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December 2013

Denial Of Health Benefits For Federal Employee’s Same-Sex Domestic Partner Violates Plan And Constitution

In In Re Fonberg, the Executive Committee of the Ninth Circuit Judicial Council held the denial of health benefits for an employee’s same-sex domestic partner violated the District of Oregon’s Employment Dispute Resolution 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 the basis of their sex or sexual orientation.

Margaret Fonberg was a law clerk for the Honorable Thomas M. Coffin, United States Magistrate Judge for the District Court of Oregon (“District”).  Fonberg and her same-sex partner were registered under the Oregon Family Fairness Act (“Act”) as domestic partners.  The Act grants domestic partnership rights “on equivalent terms, substantive and procedural,” to marriage.  Or. Rev. Stat. § 106.340(1).

Fonberg requested her partner be enrolled in her employer-offered health plan.  However, the United States Office of Personnel Management (“OPM”) denied the request.  Fonberg responded to the denial by filing a complaint under the District’s Employment Dispute Resolution Plan (“EDR Plan”), which alleged discrimination on the basis of sex.

Initially, the chief judge of the District issued an order holding the OPM’s denial of health benefits to Fonberg’s partner violated the EDR Plan and ordered the District to reimburse Fonberg for the cost of providing her partner with health insurance coverage similar to the coverage offered to other judicial employees.  However, the chief judge then issued an amended order rescinding the original order on the basis that there currently was no legal method of reimbursement available and the law gave Fonberg no remedy.

The Executive Committee of the Ninth Circuit Judicial Council (“Executive Committee”) overturned the chief judge’s amended order and ordered the chief judge to reinstate the original order granting relief.  The Executive Committee held the OPM’s denial of health benefits for Fonberg’s partner violated the District’s EDR Plan and constituted a deprivation of due process and equal protection because Fonberg and her partner were treated differently from similar couples owing to their sex or sexual orientation.  The couple was treated differently from opposite-sex couples, who are permitted to marry and gain spousal benefits under federal law. The couple was also treated unequally in comparison with same-sex couples in other states in the Ninth Circuit, who can marry and obtain benefits pursuant to United States v. Windsor, 133 S. Ct. 2675 (2013) (holding unconstitutional the federal Defense of Marriage Act, which defined marriage as being between a man and a woman).  Thus, the Executive Committee found these forms of sexual discrimination were prohibited under EDR Plan (which forbids discrimination based on sex) and constituted a violation of due process and equal protection under the Constitution.

To view the order in In Re Fonberg, EDR No. 13-002 (9th Cir. Nov. 25, 2013), please click here.

This and other case bulletins, as well as other publications of Gordon & Rees LLP, may be found at www.gordonrees.com.

ERISA

Franz Hardy



ERISA
Insurance

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