12-15409 #23

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Nos. 12-15388, 12-15409 (Consolidated)

United States Court of Appeals for the Ninth Circuit

KARENGOLINSKI,

Plaintiff-Appellee,

v.

OFFICE OF PERSONNEL MANAGEMENT, et al.,

Defendants-Appellees,

THEBIPARTISANLEGALADVISORYGROUPOFTHE

U.S.HOUSEOFREPRESENTATIVES,

Intervener-Defendant-Appellant.

KARENGOLINSKI,Plaintiff-Appellee,

v.


Defendants-Appellant,



Intervener-Defendant.

ON APPEAL FROM U.S. DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

MOTION FOR LEAVE TO FILEAMICUS CURIAEBRIEF OF

EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND IN

OPPOSITION TO PETITION FOR HEARING EN BANC

Lawrence J. Joseph

Cal. State Bar No. 154908

1250 Connecticut Ave. NW, Ste. 200Washington, DC 20036

Tel: 202-669-5135

Fax: 202-318-2254

Email: [email protected]

Counsel for Amicus Curiae

Case: 12-15409 04/30/2012 ID: 8163297 DktEntry: 23-1 Page: 1 of 7 (1 of

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INTRODUCTION

Pursuant to Ninth Cir. R. 29-2 and by analogy to FED. R.APP.

PROC. 29(a), Eagle Forum Education & Legal Defense Fund (Eagle

Forum) requests leave to file the accompanying amicus curiae brief in

support of the opposition to initial hearing en banc filed by the

intervener-defendant Bipartisan Legal Advisory Group of the U.S.

House of Representatives (House). The House takes no position on

this motion. The plaintiff-appellee and the Executive-Branch

defendants have consented to the filing of the brief and to this motion.

I. INTEREST AND IDENTITY OFAMICUS CURIAE

Movant Eagle Forum is a nonprofit organization founded in 1981

and headquartered in Saint Louis, Missouri. For more than thirty

years, Eagle Forum has consistently traditional American values,

including the definition of marriage as the union of husband and wife.

In addition to its educational efforts on that topic, Eagle Forum has

participated as amicus curiae in litigation involving same-sex marriage

in various state and federal courts, including this Circuit, the First

Circuit, and the California Supreme Court.

For all of the foregoing reasons, Eagle Forum has a direct and

vital interest in the issues presented before this Court, and requests


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leave to file its accompanying brief, which Eagle Forum respectfully

submits will be directly useful to the Court in its consideration of its

jurisdiction in this matter and, thus, whether initial hearing en banc is

appropriate.

II. AUTHORITY TO FILE EAGLE FORUMS BRIEF

Motions under Rule 29(b) must explain the movants interest and

the reason why an amicus brief is desirable and why the matters

asserted are relevant to the disposition of the case. FED. R.APP. P.

29(b). The Advisory Committee Note to the 1998 amendments to Rule

29 quotes Sup. Ct. R. 37.1 to emphasize the value ofamicus briefs that

bring a courts attention to relevant matter not raised by the parties:

An amicus curiae brief which brings relevant

matter to the attention of the Court that has notalready been brought to its attention by the

parties is of considerable help to the Court.

Id. (quoting Sup. Ct. R. 37.1). As explained in the next section, the

Eagle Forum brief presents relevant matters to this Court.

As now-Justice Samuel Alito wrote while serving on the U.S.

Court of Appeals for the Third Circuit, I think that our court would be

well advised to grant motions for leave to file amicus briefs unless it is

obvious that the proposed briefs do not meet Rule 29s criteria as


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broadly interpreted. I believe that this is consistent with the

predominant practice in the courts of appeals. Neonatology Assocs.,

P.A. v. Commr, 293 F.3d 128, 133 (3d Cir. 2002) (citing Michael E.

Tigar and Jane B. Tigar, Federal Appeals Jurisdiction and Practice

181 (3d ed. 1999) and Robert L. Stern,Appellate Practice in the United

States 306, 307-08 (2d ed. 1989)). Now-Justice Alito quoted the Tigar

treatise favorably for the statement that [e]ven when the other side

refuses to consent to an amicus filing, most courts of appeals freely

grant leave to file, provided the brief is timely and well-reasoned. 293

F.3d at 133.

