Clerk Denied Benefits for Same-Sex Partner Awarded Back Pay by Ninth Circuit Council

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By Anne A. Marchessault

Nov. 26 --Denying health benefits for a former law clerk's same-sex domestic partner violated the U.S. District Court for the District of Oregon's Employment Dispute Resolution Plan and the U.S. Constitution, a committee of judges in the U.S. Court of Appeals for the Ninth Circuit decided Nov. 25 (In re Fonberg, 9th Cir., No. 13-002, 11/25/13).

The Office of Personnel Management denied Margaret Fonberg's request to enroll her same-sex domestic partner in her health insurance plan, based on its position that the U.S. Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013) , should be read to exclude federal spousal benefits from forms of same-sex relationships other than marriage.

“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,” Judges Alex Kozinski, Richard R. Clifton and Ralph R. Beistline said.

Overturning Judge Ann Aiken's amended opinion and order rescinding Fonberg's back pay award, the Executive Committee of the Ninth Circuit Judicial Council ordered the court clerk to reimburse Fonberg $6,190.90 in back pay, plus interest. 

OPM Omits Same-Sex Partnerships From Scope

Fonberg served as a law clerk in the U.S. District Court for the District of Oregon from May 2009 to May 2013.

She and her same-sex partner are registered domestic partners under the Oregon Family Fairness Act (Or. Rev. Stat. § 106.340(l)). Section 106.340(l) confers rights to domestic partnerships “on equivalent terms, substantive and procedural,” to marriage.

The Oregon Constitution limits marriage to one man and one woman.

In 2009, Fonberg attempted to enroll her domestic partner in her family health plan offered by the district court. The OPM denied her request, based on agency guidance interpreting Windsor to apply only to provide same-sex married couples the benefits associated with federally recognized marriages.

In OPM Benefits Administration Letter No. 13-203 (July 17, 2013), the agency took 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.

In August 2010, Fonberg filed a sex discrimination complaint under the EDR Plan.

The EDR Plan incorporates claims arising under the district court's Equal Employment Opportunity and Non-Discrimination Plan, prohibiting discrimination on the basis of sex. After Fonberg filed her sex discrimination complaint, the district court amended its EDR Plan to prohibit discrimination on the basis of sexual orientation. 

Judge Changed Mind on Reimbursement

On July 8, 2011, Aiken held that denying benefits to Fonberg's partner on the basis of her sex violated the EDR Plan.

Aiken 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,” and to award Fonberg retroactive relief for past health insurance coverage costs for her partner, beginning Jan. 4, 2010.

On March 6, 2013, Aiken rescinded her original order because she said “the law affords Fonberg no remedy in this matter.”

Aiken added that there was no authority within the Ninth Circuit to permit her to order reimbursement of the cost of health benefits for an employee who is not married to his or her partner.

Fonberg petitioned the committee for relief from Aiken's amended opinion and order, seeking back pay for the period during which she worked for the district court but was denied requested health benefits for her domestic partner. 

'Plainly' Sexual Orientation Discrimination

The committee ruled that OPM's denial of Fonberg's request for health benefits for her same-sex domestic partner violated the district's EDR Plan.

“Oregon's statutory scheme purports to confer upon same-sex domestic partners the same rights and legal status as those conferred on married couples,” the committee said in reference to Section 106.340(l). “In practice, however, it does not.”

The committee found that Fonberg and her same-sex domestic partner were treated differently from opposite-sex couples who are allowed to marry under Oregon state law and obtain federal spousal benefits.

“This is plainly discrimination based on sexual orientation, which the District of Oregon's EDR Plan prohibits,” the court concluded. 

Unequal Entitlement to Employment Benefits

Denying health benefits for Fonberg's same-sex domestic partner also constituted a deprivation of her due process and equal protection rights under the U.S. Constitution, the committee decided.

Fonberg and her partner were treated differently from similarly-situated opposite-sex couples on account of both their sex and sexual orientation, the committee said, noting that same-sex couples in other states in the Ninth Circuit may marry and obtain federal 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,” the committee said.

“Here,” the committee continued, “Oregon law suffers from precisely the same deficiency that the Supreme Court identified in Windsor with respect to the Defense of Marriage Act.”

To contact the reporter on this story: Anne A. Marchessault in Washington at  

To contact the editor responsible for this story: Susan J. McGolrick at

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