Case3:10-cv-00257-JSW Document41 Filed03/19/10 Page1 of 3

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, California 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 OAKLAND DIVISION

17

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

19 Plaintiff, DECLARATION OF JAMES R.

MCGUIRE IN SUPPORT OF
20 v. PLAINTIFF KAREN
GOLINSKI’S REPLY IN
21 UNITED STATES OFFICE OF PERSONNEL SUPPORT OF MOTION FOR
MANAGEMENT, and JOHN BERRY, the PRELIMINARY INJUNCTION
22 Director of the United States Office of Personnel
Management, in his official capacity, Date: June 15, 2010
23 Time: 1:00 p.m.
Defendants. Place: Courtroom 1, 4th Floor
24 United States Courthouse
1301 Clay Street
25 Oakland, California 94612

26

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DECLARATION OF JAMES R. MCGUIRE ISO GOLINSKI’S PRELIMINARY INJUNCTION REPLY BRIEF
CASE NO. 4:10-cv-00257 (SBA)
sf-2813873
 Case3:10-cv-00257-JSW Document41 Filed03/19/10 Page2 of 3

1 I, James R. McGuire, hereby declare and state as follows:

2 1. I am a partner of the law firm of Morrison & Foerster LLP, co-counsel of record for
3 plaintiff Karen Golinski. I am licensed to practice law in the State of California and am admitted
4 to practice before this Court. I make this declaration of my own personal knowledge, and, if
5 called as a witness, could and would testify competently to the matters stated herein.
6 2. The complaint in this matter was filed on Wednesday, January 20, 2010. That
7 same day, I met and conferred by telephone with counsel for the United States Office of
8 Personnel Management (“OPM”), Steven Bressler. We discussed the fact that plaintiff intended
9 to move for a preliminary injunction and to request that the motion be heard on shortened time. It
10 was my understanding that Mr. Bressler was to get back to me about whether OPM would
11 stipulate to the request for shortened time.
12 3. I did not hear from Mr. Bressler. Accordingly, on Monday, January 25, 2010, I e-
13 mailed Mr. Bressler to follow up. A true and correct copy of that e-mail is attached as Exhibit E.
14 4. Mr. Bressler responded by e-mail later that day. He stated that the parties had not
15 had a sufficiently “full conversation” to finish meeting and conferring about the preliminary
16 injunction motion itself. He further stated that OPM could not “take a definitive position on
17 scheduling” until it had seen the motion papers for the preliminary injunction. His e-mail
18 proposed a call the next day on Tuesday, January 26, 2010. A true and correct copy of that e-mail
19 is attached as Exhibit F.
20 5. I responded within the hour by e-mail with a detailed summary of our preliminary
21 injunction motion and the arguments supporting it as well as an agreement to speak with
22 Mr. Bressler the following morning. A true and correct copy of that e-mail is attached as
23 Exhibit G.
24 6. On Tuesday, January 26, 2010, I met and conferred by telephone with Mr. Bressler
25 regarding both the substance of the preliminary injunction motion and the application to shorten
26 time. The next day, I sent Mr. Bressler an e-mail confirming our conversation. A true and
27 correct copy of that e-mail is attached as Exhibit H.
28
DECLARATION OF JAMES R. MCGUIRE ISO GOLINSKI’S PRELIMINARY INJUNCTION REPLY BRIEF 1
CASE NO. 4:10-cv-00257 (SBA)
sf-2813873
 Case3:10-cv-00257-JSW Document41 Filed03/19/10 Page3 of 3

1 7. On January 26, 2010, we filed the motion for a preliminary injunction. On January
2 27, 2010, we filed the ex parte application to shorten time.
3

4 I declare under penalty of perjury that the foregoing is true and correct. Executed this
5 19th day of March 2010, at San Francisco, California.
6
/s/ James R. McGuire_____________________
7 James R. McGuire
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DECLARATION OF JAMES R. MCGUIRE ISO GOLINSKI’S PRELIMINARY INJUNCTION REPLY BRIEF 2
CASE NO. 4:10-cv-00257 (SBA)
sf-2813873
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McGuire, James R.
From: McGuire, James R.
Sent: Monday, January 25, 2010 3:31 PM
To: 'Steven.Bressler@usdoj.gov'
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: Golinski v. OPM

Steve:

I write to follow up on two issues from our call last week.

