FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN THE MATTER OF BRAD LEVENSON  No. 09-80172 

ORDER 

Filed November 18, 2009

ORDER

Overview

Brad Levenson, a deputy federal public defender in the

Office of the Federal Public Defender for the Central District

of California (“FPD”), is legally married, under California

law, to Tony Sears. Nevertheless, Levenson has not been permitted to enroll Sears as a family member beneficiary of his

federal health, dental, and vision benefits (hereinafter “federal

benefits”) because both spouses are of the same sex. In a previous order, I determined that the denial of benefits on this

ground violates the Ninth Circuit’s Employment Dispute Resolution Plan for Federal Public Defenders and Staff (“EDR

Plan”), which expressly prohibits discrimination on the basis

of sex and sexual orientation. I also determined for similar

reasons that the denial of benefits violates the United States

Constitution. As a further remedy for those violations, Levenson now requests an order directing the FPD to enter into separate contracts with private insurers in order to provide Sears

with benefits comparable to those provided in the existing

federal plans, or alternatively, a monetary award pursuant to

the Back Pay Act. For the reasons set forth below, I have

determined that an order directing the FPD to enter into separate health insurance contracts would not be a “necessary and

appropriate” remedy within the scope of the EDR Plan. A

15541
back pay award, however, would be appropriate under the circumstances. Accordingly, I grant Levenson’s alternative

request for a monetary award, and remand the matter to the

FPD to determine the actual amount to be awarded.

Facts

Brad Levenson has been a deputy federal public defender

in the FPD since July 11, 2005. He and Tony Sears have been

partners for 15 years. They registered their domestic partnership on March 16, 2000, and were married in California on

July 12, 2008, at a time when under the law in that state persons could marry individuals of the same sex. On July 15,

2008, Levenson requested that his husband be added as a family member beneficiary of his federal benefits.1

 That request

was denied on the basis that the provision of benefits to samesex spouses is prohibited by the federal Defense of Marriage

Act (“DOMA”), 1 U.S.C. § 7. Levenson challenged that

denial as a violation of his rights under the EDR Plan and the

Constitution.

The EDR Plan provides for the only forum in which Levenson can bring a claim of employment discrimination. The Plan

was adopted by the Ninth Circuit Judicial Council “to provide

rights and protections to employees of the Federal Public

Defender Offices . . . which are comparable to those provided

to legislative branch employees under the Congressional

Accountability Act of 1995.”

2

 EDR Plan at A-1. The Plan pro1FPD employees and their family members have the right to these benefits pursuant to the Federal Employee Health Benefits Act, 5 U.S.C.

§§ 8901-8914 (“FEHBA”), and FEDVIP, the federal employee dental and

vision insurance program, see 5 U.S.C. §§ 8951-62, 8981-92; 5 C.F.R.

§§ 894.101 et seq. Before Levenson joined the FPD, he was employed in

the California Attorney General’s Office, which provided Sears with full

medical, dental, and vision benefits. Since Levenson joined the FPD, he

and Sears have paid the full cost of Sears’s health insurance premiums and

his dental and vision care. 

2The Congressional Accountability Act of 1995 “extended to [Congress’s] employees the protections of eleven labor laws generally applica15542 IN THE MATTER OF LEVENSON
hibits discrimination on numerous grounds, including both

sex and sexual orientation, id. at A-2, and establishes a grievance procedure for presenting claims of discrimination, id. at

A-4-A-14.

As required by the EDR Plan, see id. at A-6-A-9, Levenson

requested counseling, which failed, and mediation, which also

failed. He then filed the pending complaint. Id. at A-10. In my

role as Chair of the Ninth Circuit’s Standing Committee on

Federal Public Defenders at the time of the complaint’s filing,

and presently as designee of the current Chair of the Standing

Committee, I am charged with hearing and ruling upon

Levenson’s complaint and fashioning a “necessary and appropriate” remedy. Id. at A-10, A-13.

