Opinion
CASE NO. C18-1409JLR
2020-09-11
Helen Josephine THORNTON, et al., Plaintiffs, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Linda Rae Larson, Nossaman LLP, Seattle, WA, Tara Borelli, Lambda Legal Defense and Education Fund, Inc., Decatur, GA, Karen Loewy, Pro Hac Vice, Lambda Legal Defense & Education Fund, Washington, DC, Peter C. Renn, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Robert D. Thornton, Pro Hac Vice, Nossaman LLP, Irvine, CA, for Plaintiffs. Stephen Michael Pezzi, US Department of Justice, Washington, DC, Sarah L. Martin, Sarah E. Moum, Social Security Administration, Seattle, WA, for Defendant.
Linda Rae Larson, Nossaman LLP, Seattle, WA, Tara Borelli, Lambda Legal Defense and Education Fund, Inc., Decatur, GA, Karen Loewy, Pro Hac Vice, Lambda Legal Defense & Education Fund, Washington, DC, Peter C. Renn, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Robert D. Thornton, Pro Hac Vice, Nossaman LLP, Irvine, CA, for Plaintiffs.
Stephen Michael Pezzi, US Department of Justice, Washington, DC, Sarah L. Martin, Sarah E. Moum, Social Security Administration, Seattle, WA, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
JAMES L. ROBART, United States District Judge
I. INTRODUCTION
Before the court is Magistrate Judge J. Richard Creatura's combined report and recommendation on Plaintiffs Helen Josephine Thornton and National Committee to Preserve Social Security and Medicare's (the "National Committee") (collectively, "Plaintiffs") complaint and motion for class certification (the "Report and Recommendation"). (R&R (Dkt. # 74).) Magistrate Judge Creatura issued the Report and Recommendation in response to Plaintiffs’ motion on the merits of the complaint and for class certification. (See Mot. (Dkt. # 53); see also Resp. (Dkt. # 63); Reply (Dkt. # 64).) Plaintiffs and Defendant Commissioner of Social Security ("the Commissioner") also submitted multiple rounds of supplemental briefing to Magistrate Judge Creatura and participated in oral argument before Magistrate Judge Creatura. (See Def. 1st Supp. Br. (Dkt. # 67); Pl. 1st Supp. Br. (Dkt. # 68); Pl. 2d Supp. Br. (Dkt. # 71); Def. 2d Supp. Br. (Dkt. # 73); 11/21/19 Minute Entry (Dkt. # 65); 11/21/19 Hr. Tr. (Dkt. # 70).) After Magistrate Judge Creatura issued the Report and Recommendation, both parties filed objections to the Report and Recommendation (see Def. Obj. (Dkt. # 78); Pls. Obj. (Dkt. # 79)), and responses to the respective objections (see Def. Obj. Resp. (Dkt. # 81); Pls. Obj. Resp. (Dkt. # 80).) The court has considered the motion, the Report and Recommendation, the parties’ submissions filed in support of and in opposition to the motion and the Report and Recommendation, the oral argument of the parties, the relevant portions of the record, and the applicable law. Being fully advised, the court ADOPTS the Report and Recommendation as detailed below.
The parties stipulated to resolving this matter on the briefing. (See 4/11/19 Status Rpt. (Dkt. # 51); 4/16/19 Sched. Order (Dkt. # 52).)
II. BACKGROUND
Because the facts and procedural background of this case are well known to the parties and covered in detail in the Report and Recommendation (See R&R at 2-8), the court offers only a brief summary here.
This case arises out of the Social Security Administration's ("the Administration") decision to deny surviving spousal benefits ("survivor's benefits") to the surviving partners of same-sex couples who were prohibited from marrying because of now-unconstitutional state laws that banned same-sex marriage. (See generally 2d Am. Compl. ¶¶ 1-12.) As Magistrate Judge Creatura aptly details, Ms. Thornton—the lead plaintiff in this matter—and her partner, Margery Brown, spent 27 years together and "were partners for life in every meaningful way, except sharing a marriage license." (See R&R at 2-3.) During the time that Ms. Thornton and Ms. Brown were together—from approximately 1978 to 2006 (see Admin. Record ("AR") (Dkt. # 34) (sealed) at 70-76)— the state of Washington did not allow same-sex marriage, see RCW 26.04.010 (1998), amended by 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239). Unfortunately, Ms. Brown passed away in 2006 (see AR at 75), which was approximately one year before Washington recognized domestic partnerships and six years before Washington legalized same-sex marriage in 2012, see RCW 26.04.010 (2012). It is undisputed that Ms. Thornton and Ms. Brown would have married but for Washington State's law at the time, which made same-sex marriage illegal. (See Mot. at 3-6; Resp. at 35 ("Defendants have chosen not to dispute in this litigation that, but for Washington law, Ms. Thornton herself would have married ....").)
In January 2015, Ms. Thornton applied for Social Security survivor's benefits based on Ms. Brown's work history pursuant to 42 U.S.C. § 402. (See AR at 19-22.) Under the Social Security Act and the Administration's interpreting regulations, the surviving spouse—either a "widow" or a "widower"—of a deceased person is eligible to be paid monthly survivor's benefits if the deceased spouse would have been insured under the Social Security Act. See 42 U.S.C. §§ 402(e) -(f). The Social Security Act further provides that "[a]n applicant is the ... widow, or widower of a fully or currently insured individual ... if ... the courts of the State in which he was domiciled at the time of death ... would find that such applicant and such insured individual were validly married ... at the time he died." 42 U.S.C. § 416(h)(1)(A)(i).
On April 8, 2015, the Administration denied Ms. Thornton's application for benefits because she was not married to Ms. Brown at the time of Ms. Brown's death according to Washington law. (See AR at 20 ("[W]e cannot pay benefits to you because domestic partnership was not recognized in the State of Washington until January 22, 2007 after Margery B. Brown[’s] death. We cannot pay benefits to you because same sex marriage was not recognized in the State of Washington until December 14, 2012 after Margery B. Brown[’s] death.")). On December 8, 2015, the Administration denied Ms. Thornton's request for reconsideration because "at the time of Ms. Brown's death in 2006, the State of Washington did not recognize same-sex marriages." (See Supp. Admin Record ("Supp. AR") (Dkt. # 50) at 190.) Ms. Thornton requested a hearing in front of an Administrative Law Judge ("ALJ"), which was held on October 18, 2016. (See AR at 13.) On January 10, 2017, the ALJ concluded that Ms. Thornton was not entitled to survivor's benefits because she was not legally married to Ms. Brown under Washington law at the time of Ms. Brown's death. (Id. at 15.) Ms. Thornton appealed, but an appeals council denied review by letter dated July 23, 2018. (Id. at 2.)
After the Administration denied Ms. Thornton's request for review, Ms. Thornton filed this action challenging the Administration's denial of her benefits. (See generally 2d Am. Compl.) Ms. Thornton alleges that the Administration's adjudication of her claim for survivor's benefits and the claims of other surviving same sex partners violates the right to equal protection and the right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. (See id. ¶¶ 87-103.) The National Committee—a membership organization that is "committed to ensuring that social security benefits are widely accessible, including to same-sex spouses"—also joins Ms. Thornton's challenge to the Administration's actions "in furtherance of its mission and in support of Ms. Thornton and other similarly-situated members." (See id. ¶¶ 11-12, 14-16.)
The parties stipulated to address the merits of Ms. Thornton's challenges to the Administration's actions and the question of class certification and class relief simultaneously. (See 4/11/19 Status Rpt.; 4/16/19 Sched. Order.) Magistrate Judge Creatura issued the Report and Recommendation on January 31, 2020. (See R&R at 38.) On the merits of Ms. Thornton's claim, Magistrate Judge Creatura concluded that the Administration's actions violated her rights to due process and equal protection. (See R&R at 20.) Magistrate Judge Creatura also concluded that the following class definition met all of the requirements for class certification under Federal Rule of Civil Procedure 23 :
All persons nationwide who presented claims for social security survivor's benefits based on the work history of their same-sex partner and who were barred from satisfying the marriage requirements for such benefits because of applicable laws that prohibited same-sex marriage. This class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. Ariz.)
(Id. at 21.) Based on those conclusions, Magistrate Judge Creatura recommended that the court (1) grant Ms. Thornton's motion for class certification and certify the class with the definition provided above, (2) issue nationwide class relief "requiring the Administration to consider whether survivors of same-sex couples who were denied their constitutional right to marry would otherwise qualify for survivor's benefits," (3) reverse and remand Ms. Thornton's individual claim to the Administration for further proceedings, (4) dismiss the National Committee from the action, and (5) grant judgment for Ms. Thornton and the class. (Id. at 37-38.)
III. ANALYSIS
Plaintiffs and the Commissioner object to Magistrate Judge Creatura's Report and Recommendation. (See generally Def. Obj.; Pls. Obj.) The Commissioner argues that (1) Magistrate Judge Creatura incorrectly ruled that the marriage requirements in the Social Security Act are unconstitutional, and (2) Magistrate Judge Creatura erred in recommending that this court grant class certification. (See Def. Obj. at 2-12.) Plaintiffs agree with Magistrate Judge Creatura's recommendation on the merits and on class certification, but argue that Magistrate Judge Creatura's proposed class is too narrow and wrongfully excludes individuals who have not yet presented claims for survivor's benefits to the Administration. (See Pls. Obj. at 2-4.) The parties also raise objections regarding the appropriateness of nationwide relief in this case and whether the National Committee should be dismissed from this action. (See id. at 12; Def. Obj. Resp. at 9-11; Def. Obj. at 12 n.7.) The court first addresses the Commissioner's objections to Magistrate Judge Creatura's recommendation on the merits of Ms. Thornton's claim, before turning to the parties’ objections on class certification and other miscellaneous issues.
A. Legal Standard
12 A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Pursuant to 42 U.S.C. § 405(g), a claimant may seek judicial review in a federal district court after she obtains from the Commissioner a final judgment of her Social Security claim. See Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993). The district court has jurisdiction to enter a "judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The factual findings of the Commissioner "if supported by substantial evidence, shall be conclusive[.]" Id. The court shall review questions of law with respect to "conformity with such regulations and the validity of such regulations." Id.
B. The Merits of Ms. Thornton's Claim
The court has thoroughly examined the record and concludes that the Commissioner's objections to Magistrate Judge Creatura's decision on the merits of Ms. Thornton's claims raise arguments that Magistrate Judge Creatura properly addressed and rejected in the Report and Recommendation. Prior to addressing the specifics of the Commissioner's objection, however, the court clarifies its understanding of the contours of Ms. Thornton's challenge to the Social Security Act. The Commissioner attempts to cast Ms. Thornton's challenge in this case too broadly by referring to the "marriage requirement" in the Social Security Act in broad strokes. (See, e.g., id. at 1.) As noted above, the Social Security Act requires that individuals be either the "widow" or "widower" of a deceased person in order to receive survivor's benefits, see 42 U.S.C. §§ 402(e) -(f), and clarifies that "[a]n applicant is the ... widow, or widower of a fully or currently insured individual ... if ... the courts of the State in which he was domiciled at the time of death ... would find that such applicant and such insured individual were validly married ... at the time he died," 42 U.S.C. § 416(h)(1)(A)(i). Ms. Thornton does not challenge this "marriage requirement" in toto. Instead, she argues that the Administration's application of this statutory scheme to deny survivor's benefits to same-sex couples who were unable to marry at the time of the decedent spouse's death based on state laws that have now been declared unconstitutional violates equal protection and due process. (See Mot. at 1-2; 2d Am. Compl. ¶¶ 82-86, 88, 100; R&R at 1.) Thus, the court analyzes the marriage requirement in light of the contours of Ms. Thornton's challenge.
The court also notes that neither party objects to Judge Creatura's conclusion that "the same or similar analysis applies to both the due process clause of the Fifth Amendment (applied to federal statutes) and the due process and equal protection clauses of the Fourteenth Amendment (applied to state statutes)." (R&R at 9.) Thus, as Judge Creatura did, the court analyzes Ms. Thornton's due process and equal protection claims under the same framework.
The Commissioner argues that rational-basis review applies to the court's review of the marriage requirement (Def. Obj. at 2-7), and that the marriage requirement survives constitutional review if rational-basis review applies, (id. at 7-9). The court disagrees on both points.
