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

pa-1382098

JAMES R. McGUIRE (CA SBN 189275)[email protected] P. DRESSER (CA SBN 136532)[email protected] F. LIN (CA SBN 236220)[email protected] Y. PARK (CA SBN 239928)[email protected]& FOERSTER LLP425 Market StreetSan Francisco, California 94105-2482Telephone: 415.268.7000Facsimile: 415.268.7522

JENNIFER C. PIZER (CA SBN 152327)[email protected] LAMBDA LEGAL, Western Regional Office3325 Wilshire Boulevard, Suite 1300Los Angeles, CA 90010-1729

Telephone: 213.382.7600Facsimile: 213.351.6050

Attorneys for PlaintiffKAREN GOLINSKI

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

KAREN GOLINSKI,

Plaintiff,

v.

UNITED STATES OFFICE OF PERSONNELMANAGEMENT,

Defendant.

Case No. 4:10-cv-00257 (SBA)

DECLARATION OF JAMES R.

McGUIRE IN SUPPORT OF

PLAINTIFF KAREN

GOLINSKISMOTION FOR

PRELIMINARY INJUNCTION

Date: June 15, 2010Time: 1:00 p.m.Place: Courtroom 1, 4th Floor

United States Courthouse1301 Clay Street

Oakland, California 94612

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

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pa-1382098

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I, James R. McGuire, hereby declare and state as follows:

1. I am a partner of the law firm of Morrison & Foerster LLP, which is co-counsel ofrecord for plaintiff Karen Golinski. I am licensed to practice law in the State of California and

am admitted to practice before this Court. I make this declaration of my own personal

knowledge, and, if called as a witness, could and would testify competently to the matters stated

herein.

2. Attached as Exhibit I is a true and correct copy of an amended order inIn reEmployee Dispute Resolution Plan (9th Cir.), issued by the Chief Judge of the United States

Court of Appeals for the Ninth Circuit on November 24, 2008.

3. Attached as Exhibit J is a true and correct copy ofthe Statement from ElaineKaplan, OPM General Counsel, regarding the Chief Judges prior orders inIn the Matter of

Karen Golinski et ux, No. 09-80173 (9th Cir.), which is also available at http://

www.washingtonpost.com/wp-srv/nation/documents/statement_from_elaine_kaplan_opm.pdf.

4. Attached as Exhibit K is a true and correct copy ofan order inIn the Matter ofKaren Golinski et ux, No. 09-80173 (9th Cir.), issued by the Chief Judge of the United States

Court of Appeals for the Ninth Circuit on December 22, 2009.

5. Ms. Golinski and OPM have complied with the Courts meet and conferrequirement. On January 20, 2010, I left a voicemail for Steven Bressler, Assistant United States

Attorney informing him that Ms. Golinski had filed her complaint that day and anticipated filing a

motion for preliminary injunction on a shortened time schedule. I did not immediately hear back

from opposing counsel, and on January 25, 2010, I sent an e-mail reiterating Ms. Golinskis

decision to file a preliminary injunction on shortened time. That same day, opposing counsel

responded that OPM needed to review the motion for preliminary injunction and the request to

shorten time. Approximately one hour later, I replied to opposing counsels email, and set forth

in detail Ms. Golinskis primary arguments in support of her motion for preliminary injunction.

A true and correct copy of the January 25, 2010 e-mail exchanges between Mr. Bressler and me is

attached hereto as Exhibit L. On January 26, 2010, during a telephone conversation, opposing

counsel for OPM stated it would not stipulate to entry of Ms. Golinskis preliminary injunction.


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Opposing counsel stated that it was OPMs position that it is not subject to a mandamus because

Chief Judge Kozinskis November 19, and December 22, 2009 Orders inIn the Matter of Karen

Golinski et ux, No. 09-80173 (9th Cir.), are not binding on OPM.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on January 26, 2010, at San Francisco, California.

Dated:January 26, 2010 MORRISON & FOERSTER LLP

LAMBDA LEGAL

By: /s/ James R. McGuire

JAMES R. McGUIRE

Attorneys for PlaintiffKAREN GOLINSKI


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EXHIBIT I

Case3:10-cv-00257-JSW Document10-1 Filed01/26/10 Page1 of 2

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UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

FILEDNOV 2 2008

MOLly C. DWYER ClERKU.s. COURT OF APPEALS

In re: Employee DisputeResolution Plan)))))

---------)

AMENDEDORDER

In light ofKaren Golinski's October 2, 2008 complaint filed under theCourt's Employee Dispute Resolution Plan, and due to the holding inIn re Marriage Cases, 43 Cal. 4th 757, 183 PJd 384 (2008), the Director of theAdministrative Office of the United States Courts is ordered to submit Ms.Golinski's Health Benefits Election form 2809, which she signed and submitted onSeptember 2, 2008, to the appropriate health insurance carrier. Further, ifMs.Golinski submits any additional forms during open season, those forms should besubmitted as well.


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EXHIBIT J


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Subject STATEMENT FROM ELAINE KAPLAN, OPMGENERAL COUNSEL

STATEMENT FROM ELAI NE KAPLAN, OPM GENERAL COUNSEL

There have been some developments in the Ninth Circuit r egarding access to

benefits for same- sex spouses of federal employees, and t heres some confusion

over t his import ant issue. Specifically, Karen Golinski, an employee of the Federal

Courts, fi led 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 Circuits Equal Em ployment Opportunit y 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 sam e-sex spouses. OPM m ust adm inister the FEHBP in a lawful

manner, and the Department of Justice (DOJ) has advised OPM that providing thosebenefits would v iolate the so-called Defense of Marriage Act.

