b'Legal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\nUnder Court\xe2\x80\x99s Employment Dispute Resolution Plan\nThe Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, who was acting in an\nadministrative capacity under the Court\xe2\x80\x99s employment dispute resolution plan when he\nissued an order to the Office of Personnel Management, lacked the authority to direct\nOPM in its administration of the Federal Employees Health Benefits Program. Accordingly, OPM is not legally required to comply with the directives in the order.\nJanuary 20, 2010\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF PERSONNEL MANAGEMENT\nOn November 19, 2009, Chief Judge Alex Kozinski of the U.S. Court\nof Appeals for the Ninth Circuit, acting as a hearing officer under the\ncircuit\xe2\x80\x99s employment dispute resolution (\xe2\x80\x9cEDR\xe2\x80\x9d) plan, issued an order\n(\xe2\x80\x9cNovember 19, 2009 Order\xe2\x80\x9d) that, among other things, purported to\ndirect the Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) to take or refrain\nfrom taking certain actions with respect to a circuit employee\xe2\x80\x99s efforts to\nenroll her same-sex spouse in the Federal Employees Health Benefits\nProgram (\xe2\x80\x9cFEHBP\xe2\x80\x9d). See In re Golinski, 587 F.3d 956, 963\xe2\x80\x9364 (9th Cir.\n2009). 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\nprovided to you on this question. See E-mail for Elaine Kaplan, General\nCounsel, Office of Personnel Management, from David Barron, Acting\nAssistant Attorney General, Office of Legal Counsel (Dec. 16, 2009,\n17:37 EST). As we advised, Chief Judge Kozinski, who was acting in an\nadministrative capacity under the EDR plan when he issued the November\n19, 2009 Order, lacked the authority to direct OPM in its administration\nof the FEHBP. Accordingly, OPM is not legally required to comply with\nthe directives in the November 19, 2009 Order. 1\n\nIn a separate memorandum, we address whether OPM has the legal authority to direct\nthe circuit employee\xe2\x80\x99s health insurance carrier not to enroll her same-sex spouse in the\nFEHBP and, if so, whether federal law nonetheless affords OPM the discretion to permit\nthe enrollment to proceed. See Authority of OPM to Direct FEHB Program Carrier Not to\nEnroll Individual Deemed Eligible by Employing Agency, 34 Op. O.L.C. 51 (2010).\n1\n\n25\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nI.\nIn 1998, the Judicial Council of the Ninth Circuit approved an EDR\nplan that grants circuit employees certain substantive rights and sets out\na procedure for the enforcement of those rights. See U.S. Court of\nAppeals for the Ninth Circuit, Employment Dispute Resolution Plan\n(rev. ed. 2000) (\xe2\x80\x9cNinth Circuit EDR Plan\xe2\x80\x9d). The plan prohibits, among\nother things, \xe2\x80\x9c[d]iscrimination against employees based on . . . sex . . .\nand sexual orientation,\xe2\x80\x9d and it also incorporates the rights and protections afforded under the Ninth Circuit Equal Employment Opportunity\n(\xe2\x80\x9cEEO\xe2\x80\x9d) plan. Id. at 2. In addition, the plan sets forth a detailed administrative process for the resolution of employment disputes involving\ncircuit employees. See id. at 1 (\xe2\x80\x9cClaims arising under this Plan or the\nEEO Plan shall be treated in accordance with the procedures set forth in\nthis Plan.\xe2\x80\x9d). An employee who wishes to press a grievance must first\nparticipate in mandatory counseling and mediation. Id. at 5\xe2\x80\x937. If the\ngrievance still remains unresolved, the employee may file a formal written\ncomplaint with the chief judge of the relevant court. Id. at 7. The respondent identified in the complaint must in all cases be \xe2\x80\x9cthe employing office\nthat would be responsible for redressing, correcting or abating the violations(s) alleged in the complaint.\xe2\x80\x9d Id. For complaints that are not frivolous, the chief judge or his designee must hold a hearing on the merits and\n\xe2\x80\x9cmay provide for such discovery and investigation as is necessary.\xe2\x80\x9d Id.\nat 8. In the event that the presiding officer finds a violation of a substantive right protected by the plan, he may award \xe2\x80\x9ca necessary and appropriate remedy,\xe2\x80\x9d including placement of the aggrieved individual in a particular position of employment, reinstatement of the individual to a position\npreviously occupied, and relief under the Back Pay Act, 5 U.S.C. \xc2\xa7 5596\n(2006). Ninth Circuit EDR Plan at 9\xe2\x80\x9310. \xe2\x80\x9cA party or individual\xe2\x80\x9d dissatisfied with the final decision may petition the Judicial Council of the Ninth\nCircuit for review. Id. at 9.\nKaren Golinski, a staff attorney for the Ninth Circuit Court of Appeals,\nfiled a complaint under this plan alleging that she had been the victim of\ndiscrimination based on sex and sexual orientation in violation of both the\nEDR plan itself and the incorporated EEO plan. See Golinski, 587 F.3d\n901, 902 (9th Cir. 2009). Specifically, Ms. Golinski challenged the refusal\nof the Director of the Administrative Office of the United States Courts\n26\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\n(\xe2\x80\x9cAOUSC\xe2\x80\x9d) to certify that Ms. Golinski\xe2\x80\x99s same-sex spouse was a family\nmember entitled to benefits under her FEHBP plan. See id. The first order\nissued in this dispute, on January 13, 2009 (\xe2\x80\x9cJanuary 13, 2009 Order\xe2\x80\x9d),\nexplained that the Director refused certification because he thought it\nbarred as a result of the Defense of Marriage Act (\xe2\x80\x9cDOMA\xe2\x80\x9d), 1 U.S.C.\n\xc2\xa7 7 (2006), which requires federal agencies to construe any use of the\nword \xe2\x80\x9cspouse\xe2\x80\x9d in a federal statute to mean \xe2\x80\x9ca person of the opposite sex\nwho is a husband or a wife.\xe2\x80\x9d Id.; see Golinski, 587 F.3d at 902. In the\nDirector\xe2\x80\x99s view, the statute governing the FEHBP, the Federal Employees\nHealth Benefits Act (\xe2\x80\x9cFEHBA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7\xc2\xa7 8901\xe2\x80\x938914 (2006), when\nread in light of DOMA, did not permit OPM to contract with an insurance\ncarrier for a health benefits plan covering an employee\xe2\x80\x99s same-sex spouse.\nSee Golinski, 587 F.3d at 902; see also 5 U.S.C. \xc2\xa7\xc2\xa7 8901(5), 8903(1),\n8905(a). This conclusion was consistent with OPM\xe2\x80\x99s prior guidance to\nagencies that, as a consequence of DOMA, \xe2\x80\x9csame-sex marriages cannot\nbe recognized for benefit entitlement purposes under . . . [the FEHBP].\xe2\x80\x9d\nOPM, Benefits Administration Letter No. 96-111, at 3 (Nov. 15, 1996)\n(\xe2\x80\x9c1996 Benefits Administration Letter\xe2\x80\x9d).\nThe January 13, 2009 Order disagreed with the Director\xe2\x80\x99s conclusion. The Order construed the FEHBA, even as effectively amended by\nDOMA, to permit OPM to contract for health benefits for the same-sex\nspouses of government employees. See Golinski, 587 F.3d at 902\xe2\x80\x9304.\nThe Order further concluded that the denial of health insurance to Ms.\nGolinski\xe2\x80\x99s spouse violated the Ninth Circuit EEO plan (and, presumably,\nthe Ninth Circuit EDR Plan as well). See id. at 903. To remedy the violation, the Order directed the Director to submit Ms. Golinski\xe2\x80\x99s health\nbenefits election form \xe2\x80\x9cto the appropriate health insurance carrier,\xe2\x80\x9d and\nfurther directed that \xe2\x80\x9cfuture health benefit forms are also to be processed\nwithout regard to the sex of a listed spouse.\xe2\x80\x9d Id. at 904.\nIn compliance with the January 13, 2009 Order, the AOUSC submitted\nMs. Golinski\xe2\x80\x99s election form to her health insurance plan, the Blue Cross\nand Blue Shield Service Benefit Plan (\xe2\x80\x9cBlue Cross Plan\xe2\x80\x9d). See Golinski,\n587 F.3d at 958. Subsequently, OPM sent a letter to the AOUSC describing federal statutory requirements and the 1996 Benefits Administration\nLetter, and explaining that \xe2\x80\x9c[o]fficials of agencies participating in the\nFederal benefits programs administered by OPM must follow the guidance provided in [OPM\xe2\x80\x99s benefits administration letters].\xe2\x80\x9d Letter for\n27\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nNancy E. Ward, Deputy Assistant Director, Office of Human Resources,\nAdministrative Office of the United States Courts, from Lorraine E.\nDettman, Assistant Director, Insurance Services Programs, Office of\nPersonnel Management at 1 (Feb. 20, 2009) (\xe2\x80\x9cAOUSC Letter\xe2\x80\x9d); see also\nGolinski, 587 F.3d at 958. The AOUSC Letter further explained that OPM\nhad advised the Blue Cross Plan and another health plan that they could\nnot accept enrollment forms submitted by the AOUSC for coverage barred\nby federal law. See AOUSC Letter at 2. OPM also sent a letter to the Blue\nCross and Blue Shield Association, the carrier for the Blue Cross Plan,\nadvising it that federal law barred the Plan from accepting Ms. Golinski\xe2\x80\x99s\nelection form. See Letter for Stephen W. Gammarino, Senior Vice President, National Programs, Blue Cross and Blue Shield Association, from\nShirley R. Patterson, Chief Insurance Contracting Officer, Office of\nInsurance Services Programs, Office of Personnel Management (Feb. 23,\n2009) (\xe2\x80\x9cBlue Cross Letter\xe2\x80\x9d); see also Golinski, 587 F.3d at 958. Following these actions, Ms. Golinski sought further relief from Chief Judge\nKozinski.