                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

                                            
                                            
IN THE MATTER OF KAREN                              No. 09-80173
GOLINSKI* et ux.
                                                     ORDER

                     Filed November 19, 2009


                             COUNSEL

Argued by Rita F. Lin, Morrison & Foerster LLP, San Fran-
cisco, California, who was joined on the briefs by James R.
McGuire, Morrison & Foerster LLP, San Francisco, Califor-
nia, for Karen Golinski.


                               ORDER

   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 Pro-
gram (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.

  *While personnel matters are ordinarily confidential, Ms. Golinski has
consented to the use of her name in this order.
  **Because I rely on it as background for this order, I have directed my
earlier order be published.

                                 15569
15570                IN THE MATTER OF GOLINSKI
  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 pro-
      cessed 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 direc-
tion” 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 sub-
mitted Ms. Golinski’s form, I thought this matter had con-
cluded. See 5 C.F.R. § 890.104.

  The Executive Branch, acting through the Office of Person-
  1
    This court’s EDR plan was adopted at the direction, and with the
approval, of the Judicial Conference of the United States, see Judicial
Conference of the United States, Model EDR Plan, ch. I, § 1 (hereinafter
Model EDR Plan); EDR Plan at 1, as part of the tradition of decentralized
administration and local management of the federal courts. Judicial Con-
ference of the United States, Study of Judicial Branch Coverage Pursuant
to the Congressional Accountability Act of 1995 2-3 (1996). Judicial offi-
cers acting pursuant to our EDR plan have the responsibility and authority
“to provide the rights, protections, and remedies” to judicial employees
enjoyed by congressional employees, and do so in the name of the Judicial
Conference. See id. at 15.
                     IN THE MATTER OF GOLINSKI                      15571
nel 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 fur-
ther steps are necessary to protect Ms. Golinski and the integ-
rity 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 differen-
tials.” Id. § 5596(b)(1).
  2
    I have no controlling precedent on which to rely. OPM’s regulations
don’t apply of their own force, 5 U.S.C. § 5596(c), and this claim doesn’t
arise under the jurisdiction of the Court of Federal Claims, the Federal
Circuit, the Merit System Protection Board (MSPB) or a similar entity
charged with interpreting the Act. The body with supervisory jurisdiction
over this proceeding—the Judicial Council of the Ninth Circuit—has not,
so far as I know, had occasion to interpret the Act. Nor am I aware of any
similar rulings from other circuits’ Judicial Councils or the Judicial Con-
ference of the United States. My analysis is, however, consistent with that
in a recent order of another EDR tribunal in the Ninth Circuit. See In re
Levenson, No. 09-80172, slip op. at 20-22 (9th Cir. Nov. 18, 2009).
15572             IN THE MATTER OF GOLINSKI
   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 applica-
    ble law, Executive order, rule, regulation, or manda-
    tory 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 bene-
                      IN THE MATTER OF GOLINSKI                       15573
fits 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 Com-
missioner 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 rel-
evant 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
  3
    I also conclude that my prior order qualifies as a “correction of the per-
sonnel action,” 5 U.S.C. § 5596(b)(1)(A), for purposes of the Back Pay
Act. Denying back pay simply because a remedial decree has been frus-
trated would be inequitable. In any event, I see no reason that back pay
cannot be awarded contemporaneously with a corrective action. See Rob-
inson v. Dep’t of the Army, 21 M.S.P.R. 270, 272-73 (1984).
15574             IN THE MATTER OF GOLINSKI
believe that this discrimination will cease without further
action on my part, so I also consider whether to grant prospec-
tive 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 pro-
vide 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
                     IN THE MATTER OF GOLINSKI                   15575
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 else-
where. 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 “appropri-
ate” 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 lan-
guage of the EDR plan. Id. at 1, 9-10. However, OPM’s
actions in this case suggest that further explanation is “neces-
sary.” Ordering enrollment is proper and within my jurisdic-
tion because Congress intended this tribunal to be the sole
forum for adjudicating complaints of workplace discrimina-
tion by employees of the Judiciary. With that responsibility
must come power equal to the task.

