Fugitive Felon Policies Continue To Unravel

 From an Emergency Message that Social Security sent out to its field offices yesterday:

We previously informed you in EM-10061-SEN, that on 3/19/2010, the Second Circuit Court of Appeals rendered a decision in Clark v. Astrue, finding that SSA’s practice of relying solely on outstanding probation or parole violation arrest warrants to suspend or deny benefits conflicted with the plain meaning of the Social Security Act. Because of that decision, we stopped suspending or denying title II benefits and title XVI payments based solely on an outstanding probation or parole violation warrant for individuals who resided in New York, Connecticut, or Vermont.

Upon remand from the Second Circuit on 3/18/2011, the District Court for the Southern District of New York certified a nationwide class in Clark v. Astrue that includes all individuals whose benefits or payments were suspended or denied on or after October 29, 2006 (If this class definition changes, we will issue another instruction). Based on this class certification, we are no longer suspending or denying benefits or payments based solely on a probation or parole violation warrant. However, at this time do not take any action to remedy prior suspensions or denials based solely on a probation or parole violation warrant.

Action to take on probation and parole violation warrants

Effective immediately, do not suspend or deny title II benefits or title XVI payments to an individual based solely on an outstanding probation or parole violation warrant with any of the following offense codes:

· 5011 – Parole violation
· 5012 – Probation violation
· 8101 – Juvenile offenders – abscond while on parole
· 8102 – Juvenile offenders – abscond while on probation
· 9999 -- with an offense charge symbol of “probation or parole violation.”
· “Blank”-- with an offense charge symbol of “probation or parole violation.”

A Story Behind A Class Action

From the San Mateo Daily Journal:

Jose Alvaro Munevar, 55, was laid up in the hospital recovering from knee surgery when notified that his Supplemental Security Disability Insurance payments were suspended.

His payments were cut off because he bounced a $300 check in Las Vegas back in 2007, a felony in Nevada. ...

Munevar had overdrawn his account by only $15, a mistake that would ultimately cost the man several months of income and a little pride. ...

Munevar tried to clear up the warrant with Clark County, Nev. prosecutors but was unable to do it on his own. ...

[His case along with other cases] quickly turned into a class-action lawsuit as it became clear Social Security was wrongfully withholding payments from more than just a few people.

In fact, it wrongfully withheld payments from more than 200,000 people and owes about $700 million in back payments. ...

[Munevar's attorney] was able to get the Clark County arrest warrant “quashed” and Social Security paid Munevar $14,000 in back payments and restored his benefits.

Help For Thousands

From New American Media:

Rosa Martinez didn’t know what to do when the Social Security Administration told her two years ago that the agency was stopping her disability assistance because she had an outstanding 1980 arrest warrant for illegal possession of prescription drugs in Miami. A resident of Redwood City, Calif., she has never visited Miami. ...

She pleaded with a series of bureaucrats that she could not be the same Rosa Martinez named in the old warrant, a Rosa eight inches taller. But those please fell on deaf ears.

“Maybe God put me in this situation so I could help others,” she said at a New America Media press briefing, where she and legal aid attorneys described how she became the lead plaintiff in a class action lawsuit, Martinez v. Astrue, against the Social Security Administration. Michael Astrue is the Social Security commissioner.

The class action lawsuit led to federal court settlement that will return up to $500 million to about a quarter million people, who had their Social Security and Supplemental Security Income (SSI) supports wrongfully cut off by the Social Security Administration (SSA).

Outreach is critical, though, because many people who lost their benefits over the last 10 years must reapply to Social Security. In some cases eligible people have only about six months to apply or they risk permanently losing those benefits. ...

The Social Security Administration (SSA) will soon be notifying people, mainly by mail, that they can reapply for assistance.