\nThe November 19, 2009 Order concluded that OPM had \xe2\x80\x9cthwart[ed]\nthe relief . . . ordered [in the January 13, 2009 Order],\xe2\x80\x9d Golinski, 587 F.3d\nat 958, and that Ms. Golinski was entitled to, inter alia, prospective relief\nthat would enable her spouse to enroll in her FEHBP plan, see id. at 960\xe2\x80\x93\n61. The November 19, 2009 Order expressed the view that an EDR hearing officer\xe2\x80\x99s \xe2\x80\x9cauthority to order such relief is clear under the language of\nthe EDR plan\xe2\x80\x9d and was intended by Congress. Id. at 961. In addition,\nasserting that \xe2\x80\x9cOPM\xe2\x80\x99s actions implicate . . . the autonomy and independence of the Judiciary as a co-equal branch of government,\xe2\x80\x9d id., the Order\ndeclared that \xe2\x80\x9can EDR tribunal\xe2\x80\x99s 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,\xe2\x80\x9d\nid. at 963. The Order went on to direct the AOUSC to resubmit within 30\ndays Ms. Golinski\xe2\x80\x99s election form to the Blue Cross Plan and to reiterate\nthat the AOUSC was to process benefit forms \xe2\x80\x9cwithout regard to the sex\nof the listed spouse.\xe2\x80\x9d Id. The Order also directed OPM to \xe2\x80\x9crescind\xe2\x80\x9d within\n30 days its \xe2\x80\x9cguidance or directive\xe2\x80\x9d explaining to the Blue Cross Plan \xe2\x80\x9cand\nany other plan\xe2\x80\x9d that \xe2\x80\x9cMs. Golinski\xe2\x80\x99s wife is not eligible to be enrolled as\nher spouse under the terms of the [FEHBP] because of her sex or sexual\norientation, and that the plans would violate their contracts with OPM by\n28\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nenrolling Ms. Golinski\xe2\x80\x99s wife as a beneficiary.\xe2\x80\x9d Id. Finally, the Order\ndirected OPM \xe2\x80\x9cto cease at once its interference with the jurisdiction of\nthis tribunal\xe2\x80\x9d and, specifically, not to \xe2\x80\x9cadvise [the Blue Cross Plan] that\nproviding coverage for Ms. Golinski\xe2\x80\x99s wife violates DOMA or any other\nfederal law\xe2\x80\x9d and not to \xe2\x80\x9cinterfere in any way with the delivery of health\nbenefits to Ms. Golinski\xe2\x80\x99s wife on the basis of her sex or sexual orientation.\xe2\x80\x9d Id. at 963\xe2\x80\x9364. 2\nOn December 17, 2009, the Blue Cross and Blue Shield Association\nfiled a petition for review of the November 19, 2009 Order with the\nJudicial Council of the Ninth Circuit, arguing that \xe2\x80\x9cthe Judicial Council\nhas no jurisdiction over [the Association] under the EDR Plan\xe2\x80\x9d and that,\nin any event, Chief Judge Kozinski\xe2\x80\x99s conclusion that the FEHBA permits\nenrollment of same-sex spouses was incorrect. See Petition for Review for\nBlue Cross and Blue Shield Association at 1, 9, In re Golinski, No. 0980173 (9th Cir. Dec. 17, 2009). On December 22, 2009, Chief Judge\nKozinski 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\nappealed; and that, accordingly, his orders were \xe2\x80\x9cfinal and preclusive on\nall issues decided therein as to [the AOUSC and OPM].\xe2\x80\x9d Golinski, No.\n09-80173, at 1.\nII.\nIn order to determine whether OPM is bound by the directives in the\nNovember 19, 2009 Order, we first must determine the nature of Chief\nJudge Kozinski\xe2\x80\x99s authority in issuing that Order. There is no doubt that\nfederal judges exercising judicial power in resolving cases or controversies pursuant to Article III of the Constitution can issue directives to\nexecutive branch agencies. 3 But not all actions by federal judges are of\n2 The November 19, 2009 Order also directed the Blue Cross Plan to \xe2\x80\x9cenroll Ms. Golinski\xe2\x80\x99s wife within 30 days of receipt of the appropriate forms from the [AOUSC],\nwithout regard to her sex or sexual orientation,\xe2\x80\x9d and ordered certain retrospective relief\nfor Ms. Golinski, including relief under the Back Pay Act, 5 U.S.C. \xc2\xa7 5596. Golinski,\n587 F.3d at 963\xe2\x80\x9364.\n3 See U.S. Const. art. III, \xc2\xa7 1 (\xe2\x80\x9cThe judicial Power of the United States, shall be vested\nin one supreme Court, and in such inferior Courts as the Congress may from time to time\nordain and establish.\xe2\x80\x9d); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)\n\n29\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nthis kind, and it is our view that, in presiding over the Golinski matter,\nChief Judge Kozinski was acting in an administrative capacity. 4 Accordingly, when he issued the November 19, 2009 Order, Chief Judge\nKozinski was not exercising the Article III authority to resolve a case or\ncontroversy, and thus cannot rely on that authority in purporting to direct\nOPM.\nThe background to the administrative process established by the Ninth\nCircuit EDR Plan makes clear why this is so. For much of the nation\xe2\x80\x99s\nhistory, the Executive Branch was responsible for the administration of\nthe federal courts. See Gordon Bermant & Russell R. Wheeler, Federal\nJudges and the Judicial Branch: Their Independence and Accountability,\n46 Mercer L. Rev. 835, 854\xe2\x80\x9355 (1995). In 1939, however, Congress\nenacted legislation transferring the authority to administer the courts from\nthe Department of Justice to the newly created AOUSC, which would\noperate under the direction and supervision of the forerunner to the Judicial Conference of the United States. See Pub. L. No. 76-299, \xc2\xa7 304(1),\n53 Stat. 1223, 1223; 28 U.S.C. \xc2\xa7 604 (2006); see also H.R. Rep. No. 76702, at 4 (1939) (\xe2\x80\x9cThe bill places the responsibility for judicial admin(in resolving \xe2\x80\x9ccases\xe2\x80\x9d and \xe2\x80\x9ccontroversies,\xe2\x80\x9d it is the federal courts\xe2\x80\x99 \xe2\x80\x9cduty . . . to say what\nthe law is\xe2\x80\x9d); United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008) (\xe2\x80\x9c[T]he \xe2\x80\x98judicial\nPower of the United States\xe2\x80\x99 is a power to make binding decisions, not to make suggestions that the Executive Branch may accept or reject.\xe2\x80\x9d (citing Hayburn\xe2\x80\x99s Case, 2 U.S. (2\nDall.) 409 (1792))).\n4 See Mistretta v. United States, 488 U.S. 361, 404 (1989) (power wielded by judges\nserving on U.S. Sentencing Commission \xe2\x80\x9cis not judicial power; it is administrative power\nderived from the enabling legislation\xe2\x80\x9d); United States v. Ferreira, 54 U.S. (13 How.) 40,\n47\xe2\x80\x9348 (1852) (statute authorizing federal district judges to adjust claims made against the\nUnited States, subject to approval of the Secretary of the Treasury, conferred power that\nwas \xe2\x80\x9cnot judicial . . . in the sense in which judicial power is granted by the Constitution to\nthe courts of the United States\xe2\x80\x9d); see also Mistretta, 488 U.S. at 388 (observing that\ncircuit judicial councils, the Judicial Conference of the United States, the Rules Advisory\nCommittees, and the AOUSC, \xe2\x80\x9csome of which [entities] are comprised of judges, . . . do\nnot exercise judicial power in the constitutional sense of deciding cases and controversies,\nbut they share the common purpose of providing [through administration and rulemaking]\nfor the fair and efficient fulfillment of responsibilities that are properly the province of\nthe Judiciary\xe2\x80\x9d); Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 86 n.7\n(1970) (characterizing circuit judicial councils as \xe2\x80\x9cadministrative bodies\xe2\x80\x9d); cf. Forrester\nv. White, 484 U.S. 219, 228 (1988) (\xe2\x80\x9cAdministrative decisions, even though they may be\nessential to the very functioning of the courts,\xe2\x80\x9d are not \xe2\x80\x9cjudicial acts\xe2\x80\x9d for purposes of\ndetermining judicial immunity from suit).\n\n30\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nistration where it belongs\xe2\x80\x94with the judiciary[.]\xe2\x80\x9d). That legislation also\ncreated the circuit judicial councils, charging them with taking action on\nreports submitted by the Director of the AOUSC. See Pub. L. No. 76-299,\n\xc2\xa7 306, 53 Stat. at 1224; see also 28 U.S.C. \xc2\xa7 332(d)(1) (2006) (\xe2\x80\x9cEach\njudicial council shall make all necessary and appropriate orders for the\neffective and expeditious administration of justice within its circuit.\xe2\x80\x9d).\nWith some adjustments, this statutory regime has remained in place to the\npresent day.\nIn 1978, Congress enacted the Civil Service Reform Act (\xe2\x80\x9cCSRA\xe2\x80\x9d),\nPub. L. No. 95-454, 92 Stat. 1111, which creates \xe2\x80\x9can integrated scheme of\nadministrative and judicial review\xe2\x80\x9d \xe2\x80\x9cfor evaluating adverse personnel\nactions against federal employees.