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DATE: January 16, 2015

Julie Wilensky, Oakland, California, for the appellant.

Michael Shipley, Washington, D.C., for the agency.
Benjamin Gutman
Chief Administrative Judge
The Office of Personnel Management (OPM) denied the appellants
application for benefits after the death of his husband, James Bland, because they
had married less than nine months before Mr. Blands death. Initial Appeal File
(IAF), Tab 10, at 6-8. The Board has jurisdiction over this appeal under 5 U.S.C.
8461(e)(1). IAF, Tab 1.
For the reasons discussed below, OPMs decision is REVERSED.

conclude that under the circumstances of this case, the period during which the
appellant and Mr. Bland were registered domestic partners before they married
counts towards the nine months of marriage required for spousal benefits. I reach

this conclusion mainly to avoid the serious constitutional questions that would be
raised by the contrary interpretation of the relevant statute.
If an employee covered by the Federal Employees Retirement System dies
after completing at least eighteen months of creditable service and is survived by
a spouse, the spouse is entitled to a basic death benefit equal to fifty percent of
the decedents annual salary plus $15,000.

5 U.S.C. 8442(b)(1); 5 C.F.R.

843.309. A surviving spouse generally is eligible for this benefit only if he was
married to the decedent for at least nine months. 5 U.S.C. 8441(2), 8442(e);
5 C.F.R. 843.303. State law determines whether and how long a couple was
married. 5 C.F.R. 843.102; Goldbach v. Office of Personnel Management, 42
M.S.P.R. 57, 59-60 (1989) (applying the analogous provisions of the Civil
Service Retirement System).
Until recently, California law did not allow same-sex couples to get
married. See In re Marriage Cases, 183 P.3d 384, 407-13 (Cal. 2008). It instead
allowed them to register as domestic partners with the state.

Id. at 413-14.

California effectively treats domestic partnerships as marriages in all but name.

Id. at 414-18. Aside from a handful of minor (and mostly clerical) differences,
the process for entering a registered domestic partnership is the same as the
process for getting married, the property rights and liabilities of domestic
partners are identical to those of a married couple, and domestic partners who
want to terminate their partnership must get divorced under the same procedures
as a married couple. See Cal. Fam. Code 297-299; see also In re Marriage
Cases, 183 P.3d at 416 n.24 (cataloging the nine differences in effect in 2008).
Statutes and regulations that refer to the date of a marriage are deemed to refer to
the date of registration of the domestic partnership with the state.
Code 297.5(k)(1).

Cal. Fam.

The appellant and Mr. Bland met in 2003 and soon afterwards became a
couple. IAF, Tab 12, at 0:02. They held a commitment ceremony that same year,
moved in together, and began referring to one another as husband or spouse.
Id. In 2005, they registered as domestic partners with California because that was
the most that the state allowed them to do at the time. Id. at 0:03; see also id.,
Tab 7, at 36.
On June 28, 2013, a federal court order striking down Californias ban on
same-sex marriage went into effect, and same-sex marriage effectively became
legal in California. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003
(N.D. Cal. 2010), appeal dismissed sub nom. Hollingsworth v. Perry, 133 S. Ct.
2652 (2013); see also Perry v. Brown, 725 F.3d 968 (9th Cir. 2013). Eleven days
later, the appellant and Mr. Bland married. IAF, Tab 7, at 38.
Less than seven months after their wedding, Mr. Bland passed away. Id. at
40. At the time of his death, he had been a federal employee for about three and
a half years. Id. at 43-44.
The appellant applied for death benefits after his husband passed away.
Id., Tab 10, at 45-49. OPM denied the application for a basic employee death
benefit because the appellant had been married to Mr. Bland for less than nine
months; it awarded the appellant only a lump-sum refund of Mr. Blands
retirement contributions.

Id. at 6-8.

