Case4:10-cv-00257-SBA Document8 Filed01/26/10 Page1 of 16

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, CA 90010-1729
Telephone: 213.382.7600
11 Facsimile: 213.351.6050
12 Attorneys for Plaintiff
KAREN GOLINSKI
13

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16

17 KAREN GOLINSKI, Case No. 4:10-cv-00257 (SBA)

18 Plaintiff, PLAINTIFF KAREN

GOLINSKI’S MOTION AND
19 v. MEMORANDUM OF POINTS
AND AUTHORITIES IN
20 UNITED STATES OFFICE OF PERSONNEL SUPPORT OF PRELIMINARY
MANAGEMENT, INJUNCTION
21
Defendant. Date: June 15, 2010
22 Time: 1:00 p.m.
Place: Courtroom 1, 4th Floor
23 United States Courthouse
1301 Clay Street
24 Oakland, California 94612

25

26

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1 TABLE OF CONTENTS
2 Page
3 NOTICE OF MOTION AND MOTION......................................................................................... 1

4 INTRODUCTION........................................................................................................................... 2

5 STATEMENT OF FACTS.............................................................................................................. 3

6 ARGUMENT .................................................................................................................................. 7

7 I. MS. GOLINSKI’S MOTION MEETS THE LEGAL STANDARD FOR

GRANTING A PRELIMINARY INJUNCTION ............................................................... 7
8
A. Ms. Golinski Will Prevail on Her Claim Directing OPM to Cease
9 Interfering with Her Attempt to Enroll Her Spouse to Her Family Health
Plan .......................................................................................................................... 8
10
B. Ms. Golinski Will Suffer Irreparable Injury............................................................ 9
11
1. Ms. Golinski Faces Ongoing Discrimination in Violation of the
12 Ninth Circuit’s EDR Plan............................................................................ 9

13 2. Ms. Golinski’s Ongoing Injury Cannot be Fully Compensated with

Monetary Damages.................................................................................... 10
14
C. The Balance of the Hardships Favors Ms. Golinski Because a Preliminary
15 Injunction in Ms. Golinski’s Favor Does Not Implicate OPM’s Regulatory
Discretionary Power. ............................................................................................. 10
16
D. The Public Interest Favors Granting the Preliminary Injunction Because
17 OPM’s Interference Violated the EDR Tribunal’s Authority and the
Separation of Powers............................................................................................. 11
18
CONCLUSION ............................................................................................................................. 13
19

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24

25

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1 TABLE OF AUTHORITIES
2 Page(s)
CASES
3

4 Barron v. Reich,
13 F.3d 1370 (9th Cir. 1994) ..................................................................................................... 8
5
Blankenship v. McDonald,
6 176 F.3d 1192 (9th Cir. 1999) ............................................................................................. 8, 12
7 Director, Edward J. Meyer Mem’l Hosp. v. Stetz,
433 F.Supp. 323 (W.D.N.Y. 1977) ......................................................................................... 12
8

9 Dotson v. Griesa,
398 F.3d 156 (2d Cir. 2005) ................................................................................................ 8, 12
10
Fallini v. Hodel,
11 783 F.2d 1343 (9th Cir. 1986) .................................................................................................... 8
12 In the Matter of Karen Golinski,
587 F.3d 901 (9th Cir. 2009) ............................................................................................passim
13

14 In the Matter of Karen Golinski et ux,

587 F.3d 956 (9th Cir. 2009) ............................................................................................passim
15
Jorgensen v. Cassiday,
16 320 F.3d 906 (9th Cir. 2003) ................................................................................................... 11
17 L.A. Mem'l Coliseum Comm'n v. Nat'l Football League,
634 F.2d 1197 (9th Cir. 1980) ................................................................................................. 10
18

19 Lee v. Hughes,
145 F.3d 1272 (11th Cir. 1998) ........................................................................................... 8, 12
20
Traveler’s Indem. Co. v. Bailey,
21 __ U.S. __, 129 S. Ct. 2195 (2009) ........................................................................................... 9
22 Winter v. Natural Res. Def. Council, Inc.,
__ U.S. __, 129 S. Ct. 365 (2008) ................................................................................. 7, 10, 11
23

