Legal Effect of Federal Judge's Order as Hearing Officer Under Court's Employment Dispute Resolution Plan ( 2010 )

Legal Effect of Federal Judge’s Order as Hearing Officer
Under Court’s Employment Dispute Resolution Plan
The Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, who was acting in an
administrative capacity under the Court’s employment dispute resolution plan when he
issued an order to the Office of Personnel Management, lacked the authority to direct
OPM in its administration of the Federal Employees Health Benefits Program. Accord-
ingly, OPM is not legally required to comply with the directives in the order.
January 20, 2010
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF PERSONNEL MANAGEMENT
On November 19, 2009, Chief Judge Alex Kozinski of the U.S. Court
of Appeals for the Ninth Circuit, acting as a hearing officer under the
circuit’s employment dispute resolution (“EDR”) plan, issued an order
(“November 19, 2009 Order”) that, among other things, purported to
direct the Office of Personnel Management (“OPM”) to take or refrain
from taking certain actions with respect to a circuit employee’s efforts to
enroll her same-sex spouse in the Federal Employees Health Benefits
Program (“FEHBP”). See In re Golinski, 587 F.3d 956, 963–64 (9th Cir.
2009). You have asked whether OPM, which was not a party to the under-
lying EDR proceeding, must comply with those directives. This memo-
randum memorializes and further explains the prior advice our Office
provided to you on this question. See E-mail for Elaine Kaplan, General
Counsel, Office of Personnel Management, from David Barron, Acting
Assistant Attorney General, Office of Legal Counsel (Dec. 16, 2009,
17:37 EST). As we advised, Chief Judge Kozinski, who was acting in an
administrative capacity under the EDR plan when he issued the November
19, 2009 Order, lacked the authority to direct OPM in its administration
of the FEHBP. Accordingly, OPM is not legally required to comply with
the directives in the November 19, 2009 Order. 1
1 In a separate memorandum, we address whether OPM has the legal authority to direct
the circuit employee’s health insurance carrier not to enroll her same-sex spouse in the
FEHBP and, if so, whether federal law nonetheless affords OPM the discretion to permit
the enrollment to proceed. See Authority of OPM to Direct FEHB Program Carrier Not to
Enroll Individual Deemed Eligible by Employing Agency, 34 Op. O.L.C. 51 (2010).
25
34 Op. O.L.C. 25 (2010)
I.
In 1998, the Judicial Council of the Ninth Circuit approved an EDR
plan that grants circuit employees certain substantive rights and sets out
a procedure for the enforcement of those rights. See U.S. Court of
Appeals for the Ninth Circuit, Employment Dispute Resolution Plan
(rev. ed. 2000) (“Ninth Circuit EDR Plan”). The plan prohibits, among
other things, “[d]iscrimination against employees based on . . . sex . . .
and sexual orientation,” and it also incorporates the rights and protec-
tions afforded under the Ninth Circuit Equal Employment Opportunity
(“EEO”) plan. Id. at 2. In addition, the plan sets forth a detailed admin-
istrative process for the resolution of employment disputes involving
circuit employees. See id. at 1 (“Claims arising under this Plan or the
EEO Plan shall be treated in accordance with the procedures set forth in
this Plan.”). An employee who wishes to press a grievance must first
participate in mandatory counseling and mediation. Id. at 5–7. If the
grievance still remains unresolved, the employee may file a formal written
complaint with the chief judge of the relevant court. Id. at 7. The respond-
ent identified in the complaint must in all cases be “the employing office
that would be responsible for redressing, correcting or abating the viola-
tions(s) alleged in the complaint.” Id. For complaints that are not frivo-
lous, the chief judge or his designee must hold a hearing on the merits and
“may provide for such discovery and investigation as is necessary.” Id.
at 8. In the event that the presiding officer finds a violation of a substan-
tive right protected by the plan, he may award “a necessary and appropri-
ate remedy,” including placement of the aggrieved individual in a particu-
lar position of employment, reinstatement of the individual to a position
previously occupied, and relief under the Back Pay Act, 5 U.S.C. § 5596
(2006). Ninth Circuit EDR Plan at 9–10. “A party or individual” dissatis-
fied with the final decision may petition the Judicial Council of the Ninth
Circuit for review. Id. at 9.
Karen Golinski, a staff attorney for the Ninth Circuit Court of Appeals,
filed a complaint under this plan alleging that she had been the victim of
discrimination based on sex and sexual orientation in violation of both the
EDR plan itself and the incorporated EEO plan. See Golinski, 587 F.3d
901, 902 (9th Cir. 2009). Specifically, Ms. Golinski challenged the refusal
of the Director of the Administrative Office of the United States Courts
26
Legal Effect of Federal Judge’s Order as Hearing Officer
(“AOUSC”) to certify that Ms. Golinski’s same-sex spouse was a family
member entitled to benefits under her FEHBP plan. See id. The first order
issued in this dispute, on January 13, 2009 (“January 13, 2009 Order”),
explained that the Director refused certification because he thought it
barred as a result of the Defense of Marriage Act (“DOMA”), 1 U.S.C.
§ 7 (2006), which requires federal agencies to construe any use of the
word “spouse” in a federal statute to mean “a person of the opposite sex
who is a husband or a wife.” Id.; see Golinski, 587 F.3d at 902. In the
Director’s view, the statute governing the FEHBP, the Federal Employees
Health Benefits Act (“FEHBA”), 5 U.S.C. §§ 8901–8914 (2006), when
read in light of DOMA, did not permit OPM to contract with an insurance
carrier for a health benefits plan covering an employee’s same-sex spouse.
See Golinski, 587 F.3d at 902; see also 5 U.S.C. §§ 8901(5), 8903(1),
8905(a). This conclusion was consistent with OPM’s prior guidance to
agencies that, as a consequence of DOMA, “same-sex marriages cannot
be recognized for benefit entitlement purposes under . . . [the FEHBP].”
OPM, Benefits Administration Letter No. 96-111, at 3 (Nov. 15, 1996)
(“1996 Benefits Administration Letter”).
The January 13, 2009 Order disagreed with the Director’s conclu-
sion. The Order construed the FEHBA, even as effectively amended by
DOMA, to permit OPM to contract for health benefits for the same-sex
spouses of government employees. See Golinski, 587 F.3d at 902–04.
The Order further concluded that the denial of health insurance to Ms.
Golinski’s spouse violated the Ninth Circuit EEO plan (and, presumably,
the Ninth Circuit EDR Plan as well). See id. at 903. To remedy the viola-
tion, the Order directed the Director to submit Ms. Golinski’s health
benefits election form “to the appropriate health insurance carrier,” and
further directed that “future health benefit forms are also to be processed
without regard to the sex of a listed spouse.” Id. at 904.
In compliance with the January 13, 2009 Order, the AOUSC submitted
Ms. Golinski’s election form to her health insurance plan, the Blue Cross
and Blue Shield Service Benefit Plan (“Blue Cross Plan”). See Golinski,
587 F.3d at 958. Subsequently, OPM sent a letter to the AOUSC describ-
ing federal statutory requirements and the 1996 Benefits Administration
Letter, and explaining that “[o]fficials of agencies participating in the
Federal benefits programs administered by OPM must follow the guid-
ance provided in [OPM’s benefits administration letters].” Letter for
27
34 Op. O.L.C. 25 (2010)
Nancy E. Ward, Deputy Assistant Director, Office of Human Resources,
Administrative Office of the United States Courts, from Lorraine E.
