[00:00:00] Speaker 00: Case number 13 of 5263, Malapalek Appellant v. James C. Duff, Director of the Administrative Office of the United States Courts, and his official capacity at L. Ms. [00:00:11] Speaker 00: Pollack for the appellant, Mr. Interonte for the appellee. [00:00:16] Speaker 06: May it please the Court, Malapalek arguing pro se. [00:00:20] Speaker 06: I've reserved two minutes for rebuttal. [00:00:23] Speaker 06: The facts, to the extent that any have been developed in this case, are very simple, Your Honors. [00:00:29] Speaker 06: Living in the Commonwealth of Kentucky, I sent in a number of applications to the federal government for employment positions in the District of Columbia area. [00:00:37] Speaker 06: Two of these, which were sent to the Administrative Office of the U.S. [00:00:42] Speaker 06: court system, the AOC, were immediately rejected on the sole ground that I was, at the time I applied, [00:00:50] Speaker 06: resident of the Commonwealth of Kentucky and not of the DC metropolitan area. [00:00:56] Speaker 06: I attempted to use the AOC's administrative review procedure and was told that that procedure simply had nothing to do with my claim I couldn't use it. [00:01:05] Speaker 06: Therefore, I filed a lawsuit. [00:01:07] Speaker 06: The only claim I've ever raised in this lawsuit is that the AOC's actions violated the constitutional right to interstate travel, which is a fundamental right. [00:01:19] Speaker 06: There are two issues in the case. [00:01:21] Speaker 06: One is, does the right of interstate travel exist against the federal government? [00:01:26] Speaker 06: The second is, if it does exist, has the AOC burdened the right? [00:01:30] Speaker 06: I'd like to get to the second point first because it's the simplest one. [00:01:35] Speaker 06: The Supreme Court has decided in the 70s and the 80s for employment cases. [00:01:42] Speaker 06: In each of these four employment cases, two of which had to do specifically with legal jobs, and this is not included in the Frazier case, the Supreme Court held [00:01:53] Speaker 06: that the right for a non-resident of a state to apply for a job was a fundamental right under the Privileges and Immunities Clause. [00:02:05] Speaker 06: It recognized that it had been so listed going all the way back to when Justice Bushra of Washington first completed the list that we began with. [00:02:15] Speaker 06: And furthermore, that the burden which violates this right and therefore requires the government to justify its actions is near lack of substantial equality. [00:02:29] Speaker 06: Those are the words the Supreme Court used in both the Piper and the Friedman case. [00:02:34] Speaker 06: Lack of substantial equality and access to the jobs. [00:02:38] Speaker 06: though we don't know, because the record has never been completed, how many jobs and what percentage of jobs the AOC does this in, certainly the fact that there are any jobs whatsoever. [00:02:49] Speaker 04: Ms. [00:02:49] Speaker 04: Pach, the district court said the A, I'm quoting, the AO has not made it more difficult for a plaintiff to travel to D.C. [00:03:03] Speaker 04: Simply said she can't apply for a job until she does so. [00:03:07] Speaker 04: Yes, Your Honor. [00:03:08] Speaker 04: Why isn't that dispositive of this case? [00:03:11] Speaker 04: It doesn't. [00:03:12] Speaker 04: Because. [00:03:12] Speaker 04: Why isn't the district court absolutely right? [00:03:14] Speaker 04: There's no limit on your ability to travel to DC. [00:03:17] Speaker 06: Yes, Your Honor, but the right to move across state lines, the right to go temporarily or permanently by getting a job, that by itself has been accepted by the Supreme Court in four cases. [00:03:33] Speaker 06: as a violation of the interstate right of travel, a fundamental right which, at least for the states, is covered by the privileges and immunities clause. [00:03:42] Speaker 06: The cases are Hickler v. Orbeck, the Alaska Hire case, United Construction, I forget the full name of the union, v. Camden, [00:03:51] Speaker 06: Supreme Court of New Hampshire v. Piper and Supreme Court of New Hampshire, MSPARI, and Supreme Court of Virginia v. Friedman. [00:03:59] Speaker 04: What about McCarthy v. Philadelphia? [00:04:04] Speaker 06: That only had to do with the right to require someone to live locally while employed, which is completely different. [00:04:13] Speaker 06: The Supreme Court made that clear in that case. [00:04:16] Speaker 04: May I read you a sentence from the case? [00:04:17] Speaker 04: Certainly. [00:04:19] Speaker 04: The Court said that it had never, quote, questioned