## Facts

- Brad Levenson was a deputy federal public defender in the Office of the Federal Public Defender for the Central District of California (FPD).
- Levenson and Tony Sears had been partners for many years; they registered a domestic partnership in California in 2000.
- On July 12, 2008, Levenson and Sears were married under California law.
- On July 15, 2008, Levenson asked the FPD to add Sears, as his husband, as a family-member beneficiary for Levenson’s federal employee health benefits and related dental and vision benefits.
- The request was denied because the federal government did not recognize same-sex marriage for federal benefits purposes at that time, based on the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and related guidance stating that Judicial Branch employees’ benefits were governed by federal law.
- Levenson initiated an internal employment dispute under the Ninth Circuit’s Employment Dispute Resolution Plan for Federal Public Defenders and Staff (EDR Plan), which expressly prohibited discrimination based on sex and sexual orientation.
- After counseling and mediation failed, the complaint proceeded for decision within the Ninth Circuit’s EDR process and Judicial Council structure, with Judge Stephen Reinhardt acting as the presiding judicial officer.
- The Judicial Council’s order addressed whether the denial of spousal benefits could stand under the EDR Plan and the Fifth Amendment, and what relief could be directed within the Judicial Branch benefits process.

## Issues

1. Whether denying health, dental, and vision benefits to Levenson’s same-sex spouse violated the EDR Plan’s prohibition on discrimination based on sex and sexual orientation.
2. Whether DOMA, as applied to bar recognition of Levenson’s lawful same-sex marriage for spousal benefits in this Judicial Branch employment setting, violated the Fifth Amendment’s Due Process Clause (including equal-protection principles applicable to the federal government).
3. What remedial action the Judicial Council could order to address the benefits denial.

## Decision

- The Judicial Council held that the denial of Levenson’s request to enroll Sears as a beneficiary violated the EDR Plan’s ban on discrimination based on sex and sexual orientation.
- The Judicial Council further held that DOMA, as applied to deny spousal benefits to a lawfully married same-sex spouse in this context, lacked a rational basis and violated the Fifth Amendment.
- The Judicial Council ordered the Director of the Administrative Office of the United States Courts to submit Levenson’s health benefits election form (SF-2809) and to process his dental and vision benefits request without regard to the sex of his spouse, so that Sears would be treated as an eligible spouse for coverage purposes.

## Legal Principles

- An employment dispute plan that bars discrimination based on sex and sexual orientation applies to compensation and benefits, including eligibility to enroll a spouse for employer-provided health and related coverage.
- Denying spousal benefits to an employee because the employee’s spouse is the same sex, while providing those benefits to employees with opposite-sex spouses, is discrimination based on sex and sexual orientation under a nondiscrimination rule governing terms and conditions of employment.
- The Fifth Amendment’s Due Process Clause incorporates equal-protection principles that bar federal classifications that lack a rational relationship to a legitimate governmental purpose; a classification resting on disapproval of a targeted group is not a legitimate basis for disparate treatment.
- Within an internal Judicial Branch employment dispute process, the Judicial Council may order administrative steps within its authority to remedy discriminatory treatment in benefits administration, including directing submission and processing of enrollment materials on nondiscriminatory terms.

## Conclusion

In *In the Matter of Levenson*, the Ninth Circuit Judicial Council concluded that refusing to extend federal employee health, dental, and vision benefits to Brad Levenson’s lawfully married same-sex spouse violated the Ninth Circuit’s EDR Plan and that DOMA was unconstitutional as applied to bar those benefits under the Fifth Amendment; it ordered Judicial Branch benefits officials to process Levenson’s enrollment paperwork without regard to the sex of his spouse so that his husband could be treated as an eligible spouse for coverage.


In the Matter of Levenson, 560 F.3d 1145 (2009)