Thornton v. Commissioner of Social Security

1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA

UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION HELEN THORNTON, on behalf of herself and all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC SECURITY AND MEDICARE, 13 NOTICE OF JOINT STIPULATION Plaintiffs, REGARDING NUMEROSITY, AND 14 JOINT MOTION TO VACATE vs. DISCOVERY SCHEDULE COMMISSIONER OF SOCIAL SECURITY, Note on Motion Calendar: June 29, 2020 Defendant.

1 The parties, having conferred, (1) jointly notify the Court that the parties have entered into a stipulation (attached to this filing as Exhibit 1) that will resolve the question of numerosity in this litigation, and (2) jointly request that any remaining discovery-related deadlines and the briefing schedule set forth in the Court’s May 18, 2020 Order be vacated, because they are unnecessary in light of the parties’ stipulation. As good cause for this request, the parties jointly offer the following: 6 1. On May 18, 2020, the Court authorized discovery regarding the number of individuals that met the following proposed class definition, from the Report and Recommendation issued in this matter: “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.

12 Ariz.).” ECF No. 82.

13 2. On May 29, Plaintiffs served discovery requests: eleven interrogatories, six requests for admission, and fifteen requests for the production of documents.

15 3. As reflected in the attached stipulation, although Defendant represents that identifying the precise number of putative class members is difficult (among other reasons, due to limitations on access to some of Defendant’s records and files because of the ongoing pandemic), after a reasonably diligent inquiry, Defendant now believes that that number likely exceeds 150, based on the records that have been reviewed. Accordingly, Defendant no longer disputes that the putative class (as defined above and in the Report & Recommendation) is sufficiently numerous to satisfy Rule 23(a)(1). See, e.g., Sullivan v. City of Berkeley, 328 F.R.D. 352, 355-56 (N.D. Cal. 2018) (“The numerosity requirement is not tied to any fixed numerical threshold, but courts generally find the numerosity requirement satisfied when a class includes at least forty members.”).

24 4. Defendant continues to argue that certification of any class in this matter is inappropriate, for the reasons stated in Defendant’s prior filings, with which Plaintiffs disagree.

27 Page 1 U.S. Department of Justice Civil Division, Federal Programs Branch 1 5. As a result of the parties’ stipulation and Defendant’s concession, the parties respectfully request that the Court vacate any remaining discovery deadlines and the briefing schedule set forth in the Court’s May 18, 2020 Order.

4 Dated: June 29, 2020 Respectfully submitted, 5 JOSEPH H. HUNT Assistant Attorney General 7 BRAD P. ROSENBERG Assistant Branch Director /s/ Stephen M. Pezzi 9 STEPHEN M. PEZZI Trial Attorney United States Department of Justice 11 Civil Division, Federal Programs Branch 1100 L Street NW 12 Washington, DC 20005 Phone: (202) 305-8576 13 Fax: (202) 616-8470 Email: [email protected] Attorneys for Defendant /s/ Linda R. Larson 17 Linda R. Larson (WSBA No. 9171) NOSSAMAN LLP 18 601 Union Street, Suite 5305 Seattle, WA 98101 Email: [email protected] 20 Telephone: 206-395-7630 21 Robert D. Thornton (admitted pro hac vice) NOSSAMAN LLP 22 18101 Von Karman Avenue, Ste. 1800 Irvine, CA 92612 23 Email: [email protected] Telephone: 949-833-7800 25 Peter C. Renn (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 26 EDUCATION FUND, INC. 27 Page 2 U.S. Department of Justice Civil Division, Federal Programs Branch 1 4221 Wilshire Blvd., Suite 280 Los Angeles, CA 90010 2 Email: [email protected] Telephone: 213-382-7600 4 Karen L. Loewy (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 5 EDUCATION FUND, INC. Wall Street, 19th Floor 6 New York, NY 10005 Email: [email protected] Telephone: 212-809-8585 Tara L. Borelli (WSBA No. 36759) 9 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 10 730 Peachtree Street NE, Ste. 640 Atlanta, GA 30308 11 Email: [email protected] Telephone: 404-897-1880 13 Counsel for Plaintiffs Helen Josephine Thornton and National Committee to Preserve Social Security and 14 Medicare 27 Page 3 U.S. Department of Justice Civil Division, Federal Programs Branch 1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA

UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION HELEN THORNTON, on behalf of herself and all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC SECURITY AND MEDICARE, 13 JOINT STIPULATION Plaintiffs, REGARDING NUMEROSITY vs. COMMISSIONER OF SOCIAL SECURITY, Defendant.

