courtroom drama

Federal Health Benefits Judge Kozinski: OPM Can Go Screw Itself

Judge Alex Kozinski

Chief Judge of the Ninth Circuit Alex Kozinski, who just ruled to allow television cameras inside federal civil trials like Perry V. Schwarzenegger, is not. having. it. with the Office of Personnel Management, which just announced it would not try to force Blue Cross to grant same-sex health benefits to federal employee Karen Golinski’s partner Amy Cunninghis (pictured, below). OPM cites DOMA, Kozinski cites federal equal opportunity workplace mandates. And in the twosome’s on-going power struggle, it’s Judge Kozinski that just dealt a new blow: OPM and the feds can stay the hell out of his courtroom.

Pissed that OPM, rather than file an official appeal with his court, announced its Friday “No” decision via press release, Kozinski has now barred OPM from attending a hearing on the Golinski matter, relays the blog Back2Stonewall.

Except, did OPM even have to officially appeal? As WaPo‘s Joe Davidson notes:

In addition to a responsibility to enforce the law, administration officials say they are within their rights to ignore the judge’s order because, they reason, he issued it in his capacity as the court’s boss, not in his role as a judge. The judge’s decision was not issued as a formal court order because Golinski’s complaint went through the court’s administrative Employee Dispute Resolution Plan, rather than a judicial process.


And here we are again, with Kozinski — one of the judiciary’s most colorful personalities — saying his decision holds the most weight, and OPM saying that because Kozinski acted as an administrator and not a judge, they don’t have to listen.

So why not, uh, have Golinski re-file her complaint in the Ninth Circuit immediately? Sure, that means OPM has another timeline (30 days?) to respond, but this battle isn’t even close to over, and at least it knocks down one of the Obama administration’s arguments. For which they keep that ace up their sleeve: The Defense of Marriage Act, which Obama hates so much he’s doing nothing about it.

Whatever. Just make sure there are camera rolling, people!

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  • Qjersey

    I’m having Bushie flashbacks.

  • FakeName

    Queerty trying to write about legal issues gives me nosebleeds.

  • Peter

    Yah??? What did this blog say? Can someone state this in understandable English??????

  • InExile

    It’s time we demand to see his birth certificate!

  • FakeName

    I suggest reading the decision. It’s short and written in English.

    Kozinski is saying that OPM could have filed an appeal of his decisions and failed to do so in a timely manner. Therefore, his ruling (which rather pointedly includes the phrases “final and preclusive on all issues decided therein” and “my now conclusively-determined jurisdiction over governmental entities such as OPM”) forecloses OPM or any party other than Blue Cross Blue Shield (which did appeal timely) from taking any further action to prevent Golinski from adding her wife to her policy.

  • wondermann

    This is poorly written, follow FakeName’s comment. And InExile, you are sounding like a teabagger. You are better than that.

  • Lady Ga-Gasp

    The 9th circuit. Its the best of courts, and the worst of courts. Depending on who you are. I for one look forward to getting to a place where courts with a reputation for respecting the institution (as a enforcer of law, rather than an undemocratic maker-upper of law) side with us.

    That is what Boise & Co. are trying to do with the Marriage Case before the supremes. Its a tough job, but one I respect.

    The 9th is supportive of gays, but often only as a disenfranchised sub-group of everything under the sun that is poster-child for judicial over-reaching.

    Don’t get me wrong, but like I said, I look forward to the day…

  • daveinthe805

    I think OPM purposely didn’t appeal the order in the correct manner so they could lose. What I mean to say is that OPM purposely didn’t file an appeal or formal reply to Chief Judge Kozinski so that Kozinski would have no choice but to enforce his order. There are a lot of very smart lawyers in the government and someone especially of Elaine Kaplan’s pedigree would make a terrible mistake like this? Come on. Here is my odd thought on the subject. Obama’s policy strategy is trying to get bi-partisan or political cover so that the other side cannot attack him. If he were to order OPM to ignore DOMA, the Republicans would attack him for not following the law. The Republicans would hound him on this all the way to mid-terms. With this sneaky action, the President could argue that he followed the law but lost (ahh shucks but not really). I suspect in a month or two, it will subtly leak as a blind that OPM purposely screwed this up. The President is using Kozinski as the political cover. Kozinski was appointed under Reagan and he is a respected jurist. Republicans aren’t going to attack one of their own as an activist and Kozinski wouldn’t be impeached by the Senate for this as it isn’t an impeachable offense. Kozinski is basically voiding parts of DOMA and doing Obama’s work for him. The President doesn’t have to fight for this in Congress. The judiciary did all of the heaving lifting with very minimal backlash to Obama. With the OPM leak, the LGBT community will realize that the President did something. It’s an odd theory I realize but it somewhat makes sense to me. I still think the President needs to do more on DADT, ENDA and DOMA but this is a crack in the armor of these hateful laws. Happy to read other’s thoughts.

