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In re Fonberg

Judicial Council of the Ninth Circuit.

November 25, 2013

In the Matter of Margaret FONBERG.

Before: ALEX KOZINSKI, Chief Judge, RICHARD R. CLIFTON, Circuit Judge, BEISTLINE, Chief District Judge.[*]


Margaret Fonberg, a female former employee of the District of Oregon, [1] has complained of workplace discrimination and filed a Petition for Review in an employment dispute under the District of Oregon's Employment Dispute Resolution (EDR) Plan.[2]

Fonberg seeks relief from Chief Judge Ann Aiken's March 6, 2013 Amended Opinion and Order rescinding the remedy provided to her in this matter. Specifically, she requests back pay for the period she sought, but was denied, health benefits for her domestic partner during her employment with the district court.

Fonberg and her same-sex partner are registered under the Oregon Family Fairness Act, Or.Rev.Stat. ch. 106, as domestic partners.[3] Under Oregon law, domestic

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partnership confers rights " on equivalent terms, substantive and procedural," to marriage. Or.Rev.Stat. § 106.340(1).

In 2009, during the annual open enrollment benefits period, Fonberg attempted to enroll her domestic partner in her employer-offered family health plan. The United States Office of Personnel Management (OPM) denied her request. In August 2010, after counseling and mediation of her employment dispute claim was unsuccessful, Fonberg filed an EDR Complaint, alleging discrimination on the basis of her sex.

In a July 8, 2011 Opinion and Order, Chief Judge Aiken held that the denial of health benefits to Fonberg's partner on the basis of her sex violated the District's EDR Plan and ordered the District to " provide Fonberg a reimbursement allowance for the cost of providing Fonberg's partner with health insurance coverage comparable to that offered spouses of other similarly-situated judicial employees." Chief Judge Aiken also awarded Fonberg retroactive relief for past health insurance coverage costs for her partner from January 4, 2010.

Thereafter, on March 6, 2013, Chief Judge Aiken rescinded her directive to the Clerk to reimburse Fonberg " [b]ecause no legal method for reimbursement is currently available ... [and] the law affords Fonberg no remedy in this matter." Chief Judge Aiken further ruled that, because Fonberg and her partner are not married, there was no authority within the Ninth Circuit to permit her to order reimbursement of the cost of health benefits for Fonberg's domestic partner.

The question here is whether OPM's decision to deny benefits to Fonberg and her same-sex domestic partner violates the District of Oregon's EDR Plan. That is, were Fonberg and her partner treated differently from similarly-situated couples because of their sex or sexual orientation?

OPM has taken the position that employees in same-sex relationships such as " a civil union or other forms of domestic partnership other than marriage" are not entitled to federal health insurance benefits for their partners. Office of Personnel Management Benefits Administration Letter No. 13-203 (July 17, 2013). OPM relies on the recent Supreme Court decision in United States v. Windsor, --- U.S. ----, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), reasoning that the Supreme Court only held that married same-sex couples are protected by the Constitution.[4] OPM Benefits Administration Letter No. 13-203 at 2.

Oregon's statutory scheme purports 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. Cf. Garden State Equality v. Dow, 216 N.J. 314, at 319, 79 A.3d 1036, at 1038, 2013 WL 5687193 at *3 (N.J.Sup.Ct. October 18, 2013) (" [I]n the wake of Windsor, civil-union partners are being denied equal access to federal benefits because of the label placed on their relationship." ).

Fonberg and her partner are treated differently in two ways. First, they are

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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. They are also treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor. 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. Here, Oregon law suffers from precisely the same deficiency that the Supreme Court identified in Windsor with respect to the Defense of Marriage Act. Both these forms of discrimination are prohibited under the Oregon EDR Plan.

The distinction drawn by OPM based on the sex of the participants in the union amounts to discrimination on the basis of sex under the District of Oregon's EDR Plan and, under Windsor, constitutes a deprivation of due process and equal protection.

For these reasons, we overturn Chief Judge Aiken's March 6, 2013 Amended Opinion and Order and reinstate her July 8, 2011 Opinion and Order granting relief. We direct the Clerk of Court of the District of Oregon to reimburse Fonberg for back pay in the amount of $6,190.90 plus interest to be calculated in accordance with the Back Pay Act, 5 U.S.C. § 5596(b)(2).

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