In the Matter of Brad Levenson , 587 F.3d 925 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT


IN THE MATTER OF BRAD LEVENSON No. 09-80172
 ORDER
Filed November 18, 2009
ORDER
Overview
Brad Levenson, a deputy federal public defender in the
Office of the Federal Public Defender for the Central District
of California (“FPD”), is legally married, under California
law, to Tony Sears. Nevertheless, Levenson has not been per-
mitted to enroll Sears as a family member beneficiary of his
federal health, dental, and vision benefits (hereinafter “federal
benefits”) because both spouses are of the same sex. In a pre-
vious order, I determined that the denial of benefits on this
ground violates the Ninth Circuit’s Employment Dispute Res-
olution Plan for Federal Public Defenders and Staff (“EDR
Plan”), which expressly prohibits discrimination on the basis
of sex and sexual orientation. I also determined for similar
reasons that the denial of benefits violates the United States
Constitution. As a further remedy for those violations, Leven-
son now requests an order directing the FPD to enter into sep-
arate 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. For the reasons set forth below, I have
determined that an order directing the FPD to enter into sepa-
rate health insurance contracts would not be a “necessary and
appropriate” remedy within the scope of the EDR Plan. A
15541
15542 IN THE MATTER OF LEVENSON
back pay award, however, would be appropriate under the cir-
cumstances. Accordingly, I grant Levenson’s alternative
request for a monetary award, and remand the matter to the
FPD to determine the actual amount to be awarded.
Facts
Brad Levenson has been a deputy federal public defender
in the FPD since July 11, 2005. He and Tony Sears have been
partners for 15 years. They registered their domestic partner-
ship on March 16, 2000, and were married in California on
July 12, 2008, at a time when under the law in that state per-
sons could marry individuals of the same sex. On July 15,
2008, Levenson requested that his husband be added as a fam-
ily member beneficiary of his federal benefits.1 That request
was denied on the basis that the provision of benefits to same-
sex spouses is prohibited by the federal Defense of Marriage
Act (“DOMA”), 1 U.S.C. § 7. Levenson challenged that
denial as a violation of his rights under the EDR Plan and the
Constitution.
The EDR Plan provides for the only forum in which Leven-
son can bring a claim of employment discrimination. The Plan
was adopted by the Ninth Circuit Judicial Council “to provide
rights and protections to employees of the Federal Public
Defender Offices . . . which are comparable to those provided
to legislative branch employees under the Congressional
Accountability Act of 1995.”2 EDR Plan at A-1. The Plan pro-
1
FPD employees and their family members have the right to these bene-
fits pursuant to the Federal Employee Health Benefits Act, 5 U.S.C.
§§ 8901-8914 (“FEHBA”), and FEDVIP, the federal employee dental and
vision insurance program, see 5 U.S.C. §§ 8951-62, 8981-92; 5 C.F.R.
§§ 894.101 et seq. Before Levenson joined the FPD, he was employed in
the California Attorney General’s Office, which provided Sears with full
medical, dental, and vision benefits. Since Levenson joined the FPD, he
and Sears have paid the full cost of Sears’s health insurance premiums and
his dental and vision care.
2
The Congressional Accountability Act of 1995 “extended to [Con-
gress’s] employees the protections of eleven labor laws generally applica-
IN THE MATTER OF LEVENSON 15543
hibits discrimination on numerous grounds, including both
sex and sexual orientation, id. at A-2, and establishes a griev-
ance procedure for presenting claims of discrimination, id. at
A-4-A-14.
As required by the EDR Plan, see id. at A-6-A-9, Levenson
requested counseling, which failed, and mediation, which also
failed. He then filed the pending complaint. Id. at A-10. In my
role as Chair of the Ninth Circuit’s Standing Committee on
Federal Public Defenders at the time of the complaint’s filing,
and presently as designee of the current Chair of the Standing
Committee, I am charged with hearing and ruling upon
Levenson’s complaint and fashioning a “necessary and appro-
priate” remedy. Id. at A-10, A-13.