III. FILING EAGLE FORUMS BRIEF WILL SERVE THE

COURTS RESOLUTION OF THE ISSUES RAISED

The Eagle Forum brief raises one primary issue: this Courts

jurisdiction over these appeals. See Eagle Forum Br. at 3-8. As the

Eagle Forum brief explains, the plaintiff received an administrative

award to back pay from the Chief Judge of this Court and included that

allegation in her pleadings below. Id. at 1-2. She also pleaded

jurisdiction under the Little Tucker Act, along with other jurisdictional

bases. Id. at 2. Under 28 U.S.C. 1295(a)(2), however, so-called mixed

Little Tucker Act cases that incorporate equitable or declaratory actions


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under other authority with a Little Tucker Act claim must be appealed

to the U.S. Court of Appeals for the Federal Circuit. See id. at 3-4, 6-8;

U.S. v. Hohri, 482 U.S. 64, 73 (1987); Brant v. Cleveland Nat. Forest

Service, 843 F.2d 1222, 1223-24 (9th Cir. 1988). Because federal courts

have the obligation to consider their jurisdiction sua sponte, and no

party has briefed the jurisdictional issues that the Eagle Forum brief

raises, amicus Eagle Forum respectfully submits that its brief will aid

the Court as it considers whether to take the Executive defendants

unusual suggestion for an initial hearing en banc.

Because this Court has a jurisdictional and non-constitutional

basis on which to resolve this litigation, without considering the

constitutional question that the Executive defendants pose in their

petition, amicus Eagle Forum respectfully submits that this case

presents a prime candidate for a three-judge panel to clear these issues.

See Eagle Forum Br. at 8-9. Under the circumstances, taking this case

en banc now would be premature.

CONCLUSION

WHEREFORE, movant Eagle Forum respectfully requests leave

to file the accompanying amicus curiae brief.


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Dated: April 30, 2012 Respectfully submitted,

_____________________________________

Lawrence J. Joseph, Cal. Bar #154908

1250 Connecticut Avenue, NW

Suite 200

Washington, DC 20036

Tel: (202) 669-5135

Fax: (202) 318-2254


Counsel for Movant Eagle ForumEducation & Legal Defense Fund

/s/ Lawrence J. Joseph


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CERTIFICATE OF SERVICE

I hereby certify that on April 30, 2012 I electronically transmitted

the foregoing document and the accompanying amicus brief and

disclosure statement to the Clerk for filing and transmittal of a Notice

of Electronic Filing to the participants in this appeal, all of whom are

registered CM/ECF users, and I understand that service will be

accomplished by the appellate CM/ECF system.


Lawrence J. Joseph, Cal. Bar #154908

1250 Connecticut Ave, NW, Suite 200


Tel: 202-669-5135

Fax: 202-318-2254


Counsel for Movant Curiae Eagle Forum

Education & Legal Defense Fund



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Nos. 12-15388, 12-15409 (Consolidated)

United States Court of Appeals for the Ninth Circuit

KARENGOLINSKI,

Plaintiff-Appellee,

v.


Defendants-Appellees,



Intervener-Defendant-Appellant.

KARENGOLINSKI,Plaintiff-Appellee,

v.


Defendants-Appellant,



Intervener-Defendant.

ON APPEAL FROM U.S. DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

AMICUS CURIAEBRIEF OF EAGLE FORUM EDUCATION

& LEGAL DEFENSE FUND IN OPPOSITION TO PETITION

FOR INITIAL HEARING EN BANC

Lawrence J. Joseph

Cal. State Bar No. 154908

1250 Connecticut Ave. NW, Ste. 200Washington, DC 20036

Tel: 202-669-5135

Fax: 202-318-2254


Counsel for Amicus Curiae


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i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the FEDERAL RULES OF APPELLATE

PROCEDURE, amicus curiae Eagle Forum Education & Legal Defense

Fund makes the following disclosures:

1) For non-governmental corporate parties please list all parent

corporations: None.

