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Pollack v. Duff

United States District Court, District Circuit

August 6, 2013

JAMES C. DUFF, Director of the Administrative Office of the United States Courts,, Defendants.



Plaintiff Malla Pollack, a resident of Kentucky, was deemed ineligible to apply for a position at the Administrative Office of the United States Courts (“AO”) because the job vacancy announcement was restricted to current AO employees and residents of the District of Columbia metropolitan area. Compl. ¶¶ 4, 13, 16 [Dkt. # 1]. She has filed this action against the AO claiming that the geographical limitation on the pool of applicants violated her constitutional right to travel, the Privileges and Immunities Clause in Article IV, the Fifth Amendment, the Fourteenth Amendment, and “the structure and purpose of the Constitution as a whole.” Id. ¶¶ 1, 11–13.

Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative for summary judgment, on November 1, 2011. Defs.’ Mot. to Dismiss [Dkt. # 9] (“Defs.’ Mot.”); Mem. of P. & A. [Dkt. # 9] (“Defs.’ Mem.”). On August 24, 2011, the Court granted defendants’ motion to dismiss for lack of subject matter jurisdiction, on the grounds that the government had not waived its sovereign immunity from suit. Mem. Op. [Dkt. # 18]. In light of its ruling, the Court did not go on to address the merits of the dispute, and it did not reach defendants’ alternative jurisdictional argument.

Plaintiff appealed the dismissal of her case. Notice of Appeal [Dkt. # 19]. The U.S. Court of Appeals for the District of Columbia Circuit ruled that the AO was not immune, and it remanded the case for further proceedings. Mandate and Judgment [Dkt. # 22]. Since the motion to dismiss was fully briefed by the parties, [1] that motion is now ripe for decision. The Court finds that the AO’s decision to limit the geographic area of consideration for certain of its job vacancies did not offend the Constitution. The AO’s action did not prevent, deter, impede, burden, or penalize travel by the plaintiff to or from Kentucky, the District of Columbia, or anywhere else.


Plaintiff Malla Pollack, an attorney who lives in Kentucky, applied for a job as an attorney with the AO. Compl. ¶¶ 4, 11. The job announcement at issue, number 10-OFS-300782, was open to the following applicants: “Judiciary wide and All Sources – Washington Metropolitan Area.” Id. ¶¶ 10–12. This meant that the AO would consider current judiciary employees regardless of their location, and it would consider non-judiciary employees not claiming a preference entitlement located in the Washington, D.C. metropolitan area. Id. ¶¶ 11, 12, 16. Pollack applied for the position as a non-judiciary employee, and the AO rejected the application because she does not reside within the Washington metropolitan area. Id. ¶¶ 11, 13. Pollack sued, claiming that the AO’s limitation of the applicant pool to a geographic area violated her constitutional right to travel. Id. ¶ 1. Aside from claiming sovereign immunity, defendants moved to dismiss for failure to state a claim, or in the alternative for summary judgment, because the geographic limitation in the AO’s job announcement does not violate the Constitution. Defs.’ Mem. at 16–23.


In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement, . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court “may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II. Failure to State a Claim

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 679, quoting Fed. R. Civ. Pro. 8(a)(2). A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action, ” id. at 678, quoting Twombly, 550 U.S. at 555, and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. In ruling upon a motion to dismiss, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002) (citations omitted).

III. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a ...

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