Social Security Loses Another Fugitive Felon Case

The U.S. Court of Appeals for the Second Circuit has just held in Clark v. Astrue that Social Security misinterpreted the statutory provision prohibiting payment of benefits to "fugitive felons." This opinion concerns claimants with alleged probation and parole violations. This is a class action case that will affect a large number of people.

Social Security had earlier settled the case of Martinez v. Astrue which involved a different fugitive felon issue.

The underlying problem is that Social Security adopted ridiculously overbroad interpretations of the fugitive felon provisions enacted by Congress. Congress had in mind murders and rapists. The reality was that the vast majority of those caught up by the fugitive felon provisions, as interpreted by Social Security, had committed, at most, relatively minor crimes. Many had no idea that anyone considered them a fugitive. Some had been convicted of nothing. The records that Social Security was using to declare claimants fugitives were rife with errors. I can give an example that is not directly on point but close enough to give an idea of the problems with these records. After one of my clients was approved for Supplemental Security Income (SSI) benefits, we were informed that no benefits would be paid since my client was in prison in New Mexico. This made no sense since she was living in North Carolina. My client's response was one which makes New Mexicans cringe: "What are they talking about? I've never been to Mexico!" When I contacted the New Mexico prison authorities, they told me that they had never had a prisoner with my client's name or Social Security number.

Congressman Criticizes Fugitive Felon Settlement

From the American Chronicle:

Congressman Wally Herger (R-CA) released a copy of a letter he and two other Representatives sent to the Social Security Inspector General on the issue of fugitive felons receiving Social Security and Supplemental Security Income (SSI) benefits. Herger believes it to be an irresponsible waste of taxpayer dollars to subsidize felons on the run from the law. Congressman Herger was the author of provisions in the 1996 welfare reform law that sought to deny fugitive felons, along with probation and parole violators, SSI checks. Subsequent legislation expanded that ban to include Social Security checks.

Herger´s letter is in response to a recent report by the Inspector General of the Social Security Administration (SSA) regarding a court settlement (Martinez, et al. v. Astrue) that will alter the Social Security Administration´s implementation of the ban on benefits for fugitive felons. The settlement stipulated that SSA could suspend Social Security and SSI payments only after fugitive felons are issued a warrant for trying to escape arrest, overturning SSA´s interpretation that payment suspensions are based solely on any outstanding felony arrest warrant. The Inspector General´s (IG) Report found that, under Martinez, taxpayer savings from the program would be reduced dramatically. ...

[Herger wrote] "While the court cases have shed light on problems with the implementation of the program, the Martinez settlement is too broad and would unnecessarily neuter this successful program. I believe the correct solution is for Congress to clarify that the Social Security Administration should suspend payments for those wanted based on the most heinous crimes, while permitting lenience in cases where good cause exemptions make sense.

OIG Report On Fugitive Felons

Some excerpts from a report by Social Security's Office of Inspector General (OIG) concerning implementation of the law forbidding payment of benefits to fugitive felons and the Martinez class action concerning Social Security's implementation:

We estimate that about 60.7 percent of individuals with outstanding warrants will be paid Title II and XVI benefits as a result of the Martinez settlement agreement. The remaining 39.3 percent will continue to have their benefits stopped....

The settlement agreement, however, does not restrict SSA or the Office of the Inspector General’s (OIG) data sharing activities with law enforcement. Therefore, the OIG will continue to obtain data from law enforcement agencies on fugitive felons wanted for all offense codes and match that data with SSA’s records. Additionally, the OIG will share information in SSA’s records regarding the fugitive’s location (that is, address information) with law enforcement so that they can potentially arrest the fugitive. ...

SSA identified fugitive felons and probation or parole violators through data matches between the Agency’s beneficiary rolls and Federal and State warrant databases. Since the program’s inception in August 1996 through July 2009, it has contributed to a total of 86,309 arrests. ...

Are there any other legislative changes/additions you would recommend to this language to ensure the future success of the fugitive felon program? ...