2) For non-governmental corporate parties please list all

publicly held companies that hold 10% or more of the partys stock:

None.


Lawrence J. Joseph, Cal. S.B. #1549081250 Connecticut Ave, NW, Suite 200


Tel: 202-669-5135

Fax: 202-318-2254


Counsel for Amicus Curiae Eagle

Forum Education & Legal Defense

Fund



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ii

TABLE OF CONTENTS

Corporate Disclosure Statement ................................................................. iTable of Contents ........................................................................................ iiTable of Authorities ...................................................................................iiiIdentity, Interest and Authority to File .................................................... 1Statement of the Case ................................................................................ 1Summary of Argument ............................................................................... 2

Argument .................................................................................................... 3I. Because the District Courts Jurisdiction Relied in Part

on the Little Tucker Act, Appellate Jurisdiction Lies in

the U.S. Court of Appeals for the Federal Circuit ........................... 3A. The Traditional Routes to Equitable and

Declaratory Relief Do Not Provide a Waiver of

Sovereign Immunity for Money Damages .............................. 4B. Other than the Little Tucker Act, the Routes to

Monetary Relief Are Unavailable ............................................ 5

C. 28 U.S.C. 1295(a)(2) Requires that MixedLittle Tucker Act Cases Go to the Federal Circuit ................. 6

II. The Executive Defendants Have Not Shown a Basis forInitial Hearing En Banc.................................................................... 8

Conclusion ................................................................................................... 9


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TABLE OF AUTHORITIES

CASES

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ................ 5-6

Bowen v. Massachusetts, 487 U.S. 879 (1988) ........................................... 6

Brant v. Cleveland Nat. Forest Service,

843 F.2d 1222 (9th Cir. 1988) .............................................................. 7

City of Los Angeles v. County of Kern, 581 F.3d 841 (9th Cir. 2009) ....... 9

Consejo de Desarrollo Economico de Mexicali, A.C. v. United States,

482 F.3d 1157 (9th Cir. 2007) .............................................................. 6

Davis v. Passman, 442 U.S. 228 (1979) ..................................................... 6

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) .................................... 6

Edelman v. Jordan, 415 U.S. 651 (1974) ................................................... 5

Ex parte Young, 209 U.S. 123 (1908) ......................................................... 4

F.D.I.C. v. Meyer, 510 U.S. 471 (1994) ...................................................... 3

Hagans v. Lavine, 415 U.S. 528 (1974)...................................................... 9

In re All Asbestos Cases, 849 F.2d 452 (9th Cir. 1988) ............................. 8

Lockhart v. Leeds, 195 U.S. 427 (1904) ..................................................... 7

McGuire v. U.S., 550 F.3d 903 (9th Cir. 2008) .......................................... 4

Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997) ............... 7

Molzof v. U.S., 502 U.S. 301 (1992) ........................................................... 5

Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243 (D.C. Cir. 1982) ........ 5

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) .......... 9

U.S. v. Hohri, 482 U.S. 64 (1987) ............................................................ 6-7

STATUTES

1 U.S.C. 7 .................................................................................................. 2

5 U.S.C. 702 .............................................................................................. 5

28 U.S.C. 1295(a)(2) ....................................................................... 2, 4, 6-8

28 U.S.C. 1346(a)(2) ............................................................................... 2-7


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28 U.S.C. 1491(a)(1) .................................................................................. 6

28 U.S.C. 1631........................................................................................... 4

28 U.S.C. 2671-2680, Federal Tort Claims Act ..................................... 5

28 U.S.C. 2680(a) ...................................................................................... 5RULES AND REGULATIONS

FED.R.APP.P. 29(c)(5) ............................................................................... 1


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IDENTITY, INTEREST AND AUTHORITY TO FILE

Amicus curiae Eagle Forum Education & Legal Defense Fund

(Eagle Forum), a nonprofit Illinois corporation, submits this amicus

brief with the accompanying motion for leave to file.1 Founded in 1981,

Eagle Forum has consistently defended traditional American values,

including marriage defined as the union of husband and wife. For these

reasons, Eagle Forum has a direct and vital interest in the issues before

this Court.

