Transcript of Proceedings Appearances: For Plaintiff: Morrison & Foerster

Case3:10-cv-00257-JSW Document89
Filed12/30/10 Page1 of 61
Pages 1 - 60 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE JEFFREY S. WHITE ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, and JOHN BERRY, ) Director of the United States ) Office of Personnel Management, in ) his official capacity, ) ) Defendants. ) ) ___________________________________) KAREN GOLINSKI,
NO. C 10-0257 JSW
San Francisco, California Friday December 17, 2010 10:05 a.m.
TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: Morrison & Foerster 425 Market Street San Francisco, CA 94105-2482 (415) 268-6411 (415) 268-7522 (fax) GREGORY P. DRESSER AARON D. JONES RITA F. LIN JAMES R. MC GUIRE
BY:
(Appearances continued on next page) Reported By: Lydia Zinn, CSR #9223, RPR Official Reporter - U.S. District Court
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APPEARANCES (CONT'D) For Plaintiff:
BY: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY: For Defendants:
Lambda Legal Western Regional Office 3325 Wilshire Blvd., Suite 1300 Los Angeles, CA 90010 (213) 382-7600 (213) 351-6050 (fax) JENNIFER C. PIZER U.S. Department of Justice Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514-4778 (202) 616-8470 (fax) CHRISTOPHER R. HALL
Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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THE COURT:
Good morning, everybody.
Please be
Please call the case. THE CLERK: Calling Case Number C. 10-257,
Karen Golinski versus United States Office of Personnel Management, et al. Counsel, please step forward to the podiums and state your appearances. MS. LIN: To the podiums, counsel. Your Honor, Rita Lin. I'm an associate at
Morrison & Foerster, on behalf of Plaintiff, Karen Golinski. I'm addressing the Court's Questions 1 through 4. THE COURT: MS. LIN: All right.
And I'd also like to introduce Ms. Golinski
and her wife, Ms. Cunnighis, who are here in the courtroom today. THE COURT: MR. JONES: Welcome. Good morning. Aaron Jones, also for
Plaintiff, Karen Golinski. THE COURT: MS. PIZER: Good morning. Good morning, your Honor.
Jennifer Pizer, with Lambda Legal Defense and Education Fund, also for Plaintiff, Karen Golinski. And I'll be addressing any of the Court's questions; and Question 5, related to the unconstitutionality of the Defense of Marriage Act. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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THE COURT:
All right.
Good morning.
MR. MC GUIRE:
Good morning, your Honor.
James McGuire, Morrison & Foerster, for Plaintiff Karen Golinski. THE COURT: Good morning. Good morning, your Honor.
MR. DRESSLER:
Gregory Dresser, Morrison & Foerster, for Plaintiff Karen Golinski. THE COURT: outnumbered. MR. HALL: It happens occasionally. Good morning. They've got you
Christopher Hall, with the Department of Justice, for Director of OPM, Mr. Barry. THE COURT: All right. Why don't you be seated --
all of you -- for the moment? Given the nature of the case, I want to make a comment for the record before we get into the questions. And I assume, obviously, the plaintiffs have received the -- the plaintiff has received the Court's questions. the defendant received it? MR. HALL: Your Honor, we did receive it after I Has
landed in San Francisco last night. THE COURT: All right. Very well.
So now before the Court is a mandamus action in which the plaintiff, Karen Golinski, seeks enforcement of an Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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administrative order authored by Chief Judge Kozinski of the Ninth Circuit Court of Appeals. In his order, Judge Kozinski
required Defendant united States Office of Personnel Management to rescind its instructions -- instruction and to cease its interference with the enrollment of Ms. Golinski's spouse to her health plan. Ms. Golinski, a long-time employee of the office of staff attorneys for the Ninth Circuit Court of Appeals, was lawfully married to her long-time domestic partner and co-parent on August 21st, 2008, and remains married under the laws of the State of California. After seeking enrollment for her spouse in the family coverage plan, the Administrative Office of the Courts advised Ms. Golinski that her election form would not be processed, because her spouse shared her gender. Ms. Golinski sought review under the Ninth Circuit's Employment Dispute Resolution Plan, which prohibits employment discrimination based on, among other things, sex or sexual orientation. As required, the complaint was heard by the Chief Judge, who, in a series of orders, found that the Administrative Office had incorrectly concluded that the so-called -- so-called "Defense of Marriage Act," or "DOMA," prohibited the extension of coverage to her same-sex spouse by misinterpreting the term, quote, "member of family," unquote, Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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in the Federal Employees Health Benefits Act. Judge Kozinski ordered extension of coverage.
Chief
However, notwithstanding these orders, the Office of Personnel Management instructed Ms. Golinski's health-insurance carrier not to enroll her spouse, on the basis that DOMA prohibited the extension of coverage. By further order, Judge Kozinski again required compliance. President Obama, when he was running for office, said, quote, "Federal law should not discriminate in any way against gay or lesbian couples, which is precisely what DOMA does." Unquote. The law is, quote, "abhorrent," unquote, and, quote, "an unnecessary imposition of what had been the traditional rules governing marriage, and how states interact on the issues of marriage," unquote, quoting President Obama. By quoting this statement of our President, the Court does not imply that it has reached a decision on the legal issues raised in this case. This case, indeed, raises
important and difficult legal problems, not to mention a procedural conundrum. The purpose of this hearing is to require the parties to answer the Court's questions to help resolve these important Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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questions.
The Court instructs the parties to refrain from
rearguing the material covered in their extensive briefing of the issues, and, rather, to focus on the Court's questions. At the end of the specific questions, the parties will have an opportunity to address any other issues which they wish to bring to the Court's attention that may not have been raised by the questions or covered adequately in the briefs. So, with that, let us begin response to the questions. So let me get, from the plaintiff's side, the
person who's going to be responding to Question Number 1. And maybe I can get Government counsel -- defense counsel -- up here as well. MR. HALL: THE COURT: MR. HALL: THE COURT: come up. MR. HALL: Oh, no, no, no. I thought I might -- I Certainly, your Honor. You seem surprised. I'm sorry? You seem surprised that I'm asking you to
can come up now or later; whichever your Honor prefers. THE COURT: I'm going to be asking the first question And then I'll give plaintiff an
of you in the first instance.
opportunity to respond to Question Number 1. MR. HALL: I apologize, your Honor. I don't have a
printed copy of your Honor's questions, so I'm going to have to read my own handwriting. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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I appreciate Ms. Lin's courtesy. THE COURT: MR. HALL: All right. She's provided a copy. So one moment.
Your Honor, I think that Question 1, as I read it, is -- represents a couple of discrete questions. My view is that the second chronological question is the broader of the two. your Honor doesn't mind. The way I read Part 2 of Question 1 is this: The So I'll try to address that first, if
corrective authority that OPM cites refers merely to making corrections of administrative errors. Then your Honor's question cites 5 C.F.R. Section 890.103(h). When is the statutory -- where is the statutory support for OPM's argument that its authority to regulate federal health care benefits is more broad? I think, as an initial matter, I have to say this. The Court does not need to address this question, because there's a more fundamental issue of sovereign immunity. And,
beyond that, there's an issue of whether or not the Ninth Circuit administrative-dispute-resolution process has the statutory authority to bind executive agencies. THE COURT: Well, I'd appreciate you not telling me Maybe it's a stupid And then you can
what I should ask or shouldn't ask.
question, but why don't you answer it?
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convince me that I asked the wrong question. MR. HALL: Certainly, your Honor.
I think the statutory support for this position is as broad as it needs to be. 5 U.S.C. Section 8903 provides OPM
with the authority to contract with insurance carriers. 5 U.S.C. Section 8902(j) provides OPM the authority and the obligation to determine if carriers are contractually obligated to pay benefits to enrollees. And then, finally, 5 U.S.C. Section 8913 provides delegates the authority and the obligation to OPM to prescribe regulations necessary to carry out the Act, which regulations may specify the time at which and the manner and conditions under which an employee is eligible to enroll in an approved health benefit plan. Now, I think that's the -- for OPM, I think I have to make this point. Contracting with carriers is not an
obligation or an authority that ends with the execution of a valid contract between OPM, and, say, Blue Cross/Blue Shield. Contracting with carriers includes taking actions to fulfill contract responsibilities after the contract has been entered, as well as enforcing the carriers' obligations. Now, carriers have the right, under the contract, to ask for instruction under the contract. to provide instructions, when requested. The contract itself -- and I'll cite the provision Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 And OPM is obligated
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there.
It's Section 1.10(a)(11) -- requires the carrier to
notify OPM of any significant changes in policies and procedures or interpretations of contract provisions that would affect the benefits available under the contract. Now, in response to a notification under that provision of the contract, OPM may, under the subsequent provision, Section 1.10(b), direct the carrier to take corrective action, or suspend new enrollments under the contract. Now, I think -- I think what happens here is, in 1996, as your Honor is aware, Congress passed DOMA. And DOMA,
in effect, amended over a thousand federal statutes that concerned the provision of federal benefits. One of those, obviously, was the Federal Employees Health Benefits Act, or "FEHBA." When that happened, OPM was under an obligation to issue the directive that it issued in 1996, which essentially said to the contractor, to the carrier, and to the employing offices that this is what is now provided -- this is what is now required under FEHBA. So I think the other statutory provision that I need to emphasize is 5 U.S.C. 8913. Now, that's about as broad as a And what that
