Saturday, December 19, 2009

Obama Administration says Ninth Circuit Judge's Administrative Opinion not "Binding"

In a statement issued by Elaine Kaplan (pictured) Squareelainekaplan OPM counsel and "open lesbian,"  the OPM and the Obama Administration refuse to comply with Ninth Circuit Judge Kozinski's order granting spousal benefits to lesbian federal employee's same-sex partner, previously discussed here.

Kaplan's statement, not yet on the OPM website but on the Advocate website here, provides in part:

It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary. He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski’s 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 examined our options and consulted with the DOJ. DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative 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 that the law does not permit OPM to allow this enrollment to proceed.

By characterizing Kozinski's order as administrative rather than an opinion by a judge in an Article III capacity, the Statement seeks to diffuse any arguments raising separation of powers issues.  The statement ends with a note that Obama has "personally" called for an end to DOMA. 

RR

http://lawprofessors.typepad.com/conlaw/2009/12/obama-administration-says-ninth-circuit-judges-administrative-opinion-not-binding.html

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