In the latest installment of Chief Judge Kozinski vs. DOJ(OLC)/OPM, discussed in my post below, Chief Judge Kozinski issued yet another order today, in apparent response to OPM’s statement on Friday refusing, based on DOJ/OLC’s advice, not to abide by his earlier orders. It reads, in its entirety:
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 all issues decided 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. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398-402 & n.4 (1981); see also Travelers lndem. Co. v. Bailey, 129 S. Ct. 2195, 2205-07 (2009).
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.
Goodness.
Chris Travers says:
I assume he is talking strictly about further legal action? That authorization seems quite broad and read as plain English could authorize all sorts of things.
December 22, 2009, 6:57 pmpublic_defender says:
What kinds of action could she take under this order?
December 22, 2009, 7:06 pmVirginialawstudent says:
Judge Kozinski’s order is difficult to make sense of.
First, maybe I’m confused about administrative orders, but their “preclusive” effect seems somewhat questionable–at least the way Judge Kozinski is using that term here. Administrative Orders are almost always subject to judicial review. Of course, failure to exhaust administrative remedies might pose a problem, but I’m also failing to see where Judge Kozinski found the authority to set a deadline for an appeal of his administrative order.
Second, Kozinski is about to find out firsthand just how much deference “administrative” findings have. In earlier writings, he asserts that as a co-equal branch of government he has as much right to direct employee matters as the OPM. The problem with this reasoning is that it simply isn’t true. Congress still sets policy with regards to the employee benefits of federal employees. Judges, clerks, even the POTUS have their salaries set by Congress. If a member of Congress decided that his staff deserved more money, he couldn’t appoint himself administrator, rule that a statute reads a certain way, set an arbitrary deadline for OPM to respond, and then dance around proclaiming the preclusiveness of his ruling. Or, if he did, a lot of people would laugh at him–as they are now laughing at Kozinski.
December 22, 2009, 7:16 pmAlaska Employment Law says:
[...] 12/22/09 Update: And the response from Kozinski. [...]
December 22, 2009, 7:27 pmG.R. says:
The November order suggests petition for enforcement or mandamus, which I guess means in district court. Although, if Judge Kozinski is taking the position he’s acting judicially it’s not entirely clear to me why he wouldn’t have inherent contempt power himself. I assume there isn’t a statutory procedure for enforcement of his order or he would have mentioned it. (Do Article I courts lack inherent powers? Maybe that’s it.)
It probably makes sense at least from a strategic point of view for the plaintiff to go to district court, which DOJ can’t deny is a court, and try for an order there. In form I would think the action would be an application for nonstatutory administrative review of the OPM’s action in directing the refusal of benefits, with the plaintiff claiming that OPM was acting contrary to law (or in excess of its jurisdiction) by refusing to comply with Judge Kozinski’s purportedly final order, and that the merits of that order are no longer up for review because the government didn’t timely appeal.
December 22, 2009, 7:29 pmpublic_defender says:
Would a judicial order saying that she “can take what further action she deems fit against any entity other than Blue Cross” give her a defense against criminal charges for theft? Say, she could show that the value of the policy was $10,000 a year. Could she take stuff from the court’s library and sell it on Ebay to raise the money Kozinski says she is owed?
Seriously, what the heck does that mean? It doesn’t say that she can take “any action allowed by law.” It says she can take “action she deems fit[.]” That appears to give her a lot of discretion.
December 22, 2009, 7:31 pmanonymous says:
Perhaps there is an easy answer to this, but under what authority may a circuit judge (Chief Judge Kozinski, or Judge Reinhardt — who I understand has granted similar relief to another employee) issue what is supposed to be a judicial order in the name of the court (i.e., in his or her judicial capacity) in circumstances like these? (As opposed to when a Court of Appeals gets a case/controversy over which there is federal jurisdiction on appeal from a district court’s judgment or on petition for review of an adminstrative agency decision.)
If Chief Judge Kozinski were the chief administrator of another government subdivision (say, the Interior Department), he’d presumably be entitled to make administrative decisions but wouldn’t be entitled to have them published in the Federal Reporter or to have them considered orders of the court entitled to preclusive effect (and potentially contempt remedies?) if not obeyed, right?
December 22, 2009, 7:31 pmDavid Schwartz says:
I have to say this is the worst example of constitutional avoidance I’ve ever seen.
December 22, 2009, 7:45 pmMike says:
Kozinski is inviting Golinski to see sanctions against OPM for violating a court order. This is a fascinating conflict.
Look at the timing:
* The Koz’ issues an order.
* OPM says, “We’re not going to follow it.”
* Golinski is furious.
* On Monday, The Koz’ says, “Yo, I issued an order. Lest ye have any doubts: My order is final. And, Golinski, feel free to take them to the mattresses.”
This is now the case to follow.
December 22, 2009, 7:46 pmG.R. says:
Looking at what appears to be the relevant plan, off the N.D. Cal. website, there’s a deadline for filing appeals from his order (Sec. 9(C)(1)). He’s not making that part up.
