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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE JEFFREY S. WHITE

KAREN GOLINSKI, )

)

Plaintiff, )

)

vs. ) NO. C 10-0257 JSW

)

UNITED STATES OFFICE OF PERSONNEL )

MANAGEMENT, and JOHN BERRY, )

Director of the United States )

Office of Personnel Management, in )

his official capacity, )) San Francisco, California

Defendants. ) Friday

) December 17, 2010

___________________________________) 10:05 a.m.

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For Plaintiff: Morrison & Foerster425 Market Street

San Francisco, CA 94105-2482

(415) 268-6411

(415) 268-7522 (fax)

BY: GREGORY P. DRESSERAARON D. JONESRITA F. LINJAMES R. MC GUIRE

(Appearances continued on next page)

Reported By: Lydia Zinn, CSR #9223, RPROfficial Reporter - U.S. District Court

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1 APPEARANCES (CONT'D)

For Plaintiff: Lambda Legal2 Western Regional Office

3325 Wilshire Blvd., Suite 1300

3 Los Angeles, CA 90010

(213) 382-7600

4 (213) 351-6050 (fax)

BY: JENNIFER C. PIZER5

6 For Defendants: U.S. Department of JusticeFederal Programs Branch

7 P.O. Box 883

Washington, DC 20044

8 (202) 514-4778

(202) 616-8470 (fax)

9 BY: CHRISTOPHER R. HALL

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Lydia Zinn, CSR, RPR

Official Reporter - U.S. District Cou

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1 THE COURT: Good morning, everybody. Please be

2 seated.

3 Please call the case.

4 THE CLERK: Calling Case Number C. 10-257,

5 Karen Golinski versus United States Office of Personnel

6 Management, et al.

7 Counsel, please step forward to the podiums and state

8 your appearances. To the podiums, counsel.

9 MS. LIN: Your Honor, Rita Lin. I'm an associate at

10 Morrison & Foerster, on behalf of Plaintiff, Karen Golinski.

11 I'm addressing the Court's Questions 1 through 4.

12 THE COURT: All right.

13 MS. LIN: And I'd also like to introduce Ms. Golinski

14 and her wife, Ms. Cunnighis, who are here in the courtroom

15 today.

16 THE COURT: Welcome.

17 MR. JONES: Good morning. Aaron Jones, also for

18 Plaintiff, Karen Golinski.

19 THE COURT: Good morning.

20 MS. PIZER: Good morning, your Honor.

21 Jennifer Pizer, with Lambda Legal Defense and Education Fund,

22 also for Plaintiff, Karen Golinski.

23 And I'll be addressing any of the Court's questions;

24 and Question 5, related to the unconstitutionality of the

25 Defense of Marriage Act.



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1 administrative order authored by Chief Judge Kozinski of the

2 Ninth Circuit Court of Appeals. In his order, Judge Kozinski

3 required Defendant united States Office of Personnel Management

4 to rescind its instructions -- instruction and to cease its

5 interference with the enrollment of Ms. Golinski's spouse to

6 her health plan.

7 Ms. Golinski, a long-time employee of the office of

8 staff attorneys for the Ninth Circuit Court of Appeals, was

9 lawfully married to her long-time domestic partner and

10 co-parent on August 21st, 2008, and remains married under the

11 laws of the State of California.

12 After seeking enrollment for her spouse in the family

13 coverage plan, the Administrative Office of the Courts advised

14 Ms. Golinski that her election form would not be processed,

15 because her spouse shared her gender.

16 Ms. Golinski sought review under the Ninth Circuit's

17 Employment Dispute Resolution Plan, which prohibits employment

18 discrimination based on, among other things, sex or sexual

19 orientation.

20 As required, the complaint was heard by the

21 Chief Judge, who, in a series of orders, found that the

22 Administrative Office had incorrectly concluded that the

23 so-called -- so-called "Defense of Marriage Act," or "DOMA,"

24 prohibited the extension of coverage to her same-sex spouse by

25 misinterpreting the term, quote, "member of family," unquote,



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1 in the Federal Employees Health Benefits Act. Chief

2 Judge Kozinski ordered extension of coverage.

3 However, notwithstanding these orders, the Office of

4 Personnel Management instructed Ms. Golinski's health-insurance

5 carrier not to enroll her spouse, on the basis that DOMA

6 prohibited the extension of coverage.

7 By further order, Judge Kozinski again required

8 compliance.

9 President Obama, when he was running for office,

10 said, quote,

11 "Federal law should not discriminate in

12 any way against gay or lesbian couples,

13 which is precisely what DOMA does."

14 Unquote.

15 The law is, quote, "abhorrent," unquote, and, quote,

16 "an unnecessary imposition of what had been the traditional

17 rules governing marriage, and how states interact on the issues

18 of marriage," unquote, quoting President Obama.

19 By quoting this statement of our President, the Court

20 does not imply that it has reached a decision on the legal

21 issues raised in this case. This case, indeed, raises

22 important and difficult legal problems, not to mention a

23 procedural conundrum.

24 The purpose of this hearing is to require the parties

25 to answer the Court's questions to help resolve these important



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1 questions. The Court instructs the parties to refrain from

2 rearguing the material covered in their extensive briefing of

3 the issues, and, rather, to focus on the Court's questions.

4 At the end of the specific questions, the parties

5 will have an opportunity to address any other issues which they

6 wish to bring to the Court's attention that may not have been

7 raised by the questions or covered adequately in the briefs.

8 So, with that, let us begin response to the

9 questions. So let me get, from the plaintiff's side, the

10 person who's going to be responding to Question Number 1.

11 And maybe I can get Government counsel -- defense

12 counsel -- up here as well.

13 MR. HALL: Certainly, your Honor.

14 THE COURT: You seem surprised.

15 MR. HALL: I'm sorry?

16 THE COURT: You seem surprised that I'm asking you to

17 come up.

18 MR. HALL: Oh, no, no, no. I thought I might -- I

19 can come up now or later; whichever your Honor prefers.

20 THE COURT: I'm going to be asking the first question

21 of you in the first instance. And then I'll give plaintiff an

22 opportunity to respond to Question Number 1.

23 MR. HALL: I apologize, your Honor. I don't have a

24 printed copy of your Honor's questions, so I'm going to have to

25 read my own handwriting.



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1 I appreciate Ms. Lin's courtesy.


3 MR. HALL: She's provided a copy. So one moment.

4 Your Honor, I think that Question 1, as I read it,

5 is -- represents a couple of discrete questions.

6 My view is that the second chronological question is

7 the broader of the two. So I'll try to address that first, if

8 your Honor doesn't mind.

9 The way I read Part 2 of Question 1 is this: The

10 corrective authority that OPM cites refers merely to making

11 corrections of administrative errors.

12 Then your Honor's question cites

13 5 C.F.R. Section 890.103(h).

14 When is the statutory -- where is the statutory

15 support for OPM's argument that its authority to regulate

16 federal health care benefits is more broad?

17 I think, as an initial matter, I have to say this.

18 The Court does not need to address this question, because

19 there's a more fundamental issue of sovereign immunity. And,

20 beyond that, there's an issue of whether or not the Ninth

21 Circuit administrative-dispute-resolution process has the

22 statutory authority to bind executive agencies.

23 THE COURT: Well, I'd appreciate you not telling me

24 what I should ask or shouldn't ask. Maybe it's a stupid

25 question, but why don't you answer it? And then you can



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

2 notify OPM of any significant changes in policies and

3 procedures or interpretations of contract provisions that would

4 affect the benefits available under the contract.

