EDWARD M. CHEN, District Judge.
Plaintiffs have sued the Commissioner of the Social Security Administration ("SSA"), asserting claims for violation of the Rehabilitation Act. According to Plaintiffs, SSA has violated the Rehabilitation Act by failing to make the work reviews under Title II and Title XVI accessible to individuals with mental or developmental disabilities. See Docket No. 162 (Pls.' Mot. for Summ. Judg. ("MSJ") at 2)
This case has a complicated procedural background. Mr. Davis's case was initiated
Notably, Mr. Davis's case (but not Mr. Doe's) was initially filed as a class action. Well before Mr. Doe filed his suit, Mr. Davis moved for class certification. See Docket No. 55 (motion). Judge Patel denied the motion but gave Mr. Davis leave to re-file it if, he could, within a certain time period
Docket No. 74 (Order at 24). Mr. Davis never re-filed and instead filed an amended complaint which no longer included class allegations. See Docket No. 86 (fourth amended complaint). Several months after Mr. Davis filed his amended complaint, Mr. Doe initiated his lawsuit, which, as noted above, also contained no class allegations.
In August 2010, Plaintiffs filed an early motion for summary judgment pursuant to Judge Patel's directive that they do so. See Docket No. 146 (Tr. at 28); Docket No. 170 (Pyle Decl., Ex. 1) (Tr. at 6). Apparently, Judge Patel wanted Plaintiffs to file a summary judgment motion so that Plaintiffs would have to clearly state what relief they wanted from the Court. Judge Patel had concerns that Plaintiffs would be asking for "expansive" relief that went "way beyond" Plaintiffs themselves. Docket No. 170 (Pyle Decl., Ex. 1) (Tr. at 6).
Based on Plaintiffs' motion for summary judgment, it appears that Plaintiffs' Rehabilitation Act claim concerns the SSA's alleged failure to make the work reviews under Title II and Title XVI accessible to individuals with mental or developmental disabilities. The parties do not dispute that work reviews are reviews that take place after an individual has been deemed disabled and granted benefits under Title II and/or Title XVI. See Docket No. 162 (Pls.' MSJ at 5); Docket No. 169 (Def.'s Opp'n at 5, 7). Essentially, work reviews are conducted by SSA to ensure that beneficiaries are not earning above a certain income level; if they are, then benefits may be terminated, suspended, and/or reduced. See Docket No. 162 (Pls.' MSJ at 6, 8); Docket No. 169 (Def.'s Opp'n at 5, 7).
Under both Title II and Title XVI, there are "work incentives." Essentially, work incentives are "[s]pecial rules [that] make it possible for people with disabilities receiving Social Security or Supplemental Security Income (SSI) to work and still
According to Plaintiffs, SSA has failed to make the work reviews under Title II and Title XVI accessible to individuals with mental or developmental disabilities because, e.g., SSA has failed to train its employees (claims representatives) on how to conduct work reviews when the persons being reviewed have mental or developmental disabilities (e.g., what work incentives may be applicable), SSA has failed to train its employees on how to communicate with persons with such disabilities, and SSA has failed to modify its forms to make them understandable to persons with such disabilities. See Docket No. 162 (Pls.' MSJ at 2, 21-24).
In their motion for summary judgment, Plaintiffs argue that, to comply with the Rehabilitation Act, SSA must make the following modifications:
(1) Evaluate, monitor, and track individuals with mental or developmental disabilities so that SSA employees are aware of (a) the individuals' disabilities, (b) the associated functional limitations, and (c) the need for reasonable accommodations. Plaintiffs propose that, when a claimant first applies for Title II and/or Title XVI benefits, SSA should evaluate the individual's ability to understand written and oral communications, etc. SSA should then monitor the individual by checking in periodically with his or her treating physicians to see if there are any changes. Finally, the information initially obtained and thereafter updated through monitoring should be tracked and made available to employees.
(2) Train SSA employees so that they have knowledge about (a) mental or developmental disabilities and associated functional limitations, (b) how to communicate with persons with such disabilities, and (c) the Rehabilitation Act and reasonable accommodations. Plaintiffs suggest training in particular with respect to work reviews — e.g., what work incentives are generally applicable to persons with mental or developmental disabilities.
