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).

Download PDF
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.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?