Colosimo v. Berryhill ( 2020 )

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION FREDERICK J. COLOSIMO, No. 1:18-cv-00170-KDB Plaintiff, v. ANDREW SAUL, in his official capacity as the Commissioner of Social Security, Defendant. ORDER Upon consideration of the parties’ Stipulation, filed on November 12, 2020, the Court being fully advised and noting the concurrence of the parties; in view of the class certification decision and injunction in Ely v. Saul, No. CV-18-0557-TUC-BGM, 2020 WL 2744138 (D. Ariz. May 27, 2020); in view of the parties’ agreement that Plaintiff Colosimo and his late husband would have been married for more than nine months but for unconstitutional state laws prohibiting same-sex couples from marriage; and in light of the parties’ desire to avoid unnecessary litigation and the delay that would accompany further administrative proceedings: IT IS HEREBY ORDERED that Defendant will promptly assess whether Plaintiff met all eligibility criteria listed in 20 C.F.R. § 404.335 other than the duration-of-marriage requirement at the time of his original application for survivor’s benefits, and, provided that he met these other criteria, Defendant will restore Mr. Colosimo to the position he would have been in but for the application of the duration-of-marriage requirement to deny his claim, including paying past due and prospective survivor’s benefits to Plaintiff, while the Ely litigation remains ongoing. Pursuant to the Court’s previous order, ECF No. 29, this case remains STAYED until the conclusion of all proceedings in Ely, including the pending appeal. IT IS FURTHER ORDERED that the next joint status report shall be submitted by the parties on or before February 25, 2021 and every three months after until Ely is resolved by the Ninth Circuit. Otherwise, the parties shall submit a joint status report within ten days after the Ninth Circuit’s decision in Ely to provide a further update regarding the status of the Ely litigation and its implications for the present case. SO ORDERED. Signed: November 12, 2020 Kenneth D. Bell ey, United States District Judge il of