delegation of authority as you're going to find.
essentially says is that OPM has the authority to interpret its organic statute -- in this case, FEHBA -- and promulgate Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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regulations designed to implement FEHBA. So it's exactly what OPM did. And that's exactly
what provides the statutory basis for OPM to take the action that it took in this case, which, I would emphasize, goes all the way back to 1996. And I think that leads directly into the How
first part of Question Number 1, which I read as this:
does the conduct of sending a letter to plaintiff's insurer, instructing the company not to follow the tribunal's directive, qualify as either contracting with carriers, or prescribing benefits under FEHBA? I would point out that that has already happened in both cases. First, OPM already prescribed regulations under FEHBA. Certainly, in 1996, the letter to the carriers in
general and to the employing agencies did exactly what OPM was obligated to do under FEHBA, as amended by DOMA, and told them exactly what their obligations were. Now, OPM possessed that authority. And I think
that's unquestionable; but when the -- when Judge Kozinski, acting in his administrative capacity, which I don't think is a disputed point in this case, either, issued his November 2009 administrative order, OPM was alerted to that, and had an obligation to reiterate its 1996 instruction, which is essentially what it did. THE COURT: All right. Counsel?
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MS. LIN:
Your Honor, if I could start with the
regulatory point, and then I'll move back to the contract point. THE COURT: MS. LIN: Very well.
The action at issue here is the letter that There has been
OPM sent in response to Judge Kozinski's order.
no argument from OPM that that letter constitutes in any way a regulation. So, then, I think that takes us to the -- the contracting provisions that OPM has cited. Section 8903, and also 8902(j). As to 8903, 8903 provides authority to enter into contracts; to contract with insurers. There is no allegation here that the sending of a letter is an act of entering into a contract, or contracting with an insurer. OPM has repeatedly cited in the briefing -OPM starts with
both motion to dismiss, and preliminary injunction -- the notion that delegation to an agency must be specific. Agencies -- the scope of an agency's statutory authority is bounded by the specific grant given by Congress. And here, OPM
cannot point to any sense in which the sending of a letter falls within the specific grant of contracting with an insurer. I would also point out that the -- that the contract on which OPM relies at this point is not something that's in evidence. It's the first time we've heard this argument as to Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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the notion that this falls within OPM's statutory authority; but putting that aside, the contract language that OPM points to is language about corrective actions as to carriers. Here, the carrier has not taken an action one way or the other, so there's no correction that's being required. person who is being corrected, if anyone, would be Chief Judge Kozinski. OPM does not have the authority to take The
corrective action against Chief Judge Kozinski or the EDR tribunals. OPM does have a regulation that gives it the ability to take corrective authority against executive agencies. That's cited in our brief. And that's 5 C.F.R. 250.13. That
section says that if OPM finds that an executive agency -THE COURT: dictate. Slow down when you read. Make Lydia
Otherwise, she gets very upset; appropriately so. MS. LIN: Sorry. It's 5 C.F.R. Section 250.13.
If OPM finds an executive agency, quote, "has taken action contrary to law that OPM administers," end quote, OPM can take corrective action. agencies. This is -- so I think it's the principle of exclusio unius -- exclusio unius. THE COURT: No. Is that an Asian expression, or -That's limited to executive
Just kidding. Ha. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
MS. LIN:
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THE COURT: MS. LIN:
All right.
But it's -- there's -- by issuing a
regulation to that effect limited to executive agency, by implication, OPM does not have that authority as to nonexecutive agencies and as to the EDR tribunal. THE COURT: MR. HALL: All right. Counsel. I think I'd like to
Couple of points.
respond to a couple of points that Ms. Lin raised. I think the argument that a letter cannot constitute a regulation or -- or entering into a contract just doesn't make sense. OPM has a statutory authority to enter into contracts to administer the entire Federal Employee Health Benefits Program. That authority and concurrent obligations do not stop The contract is between
when the ink is dry on the contract.
two parties, and it imposes obligations and rights on each party. OPM has to enforce the obligation -- to enforce the And that's
provisions of the contract, when appropriate. exactly what it did here. THE COURT:
But the contract is between whom and
MR. HALL:
The contract, your Honor, is between OPM In
on behalf of the United States, and a particular carrier. this case, it would be Blue Cross/Blue Shield. THE COURT: But the letter purports to proscribe
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whatever rights or obligations exist with respect to the plaintiff, correct? MR. HALL: Your Honor, yes and no.
I think it certainly is specific to the plaintiff; but on a broader scale, it's the same instruction; it's the same statutory instruction that applies to everyone who is a federal employee and who is otherwise part of the Federal Employess Health Benefits Program Employees Health Benefits Program. So it's -- OPM has the authority to do that. the obligation to do that. And the regulations cannot OPM has
reasonably be read to construe otherwise. Now, I think I want to make an important point here. And I think what plaintiff has to understand is if that argument -- if they really believe in that argument, they're going to have to take the good with the bad. corrective authority. OPM has
If -- in most cases, OPM is correcting
an administrative error that harms the plaintiff; harms the employee. Now, if you take Plaintiff's argument to its logical conclusion -- and it's not a very far trip -- OPM doesn't have the authority to take corrective action in a way that would benefit an employee, whether that's the Executive Branch or the -- an employee of the Judiciary. So I think Plaintiff has
to reckon with that argument if they really want to push this Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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argument before the Court. Now, I think another point that I really need to make is that the term "corrective action" -- it's animated by the final agency rule that OPM entered in 1994 or 1996. remember which year. I can't And
Oh, 1994, 59 Federal Register 66434.
the pinpoint is 66434. "Administrative error" is defined to include -- is clear statutory error. Administrative error occurs when an
employing office misapplies the law or the regs -- regulations, rather. I apologize. So I think that it would be improper to read administrative error in a way that would not permit OPM to exercise its clear statutory authority to correct clear errors of law. And here what we have is a clear error of law. THE COURT: respond to that? MS. LIN: Sure. All right. Ms. Lin, do you want to
First let me respond to the point that -- the point that OPM raises that it -- that Ms. Golinski should be careful what she argues for, because this may bar OPM from exercising its corrective authority in favor of employees. Judicial employees like Ms. Golinski have a process for challenging issues that they have with workplace benefits and personnel actions. And that's the EDR process. And so
it's not as if Ms. Golinski is arguing that those in the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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Judiciary will have no remedy whatsoever; the point is that the remedy is the EDR process. And then, as to the definition of "administrative error" -- again, this is the first time we've heard that. I
have not seen that regulation before, so, frankly, I just can't speak to that issue. THE COURT: Question Number 2. MR. HALL: All right. Let's move on to
And I'll again start with Defendant. Thank you. Your Honor.
I apologize.
I'm going to have to do a little bit of
thumbing through my outline. THE COURT: in mind, or -MR. HALL: THE COURT: MR. HALL: front of me. I'm sorry? Do you have the question in mind? No, your Honor. I have the questions in Is it because you don't have the question
I just have them in a slightly different order
than they were provided by the Court. THE COURT: MR. HALL: asks: All right. Now, Question 2 -- as I read it, the Court
How does OPM's conduct in interpretation of the
operation of federal law not violate 5 U.S.C. Section 8902(f), which forbids approving a health insurer's contract which excludes an individual based on sex? There are about four points I should make in response Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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to this. First, Plaintiff's wife was not excluded because of her sex. And that is very important. She was excluded -- her enrollment was excluded because she does not meet the definition of "covered individual." In this case, quote, "member of a family" -- "of That's because she is not qualified as a FEHBA, as amended
family" end quote.
spouse, as defined by federal law: effectively by DOMA. THE COURT:
She was disqualified by -Wait a minute. Whoa, whoa, whoa. Wait.
The reason she's not so qualified is because the spouse is also a female, correct? MR. HALL: correct. That doesn't lead to the conclusion that she was denied enrollment because of her sex. She was denied enrollment because she does not meet the statutory definition of "spouse." Now, I think it's important to note here -- and I apologize. I ask for the Court's indulgence, but it's Well, correct, your Honor. That is
important to note here that there is no claim here against OPM for its interpretation of the FEHBA. This is only a mandamus
action based exclusively on an alleged obligation to comply with the November 2009 order. Now, I have to make a point related to that. There
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are only two pending motions:
The Government's motion to
dismiss, and Plaintiff's motion for a preliminary injunction. And this question, with all due respect, is not relevant to either of those two motions. The third point I need to make is: If there is a
conflict between Title VII or the C.S.R. reg. and DOMA, DOMA trumps both, because it is both later enacted, and more specific than either. Alternatively -THE COURT: Unless it's found to be invalid because
it's unconstitutional. MR. HALL: Again, your Honor, I have to stress that Plaintiff filed a
that is -- that is not Plaintiff's claim.