In my previous order, I ruled that the denial of benefits to
Levenson’s spouse violated the anti-discrimination provisions
of the EDR Plan as well as the Due Process Clause of the
Fifth Amendment. I directed the Director of the Administra-
tive Office of the United States Courts (“AO”) to submit
Levenson’s Health Benefits Election form 2809 to the appro-
priate health insurance carrier, and to process his request for
FEDVIP coverage. I retained jurisdiction over this matter in
order to ensure that Levenson’s spouse receives the benefits
to which he is entitled.
Although the AO complied with my previous order, Leven-
son’s spouse has not yet received coverage under the federal
benefits plans because the Office of Personnel Management
ble to other public and private employees, including the protections
against discrimination provided in Title VII . . . .” Dotson v. Griesa, 398
F.3d 156, 173 (2d Cir. 2005). “In enacting the CAA, Congress initially
considered extending the statute’s coverage to employees of the judicial
branch but, mindful of the importance of judicial autonomy, ultimately
decided against such action.” Id. Thus, the EDR Plan, rather than Title VII
or any other federal labor law, provides Levenson’s exclusive remedy for
his claim of employment discrimination.
15544 IN THE MATTER OF LEVENSON
(“OPM”) intervened to prevent his enrollment. Levenson does
not request that I take any action against OPM for its role in
the ongoing unconstitutional denial of federal benefits for his
spouse. Rather, he requests that I enter an order directing the
FPD to contract with private insurance companies to obtain
separate coverage for his spouse, or alternatively, that I issue
a monetary award pursuant to the Back Pay Act.
Analysis
Under the EDR Plan, I have the authority to order a “neces-
sary and appropriate remedy” for the violation of a substan-
tive right protected by the Plan. EDR Plan at A-13. The
remedy may be retrospective, prospective, or both, and must
be “tailored as closely as possible to the specific violation
involved.” Id. It would be consistent with this grant of equita-
ble authority to consider Levenson’s views as to how best to
make him whole, and if possible, to award one of the reme-
dies he has requested. Whether either of the two proposed
alternatives is both appropriate and closely tailored depends,
in turn, on the specific nature of the violation. Accordingly,
I begin by examining the nature of the discrimination Leven-
son has experienced and the statutory framework within
which that violation has occurred.
I. Substantive rights violated by the denial of spousal
benefits
As I stated in my previous order, the denial of Levenson’s
request that Sears be made a beneficiary of his federal bene-
fits violated the EDR Plan’s prohibition on discrimination
based on sex or sexual orientation. Levenson was unable to
make his spouse a beneficiary of his federal benefits due
solely to his spouse’s sex. If Sears were female, or if Leven-
son himself were female, Levenson would be able to add
Sears as a beneficiary. Thus, the denial of benefits at issue
here was sex-based and constitutes a violation of the EDR
Plan’s prohibition of sex discrimination. Alternatively, the
IN THE MATTER OF LEVENSON 15545
denial of benefits constitutes discrimination on the basis of
sexual orientation. As the California Supreme Court recently
explained, the differential treatment of opposite-sex and
same-sex couples
cannot be understood as having merely a disparate
impact on gay persons, but instead properly must be
viewed as directly classifying and prescribing dis-
tinct treatment on the basis of sexual orientation. By
limiting [benefits] to opposite-sex couples, the [ ]
statutes, realistically viewed, operate clearly and
directly to impose different treatment on gay individ-
uals because of their sexual orientation. By defini-
tion, gay individuals are persons who are sexually
attracted to persons of the same sex and thus, if
inclined to enter into a marriage relationship, would
choose to marry a person of their own sex or gender.
A statute that limits [benefits] to a union of persons
of opposite sexes, thereby placing [those benefits]
outside the reach of couples of the same sex, unques-
tionably imposes different treatment on the basis of
sexual orientation. In our view, it is sophistic to sug-
gest that this conclusion is avoidable by reason of
the circumstance that the marriage statutes permit a
gay man or a lesbian to marry someone of the oppo-
site sex, because making such a choice would
require the negation of the person’s sexual orienta-
tion.
