# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2015 Decided July 7, 2015

No. 13

- 5263

M ALLA P OLLACK

, A PPELLANT

v.

J AMES C. D UFF

, D IRECTOR OF THE A DMINISTRATIVE O FFICE OF

THE U NITED S TATES C OURTS

- IN HIS OFFICIAL CAPA CITY

, ET

AL

., A PPELLEES

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: T ATEL

, Circuit Judge , and E DWARDS and

G INSBURG

, Senior Circuit Judges

.2

Opinion for the Court filed by Senior Circuit Judge

G INSBURG

.

G INSBURG

, Senior Circuit Judge : While residing in Kentucky, Malla Pollack applied for a job in Washington,

D.C. with t he 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 p arts of Maryland and Virginia. The AO rejected

Pollack’s applicati on 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 o f the AO , in their official capacities, claiming their refusal to consider her application violated her right to travel

pr otected by the Constitution of the United States

. The

district court entered summary judgment for the defendants

, which we now affirm.

I. Background

In 20 09 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 posi tion provided :

Who May Be J udiciary 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 metro politan area

. Pollack applied for the job3

even though she lived in Kentucky and did not work for the federal judiciary . T he AO rejected her application because

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

consideration ” specified in the vacancy announcem ent.

Pollack sent a letter to the AO arguing the geographical

limitation violated her constit utional right to travel b ecause 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 is sue that is covered by the AO’s

anti

- discrimination policy, ” which is limited to “allegations of discrimination based upon race, color, reli gion, sex, national origin, age (at least 40 years of age), disability or the denial of

a reasonable accommoda tion, or marital status.”

After having been played upon in this way, Pollack sued three employees of the AO seek ing a declaration that the y had

violated her c onstitution al right to travel and an inj unction 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

bar red 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 b y 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 against4

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 di scovery, 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 r eview

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

discriminate d against an applicant for employment

. In 19 90 the Congress instructed the AO to “ promulgate regulations providing procedures for resolving complaints of5

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,

c odified 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 groun d] ... may seek resolution of such claims through t he procedures of this System.” Th o se procedures culminate in a dec ision by the

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

or reviewed.”

We need not consider whether we are precluded from reviewing a deci sion 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. ar ea

. The

FEPS applies only to claims of discrimination on the basis of specific invidious criteria

. Indeed, w hen Pollack attempted to file a complaint based upon the denial of her constitutional right to travel , t he agency informed her it was “unable to

a ccept” 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 p rovides that a decision by the D irector of the AO

m ay 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 t ravel

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 in6

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 th e Constitution prohibits the agency from rejecting an applicant because she

do es 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 protect s 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

di fferent d octrines 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 p reviously

considered whether the rig ht to travel is implicated when a federal agency seeking to hire an employee limit s the applicant pool to residen ts of a particular area

. We will

therefore address both the constitutional provisions invoked by Pollack

, viz.

, the Privileges and Immunities C lause 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 i mmunities

Pollack first argues the AO’s geographical limitation violates the right to travel protected by A rticle IV, § 2, c lause

1 of the Constitution

, which provides : “The Citizens of each State shall be entitled to all Privileges and Immunities of

Citizens in the several S tates.” T his clause “was designed to

insure to a citizen o f St ate 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 C lause to invalidate state laws that favor residents

over non residents. I n 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 l icense to

harvest shr imp in the waters of that state

. Id. at 389, 395

– 403. Applying the same logic, the Court invalidated a n Alaska law

t hat 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 c lause when it refuses to admit a non resident

attorney to the bar up on the sam e terms as it would an attorney who resides in the state. See Supreme Court of Va. v. Fri edman , 487 U.S. 59, 62, 64

– 70 (1988); Supreme Court of

N.H. v. Piper , 470 U.S. 274, 276, 279

– 87 (1985)

.

T he 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.” B aldwin v. Fish & Game Comm’n of8

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

. T he 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, n eit her the Supreme

Court nor this c ourt has ever held an action taken by any branch of the federal government is subject to scrutiny under

the Privil eges and Immunities Clause of A rticle IV. To the contrary, we have t hrice stated broadly that the Privi leges and

Immunities Clause of A rticle 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 respect s. First, Pollack challenges a hiring practice adopted by an agency of the federal j udiciary,

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 residen ts 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

C lause 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 as9

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 res pect to their treatment of each other’s residents” (quoting Austin , 420 U.S. at 660) ).

O ther circuit s 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”); Cra mer 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 govern ment”); 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 o f Article IV, § 2 is inconsistent with the original meaning of that provision . She cites a statemen t by James Iredell, a

F ederalist delegate to the first of the two ratifying convention s held in North Carolina , as evide nce that the f ounding generation read the clause as a limitation upon the powers of10

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 anothe r;” and that

“citizens of each S tate shall be entitled to all privileges

and immunities of citizens in the several States. ” These provisions a ppear to me to be calculated for the very purpose Mr. Mason wishes to secure. C an they be consistent with any monopoly in trade and

commerce?

... [The Anti

- F ederalists 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 Const itution 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 res idents of some states over the residents of

others. It seems equally or more likely , however, that Iredell11

referred to the Privileges and Immunities Clause for the proposition th at a state may not deprive non residents of the “advantages” it extends to its own residents. Before quoting

the P rivileges and Immunities Clause, Iredell quoted the Port

Preference Cl ause, which limits the power s 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 enac ting laws favoring the shipping

inte rests 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, i t is also possible , as Pollack argues
, to read

Iredell’s statement as a claim that the Privileges and

Immunities Clause limits the power s of the federal

government

. To the extent I redel l’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, a s 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’ B r. at 27; s ee 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 t ime 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 a uthored by both F ederalists and A nti

- F ederalists were12

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, f or example,

that in 1788, when Iredell au thored 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 co nvention. 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 n either

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) ( “ T here was almost no recorded debate about the Privileges

and Immu nities 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 o f the Articles of Confederation

. In the first constitutional treatise, St. George Tu cker 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 o f

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

im munities 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 res trictions as the inhabitants thereof respectively.