(3) Modify forms (e.g., pamphlets, notices, work activity reports, both in terms of format and language) to make them easily understandable by persons with mental or developmental disabilities.
(4) Utilize existing information within SSA so that beneficiaries with mental or developmental disabilities do not have to inform SSA about what it already
See Docket No. 162 (Pls.' MSJ at 2, 22-23).
Judge Patel held a hearing on Plaintiffs' motion for summary judgment in November 2010. See Docket No. 185 (civil minutes); see also Docket No. 192 (hearing transcript). In accordance with comments made by Judge Patel at that hearing, the parties stipulated to a schedule under which Judge Patel would hear first SSA's motion for summary judgment, which would address threshold issues such as standing and jurisdiction. Only after a ruling on that motion would the parties turn back to Plaintiffs' motion for summary judgment, and Plaintiffs' motion would be considered only after additional discovery and briefing. See Docket No. 192 (stipulation and order).
SSA filed its motion for summary judgment — the currently pending motion — in March 2011. See Docket No. 195 (motion). Shortly after filing that motion, SSA filed another motion, more specifically, a motion to dismiss or stay proceedings because it had decided to initiate a self-evaluation of its current policies and practices to measure compliance with the Rehabilitation Act. SSA's position was, in essence, that, under exhaustion principles, the cases should be dismissed or stayed because there is a substantial likelihood that the self-evaluation will address the specific concerns raised by Plaintiffs here. See Docket No. 211 (motion).
SSA's motion to dismiss or stay was ultimately heard by this Court, after the cases were reassigned. The Court denied the motion to dismiss but granted the alternative motion for a stay. The Court permitted, however, only a limited stay; furthermore, in spite of the stay, it ordered SSA to produce documents to Plaintiffs so that they could determine whether the self-evaluation would in fact address their concerns. See Docket No. 243 (Order at 8-9).
In December 2011, the Court held a case management conference to get, inter alia, an update on the self-evaluation. In a case management conference statement, Plaintiffs stated that they opposed a further stay. See Docket No. 250 (St. at 2). They also submitted declarations in support of their position. Those declarations further addressed, inter alia, reasonable accommodations that could be made for Plaintiffs.
For example, Mr. Davis states in a declaration:
Docket No. 251 (Davis Decl. ¶ 4).
Similarly, Ariane Eroy, Mr. Doe's primary treating psychologist, states in a declaration:
Docket No. 252 (Eroy Decl. ¶ 6).
Ultimately, the Court concluded, at the case management conference, that, in spite of the stay, it would proceed with SSA's motion for summary judgment because it dealt with threshold issues of standing and jurisdiction. See Docket No. 253 (civil minutes); Docket No. 267 (order). The parties thus completed the briefing on SSA's motion. In its motion, SSA makes arguments similar to those it previously made in its 12(b) motions. For example, SSA argues that Plaintiffs do not have standing to proceed with their cases and that, because these cases are really about benefits rather than systemic changes in SSA policies and practices (as reflected by Plaintiffs' deposition testimony), the Court does not have subject matter jurisdiction until after Plaintiffs have exhausted their administrative remedies. SSA further contends that, these problems aside, Plaintiffs do not have standing to pursue the systemic relief identified in, e.g., their motion for summary judgment.
SSA's motion for summary judgment is the motion currently pending before the Court.
As a preliminary matter, the Court should note that Plaintiffs have asked to file certain documents in support of their opposition brief under seal. See Docket No. 255 (Bruce Decl.) (describing documents). Most of the request is appropriate — e.g., where Plaintiffs ask for permission to redact their Social Security numbers from documents and the actual name of Mr. Doe. There is, however, one overbroad request to file under seal. More specifically, Plaintiffs ask that the transcripts for their depositions be sealed in their entirety. While there are significant portions of the depositions which discuss confidential or personal information, there are also significant portions that do not. It may be time consuming for Plaintiffs to go through a redaction process, but the public also has an interest in seeing as much as the file as it can given the issues being litigated in the case. Civil Local Rule 79-5 also indicates that any sealing be narrowly tailored. See Civ. L.R. 79-5(a) (providing that "[t]he request must be narrowly tailored to seek sealing only of sealable material").
