Case3:10-cv-00257-JSW Document96 Filed02/28/11 Page1 of 5

1 MICHAEL F. HERTZ
Deputy Assistant Attorney General
2 MELINDA HAAG
United States Attorney
3 SUSAN K. RUDY
Assistant Branch Director
4 CHRISTOPHER R. HALL
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) 514-4778
8 Facsimile: (202) 616-8470
Email: Christopher.Hall@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 SAN FRANCISCO DIVISION
14 KAREN GOLINSKI )
) No. C 4:10-00257-JSW
15 Plaintiff, )
)
16 v. ) DEFENDANTS’ RESPONSE TO
) ORDER TO SHOW CAUSE
17 THE UNITED STATES OFFICE OF ) OF FEBRUARY 23, 2011
PERSONNEL MANAGEMENT and )
18 JOHN BERRY, )
)
19 Defendants. )
)
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21 )
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Defendants’ Response to Order to Show Cause of February 23, 2011
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1 As to the questions posed by the Court’s Order to Show Cause of February 23, 2011,
2 Defendants reiterate at the outset that the issue of the constitutionality of Section 3 of the
3 Defense of Marriage Act (“DOMA”) need not be reached to resolve this case. As we have
4 previously stated, the Employee Dispute Resolution (“EDR”) Plan order at issue here is not
5 enforceable through mandamus under 28 U.S.C. § 1361. As Defendants stated in their
6 Supplemental Brief in Response to Court’s Order of October 15, 2010 [Docket No. 76], “[f]or an
7 order to be enforced through the extraordinary remedy of mandamus, it must at a minimum
8 impose a clear duty to execute a ministerial act, one that does not involve the exercise of
9 judgment. The order at issue here – entered by the Honorable Alex Kozinski, Chief Judge for the
10 United States Court of Appeals for the Ninth Circuit, not in his Article III capacity but rather in
11 his administrative capacity as an EDR hearing officer – did not impose a ministerial obligation
12 upon the Office of Personnel Management (“OPM”) and therefore cannot be enforced through
13 mandamus on its own terms.”
14 Defendants nonetheless respectfully submit the following responses to the questions
15 regarding the issue of the constitutionality of DOMA posed by the Court in its Order to Show
16 Cause of February 23, 2011 [Docket No. 94].
17 I. Question 1: Does the OPM intend to reassess its position on its original instruction
to Plaintiff’s insurer to decline to extend benefits to her same-sex spouse?
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As reflected in the Statement of the Attorney General on Litigation Involving the Defense
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of Marriage Act (“Statement”), referenced in the Court’s Order and submitted by Plaintiff in a
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Notice of Supplemental Authority [Docket No. 93, Exhibit A(1)], “Section 3 of DOMA will
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continue to remain in effect unless Congress repeals it or there is a final judicial finding that
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strikes it down, and the President has informed me that the Executive Branch will continue to
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enforce the law.” Statement at 2. Moreover, as reflected in the Letter of the Attorney General to
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the Honorable John A. Boehner, Speaker of the U.S. House of Representatives (“Letter”)
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[Docket No. 93, Exhibit A(2)], “[t]o that end, the President has instructed Executive agencies to
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continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take
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care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the
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Defendants’ Response to Order to Show Cause of February 23, 2011

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1 judicial branch renders a definitive verdict against the law’s constitutionality.” Letter at 5.
2 Pursuant to the instructions of the President, OPM will continue to enforce Section 3 of DOMA
3 until it is repealed or there is a final judicial finding striking it down.
4 II. Question 2: How does the Executive reconcile the position that it intends to enforce
a statute that it has affirmatively declared to be unconstitutional and deemed
5 inappropriate to defend?
6 As noted above, while the President has determined that the Executive Branch will not
7 defend the constitutionality of Section 3 of DOMA, he has instructed agencies to continue to
8 comply with Section 3 “consistent with the Executive’s obligation to take care that the laws be
9 faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a
10 definitive verdict against the law’s constitutionality.” Letter at 5. As the Attorney General has
11 stated, “[t]his course of action respects the actions of the prior Congress that enacted DOMA,
12 and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Id.
13 Moreover, through the Attorney General, the Executive Branch has notified Congress pursuant to
14 28 U.S.C. 530D of the President’s determination that Section 3 of DOMA is unconstitutional and
15 his decision not to defend the statute. Letter at 1. The Attorney General indicated to Congress
16 that “[o]ur attorneys will also notify the courts of our interest in providing Congress a full and
17 fair opportunity to participate in the litigation in those cases,” including this one. Id. at 6. See
18 also Letter from Ronald Weich, Assistant Attorney General, U.S. Dep’t of Justice, to the Hon.
19 John A. Boehner, Speaker, U.S. House of Representatives, Feb. 25, 2011 (Attached at Tab 1).
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Defendants’ Response to Order to Show Cause of February 23, 2011

