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FILED
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JAN 28 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

In re: KAREN GOLINSKI

No. 09-80173

ORDER

Before: Peter L. Shaw, Appellate Commissioner. I Background On September 2, 2008, Karen Golinski, a staff attorney at the United States Court of Appeals for the Ninth Circuit, submitted to the Administrative Office of the United States Courts (AO) a Health Benefits Election Form seeking to enroll her spouse, Amy Cunninghis, as a family member beneficiary in the Blue Cross and Blue Shield Service Benefit Plan (BC/BS Plan).1 The AO rejected the Election

The BC/BS Plan is the largest nationwide fee-for-service health benefits plan offered to civilian federal government employees and their dependents by the United States Office of Personnel Management (OPM) pursuant to the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U.S.C. 8901 et seq. See generally Empire Healthcare Assur., Inc. v. McVeigh, 547 U.S. 677, 682 (2006). FEHBA establishes a comprehensive programthe Federal Employees Health Benefits (FEHB) Programof health insurance coverage for civilian federal government employees, and authorizes the OPM to contract with private carriers to offer those employees an array of health-care plans. See 5 U.S.C. 8902(a). The (continued...)

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Form, determining that Ms. Cunninghis did not qualify for inclusion in Ms. Golinskis family coverage under the BC/BS Plan because the Defense of Marriage Act (DOMA), 1 U.S.C. 7 (1996), defines spouse as a person of the opposite sex. Ms. Golinski then initiated proceedings under the Ninth Circuits Employment Dispute Resolution Plan (EDR Plan), claiming that the AOs failure to enroll Cunninghis in the BC/BS Plan constituted unlawful discrimination under the Equal Employment Provision of the EDR Plan, which prohibits discrimination against Ninth Circuit employees on the basis of their sexual orientation. EDR Plan 3. On January 13, 2009, Ninth Circuit Chief Judge Alex Kozinski ordered the AO to submit Ms. Golinskis Election Form to BCBSA, ruling that the AOs determination that DOMA barred the inclusion of Ms. Cunninghis in Ms. Golinskis BC/BS Plan was erroneous.2 See In re Golinski, 587 F.3d 901 (9th Cir.

(...continued) OPM annually contracts with the Blue Cross and Blue Shield Association (BCBSA) for the BC/BS Plan. Petition for Review of BCBSA at 2, In re Golinski, No. 09-80173 (9th Cir. Dec. 17, 2009). BCBSA is a national trade association of Blue Cross and Blue Shield entities. Id. at 1. Local Blue Cross and Blue Shield entities administer and underwrite the BC/BS Plan in their respective localities. Id. at 2. The Chief Judge of the Ninth Circuit Court of Appeals (or a designated judicial officer) is charged with hearing and ruling upon all court employee (continued...) -22

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2009). The AO complied with the January 13 order and submitted Ms. Golinskis Election Form to BCBSA. See In re Golinski, 587 F.3d 956, 958 (9th Cir. 2009). BCBSA then contacted the OPM, which advised BCBSA that it should refrain from processing Ms. Golinskis Election Form because the OPM had already concluded that the provisions of the FEHB law, as further defined by DOMA, bars inclusion of same-sex spouses in health benefits plan in the FEHB Program, even though [same-sex marriage may be] recognized by state law. Id., Exhibit A. Ms. Golinski appealed the BCBSAs failure to process her Election Form to Chief Judge Kozinski, this time requesting, in addition to spousal coverage under the BC/BS Plan, an award of back pay and attorneys fees under the Back Pay Act, 5 U.S.C. 5595 et seq., as authorized by IX of the EDR Plan. See In re Golinski, 587 F.3d at 958. On November 19, 2009, Chief Judge Kozinski ordered: (1) the AO, within 30 days to re-submit Ms. Golinskis Election Form to BCBSA; (2) the OPM, within 30 days, to rescind its instruction to BCBSA not to process Ms. Golinskis Election Form; and (3) BCBSA, within 30 days of receiving Ms. Golinskis Election Form from the AO, to enroll Ms. Cunninghis in Ms. Golinskis

(...continued) employment discrimination complaints brought pursuant to the EDR Plan. EDR Plan at 4, 7. -3-

