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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 AARON D. JONES (CA SBN 248246)
AJones@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 JON W. DAVIDSON (CA SBN 89301)
JDavidson@lambdalegal.org
9 TARA L. BORELLI (CA SBN 216961)
TBorelli@lambdalegal.org
10 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3325 Wilshire Boulevard, Suite 1300
11 Los Angeles, California 90010-1729
Telephone: 213.382.7600
12 Facsimile: 213.351.6050
13 Attorneys for Plaintiff
KAREN GOLINSKI
14

15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA

17 SAN FRANCISCO DIVISION

18

19 KAREN GOLINSKI, Case No. 3:10-cv-0257-JSW

20 Plaintiff, PLAINTIFF KAREN GOLINSKI'S
OPPOSITION TO DEFENDANTS’
21 v. MOTION TO ENLARGE TIME TO
RESPOND TO PLAINTIFF’S
22 UNITED STATES OFFICE OF PERSONNEL SECOND AMENDED COMPLAINT
MANAGEMENT, and JOHN BERRY, Director
23 of the United States Office of Personnel
Management, in his official capacity,
24
Defendants.
25

26

27

28

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO ENLARGE TIME

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1 Plaintiff Karen Golinski respectfully submits the following Opposition to Defendants’

2 Motion to Enlarge Time to Respond to Plaintiff’s Second Amended Complaint. (Dkt. No. 104.)
3 Plaintiff asks that the Court deny Defendants’ request to delay this case by two and one-half
4 months so that outside counsel for intervenor may focus on other engagements. Instead, Plaintiff
5 proposes that the Court extend Defendants’ time to respond by thirty days from the original
6 deadline, to June 3, 2011.
7 BACKGROUND
8 The federal government informed Ms. Golinski in September 2008 that, due to Section 3
9 of the Defense of Marriage Act (“DOMA”), it would not enroll her spouse in her employee health
10 care plan, denying her an important form of compensation routinely provided to married
11 heterosexual employees of the federal judiciary. Ms. Golinski has now been seeking an end to
12 this discrimination, based on her sex and sexual orientation, for more than two and one-half years.
13 She prevailed in administrative proceedings within her employing agency, but the Office of
14 Personnel Management intervened and blocked enrollment of her spouse.
15 Therefore, on January 20, 2010, Ms. Golinski filed the instant action to enforce the final
16 determination of her employing agency that she is, in fact, entitled to the spousal health care
17 coverage provided to similarly situated married heterosexual employees of the federal judiciary.
18 Plaintiff moved for injunctive relief, and defendants moved to dismiss.
19 While those motions were pending, on February 23, 2011, the Attorney General of the
20 United States informed Congress that, because Section 3 of DOMA is unconstitutional, the
21 Department of Justice will forgo defense of that section of the statute. The Attorney General also
22 invited Congress to intervene in pending DOMA litigation to defend the statute.
23 On March 16, 2011, this Court granted Defendants’ motion to dismiss without prejudice,
24 but granted Ms. Golinski leave to amend her Complaint directly to challenge Section 3 of
25 DOMA. It ordered that Ms. Golinski file any amended complaint by April 15, which she did (a
26 day early), and it ordered that “Defendants must file an answer or otherwise respond to the
27 amended complaint within 20 days of filing,” i.e., by May 4, 2011. (Dkt. No. 98 at 12.)
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO ENLARGE TIME 1

