In re Golinski

• Decision Date: 19 November 2009
• Docket Number: No. 09-80173.,09-80173.
• Citation: 587 F.3d 956
• Parties: In the Matter of Karen GOLINSKI<SMALL><SUP>*</SUP></SMALL> et ux.
• Court: U.S. Court of Appeals — Ninth Circuit

587 F.3d 956

In the Matter of Karen GOLINSKI^* et ux.

No. 09-80173.

United States Court of Appeals, Ninth Circuit.

November 19, 2009.

Argued by Rita F. Lin, Morrison & Foerster LLP, San Francisco, CA, who was joined on the briefs by James R. McGuire, Morrison & Foerster LLP, San Francisco, CA, Jennifer C. Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for Karen Golinski.

ORDER

ALEX KOZINSKI, Chief Judge.

Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man. I previously determined that violates this court's guarantee of equal employment opportunity. See In re Golinski, 2009 WL 2222884, at *1 (9th Cir. Jan. 13, 2009).^** To avoid a difficult constitutional problem, I harmonized the Defense of Marriage Act (DOMA), 1 U.S.C. § 7; the statutes creating the benefit program at issue, the Federal Employees Health Benefits Program (FEHBP), 5 U.S.C. §§ 8901 et seq.; and this court's commitment to equal employment opportunity. In re Golinski, 2009 WL 2222884 at *1-3.

I then entered the following order:

The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski's Health Benefits Election form 2809, which she signed and submitted on September 2, 2008, to the appropriate health insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of a listed spouse.

Id. at *3. No "party or individual aggrieved" by my decision appealed it. See U.S. Court of Appeals for the Ninth Circuit, Employment Dispute Resolution Plan 9 (1997) (hereinafter EDR Plan).

The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski's form 2809 to the Blue Cross and Blue Shield Service Benefit Plan, Ms. Golinski's health insurance carrier. That's as it should be; the AO is subject to the "supervision and direction" of the Judicial Conference of the United States, 28 U.S.C. § 604(a), and I exercised authority delegated by the Judicial Conference when I ordered relief.¹ After the AO submitted Ms. Golinski's form, I thought this matter had concluded. See 5 C.F.R. § 890.104.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski's form 2809, thwarting the relief I had ordered. See Letter from Lorraine E. Dettman, Assistant Dir., Ins. Servs. Programs, U.S. Office of Pers. Mgmt., to Nancy E. Ward, Deputy Assistant Dir., Office of Human Res., Admin. Office of U.S. Courts (Feb. 20, 2009) (attached herewith as Exhibit A). I must now decide what further steps are necessary to protect Ms. Golinski and the integrity of the Judiciary's EDR plans.

Retrospective Relief

Ms. Golinski has requested an award under the Back Pay Act. 5 U.S.C. §§ 5595 et seq. This court's EDR plan provides that relief under the Back Pay Act is available, EDR Plan at 9-10; see Dotson v. Griesa, 398 F.3d 156, 175 (2d Cir.2005); Blankenship v. McDonald, 176 F.3d 1192, 1195(9th Cir.1999), and I must resolve any claim for such relief in the first instance. EDR Plan at 3.

There's no doubt the Act entitles judicial employees to back pay, 5 U.S.C. § 5596(a)(2), but I am aware of no prior determination as to what showing they must make to receive an award.² I conclude they must prove three things: (1) there has been a "personnel action"; that (2) is "unjustified or unwarranted"; and (3) results in a "withdrawal or reduction of all or part of [the employee's] pay, allowances, or differentials." Id. § 5596(b)(1).

1. The Back Pay Act defines a personnel action to include "the omission or failure to take an action to confer a benefit." Id. § 5596(b)(5). It also covers "a decision concerning pay [or] benefits." Id. § 2302(a)(2)(A)(ix). Refusing to provide Ms. Golinski with health insurance for her wife satisfies either definition.

2. I find OPM's definition of the phrase "unjustified or unwarranted personnel action" persuasive. For purposes of this court's EDR plan I therefore define that phrase to mean:

[A]n act of commission or an act of omission (i.e., failure to take an action or confer a benefit) that an appropriate authority subsequently determines, on the basis of substantive or procedural defects, to have been unjustified or unwarranted under applicable law, Executive order, rule, regulation, or mandatory personnel policy established by an agency or through a collective bargaining agreement. Such actions include personnel actions and pay actions (alone or in combination).

