Barack Obama | Discrimination | DOMA | John Berry | News

Federal Agency Denies Benefits to Spouse of Lesbian Employee

In late November I posted about the White House's order to the Office of Personnel Management to defy a 9th Circuit Court of Appeals judge's order to provide health benefits to the spouse of a lesbian employee.

Golinski Today, Kerry Eleveld reports:

"The Office of Personnel Management has concluded that it does not have the legal authority to provide benefits to the spouse of Karen Golinski, a staff attorney who works at the U.S. court of appeals for the ninth circuit in San Francisco...OPM attorneys consulted with the Department of Justice on this case, and the key to the case, according to the OPM official, was that Kozinski was presiding over an administrative proceeding that’s an internal employee grievance procedure — he was not serving in his official capacity as a ninth circuit judge. '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,' reads OPM’s statement official statement. 'He was not acting as a federal judge in a court case.' Based on that distinction, DOJ concluded that Kozinski’s order was not legally binding. If it were legally binding, OPM would have been faced with either appealing the decision or complying with the order."

They have a full statement from Elaine Kaplan, OPM General Counsel here.

Americablog goes off:

Funny, but that's the judge's job to decide, not some Obama appointee. You don't get to just decide that a judge doesn't have the authority to order you what to do. If you don't like it, you appeal. You don't just ignore it, a la George Bush. Even weird, the administration is now claiming that DOMA precludes them from following the judge's order.

Uh, would that be the same DOMA that candidate Obama called "abhorrent" during the campaign. The same DOMA that Obama promised to repeal. Yeah, not so much anymore. There's no plan to touch DOMA at all now. At least until Obama is re-elected, if he's re-elected. So now, yet again, we're told that because the President is refusing to follow through on his promise on DOMA, he can't do anything else for us because of DOMA.

Of course, it's interesting to note that DOMA came up during the review of this case, and the judge said DOMA wasn't even relevant. So now we have the Obama administration doing over the head of a judge to say that DOMA precludes them from doing something when the judge say it most certainly does not.

We reported this morning that Newsweek says Obama won't do anything on gay issues next year. Perhaps that's not entirely true. I have a hunch he's going to find the time to take a few more slaps at us, and then some.

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  1. Why did we elect this guy again?

    Posted by: Revolution | Dec 18, 2009 5:56:11 PM

  2. give me a break John McCain would have had our backs? LMAO

    Posted by: David | Dec 18, 2009 6:37:08 PM

  3. The White House MUST uphold the law until it is rightfully CHANGED through legislation or by a court overturning a law on constitutional grounds. We can't just ignore the law when it serves our favor.

    Remember Bush?

    Posted by: Brian in Texas | Dec 18, 2009 6:51:18 PM

  4. @ Brian:

    So a court ordering OPM to give benefits to a gay employee is not enough? I thought it was the Republicans and conservatives who fought "activist judges".

    You really come across as quite the apologist. The Obama Admin tells us to take every change demanded by conservative Dems and Republicans on health care because it's so important...but when a judge orders it to grant health care benefits it denies the order's standing? They couldn't even hide under the court order and say they couldn't fight it?

    Sorry, hon. The Obama Admin is doing EXACTLY the same thing as the Bush Administration when they claim the court doesn't have the power.

    Posted by: Dalton | Dec 18, 2009 7:42:05 PM

  5. Dalton, if you read the article it says:

    "Kozinski was presiding over an administrative proceeding that’s an internal employee grievance procedure — he was not serving in his official capacity as a ninth circuit judge. '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,' reads OPM’s statement official statement. 'He was not acting as a federal judge in a court case.' Based on that distinction, DOJ concluded that Kozinski’s order was not legally binding. If it were legally binding, OPM would have been faced with either appealing the decision or complying with the order."

    Karen Golinski is an employee of the court and in this case the judge was acting as her "boss/manager" not as a federal judge.

    Posted by: Brian in Texas | Dec 18, 2009 7:54:42 PM

  6. To David re: "John McCain would have had our backs?"

    Of course not. But Obama doesn't either. The LGBT community should demand the dignity of being attacked by our enemies, not our friends.

