Malla Pollack v. James C. Duff

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2015 Decided July 7, 2015

No. 13-5263

MALLA POLLACK,

APPELLANT

v.

JAMES C. DUFF, DIRECTOR OF THE ADMINISTRATIVE OFFICE OF

THE UNITED STATES COURTS - IN HIS OFFICIAL CAPACITY, ET

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00866)

Malla Pollack, pro se, argued the cause and filed the

briefs for appellant.

John G. Interrante, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: TATEL, Circuit Judge, and EDWARDS and

GINSBURG, Senior Circuit Judges.

2

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge: While residing in

Kentucky, Malla Pollack applied for a job in Washington,

D.C. with the Administrative Office of the United States

Courts (AO), an agency of the federal judiciary. The AO’s

job announcement said it would consider an application from

any present employee of the federal judiciary, nationwide, and

from any non-employee who lived in the Washington

metropolitan area, which includes the District of Columbia

and parts of Maryland and Virginia. The AO rejected

Pollack’s application because she was neither an employee of

the federal judiciary nor a resident of the Washington

metropolitan area. Pollack then filed this suit against three

officials of the AO, in their official capacities, claiming their

refusal to consider her application violated her right to travel

protected by the Constitution of the United States. The

district court entered summary judgment for the defendants,

which we now affirm.

I. Background

In 2009 the AO posted online an announcement that it

was seeking to hire an attorney-advisor to work in

Washington, D.C. The vacancy announcement describing the

position provided:

Who May Be Judiciary wide and All Sources —

Considered: Washington Metropolitan Area

In other words, the agency would consider an application

from any employee of the federal judiciary, regardless where

he or she lived, and from any person who lived in the

Washington metropolitan area. Pollack applied for the job

3

even though she lived in Kentucky and did not work for the

federal judiciary. The AO rejected her application because

she did not “live or work within the announced area o[f]

consideration” specified in the vacancy announcement.

Pollack sent a letter to the AO arguing the geographical

limitation violated her constitutional right to travel because it

discriminated against her based upon the state in which she

resided. In response, the agency defended the

constitutionality of the geographical limitation and advised

Pollack that a rejected applicant’s “only means of redress is to

file a Fair Employment Practices System complaint.” Pollack

duly submitted to the AO an “official complaint of

unconstitutional job discrimination,” only to be told by the

agency that it was “unable to accept [Pollack’s] complaint

because it d[id] not raise an issue that is covered by the AO’s

anti-discrimination policy,” which is limited to “allegations of

discrimination based upon race, color, religion, sex, national

origin, age (at least 40 years of age), disability or the denial of

a reasonable accommodation, or marital status.”

After having been played upon in this way, Pollack sued

three employees of the AO seeking a declaration that they had

violated her constitutional right to travel and an injunction

requiring them to consider her application and to refrain from

using a geographical limitation in the future. The defendants

filed a motion to dismiss the complaint on the ground it was

barred by sovereign immunity or, in the alternative, for

summary judgment. Pollack opposed the motion and asked

the district court to direct the defendants to respond to her

requests for discovery. The district court concluded the

defendants were shielded by sovereign immunity and

dismissed the complaint. Pollack v. Duff, 806 F. Supp. 2d 99,

103–05 (D.D.C. 2011). We reversed and remanded the case

to the district court because “‘suits for specific relief against

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officers of the sovereign’ allegedly acting ‘beyond statutory

authority or unconstitutionally’ are not barred by sovereign

immunity.” Pollack v. Hogan, 703 F.3d 117, 120 (D.C. Cir.

2012) (quoting Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 689, 693 (1949)). We did not address

the defendants’ alternative arguments or the merits of

Pollack’s constitutional claim. See id. at 121.

On remand the district court considered the merits

arguments previously presented by the parties, denied

Pollack’s motion for discovery, and entered summary

judgment for the defendants on the ground that the

geographical limitation did not violate Pollack’s right to

travel. Pollack v. Duff, 958 F. Supp. 2d 280, 287–93 (D.D.C.

2013).

II. Analysis

Pollack contends the district court erred by concluding

the defendants did not violate her constitutional right to travel

and by entering summary judgment without first directing the

defendants to respond to her requests for discovery. Before

turning to the merits of Pollack’s claim, we must consider the

defendants’ argument that we lack jurisdiction. See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

A. Judicial review

The defendants assert we lack jurisdiction because the

AO’s internal process for resolving disputes — its Fair

Employment Practices System (FEPS) — is the exclusive

means for deciding a claim that the AO unlawfully

discriminated against an applicant for employment. In 1990

the Congress instructed the AO to “promulgate regulations

providing procedures for resolving complaints of

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discrimination by employees and applicants for employment.”