In my previous order, I ruled that the denial of benefits to

Levenson’s spouse violated the anti-discrimination provisions

of the EDR Plan as well as the Due Process Clause of the

Fifth Amendment. I directed the Director of the Administrative Office of the United States Courts (“AO”) to submit

Levenson’s Health Benefits Election form 2809 to the appropriate health insurance carrier, and to process his request for

FEDVIP coverage. I retained jurisdiction over this matter in

order to ensure that Levenson’s spouse receives the benefits

to which he is entitled.

Although the AO complied with my previous order, Levenson’s spouse has not yet received coverage under the federal

benefits plans because the Office of Personnel Management

ble to other public and private employees, including the protections

against discrimination provided in Title VII . . . .” Dotson v. Griesa, 398

F.3d 156, 173 (2d Cir. 2005). “In enacting the CAA, Congress initially

considered extending the statute’s coverage to employees of the judicial

branch but, mindful of the importance of judicial autonomy, ultimately

decided against such action.” Id. Thus, the EDR Plan, rather than Title VII

or any other federal labor law, provides Levenson’s exclusive remedy for

his claim of employment discrimination. 

IN THE MATTER OF LEVENSON 15543
(“OPM”) intervened to prevent his enrollment. Levenson does

not request that I take any action against OPM for its role in

the ongoing unconstitutional denial of federal benefits for his

spouse. Rather, he requests that I enter an order directing the

FPD to contract with private insurance companies to obtain

separate coverage for his spouse, or alternatively, that I issue

a monetary award pursuant to the Back Pay Act.

Analysis

Under the EDR Plan, I have the authority to order a “necessary and appropriate remedy” for the violation of a substantive right protected by the Plan. EDR Plan at A-13. The

remedy may be retrospective, prospective, or both, and must

be “tailored as closely as possible to the specific violation

involved.” Id. It would be consistent with this grant of equitable authority to consider Levenson’s views as to how best to

make him whole, and if possible, to award one of the remedies he has requested. Whether either of the two proposed

alternatives is both appropriate and closely tailored depends,

in turn, on the specific nature of the violation. Accordingly,

I begin by examining the nature of the discrimination Levenson has experienced and the statutory framework within

which that violation has occurred.

I. Substantive rights violated by the denial of spousal

benefits

As I stated in my previous order, the denial of Levenson’s

request that Sears be made a beneficiary of his federal benefits violated the EDR Plan’s prohibition on discrimination

based on sex or sexual orientation. Levenson was unable to

make his spouse a beneficiary of his federal benefits due

solely to his spouse’s sex. If Sears were female, or if Levenson himself were female, Levenson would be able to add

Sears as a beneficiary. Thus, the denial of benefits at issue

here was sex-based and constitutes a violation of the EDR

Plan’s prohibition of sex discrimination. Alternatively, the

15544 IN THE MATTER OF LEVENSON
denial of benefits constitutes discrimination on the basis of

sexual orientation. As the California Supreme Court recently

explained, the differential treatment of opposite-sex and

same-sex couples

cannot be understood as having merely a disparate

impact on gay persons, but instead properly must be

viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By

limiting [benefits] to opposite-sex couples, the [ ]

statutes, realistically viewed, operate clearly and

directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually

attracted to persons of the same sex and thus, if

inclined to enter into a marriage relationship, would

choose to marry a person of their own sex or gender.

A statute that limits [benefits] to a union of persons

of opposite sexes, thereby placing [those benefits]

outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of

sexual orientation. In our view, it is sophistic to suggest that this conclusion is avoidable by reason of

the circumstance that the marriage statutes permit a

gay man or a lesbian to marry someone of the opposite sex, because making such a choice would

require the negation of the person’s sexual orientation.

In re Marriage Cases, 43 Cal. 4th 757, 839-40 (2008).3

3Following issuance of the decision in In re Marriage Cases, the voters

of California adopted by a narrow margin an initiative measure adding to

the California Constitution a provision prohibiting same-sex marriage. See

Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009). The California Supreme

Court upheld the enactment of that change by a simple majority of those

voting on the statewide initiative, notwithstanding the claim that such a

change constituted a revision of the California Constitution, which under

IN THE MATTER OF LEVENSON 15545
Because the EDR Plan prohibits discrimination based on

both sex and sexual orientation, it is not necessary to determine which form of discrimination is at issue in the present

proceeding in order to find a violation of the EDR Plan.

