15 The official “Plan Document” posted on OPM’s website defines a covered “employee” by reference to statutory provisions that expressly exclude “an employee of the United States Postal Service.” See FedFlex Plan Document, § 2.12(a)(1), http://www.opm. gov/insure/flexible/reference/fedflex.pdf (last visited Sept. 18, 2009); see also 5 U.S.C. §§ 8901(1)(A), 2105(e). Accordingly, Ms. Gill and Ms. Letourneau cannot show any concrete injury “fairly traceable” to any application or interpretation of the OPM Flexible Spending Arrangement program, and no order regarding that program could redress any injury on their part.

¶ 21. Plaintiff’s2 insurance carriers sought guidance from OPM, which, acting in its statutorily-assigned capacity as the government-wide administrator of the FEHBP, see 5 U.S.C. §§ 8901 et seq., advised the AOUSC and plaintiff’s insurance carriers that DOMA, 1 U.S.C. § 7, forecloses enrolling plaintiff’s same-sex spouse in the FEHBP. See Am. Compl.

¶ 18. Plaintiff’s insurance3 carriers sought guidance from OPM, which, acting in its statutorily-assigned capacity as the government-wide administrator of the FEHBP, see 5 U.S.C. §§ 8901 et seq., advised the AOUSC and plaintiff’s insurance carriers that DOMA, 1 U.S.C. § 7, forecloses enrolling plaintiff’s same- sex spouse in the FEHBP. See Compl.

The fact that this language appears in a section devoted to “Definitions” further indicates that the categories listed are exclusive, not merely examples. See 5 U.S.C. § 8901. Thus, the statutory language is plain: only a “spouse” and an “unmarried dependent child under 22 years of age” can qualify as a family member.

The fact that this language appears in a section devoted to “Definitions” further indicates that the categories listed are exclusive, not merely examples. See 5 U.S.C. § 8901. Thus, the statutory language is plain: only a “spouse” and an “unmarried dependent child under 22 years of age” can qualify as a family member.

FEHB H. Rep. at 6; FEHB S. Rep. at 20.19 These indicators of legislative intent are consistent with the extension of FEHB eligibility to family members beyond those specifically enumerated in 5 U.S.C. § 8901(5). The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.”

FEHB H. Rep. at 6; FEHB S. Rep. at 20.19 These indicators of legislative intent are consistent with the extension of FEHB eligibility to family members beyond those specifically enumerated in 5 U.S.C. § 8901(5). The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.”

Under section 8901, the term “member of family” is defined as “the spouse of an employee” or “an unmarried dependent child under 22 years of age.” 5 U.S.C. § 8901(5). DOMA then defines the word “spouse” to be limited to “a person of the opposite sex who is a husband or a wife.”

1(a), Defendants Blue Cross of Idaho Health Service (“BCI”), Blue Cross and Blue Shield Association (“BCBSA”), and Special Agent Mutual Benefit Association (“SAMBA”) (collectively, “Non-Government Defendants”) respectfully submit this Memorandum of Points and Authorities in support of their Motion for Judgment on the Pleadings and Joinder in Federal Defendants’ Motion to Dismiss. I. INTRODUCTION Plaintiff Bruce Norvell (“Plaintiff”) is enrolled in a health plan governed by the Federal Employees Health Benefits Act (“FEHBA”), 5 U.S.C. §§ 8901-14. In 2014, he filed a lawsuit in this Court alleging that the FEHBA plan in which he was enrolled – and various other FEHBA plans with which he had no connection – violated several federal laws because they did not adequately define the terms “inpatient” and “outpatient.”

Chief Judge Kozinski held that OPM used the authority granted to it by Congress, which is the authority to contract for health insurance for federal employees, to usurp the Judiciary’s role as the ultimate interpreter of federal law, i.e., the definition of “family” under the Federal Employees Health Benefits Act (“FEHBA”). Golinski, 587 F.3d at 962 & n.5; see also 5 U.S.C. §§ 8901-8914. Permitting OPM to countermand the Chief Judge’s Orders in this context, the Chief Judge held, would be tantamount to permitting it to exercise “dominance over logistics to destroy [the Judiciary’s] autonomy” to interpret the laws governing judicial employees.