Anda di halaman 1dari 32

Case3:10-cv-00257-JSW Document40 Filed03/19/10 Page1 of 2

1 JAMES R. MCGUIRE (CA SBN 189275)


JMcGuire@mofo.com
2 GREGORY P. DRESSER (CA SBN 136532)
GDresser@mofo.com
3 RITA F. LIN (CA SBN 236220)
RLin@mofo.com
4 GRACE Y. PARK (CA SBN 239928)
GracePark@mofo.com
5 MORRISON & FOERSTER LLP
425 Market Street
6 San Francisco, California 94105-2482
Telephone: 415.268.7000
7 Facsimile: 415.268.7522
8 JENNIFER C. PIZER (CA SBN 152327)
JPizer@lambdalegal.org
9 LAMBDA LEGAL, Western Regional Office
3325 Wilshire Boulevard, Suite 1300
10 Los Angeles, California 90010-1729
Telephone: 213.382.7600
11 Facsimile: 213.351.6050
12 Attorneys for Plaintiff
KAREN GOLINSKI
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
OAKLAND DIVISION
16

17
KAREN GOLINSKI, Case No. 4:10-cv-00257 (SBA)
18
Plaintiff, REQUEST FOR JUDICIAL
19 NOTICE IN SUPPORT OF
v. PLAINTIFF KAREN
20 GOLINSKI’S REPLY IN
UNITED STATES OFFICE OF PERSONNEL SUPPORT OF MOTION FOR
21 MANAGEMENT, and JOHN BERRY, Director PRELIMINARY INJUNCTION
of the United States Office of Personnel
22 Management, in his official capacity, Date: June 15, 2010
Time: 1:00 p.m.
23 Defendants. Place: Courtroom 1, 4th Floor
United States Courthouse
24 1301 Clay Street
Oakland, California 94612
25

26

27

28
REQUEST FOR JUDICIAL NOTICE ISO GOLINSKI’S PRELIMINARY INJUNCTION REPLY BRIEF
CASE NO. 4:10-cv-00257 (SBA)
sf-2813648
Case3:10-cv-00257-JSW Document40 Filed03/19/10 Page2 of 2

1 In support of her reply in support of motion for preliminary injunction, plaintiff Karen
2 Golinski requests that the Court take judicial notice of the attached Exhibits A to D under Federal
3 Rule of Evidence 201.
4 All four exhibits are documents filed in proceedings before the Employment Dispute
5 Resolution tribunal and the Judicial Council of the Ninth Circuit in In the Matter of Karen
6 Golinski, No. 09-80173 (9th Cir.). The Court may take judicial notice of documents filed in
7 another proceeding. See Transmission Agency of N. California v. Sierra Pac. Power Co., 295
8 F.3d 918, 924 n.3 (9th Cir. 2002) (taking judicial notice of the existence and contents of an order
9 issued by an administrative law judge); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094,
10 1124 n.29 (9th Cir. 2002) (taking judicial notice of complaint filed in another action); United
11 States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
12 1992) (taking judicial notice of “proceedings in other courts”). Therefore, Ms. Golinski requests
13 that the Court take judicial notice of the following, true and correct copies of which are attached:
14 Exhibit A: Blue Cross and Blue Shield Association’s (“BCBSA”) Petition for Review,
15 filed on December 17, 2009.
16 Exhibit B: Karen Golinski and BCBSA’s Joint Request for Stay of Proceedings
17 Regarding BCBSA’s Petition for Review, filed on January 29, 2010.
18 Exhibit C: Judicial Council of the Ninth Circuit’s February 1, 2010 Order granting the
19 joint request for a stay of the proceedings.
20 Exhibit D: Chief Judge Kozinski’s March 5, 2010 Order ordering the award of
21 backpay to plaintiff.
22

23 Dated: March 19, 2010 MORRISON & FOERSTER LLP


LAMBDA LEGAL
24

25
By: /s/ James R. McGuire
26 JAMES R. McGUIRE
27 Attorneys for Plaintiff
KAREN GOLINSKI
28
REQUEST FOR JUDICIAL NOTICE ISO GOLINSKI’S PRELIMINARY INJUNCTION REPLY BRIEF
CASE NO. C 10-0257 SBA
1
sf-2813648
Case3:10-cv-00257-JSW Document40-1 Filed03/19/10 Page1 of 14
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 1 ofFiled03/19/10
13 DktEntry:
Page2
7168065
of 14

UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

)
IN THE MATTER OF KAREN )
GOLINSKI, et ux. ) No. 09-80173
)

BLUE CROSS AND BLUE SHIELD ASSOCIATION’S


PETITION FOR REVIEW

Pursuant to Section VIII of the Employment Dispute Resolution Plan (“EDR

Plan”) adopted by the United States Court of Appeals for the Ninth Circuit, the

Blue Cross and Blue Shield Association (“BCBSA”) submits this petition for

review of the decision by Chief Judge Alex Kozinski in the above-captioned

matter. BCBSA maintains that the Judicial Council has no jurisdiction over

BCBSA under the EDR Plan created to adjudicate employment disputes between

employees of the Ninth Circuit and their employer. BCBSA submits this petition

for review solely as a protective matter. Further, this petition presents only the

basic contours of BCBSA’s legal position on the contested issues, and BCBSA

requests a briefing schedule to address fully those issues. BCBSA simultaneously

requests that Chief Judge Kozinski be recused from the review panel because of his

authorship of the decision being reviewed.