Regardless of whether Levenson experienced discrimination

due to his sex or due to his sexual orientation, the denial of

benefits violated the EDR Plan.

The denial of federal benefits originally occurred because

the Office of the Circuit Executive concluded that DOMA, as

applied to the statutes governing health benefits for federal

employees, precluded an award of federal benefits to Levenson’s spouse. Federal employees, including employees of the

FPD, receive health benefits pursuant to the FEHBA. The

FEHBA permits federal employees to elect coverage “either

as an individual or for self and family,” 5 U.S.C. § 8905(a),

and defines “member of family” as “the spouse of an

employee or annuitant” or “an unmarried dependent child

under 22 years of age . . . .” 5 U.S.C. § 8901(5). FEDVIP likewise defines “family member” as “a spouse . . . and/or unmarried dependent child(ren).”

4

 5 C.F.R. § 894.101. DOMA

operates as a limitation on these definitions by providing that,

California law required the use of a different electoral process. Id. at 60,

63-64. The plaintiffs in that proceeding did not raise the question whether

the ban on same-sex marriage violated the Federal Constitution. 

Although the California Supreme Court held that allowing the initiative

to have prospective effect was consistent with the state Constitution, the

court also concluded that “the marriages of same-sex couples performed

prior to the effective date of [the ballot measure] remain valid and must

continue to be recognized in this state.” Id. at 64. Because Levenson and

Sears were married before the measure was adopted, their marriage

remains valid under California law. 

4The statutes that establish FEDVIP incorporate the definition of family

member in the FEHBA, 5 U.S.C. §§ 8951, 8981, and have the same structure as the FEHBA. For the sake of simplicity, I will conduct the subsequent discussion solely in terms of the FEHBA. However, the arguments

apply in full to both the FEHBA and FEDVIP. 

15546 IN THE MATTER OF LEVENSON
“[i]n determining the meaning of any Act of Congress, or of

any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word

‘marriage’ means only a legal union between one man and

one woman as husband and wife, and the word ‘spouse’ refers

only to a person of the opposite sex who is a husband or a

wife.” 1 U.S.C. § 7. Accordingly, when the FEHBA and FEDVIP provisions defining family members are read in light of

the limitation imposed by DOMA, those provisions include

only opposite-sex spouses.

As I concluded in my previous order, the application of

DOMA to FEHBA so as to deny Levenson’s request that his

same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth Amendment. In reaching that conclusion, I believe it likely that some form of heightened

constitutional scrutiny applies to Levenson’s claims. See, e.g.,

Witt v. Dep’t of Air Force, 527 F.3d 806, 818-21 (9th Cir.

2008) (applying heightened scrutiny on an “as applied” basis

to a discharged service member’s challenge to the military’s

“Don’t Ask, Don’t Tell” policy); id. at 823-26 (Canby, J.,

concurring in part and dissenting in part) (arguing that discrimination based on sexual orientation is subject to strict

scrutiny); see also Baehr v. Lewin, 852 P.2d 44, 67, 68 (Haw.

1993) (finding distinction between opposite-sex couples and

same-sex couples to be a sex-based classification subject to

heightened scrutiny). However, the denial of benefits here

cannot survive even rational basis review, the least searching

form of constitutional scrutiny. Accordingly, it is not necessary to determine whether or which form of heightened scrutiny is applicable to this claim. Because there is no rational

basis for denying benefits to the same-sex spouses of FPD

employees while granting them to the opposite-sex spouses of

FPD employees, I conclude that the application of DOMA to

the FEHBA so as to reach that result is unconstitutional. 

