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SUBMITTED UNDER THE PROCEDURES OF THE EMPLOYMENT DISPUTE RESOLUTION PLAN FOR THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In re Karen Golinski et ux. No. 09-80173

KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES

MORRISON & FOERSTER LLP JAMES R. McGUIRE (SBN 189275) RITA F. LIN (SBN 236220) SARAH E. GRISWOLD (SBN 240326) 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Karen Golinski

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION..................................................................................................... 1 BACKGROUND....................................................................................................... 2 ARGUMENT ............................................................................................................ 6 I. II. MS. GOLINSKI IS ENTITLED TO BACK PAY EQUAL TO THE COST OF COMPARABLE HEALTH INSURANCE. ......................... 6 MS. GOLINSKI IS ENTITLED TO REASONABLE ATTORNEYS FEES. .................................................................................... 9

CONCLUSION ....................................................................................................... 12

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TABLE OF AUTHORITIES Page(s) CASES A.D. v. Cal. Highway Patrol, 2009 WL 3817478 (N.D. Cal. Nov. 10, 2009) .................................................. 11 Blum v. Stenson, 465 U.S. 886, 895 (1984)................................................................................... 10 Caplan v. CNA Fin. Corp., 573 F. Supp. 2d 1244 (N.D. Cal. 2008) ............................................................. 11 Curran v. Dept of Treasury, 805 F.2d 1406 (9th Cir. 1986)............................................................................ 10 Gavette v. Office of Pers. Mgmt., 808 F.2d 1456 (Fed. Cir. 1986).......................................................................... 11 STATUTES 5 U.S.C. 5596(b)(1)(A)(ii) ............................................................................................... 9 5596(b)(2) ......................................................................................................... 7 42 U.S.C. 1988 (1982) ..................................................................................................... 10

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INTRODUCTION Ms. Golinski submits this request for back pay and attorneys fees pursuant to Chief Judge Kozinskis November 19, 2009 Order and the Appellate Commissioners Orders of November 25, 2009 and December 7, 2009. On November 19, Judge Kozinski referred to the Appellate Commissioner Ms. Golinskis claim under the Back Pay Act. (Order (Nov. Order) at 6, 15, Docket No. 7136144 (Nov. 19, 2009).) The Appellate Commissioner, in turn, ordered Ms. Golinski to file a a written request for an award of back pay, reasonable attorneys fees, an any other monetary award to which she may be entitled pursuant to the courts November 19, 2009 order. (Order, Docket No. 7142836 (Nov. 25, 2009).) This request seeks back pay equal to the cost of obtaining private insurance that is comparable to that provided under the Federal Employee Health Benefits Plan (FEHB). Although there is no comparable private insurance available, Ms. Golinskis back pay award should not be less than the amount she has expended to obtain inferior coverage for her spouse. In addition, as a prevailing party under the Back Pay Act, Ms. Golinski is entitled to recover reasonable attorneys fees in the interest of justice. Morrison & Foerster and Lambda Legal provided legal representation to Ms. Golinski in this matter. Ms. Golinski seeks $68,512.17 for Morrison & Foersters reasonable fees

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through December 16, 2009. A supplemental brief setting forth the reasonable fees of Lambda Legal will be filed by December 23, 2009, pursuant to the Appellate Commissioners December 15 Order. (Order, Docket No. 7164441 (Dec. 15, 2009).) Ms. Golinski reserves her right to submit additional requests for back pay and attorneys fees covering subsequent time periods if Ms. Cunninghis is not added to Ms. Golinskis family coverage plan by December 21, 2009, as required by Chief Judge Kozinskis November Order. BACKGROUND Karen Golinski is a Staff Attorney at the Ninth Circuit, where she has been employed for approximately eighteen years. (Amended Order (Jan. Order) at 1, Docket No. 7136359 (Jan. 13, 2009); Confidential Declaration of Karen Golinski in Support Request for Back Pay (Golinski Decl.) 1.) Ms. Golinski legally married Amy Cunninghis under the laws of the State of California on August 21, 2008. (Golinski Decl. 2.) They have a six-year-old son, Daniel Golinski. (Id. 2.) On September 2, 2008, shortly after the couples marriage, Ms. Golinski attempted to add Ms. Cunninghis to her existing Blue Cross/Blue Shield family coverage health insurance plan, which at the time covered Ms. Golinski and their son Daniel. (Id. 2-3.) Her request was refused, on the sole basis that Ms. Cunninghis is of the same sex as Ms. Golinski. (Id. 4-5.) Ms. Golinski

