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LEXSEE 2008 U.S. DIST. LEXIS 74399
ELAINE CLARK, RAYMOND GIANGRASSO, TONY GONZALES, JOHNNY L. HEATHERMAN and MONELL WHITE, individually on behalf of themselves and on behalf of all those similarly situated, Plaintiffs, -against- MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, in his official capacity, Defen-
dant.
06 Civ. 15521 (SHS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 74399
September 22, 2008, Decided September 22, 2008, Filed
SUBSEQUENT HISTORY: Vacated by, Remanded by Clark v. Astrue, 2010 U.S. App. LEXIS 5698 (2d Cir. N.Y., Mar. 19, 2010)
PRIOR HISTORY: Clark v. Astrue, 2007 U.S. Dist. LEXIS 18434 (S.D.N.Y., 2007)
COUNSEL: [*1] For Elaine Clark, individually, Elaine Clark, on behalf of themselves, and on behalf of all similarly situated, Raymond Giangrasso, individually, Raymond Giangrasso, on behalf of themselves, and on behalf of all those similarly situated, Tony Gonzales, individually, Tony Gonzales, on behalf of themselves, and on behalf of all those similarly situated, Johnny L. Heatherman, individually, Johnny L. Heatherman, on behalf of themselves, and on behalf of all those similarly situated, Monell White, individually, Monell White, on behalf of themselves, and on behalf of all those similarly situated, Plaintiffs: Bettina Barasch Plevan, Steven E. Obus, LEAD ATTORNEYS, Proskauer Rose LLP (New York), New York, NY.
For Commissioner Michael J. Astrue of the Social Security Administration, in his official capacity, Defendant: Sean Chance Cenawood, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY.
JUDGES: Sidney H. Stein, United States District Judge.
OPINION BY: Sidney H. Stein
OPINION
OPINION & ORDER SIDNEY H. STEIN, U.S. District Judge Plaintiffs Elaine Clark, Raymond Giangrasso, Tony Gonzales, Johnny L. Featherman, and Monell White bring this
putative class action against the Commissioner of the Social [*2] Security Administration (the "SSA") to challenge the SSA's interpretation of two statutes providing for suspension of Old-Age, Survivor, and Disability Insurance ("OASDI") and Supplemental Security Income ("SSA") benefits to individuals who violate a condition of their probation or parole. Plaintiffs contend that the SSA's practice of suspending OASDI and SSI benefits based solely on the existence of an outstanding arrest warrant for a probation or parole violation is contrary to the statutes at issue, 42 U.S.C. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii), and an implementing regulation, 20 C.F.R. § 416.1339(b). In plaintiffs' view, suspension of violated the terms of his or her probation or parole. Following the commencement of this benefits is au-

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thorized only when a court has made a formals finding that a beneficiary has in fact litigation, this Court denied plaintiffs' motion for a preliminary injunction seeking to halt the SSA's practice of relying on warrants to suspend OASDI and SSI benefits. See Clark v. Astrue, No. 06 Civ. 15521 (SHS), 2007 U.S. Dist. LEXIS 18434, 2007 WL 737489 (S.D.N.Y. Mar, 8, 2007). Following the conclusion of discovery proceedings, both parties have moved for summary judgment in their [*3] respective favors pursuant to Fed. R. Civ. P. 56. For substantially the reasons set forth in the preliminary injunction opinion, the Court now holds that the SSA's practice is consistent with the statutes and regulation and is entitled to deference. Accordingly, defendant's motion for summary judgment is granted and plaintiffs' motion for summary judgment is denied.
I. BACKGROUND
Except as otherwise noted, the following facts are not in dispute.
A. The SSA's Procedures for Suspending Benefits
Pursuant to various agreements, the SSA receives information regarding outstanding warrants from the National Crime Information Center ("NCIC") of the Federal Bureau of Investigation, the United States Marshals Service, and state and local law enforcement agencies. (Defendant's Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Def.'s 56.1") P 14; Plaintiffs' Response to Defendant's Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Pls.' Resp. 56.1") P 14; Declaration of Michael J. McGill dated Jan. 31, 2007 ("McGill Decl.") P 4.) For this information to be processed, it must include, at minimum, the name and date of birth of the individual for whom [*4] the warrant was issued, the date of the warrant, and the "ORI number" identifying the agency that issued the warrant. (Deposition of Michael J. McGill dated May 4, 2007 ("McGill Dep.") at 86:11-17, Ex. 5 to Declaration of Brian S. Rauch dated Nov. 16, 2007 ("Rauch Decl.").) Certain warrants are then referred for further processing. These warrants are the warrants that contain the NCIC Uniform Offense Code indicating a probation or parole violation; an "offense type" code that indicates either a violation of probation or a violation of parole; or a statement that the subject is a "probation violator" or a "parole violator." (McGill Dep. at 100:6-21, 101: 5-12.) The SSA generally does not receive copies of the warrants themselves. (Plaintiffs' Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Pls.' 56.1") P 18(c); Defendant's Response to Plaintiffs' Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Def.'s Resp. 56.1") P 18(c).)
The SSA uses automated processes to verify the identity of the individual named in a warrant and then checks whether the individual is receiving OASDE or SSE benefits. 1 (Def.'s 56.1 P 17; Pls.' Resp. 56.1 P 17.) [*5] If these processes yield a match between a warrant and a recipient, the warrant information is transmitted electronically to the SSA's Office of the Inspector General ("OEG"), a semi-independent section of the SSA. (McGill Decl. PP 2, 6.) OEG performs a duplicate-elimination process and assigns nonduplicate warrants to its Fugitive Enforcement Division ("FED"). (Id.) Depending on the source of the warrant information, either FED or the FBI's Information Technology Center ("ITC") then undertakes to verify that the warrant is still open. (Def.'s 56.1 P 18; Pls.' Resp. 56.1 P 18; McGill Decl. PP 8-11, 15.)
1 As discussed below, plaintiffs strongly dispute the accuracy of SSA's procedures for verifying the identity of the persons named in the warrants it receives. It is undisputed, however, that SSA employs mechanisms intended to verify that the person named in the warrant is the same person identified as the recipient of Social Security benefits.
To do so, FED or ITC sends the referring law enforcement agency two forms--a Law Enforcement Referral Form, or OI-5B, and a Law Enforcement Certification Form, or OI-5C--that seek information regarding the current status of the warrant. (Def.'s [*6] 56.1 P 18; Pls.' Resp. 56.1 P 18; Pls.' 56.1 P 18(g); Def.'s Resp. 56.1 P 18(f) & (g); McGill Decl. PP 11, 15; Forms OI-5B and OI-5C, Ex. C to McGill Decl.) Each week, OIG transmits to SSA a list of the Social Security benefit recipients for whom it has received OI-5B and OI-5C forms from the referring agency or otherwise ascertained the status of the warrant. (McGill Decl. P 18; Decl. of Gareth Dence dated Feb. 1, 2007 ("Dence Decl.") P 11.) The SSA then begins the process of suspending benefits to recipients who have open warrants for violation of probation or parole. (Dence Decl. P 12.)
B. The Named Plaintiffs
1. Elaine Clark

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Elaine Clark began receiving OASDI benefits in either 1996 or 1999 after being diagnosed with end-stage renal disease. (Pls.' 56.30 Kan. 25, 1 P 25; Def.'s Resp. 56.30 Kan. 25, 1 P 25; Declaration of Dennis Mass dated Feb. 1, 2007 ("Mass Decl.") P 10.) She has since received a kidney transplant and is being treated for diabetes mellitus, joint disorders of the lower extremities, hypertension, hyperlipidemia, depression, esophagitis reflux, osteoporosis, and anemia. (Pls.' 56.1 P 26; Def.'s 56.1 P 26.) She takes numerous medications and requires a wheelchair, and resides at a managed [*7] long term care facility in Amherst, New York. (Pls.' 56.1 PP 26; Def.'s 56.1 P 26.) Most of the cost of her medical care is paid by Medicaid, and Clark used her monthly OASDI check to pay her rent. (Pls.' 56.1 P 26; Def.'s 56.1 P 26.)
On December 3, 1999, while Clark was living in California, she was sentenced to three years' probation following conviction for felony grand theft/embezzlement by an employee. (Def.'s 56.30 Kan. 25, 1 P 25; Pls.' Resp. 56.30 Kan. 25, 1 P 25.) On November 27, 2002, the Superior Court of the State of California, Santa Clara County, issued a warrant for Clark's arrest for "fail[ing] to comply with terms of probation." (Bench Warrant dated Nov. 27, 2002, at US 001771, Ex M. to Declaration of Bertha Richardson dated Jan. 31, 2007 ("Richardson Decl."); Def.'s 56.1 P 28; Pls.' Resp. 56.1 1128.) The SSA received information regarding this warrant, including an offense code indicating violation of probation. (Def.'s 56.1 P 29; Pls.' Resp. 56.1 P 29.) This warrant remained outstanding and, in December 2005, Clark received a letter from the SSA informing her that her benefits would be suspended. (Pls.' 56.30 Kan. 30, 1 P 27; Def.'s Resp. 56.30 Kan. 30, 1 P 27.) In January 2006, the SSA notified Clark that her [*8] benefits were suspended immediately and that because they should have been suspended as of January 2005, she had been overpaid $ 9,235. (Pls.' 56.1 P 28; Def.'s Resp. 56.1 P 28.) Clark filed a timely request for reconsideration, and on December 23, 2006, received a letter affirming the initial determination and denying her request for reconsideration. (Pls.' 56.1 P 29; Def.'s Resp. 56.1 P 29.)
Without her OASDI benefits, Clark has been unable to pay her rent and has been threatened with eviction from her long term care facility. (Pls.' 56.30 Kan. 102, 1 P 30; Def.'s Resp. 56.30 Kan. 102, 1 P 30.) The facility has given her a referral to a homeless shelter, but she fears that someone with her medical conditions would not be able to survive there. (Pls.' 56.30 Kan. 102, 1 P 30; Def.'s Resp. 56.30 Kan. 102, 1 P 30.) She states that she has contemplated suicide. (Pls.' 56.30 Kan. 102, 1 P 30; Def.'s Resp. 56.30 Kan. 102, 1 P 30.)
2. Raymond Giangrasso
Raymond Giangrasso began receiving SSI benefits in 1987 after recovering from a three month long coma caused by painkillers and sleep medications. (Pls.' 56.1 P 31; Def.'s Resp. 56.1 P 31.) He has lasting physical and psychological deficits and has been unable to work since. (Pls.' 56.1 P 31; Def.'s Resp. 56.1 P 31.) [*9] In May 8, 1995, he was convicted in Florida's Circuit Court for Pasco County of driving under the influence of alcohol or a controlled substance and driving with a suspended or revoked license. (Def.'s 56.1 P 38; Pls.' Resp. 56.1 P 38.) As part of his sentence, Giangrasso was placed on probation for two years. (Def.'s 56.1 P 39; Pls.' Resp. 56.1 P 39.) On July 11, 1995, a Florida court issued a warrant for his arrest for violating the conditions of his probation. (Def.'s 56.30 Kan. 57, 1 P 41; Pls.' Resp. 56.30 Kan. 57, 1 P 41; Arrest Warrant dated July 11, 1995 at US 001806, Ex. 0 to Richardson Decl.)
The SSA subsequently received information concerning the warrant, including the offense code indicating that it had been issued for violation of conditions of probation. (Def.'s 56.1 P 42; Pls.' Resp. 56.1 P 42.) In December 2003, the SSA informed Giangrasso that his benefits would be suspended retroactive to October 1, 2001, on the basis of the warrant, which remained outstanding. (Pls.' 56.30 Kan. 82, 1 P 32; Def.'s Resp. 56.30 Kan. 82, 1 P 32.) Giangrasso filed a motion for reconsideration, which was denied in July 2005. (Pls.' 56.1 P 33; Def.'s Resp. 56.1 P 33.) In May 2004, Giangrasso moved unsuccessfully to have the Florida court [*10] set aside the arrest warrant. (Def.'s 56.1 PP 44-45; Pls.' Resp. 56.1 PP 44-45.) In the fall of 2005, Giangrasso filed a new application for SSI benefits, which was approved in October of that year. (Pls.' 56.1 P 34; Def.'s Resp. 56.1 P 34.) In March 2007, an SSA administrative law judge ordered that Giangrasso's SSI benefits be reinstated as of January 2004 and concluded that he had not been overpaid benefits during the period between October 2001 and December 2003 because SSA had suspended his benefits erroneously. (Pls.' 56.1 P 35; Def.'s Resp. 56.1 P 35; Decision of Administrative Law Judge Lucian A. Vecchio dated March 30, 2007, attachment to Letter from Brian S. Rauch dated Aug. 19, 2008 ("Rauch Letter").)
As a result of the suspension of his benefits, Giangrasso was unable to pay his rent and was forced to leave his residence and live in homeless shelters and on the street. (Pls.' 56.30 Kan. 118, 1 P 36; Def.'s Resp. 56.30 Kan. 118, 1 P 36.) His mental impairments have worsened, as a result of which he has been hospitalized several times. (Pls.' 56.30 Kan. 118, 1 P 36; Def.'s Resp. 56.30 Kan. 118, 1 P 36.) He also states that he has contemplated suicide. (Pls.' 56.30 Kan. 118, 1 P 36; Def.'s Resp. 56.30 Kan. 118, 1 P 36.)
3. Tony Gonzales

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In March 2005, [*11] after having qualified for OASDI early retirement benefits, Tony Gonzales began receiving Social Security retirement payments. (Declaration of Tony Gonzales dated Jan. 2, 2007 P 4.) On August 29, 2005, the SSA sent Gonzales a letter stating that it intended to suspend his benefits because he either had an outstanding arrest warrant for a felony or had violated a condition of probation or parole, although it did not indicate which. (Pls.' 56.30 Kan. 1, 1 P 19; Def.'s Resp. 56.30 Kan. 1, 1 P 19.) The letter referred to a warrant issued in December 1987 with an NCIC offense code of 2499. (Letter from SSA to Tony A. Gonzales dated Aug. 29, 2005, Ex. 11 to Rauch Decl.) In July 2006, the SSA informed Gonzales that he had been overpaid $ 5,463. (Pls.' 56.1 P 24; Def.'s Resp. 56.1 P 24.) In August 2006, the SSA resumed payment of Gonzales's retirement benefits, but withheld a portion each month for the overpayment. (Pls.' 56.1 P 24; Def.'s Resp. 56.1 P 24.)
The parties disagree regarding the basis for the SSA's suspension of benefits. Plaintiffs contend that the suspension was triggered by a warrant erroneously issued in 1965 for violating the terms of Gonzales's probation for a 1962 conviction in California. (Pls.' [*12] 56.1 P 20.) In 2006, Gonzales successfully petitioned a California court to recall and terminate a warrant for violation of probation for this conviction. (Id. P 22.) The SSA, however, asserts that it suspended Gonzales's benefits based on the warrant referenced in its August 2005 letter, which was an outstanding arrest warrant for a 1987 felony; NCIC code 2499, referenced in the letter, indicates car theft. (Def.'s Resp. 56.1 P 20.) This warrant was dismissed in June 2006. (Id. P 22; Form OI-5C for Tony A. Gonzales, Ex. Y to Decl. of Douglas H. Roloff, III dated Feb. 5, 2008.) On July 16, 2008, an administrative law judge ruled that Gonzales's benefits had been suspended erroneously because the 1987 felony warrant on which the SSA had relied was either nonexistent or was a misdated record of the 1965 warrant, which the administrative law judge found would not have justified suspension of benefits. (Decision of Administrative Law Judge Riley J. Atkins dated July 16, 2008 at 3, attachment to Rauch Letter.)
4. Johnny L. Heatherman
In February 1987, Johnny L. Heatherman pleaded guilty to two felonies--aggravated assault and vandalism--in the Court of Common Pleas for Cuyahoga County, Ohio, [*13] and in March 1987 was sentenced to two years' probation. (Def.'s 56.1 in PP 31, 32; Pls.' Resp. 56.1 PP 31, 32; Case Summary and Docket Information at US 001781-82, 001783-84, Ex. N to Richardson Decl.) In September 1987, the same court issued a capias and arrest warrant for Heatherman at the request of the county probation department on the ground that he had violated the terms of his probation. (Def.'s 56.1 PP 34, 35; Pls.' Resp. 56.1 PP 34, 35; Docket Information at US 001783, Ex. N to Richardson Decl.)
Heatherman began receiving OASDI benefits in 2001, retroactive to 1999, because of his bipolar disorder and Reflex Sympathetic Dystrophy, both of which require several medications to control. (Pls.' 56.1 PP 37, 38; Def.'s Resp. 56.1 PP 37, 38.)
SSA received information concerning the outstanding warrant, including the offense code indicating a violation of probation, and, in February 2006, suspended Heatherman's benefits. (Pls.' 56.1 PP 36, 39; Def.'s Resp. 56.1 PP 36, 39.) Heatherman filed a request for reconsideration in March 2006, and the parties disagree as to whether the SSA had adjudicated this request at the time of the filing of the present motions for summary judgment. (Pls.' [*14] 56.1 P 40; Def.'s Resp. 56.1 P 40.)
Since his benefits were suspended, Heatherman has been unable to contribute financially to the support of his wife and three children. (Pls.' 56.30 Kan. 57, 1 P 41; Def.'s Resp. 56.30 Kan. 57, 1 P 41.) He and his wife have filed for bankruptcy, which he states they would not have done had he continued to receive his benefits. (Pls.' 56.30 Kan. 57, 1 P 41; Def.'s Resp. 56.30 Kan. 57, 1 P 41.)
5. Monell White
In November 1979, Monell White pleaded guilty in the Court of Common Pleas for Cuyahoga County, Ohio to breaking and entering a commercial building with the intent to commit theft, and received a sentence of two years' probation. (Def.'s 56.1 PP 49, 50; Pls.' Resp. 56.1 in PP 49, 50; Docket Information at US 001827, Ex. P to Richardson Decl.) In August 1980, the Probation Department requested issuance of an arrest warrant based on White's failure to abide by the terms of his probation, and in September 1980, the Cuyahoga County Court issued a capias and warrant. (Def.'s 56.1 in PP 53, 54; Pls.' Resp. 56.1 PP 53, 54.)
White applied for OASDI benefits in 1991 because of his bipolar and schizoaffective disorders, and began receiving benefits in 1993. (Pls.' 56.1 P 42; Def.'s Resp. 56.1 P 42; Mass [*15] Decl. P 36.) The SSA received information concerning White's arrest warrant, including an offense code indicating a probation violation. (Def.'s 56.1 P 55; Pls.' Resp. 56.1 P 55.) In July 2006, the SSA notified White that his benefits would be suspended based on the outstanding warrant, and in October 2006, the SSA suspended his benefits. (Pls.' 56.1 P 43; Def.'s Resp. 56.1 P 43.) After unsuc-

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cessful efforts in Florida, where he lives, to address the outstanding warrant, White filed a Motion to Terminate Probation in the Cuyahoga County, Ohio court that had issued the warrant. (Pls.' 56.1 PP 44-48; Def.'s Resp. 56.1 PP 44-48.) In November 2006, that court granted White's motion and recalled the warrant. (Pls.' 56.1 P 48; Def.'s Resp. 56.1 P 48.) The SSA then resumed OASDI payments. (Def.'s 56.30 Kan. 45, 1 P 58; Pls.' Resp. 56.30 Kan. 45, 1 P 58.)
II. DISCUSSION
This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). These provisions generally require exhaustion of administrative remedies. See Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996). As determined in the Court's prior opinion, however, this action satisfies the conditions for waiver of the exhaustion requirement. [*16] See Clark, 2007 U.S. Dist. LEXIS 18434, 2007 WL 737489, at *3-4.
A. Summary Judgment Standard
Summary judgment is appropriate if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). The party opposing summary judgment, however, "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence" in support of its factual assertions, D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), such that "'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party,'" Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
B. The Statutory and Regulatory Framework
Pursuant [*17] to Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401 et seq., the SSA provides OASDI benefits that are funded by worker and employer contributions. See id. § 423(c). Pursuant to Title XVI of the Act, the SSA provides need-based SSI to individuals whose income and resources fall below a minimum level. See id. §§ 1382, 1382a, 1382b. In 1996, Congress enacted the SSI suspension provision, which provides, in pertinent part:
No person shall be considered an eligible individual or eligible spouse for purposes of this subchapter with respect to any month if during such month the person is . . . (ii) violating a condition of probation or parole imposed under Federal or State law.
42 U.S.C. § 1382(e)(4)(A). In 2004, Congress extended the prohibition of benefits to recipients of OASDI by adding the OASDI suspension provision:
Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section or under section 423 of this title to any individual for any month ending with or during or beginning with or during a period of more than 30 days throughout all of which such individual . . . (v) is violating a condition of probation or parole imposed [*18] under Federal or State law.
Id. § 402(x)(1)(A).
As part of the 2004 legislation, Congress also authorized the SSA to restore benefits to otherwise ineligible SSI or OASDI recipients for "good cause":
[T]he Commissioner shall, for good cause shown, treat the person referred to in subparagraph (A) as an eligible individual or eligible spouse if the Commissioner determines that . . . (I) a court of competent jurisdiction has found the person not guilty of the criminal offense, dismissed the charges relating to the criminal offense, vacated the warrant for arrest of the person for the criminal offense, or issued any similar exonerating order (or taken similar exonerating action).

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Id. § 1382(e)(4)(B); see id. § 402(x)(1)(B)(iii) (same).
In 2000, the SSA promulgated a regulation to implement the SSI suspension provision. This regulation (the "SSI Regulation") provides, in pertinent part, for suspension of SSI benefits on the first day of the month
in which a warrant or order for the individual's arrest or apprehension, an order requiring the individual's appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order is issued by a court or other duly authorized [*19] tribunal on the basis of an appropriate finding that the individual . . . (C) Is violating, or has violated, a condition of his or her probation or parole . . . .
20 C.F.R. § 416.1339(b)(1)(i). The SSA has not promulgated a corresponding regulation to implement the OASDI suspension provision. (Pls.' 56.1 P 3; Def's Resp. 56.1 P 3.)
The SSA has issued written interpretations of the two statutory suspension provisions and the SSI Regulation in its Program Operations Manual System (the "Manual"), an internal policy guide. (Pls.' 56.1 P 6; Def.'s Resp. 56.1 P 6.) The Manual provides that with respect to SSI benefits,
[p]arole and probation violators are not eligible to receive an SSI benefit beginning with the earlier of: [t]he month in which a warrant, a court order or decision, or an order or decision by an appropriate agency in the United States (e.g. parole board) is issued which finds that the individual . . . is violating a condition of his or her probation or parole; or [t]he first month during which the individual . . . violated a condition of probation or parole, if indicated in such warrant, court order, or decision.
Manual § SI 00530.010(A), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0500530010. [*20] (See US 000005, Ex. E to Dence Decl.) With respect to OASDI benefits, the Manual provides:
Unless good cause is found . . . payment is prohibited for any month in which a beneficiary . . . has an unsatisfied warrant for more than 30 continuous days for: . . . [v]iolation of a condition of Federal or State probation/parole.
Manual § GN 02613.010(A)(1), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0202613010. (See US 000088, Ex. F to Dence Decl.)
C. The SSA's Interpretation of the Statutes and Regulation Is Entitled to Deference
Plaintiffs contend that the statutes, by their terms, permit suspension of Social Security benefits only upon a formal judicial determination that the recipient "is violating a condition of probation or parole." 42 U.S.C. § 402(x)(1)(A)(v); see id. § 1382(e)(4)(A). In their view, suspension of benefits on the basis of a warrant is contrary to the statute because a warrant reflects only a finding of probable cause to believe that a violation has occurred. They characterize the SSA's practice as suspending benefits on a probation or parole officer's "mere allegation" that a benefits recipient has violated a condition of her probation or parole.
As set forth [*21] in the Court's prior opinion in this litigation, however, regardless of the wisdom of the SSA's practice as a matter of policy, it is consistent with the statutes. Plaintiffs' interpretation, in contrast, takes the statutory phrase "is violating" out of its context. See Clark, 2007 U.S. Dist. LEXIS 18434 2007 WL 737489, at *5 ("[S]tatutory interpretation must be 'guided not by a single sentence or member of a sentence, but looking to the provisions of the whole law, and to its object and policy.'" (quoting John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95, 114 S. Ct. 517, 126 L. Ed. 2d 524 (1993))). The suspension provisions themselves are silent as to how the SSA is to determine whether a Social Security recipient "is violating" probation or parole. However, the "good cause" provisions of each statute--which authorize the SSA to restore benefits for good cause--suggest that a warrant is sufficient evidence of a violation to support a suspension of benefits. These provisions permit the SSA to restore suspended benefits to a recipient where "a court of competent jurisdiction has found the person not guilty of the criminal offense, dismissed the charges relating to the criminal offense, [*22] vacated the warrant for arrest of the person for the criminal offense, or issued any similar exonerating order (or taken similar exonerating action)." 42 U.S.C. § 402(x)(1)(B)(iii)(I) (emphasis added); see id. § 1382(e)(4)(B)(i) (same). Because Congress authorized the SSA to restore

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benefits when an arrest warrant has been vacated, it follows that Congress also contemplated that a warrant constitutes a sufficient basis on which to suspend benefits in the first instance. 2
2 The fact that the SSI good faith provision was added in 2004, eight years after the SSI suspension provision was enacted, does not undermine this conclusion. When Congress legislates, it is presumed to be aware of administrative agencies' prior statutory interpretations. See Lorillard v. Pons, 434 U.S. 575, 580, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). According to the SSA, the practice at issue long predates Congress's enactment of the good cause provisions. (Memorandum of Law in Further Support of Defendant's Motion for Summary Judgment 9.) If Congress had deemed the practice inconsistent with the statute, it had the ability to amend the statute to prohibit it. Instead, Congress added a statutory provision that is entirely [*23] consistent with the SSA's practice.
Plaintiffs object that whereas these provisions refer to warrants "for arrest of a person for the criminal offense," a probation or parole violation may not constitute a new criminal offense. Granting that this is so, there is still no indication in the statute that Congress intended to draw a distinction between warrants for criminal offenses and warrants for probation and parole violations. Rather, the good cause provisions explicitly state that they apply to "the person referred to in subparagraph (A)," which includes persons who are violating a condition of their probation or parole. 42 U.S.C. § 402(x)(1)(B)(iii); id. § 1382(e)(4)(B). Under plaintiffs' reading, the good cause provisions would either be entirely inapplicable to persons who violated their probation or parole because the provisions refer exclusively to "criminal offenses" throughout, or else would apply only in the rare instances in which such persons were able to have their underlying convictions vacated. 3
3 Moreover, to the extent that the reference to "criminal offenses" [*24] renders the statute unclear or ambiguous, the SSA's interpretation, as discussed below, is entitled to deference.
The SSA's interpretation is also consistent with the SSI Regulation, the validity of which is not challenged by plaintiffs. As noted, this regulation permits suspension of SSI benefits upon issuance of a "warrant or order . . . requiring the individual's appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order . . . issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual . . . [i]s violating, or has violated, a condition of his or her probation or parole." 20 C.F.R. § 416.1339(b)(1)(i). Although this language clearly authorizes the SSA to suspend benefits on the basis of a warrant for violation of a condition of probation or parole, plaintiffs contend that the words "appropriate finding" require that the warrant have been issued on the basis of a formal judicial determination rather than "mere probable cause." However, plaintiffs fail to cite any statutory or regulatory language giving meaning to the words "appropriate finding," instead appealing to a general intuition that a finding [*25] of "mere probable cause" is not an appropriate basis on which to suspend benefits. Moreover, given plaintiffs' assertion that warrants are rarely, if ever, issued on the basis of formal judicial findings, interpreting the words "appropriate finding" to require a formal judicial finding would render the regulatory provision essentially meaningless. If the SSA, in promulgating the SSI Regulation, had intended to permit suspension of benefits on the basis of a warrant only in very rare instances, it would undoubtedly have said so more explicitly.
Even if there were any doubt whether the statutes and SSI Regulation authorize the SSA's practice of suspending benefits based solely on the existence of an outstanding arrest warrant for a probation or parole violation, the SSA's interpretation of the statutes and its regulation would be entitled to deference. The SSA's interpretation of its own regulation is entitled to "substantial deference," meaning that its interpretation is controlling unless "plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (internal quotation marks omitted). Thus, a [*26] court should defer to an agency's interpretation of its own regulation unless "an alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation." Id. Moreover, although the SSA has not promulgated a parallel regulation to implement the more recently enacted OASDI suspension provision, it has adopted an interpretation in its internal operating Manual that calls for suspension of OASDI benefits on the basis of an outstanding warrant for violation of a condition of probation or parole. Manual § GN 02613.010(A)(1). Because the Manual's guidelines "represent the Commissioner's interpretation of the statutory mandate, they deserve substantial deference, and will not be disturbed as long as they are reasonable and consistent with the statute." Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998).
For the reasons previously set forth, the SSA's practice of suspending benefits on the basis of an arrest warrant is consistent with the plain language of the statutes and the SSI Regulation and is not unreasonable. 4 It is also consistent with "indications of the Secretary's intent at the time of the [*27] regulation's promulgation." Thomas Jefferson Univ.,