3 First, the court concludes that heightened scrutiny is warranted. The Commissioner argues that the challenged portions of the Social Security Act are facially neutral and do not "target a suspect class nor burden a fundamental right." (See Def. Obj. at 1.) If the Commissioner is correct that the marriage requirement is facially neutral and merely disproportionately impacts same-sex couples, then rational-basis review applies. See Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ("[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact."). On the other hand, if the marriage requirement incorporates and relies on state law that discriminates on the basis of sexual orientation, it is subject to a heightened level of scrutiny. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014) ("Windsor’s heightened scrutiny applies to classifications based on sexual orientation.").
The court recognizes that Judge Creatura eschewed the traditional analysis of "rational basis" and "heightened scrutiny" review based on recent signals from the Supreme Court that strict adherence to levels of scrutiny may no longer be necessary in cases that impact "fundamental rights" like the right to marry. (See R&R at 10-12 (citing Obergefell v. Hodges , 576 U.S. 644, 663-64, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) and Pavan v. Smith , ––– U.S. ––––, 137 S. Ct. 2075, 2078, 198 L.Ed.2d 636 (2017) ).) Although the court recognizes that Obergefell and Pavan did not rely on specific levels of scrutiny in reaching their conclusions, those cases also did not explicitly reject the legitimacy of that analysis. See generally Obergefell , 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 ; Pavan , 137 S. Ct. 2075. Because the Ninth Circuit continues to utilize the traditional level-of-scrutiny analysis for due process and equal protection challenges, see, e.g. , United States v. Mayea-Pulido , 946 F.3d 1055, 1059 (9th Cir. 2020), the court follows that framework here.
The court agrees with Magistrate Judge Creatura and a number of other courts that the marriage requirement "cannot be read in a vacuum" in this specific context and must instead be read in conjunction with the provisions of state law defining marriage that the Social Security Act incorporates. Ely v. Saul, No. CV-18-0557-TUC-BGM, 2020 WL 2744138, at *7 (D. Ariz. May 27, 2020) ; Schmoll v. Saul, No. 19-cv-04542-NC, Dkt. # 36 ("Schmoll Order") at 4 (N.D. Cal. June 15, 2020) ("The duration-of-marriage requirement is inextricable from underlying California law which classifies on the basis of sexual orientation.") ; (R&R at 10 ("In this case, since the federal statute providing survivor's benefits conditions benefits on a state's law defining marriage, both must be read together when evaluating Ms. [Thornton's] constitutional rights. Indeed, they are inseparable—the Administration cannot determine a claimant's eligibility for survivor's benefits without looking to state law.")). The Commissioner's protestations that this reading "inappropriately attributes to the Social Security Administration historical discrimination by the State of Washington" (see Def. Obj. at 1) fails to acknowledge the interconnected nature of the statutory scheme at issue. The Social Security Act explicitly states that the validity of a marriage shall be defined by state law. See 42 U.S.C. § 416(h)(1)(A)(i). The Administration's implementing regulations could not state this more clearly: "To decide your relationship as the insured's widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died." 20 C.F.R. § 404.345.
Unlike Ms. Thornton and the proposed class in this case, the class in Ely and the individual plaintiff in Schmoll consisted of individuals who were able to marry their same-sex partner once the law in their respective states was changed to permit same-sex marriage. See Schmoll Order at 1-2; Ely , 2020 WL 2744138, at *1-4. However, the Social Security Act requires that applicants for survivor's benefits to have been married to the decedent for nine months in order to qualify for benefits. See 42 U.S.C. § 416(g). The plaintiffs in Ely and Schmoll were unable to satisfy this durational requirement because their spouses died before they had been legally married for nine months. See Schmoll Order at 1-2; Ely , 2020 WL 2744138, at *1-4. Outside of this distinction, however, the issues in those cases mirror the ones presented by Ms. Thornton.
To the extent that there is any doubt about whether the Social Security Act and underlying state law are inextricably intertwined, Ms. Thornton's administrative record eliminates that doubt. The Administration and the ALJ who reviewed Ms. Thornton's claim for survivor's benefits repeatedly denied her claim based on Washington's unconstitutional failure to recognize same-sex marriage. (See AR at 20 ("[W]e cannot pay benefits to you because domestic partnership was not recognized in the State of Washington until January 22, 2007 after Margery B. Brown[’s] death. We cannot pay benefits to you because same sex marriage was not recognized in the State of Washington until December 14, 2012 after Margery B. Brown[’s] death."); Supp. AR at 190 (denying reconsideration because "at the time of Ms. Brown's death in 2006, the State of Washington did not recognize same-sex marriages"; AR at 15 (concluding that Ms. Thornton was not entitled to survivor's benefits because she was not legally married to Ms. Brown under Washington law at the time of Ms. Brown's death).)) Because the Administration repeatedly relied on unconstitutional Washington law to deny Ms. Thornton "the constellation of benefits that the States have linked to marriage," Obergefell, 576 U.S. at 670, 135 S.Ct. 2584, the court cannot ignore the impact of Washington law when addressing Ms. Thornton's constitutional challenges.
4 Reading the marriage requirement in conjunction with the Washington law that the Administration applied to Ms. Thornton's claim for survivor's benefits makes clear that heightened scrutiny is warranted because Washington law at the time discriminated on the basis of sexual orientation. In 2006, when Ms. Brown died, Washington law described marriage as a civil contract that is valid only if "between a male and a female," RCW 26.04.010(1) (1998), and explicitly provided that a marriage contract is prohibited for couples "other than a male and a female," RCW 26.04.020(1)(c) (1998). In passing this legislation, the Washington legislature specifically noted that "[i]t is the intent of the legislature by this act ... to establish public policy against same-sex marriage in statutory law that clearly and definitively declares same-sex marriages will not be recognized in Washington, even if they are made legal in other states." See 1998 Wash. Legis. Serv. Ch. 1, § 2(2) (S.H.B. 1130). Washington revised its laws to legalize domestic partnerships and same-sex marriages before Obergefell held that state laws that prohibited same sex-couples from marrying "burden the liberty of same-sex couples, and ... abridge central precepts of equality" in violation of due process and equal protection because those laws deny same-sex couples "all the benefits afforded to opposite-sex couples." 576 U.S. at 675-76, 135 S.Ct. 2584 ; see also RCW 26.04.010 (2012). There is no dispute, however, that the Washington law that prevented Ms. Thornton from marrying Ms. Brown before Ms. Brown's death discriminated against Ms. Thornton on the basis of sexual orientation and was unconstitutional. (See Resp. at 2 ("Ms. Brown died thirteen years ago, during a time when Washington state laws that we now know to be unconstitutional prohibited the couple from marrying ....").) Because the Administration relied on an unconstitutional law that discriminated on the basis of sexual orientation in denying Ms. Thornton's claim for survivor's benefits, the marriage requirement must be subjected to heightened scrutiny. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014) ("Windsor’s heightened scrutiny applies to classifications based on sexual orientation.").
The court rejects the Commissioner's argument that this case is similar to disparate impact cases where courts upheld "facially neutral" laws for the same reasons that Judge Creatura rejected that argument. (See R&R at 15-16); see also Schmoll Order at 5-6 (rejecting the Administration's comparison of the marriage requirement to disparate impact cases).
56 Heightened scrutiny requires the government to provide "a tenable justification [that] describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia, 518 U.S. 515, 535-36, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Where, as here, the application of heightened scrutiny is as-applied rather than facial, the government must demonstrate that a justification exists for the policy as applied to the individual in question. See Witt v. Dep't of Air Force, 527 F.3d 806, 819 (9th Cir. 2008). Those justifications must demonstrate that the government's policy significantly furthers important governmental interests and less intrusive means are unlikely to achieve those interests. Id.
7 The Commissioner does not contend that the marriage requirement survives heightened scrutiny. (See Resp. at 23-28 (arguing that there is no basis to apply heightened scrutiny); Def. Obj. at 2-10 (arguing that Magistrate Judge Creatura should have applied rational basis review to uphold the marriage requirement).) The court considers the absence of any argument from the Commissioner on this point as a concession that the marriage requirement as applied to Ms. Thornton cannot survive heightened scrutiny.
This concession is wise. Although the court concludes that heightened scrutiny is appropriate here, the court agrees with Magistrate Judge Creatura and the Ely court that application of the marriage requirement to same-sex individuals like Ms. Thornton cannot withstand scrutiny at any level. (R&R at 17 ("Even if the ‘rational basis’ test applies, which is questionable, none of the reasons provided by the Administration can provide a rational basis for denying Ms. Thornton survivor's benefits."); Ely, 2020 WL 2744138, at *7 ("Because the duration of marriage requirement is based upon an unconstitutional Arizona law, it cannot withstand scrutiny at any level."); see also Schmoll Order at 7-8 (concluding that the marriage duration requirement cannot survive heightened scrutiny)). Magistrate Judge Creatura carefully reviewed and rejected the Commissioner's arguments that the marriage requirement as applied to Ms. Thornton survives rational basis review because (1) it reduces the risk of fraudulent marriages, (2) it improves administrative efficiency, and (3) it awards benefits based on a rational classification that prioritizes those who are most likely to have been in a financially interdependent relationship with the deceased individual. (See R&R at 15-20.) The Commissioner re-raises those same rational bases in its objection to Magistrate Judge Creatura's Report and Recommendation. (See Def. Obj. at 7-9.) The court concludes that it need not re-hash Magistrate Judge Creatura's thoughtful rejection of the Commissioner's arguments. Instead, the court adopts the Report and Recommendation's alternative rational basis analysis and concludes that even if rational basis review applied, the marriage requirement fails rational basis review as applied to Ms. Thornton. (See R&R at 15-20); see also Ely, 2020 WL 2744138, at *7-9.
In sum, the court concludes that heightened scrutiny applies to the Administration's application of the marriage requirement to Ms. Thornton and that the marriage requirement cannot survive heightened scrutiny. As such, the marriage requirement violates Ms. Thornton's due process and equal protection rights under the Fifth and Fourteenth Amendments. Alternatively, the court notes that even if rational basis review applied, the marriage requirement would still fail. As such, the court ADOPTS this portion of Magistrate Judge Creatura's Report and Recommendation, GRANTS Ms. Thornton's motion on the merits of her claim, and REVERSES and REMANDS Ms. Thornton's application for benefits to the Administration for proceedings consistent with this order.
C. Class Certification
Both parties object to portions of Magistrate Judge Creatura's recommendation on class certification. First, Plaintiffs object that Magistrate Judge Creatura improperly narrowed the class by concluding that the court lacks jurisdiction over individuals who have not yet presented claims for survivor's benefits to the Administration. (See Pls. Obj. at 6-12.) Second, the Commissioner argues that class certification is not appropriate in this case regardless of the class definition and, in the alternative, that Magistrate Judge Creatura's proposed class is defined too broadly. (Def. Obj. at 10-12.) The court first addresses the definition of the class before turning to the merits of the certification question.
1. Class Definition
8 The court has thoroughly reviewed Magistrate Judge Creatura's recommended class definition and agrees with Magistrate Judge Creatura that the class should be defined as follows:
All persons nationwide who presented claims for social security survivor's benefits based on the work history of their same-sex partner and who were barred from satisfying the marriage requirements for such benefits because of applicable laws that prohibited same-sex marriage. This class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. Ariz.)
(See R&R at 21.)
910 The court rejects Plaintiffs’ argument that the court should broaden this definition to include persons who will present claims for survivor's benefits in the future. (See Pls. Obj. at 6-12.) "Section 405(g) specifies the following requirements for judicial review: (1) a final decision of the Secretary made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court[.]" Weinberger v. Salfi, 422 U.S. 749, 763-64, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). The Supreme Court has clarified that the "final decision" requirement breaks down into two parts—a "presentment" requirement and an "exhaustion" requirement. See Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The only jurisdictional element of Section 405(g) is the "presentment" requirement—that a claim for benefits have actually been presented to the Administration. Id. This requirement is not waivable because it is "central to the requisite grant of subject-matter jurisdiction[.]" Salfi, 422 U.S. at 763-64, 95 S.Ct. 2457 ; see also Smith v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1765, 1773, 204 L.Ed.2d 62 (2019) (reaffirming that Section 405(g) ’s "requirement that claims be presented to the agency" is "jurisdictional"). Thus, the court does not have subject-matter jurisdiction over hypothetical claimants who will present claims to the Administration in the future. See Salfi, 422 U.S. at 763-64, 95 S.Ct. 2457 ; Smith, 139 S. Ct. at 1773. As such, the court agrees with Magistrate Judge Creatura that individuals who will present claims in the future cannot be included in the class. (See R&R at 23-24.)