24 STATUTES

25 Federal Employees Health Benefits Act, 5 U.S.C. §§ 8901-8914 .................................................. 5

26 Action to Compel an Officer of the United States to Perform His Duty, 28 U.S.C. § 1361........... 8

27 Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq. ........................................ 5, 12

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1 NOTICE OF MOTION AND MOTION

2 TO DEFENDANT UNITED STATES OFFICE OF PERSONNEL MANAGEMENT:
3 PLEASE TAKE NOTICE THAT at 1:00 pm on Tuesday, June 15, 2010, or as soon
4 thereafter as counsel may be heard, in the courtroom of the Honorable Saundra B. Armstrong,
5 located at 1301 Clay Street, Oakland, CA 94612, plaintiff Karen Golinski will move for an order
6 for a preliminary injunction pursuant to Fed. R. Civ. P. 65 and Civil L.R. 65-1.
7 The motion seeks to enjoin the United States Office of Personnel Management (“OPM”),
8 its agents, servants, employees, attorneys and those in active concert or participation with them or
9 OPM, from violating Chief Judge Kozinski’s November 19, 2009 Order in the proceeding In the
10 Matter of Karen Golinski, No. 09-80173 (9th Cir.), pending further order of this Court.
11 Specifically, defendant shall, as prescribed in the November 19, 2009 Order:
12 [R]escind 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
13 eligible to be enrolled as her spouse under the terms of the Federal
Employees Health Benefits Program because of her sex or sexual
14 orientation, and that the plans would violate their contracts with OPM
by enrolling Ms. Golinski’s wife as a beneficiary.
15
[C]ease at once its interference with the jurisdiction of [the Ninth
16 Circuit’s EDR] tribunal. Specifically, OPM shall not advise
Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service
17 Benefit Plan, that providing coverage for Ms. Golinski’s wife violates
DOMA or any other federal law. Nor shall OPM interfere in any way
18 with the delivery of health benefits to Ms. Golinski’s wife on the basis
of her sex or sexual orientation.
19

20 The motion is based upon this notice of motion, motion, and memorandum of points and

21 authorities, plaintiff’s complaint, the accompanying declarations and exhibits, and such further

22 evidence and arguments as may be presented.

