I-5-1-19.Processing Appeals Involving Same-Sex Marriages (United States v. Windsor)

Table of Contents
I Purpose
II Background
III Case Processing
IV Hold Cases
V Inquiries

ISSUED: February 12, 2014

I. Purpose

This temporary instruction (TI) advises Office of Disability Adjudication and Review (ODAR) employees of new policies and procedures for adjudicating claims involving same-sex marriages pursuant to the Supreme Court's decision in United States v. Windsor.

II. Background

On June 26, 2013, the Supreme Court issued a decision in United States v. Windsor regarding Section 3 of the Defense of Marriage Act (DOMA). The Social Security Administration (SSA) is working with the Department of Justice to interpret the Windsor decision. We will update this TI periodically as additional instructions become available.

III. Case Processing

SSA has issued instructions for processing the claims types identified in III.A. below. All such claims filed on or after June 26, 2013, or that were pending final determination at the time of the Supreme Court's decision, will be processed under these instructions. If a case does not meet the specific characteristics listed in III.B. below, hold the case pending further instructions as described in IV below.

A. Claims Types for Aged Spouse Benefits

On August 9, 2013, SSA published Program Operations Manual System (POMS) GN 00210.100 to provide field offices and processing centers instructions for processing aged spouse claims involving same-sex marriages. Aged spouse claims types can be identified by the following beneficiary identification codes (BIC): B, B1, B3, B4, B8, BA, BD, BG, BH, or BJ. For more information on BICs, see POMS OS 00501.030.

B. Required Characteristics

ODAR staff will process claims for aged spouses involving same-sex marriages by following normal case processing procedures when all of the following apply:

  • The number holder (NH) and claimant must have entered a same-sex ceremonial marriage in a State that permits same-sex marriages; and

  • The ceremonial marriage must have occurred on or after the date when the State permitted same-sex marriages; and

  • The NH is domiciled at the time of application, or while the claim is pending a final determination, in a State that recognizes same-sex marriages; and

  • The claimant must meet all other factors of entitlement for spouse's benefits as described in 20 CFR 404.330.

NOTE:

See the chart in POMS GN 00210.100B.1. to determine whether a marriage occurred on or after the date a State recognized same-sex marriages. Also, use this chart to determine whether a NH resides in a State that recognizes same-sex marriages.

IV. Hold Cases

A. Hold Cases Previously Denied Based on Non-recognition of a Same-sex Marriage Pending Further Instructions

Instructions in EM-13022, which was issued June 27, 2013, revised effective August 8, 2013 as EM-13022 REV, and converted to POMS GN 00210.005 on August 26, 2013, require ODAR adjudicators to hold any cases on appeal that were previously denied based on non-recognition of a same-sex marriage until we receive further instructions. We will update this TI periodically as SSA issues new instructions. Adjudicators must continue to hold any cases that do not meet the criteria in III above.

1. Holding Cases at the Hearing Level

Hearing office (HO) staff must take the following steps in the Case Processing and Management System (CPMS):

  1. Identify the case as a United States v. Windsor case.

  2. Add the Other case characteristic “U.S. v. Windsor (WIND).”

  3. If the case has yet to have a hearing, place it in PRE status.

  4. If a hearing is scheduled, cancel the hearing and place the case in PRE status.

  5. If a hearing has already been conducted, place the case in POST status.

  6. When placing cases in PRE or POST status:

    • Use development group “Other” and development type “Miscellaneous”;

    • Annotate the instructions field to state, “Hold case pending further instructions concerning U. S. v. Windsor (WIND)”;

    • Send to/Received from: “Miscellaneous”; and

    • Set the diary for 30 days.

NOTE:

POMS GN 00210.005B.2.b. instructs field offices to forward any requests for hearing involving same-sex marriage issues directly to the servicing HO, using a 501 Case Flag annotated “Special Case Processing – United States v. Windsor.

2. Holding Cases at the Appeals Council (AC) Level

The Retirement and Survivors Insurance and Supplemental Security Income Branch (RSI branch) will:

  • Hold any appeals involving same-sex marriage issues in With Branch Chief (WIBC) status, with the RSI branch chief as the status employee; and

  • Ensure that each case includes the “WIND” case characteristic found in the “Appeals Council Case” characteristic type in the Appeals Review Processing System.

Any other branches that identify one of these cases also must immediately place the case in WIBC status, with the RSI branch chief as the status employee, and add the “WIND” case characteristic.

B. Hold Cases Involving Relationships Other Than Ceremonial Marriages

Continue to hold claims involving any of the following relationship allegations:

  • The NH and claimant entered a legal same-sex relationship other than a ceremonial marriage. This includes but is not limited to common-law marriages, civil unions, and domestic partnerships.

  • The NH and claimant reside in a State that converted same-sex civil unions to marriages, and the NH and claimant initially entered into a civil union.

  • Either the NH or claimant alleges a prior civil union to an individual other than his or her current spouse.

C. Hold Certain Cases at the Medicare Part D Subsidy Appeals Unit

Awaiting further instructions, hold in CPMS Ready to Schedule (also known as RTS) status any identified cases in which same-sex marriage may play a role in eligibility or payment.

V. Inquiries

A. Public Inquiries

Reply to public inquiries to the extent possible using the information above. Refer public inquiries about issues involving same-sex marriages not discussed above to the Office of Public Inquiries at the following address:

Social Security Administration
Office of Public Inquiries
Windsor Park Building
6401 Security Blvd.
Baltimore, MD 21235

B. Technical Issues

At the hearing level, direct all program-related and technical questions to the appropriate Regional Office (RO) support staff. RO support staff may refer questions or unresolved issues to headquarters contacts in the Office of the Chief Administrative Law Judge.

At the AC level, direct all program-related and technical questions to the Executive Director's office.