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1 JAMES R. MCGUIRE (CA SBN 189275)

[email protected]
2 GREGORY P. DRESSER (CA SBN 136532)
[email protected]
3 RITA F. LIN (CA SBN 236220)
[email protected]
4 MORRISON & FOERSTER LLP
425 Market Street
5 San Francisco, California 94105-2482
Telephone: 415.268.7000
6 Facsimile: 415.268.7522
7 JENNIFER C. PIZER (CA SBN 152327)
[email protected]
8 LAMBDA LEGAL, Western Regional Office
3325 Wilshire Boulevard, Suite 1300
9 Los Angeles, CA 90010-1729
Telephone: 213.382.7600
10 Facsimile: 213.351.6050
11 Attorneys for Plaintiff
KAREN GOLINSKI
12
UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA
14
SAN FRANCISCO DIVISION
15

16

17 KAREN GOLINSKI, Case No. 3:10-cv-00257 (CRB)

18 Plaintiff, PLAINTIFF KAREN GOLINSKI’S

LOCAL RULE 7-13 NOTICE
19 v. THAT MATTER REMAINS
UNDER SUBMISSION
20 UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT, and JOHN BERRY, Director
21 of the United States Office of Personnel
Management, in his official capacity,
22
Defendants.
23

24

25

26

27

28
PLAINTIFF’S LOCAL RULE 7-13 NOTICE
CASE NO. 3:10-cv-00257 (CRB)
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1 Recognizing that this matter was only recently transferred to this Court, Judge Breyer
2 presiding, on September 22, 2010, plaintiff Karen Golinski respectfully submits the following
3 notice pursuant to Local Rule 7-13 to provide the Court with some additional background to her
4 pending motion for a preliminary injunction.
5 I. PLAINTIFF’S MOTION HAS BEEN PENDING FOR NINE MONTHS.
6 Ms. Golinski filed her motion for preliminary injunction on January 26, 2010, requesting
7 that defendants be enjoined from violating Chief Judge Kozinski’s order remedying the
8 employment discrimination she was suffering. Because the earliest available hearing date on
9 Judge Armstrong’s calendar was June 15, 2010, Ms. Golinski moved to shorten time to allow the
10 motion to be heard sooner. The Court denied the request, but set an expedited briefing schedule
11 and stated that it “may . . . decide the matter on the pleadings or accelerate the hearing” in light of
12 “Plaintiff’s concerns and the import of the underlying issues.” Dkt. 22, at 2:1, 5-7. The motion
13 was fully briefed under the “expedited” briefing schedule as of March 19, 2010.
14 On June 8, 2010, counsel for Ms. Golinski received a message stating that “the Court will
15 be rescheduling [the June 15] hearing and we will notify you shortly of when the new hearing
16 date will be.” Counsel never received any further communication regarding a new hearing date.
17 At that time, the case management conference scheduled for June 15, 2010 was also taken off
18 calendar, and was never rescheduled.1
19 The case was then transferred to Judge Illston, due to Judge Armstrong’s unavailability,
20 on September 20, 2010. Judge Illston recused herself on September 22, 2010, resulting in
21 reassignment of the case to this Court.
22 Ms. Golinski continues to face irreparable harm while awaiting a determination on her
23 motion. Because adequate and comparable health coverage is not available for purchase,
24 Ms. Golinski’s spouse remains underinsured, and continues to forgo preventive care measures
25 that would be available to her at nominal cost under Ms. Golinski’s insurance plan. (See
26 Supplemental Declaration of Karen Golinski in Support of Her Motion for Preliminary
27 1
As a result, no scheduling order is in place in the case. Fed. R. Civ. P. 16(b)(2)
(requiring case scheduling order be issued within 120 days of service of the Complaint).
28
PLAINTIFF’S LOCAL RULE 7-13 NOTICE
CASE NO. 3:10-cv-00257 (CRB) 1
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1 Injunction, Dkt. 52-A.) Ms. Golinski’s family faces the daily anxiety that her spouse will fall ill
2 and not be able to afford necessary treatment. (Id.) That anxiety is real, immediate, and cannot