STATEMENT OF THE CASE

An employee of this Court, Karen Golinski, began this case in an

Employee Dispute Resolution Plan proceeding in this Court. Second

Am. Compl. 47. As a result of that process, Chief Judge Kozinski

sitting in his administrative capacity ordered the Executive defendants

to allow Ms. Golinski to add her same-sex spouse to her family health

plan, notwithstanding that federal law defines spouse and marriage

to apply only with respect to a legal union between one man and one

1 By analogy to FED. R.APP. P. 29(c)(5), the undersigned counsel

certifies that: counsel for amicus authored this brief in whole; no

counsel for a party authored this brief in any respect; and no person or

entity other than amicus, its members, and its counsel contributed

monetarily to this briefs preparation or submission.


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woman as husband and wife. 1 U.S.C. 7. He also awarded her back

pay to cover the time when she paid for the additional insurance

coverage as out-of-pocket costs. Second Am. Compl. 55. This action

ensued, first as a mandamus action to enforce the Chief Judges

administrative orders and then, by amendment, via the current

complaint. Id. 59-62. As now amended, Ms. Golinskis complaint

pleads jurisdiction based in part on the Little Tucker Act, 28 U.S.C.

1346(a)(2). Id. 11, 55. As is customary and for good reason, the

complaint includes a general prayer for such other and further relief as

the Court may deem just and proper. Id. at 17:17. The District Court

ruled for Ms. Golinski without addressing back pay, and the Executive

defendants and the intervener-defendant both appealed to this Court.

SUMMARY OF ARGUMENT

Ms. Golinski unmistakably pleaded, and the District Court

unmistakably had, jurisdiction based in part on the Little Tucker Act,

28 U.S.C. 1346(a)(2). See Second Am. Compl. 11, 55. She also had an

traditional action for equitable and declaratory relief, and 28 U.S.C.

1295(a)(2) requires that appeals of such mixed cases go to the U.S.

Court of Appeals for the Federal Circuit, not the regional courts of


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appeals like this Court. As such, this Court lacks jurisdiction for these

appeals and should transfer them to the Federal Circuit.

Given the presence of a non-constitutional basis and a

jurisdictional one at that to avoid the Executive defendants proffered

constitutional issue, this Court should as a practical matter and must

as a jurisdictional matter resolve the jurisdictional question first.

Amicus Eagle Forum respectfully submits that this presents the type of

issue-clearing work of a three-judge panel, not an initial en banc panel.

ARGUMENT

I. BECAUSE THE DISTRICT COURTS JURISDICTION

RELIED IN PART ON THE LITTLE TUCKER ACT,

APPELLATE JURISDICTION LIES IN THE U.S. COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

As summarized in the Statement of the Case, the District Courts

jurisdiction over the entire dispute between Ms. Golinski and the

defendants and intervener-defendant plainly relies in part on the Little

Tucker Act. Indeed, Ms. Golinski specifically pleaded her complaint to

that effect. Second Am. Compl. 11.

Of course, plaintiffs lack jurisdiction to sue the federal

government without a waiver of sovereign immunity. F.D.I.C. v. Meyer,

510 U.S. 471, 475 (1994). Moreover, [i]t rests with Congress to


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determine not only whether the United States may be sued, but in what

courts the suit may be brought. McGuire v. U.S., 550 F.3d 903, 913-14

(9th Cir. 2008) (quoting Minnesota v. United States, 305 U.S. 382, 388

(1939)). As explained in this Section, Congress authorized such mixed

suits to begin in the U.S. District Courts, 28 U.S.C. 1346(a)(2), but

required that appeals in all such cases go to the U.S. Court of Appeals

for the Federal Circuit. 28 U.S.C. 1295(a)(2). Of course, ifamicus Eagle

Forum is correct in its jurisdictional analysis, the correct course is for

this Court to transfer these appeals to the Federal Circuit. 28 U.S.C.

1631. That workaday jurisdictional analysis is the stuff of three-judge

panels, not initial hearings en banc.