First, after we spoke last Wednesday, it was my understanding that you were going to get back to me about our request
that OPM stipulate, subject to Court approval, to permit Ms. Golinski's motion for a preliminary injunction to be heard on
shortened time. I have not heard from you. We intend to file a motion for a preliminary injunction tomorrow and, at the
same time, will ask the Court to shorten the time for opposition and hearing. Unless I hear differently from you, I will
represent to the Court that we attempted to obtain OPM's agreement on that issue, but were unsuccessful.

Second, in connection with the preliminary injunction motion itself, Judge Armstrong's standing order (which I had not
reviewed when we spoke) requires the parties to meet and confer in advance of the filing of a motion to attempt to resolve
the matter. You and I briefly discussed the substance of the motion last week, and it is our understanding that OPM is not
willing to stipulate to this relief. My sense is that we have a difference of opinion about a legal issue that we can only
resolve through judicial intervention. If I am mistaken about that, or you believe we need to discuss it further, please let
me know.

Regards,

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)

1
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Golinski v. OPM Page 1 of 2
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McGuire, James R.

From: Bressler, Steven [Steven.Bressler@usdoj.gov]

Sent: Monday, January 25, 2010 3:59 PM
To: McGuire, James R.
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: RE: Golinski v. OPM
James,

I am afraid we may have had a couple of misunderstandings or miscommunications when we spoke last
week. You told me last Wednesday that you expected to file a motion for preliminary injunction the next
day, i.e., last Thursday, and that you intended to file a motion to shorten the time for hearing shortly
thereafter. Accordingly, I expected to see your motion for injunction last week and to review it briefly
before discussing a schedule. In fact, we must see your motion and supporting materials before OPM
can take a definitive position on scheduling. I.e., we need to know what we're responding to before we
determine how long we'll need to respond.

I also asked you on Wednesday what you had in mind for a schedule, and I understood our conversation
to be tentative at that time. If there is more you can tell me now -- what do you have in mind?

As for meeting and conferring -- the only aspect of your planned emergency motion that I remember
discussing in substance last week was Ms. Golinski's arguments concerning irreparable harm. Like you, I
am not optimistic that we will be able to fully resolve the matter. But I don't think we had a full
conversation. It is now after close of business here in D.C.; can we talk tomorrow morning (your time)?
We can discuss scheduling then, as well, although, again, I think it will have to be preliminary on my end
until we see your moving papers.

Thanks,
Steve

From: McGuire, James R. [mailto:JMcGuire@mofo.com]

Sent: Monday, January 25, 2010 6:31 PM
To: Bressler, Steven
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: Golinski v. OPM

Steve:

I write to follow up on two issues from our call last week.

First, after we spoke last Wednesday, it was my understanding that you were going to get back to me
about our request that OPM stipulate, subject to Court approval, to permit Ms. Golinski's motion for a
preliminary injunction to be heard on shortened time. I have not heard from you. We intend to file a
motion for a preliminary injunction tomorrow and, at the same time, will ask the Court to shorten the time
for opposition and hearing. Unless I hear differently from you, I will represent to the Court that we
attempted to obtain OPM's agreement on that issue, but were unsuccessful.

Second, in connection with the preliminary injunction motion itself, Judge Armstrong's standing order
(which I had not reviewed when we spoke) requires the parties to meet and confer in advance of the filing
of a motion to attempt to resolve the matter. You and I briefly discussed the substance of the motion last
week, and it is our understanding that OPM is not willing to stipulate to this relief. My sense is that we
have a difference of opinion about a legal issue that we can only resolve through judicial intervention. If I
am mistaken about that, or you believe we need to discuss it further, please let me know.

