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Golinsky v. OPM 2AC

Golinsky v. OPM 2AC

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Published by: Northern District of California Blog on Sep 26, 2011
Copyright:Attribution Non-commercial

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09/26/2011

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S
ECOND
A
MENDED
C
OMPLAINT
 
C
ASE
N
O
. 3:10
-
cv
-0257-
JSW
 
sf 
-
2973146
 
JAMES R. McGUIRE (CA SBN 189275)
 
JMcGuire@mofo.com
 
GREGORY P. DRESSER (CA SBN 136532
)
GDresser@mofo.com
 
RITA F. LIN (CA SBN 236220
)
 
RLin@mofo.com
 
AARON D. JONES (CA SBN 248246)
 
AJones@mofo.com
 
MORRISON
 
&
FOERSTER
LLP
 
425 Market Street
 
San Francisco, Califo
rnia 94105
-
2482
 Telephone: 415.268.7000
Facsimile: 415.268.7522
 
JON W. DAVIDSON (CA SBN 89301)
 JDavidson@lambdalegal.orgTARA L. BORELLI (CA SBN 216961)
TBorelli@lambdalegal.org
 
LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC.
 
3325 Wilshire Boulevard, Suite 1300
 
Los Angeles,
California 90010
-1729
Telephone
: 213.382.7600
 
Facsimile:
213.351.6050
 
Attorneys for Plaintiff 
 
KAREN GOLINSKI
 
UNITED STATES DISTRICT COURT
 
NORTHERN DISTRICT OF CALIFORNIA
 
KAREN GOLINSKI,
 
Plaintiff,
 v.
UNITED STATES OFFICE OF PERSONNEL
 
MANAGEMENT,
and JOHN BERRY, Directorof the United States Office of Personnel
Management, in his official capacity,
 Defendants.
Case No.
 
3:10
-
cv
-
0257
-
JSW
 
SECOND AMENDEDCOMPLAINT
 
Case3:10-cv-00257-JSW Document102 Filed04/14/11 Page1 of 18
 
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S
ECOND
A
MENDED
C
OMPLAINT
 
C
ASE
N
O
. 3:10
-
cv
-0257-
JSW
 
sf 
-
2973146
 
1
 
INTRODUCTION
 
1.
 
In this action, plaintiff Karen Golinski challenges federal
discrimination against
her as a lesbian married to someone of the same sex, and the harm that such discrimination
hascause
d
her and her family.
2.
 
Plaintiff is a citizen of the State of California and of the United States of America.
She is legally
married to a person of the same sex in accordance with California law.
 3.
 
The federal government does not license marriages, but many of its programs
take
marital status into account to
determine eligibility for federal benefits, protections and
responsibilities.
Statutes, precedent, and principles of federalism establish that state law is thetouchstone for determining a couple’s marital status when establishing eligibility for federalprograms.
 4.
 
Plaintiff is an employee of the federal judiciary. She receives hea
lth insurancethrough her employer and has elected a family health insurance plan
to provide coverage to
herself and to her son
. She requested that her employer enroll her spouse,
Amy Cunninghis, in
her family plan, a benefit available to married employees of the federal judiciary. Defendants, onbehalf of the federal government, however, refused and blocked the enrollment, based onplaintiff’s sexual orientation, and based on her sex in relation to the sex of her spouse.
 5.
 
As the basis for their denial of the benefits and protections of federal law,
defendants invoked Section 3 of the so
-
called “Defense of Marriage Act,” P.L. 104
-
199, codified
in part as 1 U.S.C. § 7 (“DOMA”), and stated that the federal government will only
recognize
marriages between a man and a woman.
6.
 
Defendants’ application of DOMA has barred plaintiff and her spouse from
receiving benefits that are routinely granted to other similarly situated married couples, based on
plaintiff’s sexual orientation and her sex in relation to the sex
of her spouse.
7.
 
This is an action for declaratory and injunctive relief pursuant to 28 U.S.C.§§
2201-
2202 and Fed. R. Civ. P. 57 and for review of agency action pursuant to 5 U.S.C. §§701
-706.
It seeks a determination that DOMA, 1 U.S.
C. § 7, as applie
d to plaintiff 
, violates the
United States Constitution by refusing to recognize lawful marriages for purposes of the laws
Case3:10-cv-00257-JSW Document102 Filed04/14/11 Page2 of 18
 
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S
ECOND
A
MENDED
C
OMPLAINT
 
C
ASE
N
O
. 3:10
-
cv
-0257-
JSW
 
sf 
-
2973146
 
2
 
governing benefits for federal employees.
The result of these violations of the Constitution is thatplaintiff 
has been denied, and
will continue to be denied, legal protections and benefits under
federal law that would be available to her if she were a heterosexual with a different
-sex spouse.
PARTIES
 
8.
 
Plaintiff Karen Golinski is a California citizen residing in San Francisco,California.
9.
 
Defendant United States Office of Personnel Management
 
is an independent
establishment in the executive branch of the United States government. 5
 
U.S.C. §
 
1101.
10.
 
Defendant John Berry is the Director of the United States Office of Personnel
Managemen
t.
 
JURISDICTION,
VENUE, AND SOVEREIGN IMMUNITY
 
11.
 
This action arises under the Constitution of the United States and the laws of theUnited States. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 8912; 28 U.S.C.§ 1331; and 28 U.S.C. § 13
46(a)(2).
12.
 
Venue is proper in this district pursuant to 28
U.S.C. §
1391(e).13.
 
The United States has wai
ved sovereign immunity under 5 U.S.C. §
702.14.
 
Defendant John Berry’s actions in this matter were beyond the scope of his
statutory and his constitutio
nal authority. Accordingly, sovereign immunity does not apply to this
action.
 
FACTS
 
15.
 
Karen Golinski and Amy Cunninghis have been partners for 2
1
years. They met
in
the fall of 1989 and have been in a committed relationship ever since. They became registereddomestic partners with the City and County of San Francisco in 1995 and with the State of California in 2003. They have a
n eight-
year
-
old son whom they have raised from
birth together.
16.
 
On May 15, 2008, the California Supreme Court ruled that the Sta
te’s laws that
limited the institution of marriage to different
-
sex couples, while prohibiting same
-
sex couples
from marrying, violated the California Constitution.
 In re Marriage Cases
, 43 Cal. 4th 757, 855
-56 (2008). On or about June 17, 2008, San Fran
cisco and other California counties began to issue
Case3:10-cv-00257-JSW Document102 Filed04/14/11 Page3 of 18

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