After OPM issued a final decision, the

appellant timely appealed to the Board. Id., Tab 1. I held a telephonic hearing on
January 12, 2015, and the record on appeal closed at the end of the hearing. Id.,
Tab 12, at 0:30.
The appellant is entitled to the basic employee death benefit
The appellant had the burden of proving by a preponderance of the
evidence that he was entitled to the basic employee death benefit for Mr. Bland.
5 C.F.R. 1201.56(a)(2).

There was no dispute that Mr. Bland was a federal employee with more
than eighteen months of creditable service and that he was survived by a current
spouse, the appellant. IAF, Tab 10, at 4, 27, 62. There also was no dispute that
the appellant and Mr. Bland were registered domestic partners under California
law for more than eight years before Mr. Blands death, but that they were
married for less than seven months. Id., Tab 7, at 36-40. The only question was
whether the domestic partnership could be combined with the marriage to satisfy
the nine-month durational requirement.

Cf. Huizar v. Office of Personnel

Management, 19 M.S.P.R. 256 (1984) (combining a ceremonial marriage to a

common-law marriage to satisfy the durational requirement). This appears to be
a question of first impression.
The statutory text itself does not answer the question. It requires, with
exceptions not relevant here, that the surviving spouse have been married to [the
decedent] for at least 9 months immediately before [his] death.

5 U.S.C.

8441(a)(2)(A). The statute does not indicate whether this requirement can be
met by a state-law status that is equivalent to marriage but not called marriage
in other words, whether it is the substance of the legal relationship or its label
that matters. OPMs regulations merely repeat the statutory language and so do
not answer this question either, although they confirm that state law rather than
federal law determines whether a couple was married.

5 C.F.R. 843.102,

The parties also have not pointed me to any formal

pronouncement from OPM setting forth its authoritative interpretation of the

statutory or regulatory text.
The statutory term married in 8441 could be construed as applying only
to a relationship that the state expressly calls a marriage. But it would not be a
great stretch to construe it also to cover a registered domestic partnership in
California, which shares all the important features of a marriage.


California law, for purposes of statutes like 8441 the appellant and Mr. Bland
are deemed to have been married since 2005. Cal. Fam. Code 297.5(k)(1); see

also id. 297.5(e).

Some courts have interpreted federal laws that refer to

marriage (or similar terms) to cover domestic partnerships or civil unions that are
equivalent to marriages. See, e.g., In re Cusimano, No. 8:10-BK-23646-ES, at
6 (Bankr. C.D. Cal. Nov. 12, 2013) (California domestic partnership for purposes
of federal bankruptcy law), reprinted in IAF, Tab 11, at 10; Cozen OConnor,
P.C. v. Tobits, 2013 WL 3878688, at *4 & n.29 (E.D. Pa. July 29, 2013) (Illinois
civil union for purposes of the federal Employee Retirement Income Security
So there are two plausible interpretations of the statute, and I must decide
which of them to adopt.

One tool for choosing between competing plausible

interpretations of a statutory text is the principle of constitutional avoidance.

Clark v. Martinez, 543 U.S. 371, 381 (2005).

Under this principle, an

interpretation of a statute that would raise constitutional difficulties should be

avoided if another interpretation is fairly possible. Immigration & Naturalization
Service v. St. Cyr, 533 U.S. 289, 299-300 (2001). The principle rests on the
reasonable presumption that absent some clear indication to the contrary,
Congress would not have intended the interpretation that raises serious
constitutional doubts. Clark, 543 U.S. at 381. The Federal Circuit has gone so
far as to say that a plausible alternative should be adopted even if it finds little
support in the literal language of the statute. SKF USA, Inc. v. U.S. Customs &
Border Protection, 556 F.3d 1337, 1349-50 (Fed. Cir. 2009).
Here, I find that the narrower interpretation that looks only to the label the
state gave the relationship rather than its substance would raise serious
constitutional questions.

The Ninth Circuit Judicial Councils Executive

Committee recently held that OPM violated due process and equal protection
when it refused to allow an employee to enroll her domestic partner under her
family health plan. In re Fonberg, 736 F.3d 901, 903 (9th Cir. Jud. Council
2013). The domestic partnership in that case was under Oregon law, whichlike
California lawimposes essentially the same rights and responsibilities on

domestic partners as on married spouses. Id. at 901-02; see also Or. Rev. Stat.
106.340. Fonberg is not controlling here, but it represents the views of three
well-respected Article III judges on an issue of constitutional law that is closely
related to the issue that would be presented here if I were to accept the narrower
interpretation of the statute.

