Case3:10-cv-00257-JSW Document118

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MICHAEL F. HERTZ Deputy Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director CHRISTOPHER R. HALL Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-4778 Facsimile: (202) 616-8470 Email: Christopher.Hall@usdoj.gov Attorneys for Defendants

10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 KAREN GOLINSKI 14 15 16 17 18 19 20 21 22 TO PLAINTIFF, INTERVENOR, AND RESPECTIVE COUNSEL: 23 PLEASE TAKE NOTICE THAT, at 9:00 a.m. on Friday, July 29, 2011, or as soon 24 thereafter as counsel may be heard, in the courtroom of the Honorable Jeffrey S. White, located 25 at 450 Golden Gate Avenue, San Francisco, CA 94102, Defendants United States Office of 26 Personnel Management (OPM) and John Berry, Director of OPM, will move for dismissal of 27 Plaintiffs Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). 28
Defendants Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OFFICE OF ) PERSONNEL MANAGEMENT, et al. ) ) Defendants. ) ) ) ) ) ) ____________________________________ )

No. C 3:10-00257-JSW DEFENDANTS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT Date: Time: Place: July 29, 2011 9 a.m. Courtroom 11, 19th Floor U.S. Courthouse 450 Golden Gate Ave. San Francisco, CA 94102

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Defendants OPM and John Berry, Director of OPM, respectfully submit the instant Motion to Dismiss Plaintiffs Second Amended Complaint. As background and basis for this motion, Defendants state as follows: 1. For the reasons set forth in the accompanying Memorandum in Support, insofar as

the First and/or Second Claim for Relief set forth in Plaintiffs Second Amended Complaint assert or can reasonably be construed to assert a statutory claim as to the language of the Federal Employees Health Benefits Act of 1959, 5 U.S.C. 8901 et seq. (FEHBA), Defendants respectfully move that such claim or claims be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 2. Defendants also respectfully request that the Court rule on Plaintiffs challenge to

the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 ( DOMA). As the President and the Attorney General have stated, the Department will no longer defend the constitutionality of Section 3 of DOMA as applied to legally married same-sex couples. Pursuant to the Presidents direction, however, Executive departments and agencies will continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional. OPM and its Director are the named Defendants in this case, and the Department of Justice represents these Defendants. Only a judgment against Defendants could afford Plaintiff the relief she seeks, and only a judgment for or against Defendants can definitively resolve the case or controversy between Plaintiff and Defendants. The Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives has moved to intervene in this case for the limited purpose of defending the constitutionality of Section 3 of DOMA, ECF No. 103, and the Court granted that motion on June 3, 2011. ECF No. 116. BLAG has indicated that it intends to move as an intervenor to dismiss Plaintiffs constitutional challenge to Section 3. As Defendants previously explained in response to BLAGs motion to intervene, ECF No. 112, Congresss interest in the constitutional validity of a law does not itself confer standing to enter an action as a party. The Attorney General, however, is committed to providing Congress a full and fair opportunity to participate in this litigation. The continuing role of the Executive Branch in this litigation ensures the
Defendants Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

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existence of a justiciable case or controversy. In addition, the Department of Justice will take the procedural steps necessary to enable BLAG to present arguments in support of the constitutionality of Section 3. Accordingly, although the Department intends to file a brief that presents the governments position on Plaintiffs equal protection challenge and intends to do so at the appropriate procedural stage of this action, pursuant to any scheduling order entered by this Court or otherwise Defendants submit this motion as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and to ensure that this Court has jurisdiction to enter judgment on the basis of those arguments. If this Court agrees with BLAG on the constitutionality of Section 3 of DOMA, it should dismiss Plaintiffs Second Amended Complaint and enter judgment for Defendants. If this Court agrees with Plaintiff and the United States as to the constitutionality of Section 3 of DOMA, it should not dismiss the Second Amended Complaint, but rather should enter such relief as is appropriate given the procedural posture of this action at the time of such determination. Dated: June 3, 2011 Respectfully Submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ Christopher R. Hall CHRISTOPHER R. HALL D.C. Bar No. 468827 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 (202) 514-4778 (telephone) (202) 616-8470 (fax) Attorneys for Defendants

Defendants Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

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MICHAEL F. HERTZ Deputy Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director CHRISTOPHER R. HALL Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-4778 Facsimile: (202) 616-8470 Email: Christopher.Hall@usdoj.gov Attorneys for Defendants

10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 KAREN GOLINSKI 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OFFICE OF ) PERSONNEL MANAGEMENT, et al. ) ) Defendants. ) ) ) ) ) ) ) ____________________________________ )

No. C 3:10-00257-JSW DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT Date: Time: Place: July 29, 2011 9 a.m. Courtroom 11, 19th Floor U.S. Courthouse 450 Golden Gate Ave. San Francisco, CA 94102

Insofar as Plaintiff seeks to assert a statutory claim as to the language of the Federal Employees Health Benefits Act of 1959, 5 U.S.C. 8901 et seq. (FEHBA) and it is not clear that she does such a claim must be dismissed as a matter of law.1

To the extent Plaintiff in fact asserts such a claim, she does so as an alternative to her claim that the Defense of Marriage Act, 1 U.S.C. 7 (DOMA), violates the Equal Protection Clause of the Fifth Amendment. See 2d Am. Compl., 71, 72.
Defendants Memorandum in Support of Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