Accordingly, the Court grants Plaintiffs' request to file under seal but, with respect to the deposition transcripts, orders Plaintiffs to publicly file transcripts which have confidential or personal information redacted. Counsel for Plaintiffs is directed to electronically file the documents under seal pursuant to General Order 62 by February 21, 2012. On that same date, Plaintiffs shall make their public filing.
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The
Here, although evidence is to be viewed and inferences are to be drawn in Plaintiffs' favor (as the nonmoving parties), Plaintiffs still have the burden of proving standing and subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that "[t]he party invoking federal jurisdiction bears the burden of establishing [the] elements [of constitutional standing]"); Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1137 (10th Cir.2006) (noting that "[t]he burden to establish prudential standing is on the plaintiff bringing the action"); Mathews v. Eldridge, 424 U.S. 319, 327, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (stating that "42 U.S.C. § 405(g) ... requires exhaustion of the administrative remedies provided under the [Social Security] Act as a jurisdictional prerequisite"); Ureno v. Astrue, No. 1:10cv2163 SKO, 2011 WL 1883816, at *4, 2011 U.S. Dist. LEXIS 52826, at *9 (E.D.Cal. May 17, 2011) (rejecting plaintiffs contention "that Defendant has the burden to prove the defense of failure to exhaust administrative remedies, [because] it is in fact the plaintiffs burden to establish that subject matter jurisdiction is proper"). Because Plaintiffs have the ultimate burden of proof on both standing and jurisdiction, SSA may prevail on its motion for summary judgment simply by pointing to Plaintiffs' failure "to make a showing sufficient to establish the existence of an element essential to [their] case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
SSA argues first that, as a matter of law, Plaintiffs lack both constitutional standing and prudential standing to proceed with their cases.
Drake v. Obama, 664 F.3d 774, 779 (9th Cir.2011) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Where a plaintiff seeks injunctive relief, he or she must show not only an injury in fact but also "`a sufficient likelihood that he will again be wronged in a similar way.' That is, he must establish a `real and immediate threat of repeated injury.'" Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 948 (9th Cir.2011). According to SSA, Plaintiffs have, as a matter of law, failed to establish any of the above elements — i.e., an injury in fact, likelihood of future injury, traceability, or redressability. The Court does not agree.
On the first element, i.e., injury in fact, the Court acknowledges that Judge Patel's prior orders focused on Plaintiffs' emotional distress. See Davis Docket No. 26 (Order at 11) (citing Situ v. Leavitt, No. C06-2841 TEH, 2006 WL 3734373, at *4 (N.D.Cal. Dec. 18, 2006)); Doe Docket No. 26 (Order at 17) (citing the same). Contrary
Moreover, SSA fails to take into account that Plaintiffs' emotional distress arises from their claimed inability to meaningfully participate in the work review process. Thus, ultimately, Plaintiffs' primary injury in fact is the alleged discrimination suffered. Such discrimination clearly can be an injury in fact for purposes of standing.
To the extent SSA contends there is no injury in fact unless Plaintiffs suffer a denial of benefits, that argument is meritless. If Plaintiffs are subject to discrimination in the process and denied equal access as required under the Rehabilitation Act, they have standing to assert a Rehabilitation Act claim. The fact that the plaintiff in Tennessee v. Lane ultimately made it to the courtroom by crawling up the courthouse steps did not negate his claim of unequal access.
Of course, to establish standing for injunctive relief, there must be not only an injury in fact but also "`a sufficient likelihood that [the plaintiff] will again be wronged in a similar way.'" Chapman, 631 F.3d at 948. In Chapman, the Ninth Circuit expressly stated that
Id. at 950. In light of Chapman, SSA's position that Plaintiffs lack standing to pursue injunctive relief is hard to comprehend. There is no dispute that Plaintiffs have both been determined to be disabled under the Social Security Act. Furthermore, there is no dispute that they will continue to be subject to work reviews in order to continue getting benefits under Title II and/or Title XVI. To the extent SSA's argument here is simply that "Plaintiffs cannot show that they will continue to have problems" because SSA has "appoint[ed] employees to assist [them] while the cases are stayed," Reply at 13, the Court is not persuaded. The fact that SSA has offered what is in essence some temporary or preliminary injunctive relief does not moot out the permanent relief sought by Plaintiffs.