In re Marriage Cases, 43 Cal. 4th 757, 839-40 (2008).3
3
Following issuance of the decision in In re Marriage Cases, the voters
of California adopted by a narrow margin an initiative measure adding to
the California Constitution a provision prohibiting same-sex marriage. See
Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009). The California Supreme
Court upheld the enactment of that change by a simple majority of those
voting on the statewide initiative, notwithstanding the claim that such a
change constituted a revision of the California Constitution, which under
15546 IN THE MATTER OF LEVENSON
Because the EDR Plan prohibits discrimination based on
both sex and sexual orientation, it is not necessary to deter-
mine which form of discrimination is at issue in the present
proceeding in order to find a violation of the EDR Plan.
Regardless of whether Levenson experienced discrimination
due to his sex or due to his sexual orientation, the denial of
benefits violated the EDR Plan.
The denial of federal benefits originally occurred because
the Office of the Circuit Executive concluded that DOMA, as
applied to the statutes governing health benefits for federal
employees, precluded an award of federal benefits to Leven-
son’s spouse. Federal employees, including employees of the
FPD, receive health benefits pursuant to the FEHBA. The
FEHBA permits federal employees to elect coverage “either
as an individual or for self and family,” 5 U.S.C. § 8905(a),
and defines “member of family” as “the spouse of an
employee or annuitant” or “an unmarried dependent child
under 22 years of age . . . .” 5 U.S.C. § 8901(5). FEDVIP like-
wise defines “family member” as “a spouse . . . and/or unmar-
ried dependent child(ren).”4 5 C.F.R. § 894.101. DOMA
operates as a limitation on these definitions by providing that,
California law required the use of a different electoral process. Id. at 60,
63-64. The plaintiffs in that proceeding did not raise the question whether
the ban on same-sex marriage violated the Federal Constitution.
Although the California Supreme Court held that allowing the initiative
to have prospective effect was consistent with the state Constitution, the
court also concluded that “the marriages of same-sex couples performed
prior to the effective date of [the ballot measure] remain valid and must
continue to be recognized in this state.” Id. at 64. Because Levenson and
Sears were married before the measure was adopted, their marriage
remains valid under California law.
4
The statutes that establish FEDVIP incorporate the definition of family
member in the FEHBA, 5 U.S.C. §§ 8951, 8981, and have the same struc-
ture as the FEHBA. For the sake of simplicity, I will conduct the subse-
quent discussion solely in terms of the FEHBA. However, the arguments
apply in full to both the FEHBA and FEDVIP.
IN THE MATTER OF LEVENSON 15547
“[i]n determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various admin-
istrative bureaus and agencies of the United States, the word
‘marriage’ means only a legal union between one man and
one woman as husband and wife, and the word ‘spouse’ refers
only to a person of the opposite sex who is a husband or a
wife.” 1 U.S.C. § 7. Accordingly, when the FEHBA and FED-
VIP provisions defining family members are read in light of
the limitation imposed by DOMA, those provisions include
only opposite-sex spouses.
As I concluded in my previous order, the application of
DOMA to FEHBA so as to deny Levenson’s request that his
same-sex spouse receive federal benefits violates the Due Pro-
cess Clause of the Fifth Amendment. In reaching that conclu-
sion, I believe it likely that some form of heightened
constitutional scrutiny applies to Levenson’s claims. See, e.g.,
Witt v. Dep’t of Air Force, 527 F.3d 806, 818-21 (9th Cir.
2008) (applying heightened scrutiny on an “as applied” basis
to a discharged service member’s challenge to the military’s
“Don’t Ask, Don’t Tell” policy); id. at 823-26 (Canby, J.,
concurring in part and dissenting in part) (arguing that dis-
crimination based on sexual orientation is subject to strict
scrutiny); see also Baehr v. Lewin, 852 P.2d 44, 67, 68 (Haw.
1993) (finding distinction between opposite-sex couples and
same-sex couples to be a sex-based classification subject to
heightened scrutiny). However, the denial of benefits here
cannot survive even rational basis review, the least searching
form of constitutional scrutiny. Accordingly, it is not neces-
sary to determine whether or which form of heightened scru-
tiny is applicable to this claim. Because there is no rational
basis for denying benefits to the same-sex spouses of FPD
employees while granting them to the opposite-sex spouses of
FPD employees, I conclude that the application of DOMA to
the FEHBA so as to reach that result is unconstitutional.