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1 On April 28, 2011, less than a week before the deadline to respond to the complaint,
2 Defendants contacted Plaintiff to request stipulation to a 75-day extension of time, stating that the
3 Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) needed the
4 additional time due to other unspecified DOMA matters. (Declaration of Rita Lin in Opposition
5 to Motion to Enlarge Time (“Lin Decl.”), filed herewith, at ¶ 3.) Although Plaintiff could not
6 agree to such a lengthy extension in light of the urgency of her spouse’s insurance situation,
7 particularly without any concrete explanation as to why such a long period of time was necessary,
8 Plaintiff stated that she would agree to provide a 30-day extension. (Id. ¶ 6.) Defendants rejected
9 that offer. (Id. ¶ 7.)
10 The Court’s deadline came and went, but Defendants neither filed an answer nor
11 otherwise responded to the amended complaint. Instead, they simply defaulted. See Fed. R. Civ.
12 P. 55. On May 4, however—the day of the Court’s deadline—BLAG filed a motion to intervene
13 in this action to defend the constitutionality of DOMA. The involvement of BLAG and its
14 outside counsel, the motion indicates, will extend solely to litigating the constitutionality of
15 Section 3 of DOMA, while the DOJ will continue to “take full responsibility for litigating all
16 other issues.” (See Dkt. No. 103 at 2.)
17 Also on the day of the Court’s deadline, evidently viewing their entitlement to extra time a
18 foregone conclusion, Defendants filed the instant motion requesting that the Court give BLAG an
19 additional two and one-half months in which to move to dismiss. That motion directly violated
20 this Court’s standing order requiring that motions for additional time be filed “in advance of the
21 filing deadline, rather than on the day a brief or other matter is due.”
22 Defendants seek this lengthy delay due to “logistical constraints upon BLAG’s time and
23 resources, and those of its outside counsel.” (Mot. ¶ 7.) Specifically, Defendants point to (1) the
24 involvement of BLAG and its outside counsel in other similar DOMA challenges, and (2) the fact
25 that “the outside counsel retained by BLAG to represent it in this and other DOMA matters, Paul
26 Clement . . . [is] and remain[s] responsible for significant on-going matters other than DOMA
27 litigation.” (Mot. ¶¶ 7-11.) In short: counsel for BLAG has other matters to work on.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO ENLARGE TIME 2

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1 ARGUMENT
2 Plaintiff respectfully requests that the Court deny Defendants’ motion. Defendants

3 identify no specific conflict preventing them or BLAG timely from responding to the complaint

4 but merely indicate that counsel would prefer to prioritize other work. Counsel’s desire to back-

5 burner this case and work on other matters, however, does not constitute good cause to slow this

6 lawsuit to a crawl. Counsel is obligated diligently to litigate this case no less than other

7 engagements. See Cal. Rule of Prof. Conduct 3-110; ABA Model Rules of Professional Conduct,

8 Rule 1.3, Cmts. 2-3 (“A lawyer’s work load must be controlled so that each matter can be handled

9 competently.”).

10 The delay Defendants seek would come at a substantial cost to Ms. Golinski, as she

11 continues to suffer significant—and irreparable—harm each day that adjudication of her rights is

12 postponed. As a result of Defendants’ discriminatory conduct, Plaintiff lacks group health

13 coverage for her spouse, who instead is on an individual plan that provides inadequate coverage

14 in the event of serious illness or injury and that fails to provide adequate preventative care. This

15 underinsured status creates health risks and anxiety for Plaintiff and her spouse on a daily basis.

16 Moreover, Plaintiff continues to endure the stigma of Defendant’s discriminatory conduct. This

17 ongoing harm cannot be remedied by a money judgment (which, in any event, Plaintiff does not

18 seek here). Plaintiff’s only goal in this action is a speedy resolution of her rights. BLAG should

19 not be permitted to frustrate that goal solely for the convenience of its chosen outside counsel.

20 See Fed. R. Civ. P. 1 (civil rules should be administered “to secure the just, speedy, and

21 inexpensive determination of every action”).

22 Defendants and BLAG cannot claim to have been caught off guard by the Court’s

23 deadline. The Attorney General invited Congress to intervene in this case on February 23 via a

24 letter personally addressed to the Speaker of the House, one of the five members of BLAG.

25 Defendants indicate that BLAG “formally” decided to defend the constitutionality of Section 3 of

26 DOMA on March 9, a week before the Court’s order, and that BLAG hired outside counsel for

27 the task on April 14—the day that Plaintiff filed her amended complaint. (Mot. ¶ 6.) Yet BLAG

28 failed to move to intervene until May 4, the day of the Court’s deadline.