Regards,

3/8/2010
Golinski v. OPM Page 2 of 2
Case3:10-cv-00257-JSW Document41-2 Filed03/19/10 Page3 of 3

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)

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3/8/2010
Case3:10-cv-00257-JSW Document41-3 Filed03/19/10 Page1 of 4
Golinski v. OPM Page 1 of 3
Case3:10-cv-00257-JSW Document41-3 Filed03/19/10 Page2 of 4

McGuire, James R.

From: McGuire, James R.

Sent: Monday, January 25, 2010 4:58 PM
To: 'Bressler, Steven'
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: RE: Golinski v. OPM
Steve:

My apologies for any miscommunication and I'm sorry that I missed your phone call of this afternoon.

I would like to speak tomorrow morning, Pacific time, regarding OPM's position on the substance of the
motion for a preliminary injunction. To ensure that our position is clear to you in advance of that call, so
that our conversation can be meaningful, here it is: OPM gratuitously interfered with an ongoing EDR
matter pending before the Chief Judge of the Ninth Circuit. As a consequence of that action, the Chief
Judge ordered OPM to cease such interference. OPM failed to do so and also failed to appeal the order
to the Judicial Council, as it was entitled to do.

Against this background, a preliminary injunction is appropriate for the following reasons:

Ms. Golinski will likely prevail on her mandamus claim because OPM's duties under the
Order are clear and certain, ministerial and Ms. Golinski has no other remedy available to
her. OPM, moreover, has waived any and all defenses to the enforcement of the order at
issue.
As a result of OPM's actions, Ms. Golinski is suffering, and will continue to suffer,
irreparable injury. She continues to suffer, on a daily basis, unlawful discrimination in the
terms of her employment. That discrimination cannot be remedied in any way other than by
injunctive relief as there are no comparable health insurance plans available on the market.
The balance of hardships tips strongly in Ms. Golinski's favor. She has scrupulously
followed the only avenue available to her for resolution of her claim, and has obtained, from
the Chief Judge of the Ninth Circuit, an order granting her total relief. OPM, by contrast, will
suffer no harm if it is ordered to comply with the Chief Judge's order.
The public interest favors enforcing Judge Kozinki's order, rather than endorsing OPM's
approach.

Assuming that, at the end of our call, OPM is not willing to stipulate to entry of a preliminary injunction by
which it agrees to comply with Judge Kozinski's order and that you have not persuaded me that we
should not seek such relief, we will file a motion for a preliminary injunction. We will, promptly thereafter,
need to seek an order shortening time for the opposition and hearing on that motion. We will propose and
will seek a hearing twenty-eight days from tomorrow: February 23, 2010. We will ask that the opposition
be filed by February 9, and the reply by February 16.

Now that you know what we intend to argue, please be prepared to speak with us about scheduling
tomorrow as well.

Regards,

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)

From: Bressler, Steven [mailto:Steven.Bressler@usdoj.gov]

3/8/2010
Golinski v. OPM Page 2 of 3
Case3:10-cv-00257-JSW Document41-3 Filed03/19/10 Page3 of 4

Sent: Monday, January 25, 2010 3:59 PM

To: McGuire, James R.
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: RE: Golinski v. OPM

James,

I am afraid we may have had a couple of misunderstandings or miscommunications when we spoke last week. You
told me last Wednesday that you expected to file a motion for preliminary injunction the next day, i.e., last Thursday,
and that you intended to file a motion to shorten the time for hearing shortly thereafter. Accordingly, I expected to
see your motion for injunction last week and to review it briefly before discussing a schedule. In fact, we must see
your motion and supporting materials before OPM can take a definitive position on scheduling. I.e., we need to know
what we're responding to before we determine how long we'll need to respond.

I also asked you on Wednesday what you had in mind for a schedule, and I understood our conversation to be
tentative at that time. If there is more you can tell me now -- what do you have in mind?