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An enrollment [in the Federal Employees Health Benefits Program (FEHBP)] for self and family includes all family members who are eligible to be covered by the enrollment. 5 C.F.R. 890.302(a)(1) (emphasis added). A member of family is defined as either the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age . . . . 5 U.S.C. 8901(5) (emphasis added). Because DOMA limits the term spouse for purposes of federal law to a person of the opposite sex who is a husband or wife, 1 U.S.C. 7, the FEHBA itself does not permit the enrollment of Plaintiffs wife as a statutory matter. Notwithstanding this statutory language, Plaintiff asserts in 71 of her First Claim for Relief that the federal government through the Office of Personnel Management (OPM) has authority to extend FEHBP benefits to same-sex spouses, and that OPMs understanding to the contrary is not mandated by DOMA . . . but rather reflects an improper and overly narrow construction of the permissible bounds of the federal governments authority to extend coverage to family members. 2d Am. Compl. 71. In Plaintiffs view, the terms family members and member of family in the FEHBA set general guidelines and minimum requirements of coverage availability but do not establish absolute ceilings or outer boundaries of coverage. Id. Plaintiffs argument is incorrect. Congresss specific definition of member of family must be understood as encompassing the universe of persons who are eligible under that rubric. Where Congress explicitly enumerates, the enumeration is usually construed as exclusive; this concept is so well established as to be represented by a maxim of statutory construction, expressio unius est exclusio alterius (expression of one thing is the exclusion of the other). See TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001). Further bolstering this textual reading, Congress amended the FEHBA in 1984 to provide specific coverage for the former spouse of an employee or annuitant whose marriage to the employee or annuitant has been dissolved by divorce or annulment. See 5 U.S.C. 8901(10), 8905(c); see also Pub. Law No. 98-615, 3, 98 Stat. 3195, 3202 (1984); H.R. Report No. 98-1054 at 12, reprinted in 1984 U.S.C.C.A.N. 5540, 5543 (observing that amendment was necessary because [a]fter divorce, the former spouse no longer has access to health insurance coverage provided under the Federal employees health benefits program).
Defendants Memorandum in Support of Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

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Other tribunals have reached the same conclusion as to the correct construction of the FEHBA. In Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010), the district court addressed an identical statutory claim and held that [i]n the face of such strikingly unambiguous statutory language to the contrary, this court cannot plausibly interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA. Id. at 385-86. While it upheld OPMs construction of the FEHBA, the district court in Gill ultimately held Section 3 of DOMA to be unconstitutional under the Equal Protection Clause. Id. at 386-97. And in In re. Levenson, 587 F.3d 925 (9th Cir. EDR Panel 2009), a case bearing procedural similarities to this, Ninth Circuit Judge Reinhardt, acting in his administrative capacity, reached the same outcome. Judge Reinhardt rejected the plaintiffs statutory claim, concluding that when the FEHBA . . . provisions defining family members are read in light of the limitation imposed by DOMA, those provisions include only opposite-sex spouses. Id. at 930-31 (emphasis in original); but see In re. Golinski, 587 F.3d 901 (9th Cir. EDR Panel 2009). As to the plaintiffs constitutional claim, Judge Reinhardt found that DOMA violated the Due Process Clause. Id. at 931-34. CONCLUSION To the extent Plaintiff asserts a statutory claim under the FEHBA as part of the First Claim for Relief of her Second Amended Complaint, 63 to 73, such claim must be dismissed as a matter of law.

Defendants Memorandum in Support of Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

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Dated: June 3, 2011 Respectfully Submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ Christopher R. Hall CHRISTOPHER R. HALL D.C. Bar No. 468827 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 (202) 514-4778 (telephone) (202) 616-8470 (fax) Attorneys for Defendants

Defendants Memorandum in Support of Motion to Dismiss Plaintiffs Second Amended Complaint 3:10cv257-JSW

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MICHAEL F. HERTZ Deputy Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director CHRISTOPHER R. HALL Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-4778 Facsimile: (202) 616-8470 Email: Christopher.Hall@usdoj.gov Attorneys for Defendants

10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 KAREN GOLINSKI 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Upon consideration of Defendants Motion to Dismiss Plaintiffs Second Amended Complaint, any opposition thereto, any reply thereto, any further briefing by any party or intervenor, and any oral argument thereon, the Court hereby ORDERS that, insofar as Plaintiffs Second Amended Complaint asserts a statutory claim as to the language of the Federal Employees Health Benefits Act of 1959, 5 U.S.C. 8901 et seq., such claim is DISMISSED; and, further, ORDERS, as to Plaintiffs claim challenging the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, as follows: ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OFFICE OF ) PERSONNEL MANAGEMENT and ) JOHN BERRY, Director of the Office of ) Personnel Management, in his official ) capacity ) ) Defendants. ) ) ____________________________________ ) No. C 3:10-00257-JSW [PROPOSED] ORDER

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[Proposed] Order 3:10cv257-JSW

IT IS SO ORDERED.

Dated: __________

_______________________________ Hon. JEFFREY S. WHITE United States District Judge