11 The court also rejects Plaintiffs’ attempts to bring future presenters within this court's jurisdiction using mandamus jurisdiction. See 28 U.S.C. § 1361 ; (see also Pls. Obj. at 11-12). The Supreme Court has not yet decided whether 42 U.S.C. § 405(h) —the portion of Section 405 barring review "except as herein provided"—is the sole means of reviewing a decision of the Commissioner. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 698, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) ; see also Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ("We have on numerous occasions declined to decide whether the third sentence of § 405(h) bars mandamus jurisdiction over claims arising under the Social Security Act[.]"). Although the court is skeptical that it could rely on mandamus jurisdiction to get around Section 405(g) ’s jurisdictional presentment requirement, the court need not resolve that issue. Even if mandamus jurisdiction could be applied in this case, the court would not do so here. Mandamus—which is an extraordinary remedy—is only available to compel a federal official to perform a duty if "(1) the individual's claim is clear and certain; (2) the officials’ duty is non-discretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003) (internal quotation marks and citation omitted). Here, as the analysis above reveals, individuals who will present a claim for survivor's benefits in the future have an adequate remedy available to them. They may do as Ms. Thornton did and present their claims to the Administration and then file a lawsuit and seek redress under Section 405(g) in the event that their claim is denied on grounds that they believe are objectionable or unconstitutional.
1213 The court also disagrees with the Commissioner's arguments that Magistrate Judge Creatura erred in waiving the exhaustion requirement and the 60-day statute of limitations included in Section 405(g). (See Def. Obj. at 12.) Unlike the presentment requirement, the parties agree that these Section 405(g) requirements are waivable (see Mot. at 28-30; Resp. at 29-31), and the court agrees with Magistrate Judge Creatura that they should be waived in this case (see R&R at 24-27). Where there is no dispute regarding the facts or application of statutory law, and the only issue is the constitutionality of a statutory requirement, waiver of exhaustion is particularly appropriate. See Salfi, 422 U.S. at 766–67, 95 S.Ct. 2457. The Commissioner protests that claims for survivor's benefits are highly fact-specific and should be resolved by the Administration's ALJs. (See Resp. at 30.) As discussed in more detail, below, the court agrees with the Commissioner on that point and clarifies—as Magistrate Judge Creatura did—that it expects the Administration to conduct such a review to comply with this court's order. (See R&R at 25.) However, the Commissioner's argument on this point ignores the fact that the Administration does not even consider claims for survivor's benefits for persons like Ms. Thornton who were not married. (See AR at 15, 20; Supp. AR at 190.) Thus, it would be futile to require exhaustion.
141516 The court also agrees with Magistrate Judge Creatura that once the court waives the exhaustion requirement on futility grounds, the 60-day statute of limit should also be waived. Although the Administration typically determines whether or not to extend the 60-day limitation on filing a district court appeal after exhaustion of administrative remedies, "cases may arise where the equities in favor of tolling the limitations period are so great that deference to the agency's judgment is inappropriate." Bowen v. New York, 476 U.S. 467, 480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). The court concludes that the equities in this case presented by the Administration's blanket refusal to consider claims for survivor's benefits made by individuals who were unable to marry their partner based on unconstitutional state laws favor waving the limitations period. Moreover, the court notes that the now-waived exhaustion requirement is a prerequisite to filing an appeal in district court. It makes little sense to waive the exhaustion requirement but strictly enforce the limitations period.
The Commissioner claims that the court should not enforce the presentment requirement but waive the exhaustion and statute of limitations requirements. (See Def. Obj. at 12.) But, as already discussed, binding authority dictates that the presentment requirement is jurisdictional and non-waivable, while the exhaustion and statute of limitations are non-jurisdictional and waivable. Salfi , 422 U.S. at 763-64, 95 S.Ct. 2457 ; Smith , 139 S. Ct. at 1773. Thus, the court has little difficulty exercising its authority to waive the exhaustion and statute of limitations requirements while simultaneously concluding that the presentment requirement must be enforced.
2. Class Certification
After carefully considering the record, the parties’ extensive briefing, and Magistrate Judge Creatura's Report and Recommendation, the court concludes that the requirements of Rule 23 have been met in this case and, as such, class certification is appropriate. The Commissioner's primary objections merely recycle arguments that Magistrate Judge Creatura properly considered and rejected. (See Def. Obj. at 11 ("For the reasons stated in [the Commissioner's] prior filings, the recommended class fails to satisfy the commonality, typicality, and numerosity requirements of Rule 23(a).").) The court rejects this blanket objection to Magistrate Judge Creatura's analysis and adopts the Report and Recommendation's analysis on class certification in full. (See R&R at 27-33.) However, in the interest of completeness, the court addresses the more-specific arguments raised in the Commissioner's objections.
17 First, the Commissioner's arguments that Ms. Thornton has failed to establish the commonality requirement of Rule 23(a) misunderstands the question presented by this case. (See Def. Obj. at 11-12); Fed. R. Civ. P. 23(a)(2), 23(b). The commonality requirement states that there must be "questions of law or fact common to the class." Fed. R. Civ. P. Rule 23(a)(2). For commonality, "[w]hat matters ... is not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
18 The Commissioner claims that commonality has not been established here because "class members will have to make individualized factual arguments about how their relationship would have progressed in a counterfactual universe in which same-sex marriage was lawful earlier," which allegedly means that class-wide proceedings will not yield common answers to class members’ problems. (See Def. Obj. at 11.) If the common question in this case was whether class members were entitled to survivor's benefits, the court might agree with the Commissioner that commonality would present challenges for the Plaintiffs. But that is not the common question at issue. Instead, the common question presented for each of the class members is whether the Administration's practice of denying same-sex partners survivor's benefits because the same-sex partner was unable to marry according to a state law that has now been deemed unconstitutional violates class members’ equal protection and due process rights. (See R&R at 30-32.) As discussed above, the court concludes that, for same-sex partners like Ms. Thornton who were barred from marrying their partner by state law, the Administration has erected an unconstitutional barrier to survivor's benefits by conditioning those benefits on the marriage requirement. See supra § III.B. The common question in this case for each class member is whether that barrier should be removed. As Magistrate Judge Creatura noted, once the barrier is removed, it will be up to the Administration to adjudicate class members’ claims for survivor's benefits. (See R&R at 31 ("Although each claimant will have an individual case to be made to support his or her claim for survivor benefits, certifying the class will give each class member the opportunity to make that claim—something they have been unable to do in the past.").) However, those factual issues do not prevent the court from resolving the common constitutional question presented by this case on a class-wide basis.
Although the Commissioner objected to Magistrate Judge Creatura's findings on numerosity (see Def. Obj. at 11), the parties stipulated that the numerosity requirement has been met after the court ordered the parties to conduct additional discovery on numerosity (see 5/18/20 Order (Dkt. # 82) at 5-8 (ordering the parties to conduct additional discovery); see Stip. (Dkt. # 83) ¶ 3 (stipulating that the numerosity requirement is satisfied in this case).) Given that the Commissioner has withdrawn these objections and now stipulates to numerosity, the court concludes that the numerosity requirement is satisfied by the proposed class.
1920 Finally, the Commissioner's objections that this class should not be certified under Rule 23(b)(2) repeat the same mistake that the Commissioner made on the commonality requirement. (See Def. Obj. at 11-12.) Rule 23(b)(2), "allows class treatment when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Wal-Mart, 564 U.S. at 360, 131 S.Ct. 2541 (citations and internal quotations omitted). "The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them." Id. (citation omitted). The Commissioner claims that the proposed class cannot be certified under Rule 23(b)(2) because "every class member will need to go through additional, individualized litigation." (Def. Obj. at 11-12.) As discussed above, however, the issue in this case is whether the Administration's blanket refusal to consider class members’ claims for survivor's benefits violates the class's constitutional rights. The class suffers the same constitutional injury as a result of the same action by the Administration, such that "final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole" because the Administration's actions "can be enjoined or declared unlawful only as to all of the class members or as to none of them." Wal-Mart, 564 U.S. at 360, 131 S.Ct. 2541. Thus, certification under Rule 23(b)(2) is appropriate.
In sum, the court rejects the parties’ objections to the Report and Recommendation's analysis on the proposed class definition and class certification. The court ADOPTS this portion of the Report and Recommendation and GRANTS Plaintiffs’ motion for class certification.
D. Nationwide Class Relief
21 Both parties’ objections briefly touch on the issue of the appropriateness of nationwide relief. (See Pls. Obj. at 12; Def. Obj. at 12 n.7.) In the Report and Recommendation, Magistrate Judge Creatura rejected the Commissioner's argument that any class certified by the court should not be a nationwide class and instead concluded that nationwide class relief is appropriate. (See R&R at 33-36.) The Commissioner clarified, however, that he objects only to nationwide injunctive relief in the absence of class certification. (See Def. Obj. at 12 n.7.) Although the Commissioner reiterated that he does not believe that a class should be certified under Rule 23, he conceded that if the court disagrees and certifies a class in this case, he has no objection to the class extending nationwide and receiving nationwide relief. (See id.) Thus, given that the court has now concluded that class certification is appropriate, there is no objection to certification of a nationwide class or the issuance of nationwide class relief. As such, the court concludes that the class in this case extends nationwide and that the class is entitled to injunctive relief.
Plaintiffs argue, however, that even if the court certifies a nationwide class in this case, it should nevertheless opine on whether it would be appropriate to issue a nationwide injunction even if class certification was inappropriate. (See Pls. Obj. at 12.) The court declines to weigh in on that hypothetical. Class certification is warranted on a nationwide basis, and certifying the class in this case affords complete relief to the injured class members. See Yamasaki, 442 U.S. at 701-03, 99 S.Ct. 2545 (concluding that nationwide class relief under 42 U.S.C. § 405(g) was appropriate and adequate to afford complete relief to the parties).
E. The National Committee
22 The court is perplexed by the National Committee's inclusion in this case alongside Ms. Thornton. The complaint indicates that "[t]he National Committee joins this action in furtherance of its mission and in support of Ms. Thornton and other similarly-situated members who are wrongfully denied Social Security survivor's benefits based on SSA's unconstitutional incorporation of, and reliance upon, discriminatory state laws previously barring same-sex couples from marriage." (2d Am. Compl. ¶ 11.) However, Ms. Thornton brought this lawsuit as a class action and Ms. Thornton, not the National Committee, is the proposed class representative. (See Mot. at 25-26 ("Ms. Thornton seeks to represent a class of similarly situated surviving same-sex partners who face the same discriminatory treatment by [the Administration].").) Beyond providing "support" for Ms. Thornton's claim, the National Committee has not filed any of its own claims. (See 2d. Am. Compl. ¶¶ 11, 80.)
It thus appears as though the National Committee was included in this action solely to give Plaintiffs a second bite at nationwide injunctive relief in the event that the court chose not to certify a class in this case. (See Pls. Obj. at 12 (arguing that the National Committee is entitled to nationwide injunctive relief independent of class certification).) As noted above, the court need not address Plaintiffs’ request for nationwide injunctive relief because the court has certified a nationwide class in this case. To the extent that any of the National Committee's members are similarly situated to Ms. Thornton, they are class members and will be afforded relief by the court's order.