Dettman, Assistant Director, Insurance Services Programs, Office of
Personnel Management at 1 (Feb. 20, 2009) (“AOUSC Letter”); see also
Golinski, 587 F.3d at 958. The AOUSC Letter further explained that OPM
had advised the Blue Cross Plan and another health plan that they could
not accept enrollment forms submitted by the AOUSC for coverage barred
by federal law. See AOUSC Letter at 2. OPM also sent a letter to the Blue
Cross and Blue Shield Association, the carrier for the Blue Cross Plan,
advising it that federal law barred the Plan from accepting Ms. Golinski’s
election form. See Letter for Stephen W. Gammarino, Senior Vice Presi-
dent, National Programs, Blue Cross and Blue Shield Association, from
Shirley R. Patterson, Chief Insurance Contracting Officer, Office of
Insurance Services Programs, Office of Personnel Management (Feb. 23,
2009) (“Blue Cross Letter”); see also Golinski, 587 F.3d at 958. Follow-
ing these actions, Ms. Golinski sought further relief from Chief Judge
Kozinski.
The November 19, 2009 Order concluded that OPM had “thwart[ed]
the relief . . . ordered [in the January 13, 2009 Order],” Golinski, 587 F.3d
at 958, and that Ms. Golinski was entitled to, inter alia, prospective relief
that would enable her spouse to enroll in her FEHBP plan, see id. at 960–
61. The November 19, 2009 Order expressed the view that an EDR hear-
ing officer’s “authority to order such relief is clear under the language of
the EDR plan” and was intended by Congress. Id. at 961. In addition,
asserting that “OPM’s actions implicate . . . the autonomy and independ-
ence of the Judiciary as a co-equal branch of government,” id., the Order
declared that “an EDR tribunal’s reasonable interpretation of a law ap-
plied to judicial employees must displace, for purposes of those employ-
ees, any contrary interpretation by an agency or officer of the Executive,”
id. at 963. The Order went on to direct the AOUSC to resubmit within 30
days Ms. Golinski’s election form to the Blue Cross Plan and to reiterate
that the AOUSC was to process benefit forms “without regard to the sex
of the listed spouse.” Id. The Order also directed OPM to “rescind” within
30 days its “guidance or directive” explaining to the Blue Cross Plan “and
any other plan” that “Ms. Golinski’s wife is not eligible to be enrolled as
her spouse under the terms of the [FEHBP] because of her sex or sexual
orientation, and that the plans would violate their contracts with OPM by
28
Legal Effect of Federal Judge’s Order as Hearing Officer
enrolling Ms. Golinski’s wife as a beneficiary.” Id. Finally, the Order
directed OPM “to cease at once its interference with the jurisdiction of
this tribunal” and, specifically, not to “advise [the Blue Cross Plan] that
providing coverage for Ms. Golinski’s wife violates DOMA or any other
federal law” 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 orienta-
tion.” Id. at 963–64. 2
On December 17, 2009, the Blue Cross and Blue Shield Association
filed a petition for review of the November 19, 2009 Order with the
Judicial Council of the Ninth Circuit, arguing that “the Judicial Council
has no jurisdiction over [the Association] under the EDR Plan” and that,
in any event, Chief Judge Kozinski’s conclusion that the FEHBA permits
enrollment of same-sex spouses was incorrect. See Petition for Review for
Blue Cross and Blue Shield Association at 1, 9, In re Golinski, No. 09-
80173 (9th Cir. Dec. 17, 2009). On December 22, 2009, Chief Judge
Kozinski issued a third order in this matter, stating that the time for ap-
pealing his prior orders had expired; that OPM and the AOUSC had not
appealed; and that, accordingly, his orders were “final and preclusive on
all issues decided therein as to [the AOUSC and OPM].” Golinski, No.
09-80173, at 1.
II.
In order to determine whether OPM is bound by the directives in the
November 19, 2009 Order, we first must determine the nature of Chief
Judge Kozinski’s authority in issuing that Order. There is no doubt that
federal judges exercising judicial power in resolving cases or controver-
sies pursuant to Article III of the Constitution can issue directives to
executive branch agencies. 3 But not all actions by federal judges are of
2 The November 19, 2009 Order also directed the Blue Cross Plan to “enroll Ms. Go-
linski’s wife within 30 days of receipt of the appropriate forms from the [AOUSC],
without regard to her sex or sexual orientation,” and ordered certain retrospective relief
for Ms. Golinski, including relief under the Back Pay Act, 5 U.S.C. § 5596. Golinski,
587 F.3d at 963–64.
3 See U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.”); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)
29
34 Op. O.L.C. 25 (2010)
this kind, and it is our view that, in presiding over the Golinski matter,
Chief Judge Kozinski was acting in an administrative capacity. 4 Accord-
ingly, when he issued the November 19, 2009 Order, Chief Judge
Kozinski was not exercising the Article III authority to resolve a case or
controversy, and thus cannot rely on that authority in purporting to direct
OPM.
The background to the administrative process established by the Ninth
Circuit EDR Plan makes clear why this is so. For much of the nation’s
history, the Executive Branch was responsible for the administration of
the federal courts. See Gordon Bermant & Russell R. Wheeler, Federal
Judges and the Judicial Branch: Their Independence and Accountability,
46 Mercer L. Rev. 835, 854–55 (1995). In 1939, however, Congress
enacted legislation transferring the authority to administer the courts from
the Department of Justice to the newly created AOUSC, which would
operate under the direction and supervision of the forerunner to the Judi-
cial Conference of the United States. See Pub. L. No. 76-299, § 304(1),
53 Stat. 1223, 1223; 28 U.S.C. § 604 (2006); see also H.R. Rep. No. 76-
702, at 4 (1939) (“The bill places the responsibility for judicial admin-
(in resolving “cases” and “controversies,” it is the federal courts’ “duty . . . to say what
the law is”); United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008) (“[T]he ‘judicial
Power of the United States’ is a power to make binding decisions, not to make sugges-
tions that the Executive Branch may accept or reject.” (citing Hayburn’s Case, 2 U.S. (2
Dall.) 409 (1792))).
4 See Mistretta v. United States, 488 U.S. 361, 404 (1989) (power wielded by judges
serving on U.S. Sentencing Commission “is not judicial power; it is administrative power
derived from the enabling legislation”); United States v. Ferreira, 54 U.S. (13 How.) 40,
47–48 (1852) (statute authorizing federal district judges to adjust claims made against the
United States, subject to approval of the Secretary of the Treasury, conferred power that
was “not judicial . . . in the sense in which judicial power is granted by the Constitution to
the courts of the United States”); see also Mistretta, 488 U.S. at 388 (observing that
circuit judicial councils, the Judicial Conference of the United States, the Rules Advisory
Committees, and the AOUSC, “some of which [entities] are comprised of judges, . . . do
not exercise judicial power in the constitutional sense of deciding cases and controversies,
but they share the common purpose of providing [through administration and rulemaking]
for the fair and efficient fulfillment of responsibilities that are properly the province of
the Judiciary”); Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 86 n.7
(1970) (characterizing circuit judicial councils as “administrative bodies”); cf. Forrester
v. White, 484 U.S. 219, 228 (1988) (“Administrative decisions, even though they may be
essential to the very functioning of the courts,” are not “judicial acts” for purposes of
determining judicial immunity from suit).
30
Legal Effect of Federal Judge’s Order as Hearing Officer
istration where it belongs—with the judiciary[.]”). That legislation also
created the circuit judicial councils, charging them with taking action on
reports submitted by the Director of the AOUSC. See Pub. L. No. 76-299,
§ 306, 53 Stat. at 1224; see also 28 U.S.C. § 332(d)(1) (2006) (“Each
judicial council shall make all necessary and appropriate orders for the
effective and expeditious administration of justice within its circuit.”).