Finally, SSA's arguments on traceability and redressability fail to take into account that Plaintiffs' injury in fact is ultimately the alleged discrimination. To the extent SSA's arguments are focused on Plaintiffs' claims really being claims for benefits, those arguments are addressed in the section below on subject matter jurisdiction. See Part II.D, infra.
The Court therefore denies SSA's motion for summary judgment based on a lack of constitutional standing.
In its motion for summary judgment, SSA argues not only constitutional standing but also prudential standing.
Accordingly, there is no basis for granting SSA summary judgment based on prudential standing principles.
SSA argues next that, even if Plaintiffs have standing to proceed with their cases, the Court still lacks subject matter jurisdiction over the cases. SSA acknowledges that, previously, Judge Patel determined that there was subject matter jurisdiction and thus denied its 12(b) motions to dismiss. SSA maintains, however, that Judge Patel predicated her decision on Plaintiffs' Rehabilitation Act claims being sufficiently distinct from the underlying benefits claims such that exhaustion of the benefits claims would not assist in resolution of the Rehabilitation Act claims. See Davis Docket No. 26 (Order at 11); Doe Docket No. 26 (Order at 11). According to SSA, now that Plaintiffs have been deposed, it is clear that Plaintiffs' claims are really benefits claims — i.e., during their depositions, Plaintiffs made clear they are concerned about maintaining their benefits.
In their opposition brief, Plaintiffs suggest that their deposition testimony cannot be completely taken at face value and interpreted as eschewing relief directed at systemic problems because they have mental and/or developmental disabilities. That is a fair observation. Notably, SSA did not, during Plaintiffs' depositions, ask whether their mental or developmental disabilities would affect their ability to be deposed. And Plaintiffs' responses during the depositions suggest that their disabilities do in fact affect their ability to be deposed.
In its reply brief, SSA argues that Plaintiffs should not be allowed to pick and choose what is reliable in their depositions and/or declarations and what is not. See Reply at 1 ("Plaintiffs oppose SSA's motion by claiming that anything harmful in Plaintiffs' testimony is unreliable, while simultaneously relying on the same deposition testimony for statements Plaintiffs perceive as helpful and submitting declarations from these purportedly unreliable individuals."). While SSA's point is understandable, it is not persuasive. At this juncture, all evidence is to be viewed and all inferences are to be drawn in Plaintiffs' favor as they are the nonmoving parties. This includes "`questions of credibility and of the weight to be accorded particular evidence.'" Suzuki Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1132-33 (9th Cir.2003); see also Fed.R.Evid. 601 & advisory committee notes (providing that "[e]very person is competent to be a witness" because "[a] witness wholly without capacity is difficult to imagine," but how much weight and credibility to give to the witness is a matter for the jury to decide).
Accordingly, the Court rejects SSA's argument that the evidence of record establishes that Plaintiffs care only about their benefits (in which case there must first be administrative exhaustion) and not about participation (protected by the Rehabilitation Act). Plaintiffs have not waived or abandoned their Rehabilitation Act claims.
The final issue for the Court is whether, Plaintiffs have "standing" to pursue systemic relief as opposed to individual relief. (Although SSA refers to "standing," it probably is better to frame the issue as to whether the scope of the injunctive relief sought by Plaintiffs is proper.) SSA also argues, for the first time in their reply brief, that to the extent Plaintiffs seek individual relief, that relief has not been adequately pled in the complaints and is in any event not ripe.
With respect to systemic relief, it is important to note — as SSA emphasizes — that neither the Davis nor the Doe case is, at present, a class action. Indeed, the Davis case was initially filed as a class action, but Judge Patel denied Mr. Davis's motion for class certification and, although given an opportunity to re-file such a motion, he declined to do so. "[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification." Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir.1996); see also Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 729 n. 1 (9th Cir.1985) (vacating preliminary injunction because it gave "broad relief ... not necessary to remedy the rights of the individual plaintiffs; if the scope of the injunction is narrowed, there is no question that the individual plaintiffs will be protected from the INS's former practices" and "[t]hat is all the relief to which they are entitled"; adding that "there would be no need for class actions" if the opposite were true).
