August 8, 2015 at 6:35 pm EDT | by Chris Johnson
Judge tosses lawsuit on Social Security benefits for gay couples

Hugh Held, Orion Masters, social security, gay news, Washington Blade

Hugh Held, on left, and his spouse Orion Masters (photo courtesy Justice in Aging)

A federal judge threw out on Friday a class-action lawsuit filed on behalf of same-sex couples forced to repay Social Security benefits after the U.S. Supreme Court decision against the Defense of Marriage Act.

U.S. District Judge Percy Anderson, an appointee of former President George W. Bush, dismissed the lawsuit in a four-page decision, saying plaintiffs haven’t yet exhausted administrative remedies on the forced repayment on supplemental security income payments.

“As SSA’s waivers of Plaintiff’s overpayments indicate, Plaintiffs cannot establish that exhaustion of their administrative remedies would be futile,” Anderson writes. “Again, Plaintiffs focus on SSA’s ‘fault’ does not establish futility. Instead, consideration of all the facts and circumstances that might cause SSA to determine that recovering overpayments from members of the putative class would be against ‘equity and good conscience’ is precisely the type of decision-making process that would benefit from administrative review.”

The lawsuit, Held v. Colvin, was filed in May on behalf of two plaintiff couples by the New England-based Gay & Lesbian Advocates & Defenders, Justice in Aging and the D.C.-based law firm Foley Hoag LLP. The complaint alleged the Social Security Administration acted in violation of the due process clause under the Fifth Amendment of the U.S. Constitution.

Gerald McIntyre, directing attorney at Justice in Aging, said Anderson “got this one wrong” in response to the decision to throw out the lawsuit.

“He fundamentally misunderstood Hugh’s and Kelley’s claims, and mistakenly believed that the harm incurred can be corrected through Social Security’s administrative process,” McIntyre added.

Benefits for unmarried individuals are higher than for married individuals, but even after the Supreme Court ruled against DOMA, 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 in 2014, it without warning demanded repayment.

Hugh Held, one the plaintiffs in the case who lives in Los Angeles with his spouse Orion Masters, said in a phone interview in May with the Blade that despite his inquiries, he never got a clear answer from the Social Security Administration how a decision from the Supreme Court on DOMA would affect his annuities until the agency demanded repayment from him.

“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.”

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.

The other plaintiff couples in the case is Kelley Richardson-Wright and Kena Richardson-Wright, who live in Athol, Mass. The couple has been together for 10 years and married for seven. According to GLAD, hundreds — if not thousands — of Social Security recipients are in similar situations.

Vickie Henry, senior staff attorney for GLAD, said the Social Security Administration has “a system-wide problem” of failing to recognize marriages after it was ordered to do so.

“This problem calls for a system-wide solution,” Henry said. “Our clients and the proposed class are disabled or elderly and very poor. They do not need to be terrorized with an overpayment notice and then forced through Social Security’s long appeal process one at a time. SSA and the Obama administration can do better.”

The Social Security Administration didn’t respond on the short notice over the course of the weekend to the judge’s dismissal of the lawsuit.

According to GLAD, the legal team behind the lawsuit is considering the next steps forward, including potential appeal to the U.S. Ninth Circuit Court of Appeals.

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

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