very straightforward complaint, alleging a cause of action based solely on the substance of the November 2009 EDR order seeking enforcement to move that order through 20 U.S.C. 1361, The Mandamus Act. Now, I think I should also point out that Plaintiff has alternatively suggested that her claim is not based on anything other than the Ninth Circuit's EDR plan -- or the Ninth Circuit's EEO plan -- discrimination. If that's the case, then I think, again, we're in a situation where Plaintiff has to take the good and the bad with that. If that's Plaintiff's argument, then Plaintiff's remedy
is limited to those remedies that are provided for under the Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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EDR plan.
Those remedies include things like back pay, which They do not include and they
Plaintiff has already gotten.
cannot be construed to include an enforcement. THE COURT: But that was construed by the
administrator here, Chief Judge Kozinski, to be an inadequate remedy, correct? MR. HALL: with that. THE COURT: What's the standard of review? De novo? Certainly, your Honor, but we don't agree
What's the standard of review of that specific finding by -MR. HALL: There is no standard of review, because And the record, as The EDR
there no waiver of sovereign immunity.
applied to the Executive Branch, is not proper.
tribunal simply does not have the statutory authority to issue binding directives on an Executive agency, much less OPM, which is statutorily charged with the administration of the Federal Employees Health Benefits Program. THE COURT: But an Executive agency has authority to
issue binding rules with respect to an employee of the Judiciary, is what you're saying? MR. HALL: THE COURT: MR. HALL: THE COURT: That's correct. It works one way, but not the other? That's correct. Anything further on this point?
Ms. Lin, do you agree that this issue is not properly Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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before the Court? Court? MS. LIN:
This question is not properly before the
No, we don't, your Honor.
What's properly before the Court is the question -so that defense -- the defendants have raised the issue of sovereign immunity. One -- one reason that sovereign immunity would not apply would be if OPM were acting outside of its statutory authority. If OPM is acting in violation of 8902 Section (f), It's
it's acting outside the scope of its statutory authority. that simple, your Honor.
And, to the extent that the -- that the Government is contending that there may be some sort of conflict between 8902(f) and DOMA, the statutes don't need to be read in a way that conflicts. And that's exactly the conclusion that So 8902(f) says you can't
Judge Kozinski reached in this.
provide health insurance in a manner that discriminates based on sex. The FEHB Act also says that OPM must -- must contract
to provide health insurance for employees and their spouses and other covered individuals. That FEHB -- that provision of the FEHB Act need not be a ceiling for the -- for the benefits that are to be provided. It could also -- it is also possible to interpret it
as a floor. In other words, the language is permissive. It says
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OPM may contract for something that covers a spouse or other covered individuals. THE COURT: MS. LIN: All right.
It doesn't say you could also contract for
something that OPM couldn't also contract for; for example, domestic-partner benefits or same-sex-spouse benefits. there is a way to harmonize those two provisions of the statute, without necessarily reaching a constitutional question. Of course, if the Court is inclined to reach the constitutional question, we've briefed that issue. THE COURT: Well, what's the core answer of how So
8902(f) is violated, in that it is discriminatory? MS. LIN: Right. So, as I understand it, OPM's
response on that point is that they're discriminating or they're excluding Ms. Cunnighis, because of the definition of the word "spouse" is an opposite-sex spouse or different-sex spouse; and therefore, it's not -- it's not on the basis of her sex. This seems nonsensical in some ways. Ms. Cunnighis -- if she were a man, she would be covered. her sex. This is the same argument that the Government made in the Perry case before Judge Walker. And it's the same argument So it's hard to understand how that's not because of
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that Judge Walker rejected, in saying that this is sex discrimination. If -- if the spouse's sex were different, the
outcome would be different, and so that's sex discrimination. THE COURT: MR. HALL: Certainly. All right. Yeah. Counsel?
I'll respond.
Yes, your Honor.
I'll certainly respond to Ms. Lin's points, but I have to make one initial clarification of something that Ms. Lin said. She referred to the argument in Perry versus
Schwarzenegger as the same argument that the Government made. I wanted to make it clear that the United States government was not part of that lawsuit. I think whatever the party is in
Perry, it's not the federal government. Getting back to the point -THE COURT: MS. LIN: Well, state government.
I didn't mean to imply that the
United States government was involved in Perry versus Schwarzenegger. THE COURT: argument. MR. HALL: the argument. this. Sure. Fair enough. The defendant's made The parties. The defendants made the
Fair enough.
I think the bottom line here is
Plaintiff did not plead a complaint that could
reasonably be construed to include an argument that OPM's interpretation of the FEHBA is unreasonable. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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That's a whole different lawsuit.
That's a
different -- that's a different claim than the one that Plaintiff alleged, so we don't even have to go there; but if that's the case, if -- if Plaintiff wants to make that argument, if Plaintiff wants to assert that claim, it's pretty straightforward. She can just file a lawsuit challenging
the -- challenging OPM's interpretation of the FEHBA as unreasonable under the APA. That's essentially what the plaintiffs in Gill versus OPM did, although there, it was it was essentially, I think, a constitutional challenge to DOMA. Here, given that Plaintiff would like to rely upon the reasoning employed by Judge Kozinski in his administrative capacity as an EDR tribunal, they can make that argument. just need to make it in a different lawsuit. THE COURT: to the question: All right. Ms. Lin, again, it goes back They
Apparently, the Government is making a point
here that you really haven't properly brought this issue before the Court in this lawsuit. Where in the complaint -MS. LIN: Your Honor, our complaint is that
Judge Kozinski issued an order requiring OPM to cease its interference, and OPM refused to comply. It's that simple.
This issue only arises because OPM raised the defense of sovereign immunity. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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So we then reach questions that were not presented to Judge Kozinski, because OPM declined to appear before Judge Kozinski. Therefore, the issue of sovereign immunity was
never raised to him, so he never had to address the question of whether OPM was acting within its statutory authority or not. We reached that question because of the defense the Government has raised, not because of anything that was in the allegations of Plaintiff's complaint. Now that we've arrived at that point where we must determine whether OPM is acting within its statutory authority, the Court, I think, is free to analyze to the full extent available to it the legitimacy of OPM's argument that it was, in fact, acting within its statutory authority, and therefore, shielded by sovereign immunity. THE COURT: All right. Let's move on to
Question Number 3, on which the Government -Are you addressing Question 3, Ms. Lin? MS. LIN: Sure. All right. Or somebody. I lost track of
THE COURT:
who was arguing -- responding to which question on Plaintiff's side. Are you responding to Question 3? MS. LIN: I am handling Question 3, yes, your Honor. All right. So 3(a). Because, in order
THE COURT:
to find the mandamus is incorporated, obviously, the Court must find that there's no other adequate remedy. That is the basis
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of Question 3(a). MS. LIN: Your Honor, I assumed by "an action for
declaratory judgment," you mean an action seeking a declaration that Judge Kozinski's order is enforceable, and that OPM ought to comply with it. THE COURT: And even further to that the rights and
liabilities of the respective parties -- namely, all of the parties to this lawsuit: the director. MS. LIN: Right. The plaintiff and, you know, OPM, and
So let me -- let me answer each of those separately. I think the answer's "No" to both of those, but the reasoning is different, depending on which declaration we're talking about. So as to a declaration that -- that Judge Kozinski's order is enforceable and that OPM must comply with it, our view is that a declaration is not an adequate substitute for an injunction, given the history of this case. A mandamus action
provides injunctive relief backed by contempt power of the Court that requires compliance. that same assurance. A declaration doesn't provide
And again, given the history of this So in that
case, that's something that's important to us here.
sense, a declaration should not be an adequate substitute for injunctive relief. And that's really true for, I guess, either
kind of declaration we would seek. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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THE COURT: MS. LIN:
All right.
But also on the issue -- why not bring an
action for declaratory relief on the merits; on the, you know, constitutionality of DOMA, along the lines of Gill? It's our view that Ms. Golinski's foreclosed from making that argument, because of Blankenship and Veit. Ninth Circuit law has essentially held that judicial employees are limited to the EDR process, to the extent that they challenge personnel actions. And an action that
challenges the discriminatory nature of an employment benefit is a classic -- is a classic case that falls within the EDR tribunal's jurisdiction. It's -- the EDR tribunal's designed
to -- to adjudicate cases involving employment discrimination. That's one of the principal areas that it's meant to cover. I would say, though, that if there is doubt in the Court's mind as to whether these other -- whether the Ninth Circuit really has foreclosed this, I would hate for us to lose on that basis, because it seems to me that either -- to lose on the ground that there's another adequate remedy available, but not to have brought that remedy, seems a little pointless. So if there is doubt in the Court's mind on that issue, we'd be happy to amend the complaint and add those claims, although, in our view, those claims are foreclosed. THE COURT: All right. Before I hear the defendants'
response, why don't you move on to Question (b), which Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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implicitly you've covered, but I'd like to get your explicit answer on: Why not sue OPM directly for injunction? The answer is no.
MS. LIN:
And I assume that by this -- by this, the Court means both types of injunction? THE COURT: MS. LIN: Correct.
Let me address each in turn. All right.
THE COURT: MS. LIN:
An injunction concerning Judge Kozinski's
order and its enforceability would just directly, under -- I suppose it would be The All Writs Act -- is not something that's available. There's really two types of injunctions that courts can enter. It's a traditional injunction, and, I suppose, an
injunction under The All Writs Act. So a traditional injunction needs to be predicated on some underlying cause of action. for the injunctive relief. There has to be some basis
That's why one of the prongs for a
traditional injunction is that the plaintiff must show likelihood of success on the merits. merits of the underlying claim. for traditional injunction. Under The All Writs Act -- The All Writs Act allows courts to issue injunctions in aid of their own jurisdiction, but that's where there has already been jurisdiction acquired Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 The merits of what? The
So there has to be some basis
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on some other independent ground.
One can't just walk into
court on The All Writs Act and -- and -- and say, "I want injunctive relief to tell somebody to do something." And those are the two cases that the plaintiff has provided to OPM and to the Court: Clay versus United Health
Group, and Stafford versus Superior Court. Clay just has a good explanation of these issues. It's an Eleventh Circuit case, but it explains these issues in a way that's pretty straightforward. And then the Stafford
case just explains that Ninth Circuit law is the same as Eleventh Circuit law on that point. THE COURT: All right. Counsel, do you have another
point you wanted to make? MS. LIN: Sorry. I just wanted to address the notion
of injunctive relief -THE COURT: MS. LIN: Oh, yes. Please do.
-- on behalf -- an injunction to directly
challenge OPM's interpretation of FEHBA as unconstitutional. The plaintiff could bring a claim. The idea there would be Plaintiff would be bringing a claim under the Constitution, so there would be a cause of action; but then Plaintiff would face a further bar, which is the Ninth Circuit's ruling in Blankenship and Veit, holding that -- holding that Judicial employees are limited to the EDR process to challenge discrimination. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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THE COURT: MS. LIN:
Okay.
And -Counsel's still not finished. Okay. Go
THE COURT: It's okay. MS. LIN:
I would just add that -Yes.
THE COURT: MS. LIN:
-- if the Court is inclined to ask us to
amend on this issue, and to add these claims, sort of, in the alternative, I suppose, we would ask that -- we would ask two things. We would ask first that the Government state what it believes adequate alternative remedies are. We do not want to
be in a situation where, you know, we've been told, on the one hand, that you can't have mandamus because there are other adequate remedies, and then we go off and bring those other remedies, and say, "Well, you can't have that, either," for some other reason. So I'd just like to hear the Government on
the record on what the alternative adequate remedies they think are available would be. And then the other issue we request is that if there's going to be amendment, we request that it be -- that any motions practice following that amendment be expedited in some way. I think we've briefed most of the issues that would And Ms. Golinski has been waiting for --
be relevant, anyway.
it's almost -- it's been over two years now since she Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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originally submitted her form. THE COURT: last point. What procedures do you think or what remedy do believe Plaintiff can and should pursue? MR. HALL: I'll answer that, but first I want to say All right. Well, let's start with the
I think what Ms. Lin asks me to do today is problematic for a couple of reasons. horse. One, it clearly puts the cart before the
We haven't seen what Plaintiff might be inclined to
argue in support of a motion to amend or might be inclined to allege as a separate cause of action. So that's one reason.
The other reason is -- coming here today is, as a trial attorney, I can't speak for the Department of Justice. can't bind the Department to a particular position. apologize for that. That's just my limitation here. I
So I -- I
That said, I think that the answer is probably pretty clear. I think we've got -- we've got a case pending before
the First Circuit right now that provides a pretty clear roadmap for how this would work. And that's Gill v. OPM.
The parties are briefing that in front of the First Circuit. That is a broader litigation brought on behalf
of a whole group of plaintiffs; but some of those plaintiffs are current and former federal employees, who are seeking -who are framing an as-applied challenge to the constitutionality of DOMA against OPM in its administration of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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the Federal Employees Health Benefits Program.
So I think that
kind of sketches out the kind of claim that Plaintiff would have to make here; but we also think it's a pretty, pretty clear and straightforward claim to plead. THE COURT: Blankenship? MR. HALL: Certainly, your Honor. I think What happens Could they make that claim under
Blankenship speaks to a very limited question.
when there's a claim that is an injury or an alleged injury that is clearly addressed under the C.S.R.A.? Now, the C.S.R.A. obviously does not apply to the Judiciary. It does not apply to the Legislative Branch,
either, although it's been extended to apply to the Legislative Branch through The Congressional Accountability Act. Here, obviously, there's a suggestion that, under Blankenship, the court's -- the Judicial Council's administrative EDR process kind of substitutes for the C.S.R.A., and limits certain rights and remedies. The problem is there's a pretty clear framework for moving forward under the Federal Employees Health Benefits Act. And I think the road that Plaintiff traveled to get to this point is a pretty good illustration of that. Early on, as Ms. Lin referenced, the plaintiff faced, kind of, a "fork in the road," administratively speaking. requested enrollment of her spouse in her plan. And that She
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enrollment was denied by AOUSC applying the statutory directive of FEHBA. At that point, Plaintiff could have submitted a request for reconsideration from the AOUSC, and the AOUSC would have provided that. And that would have provided a direct
cause of action in federal court; either in this court, or in the Court of Federal Claims in D.C. Both courts have
concurrent jurisdiction over that type of claim under FEHBA. So, you know, Plaintiff obviously chose an alternative route. It's an alternative route that's provided
for under the court's EDR process, but it's not the route that is officially countenanced under FEHBA. So I think, kind of, getting us back to Point A, your Honor asked: Would this case be better positioned as an
action for declaratory judgment, instead of mandamus? Well, I think to the extent that -- well, I don't want to construe anything from the Court's phrasing of that, but we agree with part of that. Plaintiff could bring a case for declaratory judgment, but again, as we've indicated before, that is not this case. Plaintiff has not pleaded such a claim. And the That's
claims presented in her complaint control the action. just pretty much black-letter law.
The claim pleaded by Plaintiff is essentially this. Judge Kozinski entered an administrative order. OPM is
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therefore bound to follow that order, based on the points made in that order. incorrect. Moving on to Point B or Question (b): Could So I think that to suggest otherwise is simply
plaintiff file a direct action against OPM for an injunction? Well, I don't want to say what the appropriate remedy would be, but I do think Plaintiff could file direct action. We go back to Gill v. OPM. I think that's -THE COURT: And you're admitting on behalf the That's exactly what happened there.
Government that Blankenship would not preclude such a lawsuit, and you're waiving any defense under -MR. HALL: your Honor, at all. it. No, no, no. I can't waive anything,
Obviously, standing here, I can't waive
We haven't really had a chance to look at this and brief
this, but what I can say is that, in Gill versus OPM, that was the road that the plaintiffs followed. and straightforward here. It seemed pretty clear
We think that that would be the case
here; but, given that we haven't had a chance to see a motion to amend the complaint or anything like that, we -- I don't think we can say one way or the other what our formal position's going to be. THE COURT: respond? MS. LIN: Sure. Just on Gill, let me just make a Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 All right. And, Ms. Lin, you want to
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point -- quick point about Gill. In Gill, the federal employees at issue were not judicial employees. They were employees of other branches.
And, under provisions of the C.S.R.A., there is judicial review available to employees of other branches, once they've exhausted the administrative process. So it's not as
if -- those employees are in a different situation than employees like Ms. Golinski, who are foreclosed completely from judicial review of employment-discrimination claims. And I would say that Blankenship does control, your Honor, in that the employee in Blankenship was a judicial employee. She was a -- she's a -- quote -- an "appointed And she's a court reporter. So it's
judicial employee."
directly on point, on the issue of the judicial employee. As to the issue of whether the Government's had the opportunity to brief this issue, the parties have extensively briefed the question of whether there is an adequate alternative remedy. And the Government has pointed to the
FEHBA claim as a potential claim. And I don't want to repeat the briefs, but I just want to -- I just state briefly that it's difficult to understand how there could be a FEHBA action here; because Ms. Golinski's claim is not that OPM violated FEHBA, but that a discriminatory action occurred towards her, and FEHBA claims are claims that are founded on FEHBA. That's the language of
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Section 8912. THE COURT: All right. Let's move on to Question C. I know you
And I'll ask you, Ms. Lin, in the first instance.
can't -- nobody's ever tried to read Judge Kozinski's mind. He's a very smart man, but I'd be interested in knowing what your -- about his petition for enforcement. MS. LIN: Your Honor, petitions for enforcement -- a