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BC/BS Plan. Id. at 964. In addition, Chief Judge Kozinski ordered the Appellate Commissioner to submit a report and recommendation as to the award he should enter (including attorneys fees and any other monetary award to which Ms. Golinski may be entitled under the [Back Pay] Act). Id. at 959-60; see also 9th Cir. R. 39-1.9. He offered the following guidance to the Appellate Commissioner in drafting his report: Compensatory damages arent recoverable under this courts EDR plan, EDR Plan at 10, so Ms. Golinski is entitled only to an award equal in amount to the benefits she would have received, but has been denied, under the FEHBP, regardless of whether shes spent more (or less) on insurance in the interim. I determine the relevant measure of those benefits to be the cost of obtaining comparable private insurance for [Ms. Cunninghis], see 5 U.S.C. 5596(b)(1)(A)(I), which the Commissioner should calculate on a monthly basis for the relevant period(s) of time. Id. at 960. Pursuant to Chief Judge Kozinskis November 19 order, the Appellate Commissioner ordered Ms. Golinski to file with the Court a written request for an award of back pay, reasonable attorneys fees, and any other monetary award to which she may be entitled. The Appellate Commissioner also directed the Clerk of the Court to serve the order on the AO, the OPM, and the Blue Cross and Blue Shield Service Benefit Plan (Blue Cross), Order at 1, In re Golinski, No. 0980173 (9th Cir. Nov. 25, 2009), all of whom, in addition to any other individual -4-

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or party aggrieved by [the] proceeding, were provided the opportunity to file an objection. Id. at 2. Ms. Golinski timely submitted a request for back pay and attorneys fees pursuant to Chief Judge Kozinskis November 19, 2009 order and the Appellate Commissioners November 25, 2009 and January 20, 2010 orders. No other party submitted any filing concerning Ms. Golinskis request for back pay and attorneys fees. II Analysis A. Back Pay 1. Retrospective Back Pay Chief Judge Kozinski determined that Ms. Golinski is entitled to an award of back pay and associated benefits under the Back Pay Act. See In re Golinski, 587 F.3d at 958-60; see also EDR Plan IX at 10; United States v. Hopkins, 427 U.S. 123, 128 (1976) (The Back Pay Act is the means by which appointed employees subjected to unjustified personnel action are given a cause of action against the United States.). The Appellate Commissioners charge therefore is limited to determining the amount of back pay to which Ms. Golinski is entitled, which is to be calculated, as instructed by Chief Judge Kozinski in his November 19 order, by

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determining the cost of obtaining comparable private insurance for [Ms. Cunninghis], regardless of whether she spent more (or less) on insurance in the interim. Id. at 960. In her request for back pay, Ms. Golinski states that she is not aware of any private health insurance plan that provides insurance coverage comparable to that provided by the BC/BS Plan. Request for Back Pay & Attorneys Fees at 6, In re Golinski, No. 09-80173 (9th Cir. Dec. 16, 2009); see also Letter from David C. Codell to Sean K. Kennedy, Federal Public Defender, In re Levenson, No. 0980172 (informing the Federal Public Defenders Office, after inquiring into the cost of obtaining comparable private insurance for the same-sex spouse of a deputy federal public defender who has health insurance under a FEHB Plan, that there are no comparable [private insurance] plans for individuals) (9th Cir. Dec. 7, 2009). Because comparable private health insurance is unavailable, Ms. Golinski therefore requests an award of retrospective back pay in an amount not less than $5,700, the amount she incurred to obtain private health insurance for her spouse.3

From September 2008 through June 2009, Ms. Cunninghis was enrolled in the Blue Shield of Californias Shield Spectrum PPO Plan 2000. Request for Back Pay & Attorneys Fees at 4. The monthly premium for the plan during that time was $366. Id. After being informed that her premiums would increase by $63 per month, Cunninghis changed plans and, as of July 1, 2009, has been enrolled in the Blue Shield of Californias Balance Plan 1700. Id. at 5. The monthly premium is (continued...) -6-

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In support of her request for back pay, Ms. Golinski submits the declaration of Darlene Pullen, an insurance broker who identified six private insurance plans that provide similar coverage to that of Ms. Golinskis family plan. Declaration of Darlene Pullen in Support of Karen Golinskis Request for Back Pay & Attorneys Fees (Pullen Decl.) at 1, 2, In re Golinski, No. 09-80173 (9th Cir. January 25, 2009). Attached to the declaration is a spreadsheet summarizing the coverage provided by the BC/BS Plan and the six similar individual plans.4 Id., Exhibit A. The spreadsheet compares the plans annual deductibles, annual out-ofpocket maximum payments, and the costs of office visits, hospital admissions, outpatient procedures, preventative care, chiropractic care/physical therapy, and prescription drugs. Id. A copy of the spreadsheet is appended to this report and recommendation. After comparing the insurance coverage offered by the BC/BS Plan to Ms. Cunninghiss current and previous insurance plans and the six private insurance plans identified in the spreadsheet as relatively comparable to the BC/BS Plan, the