5 Now, in response to a notification under that

6 provision of the contract, OPM may, under the subsequent

7 provision, Section 1.10(b), direct the carrier to take

8 corrective action, or suspend new enrollments under the

9 contract.

10 Now, I think -- I think what happens here is, in

11 1996, as your Honor is aware, Congress passed DOMA. And DOMA,

12 in effect, amended over a thousand federal statutes that

13 concerned the provision of federal benefits.

14 One of those, obviously, was the Federal Employees

15 Health Benefits Act, or "FEHBA."

16 When that happened, OPM was under an obligation to

17 issue the directive that it issued in 1996, which essentially

18 said to the contractor, to the carrier, and to the employing

19 offices that this is what is now provided -- this is what is

20 now required under FEHBA.

21 So I think the other statutory provision that I need

22 to emphasize is 5 U.S.C. 8913. Now, that's about as broad as a

23 delegation of authority as you're going to find. And what that

24 essentially says is that OPM has the authority to interpret its

25 organic statute -- in this case, FEHBA -- and promulgate



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1 regulations designed to implement FEHBA.

2 So it's exactly what OPM did. And that's exactly

3 what provides the statutory basis for OPM to take the action

4 that it took in this case, which, I would emphasize, goes all

5 the way back to 1996. And I think that leads directly into the

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

7 does the conduct of sending a letter to plaintiff's insurer,

8 instructing the company not to follow the tribunal's directive,

9 qualify as either contracting with carriers, or prescribing

10 benefits under FEHBA?

11 I would point out that that has already happened in

12 both cases.

13 First, OPM already prescribed regulations under

14 FEHBA. Certainly, in 1996, the letter to the carriers in

15 general and to the employing agencies did exactly what OPM was

16 obligated to do under FEHBA, as amended by DOMA, and told them

17 exactly what their obligations were.

18 Now, OPM possessed that authority. And I think

19 that's unquestionable; but when the -- when Judge Kozinski,

20 acting in his administrative capacity, which I don't think is a

21 disputed point in this case, either, issued his November 2009

22 administrative order, OPM was alerted to that, and had an

23 obligation to reiterate its 1996 instruction, which is

24 essentially what it did.

25 THE COURT: All right. Counsel?



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1 MS. LIN: Your Honor, if I could start with the

2 regulatory point, and then I'll move back to the contract

3 point.

4 THE COURT: Very well.

5 MS. LIN: The action at issue here is the letter that

6 OPM sent in response to Judge Kozinski's order. There has been

7 no argument from OPM that that letter constitutes in any way a

8 regulation.

9 So, then, I think that takes us to the -- the

10 contracting provisions that OPM has cited. OPM starts with

11 Section 8903, and also 8902(j).

12 As to 8903, 8903 provides authority to enter into

13 contracts; to contract with insurers.

14 There is no allegation here that the sending of a

15 letter is an act of entering into a contract, or contracting

16 with an insurer. OPM has repeatedly cited in the briefing --

17 both motion to dismiss, and preliminary injunction -- the

18 notion that delegation to an agency must be specific.

19 Agencies -- the scope of an agency's statutory authority is

20 bounded by the specific grant given by Congress. And here, OPM

21 cannot point to any sense in which the sending of a letter

22 falls within the specific grant of contracting with an insurer.

23 I would also point out that the -- that the contract

24 on which OPM relies at this point is not something that's in

25 evidence. It's the first time we've heard this argument as to



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1 the notion that this falls within OPM's statutory authority;

2 but putting that aside, the contract language that OPM points

3 to is language about corrective actions as to carriers.

4 Here, the carrier has not taken an action one way or

5 the other, so there's no correction that's being required. The

6 person who is being corrected, if anyone, would be

7 Chief Judge Kozinski. OPM does not have the authority to take

8 corrective action against Chief Judge Kozinski or the EDR

9 tribunals.

10 OPM does have a regulation that gives it the ability

11 to take corrective authority against executive agencies.

12 That's cited in our brief. And that's 5 C.F.R. 250.13. That

13 section says that if OPM finds that an executive agency --

14 THE COURT: Slow down when you read. Make Lydia

15 dictate. Otherwise, she gets very upset; appropriately so.

16 MS. LIN: Sorry. It's 5 C.F.R. Section 250.13.

17 If OPM finds an executive agency, quote, "has taken

18 action contrary to law that OPM administers," end quote, OPM

19 can take corrective action. That's limited to executive

20 agencies.

21 This is -- so I think it's the principle of exclusio

22 unius -- exclusiounius.

23 THE COURT: Is that an Asian expression, or --

24 No. Just kidding.

25 MS. LIN: Ha.



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2 MS. LIN: But it's -- there's -- by issuing a

3 regulation to that effect limited to executive agency, by

4 implication, OPM does not have that authority as to

5 nonexecutive agencies and as to the EDR tribunal.

6 THE COURT: All right. Counsel.

7 MR. HALL: Couple of points. I think I'd like to

8 respond to a couple of points that Ms. Lin raised.

9 I think the argument that a letter cannot constitute

10 a regulation or -- or entering into a contract just doesn't

11 make sense.

12 OPM has a statutory authority to enter into contracts

13 to administer the entire Federal Employee Health Benefits

14 Program. That authority and concurrent obligations do not stop

15 when the ink is dry on the contract. The contract is between

16 two parties, and it imposes obligations and rights on each

17 party. OPM has to enforce the obligation -- to enforce the

18 provisions of the contract, when appropriate. And that's

19 exactly what it did here.

20 THE COURT: But the contract is between whom and

21 whom?

22 MR. HALL: The contract, your Honor, is between OPM

23 on behalf of the United States, and a particular carrier. In

24 this case, it would be Blue Cross/Blue Shield.

25 THE COURT: But the letter purports to proscribe



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1 whatever rights or obligations exist with respect to the

2 plaintiff, correct?

3 MR. HALL: Your Honor, yes and no.

4 I think it certainly is specific to the plaintiff;

5 but on a broader scale, it's the same instruction; it's the

6 same statutory instruction that applies to everyone who is a

7 federal employee and who is otherwise part of the Federal

8 Employess Health Benefits Program Employees Health Benefits

9 Program.

10 So it's -- OPM has the authority to do that. OPM has

11 the obligation to do that. And the regulations cannot

12 reasonably be read to construe otherwise.

13 Now, I think I want to make an important point here.

14 And I think what plaintiff has to understand is if that

15 argument -- if they really believe in that argument, they're

16 going to have to take the good with the bad. OPM has

17 corrective authority. If -- in most cases, OPM is correcting

18 an administrative error that harms the plaintiff; harms the

19 employee.

20 Now, if you take Plaintiff's argument to its logical

21 conclusion -- and it's not a very far trip -- OPM doesn't have

22 the authority to take corrective action in a way that would

23 benefit an employee, whether that's the Executive Branch or

24 the -- an employee of the Judiciary. So I think Plaintiff has

25 to reckon with that argument if they really want to push this



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1 argument before the Court.

2 Now, I think another point that I really need to make

3 is that the term "corrective action" -- it's animated by the

4 final agency rule that OPM entered in 1994 or 1996. I can't

5 remember which year. Oh, 1994, 59 Federal Register 66434. And

6 the pinpoint is 66434.

7 "Administrative error" is defined to include -- is

8 clear statutory error. Administrative error occurs when an

9 employing office misapplies the law or the regs -- regulations,

10 rather. I apologize.

11 So I think that it would be improper to read

12 administrative error in a way that would not permit OPM to

13 exercise its clear statutory authority to correct clear errors

14 of law. And here what we have is a clear error of law.

15 THE COURT: All right. Ms. Lin, do you want to

16 respond to that?