"petition for enforcement" is a phrase that's frequently used sort of generally to refer to statutory or regulatory schemes that permit the appeal of an administrative order. Here, we don't have a statutory or regulatory scheme beyond Section 332 that governs the EDR plan. doesn't refer to a petition for enforcement. So I think that Judge Kozinski may have been just referring to, kind of, the general notion that an administrative order could be enforced in court in some way, and that he didn't -- he may have inserted that phrase to just indicate that he didn't intend us to be limited to mandamus if Plaintiff came up with some other basis for enforcing the administrative order at issue. THE COURT: Judge Kozinski meant? MR. HALL: Do I have to? You want to take a shot at what And Section 332
Your Honor, frankly, with all due respect to Judge Kozinski, we don't know what his Honor intended by that Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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term; but we do know what the bottom line is.
There's nothing
to enforce here at all through mandamus or otherwise, because, as we pointed out in our briefs, there is no waiver of sovereign immunity that would subject the OPM to the jurisdiction of an EDR tribunal. And the EDR process itself
lacks the statutory delegated authority to bind the Executive Branch, either. So I think our response to Question C is the same as our position laid out in our briefs. There's no waiver of
sovereign immunity, therefore -- and there's no statutory authority, so therefore, there's nothing to enforce. THE COURT: All right. Let's move on to Question D,
which -- under the same idea with respect to adequate remedies, what further administrative remedies could plaintiff pursue, and what would be the governing law? MR. HALL: Certainly, your Honor. I will point out
that I think, through no one's fault, we are in a kind of an odd duck of a procedural posture here, because we're essentially offering how we would rewrite Plaintiff's whole complaint and the whole path she took in the administrative process. Without doing that, I think I can reiterate what I You know, Plaintiff, at one point early on in
said earlier.
this process, hit a fork in the road, administratively speaking. And she could have gone one of two ways. THE COURT: Yogi Berra. "When you come to a fork in
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the road, take it." MR. HALL: Exactly. Exactly. You know, she -- she
could have gone through the process that's officially countenanced under the FEHBA; or, as she did, she could have gone through the EDR process, which is not officially countenanced under FEHBA. Whatever she did, I think the bottom
line is we think that the issue is appropriately teed up without saying that conclusively, in a way that would permit a direct challenge; but you know, obviously, we can't say that with any finality until we've seen what happens. If the Court
orders something and if Plaintiff decides to go that route, at that point, we would be able to speak to this issue with a little more finality. THE COURT: And now what about the adequate ability Does that apply here?
of Veit and Heckler the Court has cited? MR. HALL: THE COURT: MR. HALL: have to apologize. I'm sorry.
The Court cited in the -Question D. I
In the question: Oh, Question D.
I'm sorry, your Honor.
Let me look that up. And
I read that, but it was very early this morning.
I apologize, but my brain is swinging a bit on that point, but what I do think is Plaintiff can characterize her claim in one of two ways. She can characterize it as a discrimination claim
under the EDR process, or she can characterize it as something seeking correction of a problem under the FEHBA. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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We think that the more straightforward and clean way to do this administratively would have been the latter. Plaintiff didn't, obviously, do that; but we don't think that that option is foreclosed, or anything like that. THE COURT: this question. Before I hear from Ms. Lin, let's finish
Why should Judicial employees be treated any
differently from Legislative employees in the same situation? MR. HALL: Well, we don't think that she should be,
but I should point out that whatever provisions apply to Legislative employees or to Executive Branch employees, there's a corollary provision that applies to Judicial employees. So I
don't -- if I understand your Honor's question correctly, I don't think we're necessarily disagreeing or we're necessarily arguing that they should be treated any differently in this limited context. I think what we're saying is there's a pretty clear path of administrative review that Plaintiff could have taken. She didn't take it, but that's fine. think. She can still take it, I
And that would put us in a position where she would be
able to bring a claim, but again -THE COURT: Is that with respect to waiver of the
MR. HALL: separate issues.
No, no, no, your Honor.
I think two
This issue -- the waiver of sovereign immunity is -Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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it relates to the way plaintiffs have pleaded their complaint. The way plaintiffs have pleaded their claim is in full and exclusive reliance on the fact and the existence of Judge Kozinski's 2009 administrative order. Essentially what He
they're saying is Judge Kozinski reached his conclusion. reached this outcome, and issued this order.
And OPM is bound,
under 28 U.S.C. 1361, to comply with it fully. Now, as we have pointed out in all of our briefs, the three requirements for mandamus have not been met here, and cannot be met here, among other reasons, because there's no waiver of sovereign immunity. That's a separate issue than whether or not Plaintiff can bring a claim challenging OPM's interpretation of FEHBA as unreasonable, or whether she can bring a claim just challenging DOMA. THE COURT: MS. LIN: All right. Ms. Lin.
Your Honor, on the -- on the point of
Ms. Golinski having faced a fork in the road, and she can go one way or the other -- part of the problem with that analysis is that it's difficult to understand what she could be doing under FEHBA. FEHBA provides a process by which individuals can seek correction of enrollment decisions, which is presumably what OPM refers to, but those provisions apply where your employing office has refused to allow enrollment. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here.
So the two Sections are 5 C.F.R. 890.104(a) -- that Section says an individual may request an agency to reconsider an initial decision of its employing office denying coverage. There's no denial of coverage by the employing office
Then there's another section that says a suit to compel enrollment must be brought against the employing office that made the enrollment decision. That's 5 C.F.R. 890.107.
Both of those provisions for Ms. Golinski to do something administratively under FEHBA apply only where the employing office has rejected her request for enrollment. here, her employing office -- the Ninth Circuit -- has specifically said that she ought to be able to enroll her wife. So it's difficult to understand what path is available to her in the alternative here. And the other point I'd like to make is that there's this notion that -- of sovereign -- there's this notion that -or there's this back and forth about whether or not sovereign immunity would apply in a direct action in which Ms. Golinski brought a direct constitutional challenge or a statutory challenge to OPM's actions here. It's my understanding that the Government concedes that there's a waiver of sovereign immunity under 5 U.S.C. Section 702, the APA, that would waive any immunity suit. it waives immunity to this suit here before this Court. And And
To the
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extent that the Government's asserting sovereign immunity now, it's in relation to Judge Kozinski's ability to enter an order against it. That's my understanding. Is that correct? Not at all, your Honor. I think there's a
THE COURT: MR. HALL:
fundamental misunderstanding or misconception here. There is, as the Court is fully aware, a general waiver of sovereign immunity for prospective relief under the APA. We don't concede that that's settled. What it applies to is a whole different question. Here, Plaintiff has pleaded a claim that relies solely, exclusively, and completely on the effect of Judge Kozinski's administrative order from 2009, and said in her complaint that order constitutes a clear duty to act on OPM's behalf. It constitutes a clear right to relief on And, by the way. There are no adequate
Plaintiff's behalf.
alternative remedies. Plaintiff has framed the complaint the way she wanted to. She has to be stuck with that, because that's a far Okay, I'm just going to challenge --
different situation from:
I'm just going to challenge my employing agency's determination under the FEHBA, which would be subject to APA review or something like that; or I'm going to challenge something that OPM did under the APA. Those are separate issues. That's a separate
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lawsuit.
That is not the lawsuit that has been pleaded by
Plaintiff. THE COURT: MS. LIN: All right. Ms. Lin.
I just wanted to say Section 702's waiver So, just
applies to non-APA claims as well as APA claims.
because this claim isn't under the APA doesn't mean that the Government's waiver of immunity to sue in this court here today is -- is somehow inapplicable. MR. HALL: quickly? THE COURT: MR. HALL: Sure. Certainly, Ms. Lin is correct that the APA Can I make one point or two points real
provides a waiver of sovereign immunity that's kind of separate from the APA's own procedural review mechanisms, but again, it doesn't provide a waiver of sovereign immunity that extends across jurisdictions. It doesn't provide a waiver of sovereign
immunity that would permit a purely administrative agency -even one that is under the auspices of the Judiciary -- to issue an order binding an Executive Branch agency. whole separate issue. The other issue is: Court. We're not talking about this So that's a
This Court, if Plaintiff brought a procedurally proper
and legally proper claim, conceivably would have subject-matter jurisdiction pursuant to a valid waiver of sovereign immunity. What there is no sovereign immunity over is the EDR Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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proceeding in the first instance.
There's no waiver of
sovereign immunity that would apply to -- that would waive OPM's sovereign immunity as to that process. THE COURT: I'd like you to answer question 4, which To the extent the
segues from what you're saying, which is:
plaintiff is seeking only affirmative action -- affirmative action by the defendants -- on what basis does the Government contend that the prospective equitable relief in requiring OPM to abide by Judge Kozinski's order required by sovereign immunity -- that's the quintessential issue here. MR. HALL: is this. Certainly we agree, your Honor. The issue
Is there a waiver of sovereign immunity that would
apply to Plaintiff's mandamus claim, as pleaded, or to another similar -- I don't know what it would be -- another similar claim for some kind of affirmative relief? in either instance. The answer is "No"
Whether it's pleaded as a claim under
The Mandamus Act, or pleaded as some undetermined form of affirmative relief, the answer is: sovereign immunity. Now, I think -- I think the -- the fundamental point here is one that I don't believe is in dispute. was acting in his administrative capacity. Judge Kozinski There is no valid waiver of