(...continued) $340. Id. Neither Ms. Pullen nor Ms. Golinski opine as to which of the six insurance plans provides insurance coverage most comparable to that provided by the BC/BS Plan.
4

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Appellate Commissioner concludes that the Blue Shield Active Start 25 plan provides the most comparable insurance coverage to that provided by the BC/BS Plan, and is more comparable than Ms. Cunninghiss current and previous plans. In particular, both the BC/BS Plan and the Blue Shield Active Start 25 plan have no annual deductible. Additionally, although the annual out-of-pocket maximum payment for the BC/BS Plan and the Blue Shield Active Start 25 plan are $5,000 and $6,000, respectively, the only other plans that have no annual deductible have annual out-of-pocket maximum payments of $7,500. Furthermore, the Blue Shield Active Start 25 plan is the most comparable in terms of office visit copayments and preventative care. The following chart illustrates some of the differences between the BC/BS Plan, the two plans Ms. Golinski obtained to cover her spouse, and the Blue Shield Active Start 25 plan:

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BC/BS Plan

Spectrum Plan 2000

Balance Plan 1700

Active Start 25

Annual Deductible Annual Out-ofPocket Maximum

$0 $5,000

$2,000 $5,000 w/ preferred providers; $10,000 w/ all providers $45 30% after $250 admission 30% after $250 admission $45 50% up to 12 visits/year $10/generic $35/brand after $500 deductible

$1,700 $6,500 w/ preferred providers; $9,500 w/ all providers $30 $30% after $250 admission 30% after $250 admission $30 50% up to 12 visits/year $10/generic $35/brand after $500 deductible

$0 $6,000 w/ preferred providers; $8,000 w/ all providers $25 40% after $500 admission 40% after $500 admission $25 40% up to 12 visits/year $10/generic $35/brand after $500 deductible

Office Visit Copayments Hospital Copayments Out-Patient

$20 $100/day $500 max. $40/day

Preventative Care Chiropractic/PT Prescription Drugs

$0 $0 $10/generic $30/brand; 50% NonForm

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The Blue Shield Active Start 25 planwith no annual deductibleappears to provide the most comparable private health insurance coverage in terms of benefits and costs to that provided by the BC/BS Plan. Accordingly, the Appellate Commissioner recommends that Ms. Golinski receive a back pay award equal to the amount it would have cost her to obtain coverage for her spouse under the Blue Shield Active Start 25 plan from September 2008 through December 2009. The award should total $6,272, or $308.00 per month from September 2008 through December 2008, and $420.00 per month from January 2009 through December 2009.5 2. Prospective Back Pay In the event that Ms. Cunninghis is not added to the BC/BS Plan pursuant to Chief Judge Kozinskis November 19, 2009 order, Ms. Golinski requests an award of prospective back pay, starting January 2010, to be established through the quarterly submission of Ms. Cunninghiss payments of her private insurance plan premiums. Request for Back Pay & Attorneys Fees at 9. This request falls

Compared to Ms. Golinskis request, this award represents $58 less per month from September 2008 through December 2008, $54 more per month from January 2009 through June 2009, and $80 more per month from July 2009 through December 2009. - 10 -

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outside the scope of the referral to the Appellate Commissioner pursuant to the November 19, 2009 order, and can be entertained only if there is a further referral. 3. Interest Pursuant to the Back Pay Act, 5 U.S.C. 5596(b)(2)(A), Ms. Golinski is entitled to recover interest on awards made pursuant to the Back Pay Act. Winslow v. F.E.R.C., 587 F.3d 1133, 1135 (D.C. Cir. 2009) (The Back Pay Act provides that back pay awards shall be payable with interest, 5 U.S.C. 5596(b)(2)(A) . . . .). Such interest (1) shall be computed for the period beginning on the effective date of the withdrawal or reduction involved and ending on a date not more than 30 days before the date on which payment is made, 5 U.S.C. 5596(b)(2)(B)(i); (2) computed at the rate or rates in effect under [26 U.S.C. 6621(a)(1)], 5 U.S.C. 5596(b)(2)(B)(ii); and (3) compounded daily, 5 U.S.C. 5596(b)(2)(B)(iii). The interest rate established under 26 U.S.C. 6621(a)(1) is the sum of the monthly Federal short-term interest rate plus three percentage points. The Appellate Commissioner therefore recommends that Ms. Golinski be awarded interest on her back pay award for September 2008 through December 2009 in the total amount of $164.31.6

The interest was calculated by multiplying the cumulative monthly premium payments by the applicable Federal short-term interest rates, plus three (continued...) - 11 -

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B.

