F OR P UBLICATION

JUDICIAL COUNCIL OF THE NINTH CIRCUIT

EXECUTIVE COMMITTEE

I N THE MATTER OF MARGARET F ONB ERG EDR No. 13-002 ORDER

F iled November 25, 2013

B efore: Alex Koz inski, Chief J udg e, Richard R. Clifton, Circuit J udg e, B eistline, Chief District J udg e

. *

SUMMARY * *

Em ploym ent Discrim ination

The Ex ecu t i v e Committee of the Ninth Circuit J udicial Council o v e r

t u r n e d t he chief district judg e’s amended opinion and o rder rescinding the back pay remedy provided to a former D i s t rict of Oreg on employ ee w ho complained o f

* Un d er Ch ap ter IX, Sectio n 11 o f t h e District o f Oreg o n ’ s Em p lo y m en t Disp u te Reso lu tio n P lan

, “[a] p arty o r in div id u al ag g riev ed by a f in al d ecisio n o f th e ch ief j u dg e

. . . m ay petitio n f o r rev iew o f th at d ecisio n ”
to th e m em

b ers of “ th e Ex ecu tiv e Co m m i ttee o f th e Nin th Circu it J u d icial Co u n cil o r th eir d esig n ees.”

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.I N R E F O N B E R

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workplace discrimination pursuant to the District of O r eg o n’s Employ ment Dispute Resolution Plan.

The Ex ecutive Committee h eld tha t the United States Office of Personnel Manag ement’s denial of health ben e fits for the employ ee’s same-s ex d omestic partner violated the Dis t r i c t’s EDR Plan and constituted a deprivation of d ue process and equal protectio n because the employ ee and her partner were treated differently f rom similarly -situated couples o n a ccount of their sex or sex ual orientation. The Ex ecutive Committee held that the employ ee a nd her partner

were treated d ifferently from opposite-sex partners w ho a re allowed to marry and t h e r eby g ain spousal benefits under federal law. They also were treated unequally vis-à-vis samesex couples in other states in the circuit, who may marry a nd thus g ain benefits u nder United S tates v. W indsor

, 1 33 S. Ct. 2675 (2013) (holding unconstituti o nal federal Defense o f Marriag e A ct d efining marriag e as a l e ga l union b etween a man and a woman).

The Ex ecutive Commi t t ee overturned the chief district judg e’s amended opinion and order and reinstated her earlier opinion and order g ranting relief. The Ex ecutive Committee directed the Clerk of Court of the D istrict of Oreg on to reimburse the employ ee for back pay plus interest.I N R E F O N B E R

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ORDER

Marg aret F onberg

, a female f o rmer employ ee of the District of O r eg on, 1 has complained of workplace discriminatio n and filed a Petition for Review in an employ ment dispute under the D istrict of O r eg o n’s Employ ment Dispute Resolution (EDR) Plan. 2

F onberg seeks relief from Chie f J u d g e Ann Aiken’s March 6, 2013 Amended O pinion and O rde r r escinding the remedy provided to her in this m a tter. Specifically

, she requests back pay for the period she soug ht, but was denied, health benefits for her domestic p artner during her employ ment with the district court.

F onberg and her same-sex partner are reg istered under the Oreg on F amily F airness Act, Or. R e v

. S tat. ch. 106, a s domestic partners. 3 Under Oreg on law, domestic partnership confers r igh t s “on equivalent terms, substantive a nd procedural,” to marriag e. Or. Rev. Stat. § 106.340(1).

1 Fo n berg serv ed as a law clerk in th e District o f Oreg o n f ro m May 2 0 0 9
to May 1 8 , 2 0 1 3

.

2 T h e District o f Oreg o n ’ s EDR Plan in co rp o rates claim s arisin g u n der th e D i s t r ict o f Oreg o n ’ s Eq u al Op p o rtu n ity Em p lo y m en t an d No n

Discrim in atio n (EEO) P lan

, w h i ch p ro h ib its discrim in atio n b ased o n sex

. In 2 0 1 2, af

ter Fo n b erg f iled h er co m

p lain t alleg in g d iscrim in atio n b ased

o n sex , t h e District o f O r eg o n am en d ed its EDR P lan to in clu d e sex u al

o rien tatio n

as a p ro tected categ o ry

.

3 Fo n b erg an d h er p artn er are n o t m arried in t h e State of

Oreg o n . T h e Oreg o n C o n s t i tu t io n l im its m arriag e to o n e m an an d o n e w o m an

. Or. Co n st. A rt. XV, § 5 a. T h e reco rd d o es n o t in d icate th at Fo n b erg an d h er p artn er are m arried in an y o th er j u risd ictio n

.I N R E F O N B E R

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I n 2009, during the annual open enrollment b e n e fits period, F onberg attempted to enrol l h e r domestic partner in h er employ er-offered f

a mily health plan. The United Sta t e s Office of Personnel Manag ement (OPM) denied her request. I n Aug ust 2010, after counseling a n d m e diation of her employ ment dispute cla i m w a s u

n s u c cessful, F o nberg filed an EDR Complaint, alleg ing discrimination on the basis o f h er

sex

.