Any government action resting on a distinction between

discrete classes “must be rationally related to a legitimate

IN THE MATTER OF LEVENSON 15547
governmental purpose.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 446 (1985). Under this standard, “[t]he

State may not rely on a classification whose relationship to an

asserted goal is so attenuated as to render the distinction arbitrary or irrational. Furthermore, some objectives — such as a

bare desire to harm a politically unpopular group — are not

legitimate state interests.” Id. at 446-47 (citations omitted).

Applying this standard to the present case, the challenged

denial of benefits is constitutional only if there is a rational

basis for the government to provide FEHBA and FEDVIP

coverage to the opposite-sex spouses of FPD employees while

denying those benefits to the same-sex spouses of FPD

employees. No such basis exists.5

The denial of federal benefits to same-sex spouses cannot

be justified simply by a distaste for or disapproval of samesex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them

from exercising a legal right afforded them by a state. As City

of Cleburne made clear, “a bare desire to harm a politically

unpopular group” cannot provide a rational basis for governmental discrimination. Id. at 447. In Romer v. Evans, 517 U.S.

620 (1996), the Supreme Court applied that rule in the specific context of a law that discriminated against gays and lesbians and held that the state constitutional amendment at

issue, which raised “the inevitable inference that the disadvantage imposed [was] born of animosity” toward gays and

lesbians as a class, was unconstitutional. Id. at 634-36. Thus,

the denial of federal benefits to same-sex spouses cannot be

justified as an expression of the government’s disapproval of

5

I should note that marriage is a status traditionally established and regulated by state law. It is also a fundamental right. Loving v. Virginia, 388

U.S. 1, 12 (1967). Whether a state may deny such status to same-sex couples is beyond the scope of this decision. Here, I need determine only

whether same-sex spouses who have been legally married under the laws

of the relevant state may, because of the sex or sexual orientation of the

couple, be denied federal benefits that are afforded to other spouses legally

married under such laws. 

15548 IN THE MATTER OF LEVENSON
homosexuality, preference for heterosexuality, or desire to

discourage gay marriage. Romer makes clear that a simple

desire to treat gays and lesbians differently is not, in and of

itself, a proper justification for government actions. Discrimination against gays and lesbians, or same-sex couples, must,

at the very least, serve some more substantive and lawful

function.

The House report on DOMA identified three interests

advanced by the statute: “the government’s interest in defending and nurturing the institution of traditional, heterosexual

marriage;” “the government’s interest in defending traditional

notions of morality;” and “the government’s interest in preserving scarce government resources.” H.R. Rep. No. 104-

664, at *12-*18. The first interest is largely irrelevant to the

rational basis analysis here because the same-sex couple who

seek the benefits are already married. Also, gays and lesbians

will not be encouraged to enter into marriages with members

of the opposite sex by the government’s denial of benefits to

same-sex spouses, and the denial will not discourage samesex couples from entering into same-sex marriages; so, the

denial cannot be said to “nurture” or “defend” the institution

of heterosexual marriage. As to the second “interest,” if the

denial is designed to “defend” traditional notions of morality

by discouraging same-sex marriage, it does so only by punishing same-sex couples who exercise their rights under state

law, and thus exhibits the “bare desire to harm” same-sex

couples that is prohibited under City of Cleburne and Romer.

Moreover, discouraging gay marriage serves only to force gay

couples to live in a “state of sin” rather than in a lawfullyrecognized “state of connubial bliss” that encourages a longenduring permanent relationship that, in turn, serves as the

basis of a state-recognized family. Thus, rather than encouraging morality, the denial of fair and equal treatment to gay and

lesbian couples encourages immorality, at least to the extent

that it can be said to have any effect at all on decisions about

whether and whom to marry. Where, as here, the couple

involved is already married, those decisions have already

IN THE MATTER OF LEVENSON 15549
been made, and there can be no such effect. In addition, denying married same-sex spouses health coverage is far too attenuated a means of achieving the objective of “defending

traditional notions of morality,” as it also is with respect to

achieving the objective of “defending and nurturing the institution of traditional, heterosexual marriage.” More important,