    Dems should not get the LGBT vote in 2010 unless they repeal DADT and enact ENDA, in 2010. These are both very popular moves with the general public, the Dems have unusually significant majorities to accomplish this in this particular Congress, and should have been done this year already.

    Get it done.

    Posted by: Randy | Dec 18, 2009 8:16:15 PM

  7. Brian in Texas,

    You're immediately accepting the OPM's explanation, without bothering to look at the actual judge's order, which is a formal order, not some dude sitting around a conference table offering helpful hints and take-em-or-leave-em recommendations, like the OPM is trying to make it sound. It's a disingenuous move by the OPM saying the judge "was not acting as a federal judge in a court case," a little like saying "I don't have to pay this speeding ticket because the US Supreme Court hasn't gone to full trial on my case and ordered me to do so."

    The judge in this case very specifically and at length describes in his order why he does have the authority to rule here. You can see a full copy of the official ruling,in PDF form, here:

    Judge Kozinski writes, for example: "Congress has decided that the Judiciary's EDR tribunals are the only forum where judicial employees may seek redress for unlawful personnel actions. See Dotson, 398 F.3d at 171-76; Blankenship 176 F.3d at 1195; Lee v. Hughes 145 F.3d 1272, 1276 (11th Cir. 1998). Our employees can't appeal to the MSPB, they have no Bivens action and they aren't provided remedies by the Civil Service Reform Act or state law. See e.g., Dotson 398 F.3d at 171-76. If a judicial employee suffers an unjustified personnel action, such as being fired on account of race, sex, or religion, the only remedy possible would come from an EDR tribunal. Our EDR tribunals must therefore have the authortiy to grant full relief... If that's not true, judicial employees who are the victims of discrimination would have no remedy at all."

    So what groups like Lambda Legal are now asking is if The OPM and the Obama administration disagree with this ruling, or feel that the judge doesn't have authority, then why aren't THEY going through the proper channels to argue their case in the proper forum rather than doing what's essentially a "nah, nah, nah, nah, I don't have to listen to you and you can't make me [shoves fingers in ears]" approach? Unless you are behaving like Dick Cheney, you do actually have to argue your case in the appropriate venue, you don't get to just say "well, I think I don;t have to follow this, so I don't."

    Posted by: bobbyjoe | Dec 18, 2009 8:44:18 PM

  8. Bobby Joe,

    Since when does the federal govt offer health benefits to partners of same sex employees?

    [The memorandum Obama signed Wednesday means same-sex partners of civil service employees can be added to the long-term care program, employees can use their sick leave to take care of domestic partners and children and same-sex partners of Foreign Service employees will be included in medical evacuations and housing allocations, according to the White House.

    But it does NOT grant full health-care coverage, which would require an act of Congress, White House spokesman Robert Gibbs said.]

    Posted by: Brian in Texas | Dec 18, 2009 9:07:16 PM

  9. For those new to the Road, Brian is the Official Obama Borg Queen for all of TexASS.

    Posted by: Michael @ | Dec 18, 2009 10:08:55 PM

  10. The ASS is you

    Posted by: DJ | Dec 18, 2009 11:07:30 PM

  11. John in Texas,

    Have you read Judge Kozinski's ruling? He doesn't just say "oh, you know what? Hey, gee, let's give this lesbian her benefits, 'cause wouldn't that be nice?" He lays out a specific legal argument that encompasses issues like what benefits are allowed, what is reconciled with DOMA, etc.

    Again, let's look at how a lot of your last post is phrased: "Robert Gibbs says..." "According to the White House..." Well, yeah, that's what THEY say. But what about what the Judge says in his official order?

    This doesn't answer why the OPM and this administration feels like they can just ignore and avoid actually having to address Judge Kosinski's specific order and his specific argument in the appropriate venue. Instead, they're apparently just going to stick their fingers in their ears and say "Nope you're wrong, lah lah lah, we're right, you're wrong, we know the law Judge and you don't, end of argument." That sure sounds a lot like Dick Cheney.

