FOR PUBLICATION

JUDICIAL COUNCIL OF THE NINTH CIRCUIT

EXECUTIVE COMMITTEE

IN THE MATTER OF

MARGARET FONBERG

EDR No. 13-002

ORDER

Filed November 25, 2013

Before: Alex Kozinski, Chief Judge, Richard R. Clifton,

Circuit Judge, Beistline, Chief District Judge.

*

SUMMARY**

Employment Discrimination

The Executive Committee of the Ninth Circuit Judicial

Council overturned the chief district judge’s amended opinion

and order rescinding the back pay remedy provided to a

former District of Oregon employee who complained of

* Under Chapter IX, Section 11 of the District of Oregon’s Employment

Dispute Resolution Plan, “[a] party or individual aggrieved by a final

decision of the chief judge . . . may petition for review of that decision”

to the members of “the Executive Committee of the Ninth Circuit Judicial

Council or their designees.”

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
2 IN RE FONBERG

workplace discrimination pursuant to the District of Oregon’s

Employment Dispute Resolution Plan.

The Executive Committee held that the United States

Office of Personnel Management’s denial of health benefits

for the employee’s same-sex domestic partner violated the

District’s EDR Plan and constituted a deprivation of due

process and equal protection because the employee and her

partner were treated differently from similarly-situated

couples on account of their sex or sexual orientation. The

Executive Committee held that the employee and her partner

were treated differently from opposite-sex partners who are

allowed to marry and thereby gain spousal benefits under

federal law. They also were treated unequally vis-à-vis samesex couples in other states in the circuit, who may marry and

thus gain benefits under United States v. Windsor, 133 S. Ct.

2675 (2013) (holding unconstitutional federal Defense of

Marriage Act defining marriage as a legal union between a

man and a woman).

The Executive Committee overturned the chief district

judge’s amended opinion and order and reinstated her earlier

opinion and order granting relief. The Executive Committee

directed the Clerk of Court of the District of Oregon to

reimburse the employee for back pay plus interest.
IN RE FONBERG 3

ORDER

Margaret Fonberg, a female former employee of the

District of Oregon,1has 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 partnership

confers rights “on equivalent terms, substantive and

procedural,” to marriage. Or. Rev. Stat. § 106.340(1).

1 Fonberg served as a law clerk in the District of Oregon from May 2009

to May 18, 2013.

 

2 The District of Oregon’s EDR Plan incorporates claims arising under

the District of Oregon’s Equal Opportunity Employment and NonDiscrimination (EEO) Plan, which prohibits discrimination based on sex. 

In 2012, after Fonberg filed her complaint alleging discrimination based

on sex, the District of Oregon amended its EDR Plan to include sexual

orientation as a protected category.

 

3 Fonberg and her partner are not married in the State of Oregon. The

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

Const. Art. XV, § 5a. The record does not indicate that Fonberg and her

partner are married in any other jurisdiction.
4 IN RE FONBERG

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 claimwas 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
IN RE FONBERG 5

Fonberg and her partner treated differently from similarlysituated 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, 133 S.Ct. 2675

(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 samesex 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, 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 treated differently from opposite-sex

partners who are allowed to marry and thereby gain spousal

 

4 Windsor held that a federal statute defining marriage as a legal union

between a man and a woman was unconstitutional because it denied samesex married couples “the benefits and responsibilities that come with the

federal recognition of their marriages.” Id. at 2693.
6 IN RE FONBERG

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).

Issued this 25th day of November 2013.