Background

BCBSA is the national trade association of Blue Cross and Blue Shield

entities. As pertinent to this matter, the United States Office of Personnel

1017420.1
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 2 ofFiled03/19/10
13 DktEntry:
Page3
7168065
of 14

Management (“OPM”) annually contracts with BCBSA for the Blue Cross and

Blue Shield Service Benefit Plan (“the Service Benefit Plan” or “the Plan”), one of

the federal government’s health benefits plans for its employees and their

dependents established by the Federal Employees Health Benefits Act (“FEHBA”),

5 U.S.C. §§ 8901-14. BCBSA is the named “carrier” for the Plan, see 5 U.S.C.

§ 8901(7); it signs the government contract with OPM on behalf of local Blue

Cross and Blue Shield entities who administer and underwrite the Plan in their

localities. See id. § 8903(1); see generally Empire HealthChoice Assurance, Inc. v.

McVeigh, 547 U.S. 677, 682 (2006). Karen Golinski, a staff attorney at the Ninth

Circuit, is enrolled in the Plan, along with her five-year-old son.

On September 2, 2008, Ms. Golinski submitted to the Administrative Office

of the United States Courts (“AO”) a Health Benefits Election Form seeking to

enroll in the Plan her same-sex spouse, Amy Cunninghis, whom Ms. Golinski

married during the brief period of time when same-sex marriage was legal in

California. The AO rejected Ms. Golinski’s Election Form, determining that Ms.

Cunninghis did not qualify as Ms. Golinski’s “spouse” for purposes of FEHBA --

and thus did not qualify for inclusion in Ms. Golinski’s “family” coverage under

the Plan -- because the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, states

that, as used in federal statutes, “the word ‘spouse’ refers only to a person of the

opposite sex who is a husband or a wife.” Under the government contract

1017420.1
2
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 3 ofFiled03/19/10
13 DktEntry:
Page4
7168065
of 14

currently in place, BCBSA’s and the Blue Cross and Blue Shield companies’

obligations extend -- in “family” coverage situations -- only to opposite-sex

spouses.

Ms. Golinski then challenged the AO’s decision through the Ninth Circuit’s

EDR Plan. As the Judicial Council is aware, the EDR Plan provides Ninth Circuit

employees with procedures through which they can assert employment-related

grievances and obtain commensurate relief against their employer. Through that

process, on January 13, 2009, Chief Judge Kozinski ruled that the AO’s refusal to

certify Ms. Golinski’s Election Form was erroneous and ordered the AO to submit

the form “to the appropriate health insurance carrier.” Order of Jan. 13, 2009

(“January Order”) at 7. Chief Judge Kozinski reasoned that, despite DOMA’s

limitation on who can constitute a “spouse,” FEHBA actually establishes a floor,

not a ceiling, and permits OPM to contract to provide benefits beyond the level that

the statute appears to establish. See id. at 2-3. In other words, Chief Judge

Kozinski read FEHBA to require OPM to provide benefits to opposite-sex spouses

of federal employees, but not to prohibit OPM from providing additional benefits,

such as benefits to same-sex spouses. Under this interpretation, OPM, in its

discretion, may exceed this baseline requirement and contract to provide benefits

to same-sex spouses. Id. at 3.

1017420.1
3
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 4 ofFiled03/19/10
13 DktEntry:
Page5
7168065
of 14

Following Chief Judge Kozinski’s January Order, the AO submitted Ms.

Golinski’s Election Form. Soon thereafter, OPM instructed BCBSA that it may

not accept the Election Form. On February 20, 2009, OPM sent a letter to the AO

advising of its instruction to BCBSA and explaining that DOMA prohibited the

provision of FEHBA benefits to same-sex spouses. See Letter from Lorraine E.

Dettman to Nancy E. Ward (Feb. 20, 2009) (Ex. A to Order of Nov. 19, 2009).

Ms. Golinski appealed again to Chief Judge Kozinski, this time also requesting a

back pay award under the principles of the Back Pay Act, 5 U.S.C. § 5595 et seq.,

as authorized by the EDR Plan (at 9).

