Advocate Overcome Probation Warrants

May 1, 2009

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

As the lead article of this newsletter outlines, clients with outstanding probation or parole warrants still face suspension and denial of benefits under SSA’s “fleeing felon” provisions.  Advocates continue to successfully challenge these suspensions, venturing into the world of criminal courts and far away jurisdictions.

Take for example, a case of David Ralph’s from the Chemung County Neighborhood Legal Services office of LAWNY in Elmira. David’s client, R.B., is a 63-year-old veteran who was arrested in Orange County, Florida in 1987, on shoplifting charges. According to R.B., it was near Christmas, and the judge took mercy on him, and sentenced him to probation, to be served in Colorado.  He was separated from his wife, and wanted to return to the Denver area in an attempt to reconcile with her.  For a variety of reasons, he never reported to the probation authorities in Colorado

According to David’s client, the reconciliation attempt failed.  By 1990, he was homeless, a self-employed housepainter or handyman with no address.  On May 5, 1990, he was admitted to the Denver Veterans Administration Medical Administration for numbness in his hands bilaterally and shoulders bilaterally.  He had a fusion of C5-C6 laminectomy to decompress the spinal cord. He was discharged in mid-June 1990 to a “shelter” and at some point thereafter moved back to his home state of New York.  He became eligible for disability benefits at that time and relied upon them until they were terminated in November 2008, based on a warrant that had allegedly been issued in May 1990 in Orange County, Florida.  As a result, he was without income and homeless when he sought help from David.

David contacted the Orange County Court in Orlando, Florida, and requested that the warrant be dismissed in the interest of justice, based in part on R.B.’s current dire circumstances.  After innumerable phone calls, messages, e-mails and faxes, David finally learned that that the warrant was dismissed on March 9th. He tracked down a copy of the disposition, which included a Notice of Hearing for a "violation of probation hearing" set for March 9, 2009, that noted on its face that “The Defendant Is Not Required To Be Present For The Hearing”); an “Order To Recall Warrant”; a transmission receipt for the warrant recall order to “WARRANTS”; and a memorandum from the Judge’s Judicial Assistant to the Orange Count Sheriff to return the warrant to the Clerk of the Orange County Clerk, Misdemeanor.  He provided all this documentation, along with a printout from the clerk’s website to SSA in order to get R.B.’s benefits reinstated.

While David has performed nothing short of a miracle in getting the warrant recalled, his client still faces a potential overpayment.  In most of these cases, SSA charges the beneficiary with an overpayment for the benefits paid while the warrant was outstanding. Jerry McIntyre – guru of all things related to fleeing felons – advises appealing these overpayment cases as opposed to simply seeking a waiver.  The argument would be that the benefits should not have been suspended in the first place because there has not been an actual determination that the claimant had violated a condition of probation or parole.  In other words, the issuance of an arrest warrant does not by itself constitute a determination that the individual is violating a condition of probation.  The claimants will thus maintain their status as potential class members in the Clark case discussed on page one of this newsletter.

Ellen Bush, an attorney with Legal Services of the Hudson Valley, scored such a victory.  Her client, who is 59 years old and has only a seventh grade education, has been unable to work since 1990, when he developed deep vein thromboses in both legs.  He was receiving Title II benefits of $860 each month based on his disability.  On March 10, 2008, he was notified by SSA that his benefits would be suspended effective January 2005 through February 2008 due to an outstanding warrant for a probation violation in Florida.  Apparently he had been sentenced to probation for three years (June 1983 through June 1986) following his felony conviction for burglary.

On reconsideration, the client supplied SSA with a court document showing that the warrant was “satisfied” on January 23, 2008.  According to SSA’s reconsideration notice, the client had told SSA that a court clerk had informed him that the warrant had actually been dismissed years earlier. He was, however, unable to provide proof.  Consequently, although his benefits were reinstated, he was charged with a $27,000 overpayment.

After the client appealed, he came to Ellen for assistance.  With Ellen’s help, the client prevailed before an Administrative Law Judge (ALJ), who found that he met the good cause provisions in the POMS.  See POMS GN 02613.000 et seq. & SI 00530.000 et seq.  Not only did the ALJ find that the underlying offense was non-violent and not drug-related, thus meeting the good cause criteria; the ALJ also found that the warrant was not enforceable.  As a result, Ellen’s client was found entitled to benefits for the entire period, thus abrogating the overpayment completely.

David and Ellen’s hard work certainly paid off for these two clients!