3 be compensated by a later award of money. See Angotti v. Rexam, Inc., No. C 05-5264, 2006 WL
4 1646135, at *16 (N.D. Cal. June 14, 2006) (describing “[i]rreparable harm of anxiety” from being
5 underinsured). Moreover, forcing Ms. Golinski to make monthly payments for separate, inferior
6 insurance — rather than allowing her to add her spouse to her existing health plan as her similarly
7 situated heterosexual colleagues do — is a repeated and stinging act of discrimination that cannot
8 be erased through a monetary award.
9 II. SEVERAL OTHER MATTERS AWAIT A DECISION IN THIS CASE.
10 Additionally, there are several other matters that have been stayed pending resolution of
11 the present motion.
12 First, the insurer in Ms. Golinski’s case, Blue Cross Blue Shield, has appealed Chief
13 Judge Kozinski’s decision to the Judicial Council of the Ninth Circuit. Proceedings on that
14 appeal have been stayed pending resolution of this matter. (Request for Judicial Notice in
15 Support of Plaintiff’s Reply in Support of Motion for Preliminary Injunction, Dkt. 40, Ex. B (“In
16 the event that the final disposition or entry of a preliminary injunction in the Northern District of
17 California results in an order compelling OPM to authorize the enrollment of Ms. Golinski’s
18 spouse, the parties expect that enrollment subsequently will occur and that the pending petition
19 for review before the Judicial Council could become moot”), and Ex. C (staying the appeal
20 pending a ruling from this Court).)
21 Second, Chief Judge Kozinski has issued a second order requiring that another employee
22 of the Ninth Circuit be permitted to enroll her same-sex spouse in her federal employee health
23 benefit plan and instructing OPM to rescind its contrary guidance. (Ex. A.) The Chief Judge
24 stayed that order pending resolution of Blue Cross Blue Shield’s administrative appeal which, as
25 noted, has been stayed pending resolution of this matter. (Ex. B.) Accordingly, that other
26 employee of the Ninth Circuit cannot obtain relief either until this Court rules on Ms. Golinski’s
27 motion.
28 Third, on August 2, 2010, Chief Judge Audrey Collins, of the United States District Court
PLAINTIFF’S LOCAL RULE 7-13 NOTICE
CASE NO. 3:10-cv-00257 (CRB) 2
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1 for the Central District of California, issued an order holding that the denial of health benefits to
2 the same-sex spouse of an employee of the Probation Office violated the prohibitions against
3 discrimination in the court’s Employment Dispute Resolution Plan. (Ex. C at 4.) Citing at length
4 Chief Judge Kozinski’s Orders in Ms. Golinski’s matter, Chief Judge Collins concluded that the
5 proper remedy would be enrollment of the claimant’s spouse in the federal insurance program.
6 (Id. at 5.) However, Chief Judge Collins noted that the United States Office of Personnel
7 Management (“OPM”) had “ignored” those Orders to cease its interference with such enrollment
8 in Ms. Golinski’s case, and that “[t]hough Ms. Golinski has moved for a preliminary injunction in
9 her civil case, the issue has not yet been resolved.” (Id. at 3-4.) Chief Judge Collins concluded
10 that “no action I could take at the current time is likely to accomplish this any more expeditiously
11 than the process already set into motion by Judge Kozinski.” (Id. at 5.) Accordingly, Chief Judge
12 Collins refrained from issuing an order to either the Administrative Office or OPM “pending
13 resolution of the issues raised in the Golinski civil case.” (Id.)
14
Dated: September 27, 2010 MORRISON & FOERSTER LLP
15

16
By: /s/ Rita F. Lin
17 Rita F. Lin
18 Attorneys for Plaintiff
KAREN GOLINSKI
19

20

21

22

23

24

25

26

27

28
PLAINTIFF’S LOCAL RULE 7-13 NOTICE
CASE NO. 3:10-cv-00257 (CRB) 3
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EXHIBIT A
 Case:
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DktEntry:
of 5 2