17 MS. LIN: Sure.

18 First let me respond to the point that -- the point

19 that OPM raises that it -- that Ms. Golinski should be careful

20 what she argues for, because this may bar OPM from exercising

21 its corrective authority in favor of employees.

22 Judicial employees like Ms. Golinski have a process

23 for challenging issues that they have with workplace benefits

24 and personnel actions. And that's the EDR process. And so

25 it's not as if Ms. Golinski is arguing that those in the



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1 are only two pending motions: The Government's motion to

2 dismiss, and Plaintiff's motion for a preliminary injunction.

3 And this question, with all due respect, is not

4 relevant to either of those two motions.

5 The third point I need to make is: If there is a

6 conflict between Title VII or the C.S.R. reg. and DOMA, DOMA

7 trumps both, because it is both later enacted, and more

8 specific than either.

9 Alternatively --

10 THE COURT: Unless it's found to be invalid because

11 it's unconstitutional.

12 MR. HALL: Again, your Honor, I have to stress that

13 that is -- that is not Plaintiff's claim. Plaintiff filed a

14 very straightforward complaint, alleging a cause of action

15 based solely on the substance of the November 2009 EDR order

16 seeking enforcement to move that order through 20 U.S.C. 1361,

17 The Mandamus Act.

18 Now, I think I should also point out that Plaintiff

19 has alternatively suggested that her claim is not based on

20 anything other than the Ninth Circuit's EDR plan -- or the

21 Ninth Circuit's EEO plan -- discrimination.

22 If that's the case, then I think, again, we're in a

23 situation where Plaintiff has to take the good and the bad with

24 that. If that's Plaintiff's argument, then Plaintiff's remedy

25 is limited to those remedies that are provided for under the



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1 EDR plan. Those remedies include things like back pay, which

2 Plaintiff has already gotten. They do not include and they

3 cannot be construed to include an enforcement.

4 THE COURT: But that was construed by the

5 administrator here, Chief Judge Kozinski, to be an inadequate

6 remedy, correct?

7 MR. HALL: Certainly, your Honor, but we don't agree

8 with that.

9 THE COURT: What's the standard of review? De novo?

10 What's the standard of review of that specific finding by --

11 MR. HALL: There is no standard of review, because

12 there no waiver of sovereign immunity. And the record, as

13 applied to the Executive Branch, is not proper. The EDR

14 tribunal simply does not have the statutory authority to issue

15 binding directives on an Executive agency, much less OPM, which

16 is statutorily charged with the administration of the Federal

17 Employees Health Benefits Program.

18 THE COURT: But an Executive agency has authority to

19 issue binding rules with respect to an employee of the

20 Judiciary, is what you're saying?

21 MR. HALL: That's correct.

22 THE COURT: It works one way, but not the other?

23 MR. HALL: That's correct.

24 THE COURT: Anything further on this point?

25 Ms. Lin, do you agree that this issue is not properly



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1 before the Court? This question is not properly before the

2 Court?

3 MS. LIN: No, we don't, your Honor.

4 What's properly before the Court is the question --

5 so that defense -- the defendants have raised the issue of

6 sovereign immunity.

7 One -- one reason that sovereign immunity would not

8 apply would be if OPM were acting outside of its statutory

9 authority. If OPM is acting in violation of 8902 Section (f),

10 it's acting outside the scope of its statutory authority. It's

11 that simple, your Honor.

12 And, to the extent that the -- that the Government is

13 contending that there may be some sort of conflict between

14 8902(f) and DOMA, the statutes don't need to be read in a way

15 that conflicts. And that's exactly the conclusion that

16 Judge Kozinski reached in this. So 8902(f) says you can't

17 provide health insurance in a manner that discriminates based

18 on sex. The FEHB Act also says that OPM must -- must contract

19 to provide health insurance for employees and their spouses and

20 other covered individuals.

21 That FEHB -- that provision of the FEHB Act need not

22 be a ceiling for the -- for the benefits that are to be

23 provided. It could also -- it is also possible to interpret it

24 as a floor.

25 In other words, the language is permissive. It says



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1 that Judge Walker rejected, in saying that this is sex

2 discrimination. If -- if the spouse's sex were different, the

3 outcome would be different, and so that's sex discrimination.

4 THE COURT: All right. Counsel?

5 MR. HALL: Yeah. I'll respond.

6 Certainly. Yes, your Honor.

7 I'll certainly respond to Ms. Lin's points, but I

8 have to make one initial clarification of something that

9 Ms. Lin said. She referred to the argument in Perry versus

10 Schwarzeneggeras the same argument that the Government made.

11 I wanted to make it clear that the United States government was

12 not part of that lawsuit. I think whatever the party is in

13 Perry, it's not the federal government.

14 Getting back to the point --

15 THE COURT: Well, state government.

16 MS. LIN: I didn't mean to imply that the

17 United States government was involved in Perry versus

18 Schwarzenegger.

19 THE COURT: The parties. The defendants made the

20 argument.

21 MR. HALL: Sure. Fair enough. The defendant's made

22 the argument. Fair enough. I think the bottom line here is

23 this. Plaintiff did not plead a complaint that could

24 reasonably be construed to include an argument that OPM's

25 interpretation of the FEHBA is unreasonable.



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1 That's a whole different lawsuit. That's a

2 different -- that's a different claim than the one that

3 Plaintiff alleged, so we don't even have to go there; but if

4 that's the case, if -- if Plaintiff wants to make that

5 argument, if Plaintiff wants to assert that claim, it's pretty

6 straightforward. She can just file a lawsuit challenging

7 the -- challenging OPM's interpretation of the FEHBA as

8 unreasonable under the APA.

9 That's essentially what the plaintiffs in Gill versus

10 OPMdid, although there, it was it was essentially, I think, a

11 constitutional challenge to DOMA.

12 Here, given that Plaintiff would like to rely upon

13 the reasoning employed by Judge Kozinski in his administrative

14 capacity as an EDR tribunal, they can make that argument. They

15 just need to make it in a different lawsuit.

16 THE COURT: All right. Ms. Lin, again, it goes back

17 to the question: Apparently, the Government is making a point

18 here that you really haven't properly brought this issue before

19 the Court in this lawsuit.

20 Where in the complaint --

21 MS. LIN: Your Honor, our complaint is that

22 Judge Kozinski issued an order requiring OPM to cease its

23 interference, and OPM refused to comply. It's that simple.

24 This issue only arises because OPM raised the defense

25 of sovereign immunity.



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1 So we then reach questions that were not presented to

2 Judge Kozinski, because OPM declined to appear before

3 Judge Kozinski. Therefore, the issue of sovereign immunity was

4 never raised to him, so he never had to address the question of

5 whether OPM was acting within its statutory authority or not.

6 We reached that question because of the defense the Government

7 has raised, not because of anything that was in the allegations

8 of Plaintiff's complaint.

9 Now that we've arrived at that point where we must

10 determine whether OPM is acting within its statutory authority,

11 the Court, I think, is free to analyze to the full extent

12 available to it the legitimacy of OPM's argument that it was,

13 in fact, acting within its statutory authority, and therefore,

14 shielded by sovereign immunity.

15 THE COURT: All right. Let's move on to

16 Question Number 3, on which the Government --

17 Are you addressing Question 3, Ms. Lin?

18 MS. LIN: Sure.

19 THE COURT: All right. Or somebody. I lost track of

20 who was arguing -- responding to which question on Plaintiff's

21 side. Are you responding to Question 3?

