                      FOR PUBLICATION

     JUDICIAL COUNCIL OF THE NINTH CIRCUIT
             EXECUTIVE COMMITTEE




 IN THE MATTER OF                               EDR No. 13-002
 MARGARET FONBERG                                  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 same-
sex 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,1 has 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 Non-
Discrimination (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 claim was 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 similarly-
situated 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 same-
sex 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 same-
sex 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.
