Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
MALLA POLLACK, )
)
Plaintiff, )
) v. ) Civil Action No. 10-0866 (ABJ) )
JAMES C. DUFF, )
Director of the Administrative Office of )
the United States Courts, et al ., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Malla Pollack, a resident of Kentucky, was deemed ineligible to apply for a position at the Administrative Office of the United States Courts (“AO”) because the job vacancy announcement was restricted to current AO employees and residents of the District of Columbia metropolitan area. Compl. ¶¶ 4, 13, 16 [Dkt. # 1]. She has filed this action against the AO claiming that the geographical limitation on the pool of applicants violated her constitutional right to travel, the Privileges and Immunities Clause in Article IV, the Fifth Amendment, the Fourteenth Amendment, and “the structure and purpose of the Constitution as a whole.” ¶¶ 1, 11–13.
Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative for summary judgment, on November 1, 2011. Defs.’ Mot. to Dismiss [Dkt. # 9] (“Defs.’ Mot.”); Mem. of P. & A. [Dkt. # 9] (“Defs.’ Mem.”). On August 24, 2011, the Court granted defendants’ motion to dismiss for lack of subject matter jurisdiction, on the grounds that the government had not waived its sovereign immunity from *2 suit. Mem. Op. [Dkt. # 18]. In light of its ruling, the Court did not go on to address the merits of the dispute, and it did not reach defendants’ alternative jurisdictional argument.
Plaintiff appealed the dismissal of her case. Notice of Appeal [Dkt. # 19]. The U.S. Court of Appeals for the District of Columbia Circuit ruled that the AO was not immune, and it remanded the case for further proceedings. Mandate and Judgment [Dkt. # 22]. Since the motion to dismiss was fully briefed by the parties, [1] that motion is now ripe for decision. The Court finds that the AO’s decision to limit the geographic area of cоnsideration for certain of its job vacancies did not offend the Constitution. The AO’s action did not prevent, deter, impede, burden, or penalize travel by the plaintiff to or from Kentucky, the District of Columbia, or anywhere else.
BACKGROUND
Plaintiff Malla Pollack, an attorney who lives in Kentucky, applied for a job as an attorney with the AO. Compl. ¶¶ 4, 11. The job announcement at issue, number 10-OFS- 300782, was open to the following applicants: “Judiciary wide and All Sources – Washington Metropolitan Area.” Id. ¶¶ 10–12. This meant that the AO would consider current judiciary employees regardless of their location, and it would consider non-judiciary employees not claiming a preference entitlement located in the Washington, D.C. metroрolitan area. ¶¶ 11, 12, 16. Pollack applied for the position as a non-judiciary employee, and the AO rejected the application because she does not reside within the Washington metropolitan area. Id. ¶¶ 11, 13. Pollack sued, claiming that the AO’s limitation of the applicant pool to a geographic area 1 See Defs.’ Mot. and Defs.’ Mem.; Pl.’s Opp. to Defs.’ Mot. to Dismiss & Pl.’s Cross Mot. for an Order Requiring Resp. to Pl.’s Disc. Reqs. [Dkt. # 10] (“Pl.’s Opp.”); Consolidated Reply in Supp. of Defs.’ Mot. to Dismiss and Opp. to Pl.’s Cross Mot. for a Disc. Order [Dkt. # 13] (“Defs.’ Reply”); Pl.’s Reply in Supp. of Pl.’s Cross Mot. for an Order Requiring Resp. to Pl.’s Disc. Reqs. and (If the Ct. So Orders) Sur-Reply to Defs.’ Mot. to Dismiss [Dkt. # 16]. *3 violated her constitutional right to travel. ¶ 1. Aside from claiming sovereign immunity, defendants moved to dismiss for failure to state a claim, or in the alternative for summary judgment, because the geographic limitation in the AO’s job announcement does not violate the Constitution. Defs.’ Mem. at 16–23.
STANDARD OF REVIEW
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court
must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit
of all inferences that can be derived from the facts alleged.’”
Sparrow v. United Air Lines,
Inc.
,
I. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence.
See Lujan v. Defenders of Wildlife
, 504 U.S. 555, 561
(1992);
Shekoyan v. Sibley Int’l Corp.
,
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding
a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the
complaint.”
Hohri v. United States
, 782 F.2d 227, 241 (D.C. Cir. 1986),
vacated on other
grounds
, 482 U.S. 64 (1987). Rather, a court “may consider such materials outside the
pleadings as it deems approрriate to resolve the question whether it has jurisdiction to
hear the case.”