23

24

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1 INTRODUCTION
2 Fourteen months ago, the Chief Judge of the United States Court of Appeals for the Ninth
3 Circuit held that plaintiff Karen Golinski, an employee of the Ninth Circuit, was suffering from
4 unlawful discrimination in violation of the Ninth Circuit’s own employment plan: specifically,
5 the Chief Judge held that Ms. Golinski’s inability to enroll her same-sex spouse in her family
6 health insurance plan violated the Ninth Circuit’s express prohibition of discrimination in the
7 terms of employment based on sex and sexual orientation.
8 The Chief Judge ordered enrollment of Ms. Golinski’s spouse. Defendant United States
9 Office of Personnel Management (“OPM”), however, gratuitously intervened in the employment
10 dispute and, as Judge Kozinski stated, “thwarted the relief [he had] ordered” by directing the
11 insurance carrier, Blue Cross and Blue Shield Association, not to process Ms. Golinski’s
12 enrollment papers.
13 Finding his exercise of the authority delegated to him by the Judicial Council of the Ninth
14 Circuit under attack by an executive agency, the Chief Judge, on November 19, 2009, issued a
15 further Order explaining that, pursuant to such authority and the separation of powers doctrine,
16 “the Executive must henceforth respect the Judiciary’s interpretation of laws applicable to judicial
17 employees.” The Chief Judge, accordingly, directed OPM to rescind its directive to the insurance
18 carrier and to refrain from any further interference with Ms. Golinski’s enrollment of her spouse.
19 In response to the Chief Judge’s detailed analysis of the issues raised by OPM’s conduct,
20 OPM effectively thumbed its nose at the Judiciary. It declined to avail itself of the traditional
21 remedy of aggrieved litigants — an appeal — which was available to it. Nor did it comply.
22 Instead, it trotted its general counsel out to a press conference where she announced that OPM
23 would not comply with the Chief Judge’s duly issued Order because OPM had been advised by
24 the Department of Justice that the Order “is not binding on OPM.”
25 OPM’s refusal to comply, coupled with its failure to appeal, render this an ideal case for
26 mandamus relief. The Chief Judge’s Orders spell out in crisp detail OPM’s obligations, and OPM
27 has waived any and all defenses to compliance therewith. By this motion, plaintiff Karen
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1 Golinski asks the Court to issue a preliminary injunction directing OPM to immediately comply
2 with the Chief Judge’s duly issued Orders.
3 STATEMENT OF FACTS
4 Karen Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in
5 the Ninth Circuit Court of Appeals, where she has been employed for eighteen years.
6 (Declaration of Karen Golinski in Support of Motion for Preliminary Injunction (“Golinski
7 Decl.”) ¶ 1.) Ms. Golinski has been partners with Amy Cunninghis for twenty years. (Id. ¶ 2.)
8 They have been registered domestic partners with the City and County of San Francisco since
9 1995 and with the State of California since 2003. (Id.) They were lawfully married under the
10 laws of the State of California on August 21, 2008, and remain legally married. (Id.) They have
11 a six-year-old son. (Id.)
12 On September 2, 2008, shortly after the couple’s marriage, Ms. Golinski tried to enroll
13 Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue
14 Shield Service Benefit Plan (“Blue Cross/Blue Shield”), which she purchases through her
15 employer, and which covers Ms. Golinski and their son. (Id. ¶¶ 3, 4.) The Administrative Office
16 of the U.S. Courts (“AO”) initially refused to process her request on the ground that she and her
17 spouse are both women. (Id. ¶¶ 5, 6.)
18 Ms. Cunninghis’s Existing Private Health Coverage. Although Ms. Golinski pays the full
19 rate for self and family coverage from Blue Cross/Blue Shield, she receives coverage only for
20 herself and her son, not for her entire family. (Id. ¶ 3.) If Ms. Cunninghis were a man,
21 Ms. Golinski would have been able to add her spouse to her existing family health plan at no
22 additional cost. This means that Ms. Golinski is receiving significantly less compensation, in
23 terms of her employment benefits, solely because of her sex and sexual orientation.
24 As a result, Ms. Golinski and Ms. Cunninghis have had to purchase separate individual
25 health insurance for Ms. Cunninghis. (Id. ¶ 8.) From September 2008 to June 2009, the monthly
26 premium for Ms. Cunninghis’s private policy, Blue Shield, was $366. (Id. ¶ 10, Exh. D.) When
27 Blue Shield informed the couple that Ms. Cunninghis’s monthly premium would increase to $429
28 (effective July 2009), she switched to another Blue Shield policy, which has a monthly premium
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1 of $340. (Id. ¶¶ 11, 12, Exhs. E, G.) Neither plan has comparable co-payments and deductibles,
2 non-emergency and emergency services fees, or brand-name prescription medication
3 reimbursements that Ms. Cunninghis should receive under Ms. Golinski’s family coverage health
4 insurance plan. (Id. ¶¶ 9, 12, Exhs. B, C, F.) Indeed, Ms. Golinski and Ms. Cunninghis have
5 studied over thirty individual coverage options for a woman of Ms. Cunninghis’s age and
6 geographic location, including a plan with a monthly premium of $970. (Id. ¶ 13.) None of these
7 plans provides comparable coverage because the premiums, deductibles, and out-of-pocket
8 expenses exceed those of Ms. Golinski’s plan. (Id. ¶ 13, Exhs. B, H.)
9 Chief Judge Kozinski’s November 2008 and January 2009 Orders. Ms. Golinski filed a
10 complaint under the Ninth Circuit’s Employment Dispute Resolution (“EDR”) Plan on October 2,
11 2008. (Id. ¶ 7.) By Orders dated November 24, 2008, and January 13, 2009, Chief Judge
12 Kozinski found that Ms. Golinski had suffered discrimination under the EDR Plan, and ordered
13 the AO to process her health benefits election forms. (Declaration of James R. McGuire in
14 Support of Motion for Preliminary Injunction (“McGuire Decl.”), Exh. I.) See also In the Matter
15 of Karen Golinski, 587 F.3d 901, 902 (9th Cir. 2009).
