Case3:10-cv-00257-JSW Document10 Filed01/26/10 Page1 of 3

1 JAMES R. McGUIRE (CA SBN 189275)

JMcGuire@mofo.com
2 GREGORY P. DRESSER (CA SBN 136532)
GDresser@mofo.com
3 RITA F. LIN (CA SBN 236220)
RLin@mofo.com
4 GRACE Y. PARK (CA SBN 239928)
GracePark@mofo.com
5 MORRISON & FOERSTER LLP
425 Market Street
6 San Francisco, California 94105-2482
Telephone: 415.268.7000
7 Facsimile: 415.268.7522
8 JENNIFER C. PIZER (CA SBN 152327)
JPizer@lambdalegal.org
9 LAMBDA LEGAL, Western Regional Office
3325 Wilshire Boulevard, Suite 1300
10 Los Angeles, CA 90010-1729
Telephone: 213.382.7600
11 Facsimile: 213.351.6050
12 Attorneys for Plaintiff
KAREN GOLINSKI
13

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16

17 KAREN GOLINSKI, Case No. 4:10-cv-00257 (SBA)

18 Plaintiff, DECLARATION OF JAMES R.

McGUIRE IN SUPPORT OF
19 v. PLAINTIFF KAREN
GOLINSKI’S MOTION FOR
20 UNITED STATES OFFICE OF PERSONNEL PRELIMINARY INJUNCTION
MANAGEMENT,
21 Date: June 15, 2010
Defendant. Time: 1:00 p.m.
22 Place: Courtroom 1, 4th Floor
United States Courthouse
23 1301 Clay Street
Oakland, California 94612
24

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DECLARATION OF JAMES R. MCGUIRE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

pa-1382098
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1 I, James R. McGuire, hereby declare and state as follows:

2 1. I am a partner of the law firm of Morrison & Foerster LLP, which is co-counsel of
3 record for plaintiff Karen Golinski. I am licensed to practice law in the State of California and
4 am admitted to practice before this Court. I make this declaration of my own personal
5 knowledge, and, if called as a witness, could and would testify competently to the matters stated
6 herein.
7 2. Attached as Exhibit I is a true and correct copy of an amended order in In re
8 Employee Dispute Resolution Plan (9th Cir.), issued by the Chief Judge of the United States
9 Court of Appeals for the Ninth Circuit on November 24, 2008.
10 3. Attached as Exhibit J is a true and correct copy of the Statement from Elaine
11 Kaplan, OPM General Counsel, regarding the Chief Judge’s prior orders in In the Matter of
12 Karen Golinski et ux, No. 09-80173 (9th Cir.), which is also available at http://
13 www.washingtonpost.com/wp-srv/nation/documents/statement_from_elaine_kaplan_opm.pdf.
14 4. Attached as Exhibit K is a true and correct copy of an order in In the Matter of
15 Karen Golinski et ux, No. 09-80173 (9th Cir.), issued by the Chief Judge of the United States
16 Court of Appeals for the Ninth Circuit on December 22, 2009.
17 5. Ms. Golinski and OPM have complied with the Court’s meet and confer
18 requirement. On January 20, 2010, I left a voicemail for Steven Bressler, Assistant United States
19 Attorney informing him that Ms. Golinski had filed her complaint that day and anticipated filing a
20 motion for preliminary injunction on a shortened time schedule. I did not immediately hear back
21 from opposing counsel, and on January 25, 2010, I sent an e-mail reiterating Ms. Golinski’s
22 decision to file a preliminary injunction on shortened time. That same day, opposing counsel
23 responded that OPM needed to review the motion for preliminary injunction and the request to
24 shorten time. Approximately one hour later, I replied to opposing counsel’s email, and set forth
25 in detail Ms. Golinski’s primary arguments in support of her motion for preliminary injunction.
26 A true and correct copy of the January 25, 2010 e-mail exchanges between Mr. Bressler and me is
27 attached hereto as Exhibit L. On January 26, 2010, during a telephone conversation, opposing
28 counsel for OPM stated it would not stipulate to entry of Ms. Golinski’s preliminary injunction.
1
DECLARATION OF JAMES R. MCGUIRE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
pa-1382098
 Case3:10-cv-00257-JSW Document10 Filed01/26/10 Page3 of 3