the validity of the condition placed upon municipal employees that a person be a resident at the time of his application. [00:04:35] Speaker 06: No, sir. [00:04:36] Speaker 06: That's not exactly what it said. [00:04:37] Speaker 06: It said, well, when I say questioned, they hadn't ruled on that. [00:04:42] Speaker 06: But McCarthy didn't include that, and in the Camden case, [00:04:47] Speaker 06: The Supreme Court made clear that that was a major issue, and then that violated the privileges and immunities clause unless Camden should show a sufficient burden. [00:04:57] Speaker 06: And since the case then vanished from the court docket, I don't really know how that came out in reality. [00:05:04] Speaker 06: But these are four Supreme Court cases stating this, and the concept that this is a fundamental [00:05:12] Speaker 06: has been accepted by the Supreme Court since, as I said, Justice Bushraud Washington first created a list back in 1825. [00:05:20] Speaker 06: And if the right does exist against the Federal Government, [00:05:27] Speaker 06: then this is a violation. [00:05:29] Speaker 06: In the Friedman case, the question was whether it was a violation of this fundamental right for the Supreme Court of Virginia to not allow non-resident lawyers to wade into the Virginia bar. [00:05:43] Speaker 06: There was no doubt. [00:05:44] Speaker 06: The Commonwealth of Virginia freely allowed non-resident attorneys to join the Virginia State Bar. [00:05:51] Speaker 06: But unlike residents of Virginia, [00:05:54] Speaker 06: they always had to take the bar exam. [00:05:57] Speaker 06: And that by itself was held a violation of the fundamental right into state travel in this fashion, which was, against the states, part of the privileges and immunities clause of Article II. [00:06:10] Speaker 02: And what was the last time that the right to travel was applied against the federal government? [00:06:20] Speaker 06: It hasn't been. [00:06:22] Speaker 06: There are a number of cases which have been raised in the papers by the AOC and the trial court where federal courts have said in dicta and without any analysis whatsoever that the privileges and immunities clause does not apply against the federal government. [00:06:40] Speaker 06: However, [00:06:42] Speaker 06: There are two problems with this. [00:06:44] Speaker 06: First is the only piece of information anyone so far has been able to unearth about what the ratification era population thought it meant was a statement by James Erdell, one of the first justices of the U.S. [00:07:00] Speaker 06: Supreme Court and the leading Federalist in North Carolina. [00:07:04] Speaker 06: He said quite clearly, [00:07:06] Speaker 06: that the privileges and immunities clause of Article II is a limit on the federal government. [00:07:11] Speaker 06: He used that in a reply to an objection made by George Mason to the Constitution's being ratified. [00:07:20] Speaker 06: Furthermore, there's dicta. [00:07:23] Speaker 06: And it is dicta. [00:07:24] Speaker 06: I mean, all of this is dicta. [00:07:25] Speaker 06: Nobody has a case directly on point. [00:07:28] Speaker 06: There's strong dicta from the Supreme Court going back to Crandell versus Nevada. [00:07:33] Speaker 06: where the Supreme Court pulled out of its tool case as an axiom to get around what was then a difficult federalism question, the concept that obviously from the structure of the Constitution, no specific language, so if the Privileges and Immunities Clause is limited, this doesn't deal with Crandall v. Nevada. [00:07:54] Speaker 06: that every citizen has the right to come to the seat of the federal government, in other words, Washington, DC, for a number of purposes, one of which was, rather two of which were, jobs, to share its offices, to engage in administering its functions. [00:08:14] Speaker 06: This, of course, is not a right to be hired, but it certainly is a right to be considered whether you will be hired, [00:08:24] Speaker 06: So that whatever the limits of the right to travel, which is a horrible thing to name because it's not always about traveling, to operate across borders rather than have a balkanized set of states or jurisdictions, whatever that right is against the federal government that exists at all, the right is to go to DC to try to work for the government, which is what I wanted to do. [00:08:52] Speaker 06: Furthermore, the only case where it actually came up where it could have been a holding was Frazier v. He in the Fifth Circuit, where someone appealed the logo rule of the Eastern District of Louisiana federal court, which refused to allow people