22 MS. LIN: I am handling Question 3, yes, your Honor.

23 THE COURT: All right. So 3(a). Because, in order

24 to find the mandamus is incorporated, obviously, the Court must

25 find that there's no other adequate remedy. That is the basis



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1 of Question 3(a).

2 MS. LIN: Your Honor, I assumed by "an action for

3 declaratory judgment," you mean an action seeking a declaration

4 that Judge Kozinski's order is enforceable, and that OPM ought

5 to comply with it.

6 THE COURT: And even further to that the rights and

7 liabilities of the respective parties -- namely, all of the

8 parties to this lawsuit: The plaintiff and, you know, OPM, and

9 the director.

10 MS. LIN: Right.

11 So let me -- let me answer each of those separately.

12 I think the answer's "No" to both of those, but the

13 reasoning is different, depending on which declaration we're

14 talking about.

15 So as to a declaration that -- that Judge Kozinski's

16 order is enforceable and that OPM must comply with it, our view

17 is that a declaration is not an adequate substitute for an

18 injunction, given the history of this case. A mandamus action

19 provides injunctive relief backed by contempt power of the

20 Court that requires compliance. A declaration doesn't provide

21 that same assurance. And again, given the history of this

22 case, that's something that's important to us here. So in that

23 sense, a declaration should not be an adequate substitute for

24 injunctive relief. And that's really true for, I guess, either

25 kind of declaration we would seek.



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1 implicitly you've covered, but I'd like to get your explicit

2 answer on: Why not sue OPM directly for injunction?

3 MS. LIN: The answer is no.

4 And I assume that by this -- by this, the Court means

5 both types of injunction?

6 THE COURT: Correct.

7 MS. LIN: Let me address each in turn.


9 MS. LIN: An injunction concerning Judge Kozinski's

10 order and its enforceability would just directly, under -- I

11 suppose it would be The All Writs Act -- is not something

12 that's available.

13 There's really two types of injunctions that courts

14 can enter. It's a traditional injunction, and, I suppose, an

15 injunction under The All Writs Act.

16 So a traditional injunction needs to be predicated on

17 some underlying cause of action. There has to be some basis

18 for the injunctive relief. That's why one of the prongs for a

19 traditional injunction is that the plaintiff must show

20 likelihood of success on the merits. The merits of what? The

21 merits of the underlying claim. So there has to be some basis

22 for traditional injunction.

23 Under The All Writs Act -- The All Writs Act allows

24 courts to issue injunctions in aid of their own jurisdiction,

25 but that's where there has already been jurisdiction acquired



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1 on some other independent ground. One can't just walk into

2 court on The All Writs Act and -- and -- and say, "I want

3 injunctive relief to tell somebody to do something."

4 And those are the two cases that the plaintiff has

5 provided to OPM and to the Court: Clay versus United Health

6 Group, and Stafford versus Superior Court.

7 Clayjust has a good explanation of these issues.

8 It's an Eleventh Circuit case, but it explains these issues in

9 a way that's pretty straightforward. And then the Stafford

10 case just explains that Ninth Circuit law is the same as

11 Eleventh Circuit law on that point.

12 THE COURT: All right. Counsel, do you have another

13 point you wanted to make?

14 MS. LIN: Sorry. I just wanted to address the notion

15 of injunctive relief --

16 THE COURT: Oh, yes. Please do.

17 MS. LIN: -- on behalf -- an injunction to directly

18 challenge OPM's interpretation of FEHBA as unconstitutional.

19 The plaintiff could bring a claim.

20 The idea there would be Plaintiff would be bringing a

21 claim under the Constitution, so there would be a cause of

22 action; but then Plaintiff would face a further bar, which is

23 the Ninth Circuit's ruling in Blankenship and Veit, holding

24 that -- holding that Judicial employees are limited to the EDR

25 process to challenge discrimination.



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1 THE COURT: Okay.

2 MS. LIN: And --

3 THE COURT: Counsel's still not finished. Okay. Go

4 ahead. It's okay.

5 MS. LIN: I would just add that --

6 THE COURT: Yes.

7 MS. LIN: -- if the Court is inclined to ask us to

8 amend on this issue, and to add these claims, sort of, in the

9 alternative, I suppose, we would ask that -- we would ask two

10 things.

11 We would ask first that the Government state what it

12 believes adequate alternative remedies are. We do not want to

13 be in a situation where, you know, we've been told, on the one

14 hand, that you can't have mandamus because there are other

15 adequate remedies, and then we go off and bring those other

16 remedies, and say, "Well, you can't have that, either," for

17 some other reason. So I'd just like to hear the Government on

18 the record on what the alternative adequate remedies they think

19 are available would be.

20 And then the other issue we request is that if

21 there's going to be amendment, we request that it be -- that

22 any motions practice following that amendment be expedited in

23 some way. I think we've briefed most of the issues that would

24 be relevant, anyway. And Ms. Golinski has been waiting for --

25 it's almost -- it's been over two years now since she



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1 originally submitted her form.

2 THE COURT: All right. Well, let's start with the

3 last point.

4 What procedures do you think or what remedy do

5 believe Plaintiff can and should pursue?

6 MR. HALL: I'll answer that, but first I want to say

7 I think what Ms. Lin asks me to do today is problematic for a

8 couple of reasons. One, it clearly puts the cart before the

9 horse. We haven't seen what Plaintiff might be inclined to

10 argue in support of a motion to amend or might be inclined to

11 allege as a separate cause of action. So that's one reason.

12 The other reason is -- coming here today is, as a

13 trial attorney, I can't speak for the Department of Justice. I

14 can't bind the Department to a particular position. So I -- I

15 apologize for that. That's just my limitation here.

16 That said, I think that the answer is probably pretty

17 clear. I think we've got -- we've got a case pending before

18 the First Circuit right now that provides a pretty clear

19 roadmap for how this would work. And that's Gill v. OPM.

20 The parties are briefing that in front of the

21 First Circuit. That is a broader litigation brought on behalf

22 of a whole group of plaintiffs; but some of those plaintiffs

23 are current and former federal employees, who are seeking --

24 who are framing an as-applied challenge to the

25 constitutionality of DOMA against OPM in its administration of



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1 the Federal Employees Health Benefits Program. So I think that

2 kind of sketches out the kind of claim that Plaintiff would

3 have to make here; but we also think it's a pretty, pretty

4 clear and straightforward claim to plead.

5 THE COURT: Could they make that claim under

6 Blankenship?

7 MR. HALL: Certainly, your Honor. I think

8 Blankenship speaks to a very limited question. What happens

9 when there's a claim that is an injury or an alleged injury

10 that is clearly addressed under the C.S.R.A.?

11 Now, the C.S.R.A. obviously does not apply to the

12 Judiciary. It does not apply to the Legislative Branch,

13 either, although it's been extended to apply to the Legislative

14 Branch through The Congressional Accountability Act.

15 Here, obviously, there's a suggestion that, under

16 Blankenship, the court's -- the Judicial Council's

17 administrative EDR process kind of substitutes for the

18 C.S.R.A., and limits certain rights and remedies.

19 The problem is there's a pretty clear framework for

20 moving forward under the Federal Employees Health Benefits Act.

21 And I think the road that Plaintiff traveled to get to this

22 point is a pretty good illustration of that.

23 Early on, as Ms. Lin referenced, the plaintiff faced,

24 kind of, a "fork in the road," administratively speaking. She

25 requested enrollment of her spouse in her plan. And that



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1 enrollment was denied by AOUSC applying the statutory directive

2 of FEHBA.