   1. Congress has decided that the Judiciary’s EDR tribunals
are the only forum where judicial employees may seek redress
for unlawful personnel actions. See Dotson, 398 F.3d at
171-76; Blankenship, 176 F.3d at 1195; Lee v. Hughes, 145
F.3d 1272, 1276 (11th Cir. 1998). Our employees can’t appeal
to the MSPB,4 they have no Bivens action and they aren’t pro-
  4
    Had my original order come from the MSPB, there would have been
no question that it would have had to be obeyed. See 5 U.S.C.
§ 1204(a)(2); Kerr v. NEA, 726 F.2d 730, 733 (Fed. Cir. 1984). Our EDR
tribunals take the place of the MSPB for judicial employees, so it makes
sense that Congress gave our EDR tribunals powers coextensive with
those of the MSPB.
15576              IN THE MATTER OF GOLINSKI
vided remedies by the Civil Service Reform Act or state law.
See, e.g., Dotson, 398 F.3d at 171-76. If a judicial employee
suffers an unjustified personnel action, such as being fired on
account of race, sex or religion, the only remedy possible
would come from an EDR tribunal. Our EDR tribunals must
therefore have the authority to grant full relief, including rein-
statement (or other prospective relief) and back pay. If that’s
not true, judicial employees who are victims of discrimination
would have no remedy at all.

   2. OPM’s actions implicate an even more fundamental con-
cern: the autonomy and independence of the Judiciary as a co-
equal branch of government. In effect, OPM has claimed that
its interpretations of the rights and benefits of judicial
employees are entitled to supremacy over those of the Judi-
ciary. That’s incorrect, and the Executive must henceforth
respect the Judiciary’s interpretation of the laws applicable to
judicial employees. Any other result would prevent the Judi-
ciary from “accomplishing its constitutionally assigned func-
tions,” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443
(1977), by seriously undermining our autonomy over person-
nel matters. “While it may be convenient to have the person-
nel system of [the Judiciary] covered by the personnel
management network of the executive branch, it is contrary to
the doctrine of separation of powers.” H.R. Rep. 101-770(I),
at 6 (1990), reprinted in 1990 U.S.C.C.A.N. 1709, 1710.

   OPM has a duty to take care that the laws be faithfully exe-
cuted, but it may not disregard a coordinate branch’s con-
struction of the laws that apply to its employees. No less than
the other branches of government, the Judiciary is dependent
on people to carry out its mission. Barring us from determin-
ing, within reasonable bounds, the rights and duties of our
personnel under the laws providing for their employment
would make us a “handmaiden of the Executive.” United
States v. Smith, 899 F.2d 564, 569 (6th Cir. 1990). The power
both to interpret and execute a law is the power to control
                      IN THE MATTER OF GOLINSKI                      15577
those governed by it. Cf. The Federalist No. 47 (James Madi-
son).

   Concern about such a fate is particularly acute for the Judi-
cial Branch. We rely on Congress to fund and the Executive
to carry out many aspects of our day-to-day operations. GSA
manages the buildings where we work, Treasury cuts our
checks, U.S. Marshals provide our security and OPM admin-
isters our employee benefits programs. But if the theory of
separate powers means anything, it’s that the Executive can-
not use its dominance over logistics to destroy our autonomy.
Would we permit OPM to interpret a statute so as to require
us to racially discriminate in what we pay our employees?
Could the U.S. Marshals refuse to protect our courthouses
because they disagree with our decisions? May the Treasury
refuse to cut paychecks to judicial employees it believes are
not suitable for their positions?

   That those rights are not in question here is irrelevant. The
power the Executive has arrogated to itself in this case would
be enough to sustain those actions as well. Nor is it any
answer that OPM could set out a plausible interpretation of
the law to support its actions in this case.5 Some branch must
have the final say on a law’s meaning. At least as to laws gov-
erning judicial employees, that is entirely our duty and our
province. We would not be a co-equal branch of government
otherwise.

