Ely v. Saul

• Decision Date: 26 May 2020
• Docket Number: CV-18-0557-TUC-BGM
• Citation: 572 F.Supp.3d 751
• Parties: Michael ELY, Plaintiff, v. Andrew M. SAUL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Arizona

572 F.Supp.3d 751

Michael ELY, Plaintiff,

v.Andrew M. SAUL,¹ Acting Commissioner of Social Security, Defendant.

No. CV-18-0557-TUC-BGM

United States District Court, D. Arizona.

Signed May 26, 2020

Filed May 27, 2020

Brian I. Clymer, Brian Clymer Attorney at Law, Tucson, AZ, Autumn Jane Menard, Menard Disability Law, Tucson, AZ, Karen L. Loewy, Lambda Legal Defense & Education Fund Inc., Washington, DC, Peter C. Renn, Pro Hac Vice, Lambda Legal Defense & Education Fund Incorporated, Los Angeles, CA, Tara L. Borelli, Pro Hac Vice, Lambda Legal Defense & Education Fund Inc., Atlanta, GA, for Plaintiff.

Margaret I. Branick-Abilla, Social Security Administration, San Francisco, CA, Stephen Michael Pezzi, Joseph John DeMott, US Dept. of Justice - Civil Division, Washington, DC, for Defendant.

ORDER

Bruce G. Macdonald, United States Magistrate Judge Currently pending before the Court is Plaintiff's Combined Opening Brief and Motion for Class Certification; Memorandum of Points and Authorities ("Opening Brief") (Doc. 26). Defendant filed his Combined Brief on the Merits and in Opposition to Class Certification Brief ("Response") (Doc. 38), and Plaintiff filed his Reply (Doc. 39). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). See Pl.’s First Amended Class Action Compl. for Decl., Injunctive, and Other Relief (Doc. 18). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure.

I. BACKGROUND

A. Procedural History

On August 5, 2015, Plaintiff filed an application for spouse's benefits. See Administrative Record ("AR") at 10, 28, 182. The Social Security Administration ("SSA") denied this application on October 6, 2015. Id. at 24–26, 182. On October 23, 2015, Plaintiff filed a request for reconsideration, and on November 4, 2015, SSA denied Plaintiff's application upon reconsideration. Id. at 27–35, 182. On December 2, 2015, Plaintiff filed his request for hearing. Id. at 36–37, 66–67. On May 10, 2017, a hearing was held before Administrative Law Judge ("ALJ") Laura Speck Havens. Id. at 185–96. On October 17, 2017, the ALJ issued an unfavorable decision. AR at 179–84. The ALJ's denial of Plaintiff's claims was based on Plaintiff and his husband's marriage not meeting the durational requirements. Id. at 183–84. On December 14, 2017, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on September 26, 2018, review was denied. Id. at 3–6, 170–78. On November 20, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

1. Michael Ely and James Taylor

Plaintiff Michael Ely and his husband James A. Taylor ("Spider") were committed to one another for forty-three (43) years. AR at 88. The met in 1971 in a Sunset Beach, California bar when Spider asked Michael to dance. Id. Mr. Ely remembers realizing that night that he "had met [his] soul mate." Id. Mr. Ely and Mr. Taylor fell in love and began living together on December 5, 1971 and celebrated that date as their anniversary until their marriage in November 2014. Id.

When they met, Mr. Taylor played guitar in a band called Emperor. Id. After approximately a decade of watching performances, Mr. Ely became involved as a lyricist and singer. AR at 88. During this time, California was their home; however, the AIDS epidemic and its resulting losses caused Mr. Ely and Mr. Taylor to relocate to Arizona in the early 1990s. Id. at 89. Mr. Taylor had family in Northern Arizona and when the pair visited Tucson, they knew they had found their home. Id.

After their move, Mr. Taylor kept his job with Boeing in California and commuted for approximately eight (8) months, spending weekends with Mr. Ely in Arizona, while searching for a job locally. Id. Mr. Taylor ultimately found a job as a structure mechanic working on jet airplanes with Bombardier. Id. Mr. Taylor was the breadwinner and Mr. Ely was the homemaker. AR at 90. As with many traditional households, Mr. Taylor worked outside of the home, and Mr. Ely was responsible for maintaining their home—including doing the cooking, cleaning, laundry, banking, and paying bills. Id. Mr. Taylor would take care of any necessary repairs. Id. Together they adopted a dog and had a joint bank account. Id.

Although Mr. Ely and Mr. Taylor first started talking about marriage in 1973, Mr. Ely did not believe that they would ever be allowed to until quite recently. Id. at 91. At some point during the seventies, Mr. Taylor was hospitalized with pneumonia, and Mr. Ely was prohibited from seeing him more than one (1) hour per day because he was not deemed "family." AR at 91. For many years, marriage did not seem attainable. Id. at 92. During that time, Mr. Ely and Mr. Taylor decided to have a commitment ceremony, so they could have rings signifying their relationship. Id. at 93. On December 5, 2007, thirty-six (36) years after they began living together, Mr. Ely and Mr. Taylor had a commitment ceremony with their friend Cindy as the celebrant. Id. The couple jumped over a broom, a ritual that Mr. Ely linked back to slavery when slaves were not permitted to marry, and exchanged rings. Id.