Nevertheless, in the interest of completeness, the court concludes that it lacks subject matter jurisdiction over the National Committee because the National Committee has not satisfied the jurisdictional presentment requirement. Section 405(g) states that "any individual" may file a claim for judicial review and makes no mention of organizational standing to present claims to the Administration or to bring a civil action in federal court. See 42 U.S.C. § 405(g). The National Committee's "presentment letter" highlights the problem presented by the National Committee's attempts to join this case as an organization on behalf of its members. (See Philips Decl. (Dkt. # 56) ¶ 7, Ex. A.) The letter states that "[t]he National Committee's membership includes individuals otherwise entitled to receive Social Security survivor's benefits who were unconstitutionally barred from being married to their long-term committed same-sex partners for a sufficient period of time prior to those partners’ deaths," but the only individual claimant identified in the letter is Ms. Thornton. (Id. at 2-4.) Merely sending a letter on behalf of unnamed members without any details about those individuals’ claims for survivor's benefits is not sufficient to satisfy Section 405(g) ’s presentment requirement. The letter did not provide the Administration with any meaningful opportunity to review the alleged underlying claims. Indeed, the court concludes that the National Committee's attempt at satisfying the presentment requirement—and its presence in this litigation on the whole—is little more than gamesmanship. Thus, the court agrees with Magistrate Judge Creatura—albeit, on different grounds (see R&R at 36-37)—that the National Committee should be dismissed from this case.
F. Order to Show Cause
The court believes that its analysis above resolves the remaining issues on the merits of this case. Out of an abundance of caution, however, the court concludes that additional briefing is necessary regarding the exact scope of class-wide injunctive relief warranted as a result of the court's order. To recap, the court certifies the nationwide class defined above and concludes that the class is entitled to relief. See supra §§ III.C-D. The court also believes that the appropriate form of relief to provide to the class is an order that requires the Administration to (1) re-adjudicate class members’ claims for survivor's benefits, and (2) refrain from denying class members’ claims solely on the basis that class members were not married to their same-sex partner. The court is contemplating an order that includes the following language:
The court ORDERS the Administration to re-adjudicate class members’ claims on terms consistent with this order and ENJOINS the Administration from denying social security survivor's benefits to class members without considering whether class members would have satisfied the marriage requirements but for applicable laws that prohibited same-sex marriage.
Accordingly, the court ORDERS the parties to show cause and provide briefing regarding the adequacy of this proposed relief in light of the court's rulings herein and whether any other relief is both necessary and otherwise consistent with the court's rulings. The briefing schedule for this order to show cause is set forth below.
IV. CONCLUSION
For the reasons set forth above, the court:
(1) ADOPTS the Report and Recommendation (Dkt. # 74) as described above;
(2) GRANTS Ms. Thornton's claim for individual relief on the merits and REVERSES and REMANDS her claim to the Administration for further proceedings consistent with this order and the Report and Recommendation;
(3) GRANTS Ms. Thornton's motion for class certification (Dkt. # 53) for a class represented by Ms. Thornton and defined as:
All persons nationwide who presented claims for social security survivor's benefits based on the work history of their same-sex partner and who were barred from satisfying the marriage requirements for such benefits because of applicable laws that prohibited same-sex marriage. This class is intended to exclude any putative class members in Ely v. Saul, No. 4:18-cv-00557-BPV (D. Ariz.);
(4) APPOINTS Plaintiffs’ counsel as class counsel in this matter pursuant to Federal Rule of Civil Procedure 23(g) ;
(5) DISMISSES the National Committee from this case; and
(6) ORDERS the parties to show cause regarding the appropriate form of relief to grant class members in this case in light of this order. Ms. Thornton shall file her response to the court's order to show cause within 14 days of the filing date of this order. The Commissioner's response, if any, shall be due within 14 days of the filing date of Ms. Thornton's response. There shall be no reply unless the court orders otherwise. The parties’ briefing shall not exceed six pages in length.
COMBINED REPORT AND RECOMMENDATION ON PLAINTIFFS’ COMPLAINT & MOTION FOR CLASS CERTIFICATION
J. Richard Creatura, United States Magistrate Judge
This proposed class action under 42 U.S.C. § 405(g) has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber , 423 U.S. 261, 271–72, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976).
Plaintiffs request that the court find unconstitutional the portion of the Social Security Administration's statutory scheme that denies surviving spousal benefits ("survivor's benefits") to the surviving partners of same-sex couples who were prohibited from marrying because of now-unconstitutional state laws that banned same-sex marriage. The matter is before the court on plaintiffs’ combined opening brief on the merits and motion for class certification. See Dkt. 53. Because the parties address the merits and class certification in combined briefing and because both issues are ripe for decision, this combined report and recommendation addresses both the merits of the parties’ dispute and the motion for class certification.
For the reasons discussed in the merits section (see infra , Part II) the undersigned has concluded that the statutory scheme conditioning eligibility for survivor's benefits on unconstitutional state laws that forbade same-sex marriage is itself unconstitutional. For the reasons discussed in the class certification section (see infra , Part III) the undersigned recommends that the court grant relief to a defined nation-wide class, including plaintiff Helen Thornton as class representative.
At the heart of this case is the requirement that to obtain survivor's benefits based on the higher earnings of a deceased partner, the claimant and the deceased partner must have been validly married at the time of the deceased's death. See 42 U.S.C. § 416(c)(1)(E), (g)(1)(E), (h)(1)(A)(i). Laws prohibiting same-sex marriage were declared unconstitutional in 2015. For certain claimants such as Ms. Thornton—who were unable to marry their same-sex partner during the partner's lifetime—those claimants are now unable to obtain survivor's benefits solely because of the now-unconstitutional laws barring same-sex marriage. The question presented in this case is whether the "grave and continuing harm" caused by these unconstitutional laws should bar claimants from recovering survivor's benefits.
I. BACKGROUND
For twenty-seven years, Helen Thornton and Margery Brown were partners for life in every meaningful way, except sharing a marriage license. It is undisputed that they would have married, but for Washington State's law at the time, which made same-sex marriage illegal.
Ms. Thornton and Ms. Brown began dating in 1978 and formed a committed relationship in 1979. See Dkt. 34 ("AR"), at 73. They jointly rented a home in 1981 and jointly purchased a home in 1983, in Olympia, Washington. AR 73–74. Ms. Thornton gave birth to a son in 1984, and Ms. Brown adopted him. AR 74, 178. Ms. Thornton and Ms. Brown shared incomes, expenses, and liabilities. AR 73. Ms. Brown was an instructor at Evergreen State College, and Ms. Thornton worked for many years at a food co-op and later as a film programmer at an independent theater. AR 74, 90; see also Dkt. 46, at 9. During the course of their lives together, Ms. Brown earned more than Ms. Thornton.
They jointly advocated for same-sex rights, including taking legal action for health insurance benefits for same-sex partners of state employees. AR 75–76. During that effort, Ms. Brown was quoted in a newspaper as saying, "You can't get benefits because you can't get married," adding that she would have married Ms. Thornton if state law allowed it. AR 90. Ms. Brown and Ms. Thornton even executed a document entitled "Declaration of Marriage/Same-Sex Domestic Partnership," stating that they were "same-sex partners who are barred from a lawful marriage." AR 156–57 (emphasis removed). During the entire time that Ms. Thornton and Ms. Brown were together, the State of Washington did not allow for same-sex marriage. See former RCW § 26.04.010 (1998), amended by 2012 Wash. Legis. Serv. Ch. 3 (S.S.B. 6239).
Ms. Thornton cared for Ms. Brown through Ms. Brown's three-year battle with cancer. AR 74. Ms. Brown died in 2006. AR 76–77. At the time of her death, only a few states had begun to allow for same-sex marriage.1
In the years that followed, the walls of discrimination against same-sex marriage began to crumble. Washington State allowed for domestic partnerships in 2007 and legalized same-sex marriage in 2012—six years after Ms. Brown's death. RCW § 26.04.010 (2012).
In 2013, the Supreme Court decided United States v. Windsor and held that the federal government could not deny federal benefits to same-sex couples who had legally married pursuant to a valid state law. 570 U.S. 744, 775, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). In Windsor , the federal "Defense of Marriage Act" ("DOMA") had excluded same-sex partners from the definition of "spouse" in federal statutes—even when same-sex couples were legally married under state law. Id. at 751, 133 S.Ct. 2675. The Court ruled that "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government." Id. at 769–70, 133 S.Ct. 2675.
If DOMA had been allowed to stand, it could have affected "over 1,000 federal laws" and "the whole realm of federal regulations" that defined "marriage" and "spouse" by excluding same-sex partners. Id. at 752, 765, 133 S.Ct. 2675. That included the Social Security statutory scheme at issue here, codified in 42 U.S.C. § 416. See id. at 752, 133 S.Ct. 2675 (DOMA would re-define all statutes referencing "spouses" or "marriage" to mean only opposite-sex marriages).
In June 2014, following the Windsor decision, Attorney General Eric Holder issued a memorandum ("the Holder Memo") announcing, "I am pleased to report that agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant, to the greatest extent possible under the law." OFFICE OF THE ATTORNEY GENERAL , MEMORANDUM TO THE PRESIDENT: IMPLEMENTATION OF UNITED STATES V. WINDSOR , at 1, 133 S.Ct. 2675 (June 20, 2014).2 The Holder Memo was implemented across all federal statutes, including the Social Security Act.
Among other changes in interpreting federal statutes, the Administration modified the definitions of "widow" and "widower"—terms defined by statute to mean a woman married to a man or vice-versa (see 42 U.S.C. § 416(c)(1)(E), (g)(1)(E) )—to include a woman who was married to another woman or a man who was married to another man. See 20 C.F.R. § 404.345 ("If you and the insured were validly married under State law at the time ... the insured died ... the relationship requirement will be met."); see also Dkt. 63, at 10 ("the Social Security Administration's application of these statutory definitions draws no distinction between surviving partners from same-sex and opposite-sex marriages[.]"). Nevertheless, the stated language of 42 U.S.C. § 416(c)(1)(E) continues to define a "widow" as a woman who was married to a man for nine months before he died.
The term "widow" ... means the surviving wife of an individual, but only if ... she was married to him for a period of not less than nine months immediately prior to the day on which he died[.]
42 U.S.C. § 416(c)(1)(E) (emphasis added). The definition of a "widower" similarly persists. See 42 U.S.C. § 416(g)(1)(E). Further, neither Congress by amendment nor the Administration by regulation have changed the requirement that the couple had to have been validly married at the time of the partner's death.
The case law continued to evolve after Windsor. In 2014, the Ninth Circuit evaluated the constitutionality of state statutes that prohibited same-sex marriage and held that state laws banning same-sex marriage in Idaho and Nevada violated the Equal Protection Clause of the Fourteenth Amendment. Latta v. Otter , 771 F.3d 456, 464–65 (9th Cir. 2014).
In January of 2015, shortly after her sixtieth birthday, Ms. Thornton applied for Social Security survivor's benefits based on Ms. Brown's work history pursuant to 42 U.S.C. § 402. See AR 19–22. On December 8, 2015, the Administration denied Ms. Thornton's application because Ms. Thornton "was not legally married to the insured [Ms. Brown]," AR 23, 28; see 42 U.S.C. § 416(h).
She requested a hearing before an administrative law judge ("ALJ"). AR 39. Before that hearing, the Supreme Court issued its ruling in Obergefell v. Hodges , declaring that all state laws prohibiting same-sex marriage "are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." 576 U.S. 644, 135 S. Ct. 2584, 2605, 192 L.Ed.2d 609 (2015). The Court further held that,
[t]he right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws.
Id. at 2602. The Court made clear that where "[s]ame-sex couples are denied all the benefits afforded to opposite sex couples, ... this denial to same-sex couples of the right to marry works a grave and continuing harm." Id. at 2604.
After Obergefell was decided, the Administration recognized "valid same-sex marriage[s] as of the date of the marriage, including during periods when the ... state of domicile did not recognize same-sex marriages." See Social Security Administration, Program Operations Manual System GN 00210.002.3 Of course, this was of little avail to applicants such as Ms. Thornton, who were never able to marry their chosen partner. For those applicants, the Administration's regulations continued to rely on state laws that were in effect at the time of the insured's death, even though those laws had been declared unconstitutional:
To decide your relationship as the insured's[ 4 ] widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died .... If you and the insured were validly married under State law ... at the time the insured died ... the relationship requirement will be met[.]
20 C.F.R. § 404.345 ; see also 42 U.S.C. § 416(h)(1)(A)(i).
Even after Obergefell , the Administration failed to recognize any exception from the valid marriage requirement for same-sex couples who would have married, but for the state's now unconstitutional laws that prohibited same-sex marriage.