2008 U.S. Dist. LEXIS 74399, *

Page 8

512 U.S. at 512. In its published notice of the final version of the SSI Regulation, the Commissioner addressed the objection, echoing plaintiffs' position here, that "unless an individual has been adjudicated by a State or by the Federal government to be in violation of probation or parole, SSA has no basis for discontinuing or denying benefits." 65 Fed. Reg. 40,492, 40,494 (June 30, 2000) (to be codified at 20 C.F.R pt. 416). The Commissioner responded to the objection as follows:
SSI payments will be stopped when a court or other authorized tribunal finds that the individual is violating, or has violated, a condition of his or her probation or parole and the court has either: issued an order for the individual's arrest or apprehension, or issued an order requiring the individual's appearance before a court or other tribunal. Of course, individuals may dispute a finding that they are in violation of their probation or parole with the reporting agency.
Id. Although this response repeats the word "finding," the meaning of which is at the heart of this dispute, it is clear from this passage that the Commissioner contemplated the suspension [*28] of benefits on the basis of the type of "finding" that a court makes prior to issuing an arrest warrant--i.e., a finding of probable cause that the benefit recipient is violating a condition of probation or parole.
4 The SSA's practice is also consistent with the Manual provision regarding suspension of SSI benefits, which substantially tracks the language of the SSI Regulation. See Manual § SI 00530.010(A).
Finally, the SSA's interpretation finds support in the decision of the U.S. Court of Appeals for the Second Circuit in Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005). There, the Second Circuit considered the provision immediately preceding the SSI suspension provision, 42 U.S.C. § 1382(e)(4)(A)(i), which calls for suspension of SSI benefits to any recipient who "is . . . fleeing to avoid prosecution, or custody" for a felony offense. Fowlkes, 432 F.3d at 96. This provision is implemented by the same regulation as the SSI suspension provision, which authorizes suspension of benefits beginning in the month in which a "warrant . . . or similar order issued by a court or other authorized tribunal on the basis of an appropriate finding that the individual . . . [i]s fleeing, or has fled, [*29] to avoid prosecution." 20 C.F.R. § 416.1339(b)(1)(i). The SSA interpreted this statutory and regulatory language to permit suspension of benefits on the basis of an outstanding felony arrest warrant even where there was no indication that the issuing jurisdiction had found the individual to be fleeing to avoid prosecution. Id. The Second Circuit rejected the SSA's interpretation because "for 'flight' to result in a suspension of benefits, it must be undertaken with a specific intent, i.e., to avoid prosecution." Id. at 97. Neither the statute nor regulation "permit[ted] the Commissioner to conclude simply from the fact that there is an outstanding warrant for a person's arrest that he is fleeing to avoid prosecution." Id. at 96 (internal quotation marks omitted).
Significantly, the Second Circuit gave no indication that it would take issue with the SSA's suspension of benefits on the basis of a warrant that did indicate that the recipient was fleeing to avoid prosecution. As the court explained, "the regulation does not permit the agency [*30] to make a finding of flight; rather, it demands a court or other appropriate tribunal to have issued a warrant or order based on a finding of flight." Id. at 97. The SSA's practice in the present case, in contrast to the practice at issue in Fowlkes, is to suspend benefits only where the warrant includes an offense code indicating that it was issued for a probation or parole violation. Thus, unlike in Fowlkes, the SSA does not suspend benefits on its own determination that a warrant was issued for a probation or parole violation.
D. The SSA's Procedures Are Consistent With the Statutes and Regulation
Plaintiffs further contend that the process by which the SSA suspends benefits to probation and parole violators is unreliable and does not represent an "appropriate finding" of a violation within the meaning of the SSI Regulation. Specifically, plaintiffs object to the SSA's practice of relying on offense codes to identify warrants issued for probation and parole violations and in most instances only verifying warrant information to the extent of confirming that the warrants remain outstanding. As a result of the SSA's practice, they argue, some Social Security recipients have had their [*31] benefits suspended erroneously. They contend that the SSA should, at minimum, obtain a copy of the warrant or otherwise ascertain the basis on which it was issued before making a decision that can so dramatically affect the lives of benefit recipients.
It is conceivable that some procedure the SSA could adopt for determining when to suspend SSI benefits would be so unreliable as not to constitute "an appropriate finding that the individual . . . [i]s violating, or has violated, a condition

2008 U.S. Dist. LEXIS 74399, *

Page 9

of his or her probation or parole." 20 C.F.R. § 416.1339(b)(1)(i); see Fowlkes, 432 F.3d at 98 n.4. Plaintiffs have failed to show, however, that the practice the SSA employs reaches that degree of unreliability. Although plaintiffs point to ways in which the SSA's procedures could be made more accurate and less burdensome for benefit recipients, they do not dispute that in the vast majority of cases in which the SSA suspends benefits on the basis of a warrant, the warrant had in fact been issued for violation of probation or parole. Plaintiffs' position would require a sweeping change in SSA procedure on the basis of a single regulatory phrase that does not clearly require it.
Finally, plaintiffs [*32] object to the SSA's practice of relying on warrants to justify a suspension of benefits because some jurisdictions permit a parole or probation officer to issue a warrant without involving a court. They argue that this practice is inconsistent with the good cause provisions, which permit the SSA to restore suspended benefits where "a court of competent jurisdiction has . . . vacated the warrant for arrest of the person for the criminal offense[] or issued any similar exonerating order." 42 U.S.C. § 1382(e)(4)(B)(i) (emphasis added); see id. § 402(x)(1)(B)(iii)(I) (same). They also contend that it is inconsistent with the SSI Regulation, which permits suspension of benefits only where a warrant has been "issued by a court or other duly authorized tribunal." 20 C.F.R. § 416.1339(b)(1)(i).
The SSA does not dispute that some jurisdictions permit nonjudicial officers to issue arrest warrants for probation or parole violations. It correctly notes, however, that the five plaintiffs in this action had their benefits suspended on the basis of warrants issued by courts. Clark's warrant was issued by the California Superior Court for Santa Clara County. (Bench Warrant dated Nov. 27, 2002, at US [*33] 001771, Ex M. to Richardson Decl.) The warrant for which Giangrasso's benefits were suspended was issued by the Florida Circuit Court for Pasco County. (Arrest Warrant dated July 11, 1995, at US 001806, Ex. O to Richardson Decl.) The warrants for both Heathennan and White were issued by Ohio's Cuyahoga County Court of Common Pleas. (Docket Information at US 001783, Ex. N to Richardson Decl.; Docket Information at US 001827, Ex. P to Richardson Decl.) Although there is some disagreement as to which warrant triggered suspension of Gonzales's benefits, plaintiffs do not contend that a warrant for his arrest was issued by a probation officer rather than a court. Therefore, it is not before this Court to decide whether suspension of SSI or OASDI benefits on the basis of a warrant issued by a nonjudicial officer would be consistent with the statutes or regulation. That argument must await another case.
III. CONCLUSION
Plaintiffs have failed to establish that the SSI and OASDI suspension provisions or the SSI Regulation permit suspension of Social Security benefits only after an individual has been formally adjudicated to have violated a condition of probation or parole. The SSA's practice [*34] of suspending benefits upon a warrant based on probable cause is consistent with the statute and regulation and with Second Circuit precedent and is entitled to deference by this Court. Because the practice is lawful, this Court may not substitute its own policy judgment for the SSA's policy judgment. Accordingly, the SSA's motion for summary judgment is granted and plaintiffs' cross-motion for summary judgment is denied. The Clerk of Court is directed to enter judgment in defendant's favor.
Dated: New York, New York
September 22, 2008
SO ORDERED:
/s/ Sidney H. Stein
Sidney H. Stein, U.S.D.J.

 
 Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 1 of 19

Bettina B. Plevan (BP-7460) Steven E. Obus (SO-9791) PROSKAUER ROSE LLP 1585 Broadway New York, NY 10036 (P): 212.969.3000 (F): 212.969.2900

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------- ------------- --- ---- x

ELAINE CLARK, RAYMOND GIANGRASSO, TONY GONZALES, JOHNNY L. HEATHERMAN, and MONELL WHITE, individually on behalf of themselves, and on behalf of all those similarly situated
Plaintiffs,

NATIONWIDE CLASS ACTION COMPLAINT
{; c.v

v.

JO ANNE B. BARNHART, Commissioner of the Social Secmity Administration, in her official capacity, and the SOCIAL SECURITY ADMINISTRATION, Defendants,

Defendants.
---- ------- ------------------ x
INTRODUCTION

1. Plaintiffs bring this class action on behalf of themselves, and on behalf of a

nationwide class of similarly situated individuals to challenge defendants Jo Anne B. BaIllhart

("Commissioner") and Social Security Administrations' ("SSA") (collectively, "Defendants")

unlawful policy of suspending or denying Old Age, Survivors, and Disability Insurance

("OASDI") and/or Supplemental Security Income ("SS1") benefits based on the existence of an

outstanding warrant against the beneficiary for an alleged violation of a probation or parole

condition without a determination and/or finding that such individual has in fact committed such

a violation ("Policy").

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 2 of 19
2. Defendants' Policy is based on a crude computer-matching program, which does not involve any effort to inquire into the facts of individuals' cases or even to verify that the individuals named in the warrants are in fact the individuals whose benefits are being suspended or denied.
3. Defendants' Policy violates the Social Security Act, 42 U.S.C. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii), and the regulations promulgated thereunder. The statute and regulations authorize suspension or denial of benefits only when an individual is found to be actually "violating a condition of probation or parole." Indeed, the Commissioner's own regulation explicitly requires that a suspension or denial of SSI benefits not go into effect except upon a wan'ant or order "issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual ... is violating, or has violated, a condition of his or her probation or parole." 20 C.F.R. § 1339(b) (Emphasis added)
JURISDICTION AND VENUE 4. The Court has jurisdiction over Plaintiffs' claims under 42 U.S.C. §§ 405(g) and 1383(c)(3) as well as 28 U.S.c. § 1361. 5. Venue is proper pursuant to 28 U.S.c. § 1391(b) and 42 U.S.c. § 405(g) in this Court because at least one named Plaintiff resides within this District.
PARTIES 6. Plaintiff ELAINE CLARK is a 63-year-old female who cun'ently resides in Amherst, New York. In or about 1996, Ms. Clark began receiving Social Security Disability Insurance ("SSDI"), a form of OASDI benefits, when she was diagnosed with end-stage renal disease. Since that time, she has been diagnosed with numerous medical conditions, including diabetes mellitus, joint disorders of the lower extremities, hypertension, hyperlipidemia,
2

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 3 of 19
depression, esophagitis reflux, osteoporosis, and anemia. In January 2006, retroactive to January 2005, the SSA unlawfully ceased paying benefits to Ms. Clark based on a wan-ant issued solely on the basis of an allegation that she was violating a condition of probation, notwithstanding the absence of any finding that she had in fact violated any condition of her probation.
7. Plaintiff RAYMOND GIANGRASSO is a 50-year-old male who cun-endy resides in New York, New York. In or about 1987, Mr. Giangrasso began receiving SSI disabHity benefits after recovering from a three-month-Iong coma caused by over-prescribed painkillers and sleep medications. The effects of the coma left Mr. Giangrasso with lasting physical and
psychological damage, which precluded him from working. In January 2004, the SSA
unlawfully stopped paying benefits to Mr. Giangrasso based on a wan-ant issued solely on the basis of an allegation that he was violating a condition of probation, notwithstanding the absence of any finding that he had in fact violated any condition of his probation.
8. Plaintiff TONY GONZALES is a 63-year-old male who cun-ently resides in Oregon City, Oregon. In or about March 2005, Mr. Gonzales began receiving Social Security retirement benefits, a form of OASDI benefits. In or around September 2005, retroactive to March 2005, the SSA unlawfully suspended Mr. Gonzales' benefits based on a wan-ant issued solely on the basis of an allegation that he was violating a condition of his probation. To date, there has been no finding that Mr. Gonzales has in fact violated any condition of his probation.
9. Plaintiff JOHNNY L. HEATHERMAN is a 51-year-old male who cun'ently resides in Binghamton, New York. In or about 2001, Mr. Heatherman began receiving SSDI benefits, retroactive to 1999 after a workplace injury in or about 1997, Since that time, Mr. Heatherman has been diagnosed with, among other things, Reflex Sympathetic Dystrophy ("RSD") and bipolar disorder. Mr. Heatherman requires several medications to control the
3

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 4 of 19
severe pain from RSD and to control his bipolar disorder. Effective February 2006, the SSA unlawfully suspended Mr. Heatherman's SSDI benefits based on a warrant issued solely on the basis of an allegation that he was violating a condition of his probation. To date, there has been no finding that Mr. Heatherman has in fact violated any condition of his probation.
10. Plaintiff MONNELL WHITE is a 56-years-old male and currently resides in Crescent City, Florida. Mr. White commenced receiving SSDI benefits in 1993. Effective October 2006, the SSA stopped paying benefits to Mr. White based on a warrant issued solely on the basis of an allegation that he was violating a condition of probation, notwithstanding the absence of any finding that he had in fact violated any condition of his probation.
11. Defendant JOANNE B. BARNHART is the Commissioner of the SSA. As such, she is charged with administering and supervising all benefits programs administered by SSA nationwide, including OASDI and SSI. Commissioner Barnhart is sued in her capacity as the official charged with performing the statutory and regulatory duties of the SSA and with supervisory responsibility over the SSA and its divisions, agents, employees and representatives.
12. Defendant SOCIAL SECURITY ADMINISTRATION administers and supervises all SSA benefits programs nationwide under the Social Security Act.
13. All divisions, agents, employees and representatives of Defendants were acting within the scope of their agency or employment while making any of the statements and committing any of the acts alleged herein. Defendants and all of their respective divisions, agents, employees and representatives each acted as the agent or representative of each other in committing any of the acts or making any of the statements alleged herein.
4

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 5 of 19
CLASS ACTION ALLEGATIONS 14. Plaintiffs bring this action as a class action pursuant to Rules 23(a), 23(b)(2) and (b)(3), of the Federal Rules of Civil Procedure. 15. Plaintiffs bring this action on behalf of themselves and as representatives of a class of similarly situated persons. The Class consists of: All persons whose SSI or OASDI benefits were suspended or denied, or whose SSI or OASDI benefits are threatened with suspension or denial based solely on the existence of a warrant issued on the basis of an alleged violation of probation or parole without a finding that such individual has violated his or her probation or parole before such suspension or denial. 16. The class is so numerous that joinder of all members is impracticable. While the exact number of class members is currently unknown and only can be obtained through appropriate discovery, on information and belief, there are, at a minimum, tens of thousands of class members. 17. There are questions of law and fact common to all class members that predominate over questions only affecting individual class members, including, among others: (a) whether 42 U.S.c. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii) require a finding that an individual is committing or has committed a violation of probation or parole prior to suspending or denying benefits; and (b) whether Defendants have engaged in a pattern of suspending or denying class members' benefits based solely upon the existence of a warrant and absent a finding that an individual is committing or has committed a violation of probation or parole. 18. Plaintiffs' claims are typical of the claims of all class members, and arise from the same course of conduct by Defendants. The relief sought is common to all class members. In addition, Defendants have acted and continue to act on grounds generally applicable to all class members, thereby making injunctive and declaratory relief appropJiate to the class as a whole.
5

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 6 of 19
19. Plaintiffs will fairly and adequately protect the interests of the class members.
PRESENTMENT AND EXHAUSTION
20. Plaintiffs and class members have presented their claims to the Commissioner within the meaning of 42 U.S.c. § 405(g).
21. Any exhaustion requirement should be waived because Plaintiffs' claims are collateral to their respective claims for benefits, there is irreparable harm, and exhaustion would be futile.
THE PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT
22. Effective August 22, 1996, the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"), Pub. L. No. 104-193,42 US.c. §1382(e)(4), amended the Social Security Act by adding a provision authorizing the SSA to suspend or deny SSI benefits to individuals fleeing to avoid prosecution or sentencing for a felony or who are violating probation or parole for any offense, including misdemeanors, violations and other lesser offenses.
23. The PRWORA provides, in relevant part: No person shall be considered an eligible individual or eligible spouse for purposes of this subchapter with respect to any month during such month the person is (A) fleeing to avoid prosecution, or custody or confinement after conviction, under the law of the place from which the person flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the person flees ...; or (B) violating a condition of probation or parole imposed under Federal or State law. 42 US.c. § 1382(e)(4). 24. In 2004, Congress extended this provision, effective January 1,2005, to all OASDI benefits. See Pub. L. No. 108-203, 42 US.C. §402(x), as amended.
6

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 7 of 19
25. The implementing regulation for 42 U.S.C. § 1382(e)(4) provides, in relevant part:
(1) Suspension of benefit payments because an individual is a fugitive ... is effective with the first day of whichever of the following months is earlier -
(i) The month in which a warrant or order for the individual's arrest or apprehension, an order requiring the individual's appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order is issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual -
(A) Is fleeing, or has fled, to avoid prosecution as described in paragraph (a)(l) of this section; (B) Is fleeing, or has fled, to avoid custody or confinement after conviction as described in paragraph (a)(2) of this section; (C) Is violating, or has violated, a condition of his or her probation or parole as described in paragraph (a)(3) of this section. 20 c.P.R. § 1339(b) (emphasis added).
THE SOCIAL SECURITY ADMINISTRATION'S APPLICATION OF THE PRWORA AND IMPLEMENTING REGULATIONS
26. In 2005, United States Court of Appeals for the Second Circuit had occasion to interpret the subsection of 42 U.S.c. § 1382(e)(4) that makes a person ineligible for SSI benefits if the individual is "fleeing to avoid prosecution" for a felony, holding that the SSA may not conclude, simply from the fact that there is an outstanding warrant for a person's arrest for a felony, that such person is "fleeing to avoid prosecution" within the meaning of 42 U.S.c. § 1382(e)(4). See Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005). Rather, the Court held that "benefits may be suspended only as of the date of a wan'ant or order issued by a court or other auth01ized tribunal on the basis of a finding that an individual has fled or was fleeing from justice." Id. at 97.
7

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 8 of 19
27. Likewise, the SSA's policy of suspending or denying SSDI and SSI benefits solely on the basis of an outstanding wan-ant alleging a probation or parole violation without regard to whether or not there has been a finding that such individual has in fact committed such a violation is unlawful since it does not require any determination of an actual violation before the suspension or denial of benefits.
28. SSA, through its Office of Inspector General ("OIG") has agreements with the National Crime Information Center ("NCIC") maintained by the Federal Bureau of Investigation ("FBI") and with various state and local law enforcement agencies to obtain wan-ant information from their databases with the purpose of matching that infOlmation against SSA's databases of its beneficiaries and recipients. When a match is made, SSA notifies the law enforcement agency and provides the agency "with information that may aid in the apprehension of the individual." SSA, Program Operations Manual System ("POMS") SI 00530.200. If the individual is apprehended and incarcerated, benefits are suspended, not because of this provision but because OASDI benefits cannot generally be paid to an individual who is confined pursuant to a conviction of a criminal offense, 42 U.S.c. § 402(x)(1)(A)(i), and because SSI benefits cannot be paid to an individual who is institutionalized. 20 C.P.R. § 416.211.
29. Only after allowing the law enforcement agency sixty days to E:ecure the individual's arrest or extradition, does OIG place the information regarding the individual into SSA's internal system for notifying the SSA field office so it can begin the process of suspending benefits. SSA, POMS SI 00530.200 & SI 00530.205. Thus, for the most part, those individuals whose benefits are suspended under this provision are not of great interest to law enforcement agencies and in any event law enforcement agencies are not actively seeking their apprehension.
8

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 9 of 19
STATEMENT OF FACTS A. Plaintiff Elaine Clark
30. Plaintiff Clark began receiving SSDI benefits in or about 1996 after being diagnosed with end stage renal disease. She has since received a kidney transplant and is also being treated for diabetes mellitus, joint disorders of the lower extremities, hypertension, hyperlipidemia, depression, esophagitis reflux, osteoporosis and anemia. She takes numerous medications and requires a wheelchair for mobility.
31. SSDI benefits have been Ms. Clark's only source of income. 32. Ms. Clark is enrolled in the Total Aging in Place Program, a m3.naged long-term care plan, and resides in their facility in Amherst, New York. The medical share of the cost of her participation is funded by Medicaid with Ms. Clark paying a small spend-down amount. The remainder of her monthly SSDI benefits check paid the rent to the facility. 33. Ms. Clark first learned that her benefits would be suspended when she received a letter from the SSA, dated December 11, 2005, advising that a warrant had been issued for her arrest because she had allegedly violated the terms of her probation. 34. By letter dated December 30,2005, Ms. Clark's attorney filed a Request for Reconsideration on her behalf, 35. By letter dated January 19,2006, the SSA informed Ms. Clark that her benefits were suspended immediately and that the benefits should have been suspended effective January 2005, but since payments had continued, she had been overpaid $9,235. 36. By letter dated January 26,2006, Ms. Clark's attorney again wrote to the SSA, with an extended Request for Reconsideration on behalf of Ms. Clark.
9

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 10 of 19
37. Almost one year later on December 23,2006, Ms. Clark received a letter from SSA dated December 24, 2006 affirming the initial determination and denying the Request for Reconsideration.
38. The impact on Ms. Clark's life has been devastating as a result of the suspension of her benefits. She has been unable to pay her rent and has been threatened with eviction from the facility. The most current statement from the facility states that she owes $5,741.16 in rent and $946 in her Medicaid share-of-cost for a total of $6,687.16. The facility has given her a referral to a homeless shelter where she fears that someone with her medical conditions would not be able to survive. She sees no hope in her life and has contemplated suicide. Although she has sought counseling, she does not believe it is helping her. Since losing her benefits, she has been hospitalized for falls on two separate occasions, each time fracturing her pelvis, first on the right side and then on the left side. B. Plaintiff Raymond Giangrasso
39. Plaintiff Giangrasso began receiving SSI disability benefits in or about 1987 after recovering from a three-month-Iong coma caused by over-prescribed painkillers and sleep medications. Mr. Giangrasso was left with lasting physical and psychological damage which precluded him from working. Since 1995, Mr. Giangrasso has been hospitalized more than thirty times, suffering from ailments such as a broken collarbone caused by a hit-and-run driver, blood clots, repeated bouts of pneumonia, severe back problems, sinus infections, and petit mal seizures.
10

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 11 of 19
40. By letter dated December 2,2003, Mr. Giangrasso received a Notice of Planned Action from the SSA dated December 2,2003, stating that his benefits would be suspended retroactive to October 1, 2001, due to an outstanding warrant for an alleged violation of probation.
41. With the assistance of the Urban Justice Center, on January 6,2005, Mr. Giangrasso requested good cause for a late appeal, pursuant to 20 C.F.R. § 416.1411, a formal conference with the SSA and that the SSA re-open the determination that suspended his benefits. The SSA acknowledged receipt of that Request for Reconsideration by letter dated February 28, 2005, stating that it would review his file to be sure that a proper decision was made, requested that the Urban Justice Center contact it to schedule a time and place for the formal hearing, and stated that since his SSI case was automatically terminated due to nonpayment for at least twelve months, he must reapply if he wanted to receive benefits. Mr. Giangrasso's Request for Reconsideration was denied in July 2005, but he did not learn of that denial until January 2006.
42. Mr. Giangrasso requested a hearing by an administrative law judge on March 15, 2006 with the assistance of the Urban Justice Center on the basis that he was not a fleeing felon, and by letter dated October 25, 2006, the SSA acknowledged receipt of that request.
43. Based upon a new application, the SSA recently determined that Mr. Giangrasso is eligible to receive benefits as of October 2005, but those benefits have not yet been paid. Furthennore, the SSA has refused to reimburse him for those benefits withheld from January, 2004 to October 2005.
44. The impact on Mr. Giangrasso's life as a result of the suspension of his benefits has been devastating. He became unable to pay his rent and was forced to leave his Brooklyn residence. Mr. Giangrasso's mental impairments have been exacerbated as a result of not
11

Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 12 of 19
receiving benefits, causing him to be in and out of the hospital on several occasions. He has been forced to live in various homeless shelters and on the street where he has been deprived of necessary medications, abused by shelter employees, and had his belongings stolen. Mr. Giangrasso believes that he will not live long, sees no sense in can-ying on with life, and has even planned to commit suicide by throwing himself off of a bridge while weighted down by blicks. C. Plaintiff Tony Gonzales
45. Plaintiff Gonzales began receiving Social Security retirement benefits in March 2005.
46. Mr. Gonzales received from Defendants a pre-suspension letter dated August 29, 2005, stating that the SSA intended to suspend his retirement benefits because of a wan-ant for an alleged violation of probation in Ton-ance, California. Although this notice was supposed to be an advance notice, his benefits were suspended immediately and he did not receive any benefits during the months of September or October 2005.
47. On or about September 27,2005, Mr. Gonzales sent the SSA a Request for Reconsideration, requesting that his benefits continue.
48. The SSA sent Mr. Gonzales a letter dated October 5,2005, stating that his appeal was premature because the SSA's letter only told him what they had "planned" to do, and that this October 5,2005 letter constituted the SSA's "official decision" to suspend his benefits beginning March 2005.
49. On October 13,2005 Mr. Gonzales filed a Request for Reconsideration of the October 5, 2005 notice of suspension.
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50. On behalf of Mr. Gonzales, Ms. Ellen Mendoza of the Legal Aid Services of Oregon, wrote to the SSA by letter dated October 14,2005, stating that Mr. Gonzales previously protested the suspension of his benefits on a Request for Reconsideration form and that he would provide information to establish good cause. In addition, Ms. Mendoza stated that according to the SSA's policy manual, Mr. Gonzales should be given ninety days from his protest (September 27, 2005) to prove that he meets good cause and that in the interim his benefits should continue. Accordingly, Ms. Mendoza requested that the SSA provide Mr. Gonzales with the October 2005 benefits that he did not receive and allow Mr. Gonzales until December 27,2005 to prove his good cause.
51. In response to Ms. Mendoza's October 14, 2005 letter, the SSA wrote to Mr. Gonzales by letter dated October 18, 2005, stating that it had reinstated his benefits for up to ninety days from his initial protest on September 27,2005 and that he had until December 26, 2005 to provide good cause if he wanted his benefits to continue past that date.
52. Prior to the expiration of the ninety day period, the SSA wrote two letters dated November 23,2005 to Mr. Gonzales. The first stated that the SSA had overpaid him $3,428. The second stated that the SSA cannot pay him benefits beginning March 2005, and that because the SSA had previously paid him benefits for the period March 2005 through September 2005, he was paid $3,801 more than he was due.
53. With the assistance of Ms. Mendoza, on or about December 21,2005, Mr. Gonzales completed a Request for Reconsideration (acknowledged as received on December 21, 2005) to appeal the determinations contained in the November 23,2005 notices. His Request for Reconsideration was denied by letter dated December 28, 2005.
54. With the assistance of Ellen Mendoza of the Legal Aid Services of Oregon, on or
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about January 23,2006, Mr. Gonzales completed and filed a Request for Hearing by Administrative Law Judge. By letter dated January 30,2006, the SSA acknowledged that request. To date, Mr. Gonzales not been notified that that the hearing has been scheduled.
55. In June 2006, Ms. Mendoza provided SSA with a court order disposing of the warrant and SSA agreed to restore Mr. Gonzales benefits on a prospective basis only.
56. SSA sent Mr. Gonzales a notice dated July 19,2006 telling him that he had been overpaid $5,463. He began receiving retirement checks again in August 2006, but the SSA withholds a portion of the benefit each month to recover the alleged overpayment.
57. The impact on Mr. Gonzales' life has been devastating. The loss of benefits has caused considerable emotional distress. No one at SSA offered him any assistance whatsoever and he has had to obtain assistance from attorneys in Oregon and California to assist him. D. Plaintiff Johnny L. Heatherman
58. Plaintiff Heatherman began receiving SSDI disability benefits in 2001, retroactive to 1999.
59. Mr. Heatherman suffers from bipolar disorder and Reflex Sympathetic Dystrophy (RSD), both of which require several medications to control.
60. In November 2005, Mr. Heatherman received from Defendants a pre-suspension letter stating that, because he allegedly had violated the conditions of his probation, his SSDI benefits would be suspended.
61. Upon receiving the pre-suspension letter, Mr. Heatherman called the telephone number provided in the notice to infonn the SSA that there had been a mistake, to advise them that he had not violated the terms of his probation, and to find out what he needed to do to ensure that the SSA would not suspend his benefits.
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62. Notwithstanding Mr. Heathennan's repeated attempts to provide the SSA with all the infonnation it requested, he received a suspension notice from the SSA in January 2006, advising that his benefits would stop immediately. Mr. Heatherman again called the number provided on the notice and asked for an appeal fonn, but the individual who answered the telephone told Mr. Heathennan that SSA would not send him such a fonn because there was no reason to appeal the suspension until the alleged warrant that had been issued with respect to him had been cleared.
63. Mr. Heathennan then called the local SSA office and spoke to another individual who also proved to be of no assistance. Notwithstanding his efforts, Mr. Heathennan's benefits were suspended effective February 2006.
64. Eventually, on or about March 10,2006, Mr. Heathennan received and filed a Request for Reconsideration. To date, SSA has taken no action on his Request for Reconsideration.
65. The impact on Mr. Heatherman and his family as a result of the suspension of his benefits has been devastating. They are hardly able to make ends meet and are without medical coverage. In fact, as a result of his suspension of benefits, Mr. Heathennan is in the process of filing for bankruptcy. E. Plaintiff Monnell White
66. In 1991, Mr. White applied for benefits on the basis of a bipolar disorder and schizoaffective disorder, which is a combination of psychotic and mood disorder symptoms. Mr. White, however, did not begin receiving SSDI disability benefits until 1993.
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67. Through a letter dated July 19, 2006, which he received in August 2006, Mr. White first learned that the SSA intended to suspend his benefits because of an alleged warrant for violation of probation in Cleveland, Ohio.
68. Upon receipt of that July 19, 20061etter, Mr. White visited the SSA office in Palatka, FIOlida where he was told to speak with the police in Cleveland, Ohio. Mr. White then went to the local police department in Crescent City, Florida and contacted the Cuyahoga County Sheriff's Department in Ohio. The Ohio authorities stated they were not interested in extraditing Mr. White. Although he requested that they provide him with some documentation reflecting that decision, they refused to do so.
69. Mr. White called the SSA with the information he learned from the Ohio authOlities, but was told that the SSA needed documentary proof from the Ohio authorities to restore his benefits. Notwithstanding the foregoing, when Mr. White received his September 2006 benefits check, he thought the issue had been resolved. Towards the end of September 2006, however, after Mr. White received his September benefits check, he received a notice of benefit suspension dated September 8,2006.
70. Mr. White then returned to the Crescent City, Florida police department and asked to be atTested on the basis of the Cleveland, Ohio warrant, but the police refused to arrest him.
71. Also in September, 2006, Mr. White called the SSA office and was told that he could not file an appeal until he had documentary proof from the Ohio authOlities.
72. Thereafter, Mr. White went to the Christian Service Center in Crescent City, Florida and, with the assistance of volunteer Martha Adams, contacted the Cuyahoga County Prosecutors' Office to have the matter resolved. The Christian Service Center contacted the Legal Aid Society of Cleveland which assisted Mr. White in filing a Motion to Telminate
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Probation on November 6, 2006. On November 20, 2006, the Court of Common Pleas, Cuyahoga County, Ohio, granted that motion and recalled its warrant.
73. On November 29,2006, the Legal Aid Society of Cleveland sent to the SSA the Court's order and requested that his benefits be restored.
74. Through a letter dated December 11,2006, the SSA informed Mr. White that he was eligible for benefits beginning December 2006, but that his benefits would be withheld in their entirety to recover an alleged and unspecified overpayment. The SSA informed him in its letter that he will not receive benefits until March 3,2009.
75. Although on or about December 22,2006, Mr. White was told at the Palatck, FL Field Office that his benefits would be fully reinstated and that an immediate payment would be issued, he has yet to receive any payment or any written confirmation of that decision.
76. The impact on Mr. White's life as a result of the suspension of benefits has been tremendous. His common-law wife of many years who is severely disabled had to leave to stay with a daughter in Baltimore since he could no longer provide for her needs. In addition he was threatened with eviction from his apartment since he cannot pay the rent, and he has no prospects of receiving any money for even the most basic life necessities, including food and shelter.
FIRST CAUSE OF ACTION: VIOLATION OF THE SOCIAL SECURITY ACT AND ITS IMPLEMENTING REGULATIONS 77. Paragraphs 1-76 are each re-alleged and incorporated as if fully set forth herein. 78. The Social Security Act and the regulations promulgated thereunder, 42 U.S.c. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii); 20 C.F.R. § 1339(b), prohibit Defendants from suspending or denying benefits provided to claimants without a finding that the claimant is violating or has violated his or probation or parole.
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79. By relying merely upon the existence of a walTant in place of such a finding, Defendants have acted and continue to act in violation of the Social Security Act and the regulations promulgated thereunder.
PRAYER FOR RELIEF
80. WHEREFORE Plaintiffs request that the Court: (a) Assume jurisdiction over this matter; (b) Certify this action as a class action; (c) Declare that the Commissioner's interpretation and imr;lementation of 42
U.S.c. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii) is unlawful; (d) Preliminarily and permanently enjoin the Commissioner from continuing
to implement 42 U.S.c. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii) in a manner inconsistent with law;
(e) Preliminarily and permanently enjoin the Commissioner from suspending or denying OASDI or SSI benefits on the grounds that there has not been a determination and/or finding by a court or other appropriate tribunal that claimants are violating, or have violated, their probation or parole plior to a determination to suspend or deny benefits;
(f) Preliminarily and permanently enjoin the Commissioner immediately to re-adjudicate all suspensions and denials made pursuant to 42 U.S.C. §§ 402(x)(1)(A)(v) and 1382(e)(4)(A)(ii) and reverse all determinations where benefits were suspended or denied unless it can be ascertained that prior to the suspension or denial there was a WaITant or order issued by a COUlt or other duly authorized tribunal on the basis of a finding that the individual was violating a condition of probation or parole;
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Case 1:06-cv-15521-SHS Document 1 Filed 12/28/06 Page 19 of 19

(g) Award Plaintiffs costs, disbursements, and reasonable attorney's fees; and

(h) Grant Plaintiffs such other and further relief as the Court may find just,

proper, and equitable.

Dated December 28, 2006

Respectfully submitted, PROSKAUER ROSE

Of Counsel: Proskauer Rose LLP Russell L. Hirschhorn Brian Rauch

By: ~~=-=-~=-P~~~~~ Bettina B. P an (BP-7460) Steven E. Obus (SO-9791)
1585 Broadway New York, NY 10036
(P): 212.969.3065 (F): 212.969.2900

Urban Justice Center Jennifer Parish 666 Broadway New York, NY 10012 (P): (646)602-5644

National Senior Citizens Law Center
Gerald~clntyre
3435 Wilshire Boulevard, Suite 2860 (P): 213-639-0930, ext. 300 (F): 213-639-0934

19

 
 Case 1:06-cv-15521-SHS Document 23 Filed 03/08/07 Page 1 of 13

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------x

ELAINE CLARK, RAYMOND GIANGRASSO, :

TONY GONZALES, JOHNNY L.

:

HEATHERMAN and MONELL WHITE,

:

individually on behalf of themselves

:

and on behalf of all those similarly situated,

:

:

Plaintiffs,

:

:

-against-

:

:

MICHAEL J. ASTRUE, Commissioner of the

:

Social Security Administration, in his official

:

capacity, and the SOCIAL SECURITY

:

ADMINSTRATION, 1

:

Defendants.

:

-----------------------------------------------------------------x

SIDNEY H. STEIN, U.S. District Judge.

06 Civ. 15521 (SHS) OPINION & ORDER :

I. Introduction Plaintiffs Elaine Clark and Johnny L. Heatherman bring this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), as well as 28 U.S.C. § 1361, challenging the Social Security Administration’s (“SSA”) interpretation of the statutes that provide for suspending or denying Social Security payments to individuals who have violated a condition of probation or parole. Specifically, plaintiffs contend that the SSA violates 42 U.S.C. §§ 1382(e)(4)(A)(ii) and 402(x)(1)(A)(v) – as well as the accompanying regulations found at 20 C.F.R. § 416.1339(b) – by suspending benefits based on the mere existence of outstanding warrants for violations of probation or parole, as opposed to waiting to suspend benefits until after a final determination

1 Michael J. Astrue, who became Commissioner of the Social Security Administration on February 12, 2007, is substituted as a defendant pursuant to Fed. R. Civ. P. 25(d)(1). In addition, because the only proper party to an action involving social security claims is the Commissioner of the SSA, see 42 U.S.C. § 405(g); Keesing v. Apfel, 124 F. Supp. 2d 134, 135 (N.D.N.Y. 2000), the Social Security Administration is dismissed as a defendant.
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that a condition of probation or parole has in fact been violated. Plaintiffs seek to represent a putative class of similarly situated individuals, 2 and they have moved for a temporary restraining order and a preliminary injunction essentially requiring the immediate reinstatement of benefits and a declaration that the SSA policy violates the applicable statutes.
Plaintiffs commenced this action by filing the complaint and moving by order to show cause for a temporary restraining order, preliminary injunction, and expedited discovery. The Court subsequently denied plaintiffs’ request for a temporary restraining order and held oral argument on plaintiffs’ motion for a preliminary injunction. Defendants have answered the complaint and have both opposed the motion for preliminary injunction and cross-moved for summary judgment.3 As explained below, because plaintiffs have not shown a likelihood of success on the merits, their motion for a preliminary injunction is denied.
II. Background A. The SSA’s Policies and Procedures for Terminating Benefits for Violations of Probation or Parole. The SSA’s Office of the Inspector General obtains information on outstanding warrants
from the National Crime Information Center (“NCIC”) of the Federal Bureau of Investigation (“FBI”) as well as from the United States Marshals Service. (Declaration of Michael J. McGill dated Jan. 31, 2007 (“McGill Decl.”), ¶¶ 4-5; Declaration of Gareth Dence dated Feb. 1, 2007 (“Dence Decl.”), ¶ 3.) The SSA also obtains warrant information from a variety of state and local law enforcement agencies. (McGill Decl. ¶ 4; Dence Decl. ¶ 3.)
2 As of this date, plaintiffs have not moved for certification of a class. 3 Because the briefing on defendants’ motion for summary judgment has not yet been completed, that motion is not ripe for determination, although defendants’ affidavits in support of its cross-motion for summary judgment are also part of its opposition to plaintiffs’ motion for a preliminary injunction.
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The NCIC has developed uniform offense codes which most law enforcement agencies use when providing warrant information. (McGill Decl. ¶ 7.) NCIC offense code “5011” designates an individual as a parole violator and offense code “5012” designates an individual as a probation violator. (Id.) The SSA uses these uniform offense codes and other available information to identify warrants that have been issued by a court or other tribunal expressly for a probation or parole violation. (McGill Decl. ¶ 7, Ex. B; Dence Decl. ¶ 3.) The SSA does not suspend benefits for a probation or parole violation based upon a general arrest warrant that lacks a finding that a specified beneficiary is violating the conditions of his or her probation or parole. (Dence Decl. ¶ 3.) The SSA interprets the statutory scheme and implementing regulations to require that a warrant be issued expressly due to a probation or parole violation before it will suspend benefits. (Declaration of Brian Cronin dated Feb. 1, 2007, ¶ 9.)
B. The Named Plaintiffs. 1. Elaine Clark
Elaine Clark began receiving Social Security Disability Insurance (“SSDI”) benefits in 1996, after being diagnosed with end stage renal disease. (Declaration of Elaine Clark dated Jan. 2, 2007 (“Clark Decl.”) ¶ 4.) She has since received a kidney transplant and is also being treated for diabetes mellitus, joint disorders of the lower extremities, hypertension, hyperlipidemia, depression, esophagitis reflux, osteoporosis and anemia. (Id. ¶ 3.) She takes numerous medications and requires a wheelchair for mobility. (Id.) Clark is enrolled in the Total Aging in Place Program, a managed long-term care plan, and resides in its facility in Amherst, New York. (Id. ¶ 1.) The medical share of the cost of her participation in that program is funded by Medicaid. (Id.) The remainder of her monthly SSDI benefits check paid her rent at the facility. (Id.)
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Ms. Clark has also been on California state probation since 1999. (Declaration of Bertha Richardson dated Jan. 31, 2007 (“Richardson Decl.”), Ex. M at US001773.) On November 21, 2002, the Superior Court of the State of California held a hearing and considered evidence that Clark had violated the conditions of her probation by failing to: (i) maintain contact with the Probation Department; (ii) pay court ordered restitution; and (iii) complete 300 hours of community service. (Id., Ex. M at US001773-76.) That same day, based on the hearing, the Superior Court determined that she “failed to comply with terms of probation,” and issued a bench warrant for Clark. (Id., Ex. M at US001779-80.)
Clark first learned that her SSDI benefits were going to be suspended when she received a letter from the SSA, dated December 11, 2005, informing her that an arrest warrant had been issued. (Clark Decl. ¶ 7.) Six weeks later, on January 19, 2006, the SSA informed Ms. Clark that her benefits were suspended immediately and that the benefits should have been suspended effective January 2005, but since payments had continued, she had been overpaid $9,235. (Id. ¶ 10.) Nearly one year after filing a timely Request for Reconsideration (id. ¶ 11), Ms. Clark received a letter from SSA dated December 24, 2006 affirming the initial determination and denying her Request for Reconsideration. (Id. ¶ 12.)
Because she has not received her SSDI benefits for more than one year, Clark has been unable to pay her rent and has been threatened with eviction from the facility. (Id. ¶ 3.) She currently owes the facility $6,687.16. (Id. ¶ 19.) The facility has given her a referral to a homeless shelter where she fears that someone with her medical conditions would not be able to survive. (Id. ¶ 3.) Since losing her benefits, she has been hospitalized twice after fracturing her pelvis. (Id. ¶ 19.)
2. Johnny Heatherman
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In February 1987, Johnny L. Heatherman pleaded guilty to aggravated assault and vandalism in an Ohio state court and was sentenced to probation for two years. (Richardson Decl. at ¶ 4, Ex. N at US001781, 001783-85, 001790.) In September 1987, the Ohio Probation Department concluded that Heatherman had refused to abide by the terms of his probation. (Id., Ex. N at US001790.) Accordingly, the Cuyahoga County Court subsequently issued an arrest warrant for Heatherman based upon that finding. (Id., Ex. N at US001781-83, 001790, 00188890.)
Almost thirteen years later, in February 2000, Heatherman applied to SSA for disability benefits. (Declaration of Dennis Mass dated Feb. 1, 2007 (“Mass Decl.”), at ¶ 17, Ex. R at US001141.) Although SSA initially determined that Heatherman was not disabled, the agency eventually approved his application in November 2001, making benefit payments retroactive to March 1999. (Id., Ex R at US001137-41; Declaration of Johnny L. Heatherman dated Jan. 3, 2007 (“Heatherman Decl.”) ¶ 4.) Heatherman suffers from bipolar disorder and Reflex Sympathetic Dystrophy, which require several medications to control. (Heatherman Decl. ¶ 4.)
Following the approval of Heatherman’s benefit payments, Ohio State law enforcement authorities notified SSA about Heatherman’s outstanding warrant, including the offense code “5012” indicating a violation of probation. (Mass Decl. ¶ 18; Dence Decl. ¶ 19, Ex. I.) Upon receiving this information, SSA confirmed that Heatherman’s identity matched a recipient of SSA benefits, verified the warrant, and concluded that an appropriate finding of a probation violation existed sufficient to initiate the process of suspending his benefits. (Id. ¶ 19.) Consequently, SSA sent advance notice of the proposed suspension to Heatherman in September 2005 and again in December 2005. (Id., Ex R. at US001095-1102.) Heatherman’s disability benefits were suspended either in January or February 2006. (Id. ¶ 20, Ex. R. at US001099-
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1108; Heatherman Decl. ¶ 7.) Heatherman subsequently filed a Request for Reconsideration, which according to defendants, was denied. (Mass Decl. ¶ 21, Ex. R at US001112-13, 00116170; Heatherman Decl. ¶¶ 11-12.)
According to Heatherman, the impact of the suspension on him has been “devastating.” (Heatherman Decl. ¶ 3.) Not only has he been unable to contribute to the financial support of his wife and three children, but also he and his wife have filed for bankruptcy. (Id.)
3. Raymond Giangrasso and Monell White Because plaintiffs Raymond Giangrsso and Monell White are currently receiving social security benefits, plaintiffs have withdrawn their request for a temporary restraining order in regard to these plaintiffs. (Plts.’ Reply Mem. of Law dated Feb. 14, 2007, at n.2.)
4. Tony Gonzales It appears at this stage of the litigation that plaintiff Tony Gonzales was suspended not because of violation of probation or parole, but rather because he was a fugitive felon. (Dence Dec. at ¶ 22; Ex. L.) Discovery will be permitted on that issue as the litigation proceeds. III. Discussion A. Subject Matter Jurisdiction and Exhaustion of Remedies The SSA asserts that because 42 U.S.C. §§ 405(g) and (h) require SSA beneficiaries to exhaust available administrative remedies as a prerequisite to suing in federal court, this Court lacks jurisdiction over this dispute. See Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996) (“[A] federal court may review a Medicare determination such as this only where a claimant has obtained a final agency decision.”); Mathews v. Chater, 891 F. Supp. 186, 188 (S.D.N.Y. 1995) (“It is well settled that under 42 U.S.C. §§ 405(g) and (h), judicial review of Social Security benefit determinations is limited to ‘final’ decisions of the Commissioner made after a
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hearing, that available administrative procedures must be exhausted and that a final decision is a prerequisite for subject matter jurisdiction in the District Court.”), aff’d, 101 F.3d 681 (2d Cir. 1996).
In response, plaintiffs contend that this Court should waive the exhaustion requirement. The U.S. Court of Appeals for the Second Circuit has outlined the criteria a court should employ when deciding whether to waive the exhaustion requirement. As Judge Joseph M. McLaughlin wrote for a panel of the Second Circuit, “[h]oary ritual” requires a recitation of those criteria as follows: “(1) whether the claim is collateral to a demand for benefits; (2) whether exhaustion would be futile; and (3) whether the plaintiffs would suffer irreparable harm if required to exhaust their administrative remedies before obtaining relief.” Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir. 1992). Here, the Court finds it appropriate to waive the requirement that plaintiffs exhaust their administrative remedies prior to bringing this litigation on the grounds that it would be futile for plaintiffs to challenge the Secretary’s interpretation of the statute in administrative hearings. As Judge McLaughlin wrote in Abbey, “[T]he policy of permitting an agency to correct its own errors is chimerical when the challenge is to regulations promulgated and consistently enforced by the agency, and which the agency has either no power, or no inclination, to correct.” Id. at 45; see also, Ellis v. Blum, 643 F.2d 68, 78 (2d Cir. 1981) (“[I]t would be foolish to expect the [predecessor to the SSA Commissioner] in an adjudicatory administrative proceeding to take steps to remedy what plaintiff alleges to be a full-blown policy” of the defendants.). Given that the SSA takes the position in this action that its interpretation of the statute is correct, there is no reason to believe that the agency would reinstate plaintiffs’ benefits through the administrative process. This Court waives the exhaustion requirement because of the
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futility of requiring plaintiffs to exhaust their administrative remedies. Accordingly, this Court has subject matter jurisdiction over this dispute.
B. Preliminary Injunction Standard A party seeking a preliminary injunction must demonstrate “‘(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.’” MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 192 (2d Cir. 2004) (quoting Merkos L’inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002)). However, “where a moving party challenges government action taken in the public interest pursuant to a statutory or regulatory scheme” – as is the case here – “the moving party cannot resort to the ‘fair ground for litigation’ standard, but is required to demonstrate irreparable harm and a likelihood of success on the merits.” Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citations and internal quotation marks omitted); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 424 (2d Cir. 2004) (In situations where a plaintiff seeks a preliminary injunction against “government action taken in furtherance of a regulatory or statutory scheme, which is presumed to be in the public interest” the “plaintiff must meet a ‘more rigorous likelihood-of-success standard.’”) (internal citation omitted.) Thus, in order to obtain a preliminary injunction, plaintiffs must demonstrate both irreparable harm and a likelihood of success on the merits. C. Likelihood of Success on the Merits. Plaintiffs contend that the SSA’s practice of suspending benefits based solely on a warrant for a violation of probation or parole violates 42 U.S.C. §§ 1382(e)(4)(A)(ii) and
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402(x)(1)(A)(v), as well as the accompanying regulations found at 20 C.F.R. § 416.1339(b). The relevant portion of the statute provides as follows:
No person shall be considered an eligible individual or eligible spouse for purposes of this subchapter with respect to any month if during such month the person is . . . (ii) violating a condition of probation or parole imposed under Federal or State law.
24 U.S.C. § 1382(e)(4)(A)(ii). Notwithstanding any other provision of this subchapter, no monthly benefits shall be paid under this section or under section 423 of this Title to any individual for any month ending with or during or beginning with or during a period of more than 30 days throughout all of which such individual . . . (v) is violating a condition of probation or parole imposed under Federal or State law.
42 U.S.C. §§ 402(x)(1)(A)(v). In addition, the implementing regulations provide that the suspension of benefits become effective:
The month in which a warrant or order for the individual’s arrest or apprehension, an order requiring the individual's appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order is issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual . . . [i]s violating, or has violated, a condition of his or her probation or parole . . . . 20 C.F.R. § 416.1339(b). Based on this language – and in particular relying on the word “is” – plaintiffs contend that a plain reading of the statute requires a finding by “a court or other appropriate tribunal” that a recipient “is violating a condition of his or her probation or parole.” Plaintiffs assert that the SSA may not suspend benefits simply because an arrest warrant has been issued because such a warrant merely represents a conclusion that there is probable, or reasonable, cause to believe the benefit recipient has violated probation or parole. An arrest warrant, plaintiffs urge, is not a finding that the recipient “is violating” probation or parole.
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However, statutory interpretation must be “guided not by a single sentence or member of a sentence, but looking to the provisions of the whole law, and to its object and policy.” John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95, 114 S. Ct. 517, 126 L. Ed. 2d 524 (1993) (internal citation and quotation marks omitted). Here, plaintiffs’ proposed statutory construction is unpersuasive in light of express statutory language reflecting that Congress contemplated and intended for the SSA to suspend benefits based on a warrant alone. Specifically, the “good cause” provision of the statute provides that:
[T]he Commissioner shall, for good cause shown, pay the individual benefits that have been withheld or would otherwise be withheld . . . if the Commissioner determines that . . . a court of competent jurisdiction has found the individual not guilty of the criminal offense, dismissed the charges relating to the criminal offense, vacated the warrant for arrest of the individual for the criminal offense, or issued any similar exonerating order . . . . 42 U.S.C. § 402(x)(1)(B)(iii) (emphasis added). See also, 42 U.S.C. § 1382(e)(4)(B) (same). Clearly, if Congress gave the Commissioner the authority to re-institute benefits after a warrant has been vacated, then a priori Congress intended that the agency was authorized by statute to suspend benefits based on such a warrant. To find otherwise would render meaningless the “good cause” provision of the statute. As the U.S. Supreme Court has recognized, “legislative enactments should not be construed to render their provisions mere surplusage.” Dunn v. Cftc, 519 U.S. 465, 472, 117 S. Ct. 913, 137 L. Ed. 2d 93 (1997) (citations omitted). Plaintiffs seek succor in the recent decision of the Second Circuit in Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005). In that case, the Second Circuit interpreted 43 U.S.C. § 1382(e)(4)(A)(i), which is immediately prior in the U.S. Code to the provision at issue here, 43 U.S.C. § 1382(e)(4)(A)(ii). Fowlkes, 432 F.3d at 96. Indeed, 42 U.S.C. § 1382(e)(4)(A)(i) utilizes language parallel to 42 U.S.C. §§ 1382(e)(4)(A)(ii) in that it provides for suspension of
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benefits for an individual who “is . . . fleeing” whereas the statutory provision at issue in this action does the same for an individual who “is . . . violating a condition of probation or parole.”
In Fowlkes, the SSA had suspended the claimant’s benefits based on a warrant that indicated only that the claimant had been indicted for larceny – a felony – and was silent as to whether the issuing jurisdiction had found that the claimant was a fleeing felon. Fowlkes, 432 F.3d at 92, 97-98. The Second Circuit held that “[t]he Commissioner’s current interpretation is not a permissible construction of either the statute or the regulation because it contemplates suspension of benefits without any finding of ‘flight’ by the agency, a court, or other tribunal.” Id. at 97. The Court ruled that “benefits may be suspended only as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that an individual has fled or was fleeing from justice.” Id. In other words, the Second Circuit found impermissible the Commissioner’s interpretation because the SSA was suspending benefits pursuant to 42 U.S.C. § 1382(e)(4)(A)(i) based on warrants that contained no finding that there was probable cause to believe the person “is . . . fleeing,” as was required by Section 1382(e)(4)(A)(i).
In the present case, to the contrary, the SSA has shown that that it suspends benefits pursuant to 42 U.S.C. §§ 1382(e)(4)(A)(ii) based only on warrants that specifically address violations of probation or parole, as opposed to general arrest warrants. (McGill Decl. ¶ 7, Ex. B; Dence Decl. ¶ 3.) The SSA has developed a system with the NCIC by which it relies only on warrants that possess the uniform codes “5011” and “5012,” which, as noted above, designate, respectively, an individual as a parole or probation violator. (McGill Decl. ¶ 7.)
Indeed, the SSA suspended the benefits of both Clark and Heatherman only after state courts had issued warrants specifically addressed to violations of probation. With respect to
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plaintiff Clark, the Superior Court of the State of California held a hearing and considered evidence that Clark had violated the conditions of her probation by failing to: (i) maintain contact with the Probation Department; (ii) pay court ordered restitution; and (iii) complete 300 hours of community service. (Richardson Decl., Ex. M at US001773-76.) That same day, based on the hearing, the Superior Court determined that she “failed to comply with terms of probation,” and issued a bench warrant for Clark. (Id., Ex. M at US001779-80.) With respect to Heatherman, the Ohio Probation Department concluded that Heatherman had refused to abide by the terms of his probation (Id., Ex. N at US001790), and consequently, the state court issued an arrest warrant for Heatherman based upon that finding. (Id., Ex. N at US001781-83, 001790, 001888-90.) Heatherman’s warrant was reported to the SSA with the specific offense code “5012,” indicating a violation of probation. (Mass Decl. ¶ 18; Dence Decl. ¶ 19, Ex. I.) Therefore, the SSA practice that plaintiffs challenge in the present action is patently distinguishable from that invalidated by the Second Circuit in Fowlkes.
In addition, the Fowlkes ruling recognizes that warrants can constitute an appropriate finding of a violation under the statutory scheme relevant here. The Second Circuit ruled that “benefits may be suspended only as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that an individual has fled or was fleeing from justice.” Fowlkes, 432 F.3d at 97 (emphasis added). Applying this logic to the present case, benefits may be suspended only as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that an individual has violated a condition of probation or parole.
An agency’s interpretation of its own statute and regulation “must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Thomas Jefferson
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 Case 1:06-cv-15521-SHS Document 73 Filed 03/18/11 Page 1 of 18

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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RYAN CLARK, JOY JORDAN, RAYMOND

:

GIANGRASSO, TONY GONZALES,

:

JOHNNY L.HEATHERMAN,

:

and MONELL WHITE, individually and

:

on behalf of themselves, and on

:

behalf of all those similarly situated,

:

:

Plaintiffs,

:

:

-against-

:

:

MICHAEL J. ASTRUE, Commissioner of the

:

Social Security Administration, in his official

:

capacity,

:

:

Defendant.