I do not decide whether Fonbergs reasoning is

But at a minimum, Fonberg shows that the narrower interpretation

would raise serious constitutional questions. This gives a strong reason to avoid
that interpretation and instead adopt the broader one that includes registered
domestic partnerships.
Constitutional avoidance can be overcome if the alternative interpretation
is plainly contrary to the intent of Congress. United States v. X-Citement Video,
Inc., 513 U.S. 64, 78 (1994). But I see no indication that construing the statute to
cover periods of domestic partnership would subvert the congressional intent
behind the marriage-duration requirement. The purpose of this requirement is to
protect the retirement system against deathbed marriagesmarriages that are
formed only to confer death benefits on the surviving spouse.

Huizar, 19

M.S.P.R. at 259. That purpose is not thwarted by a construction covering other

legal relationships that bear all the usual features of marriage. The appellant and
Mr. Bland had a formal, legally recognized relationship for almost a decade
before Mr. Blands death.

They married just days after they became legally

entitled to do so. In no way could their relationship be described as a deathbed

marriage, and granting the appellant death benefits would not open the door to
individuals seeking to profit from short-term marriages of convenience.
This also is not a situation like in Slate v. Office of Personnel Management,
10 M.S.P.R. 658, 659 (1982), where the Board declined to award spousal benefits
to a person who had been in a nonmarital relationship that the state recognized
for purposes of property rights only.

California domestic partnerships are

equivalent to marriages in essentially all significant respects: formation, rights,

responsibilities, and divorce. See Cal. Fam. Code 297-299. It is no easier to

get out of a domestic partnership than to dissolve a marriage. In this respect, too,
crediting time spent in a domestic partnership towards the marriage-duration
requirement should not open the door to couples who have not made a serious,
long-term commitment to one another.
In sum, I find that the requirement in 8441 (and the corresponding
regulation, 5 C.F.R. 843.303) that the surviving spouse have been married to
the decedent for at least nine months is satisfied by a registered domestic
partnership that is equivalent to marriage under state law. It is undisputed here
that the appellant and Mr. Bland were either married or registered domestic
partners for at least nine months before Mr. Blands death. It also is undisputed
that California treats registered domestic partnership as equivalent to marriage for
all practical purposes. I therefore find that the appellants relationship with Mr.
Bland satisfied the marriage-duration requirement and that the appellant was
eligible for the basic employee death benefit under 843.309. OPMs decision to
the contrary must be reversed.
Affirmative defenses
The appellant raised affirmative defenses of sex and sexual-orientation
discrimination. IAF, Tab 8, at 2. Other than the claim under Title VII of the
Civil Right Act of 1964, it is not clear that I need to address these defenses
because they would not entitle the appellant any additional relief beyond what I
am already ordering. See Jenkins v. Environmental Protection Agency, 118
M.S.P.R. 161, 14 (2012); Van Prichard v. Department of Defense, 117 M.S.P.R.
88, 25 (2011), affd, 484 F. Appx 489 (Fed. Cir. 2012). The appellant also
disclaimed any interest in seeking additional relief under Title VII if he prevailed
on the merits. IAF, Tab 12, at 0:26-0:27. But in an abundance of caution, I
address the defenses briefly.
The appellant had the burden of proving his discrimination claims by a
preponderance of the evidence. 5 C.F.R. 1201.56(a)(2). But where, as here,

