Pay Law Doesn’t Limit Travel Rights, Court Says

     (CN) – A law boosting the pay of federal employees in the 48 contiguous states does not unconstitutionally burden their right to travel to and from Hawaii or Alaska, the 9th Circuit ruled.




     A group of workers challenged the Federal Employees Pay Comparability Act, which gives federal employees in the lower 48 states “locality pay” – extra pay meant to equalize their salaries with those of private-sector employees in the same area. The Act was passed to help eliminate pay disparities between public and private workers.
     But the Act doesn’t apply to federal employees in Alaska and Hawaii.
Federal employees in those states claimed that, by denying them locality pay, the Act unconstitutionally burdens their right to travel.
     Conversely, federal employees in the lower 48 argued that the Act deters them from moving to Hawaii or Alaska, because they’d lose their locality pay.
     Chief Judge Alex Kozinski had no trouble dismissing the claims of the first group of plaintiffs – those who worked in Alaska or Hawaii – for lack of standing.
     “The Act imposes no travel penalty on them; if anything, it imposes a penalty for staying put,” Kozinski wrote. Locality pay actually entices workers in Hawaii and Alaska to move to the 48 contiguous states, he said.
     Federal workers in the lower 48 “are in a different position,” Kozinski noted, because they stand to lose locality pay if they uproot to Alaska or Hawaii.
     “But not everything that deters travel burdens the fundamental right to travel,” he wrote. “States and the federal government would otherwise find it quite hard to tax airports, hotels, moving companies or anything else involved in interstate movement.”
     The court rejected the idea that federal pay has to be uniform nationwide.
     “Otherwise, choices Congress makes every day – where to build a military base, how much to allocate a state in highway funds, whether to provide a tax credit for this or that disaster area – would trigger strict scrutiny,” Kozinski wrote.
     “Subjecting all those choices to strict scrutiny would undermine our constitutional scheme, which accords Congress primacy in spending decisions.”
     He also tossed the plaintiffs’ claim that the Act must be “rationally related” to a legitimate governmental interest.
     “Without a right to government employment in the first place, which plaintiffs don’t argue exists, federal employees can have no judicially enforceable interest in pay at a particular rate.”

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