16 Specifically, under the EDR Plan covering Ninth Circuit employees, “Discrimination
17 against employees based on ... sex … and sexual orientation is prohibited.” (Golinski Decl., Exh.
18 A (“EDR Plan”) at 2.) The Chief Judge held that Ms. Golinski had been denied health insurance
19 for her spouse that similarly-situated, opposite-sex couples receive solely on the grounds of sex
20 and sexual orientation. Golinski, 587 F.3d at 902. Thus, the Chief Judge held, “The availability
21 of health insurance for oneself and for one’s family is a valuable benefit of employment, and
22 denial of such a benefit on account of sex and sexual orientation violates the terms of the EEO
23 plan that covers Golinski.” Id. Chief Judge Kozinski then ordered the AO “to submit Karen
24 Golinski’s Health Benefits Election form 2809…to the appropriate health insurance carrier. Any
25 future health benefit forms are also to be processed without regard to the sex of a listed spouse.”
26 Id. at 904.
27 Chief Judge Kozinski’s November 2009 Order. The AO complied with the Chief Judge’s
28 January 2009 Order. OPM, however, gratuitously intervened. OPM directed the AO and
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1 Ms. Golinski’s insurance carrier, Blue Cross/Blue Shield, not to process Ms. Golinski’s request.
2 In the Matter of Karen Golinski et ux., 587 F.3d 956, 958 (9th Cir. 2009).
3 The Chief Judge held that OPM’s action violated the Ninth Circuit’s authority, through
4 the Judicial Conference, to administer its EDR Plan. Id. at 961. The Chief Judge observed that
5 the EDR tribunal is the only forum with the authority to grant full relief to judicial employees,
6 including the authority to award an array of damages, and the authority to bind individuals and
7 entities so as to effectuate those awards. Id. at 961. This is because judicial employees can
8 initiate workplace grievances only to the EDR tribunal: “they can’t appeal to the MSPB [Merit
9 Systems Protection Board], they have no Bivens action, and they are not provided remedies by the
10 Civil Service Reform Act or state law.” Id. In other words, constraining an EDR tribunal’s
11 authority would leave judicial employees without protections from workplace grievances like
12 unlawful discrimination.
13 The Chief Judge also held that OPM’s action violated the separation of powers doctrine.
14 Id. at 961-63. Like Congress, which, under the Congressional Accountability Act of 1995, has
15 the authority to manage its own personnel and to adjudicate workplace complaints without the
16 interference of any coordinate branch of government, so too, does the Judiciary under that same
17 Act. Id. at 962-63. (See also EDR Plan at 1 (The Ninth Circuit EDR Plan was implemented “in
18 accordance with the Judiciary Model Plan adopted by the Judicial Conference of the United
19 States in order to provide rights and protections to Ninth Circuit employees comparable to those
20 provided to legislative branch employees under the Congressional Accountability Act of 1995.”)
21 Chief Judge Kozinski held that OPM used the authority granted to it by Congress, which is the
22 authority to contract for health insurance for federal employees, to usurp the Judiciary’s
23 traditional role to interpret the law, i.e., the definition of “family” under the Federal Employees
24 Health Benefits Act (“FEHBA”). Golinski, 587 F.3d at 962 & n.5; see also 5 U.S.C. §§ 8901-
25 8914. Permitting OPM to countermand the Chief Judge’s Orders in this context, the Chief Judge
26 held, would be tantamount to permitting it to exercise “dominance over logistics to destroy [the
27 Judiciary’s] autonomy” to interpret the laws governing judicial employees. Golinski, 587 F.3d at
28 962.
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1 The Chief Judge granted Ms. Golinski two forms of relief: back pay, which is not at issue
2 here, and prospective relief. As to prospective relief, the Chief Judge considered three options
3 (1) again order enrollment of Ms. Golinski’s spouse, (2) prospectively award back pay, or (3) do
4 nothing. Id. at 960. The Chief Judge quickly eliminated the third option as unjust. Id.
5 As to the second option, the Chief Judge found that the prospective award of back pay
6 would not adequately remedy Ms. Golinski for the discriminatory harm she would continue to
7 suffer. Id. “[I]t might be impossible to find an insurance plan on the private market that provides
8 exactly the same benefits as provided under the FEHBP.” Id. Moreover, the Chief Judge
9 acknowledged, “[e]ven if the destination is the same,” there is an “inherent inequality in allowing
10 some employees to participate fully in the FEHBP, while giving others a wad of cash to go
11 elsewhere.” Id.
12 Finally, the Chief Judge noted that, at a practical level, awarding prospective back pay
13 would be more expensive for the government than ordering enrollment of Ms. Golinski’s spouse
14 to the federal health plan. Ms. Golinski is already enrolled in a self and family health benefits
15 plan which currently covers herself and her son. While prospectively awarding back pay would
16 cost the government thousands of dollars so that Ms. Golinski could purchase inferior private
17 health care for her spouse, enrolling Ms. Golinski’s spouse under the federal health plan would
18 cost neither Ms. Golinski nor the government anything. Id.
19 Chief Judge Kozinski concluded by ordering, among other things, that OPM:
20 [R]escind 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
21 eligible to be enrolled as her spouse under the terms of the Federal
Employees Health Benefits Program because of her sex or sexual
22 orientation, and that the plans would violate their contracts with OPM
by enrolling Ms. Golinski’s wife as a beneficiary.
23
[C]ease at once its interference with the jurisdiction of this tribunal.
24 Specifically, OPM shall not advise Ms. Golinski’s health plan, the
Blue Cross and Blue Shield Service Benefit Plan, that providing
25 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
26 benefits to Ms. Golinski’s wife on the basis of her sex or sexual
orientation.
27

