25

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. Accordingly, 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 underlying EDR proceeding, must comply with those directives. This memorandum 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).
34 Op. O.L.C. 25 (2010)

26

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 protections afforded under the Ninth Circuit Equal Employment Opportunity 

(“EEO”) plan. Id. at 2. In addition, the plan sets forth a detailed administrative 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 respondent identified in the complaint must in all cases be “the employing office 

that would be responsible for redressing, correcting or abating the violations(s) alleged in the complaint.” Id. For complaints that are not frivolous, 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 substantive right protected by the plan, he may award “a necessary and appropriate remedy,” including placement of the aggrieved individual in a particular 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” dissatisfied 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 
Legal Effect of Federal Judge’s Order as Hearing Officer

27

(“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 conclusion. 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 violation, 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 describing 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 guidance provided in [OPM’s benefits administration letters].” Letter for 
34 Op. O.L.C. 25 (2010)

28

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 President, 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. Following 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 hearing 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 independence of the Judiciary as a co-equal branch of government,” id., the Order 

declared that “an EDR tribunal’s reasonable interpretation of a law applied to judicial employees must displace, for purposes of those employees, 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 
Legal Effect of Federal Judge’s Order as Hearing Officer

29

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 orientation.” 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 appealing 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 controversies 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. Golinski’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) 
34 Op. O.L.C. 25 (2010)

30

this kind, and it is our view that, in presiding over the Golinski matter, 

Chief Judge Kozinski was acting in an administrative capacity.4 Accordingly, 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 Judicial 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 suggestions 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).
Legal Effect of Federal Judge’s Order as Hearing Officer

31

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 Judiciary 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 workplaces 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 opportunity 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 
34 Op. O.L.C. 25 (2010)

32

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 Judicial 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 necessary corollary to judicial independence.” Id. at 4. The report also discussed 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 providing 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 Compliance.” Id.

In 1997, the Judicial Conference issued a model EDR plan, which substituted 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 report, Congress did not enact any legislation providing for administrative 
Legal Effect of Federal Judge’s Order as Hearing Officer

33

or judicial review of adverse employment decisions involving judicial 

employees. See Dotson, 398 F.3d at 175. The Second Circuit has described “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 regard for judicial independence and recognition of the judiciary’s own 

comprehensive review procedures for adverse employment actions, including review by judicial officers.” Id. at 176.

Thus, as its history shows, the Ninth Circuit EDR Plan creates an administrative 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 characterized 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 tradition 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 administrative 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 within 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 employment decisions by a judicial officer.” (emphasis added)). 
34 Op. O.L.C. 25 (2010)

34

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 instruments 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 internal administrative dispute resolution process that can direct OPM’s administration 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 Congress intended this tribunal to be the sole forum for adjudicating complaints 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 empowers 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 judiciary’s internal governance system is a necessary corollary to judicial independence.”); 

Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 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[.]”).
Legal Effect of Federal Judge’s Order as Hearing Officer

35

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 encompasses 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 contract with private insurance carriers to offer health benefits plans to federal employees—including judicial employees—and other eligible individuals, 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 specifically vests jurisdiction to review claims challenging OPM’s administration 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, 
34 Op. O.L.C. 25 (2010)

36

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 employees “in a single executive agency, OPM” and that it would not be appropriate 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 regulations 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 “employing 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 judicial 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 satisfactory 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.
Legal Effect of Federal Judge’s Order as Hearing Officer

37

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 unlawful personnel actions.” Golinski, 587 F.3d at 961; see also id. (“If a judicial 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 authority 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 administrative dispute resolution processes would also provide a means of reviewing—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
34 Op. O.L.C. 25 (2010)

38

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 withdrawal 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 differentials, 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, however, expressly include judicial employees within its ambit. See id.

§ 5596(a)(2); 28 U.S.C. § 610 (2006). Accordingly, the process established 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 discriminatory treatment and to grant the Judicial Branch a means of remedying 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-
Legal Effect of Federal Judge’s Order as Hearing Officer

39

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 congressional 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) (enumerating 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 administration 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 “coextensive” 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-
34 Op. O.L.C. 25 (2010)

40

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 process 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 Committee 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 enforcing the non-discrimination protections set forth in the Ninth Circuit’s 

own internal EDR and EEO plans, not any federal anti-discrimination 
Legal Effect of Federal Judge’s Order as Hearing Officer

41

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 authorizing the AOUSC to do likewise when it is enforcing only an internal judicial 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 statutory 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 responsible 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 necessary 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 example, 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 congressional 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 “promulgated to ensure that employing offices in Congress and its instrumentalities are accountable 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
34 Op. O.L.C. 25 (2010)

42

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 contained 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 attorney’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 
Legal Effect of Federal Judge’s Order as Hearing Officer

43

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] autonomy 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 personnel 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 without 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 supporting 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 judicial 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.
34 Op. O.L.C. 25 (2010)

44

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 administration 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 authority—“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, particularly 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.
Legal Effect of Federal Judge’s Order as Hearing Officer

45

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 executive branch agency in these circumstances. Indeed, as the historical discussion 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 personnel matters in most respects, Congress decided to leave OPM in charge 

of administering a number of retirement and insurance programs, including 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 workplace 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 generally 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. 
34 Op. O.L.C. 25 (2010)

46

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 precedent. 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 generally Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252–57 (1891) (surveying practice of common law courts in concluding that federal courts do 

not possess inherent authority to order medical examinations of plaintiffs). 

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 Branches 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 
Legal Effect of Federal Judge’s Order as Hearing Officer

47

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 enrollment 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 verification requirements against a judicial employer); Memorandum for Theodore 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 legislative 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 Judicial 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 Executive and the Legislature is essential if there is a right to have claims decided 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”). 
34 Op. O.L.C. 25 (2010)

48

of government.” United States v. Will, 449 U.S. 200, 217–18 (1980).

Thus, the coordinate branches may not interfere with the “total and absolute independence of judges in deciding cases or in any phase of the 

decisional function.” Chandler, 398 U.S. at 84. Certain specific constitutional 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 protections afforded the Judiciary. Congress may not “vest review of the decisions of Article III courts in officials of the Executive Branch” or “command[] 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 judgment, 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 

 

11 See 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 
Legal Effect of Federal Judge’s Order as Hearing Officer

49

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 benefits. 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 citizens, 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 administering”); 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 employees. 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 compensation of judges inviolable, then a fortiori general separation of powers 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 Commission and to remove Commission members for good cause threatens judicial independence or “prevent[s] the Judicial Branch from performing its constitutionally assigned 

function of fairly adjudicating cases and controversies”). 
34 Op. O.L.C. 25 (2010)

50

Given all of these considerations, we are unconvinced that OPM’s actions 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 prosecution); 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 (Compensation 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”).