3 At that point, Plaintiff could have submitted a

4 request for reconsideration from the AOUSC, and the AOUSC would

5 have provided that. And that would have provided a direct

6 cause of action in federal court; either in this court, or in

7 the Court of Federal Claims in D.C. Both courts have

8 concurrent jurisdiction over that type of claim under FEHBA.

9 So, you know, Plaintiff obviously chose an

10 alternative route. It's an alternative route that's provided

11 for under the court's EDR process, but it's not the route that

12 is officially countenanced under FEHBA.

13 So I think, kind of, getting us back to Point A,

14 your Honor asked: Would this case be better positioned as an

15 action for declaratory judgment, instead of mandamus?

16 Well, I think to the extent that -- well, I don't

17 want to construe anything from the Court's phrasing of that,

18 but we agree with part of that.

19 Plaintiff could bring a case for declaratory

20 judgment, but again, as we've indicated before, that is not

21 this case. Plaintiff has not pleaded such a claim. And the

22 claims presented in her complaint control the action. That's

23 just pretty much black-letter law.

24 The claim pleaded by Plaintiff is essentially this.

25 Judge Kozinski entered an administrative order. OPM is



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1 therefore bound to follow that order, based on the points made

2 in that order. So I think that to suggest otherwise is simply

3 incorrect.

4 Moving on to Point B or Question (b): Could

5 plaintiff file a direct action against OPM for an injunction?

6 Well, I don't want to say what the appropriate remedy

7 would be, but I do think Plaintiff could file direct action.

8 We go back to Gillv. OPM. That's exactly what happened there.

9 I think that's --

10 THE COURT: And you're admitting on behalf the

11 Government that Blankenship would not preclude such a lawsuit,

12 and you're waiving any defense under --

13 MR. HALL: No, no, no. I can't waive anything,

14 your Honor, at all. Obviously, standing here, I can't waive

15 it. We haven't really had a chance to look at this and brief

16 this, but what I can say is that, in Gill versus OPM, that was

17 the road that the plaintiffs followed. It seemed pretty clear

18 and straightforward here. We think that that would be the case

19 here; but, given that we haven't had a chance to see a motion

20 to amend the complaint or anything like that, we -- I don't

21 think we can say one way or the other what our formal

22 position's going to be.

23 THE COURT: All right. And, Ms. Lin, you want to

24 respond?

25 MS. LIN: Sure. Just on Gill, let me just make a



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1 point -- quick point about Gill.

2 In Gill, the federal employees at issue were not

3 judicial employees. They were employees of other branches.

4 And, under provisions of the C.S.R.A., there is

5 judicial review available to employees of other branches, once

6 they've exhausted the administrative process. So it's not as

7 if -- those employees are in a different situation than

8 employees like Ms. Golinski, who are foreclosed completely from

9 judicial review of employment-discrimination claims.

10 And I would say that Blankenship does control,

11 your Honor, in that the employee in Blankenship was a judicial

12 employee. She was a -- she's a -- quote -- an "appointed

13 judicial employee." And she's a court reporter. So it's

14 directly on point, on the issue of the judicial employee.

15 As to the issue of whether the Government's had the

16 opportunity to brief this issue, the parties have extensively

17 briefed the question of whether there is an adequate

18 alternative remedy. And the Government has pointed to the

19 FEHBA claim as a potential claim.

20 And I don't want to repeat the briefs, but I just

21 want to -- I just state briefly that it's difficult to

22 understand how there could be a FEHBA action here; because

23 Ms. Golinski's claim is not that OPM violated FEHBA, but that a

24 discriminatory action occurred towards her, and FEHBA claims

25 are claims that are founded on FEHBA. That's the language of



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1 Section 8912.

2 THE COURT: All right. Let's move on to Question C.

3 And I'll ask you, Ms. Lin, in the first instance. I know you

4 can't -- nobody's ever tried to read Judge Kozinski's mind.

5 He's a very smart man, but I'd be interested in knowing what

6 your -- about his petition for enforcement.

7 MS. LIN: Your Honor, petitions for enforcement -- a

8 "petition for enforcement" is a phrase that's frequently used

9 sort of generally to refer to statutory or regulatory schemes

10 that permit the appeal of an administrative order.

11 Here, we don't have a statutory or regulatory scheme

12 beyond Section 332 that governs the EDR plan. And Section 332

13 doesn't refer to a petition for enforcement.

14 So I think that Judge Kozinski may have been just

15 referring to, kind of, the general notion that an

16 administrative order could be enforced in court in some way,

17 and that he didn't -- he may have inserted that phrase to just

18 indicate that he didn't intend us to be limited to mandamus if

19 Plaintiff came up with some other basis for enforcing the

20 administrative order at issue.

21 THE COURT: You want to take a shot at what

22 Judge Kozinski meant?

23 MR. HALL: Do I have to?

24 Your Honor, frankly, with all due respect to

25 Judge Kozinski, we don't know what his Honor intended by that



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1 term; but we do know what the bottom line is. There's nothing

2 to enforce here at all through mandamus or otherwise, because,

3 as we pointed out in our briefs, there is no waiver of

4 sovereign immunity that would subject the OPM to the

5 jurisdiction of an EDR tribunal. And the EDR process itself

6 lacks the statutory delegated authority to bind the Executive

7 Branch, either.

8 So I think our response to Question C is the same as

9 our position laid out in our briefs. There's no waiver of

10 sovereign immunity, therefore -- and there's no statutory

11 authority, so therefore, there's nothing to enforce.

12 THE COURT: All right. Let's move on to Question D,

13 which -- under the same idea with respect to adequate remedies,

14 what further administrative remedies could plaintiff pursue,

15 and what would be the governing law?

16 MR. HALL: Certainly, your Honor. I will point out

17 that I think, through no one's fault, we are in a kind of an

18 odd duck of a procedural posture here, because we're

19 essentially offering how we would rewrite Plaintiff's whole

20 complaint and the whole path she took in the administrative

21 process. Without doing that, I think I can reiterate what I

22 said earlier. You know, Plaintiff, at one point early on in

23 this process, hit a fork in the road, administratively

24 speaking. And she could have gone one of two ways.

25 THE COURT: Yogi Berra. "When you come to a fork in



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1 the road, take it."

2 MR. HALL: Exactly. Exactly. You know, she -- she

3 could have gone through the process that's officially

4 countenanced under the FEHBA; or, as she did, she could have

5 gone through the EDR process, which is not officially

6 countenanced under FEHBA. Whatever she did, I think the bottom

7 line is we think that the issue is appropriately teed up

8 without saying that conclusively, in a way that would permit a

9 direct challenge; but you know, obviously, we can't say that

10 with any finality until we've seen what happens. If the Court

11 orders something and if Plaintiff decides to go that route, at

12 that point, we would be able to speak to this issue with a

13 little more finality.

14 THE COURT: And now what about the adequate ability

15 of Veit and Hecklerthe Court has cited? Does that apply here?

16 MR. HALL: I'm sorry. The Court cited in the --

17 THE COURT: In the question: Question D.

18 MR. HALL: Oh, Question D. I'm sorry, your Honor. I

19 have to apologize. Let me look that up.

20 I read that, but it was very early this morning. And

21 I apologize, but my brain is swinging a bit on that point, but

22 what I do think is Plaintiff can characterize her claim in one

23 of two ways. She can characterize it as a discrimination claim

24 under the EDR process, or she can characterize it as something

25 seeking correction of a problem under the FEHBA.



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1 We think that the more straightforward and clean way

2 to do this administratively would have been the latter.

3 Plaintiff didn't, obviously, do that; but we don't think that

4 that option is foreclosed, or anything like that.

5 THE COURT: Before I hear from Ms. Lin, let's finish

6 this question. Why should Judicial employees be treated any

7 differently from Legislative employees in the same situation?

