Lambda Sues OPM Over Benefit Denial

[UPDATE: Thanks to Howard at How Appealing and Elie at Above the Law for the links, and be sure to check out my follow-up post on the differences between this case and the earlier filed Gill case in Massachusetts.]

One the one-year anniversary of his being sworn in as President, President Barack Obama’s human resources department — the Office of Personnel Management — has been sued for refusing to give health care benefits to the same-sex partner of a federal court employee.

lambda_legal_logoLambda Legal today announced that it has sued OPM in federal court over OPM’s denial of same-sex partner health insurance coverage to Karen Golinski, a federal court employee.  Ninth Circuit Court of Appeals Judge Alex Kozinski ordered that the benefits be given to her this past November after initially having concluded earlier in the year that she was entitled to the benefits under current law.  He made this determination in his role as the chief administrator of the Ninth Circuit courts.

Golinski is legally married in California to Amy Cunninghis, where Golinski has worked for the court of appeals for the past 18 years.  After marrying Cunninghis in Auguest 2008, Golinski filed the necessary paperwork to add Cunninghis to her family health care plan.

In January 2009, Judge Kozinski found that the Defense of Marriage Act did not preclude the “member of family” — as used in the Federal Employees Health Benefit Act — from including Golinski’s wife.  This determination was not made in his traditional role as an appellate judge hearing pending cases, but in his role as the court’s administrator under the Employment Dispute Resolution Plan adopted in the circuit.  As such — and this is an important distinction glossed over in much coverage of this dispute — this was an administrative proceeding, not a court trial.

OPM, however, responded to the news by ordering Golinski’s insurer not to include her wife in the coverage on the grounds that to do so would violate DOMA and, thus, the FEHBA.

In November, Kozinski issued a strongly worded opinion, declaring that OPM and, by extension, the Executive Branch, had no authority to overrule his determination of the Judicial Branch’s interpretation of those laws as applied to its employees.  He again ordered Golinski’s coverage to be expanded and ordered that OPM “cease at once its interference” with the order.  (I discussed this, and a similar dispute, here.)

When OPM neither appealed nor complied with Kozinski’s November order, Kozinski issued a “Final Order” on December 22, 2009, that authorized Golinski to take further action to enforce his previous orders.  It was at this point that Golinski was authorized — under that Employment Dispute Resolution Plan — to file today’s Complaint.  The Complaint asks that the court order OPM to “rescind[] its prior guidance” to Golinski’s insurer preventing the coverage expansion and “ceas[e] further interference.”

I have made the Complaint available here (pdf) at Law Dork.

[UPDATE: For a discussion of the differences between this case and the earlier-filed Gill challenge in Massachusetts, see "Gill v. Golinski: What’s the Difference?"]

From Lambda’s news release announcing the lawsuit:

“It’s a bit shocking that we’ve reached this point with the Obama Administration.  Where is our ‘fierce advocate’ for LGBT rights?” said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal and co-counsel for Golinski.

. . . .

“OPM’s refusal to give their analysis – even informally – is the most telling.  If they are confident Judge Kozinski is wrong, why didn’t they tell us, and him, why they think so?  Simply defying his orders is a slap in the face to Karen and the entire LGBT community and bizarrely disrespects the judiciary.  At a minimum, federal courts have the power and responsibility to end discrimination against their own employees.  The whole point of the court’s EDR tribunal is to give judicial employees the same meaningful recourse as other federal employees.  OPM has said nothing to suggest the Chief Judge’s reasoning on this point is mistaken,” Pizer added.

Read my in-depth discussion of this issue in my previous post, “The OPM-Ninth Circuit Dispute, Disentangled.”

The full release can be found below the jump.

* * * * *

==============================

LAMBDA LEGAL NEWS RELEASE, January 20, 2010

==============================

Lambda Legal Sues U.S. Office of Personnel Management on Behalf of Lesbian
Federal Court Employee Whose Wife Was Denied Insurance

“At a minimum, federal courts have the power and responsibility to end
discrimination against their own employees.”

(San Francisco, January 20, 2010) — Lambda Legal today filed suit against
the federal government in the U.S. District Court for the Northern District
of California.  The lawsuit requests an order directing the U.S. Office of
Personnel Management (OPM) to obey prior rulings by Ninth Circuit U.S.
Court of Appeals Chief Judge Alex Kozinski awarding spousal health
insurance benefits to Ninth Circuit judicial attorney Karen Golinski.

Kozinski ruled in January  2009, that denying Golinski spousal health
insurance for her wife, Amy Cunninghis, was illegal discrimination.  He
ordered the Administrative Office of the U.S. Courts to submit Golinski’s
health benefits election form to her insurer, Blue Cross/Blue Shield.  OPM
disagreed with Kozinski’s order and told Blue Cross not to comply.

“It’s a bit shocking that we’ve reached this point with the Obama
Administration.  Where is our ‘fierce advocate’ for LGBT rights?” said
Jennifer C. Pizer, National Marriage Project Director for Lambda Legal and
co-counsel for Golinski.

Last November, Kozinski issued a further ruling explaining that he has the
authority, under both the Ninth Circuit’s Employment Dispute Resolution
(EDR) Plan and the constitutional separation of powers doctrine, to
interpret laws governing the rights of judicial employees.  His order gave
OPM thirty days to comply or appeal.  The controversy drew heightened
national attention when, instead of doing either, OPM issued a press
release saying the order was not binding and that the U.S. Department of
Justice had advised OPM not to comply in light of the 1996 so-called
“Defense of Marriage Act” (DOMA).  When OPM failed to appeal by the
December deadline, Kozinski held that his prior rulings had become
conclusive and binding against OPM.

“OPM’s refusal to give their analysis – even informally – is the most
telling.  If they are confident Judge Kozinski is wrong, why didn’t they
tell us, and him, why they think so?  Simply defying his orders is a slap
in the face to Karen and the entire LGBT community and bizarrely
disrespects the judiciary.  At a minimum, federal courts have the power and
responsibility to end discrimination against their own employees.  The
whole point of the court’s EDR tribunal is to give judicial employees the
same meaningful recourse as other federal employees.  OPM has said nothing
to suggest the Chief Judge’s reasoning on this point is mistaken,” Pizer
added.

The lawsuit asks the federal district court to order OPM to rescind its
instruction to Golinski’s insurer, Blue Cross/Blue Shield, not to enroll
Cunninghis in Golinski’s family health insurance plan so the coverage for
Cunninghis can begin.

“The timing of this lawsuit is painfully ironic,” said Golinski.  ”It falls
between the first anniversaries of Judge Kozinski’s original ruling in my
favor and the new Administration’s arrival in Washington with its promise
of positive change for lesbian and gay Americans.  I deeply appreciate the
commitment of my employer – the Ninth Circuit – to fairness and equality,
and I wish this lawsuit were unnecessary.”

Lambda Legal’s Pizer represents Karen Golinski in this matter together with
James McGuire and Rita Lin of Morrison & Foerster LLP.

The case is Golinski v. United States Office of Personnel Management.
###

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.