9th Circuit Administrative Ruling Finds Denial of Benefits to Oregon Domestic Partner Unconstitutional

The Executive Committee of the U.S. Court of Appeals for the 9th Circuit’s Judicial Council ruled on November 25 that a former federal court employee in Oregon was entitled to compensation for the cost of providing health insurance for her same-sex domestic partner because the refusal by the federal Office of Personnel Management (OPM) to recognize Oregon domestic partnerships for this purpose violates the 5th Amendment of the U.S. Constitution, as well as the Oregon district court’s non-discrimination policy.  The three federal judges on the Committee rejected OPM’s reliance on last June’s Supreme Court ruling in U.S. v. Windsor, and reversed a March 2013 ruling by Chief Judge Ann Aiken of the U.S. District Court for Oregon which had denied reimbursement for this purpose.  In the Matter of Margaret Fonberg, 2013 WL 6153265, EDR No. 13-002.

The 9th Circuit Judicial Council is an administrative body that deals with grievances from employees of the federal courts.  These employees participate in the federal employee benefits plans overseen by OPM.  In 2009, 9th Circuit judges sitting in this capacity ruled on two grievances that federal court employees in California who had married their same-sex partners in 2008 prior to the passage of Proposition 8 were entitled to enroll their partners as spouses under the federal plan, but OPM instructed the insurance plan not to enroll them, citing Section 3 of the Defense of Marriage Act (DOMA).  One of those cases was resolved by the clerk of the employing court reimbursing the employee for the cost of his husband’s insurance; the other resulted in a federal lawsuit brought by Lambda Legal on behalf of Karen Golinski, in which a federal district judge ruled that DOMA Section 3 was unconstitutional prior to the U.S. Supreme Court’s June 26, 2013, decision to the same effect in U.S. v. Windsor.  After the Windsor ruling, the government pending appeal of Golinski’s decision to the 9th Circuit was dismissed based on OPM’s change of policy to recognize same-sex marriages.  OPM announced in July that it would recognize same-sex marriages for purposes of federal employee benefits plans, regardless where the employees and their spouses resided, so long as the place where they married recognized same-sex marriages.  However, taking a strict view of the Windsor ruling, OPM announced that it could not recognize domestic partnerships or civil unions.

The federal government’s continuing failure to recognize state-approved New Jersey civil unions was the main point of contention in the New Jersey marriage equality litigation, persuading N.J. Superior Court Judge Mary Jacobson to rule in September that same-sex couples in New Jersey were entitled to marry, resulting in marriage equality in New Jersey when Governor Chris Christie’s attempt to get the decision stayed was unanimously rejected by the New Jersey Supreme Court.  Christie had argued that the plaintiffs in that case should have been suing the federal government to recognize their civil unions, rather than suing New Jersey.  This argument did not cut any ice with the New Jersey courts.

The Oregon ruling responds to a grievance filed in 2009 by Margaret Fonberg, a former law clerk at the federal district court in Oregon, who sought to enroll her same-sex registered domestic partner for the family health plan.  She was turned down by OPM on the ground that they were not married.  She then filed an Employee Dispute Resolution Plan(EDR)  grievance.  In 2011, Chief Judge Aiken ruled in her favor, finding that denying health benefits to Fonberg’s partner because of her sex violated the District Court’s non-discrimination policy  Aiken ordered that Fonberg be reimbursed for the cost of obtaining health insurance for her partner.  However, Aiken subsequently rescinded her directive to the court’s  clerk to pay out the money in March 2013, “because no legal method for reimbursement is currently available and the law affords Fonberg no remedy in this matter.”

Fonberg’s appeal to the Executive Committee came before three judges:  Chief Circuit Judge Alex Kozinski, Circuit Judge Richard R. Clifton, and Chief District Judge Ralph Beistline of the U.S. District Court in Alaska (which is part of the 9th Circuit).  The Committee’s ruling points out that Oregon’s domestic partnership statute claims to “confer upon same-sex domestic partners the same rights and legal status as those conferred on married couples.  In practice, however, it does not.  Domestic partners are denied benefits from the federal government that are granted to married couples (including same-sex couples).  OPM’s position here demonstrates that fact.”

The Committee found that Fonberg was suffering discrimination in two ways.  First, she and her partner “are treated differently from opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law.  This is plainly discrimination based on sexual orientation, which the District of Oregon’s EDR Plan prohibits.”  Second, Fonberg and her partner are treated unequally with “same-sex couples in other states in the [9th] Circuit, who may marry and thus gain benefits” under the Windsor ruling.  “This violates the principle that federal employees must not be treated unequally in the entitlements and benefits of federal employment based on the vagaries of state law.”  Same-sex couples have the right to marry now in California and Washington State, and Hawaii’s marriage equality law will go into effect within weeks.  The 9th Circuit is currently considering an appeal in a marriage equality case from Nevada.

The panel concluded that denying the benefits in this case “amounts to discrimination 0n the basis of sex under the District of Oregon’s EDR Plan and, under Windsor, constitutes a deprivation of due process and equal protection.”

Although this is an internal administrative ruling rather than an official judicial opinion by the 9th Circuit, it is a landmark as the first published opinion by sitting federal judges to hold that the OPM’s distinction between same-sex marriages and same-sex state-recognized domestic partnerships or civil unions for purposes of federal employee benefits is unconstitutional.   The Committee has administrative authority to order the court clerk to make a payment to Fonberg, whose clerkship ended early this year, to reimburse her for the expense incurred in obtaining insurance for her domestic partner, but it does not have jurisdiction to issue any kind of order to OPM, as the prior controversy in the Karen Golinski case made clear.  However, LGBT rights advocates may use this ruling to argue that OPM should change its non-recognition policy for domestic partnerships and civil unions as a logical extension of the Supreme Court’s ruling in U.S. v. Windsor.

The issue may eventually become moot for federal employees in Oregon, however, as a petition drive is underway for a ballot initiative to repeal Oregon’s anti-marriage amendment and institute a marriage equality policy for the state.  In the meantime, of course, Oregonians can go next door to California or Washington to marry, and OPM will recognize their marriages for benefits purposes.

Chris Geidner of BuzzFeed was the first reporter to bring the 9th Circuit panel’s ruling to light and report on it on-line.

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