With some adjustments, this statutory regime has remained in place to the
present day.
In 1978, Congress enacted the Civil Service Reform Act (“CSRA”),
Pub. L. No. 95-454, 92 Stat. 1111, which creates “an integrated scheme of
administrative and judicial review” “for evaluating adverse personnel
actions against federal employees.” United States v. Fausto, 484 U.S. 439,
443, 445 (1988) (internal quotation marks and brackets omitted). The
CSRA, however, affords no review rights to members of the “excepted
service”—a category that at present includes all employees of the Judici-
ary and Congress. See Dotson v. Griesa, 398 F.3d 156, 163–65, 173 n.10
(2d Cir. 2005); Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.
1999); Lee v. Hughes, 145 F.3d 1272, 1275 (11th Cir. 1998). Indeed,
when the CSRA was enacted, those two branches managed their work-
places unconstrained by a number of statutes and other legal authorities
applicable to private sector and executive branch employees. In 1980, the
Judicial Conference partially filled this gap by developing a model EEO
plan and requiring federal courts to adopt EEO plans of their own. See
Dotson, 398 F.3d at 172. These EEO plans put into more concrete form
the prior judicial policy of “‘follow[ing] the equal employment opportuni-
ty principles applicable to private sector and government employers.’” Id.(quoting Report of the Judicial Conference of the United States, Study of
Judicial Branch Coverage Pursuant to the Congressional Accountability
Act of 1995, at 6 (1996) (“CAA Report”)).
In 1995, Congress enacted the Congressional Accountability Act
(“CAA”), which extended to congressional employees the protections of
various workplace laws applicable to other public and private sector
employees. See 2 U.S.C. § 1302(a) (2006). The Executive Branch has no
enforcement authority under the CAA, see id. § 1361(f)(3); instead, the
Act vests such authority in an Office of Compliance (“OOC”) established
within the legislative branch, see id. § 1381. Congressional employees
with grievances arising under the CAA must first complete counseling
31
34 Op. O.L.C. 25 (2010)
and mediation; following that, they may initiate proceedings with the
OOC (or file a civil action in federal district court) and then seek judicial
review of final OOC decisions. See id. §§ 1401–1408.
As the Second Circuit has explained, Congress considered bringing
judicial employees within the ambit of the CAA, but ultimately did not do
so. See Dotson, 398 F.3d at 173. “Instead, Congress required the Judicial
Conference to prepare a report ‘on the application to the judicial branch’
of the labor laws in question, including ‘any recommendations the Judi-
cial Conference may have for legislation to provide to employees of the
judicial branch the rights, protections, and procedures under the [labor]
laws, including administrative and judicial relief, that are comparable to
those available to employees of the legislative branch under [the CAA].’”
Id. (quoting 2 U.S.C. § 1434 (2006)). The report submitted by the Judicial
Conference concluded that no legislation was “necessary []or advisable in
order to provide judicial branch employees with protections comparable
to those provided to legislative branch employees under the CAA.” CAA
Report at 2. The report justified this recommendation by pointing to the
Judiciary’s “internal governance system,” which it described as “a neces-
sary corollary to judicial independence.” Id. at 4. The report also dis-
cussed supplementing the Judiciary’s existing administrative apparatus
with a new “dispute resolution process” that would “expand upon existing
judicial branch procedures by enhancing the hearing process and provid-
ing for appeal of the hearing officer’s decision.” Id. at 7. Reflecting the
administrative nature of the proposed process, the report likened it to the
procedures that “Congress has adopted in establishing the Office of Com-
pliance.” Id.
In 1997, the Judicial Conference issued a model EDR plan, which sub-
stituted a new set of complaint procedures for those in the model EEO
plan but otherwise left much of the substance of that prior plan intact. See
Dotson, 398 F.3d at 175. The model EDR plan instructed “each court [to]
adopt and implement a plan based [on the model],” Judicial Conference of
the United States, Model Employment Dispute Resolution Plan at 1 (Mar.
1997), and the Judicial Council of the Ninth Circuit did so the following
year.
Consistent with the recommendations in the Judicial Conference’s re-
port, Congress did not enact any legislation providing for administrative
32
Legal Effect of Federal Judge’s Order as Hearing Officer
or judicial review of adverse employment decisions involving judicial
employees. See Dotson, 398 F.3d at 175. The Second Circuit has de-
scribed “Congress’s decision to exclude judicial branch employees from
the administrative and judicial review procedures of the CSRA, and from
subsequent legislation such as the CAA,” as “a conscious and rational
choice made and maintained over the years in light of both a proper re-
gard for judicial independence and recognition of the judiciary’s own
comprehensive review procedures for adverse employment actions, in-
cluding review by judicial officers.” Id. at 176.
Thus, as its history shows, the Ninth Circuit EDR Plan creates an ad-
ministrative process—akin to the CAA process, albeit without express
statutory authorization—designed to handle personnel-related matters
within the Judicial Branch. The federal courts themselves have character-
ized their EDR processes in this way. For example, the Second Circuit
has described the EDR process as “administrative review within the
judiciary.” Id. 5 And in the November 19, 2009 Order, Chief Judge
Kozinski similarly acknowledged that the EDR plan is “part of the tradi-
tion of decentralized administration and local management of the federal
courts.” Golinski, 587 F.3d at 958 n.1.
III.
We conclude that the directives in the November 19, 2009 Order do not
legally bind OPM because Chief Judge Kozinski, acting in an administra-
tive capacity under the Ninth Circuit EDR Plan, lacked legal authority to
direct OPM in its administration of the FEHBP. We assume—as is
stressed throughout the November 19, 2009 Order and suggested above—
that federal courts have a legal basis for establishing an administrative
process for the resolution of employment disputes involving judicial
employees. See Golinski, 587 F.3d at 961–63; supra pp. 30–33. Such
5 Although the Second Circuit in Dotson noted a “long history of judicial review with-
in the courts’ EEO plans,” 398 F.3d at 176 n.14 (emphasis added), we believe that the
court’s use of the term “judicial review” was intended only to point out that internal,
administrative review within the judiciary will often be overseen by officials who are, in
fact, federal judges. See id. (“Indeed the judiciary is unique among the branches of
government in being able to provide for itself some review of its administrative employ-
ment decisions by a judicial officer.” (emphasis added)).
33
34 Op. O.L.C. 25 (2010)
authority may be implicit in various statutory sources, see, e.g., 28 U.S.C.
§ 332(d)(1) (establishing judicial councils); id. §§ 41–49 (establishing
federal courts of appeals), or it may be incident to the federal courts’
inherent Article III power “to provide themselves with appropriate in-
struments required for the performance of their duties.” 6 But we have
been unable to identify any support—whether in the Constitution, the U.S.
Code, the Code of Federal Regulations, or the case law—for the specific
proposition that the federal courts have the authority to establish an inter-
nal administrative dispute resolution process that can direct OPM’s ad-
ministration of the FEHBP. Rather, the relevant legal materials support
the contrary conclusion.
A.
The November 19, 2009 Order suggests that Congress has statutorily
empowered the federal courts to establish EDR tribunals that can direct
OPM in its administration of the FEHBP. See Golinski, 587 F.3d at 961
(“Ordering enrollment is proper and within my jurisdiction because Con-
gress intended this tribunal to be the sole forum for adjudicating com-
plaints of workplace discrimination by employees of the Judiciary. With
that responsibility must come power equal to the task.”). We respectfully
disagree.