who had neither a residence nor an office inside Louisiana to join that bar. [00:09:19] Speaker 06: The Fifth Circuit said, and here it was a holding, [00:09:22] Speaker 06: that the Privileges and Immunities Clause of Article IV did not bind the Federal government, but gave no reason for it, just said it, okay, which is the way all these cases are born. [00:09:32] Speaker 06: And the Supreme Court reversed. [00:09:35] Speaker 06: Now, it chose, of course, not to reach the constitutional issue because it didn't have to. [00:09:40] Speaker 06: Instead, it used its supervisory power. [00:09:44] Speaker 06: If you have no further questions, Your Honors, I'll save my last few seconds for my rebuttal. [00:09:49] Speaker 04: Thank you. [00:09:50] Speaker 06: Thank you, Your Honors. [00:09:58] Speaker 01: Good morning. [00:10:00] Speaker 01: May it please the Court, John Interrante, for the Administrative Office of the United States Courts. [00:10:06] Speaker 01: This Court should affirm the District Court's grant of summary judgment in favor of the Administrative Office. [00:10:12] Speaker 01: The core issue here, as conceded by Ms. [00:10:15] Speaker 01: Pollack, is whether Ms. [00:10:18] Speaker 01: Pollack has a valid constitutional right to travel claim. [00:10:22] Speaker 01: She does not. [00:10:24] Speaker 01: The District Court correctly found [00:10:26] Speaker 01: that Ms. [00:10:26] Speaker 01: Pollack's constitutional right to travel was not impeded by the geographic restriction contained in certain of the vacancy announcements that she applied for. [00:10:36] Speaker 01: It was not present in all of them, and she was able to apply for three jobs that she was considered for and not chosen. [00:10:45] Speaker 01: Ms. [00:10:46] Speaker 01: Pollack is free to travel to or from the District of Columbia, to visit the District of Columbia, or to take residency in the district or one of the states in the district commuting area. [00:11:01] Speaker 01: As Judge Tatel pointed out, the court's finding that the administrative office's restriction did not make it more difficult for Ms. [00:11:11] Speaker 01: Pollack to travel to D.C. [00:11:13] Speaker 01: is in fact and was dispositive. [00:11:16] Speaker 01: If the court doesn't have any questions, specific questions on the constitutional right to travel, we believe that that is the correct one. [00:11:23] Speaker 05: Why is Hicklin in opposite? [00:11:27] Speaker 01: Hicklin is an Article 4 privileges and immunities clause case. [00:11:35] Speaker 01: It's the second category that was identified in Sands v. Roe, the right to visit the District of Columbia. [00:11:43] Speaker 01: I think that's an important distinction. [00:11:45] Speaker 01: Miss Pollack does ground largely ground her claim in article four because she [00:11:52] Speaker 01: argues this is such a fundamental right that would be in the Constitution itself or discussed at the time of the framing. [00:12:01] Speaker 01: Her claim here is that she wants to move to the district and become a resident to work for the administrative office support. [00:12:11] Speaker 01: So that would be a distinction with the Hicklin Article IV category. [00:12:17] Speaker 01: And Hicklin also recognizes [00:12:21] Speaker 01: the second category in that there first has to be a fundamental right that bears on the vitality of the nation as a single entity, which is the language in Baldwin. [00:12:33] Speaker 01: And the judge, the district court below correctly found that [00:12:38] Speaker 01: the right to travel to the district to seek employment does not implicate the vitality of the nation in the way that it is. [00:12:48] Speaker 04: But it's not just traveling to seek employment. [00:12:50] Speaker 04: It's traveling to seek employment with the federal government. [00:12:54] Speaker 01: That's correct. [00:12:55] Speaker 01: And Judge Ginsburg's point that what cases, Supreme Court cases, have found that the privileges and immunities clause or article or the right to travel has been applied to the federal government. [00:13:08] Speaker 01: And as Ms. [00:13:09] Speaker 01: Pollack concedes, there are none. [00:13:11] Speaker 01: The Fifth Circuit found in the Frazier v. Heavey case that the privileges and immunities clause did not apply to the federal government. [00:13:22] Speaker 01: The Supreme Court did not reach the constitutional question in Frazier. [00:13:27] Speaker 01: It exercised its supervisory powers to reverse. [00:13:31] Speaker 02: Mr. Androna, you overestimate me. [00:13:33] Speaker 02: I was asking a question, not making a point. [00:13:35] Speaker 02: did not