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Committee Awards Gay Law Clerk Back Pay

(CN) - A former federal law clerk who was denied health benefits for her domestic partner won back pay Monday from an executive committee of the 9th Circuit's Judicial Council.

The case highlights an apparent gulf between the rights and benefits offered to federal employees who are married and those in domestic partnerships, according to the order.

Margaret "Gosia" Fonberg, now an attorney in Portland, clerked for U.S. Magistrate Judge Thomas Coffin in the District of Oregon from 2009 to 2013. In 2009 she tried to enroll her domestic partner in her health plan, but the federal Office of Personnel Management would not allow it. Fonberg then filed a complaint under the District of Oregon's Employment Dispute Resolution (EDR) process.

Chief U.S. District Judge Ann Aiken initially ruled that denial of health benefits to Fonberg's partner was discriminatory and ordered the district to reimburse her for coverage and to award back pay for benefits from January 2010. Aiken rescinded that order in March, however, after finding that, because the couple was unmarried, "there was no authority within the Ninth Circuit to permit her to order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," according to the order.

The Executive Committee found Monday that the District of Oregon had discriminated against Fonberg based on her sexual orientation by denying benefits that are available to married opposite-sex couples and "same-sex couples in other states in the circuit, who may marry and thus gain benefits under Windsor."

In the recent landmark ruling Windsor vs. U.S.A., the Supreme Court stuck down as unconstitutional a provision of the federal Defense of Marriage Act that defined marriage as the union of one man and one woman.

Reasoning that the Supreme Court's decision meant that the Constitution protects only married same-sex couples, the Office of Personnel Management claimed 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, the executive committee noted.

"Oregon's statutory scheme purports to confer upon same-sex domestic partners the same rights and legal status as those conferred on married couples," the order states "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)." (Parenthesis in original).

Finding the rule plainly discriminatory, the committee chided the District of Oregon for violating "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," the committee added. "Both these forms of discrimination are prohibited under the Oregon EDR Plan."

The committee consists of Chief 9th Circuit Judge Alex Kozinski, 9th Circuit Judge Richard Clifton, and U.S. District Judge Ralph Beistline.

Fonberg said in an email Monday that she was "beyond thrilled with the executive committee's ruling recognizing and remedying the discrimination I faced when I worked for the courts."

"I think that the executive committee's order summed it up when it recognized that, in practice, Oregon's domestic partner statute does not provide the same rights and legal status as those conferred on married couples," she said.

Fonberg's attorney, Pamela Jacklin, a retired partner with Stoel Rives who handled the case pro bono with the firm's support, said that she was please the 9th Circuit "refused to adopt the notion that Gosia was discriminated against but that the violation of her rights was without remedy."

"For us, it was important to vindicate the principle that when a federal employee is the victim of discrimination under the courts' employee dispute resolution plan, back pay is, as the plan says, an available remedy," Jacklin said in an email. "As we argued on appeal, to ignore the maxim that equity will not tolerate a wrong without a remedy in Fonberg's case would make a mockery of the Oregon federal district court's proclamation to employees that it will 'tolerate no discrimination.'"

The Office of Personnel Management has not returned a request for comment.

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