A. The Traditional Routes to Equitable and DeclaratoryRelief Do Not Provide a Waiver of Sovereign

Immunity for Money Damages

Before analyzing the Little Tucker Act issues, amicus Eagle

Forum first establishes that no other basis provides jurisdiction for the

back-pay issue. Officer suits for prospective injunctive relief against

ongoing violations of federal law can be an exception to sovereign

immunity, Ex parte Young, 209 U.S. 123 (1908), but that exception does

not allow money damages or even retroactive payment of benefits


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wrongfully withheld. Edelman v. Jordan, 415 U.S. 651, 678 (1974).

Similarly, 5 U.S.C. 702 eliminates the sovereign immunity defense in

all equitable actions for specific relief against a Federal agency or

officer, Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C.

Cir. 1982) (quotingS.REP.NO. 94-996, 8 (1976)), but its express terms

omit money damages. 5 U.S.C. 702. As such, the routes to equitable

and declaratory relief are foreclosed here as to monetary relief.

B. Other than the Little Tucker Act, the Routes to

Monetary Relief Are Unavailable

To recover money damages, plaintiffs must proceed under a

waiver of sovereign immunity for such damages. The Federal Tort

Claims Act (FTCA) waives sovereign immunity for tort-related

damages, but that waiver excludes claim[s] based upon an act or

omission of an employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such statute or

regulation be valid. 28 U.S.C. 2680(a). Falling outside FTCAs waiver

of sovereign immunity forecloses tort damages. Molzof v. U.S., 502 U.S.

301, 304-05 (1992) (before FTCA, sovereign immunity prevented

those injured by the negligent acts of federal employees from obtaining

redress through lawsuits). Finally, a Bivens action covers some equal-


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protection violations, Davis v. Passman, 442 U.S. 228, 247-49 (1979),

but only for individual-capacity defendants: [A] Bivens action can be

maintained against a defendant in his or her individual capacity only,

and not in his or her official capacity. Consejo de Desarrollo Economico

de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)

(quoting Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987)).

Ms. Golinski sued the federal officer defendant in his official capacity.

C. 28 U.S.C. 1295(a)(2) Requires that Mixed Little

Tucker Act Cases Go to the Federal Circuit

For damage claims not sounding in tort, the Little Tucker Act

provides district-court jurisdiction for nontax claims up to $10,000, and

the Tucker Act provides jurisdiction for all amounts. 28 U.S.C.

1346(a)(2), 1491(a)(1). Unless withdrawn or duplicated by another

statute, 1491(a)(1)s jurisdiction is exclusive. Eastern Enterprises v.

Apfel, 524 U.S. 498, 519-20 (1998); cf. Bowen v. Massachusetts, 487 U.S.

879, 910 n.48 (1988). For mixed injunctive and Little Tucker Act

cases, the Federal Circuit has exclusive appellate jurisdiction over

every appeal from a Tucker Act or nontax Little Tucker Act claim. U.S.

v. Hohri, 482 U.S. 64, 73 (1987) (emphasis in original). That specifically

includes mixed cases with nontax Little Tucker Act claims coupled


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with claims typically resolved in regional courts of appeals. Hohri, 482

U.S. at 78; 28 U.S.C. 1295(a)(2). That [the plaintiff] also seeks

declaratory and injunctive relief on grounds other than the Little

Tucker Act is of no moment. Brant v. Cleveland Nat. Forest Service,

843 F.2d 1222, 1223-24 (9th Cir. 1988) (Kozinski, J.). Here, the District

Courts jurisdiction was based in part on the Little Tucker Act,

which is dispositive of the locus for an appeal.

One might protest that the District Courts judgment did not

reach the issue of money damages or back pay, which makes the Little

Tucker Act superfluous. That is not the law. By asserting the Little

Tucker Act as a jurisdictional predicate, Second Am. Compl. 11,

alleging the entitlement to back pay, id. 55, re-alleging her prior

allegations in her contract-based count, id. 63, and seeking such other

and further relief as the Court may deem just and proper, id. at 17:17,

Ms. Golinski pleaded a contractual entitlement to back pay. Lockhart v.