:

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06 Civ. 15521 (SHS) OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

The Social Security recipients who brought this putative class action have established

previously in this litigation that the Social Security Administration’s policy of withholding

benefits for individuals with an outstanding arrest warrant for a violation of probation or parole

is invalid. They now move for certification of a class consisting of all individuals who, dating

back to August 22, 1996, were deprived of benefits as a result that practice. The Court certifies a

class that shall consist of only those individuals whose benefits were denied or suspended on or

after October 29, 2006. Individuals receiving adverse benefit decisions before that date are

excluded from the class because plaintiffs have not demonstrated that their claims are timely.

I. BACKGROUND

The facts of this case have been recounted in detail in decisions by this Court and the

United States Court of Appeals for the Second Circuit. See Clark v. Astrue (“Clark III”), 602

F.3d 140 (2d Cir. 2010); Clark v. Astrue (“Clark II”), No. 06 Civ. 15521, 2008 WL 4387709

Case 1:06-cv-15521-SHS Document 73 Filed 03/18/11 Page 2 of 18
(S.D.N.Y. Sept. 22, 2008); Clark v. Astrue (“Clark I”), No. 06 Civ. 15521, 2007 WL 737489 (S.D.N.Y. Mar. 8, 2007). In a nutshell, Congress amended the Social Security Act—first in 1996, again in 2004—to prohibit the payment of Supplemental Security Income (“SSI”) and OldAge, Survivor, and Disability Insurance (“OASDI”) benefits to persons “violating a condition of probation or parole imposed under Federal or State law.” Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 202(a), 110 Stat. 2105, 2185-86 (codified at 42 U.S.C. § 1382(e)(4)(A)(ii)); Social Security Protection Act of 2004, Pub. L. No. 108-203, § 203(a)(4), 118 Stat. 493, 509 (codified at 42 U.S.C. § 402(x)(1)(A)(v)). To enforce these new exclusions, the Social Security Administration (“SSA”) adopted a practice of denying or revoking benefits if an individual had an outstanding arrest warrant for a parole or probation violation. See Clark II, 2008 WL 4387709 at *1-2.
Plaintiffs brought this putative class action in late 2006 seeking (1) a declaration that the amendments to the Social Security Act did not permit the SSA to deny benefits based solely on the existence of a warrant and (2) an injunction requiring the SSA to re-adjudicate adverse determinations made on this faulty basis. (Comp. ¶ 80.) On cross-motions for summary judgment, plaintiffs argued that the SSA could not find that an individual was “violating a condition of probation or parole,” 42 U.S.C. §§ 402(x)(1)(A)(v), 1382(e)(4)(A)(ii), on the basis of a warrant issued upon probable cause because the statute requires a greater evidentiary threshold than probable cause. Concluding that the reliance on warrants was consistent with the statute, this Court granted judgment for the SSA. Clark II, 2008 WL 4387709 at *11.
The Second Circuit vacated that decision on appeal. Clark III, 602 F.3d at 152. The panel reasoned that generally “when Congress provides that a fact triggers civil legal consequences, it is requiring a finding that the fact is more likely than not true.” Id. at 148.
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Finding no reason to deviate from this general rule, it concluded that the SSA may deny benefits only if a probation or parole violation is demonstrated by a preponderance of evidence. Id. at 147-48. Because the finding of probable cause that typically supports the issuance of a warrant does not satisfy the higher standard of a preponderance of the evidence, the Court of Appeals determined that the SSA’s practice of relying exclusively on warrants to deny benefits “is contrary to the plain meaning of the [Social Security] Act.” Id. at 147. The Second Circuit remanded this litigation to this Court for further proceedings. Id. at 152.
On remand, plaintiffs have now moved for certification of a class consisting of “[a]ll persons nationwide whose SSI and/or OASDI benefits were denied and/or suspended based solely on the existence of a warrant for an alleged violation of probation or parole during the period August 22, 1996 to and including such time in the future when Defendants halt their unlawful practices.” (Pls.’ Mem. in Supp. of Class Certification (“Pls.’ Mem.”) at 7.)
The SSA challenges class certification on two fronts. It argues that plaintiffs do not satisfy the prerequisites to class certification set forth in Federal Rule of Civil Procedure 23. It also maintains that the proposed class is overly broad.
Addressing the definition of the class first, the Court concludes that the proposed class should be left intact with the exception of its temporal scope. The Court also finds that plaintiffs have satisfied the requirements of Rule 23, making certification appropriate.
II. DISCUSSION A. Scope of the Proposed Class The SSA identifies four alleged flaws in the proposed class definition. The first three
concern the prerequisites to judicial review of the SSA’s benefit decisions set forth in Section 405(g) of the Social Security Act. Individuals may commence litigation challenging a denial of
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benefits by the SSA if they first (1) present a claim to the SSA, (2) exhaust the SSA’s administrative review process, and (3) bring suit within the 60-day statute of limitations. See City of New York v. Heckler (“City of New York”), 742 F.2d 729, 734 (2d Cir. 1984), aff’d sub nom. Bowen v. City of New York (“Bowen”), 476 U.S. 467 (1986). The SSA maintains that the proposed class definition is too broad because it encompasses individuals who failed to satisfy these preconditions to suit. The SSA’s fourth objection is that the nationwide class proposed is inappropriate. The Court agrees that the class is overbroad insofar as it includes individuals who did not file suit within the applicable limitations period. Otherwise, the Court finds the scope of the proposed class to be appropriate.
1. Presentment Section 405(g) authorizes federal court subject matter jurisdiction for individual challenges to SSA’s eligibility determinations. See Binder & Binder PC v. Barnhart, 481 F.3d 141, 149 (2d Cir. 2007). A nonwaivable precondition to the exercise of that jurisdiction is that the individual first present a claim to the SSA. Mathews v. Eldridge, 424 U.S. 319, 328 (1976). Where an individual challenges the denial of newly-sought benefits, the initial application for benefits satisfies the presentment requirement. City of New York, 742 F.2d at 735. Where the challenge is to the suspension of existing benefits, both formal and certain informal requests for reinstatement of benefits constitute presenting a claim. See id. at 735-36. But the proposed class theoretically includes social security recipients who, in the face of the SSA’s suspension of benefits, made no request at all with the SSA to have their benefits reinstated. Such individuals have not presented a claim. See id. at 735 (“[A] recipient subject to continuing eligibility review does not satisfy the presentment requirement through inaction.”). The SSA correctly contends
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that Section 405(g) does not authorize jurisdiction over the claims of these passive persons. See id. at 736.
Nevertheless, individuals failing to present their claims can still be part of the class because the Court may exercise mandamus jurisdiction over their claims pursuant to 28 U.S.C. § 1361. Pursuant to section 1361, “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” The requirements of mandamus are strict—the writ “will not issue unless (1) the plaintiffs have a right to have the act performed, (2) the defendant is under a clear nondiscretionary duty to perform the act requested, and (3) plaintiff has exhausted all other avenues of relief.” City of New York, 742 F.2d at 739.
Despite how strait that particular gate may be, the Second Circuit has twice approved the exercise of mandamus jurisdiction over non-presenting class members in comparable challenges to unlawful SSA adjudication methods. See id. at 739 & n.7; Ellis v. Blum, 643 F.2d 68, 77-82 & n.10 (2d Cir. 1981). Mandamus was appropriate in those cases because the plaintiffs were seeking to enforce a nondiscretionary procedural right granted by statute that could not be vindicated by exhausting administrative review with the SSA. See City of New York, 742 F.2d at 739; Ellis, 643 F.2d at 78-79. The same conditions obtain here. As the Second Circuit held, class members have a statutory right to eligibility determinations based on a preponderance of the evidence. See Clark III, 602 F.3d at 148-49. And as this Court previously held, exhaustion of administrative remedies in this instance is futile. Clark I, 2007 WL 737489 at *4. Mandamus jurisdiction accordingly permits individuals who failed to satisfy the presentment requirement to participate in the class.
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2. Exhaustion The SSA next contends that the proposed class is overly broad because it embraces individuals who failed to exhaust fully the SSA’s internal appeals process prior to seeking judicial redress, as required by Section 405(g). See City of New York, 742 F.2d at 736. Unlike presentment, exhaustion may be waived, id., and, as just mentioned, the Court waived it here “on the grounds that it would be futile for plaintiffs to challenge the Secretary’s interpretation of the statute in administrative hearings,” Clark I, 2007 WL 737489 at *4. The SSA submits that the subsequent success of three named plaintiffs in obtaining restoration of their benefits should prompt the Court to reject its prior ruling. This is not a compelling argument. As the Supreme Court and the Second Circuit have demonstrated, the fact that the idiosyncrasies of individual cases may permit some class members to obtain relief has no bearing on the exhaustion inquiry where, as here, plaintiffs challenge the manner in which the SSA adjudicates eligibility. See Bowen, 476 U.S. at 485-86; New York v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990). The Court adheres to its conclusion that exhaustion is futile for the reasons set forth in Clark I. As a result, individuals who did not exhaust administrative remedies are part of the class.
3. Sixty-day limitations period The SSA’s next objection is to the inclusion in the class of individuals who failed to seek judicial review of the agency’s decision within the prescribed 60-day statute of limitations. Plaintiffs contend that the statute of limitations is no obstacle because it has been tolled since August 22, 1996. The Court finds that tolling of the statute of limitations is appropriate, but not to the extent that plaintiffs suggest.
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Plaintiffs filed their class action complaint on December 28, 2006, which “suspend[ed] the applicable statute of limitations as to all asserted members of the class.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974); see Pavano v. Shalala, 95 F.3d 147, 152 (2d Cir. 1996). The result is that individuals acquiring claims since that date have timely claims today. So too do individuals who had timely claims on that date—individuals denied benefits or who had their benefits suspended on or after October 29, 2006, 60 days prior to the filing of the complaint. Such persons are properly within the class.
The claims for individuals whose benefits were denied or suspended prior to October 29, 2006 are timely only if they are entitled to equitable tolling of the statute of limitations. “[E]quitable tolling permits courts to deem filings timely where a litigant can show that ‘he has been pursuing his rights diligently’ and that ‘some extraordinary circumstance stood in his way.’” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Plaintiffs bear “the burden of demonstrating the appropriateness of equitable tolling.” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000).
While in “most cases” the SSA determines whether to extend Section 405(g)’s 60-day limitations period, “cases may arise where the equities in favor of tolling the limitations period are so great that deference to the agency’s judgment is inappropriate.” Bowen, 476 U.S. at 480 (internal quotation marks omitted). Courts have found equitable tolling appropriate in Section 405 class actions where the record reveals that the SSA engaged in secretive or misleading conduct that “prevent[ed] plaintiffs from knowing of a violation of rights,” i.e. plaintiffs lacked “a reasonable opportunity to learn the facts concerning the cause of action” until after the time for filing suit had already elapsed. City of New York, 742 F.2d at 738; see id (equitable tolling appropriate because “the Government’s secretive conduct” was such that plaintiffs “did not and
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could not know that [] adverse decisions had been made on the basis of a systematic procedural irregularity that rendered them subject to court challenge”); Dixon v. Shalala, 54 F.3d 1019, 1033 (2d Cir. 1995) (approved tolling of the limitations period because plaintiffs had “no way of knowing” that the SSA was systematically misapplying its own regulations); Sullivan, 910 F.2d at 917 (tolling was appropriate because plaintiffs “lacked the ability to know of the per se rules” they challenged prior to expiration of the statute of limitations).
Plaintiffs contend that equitable tolling is appropriate in this case because the SSA’s exclusive reliance on warrants was “contrary to [its] own implementing regulation” and because the SSA “did not advise [beneficiaries] that their benefits were being halted based on a mere warrant.” (Pls.’ Reply in Supp. of Class Certification (“Pls.’ Reply”) at 9.) These contentions are unavailing.
Without offering any facts or arguments in support of their position, plaintiffs summarily assert that the SSA’s reliance on warrants was a misapplication of the SSA regulation governing the suspension of benefits for parole and probation violators. (Id. at 9.) That is not the case. Though the Second Circuit on appeal suggested that the regulation is ambiguous, it did not address whether the regulation prohibited revocation of benefits on the basis of a warrant alone. See Clark III, 602 F.3d at 152. This Court previously addressed this issue and held that the SSA’s reliance on warrants was not contrary to the regulation, see Clark II, 2008 WL 4387709 at *8-9, which authorizes the suspension of benefits starting from “[t]he month in which a warrant or order for the individual’s arrest or apprehension . . . is issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual—. . . [i]s violating, or has violated, a condition of his or her probation or parole . . . .” 20 C.F.R. § 416.1339(b) (emphasis added). The scope of this authorization turns on the meaning of “appropriate finding,”
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an undefined and admittedly ambiguous term. Given that the regulation authorizes suspension upon the issuance of arrest warrants and that the basis of such warrants is typically probable cause, it is reasonable to interpret an “appropriate finding” in this context as a finding based only on probable cause. See Clark II, 2008 WL 4387709 at *8. Because warrants rarely require a finding greater than probable cause, if the SSA “had intended to permit suspension of benefits on the basis of a warrant only in very rare instances, it would undoubtedly have said so more explicitly.” Id.
It is most assuredly the case that the SSA’s regulation could have been clearer, but that alone does not warrant equitable tolling. The Second Circuit has explained that the failure to publish a policy in a regulation does not make equitable tolling per se appropriate. See Dixon, 54 F.3d at 1032. The publication of an ambiguous regulation should not by itself necessitate equitable tolling either. Like a nonexistent regulation, an ambiguous regulation does not necessarily prevent a plaintiff “from knowing of a violation of rights.” City of New York, 742 F.2d at 738. Rather, the Court must decide whether equitable tolling is appropriate “on the facts of the case before [it],” that is whether “this is one of those ‘rare case[s]’ in which ‘the equities in favor of tolling the limitations period are so great that deference to the agency’s judgment is inappropriate.” Dixon, 54 F.3d at 1032 (quoting Bowen, 476 U.S. at 480, 481).
This brings the Court to plaintiffs’ contention that the SSA did not put class members on notice that their benefits were halted or denied on the basis of a warrant for a probation or parole violation. In support, plaintiffs cite a single piece of evidence: a letter received by former plaintiff Elaine Clark1 in December 2005 from the SSA explaining that it “plan[s] to stop” Clark’s benefits because “the law prohibits us from paying Social Security benefits to individuals

1

Elaine Clark died in November 2008. (Decl. of Joy Jordan dated June 10, 2010, at ¶ 3.) Her children,

Ryan Clark and Joy Jordan, have replaced her as plaintiffs in this action. See Order dated March 14, 2011. Unless

otherwise indicated, references in this Opinion & Order to Clark as a plaintiff refer to Elaine Clark.

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who have an outstanding arrest warrant for a crime which is a felony . . . or who have violated a condition of probation or parole under Federal or State law. We have information that you fall into one of these categories.” (Pls.’ Reply at 10 (quoting Ex. 1 to Decl. of Elaine Clark dated Jan. 2, 2007 (“Clark Decl.”)).) Plaintiffs contend that these “form suspension notices distributed to beneficiaries did not advise them that their benefits were being halted based on a mere warrant, but rather falsely suggested that a finding of an actual parole or probation violation had been made.” (Pls.’ Reply at 9.)
The Court agrees that the paragraph cited by plaintiffs is ambiguous. But it cannot accept the conclusion that the SSA systematically failed to advise beneficiaries that their benefits were being denied on the basis of a warrant. The record does not support it.
The ambiguous December 2005 letter to Clark upon which plaintiffs rely was only announcing the SSA’s intention to suspend her benefits. The later SSA letter, dated January 19, 2006, announcing the actual suspension of Clark’s benefits was pellucid, stating clearly and simply as follows: “We cannot pay benefits to you because you have an outstanding arrest warrant for a violation of a condition of probation or parole under Federal or State law.” (Ex. 3 to Clark Decl.) The letter also identified the outstanding warrant by the issuing jurisdiction, date and warrant number. (Id.) The suspension letter sent to plaintiff Monell White contained the exact same language and the same identifying information for his outstanding warrant. (Ex. 1 to Decl. of Monell White dated Jan. 2, 2007 (“White Decl.”)). Contrary to plaintiffs’ contention, these suspension announcements made it clear that it was the existence of a warrant for a probation or parole violation—and not a conclusive finding of an actual parole or probation violation—that was the basis for the denial of benefits.
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Even the December 2005 letter to Clark cited above is not as uninformative as plaintiffs make it out to be. Though no model of clarity, the letter describes the information the SSA was relying on as follows: “Our records show that the Santa Clara Co So, 55 Younger Ave, San Luis Obisbo, CA 95110, issued a warrant for your arrest for a felony crime or a violation of Federal or State probation or parole on November 21, 2002.” (Ex. 1 to Clark Decl.) Thus, the letter indicated that the SSA was relying on a warrant, though not necessarily a warrant for a probation or parole violation. But the letter does specify the warrant number and advises the recipient to contact the issuing jurisdiction for more information. (Id.)
The declarations of plaintiffs Raymond Giangrasso and Johnny Heatherman submitted with plaintiffs’ motion for certification do not contain the suspension letters they received, but there is no doubt that the SSA informed them that their benefits were revoked on the basis of an outstanding warrant for a probation or parole violation. Giangrasso specifically states this to be the case: “In or about 2001, I received a letter from the SSA, advising that my benefits would be suspended due to an outstanding warrant for my arrest for an alleged violation of the terms of my probation.” (Decl. of Raymond Giangrasso dated Jan. 2, 2007 (“Giangrasso Decl.”), at ¶ 6.) Giangrasso also filed a motion to set aside his outstanding warrant in which his lawyer explained that Giangrasso’s Social Security benefits had been terminated on the basis of the warrant but “would be reinstated, if this warrant were withdrawn.” (Ex. 2 to Giangrasso Decl.) Heatherman avers that when he called the SSA to inquire into appealing the suspension of his benefits, he was told “there was no reason to appeal the suspension until the warrant that allegedly had been issued with respect to me had been cleared.” (Decl. of Johnny L. Heatherman dated Jan. 3, 2007 (“Heatherman Decl.”), at ¶ 8.) Heatherman’s subsequent request for reconsideration from the SSA further reveals that he knew the basis for his loss of benefits, since he argued that the
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“[w]arrant was 19 years old[,] no attempt by Ohio to extradite has been made and I have tried to clear up the case. I thought it was cleared in ’91 when I was told by Ohio Probation Dept. to pay court fees, which I did, they told me it would be cleared, I thought it was.” (Ex. 1 to Heatherman Decl.)
Of the named plaintiffs, only Tony Gonzales was not informed that his benefits were suspended on the basis of a warrant for a parole or probation violation. But there is a simple reason for this: the SSA did not suspend his benefits on that basis. Rather, as his suspension letter informed him, Gonzales lost his benefits because the SSA concluded that he had “an outstanding warrant for a felony crime.” (Ex. 2 to Decl. of Tony Gonzales dated Jan. 2, 2007.) Insofar as Gonzalez’s suspension letter is probative, it further supports the conclusion that the SSA communicated the basis for its decisions to deny or suspend benefits.
This record clearly indicates that the SSA informed the named plaintiffs at the time of suspension that their benefits were revoked because of an outstanding warrant. As a result, plaintiffs had “a reasonable opportunity to learn the facts concerning [this] cause of action” before the statute of limitations expired. City of New York, 742 F.2d at 738. That this knowledge resulted from correspondence with the SSA, and not from an explicit regulation, does not make equitable tolling appropriate. See Johnson v. Shalala, 2 F.3d 918, 923 (9th Cir. 1993) (in a challenge to the SSA’s policy of treating in-kind loans as income, the failure to publish the policy in a regulation did not have “the same practical effect on claimants as a secret policy” because the SSA notified claimants directly that their benefits were denied on the basis of the their in-kind loans (internal quotation marks omitted)).
The experiences of the named plaintiffs simply do not support the position that they did not receive notice that their benefits were being denied on the basis of an arrest warrant for a
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probation or parole violation. In the absence of evidence suggesting that the remaining class members were denied notice—and plaintiffs offer none—the Court cannot conclude that plaintiffs have demonstrated that equitable tolling for the class is warranted.
4. Nationwide class The SSA contends that certification of the proposed nationwide class is undesirable because it would foreclose litigation of the issue presented here in other circuits. This concern does not require rejecting a national class. See Califano v. Yamasaki, 442 U.S. 682, 701-03 (1979). “The certification of a nationwide class . . . is committed in the first instance to the discretion of the district court.” Id. at 703. In exercising that discretion, a court should “take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts.” Id. at 702. It should also consider whether counsel is adequate to represent a nationwide class. See id. at 703. The nationwide class plaintiffs propose is appropriate. Nationwide declaratory and injunctive relief would be proper given the SSA’s application of a nationwide policy. See id. at 702 (“[T]he scope of injunctive relief is dictated by the extent of the violation established.”). There is no reason to suppose that such relief will interfere with ongoing litigation elsewhere, since no similar cases have been brought to the Court’s attention. The only case which the SSA invokes, Slusser v. Astrue, 557 F.3d 923 (8th Cir. 2009), is inapposite because it did not involve a challenge to the SSA’s practice of relying on warrants to withhold benefits. Finally, class counsel are able—two of the class’s proposed lawyers have already demonstrated both experience and facility in actions of this type, obtaining a substantial settlement for a nationwide class of social security claimants denied benefits solely on the basis of an outstanding felony
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warrant, (Pls.’ Mem. at 15-17). See Martinez v. Astrue, No. 08 Civ. 4735 (N.D. Cal. Sept. 24, 2009) (order approving class action settlement). The SSA’s apparent preference for litigating a single issue in multiple circuits does not outweigh the factors here that favor certification of a nationwide class.
B. Rule 23 Requirements Having determined the appropriate parameters of the proposed class, the Court now turns to whether plaintiffs have met their burden of demonstrating compliance with Federal Rule of Civil Procedure 23. Rule 23(a) provides that a class suit may be maintained only if “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Additionally, the suit must qualify as one of the permissible types of class actions defined in Rule 23(b). Plaintiffs have met their burden on the Rule 23(a) requirements. A 2009 report by the SSA’s Office of Inspector General states that as of Oct. 2006, there were 104,720 social security beneficiaries with probation or parole warrants. (Pls.’ Reply at 3 (citing Audit Report No. A-0109-29177, The Social Security Administration’s Fugitive Felon Program and the Martinez Settlement Agreement (Office of Inspector General, October 15, 2009) at 7, 9-10).) From this data point one can easily infer that the proposed class is numerous enough to warrant certification. See, e.g., Alcantara v. CNA Mgmt., Inc., 264 F.R.D. 61, 64-65 (S.D.N.Y. 2009) (numerosity presumed where a court can reasonably infer that the class contains 40 members or more).
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In addition, a common question of law pervades this action, which challenges the evidentiary standard the SSA has applied to determine the eligibility of all class members. See New York v. Heckler, 105 F.R.D. 118, 124 (S.D.N.Y. 1985) (“Common questions of law and fact are presented in that the inquiry addressed by this litigation is not to a determination of the merits of individual claims, but to the legality of defendants’ policy of using per se rules to deny disability claims.”).
As to typicality, a class representative’s claims are typical when they “‘arise[] from the same course of events’” and rely on “‘similar legal arguments to prove the defendant’s liability.’” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (quoting In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992)). The SSA argues that none of the named plaintiffs satisfy this requirement. The agency is correct in regard to plaintiffs Gonzales, Giangrasso and White, each of whom have had their benefits successfully restored. Plaintiffs concede that Gonzales and Giangrasso no longer have claims against the SSA, but maintain that White still does. (Pls.’ Reply at 1.) The SSA restored White’s benefits in December 2006, but his benefits were suspended from September 2006 to November 2006, (Decl. of Judith Wiltsie dated Sept. 1, 2010, at ¶ 3), and plaintiffs argue that White retains a claim for the payments he did not receive during that three-month period. Though plaintiffs assert that the SSA “admits” that this is the case, (Pls.’ Reply at 1), they cite no such admission and the SSA’s position is that White has “received all the relief [he] could expect to receive,” (Def.’s Mem. in Opp. to Class Certification at 16). The record does not clearly address this point. It does, however, contain a letter sent to White and dated December 25, 2006 in which the SSA explained that it was “sending” White a check for “benefits due you through November, 2006.” (Ex. 5 to White Decl.) Though White had not received that check as of January 5, 2007,
15