Actually, it also says he has the authority to grant “‘equitable’ relief, such as temporary stays of adverse actions.” Sec. 10(B)(8). If he’s got that, I’d think he’d have contempt power, at least as a technical matter.
December 22, 2009, 7:47 pmKen says:
Who would enforce the contempt order against the “co-equal” branch? Seems like an irresistible force has met the immovable object.
December 22, 2009, 7:54 pmrjs says:
I believe that the November order meant that Golinski could file a petition for writ of mandamus or a petition for enforcement with Kozinski (not in the district court). I believe that today’s order just told Golinski she didn’t have to wait to do that.
December 22, 2009, 7:54 pmdrunkdriver says:
This is an example of Kozinski’s bad side: he’s got a huge ego, his view of his own authority is nearly boundless, and when challenged he seems to lose perspective. We have seen this in his unilateral disabling of computer firewalls in the court; his sometimes too-personal criticisms of colleagues, both in written opinions and in public; and now, after issuing an administrative order, he seems to imagine he has settled a legal controversy just as surely as if an Article III case had wound its way up to his court. Moreover, by these continual orders, and near-advice to the employee, every time he gets wind of an unfavorable reaction to the concept of his own authority, he looks more and more like an advocate. Which he is. For himself.
Smart man; good writer; he’s contributed a lot to the judiciary; but way too impressed with himself. I’m sorry to see him behave so unprofessionally.
December 22, 2009, 7:55 pmrjs says:
That’s the EDR plan for the Northern District of California, not for the 9th Circuit. You’d have to look at the procedures in the 9th Circuit’s plan. If you find it, please let us know.
December 22, 2009, 8:00 pmMike says:
The fight that is going to hurt Obama much more that Kozinski. You think Kozinski doesn’t plan on writing a scathing, headline-worthy opinion against the Obama Administration, and Obama’s hypocritical, intellectually bankrupt position on DOMA?
Legally, I’m not that interested in the issues. Is Kozinski acting in an administrative or Article III capacity. Save that for a Federal Courts exam.
Kozinski is furious that his authority is being disrespected. Obama has totally betrayed gays, and Kozinski will call him out on it. Obama is about to totally get KTFO. That, to me, is something much more compelling.
This is human drama at its finest.
December 22, 2009, 8:01 pmrjs says:
I dunno. Most judges don’t like it when their orders are disobeyed. Most judges have sizable egos. I don’t think Kozinski has behaved “unprofessionally.”
December 22, 2009, 8:11 pmShelbyC says:
Well, he’s interpreting the law pretty favorably to his side and taking a broad view of his own powers in a case that basically involves funding for his court. Reminds me of the time the Illinois Supreme Court ordered the state comptroller to increase judges salaries.
December 22, 2009, 8:19 pmG.R. says:
Finding the Ninth Circuit’s plan itself appears to be beyond my Google skills. The one I linked does state in the preamble that the “Judicial Council of the Ninth Circuit adopts this model plan for all courts of the Ninth Circuit,” which made me assume earlier that it was the same, but it also appears to have been amended as late as 2008, so maybe it’s not.
Assuming that it is materially similar, rjs, it does seem more likely after reading it that he meant he’d enforce his order himself, as you suggest. But that does have the strategic problem that ken points out, which is that there’s nowhere for Golinksi to go if OPM continues to take the position that it doesn’t have to listen to Judge Kozinski.
December 22, 2009, 8:29 pmrjs says:
Beyond my Google skills, too. :-) Each court in the 9th circuit has its own EDR plan. There’s a separate one for each district in California. I haven’t looked at the other states in the 9th circuit. The ND preamble is, I think, talking about the model plan developed by the Judicial Conference. The ND is not saying that its plan is for all courts in the 9th circuit. It’s poorly worded, though.
As for Golinski, she’ll go back to Kozinski for enforcement. We’ll have to stay tuned for Kozinski’s next order, but I’m assuming if OPM continues to defy him, he’ll hold them in contempt.
December 22, 2009, 8:40 pmG.R. says:
I agree — but what I mean is, where does Golinski go from there? Judge Kozinski says he’s acting as a court, OPM says he’s acting as an administrator who’s exceeding his jurisdiction and doesn’t actually have contempt power, so they’re not following his order. Does he send the Marshals to put someone at OPM in jail? That doesn’t seem likely to me, or likely to play out well.
If there were some way to shoehorn it into a district court’s jurisdiction, then Golinski would have to convince another judge that she was within her rights, but at least at the end of the day she (might) have an order from someone that everyone agreed was a judge. And I think that disobeying an order from someone they agree is a judge would be a line that OPM wouldn’t cross. (Certainly an essentially sympathetic administration at that point might very well acquiesce: “hey, Congress, we did our best!”)
Of course, then you would have review of at least the jurisdictional issue up to the Ninth Circuit and possibly the Supreme Court, which would be an interesting process. But if it could be done without anyone other than Judge Kozinski ever getting to the merits, then maybe it would survive.
December 22, 2009, 8:52 pmrjs says:
I’m just guessing about what Kozinski will do. Fines first. If they refuse to pay the fine, he could send someone to jail. I assume he’d issue a warrant if the person didn’t surrender.