\xe2\x80\x9d United States v. Fausto, 484 U.S. 439,\n443, 445 (1988) (internal quotation marks and brackets omitted). The\nCSRA, however, affords no review rights to members of the \xe2\x80\x9cexcepted\nservice\xe2\x80\x9d\xe2\x80\x94a category that at present includes all employees of the Judiciary and Congress. See Dotson v. Griesa, 398 F.3d 156, 163\xe2\x80\x9365, 173 n.10\n(2d Cir. 2005); Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.\n1999); Lee v. Hughes, 145 F.3d 1272, 1275 (11th Cir. 1998). Indeed,\nwhen the CSRA was enacted, those two branches managed their workplaces unconstrained by a number of statutes and other legal authorities\napplicable to private sector and executive branch employees. In 1980, the\nJudicial Conference partially filled this gap by developing a model EEO\nplan and requiring federal courts to adopt EEO plans of their own. See\nDotson, 398 F.3d at 172. These EEO plans put into more concrete form\nthe prior judicial policy of \xe2\x80\x9c\xe2\x80\x98follow[ing] the equal employment opportunity principles applicable to private sector and government employers.\xe2\x80\x99\xe2\x80\x9d Id.\n(quoting Report of the Judicial Conference of the United States, Study of\nJudicial Branch Coverage Pursuant to the Congressional Accountability\nAct of 1995, at 6 (1996) (\xe2\x80\x9cCAA Report\xe2\x80\x9d)).\nIn 1995, Congress enacted the Congressional Accountability Act\n(\xe2\x80\x9cCAA\xe2\x80\x9d), which extended to congressional employees the protections of\nvarious workplace laws applicable to other public and private sector\nemployees. See 2 U.S.C. \xc2\xa7 1302(a) (2006). The Executive Branch has no\nenforcement authority under the CAA, see id. \xc2\xa7 1361(f)(3); instead, the\nAct vests such authority in an Office of Compliance (\xe2\x80\x9cOOC\xe2\x80\x9d) established\nwithin the legislative branch, see id. \xc2\xa7 1381. Congressional employees\nwith grievances arising under the CAA must first complete counseling\n31\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nand mediation; following that, they may initiate proceedings with the\nOOC (or file a civil action in federal district court) and then seek judicial\nreview of final OOC decisions. See id. \xc2\xa7\xc2\xa7 1401\xe2\x80\x931408.\nAs the Second Circuit has explained, Congress considered bringing\njudicial employees within the ambit of the CAA, but ultimately did not do\nso. See Dotson, 398 F.3d at 173. \xe2\x80\x9cInstead, Congress required the Judicial\nConference to prepare a report \xe2\x80\x98on the application to the judicial branch\xe2\x80\x99\nof the labor laws in question, including \xe2\x80\x98any recommendations the Judicial Conference may have for legislation to provide to employees of the\njudicial branch the rights, protections, and procedures under the [labor]\nlaws, including administrative and judicial relief, that are comparable to\nthose available to employees of the legislative branch under [the CAA].\xe2\x80\x99\xe2\x80\x9d\nId. (quoting 2 U.S.C. \xc2\xa7 1434 (2006)). The report submitted by the Judicial\nConference concluded that no legislation was \xe2\x80\x9cnecessary []or advisable in\norder to provide judicial branch employees with protections comparable\nto those provided to legislative branch employees under the CAA.\xe2\x80\x9d CAA\nReport at 2. The report justified this recommendation by pointing to the\nJudiciary\xe2\x80\x99s \xe2\x80\x9cinternal governance system,\xe2\x80\x9d which it described as \xe2\x80\x9ca necessary corollary to judicial independence.\xe2\x80\x9d Id. at 4. The report also discussed supplementing the Judiciary\xe2\x80\x99s existing administrative apparatus\nwith a new \xe2\x80\x9cdispute resolution process\xe2\x80\x9d that would \xe2\x80\x9cexpand upon existing\njudicial branch procedures by enhancing the hearing process and providing for appeal of the hearing officer\xe2\x80\x99s decision.\xe2\x80\x9d Id. at 7. Reflecting the\nadministrative nature of the proposed process, the report likened it to the\nprocedures that \xe2\x80\x9cCongress has adopted in establishing the Office of Compliance.\xe2\x80\x9d Id.\nIn 1997, the Judicial Conference issued a model EDR plan, which substituted a new set of complaint procedures for those in the model EEO\nplan but otherwise left much of the substance of that prior plan intact. See\nDotson, 398 F.3d at 175. The model EDR plan instructed \xe2\x80\x9ceach court [to]\nadopt and implement a plan based [on the model],\xe2\x80\x9d Judicial Conference of\nthe United States, Model Employment Dispute Resolution Plan at 1 (Mar.\n1997), and the Judicial Council of the Ninth Circuit did so the following\nyear.\nConsistent with the recommendations in the Judicial Conference\xe2\x80\x99s report, Congress did not enact any legislation providing for administrative\n32\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nor judicial review of adverse employment decisions involving judicial\nemployees. See Dotson, 398 F.3d at 175. The Second Circuit has described \xe2\x80\x9cCongress\xe2\x80\x99s decision to exclude judicial branch employees from\nthe administrative and judicial review procedures of the CSRA, and from\nsubsequent legislation such as the CAA,\xe2\x80\x9d as \xe2\x80\x9ca conscious and rational\nchoice made and maintained over the years in light of both a proper regard for judicial independence and recognition of the judiciary\xe2\x80\x99s own\ncomprehensive review procedures for adverse employment actions, including review by judicial officers.\xe2\x80\x9d Id. at 176.\nThus, as its history shows, the Ninth Circuit EDR Plan creates an administrative process\xe2\x80\x94akin to the CAA process, albeit without express\nstatutory authorization\xe2\x80\x94designed to handle personnel-related matters\nwithin the Judicial Branch. The federal courts themselves have characterized their EDR processes in this way. For example, the Second Circuit\nhas described the EDR process as \xe2\x80\x9cadministrative review within the\njudiciary.\xe2\x80\x9d Id. 5 And in the November 19, 2009 Order, Chief Judge\nKozinski similarly acknowledged that the EDR plan is \xe2\x80\x9cpart of the tradition of decentralized administration and local management of the federal\ncourts.\xe2\x80\x9d Golinski, 587 F.3d at 958 n.1.\nIII.\nWe conclude that the directives in the November 19, 2009 Order do not\nlegally bind OPM because Chief Judge Kozinski, acting in an administrative capacity under the Ninth Circuit EDR Plan, lacked legal authority to\ndirect OPM in its administration of the FEHBP. We assume\xe2\x80\x94as is\nstressed throughout the November 19, 2009 Order and suggested above\xe2\x80\x94\nthat federal courts have a legal basis for establishing an administrative\nprocess for the resolution of employment disputes involving judicial\nemployees. See Golinski, 587 F.3d at 961\xe2\x80\x9363; supra pp. 30\xe2\x80\x9333. Such\n5 Although the Second Circuit in Dotson noted a \xe2\x80\x9clong history of judicial review within the courts\xe2\x80\x99 EEO plans,\xe2\x80\x9d 398 F.3d at 176 n.14 (emphasis added), we believe that the\ncourt\xe2\x80\x99s use of the term \xe2\x80\x9cjudicial review\xe2\x80\x9d was intended only to point out that internal,\nadministrative review within the judiciary will often be overseen by officials who are, in\nfact, federal judges. See id. (\xe2\x80\x9cIndeed the judiciary is unique among the branches of\ngovernment in being able to provide for itself some review of its administrative employment decisions by a judicial officer.\xe2\x80\x9d (emphasis added)).\n\n33\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nauthority may be implicit in various statutory sources, see, e.g., 28 U.S.C.\n\xc2\xa7 332(d)(1) (establishing judicial councils); id. \xc2\xa7\xc2\xa7 41\xe2\x80\x9349 (establishing\nfederal courts of appeals), or it may be incident to the federal courts\xe2\x80\x99\ninherent Article III power \xe2\x80\x9cto provide themselves with appropriate instruments required for the performance of their duties.\xe2\x80\x9d 6 But we have\nbeen unable to identify any support\xe2\x80\x94whether in the Constitution, the U.S.\nCode, the Code of Federal Regulations, or the case law\xe2\x80\x94for the specific\nproposition that the federal courts have the authority to establish an internal administrative dispute resolution process that can direct OPM\xe2\x80\x99s administration of the FEHBP. Rather, the relevant legal materials support\nthe contrary conclusion.\nA.\nThe November 19, 2009 Order suggests that Congress has statutorily\nempowered the federal courts to establish EDR tribunals that can direct\nOPM in its administration of the FEHBP. See Golinski, 587 F.3d at 961\n(\xe2\x80\x9cOrdering 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\nthat responsibility must come power equal to the task.\xe2\x80\x9d). We respectfully\ndisagree.