Golinski v. United States Office of Pers. Mgmt.

• Citation: 114 Fair Empl.Prac.Cas. (BNA) 819,824 F.Supp.2d 968
• Decision Date: 22 February 2012
• Docket Number: No. C 10–00257 JSW.,C 10–00257 JSW.
• Court: U.S. District Court — Northern District of California
• Parties: Karen GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and John Berry, Director of the United States Office of Personnel Management, in his official capacity, Defendants.

114 Fair Empl.Prac.Cas. (BNA) 819

824 F.Supp.2d 968

Karen GOLINSKI, Plaintiff,

v.UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and John Berry, Director of the United States Office of Personnel Management, in his official capacity, Defendants.

No. C 10–00257 JSW.

United States District Court, N.D. California.

Feb. 22, 2012.

Unconstitutional as Applied

1 U.S.C.A. § 7

James R. McGuire, Gregory P. Dresser, Rita Lin, Morrison & Foerster LLP, San Francisco, CA, Susan Sommer, Lambda Legal, New York, NY, Jon Warren Davidson, Tara Lynn Borelli, Lambda Legal Defense & Education Fund, Los Angeles, CA, for Plaintiff.Christopher R. Hall, Tony West, United States Department of Justice, Washington, DC, for Defendants.

ORDER

JEFFREY S. WHITE, District Judge.

Now before the Court are the motion to dismiss and the motion to strike filed by Intervenor–Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) and the motion for summary judgment filed by Plaintiff Karen Golinski (“Ms. Golinski”). Defendants the United States Office of Personnel Management (“the OPM”) and John Berry, its director, also filed a motion to dismiss and a response to BLAG's motion to dismiss. These motions compel the Court to determine whether the Defense of Marriage Act (“DOMA”), 1 U.S.C. Section 7, as applied to Ms. Golinski, violates the United States Constitution by refusing to recognize lawful marriages in the application of laws governing benefits for federal employees. Having considered the parties' papers, relevant legal authority, and the record in this case, the Court HEREBY DENIES BLAG's motion to dismiss; DENIES as moot BLAG's motion to strike; GRANTS Ms. Golinski's motion for summary judgment; and GRANTS the OPM's motion to dismiss.

BACKGROUND

The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit. (Second Amended Complaint (“SAC”) at ¶ 18.) Ms. Golinski has been partners with Amy Cunninghis (“Ms. Cunninghis”) for over twenty years. They registered as domestic partners with the City and County of San Francisco in 1995, and with the State of California in 2003. ( Id. at ¶¶ 15–17.) On August 21, 2008, they were legally married under the laws of the State of California. ( Id. at ¶ 17.)

Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple's adopted minor child. ( Id. at ¶¶ 19, 22.) The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women. ( Id. at ¶ 23.) Finding that she could not secure comparable health insurance coverage, on October 2, 2008, Ms. Golinski filed a complaint under the Ninth Circuit's Employment Dispute Resolution (“EDR”) Plan, and contended that the refusal to grant her health benefits was a violation of the Plan's nondiscrimination provision. ( Id. at ¶ 48.) The EDR Plan specifically prohibits employment discrimination based on, among other things, sex or sexual orientation. ( Id. at ¶ 47.)

By orders dated November 24, 2008 and January 13, 2009, Chief Judge Alex Kozinski, sitting in his administrative capacity as arbiter of the Judicial Council, found that Ms. Golinski had suffered discrimination under the Court's EDR Plan and ordered the AO to process her health benefit election forms. ( Id., Exs. A, B.) Chief Judge Kozinski found that the denial of health benefits was based solely on the grounds of sex and sexual orientation, in direct violation of the EDR Plan's non-discrimination provision covering Ninth Circuit employees. ( Id., Ex. B at 1–2.) Chief Judge Kozinski found that, regardless of the language in DOMA, the OPM had the discretion to extend health benefits to Ms. Golinski's same-sex spouse by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility. ( Id. at 2–3.) Chief Judge Kozinski ordered the AO “to submit Karen Golinski's Health Benefits Election form 2089 ... to the appropriate insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of the listed spouse.” ( Id., Ex. B at 7.)