  History reveals that Congress intended the Judiciary to
have, like Congress itself, the authority to manage its own
  5
    In fact, the more a law the Executive administers is open to interpreta-
tion, the greater the separation-of-powers concerns. It is only because
OPM has broad power to administer a grant of somewhat nebulous author-
ity to contract for health insurance that the question I confront today
arises: As between the Executive and the Judiciary, whose interpretation
of the law should control for judicial employees? If Congress had spoken
clearly on the scope of FEHBP coverage, there would be nothing to inter-
pret and therefore no potential for conflicting interpretations.
15578                  IN THE MATTER OF GOLINSKI
personnel and to adjudicate workplace complaints.6 Until the
Congressional Accountability Act of 1995 (CAA), none of the
major workplace protection laws applied to congressional
employees; Congress worried that applying those laws to
itself would grant the Executive too much power over its
affairs. See generally Harold H. Bruff, That the Laws Shall
Bind Equally On All: Congressional and Executive Roles in
Applying Laws to Congress, 48 Ark. L. Rev. 105, 120 (1994).
The CAA solved this problem by creating a special legislative
branch agency called the Office of Compliance. Id. at 158.
That office, rather than the Executive, enforces the workplace
protection laws that the CAA extended to Congress.

   “Congress initially considered extending the [CAA’s] cov-
erage to employees of the judicial branch but, mindful of the
importance of judicial autonomy, ultimately decided against
such action.” Dotson, 398 F.3d at 173. Instead, it asked us to
report on our efforts to adopt the CAA’s standards voluntar-
ily. 2 U.S.C. § 1434. The Judicial Conference of the United
States submitted that report in 1996, telling Congress: “The
judicial branch is committed to providing the general protec-
  6
    Take, for example, the Administrative Office of the United States
Courts Personnel Act of 1990, Pub. L. 101-474, 104 Stat. 1097. The
accompanying report by the House noted that the AO was, at the time of
the act, “to a large extent . . . subject to the control of the executive branch
in personnel matters.” H.R. Rep. 101-770(I), at 6 (1990), reprinted in
1990 U.S.C.C.A.N. 1709, 1710. In contrast, “[t]he United States courts,
which [the AO] serves, . . . are mostly free of such Executive Branch
supervision.” Id. In order to correct that asymmetry, Congress determined
that the “authority granted under such law to the Equal Employment
Opportunity Commission (EEOC), the Office of Personnel Management
(OPM), the Merit System Protection Board (MSPB), or any other agency
in the executive branch, shall be exercised by the Administrative Office.”
Id. at 1712. No mention of such a power for the courts was necessary. Our
authority, part statutory and part inherent, to control matters that touch on
the operation of the courts was recognized long before those agencies
existed. See, e.g., Young v. United States ex rel. Vuitton et Fils S.A., 481
U.S. 787, 793 (1987); Ex Parte Hennen, 38 U.S. (13 Pet.) 230, 261-62
(1839).
                  IN THE MATTER OF GOLINSKI              15579
tions of the CAA laws in a manner that preserves judicial
independence and the decentralized administration of the fed-
eral courts.” Study of Judicial Branch Coverage, supra note
1, at 2. As part of that commitment, the Judicial Conference
reported that it was developing “a plan to provide the rights,
protections, and remedies similar to those provided in the
CAA.” Id. at 15. That plan became the Model EDR Plan,
supra note 1, under which this court adopted, and the Judicial
Council of the Ninth Circuit approved, the EDR plan that con-
trols these proceedings.

