United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 8, 2012             Decided December 14, 2012

                         No. 11-5283

                       MALLA POLLACK,
                         APPELLANT

                               v.

  THOMAS F. HOGAN, DIRECTOR OF THE ADMINISTRATIVE
  OFFICE OF THE UNITED STATES COURTS - IN HIS OFFICIAL
                   CAPACITY, ET AL.,
                      APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:10-cv-00866)


     Malla Pollack, pro se, argued the cause and filed the briefs
for appellant.

    John G. Interrante, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Jonathan R. Hammer, Special Assistant U.S.
Attorney, entered an appearance.

   Before: HENDERSON and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                                 2

    Opinion for the Court filed PER CURIAM.

    PER CURIAM: Malla Pollack, a lawyer and resident of
Kentucky, would like to work for the Administrative Office of
the United States Courts in Washington, D.C.                    The
Administrative Office rejected her application because she did
not live or work in the Washington metropolitan area.
Thereafter, she brought suit against officials of the
Administrative Office, solely in their official capacities, alleging
that they rejected her job application in violation of her
constitutional rights. The district court dismissed Pollack’s
complaint, concluding that it lacked jurisdiction because the
Administrative Office has sovereign immunity from suit. We
reverse.

                                 I

     The facts of the case are undisputed. In April 2009, Pollack
applied online for a job as an Attorney-Advisor at the
Administrative Office (AO), the central administrative support
organization for the federal judiciary. The job announcement
stated that only applicants living or working in the Washington
metropolitan area would be considered. Pollack is a resident of
Kentucky who was not working in the Washington area. In
January 2010, she received an automated rejection notice stating
that her application had been turned down because she did not
live or work in the specified geographic area. In response,
Pollack raised informal objections with AO staff, arguing that
the geographic limitation was unconstitutional. The AO’s
Human Resources Department responded with a letter and legal
memorandum disagreeing with Pollack’s constitutional
argument. The letter stated that her only means of redress was
to file a complaint with the AO’s Fair Employment Practices
Staff alleging discrimination on the basis of race, color, religion,
sex, national origin, age, disability, or marital status.
                                 3

     But Pollack did not believe that the AO had discriminated
against her on the basis of race, color, religion, sex, national
origin, age, disability, or marital status. Instead, she contended
that the geographic limitation on applicants for employment
violated her “fundamental constitutional right to travel,” and she
sent the Fair Employment Practices Staff a letter outlining that
contention. The Staff replied that it could not accept her
complaint because it did “not raise an issue that is covered by
the AO’s anti-discrimination policy.”

     Having thus exhausted her administrative remedies, Pollack
filed the instant suit in district court. Her complaint alleged that
AO officials had rejected her application in violation of the
Constitution, and she requested injunctive and declaratory (but
not monetary) relief against those individuals in their official
capacities. Specifically, she sought an injunction prohibiting the
defendants from discriminating against job applicants on the
basis of their place of residence within the United States, and
ordering the defendants to consider her past and future
applications without regard to her place of residence. The
defendants moved to dismiss the suit both for lack of subject
matter jurisdiction, see FED. R. CIV. P. 12(b)(1), and for failure
to state a claim, see FED. R. CIV. P. 12(b)(6). The district court
granted the motion on both grounds. The sole basis for its
jurisdictional ruling was that the suit was barred by sovereign
immunity. Pollack v. Duff, 806 F. Supp. 2d 99, 105 (D.D.C.
2011).

                                 II

     As a general rule, the United States may not be sued without
its consent. See United States v. Mitchell, 463 U.S. 206, 212
(1983). Pollack argues that her suit is not barred by sovereign
immunity, even in the absence of a waiver indicating consent,
under the so-called Larson-Dugan exception to the general rule.
                                 4

Under this exception, “suits for specific relief against officers of
the sovereign” allegedly acting “beyond statutory authority or
unconstitutionally” are not barred by sovereign immunity.
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
689, 693 (1949); see Dugan v. Rank, 372 U.S. 609, 621-22
(1963). The exception is based on the principle that such ultra
vires action by a federal officer “is beyond the officer’s powers
and is, therefore, not the conduct of the sovereign.” Larson, 337
U.S. at 690.