I n a J u ly 8
, 2011 Opinion and Order, Chief J udg e Aiken held that the denial of health benefits to F onberg ’ s partner on the basis of h er sex violated t h e D i strict’s EDR Plan a nd ordered the District to “provide F onberg a reimbursement allowance for the cost of p roviding F onberg ’ s p ar t ner with health insurance coverag e comparable to that offered spouses of other similarly -situated judicial employ ees.” Chief J udg e Aiken also a

warded F onberg retroactive relief for past health insurance coverag e c osts for her par t n e r from J a nuary 4, 2010.

Thereafter, o n March 6, 2013, Chief J ud ge Aiken rescinded her directive to the Clerk to reimburse F onberg “[ b] ecause no leg al method for reimburseme n t is currently available

. . . [ and] the law affords F onberg n o remedy in this matter.” Chief J u d g e Aiken further ruled that, because F onberg and her partner are n ot married, there w as no authority within the Ninth Circuit to permit h e r t o o rder reimbursement of the cost of h e alth benefits for F onberg ’s domestic partner.

The question here is w heth e r OPM’s decision to deny benefits to Fo n berg a

nd her same-sex domestic partner violates the District of O r eg on’s EDR Plan. That is, wereI N R E F O N B E R

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F onberg a

nd h er partner treated diffe r ently from similarly

situated couples because of their sex or sex ual orientation?

OPM has taken the positio n t h a t employ ees in same-sex rel a t ionships such as “a civil union or other forms o f domestic partnership other than marriag e ” are not entitled to federal h ealth insurance benefits for their partners. O ffice o f Personnel Manag ement B e n e f its Administration L etter No. 13-203 (J uly 17, 2013). OPM r elies o n the recent Supreme Court d ecision in United S tates v. W

indsor

, 133 S.Ct. 2675 (2 0 13), r e asoning that the Supreme Court only held that married same-sex c ouples are protected b y the Constitution. 4 OPM B enefits Administration L etter No. 13-203 at 2.

Oreg on’s statutory scheme purports to confer upon samesex domestic partners the same rig h ts and leg al status as those

c o n f e rred o n married c ouples. I n practice, however, it d o e s not. Domestic partners are denied benefits from the f e d eral
g overnment that are g ranted to married couples (including

same-sex c ouples). OPM’s p osition here demonstrates that fact. Cf. G arden State Equality v. Dow
, 2013 W L 5 6 8 7 193
at *3 (N.J

. Sup. Ct. October 18, 2013) (“ [ I ] n the wake o f W indsor

, civil-union partners a re being denied equal access t o federal benefits because o f the label placed on the i r relationship.”).

F onberg a

nd her partner are treated differently in two

wa y s

. F irst, they are treated differently from opposite-sex partners who are allowed to m a r ry and thereby g ain spousal

4 W in d so r h eld th at a f

ed eral statu te d ef

in in g m arriag e as a l eg al u n io n b etw een a m an an d a w o m an w as u n co n stitu tio n al b ecau se it d en ied s am esex ma rried co u

p les “ t h e b en ef its an d resp o n sib i lities t

h at co m e w ith th e f ed eral reco g n itio n

o f th eir m arriag es.” Id . at 2 6 9 3

.I N R E F O N B E R

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benefits under federal law. This is p lainly discrimination based o n sex ual orientation, which the District of O r eg o n’s EDR Plan prohibits. They a r e a lso treated unequally vis-à-vis

same-sex couples in other states in the circuit, w ho may marry and thus g ain benefits under W indsor

. This v io lates the p rinciple that federal employ ees must not be treated

u n e qually in the e ntitlements and benefits of federa l employ ment based on the v a g aries of state law. Here, O reg on law suffers from p recisely the same deficiency t h a t t he S u p r eme Court identified in W indsor with respect to t h e Defense of Marriag e Act. B oth these forms of discrimination are prohibited under the Oreg on EDR Plan.

The dist inction drawn by O PM based on the sex o f the participants in the union amounts to discri mination on the basis of sex u nder the District o f O r e g on’s EDR Plan and, under W indsor

, constitutes a d e p rivation of due p r o c e ss a nd equal protection.

F o r these reasons, w e overturn Chief J udg e Aiken’s March 6, 2013 Amended Opinion and Order and reinstate her J uly 8, 2011 O pinion and Order g ranting relief. W e direct the Clerk of Court of the District of Oreg on to reimburse F onberg for back pay in the amount o f $ 6
, 1 9 0.90 plus interest to be

c a l c u l a ted in accordance w ith the B a ck Pay Act, 5 U .S.C. § 5596(b)(2).

I ssued this 25th day

of November 2013.