Any government action resting on a distinction between
discrete classes “must be rationally related to a legitimate
15548 IN THE MATTER OF LEVENSON
governmental purpose.” City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 446 (1985). Under this standard, “[t]he
State may not rely on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction arbi-
trary or irrational. Furthermore, some objectives — such as a
bare desire to harm a politically unpopular group — are not
legitimate state interests.” Id. at 446-47 (citations omitted).
Applying this standard to the present case, the challenged
denial of benefits is constitutional only if there is a rational
basis for the government to provide FEHBA and FEDVIP
coverage to the opposite-sex spouses of FPD employees while
denying those benefits to the same-sex spouses of FPD
employees. No such basis exists.5
The denial of federal benefits to same-sex spouses cannot
be justified simply by a distaste for or disapproval of same-
sex marriage or a desire to deprive same-sex spouses of bene-
fits available to other spouses in order to discourage them
from exercising a legal right afforded them by a state. As City
of Cleburne made clear, “a bare desire to harm a politically
unpopular group” cannot provide a rational basis for govern-
mental discrimination. Id. at 447. In Romer v. Evans, 517 U.S.
620 (1996), the Supreme Court applied that rule in the spe-
cific context of a law that discriminated against gays and les-
bians and held that the state constitutional amendment at
issue, which raised “the inevitable inference that the disad-
vantage imposed [was] born of animosity” toward gays and
lesbians as a class, was unconstitutional. Id. at 634-36. Thus,
the denial of federal benefits to same-sex spouses cannot be
justified as an expression of the government’s disapproval of
5
I should note that marriage is a status traditionally established and reg-
ulated by state law. It is also a fundamental right. Loving v. Virginia, 388
U.S. 1, 12 (1967). Whether a state may deny such status to same-sex cou-
ples is beyond the scope of this decision. Here, I need determine only
whether same-sex spouses who have been legally married under the laws
of the relevant state may, because of the sex or sexual orientation of the
couple, be denied federal benefits that are afforded to other spouses legally
married under such laws.
IN THE MATTER OF LEVENSON 15549
homosexuality, preference for heterosexuality, or desire to
discourage gay marriage. Romer makes clear that a simple
desire to treat gays and lesbians differently is not, in and of
itself, a proper justification for government actions. Discrimi-
nation against gays and lesbians, or same-sex couples, must,
at the very least, serve some more substantive and lawful
function.
The House report on DOMA identified three interests
advanced by the statute: “the government’s interest in defend-
ing and nurturing the institution of traditional, heterosexual
marriage;” “the government’s interest in defending traditional
notions of morality;” and “the government’s interest in pre-
serving scarce government resources.” H.R. Rep. No. 104-
664, at *12-*18. The first interest is largely irrelevant to the
rational basis analysis here because the same-sex couple who
seek the benefits are already married. Also, gays and lesbians
will not be encouraged to enter into marriages with members
of the opposite sex by the government’s denial of benefits to
same-sex spouses, and the denial will not discourage same-
sex couples from entering into same-sex marriages; so, the
denial cannot be said to “nurture” or “defend” the institution
of heterosexual marriage. As to the second “interest,” if the
denial is designed to “defend” traditional notions of morality
by discouraging same-sex marriage, it does so only by punish-
ing same-sex couples who exercise their rights under state
law, and thus exhibits the “bare desire to harm” same-sex
couples that is prohibited under City of Cleburne and Romer.
Moreover, discouraging gay marriage serves only to force gay
couples to live in a “state of sin” rather than in a lawfully-
recognized “state of connubial bliss” that encourages a long-
enduring permanent relationship that, in turn, serves as the
basis of a state-recognized family. Thus, rather than encourag-
ing morality, the denial of fair and equal treatment to gay and
lesbian couples encourages immorality, at least to the extent
that it can be said to have any effect at all on decisions about
whether and whom to marry. Where, as here, the couple
involved is already married, those decisions have already
15550 IN THE MATTER OF LEVENSON
been made, and there can be no such effect. In addition, deny-
ing married same-sex spouses health coverage is far too atten-
uated a means of achieving the objective of “defending
traditional notions of morality,” as it also is with respect to
achieving the objective of “defending and nurturing the insti-
tution of traditional, heterosexual marriage.” More important,
Romer and Lawrence v. Texas, 539 U.S. 558 (2003), strongly
suggest that the government cannot justify discrimination
against gays and lesbians or same-sex couples based on “tra-
ditional notions of morality” alone. See Lawrence, 539 U.S.