Scolaro v. D.C. Bd. of Elections & Ethics
, 104 F. Supp. 2d 18, 22 (D.D.C.
2000), citing
Herbert v. Nat’l Acad. of Sciences
,
II. Failure to State a Claim
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal
, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
see also Bell
Atl. Corp. v. Twombly
, 550 U.S. 544, 570 (2007). A claim is facially plausible when the
pleaded factual content “allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal
,
III. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex
Corp. v. Catrett
, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.”
Id.
at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc.
, 477 U.S.
242, 247–48 (1986). A disputе is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. at 248;
Laningham v. U.S. Navy
, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the summary judgment motion.’”
Scott v. Harris
, 550
U.S. 372, 378 (2007) (alterations omitted), quoting
United States v. Diebold, Inc.
,
ANALYSIS
I. The AO Personnel Act
The Administrative Office of the United States Courts Personnel Act of 1990 (“AO
Personnel Act”) governs employment matters within the federal judiciary and authorizes the
judiciary to manage its own personnel matters.
In re Golinski
,
Section 3(a)(7) of the AO Personnel Act requires the judiciary’s personnel management system to “include the principles set forth in section 2301(b) of title 5, United States Code.” That provision requires that:
[r]ecruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
5 U.S.C. § 2301(b)(1) (2012).
The AO implemented this requirement through its Merit Recruitment Plan. Decl. of Cheri Thompson Reid [Dkt. # 9-1] (“Reid Decl.”), Ex. 1 to Defs.’ Mot. ¶ 5. The Merit Recruitment Plan gives an AO official who has a vacancy to fill discretion to define the *7 geographic “area of consideration” from which the AO will accept candidates. Id. Specifically, Section E of the Merit Recruitment Plan states that the “area of consideration must be large enough to attract a reasonable number of qualified candidates to provide fair and open competition for the position. . . . The minimum area of consideration is AO permanent status employees within a geographic location.” Id., quoting Human Resources Manual, Chap. II, Subch. D, Sec. E. According to the AO, a selecting official may choose to limit an area of consideration for a particular vacancy because “the larger the applicant pool the greater the expenditure of resources may be” and a smaller area of consideration “will attract a reasonable number of qualified candidates to provide fair and open competition for the position.” Id.
The AO Personnel Act also governs employment complaints by judiciary employees and applicants. It provides that the AO’s personnel system must “prohibit discrimination on the basis of race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition.” AO Personnel Act § 3(a)(9). It also requires the AO to establish regulations that provide procedures for resolving discrimination complaints by employees and applicants. Id. Section 3(g) of the Act states:
Nothing in this Act shall be construed to abolish or diminish any right or remedy granted to employees in the Administrative Office by any law prohibiting discrimination in Federal employment on the basis of race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition, except that, with respect to any such employees and applicants for employment, any authority granted under any such law to the Equal Employment Opportunity Commission, the Office of Personnel Management, the Merit Systems Protection Board, or any other agency in the executive branch, shall be exercised by the Administrative Office. § 3(g).
In response to this requirement, the AO created the Fair Employment Practices System (“FEPS”), which provides for “the prompt, fair, and impartial resolution of allegations of discrimination” by AO emplоyees and applicants. See Administrative Office of the United States Courts, 2 AO Manual § 120.20 [Dkt. # 9-2], Ex. 2 to Defs.’ Mot. FEPS requires the AO to establish a personnel system prohibiting discrimination of the basis of “race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition,” including providing for the “prompt, fair, and impartial resolution of allegations of discrimination.” §§ 120.10 (Purpose), 120.20 (Scope).
II. Judicial Review
Before addressing the merits of Pollack’s constitutional claim, the Court notes that its
ruling of August 24, 2011 “rested solely on the ground that the defendants have sovereign
immunity,” but that on appeal, defendants urged the appeals court to rule “on the alternative
ground that the [AO Personnel Act] evidences a сlear congressional intention to preclude judicial
review” of Pollack’s claims.
Pollack v. Hogan
, 703 F.3d 117, 121 (D.C. Cir. 2012).
Defendants’ motion to dismiss for lack of jurisdiction did not address this argument at length, but
it did assert that FEPS is the sole source of any remedy available to plaintiff. Defs.’ Mem. at 16.
