Case3:10-cv-00257-JSW Document17 Filed02/02/10 Page1 of 6

1 MICHAEL F. HERTZ
Deputy Assistant Attorney General
2 JOSEPH P. RUSSONIELLO
United States Attorney
3 SUSAN K. RUDY
Assistant Branch Director
4 STEVEN Y. BRESSLER
Trial Attorney
5 United States Department of Justice
Civil Division, Federal Programs Branch
6
P.O. Box 883
7 Washington, D.C. 20044
Telephone: (202) 305-0167
8 Facsimile: (202) 616-8470
Email: Steven.Bressler@usdoj.gov
9
Attorneys for Defendant
10 the U.S. Office of Personnel Management
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 OAKLAND DIVISION
14 KAREN GOLINSKI )
) No. C 4:10-00257-SBA
15 Plaintiff, )
)
16 v. ) DEFENDANT’S OPPOSITION TO
) PLAINTIFF’S EX PARTE
17 THE UNITED STATES OFFICE OF ) APPLICATION FOR ORDER
PERSONNEL MANAGEMENT, ) SHORTENING TIME
18 )
Defendant. )
19 )
____________________________________ )
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Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”
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1 Defendant the U.S. Office of Personnel Management (“OPM”) respectfully

2 submits its opposition to plaintiff’s motion to shorten the time for defendant to respond
3 to, and for the Court to consider, plaintiff’s motion for preliminary injunction.
4 BACKGROUND
5 Plaintiff Karen Golinski, a staff attorney of the Ninth Circuit, seeks a preliminary
6 injunction and an order of mandamus against OPM premised on what plaintiff asserts is the
7 binding nature of administrative orders issued by the Honorable Alex Kozinski, Chief Judge of
8 the Ninth Circuit Court of Appeals, in his capacity as an administrative hearing officer under the
9 Ninth Circuit Employee Dispute Resolution (“EDR”) Plan. Thus, this case calls upon the Court
10 to review the nature of the orders rendered by Chief Judge Kozinski.1
11 In 1998, the Judicial Council of the Ninth Circuit approved an EDR plan that grants
12 circuit employees certain substantive rights and sets out a procedure for the enforcement of those
13 rights. See U.S. Court of Appeals for the Ninth Circuit, Employment Dispute Resolution Plan
14 (rev. ed. 2000) (“EDR plan”), Exhibit A to plaintiff’s Motion for Preliminary Injunction. The
15 plan sets forth a detailed administrative process for the resolution of employment disputes
16 involving circuit employees. See id. at 1. After mandatory counseling and mediation, an
17 employee with an unresolved grievance may file a formal written complaint with the chief judge
18 of the relevant court. Id. at 1, 3, 5-7. The respondent identified in an EDR complaint must in all
19 cases be “the employing office that would be responsible for redressing, correcting or abating the
20 violations(s) alleged in the complaint.” Id. In the event that the hearing officer finds a violation
21 of a substantive right protected by the plan, he may award “a necessary and appropriate remedy,”
22 including relief under the Back Pay Act, 5 U.S.C. § 5596. EDR plan at 9-10.
23 Plaintiff filed a complaint under the Ninth Circuit EDR Plan on October 2, 2008, seeking
24 relief from the decision of the Administrative Office of the U.S. Courts (“AOUSC”) denying
25
1
The chief judge of a circuit presides over its judicial council, 28 U.S.C. § 332(a)(1),
26
which is established within each federal appellate court to “make all necessary and appropriate
27 orders for the effective and expeditious administration of justice within its circuit,” id.
§ 332(d)(1). Orders of the judicial council are binding on “[a]ll judicial officers and employees
28 of the circuit,” who “shall promptly carry [those orders] into effect.” Id. § 332(d)(2).

Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”
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1 enrollment of her spouse in the Federal Employees Health Benefits Program (“FEHBP”).
2 Compl. ¶ 16. Chief Judge Kozinski heard the EDR complaint and entered orders on November
3 24, 2008, and January 13, 2009. Compl. ¶ 17. The Orders required the Director of the AOUSC
4 to submit plaintiff’s enrollment form to her health insurance carrier. Id. The AOUSC complied.
5 Id. ¶ 18. However, OPM, acting in response to an inquiry from plaintiff's insurance carriers, and
6 in its statutorily assigned capacity as the government-wide administrator of the FEHBP, see 5
7 U.S.C. §§ 8901 et seq., advised the AOUSC and plaintiff’s insurance carriers that the Defense of
8 Marriage Act, 1 U.S.C. § 7 (“DOMA”), forecloses enrolling plaintiff’s same-sex spouse in the
9 FEHBP. See Compl. Ex. C (Attachment A, at 1). This was consistent with OPM’s long-
10 standing guidance to federal agencies that, as a consequence of DOMA, “same-sex marriages
11 cannot be recognized for benefit entitlement purposes under . . . [the FEHBP].” OPM, Benefits
12 Administration Letter No. 96-111, at 3 (Nov. 15, 1996), available at
13 http://www.opm.gov/retire/pubs/bals/1996/96-111.pdf. On November 19, 2009, Chief Judge
14 Kozinski directed OPM to “rescind its guidance or directive to the [insurance carrier] that
15 [plaintiff’s] wife is not eligible to be enrolled as her spouse . . . because of her sex or sexual
16 orientation” and to permit the enrollment. Compl. Ex. C at 15. On December 22, 2009, Chief
17 Judge Kozinski issued another order in the EDR proceeding, stating that his EDR orders were
18 “final and preclusive·on all issues decided therein as to [the AOUSC and OPM].” In re Golinski,
19 No. 09-80173, Docket Entry No. 23, at 1.
20 On January 20, 2010, plaintiff filed her Complaint seeking an order of mandamus
21 requiring OPM to abide by Chief Judge Kozinski’s orders under the EDR Plan. See Compl. One
22 week later, on January 26, 2010, plaintiff filed a Motion for Preliminary Injunction. Docket
23 Entry No. 8.
24 ARGUMENT
25 Under this Court’s ordinary procedures, the plaintiff’s motion for preliminary injunction
26 would be heard on a date and time that is available on the Court’s calendar. According to
27 information published on the Court’s website, the Court has informed litigants that “[t]here are
28 no dates available for civil motions” before March 23, 2010, at the earliest. The plaintiff’s

Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”
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1 motion to shorten time asks this Court to depart from its ordinary procedures and to hold a
2 hearing on February 23, 2010, instead of the currently-noticed date of June 15, 2010. Plaintiff’s
3 proposed schedule would provide the Court with only one week to consider the parties’ briefs
4 prior to hearing plaintiff’s motion, and substantially reduce defendant’s time to prepare its
5 opposition.
6 Plaintiff’s claims for mandamus and a preliminary injunction raise issues of apparent first
7 impression, at least one of which Chief Judge Kozinski has described as concerning separation of
8 powers, that is, whether a judge acting as an EDR hearing officer in a proceeding to which the
9 Executive Branch is not a party can issue administrative orders that bind an Executive agency.
10 Defendant will be prejudiced by being forced to prepare its opposition on the shortened schedule
11 that plaintiff advocates, and it is in the public interest for OPM to be accorded sufficient time to
12 fully prepare its response.
13 Likewise, it is in the public interest for the Court to have sufficient time to consider this
14 matter. The Court, of course, is more fully informed of the competing demands on its time than
15 are counsel for the parties. A review of the Court’s calendar, as published on the Court’s
16 website, however, reveals that those competing demands are substantial. The movants in each of
17 the cases with motions previously noticed before the Court, presumably, followed the Court’s
18 regular procedures in order to obtain a hearing date for their motions.
19 Local Rule 6-3(a) requires a party who moves to shorten time to identify the “substantial
20 harm or prejudice” that would result if its motion is not granted. Defendant respectfully submits
21 that plaintiff’s application does not meet this standard. Plaintiff alleges that she continues to
22 suffer discrimination in the terms of her employment that cannot be remedied, Pl. Ex Parte App.
23 1-2, but there is no presumption of substantial or irreparable harm applied in discrimination
24 cases. Cf., e.g., Stanley v. Univ. of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994)
25 (plaintiff claiming discrimination under the Equal Pay Act who could recover money damages
26 and back pay for the loss of her job had an adequate remedy at law and could not demonstrate
27 irreparable injury); Duke v. Langdon, 695 F.2d 1136, 1137 (9th Cir. 1983) (Title VII plaintiff
28 alleging unlawful discrimination in her termination failed to demonstrate irreparable injury