In determining whether Congress has delegated certain authority to an
administrative actor, the general rule is that the delegation must be either
“explicit” or “fairly . . . implied” by a statute. Ry. Labor Executives’ Ass’n
v. Nat’l Mediation Bd., 29 F.3d 655, 666 n.6 (D.C. Cir. 1994) (en banc);
see also Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 674 (D.C.
Cir. 1973) (“The extent of [an agency’s] powers can be decided only by
considering the powers Congress specifically granted it in the light of the
statutory language and background.”). The November 19, 2009 Order
does not identify, and we are unaware of, any statute that explicitly em-
powers a judicial officer presiding over an EDR hearing to control OPM’s
6 Ex parte Peterson, 253 U.S. 300, 312 (1920); see also CAA Report at 4 (“The judici-
ary’s internal governance system is a necessary corollary to judicial independence.”);
Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Consti-
tution, 86 Iowa L. Rev. 735, 742 (2001) (“Any Anglo-American ‘court,’ to be worthy of
that name, must have the ability to . . . regulate its internal administrative affairs[.]”).
34
Legal Effect of Federal Judge’s Order as Hearing Officer
administration of the FEHBP. Nor, in our view, is there anything in those
statutes potentially relevant to the service of judicial officers in that
capacity that can be “fairly” read to authorize the exercise of such control
over OPM. It is true that 28 U.S.C. § 332 empowers the judicial council of
each circuit to “make all necessary and appropriate orders for the effective
and expeditious administration of justice within its circuit.” 28 U.S.C.
§ 332(d)(1) (emphasis added). But there is no basis for concluding that the
councils’ authority to issue orders for internal administration also encom-
passes the issuance of orders empowering EDR hearing officers to direct
executive branch agencies. Indeed, there are affirmative indications that
Congress did not intend for judicial officers serving in an administrative
role to be able to exercise such directive authority, at least with respect to
OPM’s administration of the FEHBP.
To begin with, the FEHBA contains no suggestion that the federal
courts, as employing agencies operating in an administrative capacity, are
to have directive authority over OPM. The FEHBA specifically entrusts
OPM with administering the FEHBP. See Transitional Learning Cmty. at
Galveston, Inc. v. OPM, 220 F.3d 427, 429 (5th Cir. 2000); Kobleur v.
Group Hospitalization & Med. Servs., Inc., 954 F.2d 705, 709 (11th Cir.
1992). In particular, the FEHBA authorizes OPM to negotiate and con-
tract with private insurance carriers to offer health benefits plans to feder-
al employees—including judicial employees—and other eligible individu-
als, see 5 U.S.C. §§ 2104, 2105, 8901, 8902(a), 8903 (2006), and to
determine if carriers are contractually obliged to pay benefits to enrollees
for particular services, see id. § 8902(j). The FEHBA also authorizes
OPM to “prescribe regulations necessary to carry out” the Act, id.
§ 8913(a), which regulations may specify the “time at which and the
manner and conditions under which an employee is eligible to enroll in an
approved health benefits plan,” id. § 8913(b). Finally, the FEHBA specif-
ically vests jurisdiction to review claims challenging OPM’s administra-
tion of the FEHBP in the U.S. district courts and the U.S. Court of Federal
Claims, which have concurrent jurisdiction “of a civil action or claim
against the United States founded on [the Act].” Id. § 8912. There is no
provision of the FEHBA expressly granting any administrative entity—
including one within the Judicial Branch—a role in reviewing any actions
taken by OPM in administering the FEHBP—including actions taken with
respect to enrollment. Cf. Rosano v. Dep’t of the Navy, 699 F.2d 1315,
35
34 Op. O.L.C. 25 (2010)
1319 (Fed. Cir. 1983) (stating that the Navy, as the employing agency,
“had no power to change” “FEHB[P] options[] determined by OPM”); In
re Levenson, 587 F.3d 925, 934 (9th Cir. 2009) (observing that FEHBA
vests authority to enter into health insurance contracts for federal employ-
ees “in a single executive agency, OPM” and that it would not be appro-
priate to issue an order directing the Office of the Federal Public Defender
for the Central District of California (“FPD”) “to enter into separate
contracts [for its employees] with private insurers” because “[n]o statute
or regulation authorizes the FPD to enter into [such contracts] or to bind
the United States to any such contract”).
Consistent with our reading of the FEHBA, nothing in OPM’s regula-
tions implementing the Act indicates that OPM delegated to employing
agencies the authority to direct OPM in its administration of the FEHBP.
It is true that regulations promulgated by OPM give an employee’s “em-
ploying office” the authority to make initial enrollment determinations
and also require the employing agency to make an internal reconsideration
process available to an employee denied coverage by his employing
office. See 5 C.F.R. § 890.104 (2009). The regulations further provide that
“[a]fter reconsideration, the [employing] agency . . . must issue a final
decision,” id. § 890.104(e), and make that final decision subject to judi-
cial review, see id. § 890.107(a). Thus, at least to some extent, OPM
appears to have delegated to the relevant employing agencies the authority
to make initial enrollment decisions; to reconsider those decisions; and to
render them final, subject to judicial review. Cf. id. § 890.103(b) (“OPM
may order correction of an administrative error upon a showing satisfacto-
ry to OPM that it would be against equity and good conscience not to do
so.”). 7 But nothing in the regulations may be read to suggest that an
employing agency can, in internally reconsidering an enrollment denial,
issue a directive to OPM that binds it with respect to that enrollment,
including by preventing OPM from taking actions otherwise authorized by
statute.
7 We do not address here whether the relevant statutory authorities justify construing
this delegation to extend to employing entities within the Judicial Branch. See Authority
of OPM to Direct FEHB Program Carrier Not to Enroll Individual, 34 Op. O.L.C. at 56
n.3.
36
Legal Effect of Federal Judge’s Order as Hearing Officer
Notwithstanding the terms of the FEHBA, the November 19, 2009
Order suggests that the statutory authority to issue directives to OPM is
implicit in Congress’s decision to make “the Judiciary’s EDR tribunals
. . . the only forum where judicial employees may seek redress for unlaw-
ful personnel actions.” Golinski, 587 F.3d at 961; see also id. (“If a judi-
cial 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 au-
thority to grant full relief, including reinstatement (or other prospective
relief) and back pay.”). We do not believe, however, that the recognition
of such implicit authority is warranted. Not only does the FEHBA itself
contain no indication that such authority exists, but it also would be at
odds with the Act’s framework for OPM administration of the FEHBP,
which is subject to expressly authorized judicial review. In particular, as
noted, see supra p. 35, Congress has established the federal district courts
and the Court of Federal Claims as the proper venues for challenging
OPM’s administration of the FEHBP. See 5 U.S.C. § 8912; see also
Nat’l Treasury Employees Union v. Campbell, 589 F.2d 669, 674 (D.C.
Cir. 1978) (section 8912 “is . . . a broad consent to all suits brought to
enforce rights and obligations created by the [FEHBA]”). Thus, although
the November 19, 2009 Order contends that “judicial employees who
are victims of discrimination . . . have no remedy at all” other than
through the EDR process, Golinski, 587 F.3d at 961, in fact the federal
courts are available to review challenges to OPM’s actions relating to
enrollment. That specific provision for judicial review indicates that
Congress did not contemplate that the federal courts’ internal administra-
tive dispute resolution processes would also provide a means of review-
ing—and then countermanding by issuance of a binding directive—
OPM’s enrollment-related actions.