Still, that does not necessarily mean that Plaintiffs are barred from seeking and obtaining systemic relief. First, "an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit — even if it is not a class action — if such breadth is necessary to give prevailing parties the relief to which they are entitled." Id. at 1501-02 (emphasis omitted). For example, in Easyriders, the district court issued an injunction barring the California Highway Patrol ("CHP") from citing from any motorcyclists — and not just the individual plaintiffs who had brought suit — without probable cause to believe that they had violated the California Vehicle Code helmet law. See id. at 1492-93. The Ninth Circuit upheld the injunction, explaining as follows:
Id. at 1502. In order for the plaintiffs to get effective relief, systemic relief was necessary.
Second, the Ninth Circuit has indicated that, where there is a systemwide injury because of a policy or practice that pervades an institution, then widespread relief is justified to remedy that injury. See Clement v. California Dep't of Corrections, 364 F.3d 1148, 1153 (9th Cir.2004) (emphasizing that the scope of an injunction depends on the extent of the violation established, and citing in support Armstrong v. Davis, 275 F.3d 849, 870 & n. 27 (9th Cir.2001)). Thus, in Clement, the Ninth Circuit deemed appropriate an injunction enjoining the enforcement of an internet mail policy in all California prisons, and not just the prison where the plaintiff was housed, because there was "uncontroverted evidence that at least eight California prisons ha[d] adopted [the] policy" and more were considering it. Id. "Because a substantial number of California prisons are considering or have enacted virtually identical policies, the unconstitutional policy has become sufficiently pervasive to warrant system-wide relief." Id. The court also noted:
Id.
While Plaintiffs have not at this juncture sufficiently shown that their cases may be analogous to Easyriders (nationwide changes may not be necessary to accommodate Mr. Davis and Mr. Doe), their cases may be comparable to Clement. That is, they have submitted evidence indicating that the alleged deficiencies in the handling of work reviews by the SSA is systemwide which, under Clement, would give rise to the possibility of broad relief. For example, Plaintiffs have pointed out that at least three other individuals with mental or developmental disabilities have filed complaints with SSA related to the lack of reasonable accommodations. See Docket No. 155 (Pls.' MSJ at 9 & Ex. WW). Plaintiffs have also pointed to statistics indicating that, e.g., mentally disabled individuals have their benefits terminated based on work reviews at a disproportionate rate. See Docket No. 155 (Pls.' MSJ at 20 & Exs. H, KKK).
At the hearing, SSA did not so much take issue with the above evidence as criticize Clement. SSA's criticism is understandable. It is difficult to square Clement with other authority holding that "injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification." Easyriders, 92 F.3d at 1501. However, Clement is still good law in this circuit, and the Court is bound thereby.
Finally, to the extent SSA has now challenged any individual relief requested by Plaintiffs, the Court rejects that challenge. First, SSA never made that argument in its opening motion; it is not fair for SSA to now raise the argument for the first time in its reply brief. Second, contrary to what SSA suggests, Plaintiffs' complaints may be fairly read to include a request for individualized relief even if the complaints do not identify the exact individualized relief sought (e.g., being assigned a trained SSA employee). Third, to the extent SSA argues that the specific accommodations identified by Plaintiffs in their December 2011 declarations (i.e., being assigned a trained SSA employee) are not ripe for review, that argument does not have much merit. As noted above, the accommodations requests are not really new; rather, they are simply more specific. Judge Patel has already held that Plaintiffs have appropriately exhausted their Rehabilitation Act claims. See Davis Docket No. 26 (Order at 8) (noting that "Plaintiff's claims in the instant action arise from the civil rights proceeding, for which defendant acknowledges plaintiff has exhausted his administrative remedies"); Doe Docket No. 26 (Order at 15) (finding exhaustion of the civil rights claim because Mr. Doe had filed an administrative action and SSA issued a final position on the same substantive claim raised by other individuals). Moreover, there is nothing to suggest that SSA would give Plaintiffs the specific accommodations sought if it were given the opportunity to consider the request. Notably, in its reply brief, SSA states that it has appointed employees to assist Plaintiffs but only "while the cases are stayed." Reply at 13.