OPM had no discretion in determining an individuals eligibility for benefits,
there generally can be no improper discrimination. See, e.g., Muyco v. Office of
Personnel Management, 114 M.S.P.R. 694, 15 (2010); Jordan v. Office of
Personnel Management, 108 M.S.P.R. 119, 9 (2008). Although as explained
above I find that OPM mistakenly denied the appellant the benefits to which he
was entitled, I saw no persuasive evidence that it did so because of the
appellants sex or sexual orientation, as opposed to an incorrect statutory
interpretation. Accordingly, I find that the appellant did not prove his affirmative
The appellant also requested that OPM award him health benefits. IAF,
Tab 7, at 8 n.4. It may be that he becomes entitled to these benefits automatically
upon receiving the basic employee death benefit. See 5 C.F.R. 890.303(c). But
the Board generally lacks jurisdiction over health-insurance decisions by OPM.
See Hudson v. Office of Personnel Management, 114 M.S.P.R. 669, 10 (2010).
To the extent the dispute here is a compliance matter within the Boards
enforcement jurisdiction, I will defer addressing it until a petition for
enforcement is filed, should that become necessary.

See Souders v. Office of

Personnel Management, 35 M.S.P.R. 353, 355 (1987).

OPMs reconsideration decision is REVERSED.
I ORDER the agency to deem the appellant to have met the marriageduration requirements of 5 C.F.R. 843.303 and to grant him the basic employee
death benefit and any other benefits to which he would be entitled based on Mr.
Blands service. The agency may, if appropriate, offset these benefits by the
amount of any refund the appellant has already received. This action must be
accomplished no later than 20 calendar days after the date this initial decision
becomes final.

I also ORDER the agency to inform the appellant in writing of all actions
taken to comply with the Boards Order and the date on which it believes it has
fully complied. If not notified, appellant should ask the agency about its efforts to
comply before filing a petition for enforcement.
Although the appellant is the prevailing party, I have determined under
5 U.S.C. 7701(b)(2)(A) that it would not be appropriate to order interim relief
because this is a retirement appeal.

See Steele v. Office of Personnel

Management, 57 M.S.P.R. 458, 464 (1993), affd, 50 F.3d 21 (Fed. Cir. 1995).


Benjamin Gutman
Chief Administrative Judge

This initial decision will become final on February 20, 2015, unless a
petition for review is filed by that date. This is an important date because it is
usually the last day on which you can file a petition for review with the Board.
However, if you prove that you received this initial decision more than 5 days
after the date of issuance, you may file a petition for review within 30 days after
the date you actually receive the initial decision. If you are represented, the 30day period begins to run upon either your receipt of the initial decision or its
receipt by your representative, whichever comes first. You must establish the
date on which you or your representative received it. The date on which the
initial decision becomes final also controls when you can file a petition for
review with the Equal Employment Opportunity Commission (EEOC) or with a
federal court. The paragraphs that follow tell you how and when to file with the
Board, the EEOC, or the federal district court. These instructions are important

because if you wish to file a petition, you must file it within the proper time
You may request Board review of this initial decision by filing a petition
for review if you believe that the settlement agreement is unlawful, was
involuntary, or was the result of fraud or mutual mistake. Your petition, with
supporting evidence and argument, must be filed with Clerk of the Board at the
address below.
If the other party has already filed a timely petition for review, you may
file a cross petition for review. Your petition or cross petition for review must
state your objections to the initial decision, supported by references to applicable
laws, regulations, and the record. You must file it with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419
A petition or cross petition for review may be filed by mail, facsimile (fax),
personal or commercial delivery, or electronic filing. A petition submitted by
electronic filing must comply with the requirements of 5 C.F.R. 1201.14, and









