Karen GOLINSKI, Plaintiff-Appellee, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and John Berry, Director of the United States Office of Personnel Management, in his official capacity, Defendants, and Bipartisan Legal Advisory Group of the U.S. House of Representatives, Intervenor-Defendant-Appellant.
Nos. 12-15388, 12-15409
United States Court of Appeals, Ninth Circuit
July 23, 2013. Corrected July 25, 2013.
1048-1050
tailed measurements prescribed by the ADA Accessibility Guidelines, exact measurements are required. See Doran v. 7-Eleven, 524 F.3d 1034, 1048 (9th Cir.2008). (“Doran bears the burden of showing a violation of the ADA Accessibility Guidelines, the substantive standard of ADA compliance, [citation omitted] That Doran scraped his knuckles, unsupported by any measurements, is insufficient to demonstrate that 7-Eleven‘s aisles do not comply with the thirty-six-inch clearance that the Accessibility Guidelines mandate.“)
As the majority notes, it is possible for two people to take measurements together and thus, for both to have personal knowledge of what is observed, but tellingly, that is not what Strong‘s declaration says occurred. It is also possible that the other individual called out the measurements as they were taken (arguably a statement of “present sense impression“), but that is not what Strong says occurred, either. Strong says only that he was “present” when someone else took the measurements, and that he read Settles‘s report. Stuck with the declaration we actually have—and not the one we may wish we had—we are left with the out-of-court assertions of the individual who actually took the measurements, as retold by Strong, to prove the truth of the matter asserted.
The problem is not that “we‘ve become too expert-prone,” as the majority quips. The problem is that Strong is simply repeating what the declarant communicated to him—classic hearsay whether the declarant is an expert or not. And it is no less hearsay just because Strong was “present” when the other person saw what he purported to observe. Strong‘s presence entitles him to testify to what he saw, not to what the other individual saw. A declaration in support of or in opposition to a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
This inadmissible hearsay stands in contrast to Strong‘s testimony about his own observations of the signage and the configuration of the restroom, first-hand perceptions that I agree are sufficient to raise factual questions precluding summary judgment. I would allow those claims to go forward, but not the claims dependent on the observations of the absent declarant.
Tara L. Borelli, Jon Davidson, Shelbi Diane Day, Esquire, Lambda Legal Defense And Education Fund, Inc., Los Angeles, CA, Gregory P. Dresser, Aaron David Jones, Rita Lin, James R. McGuire, Esquire, Morrison & Foerster LLP, San Francisco, CA, Susan L. Sommer, Lambda Legal Defense & Education Fund, Inc., New York, NY, for Plaintiff-Appellee.
Benjamin Seth Kingsley, Assistant U.S., Office of the U.S. Attorney, San Francisco, CA, August E. Flentje, Michael Jay Singer, Helen L. Gilbert, Trial, U.S. Department of Justice, Washington, DC, for Defendants.
H. Christopher Bartolomucci, Paul D. Clement, Nicholas James Nelson, Bancroft PLLC, Christine Davenport, Kerry William Kircher, William Pittard, Esquire, Deputy General Counsel, U.S. House Of Representatives Office of General Counsel, Todd B. Tatelman, Assistant Counsel, Office of the General Counsel, Washington, DC, for Intervenor-Defendant-Appellant.
Before: ALARCÓN, THOMAS, and BERZON, Circuit Judges.
ORDER
Karen Golinski, a staff attorney of this Court, is married under California state law to Amy Cunninghis. After their 2008 marriage, Golinski sought to enroll Cunninghis in her family health insurance plan under the Federal Employees Health Benefits program. The enrollment request was denied on the basis that their same-sex marriage could not be federally recognized under § 3 of the Defense of Marriage Act (“DOMA“).
Golinski first pursued administrative remedies through the Ninth Circuit‘s Employment Dispute Resolution Plan (“EDR Plan“), which prohibits discrimination based on sex or sexual orientation. Chief Judge Kozinski, sitting in his administrative capacity, found that Golinski had suffered discrimination under the meaning of the EDR Plan and ordered that her spousal health insurance enrollment be processed. However, the Office of Personnel Management directed Golinski‘s health insurance carrier otherwise, advising that processing the enrollment would violate DOMA.
Golinski filed suit, contending that § 3 of DOMA, as applied to her, violated the equal protection and due process components of the Fifth Amendment to the U.S. Constitution. The district court granted Golinski‘s motion for summary judgment, holding that § 3 of DOMA “unconstitutionally discriminates against same-sex couples” and therefore “violates [Golinski]‘s right to equal protection of the law under the Fifth Amendment.” The district court issued a permanent injunction “enjoining defendants ... from interfering with the enrollment of Ms. Golinski‘s wife in her family health benefits plan.”
In light of the Supreme Court‘s decision in Windsor, the parties have jointly stipulated that “dismissal is the appropriate disposition of [these] consolidated appeals.”
These consolidated appeals are therefore DISMISSED. The copy of this order shall constitute the mandate of this court.