FILED
NOTFOR PUBLICATION MAt112212
MOL
El,uL
cz Y.cc
.
s alDoWYE
aT FAppt:
u
UNITED STATESCOURT OFAPPEALS
FOR THE NINTH CIRCUIT

IN RECOMPLAINTOFWORKPLACE No.10-80075
DISCRIMINATION
ORDER

Anemployeehasbeendeniedtherighttoenrollherwifeinthehealth
insurancebenefitsprogramthatcoversspousesofcourtemployeesbecauseshe
andherspouseareofthesamesex.Theemployeeassertsthatthisisprohibited
workplacediscriminationandasksforbackpayandanorderdirectingenrollment
ofherwifeforbenefits.lam chargedwithresolvinghercomplaint.U.S.Courtof
AppealsfortheNinthCircuit,EmploymentDisputeResolutionPlan3(1997)
(hereinafterEDRPlan).
Theemployeehasbeenandisbeingdiscriminatedagainstbasedonhersex
andsexualorientation.lnreGolinski,587F.3d956,959(9thCir.2009),
*lnre
Golinski,587F.3d901,902(9thCir.2009).Nostatuteauthorizesthis
discrimination,evenassumingonecould.InreGolinski,587F.3dat902-03.The
employeeisthereforeentitledtoenrollherwifeforbenefitswithoutregardtoher
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PMC2
sexorsexualorientation,1d.at904.Untilthatoccurs,theemployeeisentitledto
backpayinanamountequalditothebenefitsshewouldhavereceived,buthasbeen
denied,undertheFEHBP.''lnreGolinski,587F.3dat9604seealsoInre
Golinski,No.09-80173(9thCir.Mar.5,2010)(orderauthorizingongoingback

1thereforeorderasfollows:
(1) Within30days,theAdministrativeOfficeoftheUnitedStatesCourts
(ki
AO''
)shallsubmittheemployee'sHealthBenefitsElectionform 2809toher
designatedinsurer.lnreGolinski,587F.3dat963.TheAO shallprocessany
futurebenefitformswithoutregardtothesexofthelistedspouse.ld.
(2) Within30days,theOfficeofPersonnelManagement(i$ OPM'')shall
rescindanyguidanceordirectivetothedesignatedinsurer(andanyotherplan)that
theemployee'swifeisnoteligibletobeenrolledasherspouseunderthetermsof
theFEHBPbecauseofhersexorsexualorientation,andthattheplanswould
violatetheircontractswithOPM byenrollingtheemployee'swifeasabeneficiary,

(3) OPM shallnotinterferewiththejurisdictionofthistribunal.Id.

Specifically,OPM shallnotadvisetheemployee'sdesignatedinsurerthat
providingcoveragefortheemployee'swifeviolatesDOMA oranyotherfederal
law.NorshallOPM interfereinanywaywiththedeliveryofhealthbenefitstothe
employee'swifeonthebasisofhersexorsexualorientation.Id.at963-94.
(4) Thedesignatedinsurershallenrolltheemployee'swifewithin30
daysofreceiptoftheappropriateformsfrom theAO,withoutregardtohersexor
sexualorientation.Id.at964.
(5) lreferthismattertotheAppellateCommissionerforahearingonthe
employee'sclaim forbackpay.1d.at963.Within35days,theCommissioner
shallfilearepol'tandrecommendationontheawardtheemployeeshouldreceive.
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Page3
1d,UnlessobjectionsarelodgedwiththeCommissionerwithin30daysafterhe
fileshisreportandrecommendation,itshallbecomeafinalorderby,forandof
thistribunal,thesameasif1hadenteredanorderfrom whichnoappealwastaken.
InreGoli nski,No.09-80173(9thCir.Mar.5,2010)(orderauthorizingongoing
backpay).TheCircuitandCourtofAppealsExecutiveshallthenpromptly
complete,andfolavardtometosign,anypaperworknecessaryfortheCourtto
satisfyitsliabilityfortheamountsawarded.ld.lfobjectionsarefiled,lwill
resumejurisdiction.ld.
(6) Aftertheconcl usionoftheinitialbackpayproceeding,Iauthorizethe
employeetomoveforadditionalbackpaybeforetheAppellateCommissioner
untilshe'spermittedtoenrollherwifeforthebenefitsaffordedanopposite-sex
spouseofacourtemployee.Id.Unlessobjectionsarelodgedwiththe
Commissionerwithin7daysofhisrecommendationsonanymotionstheemployee
electstofile,theCommissioner'srecommendationsshallbecomeafinalorderby,
forandofthistribunal,thesameasifIhadenteredanorderfrom whichnoappeal
wastaken.ld.ShouldtheCommissionerorderadditionalrelief,theCircuitand
Coul'tofAppealsExecutiveshallpromptlycomplete,andforwardtometosign,
anypaperworknecessaryfortheCourttosatisfyitsliabilityfortheamounts
awarded.ld.lfobjectionsarefiled,lwillresumejurisdiction.ld.
lauthorizetheemployeetotakeappropriateactiontosecurecompliance
withthisorder,suchasbypetitionforenforcementormandamus.InreGolinski,
587F.3dat964.