at 571, 578 (finding criminal law barring homosexual sodomy
constitutionally invalid despite “powerful voices” that “for
centuries” have “condemn[ed] homosexual conduct as immor-
al”); Romer, 517 U.S. at 644 (Scalia, J., dissenting) (noting
that the Colorado constitutional amendment held unconstitu-
tional by the majority expressed the “moral disapproval of
homosexual conduct” of Colorado’s citizens). For these rea-
sons, neither of the first two interests identified by Congress
can provide a rational basis for the denial of benefits at issue
here.
The third interest can be disposed of quickly. The denial of
health insurance to same-sex spouses may in a comparatively
few cases relieve the government of paying its portion of a
family coverage premium. However, that a government policy
incidentally saves the government an insignificant amount of
money does not provide a rational basis for that policy if the
policy is, as a cost-saving measure, drastically underinclusive,
let alone founded upon a prohibited or arbitrary ground. See
Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 590 (9th Cir.
2008). That rule applies here: There is no rational relationship
between the sex of an employee’s spouse and the govern-
ment’s desire to limit its employee health insurance outlays;
the government could save far more money using other mea-
sures, such as by eliminating coverage for all spouses, or even
every fifth or tenth spouse. Further, the application of DOMA
IN THE MATTER OF LEVENSON 15551
in this context frequently saves the government no money at
all.6
Recently, the government has advanced an additional argu-
ment in defense of DOMA: that the statute serves a legitimate
governmental interest in maintaining a consistent definition of
marriage at the federal level for purposes of distributing fed-
eral benefits while individual states consider how to resolve
the issue of marriage equality for same-sex couples. Because
this was not among the actual purposes Congress had for
adopting DOMA, this post hoc justification would not survive
the heightened scrutiny that, as I have stated, likely applies to
Levenson’s claim. See supra page 15547 (citing Witt v. Dep’t
of Air Force, 527 F.3d 806, 818-21 (9th Cir. 2008); id. at 823-
26 (Canby, J., concurring in part and dissenting in part);
Baehr v. Lewin, 852 P.2d 44, 67, 68 (Haw. 1993)). Even
under the more deferential rational basis review, however, this
argument fails. DOMA did not preserve the status quo vis-à-
vis the relationship between federal and state definitions of
marriage; to the contrary, it disrupted the long-standing prac-
tice of the federal government deferring to each state’s deci-
sions as to the requirements for a valid marriage. Cf. Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004)
(“[T]he whole subject of the domestic relations of husband
and wife, parent and child, belongs to the laws of the States
and not to the laws of the United States.” (quoting In re Bur-
rus, 136 U.S. 586, 593-94 (1890))); De Sylva v. Ballentine,
351 U.S. 570, 580 (1956) (“[T]here is no federal law of
domestic relations, which is primarily a matter of state con-
cern.”). Because state law governs marriage recognition, the
only consistent definition that could be employed at the fed-
eral level is the one that was in effect prior to DOMA. At that
6
The denial of coverage to same-sex spouses of FPD employees does
not save the government any money if an FPD employee already has fam-
ily coverage for a dependent, such as a child, because there is no cost to
the employee or to the government of adding an additional family member
to an existing family policy.
15552 IN THE MATTER OF LEVENSON
point, a marriage recognized as valid by the couple’s state of
domicile was also recognized as valid by the federal govern-
ment. DOMA replaced that consistency with a marked incon-
sistency: under DOMA, a couple can be legally married in
their state of domicile but not “married” for purposes of
receiving federal benefits.
Moreover, even if Congress could be said to have an inde-
pendent interest in remaining neutral with regard to a conten-
tious social issue, that is not what Congress did here. By
enacting DOMA, Congress affirmatively stepped into the
fray, and took the position that same-sex partners should not
have access to federal benefits no matter what legal status a
state decides to accord their relationship. Congress thus sided
with those states that would limit marriage to opposite-sex
couples, and against those states that would recognize the
marriages of same-sex couples. Taking that position did not
further any governmental interest in neutrality, if indeed such
an interest exists.