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then initiated proceedings under the Ninth Circuits employment dispute resolution (EDR) plan. (Id. 6.) By Order dated January 13, 2009, Chief Judge Kozinski found that Ms. Golinski had suffered discrimination under the EDR plan, and ordered the Administrative Office of the Unites States Courts (AO) to process her health benefits election forms. (Id. 6; Jan. Order at 1-2, 7.) The AO initially complied, but the Office of Personnel Management (OPM) intervened and directed the AO, as well as Ms. Golinskis insurance carrier, not to process Ms. Golinskis request. (Golinski Decl. 6; Nov. Order at 2-3.) Chief Judge Kozinski issued a further Order dated November 19, 2009, directing the AO to again process Ms. Golinskis health benefits election forms, ordering OPM to cease its interference, ordering Blue Cross and Blue Shied to enroll Ms. Cunninghis, and referring Ms. Golinskis request for back pay to the Appellate Commissioner. (Nov. Order at 15-16.) Although Ms. Golinski pays the full rate for self and family coverage from Blue Cross/Blue Shield, she receives coverage only for herself and her son, not for her entire family. Instead, Ms. Golinski has had to purchase separate individual health insurance for Ms. Cunninghis. (Id. 7.) Ms. Cunninghis has had two different insurance plans with Blue Shield since September 2008. (Id. 8.) The separate health insurance plans not only impose an additional cost on Ms. Golinski and her family, but also provide coverage that is

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inferior to Ms. Golinskis Blue Cross/Blue Shield plan. (Id. 8-9, 11, Exs. A, B, E.) From September 2008 through June 2009, the monthly premium for the Blue Shield policy was $366. (Id. 9, Ex. C.) Ms. Cunninghiss co-payments and deductibles under the Blue Shield Spectrum PPO Plan 2000 policy were significantly higher than what Ms. Golinski paid under her health insurance plan. (Id. 8, Exs. A, B.) For example, Ms. Cunninghis was required to pay a $45 copayment for a doctor visit, while Ms. Golinski was only required to pay $20 for a primary care visit and $30 for a visit with a specialist. (Id.) Ms. Cunninghis had a $2,000 deductible, but Ms. Golinski did not have a deductible on her health insurance plan. (Id.) Ms. Cunninghis also had to pay 30% of the fees for all nonemergency services, while many of the same services do not cost anything under Ms. Golinskis plan, including X-rays, mammograms, and MRIs. (Id.) In the case of hospitalization, Ms. Cunninghis was required to pay $250 to be admitted, in addition to 30% of all service, doctor, and medical procedure fees, whereas Ms. Golinski was only required to pay $100 for inpatient or $40 for outpatient services per day. (Id.) Ms. Cunninghis also had to pay $100 for any emergency room visits and 30% of the fees for all service and physician visits, whereas Ms. Golinski only had to pay $50 for emergency room care and $30 for urgent care. (Id.)