K
May11.2010
Date AlexKozinslti
ChiefJudge

TheClerkshallsendthisordertotheAdministrativeOfficeoftheUnited
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Pagc4
StatesCourtsandsel'vetheorder,theemployee'snameandacopyofourEDR
planontheOfficeofPersonnelManagementandthedesignatedinsurerinthe
mannerdescribedbyFed.R.Civ.P.4(h),(i).lfOPM orthedesignatedinsurer
wishes,itmayappealsomuchofthisorderasconcernsitusingtheprocedures
outlinedintheplan.SeeEDRPlanat9;Dep'tofAgric..FoodandNutrition
Servs.v.FLRA,879F.2d655,658-59(9thCir.1989),vacatedinpartonother
grounds,895F.2d1239(9thCir.1990).Anyotherindividualorpal
'
tyaggrieved
bythisproceedingmaysimilarlyappeal.
Case3:10-cv-00257-JSW Document70-2 Filed09/28/10 Page1 of 2

EXHIBIT B
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FILED
NOTFOR PUBLICATION MAt 112212
MOL
UNITEDSTATESCOURTOFAPPEALS ct
cl
xtL
lY.
.scG
tfaDWY
FApE
To pzRAl
.
s
FOR THENINTH CIRCUIT

IN RECOMPLAINTOFWORKPLACE No.10-80075
DISCRIMINATION
ORDER

Inanorderfiledconcurrentlywiththisorder,lgrantedrelieftothe
employeeinthismatter.InreComplaintofWorkplaceDiscrimination,No.10-
80075(9thCir.May11,2010)(ordergrantingrelieg.1suaspontestaysomuchof
thatorderasdirectstheemployee'sdesignatedinsurertotakeorrefrainfrom
taltingaction,id.at2,#4,inlightofapendingpetitionforreview inanother
matterthatraisesrelatedissues,InreGolinski,No.09-80173(9thCir.Jud.
CouncilfiledDec.17,2009).ThisstayshallremainineffectuntiltheJudicial
Councildisposesofthepetitionforreview filedinlnreGolinski.Thetimeforthe
designatedinsurertopetitionforreview ofmyotherorderinthismattershallrun
from theexpirationofthisstay,notfrom today.
&
May 11-2010
Date AlexKozinski
ChiefJudge
Case3:10-cv-00257-JSW Document70-3 Filed09/28/10 Page1 of 7

EXHIBIT C
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
EDWARD R. ROYBAL FEDERAL BUILDING
CHAMBERS OF AUDREY B. COLLINS, CHIEF JUDGE
255 East Temple Street, Suite 670
Los Angeles, CA 90012

August 2, 2010

Michael S. Smith
[redacted]
[redacted]

Michelle A. Carey
Chief Probation Officer
United States District Court
United States Courthouse
312 North Spring Street, 6th Floor
Los Angeles, California 90012-4701

Dear Mr. Smith and Chief Carey:

On July 27, 2010, I held a hearing on the July 6, 2010 Complaint filed by Mr.
Smith under the United States District Court for the Central District of California’s
Employment Dispute Resolution Plan (the “EDR Plan”). I conducted this
administrative hearing in my capacity as a hearing officer under the EDR Plan, and
not in my capacity as a district judge. (EDR Plan, Chap. 8, § IX.C.1.) Though no
material facts regarding Mr. Smith’s claim were in dispute, I have found it helpful to
set forth below an outline of the relevant facts involved, followed by my analysis of
the possible remedies available to Mr. Smith.

