More news about the conflict between the judge and the executive branch

Last week I blogged about the conflict between the Obama Administration (specifically, the Office of Personnel Management or OPM) and Judge Alex Kozinski of U.S. Ninth Circuit Court of Appeals, who decided that one of its employees, Karen Golinski, was eligible for spousal benefits for her partner. OPM  contacted Blue Cross Blue Shield, the provider of health insurance, and requested they not follow the judge's order.  Judge Kozinski responded by writing that the separation of powers required the administration to allow the coverage for Golinski's partner.  OPM responded with two Friday afternoon press releases stating it objections , including an assertion that the court order violated the Defense of Marriage Act (DOMA) a law that Candidate Obama  stated should be repealed.

Sound confusing?  It is.  But maybe a statement from Judge Kozinski released on Tuesday will help clarify.  In it, he ruled that because the Obama administration never formally appealed in court to his decision.  Friday afternoon press releases actually don't mean anything in a court of law.  So now Judge Kozinski has ruled, as Carol King once sang, it's too late, baby, it's too late.  Specifically he wrote:


The time for appeal from my orders in this matter, dated January 13, 2009 and November 19, 2009, has expired. Only the Blue Cross and Blue Shield Association ("Blue Cross'') has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009. My prior orders in this matter are therefore final and preclusive on al1 issuesdecided therein as to others who could have, but did not appeal, such as the Office of Personnel Management ("OPM'') and the Administrative Office of the United States Courts.

As the jurisdictional issues presented in Blue Cross's petition for review are separate and distinct from those concerning my now conclusively-determined jurisdiction over governmental entities such as OPM, l authorize Ms. Golinski to take what further action she deems fit against any entity other than Blue Cross, without waiting for the Judicial Council's disposition of Blue Cross's appeal.
Translation?  The Obama Administration and OPM has lost its chance to appeal.  And Ms. Golinksi is free to pursue whatever means necessary (except sue Blue Cross) to  acquire the benefits Let's see where this goes now.

Many thanks to Lambda Legal for providing this information on its website Tuesday.