Administrative Office of the United States Courts Personnel

Act, Pub. L. No. 101-474 § 3(a)(9), 104 Stat. 1097, 1098,

codified at 28 U.S.C. § 602, Note. The AO accordingly

created the FEPS, which “applies to all employees [and]

applicants for employment.” The accompanying manual

provides “[e]mployees who believe they have been

discriminated against on [a prohibited ground] … may seek

resolution of such claims through the procedures of this

System.” Those procedures culminate in a decision by the

Director of the AO, which “is final and may not be appealed

or reviewed.”

We need not consider whether we are precluded from

reviewing a decision by the Director of the AO because — as

the AO itself maintains — the FEPS does not apply to

Pollack’s claim the AO discriminated against her on the basis

that she did not reside in the Washington, D.C. area. The

FEPS applies only to claims of discrimination on the basis of

specific invidious criteria. Indeed, when Pollack attempted to

file a complaint based upon the denial of her constitutional

right to travel, the agency informed her it was “unable to

accept” her “official complaint of unconstitutional job

discrimination” because “it d[id] not raise an issue that is

covered by the AO’s anti-discrimination policy.” Although

the FEPS provides that a decision by the Director of the AO

may not be “appealed or reviewed,” it does not purport to

preclude judicial review of a claim that is not subject to the

FEPS.

B. Constitutional right to travel

Satisfied that we have jurisdiction over this suit, we turn

to Pollack’s claim the AO violated her constitutional right to

travel by rejecting her application because she did not live in

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the Washington metropolitan area. Pollack acknowledges that

the AO may require its employees to live near its office,

which is in Washington, but she argues the Constitution

prohibits the agency from rejecting an applicant because she

does not live in a particular area at the time she submits her

application.

As Pollack points out, the constitutional right to travel is

“multifaceted” — and perhaps “misleadingly named” —

because it protects several distinct interests. Appellant’s Br.

at 7. In its most recent explanation of the scope of the right,

the Supreme Court observed that “[t]he ‘right to travel’

discussed in [its] cases embraces at least three different

components” located in different provisions of the

Constitution. Saenz v. Roe, 526 U.S. 489, 500 (1999). ∗

Identifying the relevant source of the right as it is invoked in a

particular case is essential because the Court has developed

different doctrines to analyze the constitutionality of

governmental action under each of the various provisions of

the Constitution that protect the right to travel.

Neither the Supreme Court nor this court has previously

considered whether the right to travel is implicated when a

federal agency seeking to hire an employee limits the

applicant pool to residents of a particular area. We will

therefore address both the constitutional provisions invoked

by Pollack, viz., the Privileges and Immunities Clause of

Article IV and the equal protection component of the Due

Process Clause of the Fifth Amendment, as well as her claim

of a right inherent in the structure of the Constitution.

∗

Indeed “[v]arious Justices at various times have suggested no

fewer than seven different sources” of the right to travel in the text

and structure of the Constitution. Lutz v. City of York, 899 F.2d

255, 260 (3d Cir. 1990).

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1. Privileges and immunities

Pollack first argues the AO’s geographical limitation

violates the right to travel protected by Article IV, § 2, clause

1 of the Constitution, which provides: “The Citizens of each

State shall be entitled to all Privileges and Immunities of

Citizens in the several States.” This clause “was designed to

insure to a citizen of State A who ventures into State B the

same privileges which the citizens of State B enjoy” there.

Toomer v. Witsell, 334 U.S. 385, 395 (1948). The Supreme

Court has accordingly relied upon the Privileges and

Immunities Clause to invalidate state laws that favor residents

over nonresidents. In Toomer, for example, the Court held

unconstitutional a South Carolina statute that required a non-

resident to pay 100 times as much as a resident for a license to

harvest shrimp in the waters of that state. Id. at 389, 395–403.

Applying the same logic, the Court invalidated an Alaska law

that required oil and gas companies operating in the state to

give residents a preference in hiring. See Hicklin v. Orbeck,

437 U.S. 518, 520, 523–31 (1978). The Court has also held a

state violates the clause when it refuses to admit a nonresident

attorney to the bar upon the same terms as it would an

attorney who resides in the state. See Supreme Court of Va. v.