Following this statutory scheme, ALJ James Sherry issued a written decision on January 10, 2017, in which the ALJ concluded that Ms. Thornton was not eligible for survivor's benefits pursuant to the Social Security Act. AR 13–15.
The ALJ did not question any of the evidence produced by Ms. Thornton and even acknowledged at the hearing that "the facts she is alleging in terms of their relationship are uncontroverted here. We don't have anything that would suggest a reason to question that." AR 175. Among the facts that were undisputed is that but for the Washington statute prohibiting same-sex marriage, Ms. Brown and Ms. Thornton would have married at least nine months prior to Ms. Brown's death. See AR 156 ("We are same-sex partners who are barred from a lawful marriage.").
On July 23, 2018, the Appeals Council denied Ms. Thornton's request for review (AR 165), making the written decision by the ALJ the final agency decision subject to judicial review. AR 5 –7. Ms. Thornton filed a complaint in this Court seeking judicial review of the ALJ's written decision on September 25, 2018. Dkt. 1. Ms. Thornton later amended her complaint to join plaintiff National Committee to Preserve Social Security and Medicare ("National Committee"). See Dkt. 15.
This matter centers on the constitutionality of the Administration applying an unconstitutional state law when denying survivor's benefits to applicants such as Ms. Thornton, who were prohibited from marrying their same sex partner. See Dkt. 53, at 15–16.
II. RECOMMENDATION ON THE MERITS
A. Jurisdiction
Pursuant to 42 U.S.C. § 405(g), a claimant may seek judicial review in a federal district court after she obtains from the Commissioner a final judgment of her Social Security claim. See Johnson v. Shalala , 2 F.3d 918, 921 (9th Cir. 1993). The district court has jurisdiction to enter a "judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The factual findings of the Commissioner "if supported by substantial evidence, shall be conclusive[.]" Id. The court shall review questions of law with respect to "conformity with such regulations and the validity of such regulations."5 Id.
B. Statutes at Issue and Level of Scrutiny
The parties disagree regarding which level of scrutiny applies to plaintiffs’ constitutional challenge to this statutory scheme and whether the Court should apply that level of scrutiny only to the Social Security survivor benefit scheme or to the underlying state statute that banned same-sex marriage—or to both. See Dkt. 53, at 21; Dkt. 63, at 19. In this court's opinion, the statutes should be read together, and regardless of the level of scrutiny applied, conditioning federal benefits on unconstitutional state laws runs afoul of the Supreme Court's precedent interpreting the Fifth and Fourteenth Amendments.
In Windsor , the Court was evaluating the enforceability of a federal statute, where Congress's purpose was to discriminate against same-sex marriage that was legalized by the state. See 570 U.S. at 769–70, 133 S.Ct. 2675. The Court invalidated the federal law that refused to recognize same-sex marriages that were lawful under state law. Id. In Obergefell, the Court was evaluating the enforceability of state statutes, where the states’ purpose was to discriminate against same-sex marriage that was prohibited in those states. See 135 S. Ct. at 2604–05. The Court invalidated those state laws. Id. In both cases, the Court concluded that same-sex couples’ right to marry was protected under the due process and equal protection clauses. Id. at 2604 ; Windsor , 570 U.S. at 774–75, 133 S.Ct. 2675.
The Supreme Court consistently has held that the same or similar analysis applies to both the due process clause of the Fifth Amendment (applied to federal statutes) and the due process and equal protection clauses of the Fourteenth Amendment (applied to state statutes). See Bolling v. Sharpe , 347 U.S. 497, 499–500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ; Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 217–18, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). As noted in Windsor , "the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right [to due process] all the more specific and all the better understood and preserved." 570 U.S. at 774, 133 S.Ct. 2675. Therefore, the interplay of federal statutes and state statutes calls into question the same principles of due process and equal protection of the laws.
In this case, since the federal statute providing survivor's benefits conditions benefits on a state's law defining marriage, both must be read together when evaluating Ms. Windsor's constitutional rights. Indeed, they are inseparable—the Administration cannot determine a claimant's eligibility for survivor's benefits without looking to state law. See 20 C.F.R.§ 404.345 ("To decide your relationship as the insured's widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died."). Therefore, considering the constitutionality of the entire statutory scheme necessarily includes considering both the federal scheme and the underlying state statutes upon which it relies.
Regarding the level of scrutiny to be applied, although Ninth Circuit cases prior to Obergefell referred to the "rational basis" test (see, e.g. , Diaz v. Brewer , 656 F.3d 1008 (9th Cir. 2011) ) or the "heightened scrutiny" test (see, e.g. , SmithKline Beecham Corp. v. Abbott Labs. , 740 F.3d 471, 489 (9th Cir. 2014) ; Latta , 771 F.3d at 465 ), the Court in Obergefell did not refer to those levels of scrutiny and simply concluded that the right to marry is a "fundamental right" and that same-sex couples may not be deprived of that right. 135 S. Ct. at 2598. Although prior cases, and the Administration, discuss which standard to apply based on whether the statute was "facially neutral" or whether the statute reflected discriminatory "intent" (see, e.g. , Pers. Adm'r of Mass. v. Feeney , 442 U.S. 256, 273–76, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) ; Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 264–65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ; Dkt. 63, at 20–22), Obergefell did not attempt to categorize statutes in the same way.
Instead, Justice Kennedy, writing for the majority, noted that interpreting the Constitution,
has not been reduced to any formula.... Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.... That process is guided by ... broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.... That method respects our history and learns from it without allowing the past alone to rule the present.
Obergefell , 135 S. Ct. at 2598 (citations omitted). And the Supreme Court in a later case, again without reciting a formula or enunciating which level of scrutiny applied—if either, reiterated its admonition that same-sex couples were entitled to same "constellation of benefits" conferred on opposite sex couples. See Pavan v. Smith , ––– U.S. ––––, 137 S. Ct. 2075, 2078, 198 L.Ed.2d 636 (2017) (internal quotation marks and citation omitted).
The Court also recognized that we should be vigilant to eliminate the remaining vestiges of discrimination that may linger after the formal recognition of constitutional rights, such as the right to marry.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insights reveals discord between the Constitution's
central protections and a received legal stricture, a claim to liberty must be addressed.
Obergefell , 135 S. Ct. at 2598.
Inextricable from the Court's discussion of the importance of marriage is the "constellation of benefits that the States have linked to marriage." Id. at 2601. The Court then states that "[t]his harm results in more than just material burdens." Id. Thus it is clear that, in declaring same-sex marriage a fundamental right, the Court intended to cure material burdens withheld from same-sex couples, as well as dignitary ones.
Cognizant of the Supreme Court's most recent rulings, and using its language, this court has evaluated whether the present denial of federal survivor benefits based on Washington state's past denial of Ms. Thornton's fundamental right to same-sex marriage "inflict[s] substantial and continuing harm on same-sex couples" in violation of the Fifth and Fourteenth Amendments. See id. at 2607.
1. Substantial and Continuing Harm
The case before the court clearly demonstrates such substantial and continuing harm. Since the Social Security statutes define an applicant's relationship with the insured based on the laws of the state where they resided at the time of the insured's death, the federal statutes are inextricably tied to the state statute that defined their relationship. See 42 U.S.C. § 416(c)(1), (g)(1), (h)(1)(A). Because Ms. Brown was legally prohibited by the State of Washington from marrying Ms. Thornton, denying Ms. Thornton survivor's benefits inflicts on her a "substantial and continuing harm" arising from the unconstitutional denial of her fundamental right to marry.
The Administration argues that Ms. Thornton was not denied benefits because she had a same-sex partner but because she had not been married to her partner prior to Ms. Brown's death. See Dkt. 63, at 10–11. But this argument sidesteps the obvious—it was a state law of precisely the type declared unconstitutional by Obergefell that denied Ms. Thornton the right and the opportunity of marrying Ms. Brown. Granted, the Administration no longer interprets the federal statute to exclude same-sex marriage. But the Administration has not re-interpreted the federal statute's reliance on unconstitutional state laws prohibiting same-sex marriage to comply with Obergefell . Rather it remains part of the "a long history of disapproval of their relationships" to deny same-sex couples the same rights as opposite sex couples. Obergefell , 135 S. Ct. at 2604. The Administration failed to account for this impact on surviving same-sex partners after Obergefell , in the same way that it accounted for the Court's ruling protecting same-sex marriage after Windsor . Its failure to address this "substantial and continuing harm" requires the court to address it now.
Ms. Thornton's constitutional rights have been impacted in three ways. First, her fundamental right to marry the person of her choice impacted her rights under the due process clauses of the Fifth and Fourteenth Amendment. See Obergefell , 135 S. Ct. at 2604. Second, because she could have married Ms. Brown if she had been a man, she was discriminated against because she was a woman. See Latta , 771 F.3d at 479–80 (Berzon, J., concurring). Finally, the bar against same-sex marriage was part of a "long history" of discrimination against same-sex couples. See Obergefell , 135 S. Ct. at 2594. Therefore, she was also discriminated against because of her sexual orientation. See Lawrence v. Texas , 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ; Latta , 771 F.3d at 467 ; Diaz , 656 F.3d at 1014 ; In re Fonberg , 736 F.3d 901, 903 (9th Cir. Jud. Council 2013). Whether considered separately or together, the impacts on Ms. Thornton's constitutional rights are substantial.
The Administration asserts that it was not the Administration, but the state that discriminated—and that the federal statute at issue is not subject to the constitutional infirmities of the state law upon which it relies. The parties have not cited to, and this Court has not found, any Ninth Circuit case addressing whether a federal statute denying survivor's benefits based on an unconstitutional state statute is also unconstitutional. For guidance, the Court finds persuasive the decision in Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982), which considered an analogous circumstance.
In that case, the Administration denied survivor's benefits to the child of a deceased father based on a Georgia state statute that did not recognize equal intestate rights of a child born outside of wedlock. Id. at 312. Although Georgia law was subsequently changed to remove this barrier, at the time of the father's death, the applicant child did not qualify to recover benefits because of those barriers. Id. at 314–15. Therefore, although the Social Security survivor statute was facially neutral, the court found that the Administration was denying survivor's benefits based on a state statute that was substantially similar to other state statutes that had been found to be unconstitutional by the Supreme Court in Trimble v. Gordon , 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) and Lalli v. Lalli , 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Cox, 684 F.2d at 320.
We are convinced that the structure and language of 42 U.S.C.[ ] § 416(h)(2)(A) of the Social Security Act, referring to state law on intestate inheritance, makes relevant the issue of the constitutionality of a particular state law.... When a [state] statute conferring benefits on a certain class of persons is held unconstitutional due to a violation of the equal protection clause, then the unlawful discrimination or classification must be eradicated, either by granting the benefits to the inappropriately excluded class, or by denying them to the class theretofore benefitted unlawfully. Welsh v. United States , 398 U.S. 333, 361, 90 S.Ct. 1792, 26 L.Ed.2d 308 ... (1970). In such cases ..., the normal judicial remedy is to extend the benefits to the deprived group. See Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 ... (1979) (citing numerous other cases involving federal benefits statutes).
Id. at 317.
Indeed, when other courts have reviewed cases where the benefits of marriage have been wrongfully denied, they have consistently allowed the deprived person the opportunity of the full benefits that had been taken from them. See, e.g. , Trimble , 430 U.S. at 768–76, 97 S.Ct. 1459 (denial of Social Security survivor benefits to children born out of wedlock under state law); Weinberger v. Wiesenfeld , 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (denial of Social Security survivor benefits to a widower, when the same benefits would be extended to a widow); Diaz , 656 F.3d at 1014 (denial of spousal health insurance benefits to same-sex partners who could not marry under state law); cf. Loving v. Virginia , 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (vacating convictions under state law banning interracial marriages).
The same principle should be applied here. Although the Social Security statute is facially neutral, it relies on state statutes that have been rendered unconstitutional by the Supreme Court. The Social Security statute incorporating the unconstitutional state statute should not be enforced in a way that continues to deprive a class of people of their constitutional rights. "To hold otherwise would in effect amount to a retroactive interference with vested rights...." Cox , 684 F.2d at 318. Because Ms. Thornton can demonstrate that but for the unconstitutional barrier to same-sex marriage, she would have been a "Widow," as that term is otherwise defined, she should be able to recover the same benefits as other persons similarly situated.
