Malla Pollack v. Thomas Hogan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2012 Decided December 14, 2012

No. 11-5283

MALLA POLLACK,

APPELLANT

v.

THOMAS F. HOGAN, 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. Jonathan R. Hammer, Special Assistant U.S.

Attorney, entered an appearance.

Before: HENDERSON and GARLAND, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed PER CURIAM.

PER CURIAM: Malla Pollack, a lawyer and resident of

Kentucky, would like to work for the Administrative Office of

the United States Courts in Washington, D.C. The

Administrative Office rejected her application because she did

not live or work in the Washington metropolitan area.

Thereafter, she brought suit against officials of the

Administrative Office, solely in their official capacities, alleging

that they rejected her job application in violation of her

constitutional rights. The district court dismissed Pollack’s

complaint, concluding that it lacked jurisdiction because the

Administrative Office has sovereign immunity from suit. We

reverse.

I

The facts of the case are undisputed. In April 2009, Pollack

applied online for a job as an Attorney-Advisor at the

Administrative Office (AO), the central administrative support

organization for the federal judiciary. The job announcement

stated that only applicants living or working in the Washington

metropolitan area would be considered. Pollack is a resident of

Kentucky who was not working in the Washington area. In

January 2010, she received an automated rejection notice stating

that her application had been turned down because she did not

live or work in the specified geographic area. In response,

Pollack raised informal objections with AO staff, arguing that

the geographic limitation was unconstitutional. The AO’s

Human Resources Department responded with a letter and legal

memorandum disagreeing with Pollack’s constitutional

argument. The letter stated that her only means of redress was

to file a complaint with the AO’s Fair Employment Practices

Staff alleging discrimination on the basis of race, color, religion,

sex, national origin, age, disability, or marital status.

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But Pollack did not believe that the AO had discriminated

against her on the basis of race, color, religion, sex, national

origin, age, disability, or marital status. Instead, she contended

that the geographic limitation on applicants for employment

violated her “fundamental constitutional right to travel,” and she

sent the Fair Employment Practices Staff a letter outlining that

contention. The Staff replied that it could not accept her

complaint because it did “not raise an issue that is covered by

the AO’s anti-discrimination policy.”

Having thus exhausted her administrative remedies, Pollack

filed the instant suit in district court. Her complaint alleged that

AO officials had rejected her application in violation of the

Constitution, and she requested injunctive and declaratory (but

not monetary) relief against those individuals in their official

capacities. Specifically, she sought an injunction prohibiting the

defendants from discriminating against job applicants on the

basis of their place of residence within the United States, and

ordering the defendants to consider her past and future

applications without regard to her place of residence. The

defendants moved to dismiss the suit both for lack of subject

matter jurisdiction, see FED. R. CIV. P. 12(b)(1), and for failure

to state a claim, see FED. R. CIV. P. 12(b)(6). The district court

granted the motion on both grounds. The sole basis for its

jurisdictional ruling was that the suit was barred by sovereign

immunity. Pollack v. Duff, 806 F. Supp. 2d 99, 105 (D.D.C.

2011).

II

As a general rule, the United States may not be sued without

its consent. See United States v. Mitchell, 463 U.S. 206, 212

(1983). Pollack argues that her suit is not barred by sovereign

immunity, even in the absence of a waiver indicating consent,

under the so-called Larson-Dugan exception to the general rule.

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Under this exception, “suits for specific relief against officers of

the sovereign” allegedly acting “beyond statutory authority or

unconstitutionally” are not barred by sovereign immunity.

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,

689, 693 (1949); see Dugan v. Rank, 372 U.S. 609, 621-22

(1963). The exception is based on the principle that such ultra

vires action by a federal officer “is beyond the officer’s powers

and is, therefore, not the conduct of the sovereign.” Larson, 337

U.S. at 690.

Pollack’s claim falls within the Larson-Dugan exception.

Her sole allegation is that the named officers acted

unconstitutionally, and she requests only injunctive and

declaratory relief. Although the district court suggested and the

defendants argue that the Larson-Dugan exception is limited to

cases alleging that defendants have acted beyond statutory

authority, Pollack, 806 F. Supp. 2d at 104, there is no basis for

such a limitation in the logic of the “ultra vires” rationale for the

exception. Moreover, such a limitation contradicts Larson’s

own language, which excepts suits alleging “that the agent acted

beyond statutory authority or unconstitutionally.” 337 U.S. at

693 (emphasis added). It is also contrary to the Supreme

Court’s subsequent decision in Dugan, which noted “recognized

exceptions” to the general rule of federal sovereign immunity,

for suits alleging that: “(1) action[s] by officers [are] beyond

their statutory powers and (2) even though within the scope of

their authority, the powers themselves or the manner in which

they are exercised are constitutionally void.” 372 U.S. at 621-22

(emphasis added). And it is likewise contrary to this Circuit’s

reading of the Larson-Dugan exception. See Swan v. Clinton,

100 F.3d 973, 981 (D.C. Cir. 1996) (explaining that the

exception “holds that sovereign immunity does not apply as a

bar to suits alleging that an officer’s actions were

unconstitutional or beyond statutory authority” (emphasis

added)); Clark v. Library of Cong., 750 F.2d 89, 102 (D.C. Cir.