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO ENLARGE TIME 3

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1 Defendants indicate that the involvement of BLAG and its counsel in other litigation
2 regarding the constitutionality of DOMA prevents them from responding to the complaint. (See
3 Mot. ¶¶ 7-9). But counsel’s work in those cases will aid, not hamper, its efforts here. In each of
4 those actions, BLAG is litigating precisely the same issue that it intends to litigate here, the
5 constitutionality of Section 3 of DOMA—and only that issue. BLAG will not be starting from
6 scratch as it prepares to respond to Plaintiff’s complaint.1 Furthermore, as the Court is aware, the
7 parties already have thoroughly briefed the constitutionality of Section 3 of DOMA in this action
8 (Dkt. Nos. 81-84) easing the burden of researching Ninth Circuit law and learning Plaintiff’s
9 circumstances. (See Decl. of Kerry W. Kircher in Support of Def’s Mot. to Enlarge Time ¶ 14.)
10 Plaintiff attempted a reasonable resolution of this matter absent the Court’s involvement.
11 Defendants first approached Plaintiff to request additional time to respond to the complaint on
12 April 28, when counsel for Defendants contacted Plaintiff on behalf of BLAG to request a 75-day
13 extension. (Lin Decl. ¶ 3.) That same day, Plaintiff informed Defendants that, although she
14 could not agree to a lengthy two and one-half month delay due to urgency of her situation, she
15 would agree to a 30-day extension, i.e., to June 3. (Id. ¶ 6.) This accommodation would afford
16 BLAG ample time to prepare a motion to dismiss. With this extension, Defendants would have
17 80 days from the date of the Court’s order, and 50 days from the filing of the amended complaint,
18 to move to dismiss — more than enough time, particularly given that, as Defendants indicate,
19 BLAG expects to file a similar motion on May 25 in another DOMA case (Mot. ¶ 7), and the
20 parties already have briefed the sole issue for which BLAG is responsible. Plaintiff also informed
21 Defendants that, to advance resolution of the merits, she would not oppose BLAG’s intervention.
22 (Lin Decl. ¶ 6 & Ex. A thereto.) (See Pl’s Stmt. of Non-Opposition to BLAG’s Mot. to Intervene,
23 filed herewith.) Plaintiff further told Defendants that, in the alternative, she would agree to a 75-
24 day extension (or longer) if Defendants agreed to add her spouse to her group health plan on an
25 1
The substantial overlap between this and the other DOMA cases is highlighted by the
fact that BLAG’s motion to intervene tracks the motion it filed in other DOMA cases virtually
26 word-for-word. (Compare Dkt. No. 103 with Lin Decl. ¶ 9, Ex. C (BLAG’s Response to Motion
to Intervene in the Windsor action).). No doubt, its motions to dismiss will substantially overlap
27 as well.
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1 interim basis during the pendency of this action, an offer to which Defendants never responded.
2 (Id.)
3 The following day, on April 29, counsel for Defendants contacted Plaintiff, this time
4 requesting a 60-day extension. (Lin Decl. ¶ 7.) That same day, Plaintiff responded and reiterated
5 her offer of a 30-day extension but stated that she could not agree to a 60-day extension,
6 particularly in light of the fact that Defendants identified no reason why 30 days would be
7 insufficient. (Id. ¶ 8 & Ex. B thereto.)
8 On May 2, counsel for Defendants again contacted Plaintiff to ask for a 45-day extension
9 instead. (Declaration of James R. McGuire in Opposition to Motion to Enlarge Time ¶ 2.)
10 Again, Plaintiff was unable to obtain any explanation as to why a 30-day extension would be
11 insufficient. (Id.) Plaintiff therefore stated that her offer of a 30-day extension still stood. (Id.)
12 Rather than accept this reasonable accommodation, Defendants filed the instant motion.
13 Yet Defendants still have identified no justification for the lengthy delay they seek. Plaintiff
14 therefore requests that the Court deny Defendants’ motion and instead extend Defendants’ time to
15 respond to the Second Amended Complaint by thirty days from the original deadline, to June 3,
16 2011.
17 Dated: May 9, 2011 MORRISON & FOERSTER LLP
18 LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
19

20
By: /s/ James R. McGuire
21 JAMES R. McGUIRE
22 Attorneys for Plaintiff
KAREN GOLINSKI
23

24

25

26

27

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO ENLARGE TIME 5

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