Romer and Lawrence v. Texas, 539 U.S. 558 (2003), strongly

suggest that the government cannot justify discrimination

against gays and lesbians or same-sex couples based on “traditional notions of morality” alone. See Lawrence, 539 U.S.

at 571, 578 (finding criminal law barring homosexual sodomy

constitutionally invalid despite “powerful voices” that “for

centuries” have “condemn[ed] homosexual conduct as immoral”); Romer, 517 U.S. at 644 (Scalia, J., dissenting) (noting

that the Colorado constitutional amendment held unconstitutional by the majority expressed the “moral disapproval of

homosexual conduct” of Colorado’s citizens). For these reasons, neither of the first two interests identified by Congress

can provide a rational basis for the denial of benefits at issue

here.

The third interest can be disposed of quickly. The denial of

health insurance to same-sex spouses may in a comparatively

few cases relieve the government of paying its portion of a

family coverage premium. However, that a government policy

incidentally saves the government an insignificant amount of

money does not provide a rational basis for that policy if the

policy is, as a cost-saving measure, drastically underinclusive,

let alone founded upon a prohibited or arbitrary ground. See

Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 590 (9th Cir.

2008). That rule applies here: There is no rational relationship

between the sex of an employee’s spouse and the government’s desire to limit its employee health insurance outlays;

the government could save far more money using other measures, such as by eliminating coverage for all spouses, or even

every fifth or tenth spouse. Further, the application of DOMA

15550 IN THE MATTER OF LEVENSON
in this context frequently saves the government no money at

all.6

Recently, the government has advanced an additional argument in defense of DOMA: that the statute serves a legitimate

governmental interest in maintaining a consistent definition of

marriage at the federal level for purposes of distributing federal benefits while individual states consider how to resolve

the issue of marriage equality for same-sex couples. Because

this was not among the actual purposes Congress had for

adopting DOMA, this post hoc justification would not survive

the heightened scrutiny that, as I have stated, likely applies to

Levenson’s claim. See supra page 15547 (citing Witt v. Dep’t

of Air Force, 527 F.3d 806, 818-21 (9th Cir. 2008); id. at 823-

26 (Canby, J., concurring in part and dissenting in part);

Baehr v. Lewin, 852 P.2d 44, 67, 68 (Haw. 1993)). Even

under the more deferential rational basis review, however, this

argument fails. DOMA did not preserve the status quo vis-àvis the relationship between federal and state definitions of

marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state’s decisions as to the requirements for a valid marriage. Cf. Elk

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)

(“[T]he whole subject of the domestic relations of husband

and wife, parent and child, belongs to the laws of the States

and not to the laws of the United States.” (quoting In re Burrus, 136 U.S. 586, 593-94 (1890))); De Sylva v. Ballentine,

351 U.S. 570, 580 (1956) (“[T]here is no federal law of

domestic relations, which is primarily a matter of state concern.”). Because state law governs marriage recognition, the

only consistent definition that could be employed at the federal level is the one that was in effect prior to DOMA. At that

6The denial of coverage to same-sex spouses of FPD employees does

not save the government any money if an FPD employee already has family coverage for a dependent, such as a child, because there is no cost to

the employee or to the government of adding an additional family member

to an existing family policy. 

IN THE MATTER OF LEVENSON 15551
point, a marriage recognized as valid by the couple’s state of

domicile was also recognized as valid by the federal government. DOMA replaced that consistency with a marked inconsistency: under DOMA, a couple can be legally married in

their state of domicile but not “married” for purposes of

receiving federal benefits.

Moreover, even if Congress could be said to have an independent interest in remaining neutral with regard to a contentious social issue, that is not what Congress did here. By

enacting DOMA, Congress affirmatively stepped into the

fray, and took the position that same-sex partners should not

have access to federal benefits no matter what legal status a

state decides to accord their relationship. Congress thus sided

with those states that would limit marriage to opposite-sex

couples, and against those states that would recognize the

marriages of same-sex couples. Taking that position did not

further any governmental interest in neutrality, if indeed such

an interest exists.