Friedman, 487 U.S. 59, 62, 64–70 (1988); Supreme Court of

N.H. v. Piper, 470 U.S. 274, 276, 279–87 (1985).

The Court has developed a “two-step inquiry” to

determine whether “a citizenship or residency classification”

violates the Privileges and Immunities Clause. Friedman, 487

U.S. at 64. First, the classification must burden an activity

that is “sufficiently basic to the livelihood of the Nation”

because “[o]nly with respect to those ‘privileges’ and

‘immunities’ bearing upon the vitality of the Nation as a

single entity must the State treat all citizens, resident and

nonresident, equally.” Baldwin v. Fish & Game Comm’n of

8

Mont., 436 U.S. 371, 388, 383 (1978). Second, “if the

challenged restriction deprives nonresidents of a protected

privilege,” then the Court will invalidate the restriction if it

“is not closely related to the advancement of a substantial

state interest.” Friedman, 487 U.S. at 65.

Pollack urges us to apply this two-part test to the

geographical limitation used by the AO. The test is self-

evidently inapplicable, however, because Pollack challenges

the action of an agency of the federal government, not that of

a state. As the defendants point out, neither the Supreme

Court nor this court has ever held an action taken by any

branch of the federal government is subject to scrutiny under

the Privileges and Immunities Clause of Article IV. To the

contrary, we have thrice stated broadly that the Privileges and

Immunities Clause of Article IV “is a limitation upon the

powers of the states.” Duehay v. Acacia Mutual Life Ins. Co.,

105 F.2d 768, 775 (D.C. Cir. 1939); see also Banner v. United

States, 428 F.3d 303, 308 (D.C. Cir. 2005); Neild v. District of

Columbia, 110 F.2d 246, 249 n.3 (D.C. Cir. 1940). This case

admittedly differs from Banner, Neild, and Duehay in two

arguably important respects. First, Pollack challenges a hiring

practice adopted by an agency of the federal judiciary,

whereas those cases concerned acts of the Congress. Second,

the geographical limitation here at issue adversely affects

residents of the states, whereas the laws at issue in our earlier

cases adversely affected residents of the District of Columbia,

over which the Congress has plenary authority. See U.S.

Const. art. I, § 8, cl. 1. These differences are immaterial,

however, because we conclude the Privileges and Immunities

Clause of Article IV does not constrain the powers of the

federal government at all.

The Supreme Court has consistently explained the clause

restricts the authority of the states without ever so much as

9

implying it might also apply to the federal government. See,

e.g., Baldwin, 436 U.S. at 383 (observing the clause “has been

interpreted to prevent a State from imposing unreasonable

burdens on citizens of other States”); Hicklin, 437 U.S. at

523–24 (explaining the clause “‘establishes a norm of comity’

that is to prevail among the States with respect to their

treatment of each other’s residents” (quoting Austin, 420 U.S.

at 660)).

Other circuits have held expressly that the clause does not

apply to the federal government under a range of

circumstances. See Nehme v. INS, 252 F.3d 415, 430 n.18

(5th Cir. 2001) (“[T]he Privileges and Immunities Clause [of

Article IV] protects citizens of one state from abuses by other

states, and does not address powers, such as the granting of

citizenship, of the federal government”); Cramer v. Skinner,

931 F.2d 1020, 1029 n.7 (5th Cir. 1991) (“While we have

held that state legislation may violate the privileges and

immunities clause of article IV if it unjustifiably denies the

right to travel, that clause applies only to state legislation and

does not govern federal statutes”); Nevada v. Watkins, 914

F.2d 1545, 1555 (9th Cir. 1990) (“[T]he Privileges and

Immunities Clause [of Article IV] has been construed as a

limitation on the powers of the States, not on the powers of

the federal government”); Hawes v. Club Ecuestre El

Comandante, 535 F.3d 140, 145 (1st Cir. 1976) (“Article IV,

§ 2 is a limitation on powers of states and in no way affects

the powers of a federal district court”).

Pollack argues the courts’ contemporary understanding of

Article IV, § 2 is inconsistent with the original meaning of

that provision. She cites a statement by James Iredell, a

Federalist delegate to the first of the two ratifying conventions

held in North Carolina, as evidence that the founding

generation read the clause as a limitation upon the powers of

10

the federal government. The passage referenced by Pollack

appears in a pamphlet Iredell wrote in response to objections

raised by George Mason, a Virginia delegate to the

Constitutional Convention who refused to sign the

Constitution. Mason was concerned that “the Congress may

grant monopolies in trade and commerce,” to which Iredell

replied:

Upon examining the constitution I find it expressly

provided, “That no preference shall be given to the

ports of one State over those of another;” and that

“citizens of each State shall be entitled to all privileges

and immunities of citizens in the several States.”