\nIn determining whether Congress has delegated certain authority to an\nadministrative actor, the general rule is that the delegation must be either\n\xe2\x80\x9cexplicit\xe2\x80\x9d or \xe2\x80\x9cfairly . . . implied\xe2\x80\x9d by a statute. Ry. Labor Executives\xe2\x80\x99 Ass\xe2\x80\x99n\nv. Nat\xe2\x80\x99l Mediation Bd., 29 F.3d 655, 666 n.6 (D.C. Cir. 1994) (en banc);\nsee also Nat\xe2\x80\x99l Petroleum Refiners Ass\xe2\x80\x99n v. FTC, 482 F.2d 672, 674 (D.C.\nCir. 1973) (\xe2\x80\x9cThe extent of [an agency\xe2\x80\x99s] powers can be decided only by\nconsidering the powers Congress specifically granted it in the light of the\nstatutory language and background.\xe2\x80\x9d). The November 19, 2009 Order\ndoes not identify, and we are unaware of, any statute that explicitly empowers a judicial officer presiding over an EDR hearing to control OPM\xe2\x80\x99s\nEx parte Peterson, 253 U.S. 300, 312 (1920); see also CAA Report at 4 (\xe2\x80\x9cThe judiciary\xe2\x80\x99s internal governance system is a necessary corollary to judicial independence.\xe2\x80\x9d);\nRobert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735, 742 (2001) (\xe2\x80\x9cAny Anglo-American \xe2\x80\x98court,\xe2\x80\x99 to be worthy of\nthat name, must have the ability to . . . regulate its internal administrative affairs[.]\xe2\x80\x9d).\n6\n\n34\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nadministration of the FEHBP. Nor, in our view, is there anything in those\nstatutes potentially relevant to the service of judicial officers in that\ncapacity that can be \xe2\x80\x9cfairly\xe2\x80\x9d read to authorize the exercise of such control\nover OPM. It is true that 28 U.S.C. \xc2\xa7 332 empowers the judicial council of\neach circuit to \xe2\x80\x9cmake all necessary and appropriate orders for the effective\nand expeditious administration of justice within its circuit.\xe2\x80\x9d 28 U.S.C.\n\xc2\xa7 332(d)(1) (emphasis added). But there is no basis for concluding that the\ncouncils\xe2\x80\x99 authority to issue orders for internal administration also encompasses the issuance of orders empowering EDR hearing officers to direct\nexecutive branch agencies. Indeed, there are affirmative indications that\nCongress did not intend for judicial officers serving in an administrative\nrole to be able to exercise such directive authority, at least with respect to\nOPM\xe2\x80\x99s administration of the FEHBP.\nTo begin with, the FEHBA contains no suggestion that the federal\ncourts, as employing agencies operating in an administrative capacity, are\nto have directive authority over OPM. The FEHBA specifically entrusts\nOPM with administering the FEHBP. See Transitional Learning Cmty. at\nGalveston, Inc. v. OPM, 220 F.3d 427, 429 (5th Cir. 2000); Kobleur v.\nGroup Hospitalization & Med. Servs., Inc., 954 F.2d 705, 709 (11th Cir.\n1992). In particular, the FEHBA authorizes OPM to negotiate and contract with private insurance carriers to offer health benefits plans to federal employees\xe2\x80\x94including judicial employees\xe2\x80\x94and other eligible individuals, see 5 U.S.C. \xc2\xa7\xc2\xa7 2104, 2105, 8901, 8902(a), 8903 (2006), and to\ndetermine if carriers are contractually obliged to pay benefits to enrollees\nfor particular services, see id. \xc2\xa7 8902(j). The FEHBA also authorizes\nOPM to \xe2\x80\x9cprescribe regulations necessary to carry out\xe2\x80\x9d the Act, id.\n\xc2\xa7 8913(a), which regulations may specify the \xe2\x80\x9ctime at which and the\nmanner and conditions under which an employee is eligible to enroll in an\napproved health benefits plan,\xe2\x80\x9d id. \xc2\xa7 8913(b). Finally, the FEHBA specifically vests jurisdiction to review claims challenging OPM\xe2\x80\x99s administration of the FEHBP in the U.S. district courts and the U.S. Court of Federal\nClaims, which have concurrent jurisdiction \xe2\x80\x9cof a civil action or claim\nagainst the United States founded on [the Act].\xe2\x80\x9d Id. \xc2\xa7 8912. There is no\nprovision of the FEHBA expressly granting any administrative entity\xe2\x80\x94\nincluding one within the Judicial Branch\xe2\x80\x94a role in reviewing any actions\ntaken by OPM in administering the FEHBP\xe2\x80\x94including actions taken with\nrespect to enrollment. Cf. Rosano v. Dep\xe2\x80\x99t of the Navy, 699 F.2d 1315,\n35\n\n\x0c34 Op. O.L.C. 25 (2010)\n\n1319 (Fed. Cir. 1983) (stating that the Navy, as the employing agency,\n\xe2\x80\x9chad no power to change\xe2\x80\x9d \xe2\x80\x9cFEHB[P] options[] determined by OPM\xe2\x80\x9d); In\nre Levenson, 587 F.3d 925, 934 (9th Cir. 2009) (observing that FEHBA\nvests authority to enter into health insurance contracts for federal employees \xe2\x80\x9cin a single executive agency, OPM\xe2\x80\x9d and that it would not be appropriate to issue an order directing the Office of the Federal Public Defender\nfor the Central District of California (\xe2\x80\x9cFPD\xe2\x80\x9d) \xe2\x80\x9cto enter into separate\ncontracts [for its employees] with private insurers\xe2\x80\x9d because \xe2\x80\x9c[n]o statute\nor regulation authorizes the FPD to enter into [such contracts] or to bind\nthe United States to any such contract\xe2\x80\x9d).\nConsistent with our reading of the FEHBA, nothing in OPM\xe2\x80\x99s regulations implementing the Act indicates that OPM delegated to employing\nagencies the authority to direct OPM in its administration of the FEHBP.\nIt is true that regulations promulgated by OPM give an employee\xe2\x80\x99s \xe2\x80\x9cemploying office\xe2\x80\x9d the authority to make initial enrollment determinations\nand also require the employing agency to make an internal reconsideration\nprocess available to an employee denied coverage by his employing\noffice. See 5 C.F.R. \xc2\xa7 890.104 (2009). The regulations further provide that\n\xe2\x80\x9c[a]fter reconsideration, the [employing] agency . . . must issue a final\ndecision,\xe2\x80\x9d id. \xc2\xa7 890.104(e), and make that final decision subject to judicial review, see id. \xc2\xa7 890.107(a). Thus, at least to some extent, OPM\nappears to have delegated to the relevant employing agencies the authority\nto make initial enrollment decisions; to reconsider those decisions; and to\nrender them final, subject to judicial review. Cf. id. \xc2\xa7 890.103(b) (\xe2\x80\x9cOPM\nmay order correction of an administrative error upon a showing satisfactory to OPM that it would be against equity and good conscience not to do\nso.\xe2\x80\x9d). 7 But nothing in the regulations may be read to suggest that an\nemploying agency can, in internally reconsidering an enrollment denial,\nissue a directive to OPM that binds it with respect to that enrollment,\nincluding by preventing OPM from taking actions otherwise authorized by\nstatute.\n\nWe do not address here whether the relevant statutory authorities justify construing\nthis delegation to extend to employing entities within the Judicial Branch. See Authority\nof OPM to Direct FEHB Program Carrier Not to Enroll Individual, 34 Op. O.L.C. at 56\nn.3.\n7\n\n36\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nNotwithstanding the terms of the FEHBA, the November 19, 2009\nOrder suggests that the statutory authority to issue directives to OPM is\nimplicit in Congress\xe2\x80\x99s decision to make \xe2\x80\x9cthe Judiciary\xe2\x80\x99s EDR tribunals\n. . . the only forum where judicial employees may seek redress for unlawful personnel actions.\xe2\x80\x9d Golinski, 587 F.3d at 961; see also id. (\xe2\x80\x9cIf a judicial employee suffers an unjustified personnel action, such as being fired\non account of race, sex or religion, the only remedy possible would come\nfrom an EDR tribunal. Our EDR tribunals must therefore have the authority to grant full relief, including reinstatement (or other prospective\nrelief) and back pay.\xe2\x80\x9d). We do not believe, however, that the recognition\nof such implicit authority is warranted. Not only does the FEHBA itself\ncontain no indication that such authority exists, but it also would be at\nodds with the Act\xe2\x80\x99s framework for OPM administration of the FEHBP,\nwhich is subject to expressly authorized judicial review. In particular, as\nnoted, see supra p. 35, Congress has established the federal district courts\nand the Court of Federal Claims as the proper venues for challenging\nOPM\xe2\x80\x99s administration of the FEHBP. See 5 U.S.C. \xc2\xa7 8912; see also\nNat\xe2\x80\x99l Treasury Employees Union v. Campbell, 589 F.2d 669, 674 (D.C.\nCir. 1978) (section 8912 \xe2\x80\x9cis . . . a broad consent to all suits brought to\nenforce rights and obligations created by the [FEHBA]\xe2\x80\x9d). Thus, although\nthe November 19, 2009 Order contends that \xe2\x80\x9cjudicial employees who\nare victims of discrimination . . . have no remedy at all\xe2\x80\x9d other than\nthrough the EDR process, Golinski, 587 F.3d at 961, in fact the federal\ncourts are available to review challenges to OPM\xe2\x80\x99s actions relating to\nenrollment. That specific provision for judicial review indicates that\nCongress did not contemplate that the federal courts\xe2\x80\x99 internal administrative dispute resolution processes would also provide a means of reviewing\xe2\x80\x94and then countermanding by issuance of a binding directive\xe2\x80\x94\nOPM\xe2\x80\x99s enrollment-related actions.