NSCLC Challenges SSA Policy on Alleged Probation Violation

A lawsuit has been filed by NSCLC on behalf of a nationwide class of thousands of individuals, who have lost their Social Security or Supplemental Security Income (SSI) benefits, challenging the Social Security Administration’s (SSA) policy of suspending or denying Social Security and SSI benefits whenever an individual has an outstanding warrant for an alleged violation of probation or parole. Clark v. Barnhart, 06-Civ-15521 (SHS/RLE) (S.D.N.Y. complaint filed Dec. 28, 2006). See NSCLC Washington Weekly, Jan. 5, 2006.

The suit stems from SSA’s interpretation of two related statutory provisions: (1) a provision of the Personal Responsibility and Work Opportunity Reconciliation Act (PROWRA), Pub. L. No. 104-193, which makes a person ineligible for SSI benefits in any month in which the individual is “violating a condition of probation or parole,” 42 U.S.C. §1382(e)(4)(A)(ii); and (2) a similar provision affecting Social Security benefits which states that monthly benefits cannot be paid for any month in which a person is “violating a condition of probation or parole.” 42 U.S.C. §402(x)(1)(A)(v). The SSI provision went into effect on August 22, 1996. The Social Security provision did not go into effect until January 1, 2005.

The suit alleges that SSA’s policy is unlawful and that under these statutory provisions benefits cannot be suspended on the basis of a warrant alone, but can be suspended only when there has been a finding of an actual violation of probation or parole.

One of the named plaintiffs, a 63-year-old woman with numerous health issues who resides in a long term care facility in Amherst, NY, had her Social Security Disability Insurance benefits suspended a year ago because of a 10-year-old warrant from San Jose, CA. The warrant alleged a possible violation of a sentence of probation for embezzlement from her former employer. However, there has been no finding of an actual violation of probation by the court in California. After she was diagnosed with end stage renal disease she moved back to her hometown of Buffalo, New York where her prospects of a kidney transplant would be much greater. She had only her SSDI benefits to live on and was unable to pay the restitution or perform the community service that were conditions of her probation. SSA has made no independent examination of the facts of the case but has simply suspended payment of her benefits on the basis of the warrant alone. In the meantime, the facility where she resides has not been paid her share of the cost for the past year, has threatened eviction and has given her a referral to a homeless shelter.

Another plaintiff in Oregon had his retirement benefits suspended because of a warrant issued for an offense committed while he was a teenager. He had been sentenced to probation for driving a motor vehicle without the owner’s permission and had fulfilled the terms of his probation more than four decades ago.

Still another plaintiff in Florida had his SSDI benefits suspended because of a warrant alleging a probation violation in connection with a 1979 conviction for breaking and entering a Cleveland warehouse with several other equally inebriated people, although he had paid full restitution for a broken window more than a quarter century ago. As a result of losing his SSDI benefits he became severely malnourished. He was forced to temporarily separate from his common-law wife, who is diabetic and nearly blind, because of an inability to provide for her needs.

Plaintiffs seek declaratory and injunctive relief including the readjudication of all instances of suspensions and denials on the basis of a warrant for an alleged violation of probation or parole. While the exact number of people affected is not known, plaintiffs believe the number is conservatively placed in the tens of thousands. SSA has stated that they have suspended the Social Security and SSI benefits of over 150,000 people because of this provision and a companion provision regarding individuals who are “fleeing to avoid prosecution” for a felony or who are fleeing to avoid custody or confinement after conviction for a felony. In almost all cases, the offenses were relatively minor and law enforcement authorities have no interest in pursuing the individual. In fact, SSA does not even take any steps to suspend the benefits until after notifying law enforcement authorities and the law enforcement agencies have declined to take any action.

NSCLC has been challenging SSA’s practices in suspending benefits of so-called “fleeing felons” and alleged probation violators for more than five years now. Several courts have upheld challenges to SSA’s policy of suspending SSI benefits for allegedly “fleeing to avoid prosecution” whenever there is an outstanding arrest warrant for a felony. See, Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005); Garnes v. Barnhart, 352 F.Supp.2d 1059 (N.D. Cal. 2004); Hull v. Barnhart, 336 F.Supp.2d 1113 (D. Oregon 2003).

Complaint in Clark


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