5 C.F.R. § 550.803. The "agency" here is the United States Court of Appeals for the Ninth Circuit, 5 U.S.C. § 5596(a)(2); 28 U.S.C. § 610, and I conclude that denying an employee a benefit based on her sex or sexual orientation violates one of our "mandatory personnel policies." See EDR Plan at 2.

3. I also find OPM's definition of "pay, allowances, and differentials" persuasive. I therefore determine that the Act covers "pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment." 5 C.F.R. § 550.803. The commentary to that regulation says it includes "benefits received under the Federal employee health benefits and group life insurance programs," 46 Fed.Reg. 58,271, 58,272 (Dec. 1, 1981), so I conclude spousal health insurance benefits qualify. As Ms. Golinski has been denied the benefit of insuring her wife, Amy Cunninghis, her "pay, allowances, [or] differentials" have been "withdraw[n] or reduc[ed]."³

4. Based on the above, I conclude Ms. Golinski is entitled to an award under the Back Pay Act, and I refer this matter to the Appellate Commissioner to determine its amount. Within 70 days the Commissioner shall forward to me, with copies to the parties, a report and recommendation as to the award I should enter (including attorneys' fees and any other monetary award to which Ms. Golinski may be entitled under the Act).

Because Ms. Golinski has already waited too long for relief, I wish to avoid the need for additional proceedings to determine the amount of her award. I therefore offer the Commissioner the following guidance: Compensatory damages aren't recoverable under this court's 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 she's 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.

Prospective Relief

An award of back pay only compensates Ms. Golinski for discrimination she's suffered until today. I have no reason to believe that this discrimination will cease without further action on my part, so I also consider whether to grant prospective relief as well. There are three options: (1) again order enrollment of Ms. Golinski's wife in a FEHBP insurance plan without regard to her sex; (2) enter an order prospectively awarding back pay to Ms. Golinski, payable on some regular basis, until she is permitted to enroll her otherwise-eligible spouse for insurance benefits; or (3) do nothing and leave Ms. Golinski with the burden of filing a new complaint every time she would like to purchase health insurance for her wife.

The third option is clearly inappropriate. Forcing an employee to endlessly litigate the same claim would be unjust and wasteful of the court's EDR resources. No doubt to avoid that very result, the EDR plan specifically authorizes an order designed to "prospectively insur[e] compliance" with this court's guarantee of equal employment opportunity. EDR Plan at 9. To do nothing in this case would read that language out of the plan.

I consider the second option inappropriate because it would be a colossal waste of taxpayer money. Unlike the employee in In re Levenson, Ms. Golinski is already signed up for a family plan to cover the child of the marriage. Adding her wife's name to the plan would cost the government nothing, see In re Levenson, No. 09-80172, slip op. at 15550-51 & n.6, while providing prospective relief in the form of substitute insurance coverage would be expensive.

Also, it might be impossible to find an insurance plan on the private market that provides exactly the same benefits as provided under the FEHBP. Group plans almost always provide broader coverage than individual plans. I must consider the hassle and expense of finding such a plan, even if it does exist, as well. I am also uncertain whether "prospective" back pay would put Ms. Golinski in a position as advantageous as if her wife were covered by premiums that are automatically deducted, pre-tax, from her paycheck. And, even if those mundane concerns weren't present, there is an inherent inequality in allowing some employees to participate fully in the FEHBP, while giving others a wad of cash to go elsewhere. Even if the destination is the same, it's still the back of the bus.

The EDR plan provides that I may order a "necessary and appropriate" remedy for workplace discrimination. EDR Plan at 9. For the discrimination she's suffered in the past, I can offer Ms. Golinski only money. The remedy that's "appropriate" for the future, however, is enrollment of Ms. Golinski's wife into the same program an opposite-sex spouse would enjoy. I see no justification for giving Ms. Golinski a lesser remedy at substantial taxpayer expense when she can have a full remedy at zero cost to the taxpayers.

My authority to order such relief is clear under the language of the EDR plan. Id. at 1, 9-10. However, OPM's actions in this case suggest that further explanation is "necessary....