\nMoreover, the fact that Congress has expressly authorized at least one\nremedy\xe2\x80\x94back pay\xe2\x80\x94that judicial officers acting in an administrative\ncapacity may make available to judicial employees subjected to adverse\nemployment actions further suggests that Congress did not also intend\nsuch officers to be able to issue an order to OPM directing enrollment in\nan FEHBP plan. Specifically, the Back Pay Act provides that an employee\n\n37\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nwho, on the basis of . . . an administrative determination . . . is found\nby appropriate authority . . . to have been affected by an unjustified\nor unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials\nof the employee . . . is entitled, on correction of the personnel action,\nto receive for the period for which the personnel action was in effect\n. . . an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have\nearned or received during the period if the personnel action had not\noccurred . . . .\n5 U.S.C. \xc2\xa7 5596(b)(1). The Back Pay Act does not define in detail the\nnature of the \xe2\x80\x9cauthority\xe2\x80\x9d that must make the findings justifying relief,\nother than specifying that it must be \xe2\x80\x9cappropriate.\xe2\x80\x9d The Act does, however, expressly include judicial employees within its ambit. See id.\n\xc2\xa7 5596(a)(2); 28 U.S.C. \xc2\xa7 610 (2006). Accordingly, the process established by the Ninth Circuit EDR Plan, which identifies relief under the\nBack Pay Act as one of the remedies available to successful complainants,\nmay well qualify as an \xe2\x80\x9cappropriate authority.\xe2\x80\x9d See Ninth Circuit EDR\nPlan at 10; see also In re Levenson, 587 F.3d at 935. But whether it does\nor not, the Back Pay Act at least demonstrates that Congress knows how\nto 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\nempower the federal courts to establish administrative processes that can\nbind OPM in the administration of the FEHBP suggests strongly that\nCongress did not intend to implicitly authorize them to do so.\nThe November 19, 2009 Order also invokes two other potential sources\nof statutory authority for the directives to OPM. First, it suggests that an\nEDR hearing officer\xe2\x80\x99s power to direct OPM is implicit in the express\nstatutory authority of the Merits System Protection Board (\xe2\x80\x9cMSPB\xe2\x80\x9d) to\nbind executive branch agencies in parallel situations involving executive\nbranch employees. See Golinski, 587 F.3d at 961 n.4 (noting that had the\nJanuary 13, 2009 Order \xe2\x80\x9ccome from the MSPB, there would have been no\nquestion that it would have had to be obeyed,\xe2\x80\x9d and positing that because\n\xe2\x80\x9c[o]ur EDR tribunals take the place of the MSPB for judicial employees,\n. . . it makes sense that Congress gave our EDR tribunals powers coexten38\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nsive with those of the MSPB\xe2\x80\x9d (citing 5 U.S.C. \xc2\xa7 1204(a)(2) (2006)).\nSecond, the November 19, 2009 Order suggests that the Administrative\nOffice of the United States Courts Personnel Act of 1990 (\xe2\x80\x9cAOUSC\nPersonnel Act\xe2\x80\x9d), Pub. L. No. 101-474, 104 Stat. 1097, which transferred\ncontrol over the AOUSC\xe2\x80\x99s personnel matters from the Executive Branch\nto a personnel system within the AOUSC, may constitute implicit congressional recognition of the Judiciary\xe2\x80\x99s authority to exercise the same\npowers as the MSPB. See Golinski, 587 F.3d at 962 n.6. In our view,\nhowever, neither the MSPB\xe2\x80\x99s express statutory authority to issue binding\norders nor the AOUSC Personnel Act may fairly be read to confer the\nauthority that is at issue in this matter.\nWith respect to the MSPB, it is not even clear that the Board may\nreview a challenge to OPM\xe2\x80\x99s enrollment decisions under the FEHBA. The\nMSPB\xe2\x80\x99s jurisdiction is restricted to actions made \xe2\x80\x9cappealable to the Board\nunder any law, rule, or regulation,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7701(a) (2006), and there\ndoes not appear to be any legal authorization for the appeal of OPM\nenrollment 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\nF.2d at 1318\xe2\x80\x9320 (MSPB lacks jurisdiction to review challenge to OPM\ndecision to approve or not approve health plan); Oppenheim v. OPM, 51\nM.S.P.R. 255, 257 (1991) (OPM\xe2\x80\x99s \xe2\x80\x9cdecisions concerning its administration of health benefits are not reviewable by the [MSPB]\xe2\x80\x9d); Lee v. OPM,\n32 M.S.P.R. 149, 152 (1987) (same). In any event, there is no support for\nthe assumption that the MSPB and an EDR hearing officer have \xe2\x80\x9ccoextensive\xe2\x80\x9d statutory authority over executive branch agencies, Golinski, 587\nF.3d at 961 n.4. Congress expressly granted the MSPB \xe2\x80\x9cspecial power\xe2\x80\x9d to\ncompel such agencies to comply with its orders and decisions. Kerr v.\nNat\xe2\x80\x99l Endowment for the Arts, 726 F.2d 730, 732 (Fed. Cir. 1984); see\n5 U.S.C. \xc2\xa7 1204(a)(2) (\xe2\x80\x9cThe [MSPB] shall . . . order any Federal agency\nor employee to comply with any order or decision issued by the Board\nunder the authority granted under paragraph (1) of this subsection and\nenforce compliance with any such order.\xe2\x80\x9d); cf. 42 U.S.C. \xc2\xa7 2000e-16(b)\n(2006) (providing that \xe2\x80\x9c[t]he head of each . . . department, agency, or unit\nshall comply with . . . rules, regulations, orders, and instructions\xe2\x80\x9d issued\nby the Equal Employment Opportunity Commission). By contrast, there\nis no equivalent provision authorizing the establishment of judicial EDR\nprocesses that can do the same. In accord with basic principles of statu39\n\n\x0c34 Op. O.L.C. 25 (2010)\n\ntory construction, see Leatherman v. Tarrant County Narcotics Intel. &\nCoord. Unit, 507 U.S. 163, 168 (1993) (\xe2\x80\x9cExpressio unius est exclusio\nalterius.\xe2\x80\x9d), the absence of such a provision indicates that the potential\nfunctional similarity between the MSPB and a federal court\xe2\x80\x99s EDR process does not itself justify the inference that Congress intended for them\nto have the same enforcement powers. Thus, whether or not it would\n\xe2\x80\x9cmake[] sense\xe2\x80\x9d for the Ninth Circuit EDR process to be able to bind\nexecutive branch agencies in the same manner as the MSPB can, Golinski,\n587 F.3d at 961 n.4, Congress has not acted to make it so. See Detroit\nTrust Co. v. The Thomas Barlum, 293 U.S. 21, 38 (1934) (\xe2\x80\x9cThe question\nof policy\xe2\x80\x94whether different terms should have been imposed\xe2\x80\x94is not for\nus. We may not add to the conditions set up by Congress any more than\nwe can subtract from them.\xe2\x80\x9d).\nThe AOUSC Personnel Act also fails to provide a legal basis for the\ndirectives to OPM. In the first place, that Act by its terms addresses solely\npersonnel matters within the AOUSC and thus does not speak to such\nmatters within the federal courts generally. Moreover, the text of the\nAOUSC Personnel Act contains no language expressly conferring on the\nAOUSC the authority to issue directives to OPM in its administration of\nthe FEHBP, and none may be fairly implied. Indeed, the House Committee Report makes clear that the Act affects neither the entitlement of the\nAOUSC\xe2\x80\x99s employees to health benefits under the FEHBP nor OPM\xe2\x80\x99s\nresponsibility for hearing those employees\xe2\x80\x99 administrative appeals of its\ndecisions under the FEHBA. See H.R. Rep. No. 101-770, pt. 1, at 6 (1990)\n(\xe2\x80\x9cBeing subject to the retirement and insurance plans administered by\n[OPM], employees of the [AOUSC] will continue to appeal adverse\nrulings on these matters to [OPM]\xe2\x80\x9d).\nThe November 19, 2009 Order notes that section 3(g) of the AOUSC\nPersonnel Act, \xc2\xa7 3(g), 104 Stat. 1099, empowers the AOUSC to exercise,\nwith respect to employees or applicants for employment in the AOUSC,\n\xe2\x80\x9cany authority granted\xe2\x80\x9d to the MSPB under \xe2\x80\x9cany law prohibiting\xe2\x80\x9d certain\nenumerated forms of \xe2\x80\x9cdiscrimination in Federal employment.\xe2\x80\x9d 28 U.S.C.\n\xc2\xa7 602 note (2006). But this provision does not grant even the AOUSC the\nauthority to direct OPM as the November 19, 2009 Order purports to do.\nThe Order is clear that the directives to OPM are for the purpose of enforcing the non-discrimination protections set forth in the Ninth Circuit\xe2\x80\x99s\nown internal EDR and EEO plans, not any federal anti-discrimination\n40\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nstatute. See Golinski, 587 F.3d at 963 (\xe2\x80\x9cThis court\xe2\x80\x99s non-discrimination\nplan requires that Ms. Golinski be afforded [FEHBP coverage for her\nspouse]\xe2\x80\x9d). Accordingly, even if the MSPB could direct OPM\xe2\x80\x99s actions\nwith respect to enrollment in the FEHBP\xe2\x80\x94which, as noted above, is not\nat all clear, see supra p. 39\xe2\x80\x94we 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\nMSPB. 