Appeal from the United States District Court for the District of Hawaii Philip M. Pro, District Judge, Presiding. D.C. No. 05-CV-000398-PMP.
The opinion of the court was delivered by: Kozinski, Chief Judge
Argued and Submitted May 13, 2009-Honolulu, Hawaii
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and Consuelo M. Callahan, Circuit Judges.
We decide whether the Federal Employees Pay Comparability Act of 1990, 5 U.S.C. § 5301 et seq., imposes an unconstitutional burden on the right to travel.
The Federal Employees Pay Comparability Act (the Act) provides certain federal employees in the contiguous 48 states with what is known as locality pay-an amount they are paid in addition to salary in order to equalize their compensation with that of other employees in the same region. 5 U.S.C. §§ 5301, 5304(f)(1)(A). The Office of Personnel Management establishes the amount of locality pay based on the degree of public-private pay disparity in each region. See 5 C.F.R. §§ 531.601-611. For example, this year federal employees in the New York City area will receive a locality adjustment equal to 27.96% of their base salary, while those in Atlanta will receive 18.55%. U.S. Office of Personnel Mgmt., 2009 General Schedule Locality Pay Tables, http://opm.gov/oca/ 09tables/pdf/saltbl.pdf. Locality pay is included in the calculation of retirement benefits.
Roy Matsuo is a federal employee in Hawaii and is therefore ineligible for locality pay. 5 U.S.C. § 5304(f)(1)(A). Matsuo claims that, by denying him this benefit, the Act penalizes him for working in Hawaii, and this unconstitutionally burdens his right to travel.
Charles Roberts works in Maryland and, like most other federal employees in the 48 contiguous states, receives locality pay. He'd lose it if he returned to Hawaii, where he was a federal employee for a number of years before moving to Maryland. He claims that this unconstitutionally burdens his right to travel.
The parties stipulated to the certification of two classes*fn1 - one representing the Matsuos of the federal workforce, the other representing the Robertses-after which they filed cross-motions for summary judgment and the district court denied plaintiffs relief. Plaintiffs appeal.
We must determine whether the Act "actually deters . . . travel" or "uses any classification which serves to penalize the exercise of that right." Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (plurality ...