     Pollack’s claim falls within the Larson-Dugan exception.
Her sole allegation is that the named officers acted
unconstitutionally, and she requests only injunctive and
declaratory relief. Although the district court suggested and the
defendants argue that the Larson-Dugan exception is limited to
cases alleging that defendants have acted beyond statutory
authority, Pollack, 806 F. Supp. 2d at 104, there is no basis for
such a limitation in the logic of the “ultra vires” rationale for the
exception. Moreover, such a limitation contradicts Larson’s
own language, which excepts suits alleging “that the agent acted
beyond statutory authority or unconstitutionally.” 337 U.S. at
693 (emphasis added). It is also contrary to the Supreme
Court’s subsequent decision in Dugan, which noted “recognized
exceptions” to the general rule of federal sovereign immunity,
for suits alleging that: “(1) action[s] by officers [are] beyond
their statutory powers and (2) even though within the scope of
their authority, the powers themselves or the manner in which
they are exercised are constitutionally void.” 372 U.S. at 621-22
(emphasis added). And it is likewise contrary to this Circuit’s
reading of the Larson-Dugan exception. See Swan v. Clinton,
100 F.3d 973, 981 (D.C. Cir. 1996) (explaining that the
exception “holds that sovereign immunity does not apply as a
bar to suits alleging that an officer’s actions were
unconstitutional or beyond statutory authority” (emphasis
added)); Clark v. Library of Cong., 750 F.2d 89, 102 (D.C. Cir.
                                5

1984) (noting that it “is well-established that sovereign
immunity does not bar suits for specific relief against
government officials where the challenged actions of the
officials are alleged to be unconstitutional or beyond statutory
authority” (emphasis added)).

     The defendants further urge that there is another limitation
on the Larson-Dugan exception. Seizing upon the Larson
Court’s statement that in “a suit against an agency of the
sovereign” it is “necessary that the plaintiff claim an invasion of
his recognized legal rights,” Larson, 337 U.S. at 693, the
defendants maintain that “sovereign immunity bars” Pollack’s
claim because she does not have a “viable constitutional right-
to-travel claim.” AO Br. 31. But this argument fails to consider
the Court’s statement in its full context and, as Larson itself
explained, “confuses the doctrine of sovereign immunity with
the requirement that a plaintiff state a cause of action.” Larson,
337 U.S. at 692-93. As the Court stated in full:

         It is a prerequisite to the maintenance of any action for
         specific relief that the plaintiff claim an invasion of his
         legal rights, either past or threatened. . . . If he does
         not, he has not stated a cause of action. This is true
         whether the conduct complained of is sovereign or
         individual. In a suit against an agency of the
         sovereign, as in any other suit, it is therefore necessary
         that the plaintiff claim an invasion of his recognized
         legal rights. If he does not do so, the suit must fail
         even if he alleges that the agent acted beyond statutory
         authority or unconstitutionally.

Id. at 693 (emphasis added). Here, the plaintiff has claimed an
invasion of her legal rights -- specifically, of an alleged
constitutional right to travel that is enforceable against the
federal government. Whether there is such a right, and whether
                                  6

any such right is applicable to Pollack’s case, goes to the merits
of her claim and not to the AO’s sovereign immunity.*

     The district court’s conclusion that it lacked subject matter
jurisdiction over Pollack’s complaint rested solely on the ground
that the defendants have sovereign immunity. On appeal, the
defendants argue that, if we reject their sovereign immunity
argument, we should nonetheless find judicial review
unavailable on the alternative ground that the Administrative
Office of the United States Courts Personnel Act of 1990, Pub.
L. No. 101-474, 104 Stat. 1097 (1990) (codified at 28 U.S.C.
§ 602 note), evidences a clear congressional intention to
preclude judicial review of constitutional claims relating to
personnel actions by the AO. And if all of their jurisdictional
arguments fail, the defendants urge us to reach the merits and
determine that Pollack has no constitutional claim against the
AO. Pollack would like us to reach the merits as well, although
she, unsurprisingly, urges us to reach the opposite conclusion.

     The district court did not address the defendants’ alternative
jurisdictional argument, and we will follow our usual (although
hardly universal) practice of declining to address arguments

     *
      Larson did note that there may be some intertwining of the
merits and jurisdictional inquiries in cases raising statutory claims
because, although a claim that an officer has exceeded his “delegated
power” is not barred by sovereign immunity, a “claim of error in the
exercise of that power” is barred. 337 U.S. at 690. But Pollack does
not assert a statutory claim against the AO; her only claim is
constitutional. Larson also noted that “there can be no question that
dismissal of a suit in which ‘the alleged claim under the Constitution
or federal statutes clearly appears to be . . . made solely for the
purpose of obtaining jurisdiction or . . . is wholly insubstantial and
frivolous’ would be” warranted as a “dismissal for lack of
jurisdiction.” Id. at 690 n.10 (quoting Bell v. Hood, 327 U.S. 678,
682-83 (1946)). Pollack’s claim does not fall within those categories.
                               7

unaddressed by the district court. With respect to the
defendants’ motion to dismiss for failure to state a claim, the
district court’s opinion contained a single sentence stating that
Pollack had “failed to plead sufficient factual matter that would
‘allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Pollack, 806
F. Supp. 2d at 105 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The court did not explain why that was so, and as a
consequence we think it inappropriate to address that ground for
its judgment. Accordingly, we will leave all of these arguments
for consideration on remand.

                               III

     For the foregoing reasons, we reverse the judgment of the
district court and remand the case for further proceedings
consistent with this opinion.

                                                    So ordered.