I can identify no other governmental interests that might be
served by denying Levenson’s request that his spouse, Sears,
receive the same federal benefits as other spouses of FPD
employees. Excluding from health care coverage spouses of
employees who have entered into legally binding relation-
ships does not serve the government’s interest in promoting
long-term relationships. Likewise, it does not serve any gov-
ernmental interest in promoting a child-rearing environment,
because the children of same-sex couples are eligible for fed-
eral benefits and the denial of benefits to same-sex spouses
will not affect the decisions made by same-sex couples
regarding marriage or parenting. Aside from all else, the rela-
tionship of the denial of benefits to such potential objectives
is “so attenuated as to render the distinction arbitrary or irra-
tional.” City of Cleburne, 473 U.S. at 446. Accordingly, a
decision denying Levenson’s request that federal benefits be
extended to his same-sex spouse would have no rational basis.
In sum, to the extent that the application of DOMA serves to
IN THE MATTER OF LEVENSON 15553
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 sex-
ual orientation, DOMA, as applied, contravenes the Fifth
Amendment to the United States Constitution and is therefore
unconstitutional.
II. Proposed remedies
Bearing in mind the specific nature of the violation that has
occurred, I now turn to the question whether either of Leven-
son’s proposed remedies would be “necessary and appropri-
ate,” as well as “tailored as closely as possible” to the
violation, so as to be a proper exercise of my remedial author-
ity under the EDR Plan. EDR Plan at A-13.
A. An order directing the FPD to enter into separate
contracts would not be appropriate
Levenson’s first request is for an order directing the FPD
to negotiate with private insurers to obtain benefits for Sears
comparable to those he would receive if he were permitted to
enroll in the federal benefits plans as Levenson’s spouse.
Although I give significant weight to Levenson’s remedial
preferences, I conclude that this particular remedy would not
be appropriate under the current circumstances.
“Under federal law, a purported agreement with the United
States is not binding unless the other party can show that the
official with whom the agreement was made had authority to
bind the United States.” Grosinsky v. United States, 947 F.2d
417, 419 (9th Cir. 1991) (per curiam). Although the FEHBA
creates authority to enter into health insurance contracts for
federal employees, it vests that authority in a single executive
agency, OPM. 5 U.S.C. § 8903. No statute or regulation
authorizes the FPD to enter into health insurance contracts for
its employees or to bind the United States to any such con-
tract. Because the FPD does not have federal contracting
15554 IN THE MATTER OF LEVENSON
authority, I conclude that an order directing it to enter into
separate contracts with private insurers would not be appro-
priate.
B. A monetary award pursuant to the Back Pay Act
would be appropriate
Levenson also requests, in the alternative, an award of back
pay for the period since he first attempted to enroll his spouse
in his federal benefits plans. Under the EDR Plan, “back pay
and associated benefits” may be awarded to a successful com-
plainant if “the statutory criteria of the Back Pay Act, 5
U.S.C. § 5596, are satisfied.” EDR Plan at A-13. The Back
Pay Act provides that an employee
who, on the basis of . . . an administrative determina-
tion . . . is found by appropriate authority . . . to have
been affected by an unjustified or unwarranted per-
sonnel action which has resulted in the withdrawal or
reduction of all or part of the pay, allowances, or dif-
ferentials of the employee . . . is entitled, on correc-
tion of the personnel action, to receive for the period
for which the personnel action was in effect . . . an
amount equal to all or any part of the pay, allow-
ances, or differentials, as applicable which the
employee normally would have earned or received
during the period if the personnel action had not
occurred . . . .
5 U.S.C. § 5596(b)(1). The statute authorizes OPM to pre-
scribe implementing regulations, but makes those regulations
inapplicable to the judiciary. Id. § 5596(c). Accordingly, in
analyzing whether “the statutory criteria . . . are satisfied,”
EDR Plan at A-13, I will look to the OPM regulations only
as a guide.
IN THE MATTER OF LEVENSON 15555
1. Appropriate authority
I begin by examining whether I am the “appropriate author-
ity” to determine that a violation of Levenson’s rights has
occurred. See 5 U.S.C. § 5596(b)(1). Levenson, like most
other employees of the federal judiciary,7 has no remedies
under the Civil Service Reform Act, is not covered by Title
VII of the Civil Rights Act, and cannot bring a Bivens action
to challenge unconstitutional discrimination in the workplace.
Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.
1999); see also Dotson v. Griesa, 398 F.3d 156, 173 (2d Cir.
2005). Instead, Levenson must resolve any employment dis-
crimination claim through the procedures set forth in the EDR
Plan, which “is intended to be the exclusive remedy of the
employee . . . relating to rights enumerated under the Plan.”
EDR Plan at A-1.
Levenson took the appropriate steps to challenge the denial
of spousal benefits under the EDR Plan, filing the current
complaint only after counseling and mediation had failed. As
the EDR hearing officer assigned to this matter, I have the
responsibility for reviewing his complaint, holding any neces-
sary hearings, and determining whether his rights under the
EDR Plan have been violated. EDR Plan at A-10. Because the
EDR process is the appropriate forum for Levenson’s claim,
and because I have been delegated the authority to rule on his
claim pursuant to the procedures set forth in the EDR Plan, I
conclude that I am the “appropriate authority” to make the
determination as to whether Levenson’s rights have been vio-
lated.
7
Federal Public Defender Organizations are established pursuant to 18
U.S.C. § 3006A(g)(2), which grants each United States Court of Appeals
the authority to appoint and remove Federal Public Defenders. Attorneys
employed by Federal Public Defender Organizations are employees of the
judicial branch. See Sullivan v. United States, 21 F.3d 198, 202 (7th Cir.
1994).
15556 IN THE MATTER OF LEVENSON
2. Eligibility for monetary relief
Under the Back Pay Act, the violation of an employee’s
rights creates entitlement to a monetary award only if it has
caused “the withdrawal or reduction of all or part of [his] pay,
allowances, or differentials” through a “personnel action” that
was “unjustified or unwarranted.” 5 U.S.C. § 5596(b)(1). Pre-
liminarily, I might note that, in my view, the phrase “with-
drawal or reduction” includes the term “withholding.”
a. Pay, allowances, and differentials
OPM’s regulations define “pay, allowances, and differen-
tials” to include “pay, leave, and other monetary employment
benefits to which an employee is entitled by statute or regula-
tion and which are payable by the employing agency to an
employee during periods of Federal employment.” 5 C.F.R.
§ 550.803. The commentary accompanying the regulations
explains that “benefits received under the Federal employee
health benefits . . . programs prior to retirement are employ-
ment benefits” falling within the scope of this definition.
Rules and Regulations, Office of Personnel Management, 5
C.F.R. pt. 550, 46 Fed. Reg. 58,271, 58,272 (Dec. 1, 1981).
The ability to obtain health, dental, and vision care for
one’s family is a valuable benefit of employment; indeed,
when employers and employees consider questions about
appropriate compensation, health care is often a weightier
issue than base rate of pay. Accordingly, I adopt OPM’s inter-
pretation that health benefits must be considered “pay, allow-
ances, or differentials” as those terms are used in the Back
Pay Act. I therefore conclude that the failure to enroll Leven-
son’s spouse in his federal benefits plans has resulted in “the
withdrawal or reduction of all or part of [his] pay, allowances,
or differentials.”
b. Personnel action
To satisfy the statutory criteria of the Back Pay Act, the
withdrawal or reduction of pay, allowances, or differentials
IN THE MATTER OF LEVENSON 15557
must have occurred as the result of a “personnel action.” 5
U.S.C. § 5596(b)(1). The definition of “personnel action”
includes “the omission or failure to take an action or confer
a benefit.” Id. § 5596(b)(5). The failure to provide Levenson
with spousal health insurance coverage, which is a valuable
employment benefit, satisfies this definition.
c. Unjustified or unwarranted
The Back Pay Act provides for relief if the personnel action
that caused the withdrawal or reduction of pay, allowances or
differentials was “unjustified or unwarranted.” 5 U.S.C.
§ 5596(b)(1). Under OPM’s regulations, an “unjustified or
unwarranted” personnel action includes
an act of omission (i.e., failure to . . . confer a bene-
fit) that an appropriate authority subsequently deter-
mines, on the basis of substantive or procedural
defects, to have been unjustified or unwarranted
under applicable law . . . or mandatory personnel
policy established by an agency or through a collec-
tive bargaining agreement.