Attorneys Fees

Pursuant to EDR Plan IX at 9-10 and the Back Pay Act, 5 U.S.C. 5596(b)(1)(A)(ii), Ms. Golinski requests attorneys fees incurred by Morrison & Foerster LLP through December 2009 in the amount of $68,512.17.7 Request for Back Pay & Attorneys Fees at 10. The court may award reasonable attorneys fees, as a necessary and appropriate remedy, to a successful complainant under the EDR Plan, where the statutory criteria of the Back Pay Act, 5 U.S.C. 5596, are satisfied. EDR Plan IX at 10. The Back Pay Act authorizes an award of reasonable attorneys fees for services rendered in administrative or judicial appeals undertaken by an employee to obtain correction of an unjustified or unwarranted personnel action. Curran v. Dept of Treasury, 714 F.2d 913, 918 (9th Cir. 1983) (quotation omitted); see also Sacco v. United States, 452 F.3d 1305, 1309 (Fed. Cir. 2006) (noting that the employee must have prevailed in the personnel action). Chief Judge Kozinski has

(...continued) percentage points, compounded daily, from September 2008 through December 2009. Ms. Golinski indicates that she will also request an award[] of attorneys fees for . . . representation by Lambda Legal in a supplemental submission. Request for Back Pay & Attorneys Fees at 12. No such submission has been filed. - 12 7

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determined that Ms. Golinski was subject to an unwarranted personnel action. See In re Golinski, 587 F.3d 956 (9th Cir. 2009); In re Golinski, 587 F.3d 901 (9th Cir. 2009). Accordingly, Ms. Golinski is entitled to an award of reasonable attorneys fees. The statutory standard of reasonable attorney fees in the Back Pay Act is identical to that in other statutes. Id. at 1410 (internal quotation marks omitted); see also Sacco, 452 F.3d at 1310 (The Supreme Court has repeatedly made clear that the various federal attorneys fees statutes should be construed to reach a uniform result.) (citing Indep. Fedn of Flight Attendants v. Zipes, 491 U.S. 754, 758 n. 2 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)). Reasonable attorneys fees are determined by multiplying the number of hours reasonably expended on the matter by a reasonable hourly rate. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (applying the reasonably expended hours times reasonable hourly rate fees calculation for a request of attorneys fees under the Civil Rights Act). Ms. Golinskis attorneys fee request of $68,512.17 represents approximately 125.75 hours of work by James McGuire, Rita Lin, and Sarah Griswold of Morrison & Foerster LLP, at hourly rates of $625, $485-$520, and - 13 -

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$455, respectively.8 No opposition has been filed to Ms. Golinskis request for attorneys fees. 1. Number of Hours Ms. Golinski claims a total of 33 hours of work by James McGuire. Mr. McGuire is a partner at Morrison & Foerster with a standard hourly rate of $625. In connection with this matter, Mr. McGuire conferred with Ms. Golinski and others, researched and analyzed legal issues, worked on declarations, edited a brief, and edited various letters. See McGuire Decl., Exhibit A. Mr. McGuire also reviewed background materials, e-mails, declarations, a brief, orders by Chief Judge Kozinski and Judge Reinhardt, a letter from BCBSA, and a letter from the OPM. See id. Ms. Golinski also claims a total of 91.25 hours of work by Rita Lin. Ms. Lin is an associate at Morrison & Foerster with an hourly rate of $485 in 2008 and $520 in 2009. Ms. Lin reviewed and analyzed records, conducted legal research, conducted interviews with Ms. Golinski and others, conferred with Mr. McGuire
8

In evaluating the reasonableness of the fee request, the Appellate Commissioner relies on Exhibit A of the Declaration of James R. McGuire in Support of the Request for Back Pay & Attorneys Fees (McGuire Decl.), a spreadsheet reflecting time spent on this matter. In addition, Ms. Golinski notes that any award for Morrison & Foersters fees will be donated to the Girvan Peck Memorial Fund, a nonprofit corporation having the principal purpose of funding the costs of pro bono legal work. Request for Back Pay & Attorneys Fees at 12. - 14 -

