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Ninth Circuit orders back pay for federal employee denied same-sex spouse benefits

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ordered [text, PDF] the Office of the Federal Public Defender for the Central District of California (FPD) [official website] on Wednesday to pay a monetary award to a man denied healthcare benefits for his same-sex spouse. Deputy federal public defender Brad Levenson brought the suit requesting the court to direct the FPD to obtain separate coverage for his spouse by contracting with private health insurance carriers or issue a monetary award in accordance with the Back Pay Act [backgrounder, PDF]. The court found that a back pay award would be the "necessary and appropriate" remedy "tailored as closely as possible" to address the specific violation within the scope of the Ninth Circuit's Employment Dispute Resolution Plan for Federal Public Defenders and Staff since the FPD does not have federal contracting authority. The case was remanded for the lower court to determine the appropriate monetary award. Judge Stephen Reinhardt was the Chair of the Standing Committee on Federal Public Defenders at the time of filing and continues to retain jurisdiction in the matter until Levenson's spouse receives his entitled benefits. Reinhardt reasoned:

[T]o the extent that the application of DOMA serves to 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 therefor unconstitutional.

Levenson's suit was based on a February Ninth Circuit court order [text, PDF] directing the Administrative Office (AO) of the United States Courts to secure the benefits to which Levinson's spouse is entitled as a California legally married couple. That order also determined that denying Levenson's spouse benefits violated the anti-discrimination provisions of the EDR Plan as well as the Fifth Amendment Due Process Clause. The AO took actions to comply with that original order, but the Office of Personnel Management (OPM) intervened [MercuryNews report] invoking the Defense of Marriage Act (DOMA) [text] to prevent the AO from complying with the court order.

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