On November 19, 2009, Chief Judge Kozinski then issued the Order at issue

here. In it, and purportedly pursuant to his authority under the EDR Plan to award

a “necessary and appropriate” remedy for workplace discrimination, Chief Judge

Kozinski ordered: (1) the AO, within 30 days, to re-submit Ms. Golinski’s

Election Form to the Service Benefit Plan; (2) OPM, within 30 days, to rescind its

instruction to the Service Benefit Plan not to accept Ms. Golinski’s Election Form

and to refrain from certain other communications with the Plan; and (3) the Service

Benefit Plan, within 30 days of receiving from the AO Ms. Golinski’s Election

Form, to enroll Ms. Cunninghis. Order of Nov. 19, 2009 (“November Order”) at

15-16. Notwithstanding that Chief Judge Kozinski in the November Order

compelled the Plan to take action, neither BCBSA nor any other Blue Cross and

1017420.1
4
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 5 ofFiled03/19/10
13 DktEntry:
Page6
7168065
of 14

Blue Shield entity had ever been made a party to the proceedings or ever had

opportunity to be heard on any issues in dispute. In the November Order, however,

Chief Judge Kozinski did advise that OPM and the Plan may appeal his order

using the procedures outlined in the EDR Plan. Id. at 16. BCBSA now petitions

for review from the portion of the November Order that directs “the BCBS Service

Benefit Plan” to take certain actions. Id.1

Summary of Legal Argument

At the outset, BCBSA emphasizes that the Blue Cross and Blue Shield

entities have no qualms whatsoever with covering same-sex spouses as a general

matter and do indeed cover them in other commercial products where the particular

plan sponsors have contracted for such coverage. Were the federal government to

contract for coverage under the Plan for same-sex spouses of enrollees with

“family” coverage, BCBSA and the Blue Cross and Blue Shield companies would,

without hesitation, supply that coverage under rates and terms to be negotiated

with OPM.

1 Chief Judge Kozinski’s orders do not mention BCBSA by name, instead referring in the November
Order to the “Blue Cross and Blue Shield Service Benefit Plan.” November Order at 16. The Blue Cross
and Blue Shield Service Benefit Plan, however, is not a juridical entity and therefore can act only through
the entities that sponsor, administer, or underwrite it. Because BCBSA is the named carrier for the Plan
(acting on behalf of local Blue Cross and Blue Shield companies), Chief Judge Kozinski’s November
Order is properly read as referencing BCBSA’s right to appeal, when it states that the Blue Cross and
Blue Shield Service Benefit Plan may appeal. In any event, the November Order notes that “[a]ny other
individual or party aggrieved by this proceeding may similarly appeal,” and BCBSA would separately fit
that category. Id. at 17.

1017420.1
5
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 6 ofFiled03/19/10
13 DktEntry:
Page7
7168065
of 14

But OPM has not contracted for coverage for same-sex spouses under the

Plan. Moreover, BCBSA is contractually obligated to abide by OPM’s directives

on enrollment, and OPM’s currently in force directive with respect to Ms.

Golinski’s enrollment is that her same-sex spouse, Ms. Cunninghis, shall not be

enrolled as a dependent family member. Because of BCBSA’s contractual

obligations, and OPM’s current directive on Ms. Cunninghis’s enrollment in the

Plan, Chief Judge Kozinski’s order potentially directs BCBSA to breach its

contract with OPM. It is BCBSA’s position that Chief Judge Kozinski, acting in

his capacity as the presiding judge in a hearing under the Court’s EDR Plan, lacked

the authority to issue any order to BCBSA or otherwise to the Plan and certainly

lacked authority to order BCBSA to breach its contract with OPM.

1. The EDR Plan -- by its plain terms -- is an internal, administrative

mechanism that does not vest a judge of this Court, acting in his capacity as a

presiding judge in a hearing under the EDR Plan, with the ability to issue orders to

parties unassociated with the Ninth Circuit. First, the EDR Plan’s substantive

prohibitions on employment-related discrimination apply only to employees of the

Ninth Circuit. EDR Plan at 1 (“This plan applies to all court employees and

applicants for non-Article I positions in the U.S. Court of Appeals for the Ninth

Circuit.”) (emphasis added). Second, the EDR Plan instructs Ninth Circuit

employees filing complaints that “the respondents in all complaints shall be the

1017420.1
6
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 7 ofFiled03/19/10
13 DktEntry:
Page8
7168065
of 14

employing office that would be responsible for redressing, correcting, or abating

the violation(s) alleged in the complaint.” Id. at 7 (emphasis added). Nowhere

does the EDR Plan authorize complaints aimed at persons or entities outside of the

Ninth Circuit or claim to be providing relief for grievances that cannot be redressed

by the employer. Third, such complaints are not filed in federal district court, but

rather with the “chief judge of the court of the employing office which is the

respondent to the complaint.” Id. The chief judge’s role, in that context, should

be akin to that of a chief administrative officer with jurisdiction solely to police

internal employment disputes within the Ninth Circuit. Outside actors are simply

beyond the reach of the EDR Plan.