Case 1:06-cv-15521-SHS Document 73 Filed 03/18/11 Page 16 of 18
(White Decl. ¶ 20), plaintiffs have not provided any more recent information to show that the SSA failed to send the promised check. In light of the SSA’s stated intention to pay White past due benefits, the Court does not find that plaintiffs have met their burden of demonstrating that he has a claim that is typical of the rest of the class.
Heatherman and Clark, however, are typical. Like the class generally, they claim to have been wrongfully denied benefits and they have not obtained any relief. The SSA’s only objection to Heatherman and Clark’s typicality—and their adequacy, for that matter—is that they are subject to the defense of failure to exhaust administrative remedies. Because the Court has waived the exhaustion requirement for the entire class, see supra Part II.A.2, this argument carries no weight.
Adequacy, the last of the Rule 23(a) conditions, “requires that plaintiffs demonstrate that class counsel is qualified, experienced, and generally able to conduct the litigation” and that “there is no conflict of interest between the named plaintiffs and other members of the plaintiff class.” Marisol A., 126 F.3d at 378 (internal quotation marks omitted). On the first point, the SSA does not contest the adequacy of Betina B. Plevan, Steven E. Obus, Jennifer J. Parish and Gerald A. McIntyre, the proposed class counsel. The Court agrees that in light of their professional qualifications and experience handling class actions and social security litigation, (see Pls.’ Mem. at 13-17; Exs. 2-5 to Decl. of Russell L. Hirschorn in Supp. of Class Certification dated June 22, 2010), the proposed class counsel are “qualified, experienced, and generally able to conduct the litigation.” On the second point, the Court finds that Heatherman and Clark share the interests of the rest of the class, namely to have the SSA adjudicate eligibility for benefits pursuant to statutorily mandated standards.
16

Case 1:06-cv-15521-SHS Document 73 Filed 03/18/11 Page 17 of 18
The Court notes, however, that Elaine Clark herself cannot serve as a class representative. She passed away in November 2008 and ceased being a nominal plaintiff in this action upon the Court’s granting of an unopposed motion to substitute her children, Ryan Clark and Joy Jordan, as plaintiffs. See Order dated March 14, 2011. Though the motion to provide substitute plaintiffs in place of Elaine Clark was filed simultaneously with the motion for class certification, the parties debated Elaine Clark’s viability as a class representative and did not address whether her substitutes—Ryan Clark and Joy Jordan—are qualified to serve in that capacity. There is some support for the proposition that substituted plaintiffs can assume the class representative role that otherwise would have been occupied by a deceased plaintiff. See Lightfoot v. District of Columbia, 629 F. Supp. 2d 16, 19-20 (D.D.C. 2009); Roe v. City of New York, No. 00 Civ. 9062, 2003 WL 22715832, at *3 (S.D.N.Y. Nov. 19, 2003). Given the parties seeming unconcern with this issue, the fact that Elaine Clark served as a putative class representative for nearly two years prior to her death—an interval in which she saw this case through the summary judgment stage—and that the Social Security Act entitles Clark’s children to pursue her claim, see 42 U.S.C. § 404(d)(5), the Court concludes that newly substituted plaintiffs Ryan Clark and Joy Jordan may also serve as class representatives.
Finally, this class action may be maintained pursuant to Rule 23(b)(2), which permits class actions where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” This action qualifies under that provision because the SSA’s use of an improper evidentiary standard “is generally applicable to the class and injunctive relief is requested.” New York v. Heckler, 105 F.R.D. at 124.
17

Case 1:06-cv-15521-SHS Document 73 Filed 03/18/11 Page 18 of 18 III. CONCLUSION
For the reasons set forth above, the Court grants plaintiffs' motion for class certification and hereby certifies the following class: All persons nationwide whose SSI and/or OASDI benefits were denied and/or suspended based solely on the existence of a warrant for an alleged violation of probation or parole during the period from October 29,2006 to and including such time in the future when final relief is entered in this action. Plaintiffs Johnny L. Heatherman, Ryan Clark and Joy Jordan are to serve as representatives of this class and Betina B. Plevan, Steven E. Obus, Jennifer 1. Parish and Gerald A. McIntyre are appointed as class counsel. Dated: New York, New York
March 18, 2011 
 SOORDERE .. 

18 


 
 Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YO
________________ ------------------- x

USDCSDNY DOCUMENT ELECTRONICALLY FILED DDAOTCE#F:I
~I,E..D... -:-o:q"""""-'?2-+-\/-l-.­

RYAN CLARK, JOY JORDAN, RAYMOND GIANGRASSO, TONY GONZALES, JOHNNY L. HEATHERMAN, and MONELL WHITE, individually on behalf of themselves, and on behalf of all those similarly situated
Plaintiffs,

06Civ. 15521 (SHS)
~ ORDER

v.

MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, in his official capacity,
Defendant. ___________________________________ x

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 2 of 9
In an opinion dated March 19,2010, the U.S. Court of Appeals for the Second Circuit held that the "the Social Security Administration's practice of treating a warrant alleging that a recipient is violating a condition of probation or parole as sufficient and irrebuttable evidence that the recipient is in fact violating a condition of probation or parole is inconsistent with the plain meaning of the Social Security Act." Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010). This Court subsequently certified a class defined as "All persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006."
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED as follows: SECTION 1 DEFINITIONS
1.1 "Action" means the litigation in the United States District Court for the Southern District of New York, 06 Civ. 15521 (SHS), and the U.S. Court of Appeals for the Second Circuit, 08-580 1-cv, and all proceedings had therein.
1.2 "Class Counsel" or "Plaintiffs' Counsel" means: Proskauer Rose LLP, the National Senior Citizens Law Center and the Urban Justice Center.
1.3 The "Class" or "Class Members" means: a Plaintiff class, pursuant to Fed. R. Civ. P. 23(b)(2), comprising: "All persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 3 of 9
made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006."
1.4 "Court" means the United States District Court for the Southern District of New York.
1.5 "Defendant" or "the Commissioner" means Michael J. Astrue, the Commissioner of Social Security, in his official capacity, and/or his successors, if any.
1.6 "Named Plaintiffs" refers to Plaintiffs Raymond Giangrasso, Johnny L. Heatherman, Monell White, Ryan Clark and Joy Jordan.
1.7 "OASDI" means the Old Age, Survivors, and Disability Insurance program, under Title II of the Social Security Act.
1.8 "Overpayment" shall have the meaning as set forth in 20 C.P.R. §§ 404.50 I, 404.502 and 416.537(a).
1.9 "Parties" means the Named Plaintiffs, the Class and Defendant. 1.10 "Plaintiffs" refers to the Named Plaintiffs, acting on their own behalf and on behalf of all Class Members. l.l1 "SSA" means the Social Security Administration. 1.12 "SSI" means the Supplemental Security Income program under Title XVI of the Social Security Act. SECTION 2 PROSPECTIVE RELIEF 2.1 Defendant is hereby enjoined from suspending OASDI benefits, or denying or suspending SSI payments, or making a determination of an overpayment of such benefits and payments based solely on an outstanding probation or parole violation warrant, including any such warrant with one of the following National Crime Information Center (NCIC) offense
-2-

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 4 of 9
codes: 5011 (parole violation), 5012 (probation violation), 8101 Uuvenile offenders abscond while on parole), and 8102 Uuvenile offenders abscond while on probation). I SECTION 3 REMEDIAL PROVISIONS
3.1 For all Class Members whose benefits were suspended solely on the basis of an outstanding probation or parole violation warrant, Defendant shall fully reinstate all benefits retroactive to the date the benefits were suspended and on an ongoing basis. However, if there is another basis for suspending benefits for any portion of the retroactive period or ongoing benefit period, Defendant may suspend such benefits upon notice to the individual with appeal rights in conformity with SSA regulations. Except as stated herein, all payments to Class Members are subject to regular payment, non-payment, and reduced payment provisions of the Social Security Act.
3.2 For all Class Members for whom SSA has made an initial determination of an overpayment, as defined in the Commissioner's regulations (20 C.F.R. §§ 404.9020) and 416.1402), Defendant shall reverse such overpayment determination and return any funds already recovered unless any or all of those funds are needed to recover another outstanding overpayment not related to this Order and for which a notice was provided to the individual as required in the Commissioner's regulations (20 C.F.R. §§ 404.904 and 416.1404) .
3.3 For all Class Members who were denied SSI payments based solely on an outstanding probation or parole violation warrant and whose claims were otherwise fully developed, Defendant shall reopen such claims and determine benefits based on the original application date.
On August 20, 2010, SSA issued instructions to cease this practice for individuals residing in New York, Connecticut or Vermont. On May 9, 2011, SSA issued instructions to cease this practice nationwide.
-3­

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 5 of 9
3.4 Unless critical or expedited case processmg procedures apply, for all Class Members with appeals pending at any administrative level of determinations made solely on the basis of an outstanding probation or parole violation warrant, Defendant shall review and complete development of such cases based on the original date of the appeal.
3.5 For all Class Members previously determined by SSA to be disabled who filed a new application for SSI payments subsequent to their suspension or denial, Defendant shall vacate any determination of non-disability on the subsequent application if it was not made in compliance with the requirements for continuing disability reviews as provided in 42 USC. § 423(f).
3.6 Following the Effective Date, SSA shall contact Class Members through an informational notice (an OASDI or SSI one-time class settlement informational notice) mailed via U.S. Postal Service (U.S.P.S.) first class mail to the last known address in SSA records with a designated post office box as the return address. Prior to sending this informational notice, SSA shall match the addresses in its records for all SSI Class Members who are not in current pay against the U.S.P.S. National Change of Address (NCOA) file. In those instances where a match is not made, the informational notice will be sent with Forwarding Service Requested special handling. The informational notice shall include a bolded Spanish language paragraph including a brief description regarding this matter and inviting the Class Members to contact their local Social Security office for an explanation of the notice. SSA shall bear the full cost of the informational notices. The informational notices shall advise how SSA's policy regarding outstanding probation and parole warrants has changed and that individuals may be entitled to or eligible for benefits or payments for applicable periods of suspension or non-payment. This
-4-

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 6 of 9
infonnational notice will not require a response on the part of the Class Member. SSA will follow its normal operating procedures if an infonnational notice is returned as undeliverable.
3.7 When providing specific relief to an OASDI or SSI Class Member, SSA will mail an individualized notice to each Class Member. This notice, to be sent via U.S.P.S first class mail to the last known address in SSA records, will explain the specific relief that will be provided. Those Class Members who have a Spanish language indicator on their records will be sent a Spanish language notice. Those Class Members with visual impainnents who have requested that notices be provided in an alternate format will be provided a notice in the manner in which they have previously identified, along with a notice in standard print format. SSA shall bear the full cost of the notices. If a notice is returned as undeliverable, SSA will follow nonnal operating procedures, including POMS SI 230 1.240.C.l, to attempt to locate the individuals.
3.8 To the extent that it is inconsistent with a provision(s) in this Order, change(s) in any controlling statutes shall supersede this Order.
3.9 This Order is not intended to change, modify, or revise SSA's or the Office of Inspector General's implementation of sections 42 U.S.C. §§ 402(x)(C) and 1382(e)(5)(A) of the Social Security Act with regard to the disclosure of information to federal, state, or local law enforcement. SECTION 4 IMPLEMENTATION PLAN
No later than sixty (60) days following entry of this Order, Defendant shall submit for the Court's approval a plan for implementation of this Order that sets forth the anticipated time frames for implementing the terms of the Order. The implementation plan shall specify the time frames for: 1) posting a news item on SSA's official, public website (as provided in Section 5.1 of this Order); 2) posting a notice of the provisions of this Order in each SSA Field Office (as provided in Section 5.2 of this Order); 3) identifying Class Members; 4) mailing the
-5­

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 7 of 9
informational notices described in Section 3.6 of this Order; 5) mailing the individual notices described in Section 3.7 of this Order; 6) providing OASDI relief by an automated process; 7) providing OASDI relief manually; 8) providing SSI relief manually; and 9) with respect to numbers 6, 7 and 8 herein, completing cases. SECTION 5 PUBLICATION
5.1 No later than thirty days (30) days following the entry date of this Order, SSA shall publicize the terms of this Order by posting a news item on the home page of its official, public website, www.socialsecurity.gov, that will summarize the key provisions, and attach a copy of this Order.
5.2 Upon mailing the informational notices described in Section 3.6 of this Order, SSA shall post a notice of the provisions of this Order in each SSA Field Office. This notice shall remain posted in each SSA Field Office until SSA substantially completes the implementation of this Order as described in Section 6.3 below. SECTION 6 INQUIRIES, COMMENTING AND REPORTING
6.1 SSA and Class Counsel shall each designate an individual or individuals who will serve as a point of contact. The designated individual(s) will act in good faith to address any inquiries from Class Counsel related to the implementation of this Order.
6.2 SSA shall provide Class Counsel with an advance copy of any newly created and subsequently revised draft POMS, HALLEX, Chief Judge Bulletins, Emergency Messages to SSA components, template individual notices to Class Members described in Section 3.7 of this Order, draft informational notices to Class Members described in Section 3.6 of this Order, any specialized Clark notice language, and any other notices that effectuate any term of this Order. Class Counsel shall provide comments, if any, to SSA, within five business days of receiving the
-6-

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 8 of 9
drafts. SSA will consider Plaintiffs' comments in good faith, although SSA is not obligated to respond to and/or incorporate these comments in the final instructions and notices.
6.3 SSA shall report the following information to Class Counsel: I) the total number of potential OASDI Class Members; 2) the total number of potential SSI Class Members; 3) the total number of OASDI informational notices sent; 4) the total number of SSI informational notices sent; 5) the total number of informational notices returned; (items 3, 4 and 5 will be provided only once); 6) the total number ofOASDI cases completed by an automated process; 7) the total number of OASDI cases completed manually; and 8) the total number of SSI cases completed manually. SSA shall continue reporting the above information quarterly to Class Counsel until it substantially completes the implementation of this Order. For the purposes of this Order, substantially completes means SSA completes at least ninety-five (95) percent each of the OASDI and SSI cases. For the purposes of this Section, "completes" means that SSA has provided the required relief as stipulated in Section 3 of this Order or has apprised the individual that no relief is appropriate. SSA shall further notify the Class Counsel of any anticipated difficulties in adhering to the implementation plan's time frames. SECTION 7 CONTINUING JURISDICTION
7.1 The Court will retain jurisdiction over this matter for the purposes of: (a) enforcing the provisions of this Order in the event that one of the Parties claims that there has been a breach of this Order; and (b) modifying this Order if jointly requested by the Parties, or if the parties do not agree, upon good cause shown by either Party. Both Class Counsel and Defendant's counsel shall make reasonable efforts to resolve any issues with regard to this Order.
7.2 Nothing in this Order prohibits the Defendant from promulgating regulations regarding suspending OASDI benefits or denying or suspending SSI payments as provided in
-7 ­

Case 1:06-cv-15521-SHS Document 86 Filed 04/13/12 Page 9 of 9 42 U.S.C. §§ 402(x)(l)(A)(v) and 1382(e)(4)(A)(ii). United States D' trict Judge Southern District of New York Dated: New York, New York
April 1.1 ,2012
-8­

 
 Case 1:06-cv-15521-SHS Document 90 Filed 06/12/12 Page 1 of 2 U.S. Department of Justice

_____ rFr~p-:i~

United States Attorney -:--:::--_~Southern District o/New York

JUN 1 1 2012

By Hand

." J

Hon. Sidney H. Stein

United States District Judge

United States Courthouse

500 Pearl Street, Room 1010

New York, New York 10007

86 Chambers Street New York, New York 10007

~ June 8, 201 U.S.. DC SDN.Y,1 DOCUMENT

P

J
..••

, ELECfRONICALLY FILED .

= d ~ I DOC #: DATE FILED:

_\
/2---

Re: Clark, et at v. Astrue 
 06 Civ. 15521 (SHS) 


Dear Judge Stein:

This Office represents the Commissioner of Social Security, the defendant in this action. As provided in the Court's April 13, 2012 order, we are submitting the Commissioner's plan and time frames for implementing relief to the class.

The Government respectfully requests that the Court direct the Clerk of the Court to docket this letter. We thank the Court for its consideration of this matter.

Respectfully,

PREET BHARARA United States Attorney

End.
cc: By Fax Steven E. Obus, Esq. Jennifer J. Parish, Esq. Gerald McIntyre, Esq.

By: JOHN Assistant United States ttorney Telephone: (212) 637-2712 Fax: (212) 637-2750

Case 1:06-cv-15521-SHS CDlaorckumImenptle9m0 enFtialetdio0n6P/1l2a/n12 Page 2 of 2

.... ···Task. . .~

Agreement Terms

;

a. Post a news item summarizing the key provisions of the Order and attach

a copy of the order on official public website, www.socialsecurity.gov.

Tinlelhwic

i .

a. Completed

4127112

Publjcation
Remedial Provisions-

Title II (OASDI) Class
Members

b. Post a notice of the Order in each SSA Field Office
a. Identify OASDI Class Members. b. Send Informational Notice.
Remedial Relief: c. Automated reinstatement of OASDI benefits effective with the first month
of suspension (effectively eliminates the existence of any Clark related overpayments).
d. Manually reinstate OASDI benefits effective with the first month of suspension (effectively eliminates the existence of any Clark related overpayments).
a. Identify SSI Class Members.
b. Send Informational Notice.

b. Quarter 2012 through
Ql-2014 *
a. Q3 through Q4-2012
b. Completed by QI-
 2013
c. Q4-2012 through Ql -2013
d. Ql through Q3-2013
a. Q3-2012­ through Ql-2013

c. Remedial Relief:

Remedial

• Manually reinstate SSI payments effective with the first month of

Provisions­

suspension subject to eligibility redeterminations (effectively

Title XVI (SSl)

eliminates the existence of any Clark related overpayments);

Class Members

• Re-open fully developed claims that were denied based on PPV

warrant;

• Re-open claims that were denied based on a PPV warrant and were

not fully developed; and

• Vacate determinations of non-disability on claims filed subsequent to

a PPV suspension or denial if previously determined to be disabled.

Reporting

Send Quarterly Reports to Class Counsel

b. Completed byQl-
 2013
c. Q2-2013 through Q]-2014
Q4-20 12 until substantial completion of Order

*Quarters are based upon a calendar year. 
 NOTE: This plan is contingent on successful systems design, development, testing, and validation activities, as well as the availability of 
 resources to complete the implementation tasks. 


 
 Case 1:06-cv-15521-SHS Document 95 Filed 09/12/12 Page 1 of 5
( 

USDCSDNY
DOCUMENT
ELECrRONlCAll,Y FILED DOC I:
IrtEz. ~; ~ UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK DATE FILED:

R.. Y..AN..CL..A-R..K_'.JO_Y. JO.R. D.A..N..R.A._YM--O-N-D_.....:.
OIANGRASSO, TONY GONZALES. JOHNNY L. HEATHERMAN. and MONELL WHITE, individually on behalf of themselves. and 011 behalf of all those similal'1y situated
Plaintiffs,
v.

06 Civ. lss:ii (SHS)
STIPULATION AND ORDER

MICHAEL J. ASTRUE. Commissioner ofthe Social Sec1.u'ity Administration, ill his official capacity,

Defendant.
---_·------------------------------x
WHEREAS on December 28, 2006, plaintiffs filed this putative class action

challenging the Commissioner's practice of suspending 01' denying Social Security benefits

based 011 the issuance of a warrant for a violation ofprobation 01' parole;

WHEREAS on September 22, 2008, tIus Court granted defendant's motion for

summary judgment) and judgment was entered on September 23. 2008, alld plaintiffs then

appealed the Court's judgment;

WHEREAS the C0l.11i of Appeals for the Second Circllit reversed and remanded

tWs Com1's judgment on March 19,2010, finding that the Social Security Adtninisu'atioJl's

practice ofb'eatilig a wammt as eVIdence that a benefit recipient is violating a condition of

probation or pal'oie was inconsistent with the plain meaning of the Social Security Act;

WHEREAS all March 18.2011. this Cowt granted plaintiffs' motion to certify a

class, and later modified the class defUlition by order dated December 2, 2011;

1

Case 1:06-cv-15521-SHS Document 95 Filed 09/12/12 Page 2 of 5
WHEREAS on April 13,2012, this Cmui so-ordered the patties' proposed order of relief and the plan for implementing relief to the subject class;
__ ., ... ____Wlml.\EJ\.-S 9Il.lYI.6)!.14. ZlU2.-I!l@imiffs nJoy~ JQt:..oJ;JQl1tetl1 fe~J!P9 eXRml~~!l__ ....,
ptU'su8nt to the Equal Access to Justice Act, 28 U.S.C. 2412, and an award ofcosts under 28 U.S.C. § 1920 ill colUlection with this action; and, 

WHEREAS the parties wish to avoid further litigation and have agreed on a 
 resolution oft11e claims relating to attorney's fees and expenses and costs; 

IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the patties. that defendant shall pay to the uudersigned plainUffs' counsel Five Hundred Ni1lety" Five Thousand, Two Hundred Sixty-Two DoHars and Seventy-Nine Cents ($595,262.79) in attorney's fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and plaintiffs' counsel will be paid Twenty-Four Thousand Seven Hwulred Thh·ty-Seven Dollars and Twenty-One Cents ($24,737.21) in costs pursuant to 28 U.S.C. § 1920, in full satisfaction ofany and all claims for attorney's fees, expenses and costs ill connection with this action.
TIlis action is deemed closed, without prejudice to future applications pursuant to ,7.1 ofthe COllrt's April 13, 2012 order of class relief.
Plaintiffs and their counsel and defendant tmderstand and agree that this 
 Stipulation and Order contains the entire agreement between them and that no statements, 
 representations, promises, agreements or negotiations, oral or otherwise) between the parties or 
 their counsel that are not included herein shall be of any force 01' effect. 

2 


Case 1:06-cv-15521-SHS Document 95 Filed 09/12/12 Page 3 of 5

Dated: New York, New York August '31 ,2012
Dated: New York, New York August 2'1 ,2012

PREET BHARARA
United States Attorney. for the Southern District of New York Attorney for Defendant

By:

O""'h- $"' ~t'""-"'­

,GURA,JR,

Assist t United States Attorney

86 Chambers Street, Third Floor

New York, New York 10007

Telephone No. (212) 637·2712

Faosimile No. (212) 637-2750

E-mail: john.gura@Usdoj.goy

PROSKAUER ROSE LLP
Z~P£mo~
By:
STEVEN B. OBUS, ESQ. Eleven Times Square New York, New York 10036-8299 Telephone No. (212) 969-3000 Facsimile No. (212) 969-2900 E-mail: sobus@proskauer.com

Dated: New YorlSJ New York August ;£,~, ,2012 3 


Case 1:06-cv-15521-SHS Document 95 Filed 09/12/12 Page 4 of 5

URBAN JUSTICE CENTER 
 Attorneys for Plaintiffs 

.
B y : / G ..
L J: I • ~ . E ARISH, ESQ. 3 Wi! It lreel - 16th Floor 
 New York. New York 10038 
 Telephone No.: (646) 602-5644 
 Facsimile No.: (212) 533-4598 
 E-Mail: jparisb@urbanjy§tice.org 


Dated: Los Angeles, California

August

• 2012

NATIONAL SENIOR CITIZENS LAW CENTER Attorneys for Plaintiffs

By:
GERALD A. MCINTYRE. Esq. 3701 Wilshire Boulevard - Suite 750 Los Angeles, California 90010 Telephone No.: (213) 674-2900 Facsimile No.: (213) 368-0774 E-Mail: gmcintyre@nsclc.org

SIDNEY . STEIN United State District Judge Southern Dis t ofNew York
Dated: New York, August

4 


Case 1:06-cv-15521-SHS Document 95 Filed 09/12/12 Page 5 of 5

URBAN JUSTICE CENTER Attol'neys for Plaintiffs

Dy.: .. _ ~~=- ________________
JENNIFER JEAN PARlSH, ESQ. 123 William Btl'eet -16th Floor New York, New York 10038 Telephone No.: (646) 602-5644 Facsimile No.: (212) 533-4598 E-Mail: jparisl!@Urbauiustice,org

Dated: Los Angeles, California
August 'J."i ,2012

NATIONAL SENIOR CITIZENS LAW CENTER Attol'lleys for Plaintiffs

By. GM1I::J4l

3701 Wilshire Boulevard - Suite 750 Los Angeles, California 90010 Telephone No.: (213) 674-2900

Facsimile No.: (213) 368-0774

~J#~/;;#jJLt.;:1~r;;4J:~~k~t{MI'f~


SOORD .< •

U~r- ~~~. 1 I~d;~/"dMh .-;~kzz.J:u~U-~tt!t d~"j, I.~r~. zi

Dated: New York, New Yol'l<: -AU8USf ...,~
¥·/lJ~OI~

4 


 
 08-5801-cv Clark v. Astrue

1

2

3

UNITED STATES COURT OF APPEALS

4

5

FOR THE SECOND CIRCUIT

6

7

8

9

August Term, 2009

10

11 (Argued: October 19, 2009

Decided: March 19, 2010)

12

13

Docket No. 08-5801-cv

14

15

16

17

ELAINE CLARK, RAYMOND GIANGRASSO, TONY GONZALES, JOHNNY L.

18 HEATHERMAN, MONELL WHITE, individually, on behalf of themselves, and on behalf of all

19

similarly situated,

20

21

Plaintiffs-Appellants,

22

23

– v. –

24

25 COMMISSIONER MICHAEL J. ASTRUE, of the Social Security Administration, in his official

26

capacity, SOCIAL SECURITY ADMINISTRATION,

27

28

Defendants-Appellees.

29

30

31

32 Before: NEWMAN, CALABRESI, KATZMANN, Circuit Judges.

33

34

Plaintiffs in this putative class action challenge the Social Security Administration’s

35 interpretation of two provisions of the Social Security Act, which permit the Administration to

36 suspend certain benefits of an individual who “is violating” the terms of her probation or parole.

37 The Administration has interpreted these provisions to mean that a warrant alleging a probation

38 or parole violation is sufficient and irrebuttable evidence that the party who was served with such

39 a warrant is violating the terms of her probation or parole. The United States District Court for

40 the Southern District of New York (Stein, J.) granted Defendants’ motion for summary

41 judgment. We hold that the Administration’s interpretation is contrary to the plain meaning of

42 the Act. Accordingly, we vacate the District Court’s decision and remand for further

43 proceedings consistent with this opinion.