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1 because she could regain her job with back pay if she prevailed on the merits). Plaintiff also
2 asserts that it is possible her family will face increased health care costs, Pl. Ex Parte App. 2, but
3 this alleged harm has not occurred and may never occur. Cf. Caribbean Marine Servs. Co. v.
4 Baldrige, 844 F.2d 668 (9th Cir. 1988) (“a plaintiff must demonstrate,” not merely predict,
5 “immediate threatened injury as a prerequisite to preliminary injunctive relief.” (emphasis in
6 original)). Moreover, plaintiff has sought and received back pay in the EDR process to cover the
7 cost of health insurance for her spouse. See In re Golinski, No. 09-80173 (9th Cir. EDR Plan),
8 Docket Entry No. 32 (awarding $6,272 in back pay to Ms. Golinski). It is not clear why she
9 cannot seek relief for future costs incurred. At a minimum, such relief mitigates any harm
10 plaintiff may suffer while her motion is heard in the ordinary course.
11 Plaintiff relies on Chief Judge Kozinski’s findings in the EDR proceeding that plaintiff
12 suffers harm, but it bears noting that plaintiff has neither sought nor received in that
13 administrative proceeding the expedition she seeks here. The EDR process began almost 16
14 months ago, on October 2, 2008. That process has continued since that time, with orders issued
15 in November 2008 and January and November 2009. Chief Judge Kozinski’s final order
16 concerning OPM was issued on December 22, 2009. Compl. ¶ 23 & Exhibit D thereto. On
17 January 5, 2010, Chief Judge Kozinski set a nine-week schedule for non-party Blue Cross
18 Association and Ms. Golinski to brief Blue Cross’s administrative appeal of the November 19,
19 2009 EDR Order. See In re Golinski, No. 09-80173 (9th Cir. EDR Plan), Docket Entry No. 27.
20 Most recently, the parties sought and Chief Judge Kozinski granted a stay of those proceedings
21 pending the outcome of this civil action. Id. Docket Entry No. 38.2 Plaintiff cites to no recent
22 event or change in circumstances that demonstrates any greater need for expedition in this Court
23 than was afforded in the administrative process since October, 2008.
24 Moreover, plaintiff waited four weeks from Chief Judge Kozinski’s December 22, 2009
25 Order to file her Complaint, and another week to seek emergency relief. Counsel for plaintiff,
26
2
27 When plaintiff sought to stay the EDR proceedings on January 29, 2010 (id. Docket Entry
No. 36), she did not, of course, know whether this Court would reschedule its hearing on
28 plaintiff’s preliminary injunction motion from the currently-noticed date of June 15, 2010.

Defendant’s Opposition to Plaintiff’s “Ex Parte Application For Order Shortening Time”
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1 who also represents plaintiff in the EDR proceeding, had that time available to prepare plaintiff’s
2 legal arguments. Defendant and the Court should also have adequate time in this matter, and
3 plaintiff’s delay counsels against expedition. Compare Oakland Tribune Inc. v. Chronicle
4 Publishing Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (delay before seeking injunction “implies a
5 lack of urgency and irreparable harm.”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C.
6 Cir. 1976) (delay of 44 days called “inexcusable”); Nat’l Council of Arab Ams. v. City of New
7 York, 331 F. Supp. 2d 258, 265-66 (S.D.N.Y. 2004) (delay in plaintiff’s motion for preliminary
8 injunction, filed one and one-half months from city’s decision, precluded relief); City of Tempe
9 v. FAA, 239 F. Supp. 2d 55, 65 n.13 (D.D.C. 2003) (delay of two months undermined case for
10 preliminary injunction); 11A Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE :
11 CIVIL 2D § 2946 (“Any unnecessary delay . . . may be viewed as inconsistent with a claim that
12 plaintiff is asserting great injury . . .”).
13 CONCLUSION
14 For all of the foregoing reasons, the Court should deny plaintiff’s Ex Parte Application
15 for Order Shortening Time.
16 Dated February 2, 2010
17 Respectfully Submitted,
18 MICHAEL F. HERTZ
Deputy Assistant Attorney General
19
JOSEPH P. RUSSONIELLO
20 United States Attorney
21 SUSAN K. RUDY
Assistant Branch Director
22
/s/ Steven Y. Bressler
23 STEVEN Y. BRESSLER D.C. Bar #482492
Trial Attorney
24 U.S. Department of Justice
Civil Division, Federal Programs Branch
25 P.O. Box 883
Washington, D.C. 20044
26 (202) 305-0167 (telephone)
(202) 616-8470 (fax)
27
Attorneys for Defendant
28

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