2. Even if the EDR Plan could somehow permit the chief judge to exercise

jurisdiction over persons or entities unassociated with the Ninth Circuit, neither

BCBSA nor any Blue Cross and Blue Shield entity was ever a party -- formally or

informally -- to any proceeding before Chief Judge Kozinski. Only Ms. Golinski

and her counsel appeared. As a result, Chief Judge Kozinski’s order -- which,

again, could cause BCBSA to breach its contract with OPM should it choose to

comply -- raises significant due process questions.

3. Aside from its jurisdictional and procedural defects, Chief Judge

Kozinski’s order was also based on a faulty assumption regarding Ms. Golinski’s

rights as a FEHBA enrollee. In his order, Chief Judge Kozinski cited a number of

1017420.1
7
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 8 ofFiled03/19/10
13 DktEntry:
Page9
7168065
of 14

cases for the proposition that the sole avenue for employees of the judicial branch

to exercise their employment grievances is through the EDR Plan. November

Order at 9. Chief Judge Kozinski thus assumed that only he, as the presiding judge

at Ms. Golinski’s EDR hearing, could provide her a remedy and that “[w]ith that

responsibility must come power equal to the task” (id. at 9) -- i.e., to order Ms.

Cunninghis’s enrollment.

The cases cited by Chief Judge Kozinski, however, involved disputes

between the employee and his employing office or agency, not between an

employee and an outside party. See, e.g., Dotson v. Griesa, 398 F.3d 156, 159 (2d

Cir. 2005) (holding that a Bivens suit by probation officer against his superiors at

the U.S. District Court for the Southern District of New York was precluded). The

former can be resolved -- indeed, must be resolved -- through the EDR process; the

latter, however, cannot. Contrary to Chief Judge Kozinski’s assumption, therefore,

once the AO complied with Chief Judge Kozinski’s January Order and the obstacle

to Ms. Golinski providing health benefits to her spouse became someone other than

the AO, the EDR Plan was no longer applicable, and Ms. Golinski was empowered

to seek a judicial remedy against the allegedly offending parties. As a result, Chief

Judge Kozinski was not, in fact, entrusted with the sole “responsibility” to

remediate Ms. Golinski’s grievance against OPM -- and certainly not against

BCBSA or otherwise against the Plan, which cannot possibly be regarded as her

1017420.1
8
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 9 of
Filed03/19/10
13 DktEntry:
Page10
7168065
of 14

employer -- and thus did not need to assign to himself any “power equal to the

task.”

4. BCBSA next notes that Chief Judge Kozinski’s rationale in his January

Order for avoiding the question of DOMA’s constitutionality was legally faulty,

and could create a precedent with far-reaching negative effects both for BCBSA

and OPM if allowed to stand. As mentioned, Chief Judge Kozinski reasoned that

he need not decide if DOMA is unconstitutional because, according to Chief Judge

Kozinski, FEHBA provides a set of “general guidelines” and “minimum

requirements that [FEHBA] plans must satisfy.” January Order at 3. Applying this

interpretation of FEHBA, Chief Judge Kozinski reasoned that while OPM must, at

a minimum, contract for a plan that provides coverage to spouses as defined by

federal law, it is also free, in its discretion, to exceed this statutory floor and to

provide benefits to individuals considered spouses under state law, but not under

federal law. Id.

Chief Judge Kozinski’s interpretation of FEHBA simply cannot be

harmonized with congressional intent. By Chief Judge Kozinski’s logic, OPM

could exceed any of FEHBA’s terms if it so desired -- it could, for example, extend

health benefits coverage to anyone unrelated to the federal government if it so

chose. Nowhere in FEHBA or its legislative history does Congress suggest that it

intended to delegate to OPM runaway authority to contract for plans that provide

1017420.1
9
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 10 Filed03/19/10
of 13 DktEntry:
Page11
7168065
of 14

benefits to federal employees as generously as OPM sees fit. FEHBA in fact

contains a detailed provision on enrollment, and its definitional provisions defining

who may and may not be enrolled are quite specific. See 5 U.S.C. § 8905. These

are not mere “general guidelines.” Chief Judge Kozinski should not have

misinterpreted FEHBA to avoid reaching the constitutional question.2

Just as troubling, under the November Order, the federal agency that

employs an individual can override OPM’s discretion to determine enrollment. In

FEHBA, Congress delegated to OPM the task of “prescrib[ing] the time at which

and the manner and conditions under which an employee is eligible to enroll” in a

FEHBA plan. 5 U.S.C. § 8913(b). By insisting that the AO -- ie., the employing

agency -- accept Ms. Cunninghis’s enrollment and that OPM may do nothing to

“interfere in any way” (November Order at 16) with her enrollment, Judge

Kozinski has left with the employing agency the final word on enrollment, contrary

to Congress’s instructions. It would be impossible to administer the Plan if every

employing agency could apply its own rules concerning enrollment, without

uniformity and discipline ensured (as Congress demanded) by OPM.

