Second Circuit Issues Ruling in Clark

August 19, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

The Court of Appeals for the Second Circuit issued a decision in March in the Clark case, which challenged the Social Security Administration’s (SSA’s ) policy of terminating/denying benefits to claimants with outstanding probation or parole violation warrants.  The Court ruled that SSA’s practice of considering the issuance of a warrant equivalent to a determination that one is in fact violating a condition of probation or parole is contrary to the Social Security Act.  It remanded the case back to the District Court for further proceedings. Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010). 

At issue in Clark was the provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193, § 202, 110 Stat. 2105, 2185-86, denying Supplemental Security Income (SSI) eligibility provision during any month in which an otherwise eligible individual is violating a condition of probation or parole imposed under Federal or State law. 42 U.S.C. § 1382(e)(4)(A)(v).  The same provision was made applicable to Title II benefits by the Social Security Protection Act of 2004, Pub.L. No. 108-203, § 203, 118 Stat. 493, 509, codified at 42 U.S.C. § 402(x)(1)(A)(v).
 
The Court of Appeals held that the plain meaning of the statute requires that SSA demonstrate by a preponderance of the evidence that a claimant or beneficiary is violating a condition of probation or parole before denying or suspending benefits. It rejected that Commissioner’s argument that the fact of a warrant, issued on the basis of “probable cause” or “reasonable suspicion” to believe that one is violating a condition of probation or parole, is equivalent to a determination that one is in fact violating a condition of probation or parole. According to the Court:

While Congress may in some instances set a lower probabilistic threshold [footnote omitted], we disagree that it has done so here. And we hold, more generally, that unless it specifies clearly to the contrary, when Congress provides that a fact triggers civil legal consequences, it is requiring a finding that the fact is more likely than not true.

602 F.3d at 148. 

The Commissioner did not argue that the warrants used to terminate or deny benefits would satisfy a more-likely-than-not probabilistic threshold, and the Court declined to decide what relevance such a showing would have.  It also noted, relying on examples set forth in the amicus brief filed by the Empire Justice Center and other not for profits organizations from across the country, that many of the warrants relied upon by SSA might be supported by probable cause but still not meet the higher more-likely-than-not standard.  For example, a parolee might have been given permission to leave a jurisdiction by her parole office, but the permission was not properly recorded.  The resulting warrant might be valid but would not justify a suspension of benefits by SSA.

In reaching its conclusion, the Court rejected the various arguments presented by the Commissioner.  Simply because the evidentiary requirement imposed by Congress, for example, is burdensome does not, according to the Court, change the fact that Congress requires it. It also concluded that the Commissioner’s argument that the statute’s use of the present tense permits prompter suspension than the Court’s interpretation of the suspension provisions permits was circular. Similarly, it refuted the Commissioner’s claim that the good cause provisions added to the statute justify the Commissioner’s interpretation.  It found that even if an interpretation of the statute that limits the good cause provisions to warrants for felony offenses might be “odd,” it is not so odd as to ignore the plain language of the statute.  Finally, it rejected as “somewhat paradoxical” the Commissioner’s and the District Court’s interpretation that the Second Circuit’s decision in Fowlkes v. Adamec, 432 F.3d 90 (2d Cir 2005), which dealt with the meaning of “fleeing” for recipients with outstanding felony charges, precluded the Court’s ultimate finding.

Advocates will recall that Clark is a “companion” case in a sense to the Fowlkes v. Adamec, 432 F.3d 90 (2d Cir 2005) and the nationwide class action settlement in Martinez.  For more on the Martinez settlement, see the January and June 2010 editions of the Disability Law News at www.empirejustice.org or  http://www.nsclc.org/areas/social-security-ssi/Martinez-Settlement.

Now on remand to the District Court, plaintiffs moved for certification of a nationwide class on June 22, 2010.  The government’s time to respond has been extended to August 17th; the plaintiffs’ reply is due October 4th.  Plaintiffs also moved to substitute lead plaintiff Elaine Clark’s daughter and son in her place since she died while the case was pending.  No predictions at this point as to how the government will respond. 

Jerry’s advice for advocates with pending cases is APPEAL! APPEAL! APPEAL!   The basis for appeal in every one of these cases is that no one has ever made a determination that the individual is actually violating a condition of probation or parole as the statute requires.

Great work on the part of Jerry McIntyre of the National Senior Citizen Law Center (NSCLC), and his co-counsel at the Urban Justice Center and Proskauer Rose !