I can identify no other governmental interests that might be

served by denying Levenson’s request that his spouse, Sears,

receive the same federal benefits as other spouses of FPD

employees. Excluding from health care coverage spouses of

employees who have entered into legally binding relationships does not serve the government’s interest in promoting

long-term relationships. Likewise, it does not serve any governmental interest in promoting a child-rearing environment,

because the children of same-sex couples are eligible for federal benefits and the denial of benefits to same-sex spouses

will not affect the decisions made by same-sex couples

regarding marriage or parenting. Aside from all else, the relationship of the denial of benefits to such potential objectives

is “so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446. Accordingly, a

decision denying Levenson’s request that federal benefits be

extended to his same-sex spouse would have no rational basis.

In sum, to the extent that the application of DOMA serves to

15552 IN THE MATTER OF LEVENSON
preclude the provision of health insurance coverage to a

same-sex spouse of a legally married federal employee

because of the employee’s and his or her spouse’s sex or sexual orientation, DOMA, as applied, contravenes the Fifth

Amendment to the United States Constitution and is therefore

unconstitutional.

II. Proposed remedies

Bearing in mind the specific nature of the violation that has

occurred, I now turn to the question whether either of Levenson’s proposed remedies would be “necessary and appropriate,” as well as “tailored as closely as possible” to the

violation, so as to be a proper exercise of my remedial authority under the EDR Plan. EDR Plan at A-13.

A. An order directing the FPD to enter into separate

contracts would not be appropriate

Levenson’s first request is for an order directing the FPD

to negotiate with private insurers to obtain benefits for Sears

comparable to those he would receive if he were permitted to

enroll in the federal benefits plans as Levenson’s spouse.

Although I give significant weight to Levenson’s remedial

preferences, I conclude that this particular remedy would not

be appropriate under the current circumstances.

“Under federal law, a purported agreement with the United

States is not binding unless the other party can show that the

official with whom the agreement was made had authority to

bind the United States.” Grosinsky v. United States, 947 F.2d

417, 419 (9th Cir. 1991) (per curiam). Although the FEHBA

creates authority to enter into health insurance contracts for

federal employees, it vests that authority in a single executive

agency, OPM. 5 U.S.C. § 8903. No statute or regulation

authorizes the FPD to enter into health insurance contracts for

its employees or to bind the United States to any such contract. Because the FPD does not have federal contracting

IN THE MATTER OF LEVENSON 15553
authority, I conclude that an order directing it to enter into

separate contracts with private insurers would not be appropriate.

B. A monetary award pursuant to the Back Pay Act

would be appropriate

Levenson also requests, in the alternative, an award of back

pay for the period since he first attempted to enroll his spouse

in his federal benefits plans. Under the EDR Plan, “back pay

and associated benefits” may be awarded to a successful complainant if “the statutory criteria of the Back Pay Act, 5

U.S.C. § 5596, are satisfied.” EDR Plan at A-13. The Back

Pay Act provides that an employee

who, on the basis of . . . an administrative determination . . . is found by appropriate authority . . . to have

been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or

reduction of all or part of the pay, allowances, or differentials of the employee . . . is entitled, on correction of the personnel action, to receive for the period

for which the personnel action was in effect . . . an

amount equal to all or any part of the pay, allowances, or differentials, as applicable which the

employee normally would have earned or received

during the period if the personnel action had not

occurred . . . .

5 U.S.C. § 5596(b)(1). The statute authorizes OPM to prescribe implementing regulations, but makes those regulations

inapplicable to the judiciary. Id. § 5596(c). Accordingly, in

analyzing whether “the statutory criteria . . . are satisfied,”

EDR Plan at A-13, I will look to the OPM regulations only

as a guide.

15554 IN THE MATTER OF LEVENSON
1. Appropriate authority

I begin by examining whether I am the “appropriate authority” to determine that a violation of Levenson’s rights has

occurred. See 5 U.S.C. § 5596(b)(1). Levenson, like most

other employees of the federal judiciary,7 has no remedies

under the Civil Service Reform Act, is not covered by Title

VII of the Civil Rights Act, and cannot bring a Bivens action

to challenge unconstitutional discrimination in the workplace.

Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.

1999); see also Dotson v. Griesa, 398 F.3d 156, 173 (2d Cir.

2005). Instead, Levenson must resolve any employment discrimination claim through the procedures set forth in the EDR

Plan, which “is intended to be the exclusive remedy of the

employee . . . relating to rights enumerated under the Plan.”

EDR Plan at A-1.

Levenson took the appropriate steps to challenge the denial

of spousal benefits under the EDR Plan, filing the current

complaint only after counseling and mediation had failed. As

the EDR hearing officer assigned to this matter, I have the

responsibility for reviewing his complaint, holding any necessary hearings, and determining whether his rights under the

EDR Plan have been violated. EDR Plan at A-10. Because the

EDR process is the appropriate forum for Levenson’s claim,

and because I have been delegated the authority to rule on his

claim pursuant to the procedures set forth in the EDR Plan, I

conclude that I am the “appropriate authority” to make the

determination as to whether Levenson’s rights have been violated.

7Federal Public Defender Organizations are established pursuant to 18

U.S.C. § 3006A(g)(2), which grants each United States Court of Appeals

the authority to appoint and remove Federal Public Defenders. Attorneys

employed by Federal Public Defender Organizations are employees of the

judicial branch. See Sullivan v. United States, 21 F.3d 198, 202 (7th Cir.

1994). 

IN THE MATTER OF LEVENSON 15555
2. Eligibility for monetary relief

Under the Back Pay Act, the violation of an employee’s

rights creates entitlement to a monetary award only if it has

caused “the withdrawal or reduction of all or part of [his] pay,

allowances, or differentials” through a “personnel action” that

was “unjustified or unwarranted.” 5 U.S.C. § 5596(b)(1). Preliminarily, I might note that, in my view, the phrase “withdrawal or reduction” includes the term “withholding.”

a. Pay, allowances, and differentials

OPM’s regulations define “pay, allowances, and differentials” to include “pay, leave, and other monetary employment

benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an

employee during periods of Federal employment.” 5 C.F.R.

§ 550.803. The commentary accompanying the regulations

explains that “benefits received under the Federal employee

health benefits . . . programs prior to retirement are employment benefits” falling within the scope of this definition.

Rules and Regulations, Office of Personnel Management, 5

C.F.R. pt. 550, 46 Fed. Reg. 58,271, 58,272 (Dec. 1, 1981).

The ability to obtain health, dental, and vision care for

one’s family is a valuable benefit of employment; indeed,

when employers and employees consider questions about

appropriate compensation, health care is often a weightier

issue than base rate of pay. Accordingly, I adopt OPM’s interpretation that health benefits must be considered “pay, allowances, or differentials” as those terms are used in the Back

Pay Act. I therefore conclude that the failure to enroll Levenson’s spouse in his federal benefits plans has resulted in “the

withdrawal or reduction of all or part of [his] pay, allowances,

or differentials.”

b. Personnel action

To satisfy the statutory criteria of the Back Pay Act, the

withdrawal or reduction of pay, allowances, or differentials

15556 IN THE MATTER OF LEVENSON
must have occurred as the result of a “personnel action.” 5

U.S.C. § 5596(b)(1). The definition of “personnel action”

includes “the omission or failure to take an action or confer

a benefit.” Id. § 5596(b)(5). The failure to provide Levenson

with spousal health insurance coverage, which is a valuable

employment benefit, satisfies this definition.

c. Unjustified or unwarranted

The Back Pay Act provides for relief if the personnel action

that caused the withdrawal or reduction of pay, allowances or

differentials was “unjustified or unwarranted.” 5 U.S.C.

§ 5596(b)(1). Under OPM’s regulations, an “unjustified or

unwarranted” personnel action includes

an act of omission (i.e., failure to . . . confer a benefit) that an appropriate authority subsequently determines, on the basis of substantive or procedural

defects, to have been unjustified or unwarranted

under applicable law . . . or mandatory personnel

policy established by an agency or through a collective bargaining agreement.