   Congress took no further action, so it must have been satis-
fied with the Judiciary’s efforts. OPM’s actions in this case
have undermined the balance Congress struck in the CAA,
and have done so in a way that threatens the independence of
Congress’s Office of Compliance as much as that of our EDR
tribunals. I don’t believe Congress intended to grant OPM that
authority. Instead, I hold the CAA’s reporting provision rec-
ognized the Judiciary’s inherent authority to resolve work-
place complaints without interference by the Executive. I
therefore conclude that an EDR tribunal’s reasonable interpre-
tation of a law applied to judicial employees must displace,
for purposes of those employees, any contrary interpretation
by an agency or officer of the Executive.

   I have determined that, even as limited by DOMA, the
FEHBP permits judicial employees to provide health insur-
ance coverage to their same-sex spouses. See In re Golinski,
2009 WL 222284 at *1-3. This court’s non-discrimination
plan requires that Ms. Golinski be afforded that benefit. EDR
Plan at 2. OPM had, and has, no authority to conclude other-
wise.

                            Order

  I order as follows:

   (1) This matter is referred to the Appellate Commissioner
for a hearing on Ms. Golinski’s claim under the Back Pay
15580              IN THE MATTER OF GOLINSKI
Act. Within 70 days, he shall submit a report and recommen-
dations on the factual issues listed above. See p. 15573 supra.

  (2) Within 30 days, the Administrative Office of the United
States Courts shall re-submit Ms. Golinski’s Health Benefits
Election form 2809 to her designated insurer, the Blue Cross
and Blue Shield Service Benefit Plan. The AO shall process
any future benefit forms without regard to the sex of the listed
spouse. See p. 15575 supra.

   (3) Within 30 days, the Office of Personnel Management
shall rescind its guidance or directive to the Blue Cross and
Blue Shield Service Benefit Plan and any other plan that Ms.
Golinski’s wife is not eligible to be enrolled as her spouse
under the terms of the Federal Employees Health Benefits
Program because of her sex or sexual orientation, and that the
plans would violate their contracts with OPM by enrolling
Ms. Golinski’s wife as a beneficiary. See pp. 15570-71,
15575-79 supra.

   (4) The Office of Personnel Management shall cease at
once its interference with the jurisdiction of this tribunal. Spe-
cifically, OPM shall not advise Ms. Golinski’s health plan, the
Blue Cross and Blue Shield Service Benefit Plan, that provid-
ing coverage for Ms. Golinski’s wife violates DOMA or any
other federal law. Nor shall OPM interfere in any way with
the delivery of health benefits to Ms. Golinski’s wife on the
basis of her sex or sexual orientation. See pp. 15570-71,
15575-79 supra.

   (5) The Blue Cross and Blue Shield Service Benefit Plan
shall enroll Ms. Golinski’s wife within 30 days of receipt of
the appropriate forms from the Administrative Office of the
United States Courts without regard to her sex or sexual ori-
entation.

  I authorize Ms. Golinski to take appropriate action to
secure compliance with this order, such as by petition for
                  IN THE MATTER OF GOLINSKI              15581
enforcement or mandamus. I trust, however, that such action
will not be necessary.

November 19, 2009           _________________
Date                        Alex Kozinski
                            Chief Judge

   The Clerk shall send this order to the Administrative Office
of the United States Courts and serve the order and a copy of
our EDR plan on the Office of Personnel Management and the
Blue Cross and Blue Shield Service Benefit Plan in the man-
ner described by Fed. R. Civ. P. 4(h), (i). If OPM or Blue
Cross wishes, it may appeal so much of this order as concerns
it using the procedures outlined in the plan. See EDR Plan at
9; Dep’t of Agric., Food and Nutrition Servs. v. FLRA, 879
F.2d 655, 658-59 (9th Cir. 1989), vacated in part on other
grounds, 895 F.2d 1239 (9th Cir. 1990). Any other individual
or party aggrieved by this proceeding may similarly appeal.
15582   IN THE MATTER OF GOLINSKI
IN THE MATTER OF GOLINSKI   15583
                             PRINTED FOR
                   ADMINISTRATIVE OFFICE—U.S. COURTS
                BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                          © 2009 Thomson Reuters/West.
