By Kerry Eleveld

Originally published on Advocate.com December 21 2009 11:15 AM ET

After the Office of Personnel Management issued a statement Friday explaining that it would not provide benefits to the same-sex spouse of attorney Karen Golinski from ninth circuit court of appeals, Lambda Legal’s Jennifer Pizer told The Advocate that she took issue with the agency’s analysis and also the informal way in which it was disseminated.

OPM concluded that although Judge Alex Kozinski is a federal judge, he was acting as an “administrative official” to resolve an employee dispute rather than as a federal judge in a court case, and thus the order he issued instructing the agency to extend the benefits was not legally binding.

As an OPM official explained to The Advocate Friday, since Kozinski was presiding over an administrative proceeding, he was not imbued with the same authority that is granted to a federal judge under Article III of the Constitution, the section that establishes the judiciary and charges it with certain powers.

But Pizer, director of Lambda Legal’s Marriage Project, roundly rejected that assertion since Kozinski is a sitting federal judge. “Is it possible for Judge Kozinski to be acting in some capacity other than as an Article III judge?” she questioned, “We think when he’s sitting in an employee grievance procedure, he is an Article III judge, that’s the only capacity he has.”

Pizer explained that although the order he issued was not an opinion of a ninth circuit panel, “it is an order that has Article III force to it and he's speaking in his role as an Article III judge when he interprets federal law.”

But Pizer was even more troubled by the fact that OPM chose to present its conclusion by issuing a public statement rather than actually countering Kozinski’s rationale in a legal brief.

“They’re stating their position via press statements,” said Pizer. “If they have confidence in their analysis, they should do what people do in legal proceedings.”

In the case, Kozinski argued for a separation of powers — saying that if the judiciary has the inherent power under the U.S. Constitution to regulate itself, then it has to be the case that employees of an executive branch agency (OPM in this case) do not have superior authority to dictate what goes on in the judicial branch.

“They’ve said they disagree but they’ve never deigned to explain why. They’ve never written that analysis,” Pizer said of OPM, which took its cues in the case from the Department of Justice.

“What is the Obama administration’s analysis for why the ninth circuit doesn’t have the constitutional authority to regulate its own employee practices?”