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and others, drafted and revised a brief, prepared for and attended oral argument, drafted and revised declarations, and drafted and revised letters to Chief Judge Kozinski. Finally, Ms. Golinski claims a total of 1.5 hours of work by Sarah Griswold. Ms. Griswold is also an associate with Morrison & Foerster, and her hourly rate is $455. Ms. Golinski contends that [t]he fees incurred by Morrison & Foerster in this litigation thus far were reasonable in light of the complex constitutional and statutory questions of first impression, the severity of the potential harm that an unwarranted personnel action would have on Ms. Golinski, and the unexpected interference by OPM to thwart the relief required by Chief Judge Kozinskis January Order. Request for Back Pay & Attorneys Fees at 11. Indeed, this matter is not an ordinary employment dispute involving commonplace allegations of workplace discrimination; it involves complicated questions of first impression concerning multiple entities and branches of government. Based on the Appellate Commissioners review of many fee requests in matters of similar complexity, the hours claimed by Ms. Golinskis attorneys were reasonably expended. Accordingly, Ms. Golinski should be awarded the full number of hours claimed in this matter. - 15 -

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2. Hourly Rate Ms. Golinski contends that Morrison & Foersters rates are reasonable and within the market for hourly rates of attorneys with similar experience, qualifications and specialized knowledge of the San Francisco legal market. Request for Back Pay & Attorneys Fees at 11. Specifically, Ms. Golinskis attorneys hourly rates charged in this matter range between $455 and $625. There is nothing in the record to cast doubt on the reasonableness of these rates. Additionally, based on the Appellate Commissioners review of fee requests in other matters, these rates are in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886, 895 & n.11 (1984); see also Carson v. Billings Police Dept, 470 F.3d 889, 892 (9th Cir. 2006) (applying Blum). Thus, Ms. Golinski should be awarded fees at Mr. McGuire, Ms. Lin, and Ms. Griswolds hourly rates of $625, $485 (and $520 in 2009), and $455, respectively. 3. Expenses The attorneys billing spreadsheet includes $901.21 in expenses for air freight, messenger service, air travel, a hotel room, and cab rides. Those expenses are recoverable under the Back Pay Act. Bennett v. Dept of Navy, 699 F.2d 1140, 1145 (Fed. Cir. 1983) (Attorney fees [recoverable under the Back Pay Act] . . . - 16 -

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[may include] small amounts for [certain expenses incurred, such as] telephone tolls, postage, and [travel of counsel] connected with the case. These charges are directly related to the services performed by the attorney, are not charges that are normally subsumed within the hourly rate figure, and yet may fairly be described as part of the fee for services rendered.). Thus, Ms. Golinski should be awarded $901.21 in related expenses. III Conclusion The Appellate Commissioner recommends that a total of $6,272 in back pay and $68,512.17 in attorneys fees be awarded to Ms. Golinski pursuant to IX of the EDR Plan and the Back Pay Act, 5 U.S.C. 5596(b)(1)(A)(I), (b)(1)(A)(ii). Ms. Golinski should also be awarded interest on her back pay award in the amount of $164.31.

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EXHIBIT 1

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FEMALE, 47 YEARS OF AGE, PPO MEDICAL OPTIONS

BENEFIT SUMMARY Annual Deductible Annual Out of Pocket Max. Offfice Visit Copay

BC/BS Basic Option $0 $5,000 $20

BLUE SHIELD ANTHEM ANTHEM BALANCE RIGHTPLAN 40 SMARTSENSE 500 PLAN 1000 COMPREHENSIVE FULL RX 1000.00 $5,500 30.00 $0 7500.00 40.00 $500 $3,000 $30/3 Visits then 30% 30% after deductible 30% after deductible 30% after deductible 30% after deductible $15 or 40% $15 or 40% after $500 ded.

HEALTH NETFIRST RX PLUS $0 $7,500 $35

BLUE SHIELD ACTIVE START 25 $0 $6,000 $25

Hospital Copay/ Admissions Out-Patient Procedures

$100/day $500 Max. $40/day

30% after deductible $250/visit then 30% 30.00

$500/day; max $2,000 40% after $500; max 4-day $40 OV; 40% related services 40% negotiated fee $15/generic $35 after $500 ded.

35% after $500 per day/max. 4 day 35% after $500 copay $35 copay

40% after $500 admission 40% after $500 admission 25

Preventive Care

$0

Chiropractic Care/ Phys. Therapy Prescriptions $10/generic $30/brand 50% Non-Form

50% up to 15 visits $10/generic $35 after $500 ded.

35%/max $500/year $10/generic $35/brand

40% up to 12 visits $10/generic $35/brand after $500 ded.

MONTHLY PREMIUMS 2010 2009 2008

362.00 307.00 254.00

422.00 317.00 241.00

$398.00 $337.00 $232.00

$382.00 $357.00 Not Available

$506.00 420.00 $308.00

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BLUE SHIELD SPECTRUM $750 $750 $4,000 $35

30% after $250 admission 30% after $250 admission $35

30% after deductible $10/generic $35 after $250 ded.

$681.00 $635.00 $500.00