This is not a case that seeks to re-do history. Although Ms. Thornton and Ms. Brown were denied the right to marry prior to Ms. Brown's death, there was no injury to Ms. Thornton until after her claim was adjudicated by the ALJ. Ms. Thornton suffers a substantial and continuing harm every month that she is denied her monthly survivor benefit. Therefore, even though Ms. Brown did not live long enough to see the fulfillment of her efforts towards marriage equality, Ms. Thornton did. Granting her benefits would alleviate this "substantial and continuing harm."
2. The Administration's Arguments
The Administration argues that the subject regulation is simply administrative line-drawing and that in the absence of any evidence of improper purpose to discriminate, the statute should be enforced even if it has a disparate impact on a class of persons who have suffered from discrimination in the past. See Dkt. 63, at 21–22. The Administration relies on Feeney , 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870. In Feeney , the Supreme Court upheld a state statute that gave hiring preference to "veterans" even though it had a disparate impact on women. Id. at 281, 99 S.Ct. 2282. The Court found that over 98% of those persons who benefited from this preference were men. Id. at 270, 99 S.Ct. 2282. Although the Supreme Court acknowledged that this statute had a disparate impact on women, it held that "the history of discrimination against women in the military is not on trial in this case." Id. at 278, 99 S.Ct. 2282. Using a "rational basis" test, the Court ruled that the Fourteenth Amendment cannot be used for all "ill-advised laws" and upheld the statute. Id. at 281, 99 S.Ct. 2282.
As noted earlier, this "rational basis" analysis has evolved since this 1979 ruling and may not be applied the same today. Even so, Ms. Thornton's case is different than Feeney in several respects. First, in Feeney, the Court determined that the state legislature did not enact the statute with the "collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service." Id. at 279, 99 S.Ct. 2282. The Court held that the statute was adopted to favor veterans—and not for the purpose of discriminating against women. Id. at 275, 99 S.Ct. 2282. And, indeed, at least some—although a paltry few—women benefited from the hiring preference. Id. at 276–77, 99 S.Ct. 2282.
In Ms. Thornton's case, however, Washington State's ban on same-sex marriage, by definition, excluded an entire class of same-sex couples—she was not just restricted, but rather barred from marrying Ms. Brown. In Ms. Thornton's case, as in Obergefell , state laws prohibiting same-sex marriage were part of "a long history of disapproval of their relationships," and "this denial to same-sex couples of the right to marry works a grave and continuing harm." Obergefell, 135 S. Ct. at 2604. Therefore, even if the same "rational basis" standard used in Feeney were to be applied here, it would not be controlling of the outcome.
Moreover, the Ninth Circuit applied the rational basis test for denying same-sex couples state-sponsored healthcare benefits in Diaz and found that state laws prohibiting same sex domestic partners from receiving state sponsored healthcare did not further a legitimate state interest because they were based on a desire to harm a politically unpopular group. Diaz , 656 F.3d at 1014–15.
Even if the "rational basis" test applies, which is questionable, none of the reasons provided by the Administration can provide a rational basis for denying Ms. Thornton survivor's benefits.
a. Fraudulent Marriages
The Administration argues that the marriage requirement reduces the risk of fraudulent requests for benefits and that it should be able to impose reasonable limitations on persons recovering benefits even though it inevitably requires denying benefits to some persons who may otherwise be deserving. See Dkt. 63, at 23–26 (citing Weinberger v. Salfi , 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) ).
In Salfi , the Court was considering the "duration-of-relationship" requirement in the same survivor's benefits statute at issue in this case. Id. at 754, 95 S.Ct. 2457. Ms. Salfi and her husband had only been married less than a month when he died suddenly. Id. She applied for benefits arguing that the nine-month limitation should not be applied to her. Id. The Court disagreed. It concluded that even when there is an "inherent imprecision" in the defining statute, "a noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status[.]" Id. at 773, 95 S.Ct. 2457. Since there was no evidence of invidious discrimination against the claimant, the statute was upheld. Id. at 772, 95 S.Ct. 2457. Ms. Thornton, however, had been subjected to invidious discrimination by the state. Unlike Ms. Salfi, who chose not to marry her husband until shortly before his death, Ms. Thornton was denied the choice to marry Ms. Brown at all.
Perhaps administrative line-drawing may be used as a valid reason to deny benefits to couples who had the legal right to marry, but it could not justify the deprivation of survivor's benefits to same-sex couples who were denied the right to marry. Therefore, barring Ms. Thornton from recovering the same benefits that would be granted to other persons who enjoyed the benefits of marriage cannot be justified on this basis.
b. Administrative Efficiency
Second, the Administration argues that "administrative efficiency" justifies the nine-month marriage requirement, again citing Salfi. Dkt. 63, at 23. In Salfi , the statute's purpose was to avoid the "administrative difficulties of individual eligibility determinations." 422 U.S. at 784, 95 S.Ct. 2457. Ms. Thornton's constitutional rights outweigh any alleged administrative burden. See SmithKline , 740 F.3d at 482. " ‘[T]he Constitution recognizes higher values than speed and efficiency.’ " Frontiero v. Richardson , 411 U.S. 677, 690, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (citing Stanley v. Illinois , 405 U.S. 645, 656, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ).
Moreover, the Administration is clearly capable of making these case-by-case determinations and does so in every claim it processes. It already has regulations in place to make individualized determinations regarding benefits for people in common-law marriages. See 20 C.F.R. § 404.726. Indeed, the Administration is equipped with myriad internal policies for making the exact factual determinations required to determine whether Ms. Thornton and others similarly situated would have married their partner but for the unconstitutional state law. It recognizes exceptions to the nine-month marriage requirement under certain circumstances when the claimant had "a good faith belief" that the marriage was valid, but the wedding ceremony was flawed for some technical reason. See 42 U.S.C. § 416(h)(1)(B)(i). It also waives the nine-month marriage requirement when state law prevented a claimant from marrying the insured deceased spouse sooner because of a former spouse's institutionalization. See 42 U.S.C. § 416(c)(2), (g)(2).
In that instance, the Administration makes a factual determination to determine if the applicant "would have ... married" at least nine months before but could not do so "because such [marriage] would have been unlawful ... under the laws of the State[.]" See 42 U.S.C. § 416(g)(2). It also deems the nine-month requirement satisfied, under certain circumstances, if the wage earner dies within that period of time and the death is either accidental or occurs when the wage earner is on active duty and death occurs in the line of duty. See 42 U.S.C § 416(k). Interestingly, the Administration also denies or reduces benefits to certain same-sex couples who otherwise would have been married under state law. "[W]e recognize same-sex couples as married in all states for purposes of determining eligibility or payment amount for SSI, including some same-sex couples we earlier determined were unmarried. " POMS GN 00210.800 (emphasis added).6
Contrary to the Administration's argument that this would result in "a morass of individual determinations about the nature of particular relationships" (Dkt. 63, at 26), nothing systemically prevents the Administration from making individual determinations. If anything, the administrative process has demonstrated that it is fully capable of making similar determinations and already does so regularly.
c. Financial Interdependence
Third, the Administration argues that the statute should be upheld because it is rationally related to awarding benefits only to those who are most likely to have been in a financially interdependent relationship with the deceased wage-earner. Dkt. 63, at 23. Aside from the fact that no Supreme Court decision has yet upheld this reason as a rational basis for denying constitutional rights (see Dkt. 63 at 27), it certainly does not apply here. If anything, the opposite applies. There is no reason to believe that same-sex couples rely any less on their partners for financial support than opposite sex couples. And denying same-sex couples the same benefits because they could not lawfully marry deprives them of the contributions that they have paid from their earnings over the years, "in order to contribute to the fund out of which benefits would be paid to others." Weinberger , 420 U.S. at 645, 95 S.Ct. 1225 (striking down provisions of Social Security Act discriminating based on sex). This is exactly the type of harm that was recognized by the Supreme Court in Windsor, when the Court noted that denying survivor benefits to same-sex couples who were lawfully married "denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security." 570 U.S. at 773, 133 S.Ct. 2675 (quotation marks and internal citation omitted). If such a rationale could not be used to deny benefits to same-sex couples who were lawfully married, surely it could not be used as a reason to deny benefits to same-sex couples who could not lawfully marry.
For the above reasons, the undersigned finds that denying Ms. Thornton's application for survivor benefits based on an unconstitutional state law violates her due process and equal protection rights under the Fifth and Fourteenth Amendments.
III. RECOMMENDATION ON MOTION FOR CLASS CERTIFICATION
A. Overview
Ms. Thornton is also seeking to represent a class of persons similarly situated pursuant to Fed. R. Civ. P. 23(a) and (b)(2). Dkt. 46, at 6. Specifically, Ms. Thornton seeks certification under Fed. R. Civ. P. 23(b)(2), which states that a class may be certified where "final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]" Dkt. 54, at 34. Ms. Thornton is a member of the National Committee to Preserve Social Security and Medicare ("National Committee"). Dkt. 46, at 6. The National Committee alleges that it has "over two million members and supporters nationwide" and "is committed to ensuring that social security benefits are widely accessible, including to same-sex spouses." Dkt. 46, at 5. It has not sought to be named as a class representative.
The Administration opposes class certification, stating that relief should be granted, if at all, only on Ms. Thornton's claim. Dkt. 63, at 38.
Because this statutory scheme is applied nationwide, this court agrees that the class should include all persons nationwide. But plaintiffs’ proposed class is overbroad because jurisdiction is limited to only those persons who have presented their claim to the Administration. And, the Administration—not the court—should be principally responsible for addressing how the law applies in each case. Finally, in order to avoid interfering with litigation in another district that potentially involves similar, but not identical issues, the class definition should specifically exclude those putative class members. Therefore, as discussed infra , this court recommends that the class be defined in relation to the constitutional issue presented and should include,
All persons nationwide who presented claims for social security survivor's benefits based on the work history of their same-sex partner and who were barred from satisfying the marriage requirements for such benefits because of applicable laws that prohibited same-sex marriage. This class is intended to exclude any putative class members in Ely v. Saul , No. 4:18-cv-00557-BPV (D. Ariz.)
The undersigned recommends certification of this class under Rule 23(b)(2) and, based on finding that the statutory scheme at issue is unconstitutional as discussed supra , Part II, the court should issue injunctive relief prohibiting the Administration from denying claims by class members on the basis of the unconstitutional statutory scheme.
B. Jurisdiction
" Section 405(g) specifies the following requirements for judicial review: (1) a final decision of the Secretary made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court[.]" Salfi , 422 U.S. at 763–64, 95 S.Ct. 2457. The second and third—but not the first—requirement may be waived. Id. at 764, 95 S.Ct. 2457. The first requirement is not waivable because it is "central to the requisite grant of subject-matter jurisdiction[.]" Id.
A class action may be brought under § 405(g) challenging the constitutionality of a statutory scheme used to determine eligibility for benefits. See id. at 753, 95 S.Ct. 2457 (involving a class action challenging the nine-month-duration marriage requirement in the definition of "widow" and "child" in 42 U.S.C. § 416 ); see also Califano v. Yamasaki, 442 U.S. 682, 700–01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Although here, the Administration argues that a class action is not an allowable form of relief, in Yamasaki , the Supreme Court rejected this argument and held that "class relief is appropriate" in 1042 cases under § 405(g). 442 U.S. at 700, 99 S.Ct. 2545. The Court explained
class relief is consistent with the need for case-by-case adjudication emphasized by the Secretary, at least so long as the membership of the class is limited to those who meet the requirements of § [4]05(g) .... Where the district court has jurisdiction over the claim of each individual member of the class, Rule 23 provides a procedure by which the court may exercise that jurisdiction over the various individual claims in a single proceeding.
Id. at 701, 99 S.Ct. 2545 (internal citation omitted).
Indeed, a class action is "peculiarly appropriate" where—as here—a single question of law applies to each member of the class nationwide. Id. Such a class action may seek injunctive relief—"[i]njunctions can play an essential role in § [4]05(g) litigation." Id. at 705, 99 S.Ct. 2545.
As will be discussed infra, the court does not have § 405(g) jurisdiction over class members who have not presented their claims to the Administration. See Salfi , 422 U.S. at 764, 95 S.Ct. 2457. The undersigned addresses these issues more fully in the discussion of the class definition. See infra , part(III)(C).
