Golinski v. United States Office of Personnel Management

Filing 10

Declaration of James R. McGuire in Support of 8 Motion for Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Exhibit I, # 2 Exhibit J, # 3 Exhibit K, # 4 Exhibit L)(Related document(s) 8 ) (McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF).

EXHIBIT J

Subject STATEMENT FROM ELAINE KAPLAN, OPM
GENERAL COUNSEL

STATEM EN T FROM ELAI N E KAPLAN , OPM GEN ERAL COUN SEL

Ther e hav e been som e dev elopm ent s in t he Nint h Cir cuit r egar ding access t o
benefit s for sam e- sex spouses of feder al em ployees, and t her e’s som e confusion
over t his im por t ant issue. Specifically, Kar en Golinsk i, an em ployee of t he Feder al
Cour t s, filed a gr ievance against her em ployer claim ing t hat t he denial of enr ollm ent
of her sam e- sex spouse in t he Feder al Em ploy ees Healt h Benefit s Plan ( FEHBP)
violat ed t he Nint h Cir cuit ’s Equal Em ploym ent Oppor t unit y policy. Nint h Cir cuit Chief
Judge Alex Kozinsk i, sit t ing in his adm inist r at ive capacit y , and not as a feder al j udge
in a cour t case, said t hat em ployees of t he cour t wer e ent it led t o FEHBP healt h
benefit s for t heir sam e- sex spouses. OPM m ust adm inist er t he FEHBP in a lawful
m anner , and t he Depar t m ent of Just ice ( DOJ) h as advised OPM t hat pr oviding t hose
benefit s w ould violat e t he so- called “ Defense of Mar r iage Act .”
All feder al em ployees – be t hey in t he Ex ecut ive, Legislat ive or Judicial br anch –
r eceive t heir heat h car e benefit s in t he FEHBP, which is adm inist er ed b y OPM.
Spouses and m inor childr en of feder al em ploy ees ar e eligible t o be enr olled in t he
FEHBP. However , in 1996, t he so- called “ Defense of Mar r iage Act ” was signed int o
law and it st at es t hat t he w or d “ spouse,” w hen used in a feder al st at ut e, can m ean
only opposit e- sex spouses. I n ot her wor ds, t he cur r ent feder al law m eans t hat sam esex spouses ar e ineligible t o be enr olled in feder al benefit pr ogr am s t hat define
eligibilit y based on t heir st at us as spouses. As t he Pr esident has ex plained, t he
Administrat ion believes t hat t his law is discr im inat or y and needs t o be r epealed by
Congress – t hat is why Pr esident Obam a has st at ed t hat he opposes DOMA and
support s it s legislat ive r epeal. He also has said he suppor t s t he Dom est ic Par t ner
Benefit s and Obligat ions Act ( DPBO) , which would allow all sam e- sex dom est ic
par t ners of feder al em ployees t o r eceiv e feder al benefit s, including enr ollm ent in t he
FEHB Plan.
I t ’s im por t ant t o under st and t hat Judge Kozinski was act ing as an adm inist r at ive
official in t his m at t er , r eact ing t o t he concer ns of an em ploy ee of t he j udiciar y. He
was not act ing as a feder al j udge in a cour t case. This does not m ean t hat t he
inabilit y t o ext end benefit s t o Kar en Golinski’s spouse is any less r eal or less painful,
but it is a cr it ical point.
The decision in t his m at t er w as not r eached light ly – aft er w e lear ned of t his
dev elopm ent , w e exam ined our opt ions and consult ed w it h t he DOJ. DOJ adv ised us
t hat t he or der issued by Judge Kozinsk i does not super sede our obligat ion t o com ply

wit h ex ist ing law because it is not binding on OPM, as it was issued in his
adm inist r at ive capacit y , and not as a j udge in a cour t case. Thus, t his t ype of or der
does not change t he ex ist ing law , w hich DOJ concludes pr event s t he enrollm ent .
DOJ also advised us t hat DOMA pr ohibit s sam e- sex spouses of feder al em ployees
from enr olling in t he FEHBP and t hat t he law does not per m it OPM t o allow t his
enr ollm ent t o pr oceed.
This issue show s exact ly w hy Congr ess needs t o repeal DOMA and pass t he DPBO.
I n fact , t he passage of t he DPBO would r em edy t his sit uat ion in a way t hat r eaches
beyond t his indiv idual case inv olving an em ploy ee of t he j udiciar y by pr ov iding
benefit s t o sam e- sex dom est ic part ner s of all federal em ployees across t he
gover nm ent whet her or not t hey ar e m ar ried. That is why t he Adm inist r at ion has
t est ified befor e Congr ess on t his crucial legislat ion, and w hy t he Pr esident has
per sonally called for it s passage.