Moreover, the fact that Congress has expressly authorized at least one
remedy—back pay—that judicial officers acting in an administrative
capacity may make available to judicial employees subjected to adverse
employment actions further suggests that Congress did not also intend
such officers to be able to issue an order to OPM directing enrollment in
an FEHBP plan. Specifically, the Back Pay Act provides that an employee
37
34 Op. O.L.C. 25 (2010)
who, on the basis of . . . an administrative determination . . . is found
by appropriate authority . . . to have been affected by an unjustified
or unwarranted personnel action which has resulted in the withdraw-
al or reduction of all or part of the pay, allowances, or differentials
of the employee . . . is entitled, on correction of the personnel action,
to receive for the period for which the personnel action was in effect
. . . an amount equal to all or any part of the pay, allowances, or dif-
ferentials, as applicable which the employee normally would have
earned or received during the period if the personnel action had not
occurred . . . .
5 U.S.C. § 5596(b)(1). The Back Pay Act does not define in detail the
nature of the “authority” that must make the findings justifying relief,
other than specifying that it must be “appropriate.” The Act does, how-
ever, expressly include judicial employees within its ambit. See id.
§ 5596(a)(2); 28 U.S.C. § 610 (2006). Accordingly, the process estab-
lished by the Ninth Circuit EDR Plan, which identifies relief under the
Back Pay Act as one of the remedies available to successful complainants,
may well qualify as an “appropriate authority.” See Ninth Circuit EDR
Plan at 10; see also In re Levenson, 587 F.3d at 935. But whether it does
or not, the Back Pay Act at least demonstrates that Congress knows how
to authorize particular remedies for judicial employees subjected to dis-
criminatory treatment and to grant the Judicial Branch a means of reme-
dying such wrongs. That Congress has not taken similarly explicit steps to
empower the federal courts to establish administrative processes that can
bind OPM in the administration of the FEHBP suggests strongly that
Congress did not intend to implicitly authorize them to do so.
The November 19, 2009 Order also invokes two other potential sources
of statutory authority for the directives to OPM. First, it suggests that an
EDR hearing officer’s power to direct OPM is implicit in the express
statutory authority of the Merits System Protection Board (“MSPB”) to
bind executive branch agencies in parallel situations involving executive
branch employees. See Golinski, 587 F.3d at 961 n.4 (noting that had the
January 13, 2009 Order “come from the MSPB, there would have been no
question that it would have had to be obeyed,” and positing that because
“[o]ur EDR tribunals take the place of the MSPB for judicial employees,
. . . it makes sense that Congress gave our EDR tribunals powers coexten-
38
Legal Effect of Federal Judge’s Order as Hearing Officer
sive with those of the MSPB” (citing 5 U.S.C. § 1204(a)(2) (2006)).
Second, the November 19, 2009 Order suggests that the Administrative
Office of the United States Courts Personnel Act of 1990 (“AOUSC
Personnel Act”), Pub. L. No. 101-474, 104 Stat. 1097, which transferred
control over the AOUSC’s personnel matters from the Executive Branch
to a personnel system within the AOUSC, may constitute implicit con-
gressional recognition of the Judiciary’s authority to exercise the same
powers as the MSPB. See Golinski, 587 F.3d at 962 n.6. In our view,
however, neither the MSPB’s express statutory authority to issue binding
orders nor the AOUSC Personnel Act may fairly be read to confer the
authority that is at issue in this matter.
With respect to the MSPB, it is not even clear that the Board may
review a challenge to OPM’s enrollment decisions under the FEHBA. The
MSPB’s jurisdiction is restricted to actions made “appealable to the Board
under any law, rule, or regulation,” 5 U.S.C. § 7701(a) (2006), and there
does not appear to be any legal authorization for the appeal of OPM
enrollment decisions to the Board, see 5 C.F.R. 1201.3 (2009) (enumerat-
ing actions that may be appealed to the MSPB); see also Rosano, 699
F.2d at 1318–20 (MSPB lacks jurisdiction to review challenge to OPM
decision to approve or not approve health plan); Oppenheim v. OPM, 51
M.S.P.R. 255, 257 (1991) (OPM’s “decisions concerning its administra-
tion of health benefits are not reviewable by the [MSPB]”); Lee v. OPM,
32 M.S.P.R. 149, 152 (1987) (same). In any event, there is no support for
the assumption that the MSPB and an EDR hearing officer have “coexten-
sive” statutory authority over executive branch agencies, Golinski, 587
F.3d at 961 n.4. Congress expressly granted the MSPB “special power” to
compel such agencies to comply with its orders and decisions. Kerr v.
Nat’l Endowment for the Arts, 726 F.2d 730, 732 (Fed. Cir. 1984); see
5 U.S.C. § 1204(a)(2) (“The [MSPB] shall . . . order any Federal agency
or employee to comply with any order or decision issued by the Board
under the authority granted under paragraph (1) of this subsection and
enforce compliance with any such order.”); cf. 42 U.S.C. § 2000e-16(b)
(2006) (providing that “[t]he head of each . . . department, agency, or unit
shall comply with . . . rules, regulations, orders, and instructions” issued
by the Equal Employment Opportunity Commission). By contrast, there
is no equivalent provision authorizing the establishment of judicial EDR
processes that can do the same. In accord with basic principles of statu-
39
34 Op. O.L.C. 25 (2010)
tory construction, see Leatherman v. Tarrant County Narcotics Intel. &
Coord. Unit, 507 U.S. 163, 168 (1993) (“Expressio unius est exclusio
alterius.”), the absence of such a provision indicates that the potential
functional similarity between the MSPB and a federal court’s EDR pro-
cess does not itself justify the inference that Congress intended for them
to have the same enforcement powers. Thus, whether or not it would
“make[] sense” for the Ninth Circuit EDR process to be able to bind
executive branch agencies in the same manner as the MSPB can, Golinski,
587 F.3d at 961 n.4, Congress has not acted to make it so. See Detroit
Trust Co. v. The Thomas Barlum, 293 U.S. 21, 38 (1934) (“The question
of policy—whether different terms should have been imposed—is not for
us. We may not add to the conditions set up by Congress any more than
we can subtract from them.”).
The AOUSC Personnel Act also fails to provide a legal basis for the
directives to OPM. In the first place, that Act by its terms addresses solely
personnel matters within the AOUSC and thus does not speak to such
matters within the federal courts generally. Moreover, the text of the
AOUSC Personnel Act contains no language expressly conferring on the
AOUSC the authority to issue directives to OPM in its administration of
the FEHBP, and none may be fairly implied. Indeed, the House Commit-
tee Report makes clear that the Act affects neither the entitlement of the
AOUSC’s employees to health benefits under the FEHBP nor OPM’s
responsibility for hearing those employees’ administrative appeals of its
decisions under the FEHBA. See H.R. Rep. No. 101-770, pt. 1, at 6 (1990)
(“Being subject to the retirement and insurance plans administered by
[OPM], employees of the [AOUSC] will continue to appeal adverse
rulings on these matters to [OPM]”).
The November 19, 2009 Order notes that section 3(g) of the AOUSC
Personnel Act, § 3(g), 104 Stat. 1099, empowers the AOUSC to exercise,
with respect to employees or applicants for employment in the AOUSC,
“any authority granted” to the MSPB under “any law prohibiting” certain
enumerated forms of “discrimination in Federal employment.” 28 U.S.C.
§ 602 note (2006). But this provision does not grant even the AOUSC the
authority to direct OPM as the November 19, 2009 Order purports to do.