C. Class Definition
As noted above, Ms. Thornton, as class representative, has moved for class certification. Dkt. 53, at 34. She proposes that the class be identified as
[a]ll persons nationwide who (i) presented or will present claims for Social Security survivor's benefits based on the work history of a same-sex partner; (ii) were denied or will be denied Social Security spousal survivor's benefits based on not satisfying the marriage requirements of the Social Security Act; and (iii) were barred from marrying and otherwise satisfying such requirements because of unconstitutional laws prohibiting same-sex couples from marriage prior to their partner's death.
Dkt. 53, at 35.
The class definition proposed by plaintiffs requires modification to account for several issues raised by the Administration.
1. Presentment
Plaintiffs’ proposed class definition runs afoul of the jurisdictional limitation that class members have presented claims, as it includes people who have not yet presented their claims to the Administration for benefits. See Dkt. 53, at 35 (including putative class members who have "presented or will present claims" (Emphasis added.)). The Administration asserts that this court lacks jurisdiction over unnamed plaintiffs who have not presented their claims to the Administration. Dkt. 63, at 39. The undersigned agrees.
Section 405(g) grants federal court jurisdiction only where claims have been properly presented before the agency and where a final agency decision has been issued. See Salfi , 422 U.S. at 763–64, 95 S.Ct. 2457.
The Supreme Court recently reaffirmed prior holdings that presenting a claim to the Administration is a jurisdictional requirement for judicial review. Smith v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1765, 1773, 204 L.Ed.2d 62 (2019) (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ). This is not waivable. In Salfi , the Court examined whether unnamed plaintiffs in a class action who had not presented their claim to the Administration could proceed—the Court held that they could not. 422 U.S. at 763, 95 S.Ct. 2457 ("We conclude that [ § 405(g) ] provided jurisdiction only as to the named appellees and not as to the unnamed members of the class."); see also id. at 758, 95 S.Ct. 2457, n. 6 ("The entitlement sections of the Act specify the filing of an application as a prerequisite to entitlement, so a court could not in any event award benefits absent an application."); accord Grijalva v. Shalala , No. 93-711 TUC ACM, 1995 WL 523609, at *6 (D. Ariz. July 18, 1995) (in defining a class of claimants for Medicare benefits, ruling that "other individuals who have not filed claims for benefits with the Secretary, such as future claimants of Medicare benefits, cannot satisfy the non-waivable presentment requirement of § 405(g).").
Although plaintiffs cite cases that suggest otherwise, those cases are not controlling in this district or do not involve § 405(g) ’s presentment requirement. See Dkt. 64, at 25. Therefore, the undersigned recommends certification of a class including only those who have presented claims to the Administration.
2. Exhaustion
Generally, persons applying for benefits are required to exhaust the administrative process before applying to the court for relief. See Smith , 139 S. Ct. at 1773–74 ; Salfi , 422 U.S. at 766, 95 S.Ct. 2457. Unlike the presentment requirement, the exhaustion requirement may either be waived by the Administration or excused by the court. See Smith, 139 S. Ct. at 1773–74.
The Administration has not waived exhaustion with respect to the claims in this case. See Dkt. 49, at 13–14. The Administration claims that the court should not excuse exhaustion because this is a fact-specific inquiry for each claimant and cannot be resolved en masse. Dkt. 63, at 40.
Plaintiffs argue that the Court should excuse the exhaustion requirement in this matter because exhausting the administrative claims process would have been futile. Dkt. 53, at 37.
The undersigned agrees with plaintiffs but modifies the proposed class definition to make it clear that the Administration—and not the court—will be tasked with implementing appropriate regulations to comply with this court's proposed injunction.
Waiver is appropriate where the action is "collateral to a substantive claim of entitlement," the economic hardship suffered by plaintiffs while awaiting exhaustion constitutes irreparable injury, and there is no advantage to compiling an administrative record. See Johnson , 2 F.3d at 921–23. Citing the Supreme Court decision in Bowen v. New York , 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), district courts have held that exhaustion requirements may be waived where exhaustion would be futile. See also Salfi , 422 U.S. at 767, 95 S.Ct. 2457. Where there is no dispute regarding the facts or application of statutory law, and the only issue is the constitutionality of a statutory requirement, waiver of exhaustion is particularly appropriate. See Salfi , 422 U.S. at 766–67, 95 S.Ct. 2457.
While each case may present unique questions regarding whether or not any particular claimant would have been married to his or her deceased partner but for their state's law prohibiting such a marriage, answering those unique questions is not determinative of the constitutional issue presented to this court. Because the Administration does not even consider claims for persons who were not married, requiring claimants to exhaust the administrative remedies would be futile. As noted above, although the Administration is uniquely qualified to make these factual, case-by-case determinations, it has chosen not to do so because of its policy not to consider such claims. It is not hard to imagine that a person who files a claim and is informed that the claim was denied because of the Administration's policy prohibiting such claims would simply choose to give up rather than exhaust the administrative process. That is the definition of "futile." Because this challenge to the policy "rises and falls on its own, separate from the merits of their claim for benefits," putative class members should not be excluded simply because they failed to exhaust their administrative remedies. See Johnson, 2 F.3d at 921–22 (internal quotation marks and citation omitted); see also Mathews , 424 U.S. at 330–31, 96 S.Ct. 893 (finding that a constitutional challenge is collateral to the substantive claim of entitlement; therefore, waiving exhaustion is proper.)
Therefore, the undersigned recommends certifying a class that would include even those who have not yet exhausted their claims.
3. 60-Day Statute of Limitations
The Administration also argues that the purported class should not include those who received a final agency decision but did not bring suit in federal court within 60 days, as required by 42 U.S.C. § 405(g). Although the Administration has not waived this defense (see Dkt. 49, at 13), it concedes that this is not jurisdictional and that the court may excuse it. Dkt. 63, at 41 (citing Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir. 1987) ).
In Bowen , the Supreme Court held that while the Administration will usually determine whether or not to extend the 60-day limitation on filing a district court appeal after exhaustion of administrative remedies, "cases may arise where the equities in favor of tolling the limitations period are so great that deference to the agency's judgment is inappropriate." 476 U.S. at 480, 106 S.Ct. 2022 (internal quotation marks and citation omitted).
Here, the equities favor waiving the 60-day filing requirement for those persons who filed claims. Since the undersigned is recommending that persons be excused from exhausting their administrative remedies, and exhaustion is usually a requirement before filing a court action, it stands to reason that the requirement to file a federal action within 60 days of the agency's final decision should be waived as well.
Therefore, the undersigned recommends certifying a class that includes those who have not filed a federal action within 60 days of a final agency decision.
4. "Applicable law."
In their supplemental briefing regarding numerosity, the parties also addressed the Court's proposal to limit the class to claimants unable to obtain survivor's benefits due to "their state's laws prohibiting same-sex marriage." Dkt. 69, at 1. Plaintiffs objected to this language on the basis that it would not include same-sex couples who lived in jurisdictions such as Puerto Rico or the District of Columbia. See Dkt. 71, at 9. The Administration countered that "their state" was an appropriate limitation as the regulations track similar language. See Dkt. 73, at 8.
The legal question presented is whether any law banning same-sex marriage impacted a claimant's right to recover benefits. The constitutional question is not limited to any particular state's borders. It is intended to include the District of Columbia, Puerto Rico, and any other jurisdiction that previously banned same-sex marriage. Therefore, the undersigned recommends that the class definition more broadly include any person who was denied benefits based on "applicable law" that banned same-sex marriage.
D. Rule 23(a) Prerequisites
Having determined the appropriate class definition, the undersigned turns to whether plaintiffs have shown that the proposed class satisfies Rule 23(a) ’s prerequisites to maintain a class action. Under Rule 23(a), one or more class members may represent the class so long as "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(1)–(4). The court has an independent duty to conduct a meaningful inquiry into the requisites of Rule 23(a). Int'l Woodworkers of Am. v. Chesapeake Bay Plywood Corp. , 659 F.2d 1259, 1267 (4th Cir. 1981). Class certification is proper "only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied[.]’ " Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 131 S. Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ).
1. Numerosity
A class representative may be sued on behalf of all members where "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. Rule 23(a)(1). Although the parties did not dispute that the proposed class is sufficiently numerous (see Dkt. 63, at 42–26), the undersigned requested additional briefing on this issue to satisfy the court's duty to conduct a meaningful inquiry into whether the Rule 23(a) prerequisites were satisfied. See Dkt. 69.
Plaintiff posited that "there are at least several dozen individuals throughout the country who are still living today whose loved ones died before marriage was available to them in their state." Dkt. 53, at 41. In response to the Court's request for supplemental briefing, plaintiff asserts that even limiting the proposed class to only those who have already presented claims results in a sufficiently numerous class since joinder of persons throughout the country is impracticable and class members by definition have limited financial resources to press their own claims. See Dkt. 71, at 4–8. Moreover, plaintiff asserts that "[g]iven the thousands of same-sex couples who were barred from marriage over time, and the reality that some individuals within that group died before marriage was available thus leaving a surviving partner, only a small fraction would need to have presented claims to make joinder impracticable." Dkt. 71, at 7–8. Plaintiff relies on evidence that at least 22 people have inquired about benefits for surviving same-sex partners since 2013 and have appeared likely to fall within the class definition—representing only a small minority of those actually included. See Dkt. 71, at 8.
"[C]ourts generally find that the numerosity factor is satisfied if the class comprises 40 or more members and will find that it has not been satisfied when the class comprises 21 or fewer." Celano v. Marriott Int'l , 242 F.R.D. 544, 549 (N.D. Cal. 2007). The court may infer that the numerosity requirement is met by "general knowledge" and "common sense." See Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration Servs. , 325 F.R.D. 671, 679 (W.D. Wash. 2018). "[T]he numerosity requirement is relaxed for classes seeking injunctive relief." Skaar v. Wilkie , 32 Vet. App. 156, 190–92 (2019) (citing Sueoka v. United States , 101 F. App'x 649, 653 (9th Cir. 2004) ). When injunctive relief is the only relief requested, even speculative or conclusory representations regarding numerosity will suffice to permit class certification. Horn v. Ass'n Wholesale Grocers, Inc. , 555 F.2d 270, 275–76 (10th Cir. 1977).
The Administration asserts that plaintiffs’ evidence about "22 phone records of callers" inquiring about survivors’ benefits is inadequate because it is hearsay and does not specify individuals who presented their claims. See Dkt. 73, at 5–6. To the extent that the Administration raises hearsay objections, the Court denies them—"[i]n determining whether class certification is appropriate under Rule 23, courts may consider all material evidence submitted by the parties ... and need not consider the ultimate admissibility of evidence proffered by the parties." Blair v. CBE Grp., Inc. , 309 F.R.D. 621, 627 (S.D. Cal. 2015) (internal quotation marks and citation omitted).
Here, relying on common sense and the more relaxed numerosity standard when addressing the proposed injunctive relief, the undersigned concludes that plaintiffs have satisfied this requirement. As a practical matter, it is impossible to know how many claimants nationwide were impacted by the Administration's blanket refusal to award benefits to the defined class. And, although this information may be exclusively within the records of the Administration, it has not chosen to offer up such information. Nevertheless, considering the widespread and growing population of same-sex marriages in this country, it stands to reason that a significant number of same-sex surviving partners would fall within the purview of the proposed injunction—at least more than 26, and probably more than 40 nationwide. Therefore, in light of the fact that plaintiff seeks solely injunctive relief, the undersigned finds that plaintiff has adequately satisfied the numerosity prerequisite to bring a class action under 23(b)(2).
2. Commonality
The commonality requirement states that there must be "questions of law or fact common to the class." Fed. R. Civ. P. Rule 23(a)(2). The Administration asserts that the commonality requirement is not met because there are too many factual determinations and that plaintiffs’ claim is "[m]erely alleging a ‘violation of the same provision of law’ [which] does not satisfy commonality." Dkt. 63, at 34 (quoting B.K. v. Snyder , 922 F.3d 957, 967 (9th Cir. 2019) ).
