One of the three cases being argued next week at the Federal Circuit that attracted amicus briefs is a death benefit case entitled Rolfingsmeyer v. Office of Personnel Management. In this case, the Federal Circuit will review the Merit Systems Protection Board’s decision denying Patricia Rolfingsmeyer a survivor annuity and a basic employee death benefit based on the death of Tina Sammons, her alleged common law spouse. This is our argument preview.
In her opening brief, Rolfingsmeyer makes two arguments.
First, Rolfingsmeyer contends OPM’s regulation on point is unconstitutional because it relies on unconstitutional state laws to deny benefits to same-sex couples. In particular, Rolfingsmeyer argues that “[t]he only basis for OPM’s denial of survivor benefits to Ms. Rolfingsmeyer is the fact that, according to Pennsylvania law, she was not married to Ms. Sammons before May 4, 2013—i.e., for more than nine months before Ms. Sammons’ death.” According to Rolfingsmeyer, however, “the only reason Ms. Rolfingsmeyer and Ms. Sammons were not married under Pennsylvania law for more than nine months—or, for that matter, at any time during Ms. Sammons’ life—is that for the entire sixteen years they were together, Pennsylvania banned same-sex marriage and refused to recognize otherwise-valid same-sex marriages performed in other states.” Therefore, Rolfingsmeyer asserts, “by applying the Regulation to Ms. Rolfingsmeyer, OPM has rubber-stamped and perpetuated Pennsylvania’s unconstitutional same-sex marriage ban, thus violating the basic, black-letter principle that ‘same-sex couples, no less than opposite sex couples, must have access’ to the full array of rights related to marriage.”
Second, Rolfingsmeyer argues while OPM’s reliance on unconstitutional state laws to deny benefits to same-sex couples alone justifies reversal, “application of the traditional equal protection doctrine reinforces the conclusion that the [Administrative Law Judge’s] judgment should be reversed.” In particular, Rolfingsmeyer contends, “[t]he Regulation, by incorporating state laws limiting marriage to opposite-sex couples, discriminates based on sex and sexual orientation and is therefore subject to heightened scrutiny.” According to Rolfingsmeyer, moreover, “the Regulation cannot satisfy heightened scrutiny—or even rational basis review—both because the interests the Regulation purports to advance are insignificant and because those interests are not furthered by the blanket denial of benefits to same-sex couples who were subject to unconstitutional state-law marriage bans.”
OPM, in its response brief, begins by asserting that “[a] claimant’s entitlement to benefits is determined by applying the law that is in effect when the benefit ‘becomes due.'” According to OPM, “[u]nder FERS [5 U.S.C. § 8441(1)(A)], a surviving spouse is entitled to an annuity if the duration of his or her marriage with the deceased Federal employee was at least nine months.” OPM argues that, in this case, “OPM acknowledged Ms. Rolfingsmeyer’s same-sex marriage in Maryland as a valid marriage, notwithstanding Ms. Sammons’s domicile in Pennsylvania, and the fact that Pennsylvania law prior to Ms. Sammons’s death did not recognize same-sex marriages contracted in other jurisdictions.” In this regard, OPM contends “it denied her application solely because she and Ms. Sammons were not married for at least nine months immediately before Ms. Sammons’s death on February 4, 2014.” According to OPM, “the unconstitutional laws of Ms. Sammons’s domicile, Pennsylvania, were irrelevant in OPM’s evaluation of whether she was Ms. Sammons’s ‘current spouse,’ 5 C.F.R. 843.102, and the duration of their marriage.”
With regard to Rolfingsmeyer’s equal protection argument, OPM contends she “also cannot demonstrate that heightened scrutiny applies to OPM’s denial of her application.” According to OPM, “Congress did not adopt a duration-of-marriage requirement to discriminate on the basis of sexual orientation, but rather to govern the payment of monetary benefits, and this eligibility requirement applies to surviving spouses of same-sex marriages exactly as it does to surviving spouses of heterosexual marriages.” Therefore, OPM concludes, “OPM’s denial of death benefits, and the administrative judge’s affirmance of that denial, relied on neutral laws . . . that do not target a suspect class or burden a fundamental right, and thus are subject to and satisfy rational-basis review.”
In her reply brief, Rolfingsmeyer argues that, while “OPM spends much of its brief arguing . . . that the statutory nine-month duration-of- marriage requirement is constitutional,” “petitioner is not challenging the duration requirement on appeal.” Instead, Rolfingsmeyer contends, “[h]er objection is to OPM’s denial of benefits on the ground that she was not ‘married’ under state law until 2013, even though it is conceded she would have been married to Ms. Sammons for years—and therefore entitled to benefits—were it not for Illinois’ and Pennsylvania’s undisputedly unconstitutional bans on same-sex marriage.”
Two amicus briefs were filed, both in support of Rolfingsmeyer.
James Obergefell, Michael Ely, and Anthony J. Gonzales filed an amicus brief in support of Rolfingsmeyer. In it, they argue that, “[s]imilar to the harms suffered by Ms. Rolfingsmeyer, the federal government denied amici curiae access to social security survivor’s benefits based on unconstitutional state laws that excluded them from marriage nine months before their loved ones died.”
Services and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders and Human Rights Campaign also filed an amicus brief in support of Rolfingsmeyer. In it, they contend that, “at its core, OPM’s decision ratifies and amplifies the effect of unconstitutional state bans on marriage between same-sex couples that once existed—and defies the letter and spirit of Obergefell—for no legitimate reason.”
Oral arguments will be heard on Friday, March 5. We will keep track of this case and report on any developments.