Factual Background

Mr. Smith has worked for the United States Probation Office of the Central
District of California for twenty years, since 1990. On June 17, 2008, he married his
partner of twenty years, Greg Stegall, on the first day marriage was legally available
to same-sex couples in the State of California. In December 2009, during the
judiciary’s “open enrollment” period for the 2010 plan year, Mr. Smith attempted to
add Mr. Stegall as a family member beneficiary to his medical, dental, and vision
insurance plans. On December 7, 2009, Mr. Smith completed a Federal Employees
Health Benefit Program (“FEHB”) “Health Benefits Election Form” identifying Mr.
Stegall as his spouse, and seeking to change his medical insurance enrollment from
the “Kaiser Permanente-High (Self Only)” option he had previously chosen to the
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Michael S. Smith
Michelle A. Carey
August 2, 2010
Page 2 of 6

“Kaiser Permanente-High (Self + Family)” option, under which both Mr. Smith and
Mr. Stegall would have been insured. The next day, December 8, 2009, the
completed form was faxed to the Administrative Office of the United States Courts
(the “AO”).

Also on December 8, 2009, Mr. Smith attempted to add Mr. Stegall to the
Federal Employee Dental and Vision Insurance Program (“FEDVIP”). Enrollment
changes for FEDVIP are processed online, through the “BENEFEDS” website. In
attempting to add Mr. Stegall, Mr. Smith received an error message from the website,
explaining that “[y]our gender and the gender you selected for your spouse cannot be
the same.” The website thus effectively prevented Mr. Smith from adding Mr. Stegall
to his dental and vision insurance plans.

Though the process took somewhat longer, Mr. Smith was also prevented from
adding Mr. Stegall to his medical insurance plan. On January 22, 2010, Cynthia
Roth, Chief of the Benefits Division of the AO, wrote to Mr. Smith, advising him
that, pursuant to the Defense of Marriage Act, Public Law 104-199, and Office of
Personnel Management (“OPM”) regulations, same-sex partners did not “meet the
definition of ‘spouse,’” and were thus not “eligible family members.” Ms. Roth went
on to state, “[t]his means that, regardless of the legal recognition of such relationships
provided under the laws of any state, same-sex spouses or partners cannot receive
coverage under the FEHB program.”

Understandably unsatisfied with this outcome, Mr. Smith pursued the course
of action available to him under the EDR Plan. He filed a formal request for
counseling on February 22, 2010, asserting that the denial of insurance coverage to
his spouse constituted impermissible discrimination on the basis of gender and/or
sexual orientation, in violation of the EDR Plan. He requested that he “be given the
same rights and benefits offered to all other legally married federal workers -- to be
allowed to add [his] spouse to [his] FEHB medical plan and FEDVIP dental and
vision plans.”

Counseling was performed by the Probation Office’s EDR Coordinator on

February 26, 2010, in compliance with the EDR Plan. (EDR Plan, Chap. 8, § VI.)
Having failed to resolve the issue during the counseling period, Mr. Smith next
sought a “conference with the appointing officer,” which was held on April 1, 2010.
(EDR Plan, Chap. 8, § VII.) Subsequently, he sought mediation of his claim, which
took place on June 14, 2010, before a Ninth Circuit mediator. (EDR Plan, Chap. 8,
§ VIII.) The next step was to file a complaint “with the chief judge of the court of the
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Michael S. Smith
Michelle A. Carey
August 2, 2010
Page 3 of 6

employing office which is the respondent to the complaint,” which Mr. Smith did on
July 6, 2010, bringing the matter to my attention. (EDR Plan, Chap. 8, § IX.)