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In May 2009, Ms. Cunninghis was notified that, effective July 1, 2009, the premium for the Blue Shield policy would increase by $63 a month, for a new monthly total of $429. (Id. 10, Ex. D.) As of July 1, 2009, Ms. Cunninghis switched to Blue Shield of Californias Balance Plan 1700, which has a monthly premium of $340. (Id. 11, Ex. F.) This new plan offers even less comparable coverage to Ms. Golinskis Blue Cross/Blue Shield plan and to Ms. Cunninghiss previous plan with Blue Shield. (Id.) In addition to requiring Ms. Cunninghis to pay 30% of all inpatient and outpatient medical expenses, the plan also places an annual cap of $2,500 on brand-name prescription medications, after which Ms. Cunninghis is responsible for paying any and all brand-name medication expenses incurred. (Id.) The plan also does not cover pregnancy-related expenses. (Id.) Ms. Golinski and Ms. Cunninghis will have paid $6,040 in premiums for Ms. Cunninghiss health coverage from September 2008, when Ms. Golinski first sought to add Ms. Cunninghis to her family coverage plan, through January 2010. (Id. 13 ($5,700 through December 2009), 11 ($340 per month for Blue Shield of Californias Balance Plan 1700).) Ms. Cunninghis is underinsured due, in part, to her current plans $2,500 brand-name prescription medication cap. (Id. 11.) If Ms. Cunninghis is not added to Ms. Golinskis plan by December 21, 2009,

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Ms. Cunninghis will pursue a higher-premium plan that offers more coverage. (Id.) Ms. Golinski is not aware of any individual health insurance plan that provides coverage that is comparable to that provided by her family coverage plan. (Id. 12.) Blue Shield has thirty individual coverage options for a woman of Ms. Cunninghiss age and geographic location, including a plan with a monthly premium of $970. (Id. 12, Ex. G.) None of these plans provides coverage comparable to the coverage Ms. Golinski receives because the premiums, deductibles, and out-of-pocket expenses exceed those of Ms. Golinskis plan. (Id.) This request for back pay and attorneys fees is timely pursuant to the Appellate Commissioners December 7, 2009 Order. (Docket No. 7154291 (request for an award of back pay, reasonable attorneys fees, and any other monetary award is due December 16, 2009); see also Docket No. 7164441 (supplement to request is due December 23, 2009).) ARGUMENT I. MS. GOLINSKI IS ENTITLED TO BACK PAY EQUAL TO THE COST OF COMPARABLE HEALTH INSURANCE.

Chief Judge Kozinski held that Ms. Golinski is entitled to an award under the Back Pay Act, and referred the matter to the Appellate Commission to determine its amount. (Nov. Order at 6.) Chief Judge Kozinski the offered the following guidance:

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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 her wife, 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. (Nov. Order at 6-7.) In addition, an award of back pay shall be payable with interest as set forth in the Act. 5 U.S.C. 5596(b)(2). The cost of obtaining comparable private insurance cannot be determined because comparable private insurance is not available. For example, Blue Shields highest-coverage plan for a woman of Ms. Cunninghiss age and geographic location is Shield Spectrum PPO Plan 500, with a monthly premium of $970. (Golinski Decl. Ex. G at 3-4.) The Shield Spectrum PPO Plan 500, however, provides less coverage than does Ms. Golinskis plan. (Compare Golinski Decl. Ex. G at 3-4 with id. Ex. A.) In particular, the Shield Spectrum PPO Plan 500 has

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a $500 deductible and a $30 co-payment for any type of office visit. (Id. Ex. G at 3-4.) Ms. Golinskis plan, in contrast, has no deductible, co-payments for primary care office visits are $20, and co-payments for specialist office visits are $30. (Id. 8, Ex. A.) As set forth above, Ms. Cunninghiss coverage under the Blue Shield Spectrum PPO Plan 2000 and under Blue Shield of Californias Balance Plan 1700 is inferior to Ms. Golinskis coverage. (See supra, Background, Golinski Decl. 9, 11. Compare Golinski Decl. Ex. A with id. Exs. B, E.) The relevant period of time for which Ms. Golinski has been denied benefits begins with September 2008, when Ms. Golinski first submitted her Health Benefits Election Form seeking to add Ms. Cunninghis to her existing family coverage plan and when Ms. Golinski was first denied this benefit. (Id. 3, 4.) Only when Ms. Cunninghis is enrolled in Ms. Golinskis plan pursuant to Chief Judge Kozinskis January and November Orders will Ms. Golinski no longer be denied the benefit of insuring her wife. (See Nov. Order at 5.) As of December 9, 2009, Ms. Cunninghis has not been added to Ms. Golinskis family coverage plan. (Golinski Decl. 6.) At a minimum, the relevant time period runs from September 2008 through December 2009. It may run longer depending upon when Ms. Cunninghis is added to Ms. Golinskis plan. The cost of obtaining comparable private insurance for Ms. Cunninghis is not less than the cost that Ms. Golinski and Ms. Cunninghis have incurred paying