1 Opposing counsel stated that it was OPM’s position that it is not subject to a mandamus because
2 Chief Judge Kozinski’s November 19, and December 22, 2009 Orders in In the Matter of Karen
3 Golinski et ux, No. 09-80173 (9th Cir.), are not binding on OPM.
4 I declare under penalty of perjury under the laws of the United States of America that the
5 foregoing is true and correct. Executed on January 26, 2010, at San Francisco, California.
6

7 Dated: January 26, 2010 MORRISON & FOERSTER LLP

8 LAMBDA LEGAL
9

10 By: /s/ James R. McGuire

JAMES R. McGUIRE
11
Attorneys for Plaintiff
12 KAREN GOLINSKI
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DECLARATION OF JAMES R. MCGUIRE IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
pa-1382098
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EXHIBIT I
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FILED
NOV 2~ 2008
MOLly C. DWYER ClERK
UNITED STATES COURT OF APPEALS U.s. COURT OF APPEALS
FOR THE NINTH CIRCUIT

)
In re: Employee Dispute ) AMENDED
Resolution Plan ) ORDER
)
)
---------)

In light ofKaren Golinski's October 2, 2008 complaint filed under the

Court's Employee Dispute Resolution Plan, and due to the holding in

In re Marriage Cases, 43 Cal. 4th 757, 183 PJd 384 (2008), the Director of the

Administrative Office ofthe United States Courts is ordered to submit Ms.

Golinski's Health Benefits Election form 2809, which she signed and submitted on

September 2, 2008, to the appropriate health insurance carrier. Further, ifMs.

Golinski submits any additional forms during open season, those forms should be

submitted as well.
Case3:10-cv-00257-JSW Document10-2 Filed01/26/10 Page1 of 3

EXHIBIT J
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Subject STATEMENT FROM ELAINE KAPLAN, OPM

GENERAL COUNSEL

STATEM EN T FROM ELAI N E KAPLAN , OPM GEN ERAL COUN SEL

Ther e hav e been som e dev elopm ent s in t he Nint h Cir cuit r egar ding access t o
benefit s for sam e- sex spouses of feder al em ployees, and t her e’s som e confusion
over t his im por t ant issue. Specifically, Kar en Golinsk i, an em ployee of t he Feder al
Cour t s, filed a gr ievance against her em ployer claim ing t hat t he denial of enr ollm ent
of her sam e- sex spouse in t he Feder al Em ploy ees Healt h Benefit s Plan ( FEHBP)
violat ed t he Nint h Cir cuit ’s Equal Em ploym ent Oppor t unit y policy. Nint h Cir cuit Chief
Judge Alex Kozinsk i, sit t ing in his adm inist r at ive capacit y , and not as a feder al j udge
in a cour t case, said t hat em ployees of t he cour t wer e ent it led t o FEHBP healt h
benefit s for t heir sam e- sex spouses. OPM m ust adm inist er t he FEHBP in a lawful
m anner , and t he Depar t m ent of Just ice ( DOJ) h as advised OPM t hat pr oviding t hose
benefit s w ould violat e t he so- called “ Defense of Mar r iage Act .”

All feder al em ployees – be t hey in t he Ex ecut ive, Legislat ive or Judicial br anch –
r eceive t heir heat h car e benefit s in t he FEHBP, which is adm inist er ed b y OPM.
Spouses and m inor childr en of feder al em ploy ees ar e eligible t o be enr olled in t he
FEHBP. However , in 1996, t he so- called “ Defense of Mar r iage Act ” was signed int o
law and it st at es t hat t he w or d “ spouse,” w hen used in a feder al st at ut e, can m ean
only opposit e- sex spouses. I n ot her wor ds, t he cur r ent feder al law m eans t hat sam e-
sex spouses ar e ineligible t o be enr olled in feder al benefit pr ogr am s t hat define
eligibilit y based on t heir st at us as spouses. As t he Pr esident has ex plained, t he
Administrat ion believes t hat t his law is discr im inat or y and needs t o be r epealed by
Congress – t hat is why Pr esident Obam a has st at ed t hat he opposes DOMA and
support s it s legislat ive r epeal. He also has said he suppor t s t he Dom est ic Par t ner
Benefit s and Obligat ions Act ( DPBO) , which would allow all sam e- sex dom est ic
par t ners of feder al em ployees t o r eceiv e feder al benefit s, including enr ollm ent in t he
FEHB Plan.

