Case: 09-80173 03/10/2010 Page: 1 of 6

ID: 7260564 DktEntry: 41

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IN THE MATTER OF KAREN GOLINSKI, et ux., No. 09-80173

APPLICATION FOR ORDER NUNC PRO TUNC REGARDING INTEREST AWARD UNDER THE BACK PAY ACT, 5 U.S.C. 5596

MORRISON & FOERSTER LLP James R. McGuire Gregory P. Dresser Rita F. Lin Grace Y. Park 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 Email: JMcGuire@mofo.com LAMBDA LEGAL, Western Regional Office Jennifer C. Pizer 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Email: JPizer@lambdalegal.org Attorneys for Karen Golinski

pa-1392906

Case: 09-80173 03/10/2010 Page: 2 of 6

ID: 7260564 DktEntry: 41

Karen Golinski respectfully requests entry of an order nunc pro tunc regarding the Appellate Commissioners January 28, 2010 report and recommendation that, among other things, awarded interest to Ms. Golinski under the Back Pay Act, 5 U.S.C. 5596.1 RELEVANT BACKGROUND On November 19, 2009, Chief Judge Alex Kozinski issued an order awarding Ms. Golinski, among other things, retrospective relief under the Back Pay Act, 5 U.S.C. 5595 et seq. In that November order, the Chief Judge 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.) In re Golinski, 598 F.3d 956, 959-60 (9th Cir. 2009). Pursuant to that November Order, the Appellate Commissioner, on January 28, 2010, submitted his report and recommendation. In addition to retrospective back pay, the Appellate Commissioner awarded interest under the Back Pay Act from the period beginning on the effective date of withdrawal or reduction to a date not more than 30 days before the date on which payment is made. (January

It was Chief Judge Kozinski who, in his March 5, 2010 Order, pointed out the calculation errors that Ms. Golinsk is seeking to have corrected in this application.

pa-1392906

Case: 09-80173 03/10/2010 Page: 3 of 6

ID: 7260564 DktEntry: 41

28, 2010 Order at 11.) The Appellate Commissioner determined that interest in the amount of $164.31 should be awarded to Ms. Golinski to cover the time period from September 2008 to December 2009. Ms. Golinski has not yet received any payment pursuant to the Courts January 28, 2010 Order. As such, the $164.31 awarded by the Court covers interest only to December 2009, which is more than 30 days before the date on which payment has been made. CORRECTIONS TO THE JANUARY 28, 2010 ORDER Page 11 at lines 14-17 of the Order should be changed from December 2009 in the total amount of $164.31 to March 2010 in the total amount of $229.97 so that lines 14-17 correctly reads: The Appellate Commissioner therefore recommends that Ms. Golinski be awarded interest on her back pay award for September 2008 through March 2010 in the total amount of $229.97. Page 11 at footnote 6 of the Order should be changed from December 2009 to March 2010 so that footnote 6 correctly reads: The interest was calculated by multiplying the cumulative monthly premium payments by the applicable Federal short-term interest rates, plus three percentage points, compounded daily, from September 2008 through March 2010. When those errors are corrected, the January 28, 2010 Order will conform to the findings of the Appellate Commissioner so long as payment is made to Ms.

2
pa-1392906

Case: 09-80173 03/10/2010 Page: 4 of 6

ID: 7260564 DktEntry: 41

Golinski between today and 30 days from today, or April 9, 2010. (See Exh. A (Ms. Golinskis underlying calculations).)

Dated: March 10, 2010

MORRISON & FOERSTER LLP LAMBDA LEGAL By: /s/ James R. McGuire James R. McGuire Attorneys for Karen Golinski

3
pa-1392906

Case: 09-80173 03/10/2010 Page: 5 of 6

ID: 7260564 DktEntry: 41

Exhibit A

Month Sep-08 Oct-08 Nov-08 Dec-08 Jan-09 Feb-09 Mar-09 Apr-09 May-09 Jun-09 Jul-09 Aug-09 Sep-09 Oct-09 Nov-09 Dec-09 Jan-09 Feb-09 Mar-09

Federal Short Term Interest Rate + 3 points 5.38% 5.19% 4.63% 4.36% 3.81% 3.60% 3.72% 3.83% 3.76% 3.75% 3.82% 3.83% 3.84% 3.75% 3.71% 3.69% 3.57% 3.72% 3.64%

Back Pay to Date $308.00 $616.00 $924.00 $1,232.00 $1,652.00 $2,072.00 $2,492.00 $2,912.00 $3,332.00 $3,752.00 $4,172.00 $4,592.00 $5,012.00 $5,432.00 $5,852.00 $6,272.00 $6,692.00 $7,112.00 $7,532.00

Interest to Date $1.36 $4.09 $7.63 $12.23 $17.62 $23.40 $31.36 $40.64 $51.43 $63.17 $76.93 $92.14 $108.28 $125.95 $144.20 $164.34 $185.16 $206.01 $229.97

Total $309.36 $620.09 $931.63 $1,244.23 $1,669.62 $2,095.40 $2,523.36 $2,952.64 $3,383.43 $3,815.17 $4,248.93 $4,684.14 $5,120.28 $5,557.95 $5,996.20 $6,436.34 $6,877.16 $7,318.01 $7,761.97

4
pa-1392906

Case: 09-80173 03/10/2010 Page: 6 of 6

ID: 7260564 DktEntry: 41

CERTIFICATE OF SERVICE I hereby certify that on March 10, 2010, I filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit:
APPLICATION FOR ORDER NUNC PRO TUNC REGARDING INTEREST AWARD UNDER THE BACK PAY ACT, 5 U.S.C. 5596

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 Charlotte G. Peddicord Office of Human Resources Assistant Director Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E, Room 5-500 Washington, DC 20544 Joseph P Russoniello, Esq. Office of the U.S. Attorney 450 Golden Gate Avenue, 11th Floor San Francisco, CA 94102 Roger G. Wilson, Esq. Blue Cross/ Blue Shield Association Senior Vice President, General Counsel 225 N. Michigan Ave Chicago, IL 60601 William Breskin, Esq. Blue Cross/ Blue Shield Association Chief Washington Counsel 1310 G Street, N.W. Washington, DC 20005 /s/ Janie Fogel Janie Fogel

pa-1392906