Case3:10-cv-00257-JSW Document23 Filed03/01/10 Page1 of 3

1 MICHAEL F. HERTZ
Deputy Assistant Attorney General
2 JOSEPH P. RUSSONIELLO
United States Attorney
3 SUSAN K. RUDY
Assistant Branch Director
4 STEVEN Y. BRESSLER
Trial Attorney
5 United States Department of Justice
Civil Division, Federal Programs Branch
6
P.O. Box 883
7 Washington, D.C. 20044
Telephone: (202) 305-0167
8 Facsimile: (202) 616-8470
Email: Steven.Bressler@usdoj.gov
9
Attorneys for Defendant
10 the U.S. Office of Personnel Management
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 OAKLAND DIVISION
14 KAREN GOLINSKI )
) No. C 4:10-00257-SBA
15 Plaintiff, )
)
16 v. ) DEFENDANT’S ADMINISTRATIVE
) MOTION FOR LEAVE TO FILE AN
17 THE UNITED STATES OFFICE OF ) OPPOSITION BRIEF OF 36 PAGES
PERSONNEL MANAGEMENT, )
18 )
Defendant. )
19 )
____________________________________ )
20
21 Defendant the U.S. Office of Personnel Management (“OPM”) respectfully moves
22 the Court pursuant to Civil L.R. 7-11 for leave to file a brief in opposition to plaintiff’s
23 Motion for Preliminary Injunction of not more than 36 pages. Good cause exists for
24 granting the relief requested.
25 Plaintiff Karen Golinski, a staff attorney of the Ninth Circuit, seeks a preliminary
26 injunction and an order of mandamus against OPM premised on what plaintiff asserts is the
27 binding nature of administrative orders issued by the Honorable Alex Kozinski, Chief Judge of
28 the Ninth Circuit Court of Appeals, in his capacity as an administrative hearing officer under the

Defendant’s Administrative Motion for Leave to File an Opposition Brief of 36 Pages

4:10cv257 SBA
 Case3:10-cv-00257-JSW Document23 Filed03/01/10 Page2 of 3

1 Ninth Circuit Employee Dispute Resolution (“EDR”) Plan. Plaintiff’s claims for mandamus and
2 a preliminary injunction raise issues of apparent first impression, at least one of which Chief
3 Judge Kozinski has described as concerning separation of powers, that is, whether a judge acting
4 as an EDR hearing officer in a proceeding to which the Executive Branch is not a party can issue
5 administrative orders that bind an Executive agency.
6 As this Court has noted, these are issues of import. See Docket Entry No. 22, at 2.
7 Defendant’s planned opposition brief describes the relevant background facts and law, including
8 the nature of the Ninth Circuit’s EDR Plan, the Federal Employees Health Benefits Act, and
9 OPM’s regulations promulgated thereunder. Defendant will argue that the EDR Orders issued by
10 Chief Judge Kozinski do not present a basis for an order of mandamus against OPM under the
11 facts presented here. In support of that argument, defendant’s brief addresses the nature of the
12 authority vested in a hearing officer under the EDR Plan; discusses the authorities cited by Chief
13 Judge Kozinski as supporting that authority, including the Congressional Authorization Act, the
14 Administrative Office of United States Courts Act, and statutes vesting the Merit Systems
15 Protection Board with certain powers; responds to Chief Judge Kozinski’s suggestion that
16 constitutional separation of powers principles vest EDR Panels with the authority to issue
17 directives that bind Executive Branch agencies; explains that the government has not waived its
18 sovereign immunity against injunctions by an EDR Panel; and argues that OPM is not bound by
19 the administrative EDR Orders because OPM was not a party to the EDR proceedings.
20 Defendant will also argue that plaintiff has not established she will suffer irreparable harm absent
21 a preliminary injunction, and that the public interest and balance of equities counsel against entry
22 of such an injunction.
23 Because the Court may decide this matter on the pleadings (see Docket Entry No. 22 at 2
24 & Civil L.R. 7-1(b)), defendant’s opposition brief may be defendant’s only opportunity to present
25 its arguments in opposition to plaintiff’s motion for emergency relief. Defendant will be
26 prejudiced if it is forced to truncate its arguments and, accordingly, requests leave to file an
27 opposition brief of 36 pages in order to fully argue these matters of import and apparent first
28