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the premiums for Ms. Cunninghis inferior private insurance. (Compare id. Ex. A with id. Ex. G.) Ms. Golinski therefore requests back pay in an amount no less than the cost to obtain private health insurance for Ms. Cunninghis. From September 2008 through December 2009, Ms. Golinski and Ms. Cunninghis have spent $5,700 to pay the premiums for Ms. Cunninghiss inferior health coverage. (Golinski Decl. 13, Exs. C, F.) As set forth above, if Ms. Cunninghis is not added to Ms. Golinskis plan by December 21, 2009, Ms. Cunninghis will pursue a higher-premium plan that offers more coverage. (Id. 11.) Going forward, Ms. Golinski proposes that the cost and inferiority of Ms. Cunninghiss private insurance be verified by Ms. Golinskis quarterly submission of insurance premium bills and the summary of benefits for Ms. Cunninghiss private insurance plan. II. MS. GOLINSKI IS ENTITLED TO REASONABLE ATTORNEYS FEES.

Chief Judge Kozinski held that the statutory criteria of the Back Pay Act are satisfied in Ms. Golinskis case and held that Ms. Golinski is entitled to an award under the Back Pay Act, which may include attorneys fees. (Nov. Order at 4-6.) Under the Back Pay Act and this Courts EDR Plan, Ms. Golinski is entitled to receive for the period for which the personnel action was in effect . . . reasonable attorney fees related to the personnel action. 5 U.S.C. 5596(b)(1)(A)(ii); see also EDR Plan IX at 9-10. The statutory standard of reasonable attorney fees

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in the Back Pay Act is identical to that in other statutes, including the Civil Rights Act, 42 U.S.C. 1988 (1982). Curran v. Dept of Treasury, 805 F.2d 1406, 1410 (9th Cir. 1986). As discussed above, the personnel action began in September 2008 when Ms. Golinski first sought to add Ms. Cunninghis to her family coverage plan, and continues until Ms. Cunninghis is added to that plan. (See supra, Argument Section I.) Since October 2008, Morrison & Foerster and Lambda Legal have represented Ms. Golinski on a pro bono basis. (Declaration of James R. McGuire in Support Request for Back Pay (McGuire Decl.) 2.) The pro bono nature of this representation does not impact Ms. Golinskis right to recover reasonable attorneys fees. See Blum v. Stenson, 465 U.S. 886, 895 (1984) (Reasonable hourly fees are calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.). Ms. Golinski seeks to recover $68,512.17 in attorneys fees incurred by Morrison & Foerster through December 16, 2009. (McGuire Decl. 8.)1 This constitutes only a fraction of the attorneys fees that have been incurred in pursuing Pursuant to the Appellate Commissioners December 15, 2009 Order, Ms. Golinski reserves her right to file a supplement to this request for back pay and attorneys fees no later than December 23, 2009. (See Docket No. 7164441.) This supplement may include a request for fees on behalf of Lambda Legal.
1

