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ID: 7213783 DktEntry: 36-1

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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

PARTIES JOINT REQUEST FOR STAY OF PROCEEDINGS REGARDING BLUE CROSS AND BLUE SHIELD ASSOCIATIONS PETITION FOR REVIEW

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

MILLER & CHEVALIER CHARTERED Anthony F. Shelley Alan I. Horowitz 655 Fifteenth Street, N.W. Suite 900 Washington, DC 20005 Telephone: 202.626.5800 Facsimile: 202.626.5801 Email: ashelley@milchev.com ahorowitz@milchev.com

Attorneys for Blue Cross and Blue Shield Association

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Karen Golinski and Blue Cross and Blue Shield Association (BCBSA) respectfully request that the Judicial Council stay further proceedings in this matter pending resolution of a related matter, Golinski v. United States Office of Personnel Management, Case No. 10-cv-00257 (SBA), now pending before Judge Saundra Brown Armstrong in the United States District Court for the Northern District of California. RELEVANT BACKGROUND On November 19, 2009, the Chief Judge of the Ninth Circuit, acting pursuant to the Ninth Circuits Employment Dispute Resolution Plan, issued an order awarding Ms. Golinski: (1) retrospective relief under the Back Pay Act, 5 U.S.C. 5595 et seq. and (2) prospective relief requiring the Administrative Office of the U.S. Courts (AO) and United States Office of Personnel Management (OPM) to enroll Ms. Golinskis spouse in her federal employee health benefits plan. The Order further directed OPM, which had instructed the AO not to enroll Ms. Golinskis spouse, to rescind those instructions and to cease any interference with the Blue Cross and Blue Shield Service Benefit Plan. The Order additionally directed the Blue Cross and Blue Shield Service Benefit Plan to enroll Ms. Golinskis spouse within 30 days of receipt of the appropriate forms from the AO. Finally, the Order invited any aggrieved party to petition for review of the Chief Judges decision.

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BCBSA petitioned for review on December 17, 2009 and requested the issuance of a briefing schedule. One component of BCBSAs petition contends that BCBSA is contractually obligated to abide by [OPMs] directives on enrollment. (BCBSA Br. at 6.) On January 5, 2010, the Chief Judge issued an order requiring BCBSA to file its opening brief on or before February 2, 2010, Ms. Golinski to file her response no later than 28 days after the opening brief, and BCBSA to file its reply brief no later than 7 days after any opposition. In the meantime, OPM did not file a petition for review and has further declined to comply with the Chief Judges November 19, 2009 Order. Ms. Golinski then filed suit against OPM in the United States District Court for the Northern District of California seeking an order in the form of mandamus to compel OPMs compliance. On January 26, 2010, Ms. Golinski filed a motion for a preliminary injunction. That motion is presently scheduled for hearing on the earliest date available on Judge Armstrongs regular civil calendar, which is June 15, 2010. Ms. Golinski has filed a motion seeking to shorten the time for hearing to February 23, 2010. REASONS A STAY SHOULD BE GRANTED Ms. Golinski and BCBSA respectfully submit that resolution of Ms. Golinskis suit against OPM potentially may resolve this controversy, thereby

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making resolution of the petition for review unnecessary. In the event that the final disposition or entry of a preliminary injunction in the Northern District of California results in an order compelling OPM to authorize the enrollment of Ms. Golinskis spouse, the parties expect that enrollment subsequently will occur and that the pending petition for review before the Judicial Council could become moot. If the Judicial Council grants the requested relief, the parties propose that they report to this body any change in the hearing date on the preliminary injunction before Judge Armstrong as well as any ruling on that motion or pending appeals. Upon resolution of that motion, the parties would then submit to the Judicial Council a proposal for the appropriate action to be taken in this proceeding in light of that resolution.

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Dated: January 29, 2010

MORRISON & FOERSTER LLP LAMBDA LEGAL By: /s/ Gregory P. Dresser Gregory P. Dresser Attorneys for Karen Golinski

Dated: January 29, 2010

MILLER & CHEVALIER CHARTERED By: /s/ Anthony F. Shelley Anthony F. Shelley Attorneys for Blue Cross and Blue Shield Association

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of Court on January 29, 2010, via the Courts CM/ECF system, which will serve the following: James R. McGuire Morrison & Foerster LLP 425 Market Street 32nd Floor San Francisco, CA 94104-2482 Email: jmcguire@mofo.com Albert Giang Caldwell Leslie & Proctor PC Ste 600 1000 Wilshire Boulevard Los Angeles, CA 90017 Email: giang@caldwell-leslie.com Allison Claire FPDCA - FEDERAL PUBLIC DEFENDER'S OFFICE (SACRAMENTO) Third Floor 801 I Street Sacramento, CA 95814-2510 Email: allison_claire@fd.org Amy Whelan ROSEN BIEN & GALVAN, LLP 10th Floor 315 Montgomery Street San Francisco, CA 94104 Email: awhelan@rbg-law.com

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Brad Douglas Levenson FPDCA - FEDERAL PUBLIC DEFENDER'S OFFICE (LOS ANGELES) 321 East Second Street Los Angeles, CA 90012-4202 Email: brad_levenson@fd.org David C. Codell Law Office of David C. Codell 9200 Sunset Blvd., PH2 Los Angeles, CA 90069 Email: david@codell.com Rita Lin Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105-2482 Email: rlin@mofo.com Jennifer Pizer LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Suite 1300 3325 Wilshire Blvd. Los Angeles, CA 90010-1729 Email: jpizer@lambdalegal.org Sarah E. Griswold Morrison & Foerster LLP 32nd Floor 425 Market Street San Francisco, CA 94105-2482 Email: sgriswold@mofo.com Gay Crosthwait Grunfeld ROSEN BIEN & GALVAN, LLP 10th Floor 315 Montgomery Street San Francisco, CA 94104 Email: ggrunfeld@rbg-law.com

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I further certify that I served, on January 29, 2010, the foregoing document by U.S. Mail, First-Class, postage pre-paid, on the following: Elaine Kaplan General Counsel United States Office of Personnel Management Theodore Roosevelt Building 1900 E Street, NW Room 7355 Washington, DC 20415 Charlotte G. Peddicord Office of Human Resources Assistant Director Room 5-500 Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC 20544 Joseph P. Russoniello OFFICE OF THE U.S. ATTORNEY 11th Floor 450 Golden Gate Avenue San Francisco, CA 94102

s/ Anthony F. Shelley