mean to. [00:13:38] Speaker 02: If the right to travel applies against the federal government, what is the standard by which we evaluate infringement or not? [00:13:50] Speaker 01: You would have to look at the nature of the [00:13:54] Speaker 01: Well, the first question would be, and we believe that's the case here, is that the right to travel was not implicated or impeded by the vacancy announcement. [00:14:05] Speaker 01: So in that case, even if the court were to find that in some cases it could be applied to the federal government, we would submit in the first instance that it's not. [00:14:15] Speaker 01: If it did apply to the federal government, you would [00:14:20] Speaker 01: likely be in the Hicklin category, where you go to the second and third prong of Hicklin, which would be a heightened scrutiny, strict scrutiny, to look at the basis, the particular evil posed by the non-residents, if that's the standard, and then whether it's narrowly tailored, the restriction is narrowly tailored to... So the Yale would need more than a rational basis? [00:14:50] Speaker 01: If the court were to find that there is, that the right to travel does apply to the federal government, and that in this case that it was, the AO restriction did impede Ms. [00:15:04] Speaker 01: Pollitt's right to travel, then it would be in a heightened scrutiny. [00:15:10] Speaker 01: The district court denied it. [00:15:11] Speaker 02: Would you be able to meet that scrutiny? [00:15:14] Speaker 01: We have argued that we believe that we would in this case that [00:15:21] Speaker 01: The administrative office first in advertising this position opened it, in the first instance, to a nationwide pool of applicants, those that work for the court system or the administrative office. [00:15:36] Speaker 01: And then expanding it in certain cases to expand the pool, it first looks at the DC commuting area. [00:15:45] Speaker 01: and attorneys in that area. [00:15:47] Speaker 02: And what was the compelling reason for limiting the pool? [00:15:53] Speaker 01: Limiting the pool in the instance of the D.C. [00:15:55] Speaker 01: commuting area. [00:15:56] Speaker 02: The interest is... It was either step, but you ended up... I guess that's the only one you really need to defend. [00:16:03] Speaker 01: In the first instance, the administrative office [00:16:08] Speaker 01: properly would find that there's a pool of talent and attorneys within the court system. [00:16:13] Speaker 04: No, no, no, but not within the court system. [00:16:16] Speaker 01: The expansion to the DC commuting area is justified and we've argued that it limits the [00:16:32] Speaker 01: administrative burden of processing a large number of applications, that in limiting it to the DC commuting area, there is a sufficient number of qualified applicants found that can be referred for consideration. [00:16:49] Speaker 01: You have, in addition to the court system and the expertise that court employees may have, you have in the DC commuting area [00:16:57] Speaker 01: a talent of attorneys often that have experience with the legislative branch, working for Congress perhaps or the courts. [00:17:04] Speaker 02: Well that's certainly true, but there may be some out there else in the real world too. [00:17:09] Speaker 02: So the question is what's the compelling reason for, by hypothesis at this point, we've got a fundamental right applicable to federal government and are in search of a compelling [00:17:21] Speaker 02: by your own standard compelling rationale and it seems to be based on administrative burden. [00:17:32] Speaker 01: That is our argument. [00:17:33] Speaker 02: How many applications did you get or would you get? [00:17:36] Speaker 02: How much of a burden would it be to allow people from Kentucky to apply? [00:17:44] Speaker 01: In the appendix, [00:17:46] Speaker 01: We provided an appendix as part of our brief and AA20 and AA21 discussed the five vacancies that Ms. [00:17:58] Speaker 01: Pollack applied for. [00:18:00] Speaker 01: So I can start with that. [00:18:01] Speaker 01: The first job she applied for was advertised [00:18:07] Speaker 01: in December 2009 to January 2010. [00:18:10] Speaker 02: Are we talking about something like the difference between 70 and 200 or something like that? [00:18:16] Speaker 01: Yes, so in the one that was limited to the DC commuting area, the referred applicants were 70. [00:18:21] Speaker 01: The two that [00:18:24] Speaker 01: were nationwide, that had no restrictions, were 159 and 399. [00:18:28] Speaker 02: So you each get 900 or so applications for three or four partnerships every