3 The Records of the Federal Convention of 1787 1 12 ( Max Farrand ed., 1966)

. Like the corresponding clause in the

Constitution

, the Fourth A rtic le of C onfederation did not expressly state whether it limi ted the powers of the federal

government as well as those of the state s

. In Austin the Supreme Court explained the F ourth A rticle of C onfederation 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 c ases 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

histo rical analysis in dis cerning 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 c ommentary. See Lash , 98 Geo. L.J. at

1259

– 60

. A s Pollack points ou t , at least two state courts held it prevented the federal government from discriminating on14

the basis of state citizenship. See Douglass v. Stephens , 1 Del. Ch. 465, 477 (1821) (holding the Pr ivileges and

Immunities Clause wa s “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 p ermit 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 peri od of the Republic” concluded the clause limi ts the

extent to which a state may discrimina te 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 privil ege s and immunities of citizens in the several

states

... means only that citizens of other states shall have equal rights with our own citize ns

.... 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 mi gh t have been deprived of them”) . T he interpretation of the Privileges and

Immunities Clause that “came to dominate case law and scholarly commentary from the Founding until15

Reconstruction”

— and that is still evident in the Supreme Court’s more recent jurisprudence

— provides the clause

me rely “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, i n addition

to the Privile ges and Immunities Clause

, include d the

Interstate Rendition Clause and the Fugitive Slave Clause

, b oth of which were concerned with comit y 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 Privi leges and Immunities Clause applied to the federal government, then we might ex pec t to find it in A rticle I, § 9, alongside other limitations upon the power s of the Congress to discriminate aga inst 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 , t herefore, that t he geographical

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

under th at clause. Accordingly, w e need not consider the

defendants’ further argument s that the opportunity to apply for a job with the AO is not a “privilege ” protected by the16

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 p rotection

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 use s equal pro tection 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,

r ight to travel analysis refers to little more than a particular application of equal protection analysis”). Unlike the Privileges and Immunities Clause, t he 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 Fift h 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, whe n 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 pena lized her exercise of the right to travel

.

First, P ollack 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 obtai ning a promise of employment ... would be a major burden

. ” If the AO had reviewed her application, then it might have offer ed her a job, which might

have prompt ed her to mo ve 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

- For t Worth International Airport. The plaintiffs argued the law deterred interstate travel because some travelers preferred flights that land ed 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

- For t 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 not18

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 , 4 76

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

limitatio n 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 re sidence requirement that provide s 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 Shapir o , for example, the Court invalidated laws adopted by several

states that required an indivi dual to live in the state for at least one year before receiv ing welfare benefits. 394 U.S. at 627

. The Court has also held unconstitutional law s requiring a

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

to vo te, 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 du rational residence requirement does not directly regulate travel, it do es penalize the exercise of that righ t by prohibiting a person who has recently traveled to the state from receiving a benefit available to a long er

- term resident of

that state

.

The AO’s geographical limitation is quite different, however, because it w ould not penali ze Pollack if she decided

to travel from Kentucky to the Washington area . To the19

contrary, the geographical limitation gives Pollack an incentive to travel to Washington in order to ap ply 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 employee s 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 viola ted 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 an ything, 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 th e same reason, we think the AO’s geographical limitation does not “penal ize 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. S ee, 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 A O’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. Neva da , 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 tra vel interstate of her own accor d

. 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.

P ollack’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 “d irectly 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 doe s not hold every law that indirectly bu rdens interstate travel or21

makes it marginally less likely a person will travel interstate implicates the Constitution. Indeed n ot 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 geog raphical 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

— m ay be deemed incomp atible 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 t he 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 benefit s. 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 o bstacle to ... entry into California” and therefore did “not directly impair the exercise of the right to free interstate movement.” Id

. Just so here :
T he AO’s geographical limitation does not “directly impair” Pollack’s “right to go from one place to ano ther” 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 d iscovery

Po llack 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,

t he cost of reviewing applications, and whether it is more expensive to review an application submitted by a person who

does not reside in the Washin gton area.

A party seeking discovery under F ED

. R. C IV

. 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) (inter nal quotation marks omitted). T o 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

distr ict court’s decision to deny a motion for discovery

. Id.

T he 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.

Po llack sought to discover facts showing whether it would be

more burdensome for the AO to consider applicants from

ever y state than to limit its applicant pool to residents of the Washington metropolitan area. Th o se facts might be necessary if the court w e re required to determine whether the geographical limitation is “closely related to the advancement

of a substantial [government] interest” under the Privi leges

and Immunities Clause of A rticle IV, Friedman , 487 U.S. at 65, or whether it would survive scru tiny under the equal protection component of the Due Process Clause. As we have23

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

reach th o se issues because the AO’s geographical limitation

doe s not implicate Pollack’s right to travel under either

c lause. Because this case turns up on 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 th at it is difficult to comprehend why the AO refuse d to consider applic ants 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 m any qualified attorneys and it

must limit the total number of applicants f or certain positions

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

. It is un clear, however, why the agency would use a geographical limitation to control the size of its applicant pool

rather than c riteria that are likely to be more closely correlated

with job performance

.

Be that as it may, we hold t he 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 Im munities Clause of

A rticle IV , the equal protection component of the Due Process Clause of the Fifth Amendment, or the essential structure of

the Constitutio n. 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.