For the foregoing reasons, the Court rules as follows.
(1) Plaintiffs' motion to file under seal is granted but Plaintiffs must publicly file a redacted version of the transcripts of Plaintiffs' depositions.
(2) SSA's motion for summary judgment is denied.
(3) In light of the Court's denial of SSA's motion for summary judgment, Plaintiffs' objections to SSA's reply brief and motion to strike certain portions of the reply brief are moot.
Finally, because the Court is denying SSA's motion for summary judgment, the next step for the Court is to consider how to proceed with Plaintiffs' motion for summary judgment. As the Court stated at the hearing and in its order of February 1, 2012, see Docket No. 267 (order), the parties' previous stipulation, entered as an order by Judge Patel, indicated that there would be a period for merits discovery and then an opportunity for new briefing based on the merits discovery. Given the passage of time since Plaintiffs' motion was originally filed, the Court was inclined to follow this approach. Plaintiffs, however, suggest that the Court could entertain the motion at this juncture, based on the discovery already completed and the briefs
In light of Plaintiffs' proposal, the Court orders the parties to meet and confer to discuss whether this approach is feasible. The Court notes that it may be possible to proceed with Plaintiffs' motion based on the discovery that has already been completed. It appears that Plaintiffs are willing to forego any further discovery
This order disposes of Davis Docket Nos. 195, 255, and 266 and Doe Docket Nos. 109, 167, and 178.
IT IS SO ORDERED.
For example, SSA asserts that Mr. Davis no longer suffers emotional distress because he has SSA notices go to his attorney now instead of himself directly. See Mot. at 15 (arguing that this process has "moot[ed] any possible complaints about the stress of receiving notices generally"). But there is nothing to indicate that this is a permanent arrangement. In fact, it appears that the parties negotiated this arrangement as a part of this litigation only, in order to resolve Mr. Davis's motion for temporary or preliminary injunctive relief. See Docket No. 51 (stipulation and order).
As for Mr. Doe, SSA suggests that he does not suffer emotional distress because he has not sought additional psychological treatment, he has admitted that his condition has improved, and he has help in understanding SSA notices (from his attorney, his mother, and his living skills trainer). SSA further asserts that, to the extent Mr. Doe has emotional distress, he has attributed that distress to this litigation and not to other conduct by SSA. None of these arguments is particularly persuasive. Contrary to what SSA argues, Mr. Does does appear to have sought psychological treatment because of SSA's actions. Mr. Doe's treating psychotherapist has submitted a declaration in which she states that Mr. Doe has in fact expressed to her "his fears at being unable to participate adequately in [SSA's] processes, including his ability to comprehend SSA's written notices and his difficulties in communicating orally with SSA staf[f]." Eroy Decl. ¶ 4. As for the fact that Mr. Doe's condition may have improved, that does not mean that he does not suffer any emotional distress all. See Opp'n, Ex. I (Doe Depo., Ex. 110) (checking box on "[r]educed feelings of nervousness") (emphasis added). Finally, the fact that Mr. Doe is able to obtain assistance in understanding SSA notices does not mean that he still does not suffer emotional distress as a result of the notices. To the extent SSA argues that Mr. Doe has attributed his distress to this litigation and not to SSA directly, that is not a fair characterization of Mr. Doe's deposition testimony. At the deposition, Mr. Doe was asked what SSA was doing "currently" to make him think about suicide. His response was: "I guess it's mainly because you're asking me all these questions." Opp'n, Ex. I (Doe Depo. at 125).
As for Mr. Doe, there is a declaration from his treating pscyhotherapist in which she opines that "a deposition is not an appropriate means of obtaining reliable information from Mr. Doe" because, "[a]s a result of his impairments, he fails to understand symbolic or abstract thought"; because, "[u]nder stress, it is common for Mr. Doe to become overly stimulated, to misread cues, or even to lash out in anger"; and because, "[d]uring the deposition, Mr. Doe may have failed to stop the proceedings to ask for clarification, even if confused." Eroy Decl. ¶ 3. The doctor continues: "It is not unusual for Mr. Doe to experience problems in: 1) maintining his level of attention; 2) processing information; and 3) transitioning between subjects." Eroy Decl. ¶ 3.