The AO complied, but the OPM instructed Ms. Golinski's insurance carrier not to comply with the Ninth Circuit Judicial Council's remedial order. The OPM directed the AO and the Blue Cross and Blue Shield Service Benefit Plan not to process Ms. Golinski's request on the basis that federal law, specifically Section 3 of DOMA, defines spouse as a member of the opposite sex and, accordingly, proscribes the enrollment of Ms. Golinski's same-sex spouse in her health benefits program.

In response, on November 19, 2009, Chief Judge Kozinski issued another order addressing the OPM's conduct. The Chief Judge, again sitting as an administrator, held that he had the authority, under both the Ninth Circuit's EDR Plan and the separation of powers doctrine, to interpret the laws applicable to judicial employees in a manner that would displace “any contrary interpretation by an agency or an officer of the Executive.” ( Id., Ex. C at 14–15.) Chief Judge Kozinski held that allowing the OPM to interfere with his orders would be tantamount to permitting it to exercise “dominance over logistics to destroy [the Judiciary's] autonomy.” ( Id. at 11.) The Chief Judge further held that “[o]rdering enrollment is proper and within my jurisdiction because Congress intended [the EDR] tribunal to be the sole forum for adjudicating complaints of workplace discrimination by employees of the Judiciary. With that responsibility must come power equal to the task.” ( Id. at 9.)

Chief Judge Kozinski granted Ms. Golinski both back pay and prospective relief. The injunctive relief required that the OPM “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit plan and any other plan that Ms. Golinski's wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, or that the plans would violate their contracts with the OPM by enrolling Ms. Golinski's wife as a beneficiary” and “[c]ease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski's health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski's wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski's wife on the basis of her sex or sexual orientation.” ( Id. at 15–16 (emphasis in original).)

The Chief Judge, in his order dated November 19, 2009, also invited the OPM to “appeal so much of this order as concerns it using the procedures outlines in the [EDR] plan.” ( Id. at 16.) In response, the OPM did not appeal the order, but instead issued a press release indicating that it was under no obligation to comply with the administrative order and, although in favor of its repeal, indicated that the Executive agency was tasked with enforcing DOMA, which prohibits same-sex spouses of federal employees from enrolling in the federal health benefits program. ( Id., Ex. F.)

In his final administrative order, dated December 22, 2009, Chief Judge Kozinski stated that the time for appeal had expired, thus rendering his prior orders in the matter “final and preclusive on all issues decided therein.” ( Id., Ex. D.) He further authorized Ms. Golinski to pursue any action she deemed fit against the OPM, including filing a mandamus action in the district court. ( Id.)

On January 20, 2010, Ms. Golinski filed a mandamus action before this Court, seeking to have the OPM rescind its guidance to Blue Cross and Blue Shield Service Benefit Plan to deny Ms. Golinski's wife benefits as precluded by DOMA and to comply with Chief Judge Kozinski's prior orders in her administrative claim.

On January 26, 2010, Ms. Golinski moved for a preliminary injunction seeking compliance with Chief Judge Kozinski's order dated November 19, 2009, requiring that the OPM: (1) “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan,” and (2) “cease at once its interference with the jurisdiction of this tribunal” and “ not advise Ms. Golinski's health plan, the Blue Cross and Blue Shield Service Benefit plan, that providing coverage for Ms. Golinski's wife violates DOMA or any other federal law.” ( Id. at Ex. C, 15–16.)

On May 10, 2010, the OPM moved to dismiss the First Amended Complaint on the basis that this Court lacked jurisdiction to grant mandamus relief under these peculiar procedural circumstances.

While those motions were pending and after the parties submitted supplemental briefing on the issue of the constitutionality of DOMA, on February 23, 2011, at the direction of President Obama, Attorney General Eric Holder announced that the Justice Department would cease its legal defense of Section 3 of DOMA. Although it determined that the statute was unconstitutional and resolved not to continue to defend DOMA in pending court cases, the Justice Department indicated that it did intend to continue to enforce the law unless it was either repealed by Congress or the courts rendered a final judgment striking it down. ( See Plaintiff's Notice of Supplemental Authority (“NSA”) dated February 23, 2011, Ex. 2.)

On March 16, 2011, 781 F.Supp.2d 967 (N.D.Cal.2011), the Court granted the motion to dismiss on the basis that it lacked jurisdiction to issue mandamus relief. Finding that amendment would not necessarily be futile, the Court dismissed the matter with leave to amend.

On April 14, 2011, Ms. Golinski filed her Second Amended Complaint in...