At each stage of these proceedings, the Probation Office took the position, not
that Mr. Smith’s claim had no merit, but that the Probation Office had no power to
grant the relief Mr. Smith requested. That is, the Probation Office indicated that it
could submit Mr. Smith’s paperwork, but that his request to add his husband to his
FEHB and FEDVIP coverage was subject to the control of OPM, not the Probation
Office.

Analysis

Based on OPM’s past practice, Probation’s position is not unfounded. Mr.

Smith is not the first employee of the federal judiciary to seek FEHB and FEDVIP
coverage for a same-sex spouse since such marriages became recognized in
California. Chief Judge Alex Kozinski, of the Ninth Circuit Court of Appeals, acting
as “chief judge of the court of the employing office which is the respondent to the
complaint” with regard to complaints brought by circuit employees, has more than
once found that the denial of FEHB and FEDVIP coverage to the same-sex spouse
of a judicial employee constitutes discrimination based on gender and sexual
orientation, in violation of the court’s guarantee of equal employment opportunity.
See, e.g., In re Golinski, 587 F.3d 956, 957, 959 (9th Cir. 2009); In re Golinski, 587
F.3d 901, 902 (9th Cir. 2009). In addressing the claims of Ninth Circuit staff attorney
Karen Golinski, Judge Kozinski initially ordered the AO to submit Ms. Golinski’s
benefits forms to her chosen insurer, and the AO complied. However, OPM
intervened, directing the insurer not to process Ms. Golinski’s request to add her wife
to her plan. In re Golinski, 587 F.3d at 958. Judge Kozinski then ordered OPM to
“rescind its guidance or directive” to the insurer; to “cease at once its interference
with the jurisdiction of this tribunal”; and not to “interfere in any way with the
delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual
orientation.” Id. at 963-64. He also ordered the insurer to enroll Ms. Golinski’s wife,
and awarded back pay to Ms. Golinski in an amount equal to “the cost of obtaining
comparable private insurance for her wife” for the period in which she was denied the
ability to insure her wife through the federal insurance plans. Id. at 960.

However, Judge Kozinski’s November 2009 order did not resolve the matter.
The insurer appealed his decision within the administrative framework, and OPM
essentially appears to have ignored his order. Ms. Golinski subsequently filed an
action in the Northern District of California seeking mandamus relief against OPM,
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Michael S. Smith
Michelle A. Carey
August 2, 2010
Page 4 of 6

and further administrative proceedings have been stayed in light of the filing of this
civil action. Though Ms. Golinksi has moved for a preliminary injunction in her civil
case, the issue has not yet been resolved.

In deciding Mr. Smith’s claim, the EDR Plan directs that I “shall be guided by
judicial and administrative decisions under the laws related to Chapters Two through
Seven of this Plan and by decisions of the judicial council of the appropriate circuit
under Section VIII of this Chapter.” (EDR Plan, Chap. 8, § IX.C.2.f.) Though the
EDR Plan at issue here is technically distinct from the EDR Plan that covers Ninth
Circuit employees such as Ms. Golinski, there is no substantive difference between
the employment discrimination provisions of the two plans. The EDR Plan was based
on the Model Plan adopted by the Judicial Conference of the United States, and any
differences from that Model Plan were required to be approved by the Ninth Circuit
Judicial Council. (EDR Plan, Chap. 1, § 1.) Thus Judge Kozinski’s analysis of Ms.
Golinski’s claims under the terms of the Ninth Circuit EDR Plan is, if not exactly
binding here, extremely persuasive. It also comports with my reading of the EDR
Plan.