The Order is clear that the directives to OPM are for the purpose of en-
forcing the non-discrimination protections set forth in the Ninth Circuit’s
own internal EDR and EEO plans, not any federal anti-discrimination
40
Legal Effect of Federal Judge’s Order as Hearing Officer
statute. See Golinski, 587 F.3d at 963 (“This court’s non-discrimination
plan requires that Ms. Golinski be afforded [FEHBP coverage for her
spouse]”). Accordingly, even if the MSPB could direct OPM’s actions
with respect to enrollment in the FEHBP—which, as noted above, is not
at all clear, see supra p. 39—we would not read section 3(g) as authoriz-
ing the AOUSC to do likewise when it is enforcing only an internal judi-
cial rule and not a federal statute that actually grants such power to the
MSPB. 8
8 The Ninth Circuit EDR Plan itself is consistent with our view that there is no statuto-
ry authority for the directives to OPM contained in the November 19, 2009 Order and that
those directives are therefore without legal force. Although the November 19, 2009 Order
characterized the EDR plan as “clear[ly]” authorizing the issuance of legal directives to
OPM, Golinski, 587 F.3d at 961, the plan by its terms provides that only judicial actors
may be named as respondents in grievance proceedings, see Ninth Circuit EDR Plan at 7
(“The respondent in all complaints shall be the employing office that would be responsi-
ble for redressing, correcting or abating the violations(s) alleged in the complaint”), thus
suggesting that the plan does not anticipate the issuance of binding orders to outside
actors. See Hansberry v. Lee, 311 U.S. 32, 40 (1940) (as a general matter, “one is not
bound by a judgment in personam in a litigation in which he is not designated as a party
or to which he has not been made a party by service of process”); 12 Charles Alan Wright,
Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3033 (3d ed.
1997) (“Ordinarily a judgment only may be enforced against a party.”) (“Wright, Miller &
Marcus”). In addition, while the plan provides that hearing officers “may order a neces-
sary and appropriate remedy,” including one “prospectively insuring compliance with the
rights protected by this Plan,” Ninth Circuit EDR Plan at 9, the only remedies listed as
available to successful complainants apply solely within the Judicial Branch. For exam-
ple, available remedies include placement of an employee in a position previously denied
or in a comparable alternative position, prospective promotion to a position, priority
consideration for a future promotion or position, granting of family and medical leave,
and payment of back pay. See id. at 9–10. Finally, the EDR plan states that it “provide[s]
rights and protections to Ninth Circuit employees comparable to those provided to
legislative branch employees under the CAA,” Ninth Circuit EDR Plan at 1, and the CAA
plainly establishes an internal process for the resolution of disputes between congression-
al employees and their employing offices concerning the application of enumerated,
generally applicable workplace statutes. See Johnson v. Office of the Architect of the
Capitol, No. 99-AC-326, 2003 WL 25795028, at *2 (C.A.O.C. 2003) (CAA was “promul-
gated to ensure that employing offices in Congress and its instrumentalities are accounta-
ble for actions taken in contravention of statutes made applicable by the Act” (emphasis
added)). There is no suggestion in the CAA that the OOC’s enforcement functions under
that Act include the power to direct executive action—a power that would be quite
anomalous in any event since the Executive Branch has no authority under the Act to
enforce the incorporated workplace statutes with respect to congressional employees, see
41
34 Op. O.L.C. 25 (2010)
B.
Were the EDR process within the Executive Branch, we could end our
inquiry with the conclusion that a judge presiding over that process lacks
statutory authority to issue orders directing OPM in its administration of
the FEHBP. It is well-settled that “an agency’s power is no greater than
that delegated to it by Congress.” Lyng v. Payne, 476 U.S. 926, 937
(1986); see also La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)
(“an agency literally has no power to act . . . unless and until Congress
confers power upon it”); Civil Aeronautics Bd. v. Delta Air Lines, Inc.,
367 U.S. 316, 322 (1961) (“[The Civil Aeronautics Board] is entirely a
creature of Congress and the determinative question is not what the Board
thinks it should do but what Congress has said it can do.”); 5 U.S.C.
§ 558(b) (2006) (“A sanction may not be imposed or a substantive rule or
order issued except within jurisdiction delegated to the agency and as
authorized by law.”). 9 Given that the EDR process is a creation of the
2 U.S.C. § 1361(f)(3). See also Eastham v. U.S. Capitol Police Bd., No. 06-CP-41, 2008
WL 5476087, at *5 (C.A.O.C. 2008) (OOC Board “has no mandate or plenary authority
under the CAA to remedy abuses or police the integrity of the [Federal Employees’
Compensation Act] process”). Thus, although it is true that the directives to OPM con-
tained in the November 19, 2009 Order do not constitute a type of remedy expressly
foreclosed by the plan, see Ninth Circuit EDR Plan at 10 (identifying payment of attor-
ney’s fees and payment of compensatory and punitive damages as “[r]emedies not legally
available”), the availability of such an externally directed remedy would appear at odds
with the entire structure of the plan, including those remedies that it does expressly make
available.
9 This Office has noted a possible argument that, because “Congress is presumed to
have made its statutory scheme effective,” “agencies may possess some inherent power to
impose sanctions designed to protect the integrity of their proceedings[,] . . . even against
federal agencies.” Authority of the Equal Employment Opportunity Commission to Impose
Monetary Sanctions Against Federal Agencies for Failure to Comply with Orders Issued
by EEOC Administrative Judges, 27 Op. O.L.C. 24, 32 (2003). Whatever the merits of this
argument, it is of no relevance here because the authority of an EDR hearing officer to
direct OPM would extend well beyond the type of “authority to promulgate an internal
disciplinary rule” that some courts have recognized as inherently possessed (presumably,
because implicitly delegated by statute) by administrative bodies. Am. Bus Ass’n v. Slater,
231 F.3d 1, 7 (D.C. Cir. 2000); see, e.g., Touche Ross & Co. v. SEC, 609 F.2d 570, 582
(2d Cir. 1979) (upholding SEC rule providing for Commission to suspend and disbar
attorneys who appear before it “as a necessary adjunct to the Commission’s power to
protect the integrity of its administrative procedures and the public in general”); cf. Am.
Bus. Ass’n, 231 F.3d at 7 (any inherent authority possessed by administrative agencies
42
Legal Effect of Federal Judge’s Order as Hearing Officer
Judicial Branch, however, we must address a possible constitutional basis
for the directives to OPM contained in the November 19, 2009 Order.
Pointing to OPM’s actions in this matter—specifically, its advice to the
Blue Cross and Blue Shield Association that federal law barred the Blue
Cross Plan from accepting Ms. Golinski’s election form, see Golinski, 587
F.3d at 958—the November 19, 2009 Order asserts that OPM “may not
disregard a coordinate branch’s construction of the laws that apply to its
employees,” and “must henceforth respect the Judiciary’s interpretation of
the laws applicable to judicial employees.” Id. at 961. “Any other result,”
the Order contends, “would prevent the Judiciary from ‘accomplishing its
constitutionally assigned functions’ by seriously undermining [its] auton-
omy over personnel matters.” Id. (quoting Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 443 (1977); citation omitted); see also id. (“Barring us from
determining, within reasonable bounds, the rights and duties of our per-
sonnel under the laws providing for their employment would make us a
handmaiden of the Executive.” (internal quotation marks omitted)). On
this basis, the Order suggests that the Constitution grants judges serving
as EDR hearing officers the inherent authority to issue orders that bind
executive branch agencies in their administration of statutes that confer
benefits on judicial employees. See Golinski, 587 F.3d at 963 (invoking
“the Judiciary’s inherent authority to resolve workplace complaints with-
out interference by the Executive”); id. at 962 n.6 (discussing federal
courts’ “authority, part statutory and part inherent, to control matters that
touch on the operation of the courts”).