year. [00:18:36] Speaker 02: The administrative burden of sorting those out is not so great that we don't have time to do our work, nor is it, in fact, significant at all. [00:18:51] Speaker 02: Is your burden any greater? [00:18:54] Speaker 01: It's different for the clerk, for the court looking to hire clerks, you're looking for the merit principle in 5 USC 2301B1 that applies, has been applied to the courts, talks about recruitment from appropriate sources. [00:19:15] Speaker 01: So the court in hiring clerks traditionally may be looking at a nationwide pool of attorneys, recent graduates perhaps, that have gone to law schools throughout the country. [00:19:28] Speaker 01: And that would be your pool. [00:19:30] Speaker 01: When the administrative office makes its cut, when it extends it to the DC commuting area, it doesn't further restrict except for the minimum qualifications for the job within that pool. [00:19:42] Speaker 01: So the court's sources may be different than what the administrative office is looking at. [00:19:47] Speaker 01: There are... But that's self-imposed. [00:19:50] Speaker 02: I mean, that's because you've limited it to the metropolitan area. [00:19:53] Speaker 01: Correct. [00:19:54] Speaker 01: But what the administrative office is looking for is a sufficient number of qualified applicants from nationwide within the court. [00:20:04] Speaker 02: So you're not looking for the most qualified, just the minimum qualified. [00:20:09] Speaker 01: No, the finding is that the referred applicants are those that are minimally qualified, and within those referred applicants, the administrative office finds that it has a sufficient number of qualified applicants that it doesn't need to expand further than that. [00:20:25] Speaker 02: Now, it does in many cases go nationwide. [00:20:31] Speaker 02: rationale here is in not expending resources to evaluate more people because you don't think it will be productive of a better selection. [00:20:42] Speaker 01: And it would depend on the jobs. [00:20:43] Speaker 01: The administrative office is hiring within the fiscal year that we've discussed in the declaration. [00:20:49] Speaker 01: I believe there are 14. [00:20:51] Speaker 01: positions. [00:20:52] Speaker 01: So maybe two of those, they go nationwide. [00:20:55] Speaker 01: For the third one, not so broad. [00:20:58] Speaker 01: And that they may, in some instances, and we would contend that it's a rational basis analysis here, that- What changed? [00:21:06] Speaker 02: What changed? [00:21:07] Speaker 02: The strict scrutiny. [00:21:09] Speaker 01: Well, I take that back. [00:21:12] Speaker 01: The assumption we're arguing is that there is a fundamental right, which we don't agree with. [00:21:19] Speaker 01: The administrative office may need to hire somebody on short notice. [00:21:23] Speaker 01: They may want to look at a smaller pool if they think that there are not qualified applicants within that pool to have a fair and open competition. [00:21:32] Speaker 01: One of the vacancies that was advertised in the fiscal year 2010 was limited to the administrative office only. [00:21:41] Speaker 01: And there were four applicants that was a highly technical position. [00:21:46] Speaker 01: So there's a difference depending on the nature of the job. [00:21:50] Speaker 01: It may be that they need to hire on short notice that going through hundreds of applicants. [00:21:57] Speaker 02: But that's not the case here, correct? [00:22:01] Speaker 02: You've never advanced that as a rational. [00:22:02] Speaker 01: We have not, but we would on a rational basis. [00:22:08] Speaker 03: Thank you. [00:22:08] Speaker 03: Okay, thank you. [00:22:10] Speaker 03: How much time did Ms. [00:22:11] Speaker 03: Pollack have left? [00:22:13] Speaker 03: You can take a whole minute. [00:22:21] Speaker 06: Baldwin said that paying more for game permit was not. [00:22:27] Speaker 06: The Baldwin case said that paying more money for a hunting permit was not bearing on the vitality of the nation, but that not being able to apply for a job was. [00:22:38] Speaker 06: The Supreme Court specifically held that job applications, and for that matter legal ones, were fundamental rights. [00:22:51] Speaker 06: In Heave, the Supreme Court said that this geographic limitation was both irrational and arbitrary. [00:22:58] Speaker 06: As far as the number of jobs out there, that's a fact issue. [00:23:03] Speaker 06: And the judge granted summary judgment without either allowing me any discovery or even, for that matter, giving me notice so that I could try to submit information. [00:23:17] Speaker 06: Furthermore, in Sayans v. Roe, the Supreme Court made clear that $10 million a year being saved by California was not a substantial interest. [00:23:29] Speaker 06: And on top of that, it said the fact that you can fix your money problem by discriminating against people from out of the area does not give you the constitutional right to do so. [00:23:43] Speaker 05: What do you think is your best authority for the proposition that [00:23:47] Speaker 05: federal government is covered by the Privilege and Immunities Clause. [00:23:50] Speaker 06: I think it's James Yardell. [00:23:52] Speaker 05: I'm sorry? [00:23:53] Speaker 06: I think it's the James Yardell statement. [00:23:55] Speaker 06: Nobody who's ever written an opinion that I can find that mentions the Privilege and Immunities Clause of Article IV has any basis for its statement about whether it does or does not limit the federal [00:24:07] Speaker 06: The federal government, they just say so. [00:24:09] Speaker 06: James Irdell was one of the people who was at the drafting convention. [00:24:13] Speaker 06: He was one of the head federalists in the fight to get the Constitution out of court. [00:24:16] Speaker 05: Do you have any case authority? [00:24:18] Speaker 06: Excuse me? [00:24:18] Speaker 05: Do you have any case authority? [00:24:20] Speaker 05: We've had a lot of years that have passed since that statement was made. [00:24:22] Speaker 06: You don't have any case authority because truthfully, the federal government as a whole doesn't think this is a sensible thing to do. [00:24:28] Speaker 06: So nobody's had to litigate it. [00:24:30] Speaker 04: Well, what about Article 4? [00:24:31] Speaker 04: I was surprised when I found no cases. [00:24:32] Speaker 04: What about the language of Article 4 itself? [00:24:34] Speaker 04: It's all about the States. [00:24:36] Speaker 04: No, it doesn't limit itself to the States. [00:24:40] Speaker 04: It's about full faith and credit. [00:24:49] Speaker 04: It's about full faith and credit. [00:24:52] Speaker 04: It's about extradition of felons to other States, fugitive slave laws, the mission of new States, congressional power over territories. [00:25:03] Speaker 04: It's the only mention of Congress. [00:25:05] Speaker 06: Well, congressional power over territories isn't state, it's federal. [00:25:09] Speaker 06: And I think that Article 4 is really the catch-all place. [00:25:12] Speaker 06: If there weren't anywhere else to put it, we'd put it there. [00:25:14] Speaker 06: That's hardly a reason to ignore the language. [00:25:17] Speaker 04: What language in Article 4 would you rely on? [00:25:20] Speaker 06: Judge, I would ask you what case. [00:25:22] Speaker 06: Article 4 says, the citizens of each state shall be entitled to all privileges and duties of citizens in the several states. [00:25:30] Speaker 06: It doesn't say, [00:25:33] Speaker 06: The state chant trample on it. [00:25:34] Speaker 06: It doesn't say the federal government. [00:25:36] Speaker 04: But you can see, don't you, that the amendment is articles all about the states and state power, right? [00:25:43] Speaker 06: I have yet. [00:25:44] Speaker 04: I don't know. [00:25:45] Speaker 04: I'm just looking at the language of the article. [00:25:47] Speaker 06: Forget the case law for a minute. [00:25:49] Speaker 06: I understand that, Your Honor. [00:25:51] Speaker 06: But this particular section, furthermore, the full faith and credit clause does mention Congress, as does the control of territories. [00:26:03] Speaker 06: But the article clause two, section two, the privileges and immunities clause, carefully doesn't mention an actor. [00:26:15] Speaker 05: Yeah. [00:26:17] Speaker 05: OK. [00:26:18] Speaker 05: Anything else? [00:26:19] Speaker 05: I want to ask the government something about discovery. [00:26:20] Speaker 04: OK. [00:26:20] Speaker 04: Thank you, Ms. [00:26:22] Speaker 04: Bach. [00:26:22] Speaker 04: Judge Edwards has a question for the government, I think, about discovery, right? [00:26:27] Speaker 04: Mm-hmm. [00:26:27] Speaker 04: Yeah. [00:26:28] Speaker 04: Go ahead. [00:26:29] Speaker 04: You can come back up. [00:26:31] Speaker 05: I'm sorry, I forgot. [00:26:34] Speaker 05: How can I square or make any sense out of the district court's disposition of the denial of discovery? [00:26:42] Speaker 05: There is case law in the circuit which strongly suggests, and I think as a matter of common sense it would be so, that you don't decide the summary judgment motion and then moot the discovery request. [00:26:58] Speaker 05: That makes no sense. [00:26:59] Speaker 05: And we