These provisions appear to me to be calculated for the

very purpose Mr. Mason wishes to secure. Can they

be consistent with any monopoly in trade and

commerce? … [The Anti-Federalists of Virginia] fear,

that a majority of the States may establish regulations

of commerce which will give great advantage to the

carrying trade of America, and be a means of

encouraging New England vessels rather than Old

England. Be it so. No regulations can give such

advantage to New England vessels, which will not be

enjoyed by all other American vessels, and many

States can build as well as New England, though not at

present perhaps in equal proportion.

James Iredell, Answers to Mr. Mason’s Objections to the New

Constitution, Recommended By the Late Convention (1788),

reprinted in Pamphlets on the Constitution of the United

States 333, 356–58 (Paul Leicester Ford ed., 1968). Pollack

reads Iredell’s statement as positing that the Privileges and

Immunities Clause forbids the federal government from

favoring the residents of some states over the residents of

others. It seems equally or more likely, however, that Iredell

11

referred to the Privileges and Immunities Clause for the

proposition that a state may not deprive nonresidents of the

“advantages” it extends to its own residents. Before quoting

the Privileges and Immunities Clause, Iredell quoted the Port

Preference Clause, which limits the powers of the federal

government. See Kansas v. United States, 16 F.3d 436, 439

(D.C. Cir. 1994). Iredell seems first to have cited the Port

Preference Clause to show the Constitution would prohibit the

federal government from enacting laws favoring the shipping

interests of one state over those of another and then cited the

Privileges and Immunities Clause to show the Constitution

also would prohibit the states from enacting such laws.

To be sure, it is also possible, as Pollack argues, to read

Iredell’s statement as a claim that the Privileges and

Immunities Clause limits the powers of the federal

government. To the extent Iredell’s pamphlet reflects this

view, it is relevant evidence of how a reasonable person might

have understood the clause when the Constitution was

ratified. Or, as the defendants put it, Pollack’s pamphlet is “a

guide to understanding the original meaning” of the

Constitution, but not a source of “rights not explicitly found

in the text.” Appellees’ Br. at 27; see Noel Canning v. NLRB,

705 F.3d 490, 500 (D.C. Cir. 2013), aff’d on other grounds,

134 S. Ct. 2550 (2014) (“When interpreting a constitutional

provision, we must look to the natural meaning of the text as

it would have been understood at the time of the ratification

of the Constitution”).

The defendants also caution that Iredell’s statement is

subject to the caveat that the views expressed by either a

proponent or an opponent of ratification are not necessarily

indicative of how a reasonable person would have understood

the text of the document. As the defendants point out, some

essays authored by both Federalists and Anti-Federalists were

12

designed to bring skeptics around to the author’s position and

do not necessarily reflect the common understanding of the

meaning of the text of the Constitution. See John F. Manning,

Textualism and the Role of The Federalist in Constitutional

Adjudication, 66 Geo. Wash. L. Rev. 1337, 1358–61 (1998).

The defendants’ point is well taken. We note, for example,

that in 1788, when Iredell authored the pamphlet Pollack

quotes, he also published notes from the ratifying convention

in North Carolina. The historical record shows “[v]arious

Federalist speakers tinkered with” the notes from that

convention before Iredell published them, so they would

“serve as Federalist campaign literature,” not as an accurate

account of the views expressed at the convention. James H.

Huston, The Creation of the Constitution: The Integrity of the

Documentary Record, 65 Tex. L. Rev. 1, 24 (1986).

Looking beyond Iredell’s statement, we find that neither

the Founders nor the commentators of the period left many

clues about how Article IV, § 2 was understood. See Stewart

Jay, Origins of the Privileges and Immunities of State

Citizenship under Article IV, 45 Loy. U. Chi. L.J. 1, 15 (2013)

(“There was almost no recorded debate about the Privileges

and Immunities Clause at the Convention”); Kurt T. Lash,

The Origins of the Privileges or Immunities Clause, Part I:

“Privileges and Immunities” as an Antebellum Term of Art,

98 Geo. L.J. 1241, 1259 n.97 (2010) (“James Madison

described the Article as simply clearing up some of the

ambiguous language of the Articles of Confederation. In the

first constitutional treatise, St. George Tucker had little to say

about the clause ….” (citation omitted)). Charles Pinckney,

who drafted the clause, reported it was “formed exactly upon

the principles of the 4th article” of the Articles of

Confederation, which had provided:

13

The better to secure and perpetuate mutual friendship

and intercourse among the people of the different

States in this Union, the free inhabitants of each of

these States, paupers, vagabonds and fugitives from

justice excepted, shall be entitled to all privileges and

immunities of free citizens in the several States; and

the people of each State shall have free ingress and

regress to and from any other State, and shall enjoy

therein all the privileges of trade and commerce,

subject to the same duties, impositions and restrictions

as the inhabitants thereof respectively.

3 The Records of the Federal Convention of 1787 112 (Max

Farrand ed., 1966). Like the corresponding clause in the

Constitution, the Fourth Article of Confederation did not

expressly state whether it limited the powers of the federal

government as well as those of the states. In Austin the

Supreme Court explained the Fourth Article of Confederation

was intended to curb “the practice of some States denying to

outlanders the treatment that its citizens demanded for

themselves,” which suggests it was viewed as a limitation

upon the states alone. 420 U.S. at 660.

We find more definitive guidance in cases decided by the

state and federal courts soon after ratification of the

Constitution. See Noel Canning, 705 F.3d at 501 (“The

interpretation of the Clause in the years immediately

following the Constitution’s ratification is the most instructive

historical analysis in discerning the original meaning …

because it reflects the ‘public understanding’ of the text”

(quoting District of Columbia v. Heller, 554 U.S. 570, 605

(2008))). Several interpretations of the clause are evident in

the early cases and commentary. See Lash, 98 Geo. L.J. at

1259–60. As Pollack points out, at least two state courts held

it prevented the federal government from discriminating on

14

the basis of state citizenship. See Douglass v. Stephens, 1

Del. Ch. 465, 477 (1821) (holding the Privileges and

Immunities Clause was “designed to restrict the powers of

Congress as to legislation, so that no privilege or immunity

should be granted by it to one citizen of the United States, but

such as might be common to all”); Kincaid v. Francis, 3

Tenn. 49, 53 (1812) (White, J. concurring) (“It seems to us

most probable that [the Privileges and Immunities Clause]

was intended to compel the general government to extend the

same privileges and immunities to the citizens of every State,

and not to permit that government to grant privileges or

immunities to citizens of some of the States and withhold

them from those of others”).

The view advanced by these courts was not widely

shared, however. The “vast majority of cases decided in this

early period of the Republic” concluded the clause limits the

extent to which a state may discriminate against nonresidents

but it does not apply to the federal government. Lash, 98

Geo. L.J. at 1262 n.108; see, e.g, Livingston v. Van Ingen, 9

Johns. 507, 577 (N.Y. 1812) (Chancellor Kent, concurring)

(“The provision that the citizens of each state shall be entitled

to all privileges and immunities of citizens in the several

states … means only that citizens of other states shall have

equal rights with our own citizens …. This is a very clear

proposition, and the provision itself was taken from the

articles of the confederation.”); Campbell v. Morris, 3 H. &

McH. 535, 548 (Md. 1797) (“When the new constitution was

formed … there was reason to fear that particular states might

not allow the citizens of other states the same privileges

enjoyed by their own citizens; and had a provision securing

them been omitted in the constitution, they might have been

deprived of them”). The interpretation of the Privileges and

Immunities Clause that “came to dominate case law and

scholarly commentary from the Founding until

15

Reconstruction” — and that is still evident in the Supreme

Court’s more recent jurisprudence — provides the clause

merely “require[s] states to grant visiting citizens some of the

same privileges and immunities that the state conferred upon

its own citizens.” Lash, 98 Geo. L.J. at 1260.

Finally, the location of the Privileges and Immunities

Clause in § 2 of Article IV supports the conclusion that it is

directed at the states and not at the national government.

Article IV is the “so-called States’ Relations Article.”

Baldwin, 436 U.S. at 379. Section 2 of Article IV, in addition

to the Privileges and Immunities Clause, included the

Interstate Rendition Clause and the Fugitive Slave Clause,

both of which were concerned with comity among the states.