Both sides cite Wal-Mart Stores, Inc. , for their opposite positions on this issue. The undersigned agrees that this case is determinative and aligns with plaintiffs’ position. In Wal-Mart , the Court held that a class action against Wal-Mart because of alleged unequal pay and promotions for women employees was not appropriate under Title VII of the Civil Rights Act. 564 U.S. at 343, 131 S.Ct. 2541. Fatally, plaintiffs in that case could not point to any single corporate policy against women but rather a "corporate culture" that permitted bias against women. Id. at 345, 131 S. Ct. 2541, 2551. The Court concluded that there was no "common contention" that could be resolved by a class-wide resolution. See id. at 350, 131 S. Ct. 2541, 2551. Each employment decision may or may not have been driven by the alleged discriminatory "corporate culture." Id. Since plaintiffs were seeking an award of money damages, each determination would require individualized resolution.
Here, the common contention is class-wide—can any same-sex partner recover survivor benefits when the couple was prevented from marrying by state law? The Administration's policy against awarding benefits to same-sex survivors in that circumstance is absolute. Although each claimant will have an individual case to be made to support his or her claim for survivor benefits, certifying the class will give each class member the opportunity to make that claim—something they have been unable to do in the past. Plaintiffs seek an agency-wide injunction. The Wal-Mart decision makes clear that when the issue to be resolved "is central to the validity of each one of the claims in one stroke," a class-wide resolution is appropriate. See id. at 350, 131 S. Ct. 2541, 2551. Such is the case here.
In a case decided in this District, Moussouris v. Microsoft , the court denied class certification in a sexual discrimination claim very much like the Wal-Mart case. See C15-1483 JLR, 2018 WL 3328418, at *26 (W.D. Wash. June 25, 2018), affirmed , 799 Fed.Appx. 459 (9th Cir. 2019). Again, Microsoft's employment practices delegated discretionary employment decisions broadly, and plaintiffs could not identify any single employment practice that presented a common question sufficient to certify a class. Id. at *23. The court noted that without the "glue" that held all of the individual claims of discrimination together, class action was unwarranted. Id. Here, the "glue" is the immutable position of the Administration that a surviving same-sex partner can never recover survivor's benefits even if state law prohibited her from marrying. Class certification to resolve that common question overrides the individual determinations that the Administration will make in each claimant's case. Plaintiffs have met that burden here.
3. Typicality
The representative party must have "claims or defenses ... [that] are typical of the claims or defenses of the class." Fed. R. Civ. P. Rule 23(a)(3). The Administration argues that Ms. Thornton's claims are not typical of the class because the factual circumstances surrounding her relationship with Ms. Brown may not be typical of other class members. For example, the Administration argues that some couples may have eventually broken up or remarried. Dkt. 63, at 42–43. And the Administration argues that Ms. Thornton and Ms. Brown are the rare exception who would be able to prove unequivocally that but for state law they would have married but that many other same-sex couples would not have similarly compelling stories. Dkt. 63, at 44–45.
Plaintiffs counter that these individual questions for each claimant are not before the court but will be investigated at the administrative level when the putative class members present their claims for benefits. Plaintiffs assert that they are seeking threshold entry for class members who are similarly situated to Ms. Thornton to have their claims reassessed on equal footing with opposite-sex couples when seeking survival benefits. Dkt. 53, at 44–45.
As noted by the Court in Wal-Mart , "[t]he commonality and typicality requirements of Rule 23(a) tend to merge." 564 U.S. at 349 n.5, 131 S.Ct. 2541 (internal quotation marks and citation omitted). Without repeating the discussion above, suffice it to say that Ms. Thornton's claim is typical of all other putative class members to the extent that they all suffered the same constitutional injury. How that plays out in each individual claim will be decided at the administrative level. But they should not be denied the opportunity of making that claim by a blanket refusal to recognize the continuing impact of state laws barred same-sex marriage.
4. Adequate Representation
The representative party must "fairly and adequately represent the interests of the class." Fed. R. Civ. P. Rule 23(a)(4). "Adequate representation depends on the qualification of counsel for the representatives, an absence of antagonism, a sharing of interest between representatives and absentees, and the unlikelihood that the suit is collusive." Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc. , 244 F.3d 1152, 1162 (9th Cir. 2001) (internal quotation marks and citations omitted). The Administration does not address this issue in its opposition to class certification other than by repeating its arguments against typicality. See Dkt. 63, at 46 n.22. Nor does the Administration challenge plaintiffs’ choice of class counsel. See Dkt 63. The undersigned has examined the materials submitted by Ms. Thornton and her counsel. Plaintiffs’ counsel is competent and experienced in relevant constitutional litigation and class actions and has presented sufficient information to the court to satisfy this requirement. No party has identified any conflicts that would prevent Ms. Thornton or her counsel from adequately representing the class.
E. Nationwide Injunctive Relief
The Administration argues that even if a class action may be certified under § 405(g), the class cannot be nationwide. Dkt. 63, at 47. The Court recommends certifying a class that includes class members outside of Washington State and granting injunctive relief that extends to all class members. Such relief is appropriate in this case for the reasons discussed below.
In Yamasaki, the Court authorized a nationwide class under Rule 23(b)(2), explaining
Nothing in Rule 23, however, limits the geographical scope of a class action that is brought in conformity with that Rule. Since the class here was certified in accordance with Rule 23(b)(2), the limitations on class size associated with Rule 23(b)(3) actions do not apply directly. Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation established , not by the geographical extent of the plaintiff class.... If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.
442 U.S. at 702, 99 S.Ct. 2545 (emphasis added) (citation omitted); see also L.A. Haven Hospice, Inc. v. Sebelius , 638 F.3d 644, 664 (9th Cir. 2011) ("Our Supreme Court has cautioned that ‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs’ before the court.... This rule applies with special force when there is no class certification. ") (quoting Yamasaki , 442 U.S. at 702, 99 S.Ct. 2545 ). Therefore, since the denial of survivor benefits at issue in this case is being applied nationally, because class certification is appropriate, and because the Court has jurisdiction over all claims presented by the class members, the undersigned recommends that the class be certified nationally.
Recent Ninth Circuit case law dictates that before this court recommends nationwide relief, the court must analyze whether nationwide relief is " ‘necessary to give prevailing parties the relief to which they are entitled.’ " E. Bay Sanctuary Covenant v. Barr , 934 F.3d 1026, 1030 (9th Cir. 2019) (quoting California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) ). Of note, East Bay did not involve a class action lawsuit, as is the case here. See E. Bay Sanctuary Covenant v. Barr , 385 F. Supp. 3d 922, 935 (N.D. Cal. July 24, 2019). The class action rules are specifically designed to address the question of geographic scope and, therefore, are not of a similar nature as the type of nationwide injunction of concern in East Bay Sanctuary and similar cases cited by that court.
The court in East Bay Sanctuary also points out that nation-wide injunctions are only appropriate in " ‘exceptional cases’ " because they may " ‘stymie novel legal challenges and robust debate’ arising in different judicial districts.’ " 934 F.3d at 1029 (quoting City & Cty. of S.F. v. Trump , 897 F.3d 1225, 1244 (9th Cir. 2018) ). That does not appear to be the case here. Although the Administration advised the court during oral argument that there are cases in other districts that involve same-sex partner survivor benefits, the Administration also stated that this case is unique in that it involves a claimant whose partner died before state law allowed for same-sex marriage and whose claim was denied after Obergefell was decided. Therefore, it does not appear that this court will be interfering with the decisions of other courts that may be considering similar, but not identical, issues. Indeed, the Court recommends that the class be re-defined to explicitly exclude members of the Ely class action. See supra , part III(A).
Finally, the court in East Bay Sanctuary cautions that the injunction should be narrowly tailored to remedy the specific harm shown. 934 F.3d at 1029. The proposed injunction would be narrowly tailored to address only the constitutional issue and not address each individual set of facts that may arise in each claim. That would be more properly addressed by the Administration during the claims process. Tellingly, in Yamasaki , the Court was reviewing two class action cases interpreting the constitutionality of the same Social Security provision that were consolidated for consideration. 442 U.S. at 690, 99 S.Ct. 2545. One district court limited the class to residents in the State of Hawaii. Id. at 687, 99 S.Ct. 2545. The other district court authorized a nation-wide class. See id. at 689–90, 99 S.Ct. 2545. The Court concluded that the nationwide class was not inappropriate because it "saves the resources of both the courts and the parties by permitting an issue potentially affecting every social security beneficiary to be litigated in an economical fashion under Rule 23." Id. at 701, 99 S.Ct. 2545.
For the foregoing reasons, the court concludes that granting nationwide relief is "necessary to give prevailing parties the relief to which they are entitled." E. Bay Sanctuary Covenant , 934 F.3d at 1030 (internal quotation marks and citation omitted).
F. Mandamus Jurisdiction and the National Committee
Plaintiffs argue in the alternative that if jurisdiction does not lie under § 405(g) for their claims, then this Court has mandamus jurisdiction under 28 U.S.C. § 1361. See Dkt. 53, at 36–37. The Court disagrees and recommends the exercise of jurisdiction exclusively under § 405(g).
The Supreme Court has not yet decided whether 42 U.S.C. § 405(h) —the portion of § 405 barring review "except as herein provided"—is the sole means of reviewing a decision of the Commissioner of Social Security. See, e.g. , Yamasaki , 442 U.S. at 698, 99 S.Ct. 2545 ; see also Heckler v. Ringer , 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ("We have on numerous occasions declined to decide whether the third sentence of § 405(h) bars mandamus jurisdiction over claims arising under the Social Security Act[.]").
The undersigned agrees with plaintiff's primary argument that jurisdiction lies under § 405(g). Moreover, mandamus—which is an extraordinary remedy—is only available to compel a federal official to perform a duty if "(1) the individual's claim is clear and certain; (2) the officials’ duty is non-discretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." Kildare v. Saenz , 325 F.3d 1078, 1084 (9th Cir. 2003) (internal quotation marks and citation omitted). Here, (3) is not satisfied because it appears that an adequate remedy is available under § 405(g) —certifying the class defined above and granting judgment in their favor of the plaintiff class, enjoining the Administration's unconstitutional blanket denial of benefits to class members.
Plaintiffs argue that if the Court declines to include in the class definition those who have yet to present claims to the Administration because of § 405(g) ’s presentment requirement, then jurisdiction must sound under § 1361 to afford those who have not-yet-presented claims full relief. Plaintiffs rely on Briggs v. Sullivan , 886 F.2d 1132, 1141–42 (9th Cir. 1989) —a case holding that claimants with unexhausted claims may bring actions under § 1361. As this case involved claims that were presented to the Administration, it is not helpful here. See Briggs , 886 F.2d at 1139. Plaintiffs offer no authority to support the conclusion that a writ of mandamus lies where claims have not been presented to the Administration. Therefore, to the extent that they argue that a remedy lies in mandamus for claims that were not presented to the Administration, the undersigned is not persuaded.
For these reasons, the undersigned concludes that § 405(g) jurisdiction is sufficient to provide complete relief to the parties and sees no reason to grant 28 U.S.C. § 1361 mandamus relief to the National Committee—whose role in this case has been fulfilled simply by "support[ing]" Ms. Thornton's claim. See Dkt. 46, at 16.
Again, it should be noted that the National Committee does not seek to represent the class for purposes of § 405 jurisdiction. Because § 405 jurisdiction is appropriate and because the National Committee neither seeks to be certified as a class representative nor to assert any claims independent of its members—who are class members (see Dkt. 46, at 4, 16; Dkt. 53, at 11, 33)—claims brought by the National Committee are redundant with those brought by the class. Therefore, the undersigned recommends that the National Committee be dismissed as a party.
CONCLUSION
Based on these reasons, and the relevant record, the undersigned recommends that plaintiffs’ motion for class certification be granted and the class be defined as set forth above.
Plaintiff Thornton should be identified as the class representative, class counsel should be appointed, and the court should issue a nation-wide INJUNCTION requiring the Administration to consider whether survivors of same-sex couples who were denied their constitutional right to marry would otherwise qualify for survivor's benefits.
Further, as to Ms. Thornton, personally, the court recommends that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further proceedings consistent with this Report and Recommendation.
Finally, the National Committee should be dismissed, as its function has been fulfilled.
JUDGMENT should be for PLAINTIFF THORNTON and the CLASS and the case should be closed.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on February 21, 2020, as noted in the caption.
Dated this 31st day of January, 2020.