2 Recent actions by Congress and the President make plain that FEHBA is not the “floor” on enrollment
that Chief Judge Kozinski surmised. Congress is currently considering a bill to extend eligibility for
FEHBA coverage to same-sex spouses and other domestic partners, legislation that would be entirely
unnecessary if Chief Judge Kozinski were correct that OPM already has authority to implement such an
extension. See S. 1102, 111th Cong. (2009); H.R. 2517, 111th Cong. (2009). Similarly, President Obama
earlier this year extended certain federal benefits to domestic partners, but excepted other benefits such as
FEHBA benefits, because “[m]y Administration is not authorized by Federal law to extend a number of
available Federal benefits to the same-sex partners of Federal employees.” Pres. Mem., 74 Fed. Reg.
29393 (June 17, 2009).

1017420.1
10
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 11 Filed03/19/10
of 13 DktEntry:
Page12
7168065
of 14

In addition, even if Chief Judge Kozinski were correct that FEHBA sets

forth only a floor with respect to enrollment, he still could not issue the relief in

question. BCBSA and OPM are bound by a contract that does not include same-

sex spouses in “family” coverage. If Ms. Golinski’s employer is required by law

to have broader coverage, then the remedy is for the employer to obtain

supplemental coverage. BCBSA or any other Blue Cross and Blue Shield entity

associated with the Plan cannot be ordered to provide coverage that is not included

in their contract.

5. Finally, given his authorship of the opinion under review, BCBSA also

requests that Chief Judge Kozinski be recused from any further appellate

proceedings. See, e.g., Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir. 1978)

(“To say the least, it would be unbecoming for a judge to sit in a United States

Court of Appeals to participate in the determination of the correctness, propriety

and appropriateness of what he did in the trial of the case.”).

Conclusion

For the foregoing reasons, the Judicial Council should vacate Chief Judge

Kozinski’s November Order to the extent it orders the Service Benefit Plan,

BCBSA, or any other Blue Cross and Blue Shield entity associated with the

Service Benefit Plan to take any action. Alternatively, the Council should set a

briefing schedule to obtain fuller discussion of the issues presented. Chief Judge

1017420.1
11
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 12 Filed03/19/10
of 13 DktEntry:
Page13
7168065
of 14

Kozinski should be recused from appellate consideration of his January and

November Orders.

Respectfully submitted,

s/ Anthony F. Shelley
Emmett B. Lewis
Anthony F. Shelley
Alan I. Horowitz
MILLER & CHEVALIER CHARTERED
655 Fifteenth Street, N.W.
Suite 900
Washington, DC 20005
Tel.: 202-626-5800
Fax.: 202-626-5801
Email: ashelley@milchev.com
ahorowitz@milchev.com

Counsel for Blue Cross and


Blue Shield Association

1017420.1
12
Case3:10-cv-00257-JSW
Case: 09-80173 12/17/2009
Document40-1
Page: 13 Filed03/19/10
of 13 DktEntry:
Page14
7168065
of 14

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk
of Court on December 17, 2009, via email to the Clerk, pursuant to the
Clerk’s instructions.

I also certify that on December 17, 2009, I served by e-mail and U.S.
Mail, First-Class, postage pre-paid, on the following:

James R. McGuire
Morrison & Foerster LLP
425 Market Street
32nd Floor
San Francisco, CA 94104-2482
Email: jmcguire@mofo.com

I further certify that I served, on December 17, 2009, the foregoing


document by U.S. Mail, First-Class, postage pre-paid, on the following:

Elaine Kaplan
General Counsel
United States Office of Personnel Management
Theodore Roosevelt Building
1900 E Street, NW
Room 7355
Washington, DC 20415

s/ Anthony F. Shelley
Case3:10-cv-00257-JSW Document40-2 Filed03/19/10 Page1 of 9
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 1 ofFiled03/19/10
5 DktEntry:Page2
7213783
of 9

IN THE UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

IN THE MATTER OF
KAREN GOLINSKI, et ux.,
No. 09-80173

PARTIES’ JOINT REQUEST FOR STAY OF PROCEEDINGS REGARDING


BLUE CROSS AND BLUE SHIELD ASSOCIATION’S PETITION FOR REVIEW

MORRISON & FOERSTER LLP MILLER & CHEVALIER CHARTERED


James R. McGuire Anthony F. Shelley
Gregory P. Dresser Alan I. Horowitz
Rita F. Lin 655 Fifteenth Street, N.W.
Grace Y. Park Suite 900
425 Market Street Washington, DC 20005
San Francisco, California 94105-2482 Telephone: 202.626.5800
Telephone: 415.268.7000 Facsimile: 202.626.5801
Facsimile: 415.268.7522 Email: ashelley@milchev.com
Email: JMcGuire@mofo.com ahorowitz@milchev.com