In her opposition, plaintiff responded that Congress must use clear statutory language if it seeks
to bar judicial review of a constitutional claim, and that there is no statement of Congressional
intent to do so in this instance. Pl.’s Opp. at 5 & n.2, quoting
Webster v. Doe
,
The AO Personnel Act prohibits “discrimination on the basis of race, color, religion, age, sex, national origin, politiсal affiliation, marital status, or handicapping condition.” AO *9 Personnel Act § 3(a)(9). FEPS is the AO’s procedural mechanism for resolving complaints alleging those sorts of discrimination. Ex. 2 to Defs.’ Mot. § 120.10. Defendants argue that Section 3(g) of the Act reflects that Congress intended FEPS to be the exclusive resolution procedure for discrimination claims by AO employees and applicants. Defs.’ Mem. at 4–5, quoting AO Personnel Act § 3(g) (granting the AO authority to exercise authority “granted under any such law to the Equal Employment Opportunity Commission, the Office of Personnel Management, the Merit Systems Protection Board, or any other agency in the executive branch” to address discrimination claims as set forth in the statute). Defendants also argue that the fact a complaining employee or applicant does not have the right to appeal a final decision by the AO under FEPS supports their position that Pollack cannot sue. Defs.’ Mem. at 6 n.5, quoting Ex. 2 to Defs.’ Mot., § 120.100(1)(b).
But Pollack is not protesting the sort of discrimination covered by the statute. She does not claim discrimination “on the basis of race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition.” AO Personnel Act § 3(a)(9). Rather, she claims the AO discriminated against her as a resident of Kentucky and, in doing so, violated her constitutional right to travel. Thus, it does not appear that Section 3(g) and FEPS apply in this case. The Court need not resolve this issue, however, because it ultimately concludes that the AO’s geographic limitation in job announcement number 10-OFS-300782 does not violate Pollack’s constitutional right to travel.
III. The AO Does Not Violate Pollack’s Constitutional Right to Travel by Limiting the Area of Consideration
Pollack contends that by limiting the area of consideration for the disputed job announcement to the Washington, D.C. metropolitan area, the AO violated a constitutional right to travel that is embodied in the Privileges and Immunities Clause of Article IV, the Fifth *10 Amendment, the Fourteenth Amendment, and/or “the structure and purpose of the Constitution as a whole.” Compl. ¶ 1. She explains that the complaint “mentions” all of those provisions becаuse “the United States Supreme Court has repeatedly shifted its analysis of the constitutional right to travel,” and she does not “wish to plead herself out of court by unnecessarily tying her complaint to any one element of the Constitution.” Pl.’s Opp. at 9.
There is no dispute that the right to travel is a “virtually unconditional personal right,
guaranteed by the Constitution to us all.”
Saenz v. Roe
, 526 U.S. 489, 498 (1999) (internal
citations and quotation marks omitted);
see also
Defs.’ Mem. at 16; Pl.’s Opp. at 8. The
Supreme Court has addressed the right to travel in various contexts over nearly 150 years of
jurisprudence.
See, e.g., Crandall v. State of Nev.
, 73 U.S. (6 Wall.) 35 (1867) (holding
unconstitutional a state tax on persons leaving or passing through Nevada);
United States v.
Guest
, 383 U.S. 745 (1966) (holding that the district court erred in dismissing part of an
indictment concerning a private conspiracy to prevent African-American citizens from using
state highways);
Shapiro v. Thompson
, 394 U.S. 618 (1969),
overruled on other grounds by Edelman v. Jordan
, 415 U.S. 651 (1974) (striking down as unconstitutional state statutes that
denied any welfare assistance whatsoever to persons residing in the state for less than one year).
And, as plaintiff has indicated, the Court has relied on multiple provisions of the Constitution
when recognizing this fundamental right.
See Crandall
,
Most recently, the Supreme Court addressed the right to travel in
Saenz v. Roe
, 526 U.S.
at 498 (striking down a California statute that limited new residents’ welfare benefits to the
amount they would have received in the state of their prior residence). In
Saenz
, the Court held
that the constitutionally protected right to travel comprises at least three components: the right to
free interstate movement (i.e., the right to travel through a state), the right to travel to a state
intending to return home (i.e., the right to visit another state), and the right of a newly-arrived
citizen (i.e., the right to move to another state).
Saenz
,
So Saenz does not appear to apply, and plaintiff candidly acknowledges that she has found no case law addressing the right to travel in the factual context of this case. Pl.’s Opp. at 8. She argues nonetheless that the right to trаvel is “expansive” and includes “the right to be given equal consideration for possible employment by the federal government in localities to which she desires to relocate.” Id. at 9, 10. In making this argument, she encourages the Court to analyze her claim “pursuant to other constitutional-right-to-travel cases.” at 10.
