Friday, February 25, 2011

Time to Slide Down the Dinosaur's Tail

It's the end of the week but the FEHBlog would be remiss if it failed to note that a federal judge in San Franciso has issued a show cause order to OPM in the wake of the Administration's decision to stop defending the constitutionality of the Defense of Marriage Act in court.  The court issued this decision in a case brought by a federal employee seeking to require OPM to provide self and family FEHB coverage to her same sex spouse.

The order reads in pertinent part as follows:
Based on the Executive Branch’s determination that the legislation is affirmatively unconstitutional, the Court requires responses to the following questions: (1) does the Office of Personnel Management (“OPM”) intend to reassess its position on its original instruction to Plaintiff’s insurer to decline to extend benefits to her same-sex spouse? (2) How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend? (3) Should the Court remand this matter to the Ninth Circuit’s administrative process for proper adjudication ofPlaintiff’s access to benefits for her wife? (4) On what basis can OPM defend its position to decline to extend benefits in a case in which such declination was based on the defense of unconstitutional legislation?
The Court requires a written response to this Order indicating the parties’ positions in response to the Statement and its potential effect on the outcome of this matter. A response shall be filed by Defendants by no later than February 28, 2011. Plaintiff may respond thereafter, by no later than March 7, 2011.
The FEHBlog thought that the Gill case now pending in the U.S. Court of Appeals for the First Circuit would bring this issue to a head but instead attention now must shared with the other coast.  There is activity in the First Circuit. Yesterday, the government sent a letter to the Court discussing its decision and today the Court entered the following order in that case:
On or before March 18, 2011, the parties are to confer and file a joint proposal as to how these cases should proceed in light of the government's letter of February 24, 2011. The proposal shall address, among other things, whether the government needs to clarify its litigation stance by filing a new brief. The government shall also inform us, at that time, when we should expect to learn that Congress will or will not seek to intervene or otherwise participate, as well as whether in its view this matter should be held in abeyance pending that Congressional decision. The government shall also address whether, in its view, the government appeals should be dismissed in light of the government's position. Appellant Dean Hara shall also address whether the government's letter affects whether his own appeal should proceed. The present briefing schedule is vacated pending consideration of the further filings.
 Stay tuned and enjoy the weekend.

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