have some cases that suggest that makes no sense. [00:27:03] Speaker 05: The Disha Court mooted it out. [00:27:05] Speaker 05: If the Disha Court had said it was frivolous, that is, in the Court's view, it made no sense. [00:27:12] Speaker 05: So it doesn't matter. [00:27:13] Speaker 05: I'm doing it in the wrong order, but I see no merit to it. [00:27:17] Speaker 05: But the Court just said, it's moot now because I've decided against her. [00:27:22] Speaker 05: That makes no sense. [00:27:25] Speaker 01: Well, I would suggest a couple things. [00:27:27] Speaker 01: First, Ms. [00:27:28] Speaker 01: Pollack, in her reply, does say she's never argued it's an abuse of discretion for the district court to have denied that motion. [00:27:38] Speaker 05: So you're saying she's forfeited the claim of the challenge? [00:27:41] Speaker 05: I missed that one. [00:27:43] Speaker 01: Well, she does say in her reply it's not an abuse of discretion, so that there is a forfeit. [00:27:48] Speaker 05: Well, I'll have to go back and look at that carefully. [00:27:49] Speaker 05: You're saying that she never raised it preliminarily? [00:27:53] Speaker 05: You're arguing now that it was forfeited? [00:27:56] Speaker 01: In her reply, I believe that... No, I understand. [00:27:59] Speaker 05: You're saying she didn't raise it until... I don't know whether this is right or wrong. [00:28:03] Speaker 05: I want to make sure I understand what your answer is. [00:28:04] Speaker 05: You're saying she didn't raise it until a reply, so it's been forfeited. [00:28:09] Speaker 01: That's the first argument. [00:28:10] Speaker 05: Okay. [00:28:10] Speaker 05: Let's assume that's not right, and I don't know whether it's right or not. [00:28:14] Speaker 05: What's your answer on how could the district court simply move out the discovery request? [00:28:21] Speaker 05: There's case law that, and I've been involved in one of these cases, it does not make sense to do that. [00:28:28] Speaker 01: I believe that it's consistent with the court's decision in that finding that the vacancy announcement, the restriction did not violate a fundamental right to travel and that at best there's some... So there's nothing to discuss. [00:28:45] Speaker 05: That's essentially what you're saying. [00:28:47] Speaker 05: The district court was essentially saying there's nothing to discuss here, so I'm not going to give any discovery over because you can't get to it. [00:28:53] Speaker 01: Correct, because there's sufficient evidence by the government's submissions for a rational basis analysis. [00:29:00] Speaker 01: And so there wasn't a need for discovery. [00:29:04] Speaker 01: Ms. [00:29:04] Speaker 04: Pollack, would you like a minute to respond to this? [00:29:06] Speaker 06: Yes, Your Honor. [00:29:07] Speaker 06: I won't do any more argument. [00:29:09] Speaker 06: I just want to clarify the procedure because the government is confusing it. [00:29:12] Speaker 06: There were two different discovery requests at issue. [00:29:17] Speaker 06: To tell you the truth, I lost my temper privately when the government kept pushing the case along, extending it, and [00:29:26] Speaker 06: never even giving me an answer. [00:29:28] Speaker 06: So I moved for procedurally early discovery. [00:29:34] Speaker 06: That is what I have never argued was an abuse of discretion. [00:29:38] Speaker 06: However, separately, [00:29:41] Speaker 06: And the discovery that I was denied is in my response to the original, to the government's motion to dismiss or only alternative summary judgment, I made what was then I think a 56-F and is now a 56-D suggestion, which I've included in my reply brief. [00:30:00] Speaker 06: stating that I hadn't had any discovery at all and that I hadn't even had a chance to look at the job announcements that the government was relying on and asked for discovery. [00:30:10] Speaker 04: Did you raise that in your blue brief? [00:30:13] Speaker 04: I think that's what the government was getting at. [00:30:16] Speaker 04: Did you raise that in your first brief to the court? [00:30:20] Speaker 06: In the opening brief, yes. [00:30:21] Speaker 06: I did mention the lack of discovery. [00:30:23] Speaker 04: I most certainly did. [00:30:25] Speaker 04: Did you argue that that was a basis for reversal? [00:30:28] Speaker 06: I argued that that was incorrect. [00:30:29] Speaker 06: Yes, Your Honor. [00:30:30] Speaker 06: And then in my reply brief, I clarified the procedural mistake that the government has just repeated. [00:30:35] Speaker 06: OK. [00:30:36] Speaker 04: Thank you very much. [00:30:37] Speaker 04: Case submitted.