He was not acting
in his Article Three capacity when he entered the November 2009 administrative order. Now, there's no waiver of sovereign immunity, general Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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or otherwise, that would subject OPM to that kind of review that would impose some kind of obligation upon OPM. I think we can -- I'd like to point out that just about a week ago in the oral argument in the Perry case, I think Judge Reinhardt, who was sitting on the panel, pointed out pretty clearly in open court that, in reference to a very similar EDR claim that he decided in favor of an employee of Public Defender's service, or Federal Public Defender, that he was sitting in his administrative capacity; not in his Article Three capacity. So it's a very different question from
whether or not there's a waiver of sovereign immunity that would apply that would waive OPM's sovereign immunity to an Article Three court. So I think that's the critical issue that Plaintiff just is -- I don't think they're disputing it, but also, I don't think they're adequately understanding why the waiver of sovereign immunity does not exist here. THE COURT: MS. LIN: All right. Ms. Lin.
Your Honor, Edelman's not a case about the It's about whether sovereign
waiver of sovereign immunity.
immunity applies in the first place. Sovereign immunity does not apply in the first place. There's nothing to waive when it's an action that's against an official that seeks purely prospective injunctive relief. That's the holding of Edelman. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the APA.
Now, Edelman is a holding that's in the context of Eleventh Amendment immunity. federal official. It's a state official, not a
We don't see these kinds of -- the courts
haven't really addressed the question of whether Edelman's analysis ought to apply in the federal context as well, because usually, in the federal context, the APA waiver takes care of everything. So it just doesn't get litigated that much, but
there's no reason to think that the analysis would be any different under -- under the -- under federal sovereign immunity than under state sovereign immunity. Here, Judge Kozinski was ordering OPM to do something. It was prospective injunctive relief that And it's prospective injunctive
Judge Kozinski was ordering.
relief that we seek from the Court today. MR. HALL: Your Honor, I think I can respond to that As I understood Ms. Lin's argument,
in one sentence or less.
she says there's no waiver of sovereign immunity needed, because there's no sovereign immunity to begin with, when there's only a claim for affirmative relief, as opposed to backward-looking relief. I think that one-sentence answer to that argument is
Why would the APA even exist, if there's no need to waive sovereign immunity for affirmative, forward-looking relief? That's all the APA provides for. The APA provides a
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waiver of sovereign immunity that applies to injunctive or declaratory relief. knows it does not. It does not apply, obviously, as the Court Waiver sovereign immunity as to So I don't
backward-looking claims for compensatory relief.
really know why we're having this argument right now, because if the APA exists at all, then there has to be sovereign immunity as to affirmative claims that needs to be waived, and the APA is what did that. THE COURT: this. MS. LIN: the APA exist? Just on the issue of whether -- why does Okay. You may have the last word on
The APA -- there's -- that waiver provision of
the APA was enacted to in order to confirm the exception that was created in Larson; that is, that sovereign immunity doesn't apply when the Government's acting outside its statutory and constitutional authority. So, sure, the converse, phrased in terms of waiver rather than in terms of sovereign immunity, doesn't apply in the first place, but it's the same result. And that's why Because you
there aren't any cases citing Larson anymore: don't need to cite Larson most of the time.
We only have that
because we have an administrative order here in which Judge Kozinski asked the Government to do something. THE COURT: Let's move on to Question Number 5.
I understand the Government position of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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constitutionality of DOMA's not properly brought before the Court, but I am interested, because I did ask it to be briefed. And the Court may differ with the defendants on this issue. So how does the explanation provided by the Government for passage of DOMA -- that is, consistency among application of federal law to married couples -- provide a rational basis for the law, where -- as I say here, where, under DOMA, federal officials are now, for the first time, being tasked with determining the validity of a particular marriage that has been sanctioned under state law. that promote consistency? And I'm also mindful of the comment I made at the beginning, from our President, that this statute is abhorrent, and is an unnecessary imposition of what has been traditional rules governing marriage and how states interact on the issues of marriage. So I think one might say at least the President How does
had it right in that instance. And what's your response? MR. HALL: things. Your Honor, as an initial matter, two
First, as your Honor pointed out, we don't concede
that it's a properly asserted claim in this lawsuit; but second, certainly the Administration does not agree with DOMA as a policy matter. THE COURT: But it's defending it, unlike the
Attorney General in the Prop. 8 case, correct? Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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MR. HALL:
Well, that's correct.
I think, as we
pointed out in our supplemental brief on this issue, where the Department believes there's a reasonable basis for defending a statute, the Department will defend it. policy. That's a matter of the
And that's exactly what's happening here. THE COURT: So the Administration feels there's an
appropriate basis to defend this statute? MR. HALL: Well, your Honor, I'd have to clarify the
difference between the Administration and the Department. I -- as little as I'm authorized to speak on behalf of the Department, I'm authorized even less to speak on behalf of the Administration. So I don't want there to be any
misunderstanding in that regard. I think as to the Department of Justice's own determination, that determination was that there is a reasonable basis for -- upon which to defend the constitutionality of DOMA. THE COURT: Question Number 5? MR. HALL: this, your Honor. The answer to Question Number 5 is simply So what is the answer to
Under Heller versus Doe, this Court or any
other court can look at any -- any conceivable basis for determining the constitutionality of a statute. have to be in the record. Congressional Record. It doesn't
It doesn't have to be in the
It could be conjecture. Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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What we point out is, in 1996, when Congress first became aware that there was -- there were the beginnings of a national debate about the availability of same-sex marriage, Congress reasonably could have looked at that and said, "Hold on. There's going to be a debate on this. This debate needs
to be resolved at the state level, among the 50 states and territories." those as well. I guess the District of Columbia would be one of "So before that happens, we're going to freeze
the status quo." And the status quo, in this instance, is: Every
state -- at that time, all 50 states and the District of Columbia -- only recognized marriages between members of the opposite sex. So that's the status quo that would need to be
frozen in order to adopt this wait-and-see approach, to watch how the debate unfolds on a national level, state by state. And that's exactly what's happened. Over the 14 to
15 years since the passage of DOMA, we've seen this debate kind of framed in a variety of contexts at the state level, in the enactment of legislation, in the enactment of amendments to state constitutions, in litigation at the highest levels of state court. And so we're now at a position 15 years later where, I believe, 44 states have -- do not recognize same-sex marriage; six states and the District of Columbia do; a couple of other states -- I believe New York and Maryland -- recognize Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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same-sex marriages that are valid under the laws of the state in which the couple was married. So we are 15 years into this debate, but the debate is not over yet. The debate was in its early stages in 1996,
with the passage of DOMA. And so Congress, quite reasonably, said, "Look. We
don't want to commit one way or the other to the -- you know, to the allocation of federal benefits. We're going to stop, And then,
wait, and see what happens at the state-court level.
at a certain point in time, maybe we'll revisit the issue." And I think that's exactly what's happening. THE COURT: So, put another way, even if the
application or the classifications or the interpretations of various laws was discriminatory, as long as it was consistent, that was okay? That's your argument? Well, your Honor, I think there are a There's the
MR. HALL:
couple of different arguments within this. consistency argument.
And that -- certainly, Congress has a
valid state interest in ensuring consistency in the allocation of federal benefits and federal resources and federal dollars. The other issue is kind of -- it's -- it's similar, but different. And that issue is: Just want to wait and see
what happens at the state level.
I mean, this is a debate
that's going to unfold over a period of years, maybe decades. We want to wait and see what happens. And then at some point
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there may be an occasion to come back and revisit the issue. And I think we see right now there is pending legislation in Congress that would address DOMA; that would repeal DOMA. We don't know what's going to happen with that, In 1996 when DOMA was
but I think that the bottom line is:
enacted, it reasonably could have been enacted with the eye toward maintaining the status quo, and just watching the debate unfold before taking a further step. THE COURT: MS. PIZER: Well -THE COURT: record is clear? MS. PIZER: Yes, of course. Jennifer Pizer, with Could you restate your appearance, so the All right. Counsel.
Yes, your Honor.
Lambda Legal Defense and Education Fund. Well, your Honor, as Judge Tauro explained at length in the Gill decision, DOMA creates an inconsistency at the federal level that we've never had, which creates administrative burdens as well as discrimination. In the history of this country, family law has been recognized as the province of the state. And, for federal
purposes, the government -- federal government has only asked if a person is married or not married. So that was consistent.