I t ’s im por t ant t o under st and t hat Judge Kozinski was act ing as an adm inist r at ive
official in t his m at t er , r eact ing t o t he concer ns of an em ploy ee of t he j udiciar y. He
was not act ing as a feder al j udge in a cour t case. This does not m ean t hat t he
inabilit y t o ext end benefit s t o Kar en Golinski’s spouse is any less r eal or less painful,
but it is a cr it ical point.

The decision in t his m at t er w as not r eached light ly – aft er w e lear ned of t his
dev elopm ent , w e exam ined our opt ions and consult ed w it h t he DOJ. DOJ adv ised us
t hat t he or der issued by Judge Kozinsk i does not super sede our obligat ion t o com ply
 Case3:10-cv-00257-JSW Document10-2 Filed01/26/10 Page3 of 3

wit h ex ist ing law because it is not binding on OPM, as it was issued in his
adm inist r at ive capacit y , and not as a j udge in a cour t case. Thus, t his t ype of or der
does not change t he ex ist ing law , w hich DOJ concludes pr event s t he enrollm ent .
DOJ also advised us t hat DOMA pr ohibit s sam e- sex spouses of feder al em ployees
from enr olling in t he FEHBP and t hat t he law does not per m it OPM t o allow t his
enr ollm ent t o pr oceed.

This issue show s exact ly w hy Congr ess needs t o repeal DOMA and pass t he DPBO.
I n fact , t he passage of t he DPBO would r em edy t his sit uat ion in a way t hat r eaches
beyond t his indiv idual case inv olving an em ploy ee of t he j udiciar y by pr ov iding
benefit s t o sam e- sex dom est ic part ner s of all federal em ployees across t he
gover nm ent whet her or not t hey ar e m ar ried. That is why t he Adm inist r at ion has
t est ified befor e Congr ess on t his crucial legislat ion, and w hy t he Pr esident has
per sonally called for it s passage.
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EXHIBIT K
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NOT FOR PUBLICATION

F I LED
DEC, 22 2009
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK'
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN THE MATTER OF KAREN No. 09-80173

GOLINSKI et ux.
ORDER

The time for appeal from my orders in this matter, dated January 13, 2009,

and November 19,2009, has expired. Only the Blue Cross and Blue Shield

Association ("Blue Cross") has filed a timely notice of appeal; it petitioned the

Judicial Council for review of my November 19,2009, order on December 17,

2009. My prior orders in this matter are therefore final and preclusive on all issues

decided therein as to others who could have, but did not appeal, such as the Office

of Personnel Management ("OPM") and the Administrative Office of the United

States Courts. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398-402 &

n.4 (1981); see also Travelers Indem. Co. v. Bailey, 129 S. Ct. 2195, 2205-07

(2009).

As the jurisdictional issues presented in Blue Cross's petition for review are

separate and distinct from those concerning my now conclusively-determined

 Case3:10-cv-00257-JSW Document10-3 Filed01/26/10 Page3 of 3

page 2

jurisdiction over governmental entities such as OPM, I authorize Ms. Golinski to

take what further action she deems fit against any entity other than Blue Cross,

without waiting for the Judicial Council's disposition of Blue Cross's appeal.

December 22, 2009

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EXHIBIT L
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Case3:10-cv-00257-JSW Document10-4 Filed01/26/10 Page2 of 4

From: McGuire, James R.

Sent: Monday, January 25, 2010 4:58 PM
To: 'Bressler, Steven'
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: RE: Golinski v. OPM
Steve:

My apologies for any miscommunication and I'm sorry that I missed your phone call of this afternoon.

I would like to speak tomorrow morning, Pacific time, regarding OPM's position on the substance of the
motion for a preliminary injunction. To ensure that our position is clear to you in advance of that call, so
that our conversation can be meaningful, here it is: OPM gratuitously interfered with an ongoing EDR
matter pending before the Chief Judge of the Ninth Circuit. As a consequence of that action, the Chief
Judge ordered OPM to cease such interference. OPM failed to do so and also failed to appeal the order
to the Judicial Council, as it was entitled to do.

