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KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEESsf-2774895

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 LLPJAMES R. McGUIRE (SBN 189275)RITA F. LIN (SBN 236220)SARAH E. GRISWOLD (SBN 240326)425 Market StreetSan Francisco, California 94105-2482

Telephone:415.268.7000Facsimile: 415.268.7522

Attorneys forKaren Golinski

Case: 09-80173 12/16/2009 Page: 1 of 17 ID: 7166958 DktEntry: 11-1

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KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES isf-2774895

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION..................................................................................................... 1

BACKGROUND....................................................................................................... 2

ARGUMENT ............................................................................................................ 6

I. MS. GOLINSKI IS ENTITLED TO BACK PAY EQUAL TOTHE COST OF COMPARABLE HEALTH INSURANCE. .........................6

II. MS. GOLINSKI IS ENTITLED TO REASONABLEATTORNEYS FEES. .................................................................................... 9

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


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KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES iisf-2774895

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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KAREN GOLINSKIS REQUEST FOR BACK PAY AND ATTORNEYS FEES 1sf-2774895

INTRODUCTION

Ms.Golinski submits this request for back pay and attorneys fees pursuant

to Chief Judge Kozinskis November19, 2009 Order and the Appellate

Commissioners Orders of November25, 2009 and December7, 2009. On

November19, 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 November19, 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 $68,512.17for Morrison& Foersters reasonable fees


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through December16, 2009. A supplemental brief setting forth the reasonable fees

of Lambda Legal will be filed by December23, 2009, pursuant to the Appellate

Commissioners December15 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 ifMs.Cunninghis is not

added to Ms.Golinskis family coverage plan by December21, 2009, as required

by Chief Judge Kozinskis NovemberOrder.

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 August21,

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 January13, 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 November19, 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

September2008. (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 September2008 through June2009, 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 co-

payment 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, butMs.Golinski did not have a deductible on her health

insurance plan. (Id.) Ms.Cunninghis also had to pay30% of the fees for all non-

emergency 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 May2009, Ms.Cunninghis was notified that, effective July1, 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 July1, 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 September2008, when Ms.Golinski first

sought to add Ms.Cunninghis to her family coverage plan, through January2010.

(Id. 13 ($5,700 through December2009), 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 December21, 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 ofMs.Golinskis plan. (Id.)

This request for back pay and attorneys fees is timely pursuant to the

Appellate Commissioners December7, 2009 Order. (Docket No. 7154291

(request for an award of back pay, reasonable attorneys fees, and any other

monetary award is due December16, 2009); see alsoDocket No. 7164441

(supplement to request is due December23, 2009).)

ARGUMENT

I. MS. GOLINSKI IS ENTITLED TO BACK PAY EQUAL TOTHE 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 ofMs.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. (CompareGolinski 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 BlueShield

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. CompareGolinski Decl. Ex.A with id.Exs.B, E.)

The relevant period of time for which Ms.Golinski has been denied benefits

begins with September2008, 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 Januaryand NovemberOrders will Ms.Golinski no longer be

denied the benefit of insuring her wife. (See Nov. Order at 5.) As of

December9, 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 September2008 through December2009. 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. (Compareid. 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

September2008 through December2009, 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, ifMs.Cunninghis is not

added to Ms.Golinskis plan by December21, 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 ofMs.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 REASONABLEATTORNEYS 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

alsoEDR 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, 42U.S.C. 1988 (1982). Curranv.Dept of Treasury, 805F.2d 1406, 1410

(9th Cir. 1986).

As discussed above, the personnel action began in September2008 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 October2008, 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. SeeBlumv. Stenson, 465U.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 $68,512.17in attorneys fees incurred by

Morrison& Foerster through December16, 2009. (McGuire Decl. 8.)1 This

constitutes only a fraction of the attorneys fees that have been incurred in pursuing

1 Pursuant to the Appellate Commissioners December 15, 2009 Order,Ms.Golinski reserves her right to file a supplement to this request for back pay andattorneys fees no later than December 23, 2009. (SeeDocket No. 7164441.) Thissupplement may include a request for fees on behalf of Lambda Legal.


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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 ChiefJudge Kozinskis JanuaryOrder. (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 alsoGavettev. Office

of Pers. Mgmt., 808F.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 42U.S.C. 1988 case at hourly rates of $600, $300, and $175);

Caplanv. CNA Fin. Corp., 573F.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 February20, 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 PeckMemorial 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 September2008 through December2009 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 December2009,

Ms.Golinski reserves her right to submit additional requests for back pay and

attorneys fees covering subsequent time periods.

Dated: December16, 2009 MORRISON& FOERSTER LLP

By: /s/ James R. McGuireJames R. McGuire



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CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2009, I filed the foregoing with the Clerk ofthe 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 OFREQUEST FOR BACK PAY [PUBLIC REDACTED VERSION]

I further certify that I have mailed the foregoing document by U.S. mail, postageprepaid, to the following:

Elaine Kaplan, Esq.General CounselOffice of Personnel Management1900 E Street NWWashington, D.C. 20415

Robert Loesche, Esq.Deputy General CounselAdministrative Office of the U.S. CourtsOne Columbus Circle NEWashington, D.C. 20544

Sue Andersen, Esq.Associate Legal CounselBlue Cross Blue Shield Association1310 G Street, N.W.Washington, D.C. 20005

/s/Janie FogelJanie Fogel


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DECLARATION OF JAMES R. MCGUIRE ISO KAREN GOLINSKI S REQUEST FOR BACK PAY AND ATTYS FEESsf-2780305

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 LLPJAMES R. MCGUIRE (SBN 189275)RITA F. LIN (SBN 236220)SARAH E. GRISWOLD (SBN 240326)425 Market StreetSan Francisco, California 94105-2482Telephone:415.268.7000Facsimile: 415.268.7522



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DECLARATION OF JAMES R. MCGUIRE ISO KAREN GOLINSKI S REQUEST FOR BACK PAY AND ATTYS FEES 1sf-2780305

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 September2, 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 January13, 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. Linis, 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.Griswoldreceived her A.B.,cum laude, from

Harvard University in 2001, and received her J.D. from Yale Law Schoolin

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.Griswoldis, 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 ExhibitA 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 spreadsheetfor 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

reasonablein 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. McGuireJames R. McGuire


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09-80173 #11