  • daveinthe805

    Sorry, I forgot to include why Kozinski has full protection on this matter from Republicans/conservatives. Republicans hate judicial overreach. Kozinski is arguing not about DOMA even though DOMA is part of it. He is instead arguing that as a co-equal branch of the government, the Executive cannot tell the Judiciary what to do. Because OPM is simply an agent of the Judiciary in matters of personnel benefits, it has no authority to enforce any actions on the Judiciary. My only thought is whether Kozinski knew what OPM was doing and was in on this from the beginning.

  • FakeName

    That is what Boise & Co. are trying to do with the Marriage Case before the supremes. Its a tough job, but one I respect.

    There is no same-sex marriage case before the Supreme Court at this time.

    Boise and Co. are lead counsel on Perry v. Schwarzenegger, which is being litigated in the 9th Circuit.

    Do you perhaps mean Gill v. Office of Personnel Management, which is being litigated in Massachusetts in the First Circuit?

  • Republican


    Respectfully, I think that is a bit of wishful thinking. I just don’t see any evidence to support that theory, but I’ll gladly eat crow if your prediction regarding the leak comes true. As for Obama’s views on gays, well, I used to think he sincerely cared, but now I’m no longer so convinced that his neglect is based on cowardice rather than malice.

    Speaking of wishful thinking, this story reminds me of an incident that happened a few years ago. As we all know, George W. Bush made a shocking decision when he nominated Harriet Miers to the SCOTUS. Many on both the Left and Right were convinced that Bush knew she would eventually have to withdraw her nomination, because there’s no way he’d make such an obvious error without having some ulterior motive. (Bush may have been stupid, but his advisors, for the most part, were not.) By first nominating her, the theory went, he could say that he tried appointing a moderate woman, but since that wasn’t going to work out well, he’d have to appoint a conservative man. Everyone thought they saw Karl Rove’s fingerprints all over that one. Turns out that they were wrong. “Sources” have since revealed that there really wasn’t more to it than just a dumb decision. The quacking bird in the lake really was a fucking duck.

  • Cam

    No. 12 · carlgero
    I don’t know about this rule,i don’t think it gave any impact on our life.because people don’t like it.

    Your comment makes no sense.

  • Cam

    The White house keeps saying that DOMA is unconstitutional, it’s bad etc… and yet the Federal govt. continues to vigorously defend it any chance they get. Having a federal court stricke it down would be an easy way out for them if they really believed it was bad law, but they continue to fight for it. Very discouraging.

  • FakeName

    The White house keeps saying that DOMA is unconstitutional, it’s bad etc…

    The Obama administration has never said that DOMA is unconstitutional. It has said that it is discriminatory and has denied any legitimate government interest in some of the justifications that have been offered to support it but has never said that it wasn’t constitutional. But the administration insists it has an obligation to defend the law itself, despite its refusal to enforce other laws as it picks and chooses. Agreed, very discouraging.

  • Lady Ga-Gasp

    Fake Name, Boise (and Olson is it?) has stated that he intends to route this through to the Supreme Court. Its his stated goal, as I’m sure you are already aware.

  • FakeName

    Sure, that’s B&O’s goal, but there are innumerable roadblocks to their desired goal, including persuading several federal judges to go along with them. Don’t get me wrong, I support the arguments raised in Perry, but as a realist I have no problem imagining that any pro-gay result contemplated by the current make-up of the Supreme Court will be decided against us.

    Of course I don’t advocate violence, but if Scalia, Roberts and Thomas were all invited to go duck hunting with Dick Cheney and Dick let loose massive volleys of lead to “accidentally” take them all out, I would not weep bitter tears.

  • Jaroslaw

    #12 Carlgero’s comment makes no sense because his link is to an advertisement. (I thought it would be to an article of relevance.)

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