Legal Commentary

Kozinski vs. DOJ/OPM part III

By John Elwood

In the latest installment of Chief Judge Kozinski vs. DOJ(OLC)/OPM, discussed in my post below, Chief Judge Kozinski issued yet another order today, in apparent response to OPM?s statement on Friday refusing, based on DOJ/OLC?s advice, not to abide by his earlier orders. It reads, in its entirety:

The time for appeal from my orders in this matter, dated January 13, 2009, and November 19, 2009, has expired. Only the Blue Cross and Blue Shield Association (?Blue Cross?) has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009.  My prior orders in this matter are therefore final and preclusive on all issues decided therein as to others who could have, but did not appeal, such as the Office of Personnel Management (?OPM?) and the Administrative Office of the United States Courts. Federated Dep?t Stores, Inc. v. Moitie, 452 U.S. 394, 398?402 & n.4 (1981); see also Travelers lndem. Co. v. Bailey, 129 S. Ct. 2195, 2205-07 (2009).

As the jurisdictional issues presented in Blue Cross?s petition for review are separate and distinct from those concerning my now conclusively-determined jurisdiction over governmental entities such as OPM, l authorize Ms. Golinski to take what further action she deems fit against any entity other than Blue Cross, without waiting for the Judicial Council?s disposition of Blue Cross?s appeal.

Goodness.

Full post as published by The Volokh Conspiracy on December 22, 2009 (boomark / email).