Federal Court Orders Social Security Administration to Pay Attorney’s Fees to Gay Widower Who Prevailed on Benefits Claim

On July 4, 1990, John Roberts and Bernard Wilkerson, a same-sex couple living in Pennsylvania, “expressed to one another their intent to establish a common law marriage.” Although at the time Pennsylvania did not recognize same-sex marriages, either under its common law or its statutory law, the men considered themselves married and lived together as a couple until Wilkerson died in 2015.  Moving quickly after a federal court struck down Pennsylvania’s ban on same-sex marriage in Whitewood v. Wolf, 992 F. Supp. 2nd 410 (M.D. Pa. 2014), the two men married formally in 2014.  After Wilkerson died the next year, Roberts applied to the Social Security Administration (SSA) for widower’s insurance benefits, reciting in the application that the men had lived together in a Pennsylvania common law marriage since 1990.  (This was necessary because in order to be eligible for such benefits, the couple had to have been married at least ten years.) The SSA denied the claim, and therein hangs an extended tale, resulting ultimately in the April 23, 2018, ruling by U.S. District Judge Berle M. Schiller in Roberts v. Berryhill, 2018 WL 1911341, 2018 U.S. Dist. LEXIS 67647 (E.D. Pa.).

Roberts sought “clarification” regarding the denial of benefits and was informed by SSA that it was sending his request to its Philadelphia office. Roberts “followed up” with the Philadelphia office several times, but was repeatedly told his application was “still under consideration” and the benefits could not be paid.  He then filed a Petition for Declaration of Common Law Marriage in the Philadelphia Orphan’s Court, a branch of the Common Pleas Court, naming the SSA as an “interested party” and serving a citation on the agency to respond to his Petition.  The agency filed a non-committal response, saying that it “does not have any knowledge or information concerning the facts contained in the Petition and, therefore, is unable to show cause as to why the Petition should or should not be granted.”  The Orphans’ Court granted Roberts’ petition, in one of many retroactive applications of the constitutional principles announced by the Supreme Court in Obergefell v. Hodges (2015), and declared that he and Wilkerson “entered into a valid and enforceable marriage under the laws of the Commonwealth of Pennsylvania on July 4, 1990, and remained married until the death of Bernard O. Wilkerson on December 22, 2015.”  The SSA neither appeared at the hearing nor appealed the ruling.

The U.S. Attorney for the Eastern District of Pennsylvania issued a statement that a new application by Roberts for the widower’s benefits would be “processed and evaluated by the SSA in light of the court’s order recognizing the validity of the common law marriage between Mr. Roberts and Mr. Wilkerson.” Would that it were so, but it was not.  The SSA continued to stonewall, and almost three years after same-sex marriage became legal in Pennsylvania under the Whitewood decision, SSA informed Roberts that it was not prepared to grant his application because “there has not been a policy interpretation ruling on Common Law Same-sex marriages.”  This prompted Roberts to file the instant lawsuit, seeking a court order requiring SSA to recognize his marriage and pay the benefits.  SSA responded by again informing Roberts that he was not entitled to the benefits, and filed a motion to dismiss. The court held oral argument on the motion on November 20, 2017, and issued an Order warning the SSA that the Administration’s arguments were “unavailing” and that it needed to “revise its decision” or provide an explanation as to why Roberts was not entitled to benefits, demanding a response in 30 days after Roberts provided additional documentation that he agreed to do at the hearing.

Finally, on December 22, 2017, the SSA notified Roberts’ attorney that it was granting his claim for benefits, and sent official notification of its revised decision on January 2, 2018, whereupon Roberts moved the court to enter judgment in his favor based on the revised decision. The court deferred ruling on that and ordered Roberts to file a petition for fees and costs.

In his April 23 ruling, Judge Schiller found that Roberts is a “prevailing party” for purposes of 28 U.S.C. Sec. 2412(a)(1), since his lawsuit had obtained a “material alteration in the parties’ legal relationship” which was “judicially sanctioned.” Wrote Schiller, “The court provided its imprimatur in this case when it ordered the SSA to either revisit its decision on Roberts’ claim for benefits and either revise the decision or provide an explanation as to why he was not entitled to benefits by a Court-imposed deadline.”  He rejected SSA’s argument that its reversal of position on Roberts’ claim was “voluntary.”  “After months of what can best be described as governmental intransigence, the SSA finally awarded benefits to Roberts only after its motion to dismiss his claim was all but denied.  Moreover, following oral argument, the SSA was well aware of the Court’s ‘dim view’ of the Administration’s position.  Specifically, the Court disagreed with the SSA’s argument that it required more information than the Orphans’ Court’s record provided, noting that Roberts should not have to ‘prove the case twice.’”

Another aspect of the fee award statute is a requirement, before issuing a fee award against the government, that the court find that the government’s position was “not substantially justified.” As to this, Judge Schiller’s opinion was particularly cutting.  He rejected SSA’s argument that it was not bound by the Philadelphia Court of Common Pleas order declaring Roberts and Wilkerson had a valid common law marriage.  He pointed to the Social Security Act, 42 U.S.C. Sec. 416, which states, in pertinent part, that “an applicant for benefits is the widower of a fully or currently insured individual if the courts of the state in which such insured individual was domiciled at the time of death would find that such applicant and such insured were validly married at the time such insured individual died.”  Thus, Roberts argued and Schiller agreed, the SSA was bound by the state court’s determination.  SSA argued that only a ruling by a state’s highest court would be binding on it, but Schiller pointed out that under Pennsylvania law, “when a court declares a marriage valid, unless reversed upon appeal, the declaration shall be conclusive upon all persons concerned,” citing 23 Pa. C.S. sec. 3306.  Thus, a Pennsylvania court would not question the validity of the order obtained by Roberts.  “The SSA had an opportunity to challenge Roberts’ claim of a common law marriage,” but did not take any steps to do so, having never contested or appealed the ruling by the Orphans’ Court.

“The SSA chose to ignore the courts and statutes of Pennsylvania and instead declare itself arbiter of Pennsylvania law on common law marriage. In so doing, it took an unreasonable legal position.  Thus, its position regarding the effect of the Orphans’ Court decree was not substantially justified, and the court can grant Roberts’ application for attorney’s fees,” wrote the judge.  Finding the amount for which Roberts applied to be reasonable, the court awarded $27,720 in fees and $400 (the amount of the filing fee) in costs.

In a concluding paragraph, Schiller was critical of how the SSA behaved throughout this story. “Despite Roberts’ longstanding common law marriage, the SSA spent months searching for reasons to deny him benefits based on that marriage, allegedly because the Administration did not have a ‘policy interpretation’ on same-sex common law marriages in Pennsylvania.”  He characterized this as an “unjustifiable approach” in handling Roberts’ claim, which he said was “contrary to the purpose behind the Social Security Act and to prevailing case law in this country.”

Roberts is represented by Michael Patrick Yingling of Reed Smith LLP, Chicago.

A final note: Pennsylvania legislatively abandoned the doctrine of common law marriage prospectively as of January 2, 2005. Only common law marriages performed prior to that date are recognized and valid under Pennsylvania law.

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