8\n\n8 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\nthose directives are therefore without legal force. Although the November 19, 2009 Order\ncharacterized the EDR plan as \xe2\x80\x9cclear[ly]\xe2\x80\x9d authorizing the issuance of legal directives to\nOPM, Golinski, 587 F.3d at 961, the plan by its terms provides that only judicial actors\nmay be named as respondents in grievance proceedings, see Ninth Circuit EDR Plan at 7\n(\xe2\x80\x9cThe 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\xe2\x80\x9d), thus\nsuggesting that the plan does not anticipate the issuance of binding orders to outside\nactors. See Hansberry v. Lee, 311 U.S. 32, 40 (1940) (as a general matter, \xe2\x80\x9cone is not\nbound by a judgment in personam in a litigation in which he is not designated as a party\nor to which he has not been made a party by service of process\xe2\x80\x9d); 12 Charles Alan Wright,\nArthur R. Miller & Richard L. Marcus, Federal Practice and Procedure \xc2\xa7 3033 (3d ed.\n1997) (\xe2\x80\x9cOrdinarily a judgment only may be enforced against a party.\xe2\x80\x9d) (\xe2\x80\x9cWright, Miller &\nMarcus\xe2\x80\x9d). In addition, while the plan provides that hearing officers \xe2\x80\x9cmay order a necessary and appropriate remedy,\xe2\x80\x9d including one \xe2\x80\x9cprospectively insuring compliance with the\nrights protected by this Plan,\xe2\x80\x9d Ninth Circuit EDR Plan at 9, the only remedies listed as\navailable to successful complainants apply solely within the Judicial Branch. For example, available remedies include placement of an employee in a position previously denied\nor in a comparable alternative position, prospective promotion to a position, priority\nconsideration for a future promotion or position, granting of family and medical leave,\nand payment of back pay. See id. at 9\xe2\x80\x9310. Finally, the EDR plan states that it \xe2\x80\x9cprovide[s]\nrights and protections to Ninth Circuit employees comparable to those provided to\nlegislative branch employees under the CAA,\xe2\x80\x9d Ninth Circuit EDR Plan at 1, and the CAA\nplainly establishes an internal process for the resolution of disputes between congressional employees and their employing offices concerning the application of enumerated,\ngenerally applicable workplace statutes. See Johnson v. Office of the Architect of the\nCapitol, No. 99-AC-326, 2003 WL 25795028, at *2 (C.A.O.C. 2003) (CAA was \xe2\x80\x9cpromulgated to ensure that employing offices in Congress and its instrumentalities are accountable for actions taken in contravention of statutes made applicable by the Act\xe2\x80\x9d (emphasis\nadded)). There is no suggestion in the CAA that the OOC\xe2\x80\x99s enforcement functions under\nthat Act include the power to direct executive action\xe2\x80\x94a power that would be quite\nanomalous in any event since the Executive Branch has no authority under the Act to\nenforce the incorporated workplace statutes with respect to congressional employees, see\n\n41\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nB.\nWere the EDR process within the Executive Branch, we could end our\ninquiry with the conclusion that a judge presiding over that process lacks\nstatutory authority to issue orders directing OPM in its administration of\nthe FEHBP. It is well-settled that \xe2\x80\x9can agency\xe2\x80\x99s power is no greater than\nthat delegated to it by Congress.\xe2\x80\x9d Lyng v. Payne, 476 U.S. 926, 937\n(1986); see also La. Pub. Serv. Comm\xe2\x80\x99n v. FCC, 476 U.S. 355, 374 (1986)\n(\xe2\x80\x9can agency literally has no power to act . . . unless and until Congress\nconfers power upon it\xe2\x80\x9d); Civil Aeronautics Bd. v. Delta Air Lines, Inc.,\n367 U.S. 316, 322 (1961) (\xe2\x80\x9c[The Civil Aeronautics Board] is entirely a\ncreature of Congress and the determinative question is not what the Board\nthinks it should do but what Congress has said it can do.\xe2\x80\x9d); 5 U.S.C.\n\xc2\xa7 558(b) (2006) (\xe2\x80\x9cA sanction may not be imposed or a substantive rule or\norder issued except within jurisdiction delegated to the agency and as\nauthorized by law.\xe2\x80\x9d). 9 Given that the EDR process is a creation of the\n2 U.S.C. \xc2\xa7 1361(f)(3). See also Eastham v. U.S. Capitol Police Bd., No. 06-CP-41, 2008\nWL 5476087, at *5 (C.A.O.C. 2008) (OOC Board \xe2\x80\x9chas no mandate or plenary authority\nunder the CAA to remedy abuses or police the integrity of the [Federal Employees\xe2\x80\x99\nCompensation Act] process\xe2\x80\x9d). 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\nforeclosed by the plan, see Ninth Circuit EDR Plan at 10 (identifying payment of attorney\xe2\x80\x99s fees and payment of compensatory and punitive damages as \xe2\x80\x9c[r]emedies not legally\navailable\xe2\x80\x9d), the availability of such an externally directed remedy would appear at odds\nwith the entire structure of the plan, including those remedies that it does expressly make\navailable.\n9 This Office has noted a possible argument that, because \xe2\x80\x9cCongress is presumed to\nhave made its statutory scheme effective,\xe2\x80\x9d \xe2\x80\x9cagencies may possess some inherent power to\nimpose sanctions designed to protect the integrity of their proceedings[,] . . . even against\nfederal agencies.\xe2\x80\x9d Authority of the Equal Employment Opportunity Commission to Impose\nMonetary Sanctions Against Federal Agencies for Failure to Comply with Orders Issued\nby EEOC Administrative Judges, 27 Op. O.L.C. 24, 32 (2003). Whatever the merits of this\nargument, it is of no relevance here because the authority of an EDR hearing officer to\ndirect OPM would extend well beyond the type of \xe2\x80\x9cauthority to promulgate an internal\ndisciplinary rule\xe2\x80\x9d that some courts have recognized as inherently possessed (presumably,\nbecause implicitly delegated by statute) by administrative bodies. Am. Bus Ass\xe2\x80\x99n v. Slater,\n231 F.3d 1, 7 (D.C. Cir. 2000); see, e.g., Touche Ross & Co. v. SEC, 609 F.2d 570, 582\n(2d Cir. 1979) (upholding SEC rule providing for Commission to suspend and disbar\nattorneys who appear before it \xe2\x80\x9cas a necessary adjunct to the Commission\xe2\x80\x99s power to\nprotect the integrity of its administrative procedures and the public in general\xe2\x80\x9d); cf. Am.\nBus. Ass\xe2\x80\x99n, 231 F.3d at 7 (any inherent authority possessed by administrative agencies\n\n42\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nJudicial Branch, however, we must address a possible constitutional basis\nfor the directives to OPM contained in the November 19, 2009 Order.\nPointing to OPM\xe2\x80\x99s actions in this matter\xe2\x80\x94specifically, its advice to the\nBlue Cross and Blue Shield Association that federal law barred the Blue\nCross Plan from accepting Ms. Golinski\xe2\x80\x99s election form, see Golinski, 587\nF.3d at 958\xe2\x80\x94the November 19, 2009 Order asserts that OPM \xe2\x80\x9cmay not\ndisregard a coordinate branch\xe2\x80\x99s construction of the laws that apply to its\nemployees,\xe2\x80\x9d and \xe2\x80\x9cmust henceforth respect the Judiciary\xe2\x80\x99s interpretation of\nthe laws applicable to judicial employees.\xe2\x80\x9d Id. at 961. \xe2\x80\x9cAny other result,\xe2\x80\x9d\nthe Order contends, \xe2\x80\x9cwould prevent the Judiciary from \xe2\x80\x98accomplishing its\nconstitutionally assigned functions\xe2\x80\x99 by seriously undermining [its] autonomy over personnel matters.\xe2\x80\x9d Id. (quoting Nixon v. Adm\xe2\x80\x99r of Gen. Servs.,\n433 U.S. 425, 443 (1977); citation omitted); see also id. (\xe2\x80\x9cBarring us from\ndetermining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a\nhandmaiden of the Executive.\xe2\x80\x9d (internal quotation marks omitted)). On\nthis basis, the Order suggests that the Constitution grants judges serving\nas EDR hearing officers the inherent authority to issue orders that bind\nexecutive branch agencies in their administration of statutes that confer\nbenefits on judicial employees. See Golinski, 587 F.3d at 963 (invoking\n\xe2\x80\x9cthe Judiciary\xe2\x80\x99s inherent authority to resolve workplace complaints without interference by the Executive\xe2\x80\x9d); id. at 962 n.6 (discussing federal\ncourts\xe2\x80\x99 \xe2\x80\x9cauthority, part statutory and part inherent, to control matters that\ntouch on the operation of the courts\xe2\x80\x9d).\nParticularly given that the statutory context strongly indicates that\nCongress has both declined to empower EDR hearing officers generally in\nthis manner and charged OPM specifically with administering the\nFEHBA, we conclude that there is no inherent constitutional power supporting the directives issued to OPM in this matter. Even assuming that\nfederal courts possess inherent authority under Article III, independent of\nany statute, to create an administrative process for the resolution of judicial employment disputes, such inherent authority to establish mechadoes not extend to \xe2\x80\x9cmodifying regulated parties\xe2\x80\x99 primary conduct\xe2\x80\x9d). Indeed, the argument\nbased on an agency\xe2\x80\x99s inherent authority to protect the integrity of its proceedings is\nparticularly inapt in this case because OPM was not even a party to Ms. Golinski\xe2\x80\x99s EDR\nhearing, and thus not part of the \xe2\x80\x9cproceeding\xe2\x80\x9d over which Chief Judge Kozinski presided.