Particularly given that the statutory context strongly indicates that
Congress has both declined to empower EDR hearing officers generally in
this manner and charged OPM specifically with administering the
FEHBA, we conclude that there is no inherent constitutional power sup-
porting the directives issued to OPM in this matter. Even assuming that
federal courts possess inherent authority under Article III, independent of
any statute, to create an administrative process for the resolution of judi-
cial employment disputes, such inherent authority to establish mecha-
does not extend to “modifying regulated parties’ primary conduct”). Indeed, the argument
based on an agency’s inherent authority to protect the integrity of its proceedings is
particularly inapt in this case because OPM was not even a party to Ms. Golinski’s EDR
hearing, and thus not part of the “proceeding” over which Chief Judge Kozinski presided.
43
34 Op. O.L.C. 25 (2010)
nisms for internal enforcement of employment rules does not imply the
much more significant authority to act with binding force against an
executive branch agency that has been statutorily charged with the admin-
istration of a federal benefits program.
The Supreme Court has explained that inherent powers are those
“which cannot be dispensed with in a Court, because they are necessary to
the exercise of all others.” Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991) (quotation marks and citation omitted); see also United States v.
Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) (“Certain implied
powers must necessarily result to our Courts of justice from the nature of
their institution.”). As the Supreme Court has explained, “[p]rinciples of
deference counsel restraint in resorting to inherent power, and require its
use to be a reasonable response to the problems and needs that provoke
it.” Degen v. United States, 517 U.S. 820, 824 (1996) (internal citations
omitted); see also Chambers, 501 U.S. at 44 (directing that “inherent
powers must be exercised with restraint and discretion”). Consistent with
this admonition, the Court has identified a limited number of areas in
which federal courts possess inherent powers, see generally Robert J.
Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural
Constitution, 86 Iowa L. Rev. 735, 738 (2001), none of which powers are
comparable to the one claimed here.
It is true that Article III courts possess the inherent “ability to punish
disobedience to judicial orders.” Young v. United States ex rel. Vuitton
et Fils S.A., 481 U.S. 787, 796 (1987) (emphasis added). But that authori-
ty—“essential to ensuring that the Judiciary has a means to vindicate its
own authority without complete dependence on other Branches,” id. at
796–97—says nothing about the authority of federal judges to compel
compliance with their administrative orders. “Courts of justice” must “be
vested, by their very creation, with power to impose . . . submission to
their lawful mandates.” Chambers, 501 U.S. at 43. But we are not aware
of any support for the proposition that federal judges presiding over an
administrative process for the Judicial Branch—not a judicial proceeding
to resolve a case or controversy—must have this power as well, particu-
larly when the entity to which the order is directed is not a party to that
administrative process, cf. Hansberry, 311 U.S. at 40; Wright, Miller &
Marcus § 3033; supra note 9.
44
Legal Effect of Federal Judge’s Order as Hearing Officer
In fact, we have identified no precedent for the proposition that the
Constitution vests federal courts with the inherent authority to establish
an administrative process pursuant to which a judge can direct an execu-
tive branch agency in these circumstances. Indeed, as the historical dis-
cussion above demonstrates, see supra Part II, the Executive Branch
governed all judicial administration until 1939, and was in charge of
personnel matters for some judicial employees—those within the
AOUSC—until enactment of the AOUSC Personnel Act in 1990. See
Dotson, 398 F.3d at 171 & nn.6, 7. And, as previously discussed, see
supra pp. 40–41, even in granting the AOUSC control over its own per-
sonnel matters in most respects, Congress decided to leave OPM in charge
of administering a number of retirement and insurance programs, includ-
ing the FEHBP, with respect to the AOUSC’s employees. See H.R. Rep.
No. 101-770, pt. 1, at 6. Thus, there is no longstanding tradition of the
federal courts exercising complete independence in the administration of
judicial employees generally, let alone in the administration of their
federal benefits.
Admittedly, there is some support in the CAA Report submitted by the
Judicial Conference and the legislative history of the AOUSC Personnel
Act for the proposition that certain kinds of Executive Branch interference
with a personnel issue that is strictly internal to the Judicial Branch—in
other words, that concerns solely the relationship between the Judiciary
and its employees—might raise separation of powers concerns. See CAA
Report at 15 (“The judicial branch needs internal enforcement [of work-
place laws]” “due to separation of powers concerns”); H.R. Rep. No. 101-
770, pt. 1, at 5 (“While it may be convenient to have the personnel system
of [the AOUSC] covered by the personnel management network of the
executive branch, it is contrary to the doctrine of separation of powers.”);
see also CAA Report at 4 (“[T]he judicial branch must have control over
its employee and workplace management in order to ensure both the
independence, and the appearance of independence, of its decisions.”).
The enrollment of Ms. Golinski’s spouse in the FEHBP, however, is not
such a purely internal judicial matter. Not only is OPM responsible gener-
ally for administering the FEHBP, which is open to employees in all
three branches, but it also contracts with the private insurance carriers
that operate the program and administers the funds—held in the U.S.
45
34 Op. O.L.C. 25 (2010)
Treasury—used to reimburse those carriers for benefit payments. See
5 U.S.C. §§ 8901, 8902, 8903, 8909.
Consistent with this judgment, we note that even in the years since the
Judiciary has been managing its own internal personnel matters, it has not
laid claim to the kind of directive authority at issue here. Thus, while
“administrative review within the judiciary plainly has a long history,
which has been well known to Congress,” Dotson, 398 F.3d at 176, the
directives in the November 19, 2009 Order appear to be without prece-
dent. The sui generis nature of these directives supports the conclusion
that the power claimed is not “necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition of
cases.” Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962); see general-
ly Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252–57 (1891) (survey-
ing practice of common law courts in concluding that federal courts do
not possess inherent authority to order medical examinations of plain-
tiffs).
The absence of historical support for the proposition that the directives
to OPM in the November 19, 2009 Order are constitutionally based is not
surprising. The Supreme Court has adopted a functional approach to
separation of powers disputes, rejecting “the notion that the three Branch-
es must be entirely separate and distinct,” Mistretta, 488 U.S. at 380, and
emphasizing instead that the Constitution “‘enjoins upon its branches
separateness but interdependence, autonomy but reciprocity,’” id. at 381(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952)). Thus, there is nothing necessarily anomalous about the benefits
received by one branch’s employees being to some extent dependent on
another branch’s interpretation of the laws. See id. (explaining that the
separation of powers does not require a “hermetic division among the
Branches”). Indeed, the Court has been clear that “even quite burdensome
interactions” “between the Judicial Branch and the Executive” do not
“necessarily rise to the level of [unconstitutionality].” Clinton v. Jones,
520 U.S. 681, 702 (1997).
To be sure, “‘the separation-of-powers doctrine requires that a branch
not impair another in the performance of its constitutional duties,’” Jones,
520 U.S. at 701 (quoting Loving v. United States, 517 U.S. 748, 757
(1996)), and in resolving disputes involving alleged encroachments upon
46
Legal Effect of Federal Judge’s Order as Hearing Officer
the Judiciary, the Court specifically has identified the danger of another
branch “‘impermissibly threaten[ing] the institutional integrity of the
Judicial Branch,’” Mistretta, 488 U.S. at 383 (quoting Commodity Futures
Comm’n v. Schor, 478 U.S. 833, 851 (1986)). In our view, however, no
such threat is present here. OPM’s actions relating to the attempted en-
rollment of Ms. Golinski’s spouse simply do not “destroy [the Judicial
Branch’s] autonomy,” Golinski, 587 F.3d at 962, or otherwise seriously
undermine its institutional integrity or its ability to perform its duties. 10
Prior precedent of this Office addressing the permissibility of executive
enforcement of federal legislation with respect to the Judiciary comports
with this conclusion. See, e.g., Enforcement of INA Employer Sanctions
Provisions Against Federal Government Entities, 24 Op O.L.C. 33, 37
(2000) (concluding that separation of powers does not bar enforcement by
the Immigration and Naturalization Service of certain employer verifica-
tion requirements against a judicial employer); Memorandum for Theo-
dore M. Cooperstein, Counsel to the Deputy Attorney General, from Noel
J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: FBI Investigative Authority at 2 (June 7, 2004) (“[T]here is no general
separation-of-powers problem with the FBI exercising the Executive’s
authority to enforce the laws by investigating possible violations of the
law that may involve the property, activities or employees of the legisla-
tive or judicial branches.”).