44

45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
21 CALABRESI, Circuit Judge:

STEVEN E. OBUS, Bettina B. Plevan, Brian S. Rauch, Russel L. Hirschhorn, Proskauer Rose LLP, New York, N.Y.; Gerald A. McIntyre, National Senior Citizens Law Center, Los Angeles, CA; Jennifer J. Parish, Urban Justice Center, New York, NY, for Plaintiffs-Appellants.
JOHN E. GURA, JR., Assistant United States Attorney (David S. Jones, Assistant United States Attorney, of counsel), for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees.
Catherine M. Callery, Lynda J. Fisher, Louise M. Tarantino, Empire Justice Center, Rochester, N.Y.; Linda Landry, Disability Law Center Inc., Boston, MA, for Amici Curiae Empire Justice, et al., in support of PlaintiffAppellants.

22

Plaintiffs below appeal from the decision of the United States District Court for the

23 Southern District of New York (Stein J.) granting Defendants’ motion for summary judgment

24 and denying Plaintiffs’ motion for summary judgment. The District Court’s decision is

25 VACATED and REMANDED for further proceedings consistent with this opinion.

26

BACKGROUND

27

Plaintiffs-Appellants Elaine Clark, Raymond Giangrasso, Tony Gonzales, Johnny L.

28 Heatherman, and Monell White brought suit in the United States District Court for the Southern

29 District of New York (Stein, J.) against Defendants-Appellees the Social Security

30 Administration and its Commissioner, Michael J. Astrue, alleging that the Administration has

31 suspended Old-Age, Survivor, and Disability Insurance and Supplemental Security Income

32 benefits in a manner inconsistent with the authorizing statute. The District Court granted

33 Defendants’ motion for summary judgment and denied Plaintiffs’ motion for summary judgment.

-2-

1

I.

2

A.

3

Title XVI and Title II of the Social Security Act provide benefits for qualifying

4 individuals. 42 U.S.C. §§ 402, 1382. Title XVI’s Social Security Income (SSI) program

5 provides benefits to “each aged, blind, or disabled individual who does not have an eligible

6 spouse” and whose income and resources fall below a certain level. 42 U.S.C. § 1382(a). Title

7 II’s Old-Age, Survivor, and Disability Insurance (OASDI) program provides benefits to insured

8 individuals, independent of need, who are, among other things, at least 62 years of age. 42

9 U.S.C. § 402.

10

Congress has passed two provisions authorizing the Social Security Administration to

11 suspend the benefits of an individual who is violating the terms of her probation or parole

12 (hereinafter “suspension provisions”). As part of the Personal Responsibility and Work

13 Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 202, 110 Stat. 2105, 2185-86,

14 Congress passed the SSI program’s suspension provision, which states:

15

No person shall be co nsidered an eligible individual or eligible spouse for

16

purposes of this subchapter with respect to any month if during such m onth the

17

person is—

18

19

(i) fleeing to avoid prosecution, or cu stody or confinem ent after conviction,

20

under the laws of the place from which the person flees, for a crim e, or an

21

attempt to commit a crime, which is a felony under the laws of the place from

22

which the person flees, or, in jurisdic tions that do not de fine crimes as

23

felonies, is punishable by death or imprisonment for a term exceeding 1 year

24

regardless of the actual sentence imposed; or

25

26

(ii) violating a condition of probation or pa role imposed under Federal or

27

State law.

28

-3-

1 42 U.S.C. § 1382(e)(4)(A) (emphasis added). Congress passed a similar provision for the

2 OASDI program in the Social Security Protection Act of 2004, Pub. L. No. 108-203, § 203, 118

3 Stat. 493, 509:

4

(1)(A) Notwithstanding any other provision of this subchapter, no monthly

5

benefits shall be paid under this section or under section 423 of this title to any

6

individual for any month ending with or during or beginning with or during a

7

period of more than 30 days throughout all of which such individual—

8

9

(i) is confined in a jail, prison, or other penal institution or correctional facility

10

pursuant to his conviction of a criminal offense,

11

12

(ii) is confined by court order in an institution at public expense in connection

13

with—

14

15

(I) a verdict or finding that the individual is guilty but insane, with respect

16

to a criminal offense,

17

18

(II) a verdict or finding that the individual is not guilty of such an offense

19

by reason of insanity,

20

21

(III) a finding that such individual is incompetent to stand trial under an

22

allegation of such an offense, or

23

24

(IV) a similar verdict or finding with respect to such an offense based on

25

similar factors (such as a mental disease, a mental defect, or mental

26

incompetence),

27

28

(iii) immediately upon completion of confinement as described in clause (i)

29

pursuant to conviction of a criminal offense an element of which is sexual

30

activity, is confined by court order in an institution at public expense pursuant

31

to a finding that the individual is a sexually dangerous person or a sexual

32

predator or a similar finding,

33

34

(iv) is fleeing to avoid prosecution, or custody or confinement after

35

conviction, under the laws of the place from which the person flees, for a

36

crime, or an attempt to commit a crime, which is a felony under the laws of

37

the place from which the person flees, or, in jurisdictions that do not define

38

crimes as felonies, is punishable by death or imprisonment for a term

39

exceeding 1 year regardless of the actual sentence imposed, or

40

41

(v) is violating a condition of probation or parole imposed under Federal or

42

State law.

43

-4-

1 42 U.S.C. § 402(x)(1)(A) (emphasis added).

2

In 2004, Congress also provided for circumstances in which suspended benefits should be

3 reinstated (hereinafter “good-cause provisions”). See Social Security Protection Act of 2004,

4 Pub. L. 108-203, § 203, 118 Stat. at 509. The good-cause provision as it applies to the OASDI’s

5 suspension provision reads as follows:

6

(iii) Notwithstanding subparagraph (A), the Commissioner shall, for good cause

7

shown, pay the individual benefits that have been withheld or would otherwise be

8

withheld pursuant to clause (iv) or (v) of subparagraph (A) if the Commissioner

9

determines that—

10

11

(I) a court of competent jurisdiction has found the individual not guilty of the

12

criminal offense, dismissed the charges relating to the criminal offense,

13

vacated the warrant for arrest of the individual for the criminal offense, or

14

issued any similar exonerating order (or taken similar exonerating action), or

15

16

(II) the individual was erroneously implicated in connection with the criminal

17

offense by reason of identity fraud.

18

19 42 U.S.C. § 402(x)(1)(B)(iii) (emphasis added). The SSI program’s good-cause provision is to

20 the same effect:

21

(B) Notwithstanding subparagraph (A), the Commissioner shall, for good cause

22

shown, treat the person referred to in subparagraph (A) as an eligible individual or

23

eligible spouse if the Commissioner determines that—

24

25

(i) a court of competent jurisdiction has found the person not guilty of the

26

criminal offense, dismissed the charges relating to the criminal offense,

27

vacated the warrant for arrest of the person for the criminal offense, or issued

28

any similar exonerating order (or taken similar exonerating action), or

29

30

(ii) the person was erroneously implicated in connection with the criminal

31

offense by reason of identity fraud.

32

33 42 U.S.C. § 1382(e)(4)(B) (emphasis added).

34

B.

35

On June 30, 2000, the Social Security Administration enacted a regulation implementing

36 the 1996 suspension provision. 65 Fed. Reg. 40,493-94. That regulation states:

-5-

1

(1) Suspension of benefit payments because an individual is a fugitive as

2

described in paragraph (a)(1) or (a)(2) of this section or a probation or parole

3

violator as described in paragraph (a)(3) of this section is effective with the first

4

day of whichever of the following months is earlier—

5

6

(i) The month in which a warrant or order for the individual's arrest or

7

apprehension, an order requiring the individual's appearance before a court or

8

other appropriate tribunal (e.g., a parole board), or similar order is issued by a

9

court or other duly authorized tribunal on the basis of an appropriate finding

10

that the individual—

11

12

(A) Is fleeing, or has fled, to avoid prosecution as described in paragraph

13

(a)(1) of this section;

14

15

(B) Is fleeing, or has fled, to avoid custody or confinement after

16

conviction as described in paragraph (a)(2) of this section;

17

18

(C) Is violating, or has violated, a condition of his or her probation or

19

parole as described in paragraph (a)(3) of this section[.]

20

21 20 C.F.R. § 416.1339(b). The Administration has not adopted an analogous implementing

22 regulation for the OASDI suspension provision.

23

C.

24

The Social Security Administration further construed Congress’s suspension provisions

25 in its sub-regulatory Program Operations Manual System (POMS). The POMS states that SSI

26 benefits should be suspended under the following circumstances:

27

The month in which a warrant, a court orde r or decision, or an order or decision

28

by an appropriate agency in the United St ates (e.g. parole board) is issued which

29

finds that the individual is wanted in c onnection with a crim e that is a felony or

30

for attempting to commit a crime that is a felony or is violating a condition of his

31

or her probation or parole[.]

32

33 POMS § SI 00530.010(A). Suspended SSI benefits may be reinstated “effective with the first

34 month throughout which the individual does not have an active warrant pending for a . . .

35 violation of a condition of his or her parole or probation.” Id. at § 00530.020(A).

36

With respect to the OASDI suspension provision, the POMS states:

-6-

1

Unless good cause is found . . . paym ent is prohibited for any m onth in which a

2

beneficiary (including juven iles) has an unsa tisfied warrant for m ore than 30

3

continuous days for: . . . [v]iolati on of a condition of Federal or State

4

probation/parole.

5

6 POMS § GN 02613.010(A)(1). And as is the case for SSI benefits, OASDI benefits may be

7 reinstated “effective with the first month throughout which the individual does not have: . . . a

8 warrant pending for violation of a condition of parole or probation.” POMS § GN

9 02613.500(A)(1).

10

D.

11

Defendant Michael J. Astrue explains in his brief to this Court the process by which the

12 Administration suspends SSI and OASDI benefits based on a determination that an individual is

13 violating the terms of her probation or parole. The Administration first collects warrant data

14 from federal, state, and local law enforcement agencies. Using the Federal Bureau of

15 Investigation’s National Crime Information Center uniform offense codes, the Administration

16 identifies those warrants issued on the basis of an alleged parole or probation violation. Next,

17 the Administration verifies the identities of the individuals against whom the warrants were

18 issued and, once verified, matches those names with individuals receiving SSI and OASDI

19 benefits. The names are forwarded to the Office of the Inspector General (OIG). The OIG then

20 sends to the law enforcement agencies a form that requests verification (1) of the code offense,

21 (2) that “reasonable measures” were used in the warrant’s issuance to avoid identity fraud, and

22 (3) that the warrant remains open.

23

After the Administration verifies a warrant, it sends a notice to the benefits recipient. For

24 OASDI recipients, the notice states that the recipients have 30 days to advise the Administration

25 that they wish to protest the suspension by showing good cause why benefits should not be

26 suspended. For SSI beneficiaries, the notice states that recipients have 10 days to advise the

-7-

1 Administration that they wish to show good cause why their benefits should not be suspended.

2 As to both OASDI and SSI benefits, if the recipients do not respond, the Administration

3 suspends their benefits. If the recipients do respond, they have 90 days to show “good cause.”

4 POMS §§ GN 002613.025(B)(3)(c), GN 02613.030, SI 00530.015(B)(3)(c). Benefits will

5 continue for 90 days or until the Administration determines that the recipient has failed to show

6 good cause to keep benefits from being suspended. Although recipients may appeal the initial

7 good-cause determination through multiple levels of administrative review, and ultimately to a

8 federal court, see 42 U.S.C. § 405(g), 1383(c)(3); 20 C.F.R. § 404.981, 416.1481, benefits

9 remain suspended throughout the appeal process.

10

Individuals with an arrest warrant for an alleged parole or probation violation can also

11 have their benefits reinstated by showing good cause.

12

Two types of good cause exist: mandatory and discretionary. A recipient can establish

13 mandatory good cause by showing, among other things, a document from the issuing court or

14 tribunal indicating that a warrant was issued in error or that the warrant was vacated. POMS §§

15 GN 02613.025(B), SI 00530.015(B). Discretionary good cause, in contrast, does not require

16 showing that the warrant has been vacated or quashed. To be eligible, recipients must first

17 demonstrate (1) that the underlying offense and the subsequent parole or probation violation

18 were nonviolent and not drug related; and (2) that they have not committed any felony crimes

19 since the warrant was issued. In addition, they have to satisfy one of two other sets of

20 requirements. Recipients can either provide evidence that the law enforcement agency that

21 issued the warrant is unwilling to act on the warrant, or recipients can show (a) that the warrant

22 is the only existing warrant and is at least 10 years old; and (b) that the beneficiary lacks the

23 mental capacity to resolve a warrant, is incapable of managing payments, is legally incompetent,

-8-

1 has appointed a representative payee to handle his payments, or is residing in a long-term care

2 facility. Id.

3

II.

4

Plaintiffs are all SSI or OASDI benefits recipients whose benefits were suspended on the

5 basis of an arrest warrant asserting that they were violating a term of their probation or parole.

6 Three of the five plaintiffs were ultimately found not to have been violating a condition of their

7 probation or parole. One plaintiff’s case remains unresolved. The fifth plaintiff died during the 8 course of these proceedings, also with her case unresolved.1

9

III.

10

Plaintiffs filed this suit in the United States District Court for the Southern District of

11 New York (Stein, J.) on December 28, 2006. Shortly after the filing of the complaint, two

12 plaintiffs moved for a temporary restraining order and all the plaintiffs moved for a preliminary

13 injunction. The District Court denied the motions and concluded with respect to the latter

14 motion that Plaintiffs were not likely to succeed on the merits.

15

Following discovery, the parties cross-moved for summary judgment, which the District

16 Court granted to Defendants. See Clark v. Astrue, No. 06 Civ. 15521, 2008 WL 4387709

17 (S.D.N.Y. Sept. 22, 2008). The Court concluded that “[t]he suspension provisions themselves

18 are silent as to how the [Administration] is to determine whether a Social Security recipient ‘is

19 violating’ probation or parole.” Id. at *7. But it found support for Defendants’ position in the

20 2004 good-cause provisions. The Court reasoned that because Congress enacted the good-cause

21 provisions, which authorize the Administration to reinstate suspended benefits when the warrant

22 for a criminal offense is vacated, “it follows that Congress also contemplated that a warrant

1 The plaintiffs’ stories are provided in greater detail in the District Court’s decision. Clark v. Astrue, No. 06 Civ. 15521, 2008 WL 4387709 (S.D.N.Y. Sept. 22, 2008).

-9-

1 constitutes a sufficient basis on which to suspend benefits in the first instance.” Id. The District

2 Court rejected Plaintiffs’ argument that because the good-cause provisions apply only to

3 warrants for a “criminal offense,” they do not apply to suspensions on the basis of a parole or

4 probation violation, as these do not constitute an independent criminal offense. The District

5 Court stated that “there is . . . no indication in the statute that Congress intended to draw a

6 distinction between warrants for criminal offenses and warrants for probation and parole

7 violations.” It also stated that under Plaintiffs’ reading, the good-cause provisions would be

8 almost entirely inapplicable to benefits suspended on the basis of parole or probation violations.

9 Id.

10

The District Court further found that this Court’s decision in Fowlkes v. Adamec, 432

11 F.3d 90 (2d Cir. 2005), somewhat paradoxically, supported Defendants’ interpretation of the

12 suspension provisions. Fowlkes addressed a different ground on which the Administration can

13 suspend SSI and OASDI benefits: when a recipient is fleeing prosecution, custody, or

14 confinement for a felony criminal offense. Prior to Fowlkes, the Administration had a policy of

15 suspending benefits solely on the basis of the issuance of an arrest warrant for a felony offense.

16 In Fowlkes, we held that the Administration’s practice, as embodied in its POMS, is contrary to

17 the plain meaning of the Act because the Act’s use of the word “fleeing” “is understood to mean

18 the conscious evasion of arrest or prosecution.” Id. at 96. Because an arrest warrant can issue

19 without a finding that one has such intent, the fact of a warrant is an insufficient basis on which

20 to suspend benefits. See id. at 97. In contrast with Plaintiffs’ reliance on Fowlkes, the District

21 Court distinguished the case on the ground that the warrant here is not over-inclusive, and that in

22 Fowlkes, “the Second Circuit gave no indication that it would take issue with the

-10-

1 [Administration’s] suspension of benefits on the basis of a warrant that did indicate that the

2 recipient was fleeing to avoid prosecution.” Clark, 2008 WL 4387709, at *10.

3

The District Court additionally held that even if the Administration’s interpretation is not

4 compelled by the plain language of the Act, its interpretation of the Act, whether embodied in a

5 regulation or in its POMS, is entitled to “substantial deference.” Id. at *8. Because the Court

6 found that the Administration’s practice is consistent with its POMS and implementing

7 regulation, both of which reasonably interpret the Act, it concluded that Plaintiffs’ claims must

8 fail. Id. at *9-11.

9

DISCUSSION

10

I.

11

The Administration’s current practice takes a warrant alleging a probation or parole

12 violation as sufficient and irrebuttable evidence that one is violating the conditions of probation

13 or parole. We review an agency’s interpretation of its own authorizing statute according to the

14 two-step framework from Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

15 (1984). We recently explained this analysis as follows:

16

At step one, we consider whether Congr ess has directly sp oken to the precise

17

question at issue. If the intent of Congress is clear, that is the end of the matter;

18

for the court, as well as the agency, m ust give e ffect to the unam biguously

19

expressed intent of Congress. To ascert ain Congress’s intent, we begin with the

20

statutory text because if its langu age is unambiguous, no further inquiry is

21

necessary. Only if we determ ine that Congress has not directly addressed the

22

precise question at is sue will we turn to canons of construction and, if that is

23

unsuccessful, to legislative history to see if those interpretative clues permit us to

24

identify Congress’s clear intent.

25

26

If, despite these efforts, we still cannot conclude that C ongress has directly

27

addressed the precis e question at is sue, we will proceed to Chevron step two,

28

which instructs us to def er to an agency’s interpretation of the sta tute it

29

administers, so long as it is reasonable.

30

-11-

1 Snell Island SNF LLC v. NLRB, 568 F.3d 410, 415 (2d Cir. 2009) (quoting N.Y. State Office of

2 Children & Family Servs. v. U.S. Dep’t of Health & Human Servs. Admin. for Children &

3 Families, 556 F.3d 90, 97 (2d Cir. 2009)).

4

In the suspension provisions, Congress authorizes the Social Security Administration to

5 suspend SSI and OASDI benefits upon certain factual triggers. But what are those factual

6 triggers and upon what showing can one determine that the facts underlying those triggers exist?

7 Two triggers are relevant to this case. The trigger we addressed in Fowlkes requires a

8 determination that one is, among other things, “fleeing to avoid prosecution . . . for a crime . . .

9 which is a felony” (hereinafter “fugitive felon provision”). 42 U.S.C. §§ 1382(e)(4)(A)(i),

10 402(x)(1)(A)(iv). The trigger at issue here requires a determination that one “is violating a

11 condition of probation or parole” (hereinafter “probation or parole violation provision”). 42

12 U.S.C. §§ 1382(e)(4)(A)(ii), 402(x)(1)(A)(v). The issue before us is whether the fact of a

13 warrant, issued on the basis of “probable cause” or “reasonable suspicion” to believe that one is

14 violating a condition of probation or parole, is equivalent to a determination that one is in fact

15 violating a condition of probation or parole. We find that it is not and therefore that the

16 Administration’s practice is contrary to the plain meaning of the Act.

17

The law often speaks of facts, but it usually operates on probabilities. In the civil

18 context, a finding that X is more likely than not true is the equivalent to a finding that X is true.

19 See, e.g., Pulsifier v. Walker, 159 A. 426, 427 (N.H. 1932) (“The court . . . found that ‘the

20 probabilities are that the option of renewal clause was in the original draft as appears in the

21 document as signed.’ In legal effect this is equivalent to a definite finding that the proviso was

22 in the original draft.”). By contrast, “probable cause is a lower standard than preponderance of

23 the evidence.” United States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007); cf. Illinois v. Gates, 462

-12-

1 U.S. 213, 243 n.13 (1983) (“[P]robable cause requires only a probability or substantial chance of

2 criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent

3 behavior frequently will provide the basis for a showing of probable cause[.]”).

4

The Administration argues that, in the context before us, it may treat something as true

5 based on a factual probability below a preponderance of the evidence. Specifically, it asserts that

6 pursuant to these statutes, Congress’s requirement that X be true can be reduced to a requirement

7 that one have probable cause to believe, or a reasonable suspicion that, X is true. While 8 Congress may in some instances set a lower probabilistic threshold,2 we disagree that it has done

9 so here. And we hold, more generally, that unless it specifies clearly to the contrary, when

10 Congress provides that a fact triggers civil legal consequences, it is requiring a finding that the

11 fact is more likely than not true.

12

When Congress has intended a lower probabilistic showing to trigger legal consequences,

13 it has done so explicitly. For example, in a revocation-of-parole provision in the Parole

14 Commission Phaseout Act of 1996, Pub. L. No. 104-232, 110 Stat. 3055, Congress expressly

15 conditioned legal consequences on a determination of “probable cause to believe that [one] has

16 violated a condition of [one’s] parole.” 18 U.S.C. § 4214(a)(1)(A) (expires in 2011); see also id.

17 (stating that the Commission shall prepare a digest “upon a finding of probable cause”). Courts

18 have tended to do the same. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 483-88 (1972)

19 (distinguishing “an appropriate determination that the individual has in fact breached the

20 conditions of parole” from the “‘preliminary hearing’ to determine whether there is probable

21 cause or reasonable ground to believe that the arrested parolee has committed acts that would

22 constitute a violation of parole conditions”); Calhoun v. N.Y. State Div. of Parole Officers, 999

2 See infra n.5. -13-

1 F.2d 647, 652-54 (2d Cir. 1993) (finding it a violation of due process to detain a defendant based

2 on a “finding of probable cause for a parole violation” but before a final revocation hearing).

3

The Administration does not argue that, in practice, warrants, like those before us, are

4 generally based on evidence sufficient to satisfy a more-likely-than-not probabilistic threshold.

5 As a result, we do not address what relevance, if any, such a showing would have. Plaintiffs,

6 moreover, provide evidence to the contrary. They cite to the statements of several attorneys

7 from various jurisdictions to support their claim that warrants are issued on the basis of “nothing

8 more than an allegation.” Appellants’ Brief at 17-18 (discussing procedures in New York, Ohio,

9 Florida, and California). And, Amici Curiae Empire Justice, et al., proffer numerous 10 explanations for why a warrant, although perhaps adequately supported by probable cause,3

11 might not satisfy the higher more-likely-than-not evidentiary burden: A recipient might receive

12 permission from her probation or parole officer to leave the state, but that permission might

13 never have been properly recorded; probation- or parole-related documents might have been sent

14 to the wrong address; fees duly paid by a recipient might not have been properly recorded; or the

15 recipient might have qualified for a fee waiver. See Brief for Empire Justice, et al., as Amici

16 Curiae Supporting Plaintiffs-Appellants, at 16-17, 20. Under any of these circumstances, the

17 warrant might well be valid but the Administration would not be justified in suspending benefits.

3 For conceptual clarity, it is worth distinguishing situations in which a warrant wrongly issued from those in which although the warrant correctly issued, the preponderance of the evidence does not support a finding that the recipient is violating a condition of probation or parole. The Administration’s POMS recognizes situations in which a warrant was wrongly issued because it was “erroneously issued in the beneficiary’s name.” POMS § GN 02613.025(B)(4)(c). Under those circumstances, there was never probable cause to believe that the recipient had violated the conditions of her probation or parole. In other cases, however, there might have been probable cause to believe a violation had been committed, but upon further investigation, it might appear that the preponderance of the evidence does not support a finding that the recipient in fact violated probation or parole.
-14-

1

It is nonetheless possible that a warrant, coupled with adequate procedural safeguards,

2 could satisfy a more-likely-than-not probabilistic showing, and therefore constitute a “finding”

3 within the meaning of the Act. A warrant might, in some circumstances, be sufficient to create a

4 presumption of an actual violation, in which case the burden of showing no violation might shift

5 to the recipient. The recipient, having been informed of the basis for the warrant and given an

6 opportunity to present evidence, might then be required to demonstrate that, despite the warrant,

7 she is not violating the conditions of her probation or parole. We do not address the sufficiency

8 or necessity of these procedures here. We mention them only in response to the Administration’s

9 argument that, pursuant to Plaintiffs’ interpretation of the Act, benefits may only be suspended

10 after a final revocation hearing. Today’s holding does not go so far.

11

II.

12

Defendants make several arguments why the Social Security Act should not be read to

13 require a finding that it is more likely than not that one is violating a condition of probation or

14 parole before benefits can be suspended: (1) such a requirement is more difficult to administer;

15 (2) the suspension provisions’ language suggests that Congress desired the Administration to act

16 promptly; (3) Congress approved of the Administration’s current practice in the 2004 good-cause

17 provisions; and (4) we approved of the Administration’s current practice in Fowlkes. We

18 address these arguments in turn.

19

A.

20

Defendants argue that “the most objective and clearly ascertainable indication that a

21 beneficiary ‘is violating’ applicable conditions is the issuance of a violation warrant” and that the

22 Social Security Administration is “not equipped to independently investigate and adjudicate

23 whether each beneficiary . . . ‘is violating’ any applicable conditions.” Appellees’ Br. at 29-30.

-15-

1 We do not doubt that a warrant may be the most easily ascertainable indication that one is

2 violating the conditions of her probation or parole. But if, as discussed above, that indication is

3 insufficient, then the fact that it is easily ascertainable does not cure its insufficiency. And while

4 it may be the case that the Administration is not equipped to determine on a case-by-case basis

5 whether an individual is violating a condition of probation or parole, that is precisely what, we

6 conclude, Congress has required it to do before it may suspend benefits. That Congress requires

7 the Administration to do something it cannot easily do does not change the fact that Congress 8 requires it.4

9

B.

10

Defendants further argue that Congress’s use of the present tense “is” contemplates

11 prompter suspension than our interpretation of the suspension provisions permits. This argument

12 is circular. True enough, as soon as one knows that a recipient is in violation, benefits should be

13 suspended. But the question before us is at what point does one know that a violation has

14 occurred? If under the relevant statute, read in an ordinary way, one cannot know that a

15 violation has occurred until there is a determination that it is more likely than not that a violation

16 has occurred, then to act sooner is to act prematurely. Once one determines that a recipient is

17 more likely than not violating a condition of probation or parole, benefits can be suspended

4 We also note that many of the same reasons that the Social Security Administration is not readily equipped to make this determination apply to the benefits recipients and make them, as compared to the Agency, even less qualified to defend their benefits. The warrants that provide the bases for benefits suspensions are often issued decades earlier by far flung jurisdictions. While it may be expensive for the Administration to investigate such warrants, it is frequently impossible for the often-poor benefits recipients to travel to these jurisdictions and, once there, to navigate the legal bureaucracies and have their warrants quashed.
-16-

1 retroactively as of the date that the recipient began violating probation or parole. But prompter 2 action is not appropriate.5

3

C.

4

The District Court relied heavily on Congress’s 2004 good-cause provisions, 42 U.S.C.