Leeds, 195 U.S. 427, 436-37 (1904) (a complaints general prayer for

relief allows awarding relief not specifically pleaded); Metro-North

Commuter R. Co. v. Buckley, 521 U.S. 424, 455 (1997). In any event, the

plain language of the jurisdiction for appellate review applies if the


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jurisdiction of that court was based, in whole or in part, on section 1346

of this title. 28 U.S.C. 1295(a)(2). That plain language is not limited to

jurisdiction for judgments, but applies instead to the underlying

jurisdiction of the District Court to entertain the action:

[S]ection 1295(a) makes the jurisdiction of the

Federal Circuit dependent not on the claim

currently before an appellate court but on the

jurisdiction of the district court at the time the

case was brought before the district court.

In re All Asbestos Cases, 849 F.2d 452, 453-54 (9th Cir. 1988). As such,

this appeal appears to belong in the Federal Circuit. While the parties

ultimately may dispute this analysis, amicus Eagle Forum respectfully

submits that this jurisdictional analysis would obviate indeed

prohibit this Courts engaging in the constitutional analysis that

forms the basis for the petition for initial hearing en banc.

II. THE EXECUTIVE DEFENDANTS HAVE NOT SHOWN A

BASIS FOR INITIAL HEARING EN BANC

For several reasons, the Executive defendants petition cannot

sustain initial hearing en banc. First, the Court has a credible

jurisdictional basis to avoid reaching the constitutional merits that the

petition asks this Court to reach. Obviously, if the Court has a non-

constitutional basis on which to resolve the dispute before it, the Court


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should not reach the constitutional merits. City of Los Angeles v. County

of Kern, 581 F.3d 841, 846 (9th Cir. 2009); Hagans v. Lavine, 415 U.S.

528, 546-49 (1974). Second, that admonition rises to a prohibition when

the non-constitutional issue is that the Court lacks subject-matter

jurisdiction: For a court to pronounce upon the meaning or the

constitutionality of a state or federal law when it has no jurisdiction to

do so is, by very definition, for a court to act ultra vires. Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 102 (1998). Third, as a

practical matter, the Court will need to resolve the jurisdictional issue,

which even if it resolves in favor of jurisdiction in this Court is

nonetheless an issue properly decided by a three-judge panel, not the en

banc Court. Fourth and finally, the Executive defendants do not

identify a split in authority either in this Circuit or between the

circuits that requires immediate resort to an en banc panel.

CONCLUSION

The petition for initial hearing en banc should be denied.


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Lawrence J. Joseph

D.C. Bar #4647771250 Connecticut Ave. NW, Ste. 200


Tel: 202-669-5135

Fax: 202-318-2254



Forum Education & Legal Defense

Fund



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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the FEDERAL RULES OFAPPELLATE

PROCEDURE, and Circuit Rule 29-2(c)(2), I certify that the foregoing

amicus curiae brief is proportionately spaced, has a typeface of Century

Schoolbook, 14 points, and contains 1,820 words, including footnotes,

but excluding this Brief Form Certificate, the Table of Citations, the

Table of Contents, the Corporate Disclosure Statement, and the

Certificate of Service. The foregoing brief was created in Microsoft Word

2010, and I have relied on that softwares word-count feature to

calculate the word count.


Lawrence J. JosephD.C. Bar #464777

1250 Connecticut Ave. NW, Ste. 200


Tel: 202-669-5135

Fax: 202-318-2254



Forum Education & Legal DefenseFund



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CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of April, 2012, I electronically

filed the foregoing amicus curiae brief with the Clerk of the Court for

the U.S. Court of Appeals for the Ninth Circuit as an exhibit to the

accompanying motion for leave to file by using the appellate CM/ECF

system. I further certify that, on that date, the appellate CM/ECF

systems service-list report showed that none of the participants in the

case were unregistered for CM/ECF use.

Lawrence J. Joseph, D.C. Bar #464777

1250 Connecticut Ave, NW, Suite 200


Tel: 202-669-5135

Fax: 202-318-2254




12-15409 #23

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