LAMBDA LEGAL, Western Regional Office


Jennifer C. Pizer
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010-1729
Telephone: 213.382.7600
Facsimile: 213.351.6050
Email: JPizer@lambdalegal.org

Attorneys for Karen Golinski Attorneys for Blue Cross and Blue Shield
Association

pa-1382909
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 2 ofFiled03/19/10
5 DktEntry:Page3
7213783
of 9

Karen Golinski and Blue Cross and Blue Shield Association (“BCBSA”)

respectfully request that the Judicial Council stay further proceedings in this matter

pending resolution of a related matter, Golinski v. United States Office of

Personnel Management, Case No. 10-cv-00257 (SBA), now pending before Judge

Saundra Brown Armstrong in the United States District Court for the Northern

District of California.

RELEVANT BACKGROUND

On November 19, 2009, the Chief Judge of the Ninth Circuit, acting

pursuant to the Ninth Circuit’s Employment Dispute Resolution Plan, issued an

order awarding Ms. Golinski: (1) retrospective relief under the Back Pay Act,

5 U.S.C. §§ 5595 et seq. and (2) prospective relief requiring the Administrative

Office of the U.S. Courts (“AO”) and United States Office of Personnel

Management (“OPM”) to enroll Ms. Golinski’s spouse in her federal employee

health benefits plan. The Order further directed OPM, which had instructed the

AO not to enroll Ms. Golinski’s spouse, to rescind those instructions and to cease

any interference with the Blue Cross and Blue Shield Service Benefit Plan. The

Order additionally directed the Blue Cross and Blue Shield Service Benefit Plan to

enroll Ms. Golinski’s spouse within 30 days of receipt of the appropriate forms

from the AO. Finally, the Order invited any aggrieved party to petition for review

of the Chief Judge’s decision.

pa-1382909
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 3 ofFiled03/19/10
5 DktEntry:Page4
7213783
of 9

BCBSA petitioned for review on December 17, 2009 and requested the

issuance of a briefing schedule. One component of BCBSA’s petition contends

that “BCBSA is contractually obligated to abide by [OPM’s] directives on

enrollment.” (BCBSA Br. at 6.)

On January 5, 2010, the Chief Judge issued an order requiring BCBSA to

file its opening brief on or before February 2, 2010, Ms. Golinski to file her

response no later than 28 days after the opening brief, and BCBSA to file its reply

brief no later than 7 days after any opposition.

In the meantime, OPM did not file a petition for review and has further

declined to comply with the Chief Judge’s November 19, 2009 Order.

Ms. Golinski then filed suit against OPM in the United States District Court for the

Northern District of California seeking an order in the form of mandamus to

compel OPM’s compliance. On January 26, 2010, Ms. Golinski filed a motion for

a preliminary injunction. That motion is presently scheduled for hearing on the

earliest date available on Judge Armstrong’s regular civil calendar, which is

June 15, 2010. Ms. Golinski has filed a motion seeking to shorten the time for

hearing to February 23, 2010.

REASONS A STAY SHOULD BE GRANTED

Ms. Golinski and BCBSA respectfully submit that resolution of

Ms. Golinski’s suit against OPM potentially may resolve this controversy, thereby

2
pa-1382909
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 4 ofFiled03/19/10
5 DktEntry:Page5
7213783
of 9

making resolution of the petition for review unnecessary. In the event that the final

disposition or entry of a preliminary injunction in the Northern District of

California results in an order compelling OPM to authorize the enrollment of Ms.

Golinski’s spouse, the parties expect that enrollment subsequently will occur and

that the pending petition for review before the Judicial Council could become

moot.

If the Judicial Council grants the requested relief, the parties propose that

they report to this body any change in the hearing date on the preliminary

injunction before Judge Armstrong as well as any ruling on that motion or pending

appeals. Upon resolution of that motion, the parties would then submit to the

Judicial Council a proposal for the appropriate action to be taken in this proceeding

in light of that resolution.