Criteria for Granting a Petition or Cross Petition for Review
The criteria for review are set out at 5 C.F.R. 1201.115, as follows:
The Board normally will consider only issues raised in a timely filed
petition or cross petition for review. Situations in which the Board may grant a
petition or cross petition for review include, but are not limited to, a showing
(a) The initial decision contains erroneous findings of material fact; (1)
Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner
who alleges that the judge made erroneous findings of material fact must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. In reviewing a claim of an
erroneous finding of fact, the Board will give deference to an administrative
judge's credibility determinations when they are based, explicitly or implicitly, on
the observation of the demeanor of witnesses testifying at a hearing.
(b) The initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case. The
petitioner must explain how the error affected the outcome of the case;
(c) The judges rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case;
(d) New and material evidence or legal argument is available that, despite
the petitioners due diligence, was not available when the record closed. To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed;
(e) Notwithstanding the above provisions in this section, the Board reserves
the authority to consider any issue in an appeal before it.
As stated in 5 C.F.R. 1201.114(h), a petition for review, a cross petition
for review, or a response to a petition for review, whether computer generated,
typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A
reply to a response to a petition for review is limited to 15 pages or 3750 words,
whichever is less. Computer generated and typed pleadings must use no less than
12 point typeface and 1-inch margins and must be double spaced and only use one
side of a page. The length limitation is exclusive of any table of contents, table of
authorities, attachments, and certificate of service. A request for leave to file a
pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such
requests must give the reasons for a waiver as well as the desired length of the
pleading and are granted only in exceptional circumstances. The page and word
limits set forth above are maximum limits. Parties are not expected or required to
submit pleadings of the maximum length. Typically, a well-written petition for
review is between 5 and 10 pages long.
If you file a petition or cross petition for review, the Board will obtain the
record in your case from the administrative judge and you should not submit
anything to the Board that is already part of the record. A petition for review
must be filed with the Clerk of the Board no later than the date this initial
decision becomes final, or if this initial decision is received by you or your
representative more than 5 days after the date of issuance, 30 days after the date
you or your representative actually received the initial decision, whichever was
first. If you claim that you and your representative both received this decision
more than 5 days after its issuance, you have the burden to prove to the Board the
earlier date of receipt. You must also show that any delay in receiving the initial
decision was not due to the deliberate evasion of receipt. You may meet your
burden by filing evidence and argument, sworn or under penalty of perjury (see 5
C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail
is determined by the postmark date. The date of filing by fax or by electronic
filing is the date of submission. The date of filing by personal delivery is the
date on which the Board receives the document. The date of filing by commercial
delivery is the date the document was delivered to the commercial delivery
service. Your petition may be rejected and returned to you if you fail to provide
a statement of how you served your petition on the other party. See 5 C.F.R.
1201.4(j). If the petition is filed electronically, the online process itself will
serve the petition on other e-filers. See 5 C.F.R. 1201.14(j)(1).
A cross petition for review must be filed within 25 days after the date of
service of the petition for review.

If no petition for review is filed, you may ask for the payment of attorney
fees (plus costs, expert witness fees, and litigation expenses, where applicable) by
filing a motion with this office as soon as possible, but no later than 60 calendar
days after the date this initial decision becomes final. Any such motion must be
prepared in accordance with the provisions of 5 C.F.R. Part 1201, Subpart H, and
applicable case law.
If, after the agency has informed you that it has fully complied with this
decision, you believe that there has not been full compliance, you may ask the
Board to enforce its decision by filing a petition for enforcement with this office,










Your petition must include the date and results of any

communications regarding compliance, and a statement showing that a copy of

the petition was either mailed or hand-delivered to the agency.
Any petition for enforcement must be filed no more than 30 days after the
date of service of the agencys notice that it has complied with the decision. If
you believe that your petition is filed late, you should include a statement and
evidence showing good cause for the delay and a request for an extension of time
for filing.
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.
You have the right to request further review of this decision only after it
becomes final, as set forth above.

Discrimination Claims: Administrative Review
You may request review of this decision on your discrimination claims by
the Equal Employment Opportunity Commission (EEOC).

See Title 5 of the

United States Code, section 7702(b)(1) (5 U.S.C. 7702(b)(1)). If you submit

your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You, or your representative if you are represented, should send your
request to EEOC no later than 30 calendar days after the date this decision
becomes final. If you choose to file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. 7703(b)(2). You, or your representative if you are
represented, must file your civil action with the district court no later than 30
calendar days after the date this decision becomes final. If you choose to file, be
very careful to file on time. If the action involves a claim of discrimination based
on race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security.
2000e5(f) and 29 U.S.C. 794a.

See 42 U.S.C.