Case3:10-cv-00257-JSW Document24 Filed03/01/10 Page1 of 3

1 MICHAEL F. HERTZ
Deputy Assistant Attorney General
2 JOSEPH P. RUSSONIELLO
United States Attorney
3 SUSAN K. RUDY
Assistant Branch Director
4 STEVEN Y. BRESSLER
Trial Attorney
5 United States Department of Justice
Civil Division, Federal Programs Branch
6
P.O. Box 883
7 Washington, D.C. 20044
Telephone: (202) 305-0167
8 Facsimile: (202) 616-8470
Email: Steven.Bressler@usdoj.gov
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Attorneys for Defendant
10 the U.S. Office of Personnel Management
11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
13 OAKLAND DIVISION
14 KAREN GOLINSKI )
) No. C 4:10-00257-SBA
15 Plaintiff, )
)
16 v. ) DECLARATION OF
) STEVEN Y. BRESSLER
17 THE UNITED STATES OFFICE OF )
PERSONNEL MANAGEMENT, )
18 )
Defendant. )
19 )
____________________________________ )
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21 1. I am a trial attorney in the Federal Programs Branch of the Civil Division of the
22 United States Department of Justice. I am lead counsel for the defendant in this action.
23 2. This declaration is submitted as support for the defendant’s Administrative
24 Motion for Leave to File an Opposition Brief of 36 Pages.
25 3. Defendant’s planned brief in opposition to plaintiff’s motion for preliminary
26 injunction describes the background facts and law relevant to plaintiff’s motion, including the
27 nature of the Ninth Circuit’s Employee Dispute Resolution (“EDR”) Plan, the Federal Employees
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Declaration of Steven Y. Bressler In Support of Defendant’s
Administrative Motion for Leave to File an Opposition Brief of 36 Pages
4:10cv257 SBA
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1 Health Benefits Act, and the Office of Personnel Management (“OPM”) regulations promulgated
2 thereunder. Defendant will argue that the EDR Orders issued by Chief Judge Kozinski do not
3 present a basis for an order of mandamus against OPM under the facts presented here. In support
4 of that argument, defendant’s brief addresses the nature of the authority vested in a hearing
5 officer under the EDR Plan; discusses the authorities cited by Chief Judge Kozinski as
6 supporting that authority, including the Congressional Authorization Act, the Administrative
7 Office of United States Courts Act, and statutes vesting the Merit Systems Protection Board with
8 certain powers; responds to Chief Judge Kozinski’s suggestion that constitutional separation of
9 powers principles vest EDR Panels with the authority to issue directives that bind Executive
10 Branch agencies; explains that the government has not waived its sovereign immunity against
11 injunctions by an EDR Panel; and argues that OPM is not bound by the administrative EDR
12 Orders because OPM was not a party to the EDR proceedings. Defendant will also argue that
13 plaintiff has not established she will suffer irreparable harm absent a preliminary injunction, and
14 that the public interest and balance of equities counsel against entry of such an injunction.
15 4. Defendant will be prejudiced if it is forced to truncate its arguments and, accordingly,
16 requests leave to file an opposition brief of 36 pages in order to fully argue these matters of
17 import and apparent first impression.
18 5. I regret that this motion for administrative relief was not filed sooner pursuant to the
19 Standing Order of this Court. On February 11, 2009, the Court entered a somewhat expedited
20 schedule for briefing of plaintiff’s motion for preliminary injunction. As a result, defendant’s
21 opposition brief is due on March 2, 2010, instead of defendant’s deadline pursuant to the Local
22 Rules of this Court under the ordinary course, which was May 25, 2010. Due to inclement
23 weather and related power outages in the Washington, D.C. area, federal government offices in
24 and around the nation’s capital were closed February 8 through 11th, and workdays were
25 shortened on February 5, 12, and 16. Defendant OPM and its lawyers primarily responsible for
26 representing defendant in this matter, including my supervisors and me, work in Washington,
27 D.C. These closures delayed preparation and review of defendant’s opposition brief within the
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Declaration of Steven Y. Bressler In Support of Defendant’s
Administrative Motion for Leave to File an Opposition Brief of 36 Pages
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1 government.
2 6. On March 1, 2010, I spoke with counsel for plaintiff, Grace Y. Park, and
3 corresponded with counsel for plaintiff James McGuire concerning whether plaintiff
4 would stipulate to the relief requested in defendant’s administrative motion to exceed the
5 local rule page limitation. The parties were unable to reach agreement.
6 In accordance with 28 U.S.C. § 1746, I declare and affirm under penalty of perjury
7 that the foregoing is true and correct.
8 Executed at Washington, D.C. this 1st day of March, 2010.
9
10 /s/ Steven Y. Bressler
STEVEN Y. BRESSLER
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Declaration of Steven Y. Bressler In Support of Defendant’s
Administrative Motion for Leave to File an Opposition Brief of 36 Pages
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