5 C.F.R. § 550.803. Here, Levenson challenged the “failure to
. . . confer” federal benefits to his spouse. Through the EDR
process, I have found that the challenged personnel action
constitutes discrimination on the basis of sex or sexual orien-
tation. I reached that conclusion on the basis of both a “man-
datory personnel policy” (the EDR Plan) and “applicable law”
(the Constitution). Accordingly, I conclude that the denial of
federal benefits to Levenson’s spouse constitutes an “unjusti-
fied or unwarranted personnel action” under the Back Pay
Act.
3. Timing and extent of monetary relief
a. Correction of the personnel action
The Back Pay Act states that an employee who suffers the
withdrawal or reduction of pay, allowances, or differentials as
15558 IN THE MATTER OF LEVENSON
the result of an unjustified or unwarranted personnel action
becomes eligible for a monetary award “on correction of the
personnel action.” 5 U.S.C. § 5596(b)(1). This criterion is sat-
isfied upon the determination by an appropriate authority that
the personnel action has violated the employee’s rights and
the issuance of an appropriate order to correct that action.
Because I made such a determination and issued such an order
on February 2, 2009, I conclude that Levenson is currently
eligible for a back pay award.
b. Period for which the personnel action is in
effect
A back pay award may cover only the “period for which
the personnel action was in effect,” 5 U.S.C. § 5596(b)(1)(A),
and “in no case may pay, allowances, or differentials be
granted . . . for a period beginning more than 6 years before
the date of the filing of a timely appeal or, absent such filing,
the date of the administrative determination.” Id.§ 5596(b)(4).
The relevant period, for purposes of computing a back pay
award, began on July 15, 2008, when Levenson first
attempted to enroll his spouse in his federal benefits plans.
That start date falls within the six-year statutory time limit,
whether measured from the date of this order or my previous
order. Although my previous order directed the correction of
the wrongful denial of federal benefits to Levenson’s spouse,
that order has not yet been implemented; thus, it has not
resulted in Levenson actually receiving the benefits to which
he is entitled. Until Levenson begins to receive FEHBA and
FEDVIP coverage for his spouse, as opposed to back pay, the
unwarranted or unjustified personnel action remains in effect
and he will be entitled to accrue back pay.
c. Amount equal to the wrongfully denied benefits
Because Levenson has been found by an appropriate
authority to have been affected by an unjustified or unwar-
IN THE MATTER OF LEVENSON 15559
ranted personnel action that resulted in the reduction of his
employment benefits, he is now entitled to receive “an
amount equal to all or any part of the pay, allowances, or dif-
ferentials, as applicable which the employee normally would
have earned or received during the period if the personnel
action had not occurred.” 5 U.S.C. § 5596(b)(1).
Had Levenson been permitted to enroll his spouse in the
federal benefits plans, Levenson would have received health,
dental, and vision insurance covering him. While there is no
obvious way to determine “an amount equal to” that coverage,
I believe that the amount that it would have cost to obtain
comparable coverage is likely to be the closest possible approxi-
mation.8 On remand, the FPD in consultation with Levenson
shall resolve that question and compute the amount due to
date, as well as determine whether amounts that may accrue
following the period covered by such payment shall be paid
on a monthly, quarterly, or other basis.
4. Conclusion
I continue to retain jurisdiction over this matter so that I
may resolve any disputes that may arise on remand and so
that I may issue any further order that may be necessary.
_________________
Stephen Reinhardt
Circuit Judge
8
This amount is not necessarily equivalent to the expenses that Leven-
son actually incurred for his spouse’s health care during the relevant
period; in fact, the EDR Plan expressly precludes an award of compensa-
tory damages. EDR Plan at A-13. I recognize, in addition, that the insur-
ance Levenson and Sears bought did not provide coverage as full as that
provided through the FEHBA plan, and that it did not cover Sears’s dental
or vision care, for which the couple has been paying on an out-of-pocket
basis. Finally, I recognize that it may not be possible to obtain precisely
the same coverage in an individual policy that spouses are provided under
the government’s group policy.
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