The relevant Supreme Court precedents do not specify with complete
precision those functions that are so central to the autonomy of the Judi-
cial Branch that they must be immune from interference by the other
branches, but it has marked some helpful guideposts. Most fundamentally,
as the Court has explained, “[a] Judiciary free from control by the Execu-
tive and the Legislature is essential if there is a right to have claims de-
cided by judges who are free from potential domination by other branches
10 The November 19, 2009 Order presents some hypothetical examples of Executive
Branch action. See Golinski, 587 F.3d at 962. Since those situations have not come to
pass, we do not consider them in undertaking our separation of powers analysis of OPM’s
conduct with respect to Ms. Golinski’s attempted enrollment of her spouse. See Schor,
478 U.S. at 852 (declining to endorse an absolute, separation of powers based prohibition
on congressional action “out of fear of where some hypothetical ‘slippery slope’ may
deposit us”); see also Mistretta, 488 U.S. at 411 n.32 (declining to address “hypothetical
constitutional question”).
47
34 Op. O.L.C. 25 (2010)
of government.” United States v. Will, 449 U.S. 200, 217–18 (1980).
Thus, the coordinate branches may not interfere with the “total and abso-
lute independence of judges in deciding cases or in any phase of the
decisional function.” Chandler, 398 U.S. at 84. Certain specific consti-
tutional provisions help to preserve the necessary judicial independence:
in particular, the good Behavior Clause “guarantees that Art. III judges
shall enjoy life tenure, subject only to removal by impeachment,” and the
Compensation Clause “guarantees Art. III judges a fixed and irreducible
compensation for their services.” N. Pipeline Constr. Co. v. Marathon
Pipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion); see also United
States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955); U.S. Const. art. III,
§ 1. The Court also has recognized several further constitutional protec-
tions afforded the Judiciary. Congress may not “vest review of the deci-
sions of Article III courts in officials of the Executive Branch” or “com-
mand[] the federal courts to reopen final judgments.” Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 218–19 (1995). In addition, Congress may not
“authorize the adjudication of Article III business in a non-Article III
tribunal” in a way that “impermissibly threatens the institutional integrity
of the Judicial Branch.” Schor, 478 U.S. at 851; see also Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 584 (1985) (“Congress may not
vest in a non-Article III court the power to adjudicate, render final judg-
ment, and issue binding orders in a traditional contract action arising
under state law, without consent of the litigants, and subject only to
ordinary appellate review.” (citing N. Pipeline Constr. Co., 458 U.S. at
84, 90–92 (plurality, concurring, and dissenting opinions))).
OPM’s actions in this matter are not at all comparable, however, to the
types of intrusions that the Court has deemed to transgress the separation
of powers. Unlike in those cases, there is no connection here between the
allegedly intrusive action—OPM’s enforcement of the federal statutory
bar on the enrollment of same-sex spouses of judicial employees in the
FEHBP—and either the judicial decisionmaking process or any of the
related activities that reside at the core of federal judicial power. 11 Some
11See Enforcement of INA Employer Sanctions Provisions, 24 Op O.L.C. at 37 (even
though Executive Branch enforcement of immigration laws with respect to judicial
employer “would impose some administrative burdens upon its subject[,] . . . such
burdens would certainly not be so demanding as to interfere with the judiciary’s proper
48
Legal Effect of Federal Judge’s Order as Hearing Officer
potential employees may decline to work for the Judiciary—and some
current judicial employees may depart for the private sector—because of
the unavailability of federal health benefits for same-sex spouses. But this
outcome hardly establishes that the Executive Branch violates Article III
when, in administering a government-wide benefits program such as the
FEHBP, it acts to prevent the attempted enrollment of a judicial employee
based on generally applicable statutory limits on the availability of bene-
fits. Cf. O’Malley v. Woodrough, 307 U.S. 277, 282 (1939) (in concluding
that Compensation Clause does not forbid subjecting federal judges to a
generally applicable income tax, observing that “[t]o subject [federal
judges] to a general tax is merely to recognize that judges are also citi-
zens, and that their particular function in government does not generate an
immunity from sharing with their fellow citizens the material burden of
the government whose Constitution and laws they are charged with ad-
ministering”); United States v. Hatter, 532 U.S. 557, 571 (2001) (“There
is no good reason why a judge should not share the tax burdens borne by
all citizens.”). The application of statutorily prescribed limits on federal
employee benefits of any kind may have this same consequence, and yet it
cannot be the case that separation of powers principles completely disable
the Executive Branch from applying any such limits to judicial employ-
ees. Indeed, as the Supreme Court held in Will, the Compensation Clause
does not even “erect an absolute ban on all legislation that conceivably
could have an adverse effect on the compensation of judges.” 449 U.S. at
227; see also id. at 227 n.31 (“[T]he Compensation Clause does not forbid
everything that might adversely affect judges.”). If the Compensation
Clause, which is an express constitutional limit, does not render the com-
pensation of judges inviolable, then a fortiori general separation of pow-
ers principles do not afford the Judiciary absolute protection from action
by the Executive Branch to enforce a statute that has some effect on the
benefits received by judicial employees.
execution of its constitutional obligations”); cf. Mistretta, 488 U.S. at 410 (dismissing
notion that the President’s power to appoint federal judges to the U.S. Sentencing Com-
mission and to remove Commission members for good cause threatens judicial independ-
ence or “prevent[s] the Judicial Branch from performing its constitutionally assigned
function of fairly adjudicating cases and controversies”).
49
34 Op. O.L.C. 25 (2010)
Given all of these considerations, we are unconvinced that OPM’s ac-
tions threaten the integrity of the Judicial Branch, particularly when
compared with other alleged encroachments on that branch that the courts
have upheld against separation of powers challenge. 12
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
12 See Mistretta, 488 U.S. at 408–11 (upholding President’s authority to appoint and
remove members of U.S. Sentencing Commission, including federal judges); Morrison v.
Olson, 487 U.S. 654, 683 (1988) (powers and duties of Judicial Branch with respect to
independent counsel under Ethics in Government Act, including authority to terminate
counsel’s office, did not threaten institutional integrity of Judicial Branch); see also
United States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984) (rejecting the claim that the
Constitution confers on federal judges absolute immunity from federal criminal prosecu-
tion); United States v. Hastings, 681 F.2d 706, 711 (11th Cir. 1982) (same); United States
v. Isaacs, 493 F.2d 1124 (7th Cir. 1974) (same); cf. Will, 449 U.S. at 228–29 (Compensa-
tion Clause does not prevent Congress from refusing to apply previously enacted formula
for increasing judicial salaries so long as increase has not taken effect as part of the
compensation that is “due and payable”).
50