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1 Id. at 963-64 (emphasis in original). The Chief Judge invited OPM to “appeal so much of this
2 order as concerns it using the procedures outlined in the [EDR] plan.” Id. at 964.
3 December 2009 Order. OPM did not appeal the November 2009 Order. Nor did it
4 comply with the Order. Instead, it issued a press release stating that it will not comply, and has
5 no obligation to comply, because the Order “is not binding on OPM, as it was issued in [the Chief
6 Judge’s] administrative capacity, and not as a judge in a court case.” (McGuire Decl., Exh. J).
7 On December 22, 2009, the Chief Judge issued his most recent Order explaining that, as
8 OPM did not appeal, the Chief Judge’s prior orders were final and preclusive. (Id., Exh. K.) In
9 that Order, the Chief Judge invited Ms. Golinski to “take what further action she deems fit”
10 against OPM. (Id.)
11 ARGUMENT
12 I. MS. GOLINSKI’S MOTION MEETS THE LEGAL STANDARD FOR
GRANTING A PRELIMINARY INJUNCTION.
13

14 A preliminary injunction should be granted to protect Ms. Golinski from ongoing

15 discrimination and to preserve the integrity of the Judiciary’s EDR plans. In determining whether

16 a preliminary injunction should be granted, Ms. Golinski “must establish that [s]he is likely to

17 succeed on the merits, that [s]he is likely to suffer irreparable harm in the absence of preliminary

18 relief, that the balance of equities tips in h[er] favor, and that an injunction is in the public

19 interest.” Winter v. Natural Res. Def. Council, Inc., __ U.S. __, 129 S. Ct. 365, 374 (2008).

20 This preliminary injunction seeks limited relief: compliance with Chief Judge Kozinski’s

21 November 2009 Order requiring that OPM: (1) “rescind its guidance or directive to the Blue

22 Cross and Blue Shield Service Benefit Plan,” and (2) “cease at once its interference with the

23 jurisdiction of this tribunal” and “not advise Ms. Golinski’s health plan, the Blue Cross and Blue

24 Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or

25 any other federal law.” Golinski, 587 F.3d at 963-64.