See California v. Superior Court of Cal., San Bernardino

Cnty., 482 U.S. 400, 405 (1987) (describing the Interstate

Rendition Clause as one example of a “limit[] on the

sovereign powers of the States” that was “part of the Framers’

conception of national identity and Union”). If the Privileges

and Immunities Clause applied to the federal government,

then we might expect to find it in Article I, § 9, alongside

other limitations upon the powers of the Congress to

discriminate against residents of certain states, such as the

Export Taxation Clause and the Port Preference Clause; in

any case, it would not be in Article IV.

Although the historical record is not pellucid, we think

the weight of the evidence indicates the Privileges and

Immunities Clause was not originally understood as a

limitation upon the authority of the federal government. We

agree with the defendants, therefore, that the geographical

limitation in the AO’s hiring process is not subject to scrutiny

under that clause. Accordingly, we need not consider the

defendants’ further arguments that the opportunity to apply

for a job with the AO is not a “privilege” protected by the

16

clause and that the geographical limitation is “closely related

to the advancement of a substantial [government] interest.”

Friedman, 487 U.S. at 65.

2. Equal protection

Pollack next contends the defendants lack a rational basis

for discriminating against applicants who do not reside in the

Washington metropolitan area. This argument invokes a

separate line of cases, one that uses equal protection analysis

to evaluate laws that burden the right to travel. See, e.g.,

Zobel v. Williams, 457 U.S. 55, 60 n.6 (1982) (“In reality,

right to travel analysis refers to little more than a particular

application of equal protection analysis”). Unlike the

Privileges and Immunities Clause, the principle of equal

protection indisputably applies to the federal government as

well as to the states. See Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 217 (1995) (explaining the Court “treat[s] the

equal protection obligations imposed by the Fifth and the

Fourteenth Amendments as indistinguishable”); see also

Califano v. Torres, 435 U.S. 1, 2–3 (1978) (evaluating

whether a federal law that distinguished between residents of

a state and residents of Puerto Rico implicated the right to

travel); Shapiro v. Thompson, 394 U.S. 618, 623–25 (1969)

(holding a federal law that applied to residents of the District

of Columbia violated the right to travel).

The defendants argue we need not scrutinize the

geographical limitation under the equal protection principle

because it does not actually burden Pollack’s right to travel.

The Supreme Court has explained that a “law implicates the

right to travel when it actually deters such travel, when

impeding travel is its primary objective, or when it uses any

classification which serves to penalize the exercise of that

right.” Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898,

17

903 (1986) (plurality) (internal quotation marks and citations

omitted); see also Kansas v. United States, 16 F.3d at 441.

Pollack does not argue impeding travel is the “primary

objective” of the AO’s geographical limitation. We will

therefore limit our inquiry to whether the geographical

limitation either deterred Pollack from traveling or created a

classification that penalized her exercise of the right to travel.

First, Pollack asserts the geographical limitation deterred

her from traveling because, although she is “willing and able

to relocate” if she obtains a suitable job offer, moving to

Washington “before obtaining a promise of employment …

would be a major burden.” If the AO had reviewed her

application, then it might have offered her a job, which might

have prompted her to move to the Washington area. Thus,

Pollack might have been marginally more likely to travel to

the Washington area but for the geographical limitation she is

challenging. This effect upon Pollack’s willingness to travel,

i.e., to exercise her right to travel, is “negligible” and does not

warrant scrutiny under the Constitution. Kansas v. United

States, 16 F.3d at 442. In the cited case we rejected a

challenge to a federal law that prohibited certain interstate

flights from landing at Love Field in Dallas instead of the

nearby Dallas-Fort Worth International Airport. The

plaintiffs argued the law deterred interstate travel because

some travelers preferred flights that landed at Love Field. We

observed that there might be some “putative Dallas

passengers who forego interstate air travel” because they find

it more “burdensome” to arrive at Dallas-Fort Worth

International than at Love Field, but we concluded the

interference with the right to travel was “trivial.” Id. A law

does not “actually deter” travel merely because it makes it

somewhat less attractive for a person to travel interstate. See

Town of Southold v. Town of East Hampton, 477 F.3d 38, 54

(2d Cir. 2007) (“[M]inor restrictions on travel simply do not

18

amount to the denial of a fundamental right” (quotation marks

omitted)); Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.

1999); Cramer, 931 F.2d at 1031.

Second, Pollack contends the AO’s geographical

limitation on hiring creates a “classification which serves to

penalize the exercise of th[e] right” to travel. Soto-Lopez, 476

U.S. at 903. This is obviously not true. The geographical

limitation creates a classification that benefits individuals who

live in the Washington metropolitan area by allowing them to

apply for jobs that are not open to people who reside in other

states. That is not a distinction that implicates the right to

travel because it does not “penalize the exercise of that right.”