It is true that in Saenz, the Supreme Court did not limit the components of the right to travel to the three examples it listed. But after reviewing the specific constitutional provisions and authorities that plaintiff cites, and considering the “structure and purpose of the constitution as a whole,” the Court finds that restricting the pool of applicants for a federal position to residents of nearby states does not violate any right found in the constitution.
A. Plaintiff Fails To State a Violation of the Article IV Privilege and Immunities Clause.
Article IV of the Constitution states that the “The Citizens of each State shall be entitled
to all Privileges and Immunities of Citizens in the several States.” U.S. Const. Art. IV, § 2, cl. 1.
Plaintiff claims that this clause protects the right she asserts here because “to come to the seat of
[the federal] government” is part of the fundamental right to travel protected by the clause. Pl.’s
Opp. at 11, citing
Slaughter House Cases
,
Plaintiff does not present authority to the contrary, but she maintains that she “reads the clear language of the Privileges and Immunities Clause of Article IV as applying to all government action – federal and state.” Pl.’s Opp. at 9 n.10. The Court holds that the Privileges and Immunities Clause of Article IV applies only to the states and does not apply to the federal government, so plaintiff has not stated a claim under that clause. But even if the clause did apply *13 to the federal government, the right that Pollack claims the AO violated is not a privilege or immunity protected by that clause.
The Supreme Court has explained that the privileges and immunities under Article IV
“are only such as arise out of the nature and essential character of the national government, or are
specifically granted or secured to all citizens or persons by the Constitution of the United States.”
Twining v. State of N.J.
, 211 U.S. 78, 97 (1908),
overruled on other grounds by Malloy v.
Hogan
,
Plaintiff claims the AO violated her right under the Article IV Privileges and Immunities
Clause to “become a citizen of any state of the Union by a bona fide residence therein, with the
same rights as other citizens of that State.” Pl.’s Opp. at 11, citing
The Slaughter House Cases
,
Pollack also claims the AO violated her right to “come to the seat of government.” Pl.’s
Opp. at 11, citing
Slaughter House
,
Moreover, although the Supreme Court has not addressed the question of whether the
federal government can impose a residency requirement for certain federal jobs, it has upheld
residency requirements imposed by state employers. In
McCarthy v. Phila. Civil Serv. Comm’n
,
*15
Further, this case is distinguishable from
Hicklin v. Orbeck
,
B. The AO’s Limited Area of Consideration Does Not Violate the Equal Protection Clause.
Pollack claims the AO’s area of consideration in its job announcement violates her right
to equal protection under the Fifth and Fourteenth Amendments of the Constitution. Compl. ¶ 1;
Pl.’s Opр. at 9–10. She asserts that the right to travel is a fundamental right requiring heightened
judicial scrutiny. 8. Defendants acknowledge that the Constitution’s guarantee of equal
protection binds the federal government. Defs.’ Mem. at 16, citing
Plyler v. Doe
,
The Equal Protection Clause of the Fourteenth Amendment states that, “No State
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.,
amend. XIV, § 1. In an equal protection challenge, courts apply strict scrutiny when the
challenged classification jeopardizes the exercise of a fundamental right or categorizes
individuals on the basis of an inherently suspect characteristic.
Banner v. United States
, 428
F.3d 303, 307 (D.C. Cir. 2005). But where a statutory classification neither proceeds along
suspect lines nor infringes fundamental constitutional rights, the provision must be upheld
*17
against an equal protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.
Hettinga v. United States
,
Here, Pollack contends that strict scrutiny must be applied not because the AO relied on a
suspect class in its job announcement, but because it violated a fundamental right. Pl.’s Opp. at
12. Although plaintiff is correct that the Supreme Court has applied strict scrutiny in analyzing
other right to travel cases,
see
, e.g.,
Shapiro
,
The Supreme Court has held that a state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses any classification that serves to penalize the exercise of that right. Attorney Gen. of N.Y. v. Soto-Lopez , 476 U.S. 898, 903 (1986). The AO’s geographic limitation in its job announcement does not actually deter travel. It does not impede or hinder anyone from making the trip to Washington; nor does it discourage visitors or new residents by suggesting that they would be unwelcome or subject to onerous requirements when they got here. Further, the limitation’s primary objective is not to impede travel but to reduce administrative costs in reviewing applications. Reid Decl. ¶ 5. Finally, the AO’s classification between residents of the Washington, D.C. area and non- residents of the area does not penalize Pollack for traveling. She is free to travel through, visit, or move to the Washington, D.C. area, and the job announcement did not apply different criteria to, or impose additional burdens on, new residents. Accordingly, the AO’s geographic limitation in its job announcemеnt does not implicate the fundamental right to travel.