26 Without the requested interim relief, Ms. Golinski will continue to suffer irreparable

27 injury as she faces ongoing discrimination on account of her sex and sexual orientation. And any

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1 later judgment that the Court may enter will be rendered ineffectual as to the injury Ms. Golinski
2 will suffer from now until a final judgment in this case is rendered.
3 A. Ms. Golinski Will Prevail on Her Claim Directing OPM to Cease
Interfering with Her Attempt to Enroll Her Spouse to Her Family
4 Health Plan.
5 Ms. Golinski will prevail on her single claim for relief in the form of mandamus under 28
6 U.S.C. § 1361. (See Compl. ¶¶ 24-27.) A district court may issue a writ of mandamus under
7 section 1361 “when (1) the plaintiff’s claim is ‘clear and certain’; (2) the defendant official’s duty
8 to act is ministerial, and ‘so plainly prescribed as to be free from doubt’; and (3) no other
9 adequate remedy is available.” Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (citing
10 Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986).
11 There is nothing ambiguous about Ms. Golinski’s claim for relief: enforcement of Chief
12 Judge Kozinski’s November 19, 2009 Order. Chief Judge Kozinski instructed OPM to do two
13 things: (1) rescind its instruction to Blue Cross/Blue Shield regarding Ms. Golinski’s enrollment
14 of her spouse, and (2) to cease its interference in Ms. Golinski’s enrollment of her spouse to her
15 health plan. OPM has not appealed the Chief Judge’s Order; it has publicly stated that it will
16 violate that Order; and OPM, true to its word, has violated, and continues to violate, the Chief
17 Judge’s Order.
18 Moreover, OPM’s duties are clearly ministerial. The Chief Judge has not ordered OPM,
19 for example, to promulgate new regulatory rules or provide guidance as to those rules. None of
20 the acts required by the Chief Judge’s Order, to rescind a directive and to cease further
21 interference regarding Ms. Golinski’s enrollment of her spouse, implicates any of OPM’s
22 regulatory discretionary power.
23 Finally, no other remedy is available to Ms. Golinski. As a judicial employee, the EDR
24 tribunal is the only forum where Ms. Golinski may seek redress for unlawful personnel actions.
25 Dotson v. Griesa, 398 F.3d 156, 171-76 (2d Cir. 2005); Blankenship v. McDonald, 176 F.3d
26 1192, 1195 (9th Cir. 1999); Lee v. Hughes, 145 F.3d 1272, 1276 (11th Cir. 1998). As Chief
27 Judge Kozinski observed, “[Judicial] employees can’t appeal to the MSPB, they have no Bivens
28 action, and they are not provided remedies by the Civil Service Reform Act or state law.”
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1 Golinski, 587 F.3d at 961. In other words, a mandamus claim before this Court is the only means
2 by which Ms. Golinski can now seek relief.
3 OPM, moreover, has waived any contrary arguments. Chief Judge Kozinski invited OPM
4 to appeal the November 2009 Order. Id. at 964 (“If OPM…wishes, it may appeal so much of this
5 order as concerns it using the procedures outlined in the plan”). It did not do so, and, as such,
6 Chief Judge’s prior orders are final and preclusive. (McGuire Decl., Exh. K.) OPM’s claim that
7 the Chief Judge’s order “is not binding on OPM” is a matter for appeal, not the press. (Id., Exh.
8 J.) Traveler’s Indem. Co. v. Bailey, __ U.S. __, 129 S. Ct. 2195, 2205 (2009) (objector failed to
9 appeal its claim that the Bankruptcy Court exceeded its jurisdiction in a timely manner, and, as
10 such, the Bankruptcy Court’s prior order was res judicata).
11 B. Ms. Golinski Will Suffer Irreparable Injury.
12 1. Ms. Golinski Faces Ongoing Discrimination in Violation of the
Ninth Circuit’s EDR Plan.
13

