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MICHAEL F. HERTZ Deputy Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney SUSAN K. RUDY Assistant Branch Director STEVEN Y. BRESSLER Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-0167 Facsimile: (202) 616-8470 Email: Steven.Bressler@usdoj.gov Attorneys for Defendant the U.S. Office of Personnel Management UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OFFICE OF ) PERSONNEL MANAGEMENT, ) ) Defendant. ) ____________________________________ ) KAREN GOLINSKI No. C 4:10-00257-SBA DEFENDANT’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME

Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time” 4:10cv257 SBA

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Defendant the U.S. Office of Personnel Management (“OPM”) respectfully submits its opposition to plaintiff’s motion to shorten the time for defendant to respond to, and for the Court to consider, plaintiff’s motion for preliminary injunction. BACKGROUND Plaintiff Karen Golinski, a staff attorney of the Ninth Circuit, seeks a preliminary injunction 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 Court to review the nature of the orders rendered by Chief Judge Kozinski.1 In 1998, the Judicial Council of the Ninth Circuit approved an EDR plan that grants circuit employees certain substantive rights and sets out a procedure for the enforcement of those rights. 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 disputes involving circuit employees. See id. at 1. After mandatory counseling and mediation, an employee with an unresolved grievance may file a formal written complaint with the chief judge of the relevant court. Id. at 1, 3, 5-7. The respondent identified in an EDR complaint must in all cases be “the employing office that would be responsible for redressing, correcting or abating the violations(s) alleged in the complaint.” Id. In the event that the hearing officer finds a violation of 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, seeking relief from the decision of the Administrative Office of the U.S. Courts (“AOUSC”) denying The 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 appropriate orders 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 employees of the circuit,” who “shall promptly carry [those orders] into effect.” Id. § 332(d)(2).
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enrollment 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 AOUSC to 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, and in its statutorily assigned capacity as the government-wide administrator of the FEHBP, see 5 U.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 the FEHBP. See Compl. Ex. C (Attachment A, at 1). This was consistent with OPM’s longstanding guidance to federal agencies that, as a consequence of DOMA, “same-sex marriages cannot be recognized for benefit entitlement purposes under . . . [the FEHBP].” OPM, Benefits Administration Letter No. 96-111, at 3 (Nov. 15, 1996), available at http://www.opm.gov/retire/pubs/bals/1996/96-111.pdf. On November 19, 2009, Chief Judge Kozinski 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 sexual orientation” 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 mandamus requiring OPM to abide by Chief Judge Kozinski’s orders under the EDR Plan. See Compl. One week later, on January 26, 2010, plaintiff filed a Motion for Preliminary Injunction. Docket Entry No. 8. ARGUMENT Under this Court’s ordinary procedures, the plaintiff’s motion for preliminary injunction would be heard on a date and time that is available on the Court’s calendar. According to information published on the Court’s website, the Court has informed litigants that “[t]here are no dates available for civil motions” before March 23, 2010, at the earliest. The plaintiff’s
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motion to shorten time asks this Court to depart from its ordinary procedures and to hold a hearing on February 23, 2010, instead of the currently-noticed date of June 15, 2010. Plaintiff’s proposed schedule would provide the Court with only one week to consider the parties’ briefs prior to hearing plaintiff’s motion, and substantially reduce defendant’s time to prepare its opposition. Plaintiff’s claims for mandamus and a preliminary injunction raise issues of apparent first impression, at least one of which Chief Judge Kozinski has described as concerning separation of powers, that is, whether a judge acting as an EDR hearing officer in a proceeding to which the Executive Branch is not a party can issue administrative orders that bind an Executive agency. Defendant will be prejudiced by being forced to prepare its opposition on the shortened schedule that plaintiff advocates, and it is in the public interest for OPM to be accorded sufficient time to fully prepare its response. Likewise, it is in the public interest for the Court to have sufficient time to consider this matter. The Court, of course, is more fully informed of the competing demands on its time than are counsel for the parties. A review of the Court’s calendar, as published on the Court’s website, however, reveals that those competing demands are substantial. The movants in each of the cases with motions previously noticed before the Court, presumably, followed the Court’s regular procedures in order to obtain a hearing date for their motions. Local Rule 6-3(a) requires a party who moves to shorten time to identify the “substantial harm or prejudice” that would result if its motion is not granted. Defendant respectfully submits that plaintiff’s application does not meet this standard. Plaintiff alleges that she continues to suffer discrimination in the terms of her employment that cannot be remedied, Pl. Ex Parte App. 1-2, but there is no presumption of substantial or irreparable harm applied in discrimination cases. Cf., e.g., Stanley v. Univ. of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994) (plaintiff claiming discrimination under the Equal Pay Act who could recover money damages and back pay for the loss of her job had an adequate remedy at law and could not demonstrate irreparable injury); Duke v. Langdon, 695 F.2d 1136, 1137 (9th Cir. 1983) (Title VII plaintiff alleging unlawful discrimination in her termination failed to demonstrate irreparable injury
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because she could regain her job with back pay if she prevailed on the merits). Plaintiff also asserts that it is possible her family will face increased health care costs, Pl. Ex Parte App. 2, but this alleged harm has not occurred and may never occur. Cf. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) (“a plaintiff must demonstrate,” not merely predict, “immediate threatened injury as a prerequisite to preliminary injunctive relief.” (emphasis in original)). Moreover, plaintiff has sought and received back pay in the EDR process to cover the cost of health insurance for her spouse. See In re Golinski, No. 09-80173 (9th Cir. EDR Plan), Docket Entry No. 32 (awarding $6,272 in back pay to Ms. Golinski). It is not clear why she cannot seek relief for future costs incurred. At a minimum, such relief mitigates any harm plaintiff may suffer while her motion is heard in the ordinary course. Plaintiff relies on Chief Judge Kozinski’s findings in the EDR proceeding that plaintiff suffers harm, but it bears noting that plaintiff has neither sought nor received in that administrative proceeding the expedition she seeks here. The EDR process began almost 16 months ago, on October 2, 2008. That process has continued since that time, with orders issued in November 2008 and January and November 2009. Chief Judge Kozinski’s final order concerning OPM was issued on December 22, 2009. Compl. ¶ 23 & Exhibit D thereto. On January 5, 2010, Chief Judge Kozinski set a nine-week schedule for non-party Blue Cross Association and Ms. Golinski to brief Blue Cross’s administrative appeal of the November 19, 2009 EDR Order. See In re Golinski, No. 09-80173 (9th Cir. EDR Plan), Docket Entry No. 27. Most recently, the parties sought and Chief Judge Kozinski granted a stay of those proceedings pending the outcome of this civil action. Id. Docket Entry No. 38.2 Plaintiff cites to no recent event or change in circumstances that demonstrates any greater need for expedition in this Court than was afforded in the administrative process since October, 2008. Moreover, plaintiff waited four weeks from Chief Judge Kozinski’s December 22, 2009 Order to file her Complaint, and another week to seek emergency relief. Counsel for plaintiff,

