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3:10-cv-00257 #40
3:10-cv-00257 #40
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
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
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)
IN THE MATTER OF KAREN )
GOLINSKI, et ux. ) No. 09-80173
)
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
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 that Chief Judge Kozinski be recused from the review panel because of his
Background
BCBSA is the national trade association of Blue Cross and Blue Shield
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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
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
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
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currently in place, BCBSA’s and the Blue Cross and Blue Shield companies’
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
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
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
of federal employees, but not to prohibit OPM from providing additional benefits,
discretion, may exceed this baseline requirement and contract to provide benefits
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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
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.,
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
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
compelled the Plan to take action, neither BCBSA nor any other Blue Cross and
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Blue Shield entity had ever been made a party to the proceedings or ever had
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
At the outset, BCBSA emphasizes that the Blue Cross and Blue Shield
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.
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But OPM has not contracted for coverage for same-sex spouses under the
Golinski’s enrollment is that her same-sex spouse, Ms. Cunninghis, shall not be
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
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
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
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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
internal employment disputes within the Ninth Circuit. Outside actors are simply
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
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
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cases for the proposition that the sole avenue for employees of the judicial branch
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.
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
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
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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
requirements that [FEHBA] plans must satisfy.” January Order at 3. Applying this
interpretation of FEHBA, Chief Judge Kozinski reasoned that while OPM must, at
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
could exceed any of FEHBA’s terms if it so desired -- it could, for example, extend
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
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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
Just as troubling, under the November Order, the federal agency that
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
employing agency could apply its own rules concerning enrollment, without
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).
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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-
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
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
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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
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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
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
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IN THE MATTER OF
KAREN GOLINSKI, et ux.,
No. 09-80173
Attorneys for Karen Golinski Attorneys for Blue Cross and Blue Shield
Association
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Karen Golinski and Blue Cross and Blue Shield Association (“BCBSA”)
respectfully request that the Judicial Council stay further proceedings in this matter
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
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
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
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BCBSA petitioned for review on December 17, 2009 and requested the
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
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
compel OPM’s compliance. On January 26, 2010, Ms. Golinski filed a motion for
June 15, 2010. Ms. Golinski has filed a motion seeking to shorten the time for
Ms. Golinski’s suit against OPM potentially may resolve this controversy, thereby
2
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making resolution of the petition for review unnecessary. In the event that the final
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
3
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LAMBDA LEGAL
4
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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
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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
2
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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
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FILED
JUDICIAL COUNCIL FEB 01 2010
The parties have filed a joint motion to stay the appeal of this matter pending
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
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
Back Pay Act and directed the Appellate Commissioner to prepare a report and
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,
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
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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
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. §
the matter is not yet ripe for decision. Ms. Golinski may request that I revisit it
She has requested the right to seek additional back pay from then until OPM
page 3
as, until then, she remains subject to "an unjustified or unwarranted personnel
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
More back pay is, however, the only remedy I have left to give in the face of
even though it's inadequate and wasteful. U.S. Court of Appeals for the Ninth
Golinski to move for additional back pay before the Commissioner until she's
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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
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.