14 The discrimination that Ms. Golinski suffers on the grounds of her sex and sexual
15 orientation is an injury that cannot be remedied with money. As the Chief Judge observed,
16 “[e]ven if the destination is the same,” there is an “inherent inequality in allowing some
17 employees to participate fully in the FEHBP, while giving others a wad of cash to go elsewhere.”
18 Golinski, 587 F.3d at 960.
19 The Ninth Circuit, under the EDR Plan, prohibits discrimination against employees based
20 on sex or sexual orientation. (EDR Plan at 2.) OPM’s actions have barred Ms. Golinski from
21 receiving health insurance for her spouse that similarly-situated, opposite-sex couples receive
22 solely on the grounds of sex and sexual orientation. Golinski, 587 F.3d at 902. The availability
23 of health insurance, the Chief Judge held, “is a valuable benefit of employment, and denial of
24 such a benefit on account of sex and sexual orientation violates the terms of the EEO plan that
25 covers Golinski.” Id. Even if, hypothetically, Ms. Golinski received monetary damages
26 sufficient to purchase on the private market health benefits for her spouse that are identical to
27 those available under the FEHBP, the government’s different treatment of same-sex and opposite-
28 sex married couples is an injury that remains non-compensable.
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1 2. Ms. Golinski’s Ongoing Injury Cannot be Fully Compensated

with Monetary Damages.
2

3 As Chief Judge Kozinski found in the November 2009 Order, the prospective award of

4 monetary damages will not adequately remedy the discriminatory harm Ms. Golinski continues to

5 suffer. Golinski, 587 F.3d at 960. He observed that “it might be impossible to find an insurance

6 plan on the private market that provides exactly the same benefits as provided under the FEHBP.”

7 Id.

8 The Chief Judge’s observation was accurate. Ms. Golinski and Ms. Cunninghis have

9 studied over thirty individual coverage options for a woman of Ms. Cunninghis’s age and

10 geographic location, including a plan with a monthly premium of $970. (Golinski Decl. ¶ 13.)

11 None of these plans provides comparable coverage because the premiums, deductibles, and

12 out-of-pocket expenses exceed those of Ms. Golinski’s plan. (Id. ¶ 13, Exhs. B, H.) In fact,

13 Ms. Golinski and Ms. Cunninghis have had to purchase separate individual health insurance for

14 Ms. Cunninghis with monthly premiums of $340 to $366. (Id. ¶¶ 10, 12, Exhs. D, G.) Neither

15 plan has comparable co-payments and deductibles, non-emergency and emergency services fees,

16 or brand-name prescription medication reimbursements that Ms. Cunninghis should receive under

17 Ms. Golinski’s family coverage health insurance plan. (Id. ¶¶ 9, 12, Exhs. B, C, F.)

18 C. The Balance of the Hardships Favors Ms. Golinski Because a

Preliminary Injunction in Ms. Golinski’s Favor Does Not Implicate
19 OPM’s Regulatory Discretionary Power.
20 To qualify for injunctive relief, Ms. Golinski must establish that “the balance of equities

21 tips in h[er] favor.” Winter, 129 S. Ct. at 374. In assessing whether Ms. Golinski has met this

22 burden, the district court has a “duty . . . to balance the interests of all parties and weigh the

23 damage to each.” See L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197,

24 1203 (9th Cir. 1980).

25 OPM will suffer no harm if the Court rules on this motion for preliminary injunction in

26 Ms. Golinski’s favor.1 OPM’s regulatory discretionary power is not implicated by a requirement

27 1
In fact, there is no realistic likelihood of harm to OPM if the Court enjoins it from
violating Chief Judge Kozinski’s Order. Consequently, should the Court grant Ms. Golinski’s
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1 that it promulgate new regulatory rules or change administrative procedures at a systematic level.
2 Instead, Ms. Golinski is simply requesting that the Court order OPM to rescind its gratuitous
3 intervention.
4 Indeed, awarding Ms. Golinski compensatory damages, either now or after final judgment,
5 would be more expensive for the government than ordering enrollment of Ms. Golinski’s spouse
6 to the federal health plan. Ms. Golinski is already enrolled in a self and family health benefits
7 plan which currently covers herself and her son. (Golinski Decl. ¶ 3.) Monetary damages, then,
8 would cost the government thousands of dollars so that Ms. Golinski could purchase inferior
9 private health care for her spouse, while enrolling Ms. Golinski’s spouse under the federal health
10 plan would cost neither Ms. Golinski nor the government anything. Id.
11 On the flip side, and as explained in the prior section of this brief, the harm to
12 Ms. Golinski is clear. If the Chief Judge’s November 2009 Order is not enforced by this Court,
13 Ms. Golinski will continue to suffer ongoing discrimination in violation of her stated rights under
14 the Ninth Circuit’s EDR Plan. She will continue to spend thousands of dollars for private health
15 care that provides inferior coverage for her spouse. And a catastrophic illness or injury to Ms.
16 Cunninghis under her existing health plan could mean severe financial hardship to Ms. Golinski’s
17 family. In the meantime, similarly-situated, opposite-sex married couples will continue to be
18 better compensated for their employment as they receive superior health care coverage for their
19 families at far less cost to them.
20 D. The Public Interest Favors Granting the Preliminary Injunction
Because OPM’s Interference Violated the EDR Tribunal’s Authority
21 and the Separation of Powers.
22 Granting this motion favors the public interest as it would preserve the integrity of the
23 Judiciary’s EDR Plans. Winter, 129 S. Ct. at 374 (the Court must also consider whether granting
24 a preliminary injunction would serve the public interest).
25

