Lambda Legal Challenges OPM

Lawsuit seeks to end OPM ''interference'' in provision of benefits to wife of lesbian federal court employee in California

Lambda Legal announced on Wednesday that it has sued the Office of Personnel Management in federal court in California over OPM’s denial of same-sex partner health insurance coverage to Karen Golinski, a federal court employee. Ninth Circuit Court of Appeals Judge Alex Kozinski had ordered that the benefits be given to her this past November after initially having concluded earlier in the year that she was entitled to the benefits under current law.

Golinski is legally married in California to Amy Cunninghis, where Golinski has worked for the court of appeals for the past 18 years. After marrying Cunninghis in August 2008, Golinski filed the necessary paperwork to add Cunninghis to her family health care plan.

In January 2009, Judge Kozinski found that the Defense of Marriage Act (DOMA) did not preclude Golinski’s wife from being considered a ”member of family” — as used in the Federal Employees Health Benefit Act (FEHBA). This decision was not made in his role as an appellate judge hearing pending cases, but in his role as the court’s administrator under the Employment Dispute Resolution Plan (EDR Plan) adopted in the circuit.

OPM, however, responded to the news by ordering Golinski’s insurer not to include her wife in the coverage on the grounds that to do so under the FEHBA would violate DOMA.

In November, Kozinski issued a strongly worded opinion declaring that OPM and, by extension, the Executive Branch, had no authority to overrule his determination of the Judicial Branch’s interpretation of those laws as applied to its employees. He again ordered Golinski’s coverage to be expanded and ordered that OPM ”cease at once its interference” with the order.

When OPM neither appealed nor complied with Kozinski’s November order, Kozinski issued a ”Final Order” on December 22, 2009, that authorized Golinski to take further action to enforce his previous orders. Because this was a ”Final Order” regarding the EDR Plan administrative proceeding within the agency, the effect of this order was to authorize Golinski to file a lawsuit to enforce it.

That is what Golinski, with Lambda’s support, did on Wednesday. The Complaint filed in her case asks that the court order OPM to ”rescind…its prior guidance” to Golinski’s insurer preventing the coverage expansion and ”ceas[e] further interference.”

Unlike the case filed by the Gay & Lesbian Advocates & Defenders against OPM in 2009 in Massachusetts, Wednesday’s filing does not challenge whether DOMA is constitutional but instead only seeks for Judge Kozinski’s order to be enforced as to this one judicial employee.