As for what OPM can do, the legal process is limited. My guess is their appeal rights stay within the 9th Circuit Judicial Council and provide for no further direct review. I suppose they could try to attack Kozinski’s order collaterally, but I don’t know what the basis would be.
December 22, 2009, 9:06 pmShelbyC says:
Well, if Koz issues a contempt finding, couldn’t the OPM go to district court to enjoin the USM’s from enforcing it?
December 22, 2009, 9:20 pmNickM says:
Why am I reminded of the judicial immunity case where a bailiff battered the person he was told to bring into the court?
Nick
December 22, 2009, 9:20 pmHarpsichord says:
I hope Kozinski appoints himself district judge in this case, orders imprisonment of someone at OPM, and then the Marshals refuse to comply. Kozinski makes himself look foolish in doing this. Between this, his sua sponte overreaching in CDT, his dirty jokes sent from the office computer, and his unilaterally disabling office firewalls, one wonders whether Kozinski has the proper temperament to be a judge.
December 22, 2009, 9:21 pmtvk says:
“Alex Kozinski has made his decision, now let him enforce it.”
December 22, 2009, 10:48 pmken says:
The marshals are in the same branch of gov’t as the OPM. They would likely ignore the “order” to remand an OPM official to the BOP (BTW another executive branch dept).
December 22, 2009, 11:39 pmjps says:
Id imagine its “Sue in district court” to enforce. Even if Koz’ administrative order isn’t binding on a court in a judicial action, the reasoning of the Chief of the Circuit is certainly persuasive. It does seem silly that OPM didnt appeal to the Judicial Council (or file any response whatsoever at any point in the case.)
As for the Reinhardt order, even though on the merits Reinhardt went broader (saying DOMA is unconstitutional), there is little question that Reinhardt’s remedy was narrower, and avoids the interbranch fighting. Reinhardt ordered *payment* of money to the employee whose spouse was denied benefits, equal to what it would cost to buy health insurance. The Courts don’t need to go to the executive to cut checks. Insurance enrollment, though, is processed through OPM. Reinhardt is simply ordering his own court to take money out of its budget to pay this bill like it would any other bill.
In other words, Kozinski is the judicial activist in this case :)
December 23, 2009, 12:01 ampublic_defender says:
I don’t know enough about the authority of judges to handle personnel matters in the judiciary to judge Kozinski on this. But based on your other two comments, it’s likely that we share that ignorance.
Off-the-bench. off-color jokes disqualify someone from being a judge? I’m sure a line can be crossed, but I don’t see that Kozinski ever crossed that. And as to the firewall, that’s just a judge protecting the scope of judicial authority. Judges do that all the time. Criticizing Kozinski for that is pretty much criticizing him for acting like a judge, which is exactly the opposite of what you intended.
December 23, 2009, 5:46 amShelbyC says:
So the employee is getting more money because of their maritial status, eh? I thought that was a problem. Of course, under DOMA gay marriages don’t count, so nobody can claim it’s marital status discrimination. Maybe that’s the solution; just give gay married employees more money.
December 23, 2009, 8:33 amJohn Cooper says:
Ever since Daubert v. Merrill-Dow, Alex Kozinski has been my hero.
December 23, 2009, 9:24 amParenthetical says:
Having never received a check from any U.S. Court of Appeals, I would have expected the U.S. Treasury to have issued the check. If that is what would happen, aren’t we in the same pickle as with Golinski?
December 23, 2009, 12:21 pmJoseph Zernik says:
Kozinski Fraud
January 28, 2010, 8:14 amKozinski Fraud, named after Alex Kozinski, renowned Chief Judge of the U.S. court of appeals for the 9th circuit, often described as a brilliant jurist and a civil rights champion, referred to any fraud that followed the framework of the fraud he perpetrated in 2009 on Richard Isaac Fine in the latter’s Fine v Sheriff (09-71692) petition. In such fraud litigants were misled to believe that they were parties to true court actions. In fact they were engaged in sham court actions, which were never deemed by the courts themselves as either valid or effectual. All court orders and judgments issued in such sham actions were a priori deemed by the courts as void, not voidable, but were falsely represented to parties as valid and effectual court papers. Inherent in Kozinski fraud was the reliance on CMSs (case management systems), such as PACER & CM/ECF, which were introduced in the U.S. Courts starting in the 1990′s and ending in the 2000s. Such systems facilitated the practice of Kozinski fraud through concealment of records such as docket (court) public records – through the wrongful denial of the common law right to access court records – to inspect and to copy, re-affirmed by the U.S. supreme court in Nixon v Warner Communications, Inc (1978), where such right was re-affirmed, and also found as inherent, in its various facets, in the First, Fifth/Fourteens, and Sixth Amendments to the united states constitution. Particularly noted was the denial of access to NEFs (notices of electronic filings) – which would have provided the instantaneous evidence for the fraud. Therefore, shell game fraud, and confidence tricks were the more generalized fraud types that encompassed the Kozinski Fraud.