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When plaintiff sought to stay the EDR proceedings on January 29, 2010 (id. Docket Entry No. 36), she did not, of course, know whether this Court would reschedule its hearing on plaintiff’s preliminary injunction motion from the currently-noticed date of June 15, 2010.
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who also represents plaintiff in the EDR proceeding, had that time available to prepare plaintiff’s legal arguments. Defendant and the Court should also have adequate time in this matter, and plaintiff’s delay counsels against expedition. Compare Oakland Tribune Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (delay before seeking injunction “implies a lack of urgency and irreparable harm.”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1976) (delay of 44 days called “inexcusable”); Nat’l Council of Arab Ams. v. City of New York, 331 F. Supp. 2d 258, 265-66 (S.D.N.Y. 2004) (delay in plaintiff’s motion for preliminary injunction, filed one and one-half months from city’s decision, precluded relief); City of Tempe v. FAA, 239 F. Supp. 2d 55, 65 n.13 (D.D.C. 2003) (delay of two months undermined case for preliminary injunction); 11A Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE : CIVIL 2D § 2946 (“Any unnecessary delay . . . may be viewed as inconsistent with a claim that plaintiff is asserting great injury . . .”). CONCLUSION For all of the foregoing reasons, the Court should deny plaintiff’s Ex Parte Application for Order Shortening Time. Dated February 2, 2010 Respectfully Submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney SUSAN K. RUDY Assistant Branch Director /s/ Steven Y. Bressler STEVEN Y. BRESSLER D.C. Bar #482492 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 (202) 305-0167 (telephone) (202) 616-8470 (fax) Attorneys for Defendant

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