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Settlement Reached in Fleeing Felon Case

May 1, 2009

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

Fleeing felon issues continue to burden claimants and confound advocates.  The SSI “fugitive felon” provisions in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 42 U.S.C. §1382(e)(4)(A) & (B), were extended to the Title II program in 2004. 42 U.S.C. §402(x)(1)(A)(v). These provisions preclude individuals wanted in connection with the commission of felonies or violating terms of their parole or probation from receiving benefits.  Consequently, numerous claimants have either been denied benefits because of an outstanding felony or probation/parole warrant, or have had their on-going benefits terminated.

Those individuals within the Second Circuit (residents of New York, Connecticut, and Vermont) found some relief from these draconian rules under the Court of Appeals decision in Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005). The Court ruled that an arrest warrant issued for failure to appear was not a sufficient basis for the Social Security Administration (SSA) to conclude that an individual was “fleeing to avoid prosecution.”  See Acquiescence Ruling (AR) 06-1(2). Although advocates in the Second Circuit stopped - for the most part – seeing these cases post Fowlkes, suspensions and denials continued elsewhere.

Jerry McIntyre of the National Senior Citizen Law Center in Los Angeles, who along with others had litigated Fowlkes, filed a nation-wide class action seeking similar relief for the rest of the country. A settlement has been reached in Martinez, et al v. Astrue.  Under the settlement, the Social Security Administration (SSA) will suspend or deny Title II and Title VIII benefits or Title XVI payments, or prohibit an individual from serving as a representative payee only if the individual’s outstanding felony warrant was issued for one of the following three offenses: Escape (offense code 4901), Flight to Avoid prosecution, confinement, etc. (offense code 4902), and Flight-Escape (offense code 4999). These National Crime Information Center (NCIC) Uniform Offense Classification Codes - along with hundreds of others - are found at  Attorneys for the plaintiffs in Martinez anticipate that very few people will fall into these three categories.

SSA has already issued an Emergency Message implementing the Martinez settlement.  EM-09025 can found at!openview&restricttocategory=EM.  Note that the EM specifically supersedes the Fowlkes AR 06-1(2). 

What does this mean for individuals in New York, Connecticut and Vermont?  Those few individuals whose warrants were issued under one of the three codes listed above may still be subject to suspension.  On the other hand, people who were suspended or denied between 1/1/00 and 12/5/05 will be notified of the change in policy and of their potential current eligibility.  In addition, there may be some individuals with SSI overpayments still being recouped as the result of pre-Fowlkes suspensions that will now benefit from not having to pay back what remains of their overpayments.

That is the good news – and kudos to Jerry and his team for this great settlement.  The not so good news, however, is that, like Fowlkes, the Martinez settlement does not affect SSA’s policy or procedures for cases involving outstanding parole or probation violation warrants (e.g., offense codes 5011 and 5012).

Jerry, however, along with attorneys from Proskauer Rose and the Urban Justice Center, has challenged that policy in another nation-wide class action filed in the Southern District of New York. As previously reported in the November 2008 Disability Law News, the District Court Judge awarded summary judgment to SSA in Clark v. Astrue, 2008 WL 4387709 (S.D.N.Y. 2008). Plaintiffs have appealed to the U.S. Court of Appeals for the Second Circuit. The Empire Justice Center, along with a number of other programs from across the country, filed an amicus brief in support of the plaintiffs. A decision in Clark is not anticipated for several months.

In the meantime, DAP advocates continue to pursue creative ways to overcome suspensions based on outstanding probation or parole violations. See the Administrative Decisions section of this newsletter for more on how to tackle these problems.


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