5 C.F.R. § 550.803. Here, Levenson challenged the “failure to

. . . confer” federal benefits to his spouse. Through the EDR

process, I have found that the challenged personnel action

constitutes discrimination on the basis of sex or sexual orientation. I reached that conclusion on the basis of both a “mandatory personnel policy” (the EDR Plan) and “applicable law”

(the Constitution). Accordingly, I conclude that the denial of

federal benefits to Levenson’s spouse constitutes an “unjustified or unwarranted personnel action” under the Back Pay

Act.

3. Timing and extent of monetary relief

a. Correction of the personnel action

The Back Pay Act states that an employee who suffers the

withdrawal or reduction of pay, allowances, or differentials as

IN THE MATTER OF LEVENSON 15557
the result of an unjustified or unwarranted personnel action

becomes eligible for a monetary award “on correction of the

personnel action.” 5 U.S.C. § 5596(b)(1). This criterion is satisfied upon the determination by an appropriate authority that

the personnel action has violated the employee’s rights and

the issuance of an appropriate order to correct that action.

Because I made such a determination and issued such an order

on February 2, 2009, I conclude that Levenson is currently

eligible for a back pay award.

b. Period for which the personnel action is in

effect

A back pay award may cover only the “period for which

the personnel action was in effect,” 5 U.S.C. § 5596(b)(1)(A),

and “in no case may pay, allowances, or differentials be

granted . . . for a period beginning more than 6 years before

the date of the filing of a timely appeal or, absent such filing,

the date of the administrative determination.” Id.

§ 5596(b)(4).

The relevant period, for purposes of computing a back pay

award, began on July 15, 2008, when Levenson first

attempted to enroll his spouse in his federal benefits plans.

That start date falls within the six-year statutory time limit,

whether measured from the date of this order or my previous

order. Although my previous order directed the correction of

the wrongful denial of federal benefits to Levenson’s spouse,

that order has not yet been implemented; thus, it has not

resulted in Levenson actually receiving the benefits to which

he is entitled. Until Levenson begins to receive FEHBA and

FEDVIP coverage for his spouse, as opposed to back pay, the

unwarranted or unjustified personnel action remains in effect

and he will be entitled to accrue back pay.

c. Amount equal to the wrongfully denied benefits

Because Levenson has been found by an appropriate

authority to have been affected by an unjustified or unwar15558 IN THE MATTER OF LEVENSON
ranted personnel action that resulted in the reduction of his

employment benefits, he is now entitled to receive “an

amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would

have earned or received during the period if the personnel

action had not occurred.” 5 U.S.C. § 5596(b)(1).

Had Levenson been permitted to enroll his spouse in the

federal benefits plans, Levenson would have received health,

dental, and vision insurance covering him. While there is no

obvious way to determine “an amount equal to” that coverage,

I believe that the amount that it would have cost to obtain

comparable coverage is likely to be the closest possible approximation.8

 On remand, the FPD in consultation with Levenson

shall resolve that question and compute the amount due to

date, as well as determine whether amounts that may accrue

following the period covered by such payment shall be paid

on a monthly, quarterly, or other basis.

4. Conclusion

I continue to retain jurisdiction over this matter so that I

may resolve any disputes that may arise on remand and so

that I may issue any further order that may be necessary.

_________________

Stephen Reinhardt

Circuit Judge

8This amount is not necessarily equivalent to the expenses that Levenson actually incurred for his spouse’s health care during the relevant

period; in fact, the EDR Plan expressly precludes an award of compensatory damages. EDR Plan at A-13. I recognize, in addition, that the insurance Levenson and Sears bought did not provide coverage as full as that

provided through the FEHBA plan, and that it did not cover Sears’s dental

or vision care, for which the couple has been paying on an out-of-pocket

basis. Finally, I recognize that it may not be possible to obtain precisely

the same coverage in an individual policy that spouses are provided under

the government’s group policy. 

IN THE MATTER OF LEVENSON 15559
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