And the federal government didn't get enmeshed in the great differences and, often, social dispute about the roles of Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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marriage; most notably, perhaps, some states prohibiting interracial marriages; others not; but the federal government never got into that issue. Here, Congress passed a law that for the first time took married people, and divided it into two groups, thereby creating a burden on the government of determining whether a married person is married for federal purposes or not, and, of course, imposing significant burdens on the class of married people who are not treated as married for federal purposes: Lesbians, and gay men. So it does not -- and, in fact, instead
of maintaining consistency, it created inconsistency, difficulty at the federal level. And, in this kind of a situation, Counsel referred to Heller versus Doe, but even under Heller, and the more relevant case, Romer versus Evans, when the federal government enacts a law, or when state or federal government enacts a law, and there are stated purposes that show antipathy to a group, a series of illegitimate reasons for the government action, as was true here, with DOMA, it's proper for the Court to consider other possibilities, but also be aware that animus may well be the purpose: The targeting of a group, the separating of a
group for different treatment, to serve no legitimate purpose. And that's certainly what has gone on here. THE COURT: Let me ask you. Of course, you're
answering this question.
Because the Court asked that, you're Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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obliged to answer it.
Is the issue of constitutionality of
DOMA properly before this Court in this lawsuit? MS. PIZER: Well, it is, to the extent that the And it is proper
Government is asserting sovereign immunity.
for the Court, in looking at that defense, to consider whether the Government is exceeding its constitutional authority, as my co-counsel explained. Likewise, if the Government is exceeding
its statutory authority, it is proper for the Court to consider that. I think it's also true that, if the -- as co-counsel said, if the Court believes that the pleadings should be amended, that could certainly be done. here. That's not necessary
On behalf of Ms. Golinski, this issue was briefed in the Judge Kozinski determined that there was a
EDR tribunal.
serious constitutional question presented, but it could be avoided. Judge Reinhardt found otherwise in the Levinson It was presented.
matter, but there was -- it was briefed. And it is, in fact, part of this case. participate in that other proceeding. now.
OPM chose not to It's made its arguments
So I believe the issue is before the Court, and no further briefing would be necessary for the Court to reach that, if you determine that that's proper. It's certainly not
necessary here, though, but it would be proper. THE COURT: All right. Anything further you want to
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say? MR. HALL: points. First, as to Counsel's point that the federal government hadn't gotten enmeshed in the definition of marriage prior to the passage of DOMA, I think that's more a matter of just kind of historical happenstance than anything else. I think Counsel said that for the first time, with the passage of DOMA, Congress divided marriage into two groups. Well, I would submit that that's incorrect. I think that, as a matter of fact, in 1996, prior to the passage of DOMA, marriage was, in a de facto way, divided into two groups. And Congress said, "Look. We need to I think, your Honor, I'll make a couple of
preserve that distinction for the time being to allow an incremental approach toward how Congress will ultimately respond to this developing national debate." Now, as to the second issue, which is more -- closer to the heart of this case: Is the issue of DOMA -- DOMA's
constitutionality properly before the Court? -- I think whether it was briefed and argued in front of the EDR panel is one thing, but it's not the determinative factor at all. it's irrelevant. The determinative factor is: Plaintiff's claim? What is the basis for In fact,
What is the basis for Plaintiff's theory of
the Government's liability in this case? Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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And that is simply this:
Her argument that OPM is
obligated under 1346 -- Section 1346 -- to comply with the directives in Judge Kozinski's November 2009 order. And, as we've pointed out today and as we've pointed out in our briefs, one, there's no waiver of sovereign immunity; and, two, even if the Court goes beyond or looks past the question of sovereign immunity, there's no statutory delegation of authority to the EDR tribunal to bind an executive agency -- in this case, OPM -- in its administration of the FEHBA. THE COURT: MS. PIZER: All right. Anything further on that?
Yes, your Honor, just briefly.
As Judge Tauro said in the Gill case, maintaining the status quo is a means; it's not an end. There needs to be legitimate reason for the Government to act; a purpose; a legitimate purpose behind a law. And there isn't one here. And I would submit, your Honor, that in mandamus, the question is whether there's an established duty to act. If
your Honor determines that there are various legal reasons, in addition to what Judge Kozinski found or separate what from what he found, the question is whether there's a duty to act. And if there's a duty to act, then mandamus would be appropriate. THE COURT: All right. Anything further?
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MR. HALL:
I think that pretty much sums it up for
the Government, your Honor. THE COURT: Anything further that you want to add
that has not been appropriately raised in these proceedings, and that was not covered in the papers? MS. PIZER: One last point. My --
Your Honor mentioned in
the questions that the action here -- the denial of benefits or the failure to provide benefits for a same-sex spouse -- can be seen as sex discrimination. That's true.
And, for the same reason, when looking at the constitutional side, heightened scrutiny is appropriate when there's sex discrimination at work. that point. THE COURT: MS. LIN: your Honor. During much of this oral argument, we've assumed that sovereign immunity is the right framework to be looking at this. Sovereign immunity, though, as we've argued in the briefs, is not -- it's not something that's ever been applied where one administrative entity has ordered another administrative entity of the federal government to do something. It's just -- sovereign immunity is something that All right. I just wanted to reiterate
I just wanted to make one quick point,
protects the Government from -- from suits by private citizens, Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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essentially. from itself.
It's not something that protects the Government
And the proper inquiry, where one administrative agency's claiming authority that another administrative agency says is inappropriate, is whether -- is what the statute says. Who has authority? And here, Section 332(d) gives Judge Kozinski and the Judicial Council the authority to issue any orders necessary and appropriate to the administration of justice within the Circuit. And I know that OPM has focused a lot on that phrase,
"within the Circuit," but that's a phrase that restricts the subject matter of what Judge Kozinski and what the Judicial Council can order. It's a clear delegation. There's
no limit on the binding force of orders issued by the Judicial Council. In fact, case law we've cited in our briefs has stated that those orders can bind former employees of the Judiciary who no longer -- who no longer work for any governmental entity at all. And if that's the case, it's hard to understand why such orders could not, by the same token, bind an Executive agency. So I think it's important to recognize how far
reaching OPM's position is in this case. You know, by OPM's logic, virtually any judicial decision regarding an administrative matter is something that's Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587
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open to Executive veto.
You know, here we're talking about the
EDR process, but the Judicial Council also controls judicial-misconduct allegations, for example. So, by OPM's
logic, you know, the Judicial Council could clear a judge of wrongdoing, and if the Executive Branch disagrees, the Executive Branch can just cut off his paycheck, cut off health benefits, and the U.S. Marshals won't let the judge back into the building. There's not a thing the Judicial Branch can
really do about that. That's -- or even to take a more mundane example, perhaps, the Ninth Circuit recently -- the Ninth Circuit recently approved experimental use of video cameras in the courtroom. What if the U.S. Marshals decided that video
cameras would be allowed past security only in cases that they deemed uncontroversial? By OPM's logic, there's really nothing that the Executive could do about it -- I mean, nothing that the Judiciary could do about that. And the Executive could simply
claim to be immune from the Judiciary, which is really -- it's just really not the right framework for analyzing these issues. THE COURT: MR. HALL: term, but -THE COURT: MR. HALL: Go on. -- it's really a parade-of-horribles type Lydia Zinn, CSR, RPR Official Reporter - U.S. District Court (415) 531-6587 Do you want to respond to that? I mean, your Honor, I hesitate to use this
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analogy here. it.
Honestly, I don't think I can even respond to
It -- we're not talking about a situation where a federal
judge has been found innocent of wrongdoing by the Judicial Council, and the Executive kind of affirmatively unilaterally, on its own, decides to cut off his or her benefits. It's just not the situation at all; but more to the
point, the APA exists because sovereign immunity exists in the first instance. Congress waved sovereign immunity in a fairly broad manner as to certain claims and forms of relief. Now, sovereign immunity, to the extent it exists and applies to claims brought in an Article Three jurisdiction -if your Honor, acting as an Article Three judge, has a case before him, and finds there's sovereign immunity, then, by logical extension, sovereign immunity also applies to administrative tribunals, whether they're part of the Executive or the Judiciary, unless they are waived. And certainly
Congress has waived sovereign immunity for Executive Branch agencies to appear before administrative entities in other circumstances. That is not this case. THE COURT: Thank you, everybody. (At 11:20 a.m. the proceedings were adjourned) All right. There has been no waiver. The matter is submitted.
CERTIFICATE OF REPORTER I, LYDIA ZINN, Official Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C. 10-0257 JSW, Karen Golinski v. United States Office of Personnel Management, and John Berry, were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.
________________________________________ /s/ Lydia Zinn, CSR 9223, RPR Thursday, December 30, 2010

