Metropolitan News-Enterprise


Thursday, November 19, 2009


Page 1


Judge Orders Back Pay in Same-Sex Benefits Dispute


By SHERRI M. OKAMOTO, Staff Writer


A deputy federal public defender for the Central District of California is entitled to receive back pay for the period of time his same-sex spouse was denied health care and other benefits by his employer, Ninth U.S. Circuit Court of Appeals Judge Stephen Reinhardt ruled yesterday.

In granting Brad Levenson’s request for monetary relief, Reinhardt reiterated his findings from his February order that the denial of federal benefits to Levenson’s husband was unconstitutional and a violation of the Ninth Circuit’s Employment Dispute Resolution Plan for Federal Public Defenders and Staff.

Levenson joined the Federal Public Defender’s Office in 2005, and in 2008 he married his longtime partner, Tony Sears, during the five-month period in which same-sex marriages were legal in California.

Shortly after their marriage, Levenson requested that his husband be added as a family member beneficiary to his federal employee health, dental and vision insurance program, but his request was denied on the basis that the provision of benefits to same-sex spouses is prohibited by the 1996 Defense of Marriage Act.

Levenson challenged that denial as a violation of his rights under the Dispute Resolution Plan and the Constitution.

Reinhardt explained that the Dispute Resolution Plan provided the only forum in which Levenson could bring a claim of employment discrimination.

The plan was adopted by the Ninth Circuit Judicial Council to provide comparable rights and protections to employees of federal public defender’s offices to legislative branch employees. It prohibits discrimination on the basis of sex and sexual orientation and establishes a grievance procedure for presenting discrimination claims.

As chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders at the time the complaint was filed and designee of the current chair of the standing committee, Reinhardt was charged with hearing and ruling on Levenson’s complaint.

In a prior order, Reinhardt ruled that the denial of benefits violated the anti-discrimination provisions of the plan and the Due Process Clause. He ordered the director of the Administrative Office of the United States Courts to submit Levenson’s health benefits request to the appropriate insurance carrier and process his request for dental and vision insurance coverage for Sears.

Although the director complied with Reinhardt’s order, the Office of Personnel Management intervened to prevent Sears’ enrollment. Levenson then requested that Reinhardt enter an order directing the government to contract with private insurance companies to obtain separate coverage for his spouse or for payment of the equivalent value of the coverage denied.

Under the Dispute Resolution Plan, Reinhardt said he was authorized to order a “necessary and appropriate remedy” for the violation of a substantive right protected by the plan.

Reinhardt reasoned that the only reason Levenson was unable to make his spouse a beneficiary was due to their status as a same-sex couple.

“If Sears were female, or if Levenson himself were female, Levenson would be able to add Sears as a beneficiary,” the jurist said. “Thus, the denial of benefits at issue here was sex-based and constitutes a violation of the EDR Plan’s prohibition of sex discrimination.”

He added that differential treatment of opposite-sex and same-sex couples also constitutes discrimination on the basis of sexual orientation.

While Reinhardt said he believed it “likely” that some form of heightened constitutional scrutiny applied to Levenson’s discrimination claims, he said the denial of benefits could not survive even rational basis review.

But Reinhardt reasoned that Levenson’s request for an order directing his office to enter into independent health insurance contracts would not be an appropriate remedy, even though Levenson’s remedial preference was entitled to significant weight, since only OPM has the authority to enter into health insurance contracts for federal employees.

Reinhardt instead granted Levenson’s alternate request for an award of back pay for the period since he first attempted to enroll his spouse in his federal benefits plan.

Under the Back Pay Act, a violation of an employee’s rights creates entitlement to a monetary award only if it has caused “the withdrawal or reduction of all of part of [his] pay, allowances, or differentials” through a “personnel action” that was “unjustified or unwarranted.”

The act defines a “personnel action” as “the omission or failure to take an action or confer a benefit.”

As spousal health benefits are “a valuable employee benefit,” Reinhardt concluded that such coverage satisfied this definition, and because the denial of benefits was on the basis of sex or sexual orientation, that “personnel action” was “unjustified or unwarranted.” 

Reinhardt determined that Levenson was therefore entitled to receive an amount equal to the wrongfully denied benefits, and directed the federal public defender to consult with Levenson to calculate this amount, suggesting that the cost of comparable coverage was “likely to be the closest possible approximation.”

The jurist said he would continue to retain jurisdiction over the dispute and that Levenson would be entitled to receive back pay until benefits are provided to his spouse.

Levenson said he was pleased with Reinhardt’s decision, commenting that “it’s not equality, but this is a very good remedy.”

He opined that Reinhardt “points out the inequality of it, and I’m very appreciative of that.”

As a result of yesterday’s ruling, “financially, hopefully we will be in a similar position to other straight, married employees at the Federal Public Defender’s Office,” Levenson added, emphasizing that he and his husband have had to pay “thousands” each year in out-of-pocket healthcare costs. “It really does add up,” Levenson said.

Additionally, Levenson suggested that the ruling “has precedential value,” even though it is an administrative ruling, as “part of the larger movement towards hopefully having Congress and President Obama get rid of DOMA.”


Copyright 2009, Metropolitan News Company