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this action. (Id.) The 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. (See id. 10, Ex. A.) The spreadsheet that comprises Exhibit A to the McGuire Declaration, submitted herewith, accurately reflects the fraction of the time expended on professional services and disbursements by Morrison & Foerster on the dates indicated for which recovery is sought. (Id. 8, Ex. A.) See also Gavette v. Office of Pers. Mgmt., 808 F.2d 1456, 1462 (Fed. Cir. 1986) (Attorney fees [recoverable under the Back Pay Act] may include small amounts for telephone tolls, postage, and local transportation connected with the case.). 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. (McGuire Decl. 10.) A.D. v. Cal. Highway Patrol, 2009 WL 3817478, at *7 (N.D. Cal. Nov. 10, 2009) (awarding attorneys fees in 42 U.S.C. 1988 case at hourly rates of $600, $300, and $175); Caplan v. CNA Fin. Corp., 573 F. Supp. 2d 1244, 1249-50 (N.D. Cal. 2008) (awarding attorneys fees in ERISA case at hourly rates of $575, $350, and $330). The number of hours devoted to the various tasks is similarly well within the range

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of reasonableness. (McGuire Decl. 9.) Moreover, this matter was staffed in a highly efficient manner, with the vast majority of the work being done by one associate with a small, appropriate amount of partner supervision. (Id.) This recovery is in the interest of justice because costs were incurred to vindicate Ms. Golinskis rights under the EDR Plan by rectifying an unwarranted personnel action taken by the Court that was on account of sex and sexual orientation. (Jan. Order at 1-2.) Recovery for those costs incurred since OPMs interference in this matter as of February 20, 2009, additionally serves justice by recognizing the importance of protecting the Courts authority to administer its own EDR Plan. In addition, 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. (McGuire Decl. 8.) CONCLUSION For the foregoing reasons, Ms. Golinski should be awarded back pay for the time period September 2008 through December 2009 in an amount no less than $5,700, and attorneys fees for the same period for representation by Morrison & Foerster in the amount of $68,512.17. Ms. Golinski should also be awarded attorneys fees for this period for representation by Lambda Legal, as will be set forth in a supplemental submission. To the extent that Ms. Cunninghis is not

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added to Ms. Golinskis family coverage plan until after December 2009, Ms. Golinski reserves her right to submit additional requests for back pay and attorneys fees covering subsequent time periods.

Dated: December 16, 2009

MORRISON & FOERSTER LLP

By: /s/ James R. McGuire James R. McGuire Attorneys for Karen Golinski

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CERTIFICATE OF SERVICE I hereby certify that on December 16, 2009, I filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit: KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES DECLARATION OF JAMES R. MCGUIRE IN SUPPORT OF KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES DECLARATION OF KAREN GOLINSKI IN SUPPORT OF
REQUEST FOR BACK PAY [PUBLIC REDACTED VERSION]

I further certify that I have mailed the foregoing document by U.S. mail, postage prepaid, to the following: Elaine Kaplan, Esq. General Counsel Office of Personnel Management 1900 E Street NW Washington, D.C. 20415 Robert Loesche, Esq. Deputy General Counsel Administrative Office of the U.S. Courts One Columbus Circle NE Washington, D.C. 20544 Sue Andersen, Esq. Associate Legal Counsel Blue Cross Blue Shield Association 1310 G Street, N.W. Washington, D.C. 20005 /s/ Janie Fogel Janie Fogel

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SUBMITTED UNDER THE PROCEDURES OF THE EMPLOYMENT DISPUTE RESOLUTION PLAN FOR THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In re Karen Golinski et ux. No. 09-80173

DECLARATION OF JAMES R. MCGUIRE IN SUPPORT OF KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES

MORRISON & FOERSTER LLP JAMES R. MCGUIRE (SBN 189275) RITA F. LIN (SBN 236220) SARAH E. GRISWOLD (SBN 240326) 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Attorneys for Karen Golinski

