By Kerry Eleveld

Originally published on Advocate.com December 18 2009 4:20 PM ET

The Office of Personnel Management has concluded that it does not have the legal authority to provide benefits to the spouse of Karen Golinski, a staff attorney who works at the U.S. court of appeals for the ninth circuit in San Francisco.

An OPM official briefed The Advocate on the decision, and the agency’s full statement is available at the end of this article. (Update: A statement from Lambda Legal follows OPM's statement).

Because she is a federal employee, Golinski’s benefits are overseen by the Office of Personnel Management, which effectively serves as the human resources department for about 1.9 million federal workers nationwide. Golinski’s insurer, Blue Cross and Blue Shield, declined to provide health benefits for her legal spouse, Amy Cunninghis, but ninth circuit chief judge Alex Kozinski said that violated the court's guarantee of equal employment opportunity and that same-sex spouses were entitled to benefits under the Federal Employees Health Benefits Plan.

OPM attorneys consulted with the Department of Justice on this case, and the key to the case, according to the OPM official, was that Kozinski was presiding over an administrative proceeding that’s an internal employee grievance procedure — he was not serving in his official capacity as a ninth circuit judge.

“It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary,” reads OPM’s statement official statement. “He was not acting as a federal judge in a court case.”

Based on that distinction, DOJ concluded that Kozinski’s order was not legally binding. If it were legally binding, OPM would have been faced with either appealing the decision or complying with the order.

Since the procedure was not an official legal proceeding, the OPM official said the agency was bound by the Defense of Marriage Act, which precludes coverage of Golinski’s spouse.

“OPM must administer the FEHBP in a lawful manner, and the Department of Justice (DOJ) has advised OPM that providing those benefits would violate the so-called ‘Defense of Marriage Act,’” said the OPM statement.

The OPM official said the decision was not taken lightly within the agency, which is headed by John Berry, the highest-ranking LGBT official in the Obama administration. The official added that the predicament underscored the importance of repealing the Defense of Marriage Act.

Passage of the Domestic Partners Benefits and Obligations Act would also empower OPM to provide these benefits, said the official, and in fact would provide a broader remedy since it covers all domestic partners, not just those couples who happen to live in a state where they can legally marry.

DPBO has been approved by the committees of jurisdiction in both the House and the Senate, and many expect the legislation to be voted on in the early part of next year. The bill was added to the list of LGBT legislative priorities this spring when President Barack Obama endorsed it while signing a presidential memo that extended a very limited number of benefits to same-sex partners of federal workers.





















OPM's official statement is available after the jump.

Statement From Elaine Kaplan, OPM General Counsel:

There have been some developments in the Ninth Circuit regarding access to benefits for same-sex spouses of federal employees, and there’s some confusion over this important issue. Specifically, Karen Golinski, an employee of the Federal Courts, filed a grievance against her employer claiming that the denial of enrollment of her same-sex spouse in the Federal Employees Health Benefits Plan (FEHBP) violated the Ninth Circuit’s Equal Employment Opportunity policy. Ninth Circuit Chief Judge Alex Kozinski, sitting in his administrative capacity, and not as a federal judge in a court case, said that employees of the court were entitled to FEHBP health benefits for their same-sex spouses. OPM must administer the FEHBP in a lawful manner, and the Department of Justice (DOJ) has advised OPM that providing those benefits would violate the so-called “Defense of Marriage Act.”

All federal employees — be they in the Executive, Legislative or Judicial branch — receive their heath care benefits in the FEHBP, which is administered by OPM. Spouses and minor children of federal employees are eligible to be enrolled in the FEHBP. However, in 1996, the so-called “Defense of Marriage Act” was signed into law and it states that the word “spouse,” when used in a federal statute, can mean only opposite-sex spouses. In other words, the current federal law means that same-sex spouses are ineligible to be enrolled in federal benefit programs that define eligibility based on their status as spouses. As the President has explained, the Administration believes that this law is discriminatory and needs to be repealed by Congress — that is why President Obama has stated that he opposes DOMA and supports its legislative repeal. He also has said he supports the Domestic Partner Benefits and Obligations Act (DPBO), which would allow all same-sex domestic partners of federal employees to receive federal benefits, including enrollment in the FEHB Plan.

It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary. He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski’s spouse is any less real or less painful, but it is a critical point.

The decision in this matter was not reached lightly — after we learned of this development, we examined our options and consulted with the DOJ. DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment. DOJ also advised us that DOMA prohibits same-sex spouses of federal employees from enrolling in the FEHBP and that the law does not permit OPM to allow this enrollment to proceed.

This issue shows exactly why Congress needs to repeal DOMA and pass the DPBO. In fact, the passage of the DPBO would remedy this situation in a way that reaches beyond this individual case involving an employee of the judiciary by providing benefits to same-sex domestic partners of all federal employees across the government whether or not they are married. That is why the Administration has testified before Congress on this crucial legislation, and why the President has personally called for its passage.









A response from Lambda Legal is available after the jump.

The following is a statement from Lambda Legal in response to OPM:

“The Obama Administration is rejecting yet another chance to do the right and legally required thing”

(Los Angeles, Month Date, 2008) — In response to a decision by the federal government to ignore an order by Chief Judge Alex Kozinski of the U.S. Ninth Circuit Court of Appeals that one of its employees, Lambda Legal client Karen Golinski, is entitled to spousal health benefits, Lambda Legal Marriage Project Director Jennifer C. Pizer issued the following statement:

“We are once again surprised and shocked that the Obama Administration is rejecting yet another chance to do the right and legally required thing, disregarding both the order, and the substantive analysis, of the Chief Judge of the Ninth Circuit about what federal law and the Ninth Circuit's employment rules require in this case.

Chief Judge Kozinski has concluded that the Ninth Circuit MUST not discriminate against Karen Golinski with respect to the health insurance benefits portion of her compensation, and that the Separation of Powers doctrine of the U.S. Constitution authorizes the court to take appropriate steps to treat its workers fairly, and prevents employees of the Executive Branch from interfering with the functioning of the Judicial Branch in these circumstances.

Judge Kozinski, a Reagan appointee, is widely regarded as among the brightest judges on the federal bench, an expert in issues of judicial independence, and notable for his common sense approach.

Lambda Legal believes Judge Kozinski is clearly correct that employees of the federal Office of Personnel Management (OPM) and the Department of Justice do not have superior authority to interpret federal law than federal judges. Lambda Legal also finds it troubling and very disappointing that the Obama Administration has chosen to express its views of these legal questions through Friday-afternoon press statements stating that it will not comply with Judge Kozinski's direct orders, rather than by presenting its legal reasoning to Judge Kozinski in this proceeding so that we can respond on Ms. Golinski's behalf in the duly-established administrative forum in which Ms. Golinski is required to present her discrimination claim.

OPM has never disputed that this administrative forum is the appropriate venue for this discrimination claim, and yet has refused to participate and present its views. Today, again, these Executive Branch officials are refusing to respect both Judge Kozinski's duly-issued order and his clear, compelling legal analysis. This is not the approach to issues of LGBT equality we had anticipated and deserve from the Obama Administration.

Lambda Legal is representing Karen Golinski in this matter with the Morrison & Foerster LLP law firm.