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3:10-cv-00257 #17

3:10-cv-00257 #17

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Published by Equality Case Files
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Published by: Equality Case Files on May 24, 2011
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12345678910111213141516171819202122232425262728MICHAEL F. HERTZDeputy Assistant Attorney GeneralJOSEPH P. RUSSONIELLOUnited States AttorneySUSAN K. RUDYAssistant Branch Director STEVEN Y. BRESSLER Trial AttorneyUnited States Department of JusticeCivil Division, Federal Programs BranchP.O. Box 883Washington, D.C. 20044Telephone: (202) 305-0167Facsimile: (202) 616-8470Email:Steven.Bressler@usdoj.gov Attorneys for Defendantthe U.S. Office of Personnel ManagementUNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIAOAKLAND DIVISIONKAREN GOLINSKIPlaintiff,v.THE UNITED STATES OFFICE OFPERSONNEL MANAGEMENT,Defendant. ____________________________________ )))))))))))) No. C 4:10-00257-SBA
 Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”4:10cv257SBA
Case3:10-cv-00257-JSW Document17 Filed02/02/10 Page1 of 6
12345678910111213141516171819202122232425262728Defendant the U.S. Office of Personnel Management (“OPM”) respectfullysubmits its opposition to plaintiff’s motion to shorten the time for defendant to respondto, and for the Court to consider, plaintiff’s motion for preliminary injunction.
Plaintiff Karen Golinski, a staff attorney of the Ninth Circuit, seeks a preliminaryinjunction and an order of mandamus against OPM premised on what plaintiff asserts is the binding nature of administrative orders issued by the Honorable Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals, in his capacity as an administrative hearing officer under the Ninth Circuit Employee Dispute Resolution (“EDR”) Plan. Thus, this case calls upon the Courtto review the nature of the orders rendered by Chief Judge Kozinski.
In 1998, the Judicial Council of the Ninth Circuit approved an EDR plan that grantscircuit employees certain substantive rights and sets out a procedure for the enforcement of thoserights. See U.S. Court of Appeals for the Ninth Circuit, Employment Dispute Resolution Plan(rev. ed. 2000) (“EDR plan”), Exhibit A to plaintiff’s Motion for Preliminary Injunction. The plan sets forth a detailed administrative process for the resolution of employment disputesinvolving circuit employees. See id. at 1. After mandatory counseling and mediation, anemployee with an unresolved grievance may file a formal written complaint with the chief judgeof the relevant court. Id. at 1, 3, 5-7. The respondent identified in an EDR complaint must in allcases be “the employing office that would be responsible for redressing, correcting or abating theviolations(s) alleged in the complaint.” Id. In the event that the hearing officer finds a violationof a substantive right protected by the plan, he may award “a necessary and appropriate remedy,”including relief under the Back Pay Act, 5 U.S.C. § 5596. EDR plan at 9-10.Plaintiff filed a complaint under the Ninth Circuit EDR Plan on October 2, 2008, seekingrelief from the decision of the Administrative Office of the U.S. Courts (“AOUSC”) denyingThe chief judge of a circuit presides over its judicial council, 28 U.S.C. § 332(a)(1),
which is established within each federal appellate court to “make all necessary and appropriateorders for the effective and expeditious administration of justice within its circuit,” id.§ 332(d)(1). Orders of the judicial council are binding on “[a]ll judicial officers and employeesof the circuit,” who “shall promptly carry [those orders] into effect.” Id. § 332(d)(2).
 Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”4:10cv257SBA
Case3:10-cv-00257-JSW Document17 Filed02/02/10 Page2 of 6
12345678910111213141516171819202122232425262728enrollment of her spouse in the Federal Employees Health Benefits Program (“FEHBP”).Compl. ¶ 16. Chief Judge Kozinski heard the EDR complaint and entered orders on November 24, 2008, and January 13, 2009. Compl. ¶ 17. The Orders required the Director of the AOUSCto submit plaintiff’s enrollment form to her health insurance carrier. Id. The AOUSC complied.Id. ¶ 18. However, OPM, acting in response to an inquiry from plaintiff's insurance carriers, andin its statutorily assigned capacity as the government-wide administrator of the FEHBP, see 5U.S.C. §§ 8901 et seq., advised the AOUSC and plaintiff’s insurance carriers that the Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), forecloses enrolling plaintiff’s same-sex spouse in theFEHBP. See Compl. Ex. C (Attachment A, at 1). This was consistent with OPM’s long-standing guidance to federal agencies that, as a consequence of DOMA, “same-sex marriagescannot be recognized for benefit entitlement purposes under . . . [the FEHBP].” OPM, BenefitsAdministration Letter No. 96-111, at 3 (Nov. 15, 1996), available athttp://www.opm.gov/retire/pubs/bals/1996/96-111.pdf . On November 19, 2009, Chief JudgeKozinski directed OPM to “rescind its guidance or directive to the [insurance carrier] that[plaintiff’s] wife is not eligible to be enrolled as her spouse . . . because of her sex or sexualorientation” and to permit the enrollment. Compl. Ex. C at 15. On December 22, 2009, Chief Judge Kozinski issued another order in the EDR proceeding, stating that his EDR orders were“final and preclusive·on all issues decided therein as to [the AOUSC and OPM].” In re Golinski, No. 09-80173, Docket Entry No. 23, at 1.On January 20, 2010, plaintiff filed her Complaint seeking an order of mandamusrequiring OPM to abide by Chief Judge Kozinski’s orders under the EDR Plan. See Compl. Oneweek later, on January 26, 2010, plaintiff filed a Motion for Preliminary Injunction. DocketEntry No. 8.
Under this Court’s ordinary procedures, the plaintiff’s motion for preliminary injunctionwould be heard on a date and time that is available on the Court’s calendar. According toinformation published on the Court’s website, the Court has informed litigants that “[t]here areno dates available for civil motions” before March 23, 2010, at the earliest. The plaintiff’s
 Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”4:10cv257SBA
Case3:10-cv-00257-JSW Document17 Filed02/02/10 Page3 of 6

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