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I, James R. McGuire, hereby declare and state as follows: 1. I am a partner at the law firm of Morrison & Foerster LLP, counsel of

record for Karen Golinski. I am licensed to practice law in the State of California and admitted to practice before this Court. I make this declaration of my own personal knowledge, and if called as a witness could and would testify competently to the matters stated herein. RELEVANT BACKGROUND 2. Karen Golinski initiated proceedings under the Ninth Circuits

employment dispute resolution (EDR) plan after her September 2, 2008 request to add her spouse to her health insurance plan was refused on the sole basis that her spouse is of the same sex. Morrison & Foerster was engaged by Ms. Golinski as of October 2008 to represent her on a pro bono basis in her Employment Dispute Resolution plan hearing concerning her request for health benefits for her same-sex spouse, and to prepare any briefing associated with that hearing. Ms. Golinski submitted a brief in support of her EDR Complaint as well as additional supplemental briefing. 3. By Order dated January 13, 2009, Chief Judge Kozinski found that

Ms. Golinski had suffered discrimination under the EDR plan, and ordered the Administrative Office of the Unites States Courts (AO) to process her health benefits election forms. The AO initially complied, but the Office of Personnel

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Management (OPM) intervened and directed the AO, as well as Ms. Golinskis insurance carrier, not to process Ms. Golinskis request. Chief Judge Kozinski issued a further Order dated November 19, 2009, directing the AO to again process Ms. Golinskis health benefits election forms, ordering OPM to cease its interference, ordering Blue Cross and Blue Shield to enroll Ms. Cunninghis, and referring Ms. Golinskis request for back pay to the Appellate Commissioner. REQUESTED FEES 4. I am the partner in charge of this case at Morrison & Foerster LLP. I

have handled this matter from its inception. I personally performed, supervised, or participated in all of the professional services rendered by Morrison & Foerster in connection with this action. 5. Brief summaries of the experience and qualifications of the three

attorneys who worked on this matter, and for where work recovery is sought, are as follows: a. James McGuire. I joined Morrison & Foerster as an associate

in September 1997 and became a partner in January 2004. I received a B.A. degree, cum laude, from California State University, Sacramento in 1991 and received a J.D. degree, with great distinction, from the University of the Pacific in 1996. Prior to joining Morrison & Foerster, I served as a law clerk to the Honorable Eugene A. Wright of the United States Court of Appeals

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for the Ninth Circuit. I am, and since 1996 have been, an active member of the State Bar of California in good standing. My standard hourly rate for work performed in connection with this matter has been, at all times, $625. Representative, published decisions in which I have been involved include: U. S. Bank, N.A. v. Ayotte, 488 F. 3d 525 (1st Cir. 2007). Affirmed summary judgment that National Bank Act and OCC regulations preempt application of Connecticut Gift Certificate statute to gift cards issued by national bank. Walker v. USAA Ins. Co., 558 F.3d 1025 (9th Cir. 2009). Dismissed putative class action against auto insurer under Californias Unfair Competition Law. Strand v. U.S. Bank, 2005 N.D. 68 (N.D. 2005). Established enforceability of arbitration provision in credit card agreement requiring arbitration to proceed on an individual basis. Anderson v. Capital One Bank, 224 F.R.D. 444 (W.D. Wis. 2004). Defeated class certification and obtained partial judgment on pleadings in class action under the Fair Credit Reporting Act and the Equal Credit Opportunity Act. Johnson v. Capital One Bank, 120 Cal. App. 4th 942 (2004). Obtained summary judgment that governing state law in credit card contract

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precluded expansion of card issuer's liability beyond that permitted under the Truth in Lending Act. Sipper v. Capital One Bank, 2002 U.S. Dist. LEXIS 3881 (C.D. Cal. 2002). Defeated class certification after exposing conflict of interest between named plaintiff and counsel that rendered representation inadequate. WFS Financial, Inc. v. Dean, 79 F. Supp. 2d 1024 (W.D. Wis. 1999). Obtained summary judgment that operating subsidiaries of federal savings associations enjoy the same preemption rights as their parents under the Home Owners' Loan Act of 1933 and OTS regulations. b. Rita Lin. Ms. Lin joined Morrison & Foerster as an associate in

2004. Ms. Lin received her B.A., magna cum laude, from Harvard College in 2000, and received her J.D., magna cum laude, from Harvard Law School in 2003. Prior to joining Morrison & Foerster, Ms. Lin served as law clerk to the Honorable Sandra Lynch in the United States Court of Appeals for the First Circuit. Ms. Lin is, and since 2005 has been, an active member of the State Bar of California in good standing. Ms. Lins standard hourly rate for work performed in connection with this matter was $485 in 2008 and $520 in 2009.

