protected privileges	Court: clause applies to states only; even if applied, the claimed right (pre‑move consideration for a particular job) is not an Article IV privilege
Whether the AO’s practice violated Equal Protection (Fifth/Fourteenth Amendments) by burdening a fundamental right	Pollack: right to travel is fundamental → strict scrutiny required	AO: classification does not actually burden travel; rational‑basis review is appropriate and justified by administrative efficiency	Court: right to travel not actually implicated (no deterrence/penalty); rational basis review governs and is satisfied by legitimate interest in limiting applicant pool
Whether FEPS/AO Personnel Act precludes judicial review of constitutional claims	Pollack: Congress must clearly preclude review; no clear bar here	AO: FEPS and §3(g) suggest FEPS is the exclusive remedy for employment complaints	Court: did not definitively resolve exclusivity; concluded FEPS likely inapplicable because plaintiff alleges residency‑based travel claim, and resolved case on merits instead

Key Cases Cited

Saenz v. Roe, 526 U.S. 489 (right to travel comprises three components; struck down residency‑based welfare differential)
McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645 (upheld bona fide residency requirements for municipal employees)
Shapiro v. Thompson, 394 U.S. 618 (strict scrutiny for laws that penalize or deter interstate travel)
Dunn v. Blumstein, 405 U.S. 330 (residency durational requirements and fundamental right to vote/travel)
Hicklin v. Orbeck, 437 U.S. 518 (struck down state preference for in‑state workers under Article IV Privileges and Immunities)
Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (Privileges and Immunities Clause protects rights essential to national unity)
United States v. Guest, 383 U.S. 745 (discussion of right to come to seat of government and interstate travel)
Crandall v. State of Nevada, 73 U.S. 35 (early recognition that taxing or impeding passage between states violates travel rights)