5 §§ 402(x)(1)(B)(iii), 1382(e)(4)(B). These provisions require the Administration to reinstate

6 benefits suspended on the basis of the fugitive felon provision or the probation or parole

7 violation provision when certain conditions are met. Significantly, the good-cause provisions do

8 not specify which “good causes” apply to benefits suspended on the basis of the fugitive felon

9 provision and which apply to benefits suspended on the basis of the probation or parole violation

10 provision. The good causes requiring reinstatement of benefits are:

11

(I) a court of competent jurisdiction has found the individual not guilty of the

12

criminal offense, dismissed the charges relating to the criminal offense,

13

vacated the warrant for arrest of the individual for the criminal offense, or

14

issued any similar exonerating order (or taken similar exonerating action), or

15

16

(II) the individual was erroneously implicated in connection with the criminal

17

offense by reason of identity fraud.

18

19 Id. Defendants argue that by including among the good causes situations in which a court has

20 “vacated the warrant for arrest of the individual for the criminal offense,” it necessarily approved

21 of the Administration’s practice of suspending benefits on the basis of a warrant that alleged a

22 probation or parole violation. We disagree.

23

First, as discussed above, a warrant is certainly evidence that one is violating a condition

24 of probation or parole. And in some circumstances a warrant might even be sufficient (although

25 not irrebuttable) evidence. Because a warrant is relevant evidence of a violation, benefits may,

26 in appropriate circumstances, be suspended based, either entirely or in part, on the existence of a
5 As stated earlier, Congress could, of course, have clearly provided that suspension take place on mere suspicion that a violation occurred, or when probable cause of a violation exists, but it has not done so. We intimate no view about the constitutionality of such provisions.

-17-

1 warrant. The subsequent vacatur of such a warrant would of course undermine the ground on

2 which the benefits were suspended. And this both explains and justifies Congress’s decision to

3 allow reinstatement of benefits upon the vacatur of the warrant. It does not follow from this,

4 however, that Congress meant that all warrants are sufficient bases on which to suspend benefits.

5

Second, it is far from clear that the language on which Defendants and the District Court

6 seize applies to probation or parole violations. Violating a condition of probation or parole is not 7 generally an independent criminal offense.6 As the Supreme Court has stated:

8

[R]evocation of parole is not part of a c riminal prosecution and thus the full

9

panoply of rights due a defendant in such a proceeding does not apply to parole

10

revocations. Parole arises after the e nd of the crim inal prosecution, including

11

imposition of sentence. Supervision is not directly by the court but by an

12

administrative agency, which is so metimes an arm of the court and sometimes of

13

the executive. Revocation deprives an indi vidual, not of the ab solute liberty to

14

which every citizen is entitled, but only of the cond itional liberty properly

15

dependent on observance of special parole restrictions.

16

17 Morrissey, 408 U.S. at 480 (internal citation omitted); see also United States v. Aspinall, 389

18 F.3d 332, 342 (2d Cir. 2004) (finding that “it has long been established that probation revocation,

19 like parole revocation, is not a stage of a criminal prosecution” (internal quotation marks

20 omitted)), abrogated on other grounds by United States v. Booker, 543 U.S. 220 (2005).; Knight

21 v. Estelle, 501 F.2d 963, 964 (5th Cir. 1974) (“A parole revocation hearing is not a criminal

22 proceeding. Its purpose is not to assess guilt or to assign blameworthy acts to the various

23 discrete pigeonholes of the criminal laws. Rather it is held to determine whether the attempt by

24 parole to restore the parolee to the ranks of the carriers and remove him from those of the carried

25 has failed.” (footnote omitted)).

6 Of course, it may be a condition of one’s probation or parole that one not commit crimes. But conduct that is not otherwise criminal, such as drinking alcohol, does not become criminal simply because the conduct constitutes a violation of one’s probation or parole.
-18-

1

For this reason, the warrants referred to in the good-cause provisions are probably best

2 read to refer to warrants for felony criminal offenses, thereby providing the basis for reinstating 3 benefits suspended under the fugitive felon provision.7 The District Court disagreed, noting,

4 “Under plaintiffs’ reading, the good-cause provisions would either be entirely inapplicable to

5 persons who violated their probation or parole because the provisions refer exclusively to

6 ‘criminal offenses’ throughout, or else would apply only in the rare instances in which such

7 persons were able to have their underlying convictions vacated.” 2008 WL 4387709, at *8. We

8 agree that the nearly exclusive concern of the good-cause provisions with fugitive felons is odd.

9 But it is not so odd that it justifies reading out of the statute the word “criminal,” which Congress

10 used repeatedly in the relevant parts of the statutes.

11

D.

12

Finally, our decision in Fowlkes does not support Defendants’ interpretation of the

13 suspension provisions. Defendants argue, and the District Court reasoned, that because the

14 defect in the warrant that this Court pointed out in Fowlkes does not apply to probation or parole

15 violations, Fowlkes can be read as implicitly approving of Defendants’ use of warrants as

16 sufficient and irrebuttable evidence in such cases. This logic is problematic for two reasons.

17 First, just because Fowlkes is distinguishable from this case does not mean that it supports

18 Defendants’ position. A court is not obligated to identify every problem in a problematic agency

19 practice, nor every defect in a problematic warrant.

20

Second, the factual trigger in Fowlkes is significantly different from the factual trigger in

21 this case. The trigger for the probation or parole violation provision is the actual violation of a

22 condition of one’s probation or parole. The trigger for the fugitive felon provision is, among

7 After Fowlkes, however, such a warrant, without evidence of intent, would not be a sufficient ground on which to suspend benefits.

-19-

1 other things, the act of fleeing a felony prosecution; it is not the act of committing the felony.

2 Because of this difference, a warrant means something quite different in the two contexts. In the

3 probation or parole violation context, a warrant is evidence—amounting perhaps to probable

4 cause—that one is in fact violating a condition of one’s probation or parole. In the fugitive felon

5 context, an outstanding arrest warrant for a felony is effectively an element of the offense; it is

6 arguably direct evidence that the recipient is in fact “wanted in connection with a crime that is a

7 felony.” POMS § SI 00530.010. We of course need not address whether, but for the defect in

8 the Administration’s interpretation of the provisions noted in Fowlkes, such an outstanding arrest

9 warrant would always constitute more-likely-than-not evidence that one is in fact fleeing a

10 felony prosecution. We simply note that the Administration, and this Court, might reasonably

11 treat warrants differently in the two contexts.

12

III.

13

Because we find that the Social Security Administration’s practice is contrary to the plain

14 meaning of the Social Security Act, we do not address whether the Administration’s practice is

15 consistent with its own implementing regulation. We similarly do not need to address what

16 degree of deference would be accorded to an agency’s interpretation of an act when that

17 interpretation is, as is arguably true in this case, expressed only in its operations manual and not

18 in regulations implementing the act.

19

CONCLUSION

20

For the foregoing reasons, we hold that the Social Security Administration’s practice of

21 treating a warrant alleging that a recipient is violating a condition of probation or parole as

22 sufficient and irrebuttable evidence that the recipient is in fact violating a condition of probation

23 or parole is inconsistent with the plain meaning of the Social Security Act. We therefore vacate

-20-

1 the District Court’s grant of summary judgment for Defendant and its denial of summary 2 judgment for Plaintiffs and remand for further proceedings consistent with this opinion.
-21-

 
 Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 1 of 18
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:06−cv−15521−SHS

CLOSED

Clark et al v. Barnhart et al Assigned to: Judge Sidney H. Stein Case in other court: USCA 2nd Circuit, 08−05801 Cause: 42:402 Social Security Benefits
Plaintiff

Date Filed: 12/28/2006 Date Terminated: 09/12/2012 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Elaine Clark individually TERMINATED: 03/14/2011

represented by Bettina Barasch Plevan Proskauer Rose LLP 11 Times Square New York, NY 10036 (212) 969−3065 Fax: (212) 969−2900 Email: Bplevan@proskauer.com LEAD ATTORNEY

Steven E. Obus Proskauer Rose LLP 11 Times Square New York, NY 10036 (212) 969−3525 Fax: (212) 969−2900 Email: sobus@proskauer.com LEAD ATTORNEY

Plaintiff
Elaine Clark on behalf of themselves, and on behalf of all similarly situated TERMINATED: 03/14/2011

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY
Steven E. Obus (See above for address) LEAD ATTORNEY

Plaintiff
Raymond Giangrasso individually

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY

Jennifer Jean Parish Urban Justice Center 123 William Street,16th Floor New York, NY 10038 (646) 602−5644 Fax: (212) 533−4598 Email: jparish@urbanjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus (See above for address) LEAD ATTORNEY

Gerald A. McIntyre National Senior Citizens Law Ctr, 3435 Wilshire Blvd, #2860

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 2 of 18

Los Angeles, CA 90010 (213) 674−2900 Fax: (213) 639−0934 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Raymond Giangrasso on behalf of themselves, and on behalf of all those similarly situated

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY

Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus (See above for address) LEAD ATTORNEY

Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Tony Gonzales individually

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY

Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus (See above for address) LEAD ATTORNEY

Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Tony Gonzales on behalf of themselves, and on behalf of all those similarly situated

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY

Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus (See above for address) LEAD ATTORNEY

Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 3 of 18

Plaintiff Johnny L. Heatherman individually
Plaintiff Johnny L. Heatherman on behalf of themselves, and on behalf of all those similarly situated
Plaintiff Monell White individually
Plaintiff Monell White on behalf of themselves, and on behalf of all those similarly situated

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY
Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven E. Obus (See above for address) LEAD ATTORNEY
Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY
Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven E. Obus (See above for address) LEAD ATTORNEY
Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY
Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven E. Obus (See above for address) LEAD ATTORNEY
Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 4 of 18

Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus (See above for address) LEAD ATTORNEY

Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ryan Clark

represented by Bettina Barasch Plevan Proskauer Rose LLP (NY) 11 Times Square New York, NY 10036 (212) 969−3065 Fax: (212) 969−2900 Email: Bplevan@proskauer.com LEAD ATTORNEY

Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus Proskauer Rose LLP (NY) 11 Times Square New York, NY 10036 (212) 969−3525 Fax: (212) 969−2900 Email: sobus@proskauer.com LEAD ATTORNEY

Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Joy Jordan

represented by Bettina Barasch Plevan (See above for address) LEAD ATTORNEY

Jennifer Jean Parish (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven E. Obus (See above for address) LEAD ATTORNEY

Gerald A. McIntyre (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 5 of 18

V.
Defendant
Commissioner Michael J. Astrue of the Social Security Administration, in his official capacity
Defendant
Social Security Administration TERMINATED: 03/08/2007

represented by Sean Chance Cenawood U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2717 Email: Sean.Cenawood@usdoj.gov LEAD ATTORNEY

Date Filed 12/28/2006
12/28/2006 12/28/2006 01/04/2007
01/10/2007 01/17/2007 02/02/2007

# Docket Text
1 COMPLAINT against Jo Anne B. Barnhart, Social Security Administration. (Filing Fee $ 350.00, Receipt Number 601283)Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually).(mbe, ) Additional attachment(s) added on 1/4/2007 (laq, ). (Entered: 12/29/2006)
SUMMONS ISSUED as to Jo Anne B. Barnhart, Social Security Administration, U.S. Attorney and U.S. Attorney General. (mbe, ) (Entered: 12/29/2006)
Magistrate Judge Ronald L. Ellis is so designated. (mbe, ) (Entered: 12/29/2006)
2 FILING ERROR − ELECTRONIC FILING IN NON−ECF CASE − AFFIDAVIT OF SERVICE of Summons and Complaint,,. Jo Anne B. Barnhart served on 12/29/2006, answer due 1/18/2007; Social Security Administration served on 12/29/2006, answer due 1/18/2007. Service was accepted by Kim Sciro, Esq., Office of the General Counsel, Chief Counsel, Region II, Social Security Administration. Service was made by Certified Mail on Jo Anne Barnhart, Commissioner, Social Security Administration. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated); Tony Gonzales(individually); Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated); Johnny L. Heatherman(individually); Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated); Monell White(individually); Monell White(on behalf of themselves, and on behalf of all those similarly situated); Elaine Clark(individually); Elaine Clark(on behalf of themselves, and on behalf of all similarly situated); Raymond Giangrasso(individually). (Plevan, Bettina) Modified on 2/22/2007 (lb). (Entered: 01/04/2007)
22 UNSIGNED ORDER TO SHOW CAUSE, Temporary Restraining Order, and Order Granting Expedited Discovery. (jmi) Modified on 3/6/2007 (jm). Modified on 3/6/2007 (Entered: 03/06/2007)
3 ORDER: It is hereby ordered that defendants shall respond to the plaintiffs' motion for a preliminary injunction and temporary restraining order on or before 2/2/2007; and the plaintiffs shall reply to the motion on or before 2/6/2007. (Signed by Judge Sidney H. Stein on 1/16/2007) (lb) (Entered: 01/18/2007)
6 ANSWER to Complaint. Document filed by Social Security Administration.(js) (Entered: 02/06/2007)

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 6 of 18

02/02/2007 02/02/2007 02/06/2007 02/06/2007 02/06/2007 02/06/2007 02/14/2007 02/20/2007
02/22/2007 02/26/2007
02/26/2007
02/26/2007

7 MOTION for Summary Judgment dismissing the complaint purs to FRCP 56. Document filed by Social Security Administration.(cd) (Entered: 02/06/2007)
8 MEMORANDUM OF LAW in Support re: 7 MOTION for Summary Judgment. Document filed by Social Security Administration. (cd) (Entered: 02/06/2007)
4 TRANSCRIPT of proceedings held on 1/16/07 before Judge Sidney H. Stein. (jbe) (Entered: 02/06/2007)
5 TRANSCRIPT of proceedings held on 1/16/07 before Judge Sidney H. Stein. (jbe) (Entered: 02/06/2007)
9 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura Jr. dated 2/2/2007 re: to we write respectfully to request permission to sudmit a brief exceeding this Court's generally−applicable page limit for memoranda of law by thirty−one pages. ENDORSEMENT: SO ORDERED. (Signed by Judge Sidney H. Stein on 2/5/2007) (jmi) (Entered: 02/07/2007)
10 ORDER Replies due by 2/13/2007., Oral Argument set for 2/22/2007 03:00 PM before Judge Sidney H. Stein. (Signed by Judge Sidney H. Stein on 2/5/2007) (jmi) (Entered: 02/07/2007)
11 ENDORSED LETTER addressed to Judge Sidney H. Stein from Russell L. Hirschorn dated 2/12/2007 re: to the reply memorandum willbe approximately fifteen pages.ENDORSEMENT: SO ORDERED. (Signed by Judge Sidney H. Stein on 2/13/2007) (jmi) (Entered: 02/20/2007)
12 REPLY MEMORANDUM OF LAW in Support of Plaintiffs' Application for a Temporary Restraining Order, Preliminary Injunction and Expedited Discovery. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 02/27/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF CASE ERROR. Note to Attorney Bettina Barasch Plevan to MANUALLY RE−FILE Document AFFIDAVIT OF SERVICE, Document No. 2. This case is not ECF. (lb) (Entered: 02/22/2007)
14 DECLARATION of Raymond Glangrasso. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
15 DECLARATION of Tony Gonzales. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
16 DECLARATION of Johnny L. Heatherman. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated),

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 7 of 18

02/26/2007 02/26/2007 02/26/2007 02/26/2007 02/28/2007
02/28/2007

Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
17 DECLARATION of Monell White. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
18 DECLARATION of Elaine Clark. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
19 MEMORANDUM OF LAW in Support of Plaintiffs'Application for a Preliminary Injunction, A Temporary Restraining Order and Expedited Discovery. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
20 DECLARATION of Bettina B. Plevan in Support of Plaintiffs' Expedited Discovery. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (jmi) (Entered: 03/02/2007)
13 AFFIDAVIT OF SERVICE of Summons and Complaint. Service was accepted by Ms. Orlavia Hines. Service was made by Certified Mail # 7005 1160 0004 7352 0748 to General Counsel, Certified Mail # 7005 1160 0004 7352 0731 to Jo Annw B. Barnhardt, Certified Mail # 7005 1160 0004 7352 0809 to the Attorney General of the United States, and Certified Mail # 7005 1160 0004 7352 0816 to Office of the General Counsel (ALL) on 12/29/06. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (db) (Entered: 03/01/2007)
21 ORDER that for the reasons set forth on the record, plaintiffs' request for a temporary restraining order pending determination its motion for a preliminary injunction is denied. SO ORDERED. (Signed by Judge Sidney H. Stein on 2/26/2007) (jmi) (Entered: 03/02/2007)

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 8 of 18

03/08/2007 03/08/2007 03/09/2007 03/19/2007
03/28/2007 03/28/2007 05/02/2007 05/22/2007 06/11/2007 07/13/2007 08/07/2007 08/16/2007 10/12/2007
11/16/2007

23 OPINION AND ORDER # 94377: as set forth above, plaintiffs have not demonstarted a likelihood of success on the merits and plaintiffs' motion for a preliminary injunction is therefore DENIED. So ordered. (Signed by Judge Sidney H. Stein on 3/8/07) (js) Modified on 3/12/2007 (rw). (Entered: 03/09/2007)
25 ORDER...Brief in opposition due by 5/4/2007.,Discovery due by 4/20/2007.,Replies due by 5/18/2007. SO ORDERED. (Signed by Judge Sidney H. Stein on 3/8/2007) (jmi) (Entered: 03/12/2007)
24 TRANSCRIPT of proceedings held on 2/26/07 before Judge Sidney H. Stein. (jbe) (Entered: 03/09/2007)
26 ORDER that the following typographical errors in that order shall be corrected: after the first block quote on page nine of the order "24 U.S.C." should be "42 U.S.C."; in the second sentence of the last paragraph of page ten of the order, "43 U.S.C." is used twice. Both Citations should be "42 U.S.C."; in the first sentence of the second full paragraph of page eleven of the order, the second consecutive use of the work "that" should be deleted. (Signed by Judge Sidney H. Stein on 3/16/07) (dle) (Entered: 03/20/2007)
27 TRANSCRIPT of proceedings held on 2/26/07 before Judge Sidney H. Stein. (jbe) (Entered: 03/28/2007)
28 REVISED SCHEDULING ORDER:Replies due by 6/18/2007.,Discovery due by 5/21/2007. Plaintiff's brief in opposition to Defendants motion for summary judgment is to be submitted on or before 6/4/07. (Signed by Judge Sidney H. Stein on 3/27/07) (js) (Entered: 03/29/2007)
29 NOTICE OF CHANGE OF ADDRESS by Jennifer Jean Parish on behalf of all plaintiffs. New Address: Urban Justice Center, 123 William Street, 16th floor, New York, NY, USA 10038, (646) 602−5644. (Parish, Jennifer) (Entered: 05/02/2007)
30 REVISED SCHEDULING ORDER:Responses due by 6/29/2007,Replies due by 7/16/2007.,Discovery due by 6/15/2007. (Signed by Judge Sidney H. Stein on 5/22/2007) (jmi) Modified on 5/23/2007 (Miles, Janeen). (Entered: 05/23/2007)
31 REVISED SCHEDULING ORDER: Discovery due by 7/13/2007,Plaintiffs' Brief in Opposition due by 7/27/2007, Defendant's Replies Brief due by 8/10/2007. SO ORDERED. (Signed by Judge Sidney H. Stein on 6/11/2007) (jmi) (Entered: 06/12/2007)
32 REVISED SCHEDULING ORDER: Discovery due by 8/24/2007,Responses due by 9/14/2007,Replies due by 10/5/2007. SO ORDERED (Signed by Judge Sidney H. Stein on 7/12/2007) (jmi) (Entered: 07/17/2007)
33 ORDER dismissing 7 Motion for Summary Judgment without prejudice to defendant to refile this motion in its entirety on or before October 5, 2007; and There will be no further extensions of the briefing schedule. SO ORDERED (Signed by Judge Sidney H. Stein on 8/6/2007) (jmi) (Entered: 08/09/2007)
34 STIPULATED PROTECTIVE (CONFIDENTIALITY) ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Sidney H. Stein on 8/15/07) (cd) (Entered: 08/16/2007)
35 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 10/5/07 re: The parties request the following breifing schedule − Plaintiffs' opposition to the Government's Motion due 11/16/07 and Government's reply due 12/7/07. ENDORSEMENT: SO ORDERED. Defendant's Motion for Summary Judgment dated 2/2/07 is deemed renewed on 10/5/07. Set Deadlines as to Defendant's Motion for Summary Judgment: Responses due by 11/16/2007,Replies due by 12/7/2007. (Signed by Judge Sidney H. Stein on 10/9/07) (db) (Entered: 10/12/2007)
39 MOTION for Summary Judgment purs to ruld 56 of the FRCP. Attached is 56.1 Statement and Rauch Declaration. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated),

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 9 of 18

11/16/2007 11/16/2007 11/16/2007 11/16/2007 11/16/2007
11/16/2007
11/26/2007 12/13/2007
01/14/2008 01/24/2008 02/08/2008
02/12/2008

Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (document received in night dep. on 11/16/07 at 6:46 p.m.)(djc) (Entered: 11/20/2007)
40 DECLARATION of Elon Harpa. (djc) (Entered: 11/20/2007)
41 DECLARATION of Laura Green. (djc) (Entered: 11/20/2007)
42 DECLARATION of Valerie R. Arbie−McClelland. (djc) (Entered: 11/20/2007)
43 DECLARATION of Bill White. (djc) (Entered: 11/20/2007)
44 MEMORANDUM OF LAW in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's 39 MOTION for Summary Judgment. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (djc) (Entered: 11/20/2007)
45 RESPONSE to Defendant's Statement of Undisputed Facts Pursuant to Local Rule 56.1. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (djc) (Entered: 11/20/2007)
46 ENDORSED LETTER addressed to Judge Sidney H. Stein from Russell L. Hirschhorn dated 11/26/07 re: a request for an extension of time until 12/28/2007 to submit reply papers in support of the motion for summary judgment. ENDORSEMENT: SO ORDERED. (Signed by Judge Sidney H. Stein on 11/26/07) (kco) (Entered: 11/27/2007)
47 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura dated 12/6/07 re: counsel for defendant requests an adjournment of this Court's scheduling order making defendant's reply brief due by 1/10/08 and plaintiff's reply due by 1/31/08. ENDORSEMENT: This maintains the 3 week period that existed previously plaintiff to file their reply. (Signed by Judge Sidney H. Stein on 12/10/07) (dle) (Entered: 12/17/2007)
48 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 1/8/2008 re: request for an adjournment on Cross−motions for Summary Judgment making defendant's reply brief due by 1/24/2007 and plaintiffs' reply due by 2/14/2008. ENDORSEMENT: So Ordered. (Signed by Judge Sidney H. Stein on 1/14/2008) (jar) (Entered: 01/14/2008)
49 ENDORSED LETTER addressed to Sidney H. Stein from John E. Gura dated 1/23/08 re: The Commissioner of Social Security, the defendant in this action. We write to request a two week adjournment of the Court's scheduling order. ENDORSEMENT: So Ordered. (Signed by Judge Sidney H. Stein on 1/24/08) (js) (Entered: 01/25/2008)
50 ENDORSED LETTER addressed to Judge Sidney H. Stein from Sean Cenawood dated 2/7/08 re: Defendant request to extend time to submit its response to its summary judgment motion/reply (to plaintiffs' cross motion for summary judgment) brief from 2/7/08 to 2/11/08. ENDORSEMENT: So ordered. Set Deadlines/Hearing as to 39 MOTION for Summary Judgment.( Reply due by 2/11/2008. Responses due by 2/11/2008) (Signed by Judge Sidney H. Stein on 2/8/08) (cd) (Entered: 02/08/2008)
51 MEMORANDUM OF LAW in Support of Defendant's Motion for Summary Judgment and in Opposition to Plaintiff's 39 MOTION for Summary Judgment.

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 10 of 18

03/13/2008 03/13/2008 09/22/2008
09/22/2008 09/23/2008 09/23/2008 10/08/2008 10/08/2008
11/21/2008 11/24/2008 11/24/2008 01/21/2009

Document filed by Michael J. Astrue. (djc) (Entered: 02/14/2008)
52 REPLY MEMORANDUM OF LAW in Support of Plaintiffs' Motion for Summary Judgment. Document filed by Tony Gonzales(individually), Johnny L. Heatherman(individually), Monell White(individually), Elaine Clark(individually), Raymond Giangrasso(individually). (djc) (Entered: 03/14/2008)
53 SUPPLEMENTAL DECLARATION of Brian S. Rauch of information based on personal knowledge and a review of documents relevant to this case. Document filed by Tony Gonzales(individually), Johnny L. Heatherman(individually), Monell White(individually), Elaine Clark(individually), Raymond Giangrasso(individually). (djc) (Entered: 03/14/2008)
54 OPINION AND ORDER # 96538: Plaintiffs have failed to establish that the SSI and OASDI suspension provisions or the SSI Regulation permit suspension of Social Security benefits only after an individual has been formally adjudicated to have violated a condition of probation or parole. The SSA's practice of suspending benefits upon a warrant based on probable cause is consistent with the statute and regulation and with Second Circuit precedent and is entitled to deference by this Court. Because the practice is lawful, this Court may not substitute its own policy judgment for the SSA's policy judgment. Accordingly, the SSA's motion for summary judgment is granted and plaintiffs' cross−motion for summary judgment is denied. The Clerk of Court is directed to enter judgment in defendant's favor. (Signed by Judge Sidney H. Stein on 9/22/2008) (rw) Modified on 9/25/2008 (jab). (Entered: 09/23/2008)
Transmission to Judgments and Orders Clerk. Transmitted re: 54 Order on Motion for Summary Judgment, to the Judgments and Orders Clerk. (rw) (Entered: 09/23/2008)
55 CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion and Order dated September 22, 2008, defendants motion for summary judgment is granted and plaintiffs cross−motion for summary judgment is denied; accordingly, the case is closed. (Signed by J. Michael McMahon, clerk on 9/23/08) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 09/23/2008)
Mailed notice of Right to Appeal to Attorney(s) of Record: Sean Chance Cenawood, Steven E. Obus, Bettina Barasch Plevan. (mro) (Entered: 09/29/2008)
56 LETTER addressed to Judge Stein from John E. Gura, Jr. dated 9/9/08 re: response to plaintiffs'letter dated August 19, 2008. Document filed by Michael J. Astrue.(djc) (Entered: 10/08/2008)
57 LETTER addressed to Judge Stein from Brian S. Rauch dated 8/19/08 re: counsel writes to bring to the court's attention two Administrative Law Judge decisions. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually).(djc) (Entered: 10/08/2008)
58 NOTICE OF APPEAL from 54 Order on Motion for Summary Judgment. Document filed by Tony Gonzales(individually), Johnny L. Heatherman(individually), Monell White(individually), Elaine Clark(individually), Raymond Giangrasso(individually). Filing fee $ 455.00, receipt number E 670527. Copies of Notice of Appeal mailed to attorney(s) of record: A.U.S.A. (nd) (Entered: 11/24/2008)
Transmission of Notice of Appeal to the District Judge re: 58 Notice of Appeal. (nd) (Entered: 11/24/2008)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 58 Notice of Appeal,. (nd) (Entered: 11/24/2008)
59 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 58 Notice of Appeal, filed by Tony Gonzales, Johnny L. Heatherman, Elaine Clark, Monell White, Raymond Giangrasso USCA Case Number 08−5801, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 11 of 18

01/27/2009 01/27/2009 06/17/2010 06/17/2010 06/22/2010 06/22/2010 06/22/2010
06/22/2010
07/02/2010 07/14/2010 08/16/2010

transmitted to the U.S. Court of Appeals. (tp) (tp). (Entered: 01/21/2009)
USCA Case Number 08−5801 from the USCA 2nd Circuit assigned to 58 Notice of Appeal, filed by Tony Gonzales, Johnny L. Heatherman, Elaine Clark, Monell White, Raymond Giangrasso. (tp) (Entered: 01/27/2009)
First Supplemental ROA Sent to USCA (Electronic File). Certified Supplemental Indexed record on Appeal Electronic Files for 59 Appeal Record Sent to USCA − Index, 49 Endorsed Letter, Set Deadlines/Hearings, 29 Notice of Change of Address filed by Tony Gonzales, Johnny L. Heatherman, Elaine Clark, Monell White, Raymond Giangrasso USCA Case Number 08−5801, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 01/27/2009)
60 MANDATE of USCA (Certified Copy) as to 58 Notice of Appeal, filed by Tony Gonzales, Johnny L. Heatherman, Elaine Clark, Monell White, Raymond Giangrasso USCA Case Number 08−5801−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is VACATED and the case is REMANDED in accordance with the opinion of this Court. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 06/17/2010. (nd) (Entered: 06/17/2010)
Transmission of USCA Mandate/Order to the District Judge re: 60 USCA Mandate,. (nd) (Entered: 06/17/2010)
61 MOTION to Substitute Party pursuant to Rule 25(a). Old Party: Elaine Clark (deceased), New Party: Ryan Clark and Joy Jordan. Document filed by the plaintiffs.(mro) (Entered: 06/23/2010)
62 MEMORANDUM OF LAW in Support re: 61 MOTION to Substitute Party. Old Party: Elaine Clark, New Party: Ryan Clark and Joy Jordan. Document filed by the plaintiffs. (mro) (Entered: 06/23/2010)
63 MOTION to Certify Class pursuant to Rule 23 of the FRCP. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually).(mro) (Entered: 06/23/2010)
64 MEMORANDUM OF LAW in Support re: 63 MOTION to Certify Class. Document filed by Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(individually). (mro) (Entered: 06/23/2010)
65 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr dated 7/2/2010 re: Counsel respectfully request an adjournment of the Government's time to oppose or otherwise respond to plaintiffs' motion for class certification and motion to substitute to 8/17/2010, and plaintiff's time to reply to the Government's opposition papers until 10/4/2010. ENDORSEMENT: So Ordered. (Signed by Judge Sidney H. Stein on 7/2/2010) (jfe) Modified on 7/14/2010 (jfe). (Entered: 07/02/2010)
Set/Reset Deadlines as to 61 MOTION to Substitute Party. Old Party: Elaine Clark, New Party: Ryan Clark and Joy Jordan., 63 MOTION to Certify Class.. Responses due by 8/17/2010 (jfe) (Entered: 07/14/2010)
66 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 8/13/10 re: Counsel for defendant respectfully request that the Court extend the Government's time to oppose or otherwise respond to plaintiffs motion for class certification and motion to substitute one week, to August 24, 2010, and also requests a one week adjournment for plaintiff's reply which would be due by October 12, 2010.