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c.

Sarah Griswold. Ms. Griswold joined Morrison & Foerster as

an associate in 2006. Ms. Griswold received her A.B., cum laude, from Harvard University in 2001, and received her J.D. from Yale Law School in 2005. Prior to joining Morrison & Foerster, Ms. Griswold served as law clerk to the Honorable Alfred T. Goodwin in the United States Court of Appeals for the Ninth Circuit. Ms. Griswold is, and since 2005 has been, an active member of the State Bar of California in good standing. Ms. Griswold took over the bulk of the work on this matter from Ms. Lin when Ms. Lin went out on maternity leave in mid-2009. Ms. Griswolds standard hourly rate for work performed in connection with this matter was $455 in 2009. 6. As a partner in the litigation department at Morrison & Foerster, I

have had a great deal of experience with respect to the billing and collection of attorneys fees. I also have experience litigating the right to collect attorneys fees and the reasonableness of such fees. From this experience, I am informed and believe that the hourly billing rates set forth above are within the market of hourly rates charged by law firms for attorneys with the experience and qualifications possessed by the Morrison & Foerster personnel previously listed. I have personally prepared billing statements for professional services performed by Morrison & Foerster for clients which the clients have paid and which were

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calculated at the foregoing standard hourly billing rates for professional services rendered by the timekeepers discussed above. 7. Morrison & Foersters standard billing procedure is that each lawyer,

legal assistant and other professional staff submits detailed time records he or she maintains on a daily basis. Each individual submitting time records is assigned an hourly billing rate that comports with the market and is a fair reflection of his or her knowledge, skill and experience. Time records are entered into a computer system by the timekeeper or the timekeepers secretary. The computer system generates a pre-bill describing all of the professional work performed on a client matter, as well as disbursements made on the matter. 8. As the prevailing party, Ms. Golinski seeks an award of attorneys

fees in the amount of $68,512.17. Morrison & Foerster represents Ms. Golinski on a pro bono basis. It is the policy of Morrison & Foerster to donate any fees awarded in a pro bono matter to the Girvan Peck Memorial Fund, a nonprofit corporation having the principal purpose of funding the costs of pro bono legal work. I followed Morrison & Foersters standard billing procedure described in the foregoing paragraph for the time that I recorded while working on this matter. I am informed and believe that the other timekeepers on this matter did as well. Although there are no invoices that were sent to Ms. Golinski, Morrison & Foersters internal billing procedure generates spreadsheets for all submitted time

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and expenses on this matter. Attached hereto as Exhibit A is a true and correct copy of the spreadsheet reflecting time spent on this action and expenses incurred by Morrison & Foerster attorneys for which we seek payment. In the exercise of judgment, I reviewed the spreadsheet for this matter for time from the inception of our work on this case through December 16, 2009, and reduced a substantial amount of time dedicated to this action by Morrison & Foerster personnel and a substantial amount of expenses incurred. 9. The hours expended and for which Ms. Golinski seeks recovery are, in

my view, extremely modest and reasonable. We conducted the litigation as efficiently as possible and made every effort to keep the fees and disbursements incurred to a minimum. The efficient manner in which this case was litigated is further demonstrated by its staffing one associates time, Rita Lins, accounts for over 70% of the attorney-hours invested in the case. (See Ex. A.) 10. Similarly, the rates charged by Morrison & Foerster were reasonable

and appropriate for this type of work in this legal market. The fees and expenses incurred by Morrison & Foerster in this litigation through December 16, 2009 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 Judge Kozinskis January Order.

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 16th day of December 2009, at San Francisco, California.

/s/ James R. McGuire James R. McGuire

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