8 MR. HALL: Well, we don't think that she should be,

9 but I should point out that whatever provisions apply to

10 Legislative employees or to Executive Branch employees, there's

11 a corollary provision that applies to Judicial employees. So I

12 don't -- if I understand your Honor's question correctly, I

13 don't think we're necessarily disagreeing or we're necessarily

14 arguing that they should be treated any differently in this

15 limited context.

16 I think what we're saying is there's a pretty clear

17 path of administrative review that Plaintiff could have taken.

18 She didn't take it, but that's fine. She can still take it, I

19 think. And that would put us in a position where she would be

20 able to bring a claim, but again --

21 THE COURT: Is that with respect to waiver of the

22 immunity?

23 MR. HALL: No, no, no, your Honor. I think two

24 separate issues.

25 This issue -- the waiver of sovereign immunity is --



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1 it relates to the way plaintiffs have pleaded their complaint.

2 The way plaintiffs have pleaded their claim is in

3 full and exclusive reliance on the fact and the existence of

4 Judge Kozinski's 2009 administrative order. Essentially what

5 they're saying is Judge Kozinski reached his conclusion. He

6 reached this outcome, and issued this order. And OPM is bound,

7 under 28 U.S.C. 1361, to comply with it fully.

8 Now, as we have pointed out in all of our briefs, the

9 three requirements for mandamus have not been met here, and

10 cannot be met here, among other reasons, because there's no

11 waiver of sovereign immunity.

12 That's a separate issue than whether or not Plaintiff

13 can bring a claim challenging OPM's interpretation of FEHBA as

14 unreasonable, or whether she can bring a claim just challenging

15 DOMA.

16 THE COURT: All right. Ms. Lin.

17 MS. LIN: Your Honor, on the -- on the point of

18 Ms. Golinski having faced a fork in the road, and she can go

19 one way or the other -- part of the problem with that analysis

20 is that it's difficult to understand what she could be doing

21 under FEHBA.

22 FEHBA provides a process by which individuals can

23 seek correction of enrollment decisions, which is presumably

24 what OPM refers to, but those provisions apply where your

25 employing office has refused to allow enrollment.



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1 So the two Sections are 5 C.F.R. 890.104(a) -- that

2 Section says an individual may request an agency to reconsider

3 an initial decision of its employing office denying coverage.

4 There's no denial of coverage by the employing office

5 here.

6 Then there's another section that says a suit to

7 compel enrollment must be brought against the employing office

8 that made the enrollment decision. That's 5 C.F.R. 890.107.

9 Both of those provisions for Ms. Golinski to do

10 something administratively under FEHBA apply only where the

11 employing office has rejected her request for enrollment. And

12 here, her employing office -- the Ninth Circuit -- has

13 specifically said that she ought to be able to enroll her wife.

14 So it's difficult to understand what path is available to her

15 in the alternative here.

16 And the other point I'd like to make is that there's

17 this notion that -- of sovereign -- there's this notion that --

18 or there's this back and forth about whether or not sovereign

19 immunity would apply in a direct action in which Ms. Golinski

20 brought a direct constitutional challenge or a statutory

21 challenge to OPM's actions here.

22 It's my understanding that the Government concedes

23 that there's a waiver of sovereign immunity under 5 U.S.C.

24 Section 702, the APA, that would waive any immunity suit. And

25 it waives immunity to this suit here before this Court. To the



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1 extent that the Government's asserting sovereign immunity now,

2 it's in relation to Judge Kozinski's ability to enter an order

3 against it. That's my understanding.

4 THE COURT: Is that correct?

5 MR. HALL: Not at all, your Honor. I think there's a

6 fundamental misunderstanding or misconception here.

7 There is, as the Court is fully aware, a general

8 waiver of sovereign immunity for prospective relief under the

9 APA. We don't concede that that's settled.

10 What it applies to is a whole different question.

11 Here, Plaintiff has pleaded a claim that relies

12 solely, exclusively, and completely on the effect of

13 Judge Kozinski's administrative order from 2009, and said in

14 her complaint that order constitutes a clear duty to act on

15 OPM's behalf. It constitutes a clear right to relief on

16 Plaintiff's behalf. And, by the way. There are no adequate

17 alternative remedies.

18 Plaintiff has framed the complaint the way she wanted

19 to. She has to be stuck with that, because that's a far

20 different situation from: Okay, I'm just going to challenge --

21 I'm just going to challenge my employing agency's determination

22 under the FEHBA, which would be subject to APA review or

23 something like that; or I'm going to challenge something that

24 OPM did under the APA.

25 Those are separate issues. That's a separate



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1 proceeding in the first instance. There's no waiver of

2 sovereign immunity that would apply to -- that would waive

3 OPM's sovereign immunity as to that process.

4 THE COURT: I'd like you to answer question 4, which

5 segues from what you're saying, which is: To the extent the

6 plaintiff is seeking only affirmative action -- affirmative

7 action by the defendants -- on what basis does the Government

8 contend that the prospective equitable relief in requiring OPM

9 to abide by Judge Kozinski's order required by sovereign

10 immunity -- that's the quintessential issue here.

11 MR. HALL: Certainly we agree, your Honor. The issue

12 is this. Is there a waiver of sovereign immunity that would

13 apply to Plaintiff's mandamus claim, as pleaded, or to another

14 similar -- I don't know what it would be -- another similar

15 claim for some kind of affirmative relief? The answer is "No"

16 in either instance. Whether it's pleaded as a claim under

17 The Mandamus Act, or pleaded as some undetermined form of

18 affirmative relief, the answer is: There is no valid waiver of

19 sovereign immunity.

20 Now, I think -- I think the -- the fundamental point

21 here is one that I don't believe is in dispute. Judge Kozinski

22 was acting in his administrative capacity. He was not acting

23 in his Article Three capacity when he entered the November 2009

24 administrative order.

25 Now, there's no waiver of sovereign immunity, general



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1 or otherwise, that would subject OPM to that kind of review

2 that would impose some kind of obligation upon OPM.

3 I think we can -- I'd like to point out that just

4 about a week ago in the oral argument in the Perrycase, I

5 think Judge Reinhardt, who was sitting on the panel, pointed

6 out pretty clearly in open court that, in reference to a very

7 similar EDR claim that he decided in favor of an employee of

8 Public Defender's service, or Federal Public Defender, that he

9 was sitting in his administrative capacity; not in his

10 Article Three capacity. So it's a very different question from

11 whether or not there's a waiver of sovereign immunity that

12 would apply that would waive OPM's sovereign immunity to an

13 Article Three court.

14 So I think that's the critical issue that Plaintiff

15 just is -- I don't think they're disputing it, but also, I

16 don't think they're adequately understanding why the waiver of

17 sovereign immunity does not exist here.

18 THE COURT: All right. Ms. Lin.

19 MS. LIN: Your Honor, Edelman's not a case about the

20 waiver of sovereign immunity. It's about whether sovereign

21 immunity applies in the first place.

22 Sovereign immunity does not apply in the first place.

23 There's nothing to waive when it's an action that's against an

24 official that seeks purely prospective injunctive relief.

25 That's the holding of Edelman.



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1 Now, Edelman is a holding that's in the context of

2 Eleventh Amendment immunity. It's a state official, not a

3 federal official. We don't see these kinds of -- the courts

4 haven't really addressed the question of whether Edelman's

5 analysis ought to apply in the federal context as well, because

6 usually, in the federal context, the APA waiver takes care of

7 everything. So it just doesn't get litigated that much, but

8 there's no reason to think that the analysis would be any

9 different under -- under the -- under federal sovereign

10 immunity than under state sovereign immunity.