Id. Many of the cases that examine whether a state law

penalizes the exercise of the right to travel involve a challenge

to a durational residence requirement that provides a person

must live in a state for a particular period of time before being

eligible to receive a certain benefit from the state. In Shapiro,

for example, the Court invalidated laws adopted by several

states that required an individual to live in the state for at least

one year before receiving welfare benefits. 394 U.S. at 627.

The Court has also held unconstitutional laws requiring a

person to live in a state for at least one year before registering

to vote, Dunn v. Blumstein, 405 U.S. 330, 334–43 (1972), and

before receiving free nonemergency medical care, Memorial

Hospital v. Maricopa Cnty., 415 U.S. 238, 254–62 (1974).

Although a durational residence requirement does not directly

regulate travel, it does penalize the exercise of that right by

prohibiting a person who has recently traveled to the state

from receiving a benefit available to a longer-term resident of

that state.

The AO’s geographical limitation is quite different,

however, because it would not penalize Pollack if she decided

to travel from Kentucky to the Washington area. To the

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contrary, the geographical limitation gives Pollack an

incentive to travel to Washington in order to apply for a job

with the AO that is open only to residents of the area. In

other words, the geographical limitation burdens only

Pollack’s decision not to travel interstate.

The Ninth Circuit addressed a similar scenario in Matsuo

v. United States, 586 F.3d 1180 (2009). There, the plaintiffs

— individuals who worked for the federal government in

Alaska and Hawaii — challenged a law providing that only

employees of the federal government who work in the

contiguous 48 states were entitled to “locality pay,” an

increase based upon the local cost of living. They argued the

law violated their right to travel because, unlike their

colleagues in the other 48 states, they did not receive locality

pay. The court concluded the statute “imposes no travel

penalty on them; if anything, it imposes a penalty for staying

put. In fact, the [statute] encourages these employees to travel

by providing superior pay in the 48 contiguous states.” Id. at

1183. For the same reason, we think the AO’s geographical

limitation does not “penalize the exercise” of Pollack’s right

to travel interstate. Soto-Lopez, 476 U.S. at 903. ∗∗

We conclude the geographical limitation does not

implicate the component of Pollack’s right to travel that is

∗∗

Pollack does not argue the geographical limitation denies equal

protection to a Washington area resident, who would be precluded

from applying for a job with the AO if she decided to leave the

area. Nor would Pollack have standing to raise that argument on

behalf of a person who lives in the Washington area. We therefore

need not consider the extent to which a federal law may create a

classification that discourages a plaintiff from relocating to a state

where she will receive a less generous benefit. See, e.g., Torres,

435 U.S. at 1–4; Matsuo, 586 F.3d at 1183–85; Minn. Senior Fed’n

v. United States, 273 F.3d 805, 807–10 (8th Cir. 2001).

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protected by the equal protection principle of the Due Process

Clause of the Fifth Amendment. We therefore need not

consider the parties’ arguments regarding the level of scrutiny

applicable to the classification created by the geographical

limitation or whether there is a rational basis for the AO’s

decision to impose the geographical limitation.

3. Structure of the Constitution

Finally, Pollack argues the AO’s geographical limitation

is inconsistent with the structure of the Constitution,

particularly as it is described in Crandall v. Nevada, 73 U.S.

35 (1867). There, the Court declared unconstitutional a law

enacted by Nevada that imposed a tax of one dollar upon

every person leaving the state. Instead of relying upon a

specific provision of the Constitution, the Court declared the

tax incompatible with the principles underlying the

Constitution generally. Id. at 43–44. The Court recognized

both the right of the federal government to call upon its

citizens to travel from one state to another and the correlative

right of a citizen to travel interstate of her own accord.

Pollack contends the Court expressly recognized the right she

seeks to vindicate here in stating that a citizen “has the right

to come to the seat of government … to share its offices, to

engage in administering its functions.” Id. at 44.

Pollack’s reliance upon Crandall is misplaced. The

Court there was concerned with a law that “actually deterred”

interstate travel by taxing it. Soto-Lopez, 476 U.S. at 903; see

Kansas v. United States, 16 F.3d at 441 (describing Crandall

as a case where a law “directly burden[s] interstate travel”).

