736 F.3d 901
Judicial Council of The Ninth ...2013Background
- Margaret Fonberg, a former law clerk in the District of Oregon (May 2009–May 2013), sought to enroll her same‑sex registered domestic partner in her employer-sponsored family health plan during 2009 open enrollment; OPM denied the request.
- Fonberg filed an EDR complaint (sex discrimination); Chief Judge Aiken (July 8, 2011) found the denial violated the District’s EDR Plan and ordered reimbursement for comparable partner coverage, including retroactive relief from January 4, 2010.
- On March 6, 2013, Chief Judge Aiken rescinded the reimbursement directive, concluding no legal method existed to provide reimbursement because Fonberg’s partner was not a spouse under federal law.
- OPM’s position: federal benefits extend only to spouses as defined under federal law; same‑sex domestic partnerships (other than marriage) are excluded post‑Windsor by agency interpretation.
- The Ninth Circuit panel held that treating registered same‑sex domestic partners differently from married spouses (or same‑sex couples who can marry in other states) constitutes sex/sexual‑orientation discrimination under the District of Oregon’s EDR Plan and reinstated the July 8, 2011 relief (ordering $6,190.90 plus Back Pay Act interest).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OPM’s denial of partner health benefits violated the District’s EDR Plan (sex/sexual‑orientation discrimination) | Fonberg: denial singled out same‑sex domestic partners and treated her differently because of sex/sexual orientation; violates EDR Plan protections | OPM/District: federal benefits extend only to spouses as defined under federal law; domestic partners not entitled | Held: Denial amounted to discrimination on basis of sex/sexual orientation under the EDR Plan; unlawful differential treatment enforced |
| Whether Windsor limits relief to married same‑sex couples and forecloses reimbursement for domestic partners | Fonberg: Windsor exposes that state domestic‑partnership regimes leave partners disadvantaged; Windsor supports equal protection due to federal recognition disparity | Defendant: Windsor protects married same‑sex couples but does not require federal benefits for non‑marital domestic partners | Held: Court read Windsor to undermine a state labeling distinction that denies federal benefits; discrimination here fits Windsor’s principles |
| Whether the District court had authority to order monetary reimbursement for partner coverage | Fonberg: District could order reimbursement as corrective relief under EDR and back‑pay authority | District/OPM: No legal mechanism to reimburse because partner not a spouse for federal benefit purposes | Held: Reinstated district court’s original remedial order; directed Clerk to reimburse $6,190.90 plus interest under Back Pay Act |
| Whether employees must be treated equally across states (where same‑sex couples may marry) | Fonberg: Federal employees should not have benefits vary based on state marriage rules; disparity is prohibited | Defendant: Benefits depend on federal recognition of marriage; differing state laws govern who is a spouse | Held: Unequal treatment across states violates the EDR Plan and is impermissible discrimination |
Key Cases Cited
- United States v. Windsor, 133 S. Ct. 2675 (constitutional invalidation of federal DOMA provision that denied federal recognition/benefits to same‑sex married couples)
- Garden State Equality v. Dow, 79 A.3d 1036 (N.J. 2013) (state civil‑union partners denied equal access to federal benefits after Windsor)