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 
4

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 
5

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 
6

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). 
7

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 nonresident 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 selfevidently 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 
19

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).
20

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 
21

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 EvansvilleVanderburgh 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.
22

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 
23

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.