Pollack v. Duff
806 F. Supp. 2d 99
D.D.C.2011Background
- Pollack applied for AO Attorney-Advisor position with area of consideration limited to the Washington Metropolitan Area.
- She received an automated rejection stating her application did not reflect residence within the announced area.
- Pollack contacted AO HR staff and learned geographic restrictions were standard practice; challenged the practice to Cheri Reid.
- Pollack submitted written complaints alleging unconstitutional employment discrimination; AO officials responded by citing FEPS and the AO’s regulatory framework.
- The AO operates under the CPA and FEPS as the exclusive remedial scheme for discrimination claims; Pollack sued in her official capacity under sovereign immunity.
- The court granted the government’s motion to dismiss for lack of subject-matter jurisdiction on sovereign-immunity grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the suit. | Pollack argues constitutional rights negate sovereign immunity. | Duff and AO officials argue no waiver of sovereign immunity exists here. | Yes; sovereign immunity bars the suit. |
| Whether FEPS provides the exclusive remedy and forecloses other claims. | Pollack contends FEPS does not preclude constitutional claims. | Defendants contend FEPS is the exclusive remedial scheme for AO personnel actions and discrimination claims. | FEPS provides the exclusive remedy; claims here are precluded. |
| Whether the AO’s geographic-area limitations exceed its statutory authority. | Pollack asserts geographic restrictions violate statutory/constitutional limits. | Duff argues geographic areas are within AO authority and not discriminatory within FEPS. | Restrictions fall within statutory authority and are not outside FEPS. |
| Whether 28 U.S.C. §§ 1331, 1332, 1343, and 2201 waive sovereign immunity. | Pollack relies on constitutional-right vindication to bypass immunity. | Defendants contend these statutes do not waive sovereign immunity. | No waiver of sovereign immunity; jurisdiction not established. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing and jurisdiction principles for federal cases)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (jurisdictional dismissal standard for Rule 12(b)(1))
- Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) (when officer acts beyond statutory powers, can be sued individually)
- Byrd v. Smith, 694 F. Supp. 1199 (D.D.C. 1986) (sovereign-immunity limitations and implied waivers)
- O'Brien v. Office of Personnel Management, 118 F. App'x 484 (Fed. Cir. 2004) (agency-area of consideration and statutory authority matters)
- Hollingsworth v. Duff, 444 F. Supp. 2d 61 (D.D.C. 2006) (FEPS as exclusive remedial scheme for AO discrimination claims)