Case: In re Levenson

In 2008, a deputy federal public defender filed this complaint with the Office of the Federal Public Defender for the Central District of California, his employer. The complainant alleged that his husband was inappropriately denied benefits in violation the Ninth’s Circuit Employment Dispute Resolution Plan for Federal Public Defenders and Staff (EDR Plan), "which expressly prohibits discrimination on the basis of sex and sexual orientation," and the Constitution. 560 F.3d 1145.

According to the complainant, on July 15, 2008, he requested that his husband be made a "family member beneficiary of his federal health, dental and vision benefits." The request, however, was denied because the Defense of Marriage Act (DOMA) "prohibits the provision of federal benefits to same-sex spouses." 560 F.3d 1145. As required by the EDR Plan, the complainant tried to solve the problem through counseling, and mediation, both of which failed. He then filed this complaint, which was heard by the Chair of the Ninth Circuit's Standing Committee on Federal Public Defenders.

On February 2, 2009, Judge Stephen Reinhart of the Ninth Circuit held that "there is no doubt that the denial of Levenson’s request that Sears be made a beneficiary of his federal benefits violated the EDR Plan’s prohibition on discrimination based on sex or sexual orientation." 560 F.3d 1145. The court found that the denial of benefits to same-sex spouses of employees when opposite-sex spouses are provided benefits, has no rational basis and therefore is unconstitutional. Specifically, the application of DOMA to the provision of federal benefits to the complainant's husband was a violation of the Due Process Clause of the Fifth Amendment. The court ordered that the complainant's husband should be provided with federal benefits, as a beneficiary of the complainant.

In accordance with the court’s order, the director of Administrative Office of the United States Courts submitted the complainant's paperwork and processed his request for his husband’s coverage. The Office of Personnel Management, however, prevented the husband's enrollment, and he had yet to receive coverage in late 2009.

On November 18, 2009, Judge Reinhart ruled on the complainant's request for an order directing the Office of the Federal Public Defender for the Central District of California, his employer, "to enter into separate contracts with private insurers in order to provide Sears with benefits comparable to those provided in the existing federal plans, or alternatively, a monetary award pursuant to the Back Pay Act." November 29, 2009 Order (Document 2 in Clearinghouse). The court held that ordering the office to enter into separate contracts would not be a “necessary and appropriate” remedy, but that a back-pay award would be. November 29, 2009 Order (Document 2 in Clearinghouse). Judge Reinhart remanded the matter to the Office of the Federal Public Defender to determine the appropriate back-pay award. Information on the final award is not available.

There have been no further updates on this case, and there is no reason to believe the case is ongoing.