11 Here, Judge Kozinski was ordering OPM to do

12 something. It was prospective injunctive relief that

13 Judge Kozinski was ordering. And it's prospective injunctive

14 relief that we seek from the Court today.

15 MR. HALL: Your Honor, I think I can respond to that

16 in one sentence or less. As I understood Ms. Lin's argument,

17 she says there's no waiver of sovereign immunity needed,

18 because there's no sovereign immunity to begin with, when

19 there's only a claim for affirmative relief, as opposed to

20 backward-looking relief.

21 I think that one-sentence answer to that argument is

22 the APA.

23 Why would the APA even exist, if there's no need to

24 waive sovereign immunity for affirmative, forward-looking

25 relief? That's all the APA provides for. The APA provides a



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1 waiver of sovereign immunity that applies to injunctive or

2 declaratory relief. It does not apply, obviously, as the Court

3 knows it does not. Waiver sovereign immunity as to

4 backward-looking claims for compensatory relief. So I don't

5 really know why we're having this argument right now, because

6 if the APA exists at all, then there has to be sovereign

7 immunity as to affirmative claims that needs to be waived, and

8 the APA is what did that.

9 THE COURT: Okay. You may have the last word on

10 this.

11 MS. LIN: Just on the issue of whether -- why does

12 the APA exist? The APA -- there's -- that waiver provision of

13 the APA was enacted to in order to confirm the exception that

14 was created in Larson; that is, that sovereign immunity doesn't

15 apply when the Government's acting outside its statutory and

16 constitutional authority.

17 So, sure, the converse, phrased in terms of waiver

18 rather than in terms of sovereign immunity, doesn't apply in

19 the first place, but it's the same result. And that's why

20 there aren't any cases citing Larson anymore: Because you

21 don't need to cite Larson most of the time. We only have that

22 because we have an administrative order here in which

23 Judge Kozinski asked the Government to do something.

24 THE COURT: Let's move on to Question Number 5.

25 I understand the Government position of



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1 constitutionality of DOMA's not properly brought before the

2 Court, but I am interested, because I did ask it to be briefed.

3 And the Court may differ with the defendants on this issue.

4 So how does the explanation provided by the

5 Government for passage of DOMA -- that is, consistency among

6 application of federal law to married couples -- provide a

7 rational basis for the law, where -- as I say here, where,

8 under DOMA, federal officials are now, for the first time,

9 being tasked with determining the validity of a particular

10 marriage that has been sanctioned under state law. How does

11 that promote consistency?

12 And I'm also mindful of the comment I made at the

13 beginning, from our President, that this statute is abhorrent,

14 and is an unnecessary imposition of what has been traditional

15 rules governing marriage and how states interact on the issues

16 of marriage. So I think one might say at least the President

17 had it right in that instance.

18 And what's your response?

19 MR. HALL: Your Honor, as an initial matter, two

20 things. First, as your Honor pointed out, we don't concede

21 that it's a properly asserted claim in this lawsuit; but

22 second, certainly the Administration does not agree with DOMA

23 as a policy matter.

24 THE COURT: But it's defending it, unlike the

25 Attorney General in the Prop. 8 case, correct?



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1 MR. HALL: Well, that's correct. I think, as we

2 pointed out in our supplemental brief on this issue, where the

3 Department believes there's a reasonable basis for defending a

4 statute, the Department will defend it. That's a matter of the

5 policy. And that's exactly what's happening here.

6 THE COURT: So the Administration feels there's an

7 appropriate basis to defend this statute?

8 MR. HALL: Well, your Honor, I'd have to clarify the

9 difference between the Administration and the Department.

10 I -- as little as I'm authorized to speak on behalf

11 of the Department, I'm authorized even less to speak on behalf

12 of the Administration. So I don't want there to be any

13 misunderstanding in that regard.

14 I think as to the Department of Justice's own

15 determination, that determination was that there is a

16 reasonable basis for -- upon which to defend the

17 constitutionality of DOMA.

18 THE COURT: So what is the answer to

19 Question Number 5?

20 MR. HALL: The answer to Question Number 5 is simply

21 this, your Honor. Under Heller versus Doe, this Court or any

22 other court can look at any -- any conceivable basis for

23 determining the constitutionality of a statute. It doesn't

24 have to be in the record. It doesn't have to be in the

25 Congressional Record. It could be conjecture.



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1 What we point out is, in 1996, when Congress first

2 became aware that there was -- there were the beginnings of a

3 national debate about the availability of same-sex marriage,

4 Congress reasonably could have looked at that and said, "Hold

5 on. There's going to be a debate on this. This debate needs

6 to be resolved at the state level, among the 50 states and

7 territories." I guess the District of Columbia would be one of

8 those as well. "So before that happens, we're going to freeze

9 the status quo."

10 And the status quo, in this instance, is: Every

11 state -- at that time, all 50 states and the District of

12 Columbia -- only recognized marriages between members of the

13 opposite sex. So that's the status quo that would need to be

14 frozen in order to adopt this wait-and-see approach, to watch

15 how the debate unfolds on a national level, state by state.

16 And that's exactly what's happened. Over the 14 to

17 15 years since the passage of DOMA, we've seen this debate kind

18 of framed in a variety of contexts at the state level, in the

19 enactment of legislation, in the enactment of amendments to

20 state constitutions, in litigation at the highest levels of

21 state court.

22 And so we're now at a position 15 years later where,

23 I believe, 44 states have -- do not recognize same-sex

24 marriage; six states and the District of Columbia do; a couple

25 of other states -- I believe New York and Maryland -- recognize



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1 there may be an occasion to come back and revisit the issue.

2 And I think we see right now there is pending

3 legislation in Congress that would address DOMA; that would

4 repeal DOMA. We don't know what's going to happen with that,

5 but I think that the bottom line is: In 1996 when DOMA was

6 enacted, it reasonably could have been enacted with the eye

7 toward maintaining the status quo, and just watching the debate

8 unfold before taking a further step.

9 THE COURT: All right. Counsel.

10 MS. PIZER: Yes, your Honor.

11 Well --

12 THE COURT: Could you restate your appearance, so the

13 record is clear?

14 MS. PIZER: Yes, of course. Jennifer Pizer, with

15 Lambda Legal Defense and Education Fund.

16 Well, your Honor, as Judge Tauro explained at length

17 in the Gill decision, DOMA creates an inconsistency at the

18 federal level that we've never had, which creates

19 administrative burdens as well as discrimination.

20 In the history of this country, family law has been

21 recognized as the province of the state. And, for federal

22 purposes, the government -- federal government has only asked

23 if a person is married or not married. So that was consistent.

24 And the federal government didn't get enmeshed in the great

25 differences and, often, social dispute about the roles of



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1 marriage; most notably, perhaps, some states prohibiting

2 interracial marriages; others not; but the federal government

3 never got into that issue.

4 Here, Congress passed a law that for the first time

5 took married people, and divided it into two groups, thereby

6 creating a burden on the government of determining whether a

7 married person is married for federal purposes or not, and, of

8 course, imposing significant burdens on the class of married

9 people who are not treated as married for federal purposes:

10 Lesbians, and gay men. So it does not -- and, in fact, instead

11 of maintaining consistency, it created inconsistency,

12 difficulty at the federal level.