1 The parties HEREBY STIPULATE as follows: 2 1. On May 18, 2020, the Court authorized discovery regarding the number of individuals that met the following proposed class definition, from the Report and Recommendation issued in this matter: “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.

8 Ariz.).” ECF No. 82.

9 2. Defendant has represented that, although identifying the precise number of putative class members is difficult (among other reasons, due to limitations on access to some of Defendant’s records and files because of the ongoing pandemic), after a reasonably diligent inquiry, that number likely exceeds 150, based on the records that have been reviewed. Plaintiffs do not dispute that the number of putative class members exceeds 150 individuals.

14 3. The parties therefore agree, for purposes of this litigation, that the putative class (as defined above and in the Report & Recommendation) is sufficiently numerous to satisfy Rule 23(a)(1).

16 4. Defendant continues to argue that certification of any class in this matter is inappropriate, for the reasons stated in Defendant’s prior filings, with which Plaintiffs disagree.

18 5. Defendant’s deadline to respond to Plaintiffs’ discovery requests is tolled pending the Court’s consideration of the parties’ joint motion to vacate the discovery schedule in this matter, to be filed concurrently with this stipulation.

1 Dated: June 29, 2020 Respectfully submitted, 2 JOSEPH H. HUNT Assistant Attorney General 4 BRAD P. ROSENBERG Assistant Branch Director /s/ Stephen M. Pezzi 6 STEPHEN M. PEZZI Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW 9 Washington, DC 20005 Phone: (202) 305-8576 10 Fax: (202) 616-8470 Email: [email protected] Attorneys for Defendant /s/ Linda R. Larson 14 Linda R. Larson (WSBA No. 9171) NOSSAMAN LLP 15 601 Union Street, Suite 5305 Seattle, WA 98101 Email: [email protected] Telephone: 206-395-7630 18 Robert D. Thornton (admitted pro hac vice) NOSSAMAN LLP 19 18101 Von Karman Avenue, Ste. 1800 Irvine, CA 92612 20 Email: [email protected] Telephone: 949-833-7800 22 Peter C. Renn (admitted pro hac vice) LAMBDA LEGAL DEFENSE AND 23 EDUCATION FUND, INC. 4221 Wilshire Blvd., Suite 280 24 Los Angeles, CA 90010 Email: [email protected] Telephone: 213-382-7600 Karen L. Loewy (admitted pro hac vice) 27 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 1 120 Wall Street, 19th Floor New York, NY 10005 2 Email: [email protected] Telephone: 212-809-8585 4 Tara L. Borelli (WSBA No. 36759) LAMBDA LEGAL DEFENSE AND 5 EDUCATION FUND, INC. Peachtree Street NE, Ste. 640 6 Atlanta, GA 30308 Email: [email protected] Telephone: 404-897-1880 Counsel for Plaintiffs Helen Josephine Thornton and 9 National Committee to Preserve Social Security and Medicare 1 U.S. DISTRICT JUDGE JAMES L. ROBART U.S. MAGISTRATE JUDGE J. RICHARD CREATURA UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION HELEN THORNTON, on behalf of herself and all others similarly situated, and NATIONAL COMMITTEE TO PRESERVE SOCIAL Civil No. 2:18-cv-01409-JLR-JRC SECURITY AND MEDICARE, 13 ORDER Plaintiffs, vs. COMMISSIONER OF SOCIAL SECURITY, Defendant.

1 Upon consideration of the parties’ stipulation regarding numerosity, the parties’ joint motion to vacate the discovery schedule, and the entire record herein, it is hereby 3 ORDERED that the parties’ joint motion is GRANTED; and it is further 4 ORDERED that any remaining discovery deadlines and the briefing schedule set forth in the Court’s May 18, 2020 Order are hereby VACATED.

6 SO ORDERED.

8 DATED this __9t_h___ day of __Ju_l_y_______, 2020.

A _______________________________________ JAMES L. ROBART 12 United States District Judge