When California began allowing same-sex marriage, friends encouraged Mr. Ely and Mr. Taylor to travel to California to get married. AR at 92. Arizona, however, still prohibited same-sex marriage, and the couple felt it would be pointless to marry in California only for the union to be ignored by their home state. Id. Mr. Ely and Mr. Taylor also did not have a lot of money, so travelling to California or Canada for a marriage that was invalid at home was too costly. Id. Mr. Ely and Mr. Taylor did make efforts to demonstrate their commitment to one another in more attainable ways. On standardized forms which required checking a box for relationship, there was usually not a box for "significant other," so they would create their own box, labeling it "gay couple" or "domestic partners." Id. Mr. Ely would still be labeled "single" because they were not married and their relationship did not fit the predefined choices. AR at 92. They also wore the rings that they exchanged at their commitment ceremony as a symbol of their love. Id. at 94.

In November 2013, Mr. Taylor was diagnosed with cancer. Id. at 93. He had multiple tumors—too many to qualify for a transplant. Id. And yet he held on to the hope that he would receive one. Id. Mr. Ely found his world unraveling overnight, including the fear of losing his beloved, the need to sell their home and belongings to move into a smaller space, and Mr. Taylor undergoing treatment. AR at 94. In 2014, Mr. Ely and Mr. Taylor were finally able to marry in Arizona. Id. At this point, they had been together for forty-three (43) years. On November 17, 2014, they went to the Pima County Superior Court and were wed, exchanging the same rings that they had given one another at their commitment ceremony. Id. Only eight (8) of their closest friends attended the ceremony, but a reception and big party followed at their friend Cindy's home. Id. Mr. Ely was finally able to check the "married" box. Id. at 92.

Sadly, six months later, Mr. Ely was checking the "widow" box. AR at 92. Despite his best effort, Mr. Taylor did not live to see their first anniversary. Id. at 95. Mr. Taylor stopped working in January 2014 due to his cancer. Id. Once Mr. Ely and Mr. Taylor were married, they worked to put their home and later the townhouse in both of their names, and subsequently put everything in Mr. Ely's name alone. Id. During Mr. Taylor's illness, Mr. Ely would care for him. Id. at 94. Mr. Ely described Mr. Taylor as not having a fear of dying, but rather being concerned about Mr. Ely's well-being after his death. AR at 95.

2. Putative Class Members

a. James Obergefell, surviving spouse of John Arthur

The story of Mr. Obergefell and his husband, John Arthur, was previously outlined by the Supreme Court of the United States. Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584, 2594–95, 192 L. Ed. 2d 609 (2015). Mr. Obergefell and Mr. Arthur met shortly after Mr. Obergefell graduated from college. Pl.’s Opening Br. (Doc. 26), Obergefell Decl. (Doc. 26-2) at ¶¶ 2–4. They quickly built a life together—both were information technology professionals, they shared a home and extended family, and were involved in their community and charitable causes. Id. at ¶¶ 4–6. Tragically, Mr. Arthur was diagnosed with Amyotrophic Lateral Sclerosis ("ALS") at the age of forty-five (45). Id. at ¶ 7. In preparation for Mr. Arthur's reduced mobility, they bought a condominium which could accommodate a wheelchair. Id. at ¶ 9. This was the third home that Mr. Arthur and Mr. Obergefell had purchased in their twenty (20) years together, but the final deed was in Mr. Obergefell's name only; Mr. Arthur hoped to simplify Mr. Obergefell's life after he was gone. Pl.’s Opening Br. (Doc. 26), Obergefell Decl. (Doc. 26-2) at ¶ 9.

Despite Mr. Arthur and Mr. Obergefell's long commitment to one another, and although their friends and family considered them a married couple, federal and state law did not recognize their relationship. Id. at ¶ 18. When the Supreme Court of the United States issued its decision in United States v. Windsor ,² Mr. Obergefell and Mr. Arthur decided to marry. Id. at ¶ 17. Prior to the Windsor decision, they had chosen only to marry if the ceremony carried legal weight; with Windsor , the recognition of same-sex marriages seemed on the horizon. Id. Mr. Obergefell researched where they might be married, but due to Mr. Arthur's deteriorated health, the couple was restricted to states in which only one partner had to apply for the marriage license in person. Pl.’s Opening Br. (Doc. 26), Obergefell Decl. (Doc. 26-2) at ¶ 19. On July 11, 2013, with the fundraising and assistance of friends and family, Mr. Obergefell...