The EDR Plan prohibits discrimination against employees based on both

gender and sexual orientation. (EDR Plan, Chap. 2, § I.) As Judge Kozinski stated,
“[t]he availability of health insurance for oneself and one’s family is a valuable
benefit of employment, and denial of such a benefit on account of sex and sexual
orientation violates” the EDR Plan’s anti-discrimination provision. In re Golinski,
587 F.3d at 902. Judge Reinhardt reached the same conclusion in evaluating a similar
claim brought by a deputy federal public defender in the Central District under the
Ninth Circuit’s Employment Dispute Resolution Plan for Federal Public Defenders
and Staff. In re Levenson, 560 F.3d 1145, 1146 (9th Cir. 2009). I see no difference
between Mr. Smith’s circumstances and the claims evaluated by Judges Kozinski and
Reinhardt. Accordingly, I find that preventing Mr. Smith from adding his spouse to
his FEHB and FEDVIP insurance plans, solely on the basis that his spouse is male,
violates the EDR Plan.

Having found that a violation has occurred, the more difficult question is to
determine what remedy I can offer Mr. Smith. For the reasons previously explained
in detail by both Judges Kozinski and Reinhardt, Mr. Smith is unquestionably entitled
to back pay, in an amount equal to the cost of obtaining comparable private insurance
for his husband for the period in which he has been denied the ability to insure his
husband through the federal insurance plans. In re Golinski, 587 F.3d at 959-60; In
re Levenson, 587 F.3d 925, 937 (9th Cir. 2009). As in both In re Golinski and In re
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Michael S. Smith
Michelle A. Carey
August 2, 2010
Page 5 of 6

Levenson, the EDR Plan provides for an award of back pay for violations of the EDR
Plan when the statutory criteria of the Back Pay Act are satisfied, which I find to be
true in this case. 5 U.S.C. § 5596; EDR Plan, Chap. 8, § XI.B.6. Further, Mr. Smith
“will be entitled to accrue back pay” until he “begins to receive FEHBA and FEDVIP
coverage for his spouse.” In re Levenson, 587 F.3d at 937.

Undoubtedly Mr. Smith would prefer to receive coverage for his husband
through the federal insurance program, as this would more truly comport with his
original request that he “be given the same rights and benefits offered to all other
legally married federal workers -- to be allowed to add [his] spouse to [his] FEHB
medical plan and FEDVIP dental and vision plans.” Certainly such an outcome
would be preferable from the standpoint of the federal judiciary, as insuring Mr.
Smith’s husband through the FEHB and FEDVIP programs would likely be cheaper
than paying for Mr. Stegall to continue his individual insurance coverage. However,
no action I could take at the current time is likely to accomplish this any more
expeditiously than the process already set in motion by Judge Kozinski. Accordingly,
I will refrain from ordering either the AO or OPM to take any steps with regard to Mr.
Smith’s insurance coverage, pending a resolution of the issues raised in the Golinski
civil case. In the meantime, the Probation Office shall provide Mr. Smith with back
pay in an amount equal to the cost of obtaining comparable private medical, dental,
and vision insurance coverage for his spouse, from the time his December 2009
election to add his husband to his coverage would have been effective, until such time
as Mr. Smith is allowed to add Mr. Stegall to his FEHB and FEDVIP coverage
(assuming no intervening material changes in his employment or marital status). This
includes amounts accrued from the first pay period of 2010 to the present, as well as
amounts that may accrue in the future.

I shall not set an exact amount for this award of back pay at the present time.
Based on the position of the Probation Office, I believe the parties can come to a
mutual agreement on the appropriate amounts, both past and future, by meeting and
conferring. However, I will retain jurisdiction over this matter, to resolve any
disputes that may arise on this issue, or any other. Likewise, if OPM’s position
changes, whether as a result of the Golinski case or otherwise, either party is free to
bring that to my attention and request a modification of the terms of this order.

Pursuant to the EDR Plan, either party may petition for review of this decision
by the Judicial Council of the Ninth Circuit, in writing, within 30 days of the date of
this letter. (EDR Plan, Chap. 8, § X.)
 Case3:10-cv-00257-JSW Document70-3 Filed09/28/10 Page7 of 7

Michael S. Smith
Michelle A. Carey
August 2, 2010
Page 6 of 6

Thank you both for your cooperation in this matter.

Sincerely,

Audrey B. Collins
Chief United States District Judge