As we have discussed, the AO’s geographical limitation did

not “actually deter” Pollack from traveling interstate; it

provided an incentive to do so. In any event, Crandall does

not hold every law that indirectly burdens interstate travel or

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makes it marginally less likely a person will travel interstate

implicates the Constitution. Indeed not even every tax on

interstate travel violates the Constitution. See Evansville-

Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405

U.S. 707, 712 (holding Crandall does not prevent a state from

imposing upon commercial airline passengers a fee to fund

airport construction and maintenance).

Nor is there any support for Pollack’s broader contention

that the AO’s geographical limitation is incompatible with the

right to travel embedded in the structure of the Constitution.

A law that “directly impair[s] the exercise of the right to free

interstate movement” — such as the tax at issue in Crandall

— may be deemed incompatible with the framework of the

Constitution. Saenz, 526 U.S. at 501 (“The right of free

ingress and regress to and from neighboring States, which was

expressly mentioned in the text of the Articles of

Confederation, may simply have been conceived from the

beginning to be a necessary concomitant of the stronger

Union the Constitution created” (internal quotation marks and

footnote omitted)). In Saenz the Court invalidated a

durational residence requirement enacted by California that

discouraged people from relocating to that state in order to

receive welfare benefits. The Court nevertheless agreed with

the state that its law did not impinge upon the component of

the right to travel protected by the structure of the

Constitution because it “imposed no obstacle to … entry into

California” and therefore did “not directly impair the exercise

of the right to free interstate movement.” Id. Just so here:

The AO’s geographical limitation does not “directly impair”

Pollack’s “right to go from one place to another” or “to cross

state borders while en route.” Id. at 500. We therefore

conclude the AO’s policy of limiting its applicant pool to

residents of a particular area is not inconsistent with the

structure of the Constitution.

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C. Request for discovery

Pollack also argues the district court erred by entering

summary judgment for the defendants without first directing

them to respond to her requests for discovery. Pollack sought

to discover, among other things, the AO’s reasons for using

the geographical limitation, how often it uses the limitation,

the cost of reviewing applications, and whether it is more

expensive to review an application submitted by a person who

does not reside in the Washington area.

A party seeking discovery under FED. R. CIV. P. 56(d) has

“the burden to state with sufficient particularity to the district

court — or, for that matter, to this court — why discovery

was necessary.” Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045

(D.C. Cir. 2008) (internal quotation marks omitted). To carry

this burden, he must “outline the particular facts he intends to

discover and describe why those facts are necessary to the

litigation.” Convertino v. Dep’t of Justice, 684 F.3d 93, 99

(D.C. Cir. 2012). We review for an abuse of discretion a

district court’s decision to deny a motion for discovery. Id.

The district court did not abuse its discretion by denying

Pollack’s motion because she has not shown why the facts she

intended to discover “are necessary to the litigation.” Id.

Pollack sought to discover facts showing whether it would be

more burdensome for the AO to consider applicants from

every state than to limit its applicant pool to residents of the

Washington metropolitan area. Those facts might be

necessary if the court were required to determine whether the

geographical limitation is “closely related to the advancement

of a substantial [government] interest” under the Privileges

and Immunities Clause of Article IV, Friedman, 487 U.S. at

65, or whether it would survive scrutiny under the equal

protection component of the Due Process Clause. As we have

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explained, however, there was no need for the district court to

reach those issues because the AO’s geographical limitation

does not implicate Pollack’s right to travel under either

clause. Because this case turns upon pure questions of law,

the facts identified in Pollack’s request for discovery are not

necessary to the litigation.

III. Conclusion

We agree with Pollack that it is difficult to comprehend

why the AO refused to consider applicants who did not live in

the Washington area but were willing to move there if they

received an offer of employment. The AO points out that it

receives applications from many qualified attorneys and it

must limit the total number of applicants for certain positions

so that it may focus upon those it is most interested in hiring.

It is unclear, however, why the agency would use a

geographical limitation to control the size of its applicant pool

rather than criteria that are likely to be more closely correlated

with job performance.

Be that as it may, we hold the AO’s decision to limit its

applicant pool to employees of the federal judiciary and

individuals who lived in the Washington metropolitan area

did not violate Pollack’s right to travel, whether that right is

considered under the Privileges and Immunities Clause of

Article IV, the equal protection component of the Due Process

Clause of the Fifth Amendment, or the essential structure of

the Constitution. We further conclude the district court did

not abuse its discretion by denying Pollack’s request for

discovery before entering summary judgment for the

defendants. The judgment of the district court is, therefore,

Affirmed.