March 10, 2015 at 4:20 pm EDT | by Chris Johnson
Lawsuit seeks to recoup Social Security benefits for gay couples
Hugh Held, Orion Masters, social security, gay news, Washington Blade

Hugh Held (left) and his spouse Orion Masters. (Photo courtesy Justice in Aging)

A new class-action lawsuit has been filed seeks to recoup Social Security benefits given to married same-sex couples after the U.S. Supreme Court struck down the Defense of Marriage Act.

The lawsuit, Held v. Colvin, was filed by the New England-based Gay & Lesbian Advocates & Defenders, Justice in Aging and the D.C.-based law firm Foley Hoag LLP against the Social Security Administration on behalf of same-sex couples forced to repay Social Security benefits — or those who will be forced to repay them — on the basis of the court ruling against DOMA.

Benefits for unmarried individuals are higher than for married individuals, but even after the Supreme Court ruled against the federal prohibition on same-sex marriage, the Social Security Administration continued to issue benefits to certain individuals in same-sex marriages as if they were single. When the agency caught on, it demanded repayment.

The case, which alleges the Social Security Administration is acting in violation of the Due Process Clause of the U.S. Constitution, is pending before the U.S. District Court for the Central District of California.

“Unfortunately for married same-sex couples in marriage recognition states, SSA was completely unprepared to implement policies required of it by law after DOMA was struck down,” said Gerald McIntyre, directing attorney for Justice in Aging. “The victims of that discrimination should not be the ones to pay for the agency’s mistake.”

The lead plaintiff in the case, Hugh Held, has been receiving supplemental Social Security income since 2008 and lives with his spouse Orion Masters in Los Angeles. The couple has been together since 1993 and married in 2008.

According to a statement, Held asked the Social Security Administration on three separate occasions how a decision against DOMA would affect his annuities. The first time he was told it wouldn’t affect his benefits; the last time, he was told it would, but they didn’t know how.

In June 2014, one year after DOMA was struck down, Held’s monthly benefit went down dramatically to $308.10 from $877.40 without explanation. Held also received a bill for overpayment of $6,205. Not until three months later in September 2014 did Held obtain an explanation for the change.

In a phone interview with the Blade, Held said he found the Social Security Administration’s decisions on his annuities “all very confusing.”

“My benefits were cut by almost two-thirds for several months before I ever knew what was going on,” Held said. “Six-thousand dollars isn’t a great deal of money, but it is a lot to me. The late payments they’re asking me to make will definitely cut into my expenses.”

The other plaintiffs in the case are Kelley Richardson-Wright and Kena Richardson-Wright, who live in Athol, Mass. The couple has been together for 10 years and married for seven.

Kelley Richardson-Wright was a massage therapist, but multiple medical issues forced her to go on disability and start receiving Social Security annuities. When she applied for disability, she informed the Social Security Administration that she was married.

But the administration now says the couple owes $4,000 in overpayment. To recover that money, Social Security has started withholding money from Kelley’s monthly disability; Kena works as a hair stylist for minimum wage.

The situation has resulted in the repossession of the couple’s car and they risk losing their home. As a result of the extreme financial strain, Kelley Richardson-Wright was hospitalized with a stress-related illness.

“Basically Social Security kept making SSI payments after the fall of DOMA without considering the marriages of same-sex couples, even when a recipient notified SSI of the marriage,” said Vickie Henry, senior staff attorney for GLAD. “Now, 18 months later, SSA, to remedy its own unconstitutional conduct, is going after people who are both poor and aged or disabled and demanding thousands of dollars from them. That’s not fair, and it’s not right.”

The situation with Social Security benefits for married same-sex couples is unlike tax benefits for same-sex couples in the aftermath of the Supreme Court ruling against DOMA. Months after the decision, the Treasury Department announced married same-sex couples could file a claim for a refund for up to three years prior to the DOMA ruling.

Henry told the Blade the upcoming ruling from the Supreme Court on whether states can prohibit same-sex marriage will do nothing about the issue because it relates to withholding of benefits in years past.

“The central issue is this – who has to bear the cost of the Social Security Administration’s unconstitutional actions?” Henry said. “We think it should be the Social Security Administration. A marriage equality ruling from the Supreme Court in June would be terrific but it won’t solve this problem. I call these ‘gap’ situations.”

A related — but separate — issue is the Social Security Administration decision to continue to withhold certain Social Security benefits, including survivor annuities, to same-sex couples in states without marriage equality. For those benefits, U.S. code looks to the state of residence, not the state of celebration, to determine whether a couple’s marriage should be recognized.

The LGBT group Lambda Legal has already filed two lawsuits, one before the U.S. District Court for the District of Columbia, the other before the U.S. District Court for Northern Illinois, to compel the administration to afford these benefits. LGBT advocates, including Sen. Dianne Feinstein (D-Calif.) and the Human Rights Campaign, have already said the administration can take action on its own volition to afford these benefits to same-sex couples in non-marriage equality states.

In the event the courts issue a decision favorable to him and other same-sex couples, Held said he’d be “very happy” because of the scope of the problem.

“I know this is affecting a great deal of people, and they think twice about getting married if they know that they’re going to have to take this kind of cut in benefits if they do decide to do so,” Held said. “I hope that I’ll be able to do something that’s going to make a difference for other gays and lesbians and people who find themselves in the same situation that I’m in.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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