3
pa-1382909
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 5 ofFiled03/19/10
5 DktEntry:Page6
7213783
of 9

Dated: January 29, 2010 MORRISON & FOERSTER LLP

LAMBDA LEGAL

By: /s/ Gregory P. Dresser


Gregory P. Dresser

Attorneys for Karen Golinski

Dated: January 29, 2010 MILLER & CHEVALIER CHARTERED


By: /s/ Anthony F. Shelley
Anthony F. Shelley

Attorneys for Blue Cross and Blue


Shield Association

4
pa-1382909
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 1 ofFiled03/19/10
3 DktEntry:Page7
7213783
of 9

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk
of Court on January 29, 2010, via the Court’s CM/ECF system, which will
serve the following:

James R. McGuire
Morrison & Foerster LLP
425 Market Street
32nd Floor
San Francisco, CA 94104-2482
Email: jmcguire@mofo.com

Albert Giang
Caldwell Leslie & Proctor PC
Ste 600
1000 Wilshire Boulevard
Los Angeles, CA 90017
Email: giang@caldwell-leslie.com

Allison Claire
FPDCA - FEDERAL PUBLIC DEFENDER'S OFFICE (SACRAMENTO)
Third Floor
801 I Street
Sacramento, CA 95814-2510
Email: allison_claire@fd.org

Amy Whelan
ROSEN BIEN & GALVAN, LLP
10th Floor
315 Montgomery Street
San Francisco, CA 94104
Email: awhelan@rbg-law.com
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 2 ofFiled03/19/10
3 DktEntry:Page8
7213783
of 9

Brad Douglas Levenson


FPDCA - FEDERAL PUBLIC DEFENDER'S OFFICE (LOS ANGELES)
321 East Second Street
Los Angeles, CA 90012-4202
Email: brad_levenson@fd.org

David C. Codell
Law Office of David C. Codell
9200 Sunset Blvd., PH2
Los Angeles, CA 90069
Email: david@codell.com

Rita Lin
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
Email: rlin@mofo.com

Jennifer Pizer
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
Suite 1300
3325 Wilshire Blvd.
Los Angeles, CA 90010-1729
Email: jpizer@lambdalegal.org

Sarah E. Griswold
Morrison & Foerster LLP
32nd Floor
425 Market Street
San Francisco, CA 94105-2482
Email: sgriswold@mofo.com

Gay Crosthwait Grunfeld


ROSEN BIEN & GALVAN, LLP
10th Floor
315 Montgomery Street
San Francisco, CA 94104
Email: ggrunfeld@rbg-law.com

2
Case3:10-cv-00257-JSW
Case: 09-80173 01/29/2010
Document40-2
Page: 3 ofFiled03/19/10
3 DktEntry:Page9
7213783
of 9

I further certify that I served, on January 29, 2010, the foregoing


document by U.S. Mail, First-Class, postage pre-paid, on the following:

Elaine Kaplan
General Counsel
United States Office of Personnel Management
Theodore Roosevelt Building
1900 E Street, NW
Room 7355
Washington, DC 20415

Charlotte G. Peddicord
Office of Human Resources
Assistant Director
Room 5-500
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20544

Joseph P. Russoniello
OFFICE OF THE U.S. ATTORNEY
11th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

s/ Anthony F. Shelley

3
Case3:10-cv-00257-JSW Document40-3 Filed03/19/10 Page1 of 2
Case3:10-cv-00257-JSW
Case: 09-80173 02/01/2010
Document40-3
Page: 1 ofFiled03/19/10
1 DktEntry:Page2
7214629
of 2
FILED
JUDICIAL COUNCIL FEB 01 2010

MOLLY C. DWYER, CLERK


OF THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

IN THE MATTER OF KAREN No. 09-80173


GOLINSKI et ux.
ORDER

KOZINSKI, Chief Judge:

The parties have filed a joint motion to stay the appeal of this matter pending

resolution of a related case, Golinski v. U.S. Office of Personnel Management, No.

10-cv-00257-SBA (N.D. Cal. filed Jan. 20, 2010). The Blue Cross and Blue Shield

Association (“Blue Cross”) has also moved for a 14-day extension of the time in

which to file its opening brief, noting that it would like additional time to prepare.

The motion for a stay is granted. The briefing schedule is vacated, and the

appeal is stayed pending further order of the Council. The parties shall promptly

inform the Council of any developments in Golinski, No. 10-cv-00257-SBA, that

bear on the propriety of this stay.

As the briefing schedule is vacated, Blue Cross’s motion for more time to

file its opening brief is moot. The stay period should provide it ample opportunity

to prepare for further proceedings, if any.


Case3:10-cv-00257-JSW Document40-4 Filed03/19/10 Page1 of 5
Case3:10-cv-00257-JSW
Case: 09-80173 03/05/2010Document40-4
Page: 1 of 4 Filed03/19/10
ID: 7255440 Page2 of 5 40
DktEntry:

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS F I LED


MAR 0 5 2010
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

IN THE MATTER OF KAREN No. 09-80173


GOLINSKI et ux.
ORDER

I previously determined that Ms. Golinski is entitled to an award under the

Back Pay Act and directed the Appellate Commissioner to prepare a report and

recommendations on the matter. In re Golinski, 587 F.3d 956,959-60, 963 (9th

Cir. 2009). He began by ordering Ms. Golinski to file and serve a written demand

for relief. Order at 1, In re Golinski, No. 09-80173 (filed Nov. 25, 2009). That

order also invited any parties or individuals aggrieved by her demand to file a

response, id. at 2, but if they exist, none came forward. So, the Commissioner took

responsibility for rounding out the record himself by seeking additional evidence

from Ms. Golinski. Order at 2-3, In re Golinski, No. 09-80173 (filed Jan. 20,

2010). He again invited responses. Id. at 3. None were filed.