Transcript of Proceedings Appearances: For Plaintiff: Morrison & Foerster

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Case3:10-cv-00257-JSW Document89

NO. C 10-0257 JSW

San Francisco, California Friday December 17, 2010 10:05 a.m.

APPEARANCES (CONT'D) For Plaintiff:

BY: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY: For Defendants:

Good morning, everybody.

And I'd also like to introduce Ms. Golinski

Good morning, your Honor.

The Court instructs the parties to refrain from

of you in the first instance.

what I should ask or shouldn't ask.

question, but why don't you answer it?

It's Section 1.10(a)(11) -- requires the carrier to

delegation of authority as you're going to find.

first part of Question Number 1, which I read as this:

Your Honor, if I could start with the

OPM sent in response to Judge Kozinski's order.

THE COURT: MS. LIN:

But it's -- there's -- by issuing a

when the ink is dry on the contract.

But the contract is between whom and

The contract, your Honor, is between OPM In

If -- in most cases, OPM is correcting

Oh, 1994, 59 Federal Register 66434.

I'm going to have to do a little bit of

I just have them in a slightly different order

How does OPM's conduct in interpretation of the

family" end quote.

spouse, as defined by federal law: effectively by DOMA. THE COURT:

She was disqualified by -Wait a minute. Whoa, whoa, whoa. Wait.

are only two pending motions:

The Government's motion to

that is -- that is not Plaintiff's claim.

Plaintiff has already gotten.

there no waiver of sovereign immunity.

applied to the Executive Branch, is not proper.

before the Court? Court? MS. LIN:

This question is not properly before the

No, we don't, your Honor.

Judge Kozinski reached in this.

as a floor. In other words, the language is permissive. It says

It doesn't say you could also contract for

Yes, your Honor.

I didn't mean to imply that the

I think the bottom line here is

Plaintiff did not plead a complaint that could

That's a whole different lawsuit.

Apparently, the Government is making a point

And again, given the history of this So in that

case, that's something that's important to us here.

THE COURT: MS. LIN:

But also on the issue -- why not bring an

Let me address each in turn. All right.

THE COURT: MS. LIN:

An injunction concerning Judge Kozinski's

That's why one of the prongs for a

So there has to be some basis

on some other independent ground.

One can't just walk into

-- on behalf -- an injunction to directly

THE COURT: MS. LIN:

And -Counsel's still not finished. Okay. Go