13 And, in this kind of a situation, Counsel referred to

14 Heller versus Doe, but even under Heller, and the more relevant

15 case, Romer versus Evans, when the federal government enacts a

16 law, or when state or federal government enacts a law, and

17 there are stated purposes that show antipathy to a group, a

18 series of illegitimate reasons for the government action, as

19 was true here, with DOMA, it's proper for the Court to consider

20 other possibilities, but also be aware that animus may well be

21 the purpose: The targeting of a group, the separating of a

22 group for different treatment, to serve no legitimate purpose.

23 And that's certainly what has gone on here.

24 THE COURT: Let me ask you. Of course, you're

25 answering this question. Because the Court asked that, you're



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1 obliged to answer it. Is the issue of constitutionality of

2 DOMA properly before this Court in this lawsuit?

3 MS. PIZER: Well, it is, to the extent that the

4 Government is asserting sovereign immunity. And it is proper

5 for the Court, in looking at that defense, to consider whether

6 the Government is exceeding its constitutional authority, as my

7 co-counsel explained. Likewise, if the Government is exceeding

8 its statutory authority, it is proper for the Court to consider

9 that.

10 I think it's also true that, if the -- as co-counsel

11 said, if the Court believes that the pleadings should be

12 amended, that could certainly be done. That's not necessary

13 here. On behalf of Ms. Golinski, this issue was briefed in the

14 EDR tribunal. Judge Kozinski determined that there was a

15 serious constitutional question presented, but it could be

16 avoided. Judge Reinhardt found otherwise in the Levinson

17 matter, but there was -- it was briefed. It was presented.

18 And it is, in fact, part of this case. OPM chose not to

19 participate in that other proceeding. It's made its arguments

20 now.

21 So I believe the issue is before the Court, and no

22 further briefing would be necessary for the Court to reach

23 that, if you determine that that's proper. It's certainly not

24 necessary here, though, but it would be proper.

25 THE COURT: All right. Anything further you want to



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1 say?

2 MR. HALL: I think, your Honor, I'll make a couple of

3 points.

4 First, as to Counsel's point that the federal

5 government hadn't gotten enmeshed in the definition of marriage

6 prior to the passage of DOMA, I think that's more a matter of

7 just kind of historical happenstance than anything else.

8 I think Counsel said that for the first time, with

9 the passage of DOMA, Congress divided marriage into two groups.

10 Well, I would submit that that's incorrect.

11 I think that, as a matter of fact, in 1996, prior to

12 the passage of DOMA, marriage was, in a de facto way, divided

13 into two groups. And Congress said, "Look. We need to

14 preserve that distinction for the time being to allow an

15 incremental approach toward how Congress will ultimately

16 respond to this developing national debate."

17 Now, as to the second issue, which is more -- closer

18 to the heart of this case: Is the issue of DOMA -- DOMA's

19 constitutionality properly before the Court? -- I think whether

20 it was briefed and argued in front of the EDR panel is one

21 thing, but it's not the determinative factor at all. In fact,

22 it's irrelevant.

23 The determinative factor is: What is the basis for

24 Plaintiff's claim? What is the basis for Plaintiff's theory of

25 the Government's liability in this case?



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1 And that is simply this: Her argument that OPM is

2 obligated under 1346 -- Section 1346 -- to comply with the

3 directives in Judge Kozinski's November 2009 order.

4 And, as we've pointed out today and as we've pointed

5 out in our briefs, one, there's no waiver of sovereign

6 immunity; and, two, even if the Court goes beyond or looks past

7 the question of sovereign immunity, there's no statutory

8 delegation of authority to the EDR tribunal to bind an

9 executive agency -- in this case, OPM -- in its administration

10 of the FEHBA.

11 THE COURT: All right. Anything further on that?

12 MS. PIZER: Yes, your Honor, just briefly.

13 As Judge Tauro said in the Gill case, maintaining the

14 status quo is a means; it's not an end.

15 There needs to be legitimate reason for the

16 Government to act; a purpose; a legitimate purpose behind a

17 law. And there isn't one here.

18 And I would submit, your Honor, that in mandamus, the

19 question is whether there's an established duty to act. If

20 your Honor determines that there are various legal reasons, in

21 addition to what Judge Kozinski found or separate what from

22 what he found, the question is whether there's a duty to act.

23 And if there's a duty to act, then mandamus would be

24 appropriate.

25 THE COURT: All right. Anything further?



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1 MR. HALL: I think that pretty much sums it up for

2 the Government, your Honor.

3 THE COURT: Anything further that you want to add

4 that has not been appropriately raised in these proceedings,

5 and that was not covered in the papers? My --

6 MS. PIZER: One last point. Your Honor mentioned in

7 the questions that the action here -- the denial of benefits or

8 the failure to provide benefits for a same-sex spouse -- can be

9 seen as sex discrimination. That's true.

10 And, for the same reason, when looking at the

11 constitutional side, heightened scrutiny is appropriate when

12 there's sex discrimination at work. I just wanted to reiterate

13 that point.


15 MS. LIN: I just wanted to make one quick point,

16 your Honor.

17 During much of this oral argument, we've assumed that

18 sovereign immunity is the right framework to be looking at

19 this.

20 Sovereign immunity, though, as we've argued in the

21 briefs, is not -- it's not something that's ever been applied

22 where one administrative entity has ordered another

23 administrative entity of the federal government to do

24 something. It's just -- sovereign immunity is something that

25 protects the Government from -- from suits by private citizens,



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1 essentially. It's not something that protects the Government

2 from itself.

3 And the proper inquiry, where one administrative

4 agency's claiming authority that another administrative agency

5 says is inappropriate, is whether -- is what the statute says.

6 Who has authority?

7 And here, Section 332(d) gives Judge Kozinski and the

8 Judicial Council the authority to issue any orders necessary

9 and appropriate to the administration of justice within the

10 Circuit. And I know that OPM has focused a lot on that phrase,

11 "within the Circuit," but that's a phrase that restricts the

12 subject matter of what Judge Kozinski and what the

13 Judicial Council can order. It's a clear delegation. There's

14 no limit on the binding force of orders issued by the

15 Judicial Council.

16 In fact, case law we've cited in our briefs has

17 stated that those orders can bind former employees of the

18 Judiciary who no longer -- who no longer work for any

19 governmental entity at all.

20 And if that's the case, it's hard to understand why

21 such orders could not, by the same token, bind an Executive

22 agency. So I think it's important to recognize how far

23 reaching OPM's position is in this case.

24 You know, by OPM's logic, virtually any judicial

25 decision regarding an administrative matter is something that's



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1 open to Executive veto. You know, here we're talking about the

2 EDR process, but the Judicial Council also controls

3 judicial-misconduct allegations, for example. So, by OPM's

4 logic, you know, the Judicial Council could clear a judge of

5 wrongdoing, and if the Executive Branch disagrees, the

6 Executive Branch can just cut off his paycheck, cut off health

7 benefits, and the U.S. Marshals won't let the judge back into

8 the building. There's not a thing the Judicial Branch can

9 really do about that.

10 That's -- or even to take a more mundane example,

11 perhaps, the Ninth Circuit recently -- the Ninth Circuit

12 recently approved experimental use of video cameras in the

13 courtroom. What if the U.S. Marshals decided that video

14 cameras would be allowed past security only in cases that they

15 deemed uncontroversial?

16 By OPM's logic, there's really nothing that the

17 Executive could do about it -- I mean, nothing that the

18 Judiciary could do about that. And the Executive could simply

19 claim to be immune from the Judiciary, which is really -- it's

20 just really not the right framework for analyzing these issues.

21 THE COURT: Do you want to respond to that?

22 MR. HALL: I mean, your Honor, I hesitate to use this

23 term, but --

24 THE COURT: Go on.

25 MR. HALL: -- it's really a parade-of-horribles type



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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


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