Federal Court Rejects Damage Claim for Pre-Windsor Benefits Denial as Time-Barred

U.S. District Judge Colleen Kollar-Kotelly has rejected an attempt by a former federal government employee to win compensation from the government for its refusal to add his same-sex spouse to his insurance plan from 2004 until 2013.  Horvath v. Dodaro, 2015 WL 7566665 (D.D.C., Nov. 24, 2015).

Edward Horvath married Richard Neidich in Massachusetts on June 23, 2004, shortly after the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), went into effect, making Massachusetts the first and only state in which same-sex marriages could take place.  At the time, Horvath was employed by the Government Accountability Office (GAO) and sought to add Neidich to the employee health benefits plan, but was turned down pursuant to Section 3 of the Defense of Marriage Act, which prohibited federal recognition of his marriage. (Horvath retired from the GAO in 2014.)

Horvath pursued administrative remedies after the turndown, but did not take the case all the way through the administrative process, dropping his internal appeals in 2006 and never taking them to court, persuaded that success was unlikely in that forum.  After U.S. v. Windsor, 133 S. Ct. 2675 (2013), federal policy changed and Horvath was able to add Neidich to the plan, but only prospectively.  At the same time, he sought compensation for the prior refusal to add Neidich, reasoning that if it was unconstitutional for the federal government to refuse to recognize the marriage, it should have added Neidich to the plan back in 2004.

When his request was denied, he filed a complaint with the GAO’s Office of Opportunity, but that office rejected the complaint, explaining that the rule change implemented after Windsor “did not approve benefits prior to the June 26th date.”

Judge Kollar-Kotelly found that Horvath’s claim for compensation for the pre-Windsor period is time-barred, agreeing with defendants that the subsequent decisions in Windsor and Obergefell “do not revive Plaintiff’s time-barred claim under the Federal Employee Health Benefits Act. . .  Moreover, even if equitable tolling were available, Plaintiff’s failure to bring suit within the six-year statute of limitations because of his assessment that the odds of success in court were minimal would not be ‘extraordinary circumstances’ sufficient to justify equitable tolling,” she wrote.

She also found that any attempt to assert the damage claim on a constitutional theory would similarly be time-barred and would confront sovereign immunity problems.  Horvath’s attempt to assert a Title VII claim was found barred as well, the court finding that Horvath had not exhausted administrative remedies as required by that statute.

The judge explained that she did not reach the merits of the underlying claims due to the time-bar and exhaustion issues with respect to each of Horvath’s causes of action.

Readers may recall that soon after Windsor was decided, LGBT organizations advised the public to get claims and charges on file immediately in order to preserve claims, but cautioned about the likelihood of procedural difficulties with respect to claims going back more than six years due to the statute of limitations.  The advice is vindicated in this case, although Horvath might seek review of the court’s conclusion that there are no “exceptional circumstances” here justifying equitable tolling.  After all, Windsor and Obergefell were epochal decisions that totally changed the legal universe for same-sex couples in the United States, and even the most optimistic LGBT advocates were not predicting such a relatively speedy federal victory for same-sex marriage recognition back in the early years of the 21st century when Horvath and Neidich were married in the only jurisdiction in the U.S. that then allowed same-sex marriages. Might the D.C. Circuit view an equitable tolling argument with more favor?  And why would the Obama Administration fight it in light of their position before the Supreme Court that DOMA was unconstitutional and indefensible?

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