Case3:10-cv-00257-JSW Document152

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JAMES R. MCGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (pro hac vice) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendants.

Case No.

3:10-cv-0257-JSW

PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO HER MOTION FOR SUMMARY JUDGMENT Date: Time: Dept.: Judge: September 16, 2011 9:00 a.m. Courtroom 11 Hon. Jeffrey S. White

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Defendants opposition concedes that the application of Section 3 of the Defense of Marriage Act (DOMA) to block coverage of Ms. Golinskis spouse is unconstitutional. (Dkt. 151-1 at 2.) As such, summary judgment is properly entered in Ms. Golinskis favor against defendants, for the reasons explained in her opening brief.1 Moreover, summary judgment is also proper for a second reason: In addition to violating her constitutional rights, denying Ms. Golinski equal access to spousal health coverage also violates the Federal Employee Health Benefits Act (FEHBA). FEHBA provides that [a] contract may not be made or a plan approved which excludes an individual because of . . . sex . . . . 5 U.S.C. 8902(f). (See Dkt. 133 at 28.) Defendants opposition does not contest that, had Ms. Golinski been a man, her spouse would be covered, and thus that her exclusion from coverage was because of sex, in direct violation of Section 8902(f). Instead, defendants argue that this statutory violation is justified because FEHBAs regulations purportedly prohibit same-sex spousal coverage. (Dkt. 151-1 at 2.) The regulation on which defendants rely provides: An enrollment [in the FEHB] for self and family includes all family members who are eligible to be covered by the enrollment. 5 C.F.R. 890.302(a)(1) (emphasis added). Defendants argue that family members is statutorily defined to exclude same-sex spouses. See 5 U.S.C. 8901(5) (member of family means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age . . . .) (emphasis added); 1 U.S.C. 7 (DOMA) (defining the word spouse to be limited to a person of the opposite sex who is a husband or a wife). That argument fails on two levels. First, the FEHBA regulation does not prohibit spousal coverage here. It simply states that FEHBAs coverage includes opposite-sex spouses and unmarried dependents under 22 years of age. [I]ncludes is a word of extension or enlargement rather than [] one of limitation or enumeration. See FTC v. MTK Mktg., Inc., 149 F.3d 1036, 1040 (9th Cir. 1998) (citation omitted). The regulation identifies those included in coverage. It nowhere identifies those

Ms. Golinski also incorporates by reference her reply to Bipartisan Legal Advisory Groups summary judgment opposition, filed herewith.
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excluded from coverage. Defendants focus on the fact that same-sex spouses do not fall within the statutory definition of member of family. That, however, is beside the point. Nothing in the regulation limits coverage to those statutorily defined as family members.2 Second, and more fundamentally, even if defendants interpretation of the regulation were correct, it is black-letter law that an implementing regulation cannot justify violation of the authorizing statute. [N]o deference is due to agency interpretations at odds with the plain language of the statute itself. Even contemporaneous and longstanding agency interpretations must fall to the extent they conflict with statutory language. Pub. Emps. Ret. Sys. v. Betts, 492 U.S. 158, 171 (1989). Defendants assert that the court reached a contrary conclusion in Gill v. Office of Personnel Management, 699 F. Supp. 2d 374, 385 (D. Mass. 2010). Gill, however, did not address Section 8902(f), and that section does not appear in the briefs submitted in that matter. (See Request for Judicial Notice, filed herewith, Exs. A and B.) For the foregoing reasons, Ms. Golinskis motion for summary judgment against defendants should be granted. Dated: July 22, 2011 MORRISON & FOERSTER LLP LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. By: /S/ Rita F. Lin RITA F. LIN Attorneys for Plaintiff KAREN GOLINSKI

Defendants appear to have abandoned any argument that the doctrine of expressio unius requires a more restrictive interpretation of the regulation. That is for good reason. That canon applies only where the language is ambiguous, and if the regulation were ambiguous, it would have to be read in harmony with Section 8902(f) and in a manner that avoids the serious constitutional concerns raised by defendants interpretation. (See Dkt. 133 at 29-30.)
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