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 12 of 18

08/26/2010 08/26/2010 09/02/2010 10/19/2010 10/21/2010
12/22/2010
03/14/2011 03/18/2011
03/23/2011

ENDORSEMENT: So Ordered. (Signed by Judge Sidney H. Stein on 8/16/10) (pl) (Entered: 08/17/2010)
67 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr., dated 8/23/10 re: counsel requests that the Court extend the Government's time to oppose or otherwise respond to plaintiffs' motion for class certification and motion to substitute to September 2, 2010; and requests that Plaintiff's reply be due by 10/21/10. ENDORSEMENT: So Ordered. (Signed by Judge Sidney H. Stein on 8/26/10) (djc) Modified on 8/27/2010 (djc). (Entered: 08/26/2010)
Set/Reset Deadlines as to 61 MOTION to Substitute Party. Old Party: Elaine Clark, New Party: Ryan Clark and Joy Jordan, 63 MOTION to Certify Class. Responses due by 9/2/2010; Replies due by 10/21/2010. (djc) (Entered: 08/26/2010)
68 MEMORANDUM OF LAW in Opposition re: 63 MOTION to Certify Class. Document filed by Michael J. Astrue. (mbe) (Entered: 09/07/2010)
69 ENDORSED LETTER addressed to Judge Sidney H. Stein from Steven E. Obus dated 10/19/10 re: counsel requests a two−page extension for their Reply Brief in Support of Plaintiffs' Motion for Class Certification, which is due Thursday, October 21, 2010. ENDORSEMENT: Request granted. (Signed by Judge Sidney H. Stein on 10/19/10) (djc) Modified on 10/20/2010 (djc). (Entered: 10/19/2010)
70 REPLY MEMORANDUM OF LAW in Support re: 63 MOTION to Certify Class. Document filed by Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually). (mbe) (Entered: 10/22/2010)
71 NOTICE OF CHANGE OF ADDRESS by Russell Laurence Hirschhorn on behalf of Elaine Clark(individually), Elaine Clark(on behalf of themselves, and on behalf of all similarly situated), Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually). New Address: Proskauer Rose LLP, Eleven Time Square, New York, NY, USA 10036−8299, 2129693000. (Hirschhorn, Russell) (Entered: 12/22/2010)
72 ORDER granting 61 Motion to Substitute Party. Ryan Clark and Joy Jordan added. Elaine Clark, Elaine Clark, Elaine Clark and Elaine Clark terminated. (Signed by Judge Sidney H. Stein on 3/14/11) (cd) (Entered: 03/14/2011)
73 OPINION & ORDER, #100055 the Court grants plaintiffs' motion for class certification and hereby certifies the following class: All persons nationwide whose SSI and/or OASDI benefits were denied and/or suspended based solely on the existence of a warrant for an alleged violation of probation or parole during the period from October 29, 2006 to and including such time in the future when final relief is entered in this action. Plaintiffs Johnny L. Heatherman, Ryan Clark and Joy Jordan are to serve as representatives of this class and Betina B. Plevan, Steven E. Obus, Jennifer J. Parish and Gerald A. McIntyre are appointed as class counsel. SO ORDERED. (Signed by Judge Sidney H. Stein on 3/18/2011) (lnl) Modified on 3/28/2011 (ajc). (Entered: 03/18/2011)
74 MOTION for Clarification and/or Reconsideration of the Court's 3/18/2011 Opinion and Order. Document filed by Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually).(mbe) (Entered: 03/24/2011)

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 13 of 18

03/23/2011
04/06/2011 04/08/2011 04/15/2011 04/20/2011
04/20/2011
04/29/2011 11/23/2011 12/02/2011

75 MEMORANDUM OF LAW in Support re: 74 Motion for Clarification and/or Reconsideration of the Court's 3/18/2011 Opinion and Order.. Document filed by Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually). (mbe) (Entered: 03/24/2011)
76 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr., dated 4/5/2011, re: Counsel for Commissioner of Social Security, the defendant writes to request that the Court extend the Government's time to oppose or otherwise respond to the plaintiffs' motion to April 15, 2011. Plaintiffs do not object to requested adjournment. ENDORSEMENT: SO ORDERED. Set Deadline as to 74 MOTION for Reconsideration: Response due by 4/15/2011. (Signed by Judge Sidney H. Stein on 4/6/2011) (lnl) (Entered: 04/06/2011)
77 NOTICE OF APPEARANCE by Jennifer Jean Parish on behalf of Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually) (mbe) (Entered: 04/11/2011)
78 MEMORANDUM OF LAW in Opposition to Plaintiffs' Motion for Reconsideration of the Court's Order. Document filed by Michael J. Astrue. (mbe) (Entered: 04/18/2011)
79 REPLY MEMORANDUM OF LAW in Support of Plaintiffs' Motion for Clarification and/or Reconsideration of the Court's 3/18/2011 Opinion and Order. Document filed by Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually). (mbe) (Entered: 04/21/2011)
80 NOTICE OF APPEARANCE by Gerald A. McIntyre on behalf of Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually) *Staff Note: Accepted for filing by the Chambers of Judge Sidney H. Stein on 4/20/2011.* (tro) (Entered: 04/25/2011)
81 Letter addressed to Judge Sidney H. Stein from John E. Gura, Jr., dated 4/27/2011, re: This Office represents the Commissioner of Social Security, the defendant in this action. We write respectfully to request that the Court consider this surreply to address a factual inaccuracy that is contained in the Reply Memorandum of Law in Support of Plaintiffs' Motion for Clarification and/or Reconsideration of the Court's March 18, 2011 Opinion and Order ("PI. Rep."). (lnl) (Entered: 04/29/2011)
Minute Entry for proceedings held before Judge Sidney H. Stein: pretrial Conference held on 11/23/2011. (lab) (Entered: 11/23/2011)
82 Letter addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 11/30/2011 re: We write respectfully to advise the Court of the Social Security Administration's position regarding the class definition that was proposed by the Court at the conference held on November 23, 2011. Document filed by Social Security Administration.(lmb) (Entered: 12/02/2011)

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 14 of 18

12/02/2011
02/09/2012 02/09/2012 03/12/2012 04/05/2012 04/13/2012
05/14/2012 05/14/2012

83 ORDER granting 74 Motion for Reconsideration re 73 Memorandum & Opinion. The Court therefore grants plaintiffs' motion for clarification (Dkt. No. 74) and amends the prior certification order to certify the following class: All persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006. (Signed by Judge Sidney H. Stein on 12/2/2011) (lmb) (Entered: 12/02/2011)
84 ORDER: IT IS HEREBY ORDERED that the next pretrial conference will be held on March 13, 2012, at 12:30 in the afternoon in Courtroom 23A. Pretrial Conference set for 3/13/2012 at 12:30 PM in Courtroom 23A, 500 Pearl Street, New York, NY 10007 before Judge Sidney H. Stein. (Signed by Judge Sidney H. Stein on 2/9/2012) (rdz) (Entered: 02/09/2012)
Minute Entry for proceedings held before Judge Sidney H. Stein: Telephone Conference held on 2/9/2012. (lab) (Entered: 02/14/2012)
85 ENDORSED LETTER addressed to Judge Sidney H. Stein from Brian S. Rauch dated 3/9/2012 re: counsel for plaintiffs request that the conference scheduled for March 13 be adjourned to provide the parties with additional time to negotiate a final order. ENDORSEMENT: March 13 conf. adjourned to April 5 at 9 AM., ( Pretrial Conference set for 4/5/2012 at 09:00 AM before Judge Sidney H. Stein.) (Signed by Judge Sidney H. Stein on 3/9/2012) (pl) (Entered: 03/12/2012)
Minute Entry for proceedings held before Judge Sidney H. Stein: Telephone Conference held on 4/5/2012. (lab) (Entered: 04/05/2012)
86 ORDER: In an opinion dated March 19,2010, the U.S. Court of Appeals for the Second Circuit held that the "the Social Security Administration's practice of treating a warrant alleging that a recipient is violating a condition of probation or parole as sufficient and irrebuttable evidence that the recipient is in fact violating a condition of probation or parole is inconsistent with the plain meaning of the Social Security Act." Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010). This Court subsequently certified a class defined as "All persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006." Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED as set forth herein. (Signed by Judge Sidney H. Stein on 4/13/2012) (djc) (Entered: 04/13/2012)
87 NOTICE OF MOTION for an Order, pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, awarding attorneys' fees. Document filed by Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually).(lmb) (Entered: 05/15/2012)
88 MEMORANDUM OF LAW in Support re: 87 NOTICE OF MOTION for an Order, pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, awarding attorneys' fees. Document filed by Ryan Clark, Raymond Giangrasso(on behalf of themselves, and on behalf of all those similarly situated), Raymond Giangrasso(individually), Tony Gonzales(individually), Tony Gonzales(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(on behalf of themselves, and on behalf of all those similarly situated), Johnny L. Heatherman(individually), Joy Jordan, Monell White(on behalf of themselves, and on behalf of all those similarly situated), Monell White(individually). (lmb) (Entered: 05/15/2012)

Case: 1:06-cv-15521 As of: 10/20/2017 10:11 AM EDT 15 of 18

05/25/2012
06/12/2012 06/28/2012 06/28/2012 07/20/2012 08/10/2012
08/10/2012 08/27/2012 09/12/2012 11/19/2012 01/22/2013 01/22/2013
01/24/2013

89 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 5/25/2012 re: Counsel for the defendant requests that the Government's opposition to plaintiffs' fee request be adjourned until June 29, 2012. Any reply is due July 13, 2012. ENDORSEMENT: SO ORDERED. (Responses due by 6/29/2012, Replies due by 7/13/2012.) (Signed by Judge Sidney H. Stein on 5/25/2012) (ft) (Entered: 05/25/2012)
90 Letter addressed to Judge Sidney H. Stein from John E. Gura dated 6/08/2012 re: This Office represents the Commissioner of Social Security, the defendant in this action. As provided in the Court's April 13, 2012 order, we are submitting the Commissioner's plan and time frames for implementing relief to the class. Document filed by Social Security Administration.(ama) (Entered: 06/12/2012)
91 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 6/27/12 re: Counsel for the Government requests that the Government's opposition to plaintiffs' fee request be adjourned until 7/20/12. ENDORSEMENT: Any reply by plaintiffs is due August 3, 2012. (Signed by Judge Sidney H. Stein on 6/28/2012) (mro) (Entered: 06/28/2012)
Set/Reset Deadlines as to 87 MOTION for Attorney Fees: Responses due by 7/20/2012 Replies due by 8/3/2012. (mro) (Entered: 06/28/2012)
92 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 7/19/2012 re: Counsel for Defendant requests that the Government's opposition to plaintiffs' fee request be adjourned until August 10, 2012. ENDORSEMENT: So Ordered., ( Responses due by 8/10/2012) (Signed by Judge Sidney H. Stein on 7/19/2012) (pl) Modified on 7/26/2012 (pl). (Entered: 07/20/2012)
93 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 8/9/2012 re: Counsel for Defendants write respectfully to request an adjournment until August 28, 2012 of the Government's time to respond to plaintiffs' motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA") and for costs. ENDORSEMENT: So Ordered. (Signed by Judge Sidney H. Stein on 8/10/2012) (pl) Modified on 8/10/2012 (pl). (Entered: 08/10/2012)
Set/Reset Deadlines: Responses due by 8/28/2012 (pl) (Entered: 08/10/2012)
94 ENDORSED LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated 8/23/2012 re: I respectfully request that the Government's opposition to plaintiffs' fee request be adjourned until September 10, 2012. ENDORSEMENT: SO ORDERED., ( Responses due by 9/10/2012) (Signed by Judge Sidney H. Stein on 8/24/2012) (ama) (Entered: 08/27/2012)
95 MEMO ENDORSEMENT on STIPULATION AND ORDER: As set forth on p. 2 of Plts' Memo in Support for fees and costs (Dkt 88), Proskauer shall donate all recovered fess to the Urban Justice Center and the Nat'l Senior Citizens Law Center. All counsel have the appreciation of the Court for their skillful advocacy during this litigation. (Signed by Judge Sidney H. Stein on 9/12/2012) (cd) (Entered: 09/13/2012)
***DELETED DOCUMENT. Deleted document number 96 Letter. The document was incorrectly filed in this case. ***Deleted pursuant to instructions from Chambers on 12/14/2012. (tro) (Entered: 12/14/2012)
96 Letter addressed to Mr. Reddy from Laura Blakely dated 1/22/2013 re: The Court has received your letter in Clark, et al. v. Michael J. Astrue, 06 Civ. 15521 (SHS). Please be advised that that case has been closed. I am sending a copy of your letter to Gerald McIntyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (djc) (Entered: 01/22/2013)
97 Letter addressed to Smarrow S. Helm from Laura Blakely dated 1/22/2013 re: The Court has received your letter in Clark, et al. v. Michael J. Astrue, 06 Civ. 15521 (SHS). Please be advised that that case has been closed. I am sending a copy ofyour letter to Gerald McIntyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (djc) (Entered: 01/22/2013)
98 SEALED DOCUMENT placed in vault.(nm) (Entered: 01/24/2013)

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01/25/2013 01/25/2013 03/15/2013 03/18/2013
03/18/2013
04/17/2013 04/17/2013 08/26/2013 08/26/2013 09/24/2013 09/24/2013 09/24/2013

99 Letter from John Timothy Reddy, Jr. re: Submission of Motion for Disbursement of Funds. (ago) (Entered: 01/25/2013)
100 Letter addressed to Judge Sidney H. Stein from Samarrow S. Helm dated 11/10/2012 re: the termination of his benefits. (ago) (Entered: 01/25/2013)
101 Letter addressed to Ms. Johnson from Laura Blakely, Courtroom Deputy to Hon. Sidney H. Stein dated 3/15/13 re: The Court has received your letter in Clark, et al. v. Michael J. Astrue, 06 Civ. 15521 (SHS). Please be advised that that case has been closed. I am sending a copy of your letter to Gerald Mcintyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (mro) (Entered: 03/15/2013)
102 TRANSCRIPT of Proceedings re: MOTION held on 11/23/2011 before Judge Sidney H. Stein. Court Reporter/Transcriber: William Richards, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/11/2013. Redacted Transcript Deadline set for 4/22/2013. Release of Transcript Restriction set for 6/20/2013.(Rodriguez, Somari) (Entered: 03/18/2013)
103 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a MOTION proceeding held on 11/23/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 03/18/2013)
104 Letter addressed to Judge Sidney H. Stein from Charles Newton dated 4/10/13 re: Charles Newton states that the Social Security administration has not refunded the money that they withheld from him. (mro) (Entered: 04/17/2013)
105 Letter addressed to Mr. Newton from Laura Blakely, Courtroom Deputy to Hon. Sidney H. Stein dated 4/17/13 re: The Court has received your letter in Clark, et al. v. Michael J. Astrue, 06 Civ. 15521 (SHS). Please be advised that that case has been closed. I am sending a copy of your letter to Gerald McIntyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (mro) (Entered: 04/17/2013)
106 LETTER addressed to Judge Sidney H. Stein from Moshe Ben−Hod dated 8/19/2013 re: I received a letter from the SSA office in Baltimore dated March 10, 2013 stating that I am to receive $74,241 plus $1,143 every month. I am in contact with the SSA office at the US Consulate in Jerusalem, as I live in Israel I have numerous correspondence with them and they state that they sent the money to my bank account. Nothing has ever arrived. Could you please look into this. (rjm) (Entered: 08/26/2013)
107 LETTER addressed to Mr. Ben−Hod from Laura Blakely dated 8/26/2013 re: The Court has received your letter in Clark, et al. v. Michael J. Astrue, 06 Civ. 15521 (SHS). Please be advised that that case was closed on September 12, 2012. I am sending a copy of your letter to Gerald McIntyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (rjm) (Entered: 08/26/2013)
108 LETTER addressed to Ms. Mosley from William Frank Wolf dated 9/20/2013 re: To the best of my knowledge and belief, Social Security is a social program created by Franklin D. Roosevelt. (rjm) (Entered: 09/24/2013)
109 LETTER addressed to Mr. William F. Wolf from Laura Blakely, Courtroom Deputy to Hon. Sidney H. Stein dated 9/24/2013 re: The Court has received your letter in Clark, et al. v. Michael J. Astrue, 06 Civ. 15521 (SHS). Please be advised that that case was closed on September 12, 2012. I am sending a copy of your letter to Gerald McIntyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (rjm) (Entered: 09/24/2013)
***DELETED DOCUMENT. Deleted document number 110 LETTER. The document was incorrectly filed in this case. (ft) (Entered: 09/26/2013)

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09/26/2013 10/01/2013 10/01/2013 10/08/2013 10/10/2013
10/30/2013 10/31/2013
01/07/2014 01/07/2014
03/07/2014 03/26/2014 03/27/2014 06/11/2014 06/11/2014

111 LETTER addressed to Judge Sidney H. Stein from William Frank Wolf dated 9/23/2013 re: Overview... If Hon. Stein has any questions please do not hesitate to ask. (rjm) (Entered: 09/26/2013)
112 LETTER addressed to Ossie Dennis, Sr. from Laura Blakely dated 10/1/2013 re: I am sending a copy of your letter to Gerald Mcintyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (ft) (Entered: 10/01/2013)
113 LETTER addressed to Judge Sidney H. Stein from Sloan Dennis dated 9/16/2013 re: My dad Ossie J. Dennis, Sr. gets (SSI) which they cut off 1−06 for a probation. (rjm) (Entered: 10/01/2013)
115 LETTER addressed to Judge Sidney H. Stein from William F. Wolf dated 10/4/2013. (rsh) (Entered: 10/11/2013)
114 LETTER addressed to Mr. William F. Wolf from Laura Blakely, Courtroom Deputy to Hon. Sidney H. Stein dated 10/9/2013 re: The Court has received a third letter from you dated October 4, 2013. Your letters will be filed in the above case. As I previously advised you, this case was closed on September 12, 2012. Judge Stein no longer has jurisdiction over this matter. I am sending a copy of your letter to Gerald Mcintyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (rsh) (Entered: 10/10/2013)
116 LETTER addressed to Judge Sidney H. Stein from Chester Bernard Pugh dated 10/25/2013 re: COMPLAINT/AFFIDAVIT OF CHESTER BERNARD PUGH. (rjm) (Entered: 10/30/2013)
117 LETTER addressed to Mr. Chester B. Pugh from Laura Blakely, Courtroom Deputy to Hon. Sidney H. Stein dated 10/31/2013 re: The Court has received a letter from you dated October 25, 2013. Your letter will be filed in the above case. Please be advised that this case was closed on September 12, 2012. Judge Stein no longer has jurisdiction over this matter. I am sending a copy of your letter to Gerald Mcintyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (rjm) (Entered: 10/31/2013)
118 LETTER addressed to Judge Sidney H. Stein from Thomas Strippone undated re: I have medical bills from 2008. I have called Medicare time and time again to pay these bills. (rjm) Modified on 1/7/2014 (rjm). (Entered: 01/07/2014)
119 LETTER addressed to Mr. Thomas Strippone from Laura Blakely, Courtroom Deputy to Hon. Sidney H. Stein dated 1/7/2014 re: On January 6, 2014, the Court received your letter. The letter will be filed and docketed in the above case. Please be advised that this case was closed on September 12, 2012. Judge Stein no longer has jurisdiction over this matter, and as further specified herein. (rjm) (Entered: 01/07/2014)
120 LETTER addressed to Judge Cotter from William F. Wolf dated 2/27/2014 re: To the best of my knowledge and belief, please find the spark that ignited the firestorm. (tn) (Entered: 03/07/2014)
121 LETTER addressed to Judge Sidney H. Stein from John E. Gura, Jr. dated March 26, 2014 re: extension of implementation plan. Document filed by Michael J. Astrue.(Gura, John) (Entered: 03/26/2014)
122 MEMO ENDORSEMENT on re: 121 Letter filed by Michael J. Astrue. ENDORSEMENT: So ordered. (Signed by Judge Sidney H. Stein on 3/26/2014) (kgo) (Entered: 03/27/2014)
123 LETTER addressed to Judge Sidney H. Stein from Mona Diane Sawtelle re: I would be so appreciative if you have any suggestions or help in this matter so I can get benefits from 2002−2007 because I was not in prison. (kgo) (Entered: 06/11/2014)
124 LETTER addressed to Mona Diane Sawtelle from Laura Blakely dated 6/11/2014 re: Judge Stein no longer has jurisdiction over this matter. I am sending a copy of your letter to Gerald Mcintyre, Esq., one of the lawyers who represented the plaintiffs in the Clark action. He may be able to advise you on how to proceed. (kgo) (Entered: 06/11/2014)

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09/12/2014 09/12/2014 02/18/2015 02/19/2015
11/02/2016 11/02/2016
11/02/2016 08/10/2017 08/10/2017

125 LETTER addressed to Judge Sidney H. Stein from Cavlin Murry dated 9/5/2014 re: letter to the Court from Calvin Murry. (tn) (Entered: 09/12/2014)
126 LETTER addressed to Mr. Calvin Murry from Laura Blakely dated 9/12/2014 re: On September 12, 2014, the Court received your letter in connection with the above case. I am sending a copy of your letter to Gerald Mcintyre, Esq., one of the lawyers who represented the class in the Clark action. Any motion would have to be presented by your lawyer. (tn) (Entered: 09/12/2014)
127 LETTER addressed to Judge Sidney H. Stein from Stephen Dwight Greene dated 2/10/2015 re: Your Honor, my humble request to you for your assistance for "remedial" relief are the following. (ama) (Entered: 02/18/2015)
128 LETTER addressed to Mt. Stephen Dwight Greene from Laura Blakely Courtroom Deputy to Hon. Sidney H. Stein dated 2/19/2015 re: On February 18, 2015, the Court received your letter in connection with the above case. Please be advised that this case was closed on September 12, 2012. Judge Stein no longer has jurisdiction over this matter. Your letter will be docketed and electronically filed in the above case. Gerald Mcintyre, Esq., one of the lawyers who represented the class in the Clark action, will receive an electronic notification that your letter was filed. He may be able to advise you on how to proceed. (ama) (Entered: 02/19/2015)
129 LETTER from Mary Blackmore on behalf, Doug Olson re: I am not an attorney, but I believe, as you shall review, it states in the section enclosed, section 3 under Remedial Provisions subsection 3.1 the defendant, SSA shall fully reinstate all benefits retroactive to date benefits were suspended. (ama) (Entered: 11/02/2016)
130 LETTER addressed to Ms. Mary Blackmore from Laura Blakely Courtroom Deputy to Hon. Sidney H. Stein dated 11/02/2016 re: On October 31, 2016, the Court received your letter in connection with the above case. Please be advised that this case was closed on September 12, 2012. Judge Stein no longer has jurisdiction over this matter. A copy of your letter (without the attachments) was docketed and electronically filed in the above case, and the original letter with attachments was mailed to Gerald Mcintyre, Esq., one of the lawyers who represented the class in the Clark action. He may be able to advise you on how to proceed. (ama) (Entered: 11/02/2016)
Terminate Transcript Deadlines (ama) (Entered: 11/03/2016)
131 LETTER addressed to Laura Blakely from Donna Chatlos dated 8/09/2017 re: Based on everything we have read about this class Action Settlement the monies should already be paid, but for some reason Social Security Administration is holding the monies. (ama) (Entered: 08/10/2017)
132 LETTER addressed to Mr. Van De Wege from Laura Blakely Courtroom Deputy to Hon. Sidney H. Stein dated 8/10/2017 re: The Court received your letter in connection with the above action. Please be advised that this case was closed on September 12, 2012. Judge Stein no longer has jurisdiction over this matter. A copy of your letter and this letter will be docketed and a notice of electronic filing will be emailed to all the attorneys who appeared in this action. Gerald Mcintyre, Esq., one of the lawyers who represented the class, may be able to advise you on how to proceed. His address is: National Senior Citizens Law Center, 3660 Wilshire Blvd, Suite 718, Los Angeles, CA 90010. (ama) (Entered: 08/10/2017)