All federal em ployees be t hey 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 1 996, 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 meanonly opposite-sex spouses. In other words, the current federal law means that same-sex spouses are ineligible to be enrolled in federal benefit programs t hat define

eligibility based on t heir status as spouses. As the President has explained, t heAdministration 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 r epeal. He also has said he supports t he Domestic PartnerBenefits 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.

Its important to understand that Judge Kozinski was acting as an administrative

off icial in this m atter, reacting t o the concerns of an employee of t he judiciary. He

was not acting as a federal judge in a court case. This does not m ean that t he

inability to extend benefits t o Karen Golinskis 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 exam ined our options and consulted w ith t he DOJ. DOJ advised us

that the order issued by Judge Kozinski does not supersede our obligation to comply


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with existing law because it is not binding on OPM, as it was issued in hisadministr ative 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 t hat t he law does not perm it OPM to allow t hisenrollment to proceed.

This issue shows exactly why Congress needs to repeal DOMA and pass the DPBO.In fact, the passage of t he DPBO would remedy t his situation in a way that reaches

beyond t his individual case involving an employee of the judiciary by providing

benefits to same-sex domestic partners of all federal employees across thegovernm ent whether or not they are married. That is why the Administr ation has

testified before Congress on this crucial legislation, and why the President has

personally called for its passage.


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EXHIBITK


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F I LEDNOT FOR PUBLICATIONUNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEC, 22 2009MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

IN THE MATTEROF KARENGOLINSKI et ux. No. 09-80173

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 ShieldAssociation ("Blue Cross") has filed a timely notice of appeal; it petitioned theJudicial Council for review ofmy November 19,2009, order on December 17,2009. My prior orders in this matter are therefore final and preclusive on all issuesdecided therein as to others who could have, but did not appeal, such as the OfficeofPersonnel Management ("OPM") and the Administrative Office of the UnitedStates Courts. FederatedDep'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 areseparate and distinct from those concerning my now conclusively-determined


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page 2jurisdiction over governmental entities such as OPM, I authorize Ms. Golinski totake what further action she deems fit against any entity other than Blue Cross,without waiting for the Judicial Council's disposition ofBlue Cross's appeal.

December 22, 2009


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EXHIBITL


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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

Page 1 of 3Golinski v. OPM

1/26/2010

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 themotion for a preliminary injunction. To ensure that our position is clear to you in advance of that call, sothat our conversation can be meaningful, here it is: OPM gratuitously interfered with an ongoing EDRmatter pending before the Chief Judge of the Ninth Circuit. As a consequence of that action, the ChiefJudge ordered OPM to cease such interference. OPM failed to do so and also failed to appeal the orderto 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 theOrder are clear and certain, ministerial and Ms. Golinski has no other remedy available toher. OPM, moreover, has waived any and all defenses to the enforcement of the order atissue.

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 theterms of her employment. That discrimination cannot be remedied in any way other than byinjunctive 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 scrupulouslyfollowed the only avenue available to her for resolution of her claim, and has obtained, fromthe Chief Judge of the Ninth Circuit, an order granting her total relief. OPM, by contrast, willsuffer 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'sapproach.

Assuming that, at the end of our call, OPM is not willing to stipulate to entry of a preliminary injunction bywhich it agrees to comply with Judge Kozinski's order and that you have not persuaded me that weshould 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 andwill seek a hearing twenty-eight days from tomorrow: February 23, 2010. We will ask that the oppositionbe 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 schedulingtomorrow as well.

Regards,

James R. McGuire | Morrison & FoersterLLP425 Market Street | San Francisco, California 94105415.268.7013 | 415.268.7522 (fax)

From: Bressler, Steven [mailto:[email protected]]


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Sent: Monday, January 25, 2010 3:59 PMTo: 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 tosee your motion for injunction last week and to review it briefly before discussing a schedule. In fact, we must seeyour motion and supporting materials before OPM can take a definitive position on scheduling. I.e., we need toknow 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 betentative 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 insubstance last week was Ms. Golinski's arguments concerning irreparable harm. Like you, I am not optimistic thatwe will be able to fully resolve the matter. But I don't think we had a full conversation. It is now after close ofbusiness 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:[email protected]]Sent: Monday, January 25, 2010 6:31 PMTo: Bressler, StevenCc: 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 ourrequest that OPM stipulate, subject to Court approval, to permit Ms. Golinski's motion for a preliminary injunction tobe heard on shortened time. I have not heard from you. We intend to file a motion for a preliminary injunctiontomorrow and, at the same time, will ask the Court to shorten the time for opposition and hearing. Unless I heardifferently from you, I will represent to the Court that we attempted to obtain OPM's agreement on that issue, butwere unsuccessful.

Second, in connection with the preliminary injunction motion itself, Judge Armstrong's standing order (which I hadnot reviewed when we spoke) requires the parties to meet and confer in advance of the filing of a motion to attemptto 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 issuethat we can only resolve through judicial intervention. If I am mistaken about that, or you believe we need to discussit further, please let me know.

Regards,

James R. McGuire | Morrison & FoersterLLP425 Market Street | San Francisco, California 94105415.268.7013 | 415.268.7522 (fax)

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