    Posted by: Bobbyjoe | Dec 18, 2009 11:51:35 PM

  12. obama is no friend to the LGBT community only to our votes and money things are not going to change as long as democrats take our money and votes for granted and the mid term elections should be used to drive this point home

    Posted by: walter | Dec 18, 2009 11:56:16 PM

  13. Anti-gay, pro-war, right-wing corporate establishment: thy name is Barack Obama.

    Posted by: leschuck | Dec 19, 2009 3:51:15 AM

  14. Brian in Texas is right. I love my peeps, but some you are sounding like the teabaggers. The Judge's order was not law binding, that's the reality, but some of you think they just made that up to oppress us.

    This is not a soap opera or conspiracy theory.

    Stop sounding like crazy people, please.

    Posted by: wondermann | Dec 19, 2009 6:43:49 AM

  15. The point is DOMA won't be touched by an administration that promised to deal with it. While McCain certainly isn't looking out for our best interests, he never promised to. That is what's important. So maybe instead of blindly supporting those that say they support us, how about we support those that are honest with us from the beginning. I've lost hope in Obama.

    Posted by: Donald | Dec 19, 2009 8:56:41 AM

  16. Boys,
    The back and forth baloney will turn Towleroad (a terrific resource) into just another blogosphere blather...

    Multiple posts DOES NOT make you relevant.

    Think it through, make your point & remember that less is more...

    w/ much love, Schteve!

    Posted by: stephen | Dec 19, 2009 10:57:50 AM

  17. What Brian is missing is that even if Kozinski was acting in his managerial capacity, he is a manager of a separate and coequal branch of government, not a low-level executive branch apparatchik who answers to John Berry. The judicial branch is entitled to independence in all of its functions, including the selection and employment conditions of its staff. Would it be OK if the administration decided that DOJ should now appoint judges' law clerks instead of having them selected by the judges? What if Congress passed a law saying that? Would it be constitutional?

    Posted by: Z | Dec 19, 2009 1:39:29 PM

  18. The only way to get a chance at a fair shake, is to vote in an Independent like Ron Paul.

    Both parties are liars, they appoint their pet Gays to keep us in check and vote for whoever uses the buzz words like Gay marriage & don't ask, don't tell.

    We & our politicos need to denounce Obama and his brood.

    Also, if anyone hasn't noticed, the attacks on Gays have increased, I believe this is the back lash against Obama, Gays support Obama, gives rednecks another reason for bashing.

    Posted by: GaryJ | Dec 19, 2009 7:04:51 PM

  19. Something doesn't smell right here. I find it difficult to accept that the administration can simply brush aside a legally binding order without actually going to court and arguing it. At the very least, it's extremely arrogant of the administration to do so, and a smack in the face to the admin law judge who made the ruling in the first place. I hope this is appealed, to get a ruling on this alone. This is nonsense.

    Posted by: DR | Dec 20, 2009 7:44:25 AM

  20. Hillary 2012, maybe this time the will of the people will be honored?

    Posted by: InExile | Dec 20, 2009 3:51:54 PM

  21. OPM is legally correct on this, though I don't like it. This ruling (and the one by Judge Reinhardt) are administrative in nature and OPM simply isn't bound. Unless either issue a court ruling overturning the applicable piece of US Code that defines spouse for Federal Health benefits this whole thing means nothing (other than support for their non-hetero committed staff). The Judiciary may be separate from the Executive Branch, but many of its benefits are under OPM jurisdiction by law.

    Posted by: JMK | Dec 20, 2009 5:52:26 PM

  22. I said I would wait to say my I told you so's, you know what I will wait some more just to see how much more of a fucking he is going to give you queens.

    Posted by: CAJIVA | Dec 20, 2009 6:23:07 PM

  23. Obama has signed federal hate crimes legislation into law and allowed some benefits for domestic partners of federal employees. That is a start... I would like things to progress faster, but I don't want to make the good the enemy of the perfect. He is eons better than Mccain or Bush on equality issues.

    Posted by: Brian in Texas | Dec 20, 2009 6:50:25 PM

  24. GOOD!

    She should get a job and earn her own benefits!

    Posted by: dhoward4 | Dec 21, 2009 6:56:06 AM

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