Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
3Activity
0 of .
Results for:
No results containing your search query
P. 1
Golinski v. OPM - Gov response to Order to Show Cause

Golinski v. OPM - Gov response to Order to Show Cause

Ratings: (0)|Views: 225 |Likes:
Published by Kathleen Perrin
Government response to questions posed in Order to Show Cause from Feb 23. Filed 2/28/2011
Government response to questions posed in Order to Show Cause from Feb 23. Filed 2/28/2011

More info:

Published by: Kathleen Perrin on Mar 01, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

01/27/2014

pdf

text

original

 
12345678910111213141516171819202122232425262728MICHAEL F. HERTZDeputy Assistant Attorney GeneralMELINDA HAAGUnited States AttorneySUSAN K. RUDYAssistant Branch Director CHRISTOPHER R. HALLTrial AttorneyUnited States Department of JusticeCivil Division, Federal Programs BranchP.O. Box 883Washington, D.C.  20044Telephone:  (202) 514-4778Facsimile:  (202) 616-8470Email:Christopher.Hall@usdoj.govAttorneys for Defendantthe U.S. Office of Personnel ManagementUNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISIONKAREN GOLINSKIPlaintiff,v.THE UNITED STATES OFFICE OFPERSONNEL MANAGEMENT andJOHN BERRY,Defendants.____________________________________ )))))))))))))))No. C 4:10-00257-JSW
DEFENDANTS’ RESPONSE TOORDER TO SHOW CAUSEOF FEBRUARY 23, 2011
Defendants’ Response to Order to Show Cause of February 23, 20114:10cv257-JSW 
Case3:10-cv-00257-JSW   Document96    Filed02/28/11   Page1 of 5
 
12345678910111213141516171819202122232425262728As to the questions posed by the Court’s Order to Show Cause of February 23, 2011,Defendants reiterate at the outset that the issue of the constitutionality of Section 3 of theDefense of Marriage Act (“DOMA”) need not be reached to resolve this case.  As we havepreviously stated, the Employee Dispute Resolution (“EDR”) Plan order at issue here is notenforceable through mandamus under 28 U.S.C. § 1361.  As Defendants stated in their Supplemental Brief in Response to Court’s Order of October 15, 2010 [Docket No. 76], “[f]or anorder to be enforced through the extraordinary remedy of mandamus, it must at a minimumimpose a clear duty to execute a ministerial act, one that does not involve the exercise of judgment.  The order at issue here – entered by the Honorable Alex Kozinski, Chief Judge for theUnited States Court of Appeals for the Ninth Circuit, not in his Article III capacity but rather inhis administrative capacity as an EDR hearing officer – did not impose a ministerial obligationupon the Office of Personnel Management (“OPM”) and therefore cannot be enforced throughmandamus on its own terms.”Defendants nonetheless respectfully submit the following responses to the questionsregarding the issue of the constitutionality of DOMA posed by the Court in its Order to ShowCause of February 23, 2011 [Docket No. 94].
I. Question 1:  Does the OPM intend to reassess its position on its original instructionto Plaintiff’s insurer to decline to extend benefits to her same-sex spouse?
As reflected in the Statement of the Attorney General on Litigation Involving the Defenseof Marriage Act (“Statement”), referenced in the Court’s Order and submitted by Plaintiff in aNotice of Supplemental Authority [Docket No. 93, Exhibit A(1)], “Section 3 of DOMA willcontinue to remain in effect unless Congress repeals it or there is a final judicial finding thatstrikes it down, and the President has informed me that the Executive Branch will continue toenforce the law.”  Statement at 2.  Moreover, as reflected in the Letter of the Attorney General tothe Honorable John A. Boehner, Speaker of the U.S. House of Representatives (“Letter”)[Docket No. 93, Exhibit A(2)], “[t]o that end, the President has instructed Executive agencies tocontinue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to takecare that the laws be faithfully executed, unless and until Congress repeals Section 3 or the
Defendants’ Response to Order to Show Cause of February 23, 20114:10cv257-JSW 
-1-
Case3:10-cv-00257-JSW   Document96    Filed02/28/11   Page2 of 5
 
12345678910111213141516171819202122232425262728judicial branch renders a definitive verdict against the law’s constitutionality.”  Letter at 5.Pursuant to the instructions of the President, OPM will continue to enforce Section 3 of DOMAuntil it is repealed or there is a final judicial finding striking it down.
II. Question 2: How does the Executive reconcile the position that it intends to enforcea statute that it has affirmatively declared to be unconstitutional and deemedinappropriate to defend?
As noted above, while the President has determined that the Executive Branch will notdefend the constitutionality of Section 3 of DOMA, he has instructed agencies to continue tocomply with Section 3 “consistent with the Executive’s obligation to take care that the laws befaithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders adefinitive verdict against the law’s constitutionality.”  Letter at 5.  As the Attorney General hasstated, “[t]his course of action respects the actions of the prior Congress that enacted DOMA,and it recognizes the judiciary as the final arbiter of the constitutional claims raised.”  Id.Moreover, through the Attorney General, the Executive Branch has notified Congress pursuant to28 U.S.C. 530D of the President’s determination that Section 3 of DOMA is unconstitutional andhis decision not to defend the statute.  Letter at 1.  The Attorney General indicated to Congressthat “[o]ur attorneys will also notify the courts of our interest in providing Congress a full andfair opportunity to participate in the litigation in those cases,” including this one.  Id.
 
at 6. Seealso Letter from Ronald Weich, Assistant Attorney General, U.S. Dep’t of Justice, to the Hon.John A. Boehner, Speaker, U.S. House of Representatives, Feb. 25, 2011 (Attached at Tab 1).
Defendants’ Response to Order to Show Cause of February 23, 20114:10cv257-JSW 
-1-
Case3:10-cv-00257-JSW   Document96    Filed02/28/11   Page3 of 5

Activity (3)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
StuartGaffney liked this

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->