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1984) (noting that it “is well-established that sovereign

immunity does not bar suits for specific relief against

government officials where the challenged actions of the

officials are alleged to be unconstitutional or beyond statutory

authority” (emphasis added)).

The defendants further urge that there is another limitation

on the Larson-Dugan exception. Seizing upon the Larson

Court’s statement that in “a suit against an agency of the

sovereign” it is “necessary that the plaintiff claim an invasion of

his recognized legal rights,” Larson, 337 U.S. at 693, the

defendants maintain that “sovereign immunity bars” Pollack’s

claim because she does not have a “viable constitutional right-

to-travel claim.” AO Br. 31. But this argument fails to consider

the Court’s statement in its full context and, as Larson itself

explained, “confuses the doctrine of sovereign immunity with

the requirement that a plaintiff state a cause of action.” Larson,

337 U.S. at 692-93. As the Court stated in full:

It is a prerequisite to the maintenance of any action for

specific relief that the plaintiff claim an invasion of his

legal rights, either past or threatened. . . . If he does

not, he has not stated a cause of action. This is true

whether the conduct complained of is sovereign or

individual. In a suit against an agency of the

sovereign, as in any other suit, it is therefore necessary

that the plaintiff claim an invasion of his recognized

legal rights. If he does not do so, the suit must fail

even if he alleges that the agent acted beyond statutory

authority or unconstitutionally.

Id. at 693 (emphasis added). Here, the plaintiff has claimed an

invasion of her legal rights -- specifically, of an alleged

constitutional right to travel that is enforceable against the

federal government. Whether there is such a right, and whether

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any such right is applicable to Pollack’s case, goes to the merits

of her claim and not to the AO’s sovereign immunity.*

The district court’s conclusion that it lacked subject matter

jurisdiction over Pollack’s complaint rested solely on the ground

that the defendants have sovereign immunity. On appeal, the

defendants argue that, if we reject their sovereign immunity

argument, we should nonetheless find judicial review

unavailable on the alternative ground that the Administrative

Office of the United States Courts Personnel Act of 1990, Pub.

L. No. 101-474, 104 Stat. 1097 (1990) (codified at 28 U.S.C.

§ 602 note), evidences a clear congressional intention to

preclude judicial review of constitutional claims relating to

personnel actions by the AO. And if all of their jurisdictional

arguments fail, the defendants urge us to reach the merits and

determine that Pollack has no constitutional claim against the

AO. Pollack would like us to reach the merits as well, although

she, unsurprisingly, urges us to reach the opposite conclusion.

The district court did not address the defendants’ alternative

jurisdictional argument, and we will follow our usual (although

hardly universal) practice of declining to address arguments

*

Larson did note that there may be some intertwining of the

merits and jurisdictional inquiries in cases raising statutory claims

because, although a claim that an officer has exceeded his “delegated

power” is not barred by sovereign immunity, a “claim of error in the

exercise of that power” is barred. 337 U.S. at 690. But Pollack does

not assert a statutory claim against the AO; her only claim is

constitutional. Larson also noted that “there can be no question that

dismissal of a suit in which ‘the alleged claim under the Constitution

or federal statutes clearly appears to be . . . made solely for the

purpose of obtaining jurisdiction or . . . is wholly insubstantial and

frivolous’ would be” warranted as a “dismissal for lack of

jurisdiction.” Id. at 690 n.10 (quoting Bell v. Hood, 327 U.S. 678,

682-83 (1946)). Pollack’s claim does not fall within those categories.

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unaddressed by the district court. With respect to the

defendants’ motion to dismiss for failure to state a claim, the

district court’s opinion contained a single sentence stating that

Pollack had “failed to plead sufficient factual matter that would

‘allow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Pollack, 806

F. Supp. 2d at 105 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). The court did not explain why that was so, and as a

consequence we think it inappropriate to address that ground for

its judgment. Accordingly, we will leave all of these arguments

for consideration on remand.

III

For the foregoing reasons, we reverse the judgment of the

district court and remand the case for further proceedings

consistent with this opinion.

So ordered.