\n\n43\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nnisms for internal enforcement of employment rules does not imply the\nmuch more significant authority to act with binding force against an\nexecutive branch agency that has been statutorily charged with the administration of a federal benefits program.\nThe Supreme Court has explained that inherent powers are those\n\xe2\x80\x9cwhich cannot be dispensed with in a Court, because they are necessary to\nthe exercise of all others.\xe2\x80\x9d Chambers v. NASCO, Inc., 501 U.S. 32, 43\n(1991) (quotation marks and citation omitted); see also United States v.\nHudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) (\xe2\x80\x9cCertain implied\npowers must necessarily result to our Courts of justice from the nature of\ntheir institution.\xe2\x80\x9d). As the Supreme Court has explained, \xe2\x80\x9c[p]rinciples of\ndeference counsel restraint in resorting to inherent power, and require its\nuse to be a reasonable response to the problems and needs that provoke\nit.\xe2\x80\x9d Degen v. United States, 517 U.S. 820, 824 (1996) (internal citations\nomitted); see also Chambers, 501 U.S. at 44 (directing that \xe2\x80\x9cinherent\npowers must be exercised with restraint and discretion\xe2\x80\x9d). Consistent with\nthis admonition, the Court has identified a limited number of areas in\nwhich federal courts possess inherent powers, see generally Robert J.\nPushaw, Jr., The Inherent Powers of Federal Courts and the Structural\nConstitution, 86 Iowa L. Rev. 735, 738 (2001), none of which powers are\ncomparable to the one claimed here.\nIt is true that Article III courts possess the inherent \xe2\x80\x9cability to punish\ndisobedience to judicial orders.\xe2\x80\x9d Young v. United States ex rel. Vuitton\net Fils S.A., 481 U.S. 787, 796 (1987) (emphasis added). But that authority\xe2\x80\x94\xe2\x80\x9cessential to ensuring that the Judiciary has a means to vindicate its\nown authority without complete dependence on other Branches,\xe2\x80\x9d id. at\n796\xe2\x80\x9397\xe2\x80\x94says nothing about the authority of federal judges to compel\ncompliance with their administrative orders. \xe2\x80\x9cCourts of justice\xe2\x80\x9d must \xe2\x80\x9cbe\nvested, by their very creation, with power to impose . . . submission to\ntheir lawful mandates.\xe2\x80\x9d Chambers, 501 U.S. at 43. But we are not aware\nof any support for the proposition that federal judges presiding over an\nadministrative process for the Judicial Branch\xe2\x80\x94not a judicial proceeding\nto resolve a case or controversy\xe2\x80\x94must have this power as well, particularly when the entity to which the order is directed is not a party to that\nadministrative process, cf. Hansberry, 311 U.S. at 40; Wright, Miller &\nMarcus \xc2\xa7 3033; supra note 9.\n44\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nIn fact, we have identified no precedent for the proposition that the\nConstitution vests federal courts with the inherent authority to establish\nan 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\ngoverned all judicial administration until 1939, and was in charge of\npersonnel matters for some judicial employees\xe2\x80\x94those within the\nAOUSC\xe2\x80\x94until enactment of the AOUSC Personnel Act in 1990. See\nDotson, 398 F.3d at 171 & nn.6, 7. And, as previously discussed, see\nsupra pp. 40\xe2\x80\x9341, even in granting the AOUSC control over its own personnel matters in most respects, Congress decided to leave OPM in charge\nof administering a number of retirement and insurance programs, including the FEHBP, with respect to the AOUSC\xe2\x80\x99s employees. See H.R. Rep.\nNo. 101-770, pt. 1, at 6. Thus, there is no longstanding tradition of the\nfederal courts exercising complete independence in the administration of\njudicial employees generally, let alone in the administration of their\nfederal benefits.\nAdmittedly, there is some support in the CAA Report submitted by the\nJudicial Conference and the legislative history of the AOUSC Personnel\nAct for the proposition that certain kinds of Executive Branch interference\nwith a personnel issue that is strictly internal to the Judicial Branch\xe2\x80\x94in\nother words, that concerns solely the relationship between the Judiciary\nand its employees\xe2\x80\x94might raise separation of powers concerns. See CAA\nReport at 15 (\xe2\x80\x9cThe judicial branch needs internal enforcement [of workplace laws]\xe2\x80\x9d \xe2\x80\x9cdue to separation of powers concerns\xe2\x80\x9d); H.R. Rep. No. 101770, pt. 1, at 5 (\xe2\x80\x9cWhile it may be convenient to have the personnel system\nof [the AOUSC] covered by the personnel management network of the\nexecutive branch, it is contrary to the doctrine of separation of powers.\xe2\x80\x9d);\nsee also CAA Report at 4 (\xe2\x80\x9c[T]he judicial branch must have control over\nits employee and workplace management in order to ensure both the\nindependence, and the appearance of independence, of its decisions.\xe2\x80\x9d).\nThe enrollment of Ms. Golinski\xe2\x80\x99s spouse in the FEHBP, however, is not\nsuch a purely internal judicial matter. Not only is OPM responsible generally for administering the FEHBP, which is open to employees in all\nthree branches, but it also contracts with the private insurance carriers\nthat operate the program and administers the funds\xe2\x80\x94held in the U.S.\n45\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nTreasury\xe2\x80\x94used to reimburse those carriers for benefit payments. See\n5 U.S.C. \xc2\xa7\xc2\xa7 8901, 8902, 8903, 8909.\nConsistent with this judgment, we note that even in the years since the\nJudiciary has been managing its own internal personnel matters, it has not\nlaid claim to the kind of directive authority at issue here. Thus, while\n\xe2\x80\x9cadministrative review within the judiciary plainly has a long history,\nwhich has been well known to Congress,\xe2\x80\x9d Dotson, 398 F.3d at 176, the\ndirectives in the November 19, 2009 Order appear to be without precedent. The sui generis nature of these directives supports the conclusion\nthat the power claimed is not \xe2\x80\x9cnecessarily vested in courts to manage their\nown affairs so as to achieve the orderly and expeditious disposition of\ncases.\xe2\x80\x9d Link v. Wabash R. Co., 370 U.S. 626, 630\xe2\x80\x9331 (1962); see generally Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 252\xe2\x80\x9357 (1891) (surveying practice of common law courts in concluding that federal courts do\nnot possess inherent authority to order medical examinations of plaintiffs).\nThe absence of historical support for the proposition that the directives\nto OPM in the November 19, 2009 Order are constitutionally based is not\nsurprising. The Supreme Court has adopted a functional approach to\nseparation of powers disputes, rejecting \xe2\x80\x9cthe notion that the three Branches must be entirely separate and distinct,\xe2\x80\x9d Mistretta, 488 U.S. at 380, and\nemphasizing instead that the Constitution \xe2\x80\x9c\xe2\x80\x98enjoins upon its branches\nseparateness but interdependence, autonomy but reciprocity,\xe2\x80\x99\xe2\x80\x9d id. at 381\n(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635\n(1952)). Thus, there is nothing necessarily anomalous about the benefits\nreceived by one branch\xe2\x80\x99s employees being to some extent dependent on\nanother branch\xe2\x80\x99s interpretation of the laws. See id. (explaining that the\nseparation of powers does not require a \xe2\x80\x9chermetic division among the\nBranches\xe2\x80\x9d). Indeed, the Court has been clear that \xe2\x80\x9ceven quite burdensome\ninteractions\xe2\x80\x9d \xe2\x80\x9cbetween the Judicial Branch and the Executive\xe2\x80\x9d do not\n\xe2\x80\x9cnecessarily rise to the level of [unconstitutionality].\xe2\x80\x9d Clinton v. Jones,\n520 U.S. 681, 702 (1997).\nTo be sure, \xe2\x80\x9c\xe2\x80\x98the separation-of-powers doctrine requires that a branch\nnot impair another in the performance of its constitutional duties,\xe2\x80\x99\xe2\x80\x9d Jones,\n520 U.S. at 701 (quoting Loving v. United States, 517 U.S. 748, 757\n(1996)), and in resolving disputes involving alleged encroachments upon\n46\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\nthe Judiciary, the Court specifically has identified the danger of another\nbranch \xe2\x80\x9c\xe2\x80\x98impermissibly threaten[ing] the institutional integrity of the\nJudicial Branch,\xe2\x80\x99\xe2\x80\x9d Mistretta, 488 U.S. at 383 (quoting Commodity Futures\nComm\xe2\x80\x99n v. Schor, 478 U.S. 833, 851 (1986)). In our view, however, no\nsuch threat is present here. OPM\xe2\x80\x99s actions relating to the attempted enrollment of Ms. Golinski\xe2\x80\x99s spouse simply do not \xe2\x80\x9cdestroy [the Judicial\nBranch\xe2\x80\x99s] autonomy,\xe2\x80\x9d Golinski, 587 F.3d at 962, or otherwise seriously\nundermine its institutional integrity or its ability to perform its duties. 