26 (Footnote continued from previous page.)

motion, plaintiff respectfully requests that the Court dispense with the bond requirement entirely
27 or only require a nominal bond. Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003).
28

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1 Directing OPM to refrain from further interference with Ms. Golinski’s health care
2 enrollment of her spouse will give judicial employees of the Ninth Circuit assurance that the EDR
3 tribunals, the only forum in which they can file workplace grievances, has the authority to grant
4 full relief to them. The Ninth Circuit’s employees cannot appeal to the MSPB, have no Bivens
5 action, and are not provided remedies by the Civil Service Reform Act or state law. Dotson, 398
6 F.3d at 171-76; Blankenship, 176 F.3d at 1195; Lee, 145 F.3d at 1276. Sanctioning OPM’s
7 instruction to Blue Cross/Blue Shield to stymie Ms. Golinski’s enrollment of her spouse is
8 equivalent to advising Ninth Circuit employees that they only have the possibility of receiving
9 full relief for their workplace injuries — provided that the executive branch does not decide
10 otherwise.
11 OPM, further, has undermined the co-equal status of another branch of government, the
12 independence of the Judiciary, and the Courts’ power to interpret the laws of the United States.
13 Like Congress, which, under the Congressional Accountability Act of 1995, has the authority to
14 manage its own personnel and to adjudicate workplace complaints without the interference of any
15 coordinate branch of government, so too, does the Judiciary under that same Act. Golinski, 587
16 F.3d at 962-63. (See also EDR Plan at 1.) OPM thwarted the Judiciary’s authority to manage its
17 own personnel when it directed Blue Cross/Blue Shield to not enroll Ms. Golinski’s spouse based
18 upon its own, and not the Judiciary’s, interpretation of the laws.
19 But OPM does not have the authority to interpret the FEHBA as it applies to judicial
20 employees. The scope of OPM’s authority is “solely to contract with qualified carriers, to make
21 information regarding the plans available to eligible employees, and to make a continuing study
22 of the administration and operation of this program.” Director, Edward J. Meyer Mem’l Hosp. v.
23 Stetz, 433 F.Supp. 323, 325 (W.D.N.Y. 1977). The public interest is not served when an
24 executive agency, with its authority to contract for health insurance for federal employees, uses it
25 in the guise of an administrative procedure to usurp the Judiciary’s traditional and autonomous
26 role to interpret the law.
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1 CONCLUSION
2 Ms. Golinski and her family have waited long enough. The preliminary injunctive relief
3 Ms. Golinski seeks will enforce Judge Kozinski’s year-old order and will not unduly burden
4 OPM. Without this relief, Ms. Golinski faces ongoing discrimination and inadequate health care
5 benefits for her spouse.
6 For the foregoing reasons, Ms. Golinski respectfully requests that the Court grant her
7 motion for preliminary injunction and enter Ms. Golinski’s proposed order.
8

9 Dated: January 26, 2010 MORRISON & FOERSTER LLP

10 LAMBDA LEGAL
11

12 By: /s/ James R. McGuire

JAMES R. McGUIRE
13
Attorneys for Plaintiff
14 KAREN GOLINSKI
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