Removing the word “fleeing” from the language of the law and incorporating language prohibiting payment to individuals with an outstanding felony warrant would enable SSA to not pay benefits to these individuals and prohibit them from being representative payees. Another option would be to define what is meant by the word “fleeing” in the context of this legislation.

The report was requested by Congress. One question asked of OIG concerned the "challenges" of implementing the fugitive felon program. In its response, OIG somehow failed to mention the fact that many, perhaps most, of the people whose benefits were cut off were not truly fugitives, a fact which led to the class action. I would say that OIG is having trouble accepting responsibility for its own role in this fiasco.

Settlement In Fugitive Felon Class Action

From the Washington Post:

The Social Security Administration has agreed to pay more than $500 million in back benefits to more than 80,000 recipients whose benefits were unfairly denied after they were flagged by a federal computer program designed to catch serious criminals, officials said Tuesday.

According to a preliminary agreement, approved Tuesday by U.S. District Court Judge Claudia Wilken in Oakland, Calif., the Social Security Administration will pay recipients who have been denied benefits since Jan. 1, 2007. In addition, more than 120,000 recipients who were denied benefits before 2007 are eligible to apply for reinstatement....

"It's changing a policy which was really devastating for some of the most vulnerable people in the country," said Gerald McIntyre, an attorney with the National Senior Citizens Law Center, one of the organizations representing the plaintiffs.

The searches captured dozens of criminals, including some wanted for homicide. But they also ensnared countless elderly and disabled people accused of relatively minor offenses such as shoplifting or writing bad checks. In some cases, the victims simply shared a name and a birth date with an offender. Often it was difficult for these citizens to appeal their cases....

In the last few years, at least eight district court judges across the country have ruled in favor of victims in individual cases, saying that cutting off benefits based solely on the database search was illegal.

Class Action Lawsuit On Fugitive Felon Implementation

From the San Mateo County Times:

The letter didn't make any sense, Rosa Martinez said, because she had never been to Miami, had never used illegal drugs and had never been arrested for a crime.

And yet the Social Security Administration informed her the monthly $870 check she depended on would be cut off because there was an outstanding warrant for her arrest on drug charges, issued in 1980 by the Miami-Dade Police Department.

This week, the 52-year-old Redwood City woman became one of two plaintiffs in a class-action lawsuit against Social Security Commissioner Michael Astrue that contends more than 100,000 people have had their benefits unjustly halted by the federal government.

The suit, filed Wednesday in federal court in San Francisco, asks a judge to prohibit the federal agency from stopping any more Social Security payments to people "fleeing to avoid prosecution" for a felony, which makes beneficiaries ineligible under a 1996 law.

Attorneys for Martinez and a second plaintiff, 19-year-old Jimmy Howard of Santa Maria, say the agency has ceased sending benefit checks to people simply because there is an outstanding warrant in their name, without verifying whether the person is fleeing prosecution or is even aware of the warrant. ...

Social Security officials have demanded that Martinez get proof that she is not the person listed in the warrant, but Douglas said Miami-Dade police have destroyed the original warrant and "proving a negative was incredibly difficult."

A letter by the Social Security Administration's Redwood City district advised Martinez: "If you believe the warrant was issued in error, Social Security must have an original document that states the warrant was issued in error and does not pertain to you at all. It must state the date the warrant was rescinded. This is the only way this case can be resolved."

The suit demands that the agency reconsider the eligibility of anyone who gets any of several types of Social Security payments and has been cut off under the "fleeing to avoid prosecution" rule.

Interesting OGC Opinion On Pardoned Prisoners

Here is an excerpt from an interesting opinion from Social Security's Office of General Counsel (OGC). At least I find it interesting.

QUESTION

You have asked whether a convicted felon who was pardoned by the Governor of Florida and released from confinement in prison is entitled to Social Security benefits for the time he was confined in prison.

ANSWER

We conclude the applicant is not entitled to re-payment of benefits suspended during his confinement in prison.