DEAN HARA v. OPM , No. 09-3134 (Fed. Cir. 2013)
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Case: 09-3134 Document: 34 Page: 1 Filed: 09/16/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ DEAN T. HARA, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. ______________________ 2009-3134 ______________________ Petition for review of the Merit Systems Protection Board in No. PH0831080099-I-2. ______________________ ON MOTION ______________________ Before LOURIE, O MALLEY, AND REYNA, Circuit Judges. O MALLEY, Circuit Judge. ORDER When Gerry E. Studds retired as a Congressman from the state of Massachusetts, he was married to petitioner Dean Hara under Massachusetts law. After the Congressman died in 2006, petitioner filed with the Office of Personnel Management (OPM) a request for spousal Case: 09-3134 Document: 34 2 Page: 2 DEAN HARA Filed: 09/16/2013 v. OPM survivor annuity benefits based upon the Congressman s federal service. In its initial and reconsideration decisions, OPM denied that request. On review, an administrative law judge of the Merit Systems Protection Board affirmed OPM s ruling. The Board s administrative judge held that while Congressman Studds clearly wished for petitioner to receive a spousal survivor annuity the petitioner was not recognized as the Congressman s spouse under § 3 of the Defense of Marriage Act, and petitioner was thus barred from receiving such benefits. Petitioner sought review of that decision in this court. We held the case in abeyance pending the Supreme Court s review of the constitutionality of § 3 of DOMA. On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor, 133 S. Ct. 2675, 2695 (2013), holding that § 3 of DOMA is unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment of the Constitution. In light of the Supreme Court s decision in Windsor, the parties agree that the Board s decision should be vacated and the matter remanded for proceedings consistent with the Supreme Court s decision. Accordingly, IT IS ORDERED THAT: (1) The motion is granted. The decision of the Board is vacated and the matter remanded for further proceedings consistent with Windsor. (2) Each side shall bear its own costs. Case: 09-3134 DEAN HARA Document: 34 Page: 3 Filed: 09/16/2013 v. OPM 3 FOR THE COURT /s/ Daniel E. O Toole Daniel E. O Toole Clerk s19 ISSUED AS MANDATE: September 16, 2013
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