Defendant’s Administrative Motion for Leave to File an Opposition Brief of 36 Pages

4:10cv257 SBA 2
 Case3:10-cv-00257-JSW Document23 Filed03/01/10 Page3 of 3

1 impression. 1
2 Undersigned counsel for defendant spoke and corresponded with counsel for plaintiff on
3 March 1, 2010, in an effort to obtain plaintiff’s stipulation to the relief requested. The parties
4 were unable to reach an agreement. Declaration of Steven Y. Bressler ¶ 6.
5 CONCLUSION
6 For all of the foregoing reasons, the Court should grant this motion for administrative
7 relief and permit defendant to file a brief in opposition to plaintiff’s motion for preliminary
8 injunction of not more than 36 pages.
9 Dated March 1, 2010
10 Respectfully Submitted,
11 MICHAEL F. HERTZ
Deputy Assistant Attorney General
12
JOSEPH P. RUSSONIELLO
13 United States Attorney
14 SUSAN K. RUDY
Assistant Branch Director
15
/s/ Steven Y. Bressler
16 STEVEN Y. BRESSLER D.C. Bar #482492
Trial Attorney
17 U.S. Department of Justice
Civil Division, Federal Programs Branch
18 P.O. Box 883
Washington, D.C. 20044
19 (202) 305-0167 (telephone)
(202) 616-8470 (fax)
20
Attorneys for Defendant
21
22
1
Undersigned counsel for defendant regrets that this motion for administrative relief was
23
not filed sooner pursuant to the Standing Order of this Court. As the Court is aware, on February
24 11, 2009, the Court entered a somewhat expedited schedule for briefing of plaintiff’s motion for
preliminary injunction. Docket Entry No. 22. As a result, defendant’s opposition brief is due on
25 March 2, 2010, instead of defendant’s deadline pursuant to the Local Rules of this Court under
the ordinary course, which was May 25, 2010. Due to inclement weather and related power
26
outages in the Washington, D.C. area, federal government offices in and around the nation’s
27 capital were closed February 8 through 11th, and workdays were shortened on February 5, 12,
and 16. See Declaration of Steven Y. Bressler ¶ 5. These closures delayed preparation and
28 review of defendant’s opposition brief within the government. See id.

Defendant’s Administrative Motion for Leave to File an Opposition Brief of 36 Pages

4:10cv257 SBA 3
 Case3:10-cv-00257-JSW Document23-1 Filed03/01/10 Page1 of 1

1 MICHAEL F. HERTZ
Deputy Assistant Attorney General
2 JOSEPH P. RUSSONIELLO
United States Attorney
3 SUSAN K. RUDY
Assistant Branch Director
4 STEVEN Y. BRESSLER
Trial Attorney
5 United States Department of Justice
Civil Division, Federal Programs Branch
6
P.O. Box 883
7 Washington, D.C. 20044
Telephone: (202) 305-0167
8 Facsimile: (202) 616-8470
Email: Steven.Bressler@usdoj.gov
9
Attorneys for Defendant
10 the U.S. Office of Personnel Management
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 OAKLAND DIVISION
14 KAREN GOLINSKI )
) No. C 4:10-00257-SBA
15 Plaintiff, )
)
16 v. ) [PROPOSED] ORDER
)
17 THE UNITED STATES OFFICE OF )
PERSONNEL MANAGEMENT, )
18 )
Defendant. )
19 )
____________________________________ )
20
21 Upon review of the defendant’s Civil L.R. 7-11 Administrative Motion for Leave
22 to File an Opposition Brief of 36 Pages, the Court hereby GRANTS the motion for
23 administrative relief.
24 IT IS SO ORDERED.
25
Dated: __________ _______________________________
26 Hon. SAUNDRA B. ARMSTRONG
United States District Judge
27
28

[Proposed] Order
4:10cv257 SBA