Against this background, a preliminary injunction is appropriate for the following reasons:

{ Ms. Golinski will likely prevail on her mandamus claim because OPM's duties under the
Order are clear and certain, ministerial and Ms. Golinski has no other remedy available to
her. OPM, moreover, has waived any and all defenses to the enforcement of the order at
issue.
{ As a result of OPM's actions, Ms. Golinski is suffering, and will continue to suffer,
irreparable injury. She continues to suffer, on a daily basis, unlawful discrimination in the
terms of her employment. That discrimination cannot be remedied in any way other than by
injunctive relief as there are no comparable health insurance plans available on the market.
{ The balance of hardships tips strongly in Ms. Golinski's favor. She has scrupulously
followed the only avenue available to her for resolution of her claim, and has obtained, from
the Chief Judge of the Ninth Circuit, an order granting her total relief. OPM, by contrast, will
suffer no harm if it is ordered to comply with the Chief Judge's order.
{ The public interest favors enforcing Judge Kozinki's order, rather than endorsing OPM's
approach.

Assuming that, at the end of our call, OPM is not willing to stipulate to entry of a preliminary injunction by
which it agrees to comply with Judge Kozinski's order and that you have not persuaded me that we
should not seek such relief, we will file a motion for a preliminary injunction. We will, promptly thereafter,
need to seek an order shortening time for the opposition and hearing on that motion. We will propose and
will seek a hearing twenty-eight days from tomorrow: February 23, 2010. We will ask that the opposition
be filed by February 9, and the reply by February 16.

Now that you know what we intend to argue, please be prepared to speak with us about scheduling
tomorrow as well.

Regards,

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)

From: Bressler, Steven [mailto:Steven.Bressler@usdoj.gov]

1/26/2010
Golinski v. OPM Page 2 of 3
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Sent: Monday, January 25, 2010 3:59 PM

To: McGuire, James R.
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: RE: Golinski v. OPM

James,

I am afraid we may have had a couple of misunderstandings or miscommunications when we spoke last week. You
told me last Wednesday that you expected to file a motion for preliminary injunction the next day, i.e., last Thursday,
and that you intended to file a motion to shorten the time for hearing shortly thereafter. Accordingly, I expected to
see your motion for injunction last week and to review it briefly before discussing a schedule. In fact, we must see
your motion and supporting materials before OPM can take a definitive position on scheduling. I.e., we need to
know what we're responding to before we determine how long we'll need to respond.

I also asked you on Wednesday what you had in mind for a schedule, and I understood our conversation to be
tentative at that time. If there is more you can tell me now -- what do you have in mind?

As for meeting and conferring -- the only aspect of your planned emergency motion that I remember discussing in
substance last week was Ms. Golinski's arguments concerning irreparable harm. Like you, I am not optimistic that
we will be able to fully resolve the matter. But I don't think we had a full conversation. It is now after close of
business here in D.C.; can we talk tomorrow morning (your time)? We can discuss scheduling then, as well,
although, again, I think it will have to be preliminary on my end until we see your moving papers.

Thanks,
Steve

From: McGuire, James R. [mailto:JMcGuire@mofo.com]

Sent: Monday, January 25, 2010 6:31 PM
To: Bressler, Steven
Cc: Dresser, Gregory P.; Park, Grace Y.
Subject: Golinski v. OPM

Steve:

I write to follow up on two issues from our call last week.

First, after we spoke last Wednesday, it was my understanding that you were going to get back to me about our
request that OPM stipulate, subject to Court approval, to permit Ms. Golinski's motion for a preliminary injunction to
be heard on shortened time. I have not heard from you. We intend to file a motion for a preliminary injunction
tomorrow and, at the same time, will ask the Court to shorten the time for opposition and hearing. Unless I hear
differently from you, I will represent to the Court that we attempted to obtain OPM's agreement on that issue, but
were unsuccessful.

Second, in connection with the preliminary injunction motion itself, Judge Armstrong's standing order (which I had
not reviewed when we spoke) requires the parties to meet and confer in advance of the filing of a motion to attempt
to resolve the matter. You and I briefly discussed the substance of the motion last week, and it is our understanding
that OPM is not willing to stipulate to this relief. My sense is that we have a difference of opinion about a legal issue
that we can only resolve through judicial intervention. If I am mistaken about that, or you believe we need to discuss
it further, please let me know.

Regards,

James R. McGuire | Morrison & Foerster LLP

425 Market Street | San Francisco, California 94105
415.268.7013 | 415.268.7522 (fax)

1/26/2010
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