10\nPrior precedent of this Office addressing the permissibility of executive\nenforcement of federal legislation with respect to the Judiciary comports\nwith this conclusion. See, e.g., Enforcement of INA Employer Sanctions\nProvisions Against Federal Government Entities, 24 Op O.L.C. 33, 37\n(2000) (concluding that separation of powers does not bar enforcement by\nthe 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\nJ. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: FBI Investigative Authority at 2 (June 7, 2004) (\xe2\x80\x9c[T]here is no general\nseparation-of-powers problem with the FBI exercising the Executive\xe2\x80\x99s\nauthority to enforce the laws by investigating possible violations of the\nlaw that may involve the property, activities or employees of the legislative or judicial branches.\xe2\x80\x9d).\nThe relevant Supreme Court precedents do not specify with complete\nprecision those functions that are so central to the autonomy of the Judicial Branch that they must be immune from interference by the other\nbranches, but it has marked some helpful guideposts. Most fundamentally,\nas the Court has explained, \xe2\x80\x9c[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\nThe November 19, 2009 Order presents some hypothetical examples of Executive\nBranch action. See Golinski, 587 F.3d at 962. Since those situations have not come to\npass, we do not consider them in undertaking our separation of powers analysis of OPM\xe2\x80\x99s\nconduct with respect to Ms. Golinski\xe2\x80\x99s attempted enrollment of her spouse. See Schor,\n478 U.S. at 852 (declining to endorse an absolute, separation of powers based prohibition\non congressional action \xe2\x80\x9cout of fear of where some hypothetical \xe2\x80\x98slippery slope\xe2\x80\x99 may\ndeposit us\xe2\x80\x9d); see also Mistretta, 488 U.S. at 411 n.32 (declining to address \xe2\x80\x9chypothetical\nconstitutional question\xe2\x80\x9d).\n10\n\n47\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nof government.\xe2\x80\x9d United States v. Will, 449 U.S. 200, 217\xe2\x80\x9318 (1980).\nThus, the coordinate branches may not interfere with the \xe2\x80\x9ctotal and absolute independence of judges in deciding cases or in any phase of the\ndecisional function.\xe2\x80\x9d Chandler, 398 U.S. at 84. Certain specific constitutional provisions help to preserve the necessary judicial independence:\nin particular, the good Behavior Clause \xe2\x80\x9cguarantees that Art. III judges\nshall enjoy life tenure, subject only to removal by impeachment,\xe2\x80\x9d and the\nCompensation Clause \xe2\x80\x9cguarantees Art. III judges a fixed and irreducible\ncompensation for their services.\xe2\x80\x9d N. Pipeline Constr. Co. v. Marathon\nPipe Line Co., 458 U.S. 50, 59 (1982) (plurality opinion); see also United\nStates ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955); U.S. Const. art. III,\n\xc2\xa7 1. The Court also has recognized several further constitutional protections afforded the Judiciary. Congress may not \xe2\x80\x9cvest review of the decisions of Article III courts in officials of the Executive Branch\xe2\x80\x9d or \xe2\x80\x9ccommand[] the federal courts to reopen final judgments.\xe2\x80\x9d Plaut v. Spendthrift\nFarm, Inc., 514 U.S. 211, 218\xe2\x80\x9319 (1995). In addition, Congress may not\n\xe2\x80\x9cauthorize the adjudication of Article III business in a non-Article III\ntribunal\xe2\x80\x9d in a way that \xe2\x80\x9cimpermissibly threatens the institutional integrity\nof the Judicial Branch.\xe2\x80\x9d Schor, 478 U.S. at 851; see also Thomas v. Union\nCarbide Agric. Prods. Co., 473 U.S. 568, 584 (1985) (\xe2\x80\x9cCongress may not\nvest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising\nunder state law, without consent of the litigants, and subject only to\nordinary appellate review.\xe2\x80\x9d (citing N. Pipeline Constr. Co., 458 U.S. at\n84, 90\xe2\x80\x9392 (plurality, concurring, and dissenting opinions))).\nOPM\xe2\x80\x99s actions in this matter are not at all comparable, however, to the\ntypes of intrusions that the Court has deemed to transgress the separation\nof powers. Unlike in those cases, there is no connection here between the\nallegedly intrusive action\xe2\x80\x94OPM\xe2\x80\x99s enforcement of the federal statutory\nbar on the enrollment of same-sex spouses of judicial employees in the\nFEHBP\xe2\x80\x94and either the judicial decisionmaking process or any of the\nrelated activities that reside at the core of federal judicial power. 11 Some\nSee Enforcement of INA Employer Sanctions Provisions, 24 Op O.L.C. at 37 (even\nthough Executive Branch enforcement of immigration laws with respect to judicial\nemployer \xe2\x80\x9cwould impose some administrative burdens upon its subject[,] . . . such\nburdens would certainly not be so demanding as to interfere with the judiciary\xe2\x80\x99s proper\n11\n\n48\n\n\x0cLegal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer\n\npotential employees may decline to work for the Judiciary\xe2\x80\x94and some\ncurrent judicial employees may depart for the private sector\xe2\x80\x94because of\nthe unavailability of federal health benefits for same-sex spouses. But this\noutcome hardly establishes that the Executive Branch violates Article III\nwhen, in administering a government-wide benefits program such as the\nFEHBP, it acts to prevent the attempted enrollment of a judicial employee\nbased on generally applicable statutory limits on the availability of benefits. Cf. O\xe2\x80\x99Malley v. Woodrough, 307 U.S. 277, 282 (1939) (in concluding\nthat Compensation Clause does not forbid subjecting federal judges to a\ngenerally applicable income tax, observing that \xe2\x80\x9c[t]o subject [federal\njudges] to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an\nimmunity from sharing with their fellow citizens the material burden of\nthe government whose Constitution and laws they are charged with administering\xe2\x80\x9d); United States v. Hatter, 532 U.S. 557, 571 (2001) (\xe2\x80\x9cThere\nis no good reason why a judge should not share the tax burdens borne by\nall citizens.\xe2\x80\x9d). The application of statutorily prescribed limits on federal\nemployee benefits of any kind may have this same consequence, and yet it\ncannot be the case that separation of powers principles completely disable\nthe Executive Branch from applying any such limits to judicial employees. Indeed, as the Supreme Court held in Will, the Compensation Clause\ndoes not even \xe2\x80\x9cerect an absolute ban on all legislation that conceivably\ncould have an adverse effect on the compensation of judges.\xe2\x80\x9d 449 U.S. at\n227; see also id. at 227 n.31 (\xe2\x80\x9c[T]he Compensation Clause does not forbid\neverything that might adversely affect judges.\xe2\x80\x9d). If the Compensation\nClause, 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\nby the Executive Branch to enforce a statute that has some effect on the\nbenefits received by judicial employees.\n\nexecution of its constitutional obligations\xe2\x80\x9d); cf. Mistretta, 488 U.S. at 410 (dismissing\nnotion that the President\xe2\x80\x99s power to appoint federal judges to the U.S. Sentencing Commission and to remove Commission members for good cause threatens judicial independence or \xe2\x80\x9cprevent[s] the Judicial Branch from performing its constitutionally assigned\nfunction of fairly adjudicating cases and controversies\xe2\x80\x9d).\n\n49\n\n\x0c34 Op. O.L.C. 25 (2010)\n\nGiven all of these considerations, we are unconvinced that OPM\xe2\x80\x99s actions threaten the integrity of the Judicial Branch, particularly when\ncompared with other alleged encroachments on that branch that the courts\nhave upheld against separation of powers challenge. 12\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\nSee Mistretta, 488 U.S. at 408\xe2\x80\x9311 (upholding President\xe2\x80\x99s authority to appoint and\nremove members of U.S. Sentencing Commission, including federal judges); Morrison v.\nOlson, 487 U.S. 654, 683 (1988) (powers and duties of Judicial Branch with respect to\nindependent counsel under Ethics in Government Act, including authority to terminate\ncounsel\xe2\x80\x99s office, did not threaten institutional integrity of Judicial Branch); see also\nUnited States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984) (rejecting the claim that the\nConstitution 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\nv. Isaacs, 493 F.2d 1124 (7th Cir. 1974) (same); cf. Will, 449 U.S. at 228\xe2\x80\x9329 (Compensation Clause does not prevent Congress from refusing to apply previously enacted formula\nfor increasing judicial salaries so long as increase has not taken effect as part of the\ncompensation that is \xe2\x80\x9cdue and payable\xe2\x80\x9d).\n12\n\n50\n\n\x0c'