As for meeting and conferring -- the only aspect of your planned emergency motion that I remember discussing in
substance last week was Ms. Golinski's arguments concerning irreparable harm. Like you, I am not optimistic that
we will be able to fully resolve the matter. But I don't think we had a full conversation. It is now after close of
business here in D.C.; can we talk tomorrow morning (your time)? We can discuss scheduling then, as well,
although, again, I think it will have to be preliminary on my end until we see your moving papers.

Thanks,
Steve

From: McGuire, James R. [mailto:JMcGuire@mofo.com]

Sent: Monday, January 25, 2010 6:31 PM
To: Bressler, Steven
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: Golinski v. OPM

Steve:

I write to follow up on two issues from our call last week.

First, after we spoke last Wednesday, it was my understanding that you were going to get back to me about our
request that OPM stipulate, subject to Court approval, to permit Ms. Golinski's motion for a preliminary injunction to
be heard on shortened time. I have not heard from you. We intend to file a motion for a preliminary injunction
tomorrow and, at the same time, will ask the Court to shorten the time for opposition and hearing. Unless I hear
differently from you, I will represent to the Court that we attempted to obtain OPM's agreement on that issue, but
were unsuccessful.

Second, in connection with the preliminary injunction motion itself, Judge Armstrong's standing order (which I had not
reviewed when we spoke) requires the parties to meet and confer in advance of the filing of a motion to attempt to
resolve the matter. You and I briefly discussed the substance of the motion last week, and it is our understanding
that OPM is not willing to stipulate to this relief. My sense is that we have a difference of opinion about a legal issue
that we can only resolve through judicial intervention. If I am mistaken about that, or you believe we need to discuss
it further, please let me know.

Regards,

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)

3/8/2010
Golinski v. OPM Page 3 of 3
Case3:10-cv-00257-JSW Document41-3 Filed03/19/10 Page4 of 4

---------------------------------------------------------------------
To ensure compliance with requirements imposed by the IRS, Morrison & Foerster LLP informs you that,
if any advice concerning one or more U.S. Federal tax issues is contained in this communication (including
any attachments), such advice is not intended or written to be used, and cannot be used, for the purpose of
(i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to
another party any transaction or matter addressed herein.

For information about this legend, go to

http://www.mofo.com/Circular230.html

============================================================================

This message contains information which may be confidential and privileged. Unless you are the addressee
(or authorized to receive for the addressee), you may not use, copy or disclose to anyone the message or
any information contained in the message. If you have received the message in error, please advise the
sender by reply e-mail @mofo.com, and delete the message.
---------------------------------------------------------------------

3/8/2010
Case3:10-cv-00257-JSW Document41-4 Filed03/19/10 Page1 of 2
 Case3:10-cv-00257-JSW Document41-4 Filed03/19/10 Page2 of 2

McGuire, James R.
From: McGuire, James R.
Sent: Wednesday, January 27, 2010 1:11 PM
To: 'Bressler, Steven'
Cc: Dresser, Gregory P.; Park, Grace Y.; 'jpizer@lambdalegal.org'
Subject: Golinski v. OPM

Steve:

I write to confirm that yesterday we met and conferred over both the substance of the preliminary injunction motion we
filed yesterday, as well as the motion to shorten the time for hearing that we intend to file. Regarding the latter motion,
yesterday you were unable to agree to (but also did not reject) the shortened time schedule we proposed. We agreed to
refrain from filing it until today in the hope that we could reach some form of agreement, or otherwise get a more definitive
answer, from OPM.

We have not yet heard from you and want to confirm again that we plan to file that motion by the close of business today.
If you have further information from OPM at this point, we are interested to hear it. Otherwise, we remain open to later
discussion of a mutually convenient hearing date and briefing schedule.

As mentioned, I will be out of the office after today, returning on Monday, February 1. Should any questions arise, please
do not hesitate to contact Greg Dresser or our co-counsel, Jenny Pizer, at Lambda Legal.

Regards,

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)