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1 III. Question 3: Should the Court remand this matter to the Ninth Circuit’s
administrative process for proper adjudication of Plaintiff’s access to benefits for
2 her wife?
3 As Defendants have explained in prior submissions, the authority to administer the
4 Federal Employees Health Benefits Program (“FEHBP”) has been statutorily conferred upon
5 OPM under the Federal Employees Health Benefits Act of 1959 (“FEHBA”); that authority
6 encompasses all Federal employees, including those of the Judicial Branch. See Transitional
7 Learning Cmty. at Galveston v. OPM, 220 F.3d 427, 429 (5th Cir. 2000); Kobleur v. Group
8 Hospitalization & Med. Servs., 954 F.2d 705, 709 (11th Cir. 1992). And, as Defendants have
9 previously explained, there is no grant of authority to the federal courts that would allow an EDR
10 panel to issue binding directives to OPM in the latter’s statutorily delegated administration of the
11 FEHBP. Thus, a remand to the EDR process for the purposes of directing OPM in its
12 administration of the FEHBP would be wholly inappropriate and ineffectual.
13 IV. Question 4: On what basis can OPM defend its position to decline to extend benefits
in a case in which such declination was based on the defense of unconstitutional
14 legislation?
15 As discussed above, the President has determined that Executive agencies will continue
16 to enforce Section 3 of DOMA, a course of action that accords appropriate deference to the
17 Congress that enacted DOMA and allows the judiciary to be the final arbiter of DOMA’s
18 constitutionality, as stated by the Attorney General. Moreover, as discussed, the Executive
19 Branch has fulfilled its statutory obligation to notify Congress of the decision not to defend the
20 statute and is committed to urging the courts to provide Congress with a full and fair opportunity
21 to participate in the litigation of DOMA cases.
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Defendants’ Response to Order to Show Cause of February 23, 2011

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1 Dated: February 28, 2011 Respectfully Submitted,

2 MICHAEL F. HERTZ
Deputy Assistant Attorney General
3
MELINDA HAAG
4 United States Attorney
5 SUSAN K. RUDY
Assistant Branch Director
6
/s/ Christopher R. Hall
7 CHRISTOPHER R. HALL
D.C. Bar No. 468827
8 Trial Attorney
U.S. Department of Justice
9 Civil Division, Federal Programs Branch
P.O. Box 883
10 Washington, D.C. 20044
(202) 514-4778 (telephone)
11 (202) 616-8470 (fax)
12 Attorneys for Defendants
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Defendants’ Response to Order to Show Cause of February 23, 2011

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Pending cases where the Defense of Marriage Act is being challenged:

Bishop v. United States, No. 04-848 (N.D. Okla.)

• No impending deadlines, but motion to dismiss pending decision.

Commonwealth of Massachusetts v. U.S. Dep’t of Health and Human Services, et al., No. 09-
11156 (D. Mass), on appeal, No. 10-2204 (1st Cir.), consolidated with Gill v. OPM, Nos. 10-
2207 & 10-2214.
• Appellees’ brief for plaintiffs due March 1, 2011
• Consolidated reply brief for defendants due April 4, 2011

Dragovich, et al. v. Department of the Treasury, et al., No. 10-1564 (N.D. Cal.)
• Defendants’ discovery on class certification due February 28, 2011
• Plaintiff’s motion for class certification due April 14, 2011
• Defendants’ response to motion for class certification due May 12, 2011
• Plaintiffs’ reply in support of motion for class certification due May 26, 2011
• Hearing on class certification scheduled for June 9, 2011
• Discovery closes on September 30, 2011
• Defendants’ summary judgment brief due October 6, 2011
• Plaintiffs’ opposition/cross motion for summary judgment due November 3, 2011
• Defendants’ reply/opposition to cross motion due December 1, 2011
• Plaintiffs’ reply due December 22, 2011
• Hearing on the cross motions for summary judgment scheduled for January 5, 2012

Gill, et al. v. Office of Personnel Management, et al., No. 09-10309 (D. Mass.), on appeal, Nos.
10-2207 & 10-2214 (1st Cir.), consolidated with Commonwealth of Massachusetts v. HHS, No.
10-2204.
• Plaintiff’s brief as appellee due March 1, 2011
• Consolidated reply brief of defendants due April 4, 2011

Golinski v. Office of Personnel Management, No. 10-00257 (N.D. Cal.) 1

• Response to court inquiry due February 28, 2011

Hara v. Office of Personnel Management, No. 09-3134 (Fed. Cir.)

• No impending deadlines

Lui v. Holder, No. 09-72068 (9th Cir.)

• Case stayed pending administrative action and no impending deadlines
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Pedersen et al. v. OPM et al., No. 10-CV-1750 (D. Conn.)

• Defendants’ motion to dismiss due March 11, 2011
• Plaintiffs’ opposition and cross-motion for judgment on pleadings or summary
judgment due March 31, 2011
• Defendants’ reply and opposition to plaintiffs’ brief due May 16, 2011.
• Plaintiffs’ reply brief due June 20, 2011

Torres-Barragan v. Holder, No. 10-55768 (9th Cir.), consolidated with Nos. 08-73745 & 09-
71226 for purposes of calendaring
• Defendant’s brief as appellee due on March 28, 2011

Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir.), consolidated with No. 10-
55768 for purposes of calendaring
• Fully briefed and awaiting oral argument

Windsor v. United States, No. 10-CV-8435 (S.D.N.Y.)

• Defendant’s motion to dismiss due March 11, 2011
• Plaintiff’s opposition to motion dismiss and cross-motion for summary judgment due
April 11, 2011
• Defendant’s reply in support of its motion to dismiss and government’s motion, if
any, to stay briefing and consideration of plaintiff’s cross-motion for summary
judgment due April 25, 2011
• If no motion to stay is filed by the government, then opposition to plaintiff’s motion
for summary judgment due May 9, 2011

1
While this case does not assert a direct challenge to the constitutionality of Section 3 of DOMA, the district court
previously ordered supplemental briefing on this issue, and the parties provided such briefing.