Pollack argues that the AO’s limitation burdens her ability to become a D.C. resident based on her current state of residence. Pl.’s Opp. at 10, n.12. She cites Saenz v. Roe for the proposition that an individual’s prior state of residence has no relevance to a state’s ability to burden that individual’s right to travel. Id. But Pollack’s argument takes the right to travel considered in Saenz a step further than the Supreme Court recognized. There, the Court struck down a California statute that limited the welfare benefits of California residents who had lived in the state for less than a year to the welfare benefit amounts paid by the state of the plaintiffs’ prior residency. Saenz , 526 U.S. at 493, 498. The Court ruled that this violated thе Equal Protection Clause and the constitutional right to travel because it discriminated against newly- arrived residents in favor of residents living in the state for more than one year. at 504–505. Thus, once a newly-arrived resident established bona fide residency in California, the state was obligated to pay that resident the same level of welfare benefits as a resident who had lived in the state for more than a year. Saenz did not, however, hold that someone who was planning to move to California was entitled to receive California’s welfare benefits or even to be considered for California’s welfare benefits. In other words, the state could not penalize someone for moving to California by treating them differently from those who had not travelled, but eligibility was still predicated upon residency. It is the lack of a penalty that distinguishes this situation from the one presented in Saenz.
Here, Pollack argues the AO is deterring her from moving to the Washington, D.C. area by precluding her from being eligible for consideration for some, but not all, AO jobs located in the area while she resides in Kentucky. But, again, the AO is not deterring her from moving. *19 Although Pollack may prefer to move to the Washington, D.C. area with a job in hand, nothing prevents her from moving to the area to try to secure a job, whether at the AO or anywhere else. [2]
The Supreme Court has applied strict scrutiny when a state conditions the receipt of
certain government benefits on the duration of the reciрient’s residence in the state.
See Saenz,
Under rational basis review, a challenged provision will be upheld if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 313 (1993). The rationale may be “based on 2 Moreover, the AO did not limit every job located in the Washington, D.C. area to candidates in the metropоlitan area. Pollack applied for and was qualified for three other attorney positions within the AO, and her applications were referred to the selecting official. Reid Decl. ¶ 8.
rational speculation unsupported by evidence or empirical data” and “the burden is on the one
attacking [the action] to negative every conceivable basis which might support it . . . whether or
not the basis has a foundation in the record.”
Heller v. Doe ex rel. Doe
,
Pollack does not dispute that reducing the financial burden associated with a larger applicant pool is a legitimate state purpose. Rather, she argues that using the geographic limitation is not sufficiently tied to that purpose. Pl.’s Opp. at 13–14. She contends that a single application from Kentucky places no greater burden on the AO than does an additional application from Virginia, Maryland, or the District of Columbia. Id. at 14. But this argument suggests that a nationwide applicant pool would result in only a single additional application – hers – when, in fact, it would open the pool tо multiple applications from individuals in 48 other states. She also argues that a nationwide applicant pool is not a financial burden on the AO because the AO does not pay for an applicant’s travel or moving expenses. But that observation has nothing to do with the AO’s stated justification. It used the geographic limitation as a means to reduce the total number of applications it would be required to review and process, and that is a rational basis for the restriction even if other possible bases were *21 absent. Accordingly, the Court rules that the AO’s geographic limitation has a rational basis tied to a legitimate purpose and, therefore, does not violate the Equal Prоtection clause. [3]
CONCLUSION
For the reasons set forth above, the Court will grant defendants’ motion for summary judgment. A separate order will issue.
AMY BERMAN JACKSON United States District Judge DATE: August 6, 2013 3 Plaintiff also invokes all clauses of the Fourteenth Amendment, including the Citizenship Clause, Pl.’s Opp. at 9 n.9, but she only states that the Citizenship Clause “has . . . been recognized as relevant by Saenz v. Roe ,” without explaining how. at 17. Saenz held that the Citizenship Clause expressly equates citizenship with residence, and that it does not allow for degrees of citizenship based on length of residence. Saenz , 526 U.S. at 506. But the AO’s geographic limitation does not distinguish among applicants based on how long they have resided in the Washington, D.C. area. Accordingly, Pollack’s reference to the Citizenship Clause and the Saenz case do not support the conclusion that the AO’s actions violate that clause of the Constitution either.