1'"
1. The evidence shows that no health insurance plan on the private market

provides exactly the same benefits as Ms. Golinski's FEHBP Blue Cross and Blue
Case:
Case3:10-cv-00257-JSW
09-80173 03/05/2010Document40-4
Page: 2 of 4 Filed03/19/10
ID: 7255440 Page3
DktEntry:
of 5 40

page 2

Shield Service Benefit Plan (BC/BS). Having independently reviewed the

Commissioner's analysis, I agree that the Blue Shield Active Start 25 plan comes

closest to providing the same benefits as the benchmark, Ms. Golinski's BC/BS

plan. Order at 10, In re Golinski, No. 09-80173 (filed Jan. 28, 2010). Having

independently reviewed the Commissioner's calculations based on that choice, id.,

I agree with his recommended award. Ms. Golinski,is entitled to $6,272.00 in back

pay for the period from September 2008 through December 2009, see 5 U.S.C. §

5596(b)(1)(A)(i), and $164.31 in interest on that amount, see id. § 5596(b)(2).1 I

defer consideration of the Commissioner's recommendation on attorneys' fees as

the matter is not yet ripe for decision. Ms. Golinski may request that I revisit it

once the Judicial Council resolves the now-pending appeal.

2. Today's order only compensates Ms. Golinski through December 2009.

She has requested the right to seek additional back pay from then until OPM

complies, or is ordered to comply, with my earlier orders. She's entitled to do so

1Ms. Golinski is entitled to interest from "the period beginning on the


effective date of the withdrawal or reduction involved," September 2,2008, and
"ending on a date not more than 30 days before the date on which payment is
made." 5 U.S.C. § 5596(b)(2)(B)(i). The $164.31 figure only covers interest
through December 31, 2009, which is more than thirty days before Ms. Golinski
will be paid. Ms. Golinski may submit within three days from today a proposed
nunc pro tunc correction of the interest award.
Case3:10-cv-00257-JSW
Case: 09-80173 03/05/2010Document40-4
Page: 3 of 4 Filed03/19/10
ID: 7255440 Page4 of 5 40
DktEntry:

page 3

as, until then, she remains subject to "an unjustified or unwarranted personnel

action.'" 5 U.S.C. § 5596(b)(1).

I consider this remedy-ongoing back pay-just as inadequate as it was

before. See Golinski, 587 F.3d at 960. Its computation will undervalue the benefit

Ms. Golinski is being denied because all of the private plans identified as

potentially comparable are inferior to the BC/BS plan; back pay may have adverse

tax consequences, see, e.g., Tanaka v. Dep't ofNayY, 788 F.2d 1552, 1553-54

(Fed. Cir. 1986), that can't be remedied, see, e.g., Hopkins v. Dep't of Navy, 86

M.S.P.R. 11, 12 (M.S.P.B. 2000); it's a cumbersome hassle for the court; it's a

waste of taxpayer dollars because addition of Ms. Golinski's wife to her BC/BS

plan would not cost the government a penny; it's a burd,ensome hassle for Ms.

Golinski, one that a person without her tenacity might find stigmatizing; and it

relegates her to a de facto separate, and therefore inherently unequal, benefits

system based on her sex and sexual orientation.

More back pay is, however, the only remedy I have left to give in the face of

ongoing workplace discrimination. That makes it "necessary and appropriate,"

even though it's inadequate and wasteful. U.S. Court of Appeals for the Ninth

Circuit, Employment-Dispute Resolution Plan 9 (1997). I therefore authorize Ms.

Golinski to move for additional back pay before the Commissioner until she's
Case:
Case3:10-cv-00257-JSW
09-80173 03/05/2010Document40-4
Page: 4 of 4 Filed03/19/10
ID: 7255440 Page5
DktEntry:
of 5 40

page 4

permitted to enroll her wife for the benefits afforded an opposite-sex spouse of a

court employee. 2

Once this order is final, the Circuit and Court of Appeals Executive shall

promptly complete, and forward to me to sign, any paperwork necessary for the

Court to satisfy its liability for the amounts awarded. The back pay and interest

portions of this matter shall then be remanded to the Appellate Commissioner.

March 5, 2010

2 Unless objections are lodged with the Commissioner within 7 days of his
recommendations on any motions Ms. Golinski elects to file, the Commissioner
may order relief by and for this tribunal. See 9th Cir. Gen. Order 6.3(e). If
objections are filed, I will resume jurisdiction.